Villanova University School of Law: Digital Repository

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
4-16-2025 
Elizabeth Sanchez v. Elizabeth Board of Education 
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Recommended Citation 
"Elizabeth Sanchez v. Elizabeth Board of Education" (2025). 2025 Decisions. 297. 
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NOT PRECEDENTIAL 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
_______________ 
No. 24-1715 
_______________ 
ELIZABETH SANCHEZ, Guardian ad Litem; CHARLES SANCHEZ;  
E.S., a minor, by and through his Guardian ad Litem,  
       Appellants 
v. 
ELIZABETH BOARD OF EDUCATION; JOSEPH TROIANO;  
JENNIFER CAMPEL; CRISTINA BRITO 
_______________ 
On Appeal from the United States District Court  
for the District of New Jersey 
(D.C. No. 2:20-cv-01027) 
District Judge: Honorable Evelyn Padin 
_______________ 
Submitted Under Third Circuit L.A.R. 34.1(a)  
on March 25, 2025 
Before: BIBAS, PHIPPS, and AMBRO, Circuit Judges 
(Filed: April 16, 2025) 
 
_______________ 
OPINION* 
_______________ 
 
*  This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding 
precedent. 
 
2 
BIBAS, Circuit Judge.  
When plaintiffs tell a story that is contradicted by an accurate video, they usually lose. 
This story starts with E.S., a fifth grader in his school’s gym. Joseph Troiano, his music 
teacher, was setting the gym up for kindergarten graduation and watching the fifth graders 
who were there. Troiano told the students to sit in the chairs he had set up for the gradua-
tion. But E.S. was horsing around. He lay across a girl’s lap and then started repeatedly 
throwing himself to the floor. Another student took his seat, so E.S. started wriggling 
between students to try to get it back. While Troiano was bringing in a lectern, E.S. was 
lying between two girls who were tickling him. Seeing this, Troiano told E.S. to “get up.” 
App. 7. He did not. E.S. claims that Troiano grabbed him by the arm and pulled him out of 
his chair. Then, when E.S. tried to go back to his chair, Troiano put “his fist out by [his] 
chest” and “kept pushing” harder and harder. App. 7.  Later, E.S. said Troiano “punched” 
him. App. at 8. He says that bruised his arm and hurt his chest. Then an arriving kindergar-
ten teacher pulled E.S. away and told him to leave. The whole incident lasted less than a 
minute.  
E.S. and his parents complained to the school and police, to no avail. E.S. claims that 
when he returned the next school year, teachers and guards retaliated against him by fol-
lowing him around and glaring at him.  
E.S. and his parents sued Troiano, the Board of Education, and the school’s principal 
and vice principal. They brought claims alleging assault and battery, a violation of substan-
tive due process, and retaliation against E.S for his complaints in violation of the First 
Amendment. The District Court granted summary judgment for defendants on all counts. 
 
3 
E.S. and his parents appeal only the claims described here. We review de novo, viewing 
the facts and drawing inferences in favor of E.S. Tundo v. County of Passaic, 923 F.3d 283, 
286–87 (3d Cir. 2019). 
Troiano did not violate E.S.’s right to substantive due process. As the District Court 
noted, a teacher may use reasonable force to maintain order. Ingraham v. Wright, 430 U.S. 
651, 661 (1977). Still, force that “shocks the conscience” violates the Due Process Clause. 
Gottlieb v. Laurel Highlands Sch. Dist., 272 F.3d 168, 173 (3d Cir. 2001). But that occurs 
only if a teacher uses (1) excessive force (2) without any pedagogical imperative (3) maliciously 
and sadistically for the very purpose of causing harm, (4) creating serious injury.  Id. We 
have none of that here. Troiano grabbed E.S. by the arm to pull him up and used his body 
to block E.S. from returning to his chair. Though E.S. claims otherwise, this force hardly 
shocks the conscience. It was reasonable to address E.S.’s unruly behavior, and no rational 
trier of fact could find that it was done only to cause harm or that it did create serious injury.  
Resisting this conclusion, E.S. insists on his version of the story: that Troiano punched 
him twice in the chest. But he did not, even when we draw all reasonable inferences in 
favor of E.S. The video of the gym from the hallway shows the relevant part of the incident, 
and it belies E.S.’s claim. No one disputes that the video is authentic and accurate. As the 
District Court rightly found, “no rational trier of fact could conclude that Mr. Troiano 
punched E.S.” App. 18.  
For this reason, E.S.’s assault and battery claims fail as well. The common law privi-
leges Troiano’s reasonable force. Ingraham, 430 U.S. at 661.  
 
4 
E.S.’s retaliation claims fare no better. To support them, E.S. alleges that the named 
defendants both (1) followed him around and watched him, and (2) barred his parents from 
the school. As the District Court found, the first acts were de minimis. And given E.S.’s 
repeated disciplinary problems, they were also justified security measures. As for the sec-
ond claim, we cannot consider it because E.S. forfeited it by raising it too late. Because 
there is no material question of fact about whether E.S. was punched and because he suf-
fered no actionable retaliation, we will affirm. 


English

Elizabeth Sanchez v. Elizabeth Board of Education

USDC for the Western District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
4-18-2025 
USA v. Zachariah Owens 
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Recommended Citation 
"USA v. Zachariah Owens" (2025). 2025 Decisions. 303. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/303 
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Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
 
 
NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
 
________________ 
 
Nos. 24-1533 and 24-1588 
________________ 
 
UNITED STATES OF AMERICA 
 
v. 
 
ZACHARIAH OWENS, 
                                                           Appellant in No. 24-1533 
 
KAYLA FAIR, 
                                                            Appellant in No. 24-1588 
 
_____________ 
 
On Appeal from the United States District Court 
for the Western District of Pennsylvania 
(D.C. No. 2:22-cr-00089-001) 
(D.C. No. 2:22-cr-00089-002) 
District Judge: Honorable Cathy Bissoon 
________________ 
 
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 
 
Following unsuccessful motions to dismiss their indictments under the Speedy Trial 
Act, Zachariah Owens and Kayla Fair pled guilty to federal drug-related offenses.  As a 
condition of their pleas, both preserved their rights to appeal their Speedy Trial Act claims.  
Because the district court correctly determined Fair and Owens were convicted within the 
Act’s prescribed timeframe, we will affirm.  
I. 
Because we write primarily for the parties, who are familiar with the factual context 
and legal history of the case, we recite only the facts necessary for our analysis. 
Appellants Owens and Fair were indicted on drug-related charges in the Western 
District of Pennsylvania.  Owens and Fair made their initial appearances on April 12, 2022.  
Owens’s final pretrial motion deadline was set for December 28, 2022.  On December 15, 
2022, he filed several motions to suppress evidence.  Fair’s final pretrial motion deadline 
was set for March 17, 2023.  On that date, she filed several suppression motions, and on 
March 20, 2023, the District Court granted her request to join Owens’ suppression motions 
from December 2022.  Fair and Owens both requested hearings on these motions, which 
the Government opposed.   
The Government filed its unified response to both Appellants’ motions on March 
31, 2023.  Fair and Owens replied, respectively, on April 12 and 14, 2023.  No further 
docket activity occurred until August 9, 2023, when Fair moved to dismiss the indictments 
under the Speedy Trial Act, arguing the intervening delay put their cases over the Act’s 
time limits between indictment and trial.  On August 10, 2023, Owens joined Fair’s motion 
 
 
 
3 
 
to dismiss.   
The Government filed a response on August 11, 2023.  In its response, the 
Government advised the court that scheduling a hearing on the motions would prevent any 
Speedy Trial Act violations.  Fair replied on August 15, 2023.  The court subsequently 
issued an order denying the motions to dismiss, “agree[ing]” with the government “that 
Defendants’ Motions to Dismiss lack merit and must be denied” and scheduling a hearing 
on the suppression motions.  App. 21.  The hearing occurred on September 6, 2023.  The 
court denied both suppression motions.  Both Appellants then pled guilty but preserved 
their rights to appeal the court’s denial of their motions to dismiss under the Speedy Trial 
Act. 
II.1 
We review the District Court’s interpretation of the Speedy Trial Act, “including” 
the court’s interpretation of provisions “related to excludable time[,]” de novo.  United 
States v. Williams, 917 F.3d 195, 199 (3d Cir. 2019) (citation omitted).  We review the 
District Court’s fact-finding for clear error.  United States v. Shulick, 18 F.4th 91, 100 (3d 
Cir. 2021).   
The Speedy Trial Act “requires that a criminal defendant’s trial commence within 
70 days after he is charged or makes an initial appearance, whichever is later[.]”  Bloate v. 
United States, 559 U.S. 196, 198-99 (2010) (citing 18 U.S.C. § 3161(c)(1)).  But “when a 
 
1 The District Court had subject matter jurisdiction under 18 U.S.C. § 3231.  We 
have jurisdiction under 28 U.S.C. § 1291.  
 
 
 
4 
 
district court makes a Speedy Trial Act time calculation, it ‘shall’ exclude” certain periods 
of time from the 70-day limit.  United States v. Hamilton, 46 F.3d 271, 275 (3d Cir. 1995).  
These include “delay resulting from any pretrial motion, from the filing of the motion 
through the conclusion of the hearing on, or other prompt disposition of, such motion[,]” 
18 U.S.C. § 3161(h)(1)(D), and “delay reasonably attributable to any period, not to exceed 
thirty days, during which any proceeding concerning the defendant is actually under 
advisement by the court[,]” id. § 3161(h)(1)(H).  If the defendant is not tried within the 
statutory period, considering applicable exclusions, “the information or indictment shall be 
dismissed on motion of the defendant.”  Id. § 3162(a)(2).   
At issue here is whether the time between the thirty days after Owens and Fair filed 
their reply briefs on their motions to suppress (May 15 and May 12, respectively) and the 
day they filed their motions to dismiss under the Speedy Trial Act (August 10 and August 
9, respectively) is excludable.  Appellants rely on § 3161(h)(1)(H), arguing their motions 
to suppress were under advisement once all briefs were filed on April 14, 2023, so the 70-
day clock resumed running on May 15.  Because 86 days elapsed during this period, 
appellants contend their indictments should have been dismissed.  The Government 
contends § 3161(h)(1)(D) applies because the court ultimately held a hearing, and the delay 
is excludable as the time between the filing of a motion and the conclusion of the hearing.  
Consequently, time was tolled until the hearing concluded on September 6, 2023.  
Appellants’ position has no basis in the text of the Speedy Trial Act.  First, the 
statutory text is clear that time “from the filing of a motion through the conclusion of the 
 
 
 
5 
 
hearing on . . .  such motion” is excludable.  18 U.S.C. § 3161(h)(1)(D) (emphasis added).2  
“The plain terms of the statute appear to exclude all time between the filing of and the 
hearing on a motion whether that hearing was prompt or not.”  Henderson v. United States, 
476 U.S. 321, 326 (1986) (emphasis added).  This provision does not require a district court 
to promptly indicate an intent to schedule a hearing, and reading it to do so would be “at 
odds with the plain language of the statute.”  Id. at 330; see also United States v. Claxton, 
766 F.3d 280, 293 (3d Cir. 2014) (“[Pretrial] motions . . . toll the speedy trial clock for all 
defendants until the District Court [holds] a hearing . . . .”).   
Furthermore, § 3161(h)(1)(H) is inapplicable here.  First, because we treat these 
 
2 We reiterated in United States v. Adams this provision applies “when a pretrial 
motion requires a hearing.”  36 F.4th 137, 147 (3d Cir. 2022) (quoting Henderson, 476 
U.S. at 329).  Here, Owens and Fair “requested a hearing on [their] motions, thus 
acknowledging that one was appropriate[,]” so “we need not discuss the factors that 
determine whether a given motion ‘requires’ a hearing” and may assume these motions 
did.  United States v. Staula, 80 F.3d 596, 601 n.2 (1st Cir. 1996); accord United States v. 
Bush, 404 F.3d 263, 274 (4th Cir. 2005) (“[I]f a defendant requests a hearing, and a hearing 
is offered and declined, we believe that § 3161(h)(1)(F) applies, and excludes all of the 
time up until the offer of the hearing is affirmatively declined.” (citing a pre-amendment 
citation for what is now § 3161(h)(1)(D)). 
Appellants contend the Government waived the applicability of (h)(1)(D) by 
initially opposing their requests for hearings.  Fair Opening Br. 20.  Since waiver is the 
“intentional relinquishment of a known right[,]” we do not reach waived claims on appeal.  
Barna v. Bd. of Sch. Dir. of Panther Valley Sch. Dist., 877 F.3d 136, 146 (3d Cir. 2017) 
(quoting United States v. Olano, 507 U.S. 725, 733 (1993)).  But this doctrine is 
inapplicable.  First, appellants conflate the Government’s initial opposition to their request 
for a hearing with the Government’s position about the effect of holding a hearing for the 
Speedy Trial Act.  Even if the Government could be estopped by their earlier position from 
arguing hearings were necessary, Appellants do not prevail because before the court had 
an opportunity to rule on the need for a hearing, the Government “concede[d] the point 
insisted upon by the defendants” that a hearing should occur.  App. 49; see New Hampshire 
v. Maine, 532 U.S. 742, 749–750 (2001).  But we do not treat the Government’s initial 
opposition to a hearing as waiver or estoppel of their Speedy Trial Act arguments here. 
 
 
 
6 
 
motions as having required a hearing, § (h)(1)(D) applied instead.  See Adams, 36 F.4th at 
148; supra note 2.  Second, we are not convinced a motion is per se “under advisement” 
when the reply briefs are filed, as appellants contend, since the court may still require more 
information before taking a motion under advisement thereafter—and indeed, did so here, 
“ask[ing] the Government to call” certain witnesses and basing its denials of the motions 
in part on testimony offered at the hearings.  Appellee’s Br. 26–27; see United States v. 
Hicks, 779 F.3d 1163, 1170 (10th Cir. 2015) (“A motion is ‘under advisement’ once the 
district court has obtained all of the information necessary for it to rule on the motion.” 
(citation omitted)); United States v. Jones, 601 F.3d 1247, 1255 (11th Cir. 2010) (“A 
motion is ‘under advisement’ once the parties have filed the last piece of necessary 
information . . . .” (citation omitted)).   
Accordingly, the court properly excluded the time before the hearing on appellants’ 
motions to suppress from the Speedy Trial Act’s 70-day clock.  
Our opinion should not be read to say for motions that do not require a hearing or 
where defendants do not request one, the court can avoid § (h)(1)(H) and invoke § 
(h)(1)(D)’s exclusions by simply scheduling a hearing.  As the Government observes, other 
circuits have noted “that in some case, a defendant might be able to make a showing that 
the district court scheduled a ‘hearing’ as a mere pretense to excuse delay in bringing a 
case to trial[,]” but this is not that case.  United States v. Smith, 569 F.3d 1209, 1212 n.4 
(10th Cir. 2009); Appellee’s Br. 23–24. 
III. 
For the foregoing reasons, we will affirm.  


USA v. Zachariah Owens

USDC for the Middle District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
4-25-2025 
Edwin Soto-Santana v. Stephan Wengen 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Edwin Soto-Santana v. Stephan Wengen" (2025). 2025 Decisions. 326. 
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Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
 
NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
_______________ 
 
No. 24-2032 
_______________ 
 
EDWIN SOTO-SANTANA; YANAHIRA SOTO, 
Appellants 
 
v. 
 
STEPHAN WENGEN,  
Individually 
  
_______________ 
 
On Appeal from the United States District Court 
for the Middle District of Pennsylvania 
(D.C. No. 3:23-cv-01819) 
Magistrate Judge: Honorable Daryl F. Bloom 
 
_______________ 
 
Submitted Under Third Circuit L.A.R. 34.1(a)  
January 30, 2025 
 
Before: KRAUSE, PORTER, and ROTH, Circuit Judges. 
 
(Filed: April 25, 2025) 
_______________ 
 
OPINION 
_______________ 
 
 
 This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding 
precedent. 
 
2 
PORTER, Circuit Judge. 
Yanahira Soto and Edwin Soto-Santana sued Officer Stephan Wengen for false 
arrest and malicious prosecution under § 1983 and false imprisonment under state law. 
The District Court1 granted Officer Wengen’s motion to dismiss the complaint, holding 
that he had probable cause to arrest Soto and Soto-Santana for defiant trespass. We will 
affirm.  
I 
A 
Soto and Soto-Santana resided at 250 Carey Avenue in Wilkes-Barre, 
Pennsylvania. Soto contacted the City of Wilkes-Barre regarding a plumbing issue at 
their apartment, and the City sent Inspector Dan Kratz, a member of the City’s Code 
Enforcement Department, to inspect the property. Kratz determined that the property was 
unfit for habitation and posted a notice to that effect.  
After Kratz posted the notice, Soto and Soto-Santana began residing elsewhere. 
But Soto and Soto-Santana’s landlord told them that they could remain at 250 Carey 
Avenue while he made repairs.  
Officer Wengen was dispatched to 250 Carey Avenue after Soto and Soto-
Santana’s neighbors called the police and reported someone was trespassing. One of the 
neighbors informed Officer Wengen that Soto had been staying in the apartment at 250 
Carey Avenue for six nights, every night since it was declared uninhabitable.  
 
1  The term “District Court” in this case refers to the magistrate judge proceeding with 
the consent of the parties. See 28 U.S.C. § 636. 
 
3 
Upon arriving at the apartment Officer Wengen tried to contact Soto, but she 
would not come to the door. The landlord came to the property after Officer Wengen 
contacted him. Officer Wengen then entered the apartment and arrested Soto and Soto-
Santana for defiant trespass.  
Soto and Soto-Santana appeared at their preliminary hearing; Officer Wengen did 
not. The charges against Soto and Soto-Santana were dropped. 
B 
After their defiant trespass charges were dropped, Soto and Soto-Santana sued 
Officer Wengen, alleging false arrest and malicious prosecution claims in violation of the 
Fourth and Fourteenth Amendments under § 1983, as well as claims of false 
imprisonment under state law.  
The District Court dismissed the complaint with prejudice, holding that Officer 
Wengen had probable cause to arrest Soto and Soto-Santana for defiant trespass. The 
District Court also held that, as to the claims brought under § 1983, Officer Wengen was 
entitled to qualified immunity.  
Soto and Soto-Santana timely appealed.2  
 
2    The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction 
under 28 U.S.C. § 1291.  
Our review of a district court’s dismissal under Federal Rule of Civil Procedure 
12(b)(6) is plenary. Great W. Mining & Min. Co. v. Fox Rothschild LLP, 615 F.3d 159, 
163 (3d Cir. 2010). A “motion to dismiss may be granted only if, accepting all well-
pleaded allegations in the complaint as true and viewing them in the light most favorable 
to the plaintiff, a court finds that plaintiff’s claims lack facial plausibility.” Warren Gen. 
Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011).  
 
 
4 
II 
A 
To state a claim for false arrest under § 1983 or false imprisonment under state 
law, Soto and Soto-Santana must plausibly allege that Officer Wengen lacked probable 
cause to arrest them. Groman v. Twp. of Manalapan, 47 F.3d 628, 636 (3d Cir. 1995) 
(false arrest); Renk v. City of Pittsburgh, 641 A.2d 289, 293 (Pa. 1994) (false 
imprisonment). Similarly, to state a claim for malicious prosecution under § 1983, Soto 
and Soto-Santana must plausibly allege that Officer Wengen initiated the proceeding 
against them without probable cause. Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d 
Cir. 2003). 
Probable cause requires only that “the facts and circumstances within the arresting 
officer’s knowledge are sufficient in themselves to warrant a reasonable person to believe 
that an offense has been or is being committed by the person to be arrested.” Orsatti v. 
N.J. State Police, 71 F.3d 480, 483 (3d Cir. 1995). Probable cause does not “require the 
same type of specific evidence of each element of the offense as would be needed to 
support a conviction.” Adams v. Williams, 407 U.S. 143, 149 (1972). In analyzing 
whether probable cause existed for an arrest, the court must use a “totality-of-the-
circumstances approach.” Illinois v. Gates, 462 U.S. 213, 230 (1983). 
 
When considering a motion to dismiss, we “generally consider only the allegations 
contained in the complaint, exhibits attached to the complaint and matters of public 
record.” Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 
(3d Cir. 1993). 
 
 
5 
B 
Officer Wengen arrested Soto and Soto-Santana for defiant trespass under 
Pennsylvania law. Section 3503(b) of the Pennsylvania Criminal Code defines a defiant 
trespasser as a person who, “knowing that he is not licensed or privileged to do so, [ ] 
enters or remains in any place as to which notice against trespass is given by: . . . posting 
in a manner prescribed by law or reasonably likely to come to the attention of intruders.” 
18 Pa. Cons. Stat. § 3503(b)(1)(ii). Wilkes-Barre’s housing code provides that the 
inspection and issuing of orders “shall be the exclusive responsibility of the enforcement 
officer,” and “[n]o order for correction of any violation under [the housing code] shall be 
issued without the approval of the enforcement officer.” Wilkes-Barre City Code of 
Ordinances § 7-81(d) (2024).  
C 
Soto and Soto-Santana do not dispute that Inspector Kratz posted a notice stating 
that the property at 250 Carey Avenue was uninhabitable, or that they were found inside 
the property. Rather, they argue that Officer Wengen lacked probable cause because their 
landlord allegedly permitted them to remain on the property while repairs were made and 
informed Officer Wengen of this permission before the arrest.  
Soto and Soto-Santana point to an affirmative defense to defiant trespass: when an 
“actor reasonably believed that the owner of the premises, or other person empowered to 
license access thereto, would have licensed him to enter or remain.” Opening Br. at 12 
(quoting 18 Pa. Cons. Stat. § 3503(c)(3)). Soto and Soto-Santana contend that they 
therefore lacked the necessary mens rea to commit defiant trespass.  
 
6 
Soto and Soto-Santana cite to this Court’s decision in Radich v. Goode, where we 
assumed, without deciding, that the existence of an affirmative defense was relevant to 
the determination of probable cause. 886 F.2d 1391, 1396 (3d Cir. 1989). But this Court 
has not held that an affirmative defense is a relevant consideration in the probable cause 
analysis. 
After Radich, this Court has at least twice decided that certain affirmative defenses 
should not be part of a probable cause determination. In Sands v. McCormick, 502 F.3d 
263, 269 (3d Cir. 2007), we held that raising an affirmative defense that the statute of 
limitations has expired is not “a relevant consideration at the time a police officer files 
charges.” And in Holman v. City of York, 564 F.3d 225, 231 (3d Cir. 2009), we held that 
the affirmative defense of necessity, which appeared in a different section of the criminal 
code than the charged offense of trespass, would require an officer “to examine countless 
factual permutations” before making an arrest and therefore should have no bearing on 
the probable cause determination.  
Even if an affirmative defense were relevant to the probable cause determination, 
Officer Wengen had probable cause to arrest Soto and Soto-Santana. Officer Wengen 
was told that Soto and Soto-Santana had been living at 250 Carey Avenue despite the 
property being deemed uninhabitable. True, the landlord explained that he gave Soto and 
Soto-Santana permission to remain at the property while he made repairs. But two other 
facts undermine Soto and Soto-Santana’s argument that the landlord’s permission was the 
reason they remained at 250 Carey Avenue: (1) the landlord was not at the property 
performing repairs when Officer Wengen first arrived and yet Soto and Soto-Santana 
 
7 
were inside, and (2) a neighbor told Officer Wengen that Soto had been staying at the 
property every night.  
Considering the totality of the circumstances, and mindful that probable cause 
“does not require that officers correctly resolve conflicting evidence,” Wright v. City of 
Philadelphia, 409 F.3d 595, 603 (3d Cir. 2005), abrogated on other grounds by 
Chiaverini v. City of Napoleon, 602 U.S. 556 (2024), Officer Wengen reasonably 
believed that Soto and Soto-Santana had committed defiant trespass. Accordingly, Soto 
and Soto-Santana failed to state a claim for false arrest, false imprisonment, or malicious 
prosecution.3  
* * * 
For all of these reasons, we will affirm the District Court’s order.  
 
3  As to the false arrest and malicious prosecution claims brought under § 1983, Officer 
Wengen would be granted qualified immunity even if he lacked probable cause to arrest 
Soto and Soto-Santana. As described above, at the time of Soto and Soto-Santana’s 
arrest, there was not clearly established law that an officer lacks probable cause to arrest 
for defiant trespass when affirmative defenses bar prosecution. Accordingly, Officer 
Wengen would be entitled to qualified immunity. District of Columbia v. Wesby, 583 
U.S. 48, 62–63 (2018) (“[O]fficers are entitled to qualified immunity under § 1983 unless 
(1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of 
their conduct was clearly established at the time.” (internal quotation marks and citation 
omitted)). 


Edwin Soto-Santana v. Stephan Wengen

USDC for the Eastern District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
5-1-2025 
Sean Peck v. Megan Bolognone 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Sean Peck v. Megan Bolognone" (2025). 2025 Decisions. 347. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/347 
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inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law 
Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
 
NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
____________ 
 
No. 24-2182 
____________ 
 
SEAN PECK, 
                      Appellant 
 
v. 
 
LIEUTENANT MEGAN BOLOGNONE; 
DEPUTY COMMISSIONER KRISTA DAHL-CAMPBELL; 
CHIEF INSPECTOR MICHAEL COCHRANE 
____________ 
 
On Appeal from the United States District Court  
for the Eastern District of Pennsylvania 
(D.C. Civil No. 2:23-cv-03213) 
District Judge: Honorable Paul S. Diamond 
____________ 
 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 
April 9, 2025 
 
Before:  HARDIMAN, PORTER, and FISHER, Circuit Judges. 
 
(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 
FISHER, Circuit Judge. 
This appeal arises out of an employment dispute between Appellant Sean Peck and 
his former superiors in the Philadelphia Police Department, Appellees Lieutenant Megan 
Bolognone and Deputy Commissioner Krista Dahl-Campbell. The District Court granted 
Appellees’ motion for summary judgment on the claims Peck asserted under the First 
Amendment and the Pennsylvania Whistleblower Law.1 Peck now appeals. We will 
affirm.2 
A. First Amendment Retaliation Claim 
“Speech by government employees receives less protection than speech by 
members of the public.”3 To prevail on a First Amendment retaliation claim under 42 
U.S.C. § 1983, “a public employee must [first] show that his speech is protected by the 
First Amendment and that the speech was a substantial or motivating factor in what is 
alleged to be the employer’s retaliatory action.”4 Peck’s claims fail because he does not 
 
1 U.S. Const. amend. I; 43 Pa. Stat. §§ 1421–28. 
2 The District Court had jurisdiction under 28 U.S.C. §§ 1331 (federal question), 
1343(a)(3) (jurisdiction to redress the deprivation of a right secured by the Constitution), 
and 1367 (supplemental jurisdiction over state-law claims). We have jurisdiction under 
28 U.S.C. § 1291 (final decisions of district courts). We review de novo an appeal from a 
court’s grant of a motion for summary judgment. In re Processed Egg Prods. Antitrust 
Litig., 881 F.3d 262, 267 (3d Cir. 2018). 
3 Amalgamated Transit Union Loc. 85 v. Port Auth. of Allegheny Cnty., 39 F.4th 
95, 103 (3d Cir. 2022). 
4 Flora v. Cnty. of Luzerne, 776 F.3d 169, 174 (3d Cir. 2015). 
 
 
3 
establish protected speech.5 
For speech to be protected, a public employee must “[speak] as a private citizen.”6 
Key to this determination is whether the employee spoke “pursuant to [his] official 
duties,”7 and “whether the speech at issue is itself ordinarily within the scope of [the] 
employee’s duties, not whether it merely concerns those duties.”8 If within the scope of 
the duties, “the Constitution does not insulate [those] communications from employer 
discipline.”9 
Peck’s emails are unprotected because they concern his sergeant duties. Neither 
email mentions issues outside his official responsibilities. Instead, they describe disputes 
regarding attendance, a matter within Peck’s official duties of completing assignment 
sheets and attendance reports, handling staffing issues, and ensuring officer timeliness. 
Practically speaking, dealing with attendance was “part of the work [Peck] was paid to 
perform on an ordinary basis.”10 
Even if we read into the emails a cognizable report of fraud, which is otherwise 
absent from the record, Peck’s speech is unprotected. Peck testified that “part of the 
 
5 See Bradley v. W. Chester Univ. of Pa. State Sys. of Higher Educ., 880 F.3d 643, 
650 (3d Cir. 2018) (where the Court first concludes the speech is not constitutionally 
protected, it need not second consider the government’s action). 
6 Fenico v. City of Philadelphia, 70 F.4th 151, 162 (3d Cir. 2023). 
7 Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). 
8 Lane v. Franks, 573 U.S. 228, 240 (2014). 
9 Garcetti, 547 U.S. at 421. 
10 Flora, 776 F.3d at 180; see also Garcetti, 547 U.S. at 424. 
 
 
4 
reason” he established the Standard Operating Procedure “was to eliminate overtime 
fraud,” and “it was very important to [him] that . . . [his] officers and specifically 
corporals weren’t indicted on . . . overtime fraud charges.”11 Peck cannot acknowledge 
that it was his responsibility to stop overtime fraud while simultaneously urging that 
reporting such fraud to superiors was not his responsibility.12 Peck was required to 
enforce unit procedure—whether directly or through delegation—which renders the 
emails within his official duties and, thus, not protected speech.13 
We are similarly unpersuaded by Peck’s contention that his emails are protected 
because they went multiple levels up the chain of command. Complaints up the chain of 
command typically qualify as speech within an employee’s official duties.14 This is true 
both of Peck’s February 20 emails to his direct superior, Bolognone, and February 23 
email to Dahl-Campbell, five levels his superior. Communicating concerns only to 
superiors in a chain of command about workplace matters within one’s duties is different 
from, for example, additionally raising those concerns outside the workplace where not 
under order.15 Peck emailed only those within his chain of command about matters 
squarely pursuant to his employment duties. 
 
11 D. Ct. Dkt. 29-5 at 156. 
12 See Bradley, 880 F.3d at 653 (the First Amendment did not protect a budget 
director who raised concerns of fraud at an internal meeting). 
13 See Foraker v. Chaffinch, 501 F.3d 231, 240 (3d Cir. 2007), abrogated on other 
grounds by Borough of Duryea v. Guarnieri, 564 U.S. 379, 383 (2011). 
14 Id. at 238, 240–41. 
15 Cf. id. at 243. 
 
 
5 
Viewing the facts in the light most favorable to Peck,16 he fails to show a genuine 
dispute of material fact about whether he spoke as a private citizen, rendering summary 
judgment appropriate on his First Amendment claim.17 
B. Pennsylvania Whistleblower Law Claim 
Peck also fails to establish his whistleblower claim. The Pennsylvania 
Whistleblower Law prohibits an employer from “retaliat[ing] against an employee 
regarding the employee’s compensation, terms, conditions, location or privileges of 
employment because the employee . . . makes a good faith report . . . to the employer or 
appropriate authority [of] an instance of wrongdoing.”18 A plaintiff may recover under 43 
Pa. Stat. § 1424 where he “show[s], by a preponderance of the evidence, that, prior to the 
alleged acts of retaliation, he had made a good faith report of wrongdoing [or waste] to 
appropriate authorities” and he “come[s] forward with some evidence of a connection 
between the report . . . and the alleged retaliatory acts.”19 
First, Peck’s emails were not a “good faith report,” or “[a] report of conduct . . . 
made without malice or consideration of personal benefit and which [he] ha[d] reasonable 
cause to believe [was] true.”20 Further, Peck’s emails do not assert “wrongdoing,” or “[a] 
 
16 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 
17 See Fed. R. Civ. P. 56(a). 
18 43 Pa. Stat. § 1423(a). 
19 O’Rourke v. Commonwealth, 778 A.2d 1194, 1200 (Pa. 2001) (citing 43 Pa. 
Stat. § 1424(b)). Like the District Court, we analyze Peck’s claim only under a 
“wrongdoing” theory because he does not make a “waste” argument. 
20 43 Pa. Stat. § 1422. 
 
 
6 
violation which is not of a merely technical or minimal nature of” a statute, regulation, 
ordinance, or code of conduct or ethics.21 The February 20 emails make no mention of 
time theft or wire fraud. They do not specify a law or ordinance allegedly violated but 
instead describe incidents of officers wanting to leave early. Peck admitted that, including 
during those incidents, he did not observe anyone “actually le[ave] the building and 
commit[] time fraud, or overtime fraud.”22 Because these violations were “potential or 
contemplated” as opposed to “actual,”23 this report is not protected.24 
Second, even if the emails were a good faith report, Peck’s claim fails on 
causation. A plaintiff must “show by concrete facts or surrounding circumstances”25 that 
the report led to his dismissal or other retaliatory action, “such as that there was specific 
direction or information . . . received not to file the report or [that] there would be adverse 
consequences because the report was filed.”26 Causation may be proven through evidence 
of an usually suggestive “temporal relationship between the protected activity and the 
retaliatory [action] and/or a pattern of antagonism perpetrated by the employer in the 
 
21 Id. 
22 D. Ct. Dkt. 29-10 at 111. 
23 See Greco v. Myers Coach Lines, Inc., 199 A.3d 426, 434 (Pa. Super. Ct. 2018). 
24 See Sukenik v. Twp. of Elizabeth, 131 A.3d 550, 555–56 (Pa. Commw. Ct. 
2016). 
25 Gray v. Hafer, 651 A.2d 221, 225 (Pa. Commw. Ct. 1994), aff’d, 669 A.2d 335 
(Pa. 1995). 
26 Golaschevsky v. Com., Dep’t of Env’t Prot., 720 A.2d 757, 759 (Pa. 1998) 
(alteration in original) (quoting Gray, 651 A.2d at 225). 
 
 
7 
period between the [report] and the adverse employment consequence.”27 A plaintiff 
cannot establish causation without proof that the defendant knew of the report.28 
Peck identifies as purportedly retaliatory employment actions: three counseling 
memoranda, his “Five-Month Report,” and “the Rejection from Probation Report[,] 
which resulted in [his] demotion.”29 None of these actions meet the requisite standard. 
At the threshold, the three counseling memoranda are not retaliatory because the 
Department uses them “as a tool for training employees and does not consider them to be 
disciplinary actions.”30 This purpose, coupled with Peck’s failure to produce objective 
evidence showing the memoranda negatively affected him, demonstrate that Peck was not 
being reprimanded through their issuance.31 
Peck fails to show the remaining two actions—his five-month performance 
evaluation by Bolognone and ultimate rejection from probation—are causally linked to 
 
27 Javitz v. Luzerne Cnty., 293 A.3d 570, 585 n.20 (Pa. 2023) (“While state court 
case law analyzing the sufficiency of the evidence of the causal connection between post-
reporting antagonistic workplace treatment and retaliatory discharge of a whistleblower is 
scant, cases involving the PHRA, Title VII and First Amendment retaliation claims 
utilize an essentially identical analytical framework . . . .”). 
28 See Daniels v. Sch. Dist. of Phila., 776 F. 3d 181, 196 (3d Cir. 2015). 
29 Appellant’s Br. 5, 17. 
30 Rosati v. Colello, 94 F. Supp. 3d 704, 718 (E.D. Pa. 2015) (quoting Torres v. 
Deblasis, 959 F. Supp. 2d. 772, 781 (E.D. Pa. 2013)); see also D. Ct. Dkt. 29-10 at 33–34 
(Peck recognizing counseling memoranda are “generally considered an opportunity to 
identify employees[’] strengths and weaknesses”). 
31 Javitz, 293 A.3d at 582 (A plaintiff cannot establish a causal connection by 
“rely[ing] on his [own] perception of the facts to support a conclusion that the employer 
engaged in antagonistic conduct after the report.”). 
 
 
8 
his report. “In a Whistleblower Law action, the mere fact that the discharge occurred a 
few months after a report of wrongdoing and that the first formal negative actions by the 
employer occurred after the report are not enough to show a causal connection.”32 Peck 
argues only temporal proximity, which does not independently prove causation.33 But 
there is no pattern of retaliation, either. Causation is not established where an employer 
gave similarly negative performance evaluations both before and after protected 
conduct.34 Here, the record contains evidence, beginning before the emails and 
continuing after, that supports Peck’s poor evaluation and rejection from probation. For 
example, Bolognone submitted a request to discipline Peck for undermining an officer 
and disobeying orders, as well as a request to detail Peck to another unit; Peck had 
interpersonal issues with officers; and his interactions with prisoners raised safety 
concerns. We cannot infer that Peck’s report triggered a pattern of retaliatory action. 
Finally, Peck fails to offer evidence that Dahl-Campbell was involved in the 
alleged retaliation. Peck argues only that, following his February 23 email, Dahl-
 
32 Evans v. Thomas Jefferson Univ., 81 A.3d 1062, 1070–71 (Pa. Commw. Ct. 
2013); see also Williams v. Phila. Hous. Auth. Police Dep’t, 380 F.3d 751, 760 (3d Cir. 
2004) (days are “unusually suggestive of retaliatory motive” but months are not (citation 
omitted)), superseded by statute on other grounds as recognized in Robinson v. First 
State Cmty. Action Agency, 920 F.3d 182, 188 n.30 (3d Cir. 2019). 
33 See Evans, 81 A.3d at 1070–71; see also Golaschevsky, 720 A.2d at 758–60 
(evidence of an adverse action taken four months after a report of wrongdoing was 
insufficient to survive summary judgment where the employee failed to meet minimum 
performance standards). 
34 Shaner v. Synthes, 204 F.3d 494, 504–05 (3d Cir. 2000). 
 
 
9 
Campbell ensured that Bolognone would conduct his review. This is not a “materially 
adverse” employment action, as Dahl-Campbell simply ensured that the individual who 
oversaw Peck for nearly his entire probationary period wrote the evaluation, rather than a 
new supervisor who was less familiar with him.35  
Peck’s whistleblower claim fails on both prongs, rendering summary judgment 
appropriate. 
* * * 
A reasonable jury could not conclude that Peck engaged in activity protected by 
the First Amendment or the Pennsylvania Whistleblower Law. For the foregoing reasons, 
we will affirm. 
 
35 See Weston v. Pennsylvania, 251 F.3d 420, 431 (3d Cir. 2001) (two written 
reprimands were not an adverse employment action where the plaintiff suffered no direct 
negative consequence), overruled in part on other grounds by Burlington N. & Santa Fe 
Ry. Co. v. White, 548 U.S. 53 (2006). 


Sean Peck v. Megan Bolognone

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
5-1-2025 
John Collado v. Bracco USA Inc 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
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"John Collado v. Bracco USA Inc" (2025). 2025 Decisions. 349. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/349 
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Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
 
NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
_______________ 
 
No. 24-1668 
_______________ 
 
UNITED STATES OF AMERICA; STATE OF CALIFORNIA; STATE OF 
COLORADO; STATE OF CONNECTICUT; STATE OF DELAWARE; STATE OF 
FLORIDA; STATE OF GEORGIA; STATE OF HAWAII; STATE OF ILLINOIS; 
STATE OF INDIANA; STATE OF IOWA; STATE OF LOUISIANA; STATE OF 
MICHIGAN; STATE OF MINNESOTA; STATE OF MONTANA; STATE OF 
NEVADA; STATE OF NEW HAMPSHIRE; STATE OF NEW JERSEY; STATE OF 
NEW MEXICO; STATE OF NEW YORK; STATE OF NORTH CAROLINA; STATE 
OF OKLAHOMA; STATE OF RHODE ISLAND; STATE OF TENNESSEE; STATE 
OF TEXAS; STATE OF VERMONT; STATE OF WASHINGTON; 
COMMONWEALTH OF MASSACHUSETTS; COMMONWEALTH OF PUERTO 
RICO; COMMONWEALTH OF VIRGINIA; DISTRICT OF COLUMBIA; ex rel. 
JOHN COLLADO  
    
v. 
 
BRACCO USA, INC.; BRACCO DIAGNOSTICS, INC.; ACIST MEDICAL 
SYSTEMS, INC.; NYU LANGONE HEALTH SYSTEM, INC.; DUPAGE MEDICAL 
GROUP; HONORHEALTH; SOUTHERN ILLINOIS HEALTHCARE ENTERPRISES, 
INC.; KERN COUNTY HOSPITAL AUTHORITY; JOHN DOE DEFENDANTS 1–100 
 
 
JOHN COLLADO, 
 Appellant 
_______________ 
 
On Appeal from the United States District Court 
for the District of New Jersey 
(D.C. No. 2:20-cv-08719) 
District Judge: Honorable Evelyn Padin 
_______________ 
 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 
January 30, 2025 
 
 
2 
 
Before: KRAUSE, PORTER, and ROTH, Circuit Judges 
 
(Filed: May 1, 2025) 
 
_______________ 
 
OPINION* 
_______________ 
 
KRAUSE, Circuit Judge. 
Relator-Plaintiff John Collado appeals the District Court’s order dismissing his qui 
tam action under the False Claims Act (FCA), 31 U.S.C. § 3729 et seq., and state-FCA 
equivalents against Defendants Bracco USA, Inc., Bracco Diagnostics, Inc., and Acist 
Medical Systems, Inc. (collectively, Bracco); and NYU Langone Health System, Inc., 
DuPage Medical Group, HonorHealth, Southern Illinois Healthcare Enterprises, Inc., and 
Kern County Hospital Authority (collectively, Providers).  Because Collado failed to 
state a claim with the particularity required by Federal Rule of Civil Procedure 9(b) for 
fraud claims, we will affirm. 
I. BACKGROUND 
Bracco manufactures and sells imaging agents used to enhance contrast in the 
images produced by x-rays, MRIs, CT scans, and ultrasounds.  Imaging agents are 
administered to patients using power injector machines, which Bracco also manufactures 
and sells nationwide. 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
 
3 
 
During his career at one of Bracco’s competitors, Appellant-Relator Collado 
learned that Bracco had—since at least 2014—been entering into “Injector Placement 
Agreements” (Agreements) with medical facilities, in which Bracco would provide them 
with free power injector machines in exchange for their agreement to buy 90% of their 
imaging agents from Bracco for a three-to-five-year period.  JA239–41.  If a medical 
facility stopped purchasing Bracco’s imaging agents at the end of the Agreement’s term, 
it could either return the machine or buy it at a 70% discount.   
The Providers, each of which had entered into Agreements with Bracco, would 
then submit Medicare and Medicaid claims for imaging services and for imaging agents 
used to provide those services.  The federal Anti-Kickback Statute prohibits any person 
or entity from giving or receiving anything of value, including “a discount or other 
reduction in price,” to influence the purchase of another product or service reimbursable 
by a federal healthcare program, unless the value is “properly disclosed and appropriately 
reflected” in any claim for reimbursement.  42 U.S.C. § 1320a-7b(b)(1), (b)(2), (b)(3)(A); 
see also 42 C.F.R. § 1001.952(h).  Claims submitted in violation of these provisions are 
“legally false” claims under the FCA.  United States ex rel. Greenfield v. Medco Health 
Sols., Inc., 880 F.3d 89, 94 (3d Cir. 2018).   
In November 2021, Collado filed his first amended complaint,1 alleging that the 
Agreements between Bracco and Providers were “sham[s]” designed to “conceal their 
transactions from the Government[] and to file false claims for reimbursement.”  JA62.  
 
1 Collado filed his action on behalf of the United States, various state and territorial 
governments, and the District of Columbia, but none elected to intervene.   
 
4 
 
The District Court dismissed his FCA and state fraud claims for failure to comply with 
Rule 9(b)’s heightened pleading standard and provided Collado with leave to amend.  
Collado attempted to do so with his second amended complaint, filed in March 2023.  
This time, Collado’s complaint included as exhibits several of the Agreements signed by 
Providers.  Although each contained a term requiring Providers to comply with the Anti-
Kickback Statute’s disclosure rule, Collado alleged that, “[u]pon information and belief,” 
the Providers were not accounting for the free power injectors “when filing cost reports 
with federal agencies,” and “Bracco [wa]s not taking these free power injectors into 
account in reporting its average sales prices of the [imaging agents] to [g]overnment 
[a]gencies.”  JA245.  He alleged, in other words, that Providers were submitting legally 
false claims for reimbursement by falsely certifying their compliance with the Anti-
Kickback Statute. 
In March 2024, the District Court dismissed Collado’s second amended complaint 
with prejudice for again failing to satisfy Rule 9(b)’s particularity requirement.  Collado 
timely appealed, challenging the District Court’s application of the Rule 9(b) standard. 
II. DISCUSSION2 
Pleadings under the FCA must “go well beyond Rule 8’s threshold of 
plausibility,” United States ex rel. Bookwalter v. UPMC, 946 F.3d 162, 176 (3d Cir. 
2019), and “state with particularity the circumstances constituting fraud,” Fed. R. Civ. P. 
 
2 The District Court had jurisdiction under 28 U.S.C. § 1331 and 31 U.S.C. § 3732, and 
we have jurisdiction under 28 U.S.C. § 1291.  We review a dismissal for failure to state a 
claim de novo.  United States ex rel. Bookwalter v. UPMC, 946 F.3d 162, 168 (3d Cir. 
2019). 
 
5 
 
9(b).  The essence of the particularity requirement is “the who, what, when, where, and 
how.”  Bookwalter, 946 F.3d at 176 (quoting United States ex rel. Moore & Co., P.A. v. 
Majestic Blue Fisheries, LLC, 812 F.3d 294, 307 (3d Cir. 2016)).  A plaintiff complies 
with Rule 9(b) in a FCA suit when they allege “particular details of a scheme to submit 
false claims paired with reliable indicia that lead to a strong inference that claims were 
actually submitted.”  Foglia v. Renal Ventures Mgmt., LLC, 754 F.3d 153, 157–58 (3d 
Cir. 2014) (quoting United States ex rel. Grubbs v. Kanneganti, 565 F.3d 180, 190 (5th 
Cir. 2009)). 
Collado’s second amended complaint does not clear this bar.  Although Collado 
alleges in detail how free transfers of power injectors could have been used to defraud the 
government, “[d]escribing a mere opportunity for fraud will not suffice.”  Id. at 158.  And 
Collado does not plead with particularity any “reliable indicia” suggesting Defendants 
failed to disclose the free transfers to the government.  Instead, he relies on one averment 
based on “information and belief.”  JA245.  But because the complaint does not set forth 
the specific facts or basis upon which his belief is founded, it falls short of Rule 9(b)’s 
heightened pleading requirements.  See Corsello v. Lincare, Inc., 428 F.3d 1008, 1013–
14 (11th Cir. 2005). 
Collado contends his allegations are bolstered by the Agreements attached to his 
second amended complaint.  But each Agreement expressly required Providers to comply 
with the Anti-Kickback Statute by properly disclosing the value of the discounted power 
injector.  So the contracts exhibited by Collado suggest, if anything, that false claims 
were not submitted.  It remains possible, of course, that these contracts are—as Collado 
 
6 
 
alleges—“sham[s].”  See, e.g., JA211.  But Rule 9(b) requires more than bare allegations 
of illegality accompanied by “facts that could plausibly have either a legal or illegal 
explanation.”  United States ex rel. Silver v. Omnicare, Inc., 903 F.3d 78, 92 (3d Cir. 
2018).  Here, “the possibility of a legitimate explanation”—that Bracco and the Providers 
entered into a mutually beneficial contract and complied with their express contractual 
terms not to defraud the government—“undermines the strength of the inference of 
illegality.”  Id.  
Collado next argues that the District Court should have relaxed Rule 9(b)’s rigid 
pleading requirements.  But relaxation is unwarranted because Collado has not made the 
requisite showing that the factual information at issue lies exclusively within Defendants’ 
knowledge or control.  See In re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d 198, 
216 (3d Cir. 2002); Shapiro v. UJB Fin. Corp., 964 F.2d 272, 285 (3d Cir. 1992); 
Craftmatic Sec. Litig. v. Kraftsow, 890 F.2d 628, 645–46 (3d Cir. 1989).  And even under 
a relaxed Rule 9(b) standard, “[p]laintiffs must accompany their legal theory with factual 
allegations that make their theoretically viable claim plausible,” In re Burlington Coat 
Factory Sec. Litig., 114 F.3d 1410, 1418 (3d Cir. 1997), and provide “facts indicating 
why the charges against defendants are not baseless,” Craftmatic, 890 F.2d at 646.  As 
the District Court recognized, Collado’s sweeping allegation based purely on 
“information and belief,” JA245—that none of the Defendants properly disclosed their 
Agreements to the government in the almost ten-year period addressed by his 
complaint—still fails to meet this mark, see Hayduk v. Lanna, 775 F.2d 441, 444 (1st Cir. 
 
7 
 
1985).  So “even under a relaxed application of Rule 9(b),” Collado’s “boilerplate and 
conclusory allegations will not suffice.”  In re Burlington, 114 F.3d at 1418. 
III. CONCLUSION 
For the foregoing reasons, we will affirm the District Court’s judgment.  


John Collado v. Bracco USA Inc

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
5-7-2025 
In Re: Alberto Concepcion 
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Recommended Citation 
"In Re: Alberto Concepcion" (2025). 2025 Decisions. 368. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/368 
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DLD-122        NOT PRECEDENTIAL 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 25-1542 
___________ 
 
IN RE: ALBERTO CONCEPCION, 
      Petitioner 
____________________________________ 
 
On a Petition for Writ of Mandamus from the 
United States District Court for the District of New Jersey 
(Related to D.N.J. Crim. No. 2:99-cr-00753-001) 
____________________________________ 
 
Submitted Pursuant to Rule 21, Fed. R. App. P. 
April 10, 2025 
 
Before:   RESTREPO, FREEMAN, and NYGAARD, Circuit Judges 
 
(Opinion filed: May 7, 2025) 
_________ 
 
OPINION* 
_________ 
 
PER CURIAM 
 On December 16, 2024, Alberto Concepcion, a former federal prisoner convicted 
on a charge of conspiring to distribute heroin, submitted a motion in the District Court.  
He sought to recuse the District Judge in his 1999 criminal case (D.N.J. Crim. No. 2:99-
cr-00753-001), and he challenged, inter alia, his conviction and the legality of his 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
 
2 
 
supervised release, which is expected to end in May 2025.1  In early January, that motion, 
with its accompanying filings, was docketed on a new civil docket in the District Court 
(D.N.J. Civ. No. 2:25-cv-00133) as a motion pursuant 28 U.S.C. § 2255.  On that docket, 
on March 21, 2025, the District Court ruled on the filing, denying the recusal motion and 
dismissing the § 2255 motion as unauthorized second or successive motion.2   
On March 25, 2025, Concepcion filed a petition for a writ of mandamus in this 
Court, asking us to order the District Court “to immediately decide the Recusal Motion 
… including any, & all other relief(s) as this Court may deem just, & proper . . . .”  3d 
Cir. Doc. No. 1-1 at 5.  In his mandamus petition, he complains of the delay in 
adjudicating his recusal motion and takes issue with the District Judge’s involvement in 
his case.  
To the extent that Concepcion seeks a ruling on his recusal motion, he has 
obtained the relief he requested.  Accordingly, his request for an order compelling the 
District Court to rule is moot.  See Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 
698-99 (3d Cir. 1996) (noting that “[i]f developments occur during the course of 
adjudication that eliminate a plaintiff's personal stake in the outcome of a suit or prevent 
 
1 With his motion, he included an application for permission to file it.  As a matter of 
background, we note that, in 2005, the District Court entered an order enjoining him from 
filing further claims in the District Court without leave of the District Court.   
 
2 He has since filed an appeal of that decision, see Conception v. United States, C.A. No. 
25-1685, and asks us to consolidate his petition with that appeal.   
 
3 
 
a court from being able to grant the requested relief, the case must be dismissed as 
moot”). 
 Furthermore, to the extent that Concepcion asks us to exercise our mandamus 
authority to order District Judge’s recusal, mandamus relief is not warranted.  First, 
insomuch as he seeks mandamus relief related to any refusal by the District Judge to 
recuse under 28 U.S.C. § 144, mandamus relief is not available because he may challenge 
that ruling in his appeal from that order.  See In re Briscoe, 448 F.3d 201, 212 (3d Cir. 
2006) (stating that mandamus may not be used as a substitute for appeal). 
To the extent that Concepcion argues that recusal is proper under 28 U.S.C. § 455 
on the basis that the District Judge’s impartiality might reasonably be questioned, we may 
consider the issue on mandamus.  See In re Kensington Int’l Ltd., 353 F.3d 211, 219-20 
(3d Cir. 2003); Alexander v. Primerica Holdings, 10 F.3d 155, 163 (3d Cir. 1993).  
Concepcion’s call for the District Judge’s recusal is based on his interpretation of the 
District Judge’s ordinary involvement in his criminal case.  He has not identified, and we 
do not discern, any facts that would put the District Judge’s impartiality in question.  See 
In re United States, 666 F.2d 690, 694 (1st Cir. 1981) (stating recusal is not required on 
the basis of “unsupported, irrational, or highly tenuous speculation”); see also Liteky v. 
United States, 510 U.S. 540, 555 (1994) (“[J]udicial rulings alone almost never constitute 
4 
 
a valid basis for a bias or partiality recusal motion.”).  Accordingly, we will not exercise 
our mandamus authority to order the District Judge’s recusal.3   
For these reasons, we will deny Concepcion’s mandamus petition.4     
 
3 We also have reviewed the other bases for recusal under § 455 and have concluded that 
none applies.   
 
4 We deny his motion to consolidate his petition with his appeal at C.A. No. 25-1685. 


In Re: Alberto Concepcion

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
5-8-2025 
James Bailey v. Tektronix Inc 
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https://digitalcommons.law.villanova.edu/thirdcircuit_2025/383 
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NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
_________________ 
No. 24-1603 
_________________ 
JAMES BAILEY, 
    
 
v. 
 
TEKTRONIX INC, an Oregon Corporation, 
                         Appellant 
_________________ 
On Appeal from the United States District Court 
for the District of Delaware 
(D.C. Civil No. 1:21-cv-01268) 
District Judge:  Honorable Gregory B. Williams 
_________________ 
Submitted Under Third Circuit L.A.R. 34.1(a) 
February 6, 2025 
 
Before: RESTREPO, MONTGOMERY-REEVES, and SCIRICA, Circuit Judges. 
 
(Opinion filed: May 8, 2025)  
_________________ 
OPINION* 
_________________ 
MONTGOMERY-REEVES, Circuit Judge.  
This appeal concerns the interpretation of a single contractual provision.  For the 
reasons below, we will affirm the District Court’s judgment.  
 
*  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. BACKGROUND 
James Bailey owned a technology company, Initial State Technologies (“IST”).  
IST specialized in helping devices send data to a cloud or internet platform.  Tektronix 
was interested in acquiring IST, and in January 2018, contracted with Bailey to do so (the 
“Merger Agreement”). 
At the same time, Bailey and Tektronix signed a “retention holdback agreement” 
(the “Holdback Agreement,” collectively with the Merger Agreement, the 
“Agreements”).  The Holdback Agreement entitled Bailey to up to $800,000 if he: (1) 
stayed employed by Tektronix through December 31, 2020; and (2) reached certain 
revenue goals relating to Tektronix software sales.  The Holdback Agreement defined 
“revenue” as: 
[E]ach dollar of gross revenue in excess of $6,000,000 (but, 
for the avoidance of doubt, less than or equal to $10,000,000) 
generated during 2020 by any member of [Tektronix] or with 
respect to any software that contains any of the intellectual 
property owned by [IST] as of the Closing Date.  
 
J.A. 98.  The language “with respect to any software that contains any of the [IP] owned 
by” IST (the “Revenue Language”) is the focal point of this appeal.   
After the merger, Bailey went to work for Tektronix.  Tektronix asked him to 
develop a software module, the Marshall Module,1 for incorporation into a Tektronix 
 
1 Bailey, at trial, described the Marshall Module as a “software module that was written 
in . . . Python that could be inserted into” Tektronix’s oscilloscopes.  J.A. 407.  Python is 
a computer programming language.  Pyrotechnics Mgmt., Inc. v. XFX Pyrotechnics LLC, 
38 F.4th 331, 336 n.5 (3d Cir. 2022). 
3 
product: oscilloscopes.2  Between November 2020 and December 2020, the Marshall 
Module was enabled, integrated into Tektronix’s oscilloscopes, and had certain “links or 
calls” to IST’s intellectual property.3  J.A. 301.   
In January 2021, Bailey sought $800,000 from Tektronix, which he believed he 
was owed under the Holdback Agreement for meeting his targets relating to “software.”  
Tektronix rejected Bailey’s request, and this litigation ensued.  After a bench trial, the 
court found that Bailey was entitled to the $800,000 under the Holdback Agreement, 
holding “revenue from or with respect to any software . . . plainly refer[s] to the sale of 
oscilloscopes incorporating” IST’s IP through the Marshall Module.  J.A. 33. 
II. DISCUSSION4 
On appeal, Tektronix argues that the District Court erred by: (1) concluding that 
Bailey offered a reasonable interpretation of the Revenue Language; and (2) holding in 
favor of Bailey’s Revenue Language interpretation after reviewing the extrinsic evidence.  
We disagree.  
 
2 “An oscilloscope is an instrument that graphically displays electrical voltage signals as 
a function of time.”  Opening Br. 4.   
 
3 In 2020, revenue from the sale of oscilloscopes that had links or calls to IST’s 
intellectual property through the Marshall Module exceeded $10,000,000.  Software 
revenue from the sale of subscriptions or licenses to software that contained IST’s 
intellectual property but was not related to the sale of oscilloscopes was below 
$6,000,000.   
 
4  The District Court had jurisdiction over this case under 28 U.S.C. § 1332.  We have 
jurisdiction over this appeal under 28 U.S.C. § 1291.   
4 
A. The District Court’s Revenue Language Interpretation 5   
“Delaware adheres to the ‘objective’ theory of contracts, i.e. a contract’s 
construction should be that which would be understood by an objective, reasonable third 
party.” Terrell v. Kiromatic Biopharma, Inc., No. 131, 2024, ___ A.3d ___, 2025 WL 
249073, at *3 (Del. Jan. 21, 2025) (quoting Osborn ex rel. Osborn v. Kemp, 991 A.2d 
1153, 1159 (Del. 2010)).  “When the contract is clear and unambiguous, [Delaware 
courts] give effect to the plain-meaning of the contract’s terms and provisions.”  Osborn, 
991 A.2d at 1159–60.  An “[a]mbiguity exists ‘when the provisions in controversy are 
reasonably or fairly susceptible of different interpretations.’” VLIW Tech., LLC v. 
Hewlett-Packard Co., 840 A.2d 606, 615 (Del. 2003) (quoting Vanderbilt Income & 
Growth Assocs., L.L.C. v. Arvida/JMB Managers, Inc., 691 A.2d 609, 613 (Del. 1996)); 
see also Osborn, 991 A.2d at 1160 (“[W]hen [a court] may reasonably ascribe multiple 
and different interpretations to a contract, we will find that the contract is ambiguous.”).  
Tektronix contends that the only reasonable interpretation of the Revenue 
Language is that “revenue must be tied to the sale or license of software—whether that be 
subscription revenue or technical support relating to use of the cloud-based software 
platform” (“Direct Software Sales”).  J.A. 8.  Tektronix argues that the Revenue 
 
5 We review de novo a district court’s decision to grant a motion to dismiss.  Kalu v. 
Spaulding, 113 F.4th 311, 324 (3d Cir. 2024) (citing Doe v. Univ. of Scis., 961 F.3d 203, 
208 (3d Cir. 2020)).  “[O]n appeal from a bench trial, our court reviews a district court’s 
findings of fact for clear error and its conclusions of law de novo.” Lehman Bros. 
Holdings, Inc. v. Gateway Funding Diversified Mortg. Servs., 785 F.3d 96, 100 (3d Cir. 
2015) (quoting VICI Racing, LLC v. T-Mobile USA, Inc., 763 F.3d 273, 282–83 (3d Cir. 
2014)).   
5 
Language cannot reasonably include the sale of hardware that contained IST’s 
intellectual property (“Indirect Software Sales”).  See id.  Its reasoning is simple; 
hardware and software are two different words with two different meanings.  
Commonsense tells us that is true.  But that simple distinction is not dispositive; instead, 
we must analyze all the words in the Revenue Language.   
Four words in the Revenue Language—“with respect to any”—dispose of any 
notion that Tektronix’s Direct Software Sales interpretation is unambiguously correct.  
As the District Court correctly concluded, “with respect to” means “with reference to” or 
“insofar as concerns” or “as regards.”  J.A. 10.  And, as the District Court alluded to in 
passing, “any” carries great weight;6 it is defined as “one or some indiscriminately of 
whatever kind” or as “used to indicate one selected without restriction.” Any, Merriam-
Webster Dictionary, https://www.merriam-webster.com/dictionary/any (last accessed 
March 2025).  As “with respect to any” precedes both “software” and “intellectual 
property,” a simple construction suggests that “with respect to any software” means 
“insofar as it concerns any software, of whatever kind” or “as regards any software, 
without restriction.”   
With these definitions in mind, Tektronix’s limiting interpretation of the Revenue 
Language ignores the parties’ expansive inclusion of “with respect to any” in the 
Revenue Language.  In re Shorenstein Hays-Nederlander Theatres LLC Appeals, 213 
A.3d 39, 56 (Del. 2019) (“[W]e will give each provision and term effect, so as not to 
 
6 J.A. 9 (“The combination of ‘with respect to’ and ‘any’ . . . suggests that the parties 
intended to give ‘with respect to’ a broader scope when they add ‘any.’”).  
6 
render any part of the contract mere surplusage.” (quoting Osborn, 991 A.2d at 1159)).  
Further, Tektronix ignores the fact that software within hardware is still “software.”  As 
such, the District Court did not err in concluding that Bailey’s interpretation was 
reasonable.7  Thus, we will affirm the District Court’s motion to dismiss order.8  
B. The District Court’s Post-Trial Holding 
After trial, the District Court held that extrinsic evidence confirmed Bailey’s 
interpretation of the Revenue Language was the only objectively reasonable 
interpretation.  To reverse, we must conclude that the District Court’s findings regarding 
the evidence were “completely devoid of a credible evidentiary basis” or that they bore 
“no rational relationship to the supporting data.”  Bedrosian v. U.S. Dep’t of Treasury, 
Internal Revenue Serv., 42 F.4th 174, 180 (3d Cir. 2022) (quoting Interfaith Cmty. Org. v. 
Honeywell Int’l, Inc., 399 F.3d 248, 254 (3d Cir. 2005)).  We cannot do so.    
The District Court found at trial, citing to record evidence, that: (1) “A customer 
of IST’s would use its technology by implementing [IST’s intellectual property] in the 
software of whatever device the customer manufactured . . . so that the device could 
‘talk’ to IST’s internet service,” J.A. 21; (2) Tektronix was interested in IST, in part, so 
 
7 Tektronix challenges the District Court’s post-trial holding that Bailey offered a 
reasonable interpretation of the Revenue Language.  This challenge fails for the same 
reasons. 
 
8 We also reject Tektronix’s argument that the Agreements’ commercial context and 
purpose favor its interpretation of the Revenue Language.  Contrary to Tektronix’s 
assertions, we have seen nothing to suggest that Bailey’s interpretation of the Revenue 
Language negates the value of the Agreements for Tektronix.    
7 
that it could include IST’s intellectual property in its oscilloscopes; (3) “oscilloscopes 
have software integrated into them that the user interfaces with to see . . . signals and 
analyze them,” J.A. 21–22; (4) “[d]uring negotiations between the companies, 
Tektronix’s oscilloscopes did not have the capability to communicate with the cloud and 
[Tektronix] specifically informed [Bailey] that [it] wanted IST to be the epicenter of the 
cloud technology initiatives for Tektronix,” J.A. 22; (5) in 2020, Bailey, as a Tektronix 
employee, began developing the Marshall Module; (6) IST’s intellectual property was 
“included in the Marshall Module that was [then] included in Tektronix’s oscilloscopes,” 
J.A. 27; and (7) once the Marshall Module was incorporated into the oscilloscopes’ 
existing software in 2020, revenue per month for oscilloscope sales doubled from $10 
million to $20 million by year’s end.   
Taking these factual findings together, coupled with the express language of the 
Agreements, the District Court concluded it would be unreasonable to construe the 
Revenue Language as depriving Bailey of $800,000 for the work he completed on the 
Marshall Module, which was directly integrated into Tektronix’s oscilloscopes by the end 
of 2020 and included IST’s intellectual property.  The District Court’s findings, which 
are supported by the record, were not clearly erroneous.   
Nor did the District Court clearly err in finding that Tektronix’s evidence did not 
demand a different result.  To this end, the District Court found that: (1) “[a]t no time did 
Tektronix ever attempt to limit the definition of [r]evenue to” Direct Software Sales; 
instead, Tektronix chose to expansively define software through use of the phrase “any 
software,” suggesting that revenue through Indirect Software Sales was contemplated, 
8 
J.A. 26; (2) there is no evidence in the record that the parties ever discussed limiting the 
definition of “software” revenue to only include revenue earned through Direct Software 
Sales; (3) similarly, there was never any discussion between the parties of excluding the 
sale of oscilloscopes “that contained software which included IST’s [intellectual 
property],” J.A. 27; and (4) “[m]ost importantly, [the Revenue Language] reflects” the 
fact that no discussions occurred between the parties to limit “software” revenue to Direct 
Software Sales because the “[Revenue L]anguage [itself] incorporates no . . . limiting 
language” like that which Tektronix contends it should be understood to include, J.A. 
27.9   
On the above factual findings, the District Court did not clearly err in concluding 
that Bailey’s interpretation of the Revenue Language was the only objectively reasonable 
interpretation after consideration of extrinsic evidence.  Accordingly, we will affirm the 
District Court’s post-trial decision as well.10    
III. CONCLUSION 
For the reasons discussed above, we will affirm the District Court’s judgment. 
 
9 Tektronix, on appeal, points us to evidence in the record that it contends conclusively 
supports its position.  Opening Br. 45.  We are not persuaded because Tektronix’s 
submitted evidence does not go to the ultimate question of how the parties collectively 
understand “software” under the Holdback Agreement.    
 
10 We do not reach Tektronix’s arguments relating to the forthright negotiator principle 
because we do not consider Bailey’s testimony.   


James Bailey v. Tektronix Inc

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
5-14-2025 
Ken Swenson, I v. Clyde Vedder 
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"Ken Swenson, I v. Clyde Vedder" (2025). 2025 Decisions. 399. 
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Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
 
NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 24-2652 
__________ 
 
KEN SWENSON, I; CINDY CARD; LADONNA CARD, 
        Appellants 
 
v. 
 
JUDGE CLYDE VEDDER, In Official Capacity, Court of Common Pleas of York 
County; ERIK D. SPURLIN, Attorney, MPL Law Firm, and in individual capacity; 
JULIE STOIL FERNANDEZ, Attorney, Finkel & Fernandez, LLP, and in individual 
capacity Finkel & Fernandez, LLP; RAYMOND CARD, Disowned son and Illegal co-
guardian; KERMIT CARD, Disowner son and Illegal co-guardian; BRANDY G. HOKE, 
Attorney, Ream, Carr, Markey, Woloshin & Hunter LLP, and in individual capacity; 
FINKEL & FERNANDEZ, LLP 
____________________________________ 
 
On Appeal from the United States District Court 
for the Middle District of Pennsylvania 
(D.C. Civil Action No. 1:22-cv-00635) 
District Judge:  Honorable Jennifer P. Wilson 
____________________________________ 
 
Submitted Pursuant to Third Circuit LAR 34.1(a) 
May 12, 2025 
Before:  HARDIMAN, MATEY, and CHUNG, Circuit Judges 
 
(Opinion filed:  May 14, 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 
 As we write primarily for the parties, who are familiar with the background of this 
case, we will focus on the facts most relevant to the analysis.1  Essentially, in 2011, as a 
result of a petition originally filed by three of her four adult children, Ella Card, over her 
strong objection, was adjudicated an incapacitated person, and The Vera Institute of 
Justice, Inc., became her property guardian.2  Three times over the years (including once 
with her two daughters and her son-in-law), she sought to remove the guardianship 
proceeding to federal court; thrice, the matter was remanded to state court.   
In July 2020, at an ex parte hearing, Ella Card’s two sons, Raymond and Kermit, 
became co-guardians of her estate.3  In early February 2022, with Erik Spurlin as their 
counsel, they filed a petition in York County Orphans’ Court for enforcement of the order 
appointing them co-guardians, including assistance in meeting their obligation to visit 
their mother four times per year (they had not seen her since the 2011 proceeding).  At a 
hearing on the petition on March 21, 2022, before Judge Clyde Vedder, they learned that 
Ella Card had died on February 16, 2022.  That same day, Judge Vedder issued an order 
 
1 We take notice of previous judicial proceedings and otherwise draw information from 
the complaint, the allegations of which we presume are true because of the posture of this 
appeal.   
 
2 No personal guardian was appointed because Ella Card moved to Belize, where she had 
been born and owned property, shortly after the hearing on the petition.  She later 
returned to the United States and lived in Pennsylvania.   
 
3 We will refer to Ella Card’s sons (two of the appellees), daughters (two of the 
appellants), and son-in-law (the third appellant) by their first names for convenience.   
 
3 
 
requiring Ella Card’s daughter, Cindy, and Ken, the husband of Ella Card’s other 
daughter, LaDonna, to file an accounting of Ella Card’s assets and estate.      
Cindy, LaDonna, and Ken then filed a lengthy complaint in District Court, suing 
Kermit; Raymond; Spurlin; Judge Vedder; Julie Stoil Fernandez, a lawyer who 
represented Kermit and Raymond at the July 2020 hearing; her firm, Finkel & Fernandez, 
LLP; and Brandy Hoke, an attorney who appeared at the March 2022 hearing on behalf 
of Ella Card.  They cited 42 U.S.C. §§ 1983, 1985, and 1986, 18 U.S.C. § 242, and 
claimed constitutional violations, fraud on the York County Orphans’ Court under 
Federal Rule of Civil Procedure 60(b)(3), and violations of state law (including a claim of 
elder abuse for the death of Ella Card).  They sought various forms of relief, requesting, 
inter alia, damages and an order voiding state court rulings.   
Kermit, Raymond, Fernandez, and Finkel & Fernandez, LLP, jointly filed a 
motion to dismiss the complaint under the Rooker-Feldman doctrine.4  Also, Judge 
Vedder, Hoke, and Spurlin each filed a motion to dismiss.  Spurlin also solely relied on 
the Rooker-Feldman doctrine as a basis for dismissal, while the other two defendants 
each raised additional grounds.  The District Court granted Judge Vedder’s and Hoke’s 
motions and dismissed the complaint as to them but denied the motions filed by the other 
defendants.  Kermit, Raymond, Fernandez, Finkel & Fernandez, and Spurlin (also “the 
 
4 Rooker v. Fid. Tr. Co., 263 U.S. 413 (1923); D.C. Ct. of Appeals v. Feldman, 460 U.S. 
462 (1983); see also Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 
(2005) (explaining that the Rooker-Feldman doctrine bars review of “cases brought by 
state-court losers complaining of injuries caused by state-court judgments rendered 
before the district court proceedings commenced and inviting district court review and 
rejection of those judgments”). 
 
4 
 
remaining defendants”) later filed a joint motion for judgment on the pleading.  
Meanwhile, Cindy, LaDonna, and Ken filed several motions, seeking, inter alia, a 
temporary restraining order and a preliminary injunction.  The District Court granted the 
remaining defendants’ motion, dismissing all federal claims with prejudice and declining 
to exercise supplemental jurisdiction over any state law claims.  The District Court also 
dismissed the other pending motions as moot.  Cindy, LaDonna, and Ken filed a timely 
notice of appeal.   
We have jurisdiction under 28 U.S.C. § 1291.  We exercise plenary review over 
the District Court’s rulings on the motions to dismiss and the motion for judgment on the 
pleadings.5  See St. Luke’s Health Network, Inc. v. Lancaster Gen. Hosp., 967 F.3d 295, 
299 (3d Cir. 2020); Leamer v. Fauver, 288 F.3d 532, 535 (3d Cir. 2002).  
Upon review, we will affirm the District Court’s judgment.  As a preliminary 
matter, to the extent that Cindy, LaDonna, and Ken asked the District Court to void (or 
otherwise sought to appeal) a state court judgment in the District Court, the District Court 
lacked jurisdiction under the Rooker-Feldman doctrine.6  See Great W. Mining & Min. 
 
5 We do not review any issues that Cindy, LaDonna, and Ken do not raise.  See M.S. ex 
rel. Hall v. Susquehanna Twp. Sch. Dist., 969 F.3d 120, 124 n.2 (3d Cir. 2020) (holding 
that the appellant forfeited claims by failing to raise them in the opening brief).  Also, we 
will not review the denial of their motions for a temporary restraining order and 
preliminary injunction because this appeal is moot to the extent that they challenge that 
decision.  See Hankins v. Temple Univ., 829 F.2d 437, 438 n.1 (3d Cir. 1987).   
 
6 Also, to the extent that Cindy, LaDonna, and Ken asked the District Court to order 
Judge Vedder to recuse from state-court proceedings, the District Court was without 
authority to issue such an order.  See In re Wolenski, 324 F.2d 309, 309 (3d Cir. 1963) 
(per curiam) (explaining that a district court lacked jurisdiction “to issue a writ of 
mandamus compelling action by a state official”); Knox v. Bland, 632 F.3d 1290, 1292 
 
5 
 
Co. v. Fox Rothschild LLP, 615 F.3d 159, 166 (3d Cir. 2010) (describing the 
requirements for applying the Rooker-Feldman doctrine). 
Furthermore, as the District Court determined, the claims against Judge Vedder 
could not proceed.  In his official capacity, Judge Vedder is entitled to immunity under 
the Eleventh Amendment.  See Benn v. First Jud. Dist. of Pa., 426 F.3d 233, 240-41 (3d 
Cir. 2005).  And, in his personal capacity, Judge Vedder is protected by judicial 
immunity for the judicial acts that Cindy, LaDonna, and Ken described.  See Stump v. 
Sparkman, 435 U.S. 349, 355-57 (1978) (explaining that judges are not civilly liable for 
judicial acts); Azubuko v. Royal, 443 F.3d 302, 304 (3d Cir. 2006) (per curiam) (holding 
that “because [a plaintiff] has not alleged that a declaratory decree was violated or that 
declaratory relief is unavailable, and because the injunctive relief sought by [the plaintiff] 
does not address the actions of [the judge] other than in his judicial capacity, [the 
plaintiff’s] claim for injunctive relief is barred”). 
As for the remaining defendants, Cindy, LaDonna, and Ken could not impose § 
1983 liability against persons who are not “state actors.”7  See Leshko v. Servis, 423 F.3d 
 
(10th Cir. 2011) (reasoning that “[w]e have no authority to issue . . . a writ to direct state 
courts or their judicial officers in the performance of their duties” (citation and internal 
quotation marks omitted)).  And the District Court could not provide relief under a 
federal rule of civil procedure for what did or did not happen in state court proceedings.  
Additionally, to the extent that Cindy, LaDonna, and Ken sought to proceed under 18 
U.S.C. § 242 and now seek relief under that statute and/or 18 U.S.C. § 241, those 
criminal statutes are inapplicable to their civil suit.  Cf. Linda R.S. v. Richard D., 410 
U.S. 614, 619 (1973) (stating that a private citizen has no “judicially cognizable interest 
in the prosecution . . . of another”). 
 
7 Cindy, LaDonna, and Ken maintain that Kermit and Raymond were state actors as co-
guardians of their mother’s estate, citing cases about guardians in support of their 
 
6 
 
337, 339 (3d Cir. 2005) (“[T]o state a claim of liability under § 1983, [the plaintiff] must 
allege that [he] was deprived of a federal constitutional or statutory right by a state 
actor.”).  Anyone can act “under color of state law” for purposes of § 1983 by 
participating in a joint conspiracy with a state actor, see Abbott v. Latshaw, 164 F.3d 141, 
147-48 (3d Cir. 1998), and Judge Vedder is a state actor.  But the District Court correctly 
determined that the allegations of a conspiracy between Judge Vedder (or any other court 
official) and the other defendants did not rise above the level of bare assertions, which are 
insufficient to state such a claim.  See Great W. Mining & Min. Co. 615 F.3d at 178; see 
also Dennis v. Sparks, 449 U.S. 24, 28 (1980) (“[M]erely resorting to the courts and 
being on the winning side of a lawsuit does not make a party a co–conspirator or a joint 
actor with the judge.”); Abbott, 164 F.3d at 148 (describing as insufficient a complaint 
that “contains conclusory allegations of concerted action but is devoid of facts actually 
reflecting joint action”).   
The absence of plausible allegations about a conspiracy also precluded success on 
the § 1985 claim.  See D.R. by L.R. v. Middle Bucks Area Vocational Tech. Sch., 972 
 
argument.  But the cases they cite do not counsel a different outcome.  For instance, In re 
Guardianship of L.W., 482 N.W.2d 60 (Wis. 1992), relates to the role of guardians in a 
different context and does not bear on the interpretation of “state actor” for the purposes 
of § 1983.  And the facts are distinguishable in the § 1983 case of Thomas S. v. Morrow, 
781 F.2d 367 (4th Cir. 1986).  It is true that a guardian in that case was considered a 
“state actor.”  But, unlike in this case, that guardian acted in concert with, or obtained 
significant aid from, state officials in taking the challenged actions.  Id. at 377-78.  
Similarly, actions taken by the attorney defendants in their roles as attorneys did not 
constitute state action in the absence of “some action that is fairly attributable to the 
state.”  Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 277 (3d Cir. 1999) (cleaned 
up).    
 
7 
 
F.2d 1364, 1377 (3d Cir. 1992) (en banc) (affirming a dismissal of a conspiracy claim 
under 42 U.S.C. § 1985 because of a failure “to assert any facts from which any type of 
conspiratorial agreement . . . can be inferred”).  Because the § 1985 claim was 
insufficient, Cindy, LaDonna, and Ken could not prevail on their § 1986 claim, either.  
See Rogin v. Bensalem Twp., 616 F.2d 680, 696 (3d Cir. 1980) (explaining that where a 
claim under §1985(3) is insufficient, a dependent § 1986 claim also fails). 
Under the circumstances, the District Court did not abuse its discretion in 
concluding that further amendment would be futile.  See Grayson v. Mayview State 
Hosp., 293 F.3d 103, 108 (3d Cir. 2002).  And the District Court did not abuse its 
discretion in declining to exercise supplemental jurisdiction over the state law claims 
raised in the complaint after dismissing the claims under federal law.  See Figueroa v. 
Buccaneer Hotel, Inc., 188 F.3d 172, 181 (3d Cir. 1999).   
We have considered the other issues that Cindy, LaDonna, and Ken have raised in 
their brief and conclude that they are without merit.8  For these reasons, we will affirm 
the District Court’s judgment.   
 
 
8 Regarding their argument that the District Court should not have permitted Kermit, 
Raymond, Fernandez, and Spurlin to file their answer to the complaint in December 
2023, we have reviewed the docket and do not discern an abuse of discretion in 
permitting them to then file the answer.  See In re Fine Paper Antitrust Litig., 685 F.2d 
810, 817 (3d Cir. 1982) (explaining that “matters of docket control … are committed to 
the sound discretion of the district court”). 


Ken Swenson, I v. Clyde Vedder

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
5-16-2025 
In Re: Raymond Kraynak 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"In Re: Raymond Kraynak" (2025). 2025 Decisions. 409. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/409 
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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Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
 
CLD-124        NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 25-1004 
___________ 
 
IN RE: RAYMOND KRAYNAK, 
    Petitioner 
____________________________________ 
 
On a Petition for Writ of Mandamus from the 
United States District Court for the Middle District of Pennsylvania 
(Related to Crim. No. 4:17-cr-00403-001) 
____________________________________ 
 
Submitted Pursuant to Rule 21, Fed. R. App. P. 
April 10, 2025 
Before:  KRAUSE, PHIPPS, and SCIRICA, Circuit Judges 
 
(Opinion filed: May 16, 2025) 
_________ 
 
OPINION* 
_________ 
 
PER CURIAM 
 Raymond Kraynak petitions this Court for a writ of mandamus to compel the 
recusal of Chief Judge Matthew Brann from presiding over Kraynak’s motion to vacate 
his sentence under 28 U.S.C. § 2255. For the reasons that follow, we will deny the 
mandamus petition. 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
 
 
2 
 In 2017, petitioner Kraynak was indicted on a litany of charges related to his 
conduct in dispensing over six million doses of opioids in five years while working as a 
Doctor of Osteopathy. United States v. Kraynak, 553 F. Supp.3d 245, 249 (M.D. Pa. 
2021). After the government had presented its case at trial, Kraynak pleaded guilty in 
exchange for a fifteen-year prison term, but subsequently moved to withdraw his plea on 
the ground that he was actually innocent. United States v. Kraynak, 2023 WL 4636419, at 
*1 (3d Cir. July 20, 2023). After a hearing, the District Court denied his motion to 
withdraw his plea and sentenced him to fifteen years; this Court affirmed both decisions 
on direct appeal. Id. 
In May 2024, Kraynak filed a motion under 28 U.S.C. § 2255 challenging his 
conviction. In response, the District Court issued an Order informing Kraynak of § 
2255’s limitations on second or successive motions and asking if he wished to stand on 
his current motion or refile an “all-inclusive [§ 2255] motion.” Order on Notice of 
Election, ECF No. 284 at 2 (citing United States v. Miller, 197 F.3d 644 (3d Cir. 1999)). 
Kraynak elected to withdraw his motion, and then proceeded to move for the recusal of 
Chief Judge Brann, as well as the appointment of counsel. A key element of his motion 
for recusal was his contention that the transcript of the hearing in which he testified 
regarding his motion to withdraw his guilty plea was “criminally redacted” with Judge 
Brann’s personal knowledge. ECF No. 288 at 2. The District Court denied both motions.  
Kraynak now petitions this Court for a writ of mandamus ordering the recusal of 
Chief Judge Brann, a change of venue, the appointment of legal counsel, and an 
 
 
3 
expedited hearing on his petition. He further requests that both Judge Brann and the court 
reporter be ordered to produce the “complete” transcript of his hearing, and that their 
involvement in redacting the transcripts be referred to federal law enforcement.1  
A writ of mandamus is a “drastic remedy” that may be granted only in 
“extraordinary circumstances in response to an act amounting to a judicial usurpation of 
power.” In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir. 2005) (citation 
omitted). To justify the use of this drastic remedy, petitioners must show that they have 
no other adequate means to obtain the relief desired, have a clear and indisputable right to 
the writ, and that the writ would be appropriate under the circumstances. See Haines v. 
Liggett Grp. Inc., 975 F.2d 81, 89 (3d Cir. 1992); see also Hollingsworth v. Perry, 558 
U.S. 183, 190 (2010) (per curiam). When the requested writ demands the recusal of a 
district court judge under 28 U.S.C. § 455, the petitioner must show that the statute 
“clearly and indisputably required the district judge to disqualify himself.” In re School 
Asbestos Litigation, 977 F.2d 764, 778 (3d Cir. 1992). 
Kraynak has not met this exacting burden, because his petition does not provide 
any evidentiary support for his assertions of bias beyond his own statements. This lack of 
factual support is fatal to Kraynak’s petition, because, accordingly, he cannot point to any 
facts that “clearly and indisputably” required the recusal of Chief Judge Brann. Id.; see 
 
1 Kraynak also asked that he be granted an equitable extension to AEDPA’s one year 
statute of limitations, because of the imminent deadline for filing a timely § 2255 
petition. However, the District Court docket indicates that Kraynak has since filed a 
motion, which is currently under consideration by the District Court.  
 
 
4 
also 28 U.S.C. § 455(a) & (b)(1). For similar reasons, he has not made the necessary 
showing to warrant the other relief he requests.    
 Thus, we will deny Kraynak’s petition. 


In Re: Raymond Kraynak

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
5-16-2025 
USA v. Victor Garcia-Rivera 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"USA v. Victor Garcia-Rivera" (2025). 2025 Decisions. 413. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/413 
This May 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. 24-1742 
 ______________ 
 
UNITED STATES OF AMERICA 
 
v. 
 
VICTOR GARCIA-RIVERA, 
also known as Hector Gonzalez-Rivera, 
                                                         Appellant 
______________ 
 
On Appeal from the United States District Court 
for the Eastern District of Pennsylvania 
(D.C. No. 5:23-cr-00118-001) 
U.S. District Judge:  Honorable Joshua D. Wolson 
______________ 
 
Submitted Under Third Circuit L.A.R. 34.1(a) 
May 16, 2025 
______________ 
 
Before: SHWARTZ, MATEY, and FREEMAN, Circuit Judges. 
 
(Filed: May 16, 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 
 
SHWARTZ, Circuit Judge. 
Victor Garcia-Rivera received a 105-month sentence for drug and firearm 
offenses.  Because Garcia-Rivera waived his right to appeal and no manifest injustice will 
result from enforcing the waiver, we will grant his counsel’s motion to withdraw pursuant 
to Anders v. California, 386 U.S. 738 (1967), and affirm. 
I 
 Police stopped a vehicle in which Garcia-Rivera, a convicted felon, was a 
passenger.  While searching the car, police found a handgun where Garcia-Rivera had 
been sitting and 84.88 grams of fentanyl.  
 Garcia-Rivera was charged with possession of a controlled substance with intent 
to distribute in violation of 21 U.S.C. § 841, possession of a firearm by a convicted felon 
in violation of 18 U.S.C. § 922(g)(1), and possession of a firearm during a drug 
trafficking offense in violation of 18 U.S.C. § 924(c).  After he filed pretrial motions, but 
before they were all resolved, Garcia-Rivera entered into a plea agreement.  Under the 
agreement, (1) Garcia-Rivera agreed to plead guilty to the drug and the felon-in-
possession charges, (2) the Government agreed to dismiss the remaining gun charge, and 
(3) Garcia-Rivera waived his right to appeal his conviction and sentence unless (a) the 
Government appealed, (b) the appeal was based on (i) a claim that his sentence exceeded 
the statutory maximum, (ii) a challenge to any upward departure or variance from the 
Guidelines-recommended range, or (c) a claim of ineffective assistance of counsel.  
 At sentencing, the District Court determined that Garcia-Rivera’s total offense 
level was 23 and his criminal history category was V, resulting in a Guidelines range of 
3 
 
84 to 105 months.1  The Court sentenced Garcia-Rivera to 105 months’ imprisonment 
followed by five years’ supervised release, based on its consideration of the factors set 
forth in 18 U.S.C. § 3553(a), and conclusion that the sentence imposed reflected the 
nature and circumstances of the offense, Garcia-Rivera’s criminal history, and the need 
for deterrence.   
Garcia-Rivera appeals, and his counsel moves to withdraw under Anders.2   
II3 
Our local rules allow a criminal defendant’s appellate 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) (citations omitted); see United States v. Brookins, 132 F.4th 659, 
 
1 The District Court correctly overruled Garcia-Rivera’s objection to the inclusion 
of a May 2006 conviction in his criminal history computation, reasoning that the 2006 
conviction should be included because it took place less than 15 years before the 
“commencement of the [instant] offense[s],” App. 90, which is the relevant test for 
determining whether a dated conviction should be counted in the criminal history 
computation.  U.S.S.G. § 4A1.2(e)(1).   
2 Garcia-Rivera has not submitted pro se briefing in support of his appeal despite 
having had the opportunity to do so. 
3 The District Court had jurisdiction under 18 U.S.C. § 3231 and we have 
jurisdiction under 28 U.S.C. § 1291.  In conducting an Anders analysis, we exercise 
plenary review to determine whether there are any nonfrivolous issues for appeal.  
Penson v. Ohio, 488 U.S. 75, 80-83 & n.6 (1988).   
4 
 
665 (3d Cir. 2025)).4   
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, identifying those that arguably support the appeal, see Smith v. Robbins, 528 U.S. 
259, 285 (2000), and (2) explains why the identified issues are frivolous, Brookins, 132 
F.4th at 666; United States v. Marvin, 211 F.3d 778, 780-81 (3d Cir. 2000).  Garcia-
Rivera’s counsel has fulfilled these obligations. 
Typically, Garcia-Rivera’s guilty plea would limit the appealable issues to (1) the 
District Court’s jurisdiction; (2) the voluntariness of his plea; and (3) the reasonableness 
of his sentence, see Menna v. New York, 423 U.S. 61, 62 (1975) (per curiam); United 
States v. Broce, 488 U.S. 563, 569 (1989); 18 U.S.C. § 3742, but here, as his counsel 
acknowledged, Garcia-Rivera signed an appellate waiver, which further limits the 
appealable issues.  Despite this waiver, Garcia-Rivera’s counsel still explained why 
jurisdiction existed and why any challenge to Garcia-Rivera’s plea or sentence would be 
frivolous.  Counsel has thus fulfilled his Anders obligations. See Youla, 241 F.3d at 300. 
B 
 Our independent review of the record accords with counsel’s assessment.  Garcia-
Rivera entered a plea agreement containing an appellate waiver, which, if applicable, 
 
4 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 
 
would bar this appeal.5  “[W]e will enforce an appellate waiver . . . where we conclude 
(1) that the issues [the defendant] pursues on appeal fall within the scope of his appellate 
waiver and (2) that he knowingly and voluntarily agreed to the appellate waiver, unless 
(3) enforcing the waiver would work a miscarriage of justice.”  United States v. Grimes, 
739 F.3d 125, 128-29 (3d Cir. 2014) (internal quotation marks omitted and second 
alteration in original).  
 To determine the scope of an appellate waiver, we examine the language of the 
plea agreement and strictly construe it.  United States v. Corso, 549 F.3d 921, 927 (3d 
Cir. 2008). Garcia-Rivera’s appellate waiver provides that in exchange for certain 
promises, Garcia-Rivera waived his right to appeal or collaterally attack his conviction 
subject to four exceptions: (1) the Government appeals, (2) he claims that his sentence 
exceeds the statutory maximum, (3) he challenges an upward departure or variance, or (4) 
his appeal is based on an ineffective assistance of counsel claim.   
 None of these circumstances are present.  First, the Government has not appealed.  
Second, Garcia-Rivera’s sentence is below the applicable statutory maximums.  See 21 
U.S.C. § 841(b)(1) (providing a forty-year maximum prison term for violating 21 U.S.C. 
§ 841); 18 U.S.C. § 3583(b)(1) (providing a five-year maximum supervised release term 
 
5 “We review the validity and scope of an appellate waiver de novo.”  United 
States v. Grimes, 739 F.3d 125, 129 (3d Cir. 2014).  An appellate waiver “does not 
deprive us of subject matter jurisdiction, but, when the waiver is valid, we will not 
exercise that jurisdiction to review the merits of the defendant’s appeal,” and will 
“[t]ypically . . . affirm the judgment of the district court,” rather than “dismiss[] the 
appeal.”  United States v. James, 928 F.3d 247, 252 (3d Cir. 2019) (internal quotation 
marks and alteration omitted). 
6 
 
for Class B felonies, which include 21 U.S.C. § 841); 18 U.S.C. § 924(a)(2) (providing a 
ten-year maximum prison term for violating 18 U.S.C. § 922(g)); 18 U.S.C. § 3583(b)(2) 
(providing a three-year maximum supervised release term for Class C felonies, which 
include 18 U.S.C. § 922(g)).6  Third, the Court’s sentence was within the Guidelines 
range of 84 to 105 months.  See U.S.S.G. Ch. 5 Pt. A (2023).  Finally, Garcia-Rivera has 
not alleged that his counsel was ineffective and rather, represented during the plea 
hearing that he was satisfied with his representation.    
 Next, the record shows that Garcia-Rivera knowingly and voluntarily agreed to the 
appellate waiver.  At the plea hearing, Garcia-Rivera affirmed that he (1) understood “the 
plea agreement . . . limit[ed] [his] right to appeal,” (2) discussed the appellate waiver with 
his attorney, and (3) was satisfied with counsel’s explanation.  App. 65.  Garcia-Rivera 
also affirmed his understanding of the appellate waiver in writing by signing both the 
plea agreement and Acknowledgement of Rights form.  Thus, there is no nonfrivolous 
argument that Garcia-Rivera did not knowingly and voluntarily waive his appellate 
rights. 
 Finally, enforcement of the appellate waiver would not work a miscarriage of 
justice.  “To determine whether enforcing a waiver works a miscarriage of justice, we 
consider [t]he clarity of the error, its gravity, [and] its character,” among other things, 
with the aim of avoiding “manifest injustice.”  Grimes, 739 F.3d at 130 (internal 
quotation marks omitted).  Here, there is no error.  Garcia-Rivera was charged in a 
 
6 The class B and C felony designations are based on the statutory maximum 
Garcia-Rivera faced.  See 18 U.S.C. § 3559(a)(2), (a)(3). 
7 
 
district court with jurisdiction, entered a knowing and voluntary plea, and was sentenced 
below the statutory maximum for his offenses.  Furthermore, the District Court correctly 
calculated the Guidelines range, considered the § 3553(a) factors, and imposed a within-
Guidelines sentence.  Accordingly, we cannot say that enforcing the appellate waiver 
would work a miscarriage of justice and so we will enforce it.   
III 
For the foregoing reasons, we will grant counsel’s motion to withdraw and affirm. 


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