author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Marion Anthony NORWOOD, Defendant-Appellant.
    No. 15-3442
    United States Court of Appeals, Eighth Circuit.
    Submitted: April 6, 2017
    Filed: April 17, 2017
    Rehearing and Rehearing En Banc Denied June 8, 2017

      Alex S. McCauley, McCauley Law Firm LLC, Overland Park, KS, for appellant.
    Marion Anthony Norwood, Jesup, GA, pro se.
    Philip M. Koppe, Asst. U.S. Atty., Kansas City, MO (Tammy Dickinson, U.S. Atty., on the brief), for appellee.
    Before LOKEN, BOWMAN, and MURPHY, Circuit Judges.
   PER CURIAM.

Marion Anthony Norwood appeals the judgment of the district court entered after a jury found him guilty of conspiracy to commit bank fraud. See 18 U.S.C. §§ 1344, 1349. Norwood’s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), challenging the sufficiency of the evidence, the admission of certain evidence, and certain sentence enhancements. In a pro se brief, Norwood challenges the ruling of District Judge Phillips at sentencing that she need not recuse; he also challenges sentence enhancements and argues that he received ineffective assistance of counsel. For the reasons that follow, we affirm,

The indictment charged that Nor-wood conspired with others to commit bank fraud from December 10, 2012 to about January 4, 2013. The evidence at a three-day trial showed that United States Postal Service investigators uncovered a scheme in which groups from Atlanta, Georgia, traveled throughout the United States, stole business mail from industrial business parks, and used the stolen mail to create counterfeit payroll checks. Nor-wood’s conspiracy involved transactions that occurred primarily in the Kansas City area. According to the Postal Inspector, conspirators known as “handlers” recruited homeless individuals who had state-issued identification cards and were willing to cash counterfeit checks for a small fee. The handlers provided the recruits with clothing, transportation, and instructions on what to do upon entering the bank and leaving with the cash. The handlers exchanged text messages with conspirators creating counterfeit checks and then picked up the counterfeit checks on the way to FDIC-insured banks. The check makers ran the crew and divided the proceeds. Law enforcement officials and cooperating witnesses confirmed the Postal Inspector’s description of the scheme and Norwood’s participation as a check maker. The jury found him guilty. Upon careful review, we conclude that the evidence was sufficient to sustain the jury’s verdict, and that evidence about past events was properly admitted under Federal Rule of Evidence 404(b). See United States v. Maxwell, 778 F.3d 719, 725 (8th Cir.) (sufficiency), cert. denied, — U.S. -, 135 S.Ct. 2390, 192 L.Ed.2d 175 (2015); United States v. Beckman, 787 F.3d 466, 477-78 (8th Cir.) (admission of Rule 404(b) evidence), cert. denied, — U.S. -, 136 S.Ct. 160, 193 L.Ed.2d 119 (2015).

At the beginning of the multi-day sentencing hearing, Judge Phillips noted that, according to the presentence report, the conspiracy for which Norwood was convicted “is part of a nationwide counterfeit check ring out of Atlanta, Georgia, that has been under investigation by the United States Postal Inspection Service since 2010” — before Judge Phillips left her position as United States Attorney for the Western District of Missouri on March 22, 2012. Judge Phillips asked the government for clarification as to when investigation of the conspiracy involving Norwood had begun, so that she could determine whether she had a conflict of interest. Assistant United States Attorney John Cowles responded that, while the first arrests of persons recruiting homeless persons in Kansas City occurred in December 2011, the government “had literally no information about Mr. Norwood” prior to January 2013. Norwood was not indicted until November 2013, and the counterfeit checks used in prosecuting his conspiracy were collected no earlier than September 2012, although evidence gathered later showed that Norwood’s involvement pre-dated the acts for which he was charged. Judge Phillips determined that the investigation and prosecution of Norwood’s conspiracy offense occurred after she was U.S. Attorney, so she had no conflict of interest and recusal was not required. We agree.

The federal statute governing judicial disqualification provides that a judge “shall” disqualify if she “has served in governmental employment and in such capacity participated as counsel ... or expressed an opinion concerning the merits of the particular case in controversy.” 28 U.S.C. § 455(b)(3) (emphasis added). Before Congress adopted this language in 1974, the statute provided that a judge shall disqualify “in any case in which [she] ... has been of counsel.... ” 28 U.S.C. § 455 (1970). As the U.S. Attorney serves as counsel for the United States in all prosecutions brought in her District, the term “of counsel” was construed as requiring a federal judge to recuse in all cases where the prosecution was brought while she was in office. Barry v. United States, 528 F.2d 1094, 1099 n.14 (7th Cir. 1976); see Kendrick v. Carlson, 995 F.2d 1440, 1444. (8th Cir. 1993). However, the word “case” was given “a rather strict meaning,” namely, that “a ‘case’ begins with the first formal prosecutorial proceeding (arrest, complaint or indictment) which is designed to bring a named alleged offender before the court.” Barry, 528 F.2d at 1098 (quotation omitted); see In re Grand Jury Investigation, 486 F.2d 1013, 1015 (3d Cir. 1973). Though the 1974 revision changed the word “case” to “proceeding,” its legislative history reflected no intent to change the restrictive case requirement of the prior statute. Barry, 528 F.2d at 1098-99 & n.9.

The 1974 revision did, however, replace the reference to “of counsel,” which suggested a per se rule of disqualification for U.S. Attorneys, with the more limited standard in § 455(b)(3) — a judge must recuse if she served in government employ “and in such capacity participated as counsel.” Under this standard, a party seeking recusal must show that the judge while serving as U.S. Attorney actually participated as counsel for the government in investigating or prosecuting the specific conspiracy underlying the present indictment. See United States v. Pi Pasquale, 864 F.2d 271, 278-79 (3d Cir. 1988); United States v. Gipson, 835 F.2d 1323, 1326 (10th Cir. 1988). Norwood made no such belated showing. Nor did he offer evidence tending to show that a reasonable person with knowledge of .the relevant circumstances might reasonably question Judge Phillips’s impartiality, requiring recusal under 28 U.S.C. § 455(a). Norwood’s further suggestion that due process required Judge Phillips to recuse sua sponte is without merit. “[U]nder the Due Process Clause there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant’s case.” Williams v. Pennsylvania, — U.S. -, 136 S.Ct. 1899, 1905-06, 195 L.Ed.2d 132 (2016). Judge Phillips while U.S. Attorney had no significant personal involvement in a critical decision regarding Nor-wood’s subsequent prosecution for mail fraud conspiracy.

At sentencing, following the presentation of evidence in support of the recommended Guidelines calculations, the district court sustained Norwood’s objections to enhancements involving the number of victims and the amount of intended losses (assessing 49 victims rather than 50 or more, and finding an intended loss of $389,172.89 rather than $50 million or more). The court overruled his objections to enhancements for the use of sophisticated means, the unauthorized use of identification,, and his leadership role. We conclude that the district court properly applied the Guidelines and made no clearly erroneous factual finding. See United States v. Jenkins, 578 F.3d 745, 748-49 (8th Cir. 2009). The resulting advisory guidelines range was 140-175 months in prison. The district court imposed a 144-month sentence and ordered restitution of $275,747.34. We find nothing in the record to indicate that sentence is substantively unreasonable.

Finally, as in most cases, Nor-wood’s pro se ineffective-assistance claims are best left for proceedings under 28 U.S.C. § 2255. See United States v. Davis, 583 F.3d 1081, 1091 (8th Cir. 2009). Following review under Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we find no other nonfrivolous issue for direct appeal. Accordingly, the judgment of the district court is affirmed. We grant counsel’s motion to withdraw.

      . The Honorable Beth Phillips, United States District Judge for the Western District of Missouri.


source: Caselaw Access Project

author: COLLOTON, Circuit Judge..

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Breac A. STEWART, Defendant-Appellant.
    No. 15-3907
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 17, 2016
    Filed: April 17, 2017

      Counsel who represented the appellant was Edward M. Robinson, of Torrance, CA.
    Counsel who represented the appellee was John Higgins, AUSA, of Omaha, NE.
    Before LOKEN, SMITH
      , and COLLOTON, Circuit Judges.

      . The Honorable Lavenski R. Smith became Chief Judge of the United States Court of Appeals for the Eighth Circuit on March 11, 2017.

   COLLOTON, Circuit Judge..

A jury convicted Breac Stewart of three offenses for his participation in a marijuana trafficking scheme. Stewart appeals the district court’s denial of his motion for judgment of acquittal. Because Stewart’s convictions are supported by sufficient evidence, we affirm.

I.

A grand jury charged Stewart and his cousin, Hans Schroeder, in August 2014 with three offenses: conspiracy to distribute and possession with intent to distribute 50 kilograms or more of marijuana under 18 U.S.C. §§ 841(a)(1) and 846, conspiracy to launder money under 18 U.S.C. § 1956(a)(1)(B)®, and racketeering under 18 U.S.C. § 1952. The indictment also included a forfeiture allegation seeking a money judgment for proceeds of the distribution scheme. We recount the pertinent evidence in the light most favorable to the verdict.

At trial, Schroeder testified that he and Stewart had an agreement to traffic marijuana. Stewart would send marijuana from California to Schroeder in Nebraska, and Schroeder would distribute it. According to Schroeder, Stewart sent him one-pound heat-sealed packages through the mail. Stewart mailed Schroeder these packages with increasing frequency from early 2011 through November 2013, sometimes sending two per week.

Schroeder and Stewart also paid two couriers, Christopher Gude and Jordyn Hermsen, to drive money and larger quantities of marijuana from California to Nebraska. Gude testified that he made five or six trips between the fall of 2012 and the spring of 2013, carrying eight to ten pounds of marijuana on the first journey, and approximately twenty pounds on the later trips. Hermsen testified that she made six to eight trips between April and November 2013, carrying at least two or three large duffel bags full of marijuana packages. Schroeder testified that Herm-sen and Gude transported approximately the same amount on their respective trips. Gude and Hermsen said that they brought money on two to four trips and gave it to Stewart. After Stewart moved to Omaha in the summer of 2013, he traveled back to California and supplied marijuana that Hermsen drove to Nebraska.

Schroeder testified that he gave Stewart his portion of the profits by various means — through the mail, by driving it or flying with it to California, by wiring it, or by depositing it in a jointly-held bank account. The bank account was in the name of “We Be Lions,” a band that Schroeder had managed. Schroeder testified that to conceal the illegal activity, he commingled the marijuana profits with funds from his legitimate sales of glass pipes. Stewart withdrew $103,400 from the We Be Lions account during the relevant period, and he received twenty-nine MoneyGram transfers totaling $64,894.

After the close of evidence, Stewart moved for a judgment of acquittal, arguing that the government presented insufficient evidence for a jury to convict him of any charged offense. The district court denied the motion, and the jury found Stewart guilty on all three counts. The court then entered a preliminary forfeiture order in the amount of $168,294, the combined total amount of drug sale proceeds that appeared in the We Be Lions bank account and the wire transfer records. The court decided to rely on the financial records, rather than extrapolate a forfeiture amount from the quantity and price of the drugs involved, because it determined that the testimony did not provide a “reasonable estimate of the quantity [of marijuana] involved in the conspiracy.” At sentencing, the district court adopted its preliminary forfeiture order as the final order and sentenced Stewart to 48 months’ imprisonment.

II.

Stewart challenges the sufficiency of the evidence to support the convictions. We review the denial of a motion for judgment of acquittal de novo, viewing the evidence in the light most favorable to the verdict. The question is whether any reasonable jury could have found Stewart guilty beyond a reasonable doubt. Musacchio v. United States, — U.S. -, 136 S.Ct. 709, 715, 193 L.Ed.2d 639 (2016).

On the drug conspiracy count, Stewart contends that there was insufficient proof that he joined a conspiracy to distribute 50 kilograms or more of marijuana. Several witnesses, however, testified about Stewart’s role in procuring, packaging, and sending marijuana to Nebraska for distribution. Travel records and business records corroborated the testimony of the couriers. The government presented evidence of the MoneyGram wire transfers sent by Schroeder and other conspirators to Stewart. Schroeder testified that he mailed Stewart money from the marijuana sales via FedEx, and the government corroborated this testimony with evidence of a FedEx shipping label, addressed to Stewart, found during a search of Schroeder’s car. Stewart also withdrew funds from the bank account into which Schroeder deposited profits from the marijuana scheme. The evidence here is materially stronger than the proof in United States v. Hernandez, 301 F.3d 886 (8th Cir. 2002), where we affirmed a judgment of acquittal on a substantive drug charge because the government failed to prove the defendant’s knowledge of the drug trafficking scheme.

Stewart attacks the credibility of the witnesses who implicated him and cites the district court’s conclusion that the testimony was not sufficiently reliable to establish a forfeiture amount by a preponderance of the evidence. In the preliminary forfeiture order, however, the district court did “credit[ ] the testimony that the individuals transported or sold marijuana and/or transported cash.” The court just felt that the testimony did not “establish the forfeitable amounts with any particularity.” In reviewing the motion for judgment of acquittal, moreover, the court does not assess the credibility of the witnesses, because that is the province of the jury. Whatever the district court’s view of witness credibility, a reasonable jury was entitled to believe the witnesses who implicated Stewart. Even taking the low end of the quantities estimated by Schroeder and the couriers, the conspiracy involved well more than 50 kilograms of marijuana.

On the money laundering conspiracy, the government was required to establish that Stewart agreed with another to violate 18 U.S.C. § 1956(a)(l)(B)(i). That provision, in turn, requires proof that “(1) defendant conducted ... a financial transaction which in any way or degree affected interstate commerce ...; (2) the financial transaction involved proceeds of illegal activity; (3) defendant knew the property represented proceeds of some form of unlawful activity; and (4) defendant conducted ... the financial transaction knowing the transaction was ‘designed in whole or in part ... to conceal or disguise the nature, the location, the source, the ownership or the control of the proceeds of specified unlawful activity.’ ” United States v. Slagg, 651 F.3d 832, 844 (8th Cir. 2011) (citation omitted) (quoting § 1956(a)(1)(B)(i)).

The government presented evidence that Stewart and Schroeder used a joint bank account to deposit and withdraw funds derived from the marijuana conspiracy, with transactions occurring in Nebraska and California. To disguise the nature of the funds, the bank account was held in the name of a band, and the marijuana proceeds were commingled with legitimate proceeds from the glass pipe business. This evidence was sufficient to convict Stewart of a money laundering conspiracy.

The racketeering charge required proof that Stewart traveled interstate or used the mail or any facility in interstate commerce “with the intent to carry on or facilitate the carrying on of an unlawful activity and committed an overt act in performing or attempting to perform the unlawful activity.” United States v. Brown, 956 F.2d 782, 785 (8th Cir. 1992); see 18 U.S.C. § 1952(a). Several witnesses testified that Stewart shipped marijuana and received proceeds of marijuana sales through the mail. Schroeder and Herrasen testified that Stewart traveled from Nebraska to California to arrange for Herm-sen to transport loads of marijuana to Nebraska. Stewart also used a cellular telephone to monitor the work of drug couriers who participated in the unlawful activity. There was sufficient evidence to convict Stewart of racketeering.

The judgment of the district court is affirmed.

      . The Honorable Joseph F. Bataillon, United States District Judge for the District of Nebraska.


author: GRUENDER, Circuit Judge.

text:
    Francisco Emanuel LEMUS-ARITA, Petitioner v. Jefferson B. SESSIONS, III, Attorney General of the United States

      , Respondent
    No. 16-1924
    United States Court of Appeals, Eighth Circuit.
    Submitted: January 13, 2017
    Filed: April 17, 2017

      Counsel who presented argument on behalf of the petitioner was Matthew Lorn Hoppock, of Overland Park, KS. The following attorney(s) appeared on the petitioner brief; Matthew Lorn Hoppock, of Overland Park, KS.
    Counsel who presented argument on behalf of the respondent was Melissa Lynn Neiman-Kelting, of Washington, DC. In addition to Ms. Neiman-Kelting, the following attorney(s) appeared on the respondent brief; Benjamin C. Mizer, Principal Deputy Assistant Attorney General and M. Jocelyn Lopez Wright, Acting Assistant Director, Office of Immigration Litigation.
    Before COLLOTON, GRUENDER, and KELLY, Circuit Judges.

      . Jefferson B. Sessions, III has been appointed to serve as Attorney General of the United States and is automatically substituted as respondent pursuant to Federal Rule of Appellate Procedure 43(c)(2).

   GRUENDER, Circuit Judge.

Francisco Lemus-Arita petitions for review of the Board of Immigration Appeals’s (“BIA”) decision affirming the immigration judge’s (“IJ”) denial of Lemus-Arita’s requests for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). For the following reasons, we deny the petition.

I. Background

Lemus-Arita is a native and citizen of Guatemala. He initially entered the United States illegally in 2002 but returned to Guatemala in December of 2011 in anticipation of relocating there with his wife and son. After staying approximately one month, he decided to return to the United States and entered illegally near Brownsville, Texas on January 23, 2012. The Department of Homeland Security detained him and issued a notice to appear. Lemus-Arita conceded removability and filed an application for asylum, withholding of removal, and relief under the CAT.

In a hearing before an IJ, Lemus-Arita testified that when he returned to Guatemala, he learned that his cousin Oscar had been killed in August 2011. Oscar was rumored to have been involved in a kidnapping, and his murder was purportedly perpetrated by a vigilante group called the Anti-Secuestro (that is, “anti-kidnapping”). Lemus-Arita testified that his uncle began a rumor that Lemus-Arita had returned from the United States with money to avenge his cousin’s death. Soon thereafter, family members relayed rumors to Le-mus-Arita that the Anti-Secuestro group was looking for him and wanted to kill him. Lemus-Arita immediately abandoned his plans to establish a home in Guatemala and returned to the United States. Le-mus-Arita conceded that these threats were never conveyed to him personally, that he never saw anyone from the Anti-Secuestro group, and that he was never harmed. Lemus-Arita did not report the threats to the police or the Guatemalan government because of rumors that police officers were members of the Anti-Seeues--tro group. Lemus-Arita’s father made a police report, but no investigation resulted.

Lemus-Arita’s sister, Evelyn, testified that, after Lemus-Arita left Guatemala, she saw trucks in her village painted with the “mano dura” symbol, which identified a Guatemalan political party and which she associated with the people who purportedly killed Oscar (although she did not identify those individuals as members of the Anti-Secuestro group). Evelyn also testified that armed men in black clothing and ski masks who refused to identify themselves came to her house and told her that they were looking for Lemus-Arita and were going to kill him. She testified that they threatened her with harm if she did not reveal her brother’s location, and they later watched the house and followed her for several days. Lemus-Arita also testified that Evelyn called him and told him that someone shot at her house. However, she was never harmed, and she did not report these incidents to the police. Evelyn testified that the family never confirmed why Oscar was killed and that she was unaware of whether Oscar had been accused of. kidnapping.

The IJ found Lemus-Arita’s testimony credible, but he found Evelyn’s testimony only partially credible because her statements were inconsistent and she had an asylum application of her own pending at the time. The IJ then found that Lemus-Arita did not qualify for asylum because he had not established' that he had suffered past persecution or that he had a well-founded fear of future persecution. As a result, the IJ found that Lemus-Arita also had not earned his burden of establishing that he qualified for withholding of removal or relief under the CAT. In the alternative, the IJ found that Lemus-Arita had not demonstrated that any persecution would be at the hands of the Guatemalan government or a third party the government is unwilling or unable to control. The BIA affirmed the IJ’s decision.

Lemus-Arita petitions for review. The BIA’s decision was the final agency decision, see 8 U.S.C. § 1101(a)(47)(B)(i), and we have jurisdiction to consider the appeal under 8 U.S.C. § 1252(a)(5).

II. Discussion

“We review the BIA’s decision, as it is the final agency action, but to the extent that the BIA adopted the findings or reasoning of the IJ, we also review the IJ’s decision as part of the final agency action.” Gutierrez-Vidal v. Holder, 709 F.3d 728, 731-32 (8th Cir. 2013) (quotation omitted). We review legal determinations de novo, Agha v. Holder, 743 F.3d 609, 614 (8th Cir. 2014), and accept the agency’s factual findings “unless any reasonable adjudicator would be compelled to conclude to the contrary,” Fofana v. Holder, 704 F.3d 554, 557 (8th Cir. 2013). Further, we review “decisions on asylum, withholding of removal, and CAT protection under the substantial evidence standard, upholding the decision if it is supported by reasonable, substantial, and probative evidence based on the record as a whole.” Id. (quotation omitted).

Lemus-Arita initially contends that the BIA applied the wrong standard of review to the IJ’s finding that Lemus-Arita had not demonstrated an objectively reasonable fear of future persecution and that this issue alone requires remand. The BIA reviews factual findings for clear error and all other matters de novo. 8 C.F.R. § 1003.1(d)(3)(i), (ii). “[Wjhether an asylum applicant has established an objectively reasonable fear of [future] persecution ... is a legal determination that remains subject to de novo review.” Matter of Z-Z-O, Respondent, 26 I. & N. Dec. 586, 590-91 (BIA 2015). Lemus-Arita argues that the BIA reviewed this finding for clear error, but he relies on a strained interpretation of the BIA’s decision. The BIA explained that it “review[ed] the Immigration Judge’s factual findings for clear error and all other issues de novo.” After summarizing the IJ’s findings, including those with respect to the objective reasonableness of Lemus-Arita’s fear of future persecution, the BIA concluded “[w]e see no clear error of fact or mistake of law in the Immigration Judge’s assessment.” Lemus-Arita contends that the BIA’s wording leaves “no question” that the BIA reviewed for clear error the IJ’s finding that Lemus-Arita’s fear of future persecution was objectively unreasonable. We disagree. The phrase “clear error” modifies “fact,” not “mistake of law.” Lemus-Arita provides no reason to believe that the BIA failed to use de novo review to determine whether Le-mus-Arita had an objectively reasonable fear of future persecution. Accordingly, we find no reason to conclude that the BIA applied the wrong standard of review.

Next, Lemus-Arita challenges the merits of the BIA’s decision. The Attorney General may grant asylum “to any alien who demonstrates that he is a ‘refugee’ within the meaning of the Immigration and Nationality Act.” Fofana, 704 F.3d at 557 (quoting 8 U.S.C. § 1158(b)(1)(A)). The Act defines a “refugee” as “an alien “who is unable or unwilling to return to ... [his] country [of nationality] because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.’ ” Id. (alterations in original) (quoting 8 U.S.C. § 1101(a)(42)(A)). The burden is on the applicant to establish refugee status. 8 U.S.C. § 1158(b)(l)(B)(i).

First, substantial evidence supports the BIA’s conclusion that Lemus-Arita failed to demonstrate past persecution. Persecution is “an extreme concept that involves the infliction or threat of death, torture, or injury to one’s person or freedom, on account of a protected characteristic,” and though a single death threat may constitute persecution, a threat that is “exaggerated, nonspecific, or lacking in immediacy may be insufficient.” La v. Holder, 701 F.3d 566, 570-71 (8th Cir. 2012) (citations omitted). “Past persecution does not normally include unfulfilled threats of physical injury....” Setiadi v. Gonzales, 437 F.3d 710, 713 (8th Cir. 2006). Rather, “[t]hreats alone constitute persecution in only a small category of cases, and' only when the threats are so menacing as to cause significant actual suffering or harm.” La, 701 F.3d at 571 (quotation omitted).

Lemus-Arita was never harmed and-never threatened directly, receiving only secondhand warnings. Indeed, Lemus-Ari-ta could not point to anything more than rumors to substantiate the identity of the group threatening him. Lemus-Arita emphasizes the threats against his sister, but these threats did not result in physical harm to her, and she did not immediately flee Guatemala like her brother. Cf. Flores v. Holder, 699 F.3d 998, 1000-01, 1003 (8th Cir. 2012) (calling into question the BIA’s determination that an applicant failed to demonstrate past persecution where family members who refused to provide the applicant’s whereabouts were killed and his sister was raped). We have found direct and more menacing threats insufficient to demonstrate past persecution. See Ladyha v. Holder, 588 F.3d 574, 577 (8th Cir. 2009) (finding a threat at knifepoint insufficient to demonstrate past persecution); Setiadi, 437 F.3d at 712-13 (finding a direct death threat insufficient to demonstrate past persecution); Valiente-Cifuentes v. Holder, 438 Fed.Appx. 532, 534 (8th Cir. 2011) (unpublished) (finding multiple written death threats insufficient to demonstrate past persecution where applicant was never physically harmed or confronted by the threatening party). Thus, substantial evidence supports the BIA’s conclusion that these threats are not of the rare kind “so menacing as to cause significant actual suffering or harm.” La, 701 F.3d at 571 (quotation omitted).

Second, substantial evidence supports the conclusion that Lemus-Arita failed to demonstrate a well-founded fear of future persecution. “To be ‘well-founded,’ a fear must be both ‘subjectively genuine and objectively reasonable.’ ” Zhuang v. Gonzales, 471 F.3d 884, 890 (8th Cir. 2006) (quoting Feleke v. INS, 118 F.3d 594, 598 (8th Cir. 1997)). The IJ found, and the parties do not contest, that Lemus-Arita demonstrated a subjectively genuine fear of persecution. Thus, we need only address whether Lemus-Arita’s subjective fear is objectively reasonable. To demonstrate that a subjective fear is objectively reasonable, an applicant must “demonstrate through credible, direct, and specific evidence that a reasonable person in his position would fear persecution.” Feleke, 118 F.3d at 598. “For an alien’s fear of persecution to be objectively reasonable, the fear must have basis in reality and must be neither .irrational nor so speculative or general as to lack credibility.” Perinpanathan v. INS, 310 F.3d 594, 598 (8th Cir. 2002).

The IJ and BIA concluded that Lemus-Arita failed to demonstrate that his subjective fear is objectively reasonable. The IJ found that Lemus-Arita was never harmed or personally threatened and never observed anyone he thought would attempt to threaten or harm him. The threats his sister related amounted to little more than rumors that did not identify the source of the threats. Moreover, at the time of the IJ’s decision, almost three years had elapsed since the threats occurred, and more than five years have elapsed at present. As the IJ reasoned, the fear that the group would seek Lemus-Arita out after so long a time is speculative and objectively unreasonable. To challenge the IJ’s reasoning, Lemus-Arita points to his sister’s testimony, describing it as “unrebutted, credible testimony.” However, the IJ found her testimony only partially credible, and we are “not at liberty to reweigh the evidence.” Eta-Ndu v. Gonzales, 411 F.3d 977, 982 (8th Cir. 2005) (quoting Hasalla v. Ashcroft, 367 F.3d 799, 803 (8th Cir. 2004)). Indeed, “[w]e afford credibility findings from the IJ ‘much weight because the IJ sees the witness testify and is therefore in the best position to determine his or her credibility.’ ” Chakhov v. Lynch, 837 F.3d 843, 846 (8th Cir. 2016) (quoting Fofanah v. Gonzales, 447 F.3d 1037, 1040 (8th Cir. 2006)). Lemus-Arita has pointed to no evidence that contradicts the IJ’s credibility finding, and we accordingly decline to disturb it. As a result, Lemus-Arita has not demonstrated that the record compels the finding that his subjective fear of persecution is objectively reasonable. Therefore, substantial evidence supports the IJ and BIA’s determination that Lemus-Arita failed to establish eligibility for asylum.

Consequently, Lemus-Arita also fails to establish eligibility for withholding of removal. “Eligibility for withholding of removal requires proof of a clear probability that the alien’s life would be threatened ..., which is a more demanding standard than the well-founded fear of persecution standard for asylum.” Osonowo v. Mukasey, 521 F.3d 922, 926 (8th Cir. 2008). Thus, as Lemus-Arita has not met the standard for asylum, he cannot meet the standard for withholding of removal. Id.

III. Conclusion

For the foregoing reasons, we deny the petition.

      . Lemus-Arita does not meaningfully argue on appeal that he meets the standard for relief under the CAT. Therefore, we deem the CAT claim waived. See Chay-Velasquez v. Ashcroft, 367 F.3d 751, 756 (8th Cir. 2004) (holding that petitioner waives a claim that is not meaningfully argued in the opening brief).

      . Lemus-Arita's sister testified that Oscar was killed in August 2010.

      . The Attorney General contends that the issue of whether Lemus-Arita established an objectively reasonable fear of future persecution is not properly before us because the BIA never addressed the merits of this claim. The Attorney General is incorrect. The BIA's decision primarily discussed the IJ’s findings that any persecution would not come from the Guatemalan government or a third party the government is unable or unwilling to control. However, the BIA also incorporated the IJ’s reasoning with respect to the objective reasonableness of Lemus-Arita’s fear of future persecution to support its decision. Accordingly, we review both the BIA’s and IJ’s decisions on this issue. See Gutierrez-Vidal, 709 F.3d at 731-32.


author: MELLOY, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee v. Laura GIAIMO, Defendant-Appellant Anthony Martin Giaimo, Defendant Laura Giaimo, as Trustees of the A. Martin Giaimo Family Trust, Defendant-Appellant Anthony Martin Giaimo, as Trustees of the A. Martin Giaimo Family Trust; Community Connections Management; Heritage Residents Association, Defendants
    No. 16-2479
    United States Court of Appeals, Eighth Circuit.
    Submitted: January 10, 2017
    Filed: April 17, 2017

      Counsel who appeared on brief and presented argument on behalf of the appellant was Shane Kyle Blank, of Saint Louis, MO. The following attorney(s) appeared on the appellant brief; Timothy O’Leary, of Saint Louis, MO.
    Counsel who appeared on brief and presented argument on behalf of the appellee was Melissa Briggs, of Washington, DC. The following attorney(s) appeared on the appellee brief; Robert W. Metzler, of Washington, DC.
    Before COLLOTON, MURPHY, and MELLOY, Circuit Judges.
   MELLOY, Circuit Judge.

Taxpayer Laura Giaimo appeals from the District Court’s grant of summary judgment in favor of the United States in this action to reduce a tax lien to judgment and foreclose upon real property. Giaimo incurred substantial tax liabilities in the 1990s when she failed to properly handle taxes associated with a day-care business she operated. The sole question before our court is whether an underlying Tax Court appeal Giaimo filed in March 2006 served to toll the limitations period applicable to the government’s current collection efforts. It is undisputed that if tolling applies, the collection efforts are timely.

In arguing the 2006 Tax Court appeal did not toll the limitations period, Giaimo presents two theories. First, as a matter of statutory interpretation, she argues her 2006 Tax Court appeal was incapable of tolling the present lien enforcement action. Second, she argues that even if her Tax Court appeal otherwise might be capable of tolling the limitations period, her 2006 Tax Court petition was untimely such that the Tax Court in that proceeding lacked jurisdiction and effected no tolling., We reject her arguments and affirm the judgment of the District Court.

I. Background

A personal bankruptcy delayed assessment of taxes against Giaimo for tax years 1992-94. In an adversary proceeding, the bankruptcy court determined her taxes, a debt that was not dischargeable in bankruptcy. In 1999, in accordance with the bankruptcy court’s determination, the IRS assessed her taxes for years 1992-94. Then, in February 2005, the IRS sent Giai-mo a notice of intent to levy. In April 2005, the IRS sent Giaimo a notice of federal tax lien filing. In response, in April 2005, Giai-mo sent a request for a collection due process hearing asserting challenges to the proposed levy and lien. The IRS considered her challenge to the February levy notice untimely and her challenge to the April lien notice timely. As a result, she received a collection due process hearing as to the lien, but she received only an “equivalent hearing” as to the levy. On February 13, 2006, the IRS sent Giaimo a notice of determination regarding the collection due process hearing and a decision letter regarding the equivalent hearing. The IRS rejected her challenges and indicated she could appeal the notice of determination arising from the collection due process hearing to the Tax Court. The IRS stated, however, that she had no right to appeal the decision letter from the equivalent hearing.

On March 11, 2006, Giaimo signed and dated a form Tax Court petition, checking several boxes and including additional comments. In particular, she checked a box labeled, “Petition for Lien or Levy Action (Collection Action).” The record does not indicate when she placed the petition in the mail, but her petition was stamped and entered into the Tax Court docket on Monday, March 20, 2006, the third working day after the otherwise applicable thirty-day deadline for filing an appeal, March 15, 2006. The Tax Court docket does not indicate any party challenged the court’s jurisdiction or suggested the appeal was untimely. And, the Tax Court, in fact, exercised jurisdiction. Eventually, the IRS moved for summary judgment. In April 2007, the Tax Court issued its ruling granting judgment in favor of the IRS.

Subsequently, in March 2011, the United States filed the present action to enforce its lien and foreclose upon real property. The United States moved for summary judgment, and Giaimo argued the enforcement action was untimely, asserting that the Tax Court appeal did not toll the limitations period. In the District Court, for the first time, Giaimo alleged that her 2006 Tax Court petition was untimely and that the Tax Court lacked jurisdiction. The District Court granted summary judgment, rejecting Giaimo’s argument and finding the limitations period tolled during pen-dency of the Tax Court action and for 90 days thereafter. Giaimo appeals.

II. Discussion

A. Lien vs. Levy

Section 6502 of the Tax Code authorizes collection activities for ten years following assessment. 26 U.S.C. § 6502(a) (“Where the assessment of any tax imposed by this title has been made within the period of limitation properly applicable thereto, such tax may be collected by levy or by a proceeding in court, but only if the levy is made or the proceeding begun — (1) within 10 years after the assessment of the tax.”) (emphasis added). Section 6330(e)(1), expressly dealing with levies, provides that “the levy actions which are the subject of the requested hearing and the running of any period of limitations under section 6502 (relating to collection after assessment), section 6531 (relating to criminal prosecutions), or section 6532 (relating to other suits) shall be suspended for the period during which such hearing, and appeals therein, are pending.” Section 6320(c), expressly dealing with liens, incorporates by reference the tolling provisions of § 6330(e).

Because § 6330(e) expressly addresses hearings and challenges to proposed levies, the lien statute’s incorporation by reference of the § 6330(e) levy-related tolling provisions arguably introduces grammatical uncertainty. Seeking to take advantage of this arguable uncertainty, Giaimo argues that the statutory scheme creates a “two-track”' system that treats tolling differently depending upon what issues a taxpayer elects to appeal in Tax Court. According to Giaimo, a Tax Court appeal as to one proposed collection mechanism only suspends enforcement and tolls limitation periods as to the particular type of collection mechanism raised in the taxpayer’s challenge. Pursuant to this argument, Giaimo asserts that her own Tax Court appeal did not involve a challenge to a lien, and therefore, the ten year limitations period for enforcement of the lien was not tolled during her Tax Court appeal.

We reject Giaimo’s “two-track” statutory interpretation argument as factually inapplicable to her case. The only issue she was permitted by statute to appeal to the Tax Court in March 2006 was her challenge arising from the collection due process hearing on the lien issue. Compare 26 U.S.C. § 6330(d)(1) (“The person may ... petition the Tax Court for review of such determination (and the Tax Court shall have jurisdiction with respect to such matter).”) with 26 C.F.R. § 301.6330 — 1(i)(1) & (2)(Q & A-I6) (“Section 6330 does not authorize a taxpayer to appeal the decision of Appeals with respect to an equivalent hearing.”). The Tax Court is an Article I court with limited statutory jurisdiction. The levy issue arose from an equivalent hearing resulting in a decision letter permitting no Tax Court appeal. The decision letter itself conveyed this fact when addressing the untimeliness of Giai-mo’s request for a collection due process hearing as to the notice of levy: “[Y]ou received a hearing equivalent to a due process hearing except that there is no right to dispute a decision by the Appeals Office in court under IRC Section 6330.” Like the District Court, we view her Tax Court petition as raising the only permissible challenge she could have raised at that time: a challenge to the lien.

In arguing her Tax Court appeal was not an appeal as to the lien issue, Giaimo notes that, on her Tax Court petition, she checked the box identifying her petition as a “Petition for Lien or Levy Action (Collection Action).” Also, comments she provided in her petition referenced a “notice of Tax Levy” and appeared to suggest the underlying assessment determinations were incorrect or untimely. Based on these comments, Giaimo argues that questions of fact exist as to the purpose and intent of her appeal. According to Giaimo, summary judgment standards preclude our court from drawing adverse inferences about her intent and purpose in filing her petition.

We disagree. Regardless of what other issues Giaimo impermissibly might have attempted to raise in her Tax Court appeal, she actually possessed only the right to appeal the lien issue. When Giaimo filed her appeal, she placed a challenge to the lien before the Tax Court. Accordingly, while we are skeptical of the merits of Giaimo’s “two-track” legal theory, her theory is factually inapplicable and we need not consider it in this appeal.

B. Timeliness' of the 2006 Tax Court Appeal

Giaimo also argues her March 2006 petition to the Tax Court was untimely such that the Tax Court did not actually obtain jurisdiction over her case, and therefore, could not toll the ten-year limitations period. The government argues the fact of the Tax Court’s jurisdiction is res judicata and cannot be addressed. We conclude it is unnecessary to invoke principles of res judicata because Giaimo failed to demonstrate her petition was untimely.

A presumption of regularity applies to a long-closed proceeding. See Parke v. Raley, 506 U.S. 20, 29-30, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992) (stating that the burden of proof must be on the party collaterally attacking an otherwise final judgment so that courts do not “improperly ignore [a] presumption deeply rooted in our jurisprudence: the ‘presumption of regularity’ that attaches to final judgments” (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 468, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938))); United States v. Coppage, 772 F.3d 557, 559 (8th Cir. 2014) (“A presumption of regularity ... attaches to final judgments, even when the question is waiver of constitutional rights.” (alteration in original) (citation omitted)). Under such a presumption, the party challenging the validity of the prior proceeding must be assigned the burden of proof. Coppage, 772 F.3d at 559. In the present case, Giaimo’s burden is heavy given that: she initiated the Tax Court proceeding; she signed and dated the petition four days, before the statutory deadline; the Tax Court deemed the petition timely filed; she failed to challenge jurisdiction while in the Tax Court; she did not appeal the Tax Court’s judgment; and she failed to collaterally attack the Tax Court’s judgment for many years.

In an attempt to prove her Tax Court petition was untimely, Giaimo identifies the deadline for her petition as Wednesday, March 15, 2006. She also points out that her petition was entered into the Tax Court docket on Monday, March 20, the third working day after the deadline. She infers that, because the date reflected in the docket is past the filing deadline, she has met her burden.

This argument is easily dismissed based upon the mailbox rule, a common sense understanding of the time required for mail delivery, and the relevant days of the week at issue. Pursuant to 26 U.S.C. § 7502, a document is deemed filed on the day ,it is placed in United States mail. The Tax Court received Giaimo’s petition no later than Monday, March 20, 2006. It may well have arrived at the Tax Court on the preceding Friday, or even on Saturday, assuming such delivery was possible. Monday is merely the third working day after the Wednesday deadline. The Monday docket entry is entirely consistent with Giaimo placing her petition in the mail on or prior to the filing deadline. As such, the timing identified by Giaimo undercuts, rather than supports, her argument. Giai-mo, therefore, cannot overcome her burden by pointing to these dates.

In an effort to avoid the mailbox rule, Giaimo points out that, to rely upon the mailbox rule, a litigant typically must produce a postage mark or registration. It is true that, if raised at an appropriate time during an initial proceeding to which the mailbox rule applies, the party seeking the benefit of the rule generally must prov,e a date of mailing with competent evidence such as the United States postmark on the document or the registration (if sent by registered mail). See, e.g., Estate of Wood v. Comm’r, 909 F.2d 1155, 1161 (8th Cir. 1990) (“To obtain the benefit of section 7502, the taxpayer must offer proof of postmark....”). The present case, however, involves a long-belated collateral attack in a separate forum by the party who previously sought and obtained the exercise of Tax Court jurisdiction. In the unique circumstances of this extremely tardy challenge, Giaimo cannot rely upon the absence of evidence of a date of mailing to carry her own heavy burden to disprove the Tax Court’s jurisdiction over her 2006 appeal.

For the foregoing reasons, we affirm the judgment of the District Court.

      . The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the Eastern District of Missouri.

      . Pursuant to 26 U.S.C. § 6330(a)(2) and (a)(3)(B), a taxpayer has thirty days following the notice of enforcement action to request a collection due process hearing. Pursuant to 26 C.F.R. § 301.6330-l(i), a taxpayer who misses the deadline to request a collection due process hearing may request a hearing known as an “equivalent hearing.” The determination from an equivalent hearing is not a formal "Notice of Determination,” but rather, is a "Decision Letter” and generally is not judicially reviewable. In essence, the equivalent hearing is a sort of backstop or safeguard to provide an additional level of administrative review even though no statutory authority exists for a general Tax Court appeal following such a hearing.

      . The Tax Code section governing liens, 26 U.S.C. § 6320, incorporates by reference several subsections of the section governing levies, § 6330, including the thirty-day deadline for filing a Tax Court petition as set forth in § 6330(d)(1). See 26 U.S.C. § 6320(c) ("Conduct of hearing; review; suspensions. — For purposes of this section, subsections (c), (d) (other than paragraph (3)(B) thereof), (e), and (g) of section 6330 shall apply.”).