72 Ill. App.2d 252 (1966)
218 N.E.2d 492
Cova Robbins, Plaintiff-Appellee, Cross Appellant,
v.
Howard Campbell, Jr., Defendant, Cross Appellee, and Edgar Robbins, Defendant-Appellant.
Gen. No. 64-112.
Illinois Appellate Court  Fifth District.
July 6, 1966.
*253 Pope and Driemeyer, of East St. Louis, for appellant.
Richard A. Cagle, of Alton, for appellee.
GOLDENHERSH, P.J.
Plaintiff, Cova Robbins, filed suit in the Circuit Court of Madison County seeking to recover damages for injuries suffered while riding in an automobile driven by *254 defendant, Edgar Robbins, which collided with an automobile driven by defendant, Howard Campbell, Jr. The case was tried to a jury and resulted in a verdict in favor of the plaintiff and against defendant, Edgar Robbins, in the amount of $3,500, and a verdict in favor of the defendant, Howard Campbell, Jr., and against plaintiff. Both plaintiff and defendant, Edgar Robbins, filed post-trial motions, the motions were denied, and final judgments were entered on the verdicts.
Defendant, Edgar Robbins, appeals from the judgment, assigning as error the denial of his motions for directed verdict, and his post-trial motion praying judgment notwithstanding the verdict, and in the alternative, for a new trial. Plaintiff cross appeals as to both defendants, contending that the court erred in denying her post-trial motion for judgment notwithstanding the verdict against defendant, Howard Campbell, Jr., on the issue of liability, that the verdict is inadequate in view of the severity and permanence of plaintiff's injuries, and the court erroneously denied that part of plaintiff's post-trial motion which seeks a new trial against both defendants on the issue of damages only.
Plaintiff's complaint, as amended, contains three counts: Count I charges defendant, Howard Campbell, Jr., with negligence, Count II charges defendant Edgar Robbins, with wilful and wanton misconduct, and Count III alleges that plaintiff was a fare paying passenger in the automobile driven by defendant, Edgar Robbins, and charges him with various acts of negligence. At the close of the plaintiff's case, plaintiff dismissed Count II, and the case went to the jury on Counts I and III.
The collision out of which this suit arises occurred at the intersection of Tenth Street and Broadway in Mt. Vernon, Illinois. Tenth Street runs north and south and is six lanes wide, with two parking lanes, two southbound and two northbound travel lanes. Broadway extends *255 in an easterly and westerly direction, is three lanes wide, and traffic is restricted to one way travel in an easterly direction.
The testimony shows that defendant, Edgar Robbins, is plaintiff's son. Plaintiff, defendant, Edgar Robbins, his wife, and his 13-year-old son had travelled in defendant's automobile from East Alton, Illinois, to Hardinsburg, Kentucky, and the collision occurred as they were homeward bound. The trip to Kentucky was for the purpose of visiting plaintiff's son, who resided there. This son's home and furniture had recently been destroyed by fire and defendant had rented a trailer in which to transport some furniture which plaintiff gave to her son. The trailer was being towed by defendant's car at the time of the collision.
On the day of the occurrence plaintiff, defendant, Edgar Robbins, his wife and son had left Hardinsburg at 8:00 a.m. and about 1:30 p.m. were traveling in a northerly direction on Tenth Street. Defendant, Edgar Robbins, was driving, his son sat in the front seat, plaintiff and defendant's wife were in the back seat. At that time defendant, Howard Campbell, Jr., was driving south on Tenth Street and made a left turn into Broadway. There are electric traffic control signals at the intersection. As to northbound traffic the signal has the usual red, yellow and green lights. For southbound traffic, in addition to the three colored signals, there is a green arrow which permits left turns into Broadway.
The automobiles driven by the defendants collided, and photographs in evidence show the left front of each car to be damaged.
[1, 2] Citing Grubb v. Illinois Terminal Co., 366 Ill. 330, 8 NE2d 934, defendant, Edgar Robbins, contends that the evidence shows plaintiff to have been engaged with him in a joint enterprise, and therefore, she cannot recover from him on a negligence theory. Absent evidence of a business enterprise, the rule enunciated in *256 Grubb v. Illinois Terminal does not apply, Smith v. Bishop, 32 Ill.2d 380, 205 NE2d 461. As to defendant's contention that plaintiff was a guest, the testimony shows that plaintiff paid defendant $20, which defendant testified, was to pay her part of the expenses for gasoline and meals. The testimony shows that the distance driven on the round trip from East Alton to Hardinsburg was 560 miles, and that no overnight stops were made. Under the circumstances, the payment of $20 appears to be sufficient to entitle plaintiff to the status of a passenger, rather than a guest. 8 Am Jur2d 47, McNanna v. Gach, 51 Ill. App.2d 276, 201 NE2d 191.
Defendant, Edgar Robbins, contends that the court erred in denying his motion for a directed verdict at the close of plaintiff's case. It is plaintiff's position that the evidence at the close of plaintiff's case was sufficient to require submission of the case to the jury, and further, assuming the evidence to be insufficient, by further participation in the trial, defendant waived the right to question the correctness of the court's ruling. Plaintiff contends that the issue presented on review, is the sufficiency of the evidence, at the close of all the evidence, and not at the close of plaintiff's case. The consideration of these issues requires a brief review of plaintiff's evidence.
Defendant, Edgar Robbins, called under section 60 of the Practice Act, testified that when he approached the intersection the signal light was "on caution," that there was a car stopped at the intersection, that when the light changed to green, defendant drove out into the intersection, that he saw defendant, Howard Campbell, Jr.'s car heading south but with its wheels "sort of cut in an easterly direction," that immediately thereafter, defendant Campbell's car "raised right up and made a left hand turn right in front of me."
*257 Defendant, Howard Campbell, Jr., called under section 60, testified that he was familiar with the intersection, when the green arrow is on for left-hand turns into Broadway the red light is on for northbound traffic on Tenth Street, that the last time he saw the green arrow was just prior to his entering the intersection.
Dennis Robbins, son of defendant, Edgar Robbins, called by plaintiff, testified that when defendant, Edgar Robbins, approached the intersection, the light was red and his father stopped his car. He stated that the light changed from red to yellow to green, that when his father started into the intersection, the light was green. On cross-examination, Dennis was asked about his pretrial deposition, and thereupon testified that when defendant, Robbins, moved his car forward, the light was yellow.
[3] There was sufficient evidence at the close of plaintiff's case to submit to the jury the issue of defendant, Robbins, negligence, Pfister v. West, 53 Ill. App.2d 305, 203 NE2d 35. Having reached this conclusion, we do not reach the issue of waiver.
[4] As to plaintiff's motion for judgment against defendant, Campbell, notwithstanding the verdict, the evidence presented an issue of fact for the jury as to the negligence of this defendant, the trial court properly denied plaintiff's motion and the judgment will not be disturbed.
There remains for consideration plaintiff's contention that the verdict is inadequate. Plaintiff proved medical expenses of $855.70. There is no evidence of loss of earnings. She suffered a simple fracture of the elbow joint with some limitation of motion.
[5, 6] The question of damages is peculiarly one of fact for the jury. Plaintiff makes no complaint as to instructions or the admission or rejection of evidence. Under *258 the circumstances, we cannot say that the verdict is patently inadequate or grossly unfair or unreasonable. Corsello v. Warren, 51 Ill. App.2d 367, 201 NE2d 155.
For the reasons herein set forth, the judgments of the Circuit Court of Madison County are affirmed.
Judgment affirmed.
MORAN and EBERSPACHER, JJ., concur.


                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT

                            No. 05-5189

UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus

ANTHONY AUGUSTUS THOMAS,

                                              Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(CR-05-568)

Submitted:   May 31, 2006                     Decided:   July 5, 2006

Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

William F. Nettles, IV, Assistant Federal Public Defender,
Florence, South Carolina, for Appellant. Reginald I. Lloyd, United
States Attorney, Alfred W. Bethea, Jr., Assistant United States
Attorney, Florence, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

            Following a jury trial, Anthony Augustus Thomas was

convicted of Hobbs Act robbery, in violation of 18 U.S.C. § 1951

(2000), and possession of a firearm in furtherance of a crime of

violence, in violation of 18 U.S.C. § 924(c)(1)(A) (2000). Thomas’

sole contention on appeal is that the district court erred in

denying his motion for a new trial on the ground that the jury

considered evidence not admitted at trial.         Finding no abuse of

discretion, we affirm.

           The criminal charges underlying Thomas’ conviction arose

from his armed robbery of a convenience store in September 2004.

During deliberations, the jury’s foreperson discovered a four-inch

pocketknife while examining a piece of evidence — a pair of pants.*

After    returning   the   verdict,   the   foreperson   informed   court

personnel that he discovered the pocketknife, which had not been

admitted into evidence.       The district court then apprised the

attorneys of the situation, and briefly questioned the foreperson

on the record about this discovery.           The foreperson made two

statements pertinent to this appeal: he described the circumstances

surrounding the jury’s discovery of the knife (the foreperson found

     *
      Thomas does not contend, nor does the record demonstrate,
that the pocketknife was intentionally planted in the pants, which
were properly admitted and before the jury as part of the body of
evidence. It is clear that the parties’ failure to discover the
pocketknife prior to tendering the pants to the jury was purely
accidental.

                                  - 2 -
the knife, showed it to the jury, then put it away; the jury did

not discuss it further), and he attested that the knife did not

affect the jury’s verdict.       Thomas filed a post-verdict motion for

a new trial, pursuant to Federal Rule of Criminal Procedure 33,

arguing that he was prejudiced by the jury’s discovery of the

unadmitted pocketknife and by the district court’s questioning of

the foreperson.      After the parties briefed the issue, the district

court    denied    Thomas’   motion,   finding    that   discovery   of   the

pocketknife had no impact on the jury’s verdict.

            Pursuant to Rule 33(a), a trial court may grant a motion

for a new trial “if the interest of justice so requires.”            Whether

to grant a Rule 33 motion is squarely within the trial court’s

discretion.       United States v. Greene, 834 F.2d 86, 88 (4th Cir.

1987).   This court reviews the denial of a motion for new trial for

abuse of discretion.         United States v. Lentz, 383 F.3d 191, 219

(4th Cir. 2004).

            Circuit precedent establishes that, when a jury considers

“prejudicial evidence that was not introduced at trial . . . the

defendant is entitled to a new trial.”           United States v. Barnes,

747 F.2d 246, 250 (4th Cir. 1984).          Although determining prejudice

requires assessing “whether there is a reasonable possibility that

the jury’s verdict was influenced by the material that improperly

came before it,” a presumption of prejudice arises when the jury

considers evidence not admitted at trial.          Id. at 250-51 (internal

                                    - 3 -
quotations    and    citation   information   omitted).    When   such   a

presumption arises, the government must rebut it by showing that

consideration of the improper material was harmless.         Id. at 251.

           Our review of the record convinces us that the strength

of the Government’s evidence against Thomas rebuts the presumption

of prejudice.       At trial, the cashier present during the robbery

gave a very specific description of the robber; she testified that

the robber was a black man, approximately 5’6” tall, who was

wearing a wig, a white bandana, and a blue jumpsuit.         She further

testified that the robber was carrying a bag and riding a blue

bicycle.     A number of law enforcement officials testified to the

actions taken to apprehend the robber.           Officer August of the

Darlington Police Department testified to pursuing a man fitting

this description, who was riding a blue bicycle.          Officer August

nudged the suspect from his bicycle because he failed to comply

with the officer’s order to stop; a team of bloodhounds picked up

the suspect’s scent from the wig, and soon thereafter located the

suspect, later determined to be Thomas, hiding in a nearby carport.

The next day, law enforcement recovered a .357 Magnum near Thomas’

hiding spot. At trial, the cashier testified that this firearm was

similar to the one the robber used in that it was older and

partially rusted and that the recovered wig was the same wig the

robber had worn.

                                   - 4 -
            Because the evidence against Thomas was compelling and

the pocketknife was not relevant to any of the charged offenses, we

conclude the district court did not abuse its discretion in denying

Thomas’ motion for a new trial.            The district court’s questioning

of the foreperson does not affect our conclusion.                   The district

court’s inquiry into the factual circumstances of the jury’s

discovery    of    the    knife    was    “was   not   only   permissible     but

necessary.”       United States v. Cheek, 94 F.3d 136, 143 (4th Cir.

1996).      Although     we   agree   with   Thomas    that   the   foreperson’s

testimony about the knife’s effect on the jury’s verdict was

inadmissible as evidence concerning a jury’s “mental processes,”

id., we think that in light of the evidence against Thomas and the

foreperson’s description of the knife’s discovery, any error was

harmless.

            Accordingly, we affirm Thomas’ conviction. Additionally,

we deny Thomas’ motion to file a pro se supplemental brief because

he is represented by counsel, and further deny the pending motion

to have his attorney dismissed because he is allegedly ineffective.

We   dispense     with   oral     argument   because   the    facts   and   legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

                                                                        AFFIRMED

                                         - 5 -


376 F.3d 1296
UNITED STATES of America, Plaintiff-Appellee Cross-Appellant,v.Clarence CLAY, Defendant-Appellant Cross-Appellee.
No. 03-12263.
United States Court of Appeals, Eleventh Circuit.
July 15, 2004.

COPYRIGHT MATERIAL OMITTED Stephen R. Glassroth, Glassroth & Van Heest, P.C., Montgomery, AL, for Clay.
Louis V. Franklin, Sr., Montgomery, AL, for U.S.
Appeals from the United States District Court for the Middle District of Alabama.
Before DUBINA, CARNES and CUDAHY*, Circuit Judges.
DUBINA, Circuit Judge:

1
Appellant Clarence Clay ("Clay") appeals his convictions and sentences imposed by the United States District Court for the Middle District of Alabama. In addition, the government cross-appeals from the district court's refusal to impose a two-level enhancement to Clay's sentence. For the reasons that follow, we affirm.

I. BACKGROUND

2
After a trial, a jury found Clay guilty of conspiracy to distribute and possess with intent to distribute four kilograms of cocaine hydrochloride, 50 or more grams of cocaine base, and 1,000 or more kilograms of marijuana, all in violation of 21 U.S.C. §§ 841(a)(1) and 846, and with unlawful use of a communication facility, a telephone, in violation of 21 U.S.C. § 843(b). The jury was, however, unable to agree on the amount of drugs that should be attributed to Clay. The district court sentenced Clay to 56 months imprisonment, but permitted him to remain free on bond pending the outcome of this appeal.

3
John W. Barnes ("Agent Barnes") is a Senior Special Agent with the United States Customs Service. At the time of the events in this case, Agent Barnes was assigned to the High Intensity Drug Trafficking Area ("HIDTA") task force in Montgomery, Alabama. The HIDTA task force is a federally funded investigative task force composed of federal, state, and local law enforcement officers. HIDTA's stated mission is to locate, identify, and dismantle drug smuggling/trafficking organizations.

4
In December 1997, Agent Barnes received a request from Bill Baker ("Agent Baker"), a fellow Customs agent in Cincinnati, Ohio, seeking information about an individual by the name of "John Riley" in Montgomery, Alabama. Agent Barnes requested and received information from the Montgomery Police Department, which he forwarded to Agent Baker in Cincinnati. Agent Barnes confirmed that the John Riley, who was the subject of Agent Baker's interest, was also the John Riley identified through the Montgomery Police Department. Thereafter, Agents Barnes and Baker began working together in a narcotics investigation that impacted Alabama and Kentucky.

5
In April 1998, Tony Montoya ("Montoya"), a cooperating individual ("CI"), assisted Agents Barnes and Baker, along with others, in arranging a controlled meeting between Montoya and Riley. The purpose of the meeting was for Riley to deliver money to Montoya for marijuana that had previously been delivered to Riley. When the meeting occurred, Agent Barnes and others through the use of surveillance equipment were able to monitor Riley giving Montoya $77,500. In addition to monitoring Riley, the agents monitored the money that Riley gave to Montoya as it left Montgomery and traveled across the border into Mexico through Laredo, Texas. The following month, a second delivery occurred. After arriving in Montgomery, Montoya contacted Riley via pager and cell telephone. Agent Barnes supervised these contacts. Again, the agents set up surveillance in an adjoining hotel room and monitored the delivery of approximately $60,000 by Riley to Montoya. Montoya continued to provide agents with information about Riley and his contacts outside the district.

6
Unable to identify Riley's local co-conspirators, Agent Barnes decided to obtain pen registers for Riley's cellular telephone with the hopes of obtaining authorization to intercept Riley's telephone conversations. Records obtained through subpoena revealed that Clay subscribed to the cellular telephone number used by Riley to communicate with Montoya and other CIs, and the cellular phone bills went to Clay's home address at 1030 Lynwood Drive, Montgomery, Alabama. Based on this information about the unlawful use of the cellular telephone subscribed to by Clay, the government sought and obtained a wire tap order. On June 3, 1999, eleven days into the wire tap, agents intercepted a conversation between Clay and Riley. During this conversation, Clay complained about the poor quality of the marijuana and his inability to sell it. Riley tried to relieve Clay's anxiety by promising to pick up the marijuana and give him some new marijuana when the next shipment came in. Additionally, Clay and Riley used numbers that were consistent with those used by Riley in a conversation with unindicted co-conspirator, Louis Calvin Cook ("Cook"), when Riley and Cook talked about marijuana.

7
When Riley realized that he was being followed by agents, he met with Clay and gave him the cellular telephone. Clay took the cellular telephone to a local Powertel office and changed the number. Additionally, Clay specifically requested that the SIM card (i.e., a computer chip that identifies the phone number with that card) be changed, resulting in the termination of the first court authorized wiretap for that particular cellular telephone. While in possession of the cellular telephone, Clay answered the telephone and identified himself as Riley's "partner" and promised to deliver a message to Riley. After changing the number to the aforementioned cellular telephone, Clay returned it to Riley.

8
On July 15, 1999, agents executed several search warrants at locations associated with Riley, including Clay's residence at 1030 Lynwood Drive, Montgomery, Alabama. The agents also searched Riley's stash house at 1702 French Street, Montgomery, Alabama, and Riley's main address at 5713 Portsmouth Drive, Montgomery, Alabama. Agents seized several firearms from each of these locations (i.e., two from Clay's residence, eight from Riley's home residence, and four from Riley's stash house).

9
The evidence produced at trial demonstrated that Clay was the subscriber for the telephone that Riley used to conduct his drug trafficking business from 1996 to 1999 through which Riley possessed and distributed thousands of pounds of marijuana, more than fifty grams of cocaine base, and four kilograms of cocaine hydrochloride. During the trial, the government also presented the testimony of co-conspirator Roderick Blanding ("Blanding"), who testified that he worked for Riley. According to Blanding, Clay was one of Riley's regular customers.

II. ISSUES

10
1. Whether the district court erred in concluding that the prosecutor's comments before the grand jury did not substantially influence the grand jury's decision to return the superseding indictment in this case.

11
2. Whether the evidence was sufficient to sustain Clay's conviction for the unlawful use of a communication facility, to wit, a telephone, in violation of 21 U.S.C. § 843(b).

12
3. Whether drug quantity becomes an element of the offense under federal drug trafficking statutes only when it may be used to impose a sentence above the applicable statutory maximum.

CROSS-APPEAL

13
1. Whether the district court committed clear error when it overruled the government's objection to enhance Clay's offense level by two points because Clay's co-conspirators possessed dangerous weapons during the drug conspiracy.

III. STANDARDS OF REVIEW

14
This court reviews the district court's denial of a defendant's motion to dismiss an indictment based on prosecutorial misconduct before the grand jury under an abuse of discretion standard. United States v. Waldon, 363 F.3d 1103, 1108 (11th Cir.2004).

15
"Whether the record contains sufficient evidence to support the jury's verdict is a question of law subject to de novo review." United States v. To, 144 F.3d 737, 743 (11th Cir.1998). When conducting a review of the record, this court views the evidence in the light most favorable to the government and resolves all reasonable inferences and credibility evaluations in favor of the jury's verdict. Id. This court "must uphold the jury's verdict whenever a reasonable factfinder could conclude that the evidence establishes guilt beyond a reasonable doubt." Id. at 743-44.

16
This court will review de novo appeals alleging error in an indictment under Apprendi,1 but we will reverse only for harmful error. United States v. Sanchez, 269 F.3d 1250, 1272 (11th Cir.2001) (en banc). "Apprendi error is constitutional error, subject to harmless or plain error review depending on the timing of the constitutional objection." Id.

CROSS-APPEAL

17
We review for clear error the district court's findings of fact regarding whether a defendant should receive an enhanced sentence under the United States Sentencing Guidelines. United States v. Gallo, 195 F.3d 1278, 1280 (11th Cir.1999).

IV. ANALYSIS

18
After reviewing the record, reading the parties' briefs, and having the benefit of oral argument, we affirm issues one and two of Clay's appeal without further discussion.2 We feel compelled, however, to address Clay's drug quantity issue and the government's cross-appeal sentence enhancement issue.

A. Drug Quantity

19
Clay argues, for the first time on appeal, that his conviction should be reversed because the jury that unanimously found him guilty of being a member of a drug conspiracy could not unanimously agree that the amount of drugs alleged in the superseding indictment should be attributed to him. We have held that a defendant who has not presented his objection to the district court must show plain error on direct appeal. United States v. Hasson, 333 F.3d 1264, 1276 (11th Cir.2003). Thus, the defendant must show (1) that an error occurred, (2) that is plain, and (3) that affects substantial rights. Id.

20
Clay contends that his conspiracy conviction should be reversed because the jury could not unanimously agree that the amount of drugs alleged in the superseding indictment should be attributed to Clay. No authority supports this Apprendi-related contention, and most of Clay's argument is nothing more than an attack on this Court's holding in Sanchez. Clay received a 50-month sentence for violating § 841(b)(1)(D), when the maximum sentence that statutory provision sets for the smallest quantity of drugs is 60 months. Under Sanchez, no error occurred.

21
Clay recognizes that in Sanchez, we held that drug type and quantity are not required to be alleged in the indictment, submitted to the jury, and proved beyond a reasonable doubt, as long as the statutory maximum punishment is not exceeded. See Sanchez, 269 F.3d at 1268 ("To repeat the oft-repeated, Apprendi explicitly limited its holding to facts `that increase [ ] the penalty for a crime beyond the prescribed statutory maximum.' Therefore, Apprendi has no effect on cases in which a defendant's actual sentence falls within the range prescribed by the statute for the crime of conviction."). Clay's contention is that because the jury was asked to ascertain the quantity of drugs for which he was accountable and was unable to unanimously agree on that, the government failed to meet its burden of proving every element of the charge beyond a reasonable doubt. The flaw in Clay's reasoning is that the specific quantity of drugs for which he was accountable is not an element of the crime charged. See United States v. Matthews, 168 F.3d 1234, 1245 (11th Cir.1999). Under Sanchez, specification of quantity does not become essential unless the amount of the drugs involved is used to increase the defendant's sentence beyond the applicable maximum penalty for the smallest detectable quantity. In this case it was not.

22
Had the district court sentenced Clay to a term of imprisonment above the 60-month maximum for any detectable quantity of drugs, see § 841(b)(1)(A) (maximum sentence of life if 1000 kg or more of marijuana); § 841(b)(1)(B) (40-year maximum if more than 100 of marijuana), Clay would have a point under Apprendi. However, recognizing that the failure of the jury to agree on a specific drug quantity limited the type of sentence it could impose on Clay, the district court sentenced him to only 50 months, which is below the 60-month maximum that he could have received pursuant to § 841(b)(1)(D). Therefore, in light of our reasoning in Sanchez, the 50-month sentence was in the permissible range and the district court did not plainly err. See also United States v. Richards, 302 F.3d 58, 66 (2d Cir.2002) ("[D]rug quantity becomes an element of the offense under § 841 only where it may be used to impose a sentence above the statutory maximum sentence" because "the constitutional rule of Apprendi does not apply where the sentence imposed is not greater than the prescribed maximum for the offense of conviction").

23
B. Cross-Appeal — Enhancement Under U.S.S.G. § 2D1.1(b)(1)

24
During the trial, the government presented evidence that in July 1999, pursuant to a search warrant, authorities seized drugs and various firearms from Riley's French Street residence. Authorities also seized numerous firearms from Riley's main residence located at Portsmouth Drive. Information regarding the search of Clay's residence, however, was not presented at trial because the district court previously had granted Clay's motion to suppress the search of his residence. The government also presented Blanding's testimony that he had passed out drugs for Riley and that, between 1996 and 1999, Clay had picked up drugs at Riley's French Street residence on a weekly basis. The district court, however, later found at the sentencing hearing that Blanding's testimony was not fully credible, particularly with regard to the number of drug transactions between Clay and Blanding, "because of the way he testified." [R-26 at 16-17].

25
At sentencing, the government objected to the presentence investigation report's failure to recommend a two point enhancement to the offense level for possession of a firearm. The government explained that firearms were seized from the closet of Clay's residence during a search warrant, and that, although the items seized were suppressed before trial, information regarding them was admissible for sentencing purposes. The government also reasoned that Riley possessed firearms at his French Street residence, the "stash house for the drugs," where, it asserted, Clay received drugs for distribution. The district court overruled the government's objection. The court found that it was clearly improbable that the firearms found in the closet of Clay's residence were connected to the offense of conviction. The court also found that the firearms found in Riley's residence were not reasonably foreseeable to Clay.

26
On appeal, the government argues that the firearms found at co-conspirator Riley's French Street residence and Portsmouth Drive residence were reasonably foreseeable to Clay, asserting that possession of firearms is a common tool of the drug trafficking trade. The government also contends that Clay qualifies for the firearm enhancement because (1) the conspiracy involved a significant amount of drugs; (2) during the conspiracy, Clay repeatedly picked up drugs from the French Street residence, where firearms were found; (3) Clay subscribed to a cellular telephone that Riley used to conduct his drug trafficking business; and (4) Clay possessed two firearms at his residence from where he discussed drugs with Riley. Clay responds that his role was simply to provide cellular telephone service to Riley; thus, the firearms were not foreseeable to him.

27
Under U.S.S.G. § 2D1.1(b)(1), the court may adjust upward a defendant's base offense level by two levels "[i]f a dangerous weapon (including a firearm) was possessed...." "The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense." U.S.S.G. § 2D1.1, comment. (n. 3). In order for a district court to apply a § 2D1.1(b)(1) enhancement based on a co-conspirator's possession of a firearm, the government must prove by a preponderance of the evidence that "(1) the possessor of the firearm was a co-conspirator, (2) the possession was in furtherance of the conspiracy, (3) the defendant was a member of the conspiracy at the time of possession, and (4) the co-conspirator['s] possession was reasonably foreseeable by the defendant." Gallo, 195 F.3d at 1284. The only factor at issue here is the fourth, reasonable foreseeability.

28
After reviewing the record, we conclude that the district court did not clearly err in finding that Riley's possession of the firearms was not foreseeable to Clay. Blanding had stated in an interview that Clay regularly picked up drugs at the "stash house;" however, the district court found that Blanding's testimony was not fully credible because of the way in which he testified. "We accord great deference to the district court's credibility determinations." United States v. Gregg, 179 F.3d 1312, 1316 (11th Cir.1999). While we have recognized, as the government asserts, that "[t]here is a frequent and overpowering connection between the use of firearms and narcotics traffic," United States v. Cruz, 805 F.2d 1464, 1474 (11th Cir.1986), we hold that absent some specific connection between the firearms and the particular drug activity, the district court is not compelled to find that the § 2D1.1(b)(1) enhancement applies.

29
Finally, we note that United States v. Freyre-Lazaro, 3 F.3d 1496, 1506 (11th Cir.1993), where we found reasonable foreseeability of possession of a weapon by a co-conspirator where the co-conspirator transported thirteen kilograms of cocaine is inapposite. Freyre-Lazaro predates Gallo, which added the foreseeability factor to the § 2D1.1(d)(1) analysis based on a co-conspirator's possession. Moreover, although Freyre-Lazaro involved a large amount of cocaine, nothing in the decision indicates that the amount of drugs was a consideration for this enhancement. While the government attempts to also attribute to Clay the firearms found in Riley's Portsmouth Drive residence, the government fails to explain how these firearms were foreseeable to Clay, and no evidence exists connecting Clay to the firearms found in that residence.

30
With regard to the firearms found in the closet of Clay's residence, the government fails to challenge on appeal the district court's finding that it was improbable that the firearms were connected to the drug conspiracy offense, except to assert that Clay used the telephone at his own residence to discuss drugs with Riley. However, no evidence exists that drug-related objects were found in proximity of the firearms. By contrast, in United States v. Hall, 46 F.3d 62 (11th Cir.1995), we affirmed the application of the enhancement where a set of scales, a ziplock bag with cocaine residue, and a purse containing $12,000 were found in a bedroom, along with a handgun found in a dresser drawer next to an undetermined amount of cash, in a house where conversations concerning the marijuana importation occurred. 46 F.3d at 63-64. We conclude that the district court did not clearly err in finding that it was improbable that the firearms found in Clay's residence were connected to the offense. Accordingly, we conclude that the district court did not clearly err in refusing to impose a two-level enhancement under U.S.S.G. § 2D1.1(b)(1).

31
For the foregoing reasons, we affirm Clay's convictions and sentences.

32
AFFIRMED.

Notes:

*
 Honorable Richard D. Cudahy, United States Circuit Judge for the Seventh Circuit, sitting by designation

1
 Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

2
 See 11th Cir. R. 36-1


                       NONPRECEDENTIAL DISPOSITION
               To be cited only in accordance with Fed. R. App. P. 32.1

               United States Court of Appeals
                              For the Seventh Circuit
                               Chicago, Illinois 60604

                             Argued November 15, 2018
                             Decided November 27, 2018

                                       Before

                        WILLIAM J. BAUER, Circuit Judge

                        MICHAEL S. KANNE, Circuit Judge

                        AMY J. ST. EVE, Circuit Judge

No. 18‐2062

ABDULKARIM ALI AHMED                         Petition for Review of an Order of the
AL HABABI,                                   Board of Immigration Appeals.
      Petitioner,
                                             No. A078‐669‐992
      v.

MATTHEW G. WHITAKER,
Acting Attorney General of the
United States,
      Respondent.
                                     O R D E R

       Abdulkarim Ali Ahmed Al Hababi, a 55‐year‐old Yemeni citizen, seeks review of
the denial of his untimely motion to reopen removal proceedings based on changed
country conditions: namely, the ascendency of ISIS, which killed his son in 2016. The
Board of Immigration Appeals denied Al Hababi’s motion because his evidence—
various documents related to his son’s death and the 2016 State Department Country
Report on Yemen—did not show that he was prima facie eligible for asylum,
withholding of removal, or protection under the Convention Against Torture. We deny
the petition for review.
No. 18‐2062                                                                          Page 2

                                        Background

        Al Hababi entered the United States on a six‐month visitor’s visa in 1999 and
overstayed. The Department of Homeland Security commenced removal proceedings in
2001. At that time, Al Hababi—expressing a fear of persecution if returned to Yemen on
account of “tribal differences”—applied for asylum, withholding of removal, and
protection under the Convention Against Torture. He explained that he was the sheikh
of the Hababi tribe, which was involved in a violent land dispute with a rival tribe
whose ruling sheikh recently had been killed, and he feared retaliation if he returned to
Yemen.

        An Immigration Judge denied his applications, explaining that Al Hababi’s fear
was based on a tribal feud rather than persecution on account of his political view or
membership in a social group, and that he had not shown “more likely than not” that he
would be tortured if removed to Yemen. The judge granted Al Hababi voluntary
departure. The Board of Immigration Appeals affirmed the decision, without opinion,
in 2003.

         Al Hababi then filed a motion to reconsider the Board’s decision and argued that
the Board erred in concluding that he feared persecution “sole[ly] based upon a
personal matter.” The Board denied his motion.

        Al Hababi never left the country, and fifteen years later, in early 2018, he filed a
pro se motion to reopen removal proceedings, this time on grounds that he feared
persecution from ISIS. Al Hababi asserted that he feared ISIS would harm him because
of his familial relationship with his son, Abdul Rahman Ali Al Hababi, who had been
“studying at an American school for language” and whom ISIS suspected of working
with the United States Central Intelligence Agency. Al Hababi added that ISIS has
promoted violence against persons like himself who do not share its religious beliefs.
Al Hababi asserted that, in 2016, ISIS looted his family’s home, kidnapped his daughter‐
in‐law, and killed Abdul. To corroborate this, Al Hababi attached a letter from another
son, Mukhtar Abdulkarim Ali Al‐Hababi, indicating that “criminal and outlaw militias
that do not respect religious or humanitarian norms” attacked the home. Al Hababi
attached Abdul’s birth certificate, school record, medical report, and death certificate, as
well as a copy of the 2016 State Department Country Report on Yemen. The report
explained that a significant increase in killings by nonstate actors, including groups
claiming affiliation with ISIS (referred to in the report as “Da’esh”), occurred in 2016.
No. 18‐2062                                                                              Page 3

ISIS attacked mosques and targeted and killed members of security forces, judicial
authorities, and civilians.

        The Board denied the motion to reopen. It explained that the request came long
after the expiration of the 90‐day filing deadline and that Al Hababi had not introduced
sufficient evidence of changed country conditions to show that he was prima facie
eligible for relief. See 8 C.F.R. § 1003.2(c)(2)–(3). Al Hababi’s evidence, the Board stated,
was conclusory and demonstrated only a “generalized violence or danger,” which is
insufficient to support a claim for asylum, withholding of removal, or protection under
the Convention Against Torture. Regarding the letter from Al Hababi’s son, the Board
questioned its provenance (given that it was an English translation and bore no indicia
that it actually was sent from Yemen), and went on to say that it was “generalized and
conclusory” in that it did not mention ISIS or the attackers’ motivation. Nor did the
medical report or death certificate explain the circumstances of Al Hababi’s son’s death,
except to say that he was killed by a gunshot to the head. As for the State Department
Country Report, the Board acknowledged that it detailed violent attacks by ISIS against
civilians, but the generalized violence and danger it described did not suggest in any
way that Al Hababi would be singled out for persecution.

                                             Analysis

        We begin by briefly discussing the appropriate legal framework. Although
reopening is generally available for orders to voluntarily depart, see 8 U.S.C.
§ 1229a(c)(7); 8 C.F.R. § 1003.2(c), these motions are subject to a ninety‐day deadline.
That deadline does not apply, however, when the motion to reopen is “based on
changed circumstances arising in the country of nationality or in the country to which
deportation has been ordered, if such evidence is material and was not available and
could not have been discovered or presented at the previous hearing.” 8 C.F.R.
§ 1003.2(c)(3)(ii). The alien must also establish that he is prima facie eligible for the relief
he seeks. See Yahya v. Sessions, 889 F.3d 392, 395 (7th Cir. 2018).

        Al Hababi challenges the Board’s conclusion that he failed to establish a prima
facie case for relief. He contends that he did so by presenting evidence that he is a
member of a social group—“family members of Abdul Rahman Ali Al Hababi”—
subject to persecution by ISIS. He also maintains that the judge should not have faulted
him for lacking firsthand knowledge about the circumstances of his son’s death, given
that he was living in the United States at the time.

No. 18‐2062                                                                             Page 4

        Al Hababi cannot satisfy the highly deferential abuse of discretion standard he
faces in challenging the Board’s decision not to reopen his case. See Capric v. Ashcroft,
355 F.3d 1075, 1085–86 (7th Cir. 2004); Pelinkovic v. Ashcroft, 366 F.3d 532, 537–38 (7th
Cir. 2004). Motions to reopen are “strongly disfavored.” Selimi v. Ashcroft, 360 F.3d 736,
739 (7th Cir. 2005). And it was not an abuse of discretion for the Board to dismiss as
unreliable Al Hababi’s assertion that ISIS killed his son due to perceived American ties,
given the questions surrounding the authenticity of the letter from Al Hababi’s other
son and the conclusory description of the family’s circumstances, not to mention the
omission of any specific reference to ISIS. The Board appropriately pointed out that,
even if it afforded the letter full weight, Al Hababi had not “meaningfully” shown how
his son’s perceived ties to the CIA would result in a future threat to himself. Al Hababi
needed to “present specific facts” demonstrating his eligibility for relief, and the Board
here adequately explained why the evidence Al Hababi presented was insufficient to
meet this burden. See Petrovic v. I.N.S., 198 F.3d 1034, 1037 (7th Cir. 2000).

        Alternatively, Al Hababi contends that he will be persecuted because of his
religious beliefs. The Board, however, noted that the State Department Country
Report—the only related record evidence—did not support the contention that
Al Hababi would be singled out for persecution on account of a protected ground. The
country report recounted generalized violence or danger within Yemen—attacks by ISIS
on mosques, security forces, and civilians—but “danger flow[ing] from an ongoing
violent struggle affecting the population in a relatively undifferentiated way” is
insufficient to establish eligibility for asylum. Ahmed v. Ashcroft, 348 F.3d 611, 619 (7th
Cir. 2003); see also Velasquez‐Banegas v. Lynch, 846 F.3d 258, 261 (7th Cir. 2017). Because
Al Hababi has not differentiated his situation from that of any other Yemeni citizen who
faces threat of harm by ISIS, the Board did not abuse its discretion in denying the
motion to reopen.

        Because Al Hababi cannot meet the burden of proof required to establish
eligibility for asylum, there is no need to address his arguments related to the more
stringent test for withholding of removal. See Ahmed, 348 F.3d at 619. Nor has he
introduced evidence to show that he more likely than not will face torture if removed.
See Lenjinac v. Holder, 780 F.3d 852, 856 (7th Cir. 2015). We thus deny the petition for
review.
                                                                                DENIED


968 F.2d 13
Martin (James)v.Smith (Edward C.), Walmer (John D.), Philhaven Hospital,Shank (Rowland)
NO. 91-3384
United States Court of Appeals,Third Circuit.
May 15, 1992

Appeal From:  D.Del.,
Farnan, J.

1
AFFIRMED.


USCA1 Opinion

          April 23, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1822                                   RICHARD A. STREET,                                Plaintiff, Appellant,                                          v.                             MICHAEL T. MALONEY, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Selya and Cyr, Circuit Judges.                                           ______________                                 ____________________            Richard A. Street on brief pro se.            _________________            Irene  M.  Carr, Counsel,  Department  of  Correction,  and  Nancy            _______________                                              _____        Ankers  White,  Special  Assistant  Attorney  General,  on  brief  for        _____________        appellees.                                 ____________________                                 ____________________                      Per Curiam.  Plaintiff-appellant Richard A. Street,                      __________            a Massachusetts  prison inmate, appeals the  grant of summary            judgment   in  favor  of  defendant  correctional  officials.            Summary judgment was entered by the district court after this            court upheld the dismissal of certain claims but reversed the            dismissal of plaintiff's  free exercise and equal  protection            claims.  Street v.  Maloney, No. 90-1280, slip op.  (Dec. 29,                     ______     _______            1990).  For the reasons that follow, we vacate and remand.                                          I                                          I                                          _                      Street  is  an adherent  of  a  sect of  the  Hindu            religion  commonly known as Hare Krishna.   He initiated this            action  under 42  U.S.C.    1983  after  prayer beads  and  a            religious  necklace   that  he  had  ordered   in  1988  were            confiscated  by prison  officials.   At the time,  Street was            confined  to the  Departmental  Segregation Unit  (DSU),  the            prison's  highest  security  unit.    His  amended  complaint            charged that defendants Smith,  the prison property  officer,            Captain Gallagher, then administrator of the DSU, Maloney and            Raikey, former and present  prison superintendents, and Hall,            a former deputy  superintendent, were  responsible, in  their            individual  and official  capacities, for  the expropriation.            The  core  of  Street's  complaint  is  that  the  defendants            infringed his  First and Fourteenth Amendment  rights to free            exercise  of  religion and  equal protection  of the  laws by            confiscating the prayer beads and religious necklace while at            the  same time  allowing  Roman Catholic  inmates to  possess            rosary beads and wear crucifixes.1                      On  remand,   the  defendants  moved   for  summary            judgment.   They  argued  that  1)  the confiscation  of  the            plaintiff's  prayer beads  was  justified  because  of  their            "great  potential  as a  dangerous  weapon,"  2) the  unusual            security  risks  posed  by  the prayer  beads  constituted  a            rational basis  for any  difference in treatment  between the            plaintiff and Catholic inmates, 3) the claims against Captain            Gallagher  should  be dismissed  under Fed.  R. Civ.  P. 4(j)            because of failure to  effect service of process, and  4) the            claims against the remaining  defendants should be  dismissed            because  of plaintiff's  failure to  individuate the  claims,            that is,  to allege facts showing  which defendants performed            the acts that purportedly impaired his constitutional rights.                      Defendants'  motion was  supported by  Smith's two-            page  affidavit.  As  the prison property  officer, Smith was                                            ____________________            1.   Plaintiff's  amended  complaint  also  alleged  that the            confiscation  was  in contravention  of the  Fourth Amendment            right to be free of unreasonable seizures and  the Fourteenth            Amendment  right to due  process, and that  the processing of            the   incoming   religious   items   violated   institutional            regulations regarding  inmate mail.   Defendants here  assert            that  only plaintiff's free  exercise/equal protection claims            survive  our prior  ruling  in this  case.   We  reject  that            contention.    Our  prior  opinion   explained  that  because            plaintiff's amended complaint was not in the record, we would            not  presume  that  it was  before  the  district court  and,            consequently, we  would not address the  allegations therein.            Thus, plaintiff  remained free to  pursue the above-mentioned            claims on remand.                                         -3-            responsible for handling  all incoming property,  maintaining            records of  cell contents  and contraband, and   transferring            property  to   other  institutions.     Smith  recalled  that            plaintiff's  prayer beads  consisted  of  "approximately  100            beads strung together on a strong  cord and joined to form  a            circle which measured approximately 36 inches, doubled."  The            beads,  he attested, "were a  solid, hard material" and "were            large, approximately 3/4 inch in diameter."  The prayer beads            "did  not  resemble in  any way  the  rosary beads  which are            allowed inside the  institution.  The  rosary beads that  are            allowed  . . . generally consist of very small hollow plastic            beads joined  on a  weak chain  with small,  easily breakable            links."  Based on his experience, Smith felt that plaintiff's            prayer  beads  "posed  a  security risk  to  the  institution            because  of their potential use  as weapons such  as a `sap',            `numchucks', or  as a  `garotte'."2  Finally,  Smith affirmed            that DSU inmates "have  been placed there as a result  of the            most   serious  rules   violations,  involving   violent  and            extremely   disruptive   behavior,"   and   that   "the   DSU            administrator  and the  officer in  charge  of the  West Wing            Segregation Unit also saw the  beads and determined that they                                            ____________________            2.   According  to  Smith,  a "sap"  consists  of  a  sock or            similar  container into  which hard  objects are  placed, and            which  is  used to  inflict  blows; "numchucks"  are  sets of            batons connected by  a length of  cable or chain, used  for a            similar  purpose; a "garrotte" is a cord, thong, or length of            wire, used to strangle a victim.                                         -4-            must be removed because of the serious security concerns they            posed."   The affidavit  identified neither of  the other two            officers by name.                      Plaintiff's opposition contested the rationality of            the  defendants' asserted  security  justification.    In  an            accompanying affidavit,  Street stated  that the  108 knotted            beads  were  1/2 inch  in diameter  and  made of  very light-            weight, easily breakable wood, similar  to balsa wood.   "The            beads  are not  solid, but  are hollow, like  Catholic rosary            beads, with a hole in the  center so they can be strung  on a            string."   The  string, about  36 inches  long and  1/64 inch            around, was asserted to be very weak and easily  broken.  The            religious necklace was described as 18 inches long consisting            of  54 tiny  wooden beads  (3/16 inch  long and  1/8 inch  in            diameter)  strung on a "thin weak string" which a young child            could "easily break."                      With  respect to  his religion,  Street's affidavit            explained  that  his faith  required  1728  repetitions of  a            particular  mantra daily,  using special  prayer beads.   The            plaintiff  claimed  that  "[w]ithout  said beads  it  is  not            possible for  me to  obey this  commandment of  my religion."            Street  maintained  that he  had  been  allowed prayer  beads            during  a 1985  confinement in  the DSU,  and that  after his            return there in June 1988 he received permission from Hall to            order  the  beads.    When  they  arrived,  however,  Captain                                         -5-            Gallagher  refused  to  allow  him  to  have  them.    Street            protested  to  Hall,  and  to Hall's  superiors,  Raikey  and            Maloney,  about   the  confiscation,  but   they  refused  to            intervene.  Street  declared that neither  he nor the  sender            received the  required notice that the  beads were considered            contraband.   Finally, Street's  affidavit asserted  that his            jailers said to  him that  "the Hare Krishnas  are fools  and            worship a false God."                      The district  court granted the  defendants' motion            for  summary  judgment.   The  court's  order  states in  its            entirety:                 Motion allowed.  Alleged  refusal to permit  inmate                 to possess hare krishna [sic] beads and necklace in                 the  Departmental Segregation Unit is not violative                 of  Plaintiff's  Constitutional  rights,   as  such                 refusal   is   reasonably  related   to  legitimate                 penological  interests.  Turner v. Safley, 482 U.S.                                          ______    ______                 78, 85 (1987).            The standard  of review  is familiar,  see, e.g., Garside  v.                                                   ___  ____  _______            Osco Drug, Inc., 895  F.2d 46, 48-49 (1st Cir. 1990),  and it            _______________            would be pleonastic to repeat the standard here.                                          II                                          II                                          __                        Prison restrictions that implicate constitutional            rights  are  judged  by  the reasonableness  standard.    See                                                                      ___            Washington  v. Harper,  494 U.S. 210,  224 (1990);  O'Lone v.            __________     ______                               ______            Estate of Shabazz, 482 U.S. 342 (1987); Turner v. Safley, 482            _________________                       ______    ______            U.S.  78 (1987).    Under this  standard,  an inmate's  First            Amendment right  must yield  to prison rules  and regulations                                         -6-            that   are  "reasonably  related  to  legitimate  penological            interest."   Turner, 482 U.S. at  89.  To  ensure that judges                         ______            accord   appropriate  deference   to   decisions  of   prison            administrators  anent the delicate balance of these competing            principles,  the Court  put in  place a  "reasonableness test            less  restrictive than  that  ordinarily  applied to  alleged            infringements of fundamental constitutional rights."  O'Lone,                                                                  ______            482 U.S. at 349 (punctuation and citation omitted).  Thus, if            prohibiting plaintiff's possession  of certain  paraphernalia            in  the DSU strikes a reasonable balance between the right to            free exercise of religion  and the prison's asserted interest            in security,  plaintiff's First  Amendment claim will  fail.3            See Reed v. Faulkner, 842 F.2d 960, 962 (7th Cir. 1988).            ___ ____    ________                      The parties have briefed the appeal in terms of the            Turner rubric.   Assuming,  arguendo, that Turner  applies to            ______                      ________       ______            the individualized decision here at issue, see, e.g., Frazier                                                       ___  ____  _______            v. Dubois,  922  F.2d 560,  562  (10th Cir.  1990)  (applying               ______            Turner to an individualized  prison action), the Turner Court            ______                                           ______            identified four factors that "are relevant to, and that serve            to  channel,  the  reasonableness inquiry."    Thornburgh  v.                                                           __________            Abbott,  490  U.S. 401,  414 (1989).    In O'Lone,  where the            ______                                     ______            curtailment  of  Muslim inmates'  rights to  attend religious                                            ____________________            3.  We  assume,  for  present  purposes,  the   sincerity  of            Street's  professed  religious  beliefs.    Since  defendants            elected  not to dispute this issue below, they cannot dispute            it for the first time on appeal.                                         -7-            services was upheld, the  Court summarized the Turner factors                                                           ______            in the following manner:                      1)   Does  the  challenged  regulation have  a                           logical  connection   to  the  legitimate                           governmental interests invoked to justify                           it?                      2)   Do  alternative  means of  exercising the                           right remain open to prison inmates?                       3)   What  impact  would the  accommodation of                           the inmate's asserted right have on other                           inmates,  on  prison  personnel,  and  on                           prison resources generally?                      4)   Are there obvious,  easy alternatives  to                           the   policy   adopted   by  the   prison                           administrators?            O'Lone, 482 U.S. at 350-53 (citing Turner, 482 U.S. at 89-90,            ______                             ______            93).     These  factors   have  regularly  been   applied  in            determining whether a prison policy violates an inmate's free            exercise rights.   See, e.g.,  Abdullah v.  Gunter, 949  F.2d                               ___  ____   ________     ______            1032,  1035-36 (8th Cir. 1991), cert. denied, 112 S. Ct. 1995                                            _____ ______            (1992);  Fromer v. Scully, 874 F.2d 69, 74-76 (2d Cir. 1989);                     ______    ______            Cooper v. Tard, 855 F.2d 125, 128-30 (3d Cir. 1988); Williams            ______    ____                                       ________            v.  Lane, 851 F.2d 867, 876-78 (7th Cir. 1988), cert. denied,                ____                                        _____ ______            488 U.S. 1047 (1989);  cf. Skelton v. Pri-Cor Inc.,  963 F.2d                                   ___ _______    ____________            100, 103-04 (6th Cir. 1991).                                         III                                         III                                         ___                      With respect to plaintiff's free exercise claim, we            think that  genuine issues of material  fact precluded brevis                                                                   ______            disposition.  There are, for example, unanswered questions of            fact  as to  the  composition of  the  prayer beads  (weight,                                         -8-            density,  etc.) which,  in turn,  prevent a  determination of            whether the ban on  them is reasonable, or, for  that matter,            whether  rosary beads in the  hands of other  DSU inmates are            deserving of  materially different treatment.   We accept the            defendants' legitimate  concern that  religious items in  the            possession of inmates may lead to security problems.  But, we            believe that the plaintiff has sufficiently put into question            the  possible danger to the  security of the  prison posed by            the prayer beads here at issue.                      It  also seems  logical  that the  more solitary  a            religious practice, the  less plausible is the claim  that an            institutional  security  interest  is  compromised.    Turner                                                                   ______            instructs that  "a regulation  cannot be sustained  where the            logical connection  between the  regulation and  the asserted            goal  is so  remote  as to  render  the policy  arbitrary  or            irrational."    Turner, 482  U.S.  at  89-90.    Unlike  free                            ______            exercise  claims  involving  otherwise   non-religious  items            (diet,  grooming,  name  changes,  and  the  like)  or  those            involving  group associations  (such as  congregate worship),            any  of which might impact the general prison population, the            religious activity  associated with the described  use of the            prayer beads appears to involve solely private conduct.   The            significance  of this  fact is  highlighted here  because, as            plaintiff  points out,  he would  never be  able to  take the            prayer beads outside  his cell; according to him, DSU inmates                                         -9-            are uniformly searched,  cuffed, and shackled before  leaving            their cells.   Such a restriction, if true - - and defendants            have not challenged  the veracity of plaintiff's  account - -            posits  an  accommodation  that  both  undercuts  defendants'            stated security  concerns and raises questions  as to whether            they overreacted in denying Street the prayer beads.  Cf. id.                                                                  ___ ___            at 90 (under the fourth factor of the test, "the existence of            obvious,  easy  alternatives   may  be   evidence  that   the            regulation   is  not  reasonable,   but  is  an  `exaggerated            response' to prison concerns") (citation omitted).                      We  note, therefore,  without implying any  view of            the  merits, that the record reveals a genuine question as to            whether defendants' justification is sufficient to outlaw the            prayer  beads.4  See Mosier  v. Maynard, 937  F.2d 1521, 1527                             ___ ______     _______            (10th  Cir.  1991)  (remanding  for factual  development  and            application  of  Turner  factors  where  plaintiff  raised  a                             ______            genuine  issue of material fact as to the reasonableness of a            prison  policy); Swift  v. Lewis,  901 F.2d 730,  731-32 (9th                             _____     _____            Cir.  1990) (vacating  summary  judgment in  favor of  prison            officials in the absence of evidence that officials' asserted                                            ____________________            4.  Although we have been discussing plaintiff's prayer beads            to  this  point, the  same  analysis  applies to  plaintiff's            religious necklace.   Appellees,  in their brief,  argue that            the physical  characteristics of  the beads and  the necklace            are so similar as to be  virtually indistinguishable from one            another, and  that both items  pose the same  security risks.            On remand, of course, the defendants will have an opportunity            to revisit this issue, should they so desire.                                         -10-            reason   for  prison   grooming  policy   justified  treating            appellants differently from other religious groups); see also                                                                 ___ ____            Ali v.  Dixon, 912  F.2d 86,  91 (4th  Cir. 1990);  Hunafa v.            ___     _____                                       ______            Murphy,  907 F.2d  46,  48 (7th  Cir.  1990); cf.  Friend  v.            ______                                        ___  ______            Kolodzieczak, 923 F.2d 126 (9th Cir. 1991) (affirming summary            ____________            judgment  in favor  of  prison  officials because  regulation            prohibiting Roman Catholic  inmates from possessing  rosaries            in their cells satisfied Turner test).5                                     ______                                          IV                                          IV                                          __                      We turn next to plaintiff's claim  that he has been            subjected  to differential treatment because of his religion.            The essence of the Equal Protection Clause is that government            should treat  similarly situated  persons alike.   See, e.g.,                                                               ___  ____            Cleburne  v.  Cleburne  Living  Center, Inc.,  473  U.S.  432            ________      ______________________________            (1985).    Prison  administrators  confronted with  an  equal            protection claim "need only  demonstrate a rational basis for            their distinctions between organizational groups."  Jones  v.                                                                _____            North Carolina  Prisoners' Union,  433 U.S. 119,  134 (1977).            ________________________________            Courts must defer to such differentiation  unless it is clear            that  "the two groups are so similar that discretion has been            abused."   Id. at 136;  see also Feeley  v. Sampson, 570 F.2d                       ___          ___ ____ ______     _______            364, 371 (1st Cir. 1978) (explaining that prison authorities'                                            ____________________            5.  Because  the  case  must   be  remanded  to  resolve  the            questions we have mentioned,  we need not address  the second            and  third  Turner factors.   We  think  it fitting  to note,                        ______            however,  that  neither  defendants'  moving  papers  nor the            district court's order addressed either point.                                         -11-            decisions cannot be arbitrary);  Nadeau v. Helgemoe, 561 F.2d                                             ______    ________            411,  416 (1st  Cir. 1977) (similar).   Thus, so  long as the            prison  officials'   response  is  shown   to  be  rationally            supported, an equal  protection claim must  fail.  See  Reed,                                                               ___  ____            842  F.2d  at 962;  Brandon v.  District  of Columbia  Bd. of                                _______     _____________________________            Parole,  823 F.2d  644,  650 (D.C.  Cir. 1987).   Conversely,            ______            arbitrary enforcement of a stated security rationale violates            prisoners' rights.  See, e.g., Benjamin v. Coughlin, 905 F.2d                                ___  ____  ________    ________            571, 578 (2d Cir.), cert. denied, 498 U.S. 951 (1990).                                _____ ______                      Here, it is undisputed that Roman Catholic  inmates            in  the DSU are allowed rosary beads.  How prison authorities            have  accommodated  other  religions  is  relevant,  but  not            determinative,  in  deciding  whether a  plaintiff  has  been            treated in  an unduly  restrictive manner.   See  Feeley, 570                                                         ___  ______            F.2d at 371.  Assuming that prayer beads and rosary beads can            be equated for purposes of equal protection analysis, see id.                                                                  ___ ___            at  375; Hatch  v. Sharp,  919 F.2d  1266, 1268-69  (7th Cir.                     _____     _____            1990),  cert. denied,  111  S. Ct.  1693  (1991), it  is  not                    _____ ______            obvious if (or how)  the asserted security concerns  posed by            plaintiff's  confiscated  prayer  beads  and  necklace6  were            satisfied  so as to permit another religious group in the DSU            to possess rosary  beads.  If  the comparison between  prayer            and  rosary   beads  can  fairly  be   made,  such  differing                                            ____________________            6.  The defendants' affidavit is  silent anent the wearing of            religious necklaces or crucifixes in the DSU.                                         -12-            restrictions  point to  (but, again,  are not  conclusive of)            "possible  arbitrariness."    Feeley,  570 F.2d  at 364.   As                                          ______            noted earlier, the defendants' affidavit describing the  type            of rosary beads  that are "generally"  allowed to others  was            sufficiently countered by the plaintiff's  opposing affidavit            so as to  create material  questions as to  the relative  and            relevant differences between the religious items in question.            The affidavits also leave unresolved  questions about whether            the  treatment  accorded  the  plaintiff  was   disparate  or            intentional.   These conflicts preclude  summary judgment  on            this count.                                          V                                          V                                          _                      We  need go no further.  We have considered most of            the  parties' other arguments on  appeal and find  them to be            without merit.7   We hold,  however, on  the present  record,            that  the district court erred to the extent that it accepted            defendants'  proffered  security  rationale   as  conclusive.                                            ____________________            7.  We  say "most"  rather  than "all"  because the  district            court  did   not  address  two  other   questions  raised  on            defendants' motion for summary  judgment, namely, a  supposed            failure to  allege  defendants' personal  involvement and  an            asserted service-of-process  deficiency.  We take  no view of            these issues.   See Nereida-Gonzalez  v. Tirado-Delgado,  No.                            ___ ________________     ______________            92-2084,  slip op. at  13 (1st Cir.  April 14, 1993).   We do            note,  however,  plaintiff's  sworn  statement  that  despite            repeated  requests on  his  part, prison  officials have  not            provided him with  the address  of a defendant  who has  left            their  employ.    On  remand, plaintiff  should  be  afforded            another  opportunity to  perfect service  of process  on this            defendant.   By  the same  token,  defendants remain  free to            reassert the defenses mentioned.                                         -13-            Accordingly,   since   the   facts  surrounding   defendants'            justification for  refusing  to allow  plaintiff  to  possess            prayer  beads and  a religious  necklace in  the DSU  require            further development, we vacate  the grant of summary judgment            in  favor   of  the   defendants,  and  remand   for  further            proceedings to  be held before  another trier pursuant  to D.            Mass. Loc. R. 40.1(i).                      Vacated and remanded.  Costs to appellant.                      ____________________   __________________                                         -14-


43 A.3d 513 (2012)
COM.
v.
GARCIA.
No. 653 EDA 2011.
Superior Court of Pennsylvania.
January 6, 2012.
Affirmed.


8 So.3d 1136 (2009)
DRAKE
v.
STATE.
No. 1D07-1561.
District Court of Appeal of Florida, First District.
May 20, 2009.
Decision without published opinion. Affirmed.