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USDC for the Western District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
5-12-2025 
Satish Emrit v. Elon Musk 
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Recommended Citation 
"Satish Emrit v. Elon Musk" (2025). 2025 Decisions. 391. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/391 
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ALD-127                    NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 25-1221 
___________ 
 
SATISH EMRIT, Presidential Candidate Number P60005535, 
Presidential Committee/Separate Segregated Fund (SSF) Number C00569897 
doing business as United Emrits of America, 
                                                                    Appellant 
 
v. 
 
ELON MUSK; VIVEK RAMASWAMY; SPEAKER OF THE HOUSE MIKE 
JOHNSON; DEPARTMENT OF GOVERNMENT EFFICIENCY 
____________________________________ 
 
On Appeal from the United States District Court 
for the Western District of Pennsylvania  
(D.C. Civil Action No. 2:25-cv-00061) 
District Judge:  Honorable Nora B. Fischer 
____________________________________ 
 
Submitted on a Motion to Proceed In Forma Pauperis,  
for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B), or for  
Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 
 
April 17, 2025 
 
Before:  BIBAS, PORTER, and MONTGOMERY-REEVES, Circuit Judges 
 
(Opinion filed May 12, 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 
 Pro se appellant Ronald Satish Emrit commenced this civil rights action in the 
District Court against Elon Musk, Vivek Ramaswamy, Speaker of the House Mike 
Johnson, and the Department of Government Efficiency.  He asserted that the defendants 
were trying to make budget cuts to federal programs that would be harmful to African 
Americans and underprivileged Americans.  He sought $500,000,000,000 in damages and 
injunctive relief.  
Upon screening, the District Court stated that Emrit had filed dozens of similar 
lawsuits throughout the country, including in the United States District Court for the 
Western District of Oklahoma.  The District Court in that case had dismissed the 
complaint as frivolous and for failure to state a claim.  See Presidential Candidate No. 
P60005535 v. Musk, No. CIV-25-00022-JD, 2025 WL 84988, at *4 (W.D. Okla. Jan. 13, 
2025).  The District Court in this case adopted that court’s analysis and dismissed the 
complaint under 28 U.S.C. § 1915(e)(2)(B)(i)-(ii).  Emrit appealed.  
We have jurisdiction pursuant to 28 U.S.C. § 1291.  We exercise plenary review 
over the District Court’s sua sponte dismissal under § 1915(e)(2)(B).  See Dooley v. 
Wetzel, 957 F.3d 366, 373 (3d Cir. 2020).   
We will dismiss the appeal because it lacks an arguable basis.  See Neitzke v. 
Williams, 490 U.S. 319, 325 (1989).1  We agree with the district courts that the complaint 
suffered from numerous defects, including that Emrit did not allege how he had been 
 
1 Emrit’s motion to proceed in forma pauperis is granted.  See Sinwell v. Shapp, 536 F.2d 
15, 19 (3d Cir. 1976). 
 
3 
 
personally injured by the defendants’ alleged conduct so as to support Article III 
standing.  See Freedom From Religion Found. Inc. v. New Kensington Arnold Sch. Dist., 
832 F.3d 469, 476 (3d Cir. 2016) (explaining that, in applying the standing rules, a 
court’s “primary project is to separate those with a true stake in the controversy from 
those asserting the generalized interest of all citizens in constitutional governance” 
(internal quotation marks omitted)).  Given the nature of Emrit’s allegations, we conclude 
that providing him with leave to amend his complaint would have been futile.  See 
Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). 
Accordingly, we will dismiss the appeal.  


Satish Emrit v. Elon Musk

USDC for the Eastern District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
5-12-2025 
Stony Battery RD Property Owner LLC v. QVC Inc 
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Recommended Citation 
"Stony Battery RD Property Owner LLC v. QVC Inc" (2025). 2025 Decisions. 393. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/393 
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NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
______________ 
No. 24-2024 
______________ 
STONY BATTERY RD PROPERTY OWNER LLC; STONY CORP. BLVD. LLC, 
 
v. 
 
QVC, INC., 
 Appellant 
______________ 
On Appeal from the United States District Court 
for the Eastern District of Pennsylvania  
(D.C. Civil No. 5:23-cv-00518) 
District Judge:  Honorable John M. Gallagher 
______________  
Submitted Under Third Circuit L.A.R. 34.1(a) 
May 2, 2025 
 
Before: KRAUSE, BIBAS, and MONTGOMERY-REEVES, Circuit Judges. 
 
(Opinion filed: May 12, 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 
 
MONTGOMERY-REEVES, Circuit Judge. 
The parties to this appeal entered a transaction and signed a covenant not to sue.  
But things went awry, so Stony Battery1 sued QVC, Inc. (“QVC”) and QVC countersued 
for breach of the covenant.  Relevant to this appeal, the District Court held that Stony 
Battery did not breach the covenant by filing its complaint, and we agree that the 
covenant did not bar Stony Battery’s suit.  Thus, we will affirm the judgment of the 
District Court.   
I. BACKGROUND 
QVC and Stony Battery are parties to the Agreement of Sale (the “Sale 
Agreement”) through which QVC sold Stony Battery a warehouse and the equipment 
within it.2  The Sale Agreement also contained a release and covenant not to sue.  The 
covenant barred Stony Battery from suing QVC if Stony Battery’s claims were connected 
“in any way . . . with the Assets” included in the Sale Agreement.  App. 76.  But the 
covenant also contained a carveout, which permitted suits “for any breach of [QVC’s] 
obligations set forth in th[e Sale] Agreement.”  Id.  After signing the Sale Agreement, 
 
1 This opinion refers collectively to Appellees Stony Battery RD Property Owner LLC 
and Stony Corp. Blvd. LLC as “Stony Battery.” 
2 The Sale Agreement dated November 6, 2019, was between QVC and an entity called 
1000 Stoney Battery Road, LLC.  Later, those parties and Stony Battery—that is, the 
Plaintiffs-Appellees in this action—entered into a separate agreement that essentially 
substituted Stony Battery for 1000 Stoney Battery Road, LLC as the buyer of the assets at 
the heart of this lawsuit and made Stony Battery party to the Sale Agreement for that 
purpose.  For simplicity, we reference in this opinion only the November 6, 2019 Sale 
Agreement, and refer to Stony Battery and QVC as the contracting parties. 
3 
 
QVC and Stony Battery agreed to a temporary leaseback arrangement (the “Lease”), 
through which Stony Battery leased to QVC the warehouse and equipment. 
To handle the warehouse’s inventory, QVC relied on equipment called Materials 
Handling Equipment (“MHE”), which QVC included in the Sale Agreement.  To operate, 
the MHE required specialized warehouse-management software.  QVC ran the MHE on 
software called WMS21, while Stony Battery used another kind of software, called WMi, 
at another of its facilities.  Stony Battery initially hoped to use WMi on the MHE it 
purchased from QVC.  But as time went on, Stony Battery became interested in running 
QVC’s WMS21 software, apparently because Stony Battery’s plan to implement WMi 
became delayed.  Stony Battery could not run WMS21 without QVC’s permission, so 
Stony Battery and QVC discussed a potential licensing arrangement.  Ultimately, the 
parties did not reach an agreement.  At the end of the Lease, QVC vacated the warehouse 
and left Stony Battery the MHE, but wiped WMS21 from the warehouse’s computer 
systems.  Without any warehouse-management software, the MHE was functionally 
inoperable, though in good physical condition. 
Stony Battery then sued QVC for breach of contract and several related equitable 
claims, on the ground that the MHE it had contracted for was inoperable.  QVC answered 
and counterclaimed for breach of contract, alleging that Stony Battery’s suit violated the 
Sale Agreement’s covenant not to sue.  Following discovery, Stony Battery moved for 
summary judgment on QVC’s counterclaim.  The District Court granted Stony Battery’s 
motion, holding (as relevant here) that the covenant’s carveout permitting actions “for 
any breach of [QVC’s] obligations set forth in [the Sale] Agreement,” App. 76, allowed 
4 
 
Stony Battery to bring its suit, App. 16.  QVC timely appealed. 
II. DISCUSSION3 
On appeal, QVC argues that the covenant’s carveout does not permit Stony 
Battery’s claims because the carveout applies only to “an actual breach of the Sale[] 
Agreement,” and Stony Battery’s claims were not meritorious.4  Opening Br. 23 
(emphasis added).  We disagree with QVC’s interpretation of the covenant.5 
 
3 The District Court had jurisdiction under 28 U.S.C. § 1332.  We have jurisdiction under 
28 U.S.C. § 1291.  We review de novo a District Court’s disposition of a motion for 
summary judgment, “meaning we review anew the District Court’s summary judgment 
decisions, applying the same standard it must apply.”  Ellis v. Westinghouse Elec. Co., 
11 F.4th 221, 229 (3d Cir. 2021).  “To prevail on a motion for summary judgment, the 
moving party must demonstrate ‘that there is no genuine issue as to any material fact and 
that the moving party is entitled to a judgment as a matter of law.’”  Rivas v. City of 
Passaic, 365 F.3d 181, 193 (3d Cir. 2004) (quoting Fed. R. Civ. P. 56(c)).  Any 
“inferences to be drawn from the underlying facts must be viewed in the light most 
favorable to the party opposing the motion.”  Matsushita Elec. Indus. Co. v. Zenith Radio 
Corp., 475 U.S. 574, 587 (1986) (citation and alterations omitted). 
4 Stony Battery argues that QVC failed to preserve its appellate arguments because 
“QVC’s briefing before the District Court lack[ed] the detail necessary” to do so.  
Answering Br. 4.  That argument lacks merit.  “[P]reserving an argument ‘does not 
demand the incantation of particular words; rather, it requires that the lower court be 
fairly put on notice as to the substance of the issue.’”  In re Bestwall LLC, 47 F.4th 233, 
242 (3d Cir. 2022) (quoting Nelson v. Adams USA, Inc., 529 U.S. 460, 469 (2000)).  The 
“substance of the issue” in the District Court was whether the covenant not to sue barred, 
as a matter of law, Stony Battery’s lawsuit, and thus whether summary judgment for 
QVC was appropriate.  The “District Court and the parties” were “on notice” of that 
claim, which is the “same . . . theory [QVC] pursues before us,” even if, in light of the 
District Court’s decision, QVC has developed its arguments more extensively on appeal.  
Id. at 242–43. 
5 The District Court also held that the non-suit covenant did not encompass Stony 
Battery’s claims because the covenant applied only to suits “over the condition of the 
assets purchased” through the Sale Agreement, while Stony Battery’s complaint sought 
“to enforce the transfer of assets allegedly contracted for.”  App. 17 (emphasis added).  
 
5 
 
Under Pennsylvania law, when “contractual terms are clear and unambiguous on 
their face, then such terms are deemed to be the best reflection of the intent of the 
parties.”  Pennsylvania ex rel. Kane v. UPMC, 129 A.3d 441, 463 (Pa. 2015).  “A 
contract’s terms are considered ambiguous if they are subject to more than one 
reasonable interpretation when applied to a particular set of facts.”  Id. (internal quotation 
marks and citation omitted).  The carveout to the Sale Agreement’s covenant not to sue is 
unambiguous.  Stony Battery expressly did not give up the ability “to sue [QVC] for any 
breach of [QVC’s] obligations set forth in th[e] [Sale] Agreement.”  App. 76 (emphasis 
added).  By its terms, the carveout is not limited to some claims for breach of the Sale 
Agreement but not others; the word “any” sweeps in every potential claim for a breach of 
the Sale Agreement, regardless of form or merit.  See United States v. Gonzales, 520 U.S. 
1, 5 (1997) (“Read naturally, the word ‘any’ has an expansive meaning, that is, ‘one or 
some indiscriminately of whatever kind.’” (quoting Webster’s Third New International 
Dictionary 97 (1976)); Babb v. Wilkie, 589 U.S. 399, 405 n.2 (2020); Any, Merriam-
Webster, https://www.merriam-webster.com/dictionary/any (last visited May 2, 2025) 
(defining “any” as “used to indicate one selected without restriction”).  So, if Stony 
Battery claims that QVC breached an obligation under the Sale Agreement, the carveout 
allows Stony Battery to bring the claim without breaching the covenant.  That is “the 
 
We need not address QVC’s challenges to this holding because we affirm on other 
grounds.     
6 
 
plain meaning of the language expressed” in the parties’ bargain.  Steuart v. McChesney, 
444 A.2d 659, 662 (Pa. 1982).   
Stony Battery’s complaint alleged that QVC’s failure to deliver the MHE 
complete with warehouse-management software breached QVC’s express and implied 
obligations under the Sale Agreement.6  Those claims are excluded from the covenant not 
to sue.  And alleging them does not breach the Sale Agreement.  
QVC points out that Stony Battery’s claims ultimately proved unsuccessful.  
According to QVC, this means that the District Court’s reading of the carveout makes the 
non-suit covenant superfluous and leads to absurd results that Pennsylvania law disfavors 
because it allows Stony Battery to file “non-meritorious” and “frivolous claim[s]”.  
Opening Br. 24.  Not so.  The carveout applies only to breaches of the Sale Agreement—
other claims remain barred—so the District Court’s reading would not cause the carveout 
to swallow the covenant.  Nor does the carveout absurdly permit “frivolous claim[s].”  Id.  
Even with no covenant at all, Stony Battery would, like any other litigant, have been 
subject to sanctions for filing a frivolous suit.  See Fed. R. Civ. P. 11.  To the extent that 
 
6 Stony Battery also asserted claims for promissory estoppel, unjust enrichment, and 
conversion—which, unlike the breach-of-contract and breach-of-implied-covenant 
claims, do not expressly reference the Sale Agreement.  QVC has not argued that there is 
any distinction between the claims for purposes of the covenant not to sue or the 
carveout; instead, it has argued that the covenant only applies to meritorious claims for 
breach of the Sale Agreement.  See Opening Br. 23 (“[The carveout] permits Stony 
Battery to sue only for an actual breach of the Sale[] Agreement.”).  In any event, Stony 
Battery’s claims for promissory estoppel, unjust enrichment, and conversion stem from 
its fundamental argument that it was owed a contractual obligation by QVC deriving 
from the Sale Agreement. 
7 
 
QVC wanted to further limit Stony Battery’s freedom to sue only to claims adjudicated 
successful on the merits, or to some otherwise-defined category of meritorious claims, 
QVC and its counsel could have negotiated such language.  But QVC did not.  Instead, 
the parties excepted “any” claim that QVC breached the Sale Agreement.  App. 76. 
Where, as here, a “contract evidences care in its preparation, it will be presumed 
that its words were employed deliberately and with intention.”  Steuart, 444 A.2d at 662 
(quotation omitted).  We therefore “decline to read an ambiguity into an agreement that 
could easily have been addressed by [QVC] within its express terms.”  Wert v. 
Manorcare of Carlisle PA, LLC, 124 A.3d 1248, 1261 (Pa. 2015); see also M & G 
Polymers USA, LLC v. Tackett, 574 U.S. 427, 440 (2015) (noting “the principle of 
contract law that the written agreement is presumed to encompass the whole agreement 
of the parties”).  Because the Sale Agreement’s covenant not to sue unambiguously 
carved out claims for any breaches of the Sale Agreement, Stony Battery’s claims, 
though unsuccessful, were permitted, and the District Court properly granted summary 
judgment for Stony Battery on QVC’s counterclaim. 
III. CONCLUSION  
For the foregoing reasons, we will affirm the judgment of the District Court.  


Stony Battery RD Property Owner LLC v. QVC Inc

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
5-12-2025 
Glenda Brooks v. Harrisburg Area Community College 
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Recommended Citation 
"Glenda Brooks v. Harrisburg Area Community College" (2025). 2025 Decisions. 394. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/394 
This May 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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NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
____________ 
 
No. 24-1800 
____________ 
 
GLENDA DIANNE BROOKS, 
Appellant 
 
v. 
 
HARRISBURG AREA COMMUNITY COLLEGE 
____________ 
 
On Appeal from the United States District Court 
for the Middle District of Pennsylvania 
(D.C. No. 1:23-cv-01169) 
District Judge:  Honorable Sylvia H. Rambo 
____________ 
 
Argued:  March 26, 2025 
 
Before:  BIBAS, PHIPPS, and AMBRO, Circuit Judges 
 
(Filed: May 12, 2025) 
____________ 
 
Christopher E. Fisher  [ARGUED] 
SAIDIS SHULTZ & FISHER 
100 Sterling Parkway 
Suite 300 
Mechanicsburg, PA 17050  
 
 Counsel for Appellant 
 
Hannah M. Schroer   [ARGUED] 
David J. Freedman 
BARLEY SNYDER 
126 E King Street 
Lancaster, PA 17602 
 
 Counsel for Appellee 
 
2 
____________ 
 
OPINION* 
____________ 
PHIPPS, Circuit Judge. 
On July 13, 2023, a faculty career counselor and adjunct professor, Glenda Dianne 
Brooks, sued her employer, Harrisburg Area Community College, in federal court for age 
discrimination based on events occurring as early as July 2019.  See 28 U.S.C. § 1331; 
29 U.S.C. § 626(c)(1).  A condition precedent for bringing her claim under the Age 
Discrimination in Employment Act is the filing of a ‘charge’ with the Equal Employment 
Opportunity Commission within 300 days of the allegedly discriminatory employment 
action.  See 29 U.S.C. § 626(d)(1); Hildebrand v. Allegheny County, 757 F.3d 99, 111 
(3d Cir. 2014) (“A plaintiff’s obligation to timely file with the EEOC is a condition 
precedent to filing suit under the ADEA.”); see also id. (recognizing that ADEA claims for 
conduct occurring in Pennsylvania are subject to the Act’s 300-day filing period given 
Pennsylvania’s status as a deferral state (first citing 29 U.S.C. § 626(d)(2); then citing id. 
§ 633(b); and then citing Watson v. Eastman Kodak Co., 235 F.3d 851, 854 (3d Cir. 
2000))).  Although conditions precedent may be pleaded generally, see 
Fed. R. Civ. P. 9(c), in her one-count amended complaint for age discrimination, Brooks 
specifically alleged that she filed a “claim” with the EEOC on October 1, 2019.  Am. 
Compl. ¶ 23 (JA71).   
The specific use of the term ‘claim’ instead of ‘charge’ in the amended complaint 
leaves some ambiguity as to the pleading of the condition precedent because the term 
‘charge’ carries a specific meaning in the EEOC context.  See generally Edelman v. 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
3 
Lynchburg Coll., 535 U.S. 106 (2002) (examining the charge-filing requirement of 
Title VII).  EEOC regulations require that a charge of age discrimination “be in writing,” 
that it “name the prospective respondent,” and that it “generally allege the discriminatory 
act(s).”  29 C.F.R. § 1626.6; see also id. § 1626.8(a)(1)–(5) (providing five other technical 
requirements for a charge); cf. id. § 1626.6 (“Charges received in person or by telephone 
shall be reduced to writing.”).  In addition, the Supreme Court, in reliance on three 
deference doctrines – Chevron, Auer, and Skidmore – reasoned that to qualify as a charge, 
a filing “must be reasonably construed as a request for the agency to take remedial action 
to protect the employee’s rights or otherwise settle a dispute between the employer and the 
employee.”  Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008); see Holender v. 
Mut. Indus. N. Inc., 527 F.3d 352, 355 (3d Cir. 2008) (illuminating Holowecki’s multi-step 
deference scheme); see also Michelson v. Exxon Rsch. & Eng’g Co., 808 F.2d 1005, 1010 
(3d Cir. 1987) (explaining that the written filing must “manifest[] an intent to activate the 
Act’s machinery” (quoting Bihler v. Singer Co., 710 F.2d 96, 99 (3d Cir. 1983))).1 
Against that legal backdrop, HACC moved to dismiss the amended complaint for 
failure to state a claim for relief.  See Fed. R. Civ. P. 12(b)(6).  Its memorandum in support 
of that motion included three exhibits: a formal charge that Brooks filed with the EEOC on 
April 12, 2023; a right-to-sue letter issued by the EEOC on April 14, 2023; and an inquiry 
form that Brooks submitted to the EEOC on October 1, 2019.  Based on the last of those 
documents – the inquiry form – HACC argued that a charge had not been filed on 
October 1, 2019.  Rather, according to HACC, the inquiry form submitted on that date was 
a pre-charge document that did not constitute a charge because it did not request that the 
 
1 Despite intervening Supreme Court case law on two of those doctrines, see Loper Bright 
Enters. v. Raimondo, 603 U.S. 369 (2024) (Chevron); Kisor v. Wilkie, 588 U.S. 558 (2019) 
(Auer), no party disputes the continuing precedential force of Holowecki’s request-to-act 
requirement.   
4 
EEOC take any remedial action as required under Holowecki.  See Holowecki, 552 U.S. at 
402.  Thus, HACC asserted, Brooks failed to administratively exhaust her ADEA claim 
within 300 days.   
In opposing HACC’s motion, Brooks submitted two additional documents not 
mentioned in or attached to her amended complaint.  The first consisted of the notes taken 
by an EEOC representative from his interview with Brooks on January 14, 2020, as well 
as the representative’s conversation with her attorney two days later.  The second was the 
EEOC’s activity log for her case, which recorded filings and contacts among Brooks, her 
attorney, and the agency in January and February 2020.  Those documents indicated that 
in January 2020, an EEOC representative communicated that he would be finalizing a 
charge for Brooks’s signature.  Based on that information, Brooks argued not that the 
inquiry form was alone sufficient for a charge but rather that the inquiry form, “coupled 
with” the interview notes and the activity log, evidenced a request that the EEOC take 
remedial action and that she therefore submitted a charge on October 1, 2019.  Br. in Opp’n 
to Def.’s Mot. to Dismiss 8 (D.C. ECF No. 11).   
In its reply brief, HACC countered that those additional documents could not 
transform the inquiry form into a valid charge.  According to HACC, because those 
documents did not contain an express request for the EEOC to take remedial action, Brooks 
failed to administratively exhaust her claim within 300 days.   
In evaluating HACC’s motion to dismiss, the District Court considered the 
allegations in the amended complaint and the documents attached to the motion-to-dismiss 
papers.  See Brooks v. Harrisburg Area Cmty. Coll., 2024 WL 1333376, at *1 n.1 (M.D. Pa. 
Mar. 28, 2024).  From its review of those materials, the District Court determined that 
Brooks had not made a request for the EEOC to take remedial action within 300 days of 
5 
the complained-of discriminatory actions.  See id. at *3–4 (relying on Holowecki, 552 U.S. 
at 404).  It then dismissed her ADEA claim with prejudice.   
Through a timely notice of appeal, Brooks invoked this Court’s appellate 
jurisdiction to challenge that final decision.  See 28 U.S.C. § 1291.   
On de novo review, the application of one principle is dispositive: a “complaint may 
not be amended by the briefs in opposition to a motion to dismiss.”  Gov’t Emps. Ins. Co. 
v. Mount Prospect Chiropractic Ctr., P.A., 98 F.4th 463, 472 (3d Cir. 2024) (quoting 
Pennsylvania ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988)).  And 
here, in an effort to save her amended complaint, Brooks has not attempted to show that 
she made a request as of October 1, 2019, for the EEOC to take remedial action.  Instead, 
in both the District Court and this Court, Brooks has pivoted to argue that the October 1 
inquiry form “coupled with” or “combined with” the interview notes and the activity log 
from January 2020 constituted a charge.  Br. in Opp’n to Def.’s Mot. to Dismiss 8 (D.C. 
ECF No. 11); Appellant’s Opening Br. 18.  Moreover, on appeal she now argues in the 
alternative that even without reference to the inquiry form, her January interview satisfied 
the charge-filing requirement.  But even if proven, her contentions would place the date of 
a submitted charge in January 2020, and thus she advocates for a position different than 
the allegations in her amended complaint – that she filed a charge on October 1, 2019.  But 
Brooks cannot through motion practice amend the date on which her pleading alleges that 
she filed a charge, Gov’t Emps. Ins. Co., 98 F.4th at 472, so she must establish that she 
filed a charge by October 1, 2019. 
None of the documents attached to the motion-to-dismiss papers suggest that she 
filed a charge as of that date.  The inquiry form itself does not contain the requisite request 
6 
that the EEOC take remedial action.  See Hildebrand, 757 F.3d at 112–13.2  And it does 
not matter whether the documents from January 2020 attached to her motion papers 
(supposing they could be considered at the motion-to-dismiss stage) would – either in 
combination with the inquiry form or by themselves – amount to the filing of a charge in 
January 2020.  Rather, to salvage her claim, those documents would have to demonstrate 
that Brooks made a request that the EEOC take remedial action on October 1, 2019, and 
they do not show that.  Accordingly, we will affirm the District Court’s final order 
dismissing the claim with prejudice.3, 4 
 
2 See also Hildebrand, 757 F.3d at 112 n.2 (“[W]e are satisfied that the Intake 
Questionnaire was properly before the District Court. . . .  [I]t directly corroborated 
Hildebrand’s claim that he had satisfied the conditions precedent to filing suit under the 
ADEA.”); Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (“In deciding a 
Rule 12(b)(6) motion, a court must consider only the complaint, exhibits attached to the 
complaint, matters of public record, as well as undisputedly authentic documents if the 
complainant’s claims are based upon these documents.”). 
3 It is true that under this Court’s precedents “district courts must offer amendment [in civil 
rights cases] – irrespective of whether it is requested – when dismissing a case for failure 
to state a claim unless doing so would be inequitable or futile.”  Mullin v. Balicki, 875 F.3d 
140, 151 (3d Cir. 2017) (alteration in original) (quoting Fletcher-Harlee Corp. v. Pote 
Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007)); cf. Fed. R. Civ. P. 15(a)(2) 
(stating that leave to amend should be freely given “when justice so requires”).  That 
principle does not allow amendments ad infinitum, but here it is not necessary to assess 
whether Brooks should have been afforded an opportunity to amend her complaint a second 
time because she does not raise that argument on appeal.  See Fed. R. App. P. 28(a)(8); 
Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877 F.3d 136, 145 (3d Cir. 2017) 
(“[W]e have consistently refused to consider ill-developed arguments or those not properly 
raised and discussed in the appellate briefing.”).  See generally Vorchheimer v. 
Philadelphian Owners Ass’n, 903 F.3d 100, 113 (3d Cir. 2018) (concluding leave to amend 
was not required under this principle after a plaintiff had already “amended her complaint 
once and did not move to amend again or suggest what she might add”); Mullin, 875 F.3d 
at 150 (“A decision on whether to permit amendment of the pleadings generally falls within 
the District Court’s discretion.”).   
4 Judge Bibas joins the majority in full.  He would also affirm for a separate reason: Even 
if it were permissible to consider both the inquiry form and the interview notes, in his view 
these together do not add up to a charge of discrimination.  To be a charge, a filing “must 
be reasonably construed as a request for the agency to take remedial action to protect the 
employee’s rights or otherwise settle a dispute between the employer and the employee.”  
Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008).  Because the Commission “is 
 
7 
 
 
not required to treat every completed [inquiry form] as a charge,” we know that something 
more is required.  Id. at 405.  Here, Brooks filed a form but did not request Commission 
action.  The headings on the form that she submitted say “potential charging party,” not 
charging party.  App. 58–59.  And the interview notes are similarly bereft of any request 
from Brooks for Commission action.  
 
1 
AMBRO, Circuit Judge, concurring 
I join the majority’s opinion. I write separately, however, to explain my view that 
the October inquiry form and January interview notes together would have formed a 
charge by Brooks against her employer, Harrisburg Area Community College (HACC), if 
she had so pleaded.  
To be a charge, a filing must satisfy two conditions. First, it must comply with cer-
tain regulatory requirements—for example, be in writing, name the prospective respond-
ent, and generally allege discriminatory acts. See 29 C.F.R §§ 1626.6, 1626.8(b). The par-
ties here do not dispute this prong. Second, and more to the point, the filing must, “by a 
reasonable construction of its terms,” request that “the agency … activate its machinery 
and remedial processes.” Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008). We 
evaluate the filing “from the standpoint of an objective observer.” Id. This is a “permis-
sive standard” that allows a “wide range of documents” to count as charges. Id. “[A] 
charge can be a form, easy to complete, or an informal document, easy to draft.” Id. 
at 403. The Supreme Court has explained that this low bar is “consistent with the design 
and purpose of the ADEA,” id. at 402, which establishes a “remedial scheme in which 
laypersons … are expected to initiate the process.” EEOC v. Com. Off. Prods. Co., 486 
U.S. 107, 124 (1988).1 
 
1 The District Court held, citing Holowecki and our decision in Hildebrand v. Allegheny 
Cnty., 757 F.3d 99, 113 (3d Cir. 2014), that only contemporaneously filed materials can 
form a charge. The documents in those cases were filed contemporaneously, but neither 
suggests that they must be. As we explained in Holender v. Mutual Industries North Inc., 
filings count as a charge when they (1) provide certain information required by EEOC 
regulations and (2) are reasonably construed as a request for the EEOC to vindicate the 
employee’s rights. 527 F.3d 352 (3d Cir. 2008). Neither Holowecki nor Hildebrand im-
poses requirements beyond that. 
 
2 
Judge Bibas would affirm the District Court’s decision on the additional ground 
that “Brooks filed a form but did not request Commission action,” and thus failed to sat-
isfy the second charge condition. Maj. Op. 7 n.4. I disagree. The question is not whether 
Brooks expressly requested agency action. “There is no need to require … some magic 
combination of words explicitly seeking agency action.” Holender, 527 F.3d at 357. The 
question is instead whether an objective observer would have understood Brooks’s filings 
as a request for the EEOC to vindicate her rights. I believe that one would.  
Brooks provided the EEOC’s investigator with additional factual detail about her 
allegations well beyond what she included in her initial inquiry form. She also informed 
him that she was represented by counsel and that her lawyer had asked HACC to send 
him all information pertaining to her employment and to preserve her employment rec-
ords. And, crucially, Brooks’s lawyer instructed the EEOC investigator to “draft the 
charge.” App. 55. We have applied Holowecki to conclude that a plaintiff who completes 
an intake questionnaire and merely checks a box stating, “I want to file a charge of dis-
crimination” “unquestionably files a charge of discrimination.” Hildebrand, 757 F.3d 
at 113. Providing detailed factual allegations and having one’s lawyer expressly request 
that the EEOC write up a charge is no less explicit. 
In my view, a reasonable observer would conclude that someone who (1) filed an 
inquiry form, (2) provided additional factual allegations during an interview with an 
agency investigator, (3) hired a lawyer, (4) instructed her former employer retain docu-
ments in anticipation of litigation, and (5) expressly asked the agency to prepare a 
charge, was requesting that the EEOC activate its remedial machinery. It is of no moment 
that the EEOC did not in fact treat the inquiry form and written interview notes that way. 
See App. 45 (EEOC investigator informing Brooks’s attorney that the agency no longer 
 
3 
prepared charges for complainants represented by counsel and instructing him to com-
plete “blank EEOC Charge forms”). If an objective observer would conclude that the fil-
ing, whatever its form, was a request for the EEOC to vindicate the filer’s rights, then it is 
a charge, no matter how the EEOC treated it. Problems arising “from the EEOC’s ac-
tion, … not from any fault of the alleged victim of age discrimination,” do not matter a 
whit. Holender, 527 F.3d at 357.  
Unfortunately, Brooks never pleaded that the January interview notes counted as 
the charge. To be sure, Federal Rule of Civil Procedure 9(c) permits plaintiffs to plead 
conditions precedent generally. But Brooks specifically pleaded that the October 1, 2019 
inquiry form was the charge, so we cannot consider other documents that she never iden-
tified in the complaint. I thus join the majority in affirming on that narrow ground.  


Glenda Brooks v. Harrisburg Area Community College

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
5-14-2025 
USA v. Raheem Brown 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
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ALD-145        NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 25-1757 
___________ 
 
UNITED STATES OF AMERICA 
 
v. 
 
RAHEEM BROWN, 
    Appellant 
____________________________________ 
 
On Appeal from the United States District Court 
for the Western District of Pennsylvania 
(D.C. Criminal Action No. 2:12-cr-00272-001) 
District Judge:  Honorable Christy Criswell Wiegand 
____________________________________ 
 
Submitted on Appellee’s Motion for Summary Action  
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 
May 8, 2025 
Before: BIBAS, PORTER, and MONTGOMERY REEVES, Circuit Judges 
 
(Opinion filed: May 14, 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 
 
 Raheem Brown appeals pro se from the District Court’s denial of his motion for 
compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i). The Government has filed a 
timely motion for summary affirmance. We will affirm. 
 In 2012, Brown was indicted in the District Court on the following charges: 
(1) possession with intent to distribute heroin; (2) possession of a firearm in furtherance 
of a drug trafficking crime; and (3) possession of a firearm by a convicted felon. He 
subsequently entered into a plea agreement with the Government, agreeing to plead guilty 
to Counts 1 and 2 in exchange for the Government’s dismissal of Count 3. The District 
Court accepted his guilty plea. At sentencing, the District Court determined that Brown 
qualified as a career offender under the advisory Sentencing Guidelines, and that his 
applicable Guidelines range was 262 to 327 months in prison. However, the parties 
jointly recommended (as part of the plea agreement) a prison sentence of only 180 
months, and the District Court adopted that recommendation. Brown did not appeal. He 
later filed a motion under 28 U.S.C. § 2255. The District Court denied the motion and we 
later denied his request for a certificate of appealability.  
 Brown has since filed several motions for compassionate release, all of which 
have been denied by the District Court. In this most recent one, he repeats claims from 
those previous motions and asserts that those claims, coupled with a new claim regarding 
the Bureau of Prisons’ substandard treatment of his ongoing heart conditions, constitute 
extraordinary and compelling reasons for his release. The District Court denied the 
motion, reasoning that even if Brown had established extraordinary and compelling 
reasons for compassionate release, the sentencing factors under 18 U.S.C. § 3553(a) 
 
3 
 
counseled against granting the motion. Brown timely appealed, and the Government has 
moved for summary affirmance. 
We have appellate jurisdiction under 28 U.S.C. § 1291. We review for abuse of 
discretion a district court’s order denying a motion for compassionate release, including 
its determination that the sentencing factors under § 3553(a) do not weigh in favor of 
granting compassionate release. United States v. Pawlowski, 967 F.3d 327, 330 (3d Cir. 
2020). “[W]e will not disturb the District Court’s decision unless there is a definite and 
firm conviction that [it] committed a clear error of judgment in the conclusion it reached 
upon a weighing of the relevant factors.” Id. (cleaned up). We may summarily affirm a 
district court’s decision if the appeal fails to present a substantial question. See 3d Cir. 
L.A.R. 27.4; 3d Cir. I.O.P. 10.6; Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) 
(per curiam).   
The compassionate-release provision states that a district court may reduce a 
defendant’s term of imprisonment if “extraordinary and compelling reasons warrant such 
a reduction.” 18 U.S.C. § 3582(c)(1)(A)(i). Before granting compassionate release, a 
district court must consider “the factors set forth in [18 U.S.C. §] 3553(a) to the extent 
that they are applicable.” Id. § 3582(c)(1)(A). Those factors include the nature and 
circumstances of the offense, the history and characteristics of the defendant, the need for 
the sentence to protect the public from future crimes by the defendant, and the kinds of 
sentences available. See id. § 3553(a). Compassionate release is discretionary, not 
mandatory. Therefore, even if a defendant is eligible, a district court may deny 
compassionate release upon determining that a sentence reduction would be inconsistent 
 
4 
 
with the § 3553(a) factors. See Pawlowski, 967 F.3d at 330.  
We discern no abuse of discretion in the District Court’s conclusion that the 
§ 3553(a) factors weighed against a grant of compassionate release.1 The District Court 
appropriately considered Brown’s “prior convictions that qualified him as a career 
offender,” that his “lengthy criminal history . . . creates a very serious risk of danger to 
the community,” that his current convictions “involved drug trafficking, possession of 65 
grams of heroin, and possession of three firearms,” and that his plea agreement allowed 
him to avoid far lengthier mandatory minimum sentences. ECF No. 161 at 3. We 
therefore do not have “a definite and firm conviction that [the District Court] committed a 
clear error of judgment in the conclusion it reached upon a weighing of the relevant 
factors.” Pawlowski, 967 F.3d at 330 (citation omitted).  
Because this appeal does not present a substantial question, we grant the 
Government’s motion and will summarily affirm the District Court’s judgment. t.2 
 
1 Based on this conclusion, we need not decide whether Brown demonstrated 
“extraordinary and compelling reasons” for his release. 
 
2 Brown’s pending motions are denied. 


USA v. Raheem Brown

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
5-15-2025 
Ingrid Cisneros Martinez v. Attorney General United States of 
America 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
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NOT PRECEDENTIAL 
 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
_____________ 
 
No. 24-2154 
_____________ 
 
INGRID CISNEROS MARTINEZ, J.D.C.M., 
Petitioners 
 
v. 
 
ATTORNEY GENERAL OF THE UNITED STATES OF 
AMERICA 
 
_____________________________________ 
 
On Petition for Review of an Order of the Board of Immigration Appeals 
(Agency Nos. A206-159-453; A206-159-455) 
Immigration Judge:  Steve Mannion 
_____________________________________ 
 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 
April 16, 2025 
(Filed: May 15, 2025) 
 
Before:  Chagares, Chief Judge, Scirica, and Rendell, Circuit Judges. 
_________ 
 
OPINION 
_________ 
 
RENDELL, Circuit Judge. 
 Petitioner Ingrid Martinez Cisneros for review of a Board of Immigration 
Appeals’ (BIA) ruling dismissing her appeal from an Immigration Judge’s (IJ) denial of 
2 
 
her asylum and withholding of removal claims.1 We will deny the petition for review 
because we discern no error in the BIA’s and IJ’s conclusion that Cisneros failed to carry 
her burden of showing that her home country of Peru would be unable or unwilling to 
protect her from unidentified private actors were she to return. 
I. 
 Cisneros is a native and citizen of Peru. Between 1998 and 2007, Cisneros was 
romantically involved with Juan Carlos Camones Huarcayo (“Juan Carlos”) with whom 
she had two children, both now adults. According to Cisneros, Juan Carlos and his family 
were known criminals. Shortly after the birth of their daughter, Cisneros and Juan Carlos 
separated and she moved away. Later, however, Cisneros and her children moved into a 
building owned by Juan Carlos’s family.  
In 2012, Juan Carlos was killed by Peruvian police while he was engaged in an 
armed robbery. Cisneros testified that after Juan Carlos’s death, her family was 
threatened multiple times by men riding motorcycles. Most notably, her family was held 
at gunpoint by unknown men who threatened to kidnap her daughter if Cisneros did not 
pay off a debt that Juan Carlos apparently owed to them. Cisneros reported the incident to 
the police, who proceeded to write a report despite Cisneros not knowing the 
motorcyclists’ names and her inability to identify them beyond noting that they had 
Venezuelan accents. Cisneros claimed that the police requested payment for her personal 
 
1 Martinez’s daughter, J.D.C.M., is a derivative applicant and brings no independent 
claims. 
3 
 
protection. She did not follow up on her report to the police nor has she encountered 
these motorcyclists again. 
 In October 2021, Cisneros and her children entered the United States without 
inspection. They were detained by U.S. Immigration and Customs Enforcement and 
charged with removability. She, along with her daughter, conceded removability but 
applied for asylum, withholding of removal, and Convention Against Torture (CAT) 
protection. The IJ denied Cisneros’s application, finding that (1) she failed to demonstrate 
that she had been persecuted, (2) the purported particular social group on which she 
based her claim was not cognizable for asylum or withholding purposes, and (3) she 
failed to establish that the Peruvian government was unable or unwilling to control her 
purported persecutors. On appeal, the BIA agreed with the IJ’s determination that her 
purported particular social group was not cognizable and found no clear error in the IJ’s 
determination that Cisneros failed to establish that the Peruvian government was unable 
or unwilling to control her feared third-party persecutors.2 The BIA did not reach the 
question of whether Cisneros was subject to actual past persecution. She then petitioned 
for review. 
  
 
2 Cisneros did not challenge the IJ’s denial of the CAT claim on appeal. 
4 
 
II.3 
 Cisneros challenges various aspects of the IJ and BIA’s decisions. She claims that 
(1) the IJ erred in finding that she did not experience past persecution, (2) the IJ and BIA 
erred in concluding that the particular social group was not cognizable, and (3) the IJ and 
BIA erred in finding that she failed to meet her burden in establishing that the Peruvian 
government was unable and unwilling to protect her. Because the BIA’s conclusion 
regarding whether Cisneros met her burden of establishing that the Peruvian government 
was unable and unwilling to protect her is dispositive, we need not reach the past 
persecution or particular social group aspects of her case. 
 Where the BIA issues a decision on the merits, we review the BIA’s decision. Li v. 
Att’y Gen. U.S., 400 F.3d 157, 162 (3d Cir. 2005). Where the BIA relies on and adopts 
the IJ’s decision, we review both the BIA’s and IJ’s decisions. He Hun Chen v. Ashcroft, 
376 F.3d 215, 222 (3d Cir. 2004). Here, the BIA referenced and adopted all factual 
findings of the IJ, thus, we review both the BIA and IJ’s decisions. The BIA’s 
determinations must be upheld if “supported by reasonable, substantial, and probative 
evidence on the record considered as a whole.” Kayembe v. Ashcroft, 334 F.3d 231, 234 
(3d Cir. 2008). We reverse only when “the evidence is such that a reasonable factfinder 
would be compelled to conclude otherwise.” Chavarria v. Gonzalez, 446 F.3d 508, 515 
(3d Cir. 2006). We review the BIA’s legal conclusions de novo. Toussaint v. Att’y Gen. 
U.S., 455 F.3d 409, 413 (3d Cir. 2006) (citation omitted).  
 
3 We have jurisdiction to review final orders of removal under 8 U.S.C. § 1252(a)(1).  
 
5 
 
To qualify for asylum, an applicant must establish, among other things, either (1) 
“past persecution on account of a protected ground, which creates a rebuttable 
presumption of a well-founded fear of future persecution,” or (2) “a well-founded fear of 
future persecution on account of a protected ground without regard to past persecution.” 
Hernandez Garmendia v. Att’y Gen. U.S., 28 F.4th 476, 482 (3d Cir. 2022) (citing 8 
C.F.R. § 1208.13(b)). To obtain withholding of removal, the applicant must “establish[] a 
‘clear probability’ of persecution upon removal.” Saban-Cach v. Att’y Gen. U.S., 58 F.4th 
716, 724 (3d Cir. 2023). This requires consideration of whether the applicant has 
“show[n] that it is more likely than not that s/he would be persecuted if returned home.” 
Id. 
When the alleged persecutor is a private actor, even if the applicant can establish 
likely persecution, she must also show that the government is “unable or unwilling to 
control” the persecutor. Doe v. Att’y Gen. U.S., 956 F.3d 135, 142 (3d Cir. 2020). “[T]he 
unable-or-unwilling-to-control test evaluates the government’s ability and willingness to 
control private actors . . . with respect to the specific applicant seeking relief.” Galeas 
Figueroa v. Att’y Gen. U.S., 998 F.3d 77, 89 (3d Cir. 2021). Where an applicant’s home 
government has not been provided with information to permit it to address the actions of 
private actors, its failure to investigate or intervene does not, standing alone, necessarily 
establish that it is “unable or unwilling” to control those private actors.4  
 
4 See, e.g., Doe v. Holder, 736 F.3d 871, 878 (9th Cir. 2013) (“[U]nwillingness or 
inability to control persecutors is not demonstrated simply because the police ultimately 
were unable to solve a crime or arrest the perpetrators, where the asylum applicant failed 
 
6 
 
 In this case, the BIA and IJ focused on several pieces of evidence demonstrating 
that Cisneros had not shown that the Peruvian government was unable or unwilling to 
protect her from future persecution. Among other things, the BIA and IJ noted that when 
Cisneros went to the police after the incident with the purportedly Venezuelan 
motorcyclists, the police accepted her complaint and wrote a report. And while the police 
did not apparently do anything else beyond take the report, the BIA observed that 
Cisneros was unable to provide the police with any identifying information that would 
aid in apprehending the motorcyclists. Indeed, she admitted she could not provide names 
or identifying characteristics because the individuals were wearing motorcycle helmets. 
While she reported the assailants had Venezuelan accents, this was not very helpful as 
she admitted that “[t]here’s a lot of Venezuelans in Peru, there’s a lot of them, and 
they’re involved in bad things.” AR 167. Given this lack of information, the police’s 
failure to investigate the incident further did not demonstrate that the Peruvian 
government was unwilling or unable to control the private actors. The BIA and IJ’s 
finding that Cisneros did not meet her burden of showing the government’s unwillingness 
or inability was, therefore, supported by substantial evidence. 
 
to provide the police with sufficiently specific information to permit an investigation or 
an arrest.”); see also Samu v. Att’y Gen. U.S., 245 F. App’x 123, 126 (3d Cir. 2007) 
(concluding that police’s failure to investigate where the petitioner provided no evidence 
or leads to pursue “does not constitute acquiescence in the claimed persecution”); 
Skendaj v. Att’y Gen. U.S., 275 F. App’x 126, 129 (3d Cir. 2008) (concluding that failing 
to report an incident or provide identifying information supports BIA’s finding that the 
government was not unwilling or unable to control the purported persecutors); Pierre v. 
Att’y Gen. U.S., 388 F. App’x 212, 215 (3d Cir. 2010) (agreeing that failure to provide 
police with the name of assailants “hindered the police in investigating the assault”).  
7 
 
Cisneros also urges that the IJ erred in its application of the “unable-or-unwilling-
to-control test” because it focused too heavily on the Peruvian police’s response to the 
criminal activity of the group Juan Carlos was involved in rather than the Venezuelan 
motorcyclist actors who threatened Cisneros. But Cisneros failed to present this argument 
to the BIA. Thus, this argument is unexhausted. See Santos-Zacaria v. Garland, 598 U.S. 
411, 421 (2023). Even if the argument were exhausted, however, we would nevertheless 
conclude that the IJ did not err in concluding that Cisneros failed to meet her burden 
because the BIA and IJ considered both the Peruvian government’s arrests and conviction 
of Juan Carlos and his family members for their crimes as well as the police’s response to 
her report of the acts of the motorcyclists in concluding that she failed to prove the 
government was not unwilling or unable to protect her from private actors. In short, we 
discern no error in the BIA or IJ’s decisions. 
III. 
For these reasons, we will deny the petition for review. 


Ingrid Cisneros Martinez v. Attorney General United States of America

USA v. Nicholas Lucidonio

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
5-19-2025 
USA v. Brando Mancebo 
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"USA v. Brando Mancebo" (2025). 2025 Decisions. 417. 
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NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
______________ 
 
No. 24-2288 
______________ 
 
UNITED STATES OF AMERICA 
 
v. 
 
BRANDO MANCEBO, 
Appellant 
______________ 
 
On Appeal from the United States District Court 
for the Middle District of Pennsylvania  
(D.C. No. 3:23-cr-00031-002) 
U.S. District Judge: Honorable Malachy E. Mannion 
______________ 
 
Submitted Under Third Circuit L.A.R. 34.1(a) 
May 16, 2025 
______________ 
                                                                
Before: SHWARTZ, MATEY, and FREEMAN, Circuit Judges. 
 
(Filed:  May 19, 2025) 
______________ 
 
OPINION* 
______________ 
 
SHWARTZ, 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 
 
 Brando Mancebo appeals his conviction for drug trafficking while on pretrial 
release.  His counsel has moved to withdraw under Anders v. California, 386 U.S. 738 
(1967).  Because there are no nonfrivolous issues warranting review, we will grant 
counsel’s motion and affirm.   
I 
 Mancebo was arrested and charged in the District of New Jersey with mail theft 
and conspiracy to commit bank fraud, and then released on pretrial supervision.  While on 
pretrial release, Mancebo sold fentanyl and was indicted in the Middle District of 
Pennsylvania for conspiring to distribute and possess with the intent to distribute 400 
grams or more of fentanyl and distributing on three occasions 40 grams or more of 
fentanyl, in violation of 21 U.S.C. §§ 846 and 841(a)(1).     
 Mancebo pleaded guilty to various drug charges.  At the plea hearing, Mancebo 
was advised of his trial rights and the penalties he faced, including a mandatory minimum 
term of 120 months’ imprisonment for the conspiracy charge and a consecutive term for 
committing the offenses while on pretrial release.  He also admitted to the facts 
supporting the charges.  The District Court determined that Mancebo was competent and 
that he had knowingly, intelligently, and voluntarily entered his guilty plea.    
At sentencing, the District Court adopted the Presentence Report’s recommended 
Guidelines range of 151 to 188 months’ imprisonment based on Mancebo’s total offense 
level of 30 and criminal history category V.  Mancebo moved for a downward departure 
under U.S.S.G § 4A1.3(b)(1), arguing that his criminal history category V 
3 
 
overrepresented the seriousness of his criminal history because his crimes primarily 
stemmed from a single course of conduct.  The District Court disagreed, finding that 
Mancebo’s prior crimes were committed on different occasions.     
Both parties sought downward variances based on Mancebo’s youth and because 
he was raised in an abusive and unstable environment.1  After hearing their arguments, 
the District Court varied downward and imposed the mandatory minimum term of 120 
months’ imprisonment under 21 U.S.C. § 841(a)(1), followed by a consecutive term of 10 
months’ imprisonment2 for committing the offenses while on pretrial release as mandated 
by 18 U.S.C. § 3147.3  In imposing its sentence, the Court stated that it considered the 
relevant 18 U.S.C. § 3553(a) factors, noting that the sentence reflected the seriousness of 
the offenses and Mancebo’s criminal history as well as the need for just punishment, 
deterrence, and sentencing parity.  The Court also explained that Mancebo’s youth did 
not excuse his dangerous conduct, specifically, distributing a significant amount of 
fentanyl, a drug which poses a risk of death.  
 
1 Mancebo also argued that the District Court should vary downwards because he 
was not a leader of the drug trafficking operation.    
2 Pursuant to 18 U.S.C. § 3147, the District Court imposed 5 months’ 
imprisonment for the two counts to run consecutively to each other and to all other terms 
of imprisonment.   
3 The Court ordered this sentence to run consecutively to Mancebo’s 27-month 
sentence for mail theft and conspiracy to commit bank fraud convictions.   
4 
 
Mancebo appeals and his counsel has moved to withdraw under Anders.2F4  
II5 
Our local rules allow a criminal defendant’s counsel to file a motion to withdraw 
and an accompanying brief under Anders when he concludes, upon review of the record, 
“that the appeal presents no issue of even arguable merit.”  3d Cir. L.A.R. 109.2(a).  
When counsel submits an Anders brief, we must determine: “(1) whether counsel 
adequately fulfilled the rule’s requirements; and (2) whether an independent review of the 
record presents any nonfrivolous issues.”  United States v. Youla, 241 F.3d 296, 300 (3d 
Cir. 2001); see also United States v. Brookins, 132 F.4th 659, 666 (3d Cir. 2025).6   
A 
To determine whether counsel has fulfilled his Anders obligations, we examine his 
brief to see if it (1) shows that he thoroughly examined the record in search of appealable 
issues and identified those that arguably support the appeal and (2) explains why all 
issues identified are frivolous.  Brookins, 132 F.4th at 666; United States v. Marvin, 211 
F.3d 778, 780-81 (3d Cir. 2000).  
 
4 Mancebo did not file a pro se brief despite having the option to do so.    
 5 The District Court had jurisdiction under 18 U.S.C. § 3231.  We have jurisdiction 
under 28 U.S.C. § 1291.  In conducting an Anders analysis, we exercise plenary review to 
determine whether any nonfrivolous issues for appeal exist.  Penson v. Ohio, 488 U.S. 75, 
80-83 & n.6 (1988). 
6 An issue is frivolous if it “lacks any basis in law or fact.”  McCoy v. Ct. of 
Appeals of Wis., Dist. 1, 486 U.S. 429, 438 n.10 (1988); see also Brookins, 132 F.4th at 
665 (explaining that “[i]f there is an issue that is ‘arguable’ on its merits, then the appeal 
is not frivolous” (quoting Anders, 386 U.S. at 744)). 
5 
 
Because Mancebo pleaded guilty, his appealable issues are limited to the District 
Court’s jurisdiction, the voluntariness of his plea, and the reasonableness of his sentence.  
See United States v. Broce, 488 U.S. 563, 569 (1989); Menna v. New York, 423 U.S. 61, 
62 (1975) (per curiam); 18 U.S.C. § 3742.  His counsel’s Anders brief explains why a 
challenge related to these issues would be frivolous and therefore counsel has fulfilled his 
Anders obligations.  Youla, 241 F.3d at 300. 
B 
 Our independent review of the record confirms that no nonfrivolous appealable 
issues exist.   
First, the District Court had jurisdiction because Mancebo was charged with 
federal offenses under 21 U.S.C. §§ 846 and 841(a)(1).7  Thus, any challenge to the 
District Court’s jurisdiction would be baseless.  See 18 U.S.C. § 3231.  
 Second, any challenge to Mancebo’s plea would fail.  The Federal Rule of 
Criminal Procedure 11 require courts, before accepting a guilty plea, to advise the 
defendant “of the waiver of certain constitutional rights,” “the nature of the charges to 
which he . . . is pleading guilty, the ‘maximum possible penalty’ to which he . . . is 
exposed, the court’s ‘obligation to apply the Sentencing Guidelines,’” and its discretion 
to depart from them.  United States v. Schweitzer, 454 F.3d 197, 202 (3d Cir. 2006) 
(quoting Fed. R. Crim. P. 11(b)).   
 
7 Our review of jurisdictional issues is plenary.  United States v. Williams, 369 
F.3d 250, 252 (3d Cir. 2004). 
6 
 
The District Court’s plea colloquy complied with these requirements.8  The Court 
placed Mancebo under oath and confirmed his competence and that he had not been 
forced to enter a guilty plea.  The Court advised Mancebo that, by pleading guilty, he 
would waive certain constitutional rights, including his rights to (1) plead not guilty and 
proceed to trial with the assistance of counsel who could confront, cross examine, and 
subpoena witnesses; (2) testify or not testify at trial; and (3) be presumed innocent unless 
the Government proved his guilt beyond a reasonable doubt.  The Court confirmed that 
Mancebo understood the offenses’ elements, the minimum and maximum penalties he 
might face, and the application of the Sentencing Guidelines.  In addition, the record 
shows there was a factual basis for his plea and that Mancebo’s plea was knowing and 
voluntary.  Thus, any challenges to the plea’s validity would be frivolous. 
Finally, Mancebo’s sentence was procedurally and substantively reasonable, and 
thus any challenge to it would also lack merit.9  As to procedural reasonableness, the 
District Court fulfilled the three steps set forth in United States v. Merced, 603 F.3d 203, 
215 (3d Cir. 2010).  The District Court correctly calculated the applicable Guidelines 
range.  The parties agreed, and the record shows, that Mancebo was responsible for 
distributing between 400 grams and 1.2 kilograms of fentanyl, resulting in a base offense 
 
8 No party objected to the plea, so we review for plain error.  United States v. 
Vonn, 535 U.S. 55, 59 (2002). 
9 Because Mancebo did not object to his sentence, we review the sentencing’s 
procedural reasonableness for plain error.  United States v. Flores-Mejia, 759 F.3d 253, 
256 (3d Cir. 2014) (en banc).  We review the sentence’s substantive reasonableness for 
abuse of discretion.  United States v. Pawlowski, 27 F.4th 897, 911 (3d Cir. 2022). 
7 
 
level of 30.  The record also supports a three-level increase under U.S.S.G. § 3C1.3 
because Mancebo committed a crime while on pretrial release, see 18 U.S.C. § 3147; 
United States v. Lewis, 660 F.3d 189, 190, 192 (3d Cir. 2011), and a three-level decrease 
under U.S.S.G. § 3E1.1 for acceptance of responsibility, resulting in a total offense level 
of 30.  In addition, the District Court correctly determined that Mancebo had 10 criminal 
history points, placing him in criminal history category V.  With a total offense level of 
30 and a criminal history category V, the Court accurately calculated the advisory 
Guidelines range as 151 to 188 months’ imprisonment.     
The District Court also considered but rejected Mancebo’s motion for a downward 
departure for an overrepresented criminal history.  The Court’s explanation for denying 
the motion demonstrated it understood its authority to depart, and under our precedent, 
we lack jurisdiction to review its discretionary ruling.  See United States v. Jones, 566 
F.3d 353, 366-67 (3d Cir. 2009).  
The record further reflects that the District Court gave “rational and meaningful” 
consideration to the § 3553(a) factors, including the dangerous nature of the offense, 
Mancebo’s background, and the need for deterrence, punishment, and parity.  Merced, 
603 F.3d at 214 (quoting United States v. Grier, 475 F.3d 556, 571 (3d Cir. 2007) (en 
banc)).  Indeed, the Court varied 21 months below the applicable Guidelines range, which 
showed that it considered Mancebo’s background.   
The sentence also was substantively reasonable.  Because Mancebo engaged in 
life-threatening conduct by trafficking fentanyl and did so while on pretrial release for 
8 
 
other federal offenses and after being convicted of other crimes, we cannot say that “no 
reasonable sentencing court would have imposed the same sentence.”10  United States v. 
Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc).   
 Accordingly, there are no nonfrivolous issues warranting review. 
III 
 For the foregoing reasons, we will grant counsel’s motion to withdraw and affirm. 
 
10 The District Court also acted within its discretion in ordering that Mancebo’s 
sentence run consecutively to his sentence for mail theft and conspiracy to commit bank 
fraud convictions as they were different crimes warranting separate punishments.  See 
United States v. Velasquez, 304 F.3d 237, 241-42 (3d Cir. 2002). 


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