author: WILKINSON, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Todd Allen SPENCER, a/k/a Todd Alan Spencer, Defendant-Appellant.
    No. 16-4026
    United States Court of Appeals, Fourth Circuit.
    Argued: December 8, 2016
    Decided: February 9, 2017

      ARGUED: Frances H. Pratt, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Richard Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Geremy C. Kamens, Federal Public Defender, Rodolfo Cejas, II, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Dana J. Boente, United States Attorney, Alexandria, Virginia, William D. Muhr, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.
    Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.
   WILKINSON, Circuit Judge:

Todd Allen Spencer pleaded guilty to mailing a threatening letter in violation of 18 U.S.C. § 876(c). The district court deviated upward from the advisory Guidelines range to account for the threat’s effect on the victim and imposed a 45-month sentence.

Spencer now contends that his sentence was procedurally and substantively unreasonable. For the reasons that follow, we affirm.

I.

On September 12, 2013, the clerk’s office of the federal courthouse in Norfolk, Virginia received a letter from an inmate at Chesapeake City Jail identified as “T.A. Spencer.” The letter was covered in white powder and read, in part, as follows:

You never know when it can happen! The very letter you hold may indeed be the last you hold. This letter may contain on it what takes your last' breath. Who knows? Only time will tell. Good luck to you.
Should you run? Should you stay? Who do you call to make it all go away? Are you already infected with the pain? What do you do? Is there anything to gain? Only time will tell.

J.A. 14-15. The clerk who opened the letter was “disconcerted and afraid”; at the instruction of the U.S. Marshals she locked herself alone — with the letter — in the mail-room until inspectors arrived. J.A. 15. In the course of the investigation, one inspector visited Spencer at Chesapeake City Jail, where he admitted to sending the letter and explained that the powder was dried toothpaste. He had included the powder “to enhance the effect of the letter in order to put fear into the reader that the white powdery substance was some type of poison.” Id.

On October 2, 2014, Spencer pleaded guilty to sending a threatening communication in violation of § 876(c). The probation officer prepared a presentence report (“PSR”), which recommended a base offense level of 12. The probation officer then applied a six-level enhancement because, in his view, the offense involved “conduct evidencing intent to carry out [the] threat” contained in the letter. U.S. SENTENCING GUIDELINES MANUAL § 2A6.1(b)(l) (U.S. SENTENCING COMM’N 2016). After factoring in Spencer’s acceptance of responsibility and criminal history category, the PSR yielded an advisory Guidelines range of 37 to 46 months.

At the sentencing hearing on January 13, 2015, the district court overruled Spencer’s objection to the six-level enhancement and sentenced him to 46 months’ imprisonment. The district court expressed concern about the “devastating]” impact on the victim: “One can’t forget it. It’s like war.... You can’t forget what people do when they face the ultimate.” J.A. 46, 59. Given the “very, very serious” nature of the offense, the court observed that the Guidelines were “very kind” and therefore imposed a sentence at the top of the advisory range. J.A. 60-61.

On appeal, this court found that the district court erred in applying the six-level enhancement. United States v. Spencer, 628 Fed.Appx. 867 (4th Cir. 2015). The court determined that Spencer’s threat did not qualify for the § 2A6.1(b)(l) increase because the use of harmless toothpaste did not suggest an intent to carry out the threat to kill or injure the clerk. Accordingly, the panel vacated and remanded for resentencing without application of the enhancement.

On January 12, 2016, the district court noted at the outset of the resentencing hearing that, in light of the Fourth Circuit’s mandate, it would not apply any additional enhancements. But the court explained that a sentence in the range of 21 to 27 months would be “totally inadequate” based on the sentencing factors in 18 U.S.C. § 3553(a). J.A. 118. The district court reiterated its concern about the need to “afford adequate deterrence” to similarly situated offenders. J.A. 127. The court also underscored the importance of providing “just punishment” that reflected the serious nature of the offense: “The lady who got that letter thought it was anthrax, and she thought somebody had sentenced her to death.” J.A. 126-27.

Taking these “factors into consideration and the fact that [Spencer] ha[s] successfully appealed the prior sentence,” the court decided to “upwardly depart” and imposed a sentence of 45 months. J.A. 128. The district court reasoned that the sentence was “fair under the circumstances” and one that it “would have given him if there had never been any ... [Guidelines.]” J.A. 133. Although the court maintained that it was “strictly an upward departure,” id. on the Statement of Reasons for the judgment it cheeked the box for a variance sentence and cited the § 3553(a) factors as the basis for deviating from the Guidelines, J.A. 244-45.

II.

We review a sentence for both procedural and substantive reasonableness. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). We first ensure that the district court committed no significant procedural error, such as “improperly calculating[ ] the Guidelines range, ... selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” Id. If the sentence is procedurally sound, we then consider its substantive reasonableness under a “deferential abuse-of-discretion standard.” Id. at 52, 128 S.Ct. 586. While a district court’s explanation for the sentence must “support the degree of the variance,” id. at 50, 128 S.Ct. 586, it need not find “extraordinary circumstances” to justify a deviation from the Guidelines, id. at 47, 128 S.Ct. 586. Rather, because district courts are “in a superior position to find facts and judge their import,” all sentencing decisions— “whether inside, just outside, or significantly outside the. Guidelines range” — are entitled to “due deference.” Id. at 41, 51, 128 S.Ct. 586.

With these principles in mind, we turn to Spencer’s procedural and substantive challenges to the sentence.

A.

Spencer first contends that the district court erred by failing to provide advance notice of its intention to depart from the advisory Guidelines range. See Fed. R. Crim. P. 32(h) (requiring a district court to provide “reasonable notice” that it is considering a departure from the Guidelines “on a ground not identified for departure either in the presentence report or in a party’s prehearing submission”). Spencer notes that the district court repeatedly characterized the sentence as an upward “departure,” see J.A. 128, 133-35, yet never advised the parties that it was contemplating such an action. Consequently, he claims that he was deprived of the opportunity to challenge the increased sentence. There are several difficulties with this argument, which we address in turn.

For starters, the boundary between departures and variances is often murky, and this case especially confounds the distinction. Because the circumstances surrounding threats vary substantially, § 2A6.1 gives district courts latitude to depart from the Guidelines. See § 2A6.1 cmt. n.4(A). The provision does not set forth a comprehensive departure framework for threats cases, but instead invites district courts to apply other generic departures as necessary. Id. (referencing additional departures in Chapter Five). Given the dearth of guidance for capturing the seriousness of such a factually variable offense, the considerations underlying a departure in a threats case converge with those underlying a variance to an unusual degree.

Nonetheless, a measure of formality must mark the sentencing procedure, and the district court was simply too casual about the course it intended to undertake. At the resentencing hearing the court repeatedly stated that it would “upwardly depart,” see J.A. 128, 133-35, but its reasoning' — -resting on the § 3553(a) factors rather than a departure provision — supported a variance, see J.A. 126-28. Likewise, on the Statement of Reasons for the judgment the court checked the box for a variance sentence and cited various § 3553(a) factors as the basis for deviating from the Guidelines. J.A. 244-45. While it may be true that “the practical effects of applying either a departure or variance are the same,” see United States v. Diosdado-Star, 630 F.3d 359, 365 (4th Cir. 2011), the court’s colloquial migration between the two concepts was at a minimum imprecise.

We conclude, nonetheless, that Spencer cannot establish that any lack of notice affected his substantial rights. Because Spencer did not raise the issue in the district court, we review for plain error. Fed. R. Crim. P. 52(b); Henderson v. United States, — U.S. -, 133 S.Ct. 1121, 1126-27, 185 L.Ed.2d 85 (2013). Spencer thus bears the burden of showing “that, but for [the error claimed], the result of the proceeding would have been different.” United States v. Dominguez Benitez, 542 U.S. 74, 82, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004).

Spencer summarily asserts that he was prejudiced by the lack of formal notice, but the district court repeatedly telegraphed that it might deviate from the Guidelines. Throughout the original sentencing hearing, the letter’s effect on the victim was front and center. See J.A. 42-43, 46-47, 52, 54, 58-59. And it was no secret that the court was troubled by the “very, very serious” nature of the offense: It stressed the need to provide “just punishment” and “adequate deterrence” and remarked that the initial Guidelines range was “very kind to [Spencer].” J.A. 59-61. Accordingly, when the removal of the § 2A6.1(b)(l) enhancement resulted in an even lower Guidelines range, Spencer had every reason to believe that the court might adopt an above-Guidelines sentence. Indeed, at resentencing the court stated that the original sentence was “fair and fit,” J.A. 127, and that it would have imposed the same sentence even if the Guidelines had not applied, J.A. 133. Spencer thus had numerous opportunities to address the district court’s concerns about the letter’s effect upon the victim and “the record does not indicate that a statement announcing th[e] possibility [of an increased sentence] would have changed the parties’ presentations in any material way.” Irizarry v. United States, 553 U.S. 708, 715, 128 S.Ct. 2198, 171 L.Ed.2d 28 (2008).

B.

Spencer also asserts that his 45-month sentence is substantively unreasonable. His substantive (or hybrid procedural/substantive) argument is essentially that the sentence was too much. In particular, he insists that the severity of the sentence rested on improper sentencing factors and unfounded factual findings. For the reasons that follow, we disagree.

As an initial matter, we simply do not find that the district court rested its sentence on improper grounds. Pursuant to our mandate, the court made clear that it was not applying any additional enhancements at resentencing. Rather, the district court based its sentence on the intended effect on the victim, explaining that the reduced Guidelines range was “totally inadequate” given the serious nature of a threat accompanied by ostensible poison. J.A. 118. In other words, the court tailored its sentence in light of traditional § 3553(a) sentencing factors such as deterrence and punishment. See J.A. 127. This sort of particularized assessment is the hallmark of individualized sentencing, see Gall, 552 U.S. at 50, 128 S.Ct. 586, and we see no reason to question the district court’s decision to deviate from the Guidelines on this basis.

The inferences drawn by the district court here lay within the bounds of its discretion. The trial court, to be'sure, used some vivid rhetoric in explaining the sentence, surmising that the victim “thought somebody had sentenced her to death,” J.A. 127, and “it’s something one can’t forget.... It’s like war,” J.A. 59. But these expressions were hardly divorced from the facts of Spencer’s case. After all, Spencer had sent a letter that threatened death. To compound the victim’s horror, he included with the letter dried toothpaste that resembled anthrax. The U.S. Marshals took the threat seriously and ordered the victim to lock herself in a confined space. And she waited alone with the potential toxin until the authorities could determine its true nature. From these facts, the rest are reasonable inferences that could be drawn by anyone confronted with a “prank” that was distinctly unfunny.

We are mindful that we have charged district courts to explain the basis for their sentence. See United States v. Carter, 564 F.3d 325, 328-29 (4th Cir. 2009) (instructing that the district court must “justify [its] sentence with an individualized rationale”); see also Gall, 552 U.S. at 50, 128 S.Ct. 586 (advising that the judge “must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing”). But there is also a balance to be struck. We want trial judges to offer a “rationale tailored to the particular case at hand,” Carter, 564 F.3d at 330, but we also take seriously the Supreme Court’s injunction that those same sentencing rationales are in turn entitled to “due deference” on appeal, Gall, 552 U.S. at 51, 128 S.Ct. 586. The district court’s expressions of dismay at Spencer’s actions were thus not impermissible so long as they bore upon the § 3553(a) factors of deterrence and punishment. Indeed, many upward departures or variances will be accompanied by some expression of concern that the Guidelines do not reflect the full seriousness of the offense.

Spencer understandably objects to the increased sentence. But he acknowledged that the court “has the right to impose a sentence it deems sufficient but not greater than necessary.” J.A. 120. Although Spencer contends that there was no substantial disruption- of government functions here, see U.S.S.G. § 2A6.1(b)(4)(A), that did not deprive the district court of the right to apply the § 3553(a) factors, specifically, in this age of unbalanced acts, the need to deter depredations of this kind in the future. It was not error therefore for the district court to recognize that government’s functioning depends on the indispensable efforts of an underappreciated workforce and that no employee deserves to endure what Spencer indisputably intended for the recipient of the letter to endure here. The district court could reasonably believe that the effect on the victim was no small matter and, indeed, if there be such a thing, that this was no ordinary threat. We hold that its sentence was substantively reasonable.

III.

The judgment of the district court is accordingly

AFFIRMED.

       We decline to draw an inference of actual vindictiveness from the district court’s acknowledgment on remand that Spencer “successfully appealed the prior sentence.” J.A. 128. To be sure, "[d]ue process requires that vindictiveness play no role in resentencing the defendant.” United States v. Olivares, 292 F.3d 196, 198 (4th Cir. 2002). But this passing reference to an appeal does not allow us to infer actual vindictiveness on the part of the trial court, particularly where the district court's concern from the beginning rested on non-vindictive factors such as the serious nature of this offense and the need to deter others like it in the future.


source: Caselaw Access Project

author: KING, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America EX REL. Brianna MICHAELS and Amy Whitesides, Plaintiffs-Appellants, v. AGAPE SENIOR COMMUNITY, INC.; Agape Senior Primary Care, Inc.; Agape Senior Services, Inc.; Agape Senior, LLC; Agape Management Service, Inc.; Agape Community Hospice, Inc.; Agape Nursing and Rehabilitation Center, Inc., d/b/a Agape Rehabilitation of Rock Hill, a/k/a Agape Senior Post Acute Care Center-Rock Hill, a/k/a Ebenezer Senior Services, LLC; Agape Senior Foundation, Inc.; Agape Community Hospice of Anderson, Inc.; Agape Hospice of the Piedmont, Inc.; Agape Community Hospice of the Grand Strand, Inc.; Agape Community Hospice of the Pee Dee, Inc.; Agape Community Hospice of the Upstate, Inc.; Agape Hospice House of Horry County, Inc.; Agape Hospice House of Laurens, LLC; Agape Hospice House of the Low Country, Inc.; Agape Hospice House of the Piedmont, Inc.; Agape Rehabilitation of Conway, Inc.; Agape Senior Services Foundation, Inc.; Agape Therapy, Inc.; Agape Hospice; Hospice Piedmont; Hospice Rock Hill; Carolinas Community Hospice, Inc., Defendants-Appellees, v. United States of America, Party-in-Interest-Appellee. SavaSeniorCare Administrative Services, LLC; American Health Care Association; American Hospital Association; Catholic Health Association of the United States, Amici Supporting Defendants-Appellees. United States of America ex rel. Brianna Michaels and Amy Whitesides, Plaintiffs, v. Agape Senior Community, Inc.; Agape Senior Primary Care, Inc.; Agape Senior Services, Inc.; Agape Senior, LLC; Agape Community Hospice, Inc.; Agape Nursing and Rehabilitation Center, Inc., d/b/a Agape Rehabilitation of Rock Hill, a/k/a Agape Senior Post Acute Care Center-Rock Hill, a/k/a Ebenezer Senior Services, LLC; Agape Management Service, Inc.; Agape Community Hospice of Anderson, Inc.; Agape Hospice of the Piedmont, Inc.; Agape Senior Foundation, Inc.; Agape Community Hospice of the Pee Dee, Inc.; Agape Community Hospice of the Upstate, Inc.; Agape Community Hospice of the Grand Strand, Inc.; Agape Hospice House of Laurens, LLC; Agape Hospice House of the Low Country, Inc.; Agape Hospice House of Horry County, Inc.; Agape Rehabilitation of Conway, Inc.; Agape Senior Services Foundation, Inc.; Agape Hospice House of the Piedmont, Inc.; Agape Hospice; Hospice Piedmont; Agape Therapy, Inc.; Carolinas Community Hospice, Inc.; Hospice Rock Hill, Defendants-Appellants, v. United States of America, Party-in-Interest-Appellee. SavaSeniorCare Administrative Services, LLC; American Health Care Association; American Hospital Association; Catholic Health Association of the United States, Amici Supporting Defendants-Appellants.
    No. 15-2145, No. 15-2147
    United States Court of Appeals, Fourth Circuit.
    Argued: October 26, 2016
    Decided: February 14, 2017

      ARGUED: Mario A. Pacella, STROM LAW FIRM, Columbia, South Carolina, for Appellants. William Walter Wilkins, NEXSEN PRUET, LLC, Greenville, South Carolina, for Appellees. Charles W. Scarborough, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee United States of America. ON BRIEF: T. Christopher Tuck, Catherine H. McElveen, Mt. Pleasant, South Carolina, Daniel Haltiwanger, Terry E. Richardson, Jr., RICHARDSON, PATRICK, WESTBROOK & BRICKMAN, LLC, Barnwell, South Carolina; Christy M. DeLuca, CHRISTY DELUCA, LLC, Mt. Pleasant, South Carolina; Jessica H. Lerer, STROM LAW FIRM, Columbia, South Carolina, for Appellants. Deborah B. Barbier, DEBORAH B. BARBIER ATTORNEY AT LAW, Columbia, South Carolina; Kirsten E. Small, Mark C. Moore, William C. Lewis, NEXSEN PRUET, LLC, Greenville, South Carolina, for Ap-pellees Agape Senior Community, Inc., et al. Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Michael S. Raab, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; William N. Nettles, United States Attorney, Elizabeth C. Warren, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Ap-pellee United States of America. James F. Segroves, Kelly A. Carroll, David J. Vernon, HOOPER, LUNDY & BOOKMAN, PC, Washington, D.C., for Amicus Sava-SeniorCare Administrative Services, LLC. Melinda Reid Hatton, Maureen Mudron, AMERICAN HOSPITAL ASSOCIATION, Washington, D.C.; Lisa Gilden, THE CATHOLIC HEALTH ASSOCIATION OF THE UNITED STATES, Washington, D.C.; Jessica L. Ellsworth, Washington, D.C., Thomas P. Schmidt, HOGAN LOVELLS US LLP, New York, New York, for Amici American Hospital Association and Catholic Health Association of the United States. Colin E. Wrab-ley, M. Patrick Yingling, REED SMITH, LLP, Pittsburgh, Pennsylvania, for Ami-cus American Health Care Association.
    Before KING, KEENAN, and DIAZ, Circuit Judges.
   KING, Circuit Judge:

In this qui tam action under the False Claims Act (the “FCA”), defendant Agape Senior Community, Inc., and the twenty-three other defendants (collectively, “Agape”) are affiliated entities that operate elder care facilities throughout South Carolina. The relators, Brianna Michaels and Amy Whitesides, are former Agape employees who allege that Agape fraudulently billed Medicare and other federal health care programs for services to thousands of patients — services that were not actually provided, or that were provided to patients who were not eligible for them. The United States Government was entitled, but declined, to intervene.

To establish liability and damages, the relators sought to rely on statistical sampling. The district court determined, however, that using statistical sampling to prove their case would be improper (the “statistical sampling ruling”). Additionally, the court rejected a proposed settlement between the relators and Agape, because the Attorney General of the United States objected to it. In so doing, the court concluded that the Government — despite not having intervened in an FCA qui tam action — possesses an unreviewable veto authority over the action’s proposed settlement (the “unreviewable veto ruling”).

The district court certified both its statistical sampling and unreviewable veto rulings for these interlocutory appeals under 28 U.S.C. § 1292(b). We thereafter granted the petitions for permission to appeal submitted to this Court by the rela-tors (seeking an appeal from both rulings) and by Agape (requesting an appeal from the unreviewable veto ruling only). As explained below, we affirm the unreviewable veto ruling and dismiss as improvidently granted the relators’ appeal as to the statistical sampling ruling.

I.

A.

The FCA, codified at 31 U.S.C. §§ 3729-3733, authorizes a private individual (i.e., a relator) to initiate and pursue an action in the name of the United States Government (a qui tam action) to seek civil remedies for fraud against the Government. See 31 U.S.C. § 3730(b)(1). Pursuant to § 3730(b)(1), the qui tam “action may be dismissed only if the court and the Attorney General give written consent to the dismissal and their reasons for consenting.”

At the outset of the qui tam action, the relator’s complaint must be served on the Government, filed in camera, and kept under seal for at least sixty days, with no service of process on the defendant until the court so orders. See 31 U.S.C. § 3730(b)(2). During the sixty-day period after it receives the complaint, the Government may elect to intervene in the qui tam action. Id. Specifically, before the expiration of the sixty-day period — or any extension thereof under § 3730(b)(3) — the Government must either (A) “proceed with the action” by assuming primary responsibility for the action’s prosecution, or (B) “notify the court that it declines to take over the action” from the relator, who will then “have the right to conduct the action.” Id. § 3730(b)(4)(A)-(B). If the Government declines to intervene during the initial sixty-day (or extended) period, the court may nevertheless permit its intervention “at a later date upon a showing of good cause.” Id. § 3730(c)(3).

Once the Government intervenes, the relator retains the right to continue as a party to the action, subject to certain limitations. See 31 U.S.C. § 3730(c)(1). For example, the Government is authorized to settle the action over the relator’s objection, but only “if the court determines, after a hearing, that the proposed settlement is fair, adequate, and reasonable under all the circumstances.” Id. § 3730(c)(2)(B).

When the qui tam action is successful, the relator is entitled to share with the Government in the award. See 31 U.S.C. § 3730(d)(l)-(4). The amount of. the relator’s share depends on whether the Government intervened in the action. If the Government did not intervene, “the person bringing the action or settling the claim shall receive an amount which the court decides is reasonable for collecting the civil penalty and damages.” Id. § 3730(d)(2) (specifying that such “amount shall be not less than 25 percent and not more than 30 percent of the proceeds of the action or settlement”).

B.

Here, the relators served their initial Complaint on the Government and, on December 7, 2012, filed it under seal in the District of South Carolina. The district court extended the Government’s deadline for its intervention decision to March 5, 2013. By its notice of that date, the Government declined to intervene but called attention to the consent-for-dismissal provision of § 3730(b)(1), requesting that the relators and Agape solicit the Attorney General’s written consent before asking the court to rule on any proposed dismissal. Two days later, on March 7, 2013, the court unsealed the Complaint and directed the relators to serve it on Agape.

The relators filed their operative Second Aménded Complaint on March 6, 2014, and discovery ensued. Although the relators and Agape dispute the exact numbers, they agree that Agape admitted more than 10,000 patients to its facilities in South Carolina and submitted more than 50,000 claims to federal health care programs during the relevant time period. The rela-tors sought to use statistical sampling to prove their case in order to avoid the cost of reviewing each patient’s chart to identify which claims were fraudulent — a task that the relators said would take their experts four to nine hours per patient, at a rate of $400 per hour, potentially totalling more than $36 million. For its part, Agape opposed the use of any evidentiary form of statistical sampling. Thus, the district court received briefing and conducted a hearing on the issue. By Order of March 16, 2015, the court made its statistical sampling ruling “that based on the facts of this case, statistical sampling would be improper.” See United States ex rel. Michaels v. Agape Senior Cmty., Inc., No. 0:12-cv-03466, at 2 (D.S.C. Mar. 16, 2015), ECF No. 255 (the “March 2015 Order”).

Meanwhile, the relators, Agape, and the Government had mediated unsuccessfully in November 2014, and the relators and Agape had mediated again — without the Government’s knowledge — in January 2015. The proposed settlement between the relators and Agape emerged from the second mediation. Relying on § 3780(b)(1), the Attorney General objected to the proposed settlement. The Government has not, however, sought permission pursuant to § 3730(c)(3) to intervene in this action, -thus standing by its initial decision under § 3730(b)(2)-(4) to decline intervention.

In objecting to the proposed settlement, the Attorney General protested in part that the settlement amount was appreciably less than $25 million, the Government’s estimate of total damages based on its own use of statistical sampling. The various bases for the Attorney General’s objection were stated and discussed during a series of status conferences conducted by the district court in an effort to determine if this action could be settled.

Agape eventually filed a motion to enforce the proposed settlement over the Attorney General’s objection, and the Government filed a response opposing that motion. By Order of June 25, 2015, the district court rendered its unreviewable veto ruling and thereby sustained the Attorney General’s objection to the proposed settlement. See United States ex rel. Michaels v. Agape Senior Cmty., Inc., No. 0:12-cv-03466, 2015 WL 3903675 (D.S.C. June 25, 2015), EOF No. 296 (the “June 2015 Order”). The June 2015 Order also expounded on the statistical sampling ruling that had been made in the March 2015 Order. Additionally, the June 2015 Order certified sua sponte both the unreviewable veto and statistical sampling rulings for these interlocutory appeals under 28 U.S.C. § 1292(b).

The district court prefaced its analysis in the June 2015 Order with a description of the “unique dilemma” that it faced:

The Government, claiming an unreviewable veto right over the tentative settlement in this case, objects to a settlement in a case to which it is not a party, using as a basis of its objection some form of statistical sampling that this Court has rejected for use at the trial of the case.

See June 2015 Order 6. In rendering its unreviewable veto ruling, the district court rejected the argument supporting the proposed settlement that the relators and Agape jointly advanced in reliance on the Ninth Circuit’s decision in United States ex rel. Killingsworth v. Northrop Corp., 25 F.3d 715 (9th Cir. 1994). Their argument was that, because the Government had declined to intervene herein, the Attorney General’s objection to the proposed settlement was subject to the district court’s reasonableness review. The district court instead agreed with the Government — as well as the Fifth Circuit in Searcy v. Philips Electronics North America Corp., 117 F.3d 154 (5th Cir. 1997), and the Sixth Circuit in United States v. Health Possibilities, P.S.C., 207 F.3d 335 (6th Cir. 2000)—that the Attorney General possesses an absolute veto power over voluntary settlements in FCA qui tarn actions. In so ruling, the district court explained that it was adhering to the plain language of 31 U.S.C. § 3730(b)(1), which “provides no limitation on the Attorney General’s authority, and no right of [a court] to review the Attorney General’s objection for reasonableness.” See June 2015 Order 6-7.

Nevertheless, the district court noted that, if it “did have the authority to review an objection by the Attorney General for reasonableness in a case of this nature, a compelling case could be made here that the Government’s position is not, in fact, reasonable.” See June 2015 Order 10. Such a compelling case would include that the relators “could be looking at an expenditure of between $16.2 million and $36.5 million in pretrial preparation alone for a case that the Government values at $25 million.” Id. at 11. Moreover, as the court observed, although “the Government has admitted that statistical sampling of the entire universe of claims played a major part in its calculation of the value of this case,” it resisted (with the court’s reluctant approval) discovery requests seeking specific details about its calculation. Id. at 12.

Turning to its earlier statistical sampling ruling, the district court spelled out its rationale for concluding that it would be improper to use statistical sampling evidence to prove the relators’ case. In sum, the court explained that statistical sampling can be appropriate “where the evidence has dissipated, thus rendering direct proof of damages impossible.” See June 2015 Order 13-14 (citing example of FCA qui tam action where defendant allegedly defrauded Government in moving household belongings of military personnel by artificially bumping weight of shipments that had since been completed). Here, however, “nothing has been destroyed or dissipated.... The patients’ medical charts are all intact and available for review by either party.” Id. at 14.

Finally, in certifying its unreviewable veto and statistical sampling rulings for these interlocutory appeals, the district court observed that the relators and Agape “face a trial of monumental proportions, involving a staggering outlay of expenses by the [relators] and a significant drain of [court] resources.” See June 2015 Order 18. The court deemed it to “be much more judicially efficient to have a ruling on both of the questions before, rather than after, such a monumental trial.” Id. Echoing the requirements of 28 U.S.C. § 1292(b), the court also stated that each ruling involves “a controlling question of law as to which there is substantial ground for difference of opinion, and that an immediate appeal ... may materially advance the ultimate termination of this litigation.” Id. at 19. Because we granted the relators’ and Agape’s subsequent petitions for permission to appeal, we possess jurisdiction pursuant to § 1292(b).

II.

A.

We first assess the district court’s unreviewable veto ruling. Because the interpretation of 31 U.S.C. § 3730 presents a pure question of law, our review is de novo. See United States ex rel. Oberg v. Pa. Higher Educ. Assistance Agency, 804 F.3d 646, 654 (4th Cir. 2015). Our focus, of course, is on § 3730(b)(1), which provides in full:

A person may bring a civil action for a violation of [the FCA] for the person and for the United States Government. The action shall be brought in the name of the Government. The action may be dismissed only if the court and the Attorney General give written consent to the dismissal and their reasons for consenting.

31 U.S.C. § 3730(b)(1) (emphasis added).

1..

The question presented — the extent of the Attorney General’s power under § 3730(b)(1) to veto the voluntary settlement of an FCA qui tam action in which the Government declined to intervene — is not one that we have heretofore squarely confronted. Thus, it is helpful to begin with a discussion of the three courts of appeals decisions debated in the district court: United States ex rel. Killingsworth v. Northrop Corp., 25 F.3d 715 (9th Cir. 1994); Searcy v. Philips Electronics North America Corp., 117 F.3d 154 (5th Cir. 1997); and United States v. Health Possibilities, P.S.C., 207 F.3d 335 (6th Cir. 2000).

In the Killingsworth decision, the Ninth Circuit determined that § 3730(b)(l)’s consent-for-dismissal provision is limited by § 3730(b)(2) — (4), which delineates the initial sixty-day (or extended) period during which the Government may elect to intervene, as well as by § 3730(c)(3), which authorizes the court to permit later intervention upon a showing of good cause. See 25 F.3d at 722. The Killingsworth court ruled that “the consent provision contained in § 3730(b)(1) applies only during the initial sixty-day (or extended) period.” Id. Thereafter, the Government’s settlement-related authority depends on whether it has intervened, i.e., whether the Government or the relator is empowered to control the litigation. Id. When the Government has not intervened, Killingsworth merely permits the Attorney General to object with “good cause” to a proposed settlement and obtain a hearing on whether the settlement is “fair and reasonable.” Id. at 723-25 (cobbling standard from § 3730(c)(2)(B), § 3730(c)(3), and other aspects of § 3730).

The Ninth Circuit resolved in Killings-worth that the Government’s position— “that without intervention [the Attorney General] possesses an absolute right to reject a proposed settlement at any time and for any reason” — cannot comport with the plain language of § 3730(b)(4)(B), which affords the relator “the right to conduct the action” once the Government has declined to intervene. See 25 F.3d at 722. According to the court, that is because “[t]he right to conduct a qui tam action obviously includes the right to negotiate a settlement in that action.” Id. For that proposition, the court relied on § 3730(d)(2), which .provides that if the Government has not intervened, “the person bringing the action or settling the claim shall receive an amount which the court decides is reasonable for collecting the civil penalty and damages.” The Kill-ingsworth decision emphasized the “or settling the claim” language of § 3730(d)(2), propounding that it “confirms the relator’s right to settle the action if the government declines to intervene.” See 25 F.3d at 722-23.

The Ninth Circuit’s interpretation in Killingsworth of § 3730 was subsequently rejected by the Fifth Circuit in its Searcy decision and the Sixth Circuit in its Health Possibilities decision. Unlike the Ninth Circuit, those latter two courts recognized “an absolute veto power over voluntary settlements in qui tam [FCA] suits,” see Searcy, 117 F.3d at 158, under which a relator “may not seek a voluntary dismissal of any action ... without the Attorney General’s consent,” see Health Possibilities, 207 F.3d at 336.

As the Fifth Circuit explained in Searcy, the language of § 3730(b)(l)’s consent-for-dismissal provision “is as unambiguous as one can expect,” and there is “nothing in § 3730 to negate [that language’s] plain import.” See 117 F.3d at 159. In particular, the Searcy court confronted those aspects of § 3730 utilized in Killingsworth: § 3730(b)(4)(B) (according the relator “the right to conduct the action” when the Government declines to intervene), and § 3730(d)(2) (providing a reasonable amount to “the person bringing the action or settling the claim”). More specifically, Searcy refuted Killingsworth’& pronouncements that the § 3730(b)(4)(B) “right to conduct a qui tam action obviously includes the right to negotiate a settlement in that action,” and that § 3730(d)(2) “confirms the relator’s right to settle the action if the government declines to intervene.” See Killingsworth, 25 F.3d at 722-23. The Se-arcy court expounded that “[a] relator has ‘conducted’ an action if he devises strategy, executes discovery, and argues the case in court, even if the government frustrates his settlement efforts.” See Searcy, 117 F.3d at 160. Moreover, the court observed that “the government’s power to block settlements does not mean that the relator will never be the person settling the claim.” Id.

The Searcy court further recognized “that relators can manipulate settlements in ways that unfairly enrich them and reduce benefits to the government,” including “by bargaining away claims on behalf of the United States.” See 117 F.3d at 160. Section 3730(b)(l)’s consent-for-dismissal provision, however, “allows the government to resist [such] tactics and protect its ability to prosecute matters in the future.” Id. Along those same lines, the Sixth Circuit observed in Health Possibilities that “the power to veto a privately negotiated settlement of public claims is a critical aspect of the government’s ability to protect the public interest in qui tam litigation. The FCA is not designed to serve the parochial interests of relators, but to vindicate civic interests in avoiding fraud against public monies.” See 207 F.3d at 340. The Health Possibilities court underscored that “[t]he location of the consent provision [in § 3730(b)(1) ] immediately after the command that the action be brought in the government’s name suggests that it is an important component of the government’s ability to regulate qui tam actions.” Id. at 342.

Notably, the Fifth, Sixth, and Ninth Circuits considered the legislative history of the FCA. On the one hand, the Ninth Circuit discerned a congressional “intent to place full responsibility for [FCA] litigation on private parties, absent early intervention by the government or later intervention for good cause” — an intent that the court deemed to be “fundamentally inconsistent with the asserted ‘absolute’ right of the government to block a settlement and force a private party to continue litigation.” See Killingsworth, 25 F.3d at 722.

On the other hand, the Fifth and Sixth Circuits perceived Congress’s intent to grant the Attorney General full veto authority that has existed since the original FCA statute was enacted in 1863 during the Civil War. See Health Possibilities, 207 F.3d at 342-43; Searcy, 117 F.3d at 159. As those courts saw it, that intent has endured even through subsequent amendments to the FCA providing more incentives to relators and creating and expanding the Government’s power to intervene. Id. Those courts thus concluded:

For more than 130 years, Congress has instructed courts to let the government stand on the sidelines and veto a voluntary settlement. It would take a serious conflict within the structure of the [FCA] or a profound gap in the reasonableness of the [consent-for-dismissal] provision for us to be able to justify ignoring this language. We can find neither.

Health Possibilities, 207 F.3d at 344 (quoting Searcy, 117 F.3d at 160). Here, in rendering its unreviewable veto ruling, the district court similarly interpreted § 3730(b)(1) and its consent-for-dismissal provision.

2.

We agree with the district court, and with the Fifth and Sixth Circuits, that the Attorney General possesses an absolute veto power over voluntary settlements in FCA qui tam actions. In reaching that conclusion, we rely on the plain language of 31 U.S.C. § 3730(b)(1), “readpng] the words in their context and with a view to their place in the overall statutory scheme.” See King v. Burwell, — U.S. -, 135 S.Ct. 2480, 2489, 192 L.Ed.2d 483 (2015) (internal quotation marks omitted). Simply put, nothing else in § 3730 leads us to doubt that Congress meant exactly what it said in § 3730(b)(1) — that a qui tam action “may be dismissed only if the court and the Attorney General give written consent to the dismissal and their reasons for consenting.”

On appeal, neither the relators nor Agape advocate the Ninth Circuit’s theory that the consent-for-dismissal provision “applies only during the initial sixty-day (or extended) period” in which the Government must decide whether to intervene in a qui tam action. See Killingsworth, 25 F.3d at 722. Somewhat like the Ninth Circuit, however, Agape contends that the Government cannot unreasonably withhold its consent to a settlement. According to Agape, the reasonableness requirement flows from § 3730(b)(1) itself. See Br. of Agape 20 (“[A] correct reading of § 3730(b)(1) recognizes that the Government’s consent to a qui tam settlement cannot be unreasonably withheld.”). For its part, the Ninth Circuit cobbled a standard from other aspects of § 3730, including § 3730(c)(2)(B) and § 3730(c)(3), limiting the Attorney General to an objection for “good cause” and a hearing on whether the proposed settlement is 'f‘fair and reasonable.” See Killingsworth, 25 F.3d at 723-25. Both Agape and the Ninth Circuit have reasoned that an unlimited veto power cannot coexist with § 3730(b)(4)(B) insofar as it confers on the relator “the right to conduct the action” when the Government declines to intervene, or with § 3730(d)(2) insofar as it provides for a share of the award to “the person bringing the action or settling the claim.”

Of course, as the Fifth Circuit deftly explained, the right to conduct.the action does not necessarily include the right to settle the claim, although, absent the Attorney General’s objection, the relator may yet settle the claim. See Searcy, 117 F.3d at 160. That is, § 3730(b)(4)(B) and § 3730(d)(2) cannot reasonably be understood to create an unfettered right to settle on the part of the relator.

Furthermore, § 3730(b)(1) and its consent-for-dismissal provision is not temporally qualified or explicitly limited in any other manner. Unlike other provisions of § 3730, § 3730(b)(1) does not overtly require the Government to satisfy any standard or make any showing reviewable by the court. A prime example is § 3730(c)(2)(B), under which the Government may settle a qui tam action over the relator’s objection, but only “if the court determines, after a hearing, that the proposed settlement is fair, adequate, and reasonable under all the circumstances.” Congress could have readily included similar language in § 3730(b)(1); that it decided against doing so is enlightening. See Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002) (“[Wjhen Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” (internal quotation marks omitted)).

Finally, we would be remiss not to recognize that the Attorney General’s absolute veto authority is entirely consistent with the statutory scheme of the FCA. Even where the Government declines to intervene, “the United States is the real party in interest in any [FCA] suit.” See United States ex rel. Milam v. Univ. of Tex. M.D. Anderson Cancer Ctr., 961 F.2d 46, 50 (4th Cir. 1992). Meanwhile, “[a]s a class of plaintiffs, qui tam relators are different in kind than the Government. They are motivated primarily by prospects of monetary reward rather than the public good.” See Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939, 949, 117 S.Ct. 1871, 138 L.Ed.2d 135 (1997). Instead of freeing relators to maximize their own rewards at the public’s expense, Congress has granted the Attorney General the broad and unqualified right to veto proposed settlements of qui tam actions.

Accordingly, we reject Agape’s interpretation of § 3730 and conclude today that, under the plain language of § 3730(b)(1), the Attorney General possesses an absolute veto power over voluntary settlements in FCA qui tam actions. The district court having concluded the same, we affirm its unreviewable veto ruling.

B.

Turning to the district court’s statistical sampling ruling, we find it prudent to re-examine whether that aspect of the relator’s appeal is appropriate for interlocutory review under 28 U.S.C. § 1292(b). Pursuant thereto, the order being reviewed must involve “a controlling question of law as to which there is substantial ground for difference of opinion,” and an immediate appeal from that order must promise to “materially advance the ultimate termination of the litigation.” We have cautioned “that § 1292(b) should be used sparingly and thus that its requirements must be strictly construed.” See Myles v. Laffitte, 881 F.2d 125, 127 (4th Cir. 1989).

Strictly construing § 1292(b), we recognize that it may be proper to conduct an interlocutory review of an order presenting “a pure question of law,” i.e., “an abstract legal issue that the court of appeals can decide quickly and cleanly.” See Mamani v. Berzain, 825 F.3d 1304, 1312 (11th Cir. 2016) (internal quotation marks omitted). In other words, § 1292(b) review may be appropriate where “the court of appeals can rule on a pure, controlling question of law without having to delve beyond the surface of the record in order to determine the facts.” See McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1259 (11th Cir. 2004). Such a pure question of law includes the issue raised in the relators’ and Agape’s appeals from the district court’s unreviewable veto ruling.

By contrast, § 1292(b) review is not appropriate where, for example, the question presented “turns on whether there is a genuine issue of fact or whether the district court properly applied settled law to the facts or evidence of a particular case.” See McFarlin, 381 F.3d at 1259; see also Harriscom Svenska AB v. Harris Corp., 947 F.2d 627, 631 (2d Cir. 1991) (“Where, as here, the controlling issues are questions of fact, or, more precisely, questions as to whether genuine issues of material fact remain to be tried, the federal scheme does not provide for an immediate appeal ....”). Significantly, there is “a distinction between a question of law, which will satisfy § 1292(b), and a question of fact or matter for the discretion of the trial court.” See McFarlin, 381 F.3d at 1258 (internal quotation marks omitted).

In its statistical sampling ruling, the district court determined that the use of statistical sampling evidence can sometimes be permissible, but is not appropriate here based on the particular facts and evidence in this case. Moreover, in their opening appellate brief, the relators clarify that “[t]he true question for the District Court is not whether statistical sampling and extrapolation, in and of itself, is appropriate.” See Br. of Relators 11 (emphasis added). Rather, the relators insist that the issue is whether their proposed “statistical sampling is conducted in a scientifically proven and accepted manner pursuant to the Supreme Court’s ruling in [Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ].” Id. Thus, the relators’ appeal raises the question of whether the district court may, in its discretion, allow the rela-tors to use statistical sampling to prove their case. See Bryte v. Am. Household, Inc., 429 F.3d 469, 475 (4th Cir. 2005) (“[T]he district court has broad latitude in ruling on the admissibility of evidence, including expert opinion, and we will not overturn Daubert evidentiary rulings with respect to relevance and reliability absent an abuse of discretion.”).

In these circumstances, we are satisfied that, as to the statistical sampling ruling, the relators’ appeal does not present a pure question of law that is subject to our interlocutory review under § 1292(b). Accordingly, although we understand and appreciate the district court’s desire to obtain review of its statistical sampling ruling prior to undertaking complex trial proceedings, we are constrained to dismiss that aspect of the relators’ appeal as improvidently granted.

III.

Pursuant to the foregoing, we affirm the district court’s unreviewable veto ruling and dismiss as improvidently granted the relators’ appeal as to the court’s statistical sampling ruling.

AFFIRMED IN PART AND DISMISSED IN PART

      . In addition to Agape Senior Community, Inc., the defendants are Agape Senior Primary Care, Inc.; Agape Senior Services, Inc.; Agape Senior, LLC; Agape Management Service, Inc.; Agape Community Hospice, Inc.; Agape Nursing and Rehabilitation Center, Inc.; Agape Senior Foundation, Inc.; Agape Community Hospice of Anderson, Inc.; Agape Hospice of the Piedmont, Inc.; Agape Community Hospice of the Grand Strand, Inc.; Agape Community Hospice of the Pee Dee, Inc.; Agape Community Hospice of the Upstate, Inc.; Agape Hospice House of Horry County, Inc.; Agape Hospice House of Lau-rens, LLC; Agape Hospice House of the Low Country, Inc.; Agape Hospice House of the Piedmont, Inc.; Agape Rehabilitation of Conway, Inc.; Agape Senior Services Foundation, Inc.; Agape Therapy, Inc.; Agape Hospice; Hospice Piedmont; Hospice Rock Hill; and Carolinas Community Hospice, Inc.

      . Like the initial Complaint, the Second Amended Complaint alleges claims under not only the FCA, but also the Anti-Kickback Statute, 42 U.S.C. § 1320a-7b, and the Health Care Fraud Statute, 18 U.S.C. § 1347.

      . To protect the confidentiality of the settlement negotiations, the district court sealed transcripts and other documents in which details of the proposed settlement were revealed. We thus do not specify herein the amount of the proposed settlement or the Attorney General’s other grounds for objection.

      . Briefs were separately filed in these appeals by the relators (challenging both the unre-viewable veto and statistical sampling rulings), Agape (challenging the unreviewable veto ruling and defending the statistical sampling ruling), and the government (defending the unreviewable veto ruling without addressing the statistical sampling ruling). Each participated in oral argument of these appeals.

      . We observed in a 1992 decision that, "[e]ven where the government allows the qui tam relator to pursue the action, the case may not be settled or voluntarily dismissed without the government’s consent.” See United States ex rel. Milam v. Univ. of Tex. M.D. Anderson Cancer Ctr., 961 F.2d 46, 49 (4th Cir. 1992). There, however, we were not called on to decide the extent of the Attorney General’s veto power. Rather, the issue before us was "whether the inapplicability of the Eleventh Amendment to suits brought by the United States extends to actions brought on the United States behalf by qui tam relators.” Id. at 47 (ruling "that it does”).

      . Notably, the relators have taken a different tack from Agape on appeal, conceding that "[i]t may be the case that the Government has the authority under [§ 3730(b)(1)] to reject a relator and defendant's settlement in a typical [FCA] matter in which the Government has declined to intervene.” See Br. of Relators 18-19. The relators argue instead that, because the Government engaged in a so-called "de facto intervention” in this action, the Attorney General's objection to the proposed settlement must be reviewed by the district court for reasonableness. Id. at 19. Unfortunately for the relators, their novel theory finds no support in the FCA.


author: CARL E. STEWART, Chief Judge:

text:
    REPUBLIC WASTE SERVICES OF TEXAS, LIMITED, Plaintiff-Appellant v. TEXAS DISPOSAL SYSTEMS, INCORPORATED, Defendant-Appellee
    No. 15-11035
    United States Court of Appeals, Fifth Circuit.
    December 15, 2016

      S. Shawn Stephens, King & Spalding, L.L.P., Houston, TX, Charles Lynde Bab-cock, Edwin McAllister Buffmire, Patrick R. Cowlishaw, General Counsel, Jackson Walker, L.L.P., Dallas, TX, James Patrick Sullivan, King & Spalding, L.L.P., Austin, TX, for Plaintiff-Appellant.
    James A. Hemphill, David Austin King, Graves, Dougherty, Hearon & Moody, P.C., Austin, TX, for Defendant-Appellee.
    Before STEWART, Chief Judge, and CLEMENT and HAYNES, Circuit • Judges.
   CARL E. STEWART, Chief Judge:

This case involves a dispute between two waste disposal service entities, Plaintiff-Appellant Republic Waste Services of Texas, Ltd. (“Republic”) and Defendant-Appellee Texas Disposal Systems, Inc. (“Texas Disposal”). At issue is a purported conflict between the Texas Health and Safety Code (“the Code”) and an exclusive contract for solid waste disposal services entered into by Republic and the city of San Angelo, Texas (“the City”). After a hearing, the district court granted Texas Disposal’s Rule 12(b)(6) motion to dismiss the suit and denied as moot Republic’s motion for partial summary judgment. For the following reasons, we reverse the part of the district court’s order granting Texas Disposal’s motion to dismiss, vacate the part of the order denying as moot Republic’s motion for partial summary judgment, and remand for further proceedings.

I. Facts & Procedural History

In July 2013, the City issued Texas Disposal a “Solid Waste Hauling Permit,” allowing it to transport and dispose of garbage, trash, and debris within city limits, and to render “any service that is allowed by state law or city ordinance that does not conflict with the City’s contract with Republic ... and the exclusive rights granted by that contract[.]” Then, in July 2014, pursuant to a city ordinance, Republic and the City entered into an agreement titled “Special Exclusive Contract for Solid Waste Collection and Disposal Services,” with an effective date of August 1, 2014. Under the terms of the contract, Republic was given the exclusive right to collect, transport, and dispose of all residential and non-residential solid waste, including temporary construction and demolition waste. The contract also contained a provision indicating that Republic, not the City, was responsible for enforcing its exclusivity in the event of legal proceedings.

At some point after the contract between the City and Republic went into effect, Texas Disposal began to contract for and provide solid waste disposal services to various construction projects in the City. Consequently, Republic sent Texas Disposal a cease-and-desist letter stating that its own contract with the City precluded Texas Disposal from entering into construction waste disposal contracts with the City’s residents and businesses. In response, Texas Disposal acknowledged the contract between Republic and the City but contended that its terms concerning solid waste management services for construction projects were unenforceable due to a conflict with Section 364.034(h) of the Code.

Republic disagreed and sued Texas Disposal in federal district court advancing a state law claim for tortious interference with an existing contract. Republic also sought: (1) a declaratory judgment as to the validity of its exclusive contract with the City, (2) an injunction against Texas Disposal’s continued waste disposal servicing of construction projects, and (3) money damages. In lieu of an answer, Texas Disposal filed a Rule 12(b)(6) motion to dismiss, arguing that Section 364.034(h) of the Code precluded the City from entering into exclusive contracts for temporary construction solid waste disposal services. See Fed. R. Civ. P. 12(b)(6). Republic then filed a motion for partial summary judgment on its declaratory judgment claim and as to liability on its tortious interference claim.

The district court conducted a hearing on both motions and rendered an order granting Texas Disposal’s motion to dismiss and denying as moot Republic’s motion for partial summary judgment. In its order, the district court reasoned that the plain wording of Section 364.034(h) conveyed the legislature’s “clear intent to take away the City’s inherent authority to grant exclusive [contract rights] in the specific instance of ‘contracts to provide temporary solid waste disposal services to a construction project.’ ” Republic filed this appeal.

II. Standard of Review

“This court reviews a district court’s dismissal under Federal Rule of Civil Procedure 12(b)(6) de novo, accepting all well-pleaded facts as true and viewing those facts in the light most favorable to the plaintiff.” Harris Cty. v. MERSCORP Inc., 791 F.3d 545, 551 (5th Cir. 2015) (internal quotation marks omitted) (citing Toy v. Holder, 714 F.3d 881, 883 (5th Cir. 2013)). A district court’s Rule 12(b)(6) dismissal may be affirmed on any grounds raised below and supported by the record. Harris Cty., 791 F.3d at 551.

We also conduct a de novo review of a district court’s denial of summary judgment, applying the same standard as the district court. Robinson v. Orient Marine Co., 505 F.3d 364, 365 (5th Cir. 2007). Summary judgment is appropriate if the record evidence shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Id. at 366; Fed. R. Civ. P. 56(a).

III. Discussion

“Home-rule” cities in Texas, such as San Angelo, derive their authority from the Texas constitution. See Tex. Const, art. XI, § 5. As the Texas Supreme Court has consistently acknowledged, “[h]ome-rule cities have the full power of self-government and look to the Legislature, not for grants of power, but only for limitations on their powers.” S. Crushed Concrete, LLC v. City of Hous., 398 S.W.3d 676, 678 (Tex. 2013) (citing Lower Colo. River Auth. v. City of San Marcos, 523 S.W.2d 641, 643 (Tex. 1975)). “An ordinance of a home-rule city that attempts to regulate a subject matter preempted by a state statute is unenforceable to the extent it conflicts with the state statute.” Dall. Merch’s & Concessionaire’s Ass’n v. City of Dall., 852 S.W.2d 489, 491 (Tex. 1993). Still, the mere fact that the legislature has enacted a law addressing a subject does not mean the subject matter is entirely preempted. Id. Rather, “[a] general law and a city ordinance will not be held repugnant to each other if any other reasonable construction leaving both in effect can be reached.” Id. Thus, “if the Legislature decides to preempt a subject matter normally within a home-rule city’s broad powers, it must do so with ‘unmistakable clarity.’ ” S. Crushed Concrete, 398 S.W.3d at 678 (citing In re Sanchez, 81 S.W.3d 794, 796 (Tex. 2002)). Further, “if the limitations arise by implication, the provisions of the law must be ‘clear and compelling to that end.’ ” City of Coll. Station v. Turtle Rock Corp., 680 S.W.2d 802, 807 (Tex. 1984) (providing that a statutory enumeration of powers is not to “be construed as an implied limitation on homé rule powers”).

In the recent case of Laredo Merchants Ass’n v. City of Laredo, a Texas appellate court addressed the unmistakable clarity rule in the context of a home-rule city ordinance that purportedly conflicted with part of the Solid Waste Disposal Act. No. 04-15-00610-CV, 2016 WL 4376627 (Tex. App. — San Antonio Aug. 17, 2016). There, the court was tasked with deciding whether Section 361.0961 of the Code preempted a checkout bag ordinance enacted by the home-rule city of Laredo that prohibited merchants in commercial establishments from providing paper or plastic “one-time-use” checkout bags to customers. Id. at *1. Section 361.0961 provides:

(a) A local government or other political subdivision may not adopt an ordinance, rule, or regulation to:
(1) prohibit or restrict, for solid waste management purposes, the sale or use of a container or package in a manner not authorized by state law[.]

Tex. Health & Safety Code Ann. § 361.0961. In considering this statutory language to be unmistakably clear, the court explained:

By its plain language, section 361.0961 specifically addresses a particular subject matter — the sale or use of containers or packages for solid waste management purposes — and is unmistakably aimed at prohibiting local governments from enacting certain ordinances. By prohibiting the adoption of an ordinance prohibiting or restricting that particular subject matter, section 361.0961 unmistakably limits a local government’s police powers[.]

Laredo Merchs., 2016 WL 4376627, at *5 (alterations, citations, and internal quotation marks omitted). The court concluded that the language in Section 361.0961 clearly preempted the checkout bag ordinance. Id. at *5, *7 (“[W]e hold the Ordinance is inconsistent with section 361.0961 of the Act and therefore unenforceable as a matter of law.” (citation omitted)).

Here, Republic argues that the district court erred in similarly concluding that the language in Section 364.034(h) of the Code conveyed the legislature’s clear intent to abrogate the City’s home-rule authority to enter into an exclusive contract for solid waste disposal services to a construction project. We agree.

Neither party disputes that San Angelo is a homer-rule city deriving its broad powers of self-government from the Texas constitution, and thus, any limitation by the legislature on those powers must be imposed with unmistakable clarity. Tex. Const. art. XI, § 5; S. Crushed Concrete, 398 S.W.3d at 678. It is true that Section 364.034(a) of the Code provides that a “public agency” or county may enter into an exclusive contract for solid waste disposal services and, further, that subsection (h) limits the scope of subsection (a) by indicating that it does not apply to construction projects. Tex. Health & Safety Code Ann. § 364.034(a),(h). However, because the City’s home-rule authority to enter into an exclusive contract for waste disposal services is inherent, and not derived from Chapter 364 or any other part of the Code, the language in subsection (h) limiting the scope of the general grant of authority conferred by subsection (a) is immaterial. Id. At most, the City’s inherent authority to enter into exclusive contracts of this kind is merely supplemented by subsection (a)’s language providing the same authority to public agencies and counties and remains intact regardless of subsection (h)’s limiting language. Id. This is not to say that the legislature could not limit the City’s home-rule authority to enter into an exclusive contract for the disposal of construction waste if it chose to do so with unmistakable clarity. But if the legislature were to limit the City’s authority in this respect, it would do so independently of any general grants of authority bestowed by the Code since a home-rule city does not look to the Code or other legislative acts for grants of power, only for limitations on its power. S. Crushed Concrete, 398 S.W.3d at 678.

Moreover, as Republic points out, subsection (f) — which employs very different language from subsection (h) — does indicate an unmistakably clear legislative intent to limit the City’s home-rule authority. There, the statutory language clearly and unmistakably limits the City’s home-rule authority to restrict the rights of other entities to contract for the removal of grease, grit, lint, and sand trap waste. Tex. Health & Safety Code Ann. § 364.034(f) (“Notwithstanding the other provisions of this section ... a county or a municipality [ ] may not restrict the right of an entity to contract with a licensed waste hauler for the collection and removal of domestic sep-tage or of grease trap waste, grit trap waste, lint trap waste, or sand trap waste.”). Unlike the language in subsection (h), the language in subsection (f) operates independently of any general grant of authority conferred by the Code and reads similarly to the languáge construed as unmistakably clear legislative intent in Laredo Merchants. See Laredo Merchs., 2016 WL 4376627, at *5 (citing Tex. Health & Safety Code Ann. § 361.0961) (“A local government ... may not adopt an ordinance ... to ... prohibit or restrict, for solid waste management purposes, the sale or use of a container or package in a manner not authorized by state law[.]”); S. Crushed Concrete, 398 S.W.3d at 679 (holding that a statute stating that “a city ordinance ‘may not make unlawful a condition or act approved or authorized under [the Act] or the [C]ommission’s rules or orders’ ” was unmistakably clear); cf. Quick v. City of Austin, 7 S.W.3d 109, 122-23 (Tex. 1998) (reasoning that silence will not be construed as unmistakably clear legislative intent to limit a home-rule city’s authority on an issue). In contrast, the language in subsection (h) is not unmistakably clear in this regard and, at best, appears to only define the limitations of the section itself — as opposed to the City’s limitations. See Tex. Health & Safety Code Ann. § 364.034(h) {“This section does not apply to a private entity that contracts to provide temporary solid waste disposal services to a construction project.” (emphasis added)).

In light of these reasons, we hold that the language in Section 364.034(h) fails to indicate with unmistakable clarity that the legislature intended to restrict a home-rule city’s authority to enter into an exclusive contract for solid waste disposal services to a construction project. See S. Crushed Concrete, 398 S.W.3d at 678. Accordingly, we hold that the district court erred in granting Texas Disposal’s Rule 12(b)(6) motion to dismiss.

IV. CONCLUSION

The part of the district court’s order granting Defendant-Appellee’s Rule 12(b)(6) motion to dismiss is reversed and the part of the order denying as moot Plaintiff-Appellant’s motion for summary judgment is vacated. The case is remanded for further proceedings consistent with this opinion.

      . Although the City issued the permit to Texas Disposal in 2013 — -a year prior to entering into a contract with Republic in 2014 — the terms of the permit nevertheless prohibit Texas Disposal from rendering services that conflict with the City's contract with Republic.

      . San Angelo, Tex., Code of Ordinances ch. 11, art. 11.04.003(d).

      . Under Section 364.034(a) of the Code, a public agency — which is defined to include municipalities — may enter into an exclusive contract for solid waste disposal services. Tex. Health & Safety Code Ann. § 364.034(a) (“A public agency or a county may: (1) offer solid waste disposal service to persons in its territory; (2) require the use of the service by those persons; (3) charge fees for the service; and (4) establish the service as a utility separate from other utilities in its territory.”). Subsection (h) states that ”[t]his section does not apply to a private entity that contracts to provide temporary solid waste disposal services to a construction project.” Id. § 364.034(h).

      . Section 364.003(3) provides: “Public agency means a district, municipality, regional planning commission created under Chapter 391, Local Government Code, or other political subdivision or state agency authorized to own and operate a solid waste collection, transportation, or disposal facility or system.” Tex. Health & Safety Code Ann. § 364.003(3).

      . Chapter 363 of the Code is short-titled the “Comprehensive Municipal Solid Waste Management, Resource Recovery, and Conservation Act” and also provides municipalities and counties with the authority to contract for solid waste disposal services. Id. §§ 363.001, 363.117(4).

      . The record reveals that the district court and both parties — with good reason — indicated uncertainty as to what effect, if any, subsection (e) has on subsection (h). See Tex. Health & Safety Code Ann. § 364.034(e). Subsection (e) provides in relevant part that "[n]othing in this section shall limit the authority of a public agency, including a county or a municipality, to enforce its grant of a franchise or contract for solid waste collection and transportation services within its territory.” Id. It is unclear if all or only part of subsection (e) is removed from the purview of subsection (h). Id. However, because the effect of subsection (e) on subsection (h) is not dispositive to our holding on appeal, we decline to decide the issue today. Id.


author: REAVLEY, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee v. Dantana TANKSLEY, Defendant-Appellant
    No. 15-11078 Conference Calendar
    United States Court of Appeals, Fifth Circuit.
    FILED January 18, 2017

      Brian W. McKay, Esq., James Wesley Hendrix, Assistant U.S. Attorneys, U.S. Attorney’s Office, Dallas, TX, for Plaintiff-Appellee.
    Jessica Graf, Taylor Wills Edwards Brown, Christopher Allen Curtis, Assistant Federal Public Defender, Federal Public Defender’s Office, Fort Worth, TX, Jason Douglas Hawkins, Federal Public Defender, Federal Public Defender’s Office, Dallas, TX, for Defendant-Appellant.
    Before REAVLEY, ELROD, and GRAVES, Circuit Judges.
   REAVLEY, Circuit Judge:

In light of Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016), and United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016), we granted defendant Dantana Tanksley’s motion for panel rehearing to decide whether United States v. Ford, 509 F.3d 714 (5th Cir. 2007), still represents the law. Ford held that a conviction for possession with intent to deliver a controlled substance under section 481.112(a) of the Texas Health and Safety Code (“Section 481.112(a)”) qualifies as a “controlled substance offense” under the United States Sentencing Commission Guidelines Manual (the “Guidelines”). On rehearing, our prior panel opinion is WITHDRAWN; and this opinion is SUBSTITUTED therefor.

I.

In 2015, Tanksley pleaded guilty to violating 18 U.S.C. § 922(g), which prohibits convicted felons from possessing firearms. At sentencing, the district court found that a prior conviction under Section 481.112(a) for possession with intent to deliver a controlled substance constituted a “controlled substance offense” within the meaning of the Guidelines, § 4B1.1. Tanksley objected to this particular enhancement but conceded his objection was foreclosed by Ford. Tanksley then appealed, again conceding that Ford foreclosed this argument. Indeed, both of the arguments Tanksley made on appeal — he also disputed the constitutionality of 18 U.S.C. § 922(g) — were admittedly foreclosed, and we granted the government’s unopposed motion for summary affirmance. See United States v. Tanksley, Case No. 15-11078, 2016 WL 4375058 (5th Cir. Aug. 16, 2016). Shortly before we affirmed Tanksley’s conviction and sentence, the Supreme Court issued Mathis. Based on that decision and this Court’s decision in Hinkle, Tanksley moved for panel rehearing. We granted the motion.

Mathis is relevant to the district court’s determination that the Section 481.112(a) conviction represented a controlled substance offense under the Guidelines. “In determining if a prior conviction is for an offense enumerated or defined in a Guidelines provision, we generally apply the categorical approach and look to the elements of the offense enumerated or defined by the Guideline section and compare those elements to the elements of the prior offense for which the defendant was convicted.” United States v. Howell, 838 F.3d 489, 494 (5th Cir. 2016). Some criminal statutes, however, are “divisible,” meaning a single statute “define[s] multiple crimes.” Mathis, 136 S.Ct. at 2249. The Supreme. Court has “approved the ‘modified categorical approach’ for use with statutes having multiple alternative elements,” permitting courts to examine “a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of.” Id. With the precise crime thus identified, the court can then apply the categorical approach, asking whether that precise crime matches the Guidelines offense at issue. Id.

Some criminal statutes appear divisible but are not. These statutes, rather than providing alternative elements, instead list “various factual means of committing a single element.” Id. In Mathis, the Supreme Court held that the modified categorical approach is not appropriate for this species of criminal statute. Id. at 2257. More importantly here, it also “provided helpful guidance for determining whether a predicate statute of conviction is divisible.” United States v. Uribe, 838 F.3d 667, 670 (5th Cir. 2016). This factual and legal backgrounded concluded, we turn to our analysis.

II.

We have been asked to find an otherwise controlling precedent obsolete. While the defendant argues that, together, Mathis and Hinkle put Ford into doubt, it is appropriate to focus our inquiry on Mathis. This is because, under the rule of orderliness, “one panel of this Court may not overrule another.” United States v. Segura, 747 F.3d 323, 328 (5th Cir. 2014) (quoting Cent. Pines Land Co. v. United States, 274 F.3d 881, 893 (5th Cir. 2001)). As a corollary, “to the extent that a more recent case contradicts an older case, the newer language has no effect.” Arnold v. U.S. Dep’t of Interior, 213 F.3d 193, 196 n.4 (5th Cir. 2000). If, however, a Supreme Court decision, “expressly or implicitly” overrules one of our precedents, we have the authority and obligation to declare and implement this change in the law. See United States v. Kirk, 528 F.2d 1057, 1063 (5th Cir. 1976). “Such an intervening change in the law must be unequivocal, not a mere ‘hint’ of how the Court might rule in the future.” United States v. Alcantar, 733 F.3d 143, 146 (5th Cir. 2013). Accordingly, only Mathis can inter Ford, and we ignore Hinkle while asking whether the Supreme Court unequivocally abrogated Ford.

Under Section 481.112(a), “a person' commits an offense if the person knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance” as defined elsewhere in the Code. Ford’s feature holding was that a conviction for ‘“possession with an intent to deliver’ a controlled substance under section 481.112(a) ... can be used as a basis for a sentence enhancement as a ‘controlled substance offense’ under” the Guidelines. 509 F.3d at 715. That holding, if still applicable, controls this case because the defendant here was also convicted of possession with intent to deliver a controlled substance.

More important for our purposes, however, is Ford’s necessary predicate holding — that Section 481.112(a) is a divisible statute such that (1) use of the modified categorical approach is appropriate and (2) “possession with intent to deliver” a controlled substance is a distinct crime from mere delivery of that same controlled substance. This holding was crucial because, in United States v. Gonzales, 484 F.3d 712 (5th Cir. 2007) (per curiam), we had already held that a conviction for delivery of a controlled substance under that same Section 481.112(a) was not a “drug trafficking offense” under the Guidelines. There being no substantive difference between a “controlled substance offense” and a “drug trafficking offense” under the Guidelines, the holding in Gonzales would necessarily control the outcome in Ford if Section 481.112(a)’s reference to manufacture, delivery, and possession with intent to deliver merely set forth three ways to commit one crime rather than three separate crimes.

To reconcile Gonzales, Ford explained that the “significant distinction” was that defendant Jason Jermaine Ford been convicted “for possession with the intent to deliver rather than just delivery or transportation.” Ford, 509 F.3d at 717. In other words, possession with intent to deliver and actual (or mere) delivery are two separate crimes — one that qualifies as a controlled substance offense, one that does not. We have subsequently recognized and maintained this line drawn in Ford. See Vasquez-Martinez v. Holder, 564 F.3d 712, 718-19 (5th Cir. 2009). And, prior to Mathis, Section 481.112(a)’s status as a divisible statute subject to a modified categorical approach was firmly established. See, e.g., United States v. Garcia-Arellano, 522 F.3d 477, 480 (5th Cir. 2008).

The government contends that Ford does not utilize the modified categorical approach, but the court in Ford looked at the defendant’s indictment to determine that he had been convicted of possession with intent to deliver a controlled substance rather than “just” delivery of a controlled substance. 509 F.3d at 717. This is the modified categorical approach. In Mathis, the Supreme Court clarified when this approach is proper: where a single statute lists elements in the alternative, and thereby defines multiple crimes. 136 S.Ct. at 2249. Because Ford concludes that. Section 481.112(a) contained distinct criminal offenses, it complies with this aspect of Mathis. Accordingly, if the Supreme Court had merely resolved the circuit split on when the modified categorical approach is proper, we would be unable to say that it unequivocally abrogated Ford.

The Supreme Court went further though, and also instructed courts on how to identify truly divisible statutes. Mathis explains that, in “easy” cases, a state court decision directly provides an answer. Id. at 2256. Thus, “[i]n light of Mathis, we know that we must determine whether ‘listed items’ in a state statute ‘are elements or means,’ and if ‘a state court decision definitively answers the question’ our inquiry is at an end.” Howell, 838 F.3d at 498.

Mathis, which dealt with an Iowa burglary statute, was an easy case:

The listed premises in Iowa’s burglary law, the State Supreme Court held, are “alternative method[s]” of committing one offense, so that a jury need not agree whether the burgled location was a building, other structure, or vehicle. [State v. Duncan, 312 N.W.2d 519, 523 (Iowa 1981).] When a ruling of that kind exists, a sentencing judge need only follow what it says.

Mathis, 136 S.Ct. at 2256.

Here, too, a state court decision settles the question. In Lopez v. State, Texas’ highest criminal court was “asked to decide whether a person’s offer to sell three kilos of cocaine in the morning and his possession of cocaine with the intent to deliver it to complete that same sale in the evening constitutes one offense or two.” 108 S.W.3d 293, 294 (Tex. Crim. App. 2003). Thus, the case was specifically about whether delivery (an offer to sell a controlled substance amounts to delivery under Texas law, see Tex. Health & Safety Code § 481.002(8)) and possession with intent to deliver were separate offenses. The court held that “Section 481.112 provides several different means for committing the offense of delivery of a single quantity of drugs so that, no matter where along the line of actual delivery — from the offer to sell, to the possession of the drugs with the intent to deliver them, to the actual delivery itself — the drug dealer may be held accountable for the gravamen of the offense — the distribution of dangerous drugs in our society.” Id. at 299-300 (emphasis added). The means or elements question has been directly answered by the Texas court.

Mathis is “more than merely illuminating with respect to the case before us;” it unequivocally resolves the question in favor of Tanksley. See In re Texas Grand Prairie Hotel Realty, L.L.C., 710 F.3d 324, 331 (5th Cir. 2013) (quoting Reed v. Fla. Metro. Univ., Inc., 681 F.3d 630, 648 (5th Cir. 2012)). Ford cannot stand. Section 481.112(a) is an indivisible statute to which the modified categorical approach does not apply.

We note that Hinkle reached essentially the same result for the same reasons. See 832 F.3d at 574-76. The government does not dispute Hinkle, instead describing it as “merely a straightforward application of Mathis.” (Gov. Supp. Br. at 11.) We agree with this characterization. However, the government’s only plausible line of argument was that, under the rule of orderliness, Hinkle must be disregarded to the extent it is incompatible with Ford. This is because, contrary to the government’s position, Section 481.112(a) cannot be divisible if violated by mere delivery and indivisible if violated by possession with intent to deliver. Under such a reading, courts would be required to undertake a modified categorical approach analysis simply to determine if the modified categorical approach is proper. The legal physics at play simply will not be permit a single statute to be both divisible and indivisible. Hin-kle’s holding that Section 481.112 is divisible was vulnerable to challenge only under the rule of orderliness, and we now reject that challenge.

Because the modified categorical approach is inappropriate in this case, we cannot use it to “narrow” Tanksley’s conviction to “possession with intent to deliver” a controlled substance. See Howell, 838 F.3d at 499. We instead look to Section 481.112(a) as a whole in determining whether his conviction thereunder qualifies as a controlled substance offense under the Guidelines. Section 481.112(a) “criminalizes a ‘greater swath of conduct than the elements of the relevant [Guidelines] offense.’ ” Hinkle, 832 F.3d at 576 (quoting Mathis, 136 S.Ct. at 2251). Tanksley’s conviction under that statute does not qualify as a controlled substance offense under the Guidelines. Id.

III.

The government contends that any error was harmless. “[T]he harmless error doctrine applies only if the proponent of the sentence convincingly demonstrates both (1) that the district court would have imposed the same sentence had it not made the error, and (2) that it would have done so for the same reasons it gave at the prior sentencing.” United States v. Ibarra-Luna, 628 F.3d 712, 714 (5th Cir. 2010).

Here, the district court stated that “[e]ven if the guideline calculations are not correct, this is the sentence the Court would otherwise impose under 18 U.S.C. § 3558.” Similar statements have been sufficient to establish harmless error in other cases. See United States v. Richardson, 713 F.3d 232, 237 (5th Cir. 2013); United States v. Garcia, 647 Fed.Appx. 408, 410 (5th Cir. 2016). Nonetheless, it is not enough for the district court to say the same sentence would have been imposed but for the error. See United States v. Bazemore, 608 Fed.Appx. 207, 216 (5th Cir. 2015). “The government must point to evidence in the record that convincingly demonstrates the district court would impose the same sentence for the same reasons.” United States v. Hernandez-Montes, 831 F.3d 284, 296 (5th Cir. 2016)

In this case, our review of the record does not convince us that the within-Guidelines sentence imposed by the district court had nothing to do with the Guidelines calculation. See id. at 295 (To establish harmless error, “the government ‘must show that the [sentence] the district court imposed was not influenced in any way by the erroneous Guideline calculation.’” (quoting United States v. Ramos, 739 F.3d 250, 253 (5th Cir. 2014))). At the sentencing hearing, the district court overruled Tanksley’s objection to the Guidelines, § 4B1.1 enhancement, expressly adopted the probation officer’s Guidelines calculation, and pointed out that the sentence was at “the bottom of the guidelines.” The district court’s Statement of Reasons indicates Tanksley was not sentenced “outside the advisory guideline system” and that “the Court considered the advisory guidelines.” We cannot say “with the requisite certainty” that the error was harmless. See Ibarra-Luna, 628 F.3d at 719.

IV.

Tanksley’s unopposed motion for leave to file a reply brief is GRANTED. Tanks-ley’s sentence is VACATED, and we REMAND for resentencing.

      . Our approach would be different if Hinkle had considered whether Mathis unequivocally overruled Ford. Such a ruling would have resolved this case as well. Hinkle did not take this approach, instead simply recognizing that its conclusion is potentially “contrary to prior precedent of this court” and identifying one affected case, United States v. Garcia-Arellano, 522 F.3d 477 (5th Cir. 2008). See 832 F.3d at 574-57 & n.27. Accordingly, Mathis’s impact on our precedents was not settled by that case.