Villanova University School of Law: Digital Repository

USDC for the Middle District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
7-10-2025 
USA v. Lorenzo Scott 
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Recommended Citation 
"USA v. Lorenzo Scott" (2025). 2025 Decisions. 553. 
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NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
____________ 
 
No. 24-2517 
____________ 
 
UNITED STATES OF AMERICA 
 
v. 
 
LORENZO SCOTT,  
Appellant 
____________ 
 
On Appeal from the United States District Court  
for the Middle District of Pennsylvania 
(D.C. Criminal No. 4:20-cr-00065-001) 
District Judge: Honorable Matthew W. Brann 
____________ 
 
Submitted Under Third Circuit L.A.R. 34.1(a) 
on July 8, 2025 
 
Before: SHWARTZ, FREEMAN, and RENDELL, Circuit Judges 
 
(Opinion filed: July 10, 2025) 
 
_______________ 
 
OPINION* 
_______________
  
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
 
2 
FREEMAN, Circuit Judge. 
 
A jury convicted Lorenzo Scott of two assault counts for which the District Court 
imposed consecutive terms of imprisonment.  Scott appeals his sentence on double-
jeopardy grounds, arguing that the two counts of conviction merge for sentencing 
purposes.  We will affirm the judgment. 
Scott was convicted of assault with intent to commit murder, in violation of 18 
U.S.C. § 113(a)(1) (“section (a)(1)”), and assault resulting in serious bodily injury, in 
violation of 18 U.S.C. § 113(a)(6) (“section (a)(6)”).  Both offenses involved the same 
victim: Larry McCoullum.1   
Facially, the two counts are distinct offenses.  A conviction for violating section 
(a)(1) (but not section (a)(6)) requires intent to commit murder (regardless of any injury 
that results), while a conviction for violating section (a)(6) (but not section (a)(1)) 
requires that serious bodily injury result (regardless of the assailant’s intent).  So each 
count requires proof of an element not required by the other count, making them different 
offenses under the Blockburger test.  See United States v. Miller, 527 F.3d 54, 70–71 (3d 
Cir. 2008); Blockburger v. United States, 284 U.S. 299, 304 (1932). 
Despite this facial application of Blockburger, Scott argues that the jury 
instructions at his trial turned the two counts into one under the Blockburger test.  See 
 
1 The District Court had subject-matter jurisdiction under 18 U.S.C. § 3231.  We have 
appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).  Our review of 
double-jeopardy challenges is plenary.  United States v. Rigas, 605 F.3d 194, 203 n.7 (3d 
Cir. 2010) (en banc). 
 
3 
United States v. Centeno, 793 F.3d 378, 392 (3d Cir. 2015).  He points to the District 
Court’s instruction that the intent element of section (a)(1) can be satisfied through 
recklessness.2  And he says the government has acknowledged in other cases that causing 
serious bodily injury with a reckless mental state suffices for a conviction under section 
(a)(6).   
This is of no moment.  The Blockburger test turns on the differences, if any, 
between two counts of conviction, not the commonalities.  Despite any seeming overlap 
in their requisite mental states, each of Scott’s two counts of conviction (facially and as 
charged to the jury) required proof of an element not required by the other count.  Thus, 
the two counts are different offenses that do not merge for sentencing purposes. 
* * * 
 For the foregoing reasons, we will affirm the judgment. 
 
2 The District Court instructed the jury that it could only convict Scott of violating 
§ 113(a)(1) if government proved (1) that “Scott intentionally struck Larry McCoullum,” 
and (2) that “Scott did so with the intent to commit murder.” App. 298.  As to the intent 
element, the Court explained that “[i]t is sufficient if you find that Mr. Scott exhibited 
recklessness or was aware of, but indifferent to the serious risk of death.”  Id. 
For the § 113(a)(6) count, the Court instructed that the government had to prove 
(1) that “Scott intentionally struck Larry McCoullum,” and (2) that, “as a result of this 
assault, Larry McCoullum suffered serious bodily injury.”  App. 299. 


USA v. Lorenzo Scott

Mohammad Qatanani v. Attorney General United States of America

Axalta Coating Systems LLC v. FAA

USDC for the Western District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
7-16-2025 
Jane Doe v. Northern Regional Police Department of Allegheny C 
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Recommended Citation 
"Jane Doe v. Northern Regional Police Department of Allegheny C" (2025). 2025 Decisions. 572. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/572 
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NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
____________ 
 
No. 24-2481 
____________ 
 
JANE DOE, 
    Appellant 
                                       
v. 
 
NORTHERN REGIONAL POLICE DEPARTMENT OF ALLEGHENY COUNTY; 
DETECTIVE SCOTT RICK 
____________ 
 
On Appeal from the United States District Court 
for the Western District of Pennsylvania 
(District Court No. 2:22-cv-01628) 
District Judge:  Honorable Robert J. Colville 
____________ 
 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)  
July 10, 2025 
____________ 
 
Before:  RESTREPO, BIBAS, and CHUNG, Circuit Judges 
 
(Filed: July 16, 2025) 
____________ 
 
OPINION* 
____________ 
CHUNG, Circuit Judge. 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 
does not constitute binding precedent. 
2 
 
 Jane Doe, who alleges that she was sexually assaulted by a fellow student at her 
high school, brought suit against Detective Scott Rick and the Northern Regional Police 
Department (“NRPD”) (collectively, “Defendants”) after Detective Rick’s investigation 
of her assault did not lead to charges against Doe’s alleged assaulter.  Doe asserts that 
Detective Rick and the NRPD violated the Equal Protection Clause and Doe’s substantive 
due process rights under the Fourteenth Amendment based on Detective Rick’s 
purportedly inadequate investigation.  She also argues that Detective Rick is liable under 
Pennsylvania law for intentional infliction of emotional distress and negligent infliction 
of emotional distress.  The District Court dismissed Doe’s Second Amended Complaint 
(“SAC”) with prejudice, and because we agree that Doe failed to state a claim for relief 
on her federal law claims, we will affirm. 
I. BACKGROUND1 
 
Doe, who is Hispanic and was born in Guatemala, was a minor and student at 
Pine-Richland High School (“the High School”) at the time of the relevant incidents.  
Doe alleges that during the school day on January 7, 2019, a minor male student, A.M., 
“ignoring [Doe’s] pleas to stop and physical resistance, … restrained her [in a school 
restroom], vaginally raped her with his penis, finger and tongue, forced her to perform 
oral sex, and attempted to anally rape her.”  App. 32a.  Doe reported the incident to Pine-
Richland School District (“the School District”) personnel, law enforcement, and medical 
professionals that same day.  Doe gave a video-recorded statement to NRPD Detective 
 
1 Because we write for the parties, we recite only the facts pertinent to our decision. 
3 
 
Rick, a white male.  On March 7, 2019, Detective Rick informed Doe’s mother that the 
Allegheny County District Attorney’s Office decided not to prosecute A.M.   
Doe also alleges that A.M. committed other unpunished sexual assaults.  For 
example, a few months before A.M.’s attack on Doe, “A.M. [was] reported to the [School 
District] for sexually harassing a female elementary school student.”  Id.  Moreover, at 
some point “several months after the attack,” Detective Rick was informed that A.M. had 
been accused of sexually assaulting another female student on a school bus, but Detective 
Rick “never investigated the assault” and “never even documented in an incident report 
the sexual assault complaint filed by the victim’s mother.”  Id.   
Doe asserts that Detective Rick conducted an “incomplete and inadequate” 
investigation that weakened the case for prosecuting A.M., cast the encounter between 
her and A.M. as consensual, and made her appear less credible.  App. 41a.  She further 
contends that the NRPD is biased against Hispanic people (and particularly Hispanic 
young women) because NRPD officers previously “detained and imprisoned for 11 
hours, a young female American citizen of Hispanic descent who legally immigrated into 
the United State[s] as an infant, solely based on the groundless belief that she might be an 
undocumented alien,” and because “Pine-Richland Township is 91% White and only 1% 
Hispanic.”  App. 42a–43a.   
Doe filed suit against Defendants in the Court of Common Pleas, Allegheny 
County, and Defendants removed the case to the District Court.  The SAC claims that 
Defendants violated (1) the Equal Protection Clause and (2) Doe’s substantive due 
process rights under the Fourteenth Amendment.  It also alleges that Detective Rick 
4 
 
committed the state-law torts of (3) intentional infliction of emotional distress and (4) 
negligent infliction of emotional distress.  Doe also alleged, not in the body of the SAC, 
but in other briefing before the District Court, that her two counts against Defendants 
were implicitly Monell claims, seeking to hold the NRPD liable for Detective Rick’s 
constitutional violations.  Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).  
Defendants moved to dismiss the SAC under Rule 12(b)(6).  The District Court dismissed 
the federal law claims in Doe’s SAC with prejudice and declined to exercise 
supplemental jurisdiction over the Pennsylvania law claims.  Doe timely appealed the 
District Court’s order, arguing that the District Court’s dismissal of the federal claims 
was in error.  For the reasons below, we will affirm the District Court’s order.   
II. DISCUSSION2 
 
“A motion to dismiss pursuant to Federal Rule 12(b)(6) should be granted only if, 
accepting as true the facts alleged and all reasonable inferences that can be drawn 
therefrom there is no reasonable reading upon which the plaintiff may be entitled to 
relief.”  Vallies v. Sky Bank, 432 F.3d 493, 494 (3d Cir. 2006) (internal quotation marks 
omitted).  While “detailed factual allegations” are not required to survive a Rule 12(b)(6) 
motion to dismiss, “a plaintiff’s obligation to provide the grounds of his entitlement to 
relief requires more than labels and conclusions, and a formulaic recitation of the 
elements of a cause of action will not do.”  Bell Atl. Corp. v. Twombly, 550 U.S. 544, 
 
2  The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1343(a)(3) and 1367.  
We have jurisdiction under 28 U.S.C. § 1291.  We exercise plenary review over an order 
granting a Rule 12(b)(6) motion.  W. Penn Allegheny Health Sys., Inc. v. UPMC, 627 
F.3d 85, 97 (3d Cir. 2010).   
5 
 
555 (2007) (cleaned up).  “Factual allegations must be enough to raise a right to relief 
above the speculative level.”  Id.  “[W]here the well-pleaded facts do not permit the court 
to infer more than the mere possibility of misconduct, the complaint has alleged—but it 
has not ‘show[n]’—‘that the pleader is entitled to relief.’”  Ashcroft v. Iqbal, 556 U.S. 
662, 679 (2009) (quoting Fed. R. Civ. P. 8(a)(2)).  
A. Doe fails to state a claim for violations of her rights under the Equal 
Protection Clause of the Fourteenth Amendment. 
 
Doe alleges that Detective Rick’s purported bias against young Hispanic women 
interfered with his investigation of Doe’s sexual assault, leading prosecutors to not bring 
charges against A.M., thereby violating Doe’s rights under the Equal Protection Clause of 
the Fourteenth Amendment.  Specifically, Doe argues that Detective Rick “intentionally 
treated [her] differently” than other sexual assault victims by “disbelieving her consistent 
statements and acting in a manner to protect A.M. because of [Doe]’s race and ethnicity.”  
App. 47a.   
The Equal Protection Clause of the Fourteenth Amendment provides that “[n]o 
State shall … deny to any person within its jurisdiction the equal protection of the laws.”  
U.S. CONST. amend. XIV.  “At bottom, the Equal Protection Clause requires equal 
treatment of ‘all persons similarly situated.’”  Stradford v. Sec’y Pa. Dep't of Corr., 53 
F.4th 67, 73 (3d Cir. 2022) (quoting Ass’n of N.J. Rifle & Pistol Clubs, Inc. v. Att’y Gen. 
N.J., 910 F.3d 106, 125 (3d Cir. 2018)).  To state a claim that law-enforcement conduct 
violated the Equal Protection Clause, a plaintiff must plausibly allege that the challenged 
conduct (1) “had a discriminatory effect”, and (2) “was motivated by a discriminatory 
6 
 
purpose.”  Carrasca v. Pomeroy, 313 F.3d 828, 834 (3d Cir. 2002).  A plaintiff can show 
discriminatory effect by demonstrating “that the Government has treated [her] differently 
from a similarly situated party.”  Stradford, 53 F.4th at 73 (quoting Real Alts., Inc. v. 
Sec’y Dep’t of Health & Hum. Servs., 867 F.3d 338, 348 (3d Cir. 2017)); Engquist v. Or. 
Dep’t of Agric., 553 U.S. 591, 602 (2008).  “Persons are similarly situated under the 
Equal Protection Clause when they are alike in all relevant aspects.”  Startzell v. City of 
Phila., 533 F.3d 183, 203 (3d Cir. 2008) (internal quotation marks omitted); see also 
Stradford, 53 F.4th at 74. 
Here, Doe’s SAC mentions three other individuals: (1) a young Hispanic woman 
who was wrongly detained by the NRPD on the erroneous belief that she was an illegal 
alien; (2) a “female elementary school student,” whose race and ethnicity Doe does not 
identify, who was sexually harassed by A.M., and who reported her harassment to the 
School District; and (3) a female student, whose race and ethnicity Doe does not identify, 
who was sexually assaulted by A.M. on a school bus and whose case was allegedly not 
properly investigated or documented by Detective Rick.  App. 32a.  Doe does not allege 
that any of these would-be comparators were “treated differently,” as two allegedly had 
negative experiences with the NRPD and Detective Rick, and one was alleged to only 
have contact with the School District.  See Hill v. Borough of Kutztown, 455 F.3d 225, 
239 (3d Cir. 2006).  Doe’s failure to identify in her SAC any similarly situated 
individuals that Detective Rick or the NRPD treated differently than her is fatal to her 
Equal Protection Clause claim.  See id. (citing Levenstein v. Salafsky, 414 F.3d 767, 776 
(7th Cir. 2005)).   
7 
 
Even if Doe had alleged similarly situated individuals, her Equal Protection Clause 
claim would still fail because she has failed to plausibly allege “motivat[ion] by a 
discriminatory purpose,” Carrasca, 313 F.3d at 834, which “implies more than intent as 
volition or intent as awareness of consequences.  It implies that the decisionmaker … 
selected or reaffirmed a particular course of action at least in part because of, not merely 
in spite of, its adverse effects upon an identifiable group.”  Bray v. Alexandria Women’s 
Health Clinic, 506 U.S. 263, 271–72 (1993) (alteration in original) (quoting Personnel 
Adm’r, 442 U.S. 256, 279 (1979)).  Doe cites to a report finding that police officers 
erroneously overestimate the rate of false accusations of sexual assault, but provides no 
argument as to how this report is connected to Detective Rick or the NRPD specifically.  
Doe also discusses the NRPD’s arrest and detention of a Hispanic minor, but offers no 
evidence that this conduct was motivated by racial or ethnic bias, much less that such bias 
can be imputed to NRPD as a policy or to Detective Scott as an individual.   Doe does not 
even allege that Detective Scott was involved in this incident.  The only allegations in the 
SAC directly related to Defendants are Doe’s assertions that Detective Rick is white, the 
population of Pine Richland Township is predominantly white, and that Detective Rick 
misidentified Doe as white on his police report.  None of these factual allegations support 
an inference that any of Detective Rick’s or the NRPD’s actions were motivated by a bias 
based on Doe’s race, ethnicity, and age.  Iqbal, 556 U.S. at 679 (“[W]here the well-
pleaded facts do not permit the court to infer more than the mere possibility of 
misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is 
entitled to relief.’” (quoting Fed. R. Civ. P. 8(a)(2))).   
8 
 
As a result, because Doe has failed to identify any other similarly situated 
individuals and failed to plausibly allege that Defendants were motivated to discriminate 
against her on the basis of her race, age, or ethnicity, we will affirm as to her Equal 
Protection claim. 
B. Doe’s substantive due process claim fails. 
Doe next alleges that the same actions taken by Detective Rick were an “arbitrary 
assertion of government authority,” violating her substantive due process rights under the 
Fourteenth Amendment.  App. 48a–49a. 
The Fourteenth Amendment to the United States Constitution provides that “[n]o 
state shall … deprive any person of life, liberty, or property, without due process of law.”  
U.S. CONST. amend. XIV.  “[T]o prevail on a substantive due process claim, ‘a plaintiff 
must prove the particular interest at issue is protected by the substantive due process 
clause and the government’s deprivation of that protected interest shocks the 
conscience.’”  Chambers ex rel. Chambers v. Sch. Dist. of Phila. Bd of Educ., 587 F.3d 
176, 190 (3d Cir. 2009) (quoting Chainey v. Street, 523 F.3d 200, 219 (3d Cir. 2008)); 
Nicholas v. Pa. State Univ., 227 F.3d 133, 139 (3d Cir. 2000) (quoting Woodwind 
Estates, Ltd. v. Gretkowski, 205 F.3d 118, 123 (3d Cir. 2000) (the Fourteenth 
Amendment protects against deprivations that are “arbitrary, irrational, or tainted by 
improper motive.”).  “[O]nly the most egregious official conduct can be said to be 
arbitrary in the constitutional sense.”  Chainey, 523 F.3d at 219 (internal quotation marks 
omitted). 
9 
 
Here, it is unclear what particular substantive due process interest Doe alleges was 
implicated.  The SAC merely states that “Defendants’ actions were an egregious, 
outrageous, and arbitrary assertion of government authority that shocked the conscience 
and violated Ms. Doe’s right to substantive due process.”  App. 49a.  As Doe has failed to 
allege any “particular interest” that is “protected by the substantive due process clause,” 
as is required to prevail on a substantive due process claim, see Chambers, 587 F.3d at 
190 (quoting Chainey, 523 F.3d at 219), Doe has failed to state a claim for violation of 
her substantive due process rights. 
Even if Doe had alleged a deprivation of some protected interest under the 
Fourteenth Amendment, Doe has alleged no facts that “shock[] the conscience.”  
Chambers, 587 F.3d at 190 (internal quotation marks omitted).  Detective Rick conducted 
an investigation of the alleged assault.  While his investigation may have had errors, or 
omitted parts of Doe’s allegations, the investigation was not so “egregious” that it could 
be considered “arbitrary in the constitutional sense.”  Chainey, 523 F.3d at 219 (internal 
quotation marks omitted).  We therefore conclude that the District Court did not err in 
finding that Doe failed to state a claim for a violation of her substantive due process 
rights.  See Iqbal, 556 U.S. at 679.  We will thus affirm as to Doe’s Due Process claim. 
C. Doe has failed to state a claim for the NRPD’s liability under Monell. 
Last, Doe argues that the NRPD is liable under Monell for the alleged 
constitutional violations caused by Detective Rick.  Doe has failed to include a single 
citation to Monell in her SAC, but instead, argues that her Monell claims are implied by 
virtue of the fact that she brings her federal law claims against both Detective Rick and 
10 
 
the NRPD.  Even assuming that Doe had properly pleaded a Monell claim, we will affirm 
the dismissal of that claim. 
Monell provides that “[l]ocal governing bodies … can be sued directly under 
§ 1983 for monetary, declaratory, or injunctive relief where … the action that is alleged 
to be unconstitutional implements or executes a policy statement, ordinance, regulation or 
decision officially adopted and promulgated by that body’s officers.”  Monell, 436 U.S. 
at 690.  Here, Doe’s Monell claim clearly fails.  As noted in the two preceding sections, 
Doe has failed to plausibly allege any unconstitutional action taken by Detective Rick.  
Therefore, she has also failed to plausibly allege that an NRPD policy or practice is the 
reason behind these alleged violations.  Accordingly, we will affirm here as well. 
III. CONCLUSION 
 
The facts alleged by Doe regarding the investigation of her sexual assault are 
troubling, and the record reflects the significant mental and physical toll that that the 
alleged assault has taken on Doe.  But because Doe failed to state any of the federal 
claims alleged in her SAC, the District Court did not err in dismissing those claims with 
prejudice.  Therefore, we will affirm. 


Jane Doe v. Northern Regional Police Department of Allegheny C

USDC for the Eastern District of Pennsylvani

Sekema Gentles v. Borough of Pottstown

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
7-28-2025 
Michael Miller v. County of Lancaster 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Michael Miller v. County of Lancaster" (2025). 2025 Decisions. 599. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/599 
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Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
 
CLD-163        NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 24-2934 
___________ 
 
MICHAEL MILLER, 
            Appellant 
 
v. 
 
COUNTY OF LANCASTER, Political Subdivision;  
OFFICE OF OPEN RECORDS, State Agency 
____________________________________ 
 
On Appeal from the United States District Court 
for the Middle District of Pennsylvania 
(D.C. Civil Action No. 1:24-cv-00014) 
District Judge:  Honorable Jennifer P. Wilson 
____________________________________ 
 
Submitted for Possible Summary Action, and on Appellant’s Motion to  
Summarily Reverse, Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 
June 12, 2025 
 
Before:  KRAUSE, PHIPPS, and SCIRICA, Circuit Judges 
 
(Opinion filed: July 28, 2025) 
_________ 
 
OPINION* 
_________ 
 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
 
2 
 
PER CURIAM 
 Michael Miller appeals from the District Court’s order dismissing his complaint.  
We will affirm.   
I. 
 In 2022, Miller unsuccessfully ran for Pennsylvania State Senate in a district 
within Lancaster County.  He later requested three categories of voting records from the 
County under Pennsylvania’s Right to Know Law.   
First, Miller asked to inspect and copy mail-in ballots and envelopes.  The 
County’s Office of Open Records (“OOR”) ordered it to make certain of those records 
available “subject to the provisions of the Election Code,” and the County made them 
available under conditions including that Miller could inspect the documents under 
supervision and take notes but not make copies.  Miller instead filed a petition in the 
Court of Common Pleas for Lancaster County to “enforce” the OOR’s order in which he 
sought unconditional access.  That court denied his petition, and the Commonwealth 
Court affirmed on the ground that the conditions were consistent with both the OOR’s 
order and the Election Code.  See Miller v. County of Lancaster, No. 595 C.D. 2023, 
2025 WL 1086877, at *6-8 (Pa. Commw. Ct. Apr. 11, 2025). 
Second, Miller requested digital images of the same mail-in ballots and envelopes.  
The County denied this request on the ground that the records did not exist in that format.  
 
3 
 
The OOR, the Court of Common Pleas, and the Commonwealth Court all have affirmed 
that decision.  See Miller v. County of Lancaster, No. 596 C.D. 2023, 2025 WL 1088110,  
at *1, 10 (Pa. Commw. Ct. Apr. 11, 2025). 
Finally, Miller requested the Cast Vote Records for the election.  The County 
denied his request, and the OOR denied his appeal.  Miller did not seek further review. 
While Miller’s Commonwealth Court appeals were pending, he filed pro se the 
federal action at issue here.  He named Lancaster County and the OOR as defendants, and 
he requested two forms of relief.  First, he requested a declaratory judgment that the 
decisions of the County, the OOR, and the Court of Common Pleas, as well as the 
provisions of Pennsylvania law they applied—all of which he characterized as 
“restraints” on his access to voting records—are invalid under the First and Fourteenth 
Amendments.  In that regard, he asked the court to “address” 23 questions about his state 
proceedings and Pennsylvania law.  Second, Miller also asked the court to enjoin these 
alleged “restraints,” including various provisions of Pennsylvania law that he asked the 
court to replace with its own “interim provisions for public record access.”  (ECF No. 1 at 
19 ¶ 105.)  Although Miller couched many of his requests in constitutional terms, his 
constitutional claims were wholly vague and conclusory.1 
 
1 For example, Miller asserted his First Amendment claim primarily by posing a series of 
generalized questions such as “[d]oes the County’s imposition of restraints constitute 
action by which the government might prevent free and general discussion of public 
 
4 
 
The defendants filed motions to dismiss Miller’s complaint, and a Magistrate  
Judge recommended granting them on the ground that the District Court should exercise 
its discretion under the Declaratory Judgment Act to decline to hear the suit.  The 
Magistrate Judge recommended in the alternative that the court transfer the suit to the 
Eastern District of Pennsylvania, which encompasses Lancaster County.  Miller filed 
objections, but the District Court overruled them and adopted the Magistrate Judge’s 
primary recommendation to dismiss the suit, which it did with prejudice.   
Miller responded by filing both a separate civil action in the Eastern District of 
Pennsylvania2 and this appeal.  In this appeal, our Clerk advised Miller that the Court 
would consider taking summary action, which we may do when an appeal presents no 
substantial question. See 3d Cir. L.A.R. 27.4(a) (2011).  Miller has filed several 
 
matters?” and “[m]ight the State’s actions . . . prevent free and general discussion of 
public matters?”  (ECF No. 1 at 19 ¶ 74, 21 ¶ 90.)  Miller’s due process and equal 
protection claims were similarly undeveloped.  (E.g., id. at 21 ¶ 94) (“Did the judicial 
review provided to Miller satisfy due process and equal protection requirement[s]?”).  
Miller did not allege anything permitting a meaningful declaration on these issues. 
2 See Miller v. County of Lancaster, et al., E.D. Pa. Civ. No. 5:24-cv-05338.  In that case, 
Miller asserted numerous similar claims against Lancaster County and other defendants 
and requested similar declaratory and injunctive relief as well as damages.  His 83-page 
amended complaint in that case provided more detail about his claims than he provided 
here.  In that case, the District Court dismissed most of Miller’s claims but gave him 
leave to amend some of them, which Miller still has.  Miller has appealed that ruling at 
C.A. No. 25-1423, which we are addressing separately.   
 
5 
 
responses on that issue and numerous other documents, including a brief on the merits 
and his own motion for summary action.  We have jurisdiction under 28 U.S.C. § 1291. 
II. 
 We will affirm.  The District Court had “substantial discretion” to decline Miller’s 
request for a declaratory judgment, Reifer v. Westport Ins. Corp., 751 F.3d 129, 139 (3d 
Cir. 2014) (quotation marks omitted), and we review its ruling only for abuse of that 
discretion, see id. at 140.  We review attendant legal issues de novo.  See Kelly v. 
Maxum Specialty Ins. Grp., 868 F.3d 274, 281 (3d Cir. 2017). 
We perceive no abuse of discretion or reversible error of law here.  The Magistrate 
Judge identified the general factors that a court must consider in declining a declaratory 
judgment, see Reifer, 751 F.3d at 140, and the court did not abuse its discretion in 
adopting the Magistrate Judge’s assessment of those factors.  Among other things, the 
Magistrate Judge considered Miller’s pending proceedings in state court and some 
potential impediments to resolving his federal claims in the manner he presented them 
here.  See id.  The Magistrate Judge also considered the convenience of the parties in 
determining that the Eastern District of Pennsylvania would be a more convenient forum.  
See id.  Indeed, now that Miller has substantially litigated his more specific claims in that 
forum, the court’s decision to decline a declaratory judgment in this case appears even 
more appropriate. 
 
6 
 
Miller, despite his many filings, has raised only two related challenges to the 
District Court’s ruling that we need address.3  Miller argues that his pending 
Commonwealth Court appeals were not “parallel state proceedings” for declaratory 
judgment purposes.  Kelly, 868 F.3d at 282 (quotation marks omitted).  He further argues 
that the District Court erred in reviewing the Magistrate Judge’s assessment of that issue 
only for clear error or manifest injustice because his objections were specific enough to 
trigger de novo review.  But even if we agreed with Miller on that second point, any error 
in that regard would be harmless because we review the issue de novo ourselves, see id. 
at 281, and because Miller’s underlying argument lacks merit.   
Miller argues that his Commonwealth Court appeals were not “parallel state 
proceedings” for declaratory judgment purposes because they did not include his federal 
claims.4  This argument ignores the fact that Miller himself raised his federal claims in at 
least one of those appeals.  See, e.g., Miller, 2025 WL 1086877, at *3 (noting Miller’s 
argument “that County and common pleas violated Miller’s rights under the First and 
 
3 In so concluding, we reject as meritless all of Miller’s other arguments, including that 
the Magistrate Judge and District Court committed judicial misconduct and that the court 
should have granted him a default judgment. 
4 Miller relatedly argues in his motion for summary action that the District Court was 
required to hear his federal claims pursuant to Zwickler v. Koota, 389 U.S. 241 (1967).  
But Zwickler was an abstention case in which the Court did not discuss courts’ discretion 
under the Declaratory Judgment Act or opine on whether the plaintiff was entitled to a 
declaration.  See id. at 244-45 & n.3.    
 
 
7 
 
Fourteenth Amendments to the United States Constitution”); see also id. at *4 (noting the 
County’s argument that Miller’s constitutional claims there were “vague and uncertain”).  
In any event, Miller’s claims in this case too were “vague and uncertain” and in fact were 
so conclusory that they failed to meaningfully assert any federal right that the District 
Court could have declared.5  Thus, any error in this regard was harmless as well. 
We note one final issue.  In his complaint, Miller requested both declaratory and 
injunctive relief.  The Magistrate Judge acknowledged Miller’s requests for injunctive 
relief but did not address whether they were independent of his requests for declaratory 
relief such that the court should have heard them regardless of its decision to decline a 
declaration.  See Rarick v. Federated Serv. Ins. Co., 852 F.3d 223, 229 (3d Cir. 2017).  
Miller, however, has not raised or even mentioned that issue in his many filings with this 
Court.  And even if we were to reach it, we would perceive no reversible error because 
his underlying claims were wholly vague and conclusory as explained above.  Many of 
Miller’s requests also failed as a matter of law for other reasons, including that federal 
courts cannot rewrite state statutes as he asked.  See Ayotte v. Planned Parenthood of N. 
New England, 546 U.S. 320, 329 (2006); Conchatta Inc. v. Miller, 458 F.3d 258, 263, 
265 (3d Cir. 2006). 
 
5 We again note that Miller later asserted more specific constitutional claims in his action 
in the Eastern District of Pennsylvania and that he still has leave to amend some of those 
claims.  We express no opinion on the merits of that action or any claim therein. 
 
8 
 
III. 
 For these reasons, we will affirm the judgment of the District Court.  Miller’s 
motions and requests for relief are denied. 


Michael Miller v. County of Lancaster

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
2-3-2025 
Joseph Elad v. Truist Bank 
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"Joseph Elad v. Truist Bank" (2025). 2025 Decisions. 96. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/96 
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 24-2242
__________
JOSEPH B. ELAD, Sui Juris,
Appellant
v.
TRUIST BANK; JOSHUA COLLINS, Vice President, Truist Bank; BALLARD SPAHR 
LLP; BRITTANY M. GIUSINI, Esquire, Ballard Spahr LLP; ELIZABETH A. 
SLOANE, Esquire, Ballard Spahr LLP; JANET Z. CHARLTON, Esquire, McGabe, 
Weisberg & Conway, P.C.; MCCABE, WEISBERG AND CONWAY, P.C.; LISA G. 
FONTELLO, Prothonotary of the Delaware Superior Court; JUDGE ERIC M. DAVIS, of 
the Delaware Superior Court; VIVIAN L. MEDINILLA, of the Delaware Superior Court; 
JUDGE DANIELLE J. BRENNAN, of the Delaware Superior Court; SCOTT T. 
PHILLIPS, Sheriff, New Castle County Sheriff's Office; JESSICA HEPBURN, Esquire, 
Ballard Spahr LLP; COLLEEN REDMOND, Prothonotary of the Delaware Superior 
Court; RON FIORVANATI, Chief Deputy Sheriff; SR. MICHAEL E. KOZIKOWSKI, 
Recorder of Deeds; JUSTICE GARY F. TRAYNOR, Supreme Court of the State of 
Delaware
____________________________________
On Appeal from the United States District Court
for the District of Delaware
(D.C. Civil Action No. 1:23-cv-01360)
District Judge:  Honorable Gregory B. Williams
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 29, 2025
Before: SHWARTZ, MONTGOMERY-REEVES, and SCIRICA, Circuit Judges
(Opinion filed February 3, 2025)
2
___________
OPINION*
___________
PER CURIAM
Joseph Elad appeals the District Court’s order dismissing his complaint and 
denying various outstanding motions.  We will affirm the District Court’s judgment.
I.
This case arises from foreclosure and ejectment proceedings against Elad in 
Delaware state court.1 Elad sued several defendants in the District Court for alleged 
conduct during the proceedings that led to him being evicted from his property.  He 
brought claims against Truist Bank and its vice president, the law firms and attorneys that 
represented Truist Bank and its predecessor entity in the proceedings, Delaware judges 
and judicial employees, the New Castle County recorder of deeds, and the New Castle 
County Sheriff and Chief Deputy Sheriff.  Elad sought monetary damages and injunctive 
relief.  
Elad asserted that his claims arose under 1) the U.S. Constitution; 2) various 
federal criminal statutes; 3) the Hobbs Act; and 4) the Administrative Procedure Act. 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1 See, e.g., In re Elad, 312 A.3d 735 (Del. 2024); Truist Bank v. Elad, No. N23C-02-243,
2023 WL 8543413 (Del. Super. Ct. Dec. 11, 2023); Truist Bank v. Elad, No. N23C-02-
243, 2023 WL 8582664 (Del. Super. Ct. Dec. 11, 2023); Truist Bank v. Elad, No. N23C-
02-243, 2023 WL 7276648 (Del. Super. Ct. Nov. 3, 2023); Truist Bank v. Elad, No.
N23C-02-243, 2023 WL 7280155 (Del. Super. Ct. Nov. 3, 2023); Branch Banking & Tr.
Co. v. Elad, No. N17L-06-100, 2022 WL 3442214 (Del. Super. Ct. Aug. 17, 2022).
 
3 
 
He claimed that during the state court proceedings, he 1) was never served, 2) that 
he was denied due process, equal protection, and a jury trial, 3) that the foreclosure and 
sale of his property were illegal, and 4) that the state court judges involved in the 
proceedings committed criminal and unconstitutional acts, failed to respond to his filings, 
and issued orders without authority.  Elad averred that he mailed copies of the summons 
and complaint to each defendant, and that he requested return receipts.     
Several defendants filed motions to dismiss under Federal Rules of Civil 
Procedure 12(b)(1), (5), and (6), and some defendants answered the complaint.  
Meanwhile, Elad filed several motions, including requests to enter default judgment 
against the defendants for failing to answer the complaint timely, and a “Writ of Habeas 
Corpus” signed by another individual, Andrew Pritchard.  Dist. Ct. Dkt. Nos. 19, 22, 26, 
28, 31, 32, 52, 55, 57, 59, 61. 
The District Court construed the action as having been brought under 42 U.S.C. 
§ 1983.  It granted the dismissal motions and sua sponte dismissed the remaining 
defendants.  First, it concluded that the judicial officers were entitled to judicial 
immunity, and that the judicial employees were entitled to quasi-judicial immunity 
because they acted “in accordance with their duties or at the direction of a judicial 
officer.”  Dist. Ct. Dkt. No. 62 at 5.  It also concluded that the County Sheriffs and the 
Recorder of Deeds were entitled to quasi-judicial immunity.  The Court dismissed the 
claims against the remaining defendants after concluding that Elad failed to allege that 
they acted under the color of state law, that Elad could not invoke criminal statutes in the 
civil suit, and that “the Administrative Procedure Act and Hobbs Act [were] wholly 
 
4 
 
inapplicable to the facts alleged.”  Dist. Ct. Dkt. No. 62 at 7.  The Court also found that 
further amendment would be futile.  Finally, the Court denied Elad’s pending motions.   
Elad appealed.    
II. 
We have jurisdiction under 28 U.S.C. § 1291.  We review the dismissal of the 
complaint de novo, and we may affirm the District Court for any reason supported by the 
record.  See Krieger v. Bank of Am., N.A., 890 F.3d 429, 437 (3d Cir. 2018); Laurel 
Gardens, LLC v. Mckenna, 948 F.3d 105, 116 (3d Cir. 2020).  We accept the facts 
alleged in the complaint as true and determine whether the complaint, viewed in the light 
most favorable to Elad, states enough facts to support a plausible claim for relief.  See 
Krieger, 890 F.3d at 437.  Legal conclusions and “recitals of the elements of a cause of 
action” that are “supported by mere conclusory statements” are not sufficient to survive 
dismissal.  Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 
We review the denial of entry of default judgment for abuse of discretion.   
Chamberlain v. Giampapa, 210 F.3d 154, 164 (3d Cir. 2000).  The court considers “(1) 
prejudice to the plaintiff if default is denied, (2) whether the defendant appears to have a 
litigable defense, and (3) whether [the] defendant's delay is due to culpable conduct.”  Id. 
III. 
First, Elad argues that the Court erred by construing his complaint as brought 
under 42 U.S.C. § 1983 instead of the Administrative Procedure Act.  But Elad alleged 
no facts supporting a claim under the Administrative Procedure Act, as he did not 
 
5 
 
challenge a federal agency’s decision.2  Rather, he asserted that Delaware judicial 
employees, New Castle County employees, and private individuals deprived him of his 
constitutional rights.  Thus, the Court properly construed the complaint as bringing 
§ 1983 claims.  See Castro v. United States, 540 U.S. 375, 381-82 (2003); see also Lewis 
v. Att’y Gen., 878 F.2d 714, 722 n.20 (3d Cir. 1989) (explaining that we judge a pleading 
on its substance, rather than its form or label). 
Elad also challenges the District Court’s dismissal of his claims against the 
judicial employees and county officials based on immunity.  He claims that judicial 
immunity did not apply because he sued these defendants in their individual capacities, 
not their official capacities.  Elad is mistaken.  Judicial and quasi-judicial immunity apply 
to § 1983 claims against officials sued in their individual capacities.  See, e.g., 
Capogrosso v. Sup. Ct. of N.J., 588 F.3d 180, 184-85 (3d Cir. 2009).   
As for the remaining defendants, Elad failed to plead that they acted under color of 
state law to state a claim under § 1983.  See West v. Atkins, 487 U.S. 42, 48 (1988).    
And Elad does not meaningfully dispute the District Court’s ruling that he could not 
enforce criminal statutes in his civil suit against any of the defendants.  See United States 
v. Albertson, 645 F.3d 191, 195 (3d Cir. 2011).   
Next, Elad maintains that the District Court’s dismissal of his “Writ of Habeas 
Corpus” was error.  Dt. App. Dkt. No. 14 at 14.  Elad did not sign the petition; rather, it 
 
2 Under the Administrative Procedure Act, an aggrieved party may seek judicial review 
of a final agency action.  See 5 U.S.C. §§ 702, 704.  An “agency” is an “authority of the 
Government of the United States.”  Id. § 701(b).  
 
6 
 
was signed by and submitted on behalf of an individual who was not a party to the case.  
See Fed. R. Civ. P. (11)(a).  Additionally, the “Writ of Habeas Corpus” raised the same 
errors as the complaint.  Dist. Ct. Dkt. No. 55; see also Dist. Ct. Dkt. No. 14.  We discern 
no error.  Nor did the District Court err by denying Elad’s motion “for Judicial Notice of 
Adjudicative Fact,” in which he asked the Court to confirm or deny the language of a 
judge’s oath.  Dist. Ct. Dkt. No. 61. 
Finally, Elad argues that the District Court erred by denying his requests for entry 
of default judgment.  We discern no abuse of discretion, as the defendants averred that 
Elad did not serve them properly, and they presented litigable arguments that the 
complaint failed to state a claim for relief.  Cf. Chamberlain, 210 F.3d at 164 (affirming 
the denial of a default judgment motion because the plaintiff was not prejudiced, the 
defendant alleged a litigable defense to the complaint counts, and there was no evidence 
suggesting that the defendant’s delay was willful or in bad faith).  
Accordingly, we will affirm the District Court’s judgment.  Elad’s motions for 
default judgment are denied.  To the extent that Elad seeks other relief on appeal, it is 
denied.  Appellees’ January 2, 2025 motion to file a supplemental appendix is granted. 


English

Joseph Elad v. Truist Bank

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
2-3-2025 
Derrick Chapman v. Warden Schuylkill FCI 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Derrick Chapman v. Warden Schuylkill FCI" (2025). 2025 Decisions. 97. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/97 
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inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law 
Digital Repository. For more information, please contact reference@law.villanova.edu. 
NOT PRECEDENTIAL 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
No. 24-1944 
__________ 
DERRICK DEANDRE CHAPMAN, 
Appellant 
v. 
WARDEN SCHUYLKILL FCI 
____________________________________ 
On Appeal from the United States District Court 
for the Middle District of Pennsylvania 
(D.C. Civil Action No. 4:23-cv-01246) 
District Judge: Honorable Matthew W. Brann 
____________________________________ 
Submitted Pursuant to Third Circuit LAR 34.1(a) 
January 13, 2025 
Before:  KRAUSE, PHIPPS, and ROTH, Circuit Judges 
(Opinion filed February 3, 2025) 
___________ 
OPINION* 
___________ 
PER CURIAM 
Federal prisoner Derrick DeAndre Chapman appeals pro se from an order of the 
United States District Court for the Middle District of Pennsylvania denying his petition 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
2 
for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. For the reasons that follow, 
we will affirm. 
I 
 As the District Court noted, Chapman’s underlying criminal history is not in 
dispute. Most relevant to this appeal, in December 2014, Chapman received a 16-year 
sentence in state court, along with a concurrent seven-year term for violating the terms of 
his probation on a previous state court conviction. He subsequently was sentenced in 
March 2015 by the United States District Court for the District of Maryland to 179-
months’ imprisonment for carjacking. The District Court ordered this sentence to run 
concurrently with his state sentence.  
 In 2021, Chapman was released from state custody on parole and entered federal 
custody to serve his federal sentence. In 2023, Chapman filed the habeas petition at issue 
in this appeal. He claimed that the Federal Bureau of Prisons (BOP) improperly 
calculated his sentence by failing to apply the entire time he spent in presentence state 
custody to his federal sentence. In doing so, he relied on Willis v. United States, 438 F.2d 
923 (5th Cir. 1971) (per curiam), and Kayfez v. Gasele, 993 F.2d 1288 (7th Cir. 1993).1 
Chapman appealed the denial of his federal habeas petition.   
 
1 The District Court analyzed other issues associated with the calculation of Chapman’s 
federal sentence such as when Chapman was relinquished to federal authorities and the 
federal sentencing guidelines. Chapman expressly states in his appellate brief that he is 
not contesting those issues and is relying only on Willis and Kayfez in this appeal. Thus, 
this appeal is strictly limited to the issues raised by Chapman on appeal.  
 
3 
II 
 We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. In reviewing a 
District Court’s denial of a § 2241 habeas corpus petition we exercise plenary review 
over the District Court’s legal conclusions and review findings of fact for clear error 
only. See O’Donald v. Johns, 402 F.3d 172, 173 n.1 (3d Cir. 2005) (per curiam).  
III 
 Under 18 U.S.C. § 3585(b), a federal prisoner generally cannot receive credit 
against his sentence for presentence detention if that time has been credited against 
another sentence. However, Willis and Kayfez provide limited exceptions to that rule. 
Willis provides for presentence credit where: (1) the state and federal sentences are 
concurrent; and (2) the raw state effective full term (EFT) is equal to or shorter than the 
raw federal EFT. See 438 F.2d at 925. Kayfez applies where: (1) the state and federal 
sentences are concurrent; (2) the state EFT is greater than the federal EFT; and (3) the 
state EFT, after application of qualified presentence time, is reduced to a date that is 
earlier than the federal EFT. See 993 F.2d at 1290. The BOP incorporated Kayfez and 
Willis nationwide in Program Statement 5880.28 and applied that in this case.2  
We agree with the District Court’s analysis and calculations. Pursuant to 18 U.S.C. 
§ 3585(a), Chapman’s federal sentence of 179-months commenced on March 24, 2015. 
 
2 Neither party challenges the applicability of the BOP program statement. Rather, 
Chapman appears to challenge how the BOP is applying the program statement and, more 
particularly, how Willis and Kayfez apply to his particular case. 
4 
His 16-year state sentence commenced on December 16, 2014. Thus, his state EFT was 
longer than his federal sentence. Willis therefore did not apply. 
 The District Court correctly applied Kayfez in this case. First, the District Court 
properly determined the raw EFT for both Chapman’s state and federal sentences – 
December 15, 2030, and February 23, 2030, respectively. Then, because Chapman’s raw 
EFT state sentence was greater than his raw EFT federal sentence, Kayfez and the BOP’s 
Program Statement required that Chapman’s undisputed qualified presentence credit of 
502 days be applied to his raw state EFT. This then created an adjusted state sentence 
EFT of July 31, 2029. However, this then also created a situation where the adjusted state 
sentence EFT (July 31, 2029) was earlier than the raw EFT federal term (February 23, 
2030) – a gap of 207 days. As aptly noted by the District Court, that precise period of 
time is what the BOP then applied to Chapman’s federal sentence to conform with 
Kayfez and the BOP’s Program Statement. Chapman has shown no error in these 
computations.  
Chapman argues that he is not getting the benefit envisioned by Kayfez. He is 
mistaken. His state EFT was reduced to account fully for the qualified presentence time. 
Moreover, his federal sentence was reduced by the BOP to the same date. That is a real 
benefit—and the one due him under Kayfez. See 993 F.2d at 1290 (reading the relevant 
statute to avoid a situation where the prisoner would have qualified presentence time 
reduced only from a state sentence, leaving a period of time in which the remaining 
federal sentence would have to be served alone). But no more was due Chapman. 
5 
For these reasons, we will affirm the District Court’s denial of Chapman’s habeas 
petition. 


Derrick Chapman v. Warden Schuylkill FCI

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
2-4-2025 
USA v. Francis Garzon 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"USA v. Francis Garzon" (2025). 2025 Decisions. 102. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/102 
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Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
 
 
NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
 
   
  
No. 24-1266 
   
 
UNITED STATES OF AMERICA, 
                        
v. 
 
FRANCIS ANTHONY GARZON, 
 
      Appellant 
         
 
Appeal from the United States District Court 
for the District of New Jersey 
 (District Court No. 3:21-cr-00896-001) 
District Judge: Honorable Zahid N. Quraishi 
       
Submitted under Third Circuit L.A.R. 34.1(a) 
January 22, 2025 
 
Before: HARDIMAN, McKEE, and AMBRO, Circuit Judges 
 
(Opinion filed  February 4, 2025) 
 
   
 
OPINION* 
   
 
 
 
 
 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
 
2 
 
AMBRO, Circuit Judge 
Defendant Francis Garzon thought he had been robbed. So he and his associates 
set out on a multistate vigilante mission to find the offender and reclaim Garzon’s 
property, threatening people at gunpoint and intimidating witnesses. After Garzon 
pleaded guilty, the District Court sentenced him to 121 months in prison. He now appeals 
four rulings underpinning that sentence. Finding no error, we affirm.  
I. Background 
 In September 2019, a suitcase was taken from Garzon’s Brooklyn apartment while 
he was away on vacation. His building’s security footage captured a man leaving with the 
suitcase, which Garzon says contained $100,000 worth of cash and valuables.  
Garzon filed no police report. Instead, he took matters into his own hands. During 
his vacation, he had left an apartment key with an acquaintance, Adem Ayoub, and 
Garzon assumed Ayoub was involved with the theft. After investigating more, Garzon 
came to believe a man named Craig Pius was also involved and, in fact, was the man seen 
on the video carrying the suitcase. Garzon researched Pius and learned his address, the 
names of his wife and daughter, and the names and address of his parents. 
In December 2019, Garzon, an associate named Endrit Kllogjeri, and another man 
accosted Pius’s parents on the doorstep of their New Jersey home. The men insisted Pius, 
the couple’s adult son, had stolen the suitcase from Garzon’s apartment, and they 
demanded the valuables back with an additional $100,000 cash. Garzon made Pius’s 
father call his son. When he did so, Garzon snatched the phone from him to speak to Pius, 
threatening him and his daughter. Next, Garzon pointed a gun—he disputes whether it 
 
3 
 
was a real one, a matter of legal significance—at the father’s head and cocked it. Before 
anything else happened, Kllogjeri grabbed Garzon’s arm and lowered it, saying, “No. Not 
now.”, but told Pius’s father his life was “on the line.” App. 203. Garzon and the 
associates left, yet the extortive conduct continued for another week. During that time, for 
example, Garzon called Pius’s family and threatened them, and he sent Pius’s father 
videos of the family that had been recorded in secret. Eventually, police found and 
arrested Garzon and Kllogjeri.  
In custody, Garzon admitted he went to Pius’s parents’ house to intimidate Pius 
into giving back the valuables. Though he admitted to pointing a gun at Pius’s father’s 
head to intimidate him, he claimed it was only a BB gun. Garzon said he tossed it away 
after leaving the house; it has never been recovered. Once charged by complaint, Garzon 
was released on bond. While out on bond, he found Ayoub, the acquaintance who had the 
keys to Garzon’s apartment during his vacation, and threatened to kill him.  
Garzon was then charged by a two-count indictment for Hobbs Act extortion. He 
pleaded guilty the week before trial. Meanwhile, Kllogjeri was convicted after his own 
trial. In those proceedings, Pius’s parents testified that the gun on the porch was a real 
firearm, and Kllogjeri, despite standing to benefit, never alleged that the gun was not real.  
Garzon’s sentencing was the subject of substantial briefing and a thorough 
hearing. The District Court determined Garzon’s offenses fell within a United States 
Sentencing Guidelines range of 121–151 months and, in January 2024, imposed a 
sentence at the bottom: 121 months. Garzon timely appealed. 
 
4 
 
Before us, Garzon challenges four of the District Court’s rulings concerning his 
Guidelines range and the underlying enhancements: (1) that he possessed a firearm; 
(2) that he “otherwise used” that firearm and did not merely “brandish” it; (3) that he 
obstructed justice when he threatened Ayoub; and (4) that because of his obstruction, he 
forfeited any sentence reduction for acceptance of responsibility.1  
II. Discussion2 
The government must prove the application of a sentencing enhancement by a 
preponderance of the evidence. United States v. Chandler, 104 F.4th 445, 449 (3d Cir. 
2024). On appeal, we review for clear error a district court’s factual findings and 
application of the Guidelines to the facts. United States v. Rodriguez, 40 F.4th 117, 120–
21 (3d Cir. 2022). “We find clear error if, when reviewing the entire record, we are left 
with the definite and firm conviction that a mistake has been committed.” United States v. 
Caraballo, 88 F.4th 239, 244 (3d Cir. 2023) (internal quotations omitted). 
A. The District Court did not clearly err in finding that Garzon used a 
firearm. 
 
Section 2B3.2(b)(3)(A) of the Guidelines provides sentencing enhancements when 
a weapon is used to harm or threaten others during the commission of an extortive crime. 
 
1 Garzon also obliquely challenges the substantive reasonableness of his 121-month 
sentence, but he makes no argument on this point beyond his four challenges to the 
District Court’s application of the Guidelines. “Such a passing reference does not 
preserve the issue for appeal.” United States v. James, 955 F.3d 336, 345 n.8 (3d Cir. 
2020).  
2 The District Court had jurisdiction over Garzon’s federal offenses under 18 U.S.C. 
§ 3231. We have jurisdiction over his challenge to his sentence under 28 U.S.C. § 1291 
and 18 U.S.C. § 3742(a). 
 
 
5 
 
When that weapon is a generic “dangerous weapon,” enhancements of 3 and 4 levels may 
apply. U.S.S.G. § 2B3.2(b)(3)(A)(iv), (v); see § 1B1.1 cmt. n.1(E) (defining “[d]angerous 
weapon”). But when the weapon is a “firearm,” those enhancements jump to 5, 6, and 7 
levels. § 2B3.2(b)(3)(A)(i), (ii), (iii); see § 1B.1 cmt. n.1(H) (defining “[f]irearm”).  
Throughout sentencing, relying on his statement to police that he possessed only a 
BB gun, Garzon argued for the lower “dangerous weapon” enhancement. Instead, the 
District Court applied a 6-level enhancement, finding Garzon had a firearm.3 Garzon 
renews that argument before us, believing the District Court based its application on 
insufficient evidence.  
The District Court relied on two kinds of evidence. First, Pius’s parents, who came 
face-to-face with the gun, testified that it appeared to be a real gun, and the Court found 
that testimony credible. Garzon resists, noting that the parents are not firearms experts, 
but we have previously held that the “credible” testimony of laypersons held at gunpoint 
can prove a gun was real. E.g., United States v. Lake, 150 F.3d 269, 271 (3d Cir. 1998); 
United States v. Beverly, 99 F.3d 570, 572 (3d Cir. 1996); see also United States v. Smith, 
786 F. App’x 790, 793 (10th Cir. 2019) (unpublished) (“[When] the burden of proof is a 
preponderance of evidence, one need not be a firearms expert to reliably state that a gun 
was pointed at one’s face.”) Second, Garzon’s associate Kllogjeri, who could have 
benefited by testifying at his own trial that it was not a real gun, did not do so. By 
contrast, the only affirmative evidence supporting Garzon is his self-serving testimony.  
 
3 The precise level of enhancement was informed by the Court’s finding that Garzon 
“otherwise used” the firearm, discussed in Part II.B below.  
 
6 
 
Reviewing the record, we cannot say there was clear error in the District Court’s 
determination that the preponderance of the evidence supported the gun’s authenticity—
that is, that the gun was more likely than not a “firearm” as defined by the Guidelines. 
See U.S.S.G § 1B.1 cmt. n.1(H); Chandler, 104 F.4th at 449 (enhancements are proved 
by preponderance of evidence). 
B. The District Court did not err by finding Garzon did not merely brandish 
the firearm but further “otherwise used” it.4  
 
Under the Guidelines, “[b]randish[ing]” a weapon “means that all or part of the 
weapon was displayed, or the presence of the weapon was otherwise made known . . . in 
order to intimidate [a] person, regardless of whether the weapon was directly visible to 
that person.” § 1B1.1 cmt. n.1(C). “Otherwise used” means “the conduct did not amount 
to the discharge of a firearm but was more than brandishing, displaying, or possessing a 
firearm or other dangerous weapon.” § 1B1.1 cmt. n.1(J) (emphasis added). So while 
brandishing merely requires making the “presence” of the gun known to threaten, we and 
our sister circuits have held that the pointing of a firearm in the midst of threatening 
action rises to the level of “otherwise used.” E.g., United States v. Orr, 312 F.3d 141, 145 
(3d Cir. 2002) (rejecting the requirement of any “verbalized threat to harm the victim” 
and affirming application of enhancement when defendant “point[ed] a gun at the head of 
[a bank’s] assistant manager and order[ed] her to empty money into a garbage bag”); 
 
4 The Government argues that Garzon waived this argument when he agreed at 
sentencing that if the District Court found he pointed the gun at Pius’s father’s head, he 
indeed “otherwise used” the gun. Answering Br. 16–17. We need not decide whether the 
Government is right, as we affirm on review for clear error.  
 
7 
 
United States v. Dunigan, 555 F.3d 501, 506 (5th Cir. 2009) (“By pointing the gun at [the 
victim’s] face, as opposed to merely displaying it for intimidation purposes, [defendant] 
‘otherwise used’ the gun rather than ‘brandished’ it.”).  
In his brief to us, Garzon argues that “otherwise used” requires more than just 
pointing the gun. Opening Br. 15–21. For the reasons just articulated, we agree. Garzon 
pointed the gun at Pius’s father’s head, cocked it, and demanded he make Pius return the 
valuables, so the District Court correctly applied the enhancement here.  
C. The District Court correctly applied the obstruction-of-justice 
enhancement for Garzon’s threat to “kill” Ayoub. 
 
Section 3C1.1 of the Guidelines provides a 2-level enhancement when the 
defendant “willfully obstructed or impeded, or attempted to obstruct or impede, the 
administration of justice with respect to the . . . prosecution” and the conduct “related 
to . . . the defendant’s offense of conviction.” This includes threatening witnesses. See 
§ 3C1.1 cmt. n.4(A). 
At sentencing, the District Court heard testimony from Ayoub about Garzon’s 
threats and viewed videos of the incident, including one Ayoub took on his cell phone. 
The District Court found Ayoub credible, determined his testimony tracked the videos, 
and applied the enhancement.  
Before us, Garzon challenges minor factual inconsistencies in Ayoub’s testimony 
and the District Court’s credibility determination. Only in “rare circumstances” will we 
hold a district court’s credibility determination to be clearly erroneous, but we do not find 
those circumstances here. Dardovitch v. Haltzman, 190 F.3d 125, 140 (3d Cir. 1999). 
 
8 
 
“[T]he record, as well as common sense, amply supports the District Court’s conclusion 
as to the weight to be accorded to” Ayoub’s testimony. Id. Further, the “insignificant 
testimonial inconsistencies” Garzon identifies are not sufficient grounds to “reject[] a 
positive credibility finding under a clear error standard.” Alimbaev v. Att’y Gen., 872 F.3d 
188, 198 (3d Cir. 2017) (internal quotation marks omitted).  
Because the District Court did not err in crediting Ayoub’s testimony about 
Garzon’s threats, it did not clearly err in its application of the enhancement for 
obstruction of justice based on that testimony.  
D. The District Court did not err by denying an acceptance-of-responsibility 
reduction in Garzon’s offense level. 
 
Under U.S.S.G. § 3E1.1(a), a defendant can receive a two-level decrease in 
offense level for accepting responsibility—often by pleading guilty, as Garzon did. But 
sensibly, that Guideline also provides that application of an obstruction-of-justice 
enhancement, see Part II.C above, bars the reduction for accepting responsibility except 
in “extraordinary” circumstances. § 3E1.1 cmt. n.4.  
Garzon argues that the District Court erred by deciding in rote manner that the 
obstruction-of-justice enhancement per se defeated the acceptance-of-responsibility 
credit—that is, without evaluating whether his was an extraordinary circumstance. He is 
wrong. The transcript shows the District Court made such a finding, so we affirm. See 
App. 143 (“With respect to the acceptance of responsibility enhancement, I find that it no 
longer applies. I’m taking away Mr. Garzon’s points. He threatened a witness. That is 
 
9 
 
absolutely unacceptable. It meets the obstruction of justice enhancement. There’s nothing 
extraordinary about this case.”).5  
*  *  * 
 We perceive no clear error in the District Court’s findings that Garzon “otherwise 
use[d]” a “firearm,” obstructed justice, and did not present extraordinary circumstances 
that would preserve a Guidelines reduction for acceptance of responsibility. Accordingly, 
we affirm his sentence.  
 
5 Were this not enough, we observe, without deciding, that Garzon may have waived this 
issue when his counsel admitted he had no argument for why this might be an 
extraordinary circumstance. See App. 138 (Defense counsel, to the Court: “[Garzon]’s 
not going to get [the] acceptance of responsibility reduction based on your finding of the 
obstruction. I do not have arguments for extraordinary [circumstances].”). See United 
States v. Davis, 105 F.4th 541, 547 (3d Cir. 2024) (discussing waiver in the context of 
sentencing hearings).   
 


USA v. Francis Garzon

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
2-4-2025 
USA v. Ramoine White 
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NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
_______________ 
 
No. 23-3013 
_______________ 
 
 
UNITED STATES OF AMERICA 
 
v. 
 
RAMOINE WHITE,  
a/k/a Rhumone White, 
   Appellant 
 
_______________ 
 
On Appeal from the United States District Court 
for the Eastern District of Pennsylvania 
(D.C. No. 2:21-cr-00353-001) 
District Judge: Honorable Paul S. Diamond  
_______________ 
 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 
January 28, 2025 
 
Before: SHWARTZ, KRAUSE, and PORTER, Circuit Judges 
 
(Filed: February 4, 2025) 
 
_______________ 
 
OPINION* 
_______________  
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
2 
 
KRAUSE, Circuit Judge. 
Appellant Ramoine White was convicted of possessing a firearm as a felon, in 
violation of 18 U.S.C. § 922(g)(1).  On appeal, he argues that the District Court erred in 
denying his motion to suppress certain evidence and that § 922(g)(1) is unconstitutional 
as applied to him.  Discerning no error, we will affirm.  
I. BACKGROUND 
On an evening in February 2021, police surveilled several men congregated on the 
porch of a home in West Philadelphia.  There, officers observed three suspicious 
exchanges, each occurring the same way:  A customer would approach the porch and 
hand over money, and one of the men would enclose something in the customer’s hand.  
Police later stopped each of these customers and recovered marijuana from them.  
Officers also witnessed one of the men passing an item to another on the porch as they all 
huddled together, but because they were all similarly dressed in dark clothing, police 
could not identify the recipient of the item.  Police then approached the porch and, as 
relevant here, one officer patted down White and found a loaded handgun in his 
waistband.  Because White had prior felony convictions, his possession of a firearm 
violated 18 U.S.C. § 922(g)(1), for which a jury later convicted him.  This appeal 
followed. 
3 
 
II. DISCUSSION1 
White raises two arguments on appeal: (1) that the District Court erred by denying 
his motion to suppress evidence recovered during a Terry stop; and (2) that § 922(g)(1) is 
unconstitutional under the Second Amendment as applied to him.  Neither is persuasive. 
First, the Fourth Amendment permits an officer to “conduct a brief, investigatory 
stop when the officer has a reasonable, articulable suspicion that criminal activity is 
afoot.”  United States v. Robertson, 305 F.3d 164, 167 (3d Cir. 2002) (quoting Illinois v. 
Wardlow, 528 U.S. 119, 123 (2000)).  As part of that stop, the officer may conduct a 
safety frisk when there are “reasonable grounds to believe that [a suspect] [i]s armed and 
dangerous.”  Terry v. Ohio, 392 U.S. 1, 30 (1968).   
Here, officers had reasonable suspicion to conduct the challenged stop and frisk.  
Among the reasonable grounds to believe that White was involved in criminal activity 
and armed and dangerous are the facts that: (1) White was present at a “suspected 
narcotics location,” United States v. Hawkins, 811 F.2d 210, 213 (3d Cir. 1987); (2) the 
man who interacted with customers made “hand movements consistent with drug-dealing 
activity,” United States v. Paulette, 457 F.3d 601, 606 (6th Cir. 2006); (3) the customers 
exchanged cash during the transactions, see United States v. Johnson, 627 F.3d 578, 584 
(6th Cir. 2010) (discussing officers’ observation of cash being exchanged for a 
 
1 The District Court had jurisdiction under 18 U.S.C. § 3231.  We have jurisdiction under 
28 U.S.C. § 1291.  When reviewing the denial of a motion to suppress evidence, we 
review the District Court’s factual findings for clear error and its legal conclusions de 
novo.  See United States v. Lowe, 791 F.3d 424, 427 (3d Cir. 2015).  We review the 
constitutionality of a federal statute de novo.  See Free Speech Coal., Inc. v. Att’y Gen., 
974 F.3d 408, 419 (3d Cir. 2020).  
4 
 
substance); (4) the exchanges occurred in a “high-crime area” with “a history of reported 
drug sales and several recent shootings,” App. 88; see United States v. Jackson, 120 F.4th 
1210, 1222 (3d Cir. 2024); and (5) the men huddled together on the porch and passed 
items between one another after the exchanges, see United States v. Lender, 985 F.2d 
151, 154 (4th Cir. 1993) (holding officers had reasonable suspicion where “a group of 
men was gathered around [the defendant] looking down into his open palm” on a street 
corner at night).   
On the totality of those circumstances, the officers had reasonable suspicion to 
stop White and pat him down for weapons, see Terry, 392 U.S. at 27; Paulette, 457 F.3d 
at 606 (noting that officers may search suspected drug dealers for their own protection 
given “the frequency with which drug dealers arm themselves”), and the District Court 
did not err by denying his motion to suppress the one they recovered.   
Second, White’s Second Amendment challenge to § 922(g)(1) fails because his 
prior felony convictions for drug distribution, aggravated assault, and carrying a firearm 
without a license demonstrate he “present[s] a special danger of misus[ing firearms],” 
United States v. Rahimi, 602 U.S. 680, 698 (2024), and would likely pose an increased 
risk of “physical danger to others” if armed, Range v. Attorney General, 124 F.4th 218, 
232 (3d Cir. 2024) (en banc).  As our recent en banc decision in Range explained, a court 
deciding whether an individual poses an increased risk of “physical danger to others,” id. 
at 232, may consider not just the nature of the underlying offense, but also the felon’s 
entire criminal history, see id. at 222–23.   
5 
 
Here, White’s criminal history, including his prior felony convictions for 
possession with intent to distribute controlled substances, aggravated assault, and 
carrying an unlicensed firearm, shows that he would pose such a danger to others if 
armed because those activities could lead to violent confrontation.  See United States v. 
Williams, 113 F.4th 637, 659 (6th Cir. 2024) (observing that legislatures may disarm 
those convicted of crimes like drug dealing because, while “[t]hese crimes do not always 
involve an immediate and direct threat of violence,” they “may nonetheless pose a 
significant threat of danger,” warranting disarmament).  Accordingly, § 922(g)(1) is 
constitutional as applied to him, and the District Court did not err by denying White’s 
motion to dismiss the indictment.  
III. CONCLUSION 
For the foregoing reasons, we will affirm. 


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