alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
#### UNITED STATES of America, Plaintiff-Appellee v. York Omar WILSON, Defendant-Appellant

No. 16-2010

United States Court of Appeals, Eighth Circuit.

Submitted: November 29, 2016

Filed: December 1, 2016

Stephen C. Moss, Asst. Fed. Public Defender, Kansas City, MO (Laine Cardarel-la, Fed. Public Defender, Kansas City, MO, on the brief), for appellant

Courtney R. Pratten, Spec. Asst. U.S. Atty., Bradley K. Kavanaugh, Asst. U.S. Atty., Kansas City, MO, for appellee.

Before SHEPHERD, ARNOLD, and KELLY, Circuit Judges.

PER CURIAM.

York Wilson appeals the district court’s1 order revoking his supervised release and imposing a 24-month sentence. His counsel has moved to withdraw and has filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), arguing that the alleged violation was not established by a preponderance of the evidence, and that the district court imposed a substantively unreasonable sentence.

We conclude the district court did not clearly err in finding that Wilson violated his supervised release. See 18 U.S.C. § 3583(e)(3) (court may revoke supervised release if it finds by preponderance of evidence that defendant violated conditions of supervised release); United States v. Perkins, 526 F.3d 1107, 1109 (8th Cir. 2008) (fact-finding as to whether violation occurred is reviewed for clear error); United States v. Carothers, 337 F.3d 1017, 1019 (8th Cir. 2003) (credibility determinations are exclusive domain of the sentencing judge, and are virtually unreviewable on *906appeal). We also conclude the district court did not abuse its discretion in sentencing Wilson, as it imposed the sentence after properly considering the 18 U.S.C. § 3553(a) factors. See United States v. Miller, 557 F.3d 910, 917 (8th. Cir. 2009) (under substantive-reasonableness test, district court abuses its discretion if it fails to consider relevant § 3553(a) factor, gives significant weight to improper or irrelevant factor, or commits clear error of judgment in weighing factors); United States v. Merrival, 521 F.3d 889, 890 (8th Cir. 2008) (substantive reasonableness of revocation sentence is reviewed under deferential abuse-of-discretion standard).

Accordingly, we affirm the judgment and grant counsel’s motion to withdraw.

1

. The Honorable Dean Whipple, United States District Judge for the Western District of Missouri.
United States Court of Appeals

for the Fifth Circuit

No. 20-50241

Conference Calendar

United States of America, 

Plaintiff—Appellee,

versus

Graciela Montoya, 

Defendant—Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:18-CR-2867-1

Before Davis, Elrod, and Oldham, Circuit Judges.

Per Curiam:*

The attorney appointed to represent Graciela Montoya has moved for 

leave to withdraw and has filed a brief in accordance with Anders v. California, 

386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011). 

Montoya has filed a response. The record is not sufficiently developed to 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

January 6, 2021

Lyle W. Cayce

Clerk

Case: 20-50241 Document: 00515695794 Page: 1 Date Filed: 01/06/2021
No. 20-50241

2

allow us to make a fair evaluation of Montoya’s claims of ineffective 

assistance of counsel; we therefore decline to consider the claims without 

prejudice to collateral review. See United States v. Isgar, 739 F.3d 829, 841 

(5th Cir. 2014).

We have reviewed counsel’s brief and the relevant portions of the 

record reflected therein, as well as Montoya’s response. We concur with 

counsel’s assessment that the appeal presents no nonfrivolous issue for 

appellate review. Accordingly, counsel’s motion for leave to withdraw is 

GRANTED, counsel is excused from further responsibilities herein, and 

the appeal is DISMISSED. See 5th Cir. R. 42.2.

Case: 20-50241 Document: 00515695794 Page: 2 Date Filed: 01/06/2021
J.W.S. v. STATE

CR-16-0101

Court of Criminal Appeals of Alabama.

June 30, 2017

Affirmed.
[EXHIBIT 32.1]

   CERTIFICATION OF CHIEF EXECUTIVE OFFICER AND CHIEF FINANCIAL
            OFFICER PURSUANT TO 18 U.S.C. SECTION 1350,
                   AS ADOPTED PURSUANT TO
           SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

   I,  Bradley  Wilson, certify, pursuant to  18  U.S.C.  Section
1350,  as  adopted pursuant to Section 906 of the  Sarbanes-Oxley
Act  of  2002, that the Annual Report of North American Liability
Group,  Inc. on Form 10-KSB for the annual period ended  December
31, 2004 fully complies with the requirements of Section 13(a) or
15(d) of the Securities Exchange Act of 1934 and that information
contained  in  such Form 10-KSB fairly presents in  all  material
respects  the  financial condition and results of  operations  of
NorMexSteel, Inc.



By: /s/ Bradley Wilson
   --------------------------------
   Name: Bradley Wilson
   Title:  Chairman and Chief Executive Officer
Janice MORTON-HUNTE et al. v. AIRMONT PROPERTIES OWNERS ASSOCIATION et al.

1150562

Supreme Court of Alabama.

January 13, 2017

Affirmed.
#### Araya WOLDE-GIORGIS; Yakob Araya, Plaintiffs-Appellants, v. Ken FETTER; et al., Defendants-Appellees.

No. 15-15580

United States Court of Appeals, Ninth Circuit.

Submitted March 8, 2017 *

Filed March 20, 2017

*603Araya Wolde-Giorgis, Pro Se

Yakob Araya, Pro Se

Before: LEAVY, W. FLETCHER, and OWENS, Circuit Judges.

*

 The panel unanimously concludes this case is suitable for decision without oral argument. *See*Fed. R. App. P. 34(a)(2),

MEMORANDUM **

Araya Wolde-Giorgis and Yakob Araya appeal pro se from the district court’s judgment dismissing their 42 U.S.C. §§ 1981, 1983 and 1985(3) action alleging systematic racial discrimination and retaliation. We have jurisdiction under 28 U.S.C. § 1291, We review de novo a dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii), *Barren v. Harrington,*152 F.3d 1193, 1194 (9th Cir. 1998) (order), and we affirm.

The district court properly dismissed plaintiffs’ claims for retaliation, defamation-plus and conspiracy under § 1985(3) because plaintiffs failed to allege facts sufficient to state a plausible claim for relief. *See Hebbe v. Pliler,*627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se pleadings are to be construed liberally, a plaintiff must present factual allegations sufficient to state a plausible claim for relief); *see also O’Brien v. Welty,*818 F.3d 920, 932 (9th Cir. 2016) (setting forth elements of a § 1983 claim for retaliation); *Crowe v. County of San Diego,*608 F.3d 406, 444 (9th Cir. 2010) (setting forth elements of a § 1983 defamation-plus claim); *Lindsey v. SLT L.A., LLC,*447 F.3d 1138, 1144-45 (9th Cir. 2006) (setting forth elements of a § 1981 racial discrimination claim); *Sever v. Alaska Pulp Corp.,*978 F.2d 1529, 1536 (9th Cir. 1992) (setting forth elements of a § 1985(3) conspiracy claim).

The district court properly dismissed plaintiffs’ race discrimination claim because the claim was barred in part by the statute of limitations, and to the extent that it was not, plaintiffs failed to allege facts sufficient to state a plausible claim for relief. *See Flores v. Morgan Hill Unified Sch. Dist.,*324 F.3d 1130, 1134 (9th Cir. 2003) (setting forth elements of a § 1983 claim for an equal protection violation in educational setting); *TwoRivers v. Lewis,*174 F.3d 987, 991 (9th Cir. 1999) (stating that a § 1983 discrimination claim is subject to Arizona’s two-years statute of limitations for personal injury claims and “accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action”); *see also Hebbe,*627 F.3d at 341-42.

We do not consider matters not specifically and distinctly raised and argued in the opening brief, or arguments and allegations raised for the first time on appeal. *See Padgett v. Wright,*587 F.3d 983, 985 n.2 (9th Cir. 2009).

We reject as unsupported by the record Wolde-Giorgis’s contention that the district court judge conspired against plaintiffs.

AFFIRMED.

**

 This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Randy DAVIADOFF and Debbie Daviadoff, Appellant/Petitioner(s), v. SARASOTA COUNTY SHERIFF'S OFFICE, ANIMAL SERVICES DIVISION, Appellee/Respondent(s).

CASE NO.: 2D17-3652

District Court of Appeal of Florida, Second District.

November 21, 2017

**DECISION WITHOUT PUBLISHED OPINION**

Dismissed.
#### UNITED STATES of America, Plaintiff-Appellee, v. Ricky Bradley COOKE, Defendant-Appellant.

No. 16-4812

United States Court of Appeals, Fourth Circuit.

Submitted: August 28, 2017

Decided: September 19, 2017

James B. Craven III, Durham, North Carolina, for Appellant. Anand P. Ramas-wamy, Assistant United States Attorney, Greensboro, North Carolina, for Appellee.

Before MOTZ, WYNN, and THACKER, Circuit Judges.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Ricky Bradley Cooke pled guilty to aiding and abetting in the transportation of an individual with the intent that such individual engage in the business of prostitution, in violation of 18 U.S.C. § 2 (2012), and 18 U.S.C.A. § 2421 (West 2015 & Supp. 2017). The district court sentenced Cooke to a term of imprisonment in accordance with the Sentencing Guidelines range and the statutory maximum for that offense. Counsel has filed a brief pursuant to *Anders v. California,*386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that there are no meritorious grounds for appeal. Although notified of his right to do so, Cooke has not filed a pro se brief. After careful consideration of the entire record, we affirm.

Our review reflects that Cooke knowingly and intelligently pled guilty pursuant to a valid plea agreement, and that his sentence is procedurally and substantially reasonable. Cooke argues that the appellate waiver in his plea agreement does not bar his current appeal because prosecutors committed misconduct when, in a separate 2015 case, they filed an affidavit that allegedly contained perjured statements. The 2015 case was dismissed, however, and Cooke is not serving a sentence related to that 2015 case. Thus, this claim is merit-less.

In accordance with *Anders,*we have reviewed the entire record in this case.and have found no meritorious grounds for appeal. We therefore affirm the district court’s judgment. We deny counsel’s motion to withdraw at this stage of the proceedings. Counsel is required to inform Cooke, in writing, of the right to petition the Supreme Court of the United States for further review. If Cooke requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may .move in this court for leave to withdraw from representation. Counsel’s motion must state that a copy thereof was served on Cooke.

We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.

*AFFIRMED*
ICHETUCKNEE ALLIANCE, INC., Appellant, v. SUWANNEE RIVER WATER MANAGEMENT DISTRICT, Appellee.

No. 1D17-2275

District Court of Appeal of Florida, First District.

April 23, 2018

John Ross Thomas of the Law Office of John R. Thomas, P.A., St. Petersburg, for Appellant.

Mark A. Emanuele and Sheryl S. Natelson of Lydecker Diaz, Miami, for Appellee.

Per Curiam.

AFFIRMED .

Wetherell, Rowe, and Jay, JJ., concur.
Steven T. HUMPHREY, Appellant, v. STATE of Florida, Appellee.

Case No. 2D17-4707

District Court of Appeal of Florida, Second District.

Opinion filed March 21, 2018

**DECISION WITHOUT PUBLISHED OPINION**

Affirmed.
Willie Terrell JACKSON v. AIMEE

CR-16-0578

Court of Criminal Appeals of Alabama.

April 26, 2017

**DECISION WITHOUT PUBLISHED OPINION**

Transferred to Ct. of Cobb Smith Civ. App.
Christopher M. CHAMBERS, Petitioner, v. STATE of Florida, Respondent.

No. 4D18-597

District Court of Appeal of Florida, Fourth District.

[May 31, 2018]

**DECISION WITHOUT PUBLISHED OPINION**

Affirmed.
Kirenia FERNANDEZ, Appellant, v. LIFEMARK HOSPITALS OF FLORIDA, INC., Appellee.

Nos. 3D17-2558 & 3D17-1726

District Court of Appeal of Florida, Third District.

Opinion filed June 20, 2018

Thomas Butler, P.A., and Thomas J. Butler, for appellant.

Billing, Cochran, Lyles, Mauro & Ramsey, P.A., and John W. Mauro, and Scott C. Cochran (Fort Lauderdale), for appellee.

Before SUAREZ, EMAS and LINDSEY, JJ.

PER CURIAM.

*569Affirmed. *Vazquez v. Wal-Mart Stores, Inc.*, 245 So.3d 977, 2018 WL 2027025 (Fla. 3d DCA 2018) ; *Encarnacion v. Lifemark Hosps. of Fla.*, 211 So.3d 275 (Fla. 3d DCA 2017) ; *Wilson-Greene v. City of Miami*, 208 So.3d 1271 (Fla. 3d DCA 2017) ; § 768.0755, Fla. Stat. (2014).
Consent of Wayne Valliant
 
 I consent to the inclusion in this annual report on Form 40-F of New Gold Inc., which is being filed with the United States Securities and Exchange Commission, of reference to my name in connection with,  and to the use of information derived from, the technical report entitled “Technical Report on the Mesquite Mine, Imperial County, California, USA” dated February 28, 2014, included in the Annual Information Form of New Gold Inc. for the financial year ended December 31, 2013, and I consent to the incorporation by reference of such information in the registration statement on Form S-8 (File No. 333-160500) of New Gold Inc.
 
 
 Dated this 28th day of March, 2014
 
 
 “Wayne Valliant”Name:
Wayne Valliant, P. GeoTitle:
Principal Geologist
Antonio COBB, Appellant, v. The STATE of Florida, Appellee.

No. 3D17-1010

District Court of Appeal of Florida, Third District.

Opinion filed May 30, 2018.

Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.

Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.

Before EMAS, SCALES and LUCK, JJ.

PER CURIAM.

Affirmed.
Donald Andrea DAVIS v. STATE

CR-16-0547

Court of Criminal Appeals of Alabama.

June 30, 2017

**DECISION WITHOUT PUBLISHED OPINION**

Affirmed.
_______________________________________ __ Michigan Supreme Court 

# Order

Lansing, Michigan

October 29, 2007 Clifford W. Taylor, Chief Justice
134239 Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, Robert P. Young, Jr. Stephen J. Markman, Justices

v SC: 134239 COA: 275184 Oakland CC: 2003-190250-FC GEORGE GERARD BURGER, Defendant-Appellant.

________________ _______________ __________/

On order of the Court, th e application for leave to ap peal the May 30, 2007 order of the Court of Appeals is considered, a nd it is DENIED, because the defendant has failed to meet the burden of establishi ng entitlement to relief under MCR 6.508(D).

t1022 I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

October 29, 2007

Clerk
Nathaniel POOLE, Appellant, v. STATE of Florida, Appellee.

Case No. 5D17-1408

District Court of Appeal of Florida, Fifth District.

Decision filed May 15, 2018

James S. Purdy, Public Defender, and Nicole Joanne Martingano, Assistant Public Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

AFFIRMED.

TORPY, BERGER and EDWARDS, JJ., concur.
Willie WILLIAMS, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).

CASE NO.: 2D17-3073

District Court of Appeal of Florida, Second District.

October 11, 2017

BY ORDER OF THE COURT:

This petition for writ of mandamus is denied as moot.

The petitioner's motion for status quo is denied as moot.

KELLY, VILLANTI, and SLEET, JJ., Concur.
T.G. v. RUSSELL COUNTY DEPARTMENT OF HUMAN RESOURCES

2160457

Court of Civil Appeals of Alabama.

May 31, 2017

**DECISION WITHOUT PUBLISHED OPINION**

Dismissed.
#### Bernard G. McCUSKER, Petitioner-Appellant, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Respondent-Appellee.

No. 73-3057.

United States Court of Appeals, Ninth Circuit.

Oct. 15, 1974.

Howard R. Lonergan, Portland, Or., for petitioner-appellant.

Scott McAlister, Asst. Atty. Gen., Salem, Or., for respondent-appellee.

Before TRASK and SNEED, Circuit Judges, and GRAY,* District Judge.

*

 Honorable William P. Gray, United States District Judge, Central District of California, sitting by designation.

OPINION

PER CURIAM:

Bernard G. McCusker appeals from a denial of his petition for a writ of habeas corpus. The petition raised questions of law and of fact which the parties stipulated required an evidentiary hearing.

The matter was referred to a United States magistrate who proceeded to conduct an evidentiary hearing and thereafter filed a Recommendation that the petition be denied. It was dated June 29, 1973. To it was attached an Order signed by the District Court on July 6, 1973, as follows:

> “After reviewing the file and record in this case, I approve the above recommendation.

> “It is Ordered that the petition is denied.” C.T. at 12.

Thereafter a motion to vacate the Recommendation and Order was filed which raised the principal question at issue here, *i. e.,*whether this hearing had to be before a United States judge. The motion was denied.

 Preliminarily, we consider the argument of the Government that by the failure of the petitioner to object to the hearing before the magistrate prior to the date upon which it took place and by participating therein, he has waived his right to insist upon an evidentiary hearing before a United States judge. We do not accept the Government’s position. If the authority of the magistrate to hold such hearings is invalid because it is inconsistent with the laws of the United States under 28 U.S.C. § 636(b), then there was no jurisdiction to act for that purpose. The parties may not by conduct waive a lack of jurisdiction or *460consent to jurisdiction which does not in fact exist. Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 79 L.Ed. 338 (1934); Louisville & Nashville R. R. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 53 L.Ed. 126 (1908); *see*C. Wright, Federal Courts, § 7 (1970).

Since this case was decided below, the Supreme Court has considered the authority of a Federal magistrate to hold evidentiary hearings in habeas corpus cases. Wingo v. Wedding, 418 U.S. 461, 94 S.Ct. 2842, 41 L.Ed.2d 879 (1974). The Court held that the magistrate had no such authority and that evidentiary hearings in habeas corpus cases must be held by a district judge. We therefore reverse and remand for further proceedings in the light of this decision and Wingo v. Wedding.

Reversed and remanded.
#### QIANYUE WU, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.

No. 15-70831

United States Court of Appeals, Ninth Circuit.

Submitted March 8, 2017 *

Filed March 15, 2017

*562Margaret W. Wong, Esquire, Attorney, Margaret-W. Wong & Associates, Cleveland, OH, for Petitioner

Kohsei Ugumori, Attorney, OIL, DOJ— U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, Chief Counsel ICE, Office of the Chief Counsel, Department of Homeland Security, San Francisco, CA, for Respondent

Before: LEAVY, W. FLETCHER, and OWENS, Circuit Judges.

*

 The panel unanimously concludes this case is suitable for decision without oral argument. *See*Fed. R. App. P. 34(a)(2).

MEMORANDUM **

Qianyue Wu, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the BIA’s denial of a motion to reopen, *Najmabadi v. Holder,*597 F.3d 983, 986 (9th Cir. 2010), and we deny the petition for review.

The BIA did not abuse its discretion in denying Wu’s motion to reopen as untimely, where it was filed more than four years after the BIA’s final order, *see*8 C.F.R. § 1003.2(c)(2), and Wu failed to establish materially changed circumstances in China as to either of his claims to qualify for the regulatory exception to the time limit for filing a motion to reopen, *see*8 C.F.R. § 1003.2(c)(3)(ii); *see Najmabadi,*597 F.3d at 987-89 (evidence must be “qualitatively different” to warrant reopening). To the extent Wu contends his third child was born after his 2008 hearing, we reject his contention as contrary to the record..

PETITION FOR REVIEW DENIED.

**

 This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
APPENDIX E
#### Daniel LEVIN; Maria Levin; Parklane Associates, L.P.; San Francisco Apartment Association; Coalition for Better Housing, Plaintiffs-Appellees, *611David Greene, Intervenor, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant-Appellant.

No. 14-17283

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 14, 2017 San Francisco, California

Filed March 13, 2017

J. David Breemer, Esquire, Attorney, Pacific Legal Foundation, Sacramento, CA, for Plaintiffs-Appellees

Joseph M. Alioto, Jamie L. Miller, Attorney, Alioto Law Firm, San Francisco, CA, Ronald Douglas Foreman, Esquire, Attorney, Foreman <& Brasso, San Francisco, CA, for Intervenor

Christine Van Aken, Deputy City Attorney, City Attorney’s Office, City and County of San Francisco, San Francisco, CA, for Defendant-Appellant

Andrew William Schwartz, Attorney, City Attorney’s Office, City and County of San Francisco, San Francisco, CA, for Amicus Curiae League of California Cities

Before: SILER,* TASHIMA, and HURWITZ, Circuit Judges.

*

 The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

MEMORANDUM **

The City and County of San Francisco (the “City”) appeals from the district court’s judgment enjoining the enforcement of a City ordinance. While this appeal was pending, the City amended the ordinance to address the district court’s concerns. Because those amendments “sufficiently altered [the ordinance] so as to present a substantially different controversy from the one the District Court originally decided,” the appeal is now moot. *See Ne. Fla. Chapter of the*Assoc. *Gen. Contractors of Am. v. City of Jacksonville,*508 U.S. 656, 662 n.3, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993) (internal quotation marks omitted).

The City argues that, if the appeal is moot, we should order the district court to vacate its judgment. The general rule is to allow the lower court’s judgment to stand “when the appellant rendered the appeal moot by his own act.” *Blair v. Shanahan,*38 F.3d 1514, 1520 (9th Cir. 1994). An exception may apply, however, if the appellant is a governmental entity. *See Chem. Producers & Distribs. v. Helliker,*463 F.3d 871, 879 (9th Cir. 2006). *Chemical Producers*left open the question of whether “lesser public bodies,” like the City, are entitled to the benefit of that exception. *Id.*at 880. Rather than decide the issue in the first instance, we will remand to the district court to consider whether its judgment should be vacated in light of the adoption of the new ordinance.

Accordingly, we DISMISS the appeal as moot, and REMAND with instructions to consider whether the judgment should be vacated. *See Blair,*38 F.3d at 1516.

**

 This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.