Villanova University School of Law: Digital Repository

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
4-10-2025 
Charles Bennett v. Bayer Corporation 
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Recommended Citation 
"Charles Bennett v. Bayer Corporation" (2025). 2025 Decisions. 281. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/281 
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NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
____________ 
 
No. 24-1807 
____________ 
 
CHARLES BENNETT,  
Ex Rel, 
Appellant 
 
v. 
 
BAYER CORPORATION, An Indiana Corporation; 
JOHNSON & JOHNSON, a New Jersey Corporation; 
MERCK & CO., INC., a New Jersey Corporation*; 
JOHNSON & JOHNSON PHARMACEUTICAL RESEARCH & DEVELOPMENT, 
L.L.C.; ORTHO-MCNEIL-JANSSEN PHARMACEUTICALS 
 
(*Dismissed pursuant to Clerk’s Order dated 06/21/2024) 
____________ 
 
On Appeal from the United States District Court 
for the District of New Jersey 
(District Court No. 2:17-cv-04188) 
District Judge:  Honorable James B. Clark, III 
 
  Argued January 17, 2025 
____________ 
 
Before:  PHIPPS, FREEMAN, and CHUNG, Circuit Judges 
 
(Filed:  April 10, 2025) 
 
Andrew Grosso [ARGUED] 
Andrew Grosso & Associates 
1250 Connecticut Avenue NW 
Suite 700 
Washington, DC 20036 
 
Robert A. Magnanini 
 
2 
Stone & Magnanini 
400 Connell Drive 
Suite 6200 
Berkeley Heights, NJ 07922 
 
Counsel for Appellant 
 
Paul J. Fishman 
Arnold & Porter Kaye Scholer 
One Gateway Center 
Suite 1025 
Newark, NJ 07102 
 
Allon Kedem [ARGUED] 
Christian D. Sheehan 
Arnold & Porter Kaye Scholer 
601 Massachusetts Avenue NW 
Suite 1121 
Washington, DC 20001 
 
Michael A. Rogoff 
Debra E. Schreck 
Arnold & Porter Kaye Scholer 
250 W 55th Street 
New York, NY 10019 
 
Counsel for Bayer Corp. 
 
Kendall T. Burchard 
Mark W. Mosier [ARGUED] 
Eli Nachmany 
Krysten Rosen Moller 
Covington & Burling 
850 10th Street NW 
One City Center 
Washington, DC 20001 
 
Counsel for Johnson & Johnson 
 
Douglas Hallward-Driemeier 
Ropes & Gray 
2099 Pennsylvania Avenue NW 
Washington, DC 20006 
 
3 
 
Counsel for Amicus Pharmaceutical Research and Manufacturers of America 
 
Charles W. Scarborough 
Caroline W. Tan [ARGUED] 
United States Department of Justice 
Appellate Section 
950 Pennsylvania Avenue NW 
Washington, DC 20530 
 
Counsel for Amicus United States of America 
____________ 
OPINION1 
____________ 
CHUNG, Circuit Judge. 
Relator Dr. Charles Bennett filed this qui tam action under the False Claims Act 
(“FCA”) against pharmaceutical companies Bayer, Johnson & Johnson, and others.  
Bennett asserts that the defendants fraudulently induced the Food and Drug 
Administration (“FDA”) to approve certain antibiotic drugs, and thus are liable under the 
FCA for the ensuing prescription costs paid by federal healthcare programs.  Defendants 
moved to dismiss for failure to state a claim and the District Court granted their motion.   
We will affirm. 
I. BACKGROUND2 
This qui tam action concerns two fluoroquinolone-class antibiotic drugs used to 
treat a wide variety of conditions.  Ciprofloxacin was developed by Bayer and approved 
 
1 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does 
not constitute binding precedent. 
2 Because we write for the parties, we recite only facts pertinent to our decision. 
 
4 
by the FDA in 1987.  Levofloxacin was developed by Johnson & Johnson and approved 
by the FDA in 1996. 
In his complaint, Bennett alleged that the defendants knew that both drugs caused 
serious side effects, including neurological and psychiatric damage, but omitted or 
misrepresented information about these side effects to the FDA during and after the New 
Drug Application (“NDA”) process.  According to Bennett, the defendants “fraudulently 
induced [the FDA] to grant its approval to these drugs without appropriate warning labels 
that would otherwise have been required,” and were therefore “marketed to, prescribed 
for, and used by patients who should not have used the[] drugs.”  Br. at 6.  Prescriptions 
for these drugs, in turn, caused “the submission of millions of claims a year to federal” 
healthcare programs that would “have never been reimbursed by the government” had the 
defendants been truthful.  App. at 294. 
The District Court dismissed Bennett’s complaint on two independent grounds.  
First, it held that Bennett’s fraudulent inducement theory of FCA liability was not viable 
because the government was not induced to enter into a contract with the defendants.  
The District Court next concluded that, even if Bennett’s theory of liability were viable, 
Bennett failed to plead falsity, a necessary element of an FCA claim.  Specifically, the 
District Court concluded that Bennett failed to allege that the defendants “misrepresented 
or omitted any required disclosures” or knowingly made any false or fraudulent 
statements to the FDA.  App. at 20. 
Bennett timely appealed. 
 
5 
II. DISCUSSION3 
A. Standard of Review 
We review de novo the dismissal of a complaint under Rule 12(b)(6).  U.S. ex rel. 
Petratos v. Genentech Inc., 855 F.3d 481, 486 (3d Cir. 2017).  Because this Court’s 
“review is plenary, we may affirm on any ground supported by the record.”  Hassen v. 
Gov’t of Virgin Islands, 861 F.3d 108, 114 (3d Cir. 2017) (internal quotations omitted). 
To survive a motion to dismiss, Bennett’s complaint must “contain sufficient 
factual matter, accepted as true, to state a claim to relief that is plausible on its face.”  
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations omitted).  Moreover, 
because Bennett’s FCA claim alleges that the defendants committed fraud, his complaint 
is subject to the heightened pleading standards of Fed. R. Civ. P. 9(b).  See U.S. ex rel. 
Moore & Co., P.A. v. Majestic Blue Fisheries, LLC, 812 F.3d 294, 306-07 (3d Cir. 
2016).  Under Rule 9(b), Bennett must allege “with particularity the circumstances 
constituting fraud or mistake,” including “the who, what, when, where and how of the 
events at issue.”  Id. at 307 (citations omitted). 
B. Bennett Failed to Sufficiently Plead an FCA Violation 
“A False Claims Act violation includes four elements: falsity, causation, 
knowledge, and materiality.”  Petratos, 85 F.3d at 487 (citations omitted).  Bennett failed 
to plead falsity and materiality.4 
 
3 The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1345.  We have 
jurisdiction under 28 U.S.C. § 1291. 
 
4 We do not address whether fraudulent inducement liability under the FCA is limited 
 
6 
Bennett asserts two ways that the defendants misled the FDA into approving the 
drugs.  First, the defendants allegedly withheld clinical data on the prevalence and 
severity of the drugs’ side effects.  According to Bennett, the defendants “had to have 
known” about “the adverse neurological and psychiatric effects of their…drugs” after 
conducting “human and animal studies” as part of the NDA process in the 1980s and 
1990s.  Br. at 9-10 (emphasis omitted).  The defendants were allegedly on notice about 
the adverse side effects in 2014, at the latest, after Bennett filed two Citizen Petitions 
with the FDA concerning the drugs’ side effects.   
Second, the defendants allegedly disaggregated data concerning the drugs’ side 
effects, “camouflaging the safety issues.”  Br. at 11.  Specifically, this “disaggregation” 
allegedly allowed the defendants to report relatively low rates of multiple side effects 
instead of grouping them together as manifestations of a broader condition that Bennett 
refers to as “fl[uo]roquinolone-associated disability” or “FQAD.”5  App. at 256.  Had 
defendants appropriately aggregated the symptoms, Bennett asserts, the FDA would have 
had “a true picture of FQAD” incidence.  App. at 274. 
Neither of these allegations satisfy the heightened pleading standard under Rule 
 
to situations where the government is induced to enter a contract, as Bennett’s claim fails 
under any theory. 
 
5 Dr. Deborah Boxwell, an FDA official studying the side effects of 
fluoroquinolone-class drugs, defined FQAD as a “disability” resulting from “adverse 
events reported from two or more…body systems” that lasts “30 days or longer after 
stopping the fluoroquinolone.”  App. at 484 n.2.  According to the FDA, however, FQAD 
“is not accepted medical terminology” and the term “is not used in clinical practice.” 
 
7 
9(b). 
1. Omission of Prevalence Data 
Bennett fails to allege what, if anything, the defendants knew or withheld from the 
FDA during the NDA process.  At most, Bennett asserts that the defendants “had to have 
known” about the adverse side effects based upon studies defendants were required to 
conduct.  Br. at 10.  This is a textbook Rule 9(b) pleading deficiency in the form of 
speculation.  See City of Warren Police and Fire Ret. Sys. v. Prudential Fin., Inc., 70 
F.4th 668, 680 (3d Cir. 2023); Foglia v. Renal Ventures Mgmt., LLC, 754 F.3d 153, 155 
(3d Cir. 2014). 
Nor are we persuaded by Bennett’s assertion that the defendants failed to disclose 
relevant side-effect data in reports to the FDA after the NDA was approved.  As Bennett 
notes, the defendants acknowledged the new data but “denied that their drugs had any 
linkage to” the side effects or any need to change their labeling at hearings before the 
Joint Meeting of the Antimicrobial Drugs Advisory Committee and the Drug Safety Risk 
Management Advisory Committee, both of which are run by the FDA.  Br. at 10 
(emphasis omitted).  Simply stated, although Bennett asserts that the defendants falsely 
claimed the drugs did not cause the side effects,6 the defendants’ conduct cannot be said 
 
6 Bennett’s allegation that the defendants “denied the connection between [the 
drugs] and their side effects,” App. 287, is similarly undeveloped.  Bennett fails to 
specify what denials were false and the only possible identifiable such statement was 
made at the 2015 Joint Meeting.  Bennett does not allege, though, that the defendants 
knew the data established causation at that time.  See Dist. Ct. ECF 71-7 at 10 
(identifying “emerging safety issues” with fluoroquinolone-class antibiotics (emphasis 
 
8 
to be an “omission” of any kind, as they neither hid, nor denied, the existence of the data. 
2. Disaggregating Side-Effect Data 
Bennett’s second allegation of fraud relies on the defendants’ use of disaggregated 
side-effect data in their NDA.  He argues that the defendants “intentionally disaggregated 
individual symptomatic components” that would have revealed a higher incidence of 
FQAD.  Br. at 31-32.  In Bennett’s view, the use of disaggregated data was therefore 
misleading. 
We disagree.  Bennett does not allege that the data itself was false, only that its 
organization or presentation was misleading.  Even assuming that slicing and dicing 
otherwise accurate data can amount to a false or fraudulent statement, the central problem 
with Bennett’s contention is that he fails to allege such aggregated data would be 
material.  Bennett fails to plausibly allege with specificity that the FDA would have 
recognized FQAD as a diagnosis and that aggregated data would have led the FDA to 
deny the NDA or take other action.  This is especially true given that it appears that the 
FDA did in fact have aggregated data, as shown in the drug approval letters.  Stated 
simply, Bennett’s disaggregated-data theory fails to plausibly allege the necessary 
element of materiality. 
We therefore conclude that Bennett failed to plausibly allege an FCA violation. 
III. CONCLUSION 
 
added)); United States v. Care Alternatives, 952 F.3d 89, 95 (3d Cir. 2020) (noting that 
“the plain language of the FCA denotes scienter as an element independent of falsity”).  
 
9 
For the reasons set forth above, we will affirm. 


English

Charles Bennett v. Bayer Corporation

Jathursan Thankarasa v. Attorney General United States of America

USDC for the Western District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
4-14-2025 
USA v. Deago Eddings 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"USA v. Deago Eddings" (2025). 2025 Decisions. 287. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/287 
This April is brought to you for free and open access by the Opinions of the United States Court of Appeals for the 
Third Circuit at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for 
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. 24-1166 
________________ 
 
UNITED STATES OF AMERICA 
  
v. 
 
DEAGO LEE EDDINGS, 
Appellant 
_____________ 
 
On Appeal from the United States District Court 
for the Western District of Pennsylvania 
(D.C. No. 2:21-cr-00117-001) 
District Judge: Honorable Marilyn J. Horan 
________________ 
 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 
on April 11, 2025 
 
Before: HARDIMAN, PORTER, and SMITH, Circuit Judges. 
 
(Filed: April 14, 2025) 
 
________________ 
 
OPINION* 
________________ 
 
PORTER, 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 
I 
Brentwood Borough police conducted a routine traffic stop in September 2020. In 
the back seat of the car officers found Deago Eddings and a pistol. Eddings had recently 
been released from prison, where he was serving a sentence for prior convictions of 
attempted homicide, aggravated assault, and carrying a firearm without a license. At the 
time of the stop, he was on Pennsylvania state parole as part of that prior sentence. 
Eddings was charged with one count of being a felon in possession of a firearm in 
violation of 18 U.S.C. § 922(g)(1). After his motion to suppress was denied, Eddings 
pleaded guilty. He moved to withdraw his plea following our decision in Range v. 
Attorney General, 69 F.4th 96 (3d Cir. 2023) (en banc), cert. granted, judgment vacated, 
144 S. Ct. 2706 (2024). There, we held that § 922(g)(1) could not be applied to disarm 
defendant Bryan Range in a manner consistent with our Nation’s historical tradition of 
firearms regulation. Id. at 106.1  
Eddings likewise moved to dismiss his indictment, advancing facial and as-applied 
challenges to § 922(g)(1) based on both the Second Amendment and the Commerce 
Clause. The District Court denied both the withdrawal and dismissal motions and 
proceeded to sentence Eddings to twenty-seven months’ imprisonment to be followed by 
three years of supervised release. 
Eddings appeals the denial of his constitutional challenges. 
 
1 We later affirmed that holding on remand. Range v. Att’y Gen., 124 F.4th 218, 232 (3d 
Cir. 2024) (en banc). 
3 
II2 
Last year in United States v. Moore we examined whether disarming convicts on 
supervised release was “consistent with the Nation’s historical tradition of firearm 
regulation.” 111 F.4th 266, 269 (3d Cir. 2024) (quoting N.Y. State Rifle & Pistol Ass’n, 
Inc. v. Bruen, 597 U.S. 1, 24 (2022)). After undertaking the historical analysis mandated 
by Bruen and United States v. Rahimi, 602 U.S. 680 (2024), we concluded that the 
government had met its burden to show that “history and tradition support disarming 
convicts who are completing their sentences,” including those on supervised release. 
Moore, 111 F.4th at 273. Earlier this year, we extended Moore’s logic to state equivalents 
of federal supervised release, “including a sentence of parole or probation.” United States 
v. Quailes, 126 F.4th 215, 217 (3d Cir. 2025). 
As Eddings concedes, Moore and Quailes control the outcome here. Eddings was 
on parole at the time of his indictment; he was therefore still completing his sentence, and 
§ 922(g)(1) was constitutional as applied to him.3 As Eddings also recognizes, his 
Commerce Clause challenge is similarly foreclosed by a long line of Third Circuit and 
Supreme Court precedent. See, e.g., United States v. Singletary, 268 F.3d 196 (3d Cir. 
2001). 
 
2 The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate 
jurisdiction under 28 U.S.C. § 1291. We review the District Court’s legal conclusions de 
novo and its factual findings for clear error. See United States v. Bergrin, 650 F.3d 257, 
264 (3d Cir. 2011). 
3 Eddings’s facial challenge concomitantly fails, as he cannot “establish that no set of 
circumstances exists under which the Act would be valid.” Rahimi, 602 U.S. at 693 
(quoting United States v. Salerno, 481 U.S. 739, 745 (1987)). 
4 
*  *  * 
III 
 For the reasons discussed above, we will affirm the District Court’s order denying 
Eddings’s motions to withdraw and dismiss and the District Court’s judgment of 
sentence. 


USA v. Deago Eddings

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
4-16-2025 
USA v. Monte Barry 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"USA v. Monte Barry" (2025). 2025 Decisions. 300. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/300 
This April is brought to you for free and open access by the Opinions of the United States Court of Appeals for the 
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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. 19-3903 
____________ 
 
UNITED STATES OF AMERICA 
 
v. 
 
MONTE BARRY, 
                             Appellant 
____________ 
 
On Appeal from the United States District Court 
for the Western District of Pennsylvania 
(D.C. No. 2:18-cr-00330-001) 
District Judge: Honorable Marilyn J. Horan 
____________ 
 
Argued on January 23, 2025 
 
Before: HARDIMAN, AMBRO, and SMITH, Circuit Judges. 
 
(Filed: April 16, 2025) 
 
Renee Pietropaolo [Argued] 
Lisa B. Freeland 
Elisa A. Long 
Office of Federal Public Defender 
1001 Liberty Avenue 
1500 Liberty Center 
Pittsburgh, PA 15222 
 Attorneys for Appellant 
 
Donovan J. Cocas [Argued] 
Laura S. Irwin 
Eric G. Olshan 
Office of United States Attorney 
700 Grant Street 
 
2 
 
Suite 4000 
Pittsburgh, PA 15219 
 Attorneys for Appellees 
____________ 
 
OPINION* 
____________ 
 
HARDIMAN, Circuit Judge. 
 Monte Barry appeals his judgment of conviction and sentence after pleading guilty 
to possessing a firearm as a felon. We will affirm. 
I 
While on parole for robbery, Barry was charged with and pleaded guilty to 
possessing a firearm as a felon in violation of 18 U.S.C. § 922(g)(1). The Probation 
Office calculated a total offense level of 17 and a criminal history category of III, 
resulting in an advisory Guidelines range of 30 to 37 months’ imprisonment. Before 
sentencing, Barry objected, arguing that his prior state robbery conviction under 18 Pa. 
Cons. Stat. § 3701(a)(1)(i) was not a “crime of violence” under U.S.S.G. § 4B1.2(a). If 
Barry were correct about that, his Guidelines range would have been 15 to 21 months’ 
imprisonment. See U.S.S.G. § 2K2.1(a)(4)(A), (a)(6)(A).  
The District Court agreed with the Probation Office, overruled Barry’s objection, 
and concluded that 18 Pa. Cons. Stat. § 3701(a)(1)(i) was a crime of violence. The Court 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
 
3 
 
sentenced Barry to 30 months’ imprisonment followed by 3 years’ supervised release. 
Barry timely appealed.  
II1 
Barry argues that the District Court miscalculated the Guidelines range because 
his robbery conviction is not a crime of violence. The answer to that question is unclear, 
largely because of the vagaries of the Supreme Court’s categorical approach to such 
matters. See, e.g., United States v. Jenkins, 68 F.4th 148, 155 (3d Cir. 2023). We need not 
engage in that formalistic exercise here because the record shows “that the sentencing 
Guidelines range did not affect the actual sentence.” United States v. Zabielski, 711 F.3d 
381, 387 (3d Cir. 2013) (cleaned up).  
The District Court conducted a thorough sentencing hearing. The Court had been 
made aware of the dispute about whether Barry’s robbery conviction qualified as a crime 
of violence and its effect on the Guidelines range. The Court was not presented with any 
motions for departure and heard counsel for Barry argue for a downward variance. The 
Court then imposed a bottom-of-the-Guidelines sentence of 30 months.  
Mindful of the dispute about the enhancement for the robbery conviction, the 
Court noted it “would adhere to the sentence even if the [G]uidelines had not been 
accurately computed.” App. 113–14; see also Zabielski, 711 F.3d at 389. The record 
demonstrates those were not empty words. The District Court understood what the 
Guidelines range would be if the enhancement were inapplicable. It then followed the 
 
1 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 
28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). 
 
4 
 
three-step sentencing procedure. See United States v. Raia, 993 F.3d 185, 196 (3d Cir. 
2021). The Court provided a thorough discussion of Barry’s crime and life, 
demonstrating that it “underst[ood] the facts of the case, grasp[ed] their significance, and 
incorporate[d] them into a just sentence.” Zabielski, 711 F.3d at 388. In sum, any error by 
the District Court regarding the Guidelines calculation was harmless because “there is a 
high probability that the sentencing judge would have imposed the same sentence under a 
correct Guidelines range.” Id. at 387 (cleaned up).  
Our decision today does not, as our dissenting colleague suggests, hold that “[a] 
single comment from a District Judge . . . insulate[s] a sentence from review.” Dissent at 
1. In Zabielski, we noted that “[a]n explicit statement that the district court would have 
imposed the same sentence under two different ranges can help to improve the clarity of 
the record, promote efficient sentencing, and obviate questionable appeals such as this 
one.” 711 F.3d at 389. Such clear statements from sentencing judges are important 
polestars worthy of consideration by this reviewing Court, which takes an appropriately 
deferential approach in such matters. See generally United States v. Tomko, 562 F.3d 558 
(3d Cir. 2009) (en banc). But they must be considered in the full context of the trial court 
record; they are not dispositive shibboleths. Clear statements also relieve this Court of 
trying to discern whether the appeal presents the “rare case,” like Zabielski, where we can 
infer that an erroneous Guidelines range was immaterial even in the absence of a clear 
statement by the sentencing judge. 711 F.3d at 377 (quoting United States v. Langford, 
 
5 
 
516 F.3d 205, 218 (3d Cir. 2008)). 2 
* * * 
 For these reasons, we will affirm Barry’s judgment of conviction and sentence. 
 
2 Barry’s Second Amendment challenge is, as he recognized at page 25 of his Reply 
Brief, foreclosed by our intervening decision in United States v. Moore, 111 F.4th 266, 
272–73 (3d Cir. 2024). See also United States v. Quailes, 126 F.4th 215, 223–24 (2025).  
 
1 
 
AMBRO, Circuit Judge, concurring in part and dissenting in part 
A single comment from a District Judge should not insulate a sentence from review. 
I thus dissent in part.1  
Sentencing Guidelines are “not only the starting point for most federal sentencing 
proceedings but also the lodestar.” Molina-Martinez v. United States, 578 U.S. 189, 200 
(2016). “[D]istrict courts must begin their analysis with the Guidelines and remain 
cognizant of them throughout the sentencing process.” Peugh v. United States, 569 U.S. 
530, 541 (2013) (internal quotation marks omitted). So even an “explicit statement that the 
district court would have imposed the same sentence under two different ranges” will not 
preclude our review in the mine run of cases. United States v. Zabielski, 711 F.3d 381, 389 
(3d Cir. 2013). Only in the “rare case” is it possible to “discern from the record that the 
sentencing Guidelines range did not affect the actual sentence.” Id. at 387.  
Zabielski itself exemplifies the rare case. The Government there argued for a 
Guidelines range of 37–46 months, while Zabielski argued for a Guidelines range of 30–
37 months. Id. at 384. Departing from both, the District Court sentenced him to 24 
months—a downward variance of 13 months below the floor of the Government’s 
Guideline range and 6 months less than the bottom of Zabielski’s request. Id. at 385. It 
explained this departure was based entirely on Zabielski’s allocution. Id. at 385. Despite 
receiving a more lenient sentence than requested, he appealed. Id.  
 
1  I concur with the majority that United States v. Moore, 111 F.4th 266, 272 (3d Cir. 
2024), forecloses Barry’s Second Amendment challenge. Maj. Op. at 5 n.2.  
 
2 
 
Addressing his challenge, we acknowledged that “[i]n the typical case, an erroneous 
calculation of the defendant’s base offense level . . . will not be harmless, particularly when 
the sentence imposed suggests that the district court chose to adhere to the advisory 
Guidelines range.” Id. at 387. And when a judge “impose[s] a bottom-of-the-Guidelines 
sentence,” it is “reasonable to assume” that the judge may have done the same thing 
“pursuant to the lower, correct range.” Id. One reason is because the Court’s “attempts to 
avoid disparity between defendants” may “be misguided” under the incorrect range; “it 
ineluctably will compare the defendant to others” with a different criminal background. Id. 
In contrast, “an error is more likely to be harmless when . . . the district court decided to 
vary from the advisory Guidelines range.” Id. at 388. So there was harmless error in 
Zabielski because the “record d[id] not suggest in any way that the 24-month sentence was 
influenced by” the disparate Guidelines ranges the parties had requested. Id. at 389.  
This case shares little with Zabielski. And under the latter’s logic, I reach the 
opposite result. The Government here requested a range of 30–37 months based on its 
conclusion that Barry had committed a crime of violence. Maj. Op. at 2-3. He argued 18 
Pa. Cons. Stat. § 3701(a)(1)(i) is not a crime of violence, making the Guidelines range 15–
21 months. The District Court agreed with the Government and gave Barry a 30-month 
sentence.  
We cannot say the Guidelines range played no part. In fact, the Court stated it had 
determined an “appropriate sentenc[e] to meet the considerations of the sentencing 
guidelines and of [the §] 3553(a) factors,” and acknowledged it would sentence Barry 
“within the guideline range.” App. 108. It also explained its desire to “avoid unwarranted 
 
3 
 
sentence disparities among defendants with similar records who have been found guilty by 
similar conduct”—presumably also crimes of violence. App. 113. If the Court had 
concluded § 3701(a)(1)(i) was not a crime of violence, the sentence imposed would have 
been an unexplained 100% upward variance from the corresponding Guidelines range. The 
Court’s note that it “would adhere to the sentence even if the guidelines had not been 
accurately computed” does not explain this departure. App. 114. My colleagues today 
conclude these were not “empty words,” but I do not know why. Maj. Op. at 4. Their 
decision suggests that comments from district judges are sufficient, but precedent says that 
is true only in the “rare case.” Zabielski, 711 F.3d at 387; see United States v. Raia, 993 
F.3d 185, 196 (3d Cir. 2021) (“[E]ven an explicit statement that the same sentence would 
be imposed under a different Guidelines range is insufficient if that alternative sentence is 
not also a product of the entire three-step sentencing process.”). My concern is that we not 
create a path for a district judge to insulate any sentence from our review. I respectfully 
dissent on this issue. 
Because I disagree with the majority’s extension of Zabielski, I reach Barry’s 
arguments that 18 Pa. Cons. Stat. § 3701(a)(1)(i) is not a crime of violence. He makes at 
least one meritorious argument to that end, and I would therefore vacate and remand for 
the District Court to resentence him under the correct Guidelines range.  
Barry was sentenced under § 3701(a)(1)(i), the provision of Pennsylvania’s robbery 
statute applicable to those who “inflict[] serious bodily injury” during a theft. Id. A “crime 
of violence” must “ha[ve] as an element the use, attempted use, or threatened use of 
 
4 
 
physical force against the person of another,” U.S.S.G. § 4B1.2(a)(1), or be one of several 
enumerated offenses, including robbery, id. § 4B1.2(a)(2). The only question here is 
whether § 3701(a)(1)(i) matches the generic definition of the enumerated offense, 
“robbery.” See id. § 4B1.2(a)(2). “If [§ 3701(a)(1)(i)] has the same elements as the generic 
offense, or . . . defines the offense more narrowly, then [it] is a categorical match and can 
serve as a predicate offense for a sentencing enhancement.” United States v. Brasby, 61 
F.4th 127, 134 (3d Cir. 2023). But if it “sweeps more broadly than the generic offense, then 
a conviction under [§ 3701(a)(1)(i)] cannot serve as a predicate offense.” Id. “We exercise 
plenary review over a district court’s decision that a conviction is one for a crime of 
violence . . . .” United States v. Wilson, 880 F.3d 80, 83 (3d Cir. 2018).  
Barry argues that generic robbery requires force, but § 3701(a)(1)(i) does not and is 
therefore broader. Generic robbery is “the taking of property from another person or from 
the immediate presence of another person by force or by intimidation.” United States v. 
Scott, 14 F.4th 190, 196 (3d Cir. 2021) (emphasis added) (quoting United States v. 
McCants, 952 F.3d 416, 428–29 (3d Cir. 2020)). The “degree of force necessary to commit 
robbery at common law” is that “sufficient to overcome a victim’s resistance.” Stokeling 
v. United States, 586 U.S. 73, 84-85 (2019). “[D]e minimis” force is enough. United States 
v. Graves, 877 F.3d 494, 503 (3d Cir. 2017). At the same time, snatchings—takings without 
the use of any force—are not covered under that definition. Id. A “defendant who merely 
snatches money from the victim’s hand and runs away has not committed robbery. 
Similarly, a defendant who steals a gold chain does not use force, within the meaning of 
 
5 
 
the robbery statute, simply because the victim feels his fingers on the back of her neck.” 
Stokeling, 586 U.S. at 86 (cleaned up).  
There is at least one Pennsylvania case in which an individual was convicted of 
robbery under § 3701(a)(1)(i) though no “force” (as Stokeling defines it) was used. In 
Pennsylvania v. Rice, the defendants had “waited for [the victim] to walk past an alley and 
then ran toward her from behind. [They] grabbed the purse as they ran by.” 383 A.2d 903, 
905 (Pa. 1978). The victim “had several drinks, and was staggering.” Id. She fell, hit her 
head, and sustained fatal injuries. Id. Because § 3701(a)(1)(i) has been applied to forceless 
pursue snatching, it is broader than the generic definition of robbery and thus is not a crime 
of violence. 
Neither of the Government’s arguments to the contrary is persuasive. It first cites 
United States v. Castleman for the proposition that “it is impossible to cause bodily injury 
without applying force in the common-law sense.” 572 U.S. 157, 170 (2014). But 
Castleman dealt with domestic violence, analyzing only the type and degree of force 
necessary at common law for battery and domestic violence. Id. at 171. The Government 
does not establish that force deployed in those contexts is the same as that required for 
generic robbery. And Stokeling suggests that force deployed during battery may be 
“different in kind,” from that deployed during robbery, because only the latter requires a 
victim’s resistance. 586 U.S. at 82.  
Second, the Government argues it is unclear whether the conviction in Rice was 
under § 3701(a)(1)(i) or § 3701(a)(1)(ii). But Rice found the prosecution had “prove[n] 
causation of serious bodily injury or the threat thereof by appellant” because it “established 
 
6 
 
that the victim fell and suffered fatal injuries when appellant grabbed her purse,” and those 
“facts support a finding that appellant caused the fall and [her] death.” Rice, 383 A.2d at 
905. Although unartfully worded, this logic supports a conviction under § 3701(a)(1)(i)—
for inflicting serious bodily injury during a theft.  
* * * * 
I conclude Barry’s conviction under § 3701(a)(1)(i) was not a crime of violence. I 
do not discern harmless error in the District Court’s sentencing him based on Guidelines 
corresponding to that erroneous determination. I thus respectfully dissent, as I would 
remand for resentencing.  


USA v. Monte Barry

USDC for the Eastern District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
4-18-2025 
James Chadwick v. Norfolk Southern Railway Co 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
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"James Chadwick v. Norfolk Southern Railway Co" (2025). 2025 Decisions. 304. 
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NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
 
________________ 
 
No. 24-1520 
________________ 
 
JAMES CHADWICK, 
                                            Appellant 
 
v. 
 
NORFOLK SOUTHERN RAILWAY COMPANY 
_____________ 
 
On Appeal from the United States District Court 
for the Eastern District of Pennsylvania 
(D.C. Civil No. 5:21-cv-03991) 
District Judge: Honorable Jeffrey L. Schmehl 
________________ 
 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 
on February 6, 2025 
 
Before: RESTREPO, MONTGOMERY-REEVES, and SCIRICA, Circuit Judges. 
 
(Filed: April 18, 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 
 
Scirica, Circuit Judge 
 
James Chadwick appeals the District Court’s grant of summary judgment in favor 
of his employer, Norfolk Southern Railway Company (“Norfolk”), on Chadwick’s 
Americans with Disabilities Act (“ADA”), Rehabilitation Act (“RA”), and Pennsylvania 
Human Relations Act (“PHRA”) claims, where Norfolk suspended Chadwick from 
service as a locomotive engineer because of a seizure disorder.  Because the court 
correctly held Chadwick failed to establish a prima facie case of disability discrimination 
as he was suspended for failing to provide up-to-date diagnostic information regarding 
his seizure disorder, and not “as a result of discrimination,” we will affirm. 
I. 
Because we write principally for the parties, who are familiar with this case’s 
factual and legal history, we will set forth only those facts necessary to our analysis. 
Appellant Chadwick began work as an engineer for Appellee Norfolk in 1999 but 
left service after developing a seizure disorder in 2014.  After controlling his seizures, 
Chadwick returned to work in 2017.  But before Chadwick could resume work, Norfolk 
was required to recertify Chadwick, as Federal Railroad Administration (“FRA”) 
regulations require railroads to certify engineers once every three years.  49 C.F.R. § 
240.217(c).  Certification includes ensuring engineers meet minimum criteria, including 
visual and hearing acuity.  See id. § 240.101(c).  The FRA does not establish criteria 
related to seizure disorders, see id., but it authorizes railroads to adopt and enforce 
“additional or more stringent requirements not inconsistent with” FRA guidelines, id. § 
240.1(b).  Chadwick’s 2017 recertification was successful, and he returned to service. 
 
 
 
3 
 
In 2020, Chadwick was again due for recertification.  As part of the process, 
Norfolk provided Chadwick a health questionnaire, on which Chadwick reported taking 
prescription medication for his seizure disorder.  In response, Norfolk requested “more 
information from [Chadwick’s] neurologist[,] . . . including the date of [Chadwick’s] last 
known seizure, any safety-impairing side effects [he] may have experienced from his 
medication, and the likelihood of a recurrent seizure within six months to one year.”  
Chadwick v. Norfolk S. Ry. Co., No. CV 21-3991, 2024 WL 692710, at *1 (E.D. Pa. Feb. 
20, 2024).  Attempting to comply with this request, Chadwick’s neurologist faxed 
Norfolk notes from a recent telehealth appointment, but the notes only partially 
responded to Norfolk’s inquiries.  Chadwick’s neurologist attached a letter to the notes 
cautioning Chadwick “should not operate heavy machinery independently.”  Chadwick v. 
Norfolk S. Ry. Co., No. CV 21-3991, 2023 WL 4440276, at *3 (E.D. Pa. July 10, 2023).  
In a later note, the neurologist clarified Chadwick was “okay to operate heavy machinery 
as long as another employee accompanie[d] him in case of an emergency.”  Id. at *7. 
Having received this limited information from Chadwick’s neurologist, Norfolk 
placed Chadwick on an involuntary medical hold, suspending him from service pending 
receipt of the medical information Norfolk previously requested.  In response, Chadwick 
ultimately initiated this action, alleging disability discrimination under the ADA, RA, and 
PHRA.  Chadwick eventually sent Norfolk the requested medical information, however, 
under instruction from a 2023 District Court opinion.  Norfolk evaluated the information 
and ultimately returned Chadwick to service.  When Chadwick continued to pursue his 
discrimination claim, the court granted Norfolk summary judgment, holding Chadwick 
 
 
 
4 
 
had not established a prima facie case of discrimination as he failed to demonstrate he 1) 
was qualified for the job and 2) suffered an adverse employment decision as a result of 
discrimination.  The court reasoned, inter alia, Chadwick was not suspended “as a result 
of discrimination” but because he failed to provide Norfolk up-to-date diagnostic 
information regarding his seizure disorder.  Chadwick, 2024 WL 692710, at *3.  
Chadwick appeals. 
II.1 
On appeal, Chadwick contends 1) his failure to provide requested medical 
information is a post hoc rationale for his suspension, and, in reality, he was suspended as 
a result of discrimination; 2) the court erred in refusing to consider backwards-looking 
expert testimony to evaluate whether Chadwick was “qualified” for the position of 
engineer in 2020; and 3) the court erred in holding Chadwick’s medical suspension was 
not an adverse employment decision. 
We review these issues de novo.  Morgan v. Allison Crane & Rigging LLC, 114 
F.4th 214, 220 (3d Cir. 2024).  We may affirm the District Court’s grant of summary 
judgment in favor of Norfolk only if, viewing all evidence in the light most favorable to 
Chadwick, “the pleadings, the discovery and disclosure materials on file, and any 
affidavits show that there is no genuine issue as to any material fact and that [Norfolk] is 
entitled to judgment as a matter of law.”  Id. (citations omitted). 
 
1 The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1367, 
and we have jurisdiction under 28 U.S.C. § 1291. 
 
 
 
5 
 
III. 
To demonstrate a prima facie case of disability discrimination under the ADA, 
RA, and PHRA, plaintiffs must establish they 1) have a disability; 2) are “otherwise 
qualified to perform the essential functions of the job, with or without reasonable 
accommodations;” and 3) have suffered “an otherwise adverse employment decision as a 
result of discrimination.”  Id. at 220–21 (citation and internal quotation marks omitted); 
Gibbs v. City of Pittsburgh, 989 F.3d 226, 229 (3d Cir. 2021).  The parties dispute only 
elements two and three.  Because Chadwick fails to establish he was suspended “as a 
result of discrimination,” we will affirm.  But we also correct two errors in the court’s 
“otherwise qualified” and “adverse employment decision” analyses. 
A. 
Because Chadwick was suspended for failing to provide updated medical 
information regarding his seizure disorder, and not “as a result of discrimination,” he has 
failed to establish a prima facie case of disability discrimination.  Employer-imposed 
qualification standards and medical inquiries do not constitute discrimination where they 
are “job-related” and “consistent with business necessity.”  42 U.S.C. §§ 12112(b)(6), 
(d)(4)(A); see also Tice v. Centre Area Transp. Auth., 247 F.3d 506, 517–19 (3d Cir. 
2001) (finding no genuine dispute of material fact that an employer-ordered medical 
evaluation was consistent with business necessity where a bus driver “had apparently 
experienced ‘spasms’ that interfered with his use of his legs”).  As the District Court 
concluded, Norfolk’s request for additional information regarding Chadwick’s seizure 
disorder satisfies this standard.  Chadwick concedes his position as a locomotive engineer 
 
 
 
6 
 
is safety-sensitive and, moreover, does not dispute Norfolk was entitled to request follow-
up medical documentation regarding his seizures as part of its recertification process.  
Notwithstanding his concessions, Chadwick maintains his suspension was the 
result of discrimination and that Norfolk’s contention he failed to provide adequate 
medical documentation is a disingenuous post-hoc rationale.  He cites as evidence 
Norfolk’s prior statement to the Equal Employment Opportunity Commission (“EEOC”), 
which explained his suspension without reference to his failure to provide updated 
medical documentation.  But this apparent inconsistency does not overcome Chadwick’s 
failure to establish his prima facie case.  An employer’s failure to raise a particular 
explanation for an employment action before the EEOC and later reliance on that 
explanation in court, does not, alone, evidence discrimination.  See Simpson v. Kay 
Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 649 n.15 (3d Cir. 1998).  If anything, 
Norfolk’s decision to reinstate Chadwick after he provided the requested material on 
order of the District Court suggests Norfolk’s explanation to the District Court was 
sincere—it suspended Chadwick only pending the receipt of safety-related information 
important to its recertification process.  Accordingly, Norfolk’s suspension of Chadwick 
was not the result of discrimination. 
B. 
While the court correctly analyzed the “result of discrimination” prong, there were 
two errors in its other analyses. 
First, the court erroneously stated it could not retroactively determine whether 
Chadwick was qualified for his job at the time of his suspension in 2020 without medical 
 
 
 
7 
 
information generated in 2020.  Chadwick, 2024 WL 692710, at *3.  The “qualification” 
assessment is not so rigid.  Courts may consider after-acquired evidence, including 
backward-looking testimony, to evaluate whether an individual was qualified in the past.  
See McNemar v. Disney Store, Inc., 91 F.3d 610, 620–21 (3d Cir. 1996), abrogated on 
other grounds by Cleveland v. Pol’y Mgmt. Sys. Corp., 526 U.S. 795 (1999).  Because 
Chadwick provided backward-looking evidence in the form of expert testimony, the court 
could have evaluated whether Chadwick was qualified at the time of his suspension, or at 
least whether there was a genuine dispute of fact on the issue. 
Second, the court erred in holding Chadwick’s placement on “medical hold” was 
not an adverse employment decision because it was not a “medical[] disqualifi[cation].”  
Chadwick, 2024 WL 692710, at *3.  An employer need not terminate an employee to 
create an “adverse employment action”—they need only materially alter the “terms, 
conditions, [or] privileges” of employment.  Fowler v. AT&T, Inc., 19 F.4th 292, 300 (3d 
Cir. 2021).  Accordingly, while a lateral transfer not resulting in “loss of pay, benefits, 
[or] status” may not qualify as adverse, id. at 301 n.5, Chadwick’s involuntary 
suspension, which impacted his “pay, seniority, [and] benefits,” does qualify, Appellant’s 
Br. 20.  But because the court rightly concluded Chadwick was not suspended “as a result 
of discrimination,” we will affirm its grant of summary judgment in favor of Norfolk 
even if Chadwick was otherwise qualified and subject to an adverse employment 
decision. 
IV. 
For the foregoing reasons, we will affirm the District Court’s grant of summary 
 
 
 
8 
 
judgment in favor of Norfolk. 


James Chadwick v. Norfolk Southern Railway Co

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
4-22-2025 
Sergei Kovalev v. Home Depot USA Inc 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Sergei Kovalev v. Home Depot USA Inc" (2025). 2025 Decisions. 311. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/311 
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Digital Repository. For more information, please contact reference@law.villanova.edu. 
BLD-117          NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 24-2025 
___________ 
 
SERGEI KOVALEV, 
   Appellant 
 
v. 
 
HOME DEPOT USA INC; HOME DEPOT INC; 
HOME DEPOT #4112; CRAIG MENEAR; 
JANE DOE I; JANE DOE II; DOES 1 THROUGH 10 
____________________________________ 
 
On Appeal from the United States District Court 
for the Eastern District of Pennsylvania  
(D.C. Civil Action No. 2:22-cv-00465) 
District Judge:  Honorable Gerald A. McHugh 
____________________________________ 
 
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or 
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 
April 3, 2025 
Before:  SHWARTZ, MATEY, and CHUNG, Circuit Judges 
 
(Opinion filed April 22, 2025) 
_________ 
 
OPINION* 
_________ 
 
PER CURIAM 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
2 
 
In November 2021, the appellant, Sergei Kovalev, commenced an action in the 
United States District Court for the Eastern District of Pennsylvania against Home Depot 
U.S.A., Inc., and related entities.  Kovalev v. Home Depot, E.D. Pa. Civ. No. 21-cv-
05010.  He claimed that an employee at a Philadelphia store had discriminated against 
him on account of his race by refusing to double-bag his items at checkout.1  Shortly after 
commencing the action, Kovalev voluntarily dismissed it and commenced a similar 
action in the Court of Common Pleas of Philadelphia County.  Home Depot removed that 
action back to federal court based on diversity jurisdiction.  Kovalev v. Home Depot, 
E.D. Pa. Civ. No. 21-cv-00465.  Kovalev moved to remand it, but the District Court 
denied his request.  
Kovalev then filed an amended complaint asserting that the cashier and other 
employees at the store committed numerous Pennsylvania torts and federal civil rights 
violations against him.  Home Depot moved to dismiss the amended complaint for failure 
to state a claim under Federal Rule of Civil Procedure 12(b)(6).  The District Court 
granted the motion but provided Kovalev sixty days to amend his pleading.  Rather than 
doing so, Kovalev appealed.  We summarily affirmed, agreeing with the District Court 
that he had failed to allege sufficient factual matter to state a plausible claim for relief.   
 
1 Kovalev described himself as a “White person of Eastern European ethnic origin” and 
the check-out cashiers as “African-American/Black.”  Compl. ¶ 14, 19, ECF No. 2. 
3 
 
Kovalev then returned to the District Court and requested leave to file a second 
amended complaint.2  In the proposed pleading, he omitted his federal claims, reasserted 
his dismissed state-law claims, and asked the District Court to remand the case to state 
court.  The District Court recognized that leave to amend may be granted under Federal 
Rule of Civil Procedure 15(a) “when justice so requires,” but the court denied leave here 
because Kovalev had failed to move to amend within the time ordered and was acting in 
bad faith by attempting to revive claims that had already been dismissed.    
Kovalev appealed.  In his notice of appeal, he states that he seeks review of the 
District Court’s orders (1) denying his motion to remand the case to the state court; (2) 
denying certain discovery requests; (3) dismissing his amended complaint; and (4) 
denying his motion to file a post-judgment amended complaint.  But Kovalev’s notice of 
appeal is timely only as to the order denying his motion to file a post-judgment amended 
complaint.  See Fed. R. App. P. 4(a)(1) (stating that a notice of appeal in a civil case in 
which the United States is not a party must be filed within thirty days after entry of the 
judgment or order appealed from).  Therefore, our jurisdiction is limited to review of that 
order.  
We see no error.  “When a party seeks leave to amend a complaint after judgment 
has been entered, it must also move to set aside the judgment pursuant to Federal Rule of 
 
2 Kovalev also filed his proposed second amended complaint in state court.  
4 
 
Civil Procedure 59(e) or 60(b), because the complaint cannot be amended while the 
judgment stands.”  Mullin v. Balicki, 875 F.3d 140, 149 (3d Cir. 2017) (internal quotation 
marks and alteration omitted); see also Ahmed v. Dragovich, 297 F.3d 201, 207–08 (3d 
Cir. 2002).  Because Kovalev never moved to set aside the District Court’s dismissal, he 
could not use Rule 15 to amend his pleading.   
Moreover, to the extent that his motion to amend could be construed as including a 
request to set aside the judgment, the District Court acted within its discretion in denying 
it.  Among the factors justifying denial of leave to amend under Rule 15(a)(2) are undue 
delay, bad faith or dilatory motive, prejudice to the opposition, repeated failures to 
correct deficiencies with previous amendments, and futility of the amendment.  Mullin v. 
Balicki, 875 F.3d 140, 149 (3d Cir. 2017) (citing Forman v. Davis, 371 U.S. 178 (1962)).  
As the District Court explained, Kovalev was given sixty days to file a motion for leave 
to amend his complaint but did not do so for seven months, and only after pursuing a 
meritless appeal.  In addition, it would be futile to permit amendment, as the proposed 
amended complaint reasserts claims that the District Court already dismissed.          
Because this appeal does not present a substantial question, we will summarily 
affirm the District Court’s order.  See 3d Cir. LAR 27.4 and I.O.P. 10.6. 


Sergei Kovalev v. Home Depot USA Inc

USDC for the Middle District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
4-24-2025 
John Angelillo v. Facebook 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"John Angelillo v. Facebook" (2025). 2025 Decisions. 317. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/317 
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Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
 
DLD-116        NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 24-3022 
___________ 
 
JOHN ANGELILLO, 
    Appellant 
 
v. 
 
FACEBOOK 
____________________________________ 
 
On Appeal from the United States District Court 
for the Middle District of Pennsylvania 
(D.C. Civil Action No. 4:23-cv-01078) 
Magistrate Judge:  Honorable William I. Arbuckle (sitting by consent) 
____________________________________ 
 
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or 
Summary Action Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6 
April 3, 2025 
 
Before: RESTREPO, FREEMAN, and NYGAARD, Circuit Judges 
 
(Opinion filed: April 24, 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 
Pennsylvania state prisoner John Angelillo appeals pro se from the decision of the 
United States District Court for the Middle District of Pennsylvania (“the District 
Court”)1 dismissing his second amended complaint without further leave to amend.  For 
the reasons that follow, we will affirm that judgment. 
I. 
 Angelillo filed a pro se complaint against Facebook (now known as Meta 
Platforms, Inc.) in the District Court.  He subsequently filed two amended complaints; the 
second amended complaint is the operative pleading.  In that pleading, he alleged that 
multiple individuals posted defamatory statements about him on Facebook’s social-media 
platform, and that Facebook was negligent “for allowing this to happen . . . unchecked.”  
Second Am. Compl. 1.  In view of these allegations, Angelillo sought $68 million in 
damages and other relief. 
 Facebook moved to dismiss the second amended complaint, arguing, inter alia, 
that (1) the District Court lacked personal jurisdiction over Facebook, and (2) Angelillo’s 
lawsuit was barred by a provision of the Communications Decency Act (“CDA”), 47 
U.S.C. § 230(c).  Under this provision, “interactive computer services,” see 47 U.S.C. 
 
1 In this case, a United States Magistrate Judge sat as the District Court pursuant to the 
parties’ consent.  See 28 U.S.C. § 636(c)(1). 
 
3 
 
§ 230(f)(2), of which Facebook is one, see, e.g., M.P. ex rel. Pinckney v. Meta Platforms 
Inc., 127 F.4th 516, 520 (4th Cir. 2025); Klayman v. Zuckerberg, 753 F.3d 1354, 1357 
(D.C. Cir. 2014), are immunized “if they are sued for someone else’s expressive activity 
or content,” Anderson v. TikTok, Inc., 116 F.4th 180, 183 (3d Cir. 2024); see Hepp v. 
Facebook, 14 F.4th 204, 209 (3d Cir. 2021) (explaining that “[t]his provision bars 
attempts to treat websites as publishers or speakers of content posted by others”).  
Angelillo’s opposition to Facebook’s motion to dismiss did not address personal 
jurisdiction or the CDA. 
 On October 18, 2024, the District Court dismissed Angelillo’s second amended 
complaint without further leave to amend.  The District Court concluded that Angelillo 
“does not allege sufficient factual matter that would allow this Court to exercise specific 
or general personal jurisdiction over [Facebook].”  Dist. Ct. Mem. Op. entered Oct. 18, 
2024, at 15 [hereinafter Dist. Ct. Op.].  The District Court further concluded that, 
“[a]lthough it is likely this pleading defect could be remedied,” id., it would be futile to 
give Angelillo a chance to do so because his lawsuit would be barred by the CDA.  This 
timely appeal followed. 
II. 
 We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.  Our review of 
the District Court’s decision is plenary, see Ellison v. Am. Bd. of Orthopaedic Surgery, 
 
4 
 
11 F.4th 200, 204 n.2 (3d Cir. 2021), and we may affirm on any basis supported by the 
record, see Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam). 
 We see no reason to disturb the District Court’s decision.  For substantially the 
reasons set forth in the District Court’s October 18, 2024 opinion, Angelillo failed to 
allege facts establishing that the District Court had personal jurisdiction over Facebook.  
See Dist. Ct. Op. 10-15.  See generally Danziger & De Llano, LLP v. Morgan Verkamp 
LLC, 948 F.3d 124, 129 (3d Cir. 2020) (“When a defendant challenges the court’s 
personal jurisdiction, the plaintiff bears the burden to come forward with sufficient facts 
to establish that jurisdiction is proper.” (internal quotation marks omitted)).  And as the 
District Court explained, it would have been futile to give Angelillo another chance to 
amend because this lawsuit was barred by the CDA.  See Dist. Ct. Op. 15-20.2 
 Because this appeal does not present a substantial question, we will summarily 
affirm the District Court’s judgment.  Angelillo’s motion for an evidentiary hearing is 
denied.  
 
 
2 We note that nothing in Angelillo’s appellate filings here indicates that he would have 
been able to cure the defect regarding personal jurisdiction if afforded the opportunity to 
file yet another amended complaint.  


John Angelillo v. Facebook

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
4-25-2025 
Wesley Smith v. USA 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Wesley Smith v. USA" (2025). 2025 Decisions. 325. 
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Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
 
AMENDED DLD-117      NOT PRECEDENTIAL 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 24-3030 
___________ 
 
WESLEY ALLEN SMITH, 
   Appellant 
 
v. 
 
UNITED STATES OF AMERICA 
____________________________________ 
 
On Appeal from the United States District Court 
for the Eastern District of Pennsylvania 
(D.C. Civil Action No. 2:23-cv-02481) 
District Judge:  Honorable Juan R. Sánchez 
____________________________________ 
 
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or 
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 
 
April 3, 2025 
 
Before:  RESTREPO, FREEMAN, and NYGAARD, Circuit Judges 
 
 
(Opinion filed: April 25, 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 
Appellant Wesley Allen Smith, proceeding pro se, appeals the District Court’s 
October 23, 2024 order granting the United States’ motion to dismiss his amended 
complaint with prejudice.  For the reasons that follow, we will summarily affirm the 
District Court’s order.  
Smith brought this complaint under the Federal Torts Claim Act (“FTCA”) 
claiming that he received two surgeries in February and March 2015 at the Philadelphia 
Veterans Affairs Medical Center (“PVAMC”) and, due to the surgeon’s negligence, he 
lost his eyesight.  On October 4, 2016, Smith sought redress for his vision loss by filing 
an FTCA administrative claim with the United States Veterans Administration (“VA”), 
but he failed to provide the requisite sum certain on his form.  On October 5, 2016, the 
VA responded to Smith’s submission stating he had failed to submit a valid claim 
because he did not provide a sum certain.  With that notice, the VA mailed his form back 
to him and requested he provide this information as soon as possible.  The letter 
emphasized the importance of his completing the form in compliance with the two-year 
statute of limitations.  Smith did not return the form.  Six years later, in May 2022, Smith 
filed a new administrative claim with the VA regarding the same incident and it was 
denied as untimely.   
 
3 
 
On June 26, 2023, after the VA denied Smith’s May 2022 claim and his 
subsequent request for reconsideration, Smith filed his initial complaint with the District 
Court.  On November 13, 2023, the United States filed a motion requesting to be 
substituted as the sole defendant1 and asking the District Court to dismiss Smith’s 
complaint for his failure to timely exhaust administrative remedies, as is required by the 
FTCA.  The District Court granted the defendant’s motion on May 31, 2024, and 
dismissed Smith’s complaint without prejudice to provide him the opportunity to either 
demonstrate his timely exhaustion of administrative remedies or give the Court a good 
reason for failing to do so.  On September 3, 2024, Smith filed an amended complaint 
against the United States wherein he repeated the same claim for the same injury and 
offered no additional information or explanation regarding timeliness.  On October 23, 
2024, the District Court dismissed Smith’s complaint with prejudice as time-barred and 
Smith timely appealed.   
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and exercise 
de novo review over the District Court’s order granting Appellee’s motion to dismiss 
Smith’s amended complaint.  See Simko v. U.S. Steel Corp., 992 F.3d 198, 203-04 (3d 
 
1 The complaint was originally against the doctor who performed Smith’s surgery and the 
PVAMC.  See 28 U.S.C. § 2679(d)(1); Osborn v. Haley, 549 U.S. 225, 230 (2007) 
(providing that the United States shall be substituted as the party defendant in causes of 
action filed in a United States district court against a defendant employee acting within 
his scope of employment at a federal agency at the time of the incident at issue).  
 
4 
 
Cir. 2021).  In reviewing a dismissal under Federal Rule of Civil Procedure 12(b)(6), “we 
must determine whether ‘the time alleged in the statement of a claim shows that the cause 
of action has not been brought within the statute of limitations.’”  Cito v. Bridgewater 
Twp. Police Dep’t, 892 F.2d 23, 25 (3d Cir. 1989) (quoting Bethel v. Jendoco Constr. 
Corp., 570 F.2d 1168, 1174 (3d Cir. 1978)).2  We must also accept the facts alleged in the 
complaint as true and draw all reasonable inferences in Smith’s favor.  Simko, 992 F.3d 
at 204 (citing Connelly v. Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir. 2016)).  
Summary action is appropriate if there is no substantial question presented in the appeal.  
See 3d Cir. L.A.R. 27.4.   
The District Court did not err in granting Appellee’s motion to dismiss on the 
grounds that Smith’s amended complaint was barred by the statute of limitations.  The 
FTCA “provides that a tort claim against the United States ‘shall be forever barred’ 
unless it is presented to the ‘appropriate Federal agency within two years after such claim 
accrues’ and then brought to federal court ‘within six months’ after the agency acts on the 
 
2 “While the language of [Federal Rule of Civil Procedure] 8(c) indicates that a statute of 
limitations defense cannot be used in the context of a Rule 12(b)(6) motion to dismiss, an 
exception is made where the complaint facially shows noncompliance with the 
limitations period and the affirmative defense clearly appears on the face of the 
pleading.”  Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.1 (3d 
Cir. 1994).  In evaluating a motion to dismiss, a district court may examine exhibits 
attached to the complaint, see Davis v. Wells Fargo, 824 F.3d 333, 341 (3d Cir. 2016), 
and indisputably authentic administrative claim documents, see Spruill v. Gillis, 372 F.3d 
218, 223 (3d Cir. 2004).  
 
5 
 
claim.”  United States v. Wong, 575 U.S. 402, 405 (2015) (quoting 28 U.S.C. § 2401(b)).  
A claim is “presented” when the agency receives notice of the incident alongside a claim 
for money damages in a sum certain.  See 28 U.S.C. § 2675(b); 28 C.F.R. § 14.2; see also 
White-Squire v. U.S. Postal Serv., 592 F.3d 453, 458–59 (3d Cir. 2010) (discussing 
importance of “sum certain” requirement).   
Here, the District Court correctly determined that Smith was barred from bringing 
a claim under the FTCA in federal court because he failed to “present” his claim to the 
VA within two years of its accrual in 2015.  See generally Hughes v. United States, 263 
F.3d 272, 275 (3d Cir. 2001) (discussing accrual date).  The day after Smith filed his 
initial administrative claim with the VA, on October 5, 2016, the VA informed him that 
his filing was missing requisite information and that his claim would not be processed 
without it.  Smith did not timely respond to this notice, but instead filed a new form 
regarding the same surgeries six years later.  That second attempt, while containing the 
necessary information, was filed long past the two-year deadline.  See generally Santos 
ex rel. Beato v. United States, 559 F.3d 189, 194 (3d Cir. 2009).  And as the District 
Court concluded, Smith has not identified, either in the District Court or on appeal, any 
grounds for equitably tolling the limitations period.  See generally D.J.S.-W. by Stewart 
v. United States, 962 F.3d 745, 750 (3d Cir. 2022) (providing the standard for equitable 
 
6 
 
tolling and explaining its limited application to circumstances requiring extraordinary 
remedy). 
As Smith failed to timely present his claim to the VA within two years after the 
claim accrued, he is barred from filing a complaint under the FTCA in federal court.  As 
such, it was appropriate for the District Court to grant Appellee’s motion to dismiss with 
prejudice.  Because this appeal does not present a substantial question, we will summarily 
affirm the District Court’s judgment.3  See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.  
 
3 We have considered Smith’s response in support of his appeal, but it does not address 
the critical statute-of-limitations issue.  See CA Dkt. No. 20.   


Wesley Smith v. USA

The Public Interest Legal Foundation v. Secretary Commonwealth of Pennsylvania

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
5-1-2025 
USA v. Luke Shager 
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NOT PRECEDENTIAL 
 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
________________ 
 
No. 24-1537 
________________ 
 
UNITED STATES OF AMERICA 
 
v. 
 
LUKE SHAGER, 
 
   Appellant 
________________ 
 
Appeal from the United States District Court 
for the Middle District of Pennsylvania 
(D. C. No. 3:22-cr-00024-001) 
District Judge:  Honorable Robert D. Mariani 
________________ 
 
Submitted under Third Circuit LAR 34.1(a) 
on March 4, 2025 
 
Before: MATEY, FREEMAN and ROTH, Circuit Judges 
 
(Opinion filed May 1, 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 
 
ROTH, Circuit Judge 
 
  Luke Shager appeals his conviction for sexually exploiting a ten-year old child.  His 
attorneys, meanwhile, seek leave to withdraw because there is no non-frivolous ground for 
appeal.  We agree with the attorneys, grant their motion, and affirm. 
I.1 
On November 23, 2020, the Wayne County District Attorney’s office received a tip 
from the National Center for Missing and Exploited Children (NCMEC) that Luke Shager 
had been uploading child sexual abuse material (CSAM).  Shager admitted to the police 
that he had been viewing CSAM for years, and a search of his devices revealed numerous 
images (and a smaller number of videos) of CSAM.  Shager also admitted to molesting his 
minor daughter’s friend during her sleep (two self-produced videos of which were found 
on his phone).  
Shager was arrested by state police on January 14, 2021.  Shortly thereafter, a 
federal grand jury charged him with violating 18 U.S.C. §§ 2423(b) (Interstate Travel to 
Engage in Illicit Sexual Conduct), 2422(b) (Online Enticement), 2423(a) (Interstate 
Transportation of a Minor), and 2251(a) (Sexual Exploitation of Children).2  On July 26, 
2022, the government and Shager entered into a plea deal in which Shager agreed to plead 
 
1 Because we write for the parties, we recite only those facts necessary to our disposition. 
2 Shager was also charged with two state counts, which were nolle prossed in light of his 
federal charges. 
3 
 
guilty to a single count of sexual exploitation under 18 U.S.C. § 2251(a).3  That charge 
would be predicated on one of the videos he had created.  Although the government agreed 
to drop the remaining charges, Shager nevertheless agreed to “pay restitution equal to the 
loss caused to any identifiable victim of [his] uncharged or dismissed conduct” relating to 
CSAM.4  The District Court accepted Shager’s guilty plea on May 26, 2023.   
Shager’s sentencing hearing took place on March 7, 2024.  The District Court 
sustained Shager’s sole (largely semantic) objection to the presentencing report (PSR), and 
otherwise adopted it in full.  It then imposed a below-guideline sentence of 262 months’ 
incarceration, along with a restitution award of $27,000 to be divided equally among nine 
of Shager’s victims.5  Shager appealed. 
II.6  
 If, after a conscientious review, “counsel is persuaded that [an] appeal presents no 
issue of even arguable merit, counsel may file a motion to withdraw and supporting brief 
pursuant to Anders v. California.”7  To be adequate, that brief must both (1) show that 
counsel adequately has scoured the record, and (2) explain why he believes that any ground 
 
3 Shager claims that he only intended to plead guilty to violating 18 U.S.C. § 2423.  But 
Paragraph A(1) of Shager’s written plea agreement provided that he would plead guilty to 
violating 18 U.S.C. § 2251.  And the District Court confirmed repeatedly during the 
change-of-plea colloquy that Shager knew what he was pleading guilty to. 
4 Appx. 49 (emphasis added). 
5 Although NCMEC was able to verify the identities of the children in 97 series of images 
on Shager’s devices, only nine children requested restitution.  
6 The District Court had jurisdiction under 18 U.S.C. § 3231.  We have jurisdiction under 
28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).  
7 3d Cir. L.A.R. 109.2(a) (citing Anders v. California, 386 U.S. 738 (1967)).  
4 
 
for appeal would be frivolous.8  A ground for appeal is frivolous if it “lacks any basis in 
law or fact.”9  If we agree that no non-frivolous issue exists, we will grant the motion to 
withdraw and affirm the judgment of the District Court.10  
In reviewing an Anders brief, “we exercise plenary review to determine whether 
there are any such non-frivolous issues and review factual findings for clear error.”11  The 
contours of our review hinge on the quality of the brief, and where we are comfortable 
counsel has fulfilled his obligations under Anders, “we may limit our review of the record 
to the issues counsel raised.”12  
Here, our review of the attorney’s Anders brief convinces us that he has fulfilled his 
duty.  And our independent review, guided by his briefing, confirms that an appeal would 
be meritless. 
III.  
 The attorney notes four potential avenues for appeal: (1) the validity of Shager’s 
charges, (2) the legitimacy of his plea, (3) the content of his PSR, and (4) the legality of 
his sentence.  He correctly concludes that these avenues are dead ends.  
Beginning with Shager’s charges, the District Court unquestionably had jurisdiction 
over the charged conduct, and Shager consented in his plea agreement to being prosecuted 
in the Middle District of Pennsylvania.13  While Shager did not receive a new grand jury 
 
8 United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). 
9 McCoy v. Ct. of Appeals of Wis., Dist. 1, 486 U.S. 429, 438 n.10 (1988). 
10 United States v. Brookins, 132 F.4th 659, 671 n.15 (3d Cir. Apr. 1, 2025). 
11 United States v. Langley, 52 F.4th 564, 568 (3d Cir. 2022) (cleaned up). 
12 Langley, 52 F.4th at 569. 
13 See 18 U.S.C. § 3231; United States v. Perez, 280 F.3d 318, 328 (3d Cir. 2002). 
5 
 
indictment for the charge to which he ultimately plead guilty, he provided the District Court 
with a waiver of his right to that indictment.14 
Turning to Shager’s plea, the District Court gave a thorough change-of-plea 
colloquy, and Shager made a knowing and voluntary guilty plea..  The District Court 
confirmed that Shager was competent, went over with him under oath the rights he was 
forfeiting, and verified that he had not been improperly induced into entering the plea.15  It 
double-checked that Shager had carefully reviewed the entirety of his plea agreement with 
his attorney, and that he had no questions regarding its terms and no qualms with his 
representation. 16   Throughout, the court encouraged Shager to ask questions and 
responded whenever he did so. 
Shager claims he was unaware that his plea would let the District Court order 
restitution for the victims of his uncharged conduct.  However, his plea bargain, which he 
testified he had carefully (and repeatedly) reviewed, explicitly provided for such restitution 
and contained a lengthy and detailed description of which uncharged offenses were 
 
14 See Fed. R. Crim. P. 7(b) (providing that a grand jury indictment is not required “if the 
defendant—in open court and after being advised of the nature of the charge and of the 
defendant’s rights—waives prosecution by indictment”). 
15 Although Shager said he could not take the risk of going to trial, it is well-settled that 
this alone does not affect the voluntariness of a plea bargain.  See Bordenkircher v. Hayes, 
434 U.S. 357, 363-64 (1978).  And while Shager made vague allegations of misconduct by 
the Pennsylvania authorities, he proceeded to make clear that he was pleading guilty 
because he was guilty, not because of any governmental pressure.  
16 While Shager challenged the government’s factual basis, this challenge largely rested on 
a misunderstanding of the legal meaning of the term “penetration,” which does not require 
piercing or otherwise violent conduct. See Penetration, Black’s Law Dictionary (12th ed. 
2024) (second definition).  And although its definition of the term was legally correct, the 
government nevertheless agreed with Shager to use the alternative term “contact” to 
assuage his concerns.   
6 
 
covered.  While this portion of the agreement was not expressly recapitulated at colloquy, 
Shager was reminded generally that he would be paying “restitution for identifiable victims 
in the images of child pornography.”17  Although Shager acknowledges that he discussed 
the issue of uncharged restitution payments with counsel before sentencing, neither he nor 
his counsel ever asked the court to reopen his plea.  As such, this argument cannot support 
an appeal.18 
Moving on to Shager’s PSR, the record reveals that he made one formal objection 
to it—which the District Court sustained.  When asked if there was anything else in the 
PSR to which Shager wished to object, his counsel affirmatively stated that there was not.  
Although Shager attempted to relitigate certain aspects of the PSR during his allocution, 
he acknowledged that he was not lodging a formal objection and was doing so solely to 
 
17 Appx. 68.  Shager’s restitution liability towards the victims of his uncharged offenses 
was also discussed repeatedly in his PSR.   
18 See United States v. Agarwal, 24 F.4th 886, 891 (3d Cir. 2022) (holding that we review 
challenges to plea-bargain validity for plain error when no objection is made in the trial 
court).  To the extent that Shager takes issue with the amount of restitution ordered by the 
Court—any such argument would be plainly meritless.  Shager cites the United States 
Supreme Court’s holding in Paroline v. United States, which limited restitution awards in 
CSAM cases to “the defendant’s relative role in the causal process that underlies the 
victim’s general losses.” 572 U.S. 434, 458 (2014). But Paroline interpreted a since-
amended statute, which now provides that “the court shall order restitution in an amount . 
. . which is no less than $3,000.” 18 U.S.C. § 2259(b)(2)(B); see generally United States v. 
Clemens, 990 F.3d 1127, 1129-30 (8th Cir. 2021).  As such, the District Court’s award of 
$3,000 to each petitioning victim represented the minimum permissible restitution award.   
7 
 
provide the court with additional insight into his mental state.  The District Court was 
therefore entitled to rely upon the amended PSR in imposing sentence.19 
Arriving finally at that sentence, the District Court’s imposition of 262 months’ 
imprisonment was plainly permissible.  Given that Shager pled guilty to violating 18 U.S.C. 
2251(a), the District Court was required to sentence him to at least 180 (and no more than 
360) months in prison.20  Since all parties agreed that Shager’s offense level under the 
Sentencing Guidelines was 40, that his criminal history fell in category I, and that nobody 
requested a departure, the District Court correctly calculated his guideline range at 292-
360 months.21  The court then went through each of the 18 U.S.C. § 3553(a) factors, 
weighed the aggravating and mitigating circumstances, and settled on a sentence which 
was 30 months lower than the bottom of that range.  This individualized assessment showed 
“meaningful consideration of the relevant statutory factors and the exercise of independent 
judgment, based on a weighing of” those factors.22  Because we cannot conclude that “no 
reasonable sentencing court would have imposed” a 262 month sentence, it was 
substantively reasonable as well.23 
 
19 See Fed. R. Crim. P. 32 (i)(3)(A) (providing that the court “may accept any undisputed 
portion of the presentence report as a finding of fact”).  Shager acknowledges that he did 
in fact discuss his final PSR with his attorney prior to sentencing.  See United States v. 
Senke, 986 F.3d 300, 316-17 (3d Cir. 2021). 
20 See 18 U.S.C. § 2251(e). 
21 See United States v. Cora-Alicea, 100 F.4th 478, 482 (3d Cir. 2024) (noting that 
“[d]istrict courts must first calculate the initial Guidelines range, then rule on any motions 
to depart from the initial range and state the final, departed-to range, and—finally—
exercise discretion to choose a sentence within or outside the final range based on the 
sentencing factors. . . .”). 
22 See United States v. Grier, 475 F.3d 556, 571-72 (3d Cir. 2007) (en banc). 
23 See United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc). 
8 
 
IV. 
 Having concluded that the attorneys’ Anders brief was sufficient, we are not 
required to consider issues identified for the first time in Shager’s pro se brief.24  But even 
if we were, it would make no difference. 
Shager’s brief largely focuses on his belief that his lawyer was ineffective, and his 
allegations that the Pennsylvania and federal governments withheld and modified 
evidence.  In at least some instances, these allegations rest on Shager’s apparent misreading 
of the documents he purports to rely on.  But, even assuming they have merit, we are the 
wrong court to hear them.  
Because this is a direct appeal, we are usually limited to evidence that is already in 
the record.25  And because that is almost never enough to judge how effective a lawyer 
was, we “have a firmly established general policy against entertaining ineffective 
assistance of counsel claims on direct appeal.”26  Here, Shager himself acknowledges that 
an evidentiary hearing would be needed to address any of his allegations.  His option for 
raising them is to file a post-conviction motion under 28 U.S.C. § 2255, following the 
procedures (and timeline) laid out in that statute.27   
V. 
 
24 See Langley, 52 F.4th at 575. 
25 See generally In re Capital Cities/ABC, Inc.’s Application for Access to Sealed 
Transcripts, 913 F.2d 89, 96 (3d Cir. 1990). 
26 Ellison v. Rogers, 484 F.3d 658, 661 (3d Cir. 2007) (cleaned up).  
27 See United States v. Thornton, 327 F.3d 268, 272 (3d Cir. 2003).   
9 
 
For the above reasons, we conclude that no non-frivolous ground exists for an 
appeal of Luke Shager’s sentence.  We will grant his attorney’s motion to withdraw and 
affirm Shager’s conviction and sentence. 


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