author: AGEE, Circuit Judge:

text:
    John DOE #1; John Doe #2; John Doe #3; John Doe #4; John Doe #5, Plaintiffs-Appellees, v. Roy A. COOPER, III, Attorney General of the State of North Carolina; Frank Parrish, District Attorney, District 01; Seth Edwards, District Attorney, District 02; Kimberly Robb, District Attorney, District 03A; Scott Thomas, District Attorney, District 03B; Ernie Lee, District Attorney, District 04; Ben David, District Attorney, District 05; Melissa Pelfrey, District Attorney, District 06A; Valerie Asbell, District Attorney, District 06B; Robert Evans, District Attorney, District 07; Branson Vickory, District Attorney, District 08; Sam Currin, District Attorney, District 09; Wallace Bradsher, District Attorney, District 09A; Colon Willoughby, Jr., District Attorney, District 10; Vernon Stewart, District Attorney, District 11A; Susan Doyle, District Attorney, District 11B; Billy West, District Attorney, District 12; Jon David, District Attorney, District 13; Leon Stanback, District Attorney, District 14; Pat Nadolski, District Attorney, District 15A; James Woodall, Jr., District Attorney, District 15B; Kristy Newton, District Attorney, District 16A; Johnson Britt, III, District Attorney, District 16B; Phil Berger, Jr., District Attorney, District 17A; Ricky Bowman, District Attorney, District 17B; Doug Henderson, District Attorney, District 18; Roxann Vaneekhoven, District Attorney, District 19a; Garland Yates, District Attorney, District 19B; Brandy Cook, District Attorney, District 19C; Maureen Krueger, District Attorney, District 19D; Reece Saunders, District Attorney, District 20A; Trey Robison, District Attorney, District 20B; Jim O’Neill, District Attorney, District 21; Sarah Kirkman, District Attorney, District 22A; Garry Frank, District Attorney, District 22B; Tom Horner, District Attorney, District 23; Jerry Wilson, District Attorney, District 24; Jay Gaither, District Attorney, District 25; Andrew Murray, District Attorney, District 26; Locke Bell, District Attorney, District 27A; Rick Shaffer, District Attorney, District 27B; Ronald Moore, District Attorney, District 28; Brad Greenway, District Attorney, District 29A; Gregory A. Newman, District Attorney, District 29B; Michael Bonfoey, District Attorney, District 30, Defendants-Appellants, and Pat McCrory, Governor of the State of North Carolina, Defendant. John Doe #1; John Doe #2; John Doe #3; John Doe #4; John Doe #5, Plaintiffs-Appellees, v. Roy A. Cooper, III, Attorney General of the State of North Carolina; Frank Parrish, District Attorney, District 01; Seth Edwards, District Attorney, District 02; Kimberly Robb, District Attorney, District 03A; Scott Thomas, District Attorney, District 03B; Ernie Lee, District Attorney, District 04; Ben David, District Attorney, District 05; Melissa Pelfrey, District Attorney, District 06a; Valerie Asbell, District Attorney, District 06B; Robert Evans, District Attorney, District 07; Branson Vickory, District Attorney, District 08; Sam Currin, District Attorney, District 09; Wallace Bradsher, District Attorney, District 09A; Colon Willoughby, Jr., District Attorney, District 10; Vernon Stewart, District Attorney, District 11a; Susan Doyle, District Attorney, District 11B; Billy West, District Attorney, District 12; Jon David, District Attorney, District 13; Leon Stanback, District Attorney, District 14; Pat Nadolski, District Attorney, District 15A; James Woodall, Jr., District Attorney, District 15B; Kristy Newton, District Attorney, District 16A; Johnson Britt, III, District Attorney, District 16B; Phil Berger, Jr., District Attorney, District 17A; Ricky Bowman, District Attorney, District 17B; Doug Henderson, District Attorney, District 18; Roxann Vaneekhoven, District Attorney, District 19a; Garland Yates, District Attorney, District 19B; Brandy Cook, District Attorney, District 19C; Maureen Krueger, District Attorney, District 19D; Reece Saunders, District Attorney, District 20A; Trey Robison, District Attorney, District 20B; Jim O’Neill, District Attorney, District 21; Sarah Kirkman, District Attorney, District 22A; Garry Frank, District Attorney, District 22B; Tom Horner, District Attorney, District 23; Jerry Wilson, District Attorney, District 24; Jay Gaither, District Attorney, District 25; Andrew Murray, District Attorney, District 26; Locke Bell, District Attorney, District 27A; Rick Shaffer, District Attorney, District 27B; Ronald Moore, District Attorney, District 28; Brad Greenway, District Attorney, District 29A; Gregory A. Newman, District Attorney, District 29B; Michael Bonfoey, District Attorney, District 30, Defendants-Appellants, and Pat McCrory, Governor of the State of North Carolina, Defendant.
    No. 16-6026, No. 16-1596
    United States Court of Appeals, Fourth Circuit.
    Argued: September 21, 2016
    Decided: November 30, 2016

      ARGUED: Matthew L. Boyatt, North Carolina Department of Justice, Raleigh, North Carolina, for Appellants. Paul Moore Dubbeling, P.M. Dubbeling PLLC, Chapel Hill, North Carolina, for Appellees. ON BRIEF: Roy Cooper, North Carolina Attorney General, Hal F. Askins, Special Deputy Attorney General, William P. Hart, Jr., Assistant Attorney General, North Carolina Department of Justice, Raleigh, North Carolina, for Appellants.
    Before MOTZ, TRAXLER, and AGEE, Circuit Judges.
   Affirmed by published opinion. Judge AGEE wrote the opinion; in which Judge MOTZ and Judge TRAXLER joined.

AGEE, Circuit Judge:

The State of North Carolina requires persons convicted of certain reportable sex offenses to register as “sex offenders,” See N.C. Gen. Stat. § 14-208.6(4); id.' § 14-208.7(a). For persons convicted of a subset of those reportable sex offenses, North Carolina restricts their movement relative to certain locations where minors may be present. See id. § 14-208.18(a) (2015).

John Does #1 through #5 (collectively, the “Does”) challenged these statutory restrictions as either overbroad, under the First Amendment to the United States Constitution, or unconstitutionally vague, under the Fourteenth Amendment. The district court agreed with the Does as to two subsections of the statute and permanently enjoined enforcement of section 14-208.18(a)(2) and section 14-208.18(a)(3). For the reasons set out below, we affirm the judgment of the district court.

I.

We begin with an overview of North Carolina’s sex offender registration laws. Persons with a “reportable conviction” of a sex offense, and who live in North Carolina, must register “with the sheriff of the county where the person resides.” See N.C. Gen. Stat. § 14-208.7(a). During the registration period, which generally lasts for “at least 30 years following the date of initial county registration,” id., the movements of all registered sex offenders are restricted in certain circumstances. For example, a registered sex offender may not “knowingly reside within 1,000 feet of the property on which any public or nonpublic school or child care center is located.” Id. § 14-208.16(a).

Some registered sex offenders are subject to additional restrictions under section 14-208.18(a). That statute provides that it shall be unlawful for any registered offender whose registration follows a conviction for a violent sex offense or any offense where the victim was younger than sixteen at the time of the offense (“restricted sex offenders”) to “knowingly be” at any of the following locations:

(1) On the premises of any place intended primarily for the use, care, or supervision of minors, including, but not limited to, schools, children’s museums, child care centers, nurseries, and playgrounds.
(2) Within 300 feet of any location intended primarily for the use, care, or supervision of minors when the place is located on premises that are not intended primarily for the use, care, or supervision of minors, including, but not limited to, places described in subdivision (1) ... that are located in malls, shopping centers, or other property open to the general public.
(3) At any place where minors gather for regularly scheduled educational, recreational, or social programs.

Id. § 14-208.18(a).

Those limitations on restricted sex offenders are subject to certain exceptions. For example, a restricted sex offender who is also the “parent or guardian of a student enrolled in a school may be present on school property” to attend a parent-teacher conference, at the request of the school’s principal, or “for any other reason relating to the welfare or transportation of the child.” Id. § 14-208.18(d).

Absent one of the statutory exceptions, a restricted sex offender who is “knowingly” at or on á restricted premises is guilty of a Class H felony under North Carolina law. Id. § 14-208.18(h). A Class H felony conviction carries with it a presumptive term of imprisonment of up to twenty months. See id. § 15A-1340.17.

II.

A.

The Does are restricted sex offenders. In 1995, John Doe #1 pleaded guilty to receiving material involving the sexual exploitation of a minor, a violation of 18 U.S.C. § 2252(a)(2). As a result, he served five years in federal prison, but, as of 2003, is no longer under any type of probation, parole, or supervised release. After his release, John Doe #1 attended a church, but eventually was arrested because the church had a child care center within 300 feet of the main congregation hall. The local district attorney initially charged John Doe #1 with a violation of section 14-208.18(a), but the charge was dropped. Afterward, John Doe #1 was allowed to continue attending church subject to a number of restrictions set by the .district attorney. Those restrictions included a prohibition on “assisting” with worship services and engaging in any church activities outside of the main worship service. J.A. 137.

In 2011, John Doe #2 was convicted of misdemeanor sexual battery, a “violent sex offense,” and given a probationary sentence. As a result of his conviction, John Doe #2 was advised by the local sheriff against attending his minor son’s educational and recreational activities “just to be on the safe side.” J.A. 69. John Doe #2 has received conflicting information from the local sheriff and his probation officer as to whether he can attend his son’s sporting events remotely, via technology such as “Skype.” In like fashion, he was also advised by his probation officer against visiting a wide variety of other places, including a fast food restaurant with an attached play area, the North Carolina State Fairgrounds, and adult softball league games (given the field’s proximity to playground equipment).

In 2002, John Doe #3 was convicted of committing indecent liberties with a minor, a violation of N.C. Gen. Stat. § 14-202.1, and he served four years in prison. John Doe #3 is now employed and his current job responsibilities require him to purchase office supplies. However, the local sheriff advised John Doe #3 he could be arrested for shopping at an office supply store that is within 300 feet of a fast food restaurant with an attached children’s play area. Further, John Doe #3 is unsure whether he can drive within 300 feet of some locations while on his way to work or visit the North Carolina State Legislative Building, the meeting place of the North Carolina General Assembly, given its proximity to the North Carolina Museum of Natural Sciences, which may have visiting children.

John Doe #4 was convicted in 2007 of attempted solicitation of a minor, a violation of N.C. Gen. Stat. § 14-202.3. He received a suspended sentence of thirty months, spent ten weekends in intermittent confinement, and completed thirty months of probation. He currently wishes to attend church, but is concerned doing so might violate section 14-208.18(a) because the church has classes for children. In addition, he claims he cannot attend a town council meeting, since the town hall is in close proximity to the public library, which has a dedicated children’s section.

John Doe #5 was convicted in 2009 of two counts of misdemeanor sexual battery, for which he received two suspended seventy-five day sentences and completed eighteen months of supervised probation. Following his conviction, John Doe #5 was awarded joint custody of his two minor children. However, he is unable to participate significantly in his children’s educational or recreational activities due to the restrictions imposed by section 14-208.18(a). In addition, like John Does #1 and #4, John Doe #5 wishes to attend church, but is concerned that his presence may violate section 14-208.18(a) because the church has programs for children. Finally, John Doe #5 is concerned he may violate the statute while working, because his employer, a construction company, sometimes performs projects inside areas that may be covered by section 14-208.18(a).

B.

The Does filed this action against Pat McCrory, North Carolina’s Governor; Roy Cooper, North Carolina’s Attorney General; and each of North Carolina’s elected district attorneys 1 (collectively, the “State”). They challenged each subsection of section 14-208.18(a) as overbroad, in violation of the First Amendment to the United States Constitution, and unconstitutionally vague, in violation of the Fourteenth Amendment’s Due Process Clause. They requested declaratory and injunctive relief under 42 U.S.C. § 1983 and 28 U.S.C. § 2201.

The district court granted the State’s Rule 12(b)(6) motion and dismissed the Does’ overbreadth claim as to section 14-208.18(a)(1). Later, the district court granted summary judgment to the. State on the Does’ section 14-208.18(a)(l) vagueness claim. The Does do not challenge these rulings on appeal.

The parties filed cross motions for summary judgment regarding the alleged vagueness and overbreadth of subsections (a)(2) and (a)(3). The district court held subsection (a)(2) was not unconstitutionally vague. However, the district court found strong indicia of vagueness as to subsection (a)(3), noting language, such as “places where minors gather,” was unbounded in scope. And, unlike the other subsections of the statute, subsection (a)(3) was not informed by any specific list of examples. Further, the district court pointed out that subsection (a)(3)’s reference to “regularly scheduled” activities was too vague for an ordinary person to determine its application. Accordingly, the district court ruled subsection (a)(3) was unconstitutionally vague as violative of due process and permanently enjoined its enforcement. The State immediately appealed the district court’s permanent injunction of subsection (a)(3). We have jurisdiction of that appeal pursuant to 28 U.S.C. § 1292(a)(1).

The district court denied the Does’ motion for summary judgment on the separate, remaining issue of whether subsection (a)(2) was overbroad and grantéd the State’s cross motion in part. As the district court set out in its opinion, subsection (a)(2) was not overbroad to the extent it generally “prohibited] them from going to a variety of places, including libraries, museums, parks, recreation centers, theaters, state or county fairs, the General Assembly[,] religious services, movies, and certain private homes.” J.A. 169. Stated another way, the district court held that, even though subsection- (a)(2) incidentally restricted the Does’ access to certain locations where activities protected by the First Amendment would occur, it was not overbroad with respect to the particular place restrictions.

However, the district court also determined that a genuine issue of material fact existed as' to whether subsection (a)(2)' was overbroad “in that it could burden less First Amendment activity by taking into account the individual dangerousness of certain restricted sex offenders.”. J.A. 173. The district court noted “an inquiry into dangerousness” was proper “in that if subsection (a)(2) burdens the First Amendment rights of sex. offenders who pose little or no risk to minors,” then the statute could be overbroad. J.A. 174. Accordingly, because “the parties [did] not thoroughly address) ] th[e] crucial issue” of “whether applying [subsection (a)(2)] to restricted sex offenders who committed offenses not involving minors furthers [North Carolina’s] interest in protecting minors,” the district court denied the motions for summary judgment and set that issue for trial. J.A. 176-77.

Before trial, the parties filed renewed cross motions for summary judgment on the issue of subsection (a)(2)’s over-breadth. As recited in the, district court’s opinion, at a status conference on the motions:

The Court expressed to Defendants that their evidentiary showing up to that point was likely inadequate to carry their burden of showing that subsection (a)(2) furthers [North Carolina’s] interest in protecting minors from sexual crimes without burdening substantially more speech than necessary, particularly as their showing related to adult-victim offenders. Hence, the Court asked Defendants if there, was additional evidence they wished to obtain and provide to the Court in support of their Renewed Motion for Summary Judgment. Defendants stated that they would rely upon the evidence already provided to the Court and would not provide additional evidence. The parties agreed that a trial was unnecessary, that a trial would merely duplicate the evidence already presented, and that the Court should resolve the remaining issue as a matter of law based upon the evidence that had been presented.

Suppl. J.A. 155.

The district court then granted summary judgment to the Does, holding, on the record before it, subsection (a)(2) was facially overbroad in violation of the First Amendment. In the district court’s view, subsection (a)(2), although facially neutral, significantly impaired restricted sex offenders’ exercise of core First Amendment rights without taking into consideration the dangerousness of the particular offender. In other words, subsection (a)(2) was overbroad because it affected the ability of all restricted sex offenders to engage in core First Amendment activities, such as attending a religious service or congregating in some public fora, regardless of whether a particular restricted sex offender had ever abused minors or was likely to do so.

The district court agreed the State had a legitimate and substantial interest in protecting minors, but concluded the State failed to meet its burden of proof to show subsection (a)(2) was narrowly tailored to further that interest. As a result, the district eourt permanently enjoined enforcement of subsection (a)(2) and entered judgment in the Does’ favor.

The State timely appealed that judgment. We have jurisdiction over that appeal under 28 U.S.C. § 1291.

III.

We review de novo the district court’s rulings concerning the constitutionality of a state statute. See Miller v. Brown, 503 F.3d 360, 364 (4th Cir. 2007).

A.

The State first challenges the district court’s ruling that subsection (a)(3) is unconstitutionally vague and, thus, violates the Due Process Clause of the Fourteenth Amendment. In relevant part, the Fourteenth Amendment provides that “[n]o State shall ... deprive any person of life, liberty, or property, without due process of law[.]” U.S. Const, amend. XIV, § 1. A state law violates due process if it “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” Martin v. Lloyd, 700 F.3d 132, 135 (4th Cir. 2012). “The prohibition of vagueness in criminal statutes is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law[.]” Johnson v. United States, 576 U.S. -, 135 S.Ct. 2551, 2556-57, 192 L.Ed.2d 569 (2015).

As noted earlier, subsection (a)(3) states that a restricted sex offender may not “knowingly be ... [a]t any place where minors gather for regularly scheduled educational, recreational, or social programs.” N.C. Gen. Stat. § 14-208.18(a)(3). When read alongside subsections (a)(1) and (a)(2), the State contends subsection (a)(3) has a clear “core” meaning. Although the State concedes the three subsections of section 14-208.18(a) “constitute separate offenses,” it posits “they are nevertheless interrelated and must therefore be construed in pari materia.” Appellants’ Opening Br. 10-11. When read that way, the State concludes, “[n]o ordinary person would read [section] 14-208.18(a) in its entirety and be unclear as to” the meaning of subsection (a)(3). Appellants’ Opening Br. 11. The district court disagreed, and so do we.

When applying the constitutional vagueness doctrine, the Supreme Court distinguishes between statutes that “require[ ] a person to conform his conduct to an imprecise but comprehensible normative standard” and those that specify “no standard of conduct.” Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971). Statutes falling into the former category have, as the State terms it, a constitutional “core” in the sense that they “apply without question to certain activities,” even though their application in marginal situations may be a close question. Parker v. Levy, 417 U.S. 733, 755-56, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974). Conversely, those statutes that fall into the latter category are unconstitutionally vague. The distinction between these two types of statutes, in some instances, may be somewhat difficult to decipher. Indeed, an unconstitutionally vague statute may still have some clearly constitutional applications. See Johnson, 135 S.Ct. at 2560-61.

But where a statute specifies no standard, the fact that it has one or more clearly constitutional applications cannot save it. See id. Supreme Court precedent “squarely contradict[s] the theory that a vague provision is constitutional merely because there is some conduct that clearly falls within the provision’s grasp.” Id. That is the case here. Subsection (a)(3) is unconstitutionally vague, even though some conduct may “fall[ ] within.[its] grasp,” id. because it fails to “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. 1855, 75 L.Ed.2d 903 (1983).

Two principal problems are evident in subsection (a)(3) which compel the conclusion it is unconstitutionally vague. In particular, a reasonable person, whether a restricted sex offender or a law enforcement officer, cannot reasonably determine (1) whether a program for minors is “regularly scheduled” or (2) what places qualify as those “where minors gather.”

The district court succinctly explained these deficiencies with respect to the “regularly scheduled” provision:

The first problem stems from the language “regularly scheduled.” The term “regular” means happening at fixed intervals[, periodic]. Even if a restricted sex offender or law enforcement officer knew precisely how often and where the “scheduled programs” took place, the statute provides no principled standard at all for determining whether such programs are “regularly scheduled.”
Notably, subsection (a)(3) provides no examples to guide restricted sex offenders or law enforcement as to how frequently the programs would need to occur in order to be “regularly scheduled.” In contrast, subsection (a)(1) provides examples of (a)(1) “places” and subsection (a)(2) provides examples of (a)(2) “premises” upon which a “location” or “place” might be. This case is distinguishable from other cases holding restrictions that included the word “regularly” or variants of “frequently” to be not vague because those restrictions included examples to clarify which locations were restricted.

J.A. 157-59. Moreover, although not necessary to our conclusion, the State’s own evidence confirms the difficulty in determining whether a program for minors is “regularly scheduled.” For example, District Attorney Todd Williams admitted subsection (a)(3) “gives no clear guidance” regarding the frequency with which an activity must be conducted to be “regularly scheduled.” J.A. 159.

Likewise, subsection (a)(3)’s “where minors gather” language is without defining standards. The district court’s opinion accurately expresses the constitutional issue:

For example, subsection (a)(3) does not explain how many minors must gather at the place. Subsection (a)(3) also does not explain whether a place where mixed groups of minors and adults gather, such as a community college that has some high school students or a church with a congregation of adults and minors, would be considered a restricted zone under subsection (a)(3). As was the case with the term “regularly scheduled,” subsection (a)(3) is distinguishable from other instances where similar formulations have been held to be not vague because those cases involved general language that was accompanied by examples rather than general language standing alone.

J.A. 159-60.

The State attempts to overcome these deficiencies by appealing to the in pari materia canon of construction. In essence, the State contends subsection (a)(3) should be saved by reading into it the list of places specifically included in subsection (a)(1) and incorporated by reference in subsection (a)(2). That argument lacks merit.

We have “interpreted the principle [of in pari materia] to mean that adjacent statutory subsections that refer to the same subject matter should be read harmoniously.” United States v. Broncheau, 645 F.3d 676, 685 (4th Cir. 2011). But the in pari materia principle does not apply here by virtue of the structure of subsection (a)(3) as "written by the North Carolina General Assembly. Directly to that point, subsection (a)(3) conspicuously omits any list of examples, in contrast to subsection (a)(1). In addition, subsection (a)(3) contains no language suggesting that such a list should be read into it, in contrast to subsection (a)(2). We must presume the legislature’s omissions to be intentional. See, e.g., Jones v. Comm’r, 642 F.3d 459, 463 (4th Cir. 2011) (“[W]hen a statute includes particular language in one section but omits it in another, a court can assume ... that the omission was deliberate.”); N.C. Dep’t of Revenue v. Hudson, 196 N.C.App. 765, 675 S.E.2d 709, 711 (2009) (“When a legislative body includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that the legislative body acts intentionally and purposely in the disparate inclusion or exclusion.”). We cannot, therefore, read by judicial construction into subsection (a)(3) that which the legislature chose to omit.

Even if we were to read subsection (a)(l)’s list of examples into subsection (a)(3), other problems would arise. “[A] statute should be construed so that effect is given to all its provisions, so that no part will.be inoperative or superfluous, void or insignificant[.]” Corley v. United States, 556 U.S. 303, 314, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009); accord State v. Coffey, 336 N.C. 412, 444 S.E.2d 431, 434 (1994). Reading subsection (a)(1) s list of examples into- subsection ’ (a)(3) would effectively make the two provisions identical, thereby rendering one of those subsections “superfluous” or “insignificant.” Corley, 556 U.S. at 314, 129 S.Ct. 1558. For instance, the examples listed in subsection (a)(1) and incorporated by reference into subsection (a)(2)—schools, children’s museums, childcare centers, and playgrounds—are places “intended primarily for the use, care, or supervision of minors.” N.C. Gen. Stat. § 14-208.18(a)(1) & (a)(2). But, those same places also are “placets] where minors gather for regularly scheduled educational, recreational, or social programs.” Id. § 14-208.18(a)(3). Thus, . to read subsection (a)(l)’s list into subsection (a)(3) would be to effectively swallow subsections (a)(1) and (a)(2), leaving them “only to define the limits of the proscribed ‘placets]’” then incorporated into subsection (a)(3). Appel-lees’ Response Br. -14. Subsection (a)(3) cannot be saved by reading subsection (a)(1) into it and, thereby, diminishing or subsuming the importance of other clear legislative judgments.

In sum, neither an. ordinary citizen nor a law enforcement officer could reasonably determine what activity was criminalized by subsection (a)(3). As a consequence, that subsection does not meet the standards of due process because it is unconstitutionally vague. Accordingly, the district court did not err in granting summary judgment as to subsection (a)(3).

B.

The State separately challenges the district court’s holding that subsection (a)(2) is unconstitutionally overbroad in violation of the First Amendment. As the proponent of subsection (a)(2), the State was required 'to prove that it “promotes a substantial government interest that would be achieved less effectively absent the regulation” and does not “burden substantially more speech than is necessary to further the government’s legitimate interests.” Ward v. Rock Against Racism, 491 U.S. 781, 799, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). As we explain below, the State failed to meet its burden of proof.

1.

Under the overbreadth doctrine, if a law “punishes a substantial amount of protected free speech, judged in relation to the statute’s plainly legitimate sweep,” then it is invalid “until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression.” Virginia v. Hicks, 539 U.S. 113, 118-19, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003). Any overbreadth must be both “real” and “substantial” in order to be constitutionally deficient. Hill v. Colorado, 530 U.S. 703, 732, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000). Although “substantial” overbreadth is not “readily reduced” to a mathematical formula, “there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds.” Members of the City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 800-01, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984).

Subsection (a)(2) burdens the First Amendment rights of all restricted sex offenders “by inhibiting the[ir] ability ... to go to a wide variety of places associated with First Amendment activity.” Suppl. J.A. 158. For example, subsection (a)(2) potentially impedes the ability of restricted sex offenders to access public streets, parks, and other public facilities. See Hague v. Comm. for Indus. Org., 307 U.S. 496, 515, 59 S.Ct. 954, 83 L.Ed. 1423 (1939) (“Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.”). The issue presented to the district court, and now on appeal, is whether subsection (a)(2) is overbroad because it places substantial limitations of movement on restricted sex offenders without regard to the dangerousness of the individual offender. Put another way, we must decide whether subsection (a)(2) is overbroad because it applies to all restricted sex offenders, not just those who pose a danger to minors or are likely to pose such a danger.

2.

In analyzing overbreadth, we initially identify the appropriate level of scrutiny to apply to the statute. Because subsection (a)(2) implicates protected First Amendment activities, our first task is to determine whether it is “content neutral.” “If the regulation was adopted to burden disfavored viewpoints or modes of expression, a court applies strict scrutiny.” Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 512 (4th Cir. 2002). Conversely, if the statute “was adopted for a purpose unrelated to the suppression of expression—e.g., to regulate conduct, or the time, place, and manner in which expression may take place—a court must apply a less demanding intermediate scrutiny.” Id. at 512-13; see also Texas v. Johnson, 491 U.S. 397, 406-07, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989).

The parties stipulate that subsection (a)(2) is content neutral and we agree. The statute does not burden disfavored viewpoints or certain modes of expression. Rather, it merely restricts the time, place, or mariner in which restricted sex offenders may engage in certain activities protected by the First Amendment. Thus, we apply intermediate scrutiny.

To pass intermediate scrutiny, a statute must “materially advance[] an important or substantial [government] interest by redressing past harms or preventing future ones.” Giovani Carandola, Ltd. v. Fox, 470 F.3d 1074, 1082 (4th Cir. 2006). In addition, it must have the right “fit.” That is, it cannot “burden substantially more speech than is necessary to further the government’s legitimate interests.” Ward, 491 U.S. at 799, 109 S.Ct. 2746. “[I]ntermediate scrutiny places the burden of establishing the required fit squarely upon the government.” United States v. Chester, 628 F.3d 673, 683 (4th Cir. 2010).

3.

As noted previously, at a status conference held prior to considering the parties’ renewed cross motions for summary judgment, the district court put the State on notice that its limited evidence was inadequate to meet its burden of proof. Yet, the State explicitly declined to introduce any additional evidence. The only “evidence” proffered by the State consisted of citations to a list of cases in which sex offenders had re-offended after a prior conviction.

In its order granting the Does’ renewed motion for summary judgment, the district court addressed the State’s evidentiary deficit:

Defendants’ decision to not provide expert testimony or statistical reports to the Court was somewhat unexpected. Defendants stated at the status conference that it would not be difficult for them to find an expert to support their case. Yet, Defendants chose not to seek out an expert even after repeated inquiries from the Court regarding whether they desired to do so and after the Court expressly stated that it believed that Defendants’ evidentiary offering was inadequate to carry their burden in this case.

Suppl. J.A. 168.

The State tries to overcome its lack of data, social science or scientific research, legislative findings, or other empirical evidence with a renewed appeal to anecdotal case law, as well as to “logic and common sense.” Appellants’ Suppl. Opening Br. 11. But neither anecdote, common sense, nor logic, in a vacuum, is sufficient to carry the State’s burden of proof. See United States v. Carter, 669 F.3d 411, 418-19 (4th Cir. 2012). Thus, while the State’s argument may be conceptually plausible, it presented no evidence or data to substantiate it before the district court.

In fact, the State’s own evidence belies its appeal to “common sense” as an appropriate substitute for evidence. In its brief, the State cites three North Carolina cases, State v. Smith, 201 N.C.App. 681, 687 S.E.2d 525 (2010); State v. Tyson, 195 N.C.App. 327, 672 S.E.2d 700 (2009); and State v. Smith, 152 N.C.App. 514,568 S.E.2d 289 (2002), for the proposition that “sexual deviants choose victims based upon opportunity/vulnerability rather than the age of the victim or level of ‘romantic’ attraction akin to that of husband and wife.” Appellants’- Suppl. Opening Br. 18-19. However, the State fails to explain how three cases, representing three individuals—out of more than 20,000 registered North Carolina sex offenders—provide a sufficient basis to justify subsection (a)(2)’s sweeping restrictions. Although each of these cases involved a minor victim, there was no evidence in any case that the defendant had ever been convicted of a previous sex offense.

Similarly, the State cannot rest its case on the conclusory assertion that minors would be “more exposed to harm without [this] prohibition than with it.” Appellants’ Suppl. Opening Br. 10. Without empirical data or other similar credible evidence, it is not possible to tell whether subsection (a)(2)—and specifically its application to offenders with only adult' victims—responds at all to the State’s legitimate interest in protecting minors from sexual assault.

Finally, although the State cites United States v. Staten, 666 F.3d 154 (4th Cir. 2011), to bolster its appeal to “common sense,” that case is inapposite. In Staten, this Court upheld 18 U.S.C. § 922(g)(9) against a Second Amendment challenge, reasoning “common sense and case law fully support[ed]” restricting persons convicted of misdemeanor crimes of domestic violence from possessing firearms. Id. at 161. However, our appeal to “common sense” in Staten only bolstered the government’s already strong case, which was fully supported by empirical proof in the form of data generated from relevant social science research. See id. at 164-65 (discussing empirical research supplied by the government).

While all parties agree North Carolina has a substantial interest in protecting minors from sexual crimes, it was incumbent upon the State to prove subsection (a)(2) was appropriately tailored to further that interest. Nevertheless, for reasons not apparent from the record, the State failed to produce evidence to carry that burden. Thus, irrespective of whether subsection (a)(2) could have met constitutional standards in a different evidentiary setting, the State here simply failed to meet its burden of proof. See, e.g., McCullen v. Coakley, 573 U.S. -, 134 S.Ct. 2518, 2539-40, 189 L.Ed.2d 502 (2014) (“Respondents point us to no evidence that individuals regularly gather at other clinics, or at other times in Boston, in sufficiently large groups to obstruct access.”); Chester, 628 F.3d at 683 (“[I]ntermediate scrutiny places the burden of establishing the required fit squarely upon the government.”).

Accordingly, the district court did not err in granting the Does’ motion for summary judgment as to subsection (a)(2).

IV.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

      . Section 14-208.18 was amended effective September 1, 2016. This case involves the 2015 version of that statute, and all references to section 14-208.18 herein are to the 2015 version. The provisions of the amended statute are not at issue in this case.

      . A "violent sex offense,” as applicable here, .is "[a]ny offense in Article 7B of [N.C. Gen. Stat.] Chapter [14] or any federal offense or offense committed in another state, which if committed in this State, is substantially similar to an offense in Article 7B of this Chapter.” N.C. Gen. Stat. § 14-208.18(c)(1). Article 7B of N.C. Gen. Stat. Chapter 14, entitled "Rape and other Sex Offenses,” includes the offenses of: first-degree forcible rape, second-degree forcible rape, statutory rape of a child by an adult, first-degree statutory rape, statutory rape of a person who is fifteen years of age or younger, first-degree forcible sexual offense, second-degree forcible sexual offense, statutory sexual offense with a child by an adult, first-degree statutory sexual offense, statutory sexual offense with a person who is fifteen years of age or younger, sexual activity by a substitute parent or custodian, sexual activity with a student, and sexual battery. See id. §§ 14-27.21 through 14-27.33.

      . We have omitted internal quotation marks, alterations, and citations here and throughout this opinion, unless otherwise noted.

      . The State’s appeal of the district court’s final judgment came after briefing on its earlier interlocutory appeal regarding subsection (a)(3) was completed. The State’s two appeals were consolidated for purposes of this proceeding, with the issue of subsection (a)(2)’s overbreadth addressed through supplemental briefing.

      . The case law examples relied on by the State do not nudge the needle in its favor. For example, in People v. Loy, 52 Cal.4th 46, 127 Cal.Rptr.3d 679, 254 P.3d 980 (2011), the defendant first offended with a minor victim, then re-offended with an adult victim. See id,, 127 Cal.Rptr.3d 679, 254 P.3d at 988. The facts of that case do not suggest that a restricted sex offender, who first offends with an adult victim, is likely to re-offend with a minor victim. The same is true for People v. Hollie, 180 Cal.App.4th 1262, 103 Cal.Rptr.3d 633, 637-39 (2010). Other cases cited by the State suggest, for example, that a restricted sex offender may develop and retain an attraction for a particular individual. See State v. Smith, 201 N.C.App. 681, 687 S.E.2d 525, 527 (2010). None of these cases suggest with any degree of reliability that offenders with only adult victims are more likely to reoffend with minors.

      . Nor is the State’s appeal to the policy underlying Federal Rule of Evidence 413 persuasive. That rule provides in relevant part “[i]n a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault.” Fed. R. Evid. 413(a). The State cites Rule 413 as "evidence” that "Congress has clearly drawn the connection between past sexually assaultive conduct and the likelihood of future sexually assaultive conduct regardleks of victim age.” Appellants’ Suppl. Opening Br. 15. However, the State confuses the rule’s suggestion that sex offenders are likely to re-offend with the more pointed, and very different, proposition that sex offenders with only adult victim offenses are likely to re-offend with a minor victim.

      . There' currently are more than 21,000 sex offenders registered in North Carolina. See Offender Statistics, N.C. Dep’t of Pub. Safety, http://sexoffender.ncsbi.gov/stats.aspx (last visited Nov. 29, 2016) (saved as ECF opinion attachment).

      . Section 922(g)(9) prohibits “any person ... who has been convicted in any court of a misdemeanor crime of domestic violence” from possessing a firearm. 18 U.S.C. § 922(g)(9).


source: Caselaw Access Project

author: THACKER, Circuit Judge:

license: Public Domain

text:
    Janet D. LEICHLING, individually, surviving spouse, and Personal Representative of the Estate of John G. Leichling; Dawn M. Rose, surviving daughter of John G. Leichling; Gregory A. Leichling, surviving son of John G. Leichling; Catherine L. Timms, surviving daughter of John G. Leichling; Helen Catterton, surviving daughter of John G. Leichling; John R. Leichling, surviving son of John G. Leichling, Plaintiffs-Appellants, v. HONEYWELL INTERNATIONAL, INC., Defendant - Appellee.
    No. 15-2263
    United States Court of Appeals, Fourth Circuit.
    Argued: October 25, 2016
    Decided: December 2, 2016

      ARGUED: Jeffrey John Utermohle, LAW OFFICES OP PETER G. ANGE-LOS, P.C., Baltimore, Maryland, for Appellants. Michael David Daneker, ARNOLD & PORTER LLP, Washington, D.C., for Appellee. ON BRIEF: Gary J. Ignatowski, Patrick A. Ciociola, LAW OFFICES OF PETER G.' ANGELOS, P.C., Baltimore, Maryland, for Appellants. Anne P. Davis, Eric A. Rey, Allyson Himelfarb, ARNOLD & PORTER LLP, Washington, D.C., for Appellee.
    Before AGEE, DIAZ, and THACKER, Circuit Judges.
   Affirmed by published opinion. Judge THACKER wrote the opinion, in which Judge AGEE and Judge DIAZ joined.

THACKER, Circuit Judge:

The survivors of John R. Leichling sued Honeywell International, Inc., alleging that Mr. Leichling’s fatal lung cancer resulted from exposure to toxins during his employment at the Dundalk Marine Terminal in Baltimore, Maryland, where Honeywell operates a chemical manufacturing plant. Decades earlier, Honeywell began using chemical refuse to create a landmass on which the Marine Terminal later sat. The district court dismissed the suit pursuant to Maryland’s^ 20-year statute of repose, which bars untimely claims for injuries resulting from a “defective and unsafe condition of an improvement to real property.” Md. Code Ann., Cts. & Jud. Proc. § 5-108(a). The court reásóned that, because the refuse filled otherwise aquatic areas and allowed development of the Marine Terminal, it was an improvement to real property. This appeal followed and, for the reasons below, we affirm.

I.

A.

From 1854 through 1985, Honeywell International, Inc. (“Appellee”) manufactured chromium, a heavy metal, at a plant in an area now known as Harbor Point in Baltimore, Maryland. This operation produced as much as 100,000 tons of waste per year, including chromium ore processing residues (“COPR”). COPR contains hexavalent chromium, which the Environmental Protection Agency classifies as a powerful carcinogen. Hexavalent chromium is water soluble and thus may spread through surface water, groundwater, and drinking water, and exposure may also occur through dust and dirt. The complaint states Appellee knew of the dangers associated with COPR as early as the 1930s.

Beginning in the 1940s, Appellee stockpiled COPR waste for extended periods at and around docks, piers, wharves, and other work areas at Harbor Point. During the same period, Appellee owned 85 acres of land adjacent to the Dundalk Marine Terminal. The following decade, Appellee began using COPR waste and other material as fill to expand this area.

In 1967, the Maryland Port Authority bought Appellee’s 85-acre property and used it to expand the Marine Terminal. The contract between Appellee and the Port Authority required Appellee to deposit in the Marine Terminal any COPR fill Appellee produced at its Baltimore plant, aside from quantities Appellee required for its own use, or pay the Port Authority for failing to do so. The Port Authority continued to utilize COPR fill for the Marine Terminal expansion until 1976.

B.

The survivors of John R. Leichling (“Appellants”) brought various tort claims against Appellee in the Circuit Court for Baltimore City, Maryland, asserting Mr. Leichling’s 2012 death from lung cancer resulted from COPR exposure during his employment as a longshoreman from 1973 through 2001 at the Dundalk Marine Terminal.

Appellee removed the case to the United States District Court for the District of Maryland and moved to dismiss, arguing Maryland’s statute of repose bars Appellants’ claims and, alternatively, Appellants fail to state plausible claims for relief. While the motion was pending, Appellants filed a Second Amended Complaint, to which Appellee responded via reply brief rather than a second motion to dismiss. The district court agreed with Appellee, holding Maryland’s statute of repose bars Appellants’ claims. The district court thus dismissed the claims with prejudice and this appeal followed.

II.

Dismissal under Federal Rule of Civil Procedure 12(b)(6) is subject to de novo review. See King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). An affirmative defense permits 12(b)(6) dismissal if the face of the complaint includes all necessary facts for the defense to prevail. See Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007). A court passing on a motion to dismiss may consider attachments to a complaint or the .motion to dismiss if “integral to the complaint and authentic.” Philips v. Pitt Cty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir. 2009). Because this is a diversity ease, Maryland law applies. See 28 U.S.C. § 1652; Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

III.

In the 1960s and 1970s, the demise of privity of contract as a defense and the introduction of the discovery rule increased liability for defective or unsafe conditions in improvements to real property. See Rose v. Fox Pool Corp., 335 Md. 351, 643 A.2d 906, 912-13 (1994). In response, states enacted statutes protecting those who would be particularly susceptible to claims arising from such improvements; Maryland’s statute .of repose is one such statute. See id. The statute provides, with limited exceptions,

no cause of action for damages accrues and a person may not seek contribution or indemnity for damages incurred when wrongful death, personal injury, or injury to real or personal property resulting from the defective and unsafe condition of an improvement to real property occurs more than 20 years after the date the entire improvement first becomes available for its intended use.

Md. Code Ann., Cts. & Jud. Proc. § 5-108(a). After courts applied the statute to bar claims against asbestos manufacturers, the Maryland General Assembly adopted an amendment to exclude asbestos from the protection of the statute of repose. This exception was adopted only after “considerable debate within the legislature.” Rose, 643 A.2d at 914 (discussing § 5-108(d)(l)).

Otherwise, the statute bars suits in which (1) a plaintiffs alleged injuries resulted from an “alleged defective and unsafe condition of ‘an improvement to real property* ”; and (2) 20 years have elapsed “since the ‘entire improvement first be[came] available for its intended use.’ ” Rose, 643 A.2d at 910 (alteration in original) (quoting § 5-108(a)). Here, Appellants only challenge the district court’s analysis of the first prong.

To determine whether an item is an “improvement,” courts apply a “common sense” test, which defines an improvement as

[a] valuable addition made to property (usually real estate) or an amelioration in its condition, amounting to more than mere repairs or replacement, costing labor or capital, and intended to enhance its value, beauty or utility or to adapt it for new or further purposes. Generally has reference to buildings, but may also include any permanent structure or other development, such as a street, sidewalks, sewers, utilities, etc. An expenditure to extend the useful life of an asset or to improve its performance over that of the original asset. Such expenditures are capitalized as part of the asset’s cost.

Rose, 643 A.2d at 918 (alteration in original) (quoting Black’s Law Dictionary 757 (6th ed. 1990)). In making this determination, courts consider “the nature of the addition or betterment, its permanence and relationship to the land and its occupants, and its effect on the value and use of the property.” Id. (citing Allentown Plaza v. Suburban Propane, 43 Md.App. 337, 405 A.2d 326, 332 (1979)).

Courts should not “artificially extract each component from an improvement to real property and view it in isolation.” Hickman, ex rel. Hickman v. Carven, 366 Md. 362, 784 A.2d 81, 38 (2001) (quoting Hilliard v. Lummus Co., 834 F.2d 1362, 1356 (7th Cir. 1987)). Instead, .an item may be “an improvement if it is an integral component of a project that, itself would qualify as an improvement.” Id. For example, in Hickman, ex rel. Hickman v. Carven, the Maryland Court of Appeals held that the statute of repose did not bar claims of residential subdivision lot owners against subdivision developers for demolishing a burial site. See id. at 38-39. The court reasoned that, though the developers may have removed the burial site while developing the land, doing so was not only unnecessary for development but also illegal and thus not an integral component of development. See id. Conversely, Rose applied the statute to bar a swimmer’s claims for injuries against a pool manufacturer because the pool was “a permanent addition, excavated and built into the real property, which enhances the value of the entire premises.” 643 A.2d at 918.

Here, like the district court, we are satisfied that Appellee’s use of COPR to expand and develop the Dundalk Marine Terminal is—if not an improvement to real property standing alone—at least an integral component of the project. See Hickman, 784 A.2d at 38.

Appellants argue against this conclusion, stating, “Honeywell’s toxic dumping made the area unsuitable for human use and development because it posed a tremendous and known threat to human health and the environment.” Appellants’ Br. 13 (emphasis in original). But neither the statute’s text nor its legislative history support this theory as ‘grounds for rendering the statute inapplicable. The language of the statute does not except hazardous conditions, much less known hazardous conditions. Indeed, such an exception would swallow the rule, which only applies to an “alleged defective or unsafe condition.” § 5-108(a). Moreover, in enacting the exception for asbestos manufacturers, the Maryland legislature was quite clear that the exception was limited to asbestos. See Rose, 643 A.2d at 917 (“The General Assembly expressly identified certain defendants to which subsection (a) does not apply.”). We are not positioned to create an additional exception for chromium manufacturers.

Appellants further argue the use of GOPR has decreased the value of the land in comparison to its hypothetical value with less hazardous fill. See Appellants’ Br. 17, The “common sense” test Maryland courts derive from the statute, however, belies this assertion. Rose, 643 A.2d at 918. Appellants’ allegations establish that Ap-pellee utilized COPR fill, to create a vast 86-acre parcel and transferred the parcel to the Maryland Port Authority, which used—and continues to use—the parcel as an active marine terminal. This expansion thus bestowed greater utility to both Ap-pellee and the Maryland Port Authority, see id. regardless of the wisdom of using hazardous materials to exact the expansion.

Indeed, viewing the expansion as a whole rather than the COPR fill “in isolation,” the record establishes that the fill was, in fact, an “integral component” to developing the parcel for its use as the Marine Terminal. Hickman, 784 A.2d at 38. Appellants’ reliance on Hickman is unavailing; there, the defendant’s burial site removal was not only “unlawful and prohibited” but also “not necessary” to develop the land. Id. at 38-39. Here, however, Appellee could not have developed the parcel into the Marine Terminal without a surface on which to build. The crucial difference between these cases thus lies in the purpose of the alleged improvement, not its alleged legal status. To hold otherwise'would render the statute inapplicable merely' if a plaintiff could concoct an allegation of illegality, as Appellants have done here. See, e.g„ Appellants’ Reply Br. 7-9.

The agreement between Appellee and the Port Authority shows the crucial roles—both functional and financial—the COPR fill played in expanding the Marine Terminal. Indeed, the agreement deemed the 86-acre parcel “required” for the “purpose of expanding the Dundalk Marine Terminal.” J.A. 221. Moreover, the agreement entitled the Port Authority to payment if Appellee failed to deposit COPR fill at the Marine Terminal, see id. at 223, indicating the financial significance of the fill to the Port Authority;

Appellee’s use of COPR fill in creating the landmass that later became the base for a large portion of the Dundalk Marine Terminal is thus an improvement to that property pursuant to Maryland’s statute of repose. Because Appellants concede that they brought their claims outside of the statute’s 20-year time bar, the district court did not err in dismissing these claims.

IV.

For the foregoing reasons, we affirm the district court’s dismissal.

AFFIRMED.

      . Because we are ruling on a motion to dismiss, we assume as true the facts as stated in the complaint. See A Soc'y Without A Name v. Virginia, 655 F.3d 342, 346 (4th Cir. 2011).

      . According to the complaint, Appellee bears successor liability for predecessor corporations that maintained chromium processing and production operations at Harbor Point, including Mutual Chemical Company, Allied Chemical & Dye Corporation, Allied Chemical Corporation, and Allied Signal, Inc., the last of which merged with Appellee in 1999.

      .Appellee provided its agreement with the Port Authority as an attachment to its briefing in support of dismissal. See J.A. 220-26. Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

      . Although the Hickman court merely assumed that the integral component doctrine applied for purposes of resolving that case, the doctrine has been widely accepted in other jurisdictions. See, e.g., Associated Elec. & Gas Ins. Servs. v. BendTec, Inc., 822 F.3d 420, 424 (8th Cir. 2016); Ambrosia Land Invs., LLC v. Peabody Coal Co., 521 F.3d 778, 781-83 (7th Cir. 2008); Durham v. Herbert Olbrich GMBH & Co., 404 F.3d 1249, 1255-57.(10th Cir. 2005); Adair v. Koppers Co., Inc., 741 F.2d 111, 114-16 (6th Cir. 1984). We thus have little reason to doubt that it ■ would find favor with Maryland courts.

      . This is not our first occasion to interpret .Maryland's statute of repose. In Pippin v. Reilly Industries, Inc., for example, we applied the statute to bar wrongful death claims against a utility pole designer stemming from the decedent’s collision with a utility pole. See 64 Fed.Appx. 382, 386 (4th Cir. 2003) (per curiam). We reasoned, because the wires and transformers had to sit in a safe position, -‘the pole was integral to provision of electricity.” Id. We also noted that although the company could have used other means to achieve this end, the pole was nonetheless an "ordinary and reasonable means” of doing so. Id,; see also Lewis v. Weldotron Corp., 5 Fed. Appx. 265, 268-69 (4th Cir. 2001) (barring claims stemming from shrink wrap system in brick manufacturing plant that required labor and capital for installation, enhanced value and utility of property, and was affixed to property with gas lines and bolts in concrete floor).


author: WILKINSON, Circuit Judge:

text:
    SEASIDE FARM, INC., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    No. 15-2562
    United States Court of Appeals, Fourth Circuit.
    Argued: October 26, 2016
    Decided: December 2, 2016

      ARGUED: Daniel A. Speights, SPEIGHTS & RUNYAN, Hampton, South Carolina, for Appellant. Michael Shih, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON' BRIEF: A. G. Solomons, III, SPEIGHTS & RUNYAN, Hampton, South Carolina, for Appellant. William B. Schultz, General Counsel, Daretia M. Hawkins, Senior Attorney, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Washington, D.C.; Elizabeth H. Dickinson, Chief Counsel, Michael Shane, Associate Chief Counsel for Enforcement, UNITED STATES FOOD AND DRUG ADMINISTRATION, Washington, D.C.; Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Mark B. Stern, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; William N. Nettles, United States Attorney, Barbara Bowens, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

      Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
   Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge NIEMEYER and Judge SHEDD . joined.

WILKINSON, Circuit Judge:

This case involves a Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680, suit by a tomato farmer against the United States. Seaside Farm, Inc., alleges that the Food and Drug Administration negligently issued a contamination warning in response to an outbreak of Salmonella Saintpaul that devalued Seaside’s crop by $15,036,293.96. The district court held that FDA was exercising a discretionary function in connection with the contamination warning and dismissed the case under 28 U.S.C. § 2680(a). That ruling was essential to protect FDA’s vital role in safeguarding the public food supply, and we affirm the judgment.

I.

Salmonella Saintpaul is a rare strain of bacteria that causes moderate-to-severe illness in humans. Symptoms include fever, diarrhea, nausea, and abdominal pain.. Salmonella can also enter the bloodstream and cause more serious health complications, including death. FDA consequently considers salmonella a “serious health concern.” 74 Fed..Reg. 33,030, 33,031 (July 9, 2009).

A.

On May 22, 2008, the New Mexico Department of Health notified the Centers for Disease Control and Prevention that a number of local residents had been infected with Salmonella Saintpaul. Similar reports soon arrived at CDC from Texas. After interviewing patients, CDC discovered a “strong statistical association” between the infections and eating raw tomatoes. J.A. 713. This observation was supported by a “historical association” between salmonella and tomatoes generally. J.A, 432. CDC -subsequently notified FDA that tomatoes were the “leading hypotho-sis” for the source of the outbreak. J.A. 660.

By June 1, 2008, CDC was investigating 87 incidents of Salmonella Saintpául across nine states. J.A. 147. FDA, including its various component parts such as the Center for Food Safety and Applied Nutrition, decided to issue an initial contamination warning to consumers in New Mexico and Texas. The contamination. warning informed consumers that the outbreak was likely associated with tomatoes, but acknowledged that the exact type and the origin of the contaminated tomatoes was unknown.

By June 6, 2008, reports of Salmonella Saintpaul had risen to 145 incidents and 23 hospitalizations across sixteen states. J.A. 149. CDC notified FDA that the. outbreak threatened the entire country.

On June 7,2008, FDA issued an updated contamination warning titled, “FDA Warns Consumers Nationwide Not to Eat Certain Types of Raw Red Tomatoes.” J.A. 149. The contamination warning explained the nature of Salmonella Saintpaul and specified certain types of tomato as the likely vehicles for the bacteria. It also provided a list of countries and seven states, including South Carolina, whose tomatoes remained unassociated with the outbreak. The media, however, reported the contamination warning without mentioning that some tomatoes were not implicated. FDA officials also stressed the magnitude and national scope of the outbreak but likewise failed to mention any “safe” tomatoes.

Over the next month, CDC accumulated enough data to trace Salmonella Saintpaul to jalapeño and serrano peppers imported from Mexico. FDA withdrew the contamination warning as a result*and announced that fresh tomatoes were no longer associated with the outbreak. At that, point in time, Salmonella Saintpaul was linked to 1,220 infections across forty-two states and the District of Columbia. J.A. 150.

B,

Seaside harvested a crop of tomatoes in South Carolina while the Salmonella Saint-paul contamination warning was in effect. On May 18, 2011, Seaside brought suit against the United States under the FTCA alleging that FDA negligently issued the contamination warning and impaired the value of Seaside’s crop by $15,036,293.95. The government claimed that the suit was barred by the FTCA provision protecting the government’s exercise of discretionary functions, see 28 U.S.C. § 2680(a), and moved to dismiss the case. The district court denied the motion as premature and ordered limited jurisdictional discovery, giving Seaside the opportunity to establish some nondiscretionary duty that FDA may have breached.

A three-year, discovery fight ensued. The parties frequently disagreed over the scope of authorized inquiry, although the government ultimately produced over 12,-000 pages of unredacted FDA .guidance manuals, internal deliberations, daily situation reports, and confidential emails relevant to the Salmonella Saintpaul outbreak. Seaside also had the opportunity to take multiple depositions of CDC or FDA employees. Finally, the government provided an additional 13,000 pages of discovery material that was generated in a related case.

On December 15, 2015, the district court dismissed the case for lack of subject matter jurisdiction. The district court reasoned that FDA had broad discretion to warn the public about a contaminated food supply, and that Seaside failed to allege any statute, regulation, or policy that required FDA to proceed in a particular manner. The district court also acknowledged- that contamination warnings implicate competing policy considerations of protecting the public from serious health risks and minimizing any adverse economic impact on associated- industries. Seaside appeals.

II.

The FTCA provides a limited waiver of sovereign immunity for civil actions against the United States. 28 U.S.C. §§ 1346(b)(1), 2674. This waiver extends to certain claims resulting from “the negligent or wrongful act or omission of any employee of the Government while acting within the scope of , his office or employment.” Id. § 1346(b)(1). The discretionary function exception, however, preserves sovereign immunity and insulates the government from liability for “the exercise or performance [of] a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” Id. § "2680(a). FTCA plaintiffs have the burden of showing that the discretionary function exception does not foreclose their claim. Welch v. United States, 409 F.3d 646, 651 (4th Cir. 2005); Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995).

The discretionary function exception represents “the boundary between Congress’ willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals.” United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984). It was meant to “protect the government from liability that would seriously handicap efficient government operations.” Id. at 814, 104 S.Ct. 2755 (quoting United States v. Muniz, 374 U.S. 150, 163, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963)). Congress also wanted to “prevent judicial ‘second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” Id. Consequently, federal courts lack jurisdiction over claims falling within the discretionary function exception. Holbrook v. United States, 673 F.3d 341, 345 (4th Cir. 2012); Williams, 50 F.3d at 304-05.

III.

Seaside contends the district court improperly concluded that the discretionary function exception barred its claim. Seaside also argues that it did not receive adequate discovery before the case was dismissed, and faults the district court for improperly limiting the scope of inquiry to jurisdictional issues. We shall discuss each contention in turn.

A.

Government conduct is protected by the discretionary function exception if it “involves an element of judgment or choice,” and implicates “considerations of public policy.” Berkovitz v. United States, 486 U.S. 531, 536-37, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988); see United States v. Gaubert, 499 U.S. 315, 322-25, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991); Varig Airlines, 467 U.S. at 813-14, 104 S.Ct. 2755; Dalehite v. United States, 346 U.S. 15, 32-36, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). We begin’ by asking whether any “federal statute, regulation, or policy- specifically prescribes a course of action.” Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954. If not, we consider generally “the nature of the actions taken and ... whether they are susceptible to policy analysis.” Gaubert, 499 U.S. at 325, 111 S.Ct. 1267. The relevant inquiry is whether the decision “in an objective, or general sense, ... is one which we would expect inherently to be grounded in considerations of policy.” Baum v. United States, 986 F.2d 716, 721 (4th Cir. 1993). We do not examine, therefore, “whether policy considerations were actually contemplated in making [the] decision.” Smith v. Washington Metro. Area Transit Authority, 290 F.3d 201, 208 (4th Cir. 2002) (emphasis in original). In fact, if a statute or regulation permits discretion, “it must be presumed that [decisions] are grounded in policy when exercising that discretion.” Holbrook, 673 F.3d at 345 (quoting Gaubert, 499 U.S. at 324, 111 S.Ct. 1267).

The Federal Food, Drug and Cosmetic Act (“FDCA”), 21 U.S.C. § 301 et seq., provides that FDA may “cause to be disseminated information regarding food ... in situations involving, in the opinion of the [Commissioner], imminent danger to health or gross deception of the consumer.” Id. § 375(b) (emphasis added). A notice in the Federal Register emphasizes that “FDA’s implicit or explicit authority to disseminate information under [21 U.S.C. § 375(b)] is not accompanied by any procedural requirements.” 50 Fed. Reg. 43,060, 43,063 (Oct 23, 1985). The FDCA plainly delegates broad discretion, and we presume FDA is firmly grounded in considerations of public policy when acting pursuant to that discretion.

Seaside argues in response that various FDA guidance manuals eliminate this discretion and prescribe some mandatory course of action. Seaside points to provisions that establish standard operating procedures, contamination warning protocols, “essential steps,” and major considerations for emergency response activities.

It would be the rare guidance manual that did not contain some arguably mandatory language. It is our duty, however, to construe the nature of the statutory and regulatory regime as a whole. Indeed, “[t]he price of circulating internal guidance should not be an exponential increase in exposure to a tort suit.” Holbrook, 673 F.3d at 347. It is questionable, moreover, whether something as informal as a guidance manual can overcome a statutory consignment of agency discretion. But even if we were to so assume, it would not aid appellant’s case. For after reviewing the FDA guidance manuals, we still find the agency possesses significant discretion.

The FDA Emergency Response Plan, for example, begins with a qualification that “the nature and severity of an emergency ... will determine .., the specific actions ... for each emergency.” J.A. 923. It continues to explain that “the exact activities performed ... will vary by the type and severity of the emergency,” J.A. 925, and that any given plan may “require[] significant adjustments during an incident,” J.A. 926 (emphasis added). There is even an express disclaimer: “[T]hese identified steps do not comprise the entire scope of the FDA emergency response. Emergencies are unpredictable and dynamic; therefore, the Agency’s strategy, while containing core activities, must be unique to each situation.” J.A. 925-26. Remaining provisions then speak in broad terms of what FDA “may” or “should” do, subject to the overarching nature of the emergency. See Fortney v. United States, 714 F.Supp. 207, 208 (W.D.Va. 1989) (holding that “should” is indicative of discretion), aff'd, 912 F.2d 722 (4th Cir. 1990). The FDA Emergency Response Plan thus envisions, a fluid combination of variable responses and “real-time determination of the necessary course of action.” J.A. 926.

The policy considerations inherent in a contamination warning are also evident. The FDCA expressly directs FDA to “protect the public health by ensuring that foods are safe, wholesome, [and] sanitary.” 21 U.S.C. § 393(b)(2)(A); see Gaubert, 499 U.S. at 324, 111 S.Ct. 1267 (“It will most often be true that the general aims and policies of the controlling statute will be evident from its text.”). As the district court rightly noted,, decisions regarding contamination warnings are “grounded in the policy of protecting the public from a health risk, and reducing adverse economic impact.” J.A. 1077. Discretion is necessary to evaluate available information, assess the sufficiency and reliability of evidence, resolve conflicting data, determine the overall nature of a health threat, and ultimately settle on a course of action. Both the timing and content of a contamination warning reflect this analysis. See Fisher Bros. Sales, Inc. v. United States, 46 F.3d 279 (3d Cir. 1995) (en banc). Acting too soon or waiting too late each entail profound potential consequences.

Seaside insists that there remains a genuine dispute as to whether the government ultimately executed its decision in a reasonable manner. Seaside complains that the contamination warning was overly broad, based on insufficient evidence, and wholly inadequate to notify consumers that South Carolina tomatoes remained safe for consumption. Seaside then emphasizes that no tomato in the United States ever tested positive for Salmonella Saintpaul, and that FDA actually neglected to test sample tomatoes before issuing the contamination warning. Finally, Seaside asserts that, despite considerable evidence linking the outbreak to Mexico when the contamination warning was issued, FDA omitted that information without a defensible justification. Seaside suggests this decision was made for impermissible “political” reasons beyond the scope of FDA’s, discretion. Reply Br. of Appellant at 20.

Unfortunately, Seaside misunderstands the nature of the discretionary function inquiry. The decision to issue a contamination warning, especially in the middle of an' escalating salmonella outbreak, clearly implicates the policy considerations which FDA was established to weigh. The FDCA even contemplates considerations regarding our commercial relationship with foreign countries. See 21 U.S.C. § 393(b)(3); Seaside fails to identify any mandatory' requirements governing FDA’s decision, including any directive to test sample tomatoes before issuing the contamination warning. Not only is the FDA Emergency Response Plan phrased in permissive terms, but it envisions “[i]nves-tigative, laboratory, and technical/scientific staff’ pursuing multiple avenues of obtaining information, J.A. 929. These would encompass, inter alia, such things as gathering field reports from state agencies, healthcare providers, and affected patients, to employing FDA’s bank of preexisting scientific knowledge about the association between certain foods and food-borne illnesses. Whether the agency pursued its investigation, interpreted relevant evidence, or balanced policy considerations in what Seaside believes to be an optimal manner does not affect the discretionary function analysis. Seaside essentially invites us to engage-in the very judicial second guessing that the discretionary function exception forbids.

We therefore conclude that the decision to issue a contamination warning “involves an element of judgment or choice,” that implicates “considerations of public policy.” Berkovitz, 486 U.S. at 536-37, 108 S.Ct. 1954, The government rightly observes that contamination warnings—in both timing and content—are a prototypical discretionary function.

B.

Seaside next contends it was not allowed sufficient discovery. District courts exercise broad discretion over discovery issues. Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 402-03 (4th Cir. 2003). A party is not entitled to discovery that would be futile or otherwise inadequate to establish a sufficient basis for jurisdiction. See Rich v. United States, 811 F.3d 140, 146 (4th Cir. 2015).

The district court was correct to recognize that the discretionary function exception is a jurisdictional threshold that must be considered before moving to the merits of an FTCA claim. Williams, 50 F.3d at 308; Smith, 290 F.3d at 211. The district court was thus well within its discretion to limit discovery to this dispositive issue. Rich, 811 F.3d at 146. Indeed, unlike in Rich, policy would be inevitably implicated in the issuance of the contamination warning and in drafting its contents. See id. at 147. Other circuits considering the discretionary function exception agree—if they even allow discovery at all. See, e.g., Gonzalez v. United States, 814 F.3d 1022, 1031-32 (9th Cir. 2016) (refusing discovery because available agency guidelines established discretion); Baer v. United States, 722 F.3d 168, 176-77 (3d Cir. 2013) (refusing discovery because available agency guidelines did not foreclose discretion); Davila v. United States, 713 F.3d 248, 263-64 (5th Cir. 2013) (refusing discovery because the plaintiff' failed to allege any “well-pleaded facts or evidence to refute the government’s assertion ... that no [nondiscretionary] policy exists”); Ignatiev v. United States, 238 F.3d 464, 467 (D.C. Cir. 2001) (remanding for limited jurisdictional discovery); In re Orthopedic Bone Screw Prod. Liability Litig., 264 F.3d 344, 365 (3d Cir. 2001), as amended (Oct. 10, 2001) (upholding limited jurisdictional discovery).

In any event, Seaside had three years of discovery. The government produced over 25,000 pages of material relevant to FDA practices and the Salmonella Saintpaul outbreak. Seaside also had the opportunity to take multiple depositions of CDC or FDA employees. This was more than adequate to determine whether FDA had some nondiscretionary duty or otherwise exercised discretion that was not susceptible to policy analysis. While Seaside expresses frustration at its inability to obtain additional information relevant to whether the contamination warning was justified, that issue is separate and distinct from the question of jurisdiction and the discretionary function exception.

Relying on Kerns v. United States, 585 F.3d 187 (4th Cir. 2009), Seaside insists that the facts necessary to determine jurisdiction are “inextricably intertwined” with the merits of the case and thus additional discovery was still necessary. See id. at 195. We disagree. Kerns, in fact, acknowledged that the discretionary function exception is a threshold issue that can be “wholly unrelated to the basis for liability under the FTCA.” Id. at 196, So it is here. Whether FDA was negligent is an entirely different question from whether FDA was given- the discretion' to draft and issue a contamination warning, and whether exercising that discretion implicates policy considerations. While we do not suggest the agency’s attempt to warn the public of a major unfolding health crisis represented an abuse of the discretion entrusted to it, the= discretionary function exception applies “whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a); see Gaubert, 499 U.S. at 322-25, 111 S.Ct. 1267; Holbrook, 673 F.3d at 349-50.

The value of any kind of immunity, applied here as a jurisdictional bar, declines as litigation proceeds. See Mitchell v. Forsyth, 472 U.S. 511, 525-27, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (explaining that qualified immunity in 42 U.S.C. § 1983 litigation “is in part an entitlement not to be forced to litigate the consequences of official conduct” and “even such pretrial matters as discovery are to be avoided if possible, as ‘[i]nquiries of this kind can be peculiarly disruptive of effective government’ ” .(quoting Harlow v. Fitzgerald, 457 U.S. 800, 817, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Exposing FDA to extensive rounds of discovery on the merits would undermine the discretionary function exception and introduce the very litigation pressures Congress clearly meant to avoid. See Wu Tien Li-Shou v. United States, 777 F.3d 175, 186 (4th Cir. 2015); Holbrook, 673 F.3d at 349-50; cf. Harlow, 457 U.S. at 818, 102 S.Ct. 2727 (“Until this threshold [42 U.S.C. § 1983] immunity question is resolved, discovery should not be allowed.”). The district court was thus well within its discretion to order discovery in the manner that it did.

IV.

We refuse to place FDA between a rock and a hard place. On the one hand, if FDA issued a contamination warning that was even arguably overbroad, premature, or of anything less than perfect accuracy, injured companies would plague the agency with lawsuits. On the other hand, delay in issuing a contamination warning would lead to massive tort liability with respect to consumers who suffer serious or even fatal consequences that a timely warning might have averted. All this would loom if contamination warnings were not protected by the discretionary function exception.

Every public health emergency is different. There is no boilerplate warning that can account for the unknown variables of a pathogenic outbreak. There is little room for leisured hindsight when the decision is one that must be made under the pressure of events and, in many cases, on the basis of imperfect information. After three years of discovery, Seaside failed to identify any mandatory duty that FDA may have breached, or any discretionary decision that was not firmly rooted in the very policy considerations that FDA was intended to exercise. While we acknowledge and regret any financial loss Seaside may have incurred as a result of the Salmonella Saintpaul contamination warning, allowing Seaside’s claim to proceed would allow the law of tort to distort one of the most critical of governmental functions, that of safeguarding the public health and welfare.

The judgment is accordingly affirmed.

AFFIRMED.

      . The core activities that comprise the FDA Emergency Response Plan, such as "Performing Initial and On-Going Planning,” are all described at a high level of generality. J.A. 926. But a general directive that does not "specifically prescribe!]] a course of action” likewise does not operate to restrict the exercise of agency discretion. Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954. Furthermore, "[t]he existence of some mandatory language does not eliminate discretion when the broader goals sought to be achieved necessarily involve an element of discretion.” Holbrook, 673 F.3d at 348 (quoting Miller v. United States, 163 F.3d 591, 595 (9th Cir. 1998)).

      . In view of our ruling on the discretionary function exception, we have no need to address the government’s contention that the contract rights exception to the FTCA likewise forecloses' Seaside’s claim. See 28 U.S.C. § 2680(h).


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Juan CASTILLO-RIVERA, Defendant-Appellant.
    No. 15-10615
    United States Court of Appeals, Fifth Circuit.
    Filed November 4, 2016
    Brian W. Portugal, James Wesley Hendrix, Leigha Amy Simonton, U.S. Attorney’s Office, Dallas, TX, for Plaintiff-Ap-pellee.
    James Matthew Wright, Federal Public Defender’s Office, Amarillo, TX, Jerry Van Beard, Esq., John MacIntyre Nicholson, Kevin Joel Page, Federal Public Defender’s Office, Dallas, TX, Brandon Elliott Beck, Federal Public Defender’s Office, Lubbock, TX, for Defendant-Appellant.
    Before STEWART, Chief Judge, JOLLY, DAVIS, JONES, SMITH, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON and COSTA, Circuit Judges.
   BY THE COURT:

A member of the court having requested a poll on the petition for rehearing en banc, and a majority of the circuit judges in regular active service and not disqualified having voted in favor,

IT IS ORDERED that this cause shall be reheard by the court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Eduardo PENALOZA-CARLON, Defendant-Appellant.
    No. 16-40438
    Summary Calendar
    United States Court of Appeals, Fifth Circuit.
    Filed November 28, 2016
    Paula Camille Offenhauser, Renata Ann Gowie, Assistant U.S. Attorneys, U.S. Attorney’s Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.
    Edmund Keith Cyganiewicz, Law Office of Edmund Cyganiewicz, Brownsville, TX, Shane John Stolarczyk, Esq., Keller Sto-larczyk P.L.L.C., Boerne, TX, for Defendant-Appellant.
    Before JOLLY, SMITH, and GRAVES, Circuit Judges.
   PER CURIAM:

Eduardo Penaloza-Carlon pleaded guilty of having been found unlawfully in the United States after deportation after a felony conviction, and he was sentenced, below the advisory guideline range, to twenty-two months of imprisonment and three years of supervised release. On appeal, Penaloza-Carlon contends that the district court erred in applying the twelve-level enhancement under U.S.S.G. § 2L1.2(b)(l)(A)(ii) (2015) based on his Oregon conviction of rape in the third degree. He contends that the Oregon statute sweeps more broadly than the generic definitions of statutory rape, forcible sex offense, and sexual abuse of a minor for purposes of the § 2L1.2 crime-of-violence enhancement.

In the district court, Penaloza-Car-lon urged that the § 2L1.2 enhancement did not apply because the Oregon statute lacks an age difference. Thus, we review de novo whether that conviction is a crime of violence under § 2L1.2 on that basis. See United States v. Bonilla, 524 F.3d 647, 651-52 (5th Cir. 2008). Because Penaloza-Carlon did not maintain, in the district court, that the conduct proscribed by the Oregon statute is broader than the generic, contemporary meaning of, inter alia, sexual abuse of a minor, we review that point for plain error. See United States v. Garcia-Perez, 779 F.3d 278, 281 & n.2 (5th Cir. 2015).

The Oregon statute defines rape in the third degree as “sexual intercourse with another person under 16 years of age.” Or. Rev. Stat. § 163.355(1). To determine whether conduct criminalized under a statute constitutes “sexual abuse of a minor,” this court examines (1) whether the conduct involved a minor; (2) whether the conduct was “sexual”; and (3) whether the conduct constituted “abus[e].” United States v. Puga-Yanez, 829 F.3d 317, 320-21 (5th Cir. 2016).

The first two prongs are satisfied. First, the Oregon offense requires the involvement of a minor because it calls for the victim to be under the age of sixteen. Penaloza-Carlon’s argument to the contrary is foreclosed. See United States v. Rodriguez, 711 F.3d 541, 560 (5th Cir. 2013) (en banc). Second, the offense is “sexual” in nature because it has “sexual arousal or gratification as its purpose.” United States v. Olalde-Hernandez, 630 F.3d 372, 375 (5th Cir. 2011).

Penaloza-Carlon disputes the third element—whether the conduct was “abusive.” He relies on decisions of the Ninth Circuit that the Oregon offense does not qualify as sexual abuse of a minor because it lacks the abuse element in that it does not expressly prohibit conduct that causes physical or psychological harm in light of the age of the victim. Those decisions, however, are not binding authority in this circuit and are inconsistent with our precedent.

Penaloza-Carlon therefore has failed to show that the district court committed clear or obvious error by finding that the Oregon conviction was categorically sexual abuse of a minor. See Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). Accordingly, he has not shown that the court erred in applying the twelve-level enhancement under § 2L1.2(b)(l)(A)(ii)

AFFIRMED.

      . See United States v. Sauseda, 596 F.3d 279, 282 (5th Cir. 2010) (holding that other circuits’ decisions are persuasive only); Puga-Yanez, 829 F.3d at 322 & n.10 (holding that, even though psychological or physical harm to the minor often stems from the defendant’s conduct, "harm to the minor is not an element of the generic crime of ‘sexual abuse of a minor’ [under § 2L1.2(b)(l)(A)(ii)]”).