author: GREGG COSTA, Circuit Judge:

text:
    Albert P. MALVINO, representative of the estate of Bonnie Pereida, deceased, Plaintiff-Appellee v. Paul A. DELLUNIVERSITA; PCA Collectibles, Incorporated; PCI Coin Grading, Incorporated; Tony John Delluniversita, Defendants-Appellants
    No. 15-41435
    United States Court of Appeals, Fifth Circuit.
    Filed October 20, 2016

      Raymond Lyn Stevens, Stevens Baldo Freeman & Lighty, L.L.P., Beaumont, TX, Austin W. Anderson, Attorney, Corpus Christi, TX, for Plaintiff-Appellee.
    Farbod Farnia, Paul A. Grinke, McCath-ern, P.L.L.C., Dallas, TX, for Defendants-Appellants.
    Before KING, SMITH, and COSTA, Circuit Judges.
   GREGG COSTA, Circuit Judge:

As she approached retirement, Bonnie Pereida spent hundreds of thousands of dollars on rare coins. She thought the coins would be a good hedge against inflation. After she passed away, an appraisal revealed that her coin collection included a counterfeit coin, damaged coins, -and coins worth far less than expected. It turned out that the majority owner of the company that sold her the coins also owned the company that acted as a purportedly independent grader of the coins, and the grades it had assigned did not reflect the coins' value.

The executor of Pereida’s estate sued and obtained a $1,610,802 judgment on claims brought -under the Racketeer Influenced and Corrupt Organizations Act (RICO). This appeal requires us to decide two questions: 1) did the RICO claim survive Pereida’s death?; and 2) did the evidence establish the pattern of criminal conduct that RICO requires?

Although we conclude that Pereida’s RICO claims survived, Malvino did not prove a pattern of racketeering activity at trial. We therefore reverse the judgment and remand for further proceedings as to state law claims on which -the district court did not enter judgment.

I

During the first five months of 2011, Pereida made 31 purchases from PCA Collectibles, Inc. acquiring 135 coins for $727,569. Pereida was not an expert in numismatics, the study or collection of rare and valuable coins. Coins are valued according to rarity and condition. Rarity is based on “mintage,” the number of coins originally minted, as well as the number that have survived. The same rare coin’s value can vary wildly based on condition. So collectors have adopted a grading scale. They use descriptors such as “MS” for “mint state” (meaning original condition), or “AU” for “about uncirculated” (meaning very little wear- from use).- A numeric scale running from -one to seventy makes finer distinctions. A coin graded AU50 is slightly more damaged -than a coin graded AU55. An MS70 is in perfect condition. Collectors, especially unsophisticated collectors, rely on these grades to determine coins’ value. Numismatics is unregulated, however, and whether a grade actually reflects a coin’s value depends on whether the grade was assigned consistent with industry standards.

PCA is a rare coins dealer owned by Anthony Delluniversita and his son, Paul Delluniversita. Paul, who owns 40% of PCA, serves as its president, but in practice his sole job is ensuring that sales representatives are on the phone making sales; Anthony, who owns 60%, manages all other operations, including training salespeople and setting coin prices.

Each coin PCA sold Pereida came with an invoice that showed the grade as determined by “independent third party” grader PCI Coin Grading, Inc. Anthony, however, owned and operated PCI, which he had purchased in November 2010. He was also PCI’s sole coin grader, although he had no formal training in numismatics. For each coin PCA sold to Pereida, Anthony had purchased it, through PCA, in'a “raw,” or ungraded, state and personally assigned it a PCI grade. Just over a year after he purchased the company, Anthony sold PCI in late 2011.

Pereida passed away in October 2011. Her former flaneé, Albert Malvino, became executor of her estate. Malvino had the coin collection appraised for tax purposes by Heritage Auction Appraisal Services, a leading coin valuation company. Heritage determined that the fair market value of the PCA coins was only $190,865, or 26.2% of the amount Pereida paid. Heritage found that PCI overgraded coins, failed' to identify a counterfeit coin, and improperly graded “cleaned” coins. Malvino then retained Paul Montgomery, an experienced coin grader, for a second opinion. Montgomery found the collection was worth $150,964 at the time of purchase, or 20.8% of what Pereida paid. Like Heritage, he found patterns of overgrading and selective overgrading to take advantage of significant changes in valuation for small grade variances. Montgomery graded all of Pereida’s coins lower than PCI did. Like Heritage, he identified a counterfeit coin and twenty five coins that were ungradáble because they were cleaned or damaged. Montgomery sought another opinion from the Professional Coin Grading Service, which confirmed his conclusion (and that of Heritage) that the coins were worth about half a million dollars less than what Perei-da paid.

Malvino filed suit against Anthony and Paul, PCA, and PCI, asserting a substantive civil RICO violation predicated on mail fraud and wire:fraud; conspiracy to violate RICO; various state common law claims including fraud,- fraudulent concealment, and negligent misrepresentation; civil conspiracy to commit the state common law violations; and violations of the Texas Deceptive Trade Practices Act.

After a bench trial,, the district' court dismissed the Texas Deceptive Trade Practices Act claims- on the ground that they did not survive Pereida’s death. The court ruled in Malvino’s favor, however, on the fraud, negligent misrepresentation, and civil conspiracy claims asserted against PCA and PCI, and held Anthony personally responsible for damages associated with the claims. For these common law claims, the court found economic damages of $536,934 and exemplary damages in the same amount.

The court also found Anthony and PCA liable under both the substantive and conspiracy provisions of civil RICO. It held that'these claims survived Pereida’s death, reasoning that RICO is primarily a remedial statute. Under RICO’s treble damages provision, the court calculated damages in the amount of $1,610,802. It also noted that RICO allows a prevailing, plaintiff to recover attorneys’ fees, which totaled $280,190.

Although it calculated damages for the common law claims and the federal statutory ones, the district court concluded that Texas’s one satisfaction rule' did not allow for recovery under both. It therefore asked Malvino to elect between the two. Malvino sought to recover the RICO damages against Anthony and PCA, and damages for the - common law claims against PCI, but the district court found this would impermissibly allow a double recovery. It thus entered judgment only on the RICO claims, against Anthony and PCA.

Defendants moved for a new trial, contending, among other things, that Malvino did not prove they had “engaged in illegal activity over a sufficient period of time to be considered ‘racketeering activity’ for purposes of RICO.” The district court denied that motion, and the Defendants appealed.

II

Defendants, first argue that a RICO claim does not survive the victim’s death. We have characterized survivability as an issue of standing. See Matter of Wood, 643 F.2d 188, 190 (5th Cir. 1980) (stating that a trustee would have “standing” to press a decedent’s claim under the Truth in Lending Act’s .civil liability provisions only if the claim survived the plaintiffs death). Standing comes in many different forms. Cotton v. Certain Underwriters at Lloyd’s of London, 831 F.3d 592, 594-95 (5th Cir. 2016). If survivability involves the constitutional variety of standing, then it goes to our jurisdiction and must be addressed first. See Spokeo, Inc. v. Robins, — U.S. -, 136 S.Ct. 1540, 1547-48, 194 L.Ed.2d 635 (2016).

Survivability does not, however, appear to be a question of Article III standing. Article III requires that a plaintiff must have suffered a concrete injury in fact. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The RICO violation caused such an injury to Pereida to the tune of more than $500,000. As a result, it also caused the same economic injury to her estate. Absent the alleged fraud, her estate would have more money. The existence of constitutional injury is reflected by longstanding federal statutes which provide that causes of action survive the death of a party, thus extending the right to sue to representatives of a party’s estate. See 7C ChaRles Alan Wright, et al„ Fed. Prac. & Proc. Civ, § 1954, § 1954 n.ll (3d ed. 2007) (citing, as an example, the Federal Employers’ Liability Act). No court has questioned Congress’s authority to extend the right to sue in this way, which it could not do if the estate otherwise lacked constitutional injury. Spokeo, Inc., 136 S.Ct. at 1547-48.

Whether the RICO claim survives the injured party’s death is thus more accurately viewed as a question of statutory standing. See Lexmark Int'l, Inc. v. Static Control Components, Inc., — U.S. -, 134 S.Ct. 1377, 1387, 1387 n.4, 188 L.Ed.2d 392 (2014) (noting that statutory standing turns on “whether a legislatively conferred cause of action encompasses a particular plaintiffs claim”). Although RICO’s survivability therefore goes to whether Malvino has a cause of action, as opposed to whether the court has jurisdiction, id. statutory standing is often treated as a threshold issue. See United States v. All Funds on Deposit with R.J. O’Brien & Associates, 783 F.3d 607, 612-16 (7th Cir. 2015) (finding, as a “threshold issue[ ],” that plaintiffs had statutory standing to sue under the Terrorism Risk Insurance Act before finding they failed to prove a claim under the Act); Hanover 3201 Realty, LLC v. Vill. Supermarkets, Inc., 806 F.3d 162, 171-78 (3d Cir. 2015) (addressing statutory standing under the Clayton Act as a nonjuris-dictional “threshold issue”). It makes sense to treat it that way here.

The general rule for the survivability of federal statutes is that penal statutes do not survive, whereas remedial statutes do. In re Wood, 643 F.2d at 190 (citing Ex parte Schreiber, 110 U.S. 76, 80, 3 S.Ct. 423, 28 L.Ed. 65 (1884)). The idea that “any obligation which is penal dies with the person; but that an obligation to restore something does not” has existed in English law since at least the thirteenth century. 3 W. S. HoldswoRth, A HistoRY of English Law, at 577 (5th ed. 1966) (citing thirteenth century English jurist Henry de Bracton). Over time, this notion of remedial laws that survive a person’s death has expanded from contract, to real property, to a wide variety of laws. Id. at 576-585; 7C Fed. Prag & Proc. Civ. § 1954. The reason for the different treatment of remedial and penal laws is unclear. See Note, Survival of Actions Brought Under Federal Statutes, 63 Colum, L. Rev. 290, 290-91 (1963). One possible explanation is that, when the rule developed, the administrator of an estate was obligated to make restitution for the decedent’s wrongs for the good of the decedent’s soul, and ecclesiastical courts oversaw the administration of estates, providing relief not available in common law courts, so there was no need to enforce penal law against estates in common law courts. Holdsworth, A History of English Law, at 582-83. This does not explain why an estate would not have a right to sue under penal statutes, and, in fact, estates’ rights to sue expanded more quickly than their liabilities to suit. Id. at 583-85. Eventually, however, those rights and liabilities became essentially coextensive. See id.; 7C Fed. Prac. & Proc. Civ. § 1954. And “the federal law of survival has clung to its common law antecedents.” Note, Survival of Actions Brought Under Federal Statutes, at 291.

Whether a statute is penal or remedial turns on “whether the wrong sought to be redressed is a wrong to the public, or a wrong to the individual.” In re Wood, 643 F.2d at 191 (quoting Huntington v. Attrill, 146 U.S. 657, 668, 13 S.Ct. 224, 36 L.Ed. 1123 (1892)). Factors to consider include: “(1) whether the purpose of the statute was to redress individual wrongs or more general wrongs to the public; (2) whether recovery under the statute runs to the harmed individual or to the public; and (3) whether the recovery authorized by the statute is wholly disproportionate to the harm suffered.” Id. (quoting Murphy v. Household Fin. Corp., 560 F.2d 206, 209 (6th Cir. 1977)).

Focusing on the last inquiry, Defendants argue that the availability of treble damages under RICO demonstrates the statute is punitive. But a number of statutes that provide remedies beyond actual damages have been held to be remedial and thus survive. In Wood, we recognized that the Truth in Lending Act, by affording a debtor statutory damages of twice the amount of an unauthorized charge even without a showing of actual damages, “effectively imposes a penalty on the creditor.” Id. at 190. “That a penalty [was] imposed, however, [did] not end our inquiry.” Id. Instead, recognizing that the statute’s liability did not “fall neatly within the common law categories of either a penalty or a remedial action,” we considered the primary purpose of the statute and, finding it remedial, concluded that the cause- of action survived. Id. at 192 (quoting Porter v. Household Finance Corp., 385 F.Supp. 386, 342 (S.D. Ohio, 1974)). We noted that both the antitrust and patent laws authorize recoveries “substantially in excess of ‘actual’ damages but [ ] have been held not to be penalties (and thus to survive).” Id. at 193 n.12,

Likewise, the availability of treble damages under RICO does not prevent it from being classified as a remedial statute. The Supreme Court has “repeatedly acknowledged that the treble-damages provision contained in RICO itself is remedial in nature.” PacifiCare Health Sys., Inc. v. Book, 538 U.S. 401, 406, 123 S.Ct. 1531, 155 L.Ed.2d 578 (2003) (determining that civil RICO claims should be sent to arbitration although arbitration clauses in the parties’ agreements prohibited awards of “punitive damages”); see also Shearson/Am. Exp., Inc. v. McMahon, 482 U.S. 220, 240, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987) (explaining that RICO’s legislative history emphasizes “the remedial role of the treble-damages provision” and shows that other purposes of RICO damages are “secondary”). RICO is “designed to remedy economic injury by providing for the recovery of treble damages.” PacifiCare, 538 U.S, at 406, 123 5.Ct. 1531 (quoting Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U.S. 143, 151, 107 S.Ct. 2759, 97 L.Ed.2d 121 (1987)). Treble damages, which unlike traditional punitive damages are derived from actual damages, ensure the plaintiff is adequately compensated “by counterbalancing the difficulty of maintaining a private suit.” See Am. Soc. of Mech. Engineers, Inc. v. Hydrolevel Corp., 456 U.S. 556, 575, 102 S.Ct. 1935, 72 L.Ed.2d 330 (1982) (quoting Brunswick Corp. v. Pueblo Bowlr-O-Mat, Inc., 429 U.S. 477, 486 n.10, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977)); see also Cook Cty., Ill. v. U.S. ex rel. Chandler, 538 U.S. 119, 131, 123 S.Ct. 1239, 155 L.Ed.2d 247 (2003) (noting that, under the False Claims Act, multiple damages “provide elements of make-whole recovery beyond mere recoupment of the fraud”). Consistent with this remedial purpose, RICO damages are awarded to the harmed individual rather than the public.

Even before these strong pronouncements in PacifiCare, the Fourth Circuit concluded that civil RICO survives a plaintiffs death. Faircloth v. Finesod, 938 F.2d 513 (4th Cir. 1991). Recognizing that “civil RICO is a square peg, and squeeze it as we may, it will never comfortably fit in the round holes of the remedy/penalty dichotomy,” it- found a. claim under the statute survived the death of the injured party because Congress “explicitly declared the purpose of RICO to be ‘remedial’ and directed that it be ‘liberally construed’ to effect this- purpose.” Id. at 518 (quoting Pub. Law No. 91-452, tit. IX § 904(a), 84 Stat. 947, reprinted 18 U.S.C. foil. § 1961).

Defendants argue that our recent decision in Gil Ramirez Group v. Houston Independent School District, 786 F.3d 400 (5th Cir. 2015), rejects treating RICO as remedial. Gil Ramirez notes what the Fourth Circuit had recognized in Fair-cloth-. that RICO serves both compensatory and punitive purposes. Id. at 412-13. As between the two, it acknowledges the Supreme Court’s view that RICO’s treble damages provision is primarily remedial Id. at 413 (quoting Pacificare, 538 U.S. at 406, 123 S.Ct. 1531). But that did hot resolve the question in Gil Ramirez, which was whether RICO damages could be awarded against municipal entities.- Id. at 405-13. We concluded that municipal-entities are immune from damages that are at all punitive. Id. at 412-13. The dual nature of RICO damages therefore prevented any recovery against municipal entities in Gil Ramirez. But in deciding the survivability question which turns on the primary nature of the statute, we follow the Supreme Court’s guidance that RICO’s remedial purpose predominates and hold' that- a claim under the statute survives the victim’s death.

Ill

Malvino was thus able to pursue a RICO claim on behalf of Pereida’s estate at trial. Defendants argue that 'he did not successfully do so because there was insufficient proof of an essential element of RICO— that the defendant engaged in a pattern of racketeering activity. See 18 U.S.C. § 1962(c); St. Germain v. Howard, 556 F.3d 261, 263 (5th Cir. 2009).

Malvino contends that the Defendants waived this challenge - to. the “pattern” element by raising it for the first time in their motion for a new trial.- It should have been raised, he argues, in a motion for summary judgment so he would have known that this was a contested issue. The argument says a lot about modern civil litigation in which summary judgment, rather than trial, has become the focus. But when a case does go to trial, the burden is on the plaintiff to prove every element. That bedrock principle does not depend on whether the defendant filed a pretrial motion challenging the evidence to support a claim. Nor does the ability to seek appellate review of the sufficiency of the evidence at trial. Colonial Penn Ins. v. Mkt. Planners Ins. Agency Inc., 157 F.3d 1032, 1036 (5th Cir. 1998) (“We see no reason why [a defendant], following a bench trial, cannot argue now for the first time that the court’s findings were clearly erroneous or that they cannot support the judgment.”). We thus can consider whether the district court clearly erred in concluding that Malvino proved a pattern of racketeering activity.

To establish that pattern, a plaintiff must show both a relationship between the predicate offenses—here mail fraud and wire fraud—and the threat of continuing activity. H.J. Inc. v. Nw. Bell Tel Co., 492 U.S. 229, 239, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989). These requirements keep civil RICO focused on the long term criminal conduct Congress intended it to address, see Sedima, S.P.R.L. v. Imrex Co,, 473 U.S. 479, 496 n.14, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985), and “prevent RICO from becoming a surrogate for garden-variety fraud actions properly brought under state law,” Tabas v. Tabas, 47 F.3d 1280, 1310 (3d Cir. 1995) (quoting Midwest Grinding Co. v. Spitz, 976 F.2d 1016, 1022 (7th Cir. 1992)).

Defendants challenge only the “threat of continuing activity,” or “continuity,” element. There are two ways to demonstrate continuity: (1) a “closed period of repeated conduct;” or (2) ah open-ended period of conduct that “by its nature projects into the future with a threat of repetition.” H.J. Inc., 492 U.S. at 241, 109 S.Ct. 2893. The district court found that there was a “pattern of racketeering activity because [Anthony and PCA] committed mail and wire fraud against Pereida on at least 31 separate occasions....”

Because of the brief time frame during which those sales to one individual occurred, they do not support a finding of closed-ended continuity. A closed period of repeated conduct requires predicate acts that extend over a “substantial period of time.” Id. at 242, 109 S.Ct. 2893. “Predicate acts extending over a few weeks or months ... do not satisfy this requirement.” Id. We have found seven months of activity insufficient. Tel-phonic Services, Inc. v. TBS Int’l, Inc., 975 F.2d 1134, 1140 (5th Cir. 1992); contrast United States v. Bustamante, 45 F.3d 933, 941-42 (5th Cir. 1995) (racketeering acts extending nearly four years suffice). This is consistent with decisions in other circuits. See Wisdom v. First Midwest Bank, 167 F.3d 402, 407 (8th Cir. 1999) (holding that ten month period was too short to establish closed-ended continuity); Tabas, 47 F.3d at 1293 (“[C]onduct lasting no more than twelve months [does] not meet the standard for closed-ended continuity.”); Religious Technology Ctr. v. Wollersheim, 971 F.2d 364, 366-67 (9th Cir. 1992) (concluding that a pattern of activity lasting only a few months does not reflect long term criminal conduct to which RICO was intended to apply). Despite the numerous acts of mail and wire fraud that occurred from the sale of coins to Pereida between January' and May 2011, that five month period was too short a period to establish closed-ended continuity. See Tel-phonic Services, Inc., 975 F.2d at 1140.

Apparently recognizing that five months is too short, Malvino now contends the pattern of racketeering activity began when PCA opened in 2006 and included sales of “overgraded and artificially overpriced coins to customers ‘nationwide.’” But the portions of the record Malvino cites for this evidence are pretrial filings, such as the Defendants’ brief in support of their unsuccessful motion to transfer venue to New York which stated that PCA “participate[d] in many transactions nationwide.” Those pretrial filings are not trial evidence. Guillen v. Holder, 397 Fed. Appx. 30, 32 (5th Cir. 2010) (“[Statements in [a] motion and subsequent briefs are not evidence.”); Arguello v. Conoco, Inc., 330 F.3d 355, 357 (5th Cir. 2003) (noting that, in assessing sufficiency of the evidence, this court considers “the entire trial record”); Triple H Debris Removal, Inc. v. Companion Prop. & Cas. Ins. Co., 647 F.3d 780, 785 (8th Cir. 2011) (“[0]nce a trial has taken place, the focus is on the evidence actually admitted at trial and not on the earlier pretrial filings.”); Zilkha Energy Co. v. Leighton, 999 F.2d 548 (10th Cir. 1993) (“[A] court must determine factual issues ... based on testimony and evidence actually introduced at trial, not on [previously submitted documents].”). No evidence at trial showed that the fraudulent practices extended to victims other than Pereida or even mentioned the names of other purchasers. Because all of the evidence of fraudulent practices related to Pereida’s purchases, which took place in a five-month period, the evidence was not sufficient to support a finding of closed-ended continuity.

The evidence also does not support a finding of open-ended continuity, the less common way to establish a pattern. An open-ended period of conduct involves “a threat of continued racketeering activity” and may be established by a showing that there is a “specific threat of repetition extending indefinitely into the future,” or “that the predicates are a regular way of conducting [a] defendant’s ongoing legitimate business.” H.J. Inc., 492 U.S. at 242-43, 109 S.Ct. 2893; see also Word of Faith World Outreach Ctr. Church, Inc. v. Sawyer, 90 F.3d 118, 122-24 (5th Cir. 1996). Again, the narrow focus at trial on Pereida’s purchases does not support the broader characterizations of the fraud made on appeal. A finding of open-ended continuity would also be at odds with the sale of PCI, the grading company that was a key part of the alleged fraud, in December 2011, before Malvino uncovered the fraud or filed this suit. See Craig Outdoor Advert., Inc. v. Viacom Outdoor, Inc., 528 F.3d 1001, 1028 (8th Cir. 2008) (finding that when the defendant had “terminated any allegedly fraudulent scheme” prior to suit, there was no open-ended continuity).

The evidence is thus not like the allegations in Abraham v. Singh, 480 F.3d 351 (5th Cir. 2007), which we found sufficient to survive a Rule 12(b)(6) dismissal. The Abraham complaint alleged a scheme to induce hundreds of Indian citizens to borrow thousands of dollars to travel to the United States only to find on arrival “things were not as they had been promised.” Id. at 356. The plaintiffs claimed the scheme involved multiple illegal transactions and many victims, and, based on the facts alleged, there was “no reason to suppose that this systemic victimization allegedly begun in November 2000 would not have continued indefinitely” if not for the lawsuit. Id. In contrast, there is no evidence from which to conclude that the fraud Pereida fell victim to would have continued indefinitely but for this lawsuit as there was no evidence of other victims and PCI was no longer part of Defendants’ operation.

The district court therefore clearly erred in finding a pattern of racketeering. That requires vacating the judgment against Anthony and PCA for both substantive RICO and RICO conspiracy. See Davis-Lynch, Inc. v. Moreno, 667 F.3d 539, 552 (5th Cir. 2012) (explaining that RICO conspiracy under section 1962(d) requires “an injury from an act that is independently wrongful under RICO”).

IV

The deficient evidence concerning the pattern of activity RICO requires would not, however, undermine a finding of common law fraud—the kind of state law cause of action RICO’s pattern requirement sought to preserve. The district court made such a liability finding on the common law torts, but did not enter judgment on those claims because RICO provides the greater recovery (both treble damages and attorneys’ fees). Defendants request that we treat Malvino’s election of RICO remedies as final and binding and enter a take-nothing judgment against Malvino. Defendants recognized at oral argument that the alternative would be a remand to allow the district court to consider entering judgment on Malvino’s fraud, negligent misrepresentation, and civil conspiracy claims—a decision from which another appeal could follow.

The latter course is appropriate. When a plaintiff prevails on both federal and Texas state law causes of action for the same injury, federal courts apply Texas’s one satisfaction rule, which requires the prevailing party to elect between the alternative claims for purposes of recovery. Am. Rice, Inc. v. Producers Rice Mill, Inc., 518 F.3d 321, 335-36, 336 n.45 (5th Cir. 2008). Malvino elected the RICO remedy for Defendants Anthony and PCA. He “reserve[d] his right to a re-election of remedies in the event that [the] RICO ... judgment were to be reversed on appeal.”

Defendants do not cite any authority holding that a plaintiff cannot change his election if the claim he elected to recover on is reversed on appeal. Nor could we find any, and the equitable nature of the one satisfaction rule counsels against such a stringent approach. See Krobar Drilling, L.L.C. v. Ormiston, 426 S.W.3d 107, 112 (Tex. App.-Houston 2012) (holding that “the rationale behind the ‘one-satisfaction’ rule” dictates that the doctrine is concerned with “the satisfaction of a judgment, not the obtaining of a judgment”). The rule operates to prevent a plaintiff from recovering twice for the same wrong, not to prevent a plaintiff from recovering once. See Vickery v. Vickery, 999 S.W.2d 342, 373 (Tex. 1999) (“A plaintiff is entitled to one satisfaction for sustained injuries.”); Drury Sw., Inc. v. Louie Ledeaux #1, Inc., 350 S.W.3d 287, 293 (Tex. App.-San Antonio 2011, reh’g overruled) (“The sole purpose of the doctrine of election of remedies is to prevent double recovery for a single wrong.” (quoting Weeks Marine, Inc., v. Salinas, 225 S.W.3d 311, 322 (Tex. App.-San Antonio 2007, pet. dism’d))); see generally Olympia Hotels Corp. v. Johnson Wax Dev. Corp., 908 F.2d 1363, 1371-72 (7th Cir. 1990) (discussing the common law history of election of remedies and explaining that the substantive aspect of the doctrine is just a bar on double recovery). Our decision to vacate the judgment on the RICO claims means there would no longer be a double recovery if judgment were entered on the common law claims, so we remand for the district court to consider whether to do so. United States v. United Techs. Corp., - F. Supp. 3d -, 2016 WL 3141569 at *3 (S.D. Ohio, June 3, 2016) (allowing the government to seek an alternative remedy on remand after a damages award Was vacated on appeal because the government’s prior election to seek damages rather than disgorgement was not final as “any attempted election of one of two alternative remedies is not effective unless and until the plaintiff actually obtains the remedy it elected”).

* ⅝ *

We REVERSE the judgment and REMAND the case to the district court. We place no limitation on what the district court may consider on remand or on what decisions it may make.

      . "Cleaning” is a technical term and describes the chemical treatment of a coin's surface to improve its appearance and desirability. The process can severely damage a coin and is not an accepted technique to enhance the grade of a coin.

      . For example, a 1911-D $5 Gold Indian Head coin graded at MS63 is generally valued at $40,000 while the same coin graded at MS60 is generally valued at $6,750. In selective overgrading, dealers identify coins with such dramatic value spreads and overgrade to overcharge buyers.

      . The district court found that Paul was not individually liable on any claim and entered a judgment in his favor.

      . This amount represents three times the difference in the price Pereida paid for the coins and the Heritage appraised value.

      . Although all the Defendants joined the notice of appeal, judgment was entered only against Anthony and PCA so they appear to be the only ones with a stake in this appeal.

      . District courts have split on the question of RICO’s survivability. Compare Hoffman v. Sumner, 478 F.Supp.2d 1024, 1031 (N.D. Ill. 2007) (finding RICO penal and collecting cases), with Cty. of Oakland by Kuhn v. City of Detroit, 784 F.Supp. 1275, 1285 (E.D. Mich. 1992) (finding RICO remedial and collecting cases). Notably, however, most district courts that found the statute to be penal did so before Pacificare. But see Hoffman, 478 F.Supp.2d at 1031 (finding RICO penal after Pacificare, without citing that decision).


source: Caselaw Access Project

author: W. EUGENE DAVIS, Circuit Judge:

license: Public Domain

text:
    Jose FLORES-LARRAZOLA, also known as Jose Maria Flores, also known as Jose Maria Flores-Larrazola, Petitioner v. Loretta LYNCH, U.S. Attorney General, Respondent
    No. 14-60888
    United States Court of Appeals, Fifth Circuit.
    FILED October 24, 2016
    REVISED October 25, 2016
    REVISED October 28, 2016

      Richard L. Prinz, Law Office of Richard Prinz, Houston, TX, for Petitioner.
    David Harding Wetmore, U.S. Department of Justice, Civil Division/OIL, Office of Immigration Litigation, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.
    Before DAVIS, ELROD, and HIGGINSON, Circuit Judges.
   W. EUGENE DAVIS, Circuit Judge:

The question in this case is whether an alien convicted of recklessly possessing with the intent to deliver at least ten pounds of marijuana for remuneration has engaged in “illicit trafficking in a controlled substance” such that he is an aggravated felon and is therefore ineligible for relief from removal. We answer in the affirmative and DENY the petition for review.

I.

The facts of this case are undisputed. On July 21, 2000, Jose Flores-Larrazola (“Flores-Larrazola”), a native citizen of Mexico and a lawful permanent resident of the United States, pleaded guilty to possession with the intent to deliver over ten pounds of marijuana in violation of Ark. Code Ann. § 5-64-401(a) (2000). Approximately fourteen years later, the Immigration and Naturalization Service (“INS”) initiated deportation proceedings against Flores-Larrazola, charging him with re-movability under 8 U.S.C. § 1227(a)(2)(B)® and 8 U.S.C. § 1227(a)(2)(A)(iii). Flores-Larrazola admitted, before an Immigration Judge (“IJ”), that he is removable under 8 U.S.C. § 1227(a)(2)(B)®. He is an alien who, after admission to the United States, was convicted of violating an Arkansas law “relating to a controlled substance ... other than ... 30 grams or less of marijuana” for personal use. However, Flores-Larra-zola denied that he is removable under 8 U.S.C. § 1227(a)(2)(A)(iii), arguing that he is not an aggravated felon within the meaning of 8 U.S.C. § 1101(a)(43)(B) and is therefore eligible for relief from removal.

The IJ, in a written decision, held that Flores-Larrazola is removable under 8 U.S.C. § 1227(a)(2)(B)® and 8 U.S.C. § 1227(a)(2)(A)(iii). With respect to the latter provision, the IJ held that Flores-Larrazola is an aggravated felon within the meaning of 8 U.S.C. § 1101(a)(43)(B) and is therefore ineligible for relief from removal. Flores-Larrazola appealed this aspect of the IJ’s ruling to the Board of Immigration Appeals (“BIA”), which affirmed. This timely petition for review followed, and we have jurisdiction to decide it pursuant to 8 U.S.C. § 1252(a)(2)(D).

II.

“Whether a prior conviction constitutes an aggravated felony under the Immigration and Nationality Act (“INA”) is a question of law we review de novo, as is the BIA’s determination that an alien is ineligible for discretionary relief in the form of cancellation of removal.”

III.

Ark. Code Ann. § 5-64-401(a) does not include a mens rea element. It simply states that “[i]t is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver a controlled substance.” However, when an Arkansas “statute defining an offense does not prescribe a culpable mental state, a culpable mental state is nonetheless required and is established only if a person acts purposely, knowingly, or recklessly.” Ark. Code Ann. § 5-64^01 (a) therefore renders it unlawful for any person to purposely, knowingly, or recklessly manufacture, deliver, or possess with the intent to manufacture or deliver a controlled substance.

The INA allows the Government to deport various classes of noncitizens, such as those who overstay their visas, and those who are convicted of certain crimes while in the United States, including drug offenses. Ordinarily, when a noncitizen is found to be deportable on one of these grounds, he may ask the Attorney General for certain forms of discretionary relief from removal, like asylum (if he has a well-founded fear of persecution in his home country) and cancellation of removal (if, among other things, he has been lawfully present in the United States for a number of years). But if a noncitizen has been convicted of one of a narrower set of crimes classified as “aggravated felonies,” then he is not only deportable, but also ineligible for these discretionary forms of relief.

“The INA defines ‘aggravated felony to include a host of offenses” listed in 8 U.S.C. § 1101(a)(43). In this case, we address 8 U.S.C. § 1101(a)(43)(B), which states that the term “aggravated felony” means “illicit trafficking in a controlled substance ... including a drug trafficking crime” as defined in 18 U.S.C. § 924(c)(2). Flores-Larrazola asserts that his conviction under § 5-64-401(a) is not a “drug trafficking crime” as defined in 18 U.S.C. § 924(c)(2) and we assume arguendo that is true. The question then is whether Flores-Larrazola’s conviction constitutes “illicit trafficking in a controlled substance,” a phrase that the INA has left undefined.

Flores-Larrazola suggests that we should interpret “illicit trafficking in a controlled substance” and “a drug trafficking crime” as one and the same. He notes that in order for a state offense to constitute a “drug trafficking crime,” it must necessarily proscribe conduct punishable as a felony under the Controlled Substances Act (“CSA”). Ark. Code Ann. § 5-64-401(a) punishes, inter alia, those who purposely, knowingly, or recklessly possess with the intent to deliver marijuana. The CSA, by contrast, only punishes those who knowingly or intentionally possess with the intent to distribute marijuana. It does not criminalize reckless behavior. Thus, according to Flores-Larrazola, Ark. Code Ann. § 5-64-401(a) does not necessarily proscribe conduct punishable as a felony under the CSA, is not a “drug trafficking crime” as defined in 18 U.S.C. § 924(c)(2), and does not constitute “illicit trafficking in a controlled substance.”

Flores-Larrazola’s argument is not well taken. “Illicit trafficking in a controlled substance” includes, but is not limited to, the “drug trafficking crime” defined in 18 U.S.C. § 924(c)(2). The mens rea required to commit the former is not required to commit the latter. The “rule against superfluities” encourages us to interpret 8 U.S.C. § 1101(a)(43)(B) in a way that “effectuate[s] all its provisions, so that no part is rendered superfluous.” We do so here and hold that a state crime can constitute “illicit trafficking in a controlled substance” even if it does not qualify as a “drug trafficking crime” as defined in 18 U.S.C. § 924(c)(2).

We now must decide whether Flores-Larrazola’s prior conviction constitutes “illicit trafficking in a controlled substance.” Ark. Code Ann. § 5-64^101(a) is a divisible statute, insofar as it “sets out one or more elements of the offense in the alternative.” It combines three mens rea elements (purposely, knowingly, or recklessly) with four actus reus elements (manufacture, deliver, or possess with the intent to manufacture or deliver) to create twelye different crimes. We therefore, like the BIA, apply the “modified categorical approach” and utilize the Shepard documents to determine whether Flores-Lar-razola engaged in “illicit trafficking in a controlled substance.”

The Shepard documents in this case include the charging document and the judgment and commitment order. Taken together, they establish that “on or about June 30, 1999 ... [Flores-Larrazo-la] did unlawfully and feloniously.,.. possess with the intent to deliver” at least ten pounds of marijuana. Arkansas law holds that one who attempts to “deliver” marijuana attempts to exchange it “for money or anything of value.” That is, Arkansas law presumes that one--who attempts to “deliver” marijuana attempts to exchange it for remuneration. We therefore hold that Flores-Larrazola was convicted of recklessly possessing with the intent to deliver at least 10 pounds of marijuana for remuneration.

The BIA has held that the phrase “illicit trafficking” includes “‘any state, federal, or qualified foreign felony conviction involving the unlawful trading or dealing’ in a controlled substance as defined by Federal law.” We now adopt that definition in this circuit. Ark. Code Ann. § 5-64-401(a) is a state felony and marijuana is a controlled substance as defined by federal law. The only question is whether Flores-Larrazola was engaged in “trading or dealing” marijuana.

The Supreme Court has made clear that one does not “trade or deal” in marijuana unless he sells, or in this case, possesses with the intent to sell, more than a “small amount” of marijuana for remuneration. Flores-Larrazola was convicted of recklessly possessing with the intent to deliver at least ten pounds of marijuana for remuneration. The Supreme Court has instructed that in determining what constitutes a “small” amount of marijuana, courts are to utilize their common sense. Common sense dictates that ten pounds of marijuana is no “small amount,” particularly in light of the 1.3 grams of marijuana that the Supreme Court declared “small” in Moncrieffe. We therefore hold that Flores-Larrazola was convicted of a state felony that constitutes “illicit trafficking in a controlled substance” such that he is an aggravated felon and is ineligible for relief from removal. The petition for review is

DENIED.

      . Since repealed by the Public Safety Im- ’ provement Act, No. 570, § 33, 2011 Ark. Acts 1851, 1889.

      . ' 8 U.S.C. § 1227(a)(2)(B)(i).

      . Alvarado de Rodriguez v. Holder, 585 F.3d 227, 234 (5th Cir. 2009).

      . Garcia v. Holder, 756 F.3d 839, 842 (5th Cir. 2014) (internal quotations, citations, and alterations omitted).

      . Ark. Code Ann. § 5-2-203(b) (2016).

      . Moncrieffe v. Holder, — U.S. —, 133 S.Ct. 1678, 1682, 185 L.Ed.2d 727 (2013).

      . Id. at 1683.

      . Lopez v. Gonzales, 549 U.S. 47, 50, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006).

      . See Sarmientos v. Holder, 742 F.3d 624, 628 (5th Cir. 2014).

      . See 18 U.S.C. § 924(c)(2) (defining a drug trafficking crime as, inter alia, any felony punishable under the CSA); 21 U.S.C. § 841(a)(1) (rendering it unlawful "for any person [to] knowingly or intentionally ... manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance”) (emphasis added).

      . See Lopez, 549 U.S. at 52-53, 127 S.Ct. 625 ("The INA makes Lopez guilty of an aggravated felony if he has been convicted of ‘illicit trafficking in a controlled substance ... including,’ but not limited to, ‘a drug trafficking crime .,..’”) (emphasis added); Donawa v. U.S. Att’y Gen., 735 F.3d 1275, 1280 (11th Cir. 2013) ("[T]he question before us can be broken down into two distinct issues: (1) whether a [prior state offense] constitutes a ‘drug trafficking crime’; and (2) if not, whether it falls into the broader category of ’illicit trafficking in a controlled substance.’") (emphasis added); Rendon v. Mukasey, 520 F.3d 967, 974 (9th Cir. 2008) ("This statutory definition has given rise to two possible routes for a state drug felony to qualify as an aggravated felony. First, under the phrase ‘illicit trafficking in a controlled substance,’ a state drug crime is an aggravated felony ‘if it contains a trafficking element.' Second, under the phrase 'including a drug trafficking crime (as defined in section 924(c) of Title 18),' a state drug crime is an aggravated felony if it would be punishable as a felony under the federal drug laws.”) (emphasis added); Arce-Vences v. Mukasey, 512 F.3d 167, 171 (5th Cir. 2007) ("[T]o constitute an aggravated felony under 8 U.S,C. § 1101(a)(43)(B), a prior state offense must either involve some sort of commercial dealing or be punishable as a federal felony under the Controlled Substances Act.”) (emphasis added); Gerbier v. Holmes, 280 F.3d 297, 312-13 (3d Cir. 2002) (‘‘[A] state drug conviction may constitute an 'aggravated felony' under § 1101(a)(43) when it constitutes either ‘illicit trafficking in any controlled substance' or-a 'drug trafficking crime.’ ”) (emphasis added).

      . See 18 U.S.C. § 924(c)(2) (defining a drug trafficking crime as, inter alia, any felony punishable under the CSA); 21 U.S.C. § 841(a)(1) (rendering it unlawful "for any person [to] knowingly or intentionally ... manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance”).

      . See Spaho v. U.S. Att’y Gen., No. 15-11299, 837 F.3d 1172, 1178-79, 2016 WL 4978352, at *4 (11th Cir. Sept. 19, 2016).

      . Howard Hughes Co., L.L.C. v. C.I.R., 805 F.3d 175, 183 (5th Cir. 2015).

      . Descamps v. United States, - U.S. -, 133 S.Ct 2276, 2281, 186 L.Ed.2d 438 (2013); see also United States v. Villeda-Mejia, 559 Fed.Appx. 387, 389 (5th Cir. 2014) (unpublished) (accepting, without analysis, that a similar statute is divisible).

      . Flores-Larrazola contends that Moncrieffe stands for the broad proposition that we can only employ the categorical approach when seeking to determine whether a state offense constitutes "illicit trafficking in a controlled substance.” Blue Brief at 13. We disagree for two reasons. First, the Supreme Court has made clear, post -Moncrieffe, that the modified categorical approach still "applies to 'state statutes that contain several different crimes See Mellouli v. Lynch, — U.S. -, 135 S.Ct. 1980, 1986 n.4, 192 L.Ed.2d 60 (2015) (quoting Moncrieffe, 133 S.Ct. at 1684); see also Spaho, 837 F.3d at 1177, 2016 WL 4978352, at *2 (applying the modified categorical approach to determine whether a state conviction constitutes “illicit trafficking . in a controlled substance'.’). Second, the Supreme Court has defined “illicit trafficking” in such a way that we must utilize the Shepard documents in order to ensure that Flores-Larrazola was convicted of a crime that required him to possess with the intent to deliver more than a "small amount” of marijuana. See infra,

      . See Moncrieffe, 133 S.Ct. at 1684 (quoting Nijhawan v. Holder, 557 U.S. 29, 35, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009)) (holding that the Shepard documents, "in the case of a guilty plea, [include] the plea agreement, [the] plea colloquy, or ‘some comparable judicial record’ of the factual basis for the plea”).

      . To be clear, we do not hold that Flores-Larrazola is an "aggravated felon” because of any facts "particular” to his case. See Mellou-li, 135 S.Ct. at 1986 n.4. Ark. Code Ann. § 5-'64-401(a) is a divisible statute. See supra. Accordingly, we look to the Shepard documents to determine "which particular offense” Flores-Larrazola was convicted of. See Mellouli, 135 S.Ct. at 1986 n.4. Flores-Larra-zola was convicted of a "Class B Felony .. [for which he was subject to] 5-20 yrs. ADC and/or a fine NLT $15,000.00- and/or NMT $50,000.” Ark, -Code Ann; § 5-64-401(a)(4)(B) is a Class B Felony, Ark. Code Ann. § 5-64-40 l(a)(4)(B)(ii), and those who violate it are subject to five to twenty years imprisonment and/or a $15,000 to $50,000 fine, Ark. Code Ann. § 5-64-401(a)(4)(B)(i). The factual basis for Flores-Larrazola’s plea states that he possessed with the intent to deliver "in excess” of ten pounds of marijuana. That is likely no coincidence, as an offend- ■ er must possess with intent to deliver at least ten pounds of marijuana in order to violate Ark. Code Ann. § 5-64-401(a)(4)(B). See Ark. Code Ann. § 5-64-401(a)(4)(B)(i). Based upon the foregoing, we conclude that Flores-Larra-zola was convicted of violating Ark, Code Ann. § 5-64-401(a)(4)(B). Which brings us back to our initial point: Flores-Larrazola is not an “aggravated felon” because of any facts "particular” to his case. He is an "aggravated felon” because we know,, based upon his statute of conviction, that he, at a minimum, recklessly possessed with intent to deliver at least ten pounds of. marijuana for remuneration, which constitutes "illicit trafficking in á controlled substance.”

      . Ark Code .Ann. § 5-64-101(7) (2016) (noting that the word “deliver,” as used in Ark. Code Ann. § 5-64-401(a), "means the actual, constructive, or attempted transfer from one (1) person to another of a controlled substance or counterfeit substance in exchange for money or anything of value”).

      .Flores-Larrazola asserts that the BIA violated his due process rights by never giving him the “chance to present any proof inside or outside the record that he was not an illicit trafficker_” Blue Brief at 14. We, however, have held that "[e]ligibility for discretionary relief from a removal order is not ‘a liberty or property interest warranting due process protection.' ” Mireles-Valdez v. Ashcroft, 349 F.3d 213, 219 (5th Cir. 2003) (quotations omitted). Flores-Larrazola admits that he is eligible for removal under 8 U.S.C. § 1227(a)(2)(B)(I). His due process argument therefore lacks merit.

      . Matter of L-G-H-, 26 I. & N. Dec. 365, 368 (BIA 2014) (emphasis omitted) (quoting Matter of Davis, 20 I. & N. Dec. 536, 540-41 (BIA 1992)).

      . See Spaho, 837 F.3d at 1178-79, 2016 WL 4978352, at *4.

      . Ark. Code Ann. § 5-64-401(a)(l)(i) (2000).

      . 21 U.S.C. § 812(c).

      . See Moncrieffe, 133 S.Ct. at 1693-94.

      . See id.


author: E. GRADY JOLLY, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Rigoberto RAMIREZ-GONZALEZ, Defendant-Appellant.
    No. 15-41065
    United States Court of Appeals, Fifth Circuit.
    FILED October 26, 2016

      John Richard Berry, Renata Ann Gowie, U.S. Attorney’s Office, Houston, TX, for Plaintiff-Appellee.
    Joseph A. Connors, III, Esq., Law Office of Joseph A. Connors, III, McAllen, TX, for Defendant-Appellant.
    Before JOLLY, HAYNES, and GRAVES, Circuit Judges.
   E. GRADY JOLLY, Circuit Judge:

Rigoberto Ramirez-Gonzalez pled guilty to illegal reentry following deportation. At sentencing, Ramirez-Gonzalez objected to a recommendation in the Presen-tence Investigation Report (“PSR”) that he be subject to an eight-level enhancement for having committed an “aggravated felony.” The district court agreed and sustained his objection. Ramirez-Gonzalez then requested that the court order the PSR substantively corrected to reflect the determination that he did not commit an aggravated felony. The district court refused, suggesting that its holding would be apparent in the Statement of Reasons attached to the judgment. Unsatisfied, Ramirez-Gonzalez filed this appeal, seeking substantive corrections to the PSR.

The Government points out that meanwhile Ramirez-Gonzalez has completed his sentence and has been deported to Mexico. It argues that, consequently, his appeal should be dismissed as moot.

Although we reject the Government’s argument that the appeal is moot, we hold that the district court was not required to order any substantive corrections to the PSR. We affirm the district court’s judgment.

I.

In October 2011, Rigoberto Ramirez-Gonzalez, a Mexican citizen, pled guilty to and was convicted of felony wire fraud. The scheme involved filing false claims to defraud an insurance company. Although each individual claim was small, many claims were filed. The aggregate amount of the claims was about $67,375. However, Ramirez-Gonzalez pled guilty based on only one instance of the fraud and the parties stipulated to an amount of $105 in actual damages to that victim. The presiding judge sentenced him to a year and a day in prison as well as three years- of supervised release, and ordered him to pay $67,375 in restitution. He was deported to Mexico.

In August 2014, Ramirez-Gonzalez was found in the United States. The Government charged him with illegal reentry following deportation. He pled guilty.

The PSR recommended that he be sentenced under the eight-level “aggravated felony” enhancement of U.S.S.G. § 2L1.2(b)(l)(C), because the felony giving rise to his deportation involved fraud or deceit in which loss to the victim(s) exceeds $10,000. See U.S.S.G. § 2L1.2 cmt. 3(A); 8 U.S.C. § 1101(a)(43)(M). Ramirez-Gonzalez objected, arguing that because the amount of loss was $105, not $67,375, the enhancement should not apply. The district court sustained the objection to the eight-level aggravated felony enhancement. Instead, the judge imposed a four-level enhancement for “any other felony.” See U.S.S.G. § 2Ll,2(b)(l)(D).

Ramirez-Gonzalez then asked that the judge order the PSR modified to reflect that he was not subject to an aggravated felony enhancement. The judge declined- to do so, instead indicating in the Statement of Reasons issued alongside the judgment that he adopted the PSR “with the following changes ... In paragraph 12, the Court applied U.S.S.G. § 2L1.2(b)(l)(D) and increased the offense level by four (4) levels.” The judge found that the sentencing guideline range was 10 to 16 months and imposed a sentence of 10 months.

Ramirez-Gonzalez appealed, arguing that the district court erred by failing to order substantive corrections to the PSR.

Ramirez-Gonzalez has since completed his 10-month sentence, and has been deported to Mexico.

II.

The Government argues that Ramirez-Gonzalez’s. appeal must be dismissed as moot because his sentence has expired and he has been deported to Mexico.

A.

“Whether an appeal is moot is a jurisdictional matter, since it implicates the Article III requirement that there be a live case or controversy.” United States v. Heredia-Holguin, 823 F.3d 337, 340 (5th Cir. 2016) (en banc) (internal quotation marks and- citation omitted). This court considers de novo the mootness of an appeal. United States v. Lares-Meraz, 452 F.3d 352, 355 (5th Cir. 2006).

“Under Article Ill’s case-or-controversy requirement, to invoke the’ jurisdiction of a federal court, a litigant must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.” Heredia-Holguin, 823 F.3d at 340 (internal quotation marks, modification, and citation omitted). “This case-or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate.... The parties must continue to have a personal stake in the outcome of the lawsuit.” Id. (internal quotation marks and citation omitted).

“[I]f an event occurs while a case is pending on appeal that makes it impossible for the court to grant any effectual relief whatever to a prevailing party, the appeal must be dismissed.” Church of Scientology of Cal. v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992) (internal quotation marks and citation omitted). “As long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.” Heredia-Holguin, 823 F.3d at 340 (internal quotation marks, modification, and citation omitted).

When an appellant serving a term of imprisonment challenges the validity of the underlying conviction, that challenge “always satisfies the case-or-controversy requirement, because the incarceration ... constitutes a concrete injury, caused by the conviction and redressable by invalidation of the conviction.” Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). “Once the convict’s sentence has expired, however, some concrete and continuing injury other than the now-ended incarceration or parole—some ‘collateral consequence’ of the conviction—must exist if the suit is to be maintained.” Id.; see also United States v. Juvenile Male, 564 U.S. 932, 936, 131 S.Ct. 2860, 180 L.Ed.2d 811 (2011) (“In criminal cases, this [case- or-controversy] requirement means that a defendant wishing to continue his appeals after the expiration of his sentence must suffer some ‘continuing injury’ or ‘collateral consequence’ sufficient to satisfy Article III.”). In either case, “[w]hen the defendant challenges his underlying conviction, th[e Supreme] Court’s cases have long presumed the existence of collateral consequences.” Juvenile Male, 564 U.S. at 936, 131 S.Ct. 2860 (emphasis in original).

“But when a defendant challenges only an expired sentence, no such presumption applies, and the defendant must bear the burden of identifying some ongoing collateral consequence that is traceable to the challenged portion of the sentence and likely to be redressed by a favorable judicial decision.” Id. (emphasis in original; internal quotation marks, modification, and citation omitted); see also Spencer, 523 U.S. at 14, 118 S.Ct. 978 (“declining] to presume that collateral consequences adequate to meet Article Ill’s injury-in-fact requirement resulted from petitioner’s parole revocation”).

This Court, sitting en banc, recently held that deportation, by itself, did not moot the appeal of a deported defendant who had served his term of imprisonment but still was subject to an unexpired term of supervised release. Heredia-Holguin, 823 F.3d at 340. The Court abrogated the panel decision in United States v. Rosenbaum-Alanis, 483 F.3d 381, 383 (5th Cir. 2007), which had held that a convict’s appeal of his term of supervised release was mooted by his deportation since he could not realistically appear for resentencing.

B.

Neither this Court nor any other appears to have considered the precise question at issue here—whether deportation moots an alien’s appeal of a failure to correct his PSR. However, our precedent leads to the conclusion that it does not.

The aUegedly-erroneous PSR implicates sufficient collateral consequences to preserve a live controversy. In United States v. Mackay, 757 F.3d 195 (5th Cir. 2014), this Court found that a clerical error in the PSR was “not harmless because it affects [the defendant’s] substantial rights,” and that “[l]ike a judgment, the PSR determines the rights and obligations of the defendant going forward.” Id. at 198, 200. This Court has squarely held that that deportation does not moot a challenge to an underlying judgment—as compared to a sentence standing alone—because of the continuing adverse collateral consequences stemming from a judgment. United States v. Villanueva-Diaz, 634 F.3d 844, 848-49 (5th Cir. 2011). To the extent that a PSR is “like a judgment,” Mackay, 757 F.3d at 198, a challenge to an erroneous PSR is not moot after deportation.

Furthermore, if, as Ramirez-Gonzalez argues, the PSR is so misleading that it could cause an immigration official to conclude that he was in fact convicted of an “aggravated felony,” the incorrect PSR could potentially impact his ability to legally reenter the country in the future under 8 U.S.C. § 1182(a)(9)(A). The Fifth Circuit has found that a determination that a crime was an “aggravated felony,” as compared to a non-aggravated felony, may give rise to sufficient collateral consequences to preserve a live controversy even where the appellant was deported. See Alwan v. Ashcroft, 388 F.3d 507, 511 & n. 3 (5th Cir. 2004).

The primary problem with the Government’s mootness argument is that it fails to address mootness in this case in the light of the specific relief requested, namely, corrections to the PSR. Heredia-Holguin, Rosenbaum-Alanis, and the authorities discussed in those cases dealt primarily with challenges to defendants’ sentences and terms of supervised release. Sentences and terms of supervised release are finite time periods that might be expected to give rise to a host of mootness issues. By contrast, the PSR is a permanent court document. And it may be corrected at any time, even if the defendant is not present. See Fed. R. Crim. P. 43(a). Even the now-abrogated Rosenbaum-Alanis decision, on which the Government principally relies, was grounded on the premise that the court could not afford the defendant relief because he could not legally return to appear for resentencing. See Rosenbaum-Alanis, 483 F.3d at 383. Here, this Court could grant the relief that Ramirez-Gonzalez requests even while he remains in Mexico.

We therefore hold that Ramirez-Gonzalez’s appeal is not moot.

III.

We turn next to the merits of Ramirez-Gonzalez’s appeal.

The crux of Ramirez-Gonzalez’s argument is that the district court erred by declining to make corrections to the PSR to reflect the court’s substantive determinations at the sentencing hearing. Ramirez-Gonzalez raises nine “issues” in his brief in the course of making his argument. We address each in turn.

A.

First, Ramirez-Gonzalez argues that the district court failed to make specific findings and rulings on his objections to the PSR’s “prior aggravated felony conviction” determinations.

The issue of whether a district court failed to comply with a Federal Rule of Criminal Procedure is reviewed de novo. See United States v. Myers, 150 F.3d 459, 461 (5th Cir. 1998), abrogated on other grounds by United States v. Reyna, 358 F.3d 344 (5th Cir. 2004) (en banc).

Federal Rule of Criminal Procedure 32(i)(3)(B) states that the district court “must—for any disputed portion of the presentence report or other controverted matter—rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing.” But this Court has “rejected the proposition that a court must make a ‘catechismic regurgitation of each fact determined’; instead, [it has] allowed the district court to make implicit findings by adopting the PSR. This adoption will operate to satisfy the mandates of Rule 32 when the findings in the PSR are so clear that the reviewing court is not left to ‘second-guess’ the basis for the sentencing decision.” United States v. Carreon, 11 F.3d 1225, 1231 (5th Cir. 1994) (citations omitted).

Here, the district court made rulings on Ramirez-Gonzalez’s objections on the record in open court. It determined that, contrary to the PSR’s analysis, Ramirez-Gonzalez’s wire fraud conviction did not qualify as an aggravated felony subjecting him to an eight-level enhancement; instead, the district court concluded, he was subject to a four-level enhancement for “any other felony.” Although the language the district court used at the sentencing hearing itself was somewhat unclear, the court clarified in the Statement of Reasons that Ramirez-Gonzalez was not subject to the “aggravated felony” enhancement but only the “any other felony” enhancement.

It is true that the district court could have done a more specific job of explaining its deviations from the PSR and the content of its rulings. For example, although the Statement of Reasons explicitly states that the court departed from the characterization of “aggravated felony” in Paragraph 12 of the PSR, the term also appears in Paragraph 4 of the PSR, and the court never addressed that paragraph. But this does not constitute reversible error; the court clearly made the same holding with respect to Paragraph 4 as with Paragraph 12. Similarly, the PSR states in Paragraph 45 that the maximum sentence for the offense is 20 years. 8 U.S.C. § 1326(b)(2) imposes a maximum sentence of 20 years when the offense involves an “aggravated felony,” The court did not specifically address the maximum sentence, but by finding that there was no “aggravated felony,” and instead merely “any other felony,” the court effectively rejected the PSR’s recommendation of a twenty-year maximum and held instead that the ten-year maximum sentence of 8 U.S.C. § 1326(b)(1) applied. Ramirez-Gonzalez also complains that the PSR includes an inaccurate total offense level and an inaccurate citation to the fine range in U.S.S.G. § 5E1.2(c)(3). The Statement of Reasons, however, states that the total offense level is “10,” so the correct offense level and proper fine range could be easily determined. In short, the determinations that Ramirez-Gonzalez seeks are implicit from the court’s bench rulings and the Statement of Reasons, and that suffices for the purposes of Rule 32(i)(3)(B). See Carrean, 11 F.3d at 1231; see also United States v. Perez-Barocela, 594 Fed.Appx. 224, 231 (5th Cir. 2014) (“Rule 32(i)(3)(B) does not, by its terms ,.. require an explicit statement from the court. Indeed, we have suggested that an implicit rejection may suffice.”).

The district court therefore did not reversibly err in complying with the requirements of Rule 32(i)(3)(B).

B.

Third, Ramirez-Gonzalez argues that the district court erred by failing to order corrections to the PSR under Federal Rule of Criminal Procedure 36.

Rule 36 provides in part that “the court may at any time correct a clerical error in a judgment, order, or other part of the record arising from oversight or omission.” Rule 36 is similar to Civil Rule 60(a). See Mackay, 757 F.3d at 198. Rules 36 and 60(a) are limited tools meant only to correct “mindless and mechanistic mistakes.” Id, at 200 (citations and internal quotation marks omitted). “Where the record makes it clear that an issue was actually litigated and-decided but was incorrectly recorded in or inadvertently omitted from the judgment, the district court can correct the judgment under Rule 60(a).” Rivera v. PNS Stores, Inc., 647 F.3d 188, 199 (5th Cir. 2011).

Here, there is no error to be corrected. The PSR’s language was deliberately chosen by the probation officer who drafted it; the disputed words are not mistakes at all, much less the sort of mistake subject to correction under Rule 36. The district court sustained some of Ramirez-Gonzalez’s objections and declined to adopt portions of the PSR in the final judgment (as it noted in the Statement of Reasons), but that does not render the unadopted content of the PSR a “clerical error.”

Ramirez-Gonzalez relies heavily on Mackay, which held that the PSR was “part of - the record” and- thus' subject to correction under Rule 36. Mackay, 757 F.3d at 200. Mackay, however, involved a true clerical error—the PSR erroneously listed the substance that Mackay pled guilty to possessing as cocaine, rather than marijuana. Id. at 196. There was no dispute that Mackay pled guilty to possessing marijuana, and that the reference to “cocaine” was an inadvertent error by the drafter. Id. Here, by contrast, the drafter of the PSR intended to state that Ramirez-Gonzalez was an aggravated felon. The judge later disagreed.

The district court therefore did not err in refusing to' correct any “clerical error” under Rule 36.

C.

Fourth, Ramirez-Gonzalez argues that the district judge erred by failing to append his findings to the PSR in violation of Federal Rule of Criminal Procedure 32(i)(3)(C). Rule 32(i)(3)(C) states that a district court “must append a copy of the court’s determinations under this rule to any copy of the presentence report made available to the Bureau of Prisons.”

The district court did “append” a Statement of Reasons that would necessarily be included .with the PSR sent to the Bureau of Prisons. The Statement of Reasons stated that the court adopted the PSR “with the following changes ... In paragraph 12, the Court applied U.S.S.G. § 2L1.2(b)(l)(D) and increased the offense level by four (4) levels.” Paragraph 12 of the PSR stated that the wire fraud conviction was an “aggravated felony conviction” under “U.S.S.G. § 2L1.2(b)(l)(C),” and recommended an eight-level enhancement.

The district court included, implicitly, all of its findings in the Statement of Reasons, which was “appended” to the PSR. See 3 Charles Alan Wright et al., Federal Practice and Procedure § 531 (4th ed. 2016) (The Rule’s requirement can be fulfilled if the sentencing judge ... makes written findings and attaches them to the presen-tence report.”). As we noted above in our discussion of Rule 32(i)(3)(B), the court’s implicit findings on the disputed issues were necessarily apparent from the explicit statements in the Statement of Reasons.

We therefore find that the district court did not fail to comply with Rule 32(i)(3)(C). Just as the Statement of Reasons made determinations sufficient to satisfy Rule 32(i)(3)(B), “appendfing]” it to the PSR is sufficient to satisfy Rule 32(i)(3)(C).

IV.

Ramirez-Gonzalez’s appeal is not moot, but it is meritless. The district judge did not err by failing to order substantive corrections to the PSR, and its judgment is AFFIRMED.

      . The Government has not appealed the district court's findings, and so we need not consider them on their merits.

      . The decision acknowledged the uses of the PSR in institutional selection and parole decisions, as well as the frequent use of the report by law enforcement and social service workers. Mackay, 757 F.3d at 198 & n. 1.

      . In his reply brief, Ramirez-Gonzalez explicitly waived issues seven and nine and clarified that he is not seeking resentencing, only corrections to the PSR. We do not address issues seven and nine.

      . Although Ramirez-Gonzalez argues that the maximum sentence should, pursuant . to § 1326(a), be two years, the ten-year maximum of § 1326(b)(1), which affects a defendant “whose removal was subsequent to a conviction, for ... a felony (other than an aggravated felony),” clearly and unmistakably applies.

      . The second issue' that Ramirez-Gonzalez raises—that the district court erred by failing to order the PSR be corrected to reflect its rulings on the objections—warrants little discussion. "[Ajctual amendment is not required. Rather, when a district court resolves disputed' facts, the ruling is to be attached to any copy of the PSR provided to the Bureau of Prisons.” United States v. Buchanan, 485 F.3d 274, 287 (5th Cir. 2007).

      . The remaining "issues” that Ramirez-Gonzalez raises—issues five, six, and eight—are meritless and do not warrant much discussion. He cites no authority for his argument that the district court needed to hand-write corrections onto the PSR. He does not explain how the district court’s Statement of Reasons did not explicitly meet the requirements of 28 U.S.C. § 994(w). And he cites no authority for his argument that the district court's error requires automatic reversal.

      . Accordingly, we need not address the Government's alternative argument that the PSR should not be corrected because it is already "correct,” arguing that the district court erred by failing to apply the eight-level aggravated felony enhancement.