author: GREGORY, Chief Judge:

text:
    Rafael Antonio LARIOS-REYES, a/k/a Rafael A. Reyes, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
    No. 15-2170
    United States Court of Appeals, Fourth Circuit.
    Argued: September 21, 2016
    Decided: December 6, 2016

      ARGUED: Benjamin Winograd, IMMIGRANT & REFUGEE’ APPELLATE CENTER, LLC, Alexandria, Virginia, for Petitioner. Karen L. Melnik, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Himedes V. Chicas, JEZIC & MOYSE, LLC, Silver Spring, Maryland, for Petitioner. Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Derek C. Julius, Senior Litigation Counsel, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
    Before GREGORY, Chief Judge, and NIEMEYER and HARRIS, Circuit Judges.
   Petition for review granted and order of removal vacated by published opinion. Chief Judge GREGORY wrote the opinion, in which Judge NIEMEYER and Judge HARRIS joined.

GREGORY, Chief Judge:

Rafael Antonio Larios-Reyes, a native and citizen of El Salvador, seeks review of the decisión of the Board of Immigration Appeals (“BIA”) finding him removable based on his conviction for “Third Degree Sex Offense” under Maryland Criminal Law Article § 3-307. The BIA determined that Larios-Reyes’s state conviction qualifies as the aggravated felony of “sexual abuse of a minor” under § 1101(a)(43)(A) of the Immigration and Nationality Act (“INA”) and affirmed the immigration judge’s finding that Larios-Reyes is therefore removable. We find that the BIA erred as a matter of law and hold that Larios-Reyes’s conviction does not constitute the aggravated felony of “sexual abuse of a minor” under the INA because Maryland Criminal Law Article § 3-307 proscribes more conduct than does the generic federal offense. We therefore grant Larios-Reyes’s petition for review, vacate the order of removal, and order his immediate release from Department of Homeland Security (“DHS”) custody.

I.

Larios-Reyes entered the United States as a lawful permanent resident in 1999, when he was four years old. Administrative Record (“A.R.”) 450. On August 5, 2013, Larios-Reyes was charged with “Sex Offense Second Degree” in violation of Maryland Criminal Law Article § 3-306 and “Sex Abuse Minor” in violation of § 3-602(b)(1). Id. at 765. On September 13, 2013, Larios-Reyes was indicted on both counts. Id. at 762-63.

In May 2014, Larios-Reyes and the State of Maryland reached .a plea agreement. The State dismissed the “Sex Abuse Minor” charge and amended the “Sex Offense Second Degree” charge to the lesser charge of “Third Degree Sex Offense” under § 3-307. Id. at 756, 769. Larios-Reyes pleaded guilty to the amended second charge, which states that

RAFAEL ANTONIO REYES (date of birth 09/16/94), on or about and between .November 1, 2012, and November 30, -2012[,] ... in Montgomery County, Maryland, did commit a sexual offense in the third degree on [victim] (date of birth 05/23/08), to wit: fellacio, in violation of Section 3-307 of the Criminal Law Article against the peace, government, and dignity of the State.

Id. at 763.

The Maryland statute under which Lar-ios-Reyes was convicted provides that

(a) A person may not:
(1)(i) — engage in sexual contact with another without the consent of the other; and
(ii) 1. employ or display a dangerous weapon, or a physical object that the victim reasonably believes is a dangerous weapon;
2. suffocate, strangle, disfigure, or inflict serious physical injury on the victim or another in the course of committing the crime;
3. threaten, or place the victim in fear, that the victim, or an individual known to the victim, imminently will be subject to death, suffocation, strangulation, disfigurement, serious physical injury, or kidnapping; or
4. commit the crime while aided and abetted by another;
(2) engage in sexual contact with another if the victim is a mentally defective individual, a mentally incapacitated individual, or a physically helpless individual, and the person performing the act knows or reasonably should know the victim is a mentally • defective, individual, a mentally incapacitated individual, or a physically helpless individual;
(3) engage in sexual contact with another if the victim is under the age of 14 years, and the person performing the sexual contact is at least 4 years older than the victim;
(4) engage in a sexual act with another if the victim is 14 or 15 years old, and the person performing the . sexual act is at least 21 years old; or
(5) engage in vaginal intercourse with another if the victim is 14 or 15 years old, and the person performing the act is at least 21 years old,

Md, Code Ann,, Grim. Law § 3-307 (2002).

The Circuit Court for Montgomery County, Maryland, sentenced Larios-Reyes to 364 days in prison, all suspended, and five years of supervised probation and medical treatment. It also ordered him to register as a sexual offender. A.R, 769-73. In July 2014, when Larios-Reyes failed to report to his probation officer or register as a sexual offender, the court issued a warrant for his arrest. Id. at 778-81. Lar-ios-Reyes was arrested approximately one month later and ordered held without bond. Id. at 757.

In October 2014, DHS issued Larios-Reyes a notice to appear, DHS charged him with removability based on his conviction under § 3-307, which DHS contended constituted the aggravated felony of “sexual abuse of a minor” under § 1101(a)(43)(A) of the INA. Id. at 822. On March 27, 2015, the immigration judge upheld the charge of removability and ordered Larios-Reyes removed from the United States to El Salvador. Id, at 397. Larios-Reyes appealed to the BIA.

There was no dispute on appeal that a conviction under § 3-307 — without more information on what part of § 3-307 Lar-ios-Reyes violated — would not constitute “sexual abuse of a minor” under the INA. What the parties contested was whether the BIA could consider a narrower portion of § 3-307 to determine if the particular elements of Larios-Reyes’s conviction constituted “sexual abuse of a minor.” The questions for the' BIA, then, were (1) whether § 3-307 is a divisible statute, meaning that it creates multiple alternative offenses, at least one of which constitutes “sexual abuse of a minor,” and if so, (2) what portion of § 3-307 Larios-Reyes was necessarily convicted of, and (3) whether -the elements of Larios-Reyes’s conviction matched the elements of the generic federal offense.

In an unpublished opinion, issued by a single member, the BIA first concluded that § 3-307 is a divisible statute because it “create[s] multiple versions of the crime of sexual offense in the third degree.”' Id, at 4. The BIA then reviewed the record of conviction and concluded that Larios-Reyes was convicted under § 3-307(a)(3). The BIA enumerated the “essential elements, of an offense under § 3 — 307(a)(3)” as “that, the defendant had sexual, contact with the.victim, that the victim, was under 14 years of age at the time of the act, and that the defendant was at least 4 years older than the victim,” Id. It further found that although the conduct specified in the indictment — fellatio—falls within the definition of “sexual act” under Maryland law, “such conduct is also encompassed by the definition of ‘sexual contact,’ ” id. at 4 n.3, which is the conduct element in § 3-307(a)(3).

The BIA then concluded that an offense under § 3-307(a)(3). categorically constitutes “sexual abuse of a minor” under the INA. Id. at 5. In reaching this conclusion, the BIA did not adopt a definition of the generic federal offense. Nor did it refer directly to any interpretations set forth in either BIA or Fourth Circuit precedent. Instead, it compared § 3-307(a)(3)’s elements to the elements of a California statute that the BIA had determined constituted the federal generic offense of “sexual abuse of a minor” in In re Esquivel-Quintana, 26 I. & N. Dec. 469 (B.I.A. 2015), aff’d, Esquivel-Quintana v. Lynch, 810 F.3d 1019 (6th Cir. 2016), cert. granted, No. 16-54, — U.S. —, 137 S.Ct. 368, 196 L.Ed.2d 283, 2016 WL 3689050 (U.S. Oct. 28, 2016). A.R. 4-5. The BIA here held that because § 3-307(a)(3)’s elements are narrower than the California statute’s, § 3-307(a)(3) also categorically matches the generic federal offense.

The BIA accordingly affirmed the immigration judge’s determination that Larios-Reyes is removable as an'alien convicted of an aggravated felony under § 1101(a)(43)(A) of the INA, and it dismissed his appeal. Larios-Reyes timely filed this petition for review of the BIA’s decision.

II.

We generally lack jurisdiction to review any final order of removal against an alien removable as an aggravated felon. 8 U.S.C. § 1252(a)(2)(C); Kporlor v. Holder, 597 F.3d 222, 225-26 (4th Cir. 2010). We have limited jurisdiction, however, to review constitutional claims or questions of law, including whether a conviction qualifies as an aggravated felony. 8 U.S.C. § 1252(a)(2)(D); Amos v. Lynch, 790 F.3d 512, 517 (4th Cir. 2015). We review this question of law de novo. Castillo v. Holder, 776 F.3d 262, 267 (4th Cir. 2015).

A.

Under the INA, an alien is removable if he or she is “convicted of an aggravated felony at any time after admission.” 8 U.S.C. § 1227(a)(2)(A)(iii). The INA contains a long list of crimes that qualify ás an “aggravated felony,” including “sexual abuse of a minor.” 8 U.S.C. § 1101(a)(43)(A).

To determine whether Larios-Reyes’s conviction under § 3-307 qualifies as “sexual abuse of a minor” under the INA, we would usually apply the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Under this approach, we ask whether “ ‘the state statute defining the crime of conviction’ categorically fits within the ‘geneiic’ federal definition of a corresponding aggravated felony.” Moncrieffe v. Holder, — U.S. —, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013) (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007)). We answer this by first considering the elements of the generic federal crime, See Taylor, 495 U.S. at 590, 110 S.Ct. 2143. The state statute is a categorical match with the federal definition “only if a conviction of the state offense ‘ “necessarily” involved ... facts equating to [the] generic [federal offense].’ ” Moncrieffe, 133 S.Ct. at 1684 (quoting Shepard v. United States, 544 U.S. 13, 24, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)) (alterations in original). We therefore “focus on the minimum conduct necessary for a violation of the state statute, while ensuring that there is a ‘realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.’” Castillo, 776 F.3d at 267-68 (quoting Gonzales, 549 U.S. at 193, 127 S.Ct. 815). We look to the decisions of Maryland’s appellate courts to see both the minimum conduct to which the statute has been applied and those courts’ pronouncements on the minimum conduct to which the statute might be applied. See id. at 268. And “‘[t]o the extent that the statutory definition of [§ 3—307(a)(3)] has been interpreted’ by the state’s appellate courts, ‘that interpretation constrains our analysis of the elements of state law.’ ” Id. (quoting United States v. Aparicio-Soria, 740 F.3d 152, 154 (4th Cir. 2014)).

Here, the parties do not dispute that under the categorical approach, § 3-307 is broader than any conceivable federal definition of “sexual abuse of a minor” because § 3-307 enumerates several offenses that do not require the victim to be a minor. See Md. Code Ann., Crim. Law § 3-307(a)(1), (2). Under the categorical approach, then, Larios-Reyes would easily prevail. But the Supreme Court has recognized a “narrow range of cases” in which courts, when faced with an overbroad but “divisible” statute, may consider whether a portion of the statute is a categorical match to the federal generic definition. Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 2284, 186 L.Ed.2d 438 (2013) (quoting Taylor, 495 U.S. at 602, 110 S.Ct. 2143). This is called the “modified categorical approach.”

In order for a court to apply the modified categorical approach, a statute must be “divisible.” A statute is divisible when it (1) “sets out one or more elements of the offense in the alternative,” and (2) at least one of those elements or sets of elements corresponds to the federal definition at issue. Id. at 2281; see also United States v. Cabrera-Umanzor, 728 F.3d 347, 352 (4th Cir. 2013) (stating that “general divisibility [] is not enough; a statute is divisible ... only if at least one of the categories ... constitutes, by its elements, [an aggravated felony]”). For the first prong, the focus is on the statute’s elements, not the facts of the crime. Then, the inquiry is whether the statute has listed “multiple, alternative elements, ... effectively creating] ‘several different ... crimes.’” Descamps, 133 S.Ct. at 2285 (quoting Nijhawan v. Holder, 557 U.S. 29, 41, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009)). The Supreme Court has emphasized that a statute setting forth merely alternative means of committing an offense will not satisfy this requirement. Mathis v. United States, — U.S. —, 136 S.Ct. 2243, 2255, 195 L.Ed.2d 604 (2016), This is because a federal penalty may be imposed based only on what a jury necessarily found .or what a defendant necessarily pleaded guilty to, and the means of commission is not necessary to support a conviction. Id.

If a statute is. divisible, then the modified categorical approach is appropriate. This approach permits courts to “examine a limited class of documents,” known as Shepard documents, “to determine which of a statute’s alternative elements formed the basis of the defendant’s prior conviction.” Descamps, 133 S.Ct. at 2284. It is then possible to compare the particular elements of the conviction, rather than the elements of the statute as a whole, to the federal generic definition.

The Supreme Court has “underscored the narrow scope of’ the modified categorical approach. Id. It is “to identify, from among several alternatives, the crime of conviction so that the court can compare it to the generic offense.” Id. at 2285. The Court has made clear that review under this approach “does not authorize a sentencing court to substitute [ ] a facts-based inquiry for an elements-based one. A court may use the modified approach only to determine which alternative element in a divisible statute formed the basis of the defendant’s conviction.” Id. at 2293. Once a court has made this determination, it - can compare that part of the statute to the generic federal offense using the traditional categorical approach, which remains centered on elements, not facts. Id. at 2285 (stating that the modified categorical approach “preserves the categorical approach’s basic method”). And where an element of the conviction is defined to include multiple alternative means, courts must consider all of those means; an element is not further divisible into its component parts. See id. at 2291; see also Mathis, 136 S.Ct. at 2255-57.

To begin this analysis, we must determine whether § 3-307 is a. divisible statute. We agree with the BIA that it is. We recently held in United States v. Alfaro, 835 F.3d 470, 473 (4th Cir. 2016), that § 3-307 lists alternative sets of elements that create multiple versions of the crime of third-degree sexual offense. Alfaro thus confirms that § 3-307 meets the first prong of the divisibility inquiry. Alfaro does not, however, resolve the second prong of the divisibility test, which is whether any set of elements in § 3-307 constitutes “sexual abuse of a minor.”

In Alfaro, we held that § 3-307 is divisible, but we were comparing § 3-307 to “crime of violence” under the Sentencing Guidelines. Id. Here, we must determine whether any set of elements, in § 3-307 constitutes an “aggravated felony” under the INA — a question not answered by Al-faro. We emphasize the point that a statute might be divisible as compared to one federal statute and not divisible as compared to another. Whether any set of elements meets the generic federal definition will vary depending on the generic federal definition at issue. The second prong of the divisibility inquiry sometimes merits less discussion, see id. but it is an important— and required — step in the analysis. Here, at least one set of elements in § 3-307 must qualify as “sexual abuse of a minor” in order for the statute to be divisible.

We find that at least the set of elements in § 3-307(a)(5) constitutes “sexual abuse of a minor” under the INA. Section 3 — 307(a)(5) prohibits “engaging] in vaginal intercourse with another if the victim is 14 or 15 years old, and the person performing the act is at least 21 years old.” This clearly constitutes “sexual abuse of a minor” under any conceivable federal generic definition. Because at least one set of elements matches the generic federal offense, the second prong of the divisibility inquiry is satisfied. Section 3-307 is thus a divisible statute for purposes of.its comparison with INA § 1101(a)(43)(A), and we may use the modified categorical approach to determine which statutory elements formed the basis of Larios-Reyes’s conviction and whether, those elements match the federal generic definition.

The Shepard documents show that Lar-ios-Reyes was convicted under the elements listed in § 3-307(a)(3), “sexual contact with another if the victim is under the age of 14 years, and the person performing the sexual contact is at least 4 years older than the victim.” The factual basis for Lar-ios-Reyes’s plea details one instance in which Larios-Reyes asked the victim to touch his erect penis, which she did for 2-3 minutes, and two instances in which Lar-ios-Reyes asked the victim to perform fellatio on him, which she did for 2-3 seconds each time. A.R. 767-68. Fellatio is specifically categorized as a “sexual act” under Maryland law. See Md. Code.Ann., Crim. Law § 3-301(d)(1). Fellatio could also qualify as “sexual contact,” which Maryland defines as “an intentional touching of the victim’s or actor’s genital, anal, or other intimate area for sexual arousal or gratification, or for the abuse of either party.” Id. § 3 — 301(e)(1); see Partain v. State, 63 Md.App. 260, 492 A.2d 669, 672-73 (Md. Ct. Spec. App. 1985) (holding that cunnilingus constitutes both “sexual act” and “sexual contact”). The Shepard documents thus reveal that an element of Larios-Reyes’s conviction was either “sexual act” or “sexual contact.” The Shepard documents also establish the age elements of the offense. Larios-Reyes was eighteen years old, and the victim was four years old. Therefore, Larios-Reyes necessarily pleaded guilty to all of § 3-307(a)(3)’s elements, and we affirm the BIA’s finding that Larios-Reyes was convicted under § 3-307(a)(3).

B.

Having established that § 3-307 is a divisible statute and that Larios-Reyes was convicted under § 3-307(a)(3), we now turn to whether § 3-307(a)(3)’s elements categorically match the elements of the generic federal definition of “sexual abuse of a minor.” A threshold question that we must answer before we can compare these statutes is how to define “sexual abuse of a minor.” The INA does not define it, and this Court has not done so in a published opinion interpreting the INA. Therefore, we must consider the BIA’s interpretation of this generic federal offense, because under Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), we are required to defer to the BIA’s precedential interpretation of a “silent or ambiguous” statute so long as that interpretation is not “arbitrary, capricious, or manifestly contrary to the statute,” id. at 844, 104 S.Ct. 2778.

Although the BIA’s decision here is not precedential because it is unpublished and was issued by á single Board member, it relied on a precedential BIA decision, Esquivel-Quintana. We therefore must determine whether that decision warrants deference. See Hernandez v. Holder, 783 F.3d 189, 192 (4th Cir. 2015).

The BIA in Esquivel-Quintana considered whether the California offense of “unlawful intercourse with a minor” categorically constitutes “sexual abuse of a minor” under the INA. 26 I. & N. Dec. 469. In concluding that it was a categorical match, the BIA did not adopt a definition of the federal offense to which we might defer here. Instead, it relied on the interpretive framework set forth in In re Rodriguez-Rodriguez, 22 I. & N. Dec. 991, 996 (B.I.A. 1999). Esquivel-Quintana, 26 I. & N. Dec. at 470-71. We therefore must consider that framework.

in Rodriguez-Rodriguez, the BIA looked to 18 U.S.C. § 3509(a)(8) — a statute that provides procedural protections for child victims and witnesses and that lists crimes constituting “sexual abuse” — and determined that it might serve “as a guide in identifying the types of crimes' [the BIA] would consider to be sexual abuse of a minor.” Rodríguez-Rodríguez, 22 I. & N. Dec. at 996. The BIA expressly stated that it was “not adopting [that] statute as a definitive standard or definition” for purposes of § 1101(a)(43)(A) of the INA. Id, For that reason, we held in Amos v. Lynch that there was no statutory interpretation to which to defer under Chevron and that 18 U.S.C. § 3509(a)(8) might provide guidance but was not the “interpretive touchstone” for determining whether a state conviction qualifies as a removable offense. 790 F.3d at 519-20. We also pointed out that because § 3509(a)(8) “includes] ⅛ broad range of maltreatment of a sexual nature,’ ” it “does not clarify the scope of the generic federal crime” of “sexual abuse of a minor.” Id. at 522 (quoting Rodríguez-Rodríguez, 22 I. & N. Dec. at 996). Accordingly, we cast serious doubt on the usefulness of Rodríguez-Rodríguez’s interpretive approach.

In Esquivel-Quintana, the BIA relied on Rodríguez-Rodríguez to support its conclusion and did not adopt a definition of the generic federal offense of “sexual abuse of a minor.” Esquivel-Quintana, 26 I. & N. Dec. at 470-71. Therefore, we need not give Chevron deference to Esquivel-Quintana for the same reason we declined to give it to Rodríguez-Rodríguez: the BIA did not adopt a federal generic definition of “sexual abuse of a minor.” Indeed, the Sixth Circuit confirmed that the BIA’s approach is “to interpret [‘sexual abuse of a minor’] through case-by-case adjudication.” Esquivel-Quintana, 810 F.3d at 1026.

In sum, the BIA here issued a nonprecedential decision to which we need not defer. The BIA did rely on a precedential decision, Esquivel-Quintana, that might guide our review, but we already held in Amos that this approach is not due any Chevron deference. Therefore, we are not required to give Chevron deference to either the BIA’s opinion here or to Esquivel-Quintana.

We are thus left to consider the BIA’s determination that § 3-307(a)(3) constitutes “sexual abuse of a minor” under the INA using the principles outlined in Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944). Under the Skidmore framework, which prescribes a more modest amount of deference, “we may defer to the agency’s opinion, based on the agency’s ‘body of experience and informed judgment,’” but “the degree of deference that we accord depends on our consideration of the persuasiveness of the BIA’s analysis as demonstrated by its thoroughness, validity of reasoning, and consistency with other decisions.” Amos, 790 F.3d at 521 (quoting Skidmore, 323 U.S. at 140, 65 S.Ct. 161).

We are not persuaded by the BIA’s analysis. Before the BIA could answer the question whether a conviction under § 3-307(a)(3) constitutes the aggravated felony of “sexual abuse of a minor,” it had to compare § 3-307(a)(3)’s elements to the elements of the federal offense. But here, the BIA did not establish the elements of the federal offense. In fact, it did not even explain what federal definition it was using. Instead, the BIA compared § 3-307(a)(3)’s elements to the elements of a California statute that was found to constitute “sexual abuse of a minor.”

This approach is problematic for two reasons. First, the California statute was found to be a categorical match using the Rodriguez-Rodriguez framework, which we have held is neither due any deference nor is particularly useful as an interpretive tool. See Amos, 790 F.3d at 521-22. And second, the Supreme Court has made clear that the categorical approach requires a comparison of the elements of the state statute of conviction to the elements of the generic federal offense, see Moncrieffe, 133 S.Ct. at 1684, not to the elements of another state’s statute of conviction, By attempting to fit § 3-307(a)(3) within the elements of a California statute, the BIA essentially used California law to determine whether a Maryland conviction constituted a removable offense under federal law.

Even if this type of statutory comparison was a reasonable way to determine whether § 3-307(a)(3) matches the generic federal definition of “sexual abuse of a minor,” the BIA erred in its analysis. It failed to determine what conduct the California statute encompassed and whether that conduct was also proscribed by § 3-307(a)(3). Had the BIA done so, it might have seen its mistake.

The BIA concluded that because the “offense [in Esquivel-Quintana] with the elements of ‘(1) unlawful sexual intercourse (2) with a minor under 18 years old (3) who is more than 3 years younger than the perpetrator’ categorically constitutes sexual abuse of a minor,” then § 3-307(a)(3), which “include[s] a younger victim and a greater age difference than the corresponding elements in the statute at issue in Matter of Esquivel-Quintana,” also constitutes “sexual abuse of a minor” under the INA. A.R. 4-5. The BIA held this “notwithstanding that the ‘sexual contact’ proscribed by [§ 3-307(a)(3)] may potentially be less egregious than the ‘unlawful sexual intercourse’” in Esquivel-Quintana. Id. at 5. This is entirely incorrect. That § 3-307(a)(3) criminalizes “potentially ... less egregious” conduct than the California statute in Esquivel-Quintana is precisely the reason that the California statute has no utility as a comparator — and in fact suggests that § 3-307(a)(3) is more likely not to constitute the generic federal offense.

Ultimately, we conclude that the BIA’s decision on this question is not entitled to Skidmore deference. While we recognize that the agency has a wealth of immigration expertise, we find that the BIA was neither thorough in its analysis, valid in its reasoning, nor consistent with precedent in the BIA or the Fourth Circuit. See Amos, 790 F.3d at 521 (citing Skidmore, 323 U.S. at 140, 65 S.Ct. 161). Accordingly, we proceed to consider this question of law de novo, without deferring to the BIA’s determinations in this case.

C.

We begin by defining “sexual abuse of a minor.” We agree with the petitioner that this Court has already established a generic federal definition of “sexual abuse of a minor” in the sentencing context and that the definition is equally applicable here. In United States v. Diaz-Ibarra, we defined “sexual abuse of a minor” for purposes of applying the Sentencing Guidelines. 522 F.3d 343 (4th Cir. 2008). We looked to the Eleventh Circuit’s reasoning in United States v. Padilla-Reyes, 247 F.3d 1158 (11th Cir. 2001), an immigration case, and we adopted that court’s definition wholesale. See Diaz-Ibarra, 522 F.3d at 351-52.

In Padilla-Reyes, the court looked to the common meaning of the phrase “sexual abuse of a minor.” 247 F.3d at 1163-64. It determined that it made more sense to consider the phrase’s plain meaning than to cross-reference other federal statutes, because “where Congress intended an aggravated felony subsection to depend bn federal statutory law it explicitly included the statutory cross-reference,” and so “the lack of an explicit statutory reference in the § 1101(a)(43)(A) subsection indicates Congress’s intent to rely on the plain meaning of the terms.” Id. at 1164.

The Padilla-Reyes court explained that “[a]mong the relevant definitions for abuse, Webster’s includes ‘misuse[;] ... to use or treat so as to injure, hurt, or damage[;] .., to commit indecent assault on[;] ... the act of violating sexually[;] ... [and] rape or indecent assault not amounting to rape,’ ” Id. at 1163. And “for sexual, Webster’s includes ‘of or relating to the sphere of behavior associated with libidinal gratification.’” Id. The court concluded that “the word ‘sexual’ in the phrase ‘sexual abuse of a minor’ indicates that the perpetrator’s intent in committing the abuse is to seek libidinal gratification,” and that the common understanding of “abuse” in this context is that it does not require physical contact. Id. The court therefore concluded that “the phrase ‘sexual abuse of a minor’ means a perpetrator’s physical or nonphysical misuse or maltreatment of a minor for a purpose associated with sexual gratification.” Id.

Significantly,' the Eleventh Circuit in Padilla-Reyes crafted the definition of “sexual abuse of a minor” in the immigration context — under § 1101(a)(43)(A) of the INA, In Diaz-Ibarra, we held that the Padilla-Reyes definition also applies to “sexual abuse of a minor” under the.Sentencing Guidelines. 522 F.3d at 351-52. In doing so, we implied that the federal generic definition of “sexual abuse of a minor” is the same in the sentencing and immigration contexts.

This is further confirmed by the Commentary to the Sentencing Guidelines in effect at the time, which stated that “aggravated felony” under the Guidelines “has the meaning given that term in section 101(a)(43) of the Immigration and Nationality Act (8 U.S.C. § 1101(a)(43)).” U.S. Sentencing Guidelines Manual § 2L1.2 cmt, n.3(A) (U.S. Sentencing Comm’n 2007), Because the crime is the same under the Sentencing Guidelines and the INA, the definition of “sexual abuse of a minor” adopted by this Court in the sentencing context is also applicable in the immigration context. And this makes sense, because the utility of a “generic” definition is that it applies in different contexts, To find otherwise would mean “sexual abuse of a minor” has multiple “generic” federal definitions, an outcome that ordinarily will contravene both the categorical approach’s governing principles and common sense.

We now hold that the generic federal definition of “sexual abuse of a minor” set forth in Diaz-Ibarra is applicable to the INA. Therefore, under the INA, “ ‘sexual abuse of a minor’ means the ‘perpetrator’s physical or nonphysical misuse or maltreatment of a minor for a purpose associated with sexual gratification.’ ” Diaz-Ibarra, 522 F.3d at 352 (quoting Padilla-Reyes, 247 F.3d at 1163). And because we now have a definition of the federal generic offense, we can determine whether a conviction under § 3-307(a)(3) categorically qualifies as that federal offense.

D,

We reiterate that at this step in the analysis, our task is to compare statutory elements only. We do not consider whether Larios-Reyes’s actual conduct constitutes “sexual abuse of a minor”; we ask only whether § 3-307(a)(3) matches the generic federal definition. Shepard documents serve the limited purpose of clarifying which element or set of elements create the basis for the conviction. They have no role to play in our subsequent comparison of that portion of the statute to the generic federal offense. Accordingly, we now turn to consider the scope of § 3-307(a)(3)’s elements.

Under Maryland law, “ ‘sexual contact,’ as used in [§ ] 3-307[ (a)(3) ] ..., means an intentional touching of the victim’s or actor’s genital, anal, or other intimate area for sexual arousal or gratification, or for the abuse of either party.” Md. Code Ann., Crim. Law § 3-301(e)(1) (emphasis added). “Sexual contact” is defined in the disjunctive, meaning that there are multiple ways to accomplish it. Maryland courts have held that the State need not show that a defendant acted for the purpose of sexual gratification in order to be convicted, because acting for such a purpose is just one of the ways that a defendant’s conduct might constitute “sexual contact.” See, e.g., Dillsworth v. State, 66 Md.App. 263, 503 A.2d 734, 737 (Md. Ct. Spec. App. 1986), aff’d, 308 Md. 354, 519 A.2d 1269 (1987) (rejecting defendant’s argument that his conduct did not constitute “sexual contact” because there was no evidence that he acted for the purpose of “sexual arousal or gratification,” and stating that “[t]o include the necessity to show sexual arousal or gratification as a requisite of ‘abuse’ would be to require an unnecessary redundancy — to use the words ‘for abuse’ in vain”). A showing that a defendant acted with the intent to abuse could also sustain a conviction.

The Maryland Court of Special Appeals has interpreted “abuse” in § 3-307 as not limited to “a physical attack intended to inflict sexual injury.” LaPin v. State, 188 Md.App. 57, 981 A.2d 34, 43 (Md. Ct. Spec. App. 2009). Rather, “a touching for the purpose of ‘abuse’ [under § 3-307] refers to a wrongful touching, a touching of another person’s intimate area for a purpose that is harmful, injurious or offensive.” Id. The Maryland Court of Appeals has further recognized that “the buttocks are an intimate area within the meaning of [§] 3-301[ finding specifically that “[t]he touching of the buttocks is therefore proscribed by [§ ] 3 — 307(a)(3).” Bible v. State, 411 Md. 138, 982 A.2d 348, 358 (2009). Hence, a conviction could be sustained under § 3-307(a)(3) based on an adult’s intentional touching of a minor’s buttocks for a “harmful, injurious or offensive” — but not sexually gratifying — purpose. See Alfaro, 835 F.3d at 473 n.1 (recognizing this interpretation of “sexual contact” as used in § 3-307).

Under the federal generic definition of “sexual abuse of a minor,” acting for the purpose of sexual gratification is an element of the offense. Indeed, in Alfaro, we emphasized that “sexual abuse of a minor” as defined in Diaz-Ibarra “is a ‘broad’ phrase ‘capturing physical or nonphysical conduct,’ and it is the sexual-gratification element that polices the line between lawful and unlawful conduct.” Alfaro, 835 F.3d at 476 (quoting United States v. Perez-Perez, 737 F.3d 950, 953 (4th Cir. 2013)) (citation omitted). We went on, “[T]he intent to gratify sexual urges is central to the offense of sexual abuse of a minor ... and therefore is part of the ordinary meaning of the phrase ‘sexual abuse.’ ” Id. at 476-77.

In Maryland, a perpetrator need not act for the purpose of sexual gratification in order to be convicted under § 3 — 307(a)(3). Acting for the purpose of abuse is enough. And Maryland’s appellate courts have interpreted “abuse” to include much more conduct than what the INA criminalizes. Because we are constrained by Maryland’s interpretation of the scope of its own laws, see Castillo, 776 F.3d at 268, we find that § 3-307(a)(3) is broader than the federal generic offense of “sexual abuse of a minor.” Accordingly, we hold that a conviction for “Third Degree Sex Offense” under Maryland Criminal Law Article § 3-307(a)(3) does not constitute the aggravated felony of “sexual abuse of a minor” under § 1101(a)(43)(A) of the INA.

III.

The BIA erred as a matter of law in finding that Larios-Reyes’s conviction under Maryland Criminal Law Article § 3-307 constitutes the aggravated felony of “sexual abuse of a minor” under the INA. We therefore grant Larios-Reyes’s petition for review, vacate the order of removal, and order his immediate release from DHS Custody.

PETITION FOR REVIEW GRANTED AND ORDER OF REMOVAL VACATED.

      . Shepard documents "includfe] - charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, and jury instructions and verdict forms.” Johnson v. United States, 559 U.S. 133, 144, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010); see also Shepard, 544 U.S. at 26, 125 S.Ct. 1254 (listing documents that a reviewing court may consider). And in this Circuit, courts may also consider applications for statements of charges and statements of probable cause, so long as the statements are expressly incorporated into the statement of charges itself. United States v. Donnell, 661 F.3d 890, 894-96 (4th Cir. 2011).

      . Indeed, had the petitioner here recognized that Alfaro only answered the first prong of the divisibility inquiry, he might not have conceded at oral argument that Alfaro conclusively establishes that § 3-307 is a divisible statute in this case.

      . And it certainly matches the definition that we proceed to adopt here in Section II.C.

      . The Shepard documents eliminate § 3-307(a)(4) and (a)(5) as the basis for the conviction because they both require that the victim be "14 or 15 years old” and that “the person performing the sexual act [be] at least 21 years old.” .Neither, element is satisfied here, because at the time of the offense, the victim was four years old and Larios-Reyes was eighteen years old. The Shepard documents also reveal that Larios-Reyes was not convicted under § 3 — 307(a)(1) or (a)(2). The documents do not indicate that Larios-Reyes engaged in sexual contact with the victim under any of the aggravating circumstances listed in § 3 — 307(a)(1). Nor do the documents contain any evidence that the victim was "a substantially cognitively impaired individual, a mentally incapacitated individual, or a physically helpless individual,” as required by § 3-307(a)(2). Therefore, there is no factual basis to support the conclusion that Larios-Reyes was necessarily convicted under any of these subsections.

      . Under 18 U.S.C. § 3509(a)(8), "the term 'sexual abuse’ includes the employment, use, persuasion, inducement, enticement, or coercion of a child to engage in, or assist another person to engage in, sexually explicit conduct or the rape, molestation, prostitution, or other form of sexual exploitation of children, or incest with children.”

      . The Ninth and Tenth Circuits have similarly declined to give Chevron deference to Rodrí-guez-Rodríguez. Rangel-Perez v. Lynch, 816 ,F.3d 591, 598-99 (10th Cir. 2016) (citing Amos and agreeing that “Rodríguez-Rodríguez ... did not establish 18 U.S.C. § 3509(a) as the exclusive touchstone for defining the elements of the INA’s ‘sexual abuse of a minor’ category of ‘aggravated’ felonies’’); Estrada-Espinoza v. Mukasey, 546 F,3d 1147, 1157 (9th Cir. 2008) (en banc), overruled on other grounds by United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc) (per curiam), abrogated by Descamps, 133 S.Ct. 2276 ("Chevron deference does not apply in these circumstances because Rodrí-guez-Rodríguez did not interpret a statute within the meaning of Chevron, but only provided a ‘guide’ for later interpretation.”).
      We acknowledge that three of our sister circuits have held that Rodríguez-Rodríguez adopted § 3509(a) as the definition of "sexual abuse of a minor” under the INA. See Velas-co-Giron v. Holder, 111 F.3d 774, .776 (7th Cir. 2014), cert, denied sub nom. Velasco-Giron v. Lynch,-U.S.-, 135 S.Ct. 2072, 191 L.Ed.2d 956 (2015); Restrepo v. Attorney Gen., 617 F.3d 787, 792, 795-96 (3d Cir. 2010); Mugalli v. Ashcroft, 258 F.3d 52, 58-59 (2d Cir. 2001). But as we stated in Amos, we respectfully disagree with these circuits' decisions. 790 F.3d at 519.

      .The BIA’s other findings in Esquivel-Quin-tana are entitled to Chevron deference, but they do not concern the issue here. These include that (1) the generic federal offense of “sexual abuse of a minor” requires a meaningful age difference between the victim and the perpetrator, and (2) California Penal Code § 261.5(c) categorically constitutes "sexual abuse of a minor” under § 1101(a)(43)(A) of the INA. Esquivel-Quintana, 26 I. & N. Dec. at 477.

      . The current Commentary to the Sentencing Guidelines retains this language. See U.S, Sentencing Guidelines Manual § 2L1.2 cmt. n.3(A) (U.S. Sentencing Comm’n 2015).

      . The Fifth Circuit has made a similar observation in an unpublished opinion. See Ramos-Garciav, Holder, 483 Fed.Appx. 926, 929 n.14 (5th Cir. 2012) (acknowledging that ‘‘[m]ost of the cases discussing the definition of ‘sexual abuse of a minor' under § 1101(a)(43) do so in a sentencing rather than an immigration context/’ but noting that it could find "no reason .., why those cases- are not applicable [to the INA] for purposes pf determining the generic meaning of ‘sexual abuse of a minor’ under the same statutory provision”). And in two unpublished opinions, we have applied the Diaz-Ibarra definition to “sexual abuse of a minor” under the INA. See Waffi v. Mukasey, 285 Fed.Appx. 26, 27 (4th Cir. 2008) (using Diaz-Ibarra's definition of "sexual abuse of a minor” to determine whether the statute at issue categorically matched the offense under the INA); Alvarado v. Holder, 398 Fed.Appx. 942, 943 (4th Cir. 2010) (same).


source: Caselaw Access Project

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Samuel Robert HOSFORD, Defendant-Appellant.
    No. 15-4284
    United States Court of Appeals, Fourth Circuit.
    Argued: September 23, 2016
    Decided: December 6, 2016

      ARGUED: Julie L.B. Stelzig, Office of the Federal Public Defender, Greenbelt, Maryland, for Appellant. Dana Jill Brus-ca, Office of the United States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public Defender, Office of the Federal Public Defender, Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Office of the United States Attorney, Baltimore, Maryland, for Appel-lee.
    Before GREGORY, Chief Judge, and WILKINSON and DIAZ, Circuit Judges.

      . See, e.g,, 47 Stat. 650, 652 (1932) (District of Columbia established licensing requirement in 1932); 1927 Haw, Sess. Laws 209, 211 (Hawaii established licensing requirement in 1927).

   Affirmed by published opinion. Chief Judge GREGORY wrote the opinion, in which Judge WILKINSON and Judge DIAZ joined.

GREGORY, Chief Judge:

In 2013, Mr. Samuel Hosford was indicted under 18 U.S.C. § 922 for unlicensed dealing in firearms and conspiracy to deal firearms without a license. He moved to dismiss the indictment on constitutional grounds. Specifically, he argued that the indictment violated his Second Amendment right to engage in intrastate firearm sales between non-prohibited persons; the Due Process Clause of the Fifth Amendment for vagueness; and the Commerce Clause. The district court denied his motion, and Hosford timely appealed.

“We'review the district court’s factual findings on a motion to dismiss an indictment for clear error, but we review its legal conclusions de novo.” United States v. Perry, 757 F.3d 166, 171 (4th Cir. 2014) (quoting United States v. Woolfolk, 399 F.3d 590, 594 (4th Cir. 2005)). We hold that the prohibition against unlicensed firearm dealing comports with the Second and Fifth Amendments both facially and as applied. It is also a valid exercise of congressional power under the Commerce Clause. Accordingly, we affirm the district court’s denial of Hosford’s motion to dismiss his indictment.

I.

Hosford, a resident of Montgomery County,- Maryland, sold firearms to an individual he met in a public parking lot five times over the course of two-and-a-half months, He had no reason to believe that the individual was a prohibited purchaser, but be also took, no measures to ensure that the individual was a valid purchaser. Unbeknownst to him, the individual was an undercover officer. Hosford was arrested and indicted for one count of conspiracy and five counts of unlicensed firearm dealing.

According to the facts agreed to in his conditional plea agreement, Hosford conspired with another man, Henry Parrott, to sell firearms. Parrott purchased firearms from gun shows and delivered them to Hosford,. Hosford.then sold these firearms to the undercover officer. Over five transactions, Hosford sold the officer eight guns and intended to sell another four guns before he was arrested.

Hosford moved to dismiss his indictment as unconstitutional under the Second Amendment, Due Process Clause of the Fifth Amendment, and Commerce Clause. The district court held that the indictment was constitutional. Hosford then pleaded guilty, conditioned on the outcome of this appeal about the statute’s constitutionality.

n.

Hosford was indicted under the Gun Control Act of 1968, 18 U.S.C. § 921 et seq., which prohibits individuals without a license from regularly selling, for the predominant purpose of gaining profit, firearms that are not part of their personal collection or for their hobby. Because Hos-ford’s motion challenges on Second Amendment and vagueness grounds the constitutionality of this prohibition, we first more carefully review the statutes at issue, as well as the burdens and responsibilities they trigger.

18 U.S.C. § 922 forbids anyone “except a licensed importer, licensed manufacturer, or licensed dealer, to engage in the business of importing, manufacturing, or dealing in firearms.” 18 U.S.C. § 922(a)(1)(A).

18 U.S.C. § 921 lays out the relevant definitions for this prohibition. A dealer is, in relevant part, “any person engaged in the business of selling firearms at wholesale or retail.” 18 U.S.C. § 921(11)(A). A licensed dealer is a dealer who has obtained a federal license to commercially buy and sell firearms. Id. And under clarifying statutory definitions passed in 1986, “[ejngaged in the business” means “a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms.” 18 U.S.C. § 921(21)(C); see also Firearm Owners Protection Act, Pub. L. No. 99-308, 100 Stat. 449 (1986). And “with the principal objective of livelihood and profit” means that the intent of the sale “is predominantly one of obtaining livelihood and pecuniary gain,” as opposed to other intents like decreasing or increasing one’s personal firearm collection. 18 U.S.C. § 921(22). But these definitions explicitly exempt anyone “who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms.” 18 U.S.C. § 921(21)(C).

To obtain a license, a prospective firearms dealer must submit an application, be at least twenty-one years old, pay a fee, and establish lawful premises for selling firearms. 18 U.S.C. § 923(a), (d). If the applicant fulfills these steps and is otherwise legally able to possess, transport, and ship firearms, the application must be approved. 18 U.S.C. § 923(d).

Licensed dealers are subject to regulations that those conducting personal sales are not. For example, the Attorney General may require licensed dealers to maintain importation, production, shipment, and other kinds of records, 18 U.S.C. § 923(g)(1)(A), and may inspect a dealer’s inventory or records without reasonable cause for a warrant, subject to other limitations, 18 U.S.C. § 923(g)(1)(B).

III.

We first review Hosford’s Second Amendment challenges. “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. For centuries, the Second Amendment received minimal judicial interpretation.

Then, in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), the Supreme Court determined that the Second Amendment protects an individual “right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Id. at 635, 128 S.Ct. 2783. The Court held-unconstitutional the District of Columbia’s ban on possession of handguns in the home and its requirement that all firearms in the home be stored in a manner that rendered them inoperable for immediate self-defense. Id.

But the Court underscored that Heller was not meant “to clarify the entire field” of Second Amendment jurisprudence. Id. It further emphasized that Heller should not “be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Id. at 626-27, 128 S.Ct. 2783. In a footnote, the. Court identified these kinds of prohibitions as “presumptively lawful regulatory measures.” Id., at 627 n.26, 128 S.Ct. 2783.

Since Heller, courts have endeavored to establish what conduct the Second Amendment protects "and what burdens on that conduct are constitutionally' justifiable. The Fourth Circuit has adopted a two-pronged inquiry for Second Amendment challenges. First, the court must ask “whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee.” United States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010) (quoting United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010)). If it does not, then the law comports with the Second Amendment. But if the challenged regulation does burden conduct within the scope of the Second Amendment as historically understood, the court must apply “an appropriate form of means-end scrutiny.” Id. at 680.

Against this backdrop, Hosford raises both facial and as-applied Second Amendment challenges to the prohibition against unlicensed firearm dealing. We consider each in turn.

A.

We first examine Hosford’s facial challenge. To succeed in a facial constitutional challenge, & movant “must establish that no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745, 107 S.Cf. 2095, 95 L.Ed.2d 697 (1987). Because of this stringent standard, a facial challenge is perhaps “the most difficult challenge to mount successfully.” Id. And while courts generally engage in the above-mentioned two-pronged analysis for facial Second Amendment challenges, our precedent simplifies that analysis for prohibitions deemed “presumptively lawful” in Heller.

In United States v. Moore, 666 F.3d 313 (4th Cir. 2012), this Court found the federal prohibition against possession of firearms by felons facially constitutional because it was identified in Heller as presumptively lawful. Id. at 318-19. According to this Court, the Supreme Court’s identification of “longstanding prohibitions on the possession of firearms by felons” as presumptively lawful “streamlined” the otherwise-applicable two-pronged analysis. Id. at 317-18. “It is unclear to us whether Heller was suggesting that ‘longstanding prohibitions’ such as these ... were historically understood to be valid limitations on the right to bear arms or did not violate the Second Amendment for some other reason.” Id. at 318 (quoting Chester, 628 F.3d at 679); see also Marzzarella, 614 F.3d at 91. But either reasoning demonstrated that these presumptively lawful prohibitions were facially constitutional, because they could be constitutionally applied. Moore, 666 F.3d at 318-19.

The same.reasoning applies here. Hosford’s facial challenge fails if the prohibition against unlicensed firearm dealing is the type of regulation deemed “presumptively lawful” in Heller. There may be debate as to whether the Supreme Court called presumptively lawful all “laws imposing conditions and qualifications on the commercial sale of arms,” or only “longstanding ,.. laws imposing conditions and qualifications on the commercial sale of arras.” Heller, 554 U.S. at 626-27, 128 S.Ct. 2783. But we need not parse that language here: the prohibition against unlicensed firearm dealing is. a longstanding condition or qualification on the commercial sale of arms and is thus facially constitutional.

First, < the. regulation covers only the commercial sale of firearms. It affects only those who regularly sell firearms, not owned for personal use, in the course of trade or business for the principal purpose of profit. It explicitly excludes the vast majority of noncommercial sales, such as sales from one’s own personal collection, sales meant to enhance one’s hobby, and infrequent sales or exchanges.

Second, the regulation imposes a mere condition or qualification. Though framed as a prohibition against unlicensed firearm dealing, the law is in fact a requirement that those who engage in. the commercial sale of firearms obtain a license.. A prospective dealer who wishes to obtain a license need only submit an application, be at least twenty-one years old, pay a fee, and establish lawful premises for selling firearms. 18 U.S.C. § 923(a), (d). Neither the application procedure nor the fee are so prohibitive as to turn this condition or qualification into a functional prohibition. Cf. Ill. Ass’n of Firearms Retailers v. City of Chicago, 961 F.Supp.2d 928, 938-939 (N.D. Ill. 2014) (finding that city ordinances allowing firearm sales and transfers only outside city limits were a functional ban on firearm acquisition); Teixeira v. County of Alameda, 822 F.3d 1047 (9th Cir. 2016) (noting that if no unincorporated area of county qualifies under, zoning requirement that firearm retailers must be 500 feet from certain establishments, zoning requirement may be functional ban on firearm stores).

And lastly, this prohibition against unlicensed firearm dealing is longstanding. Federal appellate courts have only recently begun to establish how old a firearm regulation must be to be longstanding. And no court has previously examined whether the prohibition at issue here is longstanding. But a review of similar cases establishes that the prohibition against unlicensed firearm dealing is of similar age to other longstanding firearm regulations, and is thus also longstanding.

The Third Circuit found New Jersey’s permit requirement for possessing handguns “longstanding”; New Jersey established its permit requirement in 1966 and first required permits for only concealable handguns in 1924. Drake v. Filko, 724 F.3d 426, 432 (3d Cir. 2013). The D.C. Circuit noted that the U.S. Supreme Court found prohibitions on the possession of firearms by felons to be. longstanding “although states did not start to enact th[ose prohibitions] until the early 20th century.” Heller v. District of Columbia, 670 F.3d 1244, 1253 (D.C, Cir. 2011); see also C. Kevin Marshall, Why Can’t Martha Stewart Have A Gun?, 32 Harv. J.L. & Pub. Pol’y 695, 708 (2009) (noting that bans on possession of firearms by felons not passed in any state other than New York until 1923, and not passed in states with constitutional right-to-arms provisions until 1925). And the D.C. Circuit found that Washington, D.C.’s handgun-registration requirement, first passed in 1975, was longstanding, even though some states first regulated the possession of handguns in 1927 ox-1932, and those laws required less of the purchaser. See Heller, 670 F.3d at 1254; see also, e.g., 47 Stat. 650, 652 (1932) (requiring purchasers of pistols in District of Columbia to give seller basic' personal identifying information); 1927 Haw. Sess. Laws 209, 211 (same).

Licensing requirements for dealers have been around for as long as these laws, if not longer. The federal government first required dealers to obtain licenses in 1938, nearly eighty years ago. Federal Fireárms Act, Pub. L. No. 75-785, 52 Stat. 1250, 1260 (1938) (repealed 1968) (replaced with Gun Control Act of 1968, Pub. L. 90-618, 82 Stat. 1213). And some states required licenses for dealers even earlier. Thus, the federal progenitor of the law at issue was passed decades before the handgun-licensing requirements examined by the Third Circuit and D.C, Circuit. And licensing requirements on dealers have existed at least as long as regulations on the possession of handguns.

For these reasons, the prohibition against unlicensed firearm dealing is a longstanding condition or qualification on the commercial sale of firearms. As a result, Hosford’s facial Second Amendment challenge fails.

B.

Even if a statute is facially constitutional, “the phrase ‘presumptively lawful regulatory measures’ suggests the possibility that one or more of these ‘longstanding’ regulations ‘could be unconstitutional in the face of an as-applied challenge.” Chester, 628 F.3d at 679 (quoting United States v. Williams, 616 F.3d 685, 692 (7th Cir. 2010)). We thus now turn to Hosford’s as applied challenge.

As • stated above, this Court has established a two-pronged analysis for Second Amendment challenges: “whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee,” and if so, whether the challenged law survives “an appropriate form of means-end scrutiny.” Chester, 628 F.3d at 680. But even when applying this analysis, we are at liberty to assume that a challenged statute burdens conduct protected by the Second Amendment; and focus instead on whether the burden is constitutionally justifiable. Woollard v. Gallagher, 712 F.3d 865, 875 (4th Cir. 2013) (“[W]e are not obliged to impart a definitive ruling at the first step of the Chester inquiry. And indeed,.we and other courts of appeals have sometimes deemed it prudent to instead resolve post-Heller challenges to firearm prohibitions at the second step”). Because we can resolve the'statute’s constitutionality on the inquiry’s second prong, we also find it prudent in this case to assume, without holding, that the federal prohibition against unlicensed firearm dealing burdens conduct protected by the Second Amendment.

1.

We first must determine what level of scrutiny applies. The right to bear arms, after all, “is not unlimited.” Heller, 554 U.S. at 626, 128 S.Ct. 2783. Even as historically and traditionally understood, law-abiding citizens do not have the “right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Id.

In United States v. Masciandaro, 638 F.3d 458 (4th Cir. 2011), this Court held that laws burdening “core” Second Amendment conduct receive strict scrutiny, while less severe burdens receive only intermediate scrutiny. Id. at 471. We noted that core Second Amendment conduct includes the “fundamental right to possess firearms for self-defense within the home. But a considerable degree of uncertainty remains as to the scope of that right beyond the home.Id. at 467. “[A]s we move outside the home, firearm rights have always been more limited, because public safety interests often outweigh individual interests in self defense.” Id. at 470. Thus, “less severe burdens on the right, laws that merely regulate rather than restrict, and laws that do not implicate the central self-defense concern of the Second Amendment, may be more easily justified.” Id. at 470 (quoting Chester, 628 F.3d at 682).

Here, even assuming that the prohibition implicates conduct protected by the Second Amendment, the prohibition does not touch on the Second Amendment’s core protections. Individuals remain free to possess firearms for self-defense. Individuals also remain free to purchase or sell firearms owned for personal, self-defensive use. The law merely imposes a licensing requirement on those who wish to profit by regularly selling firearms outside of their personal collection; it serves, not as a prohibition, but as a condition or qualification. The law, therefore, regulates rather than restricts, addresses only conduct occurring outside the home, and does not touch on self-defense concerns. It is thus subject to intermediate scrutiny.

2.

To satisfy intermediate scrutiny, the government must show that “there is a ‘reasonable fit’ between the challenged regulation and a ‘substantial’ government objective.” Chester, 628 F.3d at 683 (quoting Bd. of Trs. of State Univ. of N. Y. v. Fox, 492 U.S. 469, 480, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989)).

The government enacted the prohibition against unlicensed firearm dealing, alongside myriad other firearm regulations, because “the ease with which firearms could be obtained contributed significantly to the prevalence of lawlessness and violent crime in the United States.” Huddleston v. United States, 415 U.S. 814, 824, 94 S.Ct. 1262, 39 L.Ed.2d 782 (1974) (citing S. Rep. No. 90-1097, at 2198 (1968)). The government’s interest is, therefore, “to c[ur]b crime by keeping ‘firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency.’ ” Id.

Such interests in public safety and preventing crime are indisputably substantial governmental interests. See Woollard, 712 F.3d at 877. The question then is whether there is a reasonable fit between the prohibition against unlicensed firearm dealing and the government’s objectives.

The requirement that firearm dealers— those who regularly engage in the business of selling firearms — obtain licenses is a crucial part of the federal firearm regulatory scheme. Licensed dealers are subject to more stringent regulations and governmental oversight than private sellers. See 18 U.S.C. § 923(g)(1). By subjecting firearm dealers to routine inspections, which require neither a warrant nor probable cause, the government has more opportunities to ensure compliance with laws that have demonstrated effects on reducing gun violence.

For example, prohibiting those under a restraining order for domestic violence from possessing fireaims correlates to a statistically significant decrease in intimate partner homicides. See Elizabeth R. Vigdor & James A. Mercy, Do Laws Restricting Access to Firearms By Domestic Violence Offenders Prevent Intimate Partner Homicide?, 30 Eval. Rev. 313, 332 (2006). And restricting these individuals’ access to firearms by prohibiting their purchase of firearms, rather than merely their possession, is significantly more effective. Id, at 333. Requiring sellers to conduct background checks, as licensed firearms dealers must do under federal law, also significantly reduces prohibited purchasers’ access to firearms. See Katherine A. Vittes et al., Legal Status and Source of Offenders’ Firearms in States mth the Least Stringent Criteria for Gun Ownership, 19 Injury Prevention 26, 29 (2013). Indeed, of those studied, very few offenders purchased a weapon from a federal firearms dealer, in large part because of the background-check requirement. Id. at 30. Without a prohibition against the unlicensed dealing of firearms, individuals who regularly engage in the business of selling firearms for profit would have no incentive to obtain a license and subject themselves to these requirements.

Despite Hosford’s protestations, this prohibition against the unlicensed, dealing of firearms is not “a broad prohibition, applying to the entire law-abiding population, that substantially burdens conduct that goes to the core of rights secured under the Second Amendment.” Appellant Br. at 29. Nor does this prohibition imper-missibly implicate “the right of a non-prohibited person to engage in the private, intrastate sale of firearms to another non-prohibited person,” even assuming such a right is countenanced in the Second Amendment’s core protections. Appellant Br. at 12. Individuals are free to sell firearms from their personal collection, to sell firearms only occasionally, and to sell firearms commercially with a license. This prohibition is a narrowly delineated, reasonable fit to further Congress’s important objectives in public safety and crime prevention: it affects only those select individuals who regularly sell firearms they do not personally own in their collection or for their hobby, for the principle purpose of accruing profit. And it is a necessary component to the effectiveness of federal firearm'regulations.

Moreover, nothing about Hosford’s situation changes this analysis as applied to him. Over the course of five separate occasions, he sold to an unknown individual nearly a dozen firearms that he purchased hours before. A grand jury indicted Hos-ford for the. unlawful, regular sale of firearms for the principal purpose of profit, where the firearms were not part of his personal collection or for his hobby. And Hosford does not contest that his conduct violated the statute.

Applying the federal prohibition to Hos-ford affécts no “core” constitutional right, so applying only intermediate scrutiny remains appropriate. His brief possession of the firearms he sold, had no connection to the long-held right to self-defense; he did not purchase or own them for that purpose. His -indictment does not implicate his right to keep firearms in his home. Indeed, any attempt to characterize Mr. Hosford’s conduct as “core” Second Amendment conduct, thus deserving of higher scrutiny, goes merely to whether Mr. Hosford was guilty of the crime. If he were a hobbyist, sold firearms only occasionally, or sold firearms from his personal collection, he may argue — assuming he were even indicted — that his core Second Amendment conduct was implicated. But that hypothetical scenario' is not at issue here.

And in applying intermediate scrutiny, the government’s interests in the law' generally also justify applying the law to Hos-ford. Hosford sold firearms on multiple occasions to an individual whom, as far as the record shows, he did not vet. He kept no record of the firearms he sold. He conducted no background check. He did not know whether the buyer was prohibited, and took no steps to ensure that the buyer could legally purchase firearms. His actions are the exact kind of unlicensed firearm dealing that Congress feared when passing the licensing requirement as an attempt to stymie the unregulated flow of firearms to prohibited purchasers. For these reasons, Hosford’s as-applied Second Amendment challenge also fails.

IV.

Hosford next argues that the federal prohibition against unlicensed firearm dealing is void for vagueness, both facially and as applied. “[T]he void-for-vágueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1865, 75 L.Ed.2d 903 (1983).

Yet “[a] plaintiff who engages in some conduct that is clearly .proscribed cannot complain of the vagueness of the law as applied the conduct of others.” Holder v. Humanitarian Law Project, 561 U.S. 1, 18-19, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010) (quoting Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S.Ct. 1186, 71 L,Ed.2d 362 (1982)). Thus, if a law clearly prohibits a defendant’s conduct, the defendant cannot challenge, and a court cannot examine, whether the law may be vague for other hypothetical defendants. Because the prohibition against unlicensed firearm dealing is not vague as applied to Hosford, both his as applied and facial challenges fail.

In 1975, this Court upheld the pre-1986, less specific" prohibition against unlicensed firearm dealing. United States v. Huffman, 518 F.2d 80 (4th Cir. 1975) (per curiam). At the time, the statute prohibited individuals from “engaging] in the business of selling firearms or ammunition at wholesale or retail,” but did not define what “business” meant. See id. at 81. The defendant “engaged in more than a dozen transactions in the course of a few months. He frequently built firearms, or had them rebuilt,' and exchanged them for other weapons which he subsequently sold or traded. There was also evidence that he traded large quantities of military ammunition "for firearms.” Id. This Court held that the statute was not vague as applied to the defendant. Id.

Here, the prohibition against unlicensed firearm dealing is much narrower and clearer: it regulates only individuals who regularly sell, for the principal purpose of accruing profit or" maintaining a livelihood, firearms that are not part of their personal collection or for their hobby. And like the defendant in Huffman, Hosford engaged in transactions that resulted in the sale or attempted sale of a dozen weapons over the course of a few months. Indeed, Hosford’s conduct may be even more clearly commercial than that of the defendant in Huffman. In Huffman, the defendant both traded and built firearms, which could possibly imply that he had a hobby; Hosford resold for profit weapons he purchased a few hours earlier. Thus, applying the narrower and more clarifying statute to Hos-ford’s similarly commercial sale of firearms is not unconstitutionally vague.

Hosford argues that the statute is unclear as to whether someone is a “dealer” or “collector,” and whether someone sells the guns for profit or as a mere hobby. Appellant Br. at 48. But statutes necessarily have some ambiguity, as no standard can be distilled to a purely objective, completely predictable standard. “[T]he law is full of instances where a man’s fate depends on his estimating rightly ... some matter of degree.” Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 2561, 192 L.Ed.2d 569 (2015) (quoting Nash v. United States, 229 U.S. 373, 377, 33 S.Ct. 780, 57 L.Ed. 1232 (1913)). And where, as here, the statute clearly gave notice to Hosford that he ought not to regularly sell firearms that he only purchased and resold for profit — firearms not acquired for the purpose of a personal collection or for the hobby of collecting firearms — his as applied vagueness challenge fails. As a result, Hosford’s facial challenge also fails.

V.

Lastly,. Hosford argues that the prohibition against unlicensed firearm dealing is not a valid exercise of Congress’s power under the Commerce Clause. The Commerce Clause allows Congress to regulate (1) the channels of interstate commerce; (2) the instrumentalities of interstate commerce, and persons or things in interstate commerce; and (3) activities that “substantially affect”' interstate commerce. Gonzales v. Raich, 545 U.S. 1, 16-17, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005). We join our sister circuits in holding that the prohibition against unlicensed firearm dealing is a valid exercise of Congress’s power under the Commerce Clause. See Mandina v. United States, 472 F,2d 1110 (8th Cir. 1973); United States v. Hornbeck, 489 F.2d 1325 (7th Cir. 1973) (per curiam).

In Gonzales v. Raich, 545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005), the Supreme Court upheld the federal Controlled Substances Act’s application to individuals who grew and consumed marijuana for personal use. See id. at 7, 125 S.Ct. 2195. Those individuals cultivated their own marijuana or received marijuana for free from caregivers. They did not purchase or sell marijuana or marijuana products, either interstate or intrastate. Id. at 7, 125 S.Ct. 2195.

Despite the intrastate and noncommercial nature of the activity, the Supreme Court held that it had a substantial effect on interstate commerce. The individuals were cultivating, for themselves, a fungible commodity for which there was an established interstate market. Id. at 18, 125 S.Ct. 2195. The purpose of the Controlled Substances Act was to “control the supply and demand of controlled substances in .both lawful and unlawful drug markets,” Id. at 19, 125 S.Ct. 2195. Congress had a “rational basis for believing that leaving home-consumed marijuana outside federal control would ... affect price and market conditions.” Id. And lastly, the growing demand for marijuana in the interstate market could draw in-state, homegrown marijuana into the interstate market, thus frustrating Congress’s purposes if left unregulated. Id.

More so than the respondents in Gonzales, Hosford — just like similar individuals who would be indicted under this law — engaged in comnaercial, inter-personal conduct. He purchased and resold firearms, a fungible commodity for which there is an established interstate market, to unknown individuals. And like the market for marijuana, Congress has a rational basis to believe that leaving intrastate firearm markets unregulated would affect the interstate market or draw firearms purchased intrastate into the interstate market. Indeed, research indicates that firearms found illegally in one state may be traced back to legal purchases in other states. See Steven G. Brandi & Meghan S. Stroshine, The Relationship Between Gun and Gun Buyer Characteristics and Firearm Time-to-Crime, 22 Crim. J. Pol’y Rev. 285, 287 (2011) (noting that all fee-arms begin on legal market); Glenn L. Pierce et al., Research Note, Characteristics and Dynamics of Illegal Firearms Markets; Implications for a Supply-Side Enforcement Strategy, 21 Just. Q. 391, 401 (2004) (finding that 35% of illegally possessed and traced firearms originated from different state). And in cities such as New York or Boston, where firearm regulations are strictest, the vast majority of illegally possessed firearms originated out of state. Brandi, supra at 289 (New York and Boston have strict regulations); Pierce, supra at 401 (finding that, of firearms traced, 82.6% of firearms recovered in New York originated out of state, and 66.4% of firearms recovered in Boston originated out of state). Leaving the intrastate, commercial sale of firearms unregulated would frustrate Congress’s purpose to police the interstate firearms market. For these reasons, the unlicensed dealing of firearms, even in intraátate sales, implicates interstate commerce and may be constitutionally regulated by Congress under the Commerce Clause.

VI.

For these reasons, the district court’s decision not to dismiss Mr. Hosford’s indictment is

AFFIRMED.

      . Hosford argues that his facial vagueness challenge should be heard even if the claim is , ,not vague as applied to him, because the statute may nonetheless "chill constitutionally-protected activity.” Appellant Br. at 40. But his argument confuses a due-process vagueness challenge with a First Amendment over-breadth challenge. Because Hosford has not alleged an overbreadth claim, we decline to address it.

      . Hosford alleges that Huffman is not persuasive because it was decided pre-Heller. But Heller's recognition of an individual right to keep and bear arms has no bearing on whether a statute is vague as a matter of due , process.


author: JAMES L. DENNIS, Circuit Judge:

text:
    Randi HYATT, individually, as the next friend of her minor child C.W.H., and as the representative of the Estate of Jason Hyatt; Lea Wilkins, as the representative of her minor child C.H.; Alexis Hyatt; Vickie Dear, Plaintiffs-Appellants v. Brianna THOMAS; Charles Turner; Mark Admire; Brandy Cauble, Defendants-Appellees
    No. 15-10708
    United States Court of Appeals, Fifth Circuit.
    Filed November 18, 2016

      Jeff S. Edwards, Scott Charles Medlock, Edwards Law, Austin, TX, for Plaintiffs-Appellants.
    Charles Clark Self, III, Esq., Whitten, Hacker, Hagin, Anderson, Allen & Self, P.C., Abilene, TX, for Defendants-Appel-lees.
    John R. Eldridge, Haynes & Boone, L.L.P., Houston, TX, for Texas Civil Rights Project, Amicus Curiae.
    Before HIGGINBOTHAM, DENNIS,, and CLEMENT, Circuit Judges.

      . Our conclusion is based in large part on the fact that the practical force of Callahan County’s policy is unclear from the record. For example, the policy states: "When an inmate has been identified as demonstrating a need for mental health care services, he/she will be referred to MHMR services and the local magistrate will be notified as prescribed in the Health Services Plan.” However, the policy does not describe how, when, or by whom an inmate is to be identified as demonstrating such a need.

   JAMES L. DENNIS, Circuit Judge:

The family of Jason Hyatt appeals the district court’s grant of summary judgment in favor of Officer Brianna Thomas on their § 1983 claim related to Hyatt’s suicide while in police custody. Because we find that Thomas responded reasonably to Hyatt’s known suicide risk, we hold that she was not deliberately indifferent and thus was entitled to qualified immunity. We therefore AFFIRM the judgment of the district court.

I

On December 10, 2012, appellant Randi Hyatt, Jason Hyatt’s wife, received a call from Hyatt’s coworkers, who informed her that Hyatt had left work unexpectedly and that they were concerned about his wellbe-ing. Randi called 911 and informed Thomas, a Callahan County, Texas jailer and dispatcher, that her husband “was suicidal, had tried to commit suicide before, and that [she] would not be calling the police if [she] did not think something really bad was happening.” Thomas dispatched officers to perform a welfare check, and Hyatt was soon located and- placed under arrest under suspicion of driving while intoxicated. When Thomas called Randi to inform her that Hyatt had been stopped and to give her his location, Randi again stated that her husband was suicidal. Randi arrived while her husband was being arrested and informed the arresting officers that Hyatt “had tried to commit suicide before and needed to be watched.”

Hyatt was taken to the Callahan County jail, where Thomas, who was trained in the assessment of suicide risk and screening for-mental health issues of inmates, booked him and completed a “Screening Form for Suicide and Medical and Mental Impairments.” In response to Thomas’s questions, Hyatt stated that he had been prescribed antidepressants but was not taking them correctly, that he was feeling “very depressed,” and that he attempted suicide two months earlier because he was off his medication; . however, Hyatt answered “No” when asked if he was “thinking about killing [himself] today.” Thomas observed that he was under the influence of drugs and alcohol, and noted “1/2 bottle of vodka, Xanax” in the “Comments” section of the form. Despite his answers to the questionnaire, Thomas observed that Hyatt “came across as very happy and generally in a good mood,” and later stated in an affidavit that “[a]t no time did [she] consider him to be a suicide risk and at no time did he exhibit any actions which would have made [her] consider him to be a suicide risk.” Nevertheless, “due to his history of depression and suicide attempts,” Thomas refused to issue Hyatt the thin sheet or hygiene items typically given to prisoners when she processed him into the jail. On two prior occasions, inmates at Callahan County jail had used the thin sheets to hang themselves from bars in their jail cells. •

Hyatt was issued a standard jail uniform and placed in a cell under video surveillance. However, a blind spot in surveillance-camera coverage prevented officers from seeing the toilet area of the cell. When Thomas’s shift ended at 9:00 pm, she informed her shift relief, Jailer Charles Turner, about Hyatt’s intoxication and history of suicide attempts and advised him “of the need to keep an eye out for suspicious behavior.” Turner checked on Hyatt throughout the night. Before his shift ended at 7:00 am, Turner made Hyatt breakfast and delivered it to him. He later recalled that Hyatt “seemed normal and [was] acting in a regular manner,” and that Hyatt “gave no indication of suicidal tendencies.” Turner was relieved by Mark Admire around 7:00 am; he told Admire that Hyatt had been booked for DUI and that his family would be in soon to “bond him out of jail.” Shortly after his shift began, Admire was advised by another jailer that Hyatt could not be seen from the video monitor. Although the jailer suspected that Hyatt was using the bathroom, she dispatched Admire to check on him. At approximately 8:02 am, Admire discovered that Hyatt had hanged himself in the cell bathroom with a plastic garbage bag. EMS was contacted; personnel arrived at the jail at 8:12 am and determined that Hyatt was dead.

In 2014, Hyatt’s widow, mother, and children (collectively, the Hyatts) filed suit under 42 U.S.C. § 1983, the Rehabilitation Act, and the Americans with Disabilities Act against Callahan County; Callahan County Sheriff John Windham; and five Callahan County Jailers, including Thomas. The plaintiffs alleged, inter alia, that the defendants acted with deliberate indifference to Hyatt’s right to protection from harm guaranteed by the Fourteenth Amendment. The defendants filed a motion for summary: judgment, asserting that they were each entitled to qualified immunity. The defendants contended that they did not fail to protect Hyatt from a known risk of suicide, but rather “took steps to protect him from same,” and argued that they did not intentionally disregard Hyatt’s suicidal tendencies.

The district court ultimately denied summary judgment as to Sheriff Windham but granted summary judgment as to the remaining individual defendants. With respect to Thomas, the district court found:

Plaintiffs have failed to direct the Court to specific facts that could be interpreted by a reasonable jury as showing that Defendant Thomas in fact drew the inference that Mr. Hyatt was an imminent or high risk for suicide (requiring an even higher level of care and observation than that which was being' given him) or that Defendant Thomas deliberately ignored such a high level of risk.

The district court therefore concluded that no genuine issue of material fact precluded Thomas from being entitled to qualified immunity. This appeal followed.

II

A. Standard of Review

We review the district court’s summary judgment decision de novo and apply the same standard that was used by the district court. Roberts v. City of Shreveport, 397 F.3d 287, 291 (5th Cir. 2005). Summary judgment is appropriate if the record discloses “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is genuine if the summary judgment “evidence is such that a reasonable jury could return a verdict for the [non-movant].” Id.

“Qualified immunity protects officers from suit unless their conduct violates a clearly established constitutional right.” Mace v. City of Palestine, 333 F.3d 621, 623 (5th Cir. 2003). Once a defendant asserts the qualified immunity defense, “[t]he plaintiff bears the burden of negating qualified immunity.” Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010). “A plaintiff seeking to overcome qualified immunity must show: ‘(1) that the official violated a statutory or constitutional right, and (2) that the right was clearly estabr lished at the time of the challenged conduct.’ ” Cass v. City of Abilene, 814 F.3d 721, 728 (5th Cir. 2016) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011)). Despite this burden-shifting, all reasonable inferences must be drawn in the non-movant plaintiffs favor. Brown, 623 F.3d at. 253.

B. Deliberate Indifference

The Supreme Court has held that “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain,’ proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.)). Although pretrial detainees like Hyatt are not protected by the Eighth Amendment, we have held that “the State owes the same duty under- the Due Process Clause and the Eighth Amendment to provide both pretrial detainees and convicted inmates with basic human needs, including medical care and protection from harm, during their confinement.” Hare v. City of Corinth, Miss., 74 F.3d 633, 650 (5th Cir. 1996) (Hare II).

In Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), the Supreme Court explained that to be deliberately indifferent to an inmate’s needs in violation of the Eighth Amendmént, “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Therefore, to' avoid liability, “[p]rison officials charged with deliberate indifference might show ... that they did not know of the underlying facts indicating a sufficiently substantial danger and that they were therefore unaware of a danger, or that they knew the underlying facts but believed (albeit unsoundly) that the risk to which the facts gave rise was insubstantial or nonexistent.” Id. at 844, 114 S.Ct. 1970.

Furthermore, evidence that an official was aware of a substantial risk to inmate safety does not alone establish deliberate indifference. As the Supreme Court explained in Farmer, “prison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted.”. 511 U.S. at 844, 114 S.Ct. 1970. We have further observed that, “while ... the law is clearly established that jailers must take measures to prevent inmate suicides once they know of the suicide risk, we cannot say that the law is established with any clarity as to what those measures must be.” Hare v. City of Corinth, Miss., 135 F.3d 320, 328-29 (5th Cir. 1998) (Hare III) (quoting Rellergert v. Cape Girardeau Cty., 924 F.2d 794, 797 (8th Cir. 1991)). What is clear is that, even if an officer responds without the due care a reasonable person would use — such that the officer is only negligent — there will be no liability. See Davidson v. Cannon, 474 U.S. 344, 347, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986).

III

On appeal, the Hyatts argue that the evidence, considered in the light most favorable to them, suggests that Thomas: (1) knew that Hyatt was at significant risk of committing suicide; and (2) ignored this risk when she failed to withhold or remove obvious dangers from Hyatt’s cell and failed to follow Callahan County’s “suicide prevention policy.” We will consider each of these arguments in turn.

A. Thomas’s Subjective Awareness of Risk of Harm

In support of their contention that Thomas “knew Mr. Hyatt was at significant risk of committing suicide,” the Hyatts point to evidence that she knew about Hyatt’s recent suicide attempt and his history of depression; that she was told by Randi that Hyatt was suicidal; and that she did not issue him certain items “due to his history of depression and suicide attempts”’ We agree that, taken in the light most favorable to the Hyatts, this evidence could lead a reasonable jury to conclude that Thomas was subjectively aware of a substantial risk that Hyatt would attempt to commit suicide.

“Whether a prison official had the .requisite knowledge of.a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence.” Farmer, 511 U.S. at 842, 114 S.Ct. 1970. Thomas reported that, “due to his history of depression and suicide attempts,”, she refused to issue Hyatt the thin sheet or hygiene items typically given to prisoners when she processed him into the jail. Furthermore, she informed her shift relief, Jailer Turner, of Hyatt’s intoxication and history of suicide attempts and advised him “of the need to keep an eye out for suspicious behavior.” Despite . Hyatt’s statement that he was not presently considering suicide and Thomas’s averment that she did not consider him to be a suicide risk, one could reasonably draw the inference from Thomas’s actions that she was aware of a risk that Hyatt would harm himself if given the opportunity. See Flores v. Cty. of Hardeman, Tex., 53 F.3d 1280, 1280 (5th Cir. 1995) (unpublished) (finding genuine issue of material fact as to officer’s knowledge of detainee’s suicidal tendencies, despite statement from officer and other officials that detainee “had not shown such tendencies,” where officer placed detainee in observation cell, denied him sheets and a blanket, and took other added precautions).

We next must consider whether, viewing the evidence in the light most favorable to the Hyatts, a jury could find that Thomas was aware of a “sufficiently substantial” risk to Hyatt’s safety. Although Hyatt indicated that he did not want to kill himself, he stated that he was feeling “very depressed,” and Thomas was aware that he had a history of depression, that he had recently attempted suicide, and that his wife believed that he was suicidal. A reasonable jury could infer .that, as an officer trained in the assessment of suicide risk and screening for mental health issues of inmates and likely aware that the prison had had recent experience with detainee suicides, Thomas appreciated that Hyatt presented a significant risk of suicide. Taken in the light most favorable to the Hyatts, the evidence thus creates a genuine dispute as to whether Thomas was subjectively aware of Hyatt’s substantial risk of suicide.

Thomas argues that the Hyatts cannot satisfy the awareriess-of-risk' requirement without evidence that she had some knowledge that the plastic bag Hyatt used to hang himself was present in his cell. However, the Hyatts are not required to demonstrate that Thomas was aware of the particular means that Hyatt would ultimately use to hurt himself, only of the substantial risk that he might try to hurt himself. The Supreme Court made this point clear in Farmer, when, considering a claim of deliberate indifference to the risk of inmate-on-inmate violence, it observed:

[A] prison official [may not] escape liability for deliberate indifference by showing that, while he was aware of an obvious, substantial risk to inmate safety, he did not know that the complainant was especially likely to be assaulted by the specific prisoner who eventually committed the assault. The question under the Eighth Amendment is whether prison officials, acting with deliberate indifference, exposed a prisoner to a sufficiently substantial “risk of serious damage to his future health,” and it does not matter whether the risk comes from a single source or multiple sources, any more than it matters whether a prisoner faces an excessive risk of attack for reasons personal to him or because all prisoners in his situation face such a risk.

511 U.S. at 843, 114 S.Ct. 1970. In Hernandez ex rel. Hernandez v. Texas Department of Protective & Regulatory Services, we cited Farmer' and held that “[although deliberate indifference is determined by a subjective standard of recklessness, this, court has never required. state officials to be warned of a specific danger.’’ 380 F.3d 872, 881 (5th Cir. 2004) (internal citation omitted) (emphasis added). Thomas’s awareness of the substantial risk that Hyatt would attempt suicide if given the opportunity would therefore satisfy the awareness requirement,

B. Thomas’s Response to Risk of Harm

A prison official acts with deliberate indifference only if “he knows that inmates face a substantial risk of serious bodily harm. ... [and] disregards that risk by.failing to take reasonable measures to abate it,” Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006); see also Rhyne v. Henderson Cty., 973 F.2d 386, 391 (5th Cir. 1992) (“The failure to provide pre-trial detainees with adequate protection from their known suicidal impulses is actionable under § 1983 as a violation of the detainee’s constitutional rights.”). Although “we cannot say that the law is established with any clarity as to what those measures must be,” Hare III, 135 F.3d at. 328-29 (quoting Rellergert, 924 F.2d at 797), we conclude that in this case, Thomas responded reasonably to Hyatt’s risk of suicide. She withheld from Hyatt the most obvious means for self-harm and placed him under continuous, if ultimately imperfect, video surveillance. Thomas also took care to inform her relieving officer that Hyatt was a potential suicide risk and that he needed to be observed; it was not until after that officer was relieved that Hyatt hanged himself. It is uncontested that she had no knowledge of the presence of the plastic bag in Hyatt’s cell. Thomas’s failure to inspect Hyatt’s cell and retrieve the plastic, bag, and any other potential ligatures, was perhaps negligent, see Estate of Pollard v. Hood Cty., Tex., 579 Fed.Appx. 260, 266 (5th Cir. 2014), but “negligént inaction by a jail officer does not violate the due process rights of a person lawfully held in custody of the State,” Hare II, 74 F.3d at 645; see also Jacobs v. W. Feliciana Sheriff’s Dep’t, 228 F.3d 388, 395 (5th Cir. 2000) (“[T]o be considered deliberately indifferent to a known suicide risk, an officer’s acts must constitute at least more than a mere ‘oversight.’”). Finally, although failure to properly execute a suicide prevention policy may amount to deliberate indifference, see Estate of Pollard, 579 Fed.Appx. at 266, in this case, considering the steps that Thomas did take, any potential noncompliance with Callahan County’s policy would have been at most negligent. We therefore hold that, while not ideal, her failure to exercise even greater care to avoid Hyatt’s suicide did not amount to deliberate indifference. See Farmer, 511 U.S. at 844, 114 S.Ct. 1970; Davidson, 474 U.S. at 347, 106 S.Ct. 668.

IV

America faces an epidemic of suicide by individuals in custody. According to the Bureau of Justice Statistics, suicide has been the leading cause of death in jails every year since 2000. Margaret Noonan et al., U.S. Dep’t of Justice, Mortality in Local Jails and State Prisons, 2000-2013 — Statistical Tables 1 (2015), available at http://www.bj s.gov/content/pub/pdf/ mljsp0013st.pdf. In 2013, more than a third of jail inmate deaths were due to suicide. Id. In 2015, there were 33 suicides in county jails in Texas. Dana Liebelson & Ryán J. Reilly, Sandra Bland Died One Year Ago, Huffington Post — Highline (July 13, 2016), http://highline.huffingtonpost. com/articles/en/sandra-bland-jail-deaths/. Yet preventing detainee suicides is far from impossible. Brazos County, Texas, makes an effort to keep people with mental health issues out of jail, diverting individuals to mental health facilities instead of charging them with a crime. The county jail also screens inmates twice, first with an officer and then with a nurse. As a result, the jail, which houses roughly 650 inmates, has had only one suicide in the past decade. Id.

It is clear that more can and must be done to address suicides in prisons and jails. Nevertheless, “[d]eliberate indifference is an extremely high standard to meet.” Domino v. Texas Dep’t of Crim. Justice, 239 F.3d 752, 756 (5th Cir. 2001). Officer Thomas took measures to prevent Jason Hyatt’s suicide: she withheld from him the most obvious potential ligature, placed him under video surveillance, and directed her relieving officer to keep a close watch over him. Although these measures were ultimately, and tragically, insufficient, we cannot say that they constitute deliberate indifference. The judgment of the district court granting summary on grounds of qualified immunity is therefore AFFIRMED.