Villanova University School of Law: Digital Repository

USDC for the Western District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
2-11-2025 
USA v. Daniel Teed 
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Recommended Citation 
"USA v. Daniel Teed" (2025). 2025 Decisions. 119. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/119 
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inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law 
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ALD-079       NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 24-3072 
___________ 
 
UNITED STATES OF AMERICA 
 
v. 
 
DANIEL TEED, 
    Appellant 
 
____________________________________ 
 
On Appeal from the United States District Court 
for the Western District of Pennsylvania 
(D.C. Criminal No. 2:18-cr-00036-001) 
District Judge:  Honorable Arthur J. Schwab 
____________________________________ 
 
Submitted on Appellee’s Motion for Summary Action 
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 
February 6, 2025 
Before:  BIBAS, PORTER, and MONTGOMERY-REEVES, Circuit Judges 
 
(Opinion filed: February 11, 2025) 
_________ 
 
OPINION* 
_________ 
 
PER CURIAM 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
 
2 
 
Daniel Teed appeals pro se from the District Court’s order denying his motion for 
a reduction of his federal sentence. We will summarily affirm the District Court’s 
judgment. 
In 2017, Teed pleaded guilty in the Western District of Pennsylvania to conspiracy 
to commit sex trafficking of children, in violation of 18 U.S.C. § 1594(c), and the District 
Court sentenced him to 120 months’ incarceration. Teed paid to participate in gang 
bangs, where he had sex at least three times with a girl that he knew was 16 years old. 
The District Court ordered Teed to register as a sex offender, and it granted Teed’s 
request to self-report to prison. Instead, Teed fled. After a six-week manhunt, he was 
arrested in Arizona.  
In 2018, Teed pleaded guilty to failing to register as a sex offender, in violation of 
18 U.S.C. § 2250(a), and failing to surrender for service of his sentence, in violation of 
18 U.S.C. § 3146(a)(2). The same District Judge sentenced him to two concurrent 18-
month sentences for those new convictions, to run consecutively to his 120-month 
sentence. At the time of sentencing, the recommended range under the United States 
Sentencing Guidelines (USSG) was 18 to 24 months.   
Teed did not file a direct appeal. Teed filed three motions for compassionate 
release pursuant to 18 U.S.C. § 3582(c)(1). The District Judge who sentenced him in both 
cases denied all three motions. Teed did not appeal from the denials of those motions. 
In July 2024, Teed’s court-appointed counsel filed a motion for reduction of 
sentence pursuant to 18 U.S.C. § 3582(c)(2). Counsel asserted that under Amendment 
821, Teed’s criminal history score would be lowered from Category III to Category II, 
 
3 
 
which would lower his applicable USSG range from 18 to 24 months to 15 to 21 months 
of incarceration. The Government agreed, but the parties contested whether a reduction of 
Teed’s sentence would be consistent with the sentencing factors enumerated at 18 U.S.C. 
§ 3553(a). The District Court denied the motion, finding that although it was authorized 
to reduce Teed’s sentence by up to three months, a sentence reduction was unwarranted 
based on the § 3553(a) factors. Teed timely appealed. The Government has filed a timely 
motion for summary action, and Teed has opposed the motion.  
We have jurisdiction under 28 U.S.C. § 1291, and we generally review the District 
Court’s denial of a § 3582(c)(2) motion for abuse of discretion. See United States v. 
Thompson, 825 F.3d 198, 203 (3d Cir. 2016). We may summarily affirm the District 
Court’s order if an appeal presents no substantial question for our review. See 3d Cir. 
L.A.R. 27.4; IOP 10.6.  
Section 3582(c)(2) authorizes a district court to reduce a defendant’s sentence if 
the defendant was sentenced “based on a sentencing range that has subsequently been 
lowered by the [United States] Sentencing Commission,” but only if “the reduction is 
consistent with applicable policy statements issued by the Sentencing Commission.”   For 
that reason, a district court proceeding under § 3582(c)(2) must first “follow the 
Commission’s instructions in [applicable policy statement] §1B1.10 to determine the 
prisoner’s eligibility for a sentence modification and the extent of the reduction 
authorized.” See Dillon v. United States, 560 U.S. 817, 821 (2010). If a sentence 
modification is authorized, then the District Court must “consider any applicable § 
3553(a) factors and determine whether, in its discretion, the reduction authorized . . . is 
 
4 
 
warranted in whole or in part under the particular circumstances of the case.” See id. at 
827. Section 3553(a) requires courts to (1) consider, among other factors, the 
circumstances of the offense and the defendant’s history and characteristics, and (2) 
impose a sentence that sufficiently reflects the offense’s seriousness, promotes respect for 
the law, provides just punishment, deters criminal conduct, protects the public from the 
defendant’s further crimes, and provides the defendant with needed correctional 
resources. 
The parties agree that the District Court correctly determined that a sentence 
reduction of up to three months was warranted under policy statement §1B1.10 and 
Amendment 821. However, Teed argues that the District Court did not appropriately 
weigh all of the § 3553(a) factors before deciding that his 18-month sentence is 
appropriate.  
We find that the District Court did not abuse its discretion in denying Teed’s § 
3553(a) motion, and we are satisfied that the District Court “has considered the parties’ 
arguments and has a reasoned basis for exercising his own legal decision-making 
authority.” See Chavez-Meza v. United States, 585 U.S. 109, 113 (2007) (quoting Rita v. 
United States, 551 U.S. 338, 356 (2007), in the context of a § 3582(c)(2) motion). The 
District Court was not required to provide a detailed analysis of every possibly applicable 
§ 3553(a) factor, particularly where (1) the District Judge asserted in a form (AO-247) 
order that he “considered” Teed’s motion and “the policy statement set forth at USSG § 
1B1.10 and the sentencing factors set forth in 18 U.S.C. § 3553(a), to the extent they are 
applicable,” see ECF No. 68; (2) the same District Judge imposed the underlying 
 
5 
 
sentence and has consistently recited similar arguments in denying Teed’s three 
compassionate release motions; and (3) the District Judge imposed a sentence that is 
within the new, lower USSG range. Cf. Chavez-Meza, 551 U.S. at 113-14, 117-20. Here, 
the District Court went a step further than the district judge in Chavez-Meza by providing 
an opinion. The District Court reasonably determined that an 18-month sentence was “an 
appropriate (additional) amount of time” to punish Teed’s “attempt[] to avoid punishment 
for his original crime.” See ECF No. 67 at 6. The District Court emphasized that Teed’s 
cross-country flight and failure to register as a sex offender not only reflected his 
“inability to accept responsibility for his criminal actions” and “utter lack of respect for 
the law,” but also posed an ongoing danger to the public. See id. at 5-6. It does not follow 
from the opinion’s emphasis on certain § 3553(a) factors that the District Court ignored 
other factors. 
Teed’s other arguments are unpersuasive. First, he asserts that “[i]t would be 
reasonable to assume” that the court would have imposed a 15-month sentence if the 
bottom of the applicable range was 15 and not 18 months. See C.A. No. 11 at 6. But there 
is no presumption that a judge will resentence a defendant to a point within the new lower 
USSG range that is “proportional” to the point chosen in the older USSG range. See 
Chavez-Meza, 585 U.S. at 116-17.  
Second, Teed contends that the District Court ignored evidence of his post-
sentence rehabilitation efforts in his seven years of incarceration. The District Court did 
not expressly address Teed’s rehabilitation argument in the opinion denying his § 
3582(c)(2) motion. However, the same District Judge considered the same or very similar 
 
6 
 
rehabilitation evidence in rejecting Teed’s third motion for compassionate release, 
reasoning that Teed “may be commended for the numerous education classes he has 
taken while incarcerated,” but his post-conviction rehabilitation efforts did “not negate 
nor even come close to counterbalancing” the same § 3553(a) factors that the District 
Judge emphasized in denying Teed’s § 3582(c)(2) motion. See ECF No. 59 at 8; Chavez-
Meza, 585 U.S. at 118-19 (reasoning that a reviewing court may consider the record as a 
whole for evidence of the district court’s consideration of § 3553(a) factors, because a § 
3582(c)(2) motion does not result in a “plenary resentencing proceeding”). To the extent 
that Teed asserts that he has more recent evidence of rehabilitation beyond what appears 
in the District Court record, the District Court can hardly be faulted for failing to consider 
evidence that was never presented to it.1  
 Consequently, there is no substantial question for our review, and we grant the 
Government’s motion to summarily affirm the District Court’s decision.  
 
 
1 Absent exceptional circumstances, we generally would not consider Teed’s argument or 
additional evidence for the first time on appeal. See Jenkins v. Superintendent of Laurel 
Highlands, 705 F.3d 80, 88 n.12 (3d Cir. 2013). 


English

USA v. Daniel Teed

USDC for the Eastern District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
2-11-2025 
Peter Sauers v. Oak Property Management LP 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Peter Sauers v. Oak Property Management LP" (2025). 2025 Decisions. 121. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/121 
This February is brought to you for free and open access by the Opinions of the United States Court of Appeals for 
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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. 24-2468 
__________ 
 
PETER SAUERS, 
   Appellant 
 
v. 
 
OAK PROPERTY MANAGEMENT LP; ASHLEY MANAGEMENT CO.; *COUNTY 
BUILDERS, INC.; MIKE MEISTER; KEVIN RILEY 
 
(*Amended Per Clerk Order of 8/28/24) 
____________________________________ 
 
On Appeal from the United States District Court 
for the Eastern District of Pennsylvania 
(E.D. Pa. Civil Action No. 2:23-cv-05146) 
District Judge:  Honorable Mark A. Kearney 
____________________________________ 
 
Submitted Pursuant to Third Circuit LAR 34.1(a) 
February 7, 2025 
 
Before: SHWARTZ, MONTGOMERY-REEVES, and SCIRICA, Circuit Judges 
 
(Opinion filed: February 11, 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 
Peter Sauers, proceeding pro se, appeals a post-judgment order of the District 
Court issued in his civil rights action.  For the reasons that follow, we will affirm. 
 Sauers filed a complaint against Oak Property Management LP, Ashley 
Management Company, County Builders, Inc., and two individuals arising from the 
development of townhomes near his home.  Sauers claimed violations of his 
constitutional rights and state law.1  In an Order dated June 10, 2024, the District Court 
granted the defendants’ motion to dismiss the complaint.  The District Court explained in 
an accompanying opinion that res judicata barred Sauers’ claims under the First, Fifth, 
and Fourteenth Amendments.  It also ruled that he did not state a claim for relief under 
the Seventh Amendment.  The District Court declined to exercise supplemental 
jurisdiction over Sauers’ state law claims, which were dismissed without prejudice to his 
pursuing them in state court.   
 On June 27, 2024, Sauers filed a document titled “Motion for Extension of Time 
to Respond to Motion to Dismiss to MEMORANDUM KEARNEY, J. June 10, 2024, to 
Amend Complaint Rule 15.”  He asserted that the District Court erred in dismissing his 
complaint and presented arguments in support of his claims.  The District Court denied 
the motion, stating that Sauers had already filed a response to the motion to dismiss, 
which it had considered before issuing its June 10 decision.   
 
1 This was Sauers’ second federal complaint against these defendants.  The first was 
dismissed because Sauers had not adequately alleged that the defendants were state actors 
for purposes of 42 U.S.C. § 1983.  We affirmed that judgment.  Sauers v. Oak Prop. 
Mgmt. LP, 849 F. App’x 378, 380-81 (3d Cir. 2021) (per curiam) (non-precedential). 
3 
 
 On July 26, 2024, Sauers filed another document alleging error by the District 
Court and claiming that the defendants had committed fraud in state court.  As relief, he 
asked the District Judge to send his case back to state court and order a state court judge 
to take certain action.  On the same date, the District Court denied the requested relief.   
This appeal followed. 
We have jurisdiction pursuant to 28 U.S.C. § 1291.  The scope of our review is 
limited to the District Court’s July 26, 2024, post-judgment order.  Sauers did not file a 
timely notice of appeal from the District Court’s June 10, 2024, order (entered June 11, 
2024) dismissing his complaint.  Even if we were to construe his June 27, 2024, motion 
as a timely motion for reconsideration that tolled the time to appeal the dismissal order, 
see Fed. R. App. P. 4(a)(4), the District Court denied that motion in an order entered on 
June 28, 2024.  Sauers did not file a timely notice of appeal from that order.  While he 
argued in his July 26, 2024, filing that the District Court erred, he requested relief from 
the District Court.  His filing does not evince an intent to appeal, and it is best construed 
as a motion pursuant to Federal Rule of Civil Procedure 60(b).2  Sauers’ notice of appeal, 
filed on August 7, 2024, is timely only as to the District Court’s July 26, 2024, order.  We 
review that order for abuse of discretion.  See Cox v. Horn, 757 F.3d 113, 118 (3d Cir. 
2014) (stating standard of review for denial of relief under Rule 60(b)). 
Sauers does not present a clear argument on appeal challenging the District 
Court’s denial of post-judgment relief.  He reiterates assertions he made in his July 26 
 
2 This filing also cannot further extend the time to appeal the underlying order as a 
request for re-reconsideration.  See Turner v. Evers, 726 F.2d 112, 114 (3d Cir. 1984). 
4 
 
filing that the District Court erred in dismissing his complaint without instructing him 
how to remedy its deficiencies.  He also appears to reiterate that there was fraud in state 
court.  Sauers, however, has not raised a question as to the District Court’s dismissal 
order or shown any extraordinary circumstances warranting relief under Rule 60(b)(6).  
See Cox, 757 F.3d at 120 (requiring such circumstances for relief under the catch-all 
provision of Rule 60(b)(6)).  He also has not shown that he qualifies for relief under any 
of the other provisions of Rule 60(b), including Rule 60(b)(3), which provides for relief 
based on fraud in the underlying action.  And, to the extent Sauers has not already 
pursued his state law claims in state court, the District Court’s order does not preclude 
him from doing so. 
Sauers also argues that he established that the defendants were state actors for 
purposes of bringing a claim under 42 U.S.C. § 1983.  Sauers did not raise this argument 
in his post-judgment motion.  Even if his argument were properly before us, it lacks merit 
because the District Court did not dismiss his complaint in this case for lack of state 
action. 
Accordingly, we will affirm the judgment of the District Court. 
 


Peter Sauers v. Oak Property Management LP

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
2-12-2025 
Kevin Marsh v. Attorney General United States of America 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Kevin Marsh v. Attorney General United States of America" (2025). 2025 Decisions. 126. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/126 
This February 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. 24-1722 
________________ 
 
 
KEVIN ANTHONY MARSH,  
                                                    Petitioner 
 
v. 
 
ATTORNEY GENERAL UNITED STATES OF AMERICA  
 
_______________________ 
 
On Petition for Review of a Decision of the   
Board of Immigration Appeals   
BIA-1 : A060-010-154 
Immigration Judge: Pallavi Shirole 
__________________________ 
 
Submitted under Third Circuit L.A.R. 34.1(a) 
 January 23, 2025 
 
Before: HARDIMAN, AMBRO, and SMITH, Circuit Judges 
 
 
________________ 
 
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 
 
 
SMITH, Circuit Judge. 
I. 
Kevin Marsh seeks review of a Board of Immigration Appeals decision 
denying his motion to reopen his final removal order.1 We will dismiss in part and 
otherwise deny the petition on procedural grounds. 
II. 
Marsh is a Jamaican citizen who came to New York as a conditional resident 
in 2008, eventually becoming a permanent resident in 2010. In May 2019, Marsh 
pled guilty to a 2017 drug offense in violation of New Jersey Code Annotated §§ 
2C:35-5a(1) and 2C:35-5b(10)(b) and was sentenced to three years in prison. Shortly 
after completing his sentence, the Department of Homeland Security issued a Notice 
To Appear charging him with removability under 1) 8 U.S.C. § 1227(a)(2)(B)(i), as 
a non-citizen convicted of a controlled substance offense; and 2) 8 U.S.C. § 
1227(a)(2)(A)(iii), as a non-citizen convicted of an aggravated felony.  
We include only a brief summation of the procedural events. Marsh retained 
Stephanie Norton to represent him in the immigration proceedings. Norton appeared 
before the Immigration Judge and contested Marsh’s removability based on the 
theory that his conviction was not a categorical match for either charge of 
 
1 This Court has jurisdiction over the petition for review under 8 U.S.C. § 1252(a)(1), 
(a)(2)(D). See Kucana v. Holder, 558 U.S. 233, 250 (2010) (affirming that courts of appeals 
“retain jurisdiction to review” the Board’s decisions on motions to reopen). 
 
3 
 
removability because the New Jersey statute categorized more drugs as controlled 
substances than federal law and was indivisible as to the identity of the substance. 
The IJ sustained the removability charges and ordered Marsh to be deported to 
Jamaica. The Board affirmed the IJ’s decision in a final ruling on July 19, 2021.  
On July 28, 2021, Marsh filed a pro se petition for review with our Court 
appealing the Board’s dismissal. Norton also filed a motion to reconsider with the 
Board on August 18, 2021, for Marsh. On August 24, 2022, the Board denied the 
motion.  
In September 2022, Norton realized she could have argued before the IJ that 
the New Jersey definition of marijuana at the time of conviction was broader than 
the federal definition of marijuana, i.e. a “hemp overbreadth” argument. To correct 
her oversight, she helped Marsh draft and file a Rule 28(j) letter to this Court 
explaining the new argument. On February 14, 2023, we deemed the argument 
unexhausted and denied the petition for review.  
On June 16, 2023, represented by new counsel, Marsh filed a motion to reopen 
with the Board asserting that Norton had provided him ineffective assistance of 
counsel by overlooking the hemp overbreadth argument. The Board denied Marsh’s 
motion on March 22, 2024. It concluded that the motion was untimely because it 
was “filed more than 90 days after we dismissed the underlying administrative 
appeal” in violation of 8 U.S.C § 1229a(c)(7)(C)(i). AR 003. It also determined that 
 
4 
 
Marsh was not entitled to equitable tolling and had failed to meet the procedural 
requirements for an ineffective assistance of counsel claim. Finally, the Board 
refrained from reopening the case sua sponte because there were no “exceptional” 
circumstances as required under 8 C.F.R. § 1003.2(a).  
III. 
Before us, Marsh asserts that the Board erred by finding that his motion to 
reopen was untimely and procedurally defective. We turn first to Marsh’s equitable 
tolling argument. Notably, without a determination that tolling should be applied, 
Marsh missed the 90-day filing deadline by over a year.  
There are two substantive requirements that must be met before we can apply 
equitable tolling: “(1) that [a petitioner] has been pursuing his rights diligently, and 
(2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 
544 U.S. 408, 418 (2005) (citing Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 
(1990)). 
We need not consider the first requirement, Marsh’s diligent pursuit of his 
rights, because he clearly fails to satisfy the second. Ineffective assistance of counsel 
can indeed be an extraordinary circumstance for purposes of equitable tolling. 
Holland v. Fla., 560 U.S. 631, 649 (2010). But the requirement was not met here 
 
5 
 
because Marsh failed to comply with the procedural steps a non-citizen must take to 
use an ineffective assistance of counsel claim to equitably toll a deadline.2 
To bring an ineffective assistance of counsel claim, a non-citizen must comply 
with three procedural requirements outlined in Matter of Lozada, 19 I. & N. Dec. 
637, 638–40 (BIA 1988). Lu v. Ashcroft, 259 F.3d 127, 132 (3d Cir. 2001). A non-
citizen must 1) include an affidavit attesting to the relevant facts; 2) inform former 
counsel of the allegations and provide counsel with the opportunity to respond; and 
3) state whether a complaint has been filed against the prior attorney with the 
appropriate disciplinary authority and “if not, why not.” Id. at 639. 
Marsh failed to complete the second Lozada requirement as he gave Norton 
only one day to respond to his pending motion to reopen, a timeline he himself 
admits was insufficient. And his claim that the defect is of no moment because the 
purposes of the Lozada requirements were met is unpersuasive. This was not a mere 
technical lack of compliance; it was a complete failure to provide Norton with any 
chance to tell her side of the story.   
Marsh also asserts that the Board erred by declining to reopen proceedings 
sua sponte and failing to provide a detailed reason for its decision. But the Board’s 
 
2 Even if Marsh had satisfied the procedural requirements to bring an ineffective-assistance 
claim, he likely was not prejudiced by the purported error because his argument is 
effectively foreclosed by the Supreme Court’s decision in Brown v. United States, 602 U.S. 
101 (2024). Marsh himself concedes that “[u]nfortunately, [his] case is factually similar to 
that of Brown  . . . .” Appellant’s Br. 33. 
 
6 
 
decision to decline to reopen proceedings sua sponte is “functionally unreviewable” 
by us because of the Board’s “essentially unlimited” discretion in this area. Sang 
Goo Park v. Att’y Gen., 846 F.3d 645, 651, 655 (3d Cir. 2017). So we will dismiss 
this part of Marsh’s petition for review because we lack jurisdiction over it. Id. at 
656. 
For the foregoing reasons, we will otherwise deny the petition for review. 


Kevin Marsh v. Attorney General United States of America

USDC for the Middle District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
2-12-2025 
USA v. Bruce Evans, Sr. 
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Recommended Citation 
"USA v. Bruce Evans, Sr." (2025). 2025 Decisions. 128. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/128 
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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. 23-2534 
____________ 
 
UNITED STATES OF AMERICA 
 
v. 
 
BRUCE EVANS, SR., 
            Appellant 
____________ 
 
On Appeal from the United States District Court 
for the Middle District of Pennsylvania 
(D.C. No. 3:19-cr-00009-001) 
District Judge: Honorable Malachy E. Mannion 
____________ 
 
Submitted Under Third Circuit L.A.R. 34.1(a) 
January 21, 2025 
 
Before: HARDIMAN, McKEE, and AMBRO, Circuit Judges. 
 
(Filed: February 12, 2025) 
____________ 
 
OPINION* 
____________ 
 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
 
2 
 
HARDIMAN, Circuit Judge. 
 Bruce Evans, Sr., appeals his judgment of conviction for Clean Water Act 
violations and wire fraud. We will affirm. 
I 
 Evans served concurrently as a supervisor in Greenfield Township, Pennsylvania, 
and as the manager of the Township Sewage Authority. During his tenure, there were 
several sewage overflows and Clean Water Act violations. Evans also owned a private 
business, and he used Authority funds to pay George Everett for work on behalf of the 
business. 
 As a result of that conduct, Evans was charged with violating the Clean Water Act, 
33 U.S.C. § 1251 et seq., and committing wire fraud, 18 U.S.C. § 1343. 
 At trial, the Government called Daniel App, an employee of First National Bank 
of Pennsylvania, to prove the wire fraud charge. He testified that First National, like most 
banks in the United States, converts checks into images before processing them 
electronically. App confirmed that First National did this for the two checks payable to 
Everett. 
Upon conclusion of the prosecution’s case, Evans moved for a judgment of 
acquittal, arguing that the Government introduced insufficient evidence that he 
knowingly caused a wire transfer by paying Everett with checks. The District Court 
denied the motion. 
 Taking the stand in his own defense, Evans testified that he never read the 
Authority’s permit. Consistent with that testimony, defense counsel argued that the jury 
 
3 
 
had to find that Evans knew he was violating a permit condition to convict him under the 
Clean Water Act. The District Court disagreed, concluding that the statute established a 
general intent crime. The Court instructed the jurors that they needed to find that Evans 
acted knowingly, that is, voluntarily and intentionally. They were not required to find that 
Evans knew his conduct was illegal or that he had read the permit. 
 The jury found Evans guilty of most charges, and Evans appealed. 
II1 
 Evans first argues that the District Court erroneously instructed the jurors about 
the requirement that he “knowingly violate[d]” a “permit condition.” 33 U.S.C. 
§ 1319(c)(2)(A). He claims that the jury had to find that he knew the permit’s conditions. 
Our precedent says otherwise. 
 The District Court’s instructions were consistent with our decision in United 
States v. West Indies Transport, Inc., 127 F.3d 299 (3d Cir. 1997). There, we approved of 
the following instruction in a case involving § 1319(c)(2)(A): “An act is done knowingly 
if done voluntarily and intentionally, and not because of mistake or accident or other 
innocent reason. The purpose of adding the word ‘knowingly’ is to insure that no one will 
be convicted for an act done because of mistake, accident, or other innocent reason.” Id. 
at 310. As this instruction shows, the knowledge requirement refers to the defendant’s 
actions—not his knowledge of a permit’s conditions. See id.; see also United States v. 
Int’l Mins. & Chem. Corp., 402 U.S. 558, 560, 562 (1971) (interpreting the phrase 
 
1 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 
28 U.S.C. § 1291. 
 
4 
 
“knowingly violates [applicable regulations]” in a different statute and concluding that it 
refers to “specific acts or omissions which violate” the statute (internal quotation marks 
omitted)). So the District Court’s instruction was not erroneous. 
III 
 We now turn to Evans’s challenge to his wire-fraud convictions. Evans claims the 
Government introduced insufficient evidence that he knowingly caused a wire transfer. In 
support, he relies on United States v. Bentz, 21 F.3d 37 (3d Cir. 1994). There, a broker in 
New York used a computer to pay the defendant in Pennsylvania with checks for steel. 
Id. at 38. We held that the use of a wire communication was not reasonably foreseeable 
because the “use of the wire by a scrap metal storage facility in Pennsylvania which 
issues checks drawn on a Pennsylvania bank [was] not self-evident.” Id. at 41. And there 
was insufficient evidence to conclude that the defendant “should reasonably have 
anticipated” a wire transmission. Id. 
Evans’s reliance on Bentz is misplaced. Here, App testified that First National 
Bank, like most banks in the United States, converts every check into a digital image 
before they are electronically processed. There was no such testimony in Bentz. App’s 
testimony permitted the jury to find that the use of a wire communication could 
“reasonably be foreseen, even though [it was] not actually intended.” United States v. 
Andrews, 681 F.3d 509, 529 (3d Cir. 2012) (citation omitted); see also Bentz, 21 F.3d at 
41 (explaining that the “content of reasonable foreseeability must inevitably keep pace 
with advances in technology and general awareness of such advances” (citation omitted)). 
 
5 
 
IV 
 For the reasons stated, we will affirm the District Court’s judgment. 


USA v. Bruce Evans, Sr.

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
2-20-2025 
In Re: Bruce Aikins 
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Recommended Citation 
"In Re: Bruce Aikins" (2025). 2025 Decisions. 143. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/143 
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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. 24-1695 
___________ 
 
IN RE:  BRUCE R. AIKINS, 
         Appellant 
____________________________________ 
 
On Appeal from the United States District Court 
for the District of New Jersey 
(D.C. Civil Action No. 3:22-cv-02899) 
District Judge: Honorable Georgette Castner 
____________________________________ 
 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 
on February 18, 2025 
 
Before: BIBAS, FREEMAN, and NYGAARD, Circuit Judges 
 
(Opinion filed: February 20, 2025) 
____________________________________  
2 
 
___________ 
 
OPINION* 
___________ 
 
PER CURIAM 
In March 2022, Bruce Aikins filed a pro se Chapter 7 petition in the United States 
Bankruptcy Court for the District of New Jersey. Two days later, ETC Equities, LLC 
(“ETC”) moved for relief from 11 U.S.C. § 362(a)’s automatic stay so that it could proceed 
with an ejectment action that it had brought against Aikins in New Jersey state court. In 
May 2022, the Bankruptcy Court granted ETC’s motion. Aikins then appealed that order 
to the District Court.1 While that appeal was pending, the proceedings in the Bankruptcy 
Court moved forward.2 
In March 2024, the District Court dismissed Aikins’s appeal for lack of prosecution 
based on his failure to file a brief. He then appealed to us, challenging the District Court’s 
judgment. Around the same time, the Bankruptcy Court entered a final decree in his Chap-
ter 7 case. That final decree stated that Aikins’s estate had been fully administered, 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
 
1 That order was immediately appealable. See Ritzen Grp., Inc. v. Jackson Masonry, LLC, 
589 U.S. 35, 37–38 (2020).  
 
2 “[W]hen a notice of appeal has been filed in a bankruptcy case, the bankruptcy court 
retains jurisdiction to address elements of the bankruptcy proceeding that are not the sub-
ject of that appeal.” In re Transtexas Gas Corp., 303 F.3d 571, 580 n.2 (5th Cir. 2002); see 
In re Castaic Partners II, LLC, 823 F.3d 966, 968–69, 969 n.3 (9th Cir. 2016) (indicating 
that it was permissible for bankruptcy court to proceed despite the pendency of an appeal 
from its order granting relief from the automatic stay). 
3 
 
discharged the Bankruptcy Trustee, and closed the Chapter 7 case. Aikins did not appeal 
from that final decree, and the time for him to do so has expired. See Fed. R. Bankr. P. 
8002(a)(1) (providing 14-day appeal period). 
Because Aikins’s Chapter 7 case is finished, the appeal before us, which stems from 
the Bankruptcy Court’s order granting relief from the automatic stay, is moot. See, e.g., 
Olive St. Inv., Inc. v. Howard Sav. Bank, 972 F.2d 214, 216 (8th Cir. 1992) (per curiam) 
(“Once the bankruptcy proceeding is dismissed, neither the goal of a successful reorgani-
zation nor the debtor’s right to the automatic stay continues to exist. Accordingly, it no 
longer serves any purpose to determine whether the bankruptcy court properly lifted the 
automatic stay; the appeal has become moot.”); In re Income Prop. Builders, Inc., 699 F.2d 
963, 964 (9th Cir. 1982) (per curiam) (“Once the bankruptcy was dismissed, a bankruptcy 
court no longer had power to order the stay or to award damages allegedly attributable to 
its vacation. A remand by us to the bankruptcy court would therefore be useless.”). Ac-
cordingly, we will (and must) dismiss this appeal on that basis. See generally Blanciak v. 
Allegheny Ludlum Corp., 77 F.3d 690, 698–99 (3d Cir. 1996) (“If developments occur 
during the course of adjudication that . . . prevent a court from being able to grant the 
requested relief, the case must be dismissed as moot.”). 


In Re: Bruce Aikins

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
2-21-2025 
In Re: Caleb McGillvary 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"In Re: Caleb McGillvary" (2025). 2025 Decisions. 149. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/149 
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Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
DLD-054 NOT PRECEDENTIAL 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
No. 24-3177 
___________ 
IN RE: CALEB L. MCGILLVARY, 
Petitioner 
____________________________________ 
On a Petition for Writ of Mandamus from the 
United States District Court for the District of New Jersey 
(Related to 1:22-cv-04185) 
____________________________________ 
Submitted Pursuant to Rule 21, Fed. R. App. P. 
December 19, 2024 
Before:  RESTREPO, FREEMAN, and NYGAARD, Circuit Judges 
(Opinion filed: February 21, 2025) 
_________ 
OPINION* 
_________ 
PER CURIAM 
In June 2022, Petitioner Caleb McGillvary filed a petition with the District Court 
for a writ of habeas corpus under 28 U.S.C. § 2254.  On March 30, 2023, the State filed 
its answer.  On May 15, 2023, McGillvary filed a reply to the State’s answer.   He also 
filed a motion for summary judgment, which the State opposed.  On August 15, 2023, in 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
2 
a text order, the District Court denied the motion for summary judgment as improperly 
filed.  See D.Ct. ECF No. 25 (citing cases).   
Thereafter, McGillvary petitioned for a writ of mandamus, asking this Court to 
compel the District Court to rule on the merits of his motion for summary judgment.  We 
denied the petition, noting that McGillvary’s “dispute is more akin to one concerning the 
District Court’s case management, which is a matter of its discretion, and not a basis for 
mandamus relief.”  In re McGillvary, Nos. 23-2660, 23-2820 (3d Cir. Nov. 28, 2023) 
(citations omitted).  
In July 2024, pursuant to 28 U.S.C. § 292(b), McGillvary’s pending habeas 
petition was transferred to an out-of-district judge for disposition.  See D.Ct. ECF No. 40.  
McGillvary filed a new motion for summary judgment, see D.Ct. ECF No. 44, which was 
referred to a magistrate judge for appropriate further action, including the issuance of a 
report and recommendation, see D.Ct. ECF No. 45.  The State once again opposed the 
motion for summary judgment.  On November 5, 2024, the Magistrate Judge issued a 
report recommending that McGillvary’s habeas petition be denied.  See D.Ct. ECF No. 
55. 
McGillvary filed written objections to the report and recommendation.   Among 
other arguments, McGillvary complained that the report and recommendation “ignores 
the allegations in the reply and undisputed facts in the summary judgment motion, which 
entitle Petitioner to habeas relief,”  D.Ct. ECF No. 58 at 4, and “erroneously denies the 
summary judgment motion as duplicative,” id. at 11.  Those objections remain pending 
before the District Court.  
 
3 
 
On November 14, 2024, the same date that McGillvary executed his written 
objections to the report and recommendation, he also executed a writ of mandamus to this 
Court.  See 3d Cir. ECF No. 1.  Although his objections were pending, McGillvary 
complains that the “District Court obstinately refuses to adjudicate the allegations 
contained in the Habeas Traverse and Reply as a pleading.”  3d Cir. ECF No. 1 at 9.  He 
asks this Court to “issue the writ of mandamus and order the U.S. District Court for the 
District of New Jersey to recognize the traverse and reply as a pleading, and give the 
allegations within it and the Statement of Material Facts not in Dispute filed in ECF 44 
due consideration and adjudicate the merits thereof.”  Id. at 22.  
A writ of mandamus will issue only in extraordinary circumstances.  See Sporck v. 
Pei, 759 F.2d 312, 314 (3d Cir. 1985).  McGillvary must show that he has a clear and 
indisputable right to the relief sought, and that a writ of mandamus from this Court is the 
only available remedy.  See Kerr v. U.S. Dist. Court, 426 U.S. 394, 403 (1976).   
McGillvary has failed to make such a showing.  As McGillvary has raised similar 
concerns in his pending objections to the report and recommendation, he clearly has a 
remedy available through the District Court.  Further, as this Court has previously 
explained to McGillvary, his allegations regarding the District Court’s handling of his 
filings concern the District Court’s case management, which is a matter of its discretion, 
see In re Fine Paper Antitrust Litig., 685 F.2d 810, 817 (3d Cir. 1982), and not a basis for 
 
4 
 
mandamus relief, see Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980) (per 
curiam).   Accordingly, we will deny the petition for a writ of mandamus.1        
 
 
1 McGillvary’s multiple motions for relief pursuant to Rule 27(c) of the Federal Rules of 
Appellate Procedure are denied.    


In Re: Caleb McGillvary

Jean-Paul Weg LLC v. Director of the New Jersey Division of Alcoholic

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
2-28-2025 
USA v. Gregory Stevens 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"USA v. Gregory Stevens" (2025). 2025 Decisions. 176. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/176 
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NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
____________ 
 
No. 24-1217 
____________ 
 
UNITED STATES OF AMERICA 
 
v. 
 
GREGORY STEVENS, 
            Appellant 
____________ 
 
On Appeal from the United States District Court 
for the Eastern District of Pennsylvania 
(D.C. No. 2:21-cr-00107-001) 
District Judge: Honorable Mitchell S. Goldberg 
____________ 
 
Argued on January 23, 2025 
 
Before: HARDIMAN, AMBRO, and SMITH, Circuit Judges. 
 
(Filed: February 28, 2025) 
 
Lisa Evans Lewis 
Brett G. Sweitzer 
Keith M. Donoghue [Argued] 
Federal Community Defender Office for the Eastern District of Pennsylvania 
601 Walnut Street 
The Curtis Center, Suite 540 West 
Philadelphia, PA 19106 
 
 Counsel for Appellant 
 
Jacqueline C. Romero 
Robert A. Zauzmer 
Michael R. Miller [Argued] 
Office of United States Attorney 
2 
 
Eastern District of Pennsylvania 
615 Chestnut Street 
Suite 1250 
Philadelphia, PA 19106 
 
 Counsel for Appellee 
____________ 
 
OPINION* 
____________ 
 
HARDIMAN, Circuit Judge. 
 Gregory Stevens appeals his judgment of conviction and sentence after pleading 
guilty to robbery and firearm offenses. We will affirm. 
I 
 While on state parole for robbery, Stevens entered a Philadelphia pharmacy, 
brandished a handgun, and threatened to shoot the employees unless they gave him 
oxycodone. The pharmacy’s owner, Ahmed Nawaz, filled up a bag with drugs and looked 
for oxycodone. Stevens told him to hurry up and again threatened to shoot him. 
Impatient, Stevens grabbed the bag from Nawaz, put the handgun in his pocket, and bent 
down to look in a safe for drugs. Nawaz—afraid that Stevens was going to shoot him—
tackled Stevens and took him to the ground. As Stevens got up, he pulled out his handgun 
and shot Nawaz in the chest before pointing the gun at Nawaz’s head. Nawaz closed his 
eyes. Stevens fled and Nawaz survived. 
 Stevens was charged with: (I) Hobbs Act robbery, 18 U.S.C. § 1951(a); (II) using, 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
3 
 
carrying, and discharging a firearm during a crime of violence, id. § 924(c)(1)(A)(iii); 
and (III) possession of ammunition as a convicted felon, id. § 922(g)(1). 
 Stevens pleaded guilty. But he later moved to withdraw his guilty plea as to Count 
III and to dismiss it on the ground that § 922(g)(1) is unconstitutional on its face and as 
applied to him. The District Court denied both motions. 
 In anticipation of sentencing, the Revised Presentence Investigation Report used 
the Sentencing Guidelines’ cross reference to attempted second-degree murder and 
calculated Stevens’s base offense level as 27 for Counts I and III. See U.S.S.G. 
§ 2A2.1(a)(2); id. § 2X1.1(c)(1); id. § 2K2.1(c)(1)(A). The Government objected, arguing 
that “the object of the offense would have constituted first degree murder,” so the cross 
reference to attempted first-degree murder applied. Id. § 2A2.1(a)(1). The Government, 
relying on a felony-murder theory, claimed that the object of the offense was first-degree 
murder because Stevens would have committed first-degree murder if Nawaz had died 
during the robbery. Stevens disagreed, contending that the object of the offense was 
robbery and that the firearm was not intentionally discharged. 
 At sentencing, the Government called Nawaz to describe the robbery. The District 
Court credited Nawaz’s testimony that Stevens intentionally “pointed the gun at him and 
shot him.” App. 177–78. Afterward, the District Court recessed to review relevant 
caselaw. Following the recess, the District Court discussed “some very straightforward 
language in some of the cases that [it thought] supports the Government’s position.” App. 
180–81. Quoting United States v. Murillo, 526 F. App’x 192, 194 n.3 (3d Cir. 2013), the 
District Court said “[i]f the district court had found premeditation, the base offense level 
4 
 
would have been 33 because the object of the offense would have constituted first degree 
murder.” App. 181. After discussing two other cases about § 2A2.1(a)(1), the Court 
reasoned that “I think logic dictates, since I found that the shooting was intentional and 
the elements of murder—attempted murder necessarily include intentional conduct, I 
think logic dictates that [§ 2A2.1(a)(1) applies] because the object of the offense would 
have constituted first degree murder.” App. 181–82. The Court said that “an intentional 
shooting, attempted murder; certainly no one is disputing it was through a vital part of the 
victim’s body, his chest, and I believe no one’s disputed also his liver, certainly a vital 
organ, has been significantly, significantly compromised.” App. 182. As a result, the 
Court calculated a Guidelines sentencing range of 235 to 293 months for Counts I and III 
followed by a mandatory consecutive sentence of 120 months for Count II. The Court 
sentenced Stevens to 413 months’ imprisonment. Stevens appealed. 
II1 
 Stevens argues that the District Court erroneously applied the cross reference to 
attempted first-degree murder because it did not find premeditation or an intent to kill. 
And even if the District Court made those findings, Stevens argues that they were 
unsupported by the record. We disagree. 
 Before finding that the object of the offense was first-degree murder, the District 
Court quoted Murillo’s discussion of the premeditation requirement. The Court credited 
 
1 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction to 
review the final judgment under 28 U.S.C. § 1291 and the sentence under 18 U.S.C. 
§ 3742(a). 
5 
 
Nawaz’s testimony that Stevens pointed the gun at him and shot him and found that “the 
object of the offense would have constituted first degree murder.” Id. The Court 
emphasized that this was an “intentional shooting, attempted murder”—rejecting 
Stevens’s argument that he did not intentionally discharge the gun—and that Stevens shot 
Nawaz in “a vital part of” his body. Id. Based on the record, we are persuaded that the 
District Court implicitly found that Stevens acted with premeditation and intended to kill 
Nawaz when concluding that the object of the offense was first-degree murder.2 
 In making these findings, the District Court did not clearly err. Nawaz testified 
that Stevens threatened to shoot him. And Nawaz explained that after he tackled Stevens, 
Stevens pulled the handgun out of his pocket, aimed it at him, and shot him in the chest. 
Stevens argues that this does not demonstrate premeditation because the handgun was 
discharged moments after Nawaz brought him to the ground. See 18 U.S.C. § 1111(a). 
But “a brief moment of thought may be sufficient to form a fixed, deliberate design to 
kill.” Gov’t of the V.I. v. Lake, 362 F.2d 770, 776 (3d Cir. 1966) (reasoning that “if one 
voluntarily does an act, the direct and natural tendency of which is to destroy another’s 
life, it may fairly be inferred, in the absence of evidence to the contrary, that the 
destruction of that other’s life was intended”). So the District Court did not clearly err in 
finding that the object of the offense was first-degree murder, and it correctly applied the 
 
2 Our dissenting colleague says that the District Court’s reference to Murillo’s discussion 
of premeditation does not permit us to conclude that the Court found premeditation. “But 
while the judge did not give comprehensive remarks [about premeditation], he was not 
silent either, and we do not require perfect explanations from sentencing judges.” United 
States v. Chandler, 104 F.4th 445, 458 (3d Cir. 2024). 
6 
 
cross reference to § 2A2.1(a)(1). 
III 
 We now turn to Stevens’s Second Amendment challenge to his conviction for 
possessing ammunition in violation of 18 U.S.C. § 922(g)(1). He argues that § 922(g)(1) 
is unconstitutional on its face and as applied to him because the Government has not 
shown that lifetime disarmament of persons convicted of noncapital crimes “is consistent 
with the Nation’s historical tradition of firearm regulation.” N.Y. State Rifle & Pistol 
Ass’n, Inc. v. Bruen, 597 U.S. 1, 24 (2022). 
 While this appeal was pending, we held that “the Second Amendment affords 
[parolees] no protection.” United States v. Quailes, 126 F.4th 215, 223 (3d Cir. 2025). 
Because Stevens was on parole when he committed the robbery, his Second Amendment 
challenge to his § 922(g)(1) conviction fails. 
IV 
 For the reasons stated, we will affirm the District Court’s judgment. 
 
1 
 
AMBRO, Circuit Judge, concurring in part and dissenting in part 
 
All agree that before us is whether the District Court permissibly “conclude[d] that 
the object of [Gregory Stevens’s] offense was first-degree murder.”1  Maj. Op. at 5.  If so, 
his base offense level would be 33.  U.S.S.G.  2A2.1(a)(1).  If not, his offense would be 
attempted second-degree murder, and the base offense level would be 27—that recom-
mended in the presentence report.  Id. § 2A2.1(a)(2).  There are two ways to commit first-
degree murder: a “deliberate, malicious, and premeditated killing; or [a killing] committed 
in the perpetration of, or attempt to perpetrate, [a felony].”  18 U.S.C. § 1111(a); see also 
U.S.S.G. § 2A2.1 n.1 (defining first- and second-degree murder under 18 U.S.C. § 1111).  
“Any other murder is murder in the second degree.”  18 U.S.C. § 1111(a).  Because Ahmed 
Nawaz survived the shooting, the relevant question is whether Stevens’s offense conduct 
constituted attempted first- or second-degree murder.  See U.S.S.G. § 2A2.1 (the guideline 
for attempted murder).  The District Court concluded that Stevens’s offense was attempted 
felony murder and thus a first-degree attempt.  The majority sidesteps this conclusion by 
inferring a finding of premeditation, creating an alternative path to support the Court’s 
conclusion.  I dissent because I disagree with the majority’s decision to make an “implicit 
finding,” and I do not believe the record supports it.   
 
The Government argued only an attempted felony murder theory before the District 
Court. Oral Argument 1:29:39-50 (conceding as much).  It disavowed any other argument, 
 
1 There is no disagreement on the panel regarding Stevens’s challenge to 18 U.S.C. 
§ 922(g)(1)’s application to him.  
 
2 
 
explaining cases like “Murillo [that] did not deal with felony murder” were “not apposite.”  
App. 149 (referring to United States v. Murillo, 526 F. App’x 192 (3d Cir. 2013)).  The 
District Court adopted the Government’s theory.  In its words, “I don’t think it’s disputed 
the gun was . . . fired in the course of a robbery . . . . [B]ecause an attempt necessarily in-
cludes an intentional act—if I were convinced by a preponderance of the evidence that the 
shooting was intentional, the base offense level would be 33.”  App. 142.  Its “rul[ing] on 
the intentionality of the shooting,” App. 176, makes sense, because “‘[u]nder federal law, 
a defendant cannot be guilty of attempted murder without a specific intent to kill’[;] . . . a 
finding of the specific intent . . . is essential to the application of the attempted-murder 
cross-reference,” United States v. Morgan, 687 F.3d 688, 697 (6th Cir. 2012) (quoting 
United States v. Turner, 436 F. App’x 631, 631 (6th Cir. 2011)) (first alteration in original).  
The District Court explicitly recognized as much.  App. 181–82 (“[T]he elements of . . . at-
tempted murder necessarily include intentional conduct.”).   
 
But a specific-intent finding does not support the Court’s conclusion that the offense 
was attempted felony murder because the doctrine of felony murder cannot be applied 
without a death.  In fairness, we have not directly answered that question.  But “[t]he pur-
pose of the felony-murder rule is to deter dangerous conduct by punishing as a first-degree 
murder a homicide resulting from dangerous conduct in the perpetration of a felony, even 
if the defendant did not intend to kill.”  40 Am. Jur. 2d Homicide § 60 (emphasis added).   
 
At argument before us, the Government appeared to step back from its attempted 
felony-murder theory, agreeing that a finding of premeditation would be required to 
 
3 
 
support the District Court’s attempted first-degree murder conclusion.  Oral Argument 
1:12:18-44; see also United States v. Bell, 819 F.3d 310, 319 (7th Cir. 2016) (“[S]etting 
aside felony murders, it is premeditation that, in the main, distinguishes first from second 
degree murder.”); Gov’t of V.I. v. Rosa, 399 F.3d 283, 296 (3d Cir. 2005) (first-degree 
murder occurs when an offender “possessed malice aforethought and acted with premedi-
tation and deliberation” (emphasis added)).  “To premeditate a killing is to conceive the 
design or plan to kill.”  Gov’t of the V.I. v. Lake, 362 F.2d 770, 776 (3d Cir. 1966).  “A 
deliberate killing is one which has been planned and reflected upon by the accused and is 
committed in a cool state of the blood, not in sudden passion engendered by just cause of 
provocation.”  Id.  Premeditation therefore has a “necessary time element” between the 
plan and the action.  Fisher v. United States, 328 U.S. 463, 470 (1946).   
 
I do not believe the District Court made a finding of premeditation—implicitly or 
otherwise.  The Court repeatedly found “the Government has proven that the shooting was 
intentional.”  App. 177; App. 178 (“So I’m finding that the shooting was intentional.”); 
App. 181 (“I found that the shooting was intentional.”).  It did not discuss any of the argu-
ments the Government makes for the first time on appeal—for example, about the length 
of time Stevens needed to have “brooded over his plan,” the “mental processes involved” 
in premeditation, or whether Stevens threatened Nawaz.  Gov. Br. at 16 (citations omitted).  
The word premeditation comes up only once in the 234-page record, the Court’s oblique 
reference to a footnote in Murillo: “If the district court had found premeditation, the base 
offense level would have been 33 because the object of the offense would have constituted 
 
4 
 
first degree murder.”  App. 181 (quoting 526 F. App’x at 194 n.3).  But the District Court 
here quoted Murillo during a discussion about the general applicability of U.S.S.G. § 
2A2.1, not during a discussion of premeditation.  Its reference to Murillo shows only its 
recognition that if the object of an offense was first-degree murder, the base offense level 
is 33—not 27. But first-degree murder requires a finding of premeditation alongside spe-
cific intent.  Rosa, 399 F.3d at 296–97; Lake, 362 F.2d at 775–76.  The arguments before 
the Court and the record as a whole tell me this singular reference is not a finding of pre-
meditation.  
 
Furthermore, the majority cites no authority supporting our Court’s power to infer 
a finding in the first place.  And doing so here affords the Government a “second bite at 
the apple” rather than requiring it to “stand or fall on the record it makes the first time 
around.”  United States v. Dickler, 64 F.3d 818, 832 (3d Cir. 1995) (citations omitted).  
That record explicitly and exclusively used attempted felony murder as the basis for a base 
offense level of 33. 
 
No doubt the District Court found Stevens had specific intent to kill.  See e.g., App. 
141, 168, 177, 178, 182.  This finding, without one of premeditation, supports a conclusion 
that Stevens’s offense would have constituted second-degree murder.  Rosa, 399 F.3d at 
296–97; Lake, 362 F.2d at 775–767.  I would therefore vacate and remand for it to apply a 
base offense level of 27.  I thus respectfully concur in part and dissent in part. 


USA v. Gregory Stevens

USDC for the District Court of the Virgin Island

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
1-3-2025 
USA v. Tashawn Warner 
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"USA v. Tashawn Warner" (2025). 2025 Decisions. 7. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/7 
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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. 23-2148 
 
____________ 
 
UNITED STATES OF AMERICA 
 
v. 
 
TASHAWN T.A. WARNER, 
Appellant 
____________ 
 
On Appeal from the District Court 
of the Virgin Islands 
(D.C. Crim. No. 3:20-cr-00036-002) 
District Judge:  Honorable Juan R. Sánchez 
____________ 
 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 
December 9, 2024 
____________ 
 
Before:  CHAGARES, Chief Judge, MONTGOMERY-REEVES, and FISHER, Circuit 
Judges 
 
(Filed: January 3, 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 
CHAGARES, Chief Judge. 
 Tashawn T.A. Warner was sentenced to 135 months of imprisonment after 
pleading guilty to conspiring to commit a Hobbs Act robbery.  His attorney has filed a 
motion to withdraw under Anders v. California, 386 U.S. 738 (1967).  For the reasons 
below, we will grant the motion and affirm the judgment of sentence.   
I. 
 We write primarily for the parties and so recite only those facts pertinent to our 
decision.  Warner and his co-conspirators robbed a jewelry store in the Virgin Islands in 
September 2020.  Warner brandished a firearm and threatened the store employees, while 
one of his accomplices struck an employee in the head with his firearm.  They broke the 
glass showcases, stole a large quantity of jewelry, and fled the scene.  
 A grand jury returned an indictment on November 19, 2021, charging Warner and 
his co-conspirators with thirteen violations of both federal and Virgin Islands criminal 
law.  Warner was charged with three federal crimes, including committing and conspiring 
to commit Hobbs Act robbery and possessing a firearm during and in relation to a crime 
of violence.  The indictment also charged him with several violations of Virgin Islands 
criminal law, including robbery, possession of a firearm with intent to commit a crime of 
violence, grand larceny, and unlawful possession of firearms and ammunition.  Warner 
entered into a plea agreement, under which he pled guilty to conspiring to commit a 
Hobbs Act robbery, which carries a maximum penalty of twenty years of imprisonment.  
18 U.S.C. § 1951(a).  The agreement calculated a sentencing range of 78 to 97 months of 
imprisonment under the United States Sentencing Guidelines (“Guidelines”), assuming 
3 
that a Category I criminal history would apply.  Warner waived his right to appeal his 
sentence in the plea agreement but retained the right to assert an ineffective assistance of 
counsel claim.   
After the presentence report applied a Category II criminal history, however, the 
Government filed a sentencing memorandum that advocated for an increased sentencing 
range of 108 to 135 months of imprisonment.  Defense counsel moved to withdraw from 
the plea agreement, alleging that it was “predicated on fraud in the inducement.”  
Appendix (“App.”) 172.  The District Court dismissed this motion, holding that the plea 
agreement provided that the Government could update its recommendation if Warner’s 
criminal history category was increased.  The District Court also noted that the criminal 
conduct contributing to Warner’s increased criminal history, a pardoned conviction of 
simple possession of marijuana, was properly included, as “the U.S. Sentencing 
Commission requires that pardoned sentences be counted in the computation of criminal 
history points.”  App. 177 n.2 (citing U.S.S.G. § 4A1.2 cmt. n.10).   
The District Court sentenced Warner to 135 months of imprisonment on January 
5, 2023.  This sentence was based on a final offense level of 30 and a Category II 
criminal history, for which the Guidelines recommended 108 to 135 months of 
imprisonment.  The District Court noted that even if defense counsel were correct that a 
lower range should apply, “the 135 [months] is appropriate.”  App. 57.  Judgment was 
entered on January 17, 2023.  
  Warner handwrote a pro se motion, titled “Motion to Appeal for Ineffective 
Counsel,” on January 26, 2023, via an envelope postmarked on January 30.  Though its 
4 
title contains the word “appeal,” Warner’s requested relief was that “the court appoint 
new counsel from the Criminal Justice Act Panel.”  Gov’t Supp. App. 8–9.  The District 
Court never docketed this as a notice of appeal, but rather as a motion to appoint new 
counsel.  
Warner handwrote another pro se motion on June 4, 2023, postmarked the next 
day.  In this motion, Warner wrote that he “would like to appeal [the] case under the 
Section 2255 motion” and requested court-appointed counsel.  App. 1.  This motion was 
docketed as a notice of appeal.  Warner’s attorney now seeks to withdraw, alleging that 
there is no viable basis for appeal.  The Government agrees.   
II.1 
 Under Anders, court-appointed counsel may — after finding any appeal “to be 
wholly frivolous” after careful examination of the record — file a brief so “advis[ing] the 
court and request[ing] permission to withdraw.”  386 U.S. at 744.  This Court must 
consider “1) whether counsel adequately fulfilled the requirements of Third Circuit Local 
Appellate Rule 109.2(a), and 2) whether an independent review of the record presents 
any nonfrivolous issues.”  Simon v. Gov’t of Virgin Islands, 679 F.3d 109, 114 (3d Cir. 
2012).  We “exercise plenary review to determine whether there are any such issues” and 
review factual findings for clear error.  Id.  Forfeited issues, however, are reviewed for 
plain error.  See United States v. Brito, 979 F.3d 185, 190 (3d Cir. 2020). 
 
1 The District Court had jurisdiction under 18 U.S.C. § 3231 and 48 U.S.C. § 1612(c).  
We have jurisdiction to review Warner’s conviction and sentence under 28 U.S.C. § 1291 
and 18 U.S.C. § 3742(a).   
5 
The withdrawing counsel’s brief must “satisfy the court that counsel has 
thoroughly examined the record in search of appealable issues” and “explain why the 
issues are frivolous.”  United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001).  An 
appeal is frivolous if “the appeal lacks any basis in law or fact.”  McCoy v. Ct. of 
Appeals of Wis., Dist. 1, 486 U.S. 429, 438 n.10 (1988).  If “the Anders brief initially 
appears adequate on its face,” the second step of our inquiry is guided “by the Anders 
brief itself.”  Youla, 241 F.3d at 301 (quotation omitted).  “[A] complete scouring of the 
record” is unnecessary.  Id. 
Because the Anders brief is facially adequate, we confine our review to the issues 
identified by the brief.  Warner’s counsel has identified four main areas of review:  (1) 
whether Warner’s appeal was timely; (2) whether the calculation of the recommended 
sentencing range under the Guidelines was correct; (3) whether Warner’s change of plea 
and appellate waiver were valid; and (4) whether the District Court’s sentence was 
reasonable.  Warner did not file a pro se brief in response.  
A. 
We first consider whether Warner’s appeal is timely.  Criminal defendants have 
fourteen days to appeal after entry of judgment.  Fed. R. App. P. 4(b)(1)(A).  A pro se 
prisoner’s notice of appeal is considered filed once it is delivered to prison authorities to 
send to the district court.  Id. 4(c)(1).  While Warner’s counsel examines only the letter 
that Warner sent on June 5, the Government disagrees and suggests that “there appears to 
be a non-frivolous argument that the earlier filing [on January 30] was a timely notice of 
appeal.”  Gov’t Br. 22.   
6 
We agree with the Government that Warner’s appeal is timely.  “The duty to 
construe appeal notices liberally is heightened in cases involving pro se appellants.”  
Gov’t of Virgin Islands v. Mills, 634 F.3d 746, 751 (3d Cir. 2011).  This Court “will 
deem a document filed by a pro se litigant . . . to be a notice of appeal despite informality 
in its form or title, if it evidences an intention to appeal.”  3d Cir. L.A.R. 3.4 (2011).  
While the focus of Warner’s first handwritten motion was appointment of counsel, it 
unambiguously refers to an appeal in its title and his objection to the sentencing.  Because 
Warner’s filing was postmarked for January 30 regarding the entry of judgment on 
January 17, his appeal was within the fourteen-day time limit.2  See Fed. R. App. P. 
4(c)(1)(A)(ii) (noting that a postmark will suffice as proof of timeliness).  
B. 
Because Warner’s appeal was timely, we next discuss whether Warner’s 
sentencing range was properly calculated.  Defense counsel and the Government agree 
that Warner’s pardoned conviction for simple marijuana possession was properly 
incorporated into the sentencing recommendation under the Guidelines.  For the reasons 
set forth below, we agree. 
 
2 To the extent that Warner appeals on the basis of ineffective assistance of counsel, 
which he has not waived in his plea agreement, this Court typically does not consider 
such claims on direct appeal.  See Gov’t of Virgin Islands v. Zepp, 748 F.2d 125, 133 (3d 
Cir. 1984) (“[S]uch claims frequently involve questions regarding conduct that occurred 
outside the purview of the district court and therefore can be resolved only after a factual 
development at an appropriate hearing.” (quoting United States v. Swinehart, 617 F.2d 
336, 340 (3d Cir. 1980))).  A collateral proceeding is better suited to addressing those 
claims, and we therefore do not consider them here.  
7 
Two years ago, President Biden pardoned all United States citizens and lawful 
permanent residents who, before the proclamation, had “been convicted of the offense of 
simple possession of marijuana” in violation of 21 U.S.C. § 844.  Proclamation No. 
10467, 87 Fed. Reg. 61441, 61441 (Oct. 6, 2022).  This pardon included Warner, who 
was convicted of simple marijuana possession in November 2021.  But the Guidelines 
provide for pardoned convictions when computing criminal history.  While “expunged 
convictions are not counted,” sentences that are “pardoned for reasons unrelated to 
innocence or errors of law, e.g., in order to restore civil rights or to remove the stigma 
associated with a criminal conviction . . . are to be counted.”  U.S.S.G. § 4A1.2 cmt. n.10.   
The District Court correctly held that Warner’s pardoned conduct should be 
considered in its criminal history calculation.  Warner’s prior conviction was neither 
expunged nor pardoned for reasons of innocence or legal error.  And despite defense 
counsel’s contentions at sentencing, the plea agreement contemplates adjusting the 
recommended sentence if Warner’s criminal history exceeded Category I.  
C. 
Finally, we examine the propriety of Warner’s guilty plea and sentence.  Warner’s 
counsel and the Government agree that Warner’s plea and appellate waiver were valid.  
After a review of the District Court’s thorough colloquy with Warner at the change of 
plea hearing, we concur.  “Waivers of appeals, if entered into knowingly and voluntarily, 
are valid, unless they work a miscarriage of justice.”  United States v. Khattak, 273 F.3d 
557, 563 (3d Cir. 2001).  Both Warner’s guilty plea and waiver were valid, knowing, and 
voluntary.  The District Court discussed the appellate waiver provisions of the plea 
8 
agreement during its colloquy under Federal Rule of Criminal Procedure 11 and 
reminded Warner of the waiver provisions at sentencing.  We thus perceive no potential 
error amounting to a miscarriage of justice.   
We also examine whether Warner’s sentence was reasonable.  We review the 
reasonableness of a sentence for abuse of discretion and will not reverse unless no 
reasonable court would have imposed such a sentence.  United States v. Tomko, 562 F.3d 
558, 567–68 (3d Cir. 2009) (en banc).  A sentencing court must follow three procedural 
steps:  (1) calculate the appropriate Guidelines range; (2) rule on any departure motions; 
and (3) exercise discretion by considering the relevant 18 U.S.C. § 3553(a) factors.  See 
United States v. Flores-Mejia, 759 F.3d 253, 256 (3d Cir. 2014) (en banc).  We discern 
no procedural or substantive error here.  The District Court heard from the Government, 
defense counsel, and Warner; correctly calculated the Guidelines range; and considered 
the § 3553(a) factors.3  The court then reasonably applied the § 3553(a) factors to this 
case by imposing a sentence of 135 months of imprisonment, which was within the 
statutory maximum of twenty years.  18 U.S.C. § 1951(a).  This sentence was reasonable 
in light of the physical, emotional, and financial harm Warner inflicted during the jewelry 
store robbery.   
III. 
For the foregoing reasons, we will grant counsel’s motion to withdraw and will 
affirm the District Court’s judgment of sentence.  In addition, we certify that the issues 
 
3 There were no departure motions.   
9 
presented lack legal merit and that counsel is not required to file a petition for writ of 
certiorari with the Supreme Court.  3d Cir. L.A.R. 109.2(b) (2011). 


USA v. Tashawn Warner

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
1-7-2025 
USA v. Melania Syder 
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NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
____________ 
 
No. 24-1145 
____________ 
 
UNITED STATES OF AMERICA 
 
v. 
 
MELANIA SYDER, 
     Appellant 
____________ 
 
On Appeal from the District Court 
for the Virgin Islands 
(D.C. Criminal No. 3:23-CR-00050-001) 
Magistrate Judge: Honorable Ruth Miller
____________ 
 
Argued on December 11, 2024 
 
Before:  CHAGARES, Chief Judge, MONTGOMERY-REEVES and FISHER,  
Circuit Judges. 
 
(Filed: January 7, 2025) 
 
Matthew A. Campbell ARGUED 
Office of Federal Public Defender 
1336 Beltjen Road 
Suite 202, Tunick Building 
St. Thomas, VI 00802 
Counsel for Appellant 
 
Delia L, Smith, United States Attorney 
Adam Sleeper, Assistant United States Attorney ARGUED 
Office of United States Attorney 
5500 Veterans Drive 
 
 
2 
United States Courthouse, Suite 260 
St. Thomas, VI 00802 
Counsel for Appellee 
 
 
____________ 
 
OPINION* 
____________ 
 
FISHER, Circuit Judge. 
Melania Syder was tried and convicted of illegal entry into the United States under 
8 U.S.C. § 1325(a). At her bench trial, she presented none of her own witnesses or 
evidence. After the close of the Government’s case and concurrently with her closing 
argument, she moved for a judgment of acquittal under Federal Rule of Criminal 
Procedure 29. The District Court denied this motion, finding Syder guilty and sentencing 
her to time served. Syder appeals the denial of her Rule 29 motion and requests that we 
reverse her conviction and remand with instructions to grant her Rule 29 motion and 
dismiss her case.1 First, she argues that the evidence was insufficient to sustain her 
conviction because the Government failed to prove “beyond a reasonable doubt that she 
 
  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
1 Although Syder is not in custody at the time of filing her appeal, her request to 
have her conviction vacated and the case against her dismissed is not moot. United States 
v. Romero-Vilca, 850 F.2d 177, 179 (3d Cir. 1988) (holding that a “request for relief from 
a judgment of sentence does not become moot upon the satisfaction of that sentence when 
burdensome collateral consequences [such as immigration consequences] flow from the 
judgment of conviction and survive the satisfaction of the sentence.”). 
 
 
3 
knew she was entering the United States when she set foot on [St.] John.”2 Second, she 
argues that because the District Court failed to make a specific finding that she 
knowingly entered the United States, she was convicted without all elements of the crime 
being proven. We disagree and will affirm. 
Under Rule 29, “the court on the defendant’s motion must enter a judgment of 
acquittal of any offense for which the evidence is insufficient to sustain a conviction.”3 
To sustain its burden of proof in criminal prosecutions, the Government “must establish 
each element [of a crime] beyond a reasonable doubt.”4 When reviewing the decision to 
grant or deny a Rule 29 motion, we conduct a “‘highly deferential’ review”5 and must 
reject a sufficiency of the evidence challenge if, after viewing the evidence as a whole 
 
2 Appellant’s Br. 6. Section 1325 does not refer to the intent required for illegal 
entry, and this Court has never squarely addressed it. Neither have our sister circuits, 
though many have discussed the mens rea required for a closely related statute 
criminalizing illegal reentry, 8 U.S.C. § 1326. See, e.g., United States v. Berrios-Centeno, 
250 F.3d 294, 298 (5th Cir. 2001) (“[T]hat general intent is the appropriate mental state 
for § 1326 offenses in all circumstances, is in accord with our sister circuits.”).  
We need not weigh in on this issue here. As discussed below, the District Court 
had a reasonable basis to conclude that Syder knowingly entered the country, even if 
§ 1325 demands that level of intent. And this Court “may affirm the District Court’s 
judgment on any basis supported by the record.” Murray v. Bledsoe, 650 F.3d 246, 247 
(3d Cir. 2011) (per curiam). Because we need not determine for this appeal what mens 
rea under § 1325 requires, we leave that question for another day. 
3 Fed. R. Crim. P. 29(a). 
4 United States v. Caraballo-Rodriguez, 726 F.3d 418, 425 (3d Cir. 2013) (en 
banc). 
5 United States v. Sussman, 709 F.3d 155, 162 (3d Cir. 2013) (quoting United 
States v. Helbling, 209 F.3d 226, 238 (3d Cir. 2000)). 
 
 
4 
and “in the light most favorable to the prosecution, any rational trier of fact could have 
found the essential elements of the crime beyond a reasonable doubt.”6 As the original 
motion for acquittal arose at the close of the Government’s case and in conjunction with 
Syder’s closing argument, we may review all evidence that the District Court reviewed.7  
Given Syder’s admission that she was an alien who illegally entered the United 
States when she landed on St. John, the Government was only required to prove that 
Syder knowingly entered the United States. Reviewing the District Court’s decision with 
the appropriate deference, we agree that the Government met its burden. While the 
Government must provide sufficient evidence to support a finding that Syder knew she 
was entering the United States, it may do so using direct or circumstantial evidence.8 This 
includes inferences, so long as they bear a logical or convincing connection to the 
established facts.9 Here, the Government presented more evidence than Syder’s mere 
presence in the United States to support the inference that she knowingly entered. It 
presented evidence that upon Syder’s alleged surprise arrival on St. John in the middle of 
the night, she made no attempt to return to Tortola, even though she had booked a hotel 
there, had left all her belongings there, and had planned to be there for fifteen days to 
 
6 Caraballo-Rodriguez, 726 F.3d at 424–25 (quoting Jackson v. Virginia, 443 U.S. 
307, 318–19 (1979)). 
7 See United States v. Brodie, 403 F.3d 123, 133–34 (3d Cir. 2005) (“Our scope of 
review is dictated by the procedural posture in which this case comes before us.”). 
8 See id. at 134. 
9 Caraballo-Rodriguez, 726 F.3d at 425. 
 
 
5 
visit with friends. The Government also established that Syder took a ferry to St. Thomas 
the next morning, where she found lodging, worked as a hairstylist and masseuse, and 
spent six months without reporting to immigration authorities. Based on this evidence, 
the District Court found that Syder’s assertion of unknowing entry did not “ring true.”10  
Syder argues that the District Court’s failure to believe her imposed on her the 
affirmative burden of proving lack of knowledge and violated her due process right to 
have the Government prove all elements of the charged crime. Syder also argues that 
“while the [District] Court could disbelieve the affirmative evidence of [her] innocence, 
that disbelief did not a fortiori create affirmative evidence of guilt.”11 In so arguing, 
Syder misunderstands the broad discretion afforded to factfinders in weighing the 
evidence presented to them. First, the District Court did not make any impermissible 
inferences from Syder’s failure to testify, such as inferring guilt.12 Second, when the facts 
support conflicting inferences, “we ‘must presume . . . that the trier of fact resolved any 
such conflicts in favor of the prosecution, and must defer to that resolution.’”13 Finally, 
by requesting that we disregard the District Court’s determination that her statement was 
not credible, Syder essentially asks us to review the District Court’s determination of her 
 
10 JA 47. 
11 Appellant’s Br. 17. 
12 See Mitchell v. United States, 526 U.S. 314, 327–28 (1999) (reaffirming that a 
finder of fact may not draw a negative inference from a criminal defendant’s failure to 
testify). 
13 Eley v. Erickson, 712 F.3d 837, 850 (3d Cir. 2013) (quoting Jackson, 443 U.S. 
at 326). 
 
 
6 
credibility, which we cannot do.14 Accordingly, we agree with the District Court that the 
Government presented sufficient evidence to sustain a guilty verdict. 
Syder also challenges the District Court’s failure to make a specific finding as to 
whether she knew she was entering the United States. First, she argues that she was 
convicted without all elements of the crime having been proven.15 However, under 
Federal Rule of Criminal Procedure 23, a district court is not required to make specific 
findings unless a defendant or the Government requests it do so.16 Given that neither 
Syder nor the Government requested specific findings of fact prior to the verdict being 
rendered, nor did either party ask for clarification after the verdict, the District Court was 
not obligated to make specific findings corresponding to each element of § 1325. 
Therefore, as the reviewing court, we may “imply findings of fact that support a general 
finding of guilt in a non-jury trial where the evidence so warrants and the defendant has 
not requested specific findings under Fed. R. Crim. P. 23.”17 Additionally, Syder’s 
argument misplaces the burden of the prosecution and wrongfully attributes it to the 
District Court. Although the District Court did not enter specific findings of fact, the 
 
14 Gov’t of Virgin Islands v. Gereau, 502 F.2d 914, 921 (3d Cir. 1974) (credibility 
determinations are uniquely the province of the fact finder), abrogated on other grounds 
by Corley v. United States, 556 U.S. 303, 322 (2009).  
15 Appellant’s Br. 21–22. 
16 United States v. Livingston, 459 F.2d 797, 798 (3d Cir. 1972) (en banc) (holding 
that Rule 23 “requires only that the court ‘make a general finding and [. . .] in addition on 
request find the facts specially.’” (alteration in original) (quoting Fed. R. Crim. P. 23(c))). 
17 United States v. Farrell, 126 F.3d 484, 491 (3d Cir. 1997) (internal citations 
omitted). 
 
 
7 
Government’s burden of proving all elements of the crime remained the same. As 
established above, the Government met its burden.  
Further, even if we accept Syder’s argument that the District Court nevertheless 
made specific findings of fact, we hold that the District Court properly found knowledge. 
Specifically, the District Court held that “the government has proved that Ms. Syder is an 
alien who entered the United States at a . . . time and place other than as approved by 
immigration authorities, and she did violate the terms of [§] 1325.”18 The District Court 
also specifically determined that Syder was guilty because she knew how to legally enter 
the United States, “but did not follow [the law],” and found it “incredible” that  “she 
would get on a boat from another country, leave all of her belongings, and then just say, 
yeah, well I might as well just stay here while I’m here.”19 If we take these statements as 
specific findings of fact in support of the verdict, “[o]ur review of the evidence satisfies 
us that [knowledge] was a possible finding on the evidence taken as a whole.”20 
Therefore, the District Court did not err in finding Syder guilty. 
Finally, Syder argues that, because the Government asserted that § 1325 is a strict 
liability statute at trial and because the District Court did not specifically “conclude[] 
beyond a reasonable doubt that [she] knew she was entering the United States,” we must 
 
18 JA 46. 
19 JA 46–47. 
20 Gov’t of the Virgin Islands v. Smith, 278 F.2d 169, 173 (3d Cir. 1960). 
 
 
8 
reverse the conviction.21 However, even if § 1325 requires proof of knowledge, we still 
conclude that the District Court properly found all elements of the crime. Although the 
Government at trial argued that § 1325 is a strict liability statute, the District Court did 
not rule on this issue. Additionally, the District Court was aware that the only issue 
before the Court was whether Syder had knowingly entered the United States. 
Accordingly, when the District Court not only explicitly stated that Syder’s conduct 
violated § 1325, but also detailed that it found her asserted lack of knowledge 
unbelievable, the District Court ruled on the issue of whether Syder knew she was 
entering the United States.  
As the Government presented sufficient evidence to prove Syder guilty under 
§ 1325(a) and the District Court found all necessary elements of the crime, we will 
affirm.  
 
21 Appellant’s Br. 22. 


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