author: RIPPLE, Circuit Judge.

text:
    Francisco CARRION, Petitioner-Appellant, v. Kim BUTLER, Respondent-Appellee.
    No. 14-3241
    United States Court of Appeals, Seventh Circuit.
    Argued February 11, 2016
    Decided August 31, 2016

      Gregory L. Ewing, Attorney, Winston & Strawn LLP, Washington, DC, for Petitioner-Appellant.
    Retha Stotts, Attorney, Office of the Attorney General, Chicago, IL, for Respondent-Appellee.
    Before RIPPLE, KANNE, and WILLIAMS, Circuit Judges.
   RIPPLE, Circuit Judge.

Francisco Carrion was convicted of residential burglary and of first-degree murder following a bench trial in the Circuit Court of Cook County, Illinois. The state courts affirmed his conviction on direct appeal and on state postconviction review. Mr. Carrion then filed a habeas petition in federal court under 28 U.S.C. § 2254, in which he raised multiple claims for relief. The district court denied his petition, concluding that although the petition probably was timely filed, most of the claims were procedurally defaulted and the remaining claims were meritless; the court further declined to grant a certificate of appeala-bility (“COA”). Mr. Carrion then appealed to this court, and we granted a COA instructing the parties to address three questions: whether there was sufficient evidence to support his convictions, whether Mr. Carrion’s confession was voluntary, and whether appellate counsel had been ineffective in failing to challenge the volun-tariness of his confession.

After briefing and oral argument, we conclude that, whether we apply the deferential review of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254(d), or de novo review, Mr. Carrion is not entitled to relief on any of these claims. There is no question that the State of Illinois met its burden of proving each of the charges beyond a reasonable doubt. We further perceive no due process violation in the reception into evidence of Mr. Carrion’s statement, even though it was translated by an investigating officer. Any ambiguities in the statement were examined thoroughly at trial and the state trial court was entitled to admit and rely upon the statement. Accordingly, for the reasons set out more fully in this opinion, we affirm the district court’s denial of Mr. Carrion’s habeas petition.

I

BACKGROUND

A.

In the early morning hours of July 14, 2001, Francisco Carrion entered the first-floor apartment of sixty-nine-year-old Maryanne Zymali in Palatine, Illinois. Zymali confronted Mr. Carrion, and he stabbed her multiple times causing her death. At the time of the incident, Mr. Carrion, who lived in an apartment on the floor above Zymali’s, was a nineteen-year-old immigrant from Mexico who spoke almost no English. .Approximately two weeks after the murder, Mr. Carrion was interviewed in Spanish by Detective Arturo Delgadillo. He denied any involvement with Zymali’s death, but he agreed to provide fingerprint samples.

On January 7, 2002, Mr. Carrion was arrested by Detective Delgadillo after his fingerprint was found on a knife recovered from Zymali’s apartment. The police took him to the police station, advised him of his Miranda rights in Spanish, and then interviewed him twice. Detective Delgadil-lo conducted the first interview in Spanish; an assistant state’s attorney conducted the second interview on camera with Detective Delgadillo acting as translator. On January 31, 2002, the State charged Mr. Carrion with residential burglary under 720 ILCS 5/19 — 3(a), and three counts of first-degree murder (intentional murder, knowing murder, and felony murder predicated, on residential burglary) under 720 ILCS 5/9 — 1(a). Mr. Carrion waived his right to a jury, and the case proceeded to a bench trial in June 2004.

At trial, the State’s forensic scientist testified that Mr. Carrion’s fingerprint and palm print were found on a knife recovered from the apartment. The parties then stipulated to the nature of Zymali’s injuries, which included stab wounds to her chin and forearm, a stab wound to her chest that “resulted in massive internal hemorrhaging,” and “multiple bruises and abrasions” on her thigh, forehead, chin, chest, abdomen, and right arm. The parties further stipulated that the stab wounds caused Zymali’s death.

The State then called Detective Delga-dillo to testify. According to the officer, Mr. Carrion stated during the first of the two interviews that, in the early morning of July 14, 2001, after a night of drinking at a nearby bar, he was walking home and noticed a light in Zymali’s ground-floor apartment. Mr. Carrion said that he “became curious as to what was inside,” and he entered through the open sliding glass door and unlocked screen door. Detective Delgadillo further testified that Mr. Carrion said that he entered the apartment because he was “looking to steal something.” While Mr. Carrion “was in the kitchen looking around,” he was confronted by Zymali, who “started to attack him, scratching him, kicking him, fight[ing] him ahd that pretty much a fight ensued, a struggle ensued.” The officer further testified that Mr. Carrion told him that Zy-mali then pulled a knife out of a kitchen drawer, that Mr. Carrion took the knife from her, and that after additional struggle, “he pushed her with both hands,” which resulted in his “stabbfing] her in the stomach area with the knife.” According to the officer, Mr. Carrion stated that he then pulled the knife out of Zymali’s chest and threw it across the room. When Zyma-li fell to her knees bleeding, Mr. Carrion became scared and ran out of the apartment, “went around the building,” “climbed onto his balcony and entered his apartment.”

Detective Delgadillo next testified about the second interrogation in which he acted as translator between Mr. Carrion and the assistant state’s attorney. He said that on the night of the arrest, Mr. Carrion was taken to meet with an assistant state’s attorney and agreed to give a videotaped statement. During this interview, which took place around midnight and lasted half an hour, the prosecutor posed questions in English, and Detective Delgadillo translated the questions to Spanish and then translated Mr. Carrion’s responses from Spanish to English. The court admitted into evidence both the video and a transcription of the interview that had been prepared by someone other than Detective Delgadillo. At the conclusion of the officer’s testimony, the video interview was played in open court, and the State rested its case. .

The defense called three witnesses: Mr. Carrion’s friend Brenda Viveros, a certified interpreter named Ruth Ramos, and Mr. Carrion himself. Viveros testified that she was with Mr. Carrion on the night in question and that Mr. Carrion was drunk, that “[h]e was talking funny and just having trouble walking,” and that “[h]e asked [her] to take him home because he was not feeling good.” On cross-examination, Vive-ros acknowledged that she did not ask the bartender to stop serving Mr. Carrion, nor did she call a cab or arrange a ride for him, but she stated that she did tell another friend of theirs to make sure that Mr. Carrion stopped drinking. Viveros testified that she did not see Mr. Carrion leave the bar, but that she did go looking for him after the bar closed and found him sleeping in his bed in his apartment. Viveros did not see any injuries on Mr. Carrion at that time.

Ramos testified that she reviewed the videotape of Mr; Carrion’s interview with the assistant state’s attorney several times and prepared her own transcription of the conversation. She went on to testify as follows:

[Mr. Carrion’s counsel]:
Q Do you remember a question put to Francisco Carrion by Detective Del-gadillo:
“Q: And what happened when you got close to your home”?
Do you remember that question being asked?
A Yes.
Q All right. Did you hear Francisco Carrion answer that question in Spanish?
A Yes.
Q Did you take that answer in Spanish and transcribe it into English?
A Yes.
Q What was his answer in English?
A His answer was, [reading from her prepared transcription] “I ... well ... I look down and I saw a ... the apartment and I saw the light on. It seemed like an easy thing to do, I don’t know. I became curious ... I didn’t even know what I was going to do ... ”
Q Did he finish that answer?
A As far as I remember, when viewing the video, I think his answer was cut off. ...
Q But he did say, “I don’t know. I became curious. I didn’t even know what I was going to do it.” Is that correct?
A Yes.
Q Do you remember a question put by Delgadillo to Carrion ... “When you first came in the apartment, what • were you looking for”?
A Yes, I remember the question.
Q Did you hear' Francisco Carrion answer that question in Spanish?
A Yes.
Q What was that answer?
A Answer, [reading from her prepared transcription] “I didn’t even know what I wanted, I just got in to see what thing ... just to look around ... I didn’t even know what I was going to take, it’s like ...” And then an interruption.[]

After testifying about specific translated questions and answers, Ramos was asked whether, based on her experience and training as an interpreter, she believed that “Officer Delgadillo’s rendering of Francisco Carrion’s answers in Spanish to English was truthful, complete, and accurate.” Ramos answered:

A Well, I believe there were some omissions. When the questions ... were posed in Spanish, and there were some omissions when the answers were posed in Spanish to be translated into English. I also believe that there were ... some errors, grammatical errors in sentence structure in the Spanish language, the way the questions were posed to Mr. Carrion.
Q Could you consider or would you consider Detective Delgadillo’s rendering of Carrion’s answers from Spanish to English to be verbatim?
A Yes.[]

Ramos further testified on cross-examination:

Q [W]hen you were able to hear the officer ask, “[Were] you looking for something to take?” You heard the defendant’s answer, Carrion’s answer, “Well ... possibly yes. If I had found something that ...,” is that correct?

AYes.[]

Mr. Carrion then took the stand. He testified that on the night in question he was heavily intoxicated and that he left the bar for his apartment, noticed the light on in Zymali’s apartment, and entered. Mr. Carrion stated that he did not know why he entered the apartment, but he denied intending to steal anything. Mr. Carrion then described the events that occurred after Zymali confronted him. He stated that he injured Zymali in self-defense during the course of a struggle and that Zy-mali pushed, kicked, and scratched him. He explained that he “grabbed a knife” and that Zymali was injured when he pushed her and “the knife ... went inside [her].” Mr. Carrion conceded that he suffered no injuries during the struggle and that, although he knew that Zymali was seriously injured, he did nothing to assist her. Instead, he left Zymali’s apartment, climbed onto the balcony of his second-floor apartment, entered through the balcony door, and fell asleep. When asked about his videotaped statement, Mr. Carrion testified that he confessed to entering the apartment with the intent to steal because Detective Delgadillo promised to help him by securing his deportation to Mexico if he did so. On cross-examination, however, Mr. Carrion acknowledged that during the videotaped interview he stated that no one had promised him anything. In closing, the defense contended that there was insufficient evidence that Mr. Carrion entered Zymali’s apartment with the intent to commit theft and that, in stabbing Zy-mali, he was acting in imperfect self-defense and therefore should only be found guilty of second-degree murder.

At the conclusion of the evidence, the court, ruling orally, found Mr. Carrion guilty on all counts. On the residential burglary charge, the court found that Mr. Carrion entered Zymali’s apartment intending to commit a theft. In the court’s view, “[t]he most compelling evidence of ■ [Mr. Carrion’s] intention to commit a theft [was] his own statement” to that effect during the videotaped interview. Addressing the accuracy of Detective Delga-dillo’s translation, the court found Ramos’s testimony “very credible” and emphasized her opinion that the officer’s translation was “verbatim.” Based on Mr. Carrion’s demeanor and answers, the court said it had “no doubt ... from looking at that video that the defendant gave it up.” It was immaterial, the court noted, that Mr. Carrion’s answers indicated that he “didn’t know what he wanted to take” and “wasn’t sure what he wanted to get from the apartment” because these statements did “not lessen the intent to commit a theft inside the apartment.” The court also rejected Mr. Carrion’s claim that Detective Delgadillo promised to have him deported. Finally, the court addressed the circumstantial evidence it found relevant to Mr. Carrion’s intent in entering the apartment. It noted that “[i]t was easy for [Mr. Carrion] to enter” the unlocked, first-floor apartment and that he had done so at a very early hom* in the morning; it found these circumstances consistent with an intent to commit theft. The court believed that the lack of any traditional burglary evidence was insignificant; in its - view, there was no sign of forced entry because the screen door was unlocked, and there was no stacking of property because Mr. Carrion was confronted by Zymali.

Addressing the first-degree murder charges, the court concluded that Mr. Carrion “stabbed [Zymali] repeatedly with an intent to kill, and he then fled.” The court emphasized both the force required to cause a stab wound the size of the one. to Zymali’s abdomen and also the separate stab wounds to Zymali’s face and arm. It rejected the defense’s theory that Mr. Carrion killed Zymali in self-defense because, in its view, there was no evidence of a struggle “except the defendant’s own statement that there was a struggle.” The court also rejected Mr. Carrion’s intoxication theory as “incredible.” It noted that after reaching for a knife and stabbing Zymali several times, “he had the ... forethought to escape” and climb up onto the second-floor balcony: “I find it hard to believe he had the ability both physical and mental to do something like that ... [y]et he doesn’t remember anything at all about this crime until three months later.” The court found Mr. Carrion guilty under each of the three theories of first-degree murder presented by the State — intentional murder, knowing murder, and felony murder — but it merged the three counts into one for purposes of sentencing.

After finding Mr. Carrion eligible for the death penalty, the court imposed a fifty-five-year term of imprisonment for first-degree murder and a concurrent fifteen-year-term of imprisonment for residential burglary.

B.

Mr. Carrion appealed his conviction. His appointed appellate counsel then moved to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In counsel’s view, an appeal — including arguments that trial counsel was ineffective and that the evidence was insufficient to support the convictions — would be without arguable merit. Mr. Carrion filed a response. The state appellate court in due course granted the Anders motion and affirmed the convictions. Mr. Carrion then filed a petition for leave to appeal (“PLA”) to the Illinois Supreme Court that raised only a new claim that appellate counsel provided ineffective assistance. The Illinois Supreme Court denied leave to appeal, and Mr. 'Carrion did not file a petition for a writ of certiorari.

Mr. Carrion then filed a petition for state postconviction relief raising the following claims: (1) trial counsel was ineffective; (2) there was insufficient evidence to support either conviction; (3) the trial court considered improper factors at sentencing; (4) officers took advantage of his lack of understanding of his rights during interrogation; and (5) appellate counsel was ineffective. The trial court dismissed the postconviction petition. On appeal, Mr. Carrion’s appointed counsel moved to withdraw under Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), on the ground that all potential issues lacked arguable merit. Counsel’s Finley brief considered raising arguments about judicial bias at sentencing, the sufficiency of the evidence, the voluntariness of Mr. Carrion’s confession given Mr. Carrion’s claims that he did not understand his rights and was made a false promise of deportation, and whether Mr. Carrion’s trial and appellate counsel provided effective assistance. Counsel concluded: (1) all claims were meritless; (2) that the sufficiency claims and the ineffective assistance claims against trial counsel were barred by res judicata because they were addressed on direct appeal when the appellate court granted the Anders motion; (3) that the involuntary confession claim was “barred by res judicata because it could have been raised on direct appeal” and, even if it was not barred, was not supported by the record; and (4) that although the ineffective assistance claim against appellate counsel could not have been raised on direct appeal, it was meritless under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Mr. Carrion did not file a response, and the state appellate court granted the motion to withdraw on April 13, 2012, explaining that it had “carefully reviewed the record ... and the [Finley] memorandum” and found “no issues of arguable merit.” Mr. Carrion then filed a PLA, which reiterated his judicial bias, sufficiency, ineffective assistance, and involuntary confession claims. The PLA was denied without elaboration on March 27, 2013.

On July 29, 2013, Mr. Carrion filed a federal habeas petition in the United States District Court for the Southern District of Illinois. He raised the following grounds for relief: (1) there was insufficient evidence at trial to support either the residential burglary or the first-degree murder convictions beyond a reasonable doubt; (2) the trial judge was biased and considered improper evidence at sentencing; (3) trial counsel was ineffective; (4) he was denied due process, equal protection, and access to the courts because he lacked proficiency in English; (5) appellate counsel was ineffective in failing to raise grounds one through four and abandoning Mr. Carrion by filing an Anders motion; and (6) postconviction counsel was ineffective in failing to raise all meritorious claims and in abandoning Mr. Carrion by filing a Finley motion. The State responded that Mr. Carrion’s petition was time-barred, some of .his claims were procedurally defaulted, and all of his claims were meritless. The district court denied Mr. Carrion’s petition. It reasoned that although the petition probably was timely filed, the first four claims were procedurally defaulted, the fifth claim failed on the merits, and the sixth claim is not grounds for habeas relief under 28 U.S.C. § 2254(1). The court denied a COA.

Mr. Carrion then filed a notice of appeal, which we construed as an application for a COA. We determined that Mr. Carrion had made a substantial showing of a denial of his right to due process and of his right to counsel under the Sixth Amendment. We therefore recruited counsel and instructed the parties to address the following issues: (1) whether the prosecution introduced sufficient evidence of Mr. Carrion’s intent to convict him of residential burglary and first-degree murder; (2) whether the trial court violated Mr. Carrion’s due process rights by relying on a confession elicited from a detective who also acted as Mr. Carrion’s translator; (8) whether Mr. Carrion’s appellate counsel provided ineffective assistance by not challenging the admission of the confession under the Due Process Clause.

II

DISCUSSION

As a general rule, we review the district court’s denial of a habeas petition under a de novo standard of review, but that review is governed by the standards set forth in AEDPA. Ruhl v. Hardy, 743 F.3d 1083, 1090 (7th Cir. 2014). Here, the State has raised, as it did before the district court, a number of arguments urging us to reject the claims in Mr. Carrion’s petition on procedural grounds. Specifically, the State contends, among other things, that Mr. Carrion’s federal petition was untimely filed, that his involuntary confession and sufficiency claims are procedurally defaulted, and that his ineffective assistance claim based on a failure to challenge the confession is waived. We need not address these potentially difficult procedural questions, however, because even if we were to decide each of them in Mr. Carrion’s favor, his claims clearly fail on the merits.

. Further, our conclusion is the same regardless of whether we apply the deferential standards of 28 U.S.C. § 2254(d). AEDPA provides that, in conducting our review, “we look to the last reasoned state court opinion addressing each claim.” Ruhl, 743 F.3d at 1091. Where a claim has been adjudicated on the merits in state court, habeas relief is appropriate only if the state court’s determination was (1) “contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States,” or (2) “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); Cullen v. Pinholster, 563 U.S. 170, 181, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011). However, “[i]f no state court has squarely addressed the merits of a habeas claim, we review the claim de novo under the pre-AEDPA standard of 28 U.S.C. § 2243, but still with deference to the state court.” Ruhl, 743 F.3d at 1091. Here, the State has argued that § 2254(d) should apply, contending that Mr. Carrion’s claims were rejected on the merits by the state court. Again, we need not decide this issue because even if Mr. Carrion’s claims fall outside § 2254(d) and are, therefore, subject to the more generous pre-AEDPA standard of § 2243, they clearly fail on the merits. Therefore, for purposes of our decision today, we will assume that a de novo standard applies.

A.

We first address Mr. Carrion’s argument that the record contains insufficient evidence to support, as a matter of law, his convictions for residential burglary and first-degree murder. The familiar standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) makes clear that, to comport with the standards of the Due Process Clause, a criminal conviction must be based on proof beyond a reasonable doubt. “[T]he relevant question is whether, after viewing the evidence 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.” Id. at 319, 99 S.Ct. 2781 (emphasis in original). In conducting this inquiry, we must “give[ ] full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Id. It is also important that we evaluate the record evidence “with explicit reference to the substantive elements of the criminal offense as defined by state law.” Id. at 324 n.16, 99 S.Ct. 2781.

Turning first to the residential burglary conviction, the Jackson inquiry is whether any rational trier of fact could have found beyond a reasonable doubt that Mr. Carrion “knowingly and without authority enter[ed]” Zymali’s apartment “with the intent to commit therein a felony or theft.” 720 ILCS 5/19 — 3(a). There is no dispute about the first element, so we focus on whether there is legally sufficient evidence that Mr. Carrion entered Zyma-li’s apartment intending to commit a theft. See People v. Maggette, 195 Ill.2d 336, 254 Ill.Dec. 299,747 N.E.2d 339, 353 (2001) (observing that “[t]he gist of the offense [of residential burglary] is the defendant’s felonious intent with which he or she enters the dwelling”). Mr. Carrion argues that the State failed to prove this element beyond a reasonable doubt because the details of his entry indicate that he did not possess the requisite intent: he was heavily intoxicated; Zymali’s apartment was lit and her door was open; he carried no burglary tools; he did not attempt to conceal his entry or verify that the residence was empty; and there was no evidence suggesting that he searched for items of value before the confrontation. In Mr. Carrion’s view, this evidence suggests either that he entered the apartment to gain access to the interior of the building or that he was simply drunk and exploring. Alternatively, Mr. Carrion suggests, relying on Ms own testimony and that of his friend Viveros, that he was so intoxicated that he “ha[d] blacked out” and was incapable of forming the requisite intent at all.

Viewing the evidence in the prosecution’s favor, as we are obliged to do, we must conclude that a rational trier of fact could have found beyond a reasonable doubt that Mr. Carrion intended to commit a theft when he entered Zymali’s apartment. The state trial court, sitting as the finder of fact, had before it direct evidence of Mr. Carrion’s intent in the form of.his own videotaped statements, which the court found to be “[t]he most compelling evidence of his intention to commit a theft.” Based on the trial evidence, the court was satisfied both that Detective Delgadillo’s translations during the videotaped interview were accurate and that Mr. Carrion’s testimony that the detective made a false promise of deportation was unbelievable. Relying on Mr. Carrion’s statements and his demeanor, the court said that it “ha[d] no doubt ... from looking at that video that the defendant gave it up.” Further, the incriminating statements in the video aligned with Detective Delgadillo’s trial testimony about his initial conversation with Mr. Carrion. The detective testified that Mr. Carrion told him that when he saw a light on in Zymali’s apartment he became “curious as to what was inside” and that he entered the apartment because he was “looking to steal something.”- To be sure, Mr. Carrion’s trial testimony differed from Detective Delgadillo’s, but it is the trier of fact, not us, that bears “the responsibility ... fairly to resolve conflicts in the testimony.” Jackson, 443 U.S. at 319, 99 S.Ct. 2781.

The state trial court also found the circumstantial evidence presented at trial corroborative of Mr. Carrion’s incriminating statements. In Illinois, “[cjriminal intent is a state of mind that not only can be inferred from the surrounding circumstances, but usually is so proved.” Maggette, 747 N.E.2d at 354 (citation omitted). “In a burglary case, the relevant surrounding circumstances include the time, place and manner of entry into the premises, the defendant’s activity within the premises, and any alternative explanations offered for his presence.” People v. Richardson, 104 Ill.2d 8, 83 Ill.Dec. 604,470 N.E.2d 1024, 1027 (1984). Here, the trial court noted the late hour of Mr. Carrion’s unauthorized entry as well as its view that “[i]t was easy for [Mr. Carrion] to enter [Zyma-li’s] apartment,” which was unlocked and located on the first floor of the building. It found the absence of traditional burglary, evidence immaterial; in its view, there was no sign of forced entry because the screen door was unlocked, and there was no stacking of property because Mr. Carrion did not have time to canvass the apartment before Zymali confronted him. And the court explicitly rejected Mr. Carrion’s alternative explanation that he was so heavily intoxicated that he had simply wandered into Zymali’s apartment. In the court’s view, there was enough record evidence of Mr. Carrion’s mental and physical alertness to render his testimony on this matter “incredible.”

Taking both the direct and circumstantial evidence in the light most favorable to the prosecution, we conclude that the trial court certainly was justified in concluding beyond a reasonable doubt that Mr. Carrion entered Zymali’s apartment intending to commit a theft and therefore was guilty of residential burglary under Illinois law.

Having concluded that the evidence at trial was sufficient to support Mr. Carrion’s conviction for residential burglary under 720 ILCS 5/19-3(a), we also must conclude that his conviction for first-degree murder must stand. In Illinois, felony murder is one of three categories of first-degree murder. Illinois law provides that a person commits first-degree murder when, “in performing the acts which cause the death” of an individual, “he is attempting or committing a forcible felony other than second degree murder.” 720 ILCS 5/9— 1(a)(3). Residential burglary is an enumerated forcible felony under 720 ILCS 5/2-8. Therefore, because Mr. Carrion killed Zy-mali while attempting to commit residential burglary, he is guilty of first-degree murder under Illinois law.

As we already have noted, the State charged Mr. Carrion under all three categories of first-degree murder in 720 ILCS 5/9-l(a). The court accepted all three theories but merged the counts into a single conviction. Therefore, our conclusion that there is sufficient evidence to support the felony murder charge is sufficient in itself to support the first-degree murder convic- . tion under Jackson, regardless of Mr. Carrion’s mental state at the time he committed the offense.

B.

We now turn to Mr. Carrion’s contention that the trial court’s admission of his videotaped statement violated his right to due process because Detective Delgadillo’s performance as translator during the interview rendered the confession involuntary. A foundational principle of due process of law is that the state cannot procure a criminal conviction through the use of an involuntary confession. See generally Schneckloth v. Bustamonte, 412 U.S. 218, 223-26, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States v. Stadfeld, 689 F.3d 705, 709-10 (7th Cir. 2012). An incriminating statement is voluntary “if, in the totality of circumstances, it is the product of a rational intellect and free will and not the result of physical abuse, psychological intimidation, or deceptive interrogation tactics that have overcome the defendant’s free will.” United States v. Gillaum, 372 F.3d 848, 856 (7th Cir. 2004) (internal quotation marks omitted). “[CJoercive police activity is a ‘necessary predicate to the finding that a confession is not “voluntary” within the meaning of the Due Process Clause of the Fourteenth Amendment.’ ” United States v. Huerta, 239 F.3d 865, 871 (7th Cir. 2001) (quoting Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986)). Thus, to find that a confession is involuntary, we must conclude that it is the product of coercive police activity. Whether a confession is voluntary is a legal question subject to de novo review, although we afford' great deference to the trial court’s underlying factual findings and will disturb them only in the case of clear error. Id.

Upon review of the record, we conclude that Mr. Carrion’s confession was not the result of official coercion, and, therefore, its admission did not offend due process.

Mr. Carrion’s coercion argument is a rather novel one. A voluntariness inquiry typically requires that we consider a combination of factors. But Mr. Carrion simply contends that when an interrogation is conducted through a translator, due process requires that the translator “be (1) neutral and independent and (2) fully capable of interpreting exactly both the questions posed and the answers given.” Because Detective Delgadillo was not neutral or capable, Mr. Carrion continues, the incriminating statements were necessarily coerced and inadmissible.

Our cases provide no support for the bright line constitutional requirement that Mr. Carrion proposes. The authorities upon which he relies, treatises, state ethics codes, state case law, and agency guidelines, may well suggest the best practice. But our task is decidedly more narrow. Although these sources may be of some help in our inquiry, the basic question before us is not whether the officers in this case adhered to best practices but “whether the circumstances surrounding [Mr. ’ Carrion’s] confession would have interfered with his free and deliberate choice of whether to confess.” Johnson v. Pollard, 559 F.3d 746, 753 (7th Cir. 2009) (internal quotation marks omitted). To be suré, evidence that Detective Delgadillo, in acting as translator, manipulated or mistranslated the prosecutor’s questions or Mr. Carrion’s answers is relevant to the extent that it demonstrates coercive conduct. In the end, however, the ultimate question is whether, under the totality of the circumstances, Mr. Carrion was deprived of that “free and deliberate choice.” Id

Mr. Carrion first argues that Detective Delgadillo was so inherently biased that his translation of Mr. Carrion’s statements to the assistant state’s attorney cannot be properly attributed to Mr. Carrion. Mr. Carrion goes so far as to suggest that Detective Delgadillo served as translator solely to ensure his own “ability to control Carrion’s words that would eventually be presented to the court ... because [the officers] knew that the only way they would get the confession they needed was if Delgadillo acted as Carrion’s mouthpiece.” Were these accusations true, they certainly would be relevant to our coercion inquiry. But Mr. Carrion provides no support for his charges of bias. The bare assertion that Detective Delgadillo, as both investigator and translator, could not have acted neutrally is insufficient to establish that he acted coercively. See United States v. Lind, 542 F.2d 598, 599 (2d Cir. 1976) (rejecting involuntary confession argument where Spanish-speaking FBI agent served as translator).

Mr. Carrion also questions Detective Delgadillo’s competency as a translator. He relies on the testimony of Ruth Ramos, a language consultant and certified interpreter who reviewed the videotaped interview several times and prepared her own transcription. At trial, Ramos was asked whether, based on her experience and training, she believed that Detective Del-gadillo’s translations were “truthful, complete, and accurate.” Ramos replied:

Well, I believe there were some omissions. When the questions ... were posed in Spanish, and there were some omissions when the answers were posed in Spanish to be translated into English. I also believe that there were ... some errors, grammatical errors in sentence structure in the Spanish language, the way the questions were posed to Mr. Carrion.[]

These mistakes, Mr. Carrion suggests, altered the meaning of his responses and rendered his confession involuntary.

We cannot accept Mr. Carrion’s argument. As an initial matter, it is important to remember that we must view this issue through the lens of the trial court’s finding that Detective Delgadillo’s translations were accurate, a determination to which we afford great deference. See United States v. Stewart, 536 F.3d 714, 719 (7th Cir. 2008) (stating that historical facts are entitled to deference “especially when the suppression decision turn[s] on the credibility of the witnesses” (alteration in original) (internal quotation marks omitted)). The state trial court noted in its ruling that immediately after Ramos testified about the unspecified omissions and grammatical mistakes, she stated that, despite these errors, it was her opinion that the translations were “verbatim”; the court found Ramos’s testimony on this matter “very credible.” See United States v. Bernal-Benitez, 594 F.3d 1303, 1319-20 (11th Cir. 2010) (finding confession voluntary even though officer wrote down the defendant’s statement in English, a language the defendant did not speak, because trial court found the officers’ accounts of the substance of the interrogation credible)'.

Furthermore, Mr. Carrion’s sole example of a mistranslation does not persuade us that the trial court clearly erred in concluding that Detective Delgadillo’s translations were accurate. In the reply brief and at oral argument, appellate defense counsel emphasized that Ramos’s and Detective Delgadillo’s translations of Mr. Carrion’s answer to the question, ‘Well, you went in there to take something, right?” were in conflict. Counsel argued that Detective Delgadillo translated Mr. Carrion’s answer as “Well, I don’t know. If I went in there, if I saw something that maybe I would like to take ...,” but Ramos testified that Mr. Carrion’s answer in fact was “I don’t even know what I was going to do when I went in there.” This mistranslation, counsel suggested, was determinative at trial of whether Mr. Carrion entered Zymali’s apartment with the requisite intent.

The language cited by counsel, however, comes not from the witnesses’ testimony but from Mr. Carrion’s trial counsel during closing arguments. The actual testimony of Detective Delgadillo and Ramos provides a more complete picture. First, Ramos testified that, through Detective Delgadillo, Mr. Carrion was asked the question, “And what happened when you got close to your home [?]” According to her, Mr. Carrion responded, “I ... well ... I look down and I saw a ... the apartment and I saw the light on. It seemed like an easy thing to do, I don’t know. I became curious ... I didn’t even know what I was going to do ...,” and then was interrupted. Detective Delgadillo’s translation of Mr. Carrion’s answer to the same question, however, omitted the final phrase, “I didn’t even know what I was going to do.” This appears to be the inconsistency to which trial counsel referred in his closing argument and that counsel in this court similarly emphasized, although both counsel misstated the question that was posed.

This discrepancy between the two translations, however, is innocuous when considered in fuller context. During direct examination at trial, Ramos went on to testify about two additional exchanges that took place during the video interview. According to her translation, Mr. Carrion was asked the question, “When you first came in the apartment, what were you looking for [?]” Mr. Carrion answered, “I didn’t even know what I wanted, I just got in to see what thing ... just to look around ... I didn’t even know what I was going to take, it’s like ...,” and then was interrupted. Detective Delgadillo’s translation was essentially the same: “I didn’t even know what I was looking for, what I was going to take.” Additionally, Ramos testified on cross-examination that the prosecutor asked Mr. Carrion, “[Were] you looking for something to take?” According to her translation, Mr. Carrion responded, “Well ... possibly yes. If I had found something that....” Detective Delgadillo was not asked about this exchange during his testimony.

Upon review of the complete trial testimony, we cannot conclude that the inconsistency that Mr. Carrion has identified between the translations made by Detective Delgadillo and Ramos renders clearly erroneous the trial court’s finding that Detective Delgadillo’s translations were accurate. Cf. Lind, 542 F.2d at 599 (finding confession through Spanish-speaking FBI agent and another individual acting as translators not coerced where agent “[a]t all times ... was able to verify the accuracy of the translation”).

The totality of the circumstances, therefore, militates in favor' of the conclusion that Mr. Carrion’s confession was voluntary and that it was not the product of coercion.

C.

Mr. Carrion’s final contention derives from his coerced confession argument. He argues that his appointed counsel on direct appeal provided ineffective assistance by failing to challenge the admission of the confession under the Due Process Clause. We have held that “[t]he filing of an An-ders brief that fails to point out meritorious issues can, in principle, constitute ineffective assistance.” Steward v. Gilmore, 80 F.3d 1205, 1213 (7th Cir. 1996). However, because we have concluded that Mr. Carrion’s involuntary confession claim is without merit, we also reject his related claim of ineffective assistance. Warren v. Baenen, 712 F.3d 1090, 1104 (7th Cir. 2013) (rejecting petitioner’s argument that court-appointed sentencing counsel was ineffective because “[cjounsel is not ineffective for failing to raise meritless claims”); see also United States v. Stewart, 388 F.3d 1079, 1085 (7th Cir. 2004) (“Stewart’s counsel cannot have been ineffective for failing to pursue what we have concluded would have been a meritless [claim].”); Stone v. Farley, 86 F.3d 712, 717 (7th Cir. 1996) (“Failure to raise a losing argument, whether at trial or on appeal, does not constitute ineffective assistance of counsel.”).

Conclusion

For the foregoing reasons, we affirm the district court’s denial of the habeas petition.

AFFIRMED

      . R. 17-13 at 34-37.

      . Id. at 73.

      . Id. at 73-74.

        .Id. at 74-75.

      . Id. at 76-77.

      . Id. at 78.

      . Neither the videotape nor the transcription are part of the record on appeal. In the district court and in their briefs, the parties have relied solely on the testimony given at trial.

      . R.17-14 at 37.

      . Id. at 48-56.

      . Id. at 57.

      . Id.

      . Id. at 74.

      . Id. at 83-84.

      . Id. at 142.

      . Id. at 149.

      . Id.

      . Id. at 141.

      . Id. at 142.

      . Id. at 150.

      . Id. at 146.

      . Id. at 145-47.

      . Id. at 146-47.

      . R. 17-3 at 9-17.

      . R.l-1 at 82-83.

      . R.1 at 7-16.

      . See 28 U.S.C. § 2254(b)(2); Estremera v. United States, 724 F.3d 773, 775 (7th Cir. 2013) ("[I]t makes sense (and is permissible) to reject a collateral attack on the merits while other procedural defenses, such as [statutes of limitations,] waiver, default, or lack of exhaustion, remain in the background.” (citing 28 U.S.C. § 2254(b)(2))); Johnson v. Pollard, 559 F.3d 746, 752 (7th Cir. 2009) ("[W]e need not address the procedural default issue raised by the State because [the petitioner]'s claim clearly fails on the merits.”); see also Brown v. Watters, 599 F.3d 602, 610 n.10 (7th Cir. 2010) (surveying case law and noting that this practice is in accordance with both Supreme Court precedent and also "the established practice in the other circuits”).

      . See Ruhl v. Hardy, 743 F.3d 1083, 1092 (7th Cir. 2014) (declining to decide “which issues must be reviewed under AEDPA’s deferential standard and which should be reviewed under the pre-AEDPA de novo standard” because-petitioner’s claim failed even under de novo review); Johnson, 559 F.3d at 753 (declining to decide finally whether Wisconsin state court reached federal merits question because result would be the same under either § 2254(d) or de novo review).

      . Appellant's Br. 39.

      . R.17-14at 142.

      . Id. at 149.

      .R. 17-13 at 73-74.

      . R.17-14 at 142.

      . Id. at 145-47.

      . In evaluating coercion, relevant factors include
      the defendant’s age, education, intelligence level, and mental state; the length of the defendant's detention; the nature of the interrogations; the inclusion of advice about constitutional rights; and the use of physical punishment, including deprivation of food or sleep. Narcotics, alcohol, and fatigue also may be considerations in a particular case.

        United States v. Huerta, 239 F.3d 865, 871 (7th Cir. 2001) (citation omitted).

      . Appellant’s Br. 19.

      . This comports with our approach in dealing with more traditional arguments of coercive activity. For example, although "deception by an interrogator does not automatically invalidate a confession,'’'Sotelo v. Ind. State Prison, 850 F.2d 1244, 1251 (7th Cir. 1988), "[g]iven the right circumstances, a false promise of leniency may be sufficient to overcome a person's ability to make a rational decision about the courses open to him,” United States v. Montgomery, 555 F.3d 623, 629 (7th Cir. 2009); see also Hadley v. Williams, 368 F.3d 747, 749 (7th Cir. 2004) (noting that "[although the law permits the police to pressure and cajole, conceal material facts, and actively mislead, it draws the line at outright fraud” (citation omitted) (internal quotation marks omitted)).

      .Reply Br. 21.

      . R.17-14 at 57.

      . Id.

      . Id. at 149; see also id. at 57.

      . Oral Argument at 00:59-2:06; Reply Br. 23.

      . Reply Br. 23.

      . R.17-14 at 54.

      . Id. at 54-55.

      . Id. at 3.

      . Id. at 55.

        .Id. at 56.

      . Id. at 5.

      . Id. at 74.

      . Id.


source: Caselaw Access Project

author: HAMILTON, Circuit Judge.

license: Public Domain

text:
    Ivan Mendoza CADAVEDO, Petitioner, v. Loretta E. LYNCH, Attorney General of the United States, Respondent.
    No. 15-1914
    United States Court of Appeals, Seventh Circuit.
    Argued May 24, 2016
    Decided August 31, 2016

      Timothy A. Gambacorta, Attorney, Gam-bacorta Law Office, Skokie, IL, for Petitioner.
    OIL, Claire Workman, Attorneys, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.
    Before ROVNER, SYKES, and HAMILTON, Circuit Judges.
   HAMILTON, Circuit Judge.

Ivan Mendoza Cadavedo, a native of the Philippines, petitions for review of a Board of Immigration Appeals decision that affirmed an immigration judge’s denial of his request for a continuance. At a 2014 hearing, an immigration judge denied Cadave-do’s request for a continuance to allow him to challenge a 2009 finding by United States Citizenship and Immigration Services (“USCIS”) that he had engaged in marriage fraud. That USCIS finding bars him from obtaining adjustment of his status to become a lawful permanent resident. We hold that there was no abuse of discretion in denying Cadavedo’s request for a continuance. Cadavedo made his request during the hearing he sought to have continued, and his entitlement to the belated relief he wanted to seek from USCIS is speculative at best.

I. Background

This case revolves around Cadavedo’s past and possible future attempts to adjust his immigration status to become a lawful permanent resident. Unauthorized immigrants who have an immigrant visa immediately available to them (among other requirements) may apply to have their status adjusted to that of lawful permanent resident. 8 U.S.C. § 1255(a). There are no numerical limits on visas for immediate relatives of United States citizens, including spouses, so a visa is immediately available to such an immigrant. 8 U.S.C. § 1151(b)(2)(A)(I). To obtain this benefit, a United States citizen may petition for recognition of her relative’s classification as an immigrant entitled to a visa. 8 U.S.C. § 1154(a)(l)(A)(I); 8 C.F.R. § 204.1(a)(1). The immigrant may then apply for adjustment of status. See generally Matter of Hashmi, 24 I. & N. Dec. 785, 789-90 (BIA 2009) (describing process for adjustment of status). If an immigrant attempts to obtain adjustment of status through a sham marriage, however, no future petition on behalf of that immigrant may be approved. 8 U.S.C. § 1154(c); see also 8 C.F.R. § 204.2(a)(1)(h).

In 2007, Cadavedo sought to adjust his status through his U.S. citizen wife. His wife filed an 1-130 petition for recognition of Cadavedo as her spouse, and Cadavedo filed a corresponding 1-485 petition to adjust his status to lawful permanent resident.

Immigration authorities interviewed the two to establish whether their marriage was bona fide. In her interview, Cadave-do’s wife admitted that Cadavedo had promised to pay her to marry him for immigration purposes. She gave a sworn statement to USCIS and withdrew her I-130 petition. USCIS denied Cadavedo’s I-485 petition to adjust his status. It notified Cadavedo that under 8 U.S.C. § 1154(c) it could not approve any future petitions on his behalf because he had entered into a marriage for the purpose of evading the immigration laws.

In 2012, the Department of Homeland Security issued a Notice to Appear to Ca-davedo. The Notice to Appear charged Ca-davedo with removability based on overstaying his visa, 8 U.S.C. § 1227(a)(1)(B), working without authorization, § 1227(a)(l)(C)(i), and fraudulently attempting to adjust his status through a spousal preference, §§ 1182(a)(6)(C)(i), 1227(a)(1)(A). On May 16, 2013, Cadavedo appeared before an immigration judge and admitted all of the Attorney General’s factual allegations except for his marriage fraud, which he denied. The judge scheduled a hearing on the contested fraud charge for October 17, 2013.

In the fall of 2013, Cadavedo retained new counsel. Cadavedo’s new counsel sought to continue the October 17, 2013 hearing to develop his defense against the fraud charges of removability. The October 2013 federal government shutdown had the effect of granting a delay of several months, although the judge did not formally grant the continuance request.

On January 29, 2014, Cadavedo again appeared before the immigration judge. The Attorney General’s witness for the contested fraud charges did not appear for the hearing, so the Attorney General dropped that charge and proceeded on the other, uncontested grounds for removability. During the hearing, Cadavedo sought a continuance to give him an opportunity to bring a collateral challenge to USCIS’s fraud finding from 2009. Cadavedo told the judge he had a daughter who was in the process of. naturalizing, and he said he wanted to seek adjustment of status through her.

The judge denied the request and ordered Cadavedo’s removal on the uncontested grounds for removability. Cadavedo appealed the denial of the continuance to the Board of Immigration Appeals. The Board affirmed the judge’s decision. It applied its precedent, Hashmi, 24 I. & N. Dec. at 790-92, and concluded that Cada-vedo had failed to demonstrate good cause to continue his proceedings. The relief Ca-davedo wanted to seek from USCIS was untimely, and his entitlement to receive it was speculative at best. The Board also found no deprivation of Cadavedo’s due process rights.

II. Analysis

A. Scope of Jurisdiction

We have jurisdiction to review Cadavedo’s final order of removal under 8 U.S.C. § 1252(a)(1). This includes jurisdiction to review whether the Board erred in affirming the immigration judge’s denial of a continuance along the way to reaching that final order. Calma v. Holder, 663 F.3d 868, 873 (7th Cir. 2011). Due to the limits on our jurisdiction under 8 U.S.C. § 1252(a)(2)(B)®, we have jurisdiction to review the denial of the motion to continue unless “the agency’s rationale for denying the procedural request also establishes the petitioner’s inability to prevail on the merits of his underlying claim” for adjustment of status. Calma, 663 F.3d at 876. Our jurisdiction extends to review of the denial of a continuance “that is sought for purposes of allowing another agency to complete its review.” Id. at 877. Cadavedo sought a continuance to ask another agency to reconsider its previous determination rather than to complete its review, but we are satisfied that we have jurisdiction to hear that claim.

B. Denial of Continuance

We review the Board’s and judge’s decision to deny a continuance for abuse of discretion. Calma, 663 F.3d at 870. We will not overturn the decision “unless it was made' without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group.” Id. at 878 (citation and internal quotation marks omitted). ‘Where, as here, the [Board] agrees with the [immigration judge’s] decision but supplements his reasoning, we review the [judge’s] decision as supplemented by the [Board].” Pawlowska v. Holder, 623 F.3d 1138, 1141 (7th Cir. 2010).

An immigration judge may grant a continuance “for good cause shown.” 8 C.F.R. § 1003.29. In evaluating whether the circumstances warrant a continuance to pursue an 1-130 petition, the Board and judges presume that “discretion should be favorably exercised where a prima facie approvable visa petition and adjustment application have been submitted in the course of an ongoing removal hearing.” Hashmi, 24 I. & N. Dec. at 790. The “focus of the inquiry is the apparent ultimate likelihood of success on the adjustment application.” Id. And the Board and judges also consider: “(1) the DHS response to the motion; (2) whether the underlying visa petition is prima facie approvable; (3) the respondent’s statutory eligibility for adjustment of status; (4) whether the respondent’s application for adjustment merits a favorable exercise of discretion; and (5) the reason for the continuance and other procedural factors.” Id.

The Board and judge did not abuse their discretion here. Cadavedo’s' visa petition was not “prima facie approvable” due to the USCIS finding in 2009 that Cadave-do had engaged in marriage fraud. See 8 U.S.C. § 1154(c); 8 C.F.R. § 204.2(a)(l)(ii). We agree with the Board and judge that Cadavedo’s “apparent ultimate likelihood of success on the adjustment application” was at best speculative due to the fraud bar. Hashmi, 24 I. & N. Dec. at 790.

Nothing in the record indicates that Ca-davedo had a solid case to overturn the fraud bar. In his brief, Cadavedo also acknowledges that the possibility that US-CIS would agree to entertain an appeal more than six years late was “nil.” The Board and judge did not abuse their discretion by denying Cadavedo’s continuance request on these grounds. See Souley v. Holder, 779 F.3d 720, 723 (7th Cir. 2015) (no abuse of discretion in denying motion to continue to allow petitioner’s wife to file second 1-130 petition after first one was denied); Calma, 663 F.3d at 878 (“sound reason” existed for denying continuance when adjustment of status was speculative and, if successful, would occur far into the future).

The judge also properly considered “the reason for the continuance and other procedural factors.” Hashmi, 24 I. & N. Dec. at 790. Cadavedo requested the continuance during a hearing and after he had received a de facto three-month continuance due to the 2013 government shutdown. Nothing in the record suggests that Cadavedo informed the Board or immigration judge of any action he took to contest the fraud bar and obtain an approved 1-130 petition during his de facto three-month continuance. Nor is there any indication that he did so during the years between USCIS’s notification that it had imposed the fraud bar and the 2014 hearing before the immigration judge.

Cadavedo argues that the Board abused its discretion because it failed to consider the factors for granting a continuance the Ninth Circuit identified in Baires v. INS, 856 F.2d 89 (9th Cir. 1988). But the Board properly applied the factors from Hashmi, 24 I. & N. Dec. at 790. As we have repeatedly recognized, that was the correct legal standard for the Board to apply. See Adame v. Holder, 762 F.3d 667, 672-73 (7th Cir. 2014); Aimin Yang v. Holder, 760 F.3d 660, 666 (7th Cir. 2014); Calma, 663 F.3d at 872. The Board did not abuse its discretion here in affirming the immigration judge’s denial of the request for a eontinuance to seek speculative relief from USCIS’s fraud bar.

C. Due Process

Cadavedo also argues that the immigration judge’s decision not to hold a contested hearing on the fraud charge of removability deprived him of his due process rights by preventing him from challenging the fraud finding in the immigration court. Cadavedo, of course, has a constitutional right to removal proceedings that satisfy the requirements of due process. See Reno v. Flores, 507 U.S. 292, 306, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). But Cadavedo does not have a due process right to seek relief from removal that is purely discretionary, such as adjustment of status, because he has no protected liberty interest in obtaining such relief. Hamdan v. Gonzales, 425 F.3d 1051, 1061 (7th Cir. 2005); see also Adame, 762 F.3d at 670. Cadavedo also has not demonstrated that the immigration judge’s refusal to let him challenge the fraud bar prejudiced him. See Souley, 779 F.3d at 724 (no due process problem because no prejudice from denial of continuance).

In any case, Cadavedo had sufficient process available to him to challenge the fraud bar. As the Attorney General points out, Cadavedo could have moved for reconsideration of USCIS’s denial of his petition for adjustment of status and challenged the bar that way. 8 C.F.R. § 103.5(a)(l)(I). Presumably, if Cadavedo could have demonstrated ineffective assistance of counsel in his original petition for adjustment of status, that could provide good reason for USCIS to reconsider its decision. If Cadavedo had taken steps to obtain an approved 1-130 petition during his administrative proceedings, he could have asked immigration authorities to reconsider their denial of a continuance on the basis of that new information. 8 C.F.R. § 1003.2 (motion to reopen before Board); 8 C.F.R. § 1003.23 (motion to reopen before immigration judge); Matter of Coelho, 20 I. & N. Dec. 464, 471-72 (BIA 1992) (describing motion to remand to immigration judge). The immigration laws and regulations accorded Cadavedo sufficient process.

The petition for review of the Board’s decision is DENIED.

      . Manny Aguja represented Cadavedo in his attempt to adjust his status, and Cadavedo worked for Aguja from 2004 to 2007. In 2012, attorney Aguja pled guilty to conspiracy to commit marriage fraud by participating in arranging fraudulent marriages for immigration purposes.

      . At oral argument, Cadavedo’s counsel represented that Cadavedo has obtained an approved 1-130 petition. Cadavedo’s briefing does not mention this and we have not received any written updates from Cadavedo. Absent information to the contrary, wé assume USCIS continues to maintain its fraud bar against Cadavedo. In any case, we review the Board’s and immigration judge's use of their discretion, so our review focuses on the information they had when making their decisions.

      . Cadavedo asserts that the Board erred in identifying the daughter through whom he wished to have his status adjusted. The Board identified the daughter as the one who was in removal proceedings at the same time as Ca-davedo, but he said he intended to seek adjustment of status through a daughter who he says is currently a legal permanent resident in the process of naturalizing. As the Attorney General acknowledges, the Board erred, but that error was harmless: Cadavedo did not claim that his daughter had been naturalized, only that she was applying for it, and the fraud bar would prevent Cadavedo from adjusting his status through any relative. See Calma, 663 F.3d at 878 (harmless error analysis applies).

      . To whatever extent Cadavedo seeks review of the Board’s decision to deny him administrative closure, the Board did not abuse its discretion in denying that request for the same reasons stated in this section. See Vahora v. Holder, 626 F.3d 907, 919 (7th Cir. 2010) (court of appeals has jurisdiction to review denial of administrative closure for abuse of discretion).


author: WOLLMAN, Circuit Judge.

text:
    Grand Juror DOE, Plaintiff-Appellant v. Robert P. MCCULLOCH, in his official capacity as Prosecuting Attorney for St. Louis County, Missouri, Defendant-Appellee.
    No. 15-2667
    United States Court of Appeals, Eighth Circuit.
    Submitted: March 16, 2016
    Filed: June 20, 2016

      Andrew McNulty, Anthony E. Rothert, Jessie Steffan, American Civil Liberties Union of Missouri Foundation, Joshua Michael Pierson, David Eric Sowers, Feme Paula Wolf, Sowers & Wolf, Saint Louis, MO, Gillian R. Wilcox, ACLU of Missouri Foundation, Kansas City, MO, for Plaintiff-Appellant.
    David J. Hansen, Assistant Attorney General, H. Anthony Relys, Attorney General’s Office, Jefferson City, MO, Peter Jay Krane, St. Louis County Counselor’s Office, Saint Louis, MO, for Defendant Appellee.
    Before WOLLMAN, BENTON, and SHEPHERD, Circuit Judges.
   WOLLMAN, Circuit Judge.

Grand Juror Doe appeals from the dismissal of her declaratory judgment action, following the district court’s decision to abstain from exercising jurisdiction. We conclude that the district court should not have dismissed the case outright, but rather should have stayed the case while the state-law issues were decided by the Missouri state courts. Accordingly, we vacate the judgment and remand the case to the district court for further proceedings.

Doe served on the Missouri grand jury that considered whether probable cause existed to indict Darren Wilson, the Ferguson, Missouri, police officer who shot and killed Michael Brown in August 2014. County prosecutors presented evidence to the grand jury over the course of several weeks. On November 24, 2014, the grand jury returned a “no true bill” of indictment and was discharged from service. See Mo. Rev. Stat. § 540.260 (“When there is not a concurrence of nine grand jurors in finding an, indictment, the foreperson shall certify ... that such an indictment is not a true bill.”).

That evening, Robert P. McCulloch, the prosecuting attorney for St. Louis County, held a press conference, during which he explained the grand jury’s investigation and its decision not to indict Wilson on any charges. He also released some of the evidence that prosecutors had presented to the grand jury, including transcripts, reports, interviews, and forensic evidence.

Doe took an oath of secrecy twice, once in May 2014 when she began her term as a grand juror and a second time in September 2014 when her term was extended to allow the grand jury to complete its investigation into the Wilson matter. The oath asks, in relevant part:

Do you solemnly swear you will diligently inquire and true presentment make, according to your charge, of all offenses against the laws of the state committed or triable in this county of which you have or can obtain legal evidence; the counsel of your state, your fellows and your own, you shall truly keep secret?

Mo. Rev. Stat. § 540.080. Missouri law disallows a grand juror from “testifying] or declaring] in what manner he or any other member of the grand jury voted on any question before them, or what opinions were expressed by any juror in relation to any such question.” Id. § 540.310. Missouri law further provides that “[n]o grand juror shall disclose any evidence given before the grand jury, nor the name of any witness who appeared before them, except when lawfully required to testify as a witness in relation thereto.” Id. § 540.320. A grand juror who unlawfully discloses evidence or names of witnesses “shall be deemed guilty of a class A misdemeanor,” id., which can result in a term of imprisonment and a fine.

Doe would like to speak about her experience as a grand juror and express her opinions about the grand jury’s investigation. She would like to correct any implication that the grand jury unanimously found that there was no probable cause to indict Wilson on any charges. Moreover, in Doe’s opinion, the prosecutors presented evidence and explained the law differently in the Wilson matter than they had in the other matters presented to the grand jury. Doe claims that she has not recounted her experience or expressed her views because she fears the imposition of criminal penalties or other punishment.

Doe filed suit against McCulloch in his official capacity in January 2015. She sought a declaratory judgment that the Missouri statutes restricting grand jurors from disclosing information were unconstitutional as applied to her. She claimed that the state’s grand-jury secrecy laws violate her First Amendment right to free speech. McCulloch moved to dismiss the complaint, arguing, among other things, that the district court should abstain from exercising its jurisdiction under Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). The district court decided to abstain and granted the motion to dismiss, even though a lawsuit is typically stayed — not dismissed — under Pullman. See, e.g., Bob’s Home Serv., Inc. v. Warren County, 755 F.2d 625, 628 (8th Cir. 1985) (“Pullman abstention ... involves not an abdication of federal jurisdiction, but only the postponement of its exercise.”); Coley v. Clinton, 635 F.2d 1364, 1377 (8th Cir. 1980) (“[A]bstention under the Pullman doctrine contemplates retention of jurisdiction over the federal claims, pending the disposition of state law issues in the state proceedings.”).

After her federal lawsuit was dismissed, Doe filed a state-court petition, seeking a declaration that section 540.320 does not apply to her and requesting a release from the oath she took. The petition also set forth her First Amendment claim, but stated that Doe did not seek relief on that claim and instead reserved the right to return to federal district court to have her constitutional claim heard in a federal forum. See England v. La. State Bd. of Med. Exam’rs, 375 U.S. 411, 421-22, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964) (setting forth the procedure for reserving the right to return to federal court for a determination of any remaining federal questions).

Meanwhile, in federal district court, Doe moved to alter or amend the judgment, asking that her case be stayed — rather than dismissed — so that she could pursue her First Amendment claim in federal court if her state-law claims proved unsuccessful. Despite the seeming application of the Pullman doctrine in its previous order, the district court stated in its order denying Doe’s motion to alter or amend judgment that it had dismissed the case under the abstention doctrine set forth in Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943), “a feature of which is outright dismissal of the complaint by the federal court.” Bob’s Home Serv., Inc., 755 F.2d at 628. The district court thus instructed Doe to pursue all of her claims in state court.

Doe argues on appeal that the district court erred by dismissing her First Amendment claim under Burford. “Bur-ford abstention applies when a state has established a complex regulatory scheme supervised by state courts and serving important state interests, and when resolution of the case demands specialized knowledge and the application of complicated state laws.” Bilden v. United Equitable Ins. Co., 921 F.2d 822, 825 (8th Cir. 1990); see also New Orleans Pub. Serv., Inc. v. Council of City of New Orleans (NOPSI), 491 U.S. 350, 361, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989). Doe’s lawsuit does not involve any complex regulatory scheme, nor does it demand the delicate balancing of state interests typically found in Burford abstention cases. See NOPSI, 491 U.S. at 362, 109 S.Ct. 2506 (stating that “Burford is concerned with protecting complex state administrative processes from undue federal interference”). Moreover, although the Missouri statutes are not without ambiguity, they also are not particularly complicated. Doe’s lawsuit simply does not implicate the principles underlying Burford abstention, for “it does not demand significant familiarity with, and will not disrupt state resolution of, distinctively local regulatory facts or policies.” Id. at 363-64, 109 S.Ct. 2506 (emphasis omitted). We thus conclude that the district court erred in applying Burford abstention.

The district court did not err in abstaining from exercising its jurisdiction, however. “Abstention is proper ... when a federal constitutional issue might be mooted by a state-court determination of pertinent questions of state law.” Bob’s Home Serv., Inc., 755 F.2d at 628. Specifically, “Pullman requires a federal court to refrain from exercising jurisdiction when the case involves a potentially controlling issue of state law that is unclear, and the decision of this issue by the state courts could avoid or materially alter the need for a decision on federal constitutional grounds.” Burris v. Cobb, 808 F.3d 386, 388 (8th Cir. 2015) (quoting Moe v. Brookings County, 659 F.2d 880, 883 (8th Cir. 1981)). As set forth above, the criminal statute that Doe challenges forbids a grand juror from “disclos[ing] any evidence given before the grand jury” or “the name of any witness who appeared before” the grand jury. Mo. Rev. Stat. § 540.320. A question Doe now asks is whether and to what extent the statute applies to her, in light of the fact that McCulloch has disclosed some evidence and witness names. Because the answer by the Missouri courts could alter or avoid altogether the need for a decision on Doe’s First Amendment claim, the district court properly abstained from the immediate exercise of federal jurisdiction. Rather than dismissing the case, however, the district court instead should have retained jurisdiction and stayed the proceedings while the parties litigate the state-law questions in the Missouri state courts.

Accordingly, the judgment is vacated and the case is remanded for further proceedings consistent with this opinion. When the state-law issues have been resolved, if the First Amendment claim has not become moot, Doe may return to federal district court and pursue it. See Bob’s Home Serv., Inc., 755 F.2d at 628 (citing England, 375 U.S. at 415-17, 84 S.Ct. 461).

      . The district court granted Doe's motion to proceed under a pseudonym and thereafter used feminine pronouns in its orders. Consistent with the district court, we have used feminine pronouns throughout this opinion.

      . In her federal complaint, Doe challenged sections 540.080, 540.120, 540.310, and 540.320 of the Missouri Revised Statutes. McCulloch states that his office is without authority to enforce the provisions related to the oath — sections 540.080 and 540.310 — because those statutes are not criminal statutes. He argues that any claims related to the oath should be decided by the judge who supervised the grand juiy proceedings. Moreover, he contends that section 540.120 applies to witnesses who appear before the grand jury and "has nothing to do with enforcing the oath sworn by [Doe] as a grand juror." Appel-lee's Br. 26 (emphasis omitted). We note that Doe has not challenged section 540.120 in her state-court petition, but we need not decide at this juncture whether Doe has sued the wrong party, has filed suit in the wrong venue, or has challenged a statute that does not apply to her, for those state-law issues may well be resolved by the Missouri state courts while Doe's federal case is stayed.


author: SHEPHERD, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee v. Tonney Lee VALURE, Defendant-Appellant.
    No. 15-3175
    United States Court of Appeals, Eighth Circuit.
    Submitted: April 11, 2016
    Filed: July 5, 2016
    Counsel who represented the appellant was Stuart Carl Vess of North Little Rock, AR.
    Counsel who represented the appellee was Jana K. Harris, AUSA, of Little Rock, AR.
    Before COLLOTON, ARNOLD, and SHEPHERD, Circuit Judges.
   SHEPHERD, Circuit Judge.

Tonney Valure pled guilty to armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d) while on federal supervised release from two other felony bank robbery convictions. In sentencing Valure for the instant bank robbery, the district court revoked his supervised release from the two prior convictions and ordered both of the revocation sentences to run consecutively to each other and consecutive to the underlying sentence. Valure argues the district court erred when it ordered the sentences to be served consecutively rather than concurrently.

I.

On July 30, 2013, Valure committed armed bank robbery while on federal supervised release from two other federal bank robbery convictions: No. 4:10CR00236, a 1991 bank robbery in Tennessee, and No. 4:92CR00007, a 1991 bank robbery in Arkansas. Valure had been sentenced for both No. 4:10CR00236 and No. 4:92CR00007 in the Western District of Tennessee, with sentences running concurrently and with supervised release to follow. Following Valure’s release on supervision, jurisdiction for both cases was transferred to the Eastern District of Arkansas, where revocation petitions were filed in both eases based on the July 30, 2013 robbery.

Valure was sentenced in the instant case, No. 4:13CR00266, on September 8, 2015. After calculating a guidelines 'range of 51 to 63 months, the district court imposed a sentence of 63 months’ imprisonment on Valure. Valure did not contest revocation from his two prior convictions, but asked the court to order the two revocation sentences to run concurrent to the sentence imposed for the instant armed bank robbery conviction. Conversely, the government requested the revocation sentences run concurrent to each other but consecutive to the current sentence. Under the Guidelines, revocation of supervised release in No. 4:10CR00236 carried a range of 33 to 36 months’ imprisonment while revocation in No. 4:92CR00007 allowed for up to 24 months’ imprisonment. The district court revoked Valure’s supervised release in both cases as a result of his violation of the condition that he shall not commit another federal, state, or local crime. Consequently, the district court ordered Valure to serve 36 months in prison in Case No. 4:10CR00236, with the sentence to run consecutive to the 63 month sentence in Case No. 4:13CR00266, and 24 months in prison in Case No. 4:92CR00007, with the sentence to run consecutive to the 36 month sentence in Case No. 4:10CR00236, and no supervised release to follow. Valure timely appealed. Having jurisdiction under 28 U.S.C. § 1291, we affirm.

II.

Valure argues the district court erred in ordering that all three of the sentences be served consecutively.' We apply the same abuse-of-discretion standard of review to a district court’s revocation sentencing decision that we apply to initial sentencing decisions. United States v. Shepard, 657 F.3d 682, 685 (8th Cir. 2011) (citing United States v. Miller, 557 F.3d 919, 922 (8th Cir. 2009)).

United States Sentencing ' Guideline (“U.S.S.G.”) § 7B1.3(f) provides:

Any term of imprisonment imposed upon the revocation of probation or supervised release shall be ordered to be served consecutively to any sentence of imprisonment that the defendant is serving, whether or not the sentence of imprisonment being served resulted from the conduct that is the basis of the revocation of probation or supervised release.

Further, 18 U.S.C. § 3584(b) grants the district court, discretion in determining whether to order the terms of imprisonment to run concurrently or consecutively and directs the district court to consider the § 3553(a) factors when making such a determination. This Court’s precedent establishes that, pursuant to § 3584, a district court has discretionary authority to order sentences to run consecutively rather than concurrently. United States v. Baker, 491 F.3d 421, 424 (8th Cir. 2007); United States v. Cotroneo, 89 F.3d 510, 512 (8th Cir. 1996), cert. denied, 519 U.S. 1018, 117 S.Ct. 533, 136 L.Ed.2d 419 (1996). Valure attempts to distinguish Co-troneo on a factual basis, but the fact that revocations in Cotroneo were based upon supervised release ordered by two separate courts on two separate occasions is inconsequential. See 89 F.3d at 511-12. We clearly stated in Cotroneo that “§ 3584(a) allowed the District Court to impose consecutive rather than concurrent sentences upon revocation of [the defendant’s] concurrent terms of supervised release.” Id. at 513. Therefore, Valure demonstrates no abuse of the district court’s discretion under the Guidelines, applicable statute, or this Court’s precedent.

Finally, in reviewing a sentence under the abuse-of-discretion standard, we “must first ensure that the district court committed no significant procedural error ... then consider the substantive reasonableness of the sentence imposed.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). “A sentence within the Guidelines range is accorded a presumption of substantive reasonableness on appeal.” United States v. Robinson, 516 F.3d 716, 717 (8th Cir. 2008). The district court weighed the § 3553(a) factors, noting Valure’s prior convictions for crimes of violence as well as “the seriousness of his noncompliance and his continued lack of regard for the law,” and imposed revocation sentences permissible under 18 U.S.C. §§ 3583(e) and 3584. Given that each of the sentences imposed in Valure’s case fell within the Guidelines range, we are satisfied that the district court committed no significant procedural error and imposed a substantively reasonable sentence. Accordingly, the district court did not abuse its considerable discretion in ordering the consecutive sentences.

III.

For the foregoing reasons, we affirm Valure’s consecutive sentences.

      . The Honorable Kristine G. Baker, United States District Judge for the Eastern District of Arkansas.


text:
    UNITED STATES of America, Plaintiff-Appellee v. Torris Izell BOYD, Defendant-Appellant.
    No. 15-2097
    United States Court of Appeals, Eighth Circuit.
    Submitted: April 11, 2016
    Filed: July 5, 2016
    Counsel who represented the appellant was Michael K. Lahammer, Cedar Rapids, IA.
    Counsel who represented the appellee was Patrick J. Reinert, AUSA, Cedar Rapids, IA.
    Before COLLOTON, ARNOLD, and SHEPHERD, Circuit Judges.
   SHEPHERD, Circuit Judge.

On July 31, 2006, Torris Izell Boyd pled guilty to distribution of cocaine base near a playground in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 860 as well as 18 U.S.C. § 2. At sentencing, the district court calculated a total offense level of 38 along with a category IV criminal history. The guideline range equated to 324-405 months, but the district court imposed a below-guidelines sentence of 308 months’ imprisonment pursuant to United State Sentencing Guideline (“U.S.S.G.”) § 5K1.1. We affirmed Boyd’s conviction and sentence on November 28, 2007. United States v. Boyd, 256 Fed.Appx. 890 (8th Cir. 2007) (per curiam) (unpublished). In 2008, the district court retroactively applied two amendments to the Guidelines, Amendment 706 and Amendment 715, and exercised its discretion to grant Boyd a reduction in his sentence under 18 U.S.C. § 3582(c)(2) and U.S.S.G. § 1B1.10. Boyd’s sentence was ultimately reduced to 279 months. The district court again examined Boyd’s sentence in 2013 to determine whether a sentence reduction pursuant to Amendment 750 was warranted. The district court denied Boyd’s motion to reduce his sentence but advised that if Boyd improved his disciplinary record and availed himself of educational courses within the prison system over the npxt three years, he could move the court for a sentence reduction at that time.

Amendment 782 became effective November 1, 2014, and retroactively reduced most drug quantity base offense levels by two levels. United States v. Thomas, 775 F.3d 982, 982-83 (8th Cir. 2014) (per cu-riam). Based on his conviction and sentence, Boyd was eligible for an Amendment 782 reduction. The district court held a hearing on April 28, 2015 pursuant to its own motion under § 3582(c)(2) to determine whether a reduction in Boyd’s sentence in accordance with Amendment 782 was justified. The district court noted Boyd’s extensive criminal history and record of misconduct while incarcerated, which included over thirty disciplinary violations. Emphasizing the nature and seriousness of the danger to a person or the community that may be posed by a reduction in Boyd’s term of imprisonment, the district court considered the 18 U.S.C. § 3553(a) factors, as well as the provisions and commentary of U.S.S.G. § 1B1.10, and determined that in light of the defendant’s criminal history and extensive record of post-sentencing misconduct, a further reduction was not justified.

Boyd timely appealed the district court’s denial of the § 3582(c)(2) motion. We review the district court’s decision on a retroactive sentence reduction under § 3582(c)(2) for an abuse of discretion. United States v. Anderson, 707 F.3d 973, 974 (8th Cir. 2013) (per curiam). Boyd argues the district court abused its discretion by failing to recognize that his prior criminal history and recidivism were fully accounted for in his original sentence and that his prison disciplinary violations were adequately addressed through the prison disciplinary system, including a substantial loss of credit for good time.

“A district court may reduce a previously imposed prison term if the defendant’s sentence was ‘based on a sentencing range that has subsequently been lowered by the Sentencing Commission ... if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.’ ” Thomas, 775 F.3d at 982 (quoting 18 U.S.C. § 3582(c)(2)). The plain language of § 3582(c)(2) allows a district court wide latitude, stating that “the court may reduce the term of imprisonment, after considering the factors set forth in [18 U.S.C. § ] 3553(a) to the extent that they are applicable.” (emphasis added). Even where a defendant is eligible for a sentence reduction, the “doubly discretionary” language of § 3582(c)(2) does not entitle a defendant to a reduced sentence. United States v. Long, 757 F.3d 762, 764 (8th Cir. 2014) (quoting United States v. Johnson, 703 F.3d 464, 470 (8th Cir. 2013)). In fact, “[fjar from creating a substantive right to a modification, ‘§ 3582(c)(2) represents a congressional act of lenity.’ ” Johnson, 703 F.3d at 469 (emphasis added) (quoting Dillon v. United States, 560 U.S. 817, 828, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010)).

Under U.S.S.G. § lB1.10(b)(l), a district court “shall substitute” the amended Guidelines range for the initial range and “shall leave all other guideline application decisions unaffected.” The Application Notes for U.S.S.G. § 1B1.10 advise the district court to consider the § 3553(a) factors, “the nature and seriousness of the danger to any person or the community that may be posed by a reduction in the defendant’s term of imprisonment,” and “post-sentencing conduct of the defendant that occurred after imposition of the term of imprisonment.” U.S.S.G. § 1B1.10 cmt. n. 1(B).

We note that Boyd’s criminal history contained a second-degree murder conviction among multiple other offenses committed as both a juvenile and an adult. His record of misconduct while incarcerated for his current conviction includes thirty acts that required administrative sanctions, including fights, introduction of drugs/alcohol, possession of a dangerous weapon, assault, property destruction, and sexual activity. Given the district court’s explicit statement regarding its consideration of the § 3553(a) factors, the nature and seriousness of the danger to other persons or the community that a reduction in Boyd’s sentence may pose, and Boyd’s post-sentencing conduct, we are satisfied that the district court adequately weighed the appropriate factors in its decision to deny a sentence reduction. The length of Boyd’s post-sentencing misconduct report demonstrates both his failure to improve his behavior as well as the seriousness of the danger posed to the community by a further reduction in his sentence. Boyd’s loss of good time credit as a result of his behavior is of no consequence to the district court’s sentence reduction decision. Our review of Boyd’s sentence reveals no abuse of the district court’s wide discretion.

Accordingly, we affirm the district court’s denial of the 18 U.S.C. § 3582(c)(2) motion to reduce Boyd’s sentence pursuant to Amendment 782.

      . The Honorable Linda R. Reade, Chief Judge, United States District Court for the Northern District of Iowa.

      . Amendment 706 reduced the base offense level for offenses involving cocaine base b.y two levels. United States v. Higgins, 584 F.3d 770, 771 (8th Cir. 2009). In 2008, Amendment 715 replaced Amendment 706 and created a uniform two-level reduction for the same offenses. United States v. Ivory, 388 Fed.Appx. 567, 568 (8th Cir. 2010) (per curiam) (unpublished).

      . Amendment 750 reduced the offense levels listed in U.S.S.G. § 2D 1.1 for certain crack-cocaine offenses. United States v. Harris, 688 F.3d 950, 952 (8th Cir. 2012).


author: LOKEN, Circuit Judge.

text:
    Charles SOKPA-ANKU, Petitioner v. Loretta E. LYNCH, Attorney General of the United States, Respondent
    No. 15-3230
    United States Court of Appeals, Eighth Circuit.
    Submitted: May 18, 2016
    Filed: August 26, 2016

      Counsel who presented argument on behalf of the petitioner was Bianca Del Ves-cio, student at University of St. Thomas, in Minneapolis, MN and Alexandria Hare, student of the University of St. Thomas, at Minneapolis, MN. The following attorney also appeared on the petitioner’s brief; Elizabeth Holmes, Supervising Attorney, of Bloomington, MN.
    Counsel who presented argument on behalf of the respondent was Stratton Christopher Strand, of Washington, DC. The following attorneys also appeared on the respondent’s brief; Benjamin C. Mizer, Principal Deputy Assistant Attorney General, of Washington, D.C., Derek C. Julius, Senior Litigation Counsel, of Washington, D.C. and Benjamin Mark Moss, of Washington, D.C.
    Before WOLLMAN, LOKEN, and BENTON, Circuit Judges.
   LOKEN, Circuit Judge.

A jury convicted Charles Sokpa-Anku, a citizen of Ghana and a lawful permanent resident of the United States, of three counts of “medical assistance fraud” in violation of Minn. Stat. §.609.466. The Department of Homeland Security commenced removal proceedings, alleging that Sokpa-Anku was removable because he had been convicted of an aggravated felony. See 8 U.S.C. § 1227(a)(2)(A)(iii). The term “aggravated felony” includes “an offense that ... involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.” 8 U.S.C. § 1101(a)(43)(M)(I).

Conceding that his Minnesota conviction was an offense involving “fraud or deceit,” Sokpa-Anku moved to terminate the proceedings, arguing that none of the three counts of conviction was a fraud offense in which victim loss exceeded $10,000. The Board of Immigration Appeals (“BIA”) determined that the . Minnesota conviction was an aggravated felony and ordered Sokpa-Anku removed to Ghana. Sokpa-Anku petitions for review of the BIA’s decision. He argues that the BIA erred by aggregating losses from his three counts of conviction in calculating victim loss under § 1101(a)(43)(M)(I). We have jurisdiction to consider this issue of law. See Tian v. Holder, 576 F.3d 890, 895 (8th Cir. 2009). We deny the petition for review.

From July 2008 until he was terminated in December 2012, Sokpa-Anku owned and operated a home health care business that was an enrolled Minnesota Medicaid provider. In a March 2014 criminal complaint, state authorities alleged that a Medicaid fraud investigation revealed that, in 2009 and 2010, Sokpa-Anku “consistently billed for [Medicaid] services without supporting documentation.” The complaint charged him with four counts of intentionally filing false claims for Medicaid reimbursement that “resulted in an overpayment to [Sok-pa-Anku] of $23,729.67 for [Medicaid] services allegedly provided in 2009 and 2010.” Each count alleged a specific date range and the amount paid by the Minnesota Department of Human Services (“DHS”) for Medicaid services: Count 1, $9,860; Count 2, $6,271; Count 3, $2,607; and Count 4, $4,983. Count 3 was dismissed before trial.

The jury convicted Sokpa-Anku of counts 1, 2, and 4. Those counts alleged fraud in sequential time periods based on “the dates reimbursement claims were paid by DHS” — August 4, 2009-February 2, 2010; February 17, 2010-August 3, 2010; and August 31, 2010-January 4, 2011. The state court Register of Actions reports that the court imposed concurrent sentences on the three counts and ordered Sokpa-Anku to pay $20,791 in restitution on each count.

In Nijhawan v. Holder, 557 U.S. 29, 36, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009), the Supreme Court held that the $10,000 threshold in § 1101(a)(43)(M)(I) is not an element of a fraud offense and therefore may be proved by evidence of the particular circumstances of an alien’s specific offense. Applying this “circumstance specific approach,” the IJ concluded that Sokpa-Anku caused his victim, the Minnesota DHS, an actual loss greater than $10,000, whether the loss is calculated by aggregating the amount pleaded for each count in the criminal complaint, or by the order to pay $20,791 in restitution on each count. The IJ explained:

Although [Sokpa-Anku] was convicted of 3 different counts, all of the counts were for the same offense, namely Medical Assistance Fraud. The descriptions of the counts are also nearly identical to one another. In committing his offense, [Sokpa-Anku] utilized his business to commit the same conduct (submitting false reimbursement claims) against the same victim ... over a continuous period in 2009 and 2010. Tellingly, [Sokpa-Anku’s] submitted claims were divided into four timeframes ... merely for the purposes of charging.

The BIA adopted and affirmed the IJ’s analysis, noting that the three counts of conviction “were for the same crime, involved the same victim and essentially the same facts, as well as the same plea agreement.”

Sokpa-Anku argues that the IJ and' BIA erred by “aggregating” losses from multiple “offenses.” Noting that § 1101(a)(43)(M)(I) uses a singular term, “offense,” he argues that each count of conviction must be considered a distinct “offense.” Though Nijhawan did not involve a multi-count fraud conviction, Sok-pa-Anku’s textual argument is contrary to the Court’s opinion, which consistently used the terms “offense” and “conviction” interchangeably. The Court framed the inquiry in Nijhawan as whether “a prior conviction involved a fraud with the relevant loss to victims,” and whether “the loss involved in a prior fraud or deceit conviction amounted to at .least $10,000.” Id. at 41, 129 S.Ct. 2294 (emphases added). The Court explained that the $10,000 threshold requires a court to “look to the facts and circumstances underlying an offender’s conviction.” Id. at 34, 129 S.Ct. 2294 (emphasis added). The Court endorsed prior decisions holding that the “the loss must be tied to the specific counts covered by the conviction;” it may not be tied to “acquitted or dismissed counts or general conduct.” Id. at 42, 129 S.Ct. 2294 (emphasis added; quotations omitted); see James v. Gonzales, 464 F.3d 505, 510-12 (5th Cir. 2006); Knutsen v. Gonzales, 429 F.3d 733, 736-40 (7th Cir. 2005); Khalayleh v. INS, 287 F.3d 978, 980 (10th Cir. 2002).

In this case, there is one conviction, and the total loss is directly tied to three specific fraud counts “covered by the conviction.” Sokpa-Anku responds that “courts must determine loss to victims tied to each count” separately, unless the underlying conviction was for a scheme or conspiracy. But the cases he cites predated Nijhawan and dealt with whether acquitted counts and general conduct can be considered in calculating loss amount. Sokpa-Anku cites no case holding that multiple fraud counts of conviction cannot be aggregated in determining whether the conviction was an aggravated felony under § 1101(a)(43)(M)(I).

In this case, we need not decide whether totally unrelated, fraud counts in a single conviction may be aggregated. As the BIA recognized, Sokpa-Anku’s three fraud counts of conviction were part of a sufficiently interrelated fraud to warrant aggregation, whether or not the criminal complaint included an express allegation of conspiracy or scheme to defraud. Cf. Eversley-MacClaren v. Holder, 578 Fed. Appx. 664, 665-66 (9th Cir. 2014) (nine fraud counts of conviction aggregated where criminal information alleged that each was “connected in its commission” with another). Likewise, the order to pay an aggregated restitution amount demon'strated that Sokpa-Anku did not commit multiple, unrelated frauds. See Nijhawan, 557 U.S. at 43, 129 S.Ct. 2294 (restitution order indicative of loss amount); Munroe v. Ashcroft, 353 F.3d 225, 227-28 (3d Cir. 2003) (same); In re Babaisakov, 24 I. & N. Dec. 306, 319 (2007) (same).

For the foregoing reasons, we deny the petition for review.