source: Caselaw Access Project

author: ROGERS, Circuit Judge:

license: Public Domain

text:
    OAK HARBOR FREIGHT LINES, INC., Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent Teamsters 174 and Teamsters Local Numbers 81, 174, 231, 252, 324, 483, 589, 690, 760, 763, 839, and 962, Intervenors
    No. 14-1226 Consolidated with 14-1273, 15-1002
    United States Court of Appeals, District of Columbia Circuit.
    Argued January 23, 2017
    Decided May 2, 2017

      Peter N. Kirsanow, Cleveland, OH, argued the cause for petitioner Oak Harbor Freight Lines, Inc. With him on the briefs were John M. Payne and Selena C. Smith, Seattle, WA. Patrick O. Peters, Cleveland, OH, entered an appearance.
    Thomas A. Leahy, Seattle, WA, argued the cause and filed the briefs for petitioner Teamsters Union Local 174, et al.
    Jared D. Cantor, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Richard F. Griffin, Jr., General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Usha Dheenan, Supervisory Attorney.
    Peter N. Kirsanow, Cleveland, OH, John M. Payne, and Selena C. Smith, Seattle, WA, were on the brief for intervenor Oak Harbor Freight Lines, Inc.
    Thomas A. Leahy, Seattle, WA, was on the brief for intervenors Teamsters Local 174, et al.
    Before: GARLAND, Chief Judge, ROGERS, Circuit Judge, and WILLIAMS, Senior Circuit Judge.
   ROGERS, Circuit Judge:

The National Labor Relations Act requires employers to bargain in good faith “with respect to wages, hours, and other terms and conditions of employment.” 29 U.S.C. § 158(a)(5), (d). Upon the expiration of a collective bargaining agreement, the parties to that agreement have an ongoing obligation to maintain the “status quo” as to all mandatory subjects of bargaining until they reach a new agreement or an impasse. NLRB v. Katz, 369 U.S. 736, 743, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962); Laborers Health & Welfare Tr. Fund for N. Cal. v. Advanced Lightweight Concrete Co., 484 U.S. 539, 544 n.6, 108 S.Ct. 830, 98 L.Ed.2d 936 (1988); Triple A Fire Prot., Inc., 315 NLRB 409, 414 (1994). Absent an impasse, unilateral action changing the status quo of a mandatory subject of bargaining violates Section 8(a)(5) of the Act as a “circumvention of the duty to negotiate.” Katz, 369 U.S. at 743, 82 S.Ct. 1107. Pension and healthcare benefits are mandatory subjects of bargaining. See Allied Chem. & Alkali Workers of Am., Local Union No. 1 v. Pittsburgh Plate Glass Co., Chem. Div., 404 U.S. 157, 180, 92 S.Ct. 383, 30 L.Ed.2d 341 (1971). Both requirements are implicated here.

Oak Harbor Freight Lines, Inc. and several locals of the Teamsters Union established four health benefit and pension trusts, so-called “Taft-Hartley” trusts, as part of their collective bargaining agreement. Under that agreement, Oak Harbor was required to make monthly contributions to the trusts. When the agreement expired and no new agreement was reached after a year, Union employees went on strike. When Oak Harbor ceased making contributions to the trusts, the Union filed unfair labor practice charges. The National Labor Relations Board ruled the Union had waived its right to bargain over the cancellation of contributions in subscription agreements to three of the trusts after the collective bargaining agreement expired, and Oak Harbor, having failed to prove a fourth subscription agreement existed or other basis to find a union waiver, violated Sections (8)(a)(5) and (1) of the National Labor Relations Act by ceasing to make payments to the fourth trust. The Board also ruled that Oak Harbor’s unilateral imposition of its medical plan after the strike ended violated the Act. Both Oak Harbor and the Union filed petitions for review of the Board’s Decision and Order. For the following reasons, we deny the petitions for review and grant the Board’s cross-application to enforce its Order.

I.

Oak Harbor is a freight transportation company operating throughout the northwestern United States. Since at least 1992, local Teamsters unions (together, “the Union”) have represented Oak Harbor employees based in Washington, Oregon, and Idaho, engaging in joint bargaining for a single collective bargaining agreement. As relevant, the latest collective bargaining agreement was effective from November 1, 2004 until October 31, 2007. It required Oak Harbor to make monthly contributions to four “Taft-Hartley” trusts for employee health benefits and pensions, 29 U.S.C. § 186(c)(5), and set the contribution rate for each trust.

Negotiations for a new collective bargaining agreement began in August 2007. More than a year later, the parties still had not reached a new agreement, and on September 22, 2008, Union employees went on strike. Oak Harbor sent letters to the Union and to the four trusts, notifying them of its intent to cease making contributions to the trusts five days after the notices were received. The letters to three trusts — Washington Teamsters Welfare Trust, the Western Conference of Teamsters Pension Trust Fund, and the Retirees Welfare Trust — referenced cancellation provisions in the trust subscription agreements or employer-union pension certifications (collectively, “subscription agreements”). The cancellation provision in the Retirees Welfare Trust’s subscription agreement stated:

Upon expiration of the current or any subsequent bargaining agreement requiring contributions, the employer agrees to continue to contribute to the trust in the same manner and amount as required in the most recent expired bargaining agreement until such time as the [employer or union] either notifies the other party in writing ... of its intent to cancel such obligation five days after receipt of notice or enter[s] into a successor bargaining agreement.

The cancellation provisions for the other two trusts were virtually identical. With respect to the fourth trust — the Oregon Warehouseman’s Trust — Oak Harbor wrote:

We are not certain whether Oak Harbor Freight Lines has a subscription agreement with the Oregon Warehouseman’s Trust, which contains a Notice to Cancel Provision. If such a provision exists in a Subscription Agreement signed by Oak Harbor Freight Lines, please be advised that this constitutes Notice of Intent to Cancel.

Letter from John M. Payne, Esq. (Sept. 28, 2008). Five days after receipt of the letters, Oak Harbor ceased contributions to the four trusts.

During the strike, Oak Harbor hired strike replacements, which included “crossover employees,” i.e., Union members who crossed the picket line. It considered itself obligated to continue making trust payments for the crossovers during the strike. When informed the trusts would not accept contributions on behalf of only these Union members, Oak Harbor proposed that for the duration of the strike it would make pension contributions to an escrow account and “temporarily cover its crossovers” under Oak Harbor’s medical plan. Mem. from John M. Payne, Esq., to Union Representatives Al Hobart, Buck Holliday, and Ken Thompson (Oct. 8, 2008). The Union agreed. Then, on February 17, 2009, five days after the Union extended an unconditional offer for its members to return to work, Oak Harbor proposed “to continue the [February 17] status quo regarding wages and benefits” for the returning strikers; that is, the interim strike arrangement would continue for all employees: pension contributions would be paid to escrow accounts and medical coverage would be provided under Oak Harbor’s medical plan. The Union disagreed with Oak Harbor’s understanding of its “status quo” obligation and countered with a proposal for an “interim agreement” with the trusts in order to allow trust contributions to resume during negotiations for a new collective bargaining agreement. Oak Harbor refused, and when strikers returned to work on February 26, 2009, Oak Harbor unilaterally imposed the terms in its February 17th letter.

The Union filed unfair labor practice charges with the Board in light of Oak Harbor’s cessation of trust payments and unilateral imposition of its medical plan after the strike ended. An administrative law judge (“ALJ”) found no unfair labor practice by Oak Harbor in ceasing to make contributions to the trusts in view of the subscription agreements, but concluded Oak Harbor’s unilateral action placing Union employees under its medical plan after the strike ended violated Sections 8(a)(5) and (l) of the Act. Both parties appealed. The Board adopted the ALJ’s finding and conclusions on Union waiver except with regard to Oak Harbor’s cessation of payments to the Oregon Warehouseman’s Trust. As to that trust, the Board found Oak Harbor had failed to prove there was a subscription agreement or present other evidence that the Union had clearly and unmistakably waived its right to bargain over the cancellation of contributions. It ordered Oak Harbor, upon the Union’s request, to make all post-strike payments to the Oregon Warehouseman’s Trust, restore the pre-strike status quo for health care benefits, and reimburse employees, with interest, for any expenses resulting from the failure to make the required payments to that trust. The Union and Oak Harbor petition for review of the Board’s Decision and Order.

II.

The Union challenges the Board’s finding that it clearly and unmistakably waived its right to bargain over cancellation of contributions to the three trusts. It maintains that the Board inappropriately considered extrinsic evidence to the expired collective bargaining agreement when it looked to the terms of the subscription agreements, and that those agreements were only “ministerial” documents incapable of demonstration of the Union’s clear and unmistakable waiver. The court will uphold the decision of the Board unless it was arbitrary or capricious or contrary to law, and as long as its findings of fact are supported by substantial evidence in the record as a whole. Wayneview Care Ctr. v. NLRB, 664 F.3d 341, 348 (D.C. Cir. 2011); Pirlott v. NLRB, 522 F.3d 423, 432 (D.C. Cir. 2008). Substantial evidence, which is “more than a mere scintilla,” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 217, 59 S.Ct. 206, 83 L.Ed. 126 (1938); see also Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

The Board properly concluded that the Union waived its statutory rights to receive and bargain over continued contributions to the Washington Teamsters Welfare Trust, the Retirees Welfare Trust, and the Western Conference of Teamsters Pension Trust Fund. Applying its own test, the Board determined that the subscription agreements for those trusts “clearly and unmistakably” authorized Oak Harbor to cease trust contributions upon expiration of the collective bargaining agreement after five days’ notice. Under this court’s precedent, when an “employer acts pursuant to a claim of right under the parties’ agreement, the resolution of that refusal to bargain charge rests on an interpretation of the contract at issue.” NLRB v. United States Postal Ser., 8 F.3d 832, 837 (D.C. Cir. 1993). Although the Board has declined to adopt this view of the law, see, e.g., Enloe Medical Center v. NLRB, 433 F.3d 834, 837-38 (D.C. Cir. 2005), this non-acquiescence issue does not matter here. No party raises the “contract coverage” issue, the Union maintains that the Board misapplied its own precedent, and the court would reach the same result regardless of which doctrine is applied. Contrary to the Union’s contention that the Board erred in considering the extrinsic evidence of the subscription agreements but failing to consider its “extrinsic evidence” that the cancellation terms were not the product of bargaining, the Board properly concluded that considering the Union’s additional evidence would not have changed its analysis or outcome.

The Union contends that the Board misapplied its own waiver precedent. In Caut-home Trucking, the Board found a clear and unmistakable waiver of a union’s right to bargain over contributions to trust funds after the expiration of the collective bargaining agreement where the subscription agreement stated:

It is understood and agreed that at the expiration of any particular collective bargaining agreement by and between the Union and [the employer,] any Company’s obligation under this Pension Trust Agreement shall terminate unless, in a new collective bargaining agreement, such obligation shall be continued.

256 NLRB at 722. The Union attempts to show that the subscription agreements here were “ministerial” and “therefore not indicative of a bargained-for waiver,” Union Pet’r’s Br. 34, relying on Schmidt-Tiago Construction Company, 286 NLRB 342 (1987), and American Distributing Company, 264 NLRB 1413 (1982). It also questions the precedential force of Caut-home Trucking.

The Union maintains that the cancellation provisions for the three “Taft-Hart-ley” trusts are better compared to the subscription agreements in Schmidt-Tiago and American Distributing where the Board concluded the text was ambiguous. An examination of those precedents reveals no error by the Board. In Schmidt-Tiago, the subscription agreement stated that the employer and union “certify that a written labor agreement is in effect between the parties providing for contributions to the [Trust Fund],” and that the employer and union “agree to be bound by the [collective bargaining agreement] and the [subscription agreement] as now constituted or as hereinafter amended.” 286 NLRB at 365. The Board found the agreement “does not on its face, as in Cauthome Trucking, specifically state that [the employer’s] obligation to contribute to the pension trust fund ends with the expiration of the current collective-bargaining contract.” Id. at 366. Similarly, in American Distributing, where the subscription agreement stated, “[t]he undersigned employer and [u]nion hereby certify that a written pension agreement (in most cases a Teamsters collective bargaining agreement) is in effect between the parties providing for contributions to the [Trust Fund],” the Board found no unmistakable waiver of bargaining after the expiration of the collective bargaining agreement; the Board explained that “[s]uch language [did] no more than ministerially attach to the enabling collective-bargaining agreement for verification and collection purposes.” 264 NLRB at 1415. Given the plain terms of the cancellation provisions in the subscription agreements for the three trusts, there can be no serious disagreement that the Board properly concluded these cancellation provisions on their face were more like that in Cauthorne Trucking, 256 NLRB at 722, than in the two cases on which the Union relies.

To the extent the Union correctly points out that the Board has applied Cauthorne Trucking “narrowly,” The Finley Hospital, 359 NLRB 156, 159 n.5 (2012), that is not the same as questioning its precedential value. Rather, the Board has explained that it will find a clear and unmistakable waiver of the right to bargain over the cancellation of trust payments only where there is explicit contract language authorizing an employer to cancel its obligations. Id. at 157-158. The three subscription agreements did just that. There is no merit to the Union’s view that a ministerial subscription agreement cannot constitute a valid waiver. As the Board stated, “even assuming that the cancellation language had been dictated by the Funds and was not specifically bargained over by the parties, the signed documents establish that the Unions waived their right to bargain” over cancellation of contributions to the three trusts. Board Decision and Order, 1 n.2.

III.

Oak Harbor’s challenges to the Board’s Decision and Order are also unpersuasive.

A.

Regarding trust contributions, the Board, as noted, has determined that waiver of the right to bargain must be shown to be clear and unmistakable. Provena St. Joseph Med. Ctr., 350 NLRB 808, 810 (2007); see Metro. Edison Co. v. NLRB, 460 U.S. 693, 708, 103 S.Ct. 1467, 75 L.Ed.2d 387 (1983). Oak Harbor, as the party claiming waiver, had the burden of proof. Good Samaritan Hosp., 335 NLRB 901, 918 (2001). The ALJ apparently inferred the existence of a subscription agreement for the Oregon Warehouseman’s Trust based on the existence of subscription agreements for the other three trusts. But the Board’s contrary finding is supported by substantial evidence in the record. There was no evidence that a fourth subscription agreement actually existed, which, absent other grounds for waiver, was necessary to find that the Union had clearly and unmistakably waived its right to bargain over the cancellation of contributions to the Oregon Warehouseman’s Trust. Oak Harbor attempted to demonstrate the Union’s waiver through the testimony of its attorney John Payne, but his testimony was hardly dispositive. He testified one Oregon Warehouseman’s Trust employee had told him: “I believe we have a subscription agreement,” and another told him she was “almost sure” there was a subscription agreement, “but I’ll have to double check, but we almost always do require one.” Neither was there evidence that the Oregon Warehouseman’s Trust expressly denied the existence of a subscription agreement to Oak Harbor. On the other hand, Oak Harbor does not maintain that it ever received a copy of a subscription agreement from the Oregon Warehouseman’s Trust or any confirmation one existed beyond the trust’s general practice that agreements typically existed.

The Board reasonably concluded that, at most, there was speculation based on an asserted usual practice to have a subscription agreement that one existed for the Oregon Warehouseman’s Trust, but no evidence specific to that Trust. Indeed, even the evidence of the Oregon Warehouseman’s Trust’s general practice was called into question; an Oregon Warehouseman’s Trust administrator testified that the trust did not generally require a subscription agreement. Although the parties’ expired collective bargaining agreement required Oak Harbor to make monthly contributions to four trusts, it did not require that there be subscription agreements with the trusts, much less that they include a cancellation provision. Oak Harbor’s notice of cancellation letter to the Oregon Warehouseman’s Trust confirms the speculative nature as to the evidence of the existence of a subscription agreement. Absent evidence to support a finding that a fourth subscription agreement existed, much less that it existed and contained an unequivocal cancellation provision like that in the subscription agreements for the other three trusts, Oak Harbor failed to meet its burden to show the Union had clearly and unmistakably waived its right to bargain on contributions to the Oregon Warehouseman’s Trust.

Oak Harbor’s other attempts to block the Union’s right to bargain also fail. The Board reasonably rejected its argument that the Union was estopped from challenging the existence of a fourth subscription agreement. As Oak Harbor sees it, because the Union never informed it that there was no subscription agreement for the Oregon Warehouseman’s Trust, the Union is “in no position to now benefit by [its] silence and [its] acquiescence and seek retroactive contributions.” Oak Harbor Pet’r’s Br. 23. But this is not affirmative evidence that the Union had informed Oak Harbor that the subscription agreement existed, and the Board precedent on which Oak Harbor relies is inapposite. In Manitowoc Ice, Inc., 344 NLRB 1222, 1224 (2005), the Board found estoppel based on the union’s repeated acquiescence to the employer’s unilateral changes to the employer’s profit-sharing plan as a management prerogative. Id. The union had repeatedly raised the issue of profit-sharing during negotiations, the employer had repeatedly rejected the union’s proposal to guarantee profit-sharing, and the union had ultimately agreed to a collective bargaining agreement that did not address the profit-sharing plan. Id. at 1223. The Board concluded that there was “a clear understanding that the profit-sharing plan would remain a management prerogative, and that the Union, by its conduct ... bargained away its interest in the plan.” Id. at 1224 (internal quotations omitted). By contrast, no evidence exists here as would show that the Union discussed and “bargained away” its interest in maintaining contributions to the Oregon Warehouseman’s Trust. Nor did the Union fail to object contemporaneously that Oak Harbor was not bargaining in good faith.

Lehigh Portland Cement Co., 286 NLRB 1366, 1383 (1987), does not advance Oak Harbor’s estoppel claim. There, the employer took action over the course of a year consistent with its acceptance of a merger of two unions, including dealing with the representatives of the newly-merged union. The Board found that the employer was estopped from challenging the validity of the merger a year later because “the [e]mployer knew of the merger and behaved in a way which encouraged justified reliance by the Union.” Id. Likewise, in Alpha Associates and Union of Needletrades, 344 NLRB 782 (2005), the employer was estopped from challenging the validity of the union in fight of the employer’s “voluntary recognition of the [u]nion” and its “conduct of bargaining with the [u]nion for more than a year prior to its repudiation of the bargaining agreement,” id. at 783.

It is true that the Union did not challenge the cancellation of contributions to the Oregon Warehouseman’s Trust on the ground there was no subscription agreement, but it did challenge Oak Harbor’s cancellation of contributions to all four trusts less than a month after the strike ended when it filed unfair labor charges. There is no history of Union acquiescence or an element of surprise in the Union’s position that Oak Harbor violated the Act when it ceased to make contributions to the four trusts. Oak Harbor’s consistent position that it validly cancelled its contributions to the Oregon Warehouseman’s Trust, in turn, presents no bar to the Union’s challenges.

The Board also properly found there was no evidence that a “mutual mistake” prevented the Union from challenging the cessation of contributions to the Oregon Warehouseman’s Trust. Oak Harbor’s reasoning follows its estoppel argument and is equally unpersuasive. Its reliance on Americana Healthcare Center, 273 NLRB 1728 (1985), is misplaced. There, the Board referred to a mutual mistake only in reaching the conclusion that terms inadvertently omitted from a collective bargaining agreement could be read into the final document, and in ruling that the collective bargaining agreement’s “zipper clause” therefore could not be invoked by the employer. Id. at 1733; see also NLRB v. Americana Healthcare Ctr., 782 F.2d 941, 945 (11th Cir. 1986). The record shows no similar circumstances here.

B.

As to the unilateral action of imposing its medical plan on employees after the strike ended, in some cases economic exigency may justify an employer’s unilateral change, but this is not one of them. Oak Harbor contends that it was merely applying the status quo in order to assure that returning employees had health benefits, and that by February 2009, the status quo had changed as a result of the parties’ arrangement for crossover employees to be covered by Oak Harbor’s medical plan. The record shows, however, that the agreement on crossover employees during the strike was temporary and that Oak Harbor itself described it as an “interim measure pending the outcome of bargaining and of the strike.” Mem. from John M. Payne, Esq., to Union Representatives Hobart, Holliday and Thompson (Oct. 3, 2008).

Alternatively, Oak Harbor contends that it was justified in unilaterally placing Union workers on its medical plan because the parties had reached an impasse or Oak Harbor faced an economic exigency. These defenses were properly rejected by the Board. “A bargaining impasse ... occurs when good faith negotiations have exhausted the prospects of concluding an agreement, leading both parties to believe that they are at the end of their rope.” TruServ Corp. v. NLRB, 254 F.3d 1105, 1114 (D.C. Cir. 2001) (internal quotations and citation omitted). Typically, the parties must have reached an impasse as to overall bargaining: “[i]mpasse over a single issue” will create an overall bargaining impasse only if that issue “is of such overriding importance that it frustrates the progress of further negotiations.” Laurel Bay Health & Rehab. Ctr., 353 NLRB 232, 232 (2008) (internal quotations and citations omitted).

The Board found that there was no overall impasse to negotiations in February 2009, a finding Oak Harbor does not challenge. Nor does Oak Harbor suggest that the matter of health insurance was of such “overriding importance” that its unilateral action was justified in the absence of an overall impasse. The Board also could properly reject Oak Harbor’s position that an economic exigency authorized it to act unilaterally, finding that Oak Harbor failed to show that it faced an economic exigency that posed a “heavy burden” and “require[d] prompt implementation” to justify its conduct at the end of the strike. Vincent Indus. Plastics, Inc. v. NLRB, 209 F.3d 727, 734 (D.C. Cir. 2000).

Accordingly, we deny the petitions for review, and we grant the Board’s cross-application to enforce its Order.


author: SELYA, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Josue SOTO-SOTO, Defendant, Appellant.
    No. 16-1444
    United States Court of Appeals, First Circuit.
    May 1, 2017

      Eric Alexander Vos, Federal Public Defender, Vivianne M. Marrero, Assistant Federal Public Defender, Supervisor, Appeals Section, Eleonora C. Marranzini, Assistant Federal Public Defender, and Franco L. Perez-Redondo, Research and Writing Specialist, on brief for appellant.
    Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana E. Bauzá-Al-monte, Assistant United States Attorney, Chief, Appellate Division, and Juan Carlos Reyes-Ramos, Assistant United States Attorney, on brief for appellee.
    Before HOWARD, Chief Judge, SELYA and STAHL, Circuit Judges.
   SELYA, Circuit Judge.

Defendant-appellant Josué Soto-Soto appeals from a two-year sentence imposed following the revocation of a term of supervised release. He complains that the district court erred both in stating that it had granted him “two previous opportunities” to reform his ways and in fashioning a substantively unreasonable sentence. Finding his plaints unpersuasive, we affirm.

I. BACKGROUND

The relevant facts are largely uncontested. On October 18, 2013, the appellant entered a guilty plea to a charge of being a felon in possession of a firearm. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). The district court sentenced him to eighteen months’ imprisonment, to be followed by three years of supervised release. The appellant served the incarcerative portion of the sentence and began serving his term of supervised release on November B, 2014.

The appellant’s new status got off to a rocky start: at an intake interview, he disobeyed instructions to wait in the reception area and fled from the probation office. Several months later, the appellant was apprehended; and, on May 19, 2015, the district court held a hearing to consider revocation of his supervised release. In the end, the court did not revoke supervised release but, rather, attached an additional condition requiring cognitive behavioral treatment. Nevertheless, the court took pains to warn the appellant “that any future non-compliance [would] result in the revocation of his [supervised release].”

On July 7, 2015, the probation officer, by motion, informed the district court that the appellant had again violated the conditions of his supervised release. The motion noted that, on July 4, the appellant had been charged with aggravated domestic abuse, domestic abuse by means of threats, and unlawful carrying and use of bladed weapons in derogation of Puerto Rico law. See P.R. Laws Ann. tit. 8, §§ 632(d), 633; id. tit. 25, § 458d. Even though a local magistrate found probable cause to believe that these charges were well-founded, the parties agreed to dispose of the motion by adding anger management and domestic violence counseling to the existing conditions of the appellant’s supervised release.

The matter came before the district court on January 15, 2016. Although the court made no express findings as to whether the conditions of supervised release had been violated, it declared that the appellant had “demonstrated a disregard and lack of commitment towards the Court and the supervision conditions.” Even so, the court accepted the parties’ agreement, allowed the existing supervised release term to continue, and added anger management and domestic violence counseling as additional conditions. The court took the occasion, though, to issue “a stern warning,” telling the appellant bluntly that this was his' “last opportunity” and admonishing him that if he again failed to comply with his supervised release conditions, the court would “not hesitate in revoking [his] term of supervision.” (Emphasis in original).

The third time was not the charm. Less than a month after the January 15 hearing, the probation officer learned that a participant in the appellant’s transitional housing program claimed that the appellant had supplied him with synthetic marijuana. Moreover — after being asked to consent to a search — the appellant had left the program without authorization. Though the probation officer made' arrangements for the appellant to re-enter the program, the appellant absconded.

Once the appellant was back in custody, the probation officer moved for revocation of his supervised release. On April 6, 2016, the district court convened a hearing. The appellant admitted the allegations contained in the probation officer’s motion and asked the court to sentence him either to time served or — if the court was unwilling to do so — to no more than five months’ imprisonment (the low end of the guideline sentencing range), without any further term of supervised release. The government demurred, pointing out that the appellant had repeatedly flouted both the probation officer’s instructions and the supervised release conditions. With this tarnished record in mind, the government proposed that the court choose between two alternative dispositions. In the first instance, it recommended imposition of the statutory maximum term of immurement — two years, see 18 U.S.C. § 3583(e)(3) — with no further period of supervised release. Should that proposal not suit the court, the government recommended, as an alternative, a sentence at the high end of the guideline sentencing range (eleven months), to be followed by a fresh term of supervised release. The probation officer agreed with the suggestion for a two-year term of immurement, coun-selling against a new term of supervised release because the appellant had demonstrated that he “would not follow instructions.”

The district court determined that the appellant had violated the conditions of his supervised release. Relatedly, the appellant had “demonstrated that he is unable to comply with the conditions of his supervision.” The court added that even though the appellant had been “granted two previous opportunities and was allowed to continue on supervision in an effort to assist him in his reintegration to the community, he did not abide by the supervision conditions.” Consequently, the court revoked the existing term of supervised release.

The court then turned to sentencing. Based on the appellant’s criminal history category (III) and the fact that the original offense of conviction (felon in possession) was a grade C violation, see USSG § 7B1.1(a)(3), the court set the guideline sentencing range at five to eleven months, see id. § 7B1.4(a). The court abjured the guideline range, however, and sentenced the appellant to two years’ imprisonment (the statutory maximum), with no new term of supervised release. This timely appeal followed.

II. ANALYSIS

The appellant makes both a procedural and a substantive challenge to his sentence. We discuss them in order.

A.

The appellant’s claim of procedural error assails the district court’s characterization of the second revocation proceeding as a second chance for the appellant to get his act together. This mis-perception, he says, adversely affected the court’s sentencing calculus. Preserved claims of sentencing error are typically reviewed for reasonableness, under an abuse of discretion rubric. See Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Montero-Montero, 817 F.3d 35, 37 (1st Cir. 2016). Here, however, the appellant did not preserve the claim of procedural error that he now advances. Our review, therefore, is for plain error. See United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). Under the plain error standard, the appellant must show “(1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant’s substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings.” Id. Plain error is plainly absent here.

The short of it is that the record supports the district court’s characterization. The appellant’s first opportunity to avoid a new prison sentence came during the May-19, 2015 revocation hearing, when the district court decided not to revoke supervised release despite the appellant’s admission that he had violated some of the pertinent conditions. Instead of ordering revocation, the court allowed the appellant to remain free on supervised release. The appellant does not dispute that this outcome constituted an “opportunity,” afforded to him by the court, to remain out of prison.

The crux of the matter, though, is the January 15, 2016 revocation hearing, which the district court characterized as the appellant’s second blown opportunity to remain at liberty. The appellant contends that this characterization was incorrect because there was no finding that a factual or legal basis existed to revoke his supervision and send him back to prison at that time. The appellant’s premise is sound: the court made no actual finding. But the conclusion that the appellant draws from that premise does not follow.

To begin, the district court’s characterization was not a post hoc afterthought: the minutes of the January 15 hearing reflect that the court expressly stated that it was granting the appellant “a last opportunity.” The court’s contemporaneous characterization of its own order is entitled to some weight. Cf. Lefkowitz v. Fair, 816 F.2d 17, 22 (1st Cir. 1987) (explaining that “uncertainty as to the meaning and intendment of a district court order can sometimes best be dispelled by deference to the views of the writing judge”).

In all events, the appellant cabins the word “opportunity” in a way that defies both common usage and common sense. It is apodictic that appellate courts should “’allow a good deal of leeway’ in reviewing the adequacy of a district court’s explanation” of a sentencing determination. United States v. Ofray-Campos, 534 F.3d 1, 38-39 (1st Cir. 2008) (quoting United States v. Gilman, 478 F.3d 440, 446 (1st Cir. 2007)). Viewing the outcome of the January 15 hearing as affording the appellant an opportunity to redeem himself comports with common linguistic usage. See, e.g., Opportunity, Merriam-Webster’s Collegiate Dictionary (11th ed. 2003) (defining “opportunity” broadly as “a favorable juncture of circumstances”). It likewise comports with common sense. After all, the court exercised its discretion to accept a recommended outcome that permitted the appellant to remain free on supervised release without having to defend himself against the probation officer’s charges. Had the court pressed ahead with those charges, the appellant would have been at risk of revocation (and, thus, of being returned to prison).

A district court, particularly when ruling from the bench, cannot be expected to use language that is “precise to the point of pedantry.” Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1088 (1st Cir. 1993). As long as the court’s words reflect a correct understanding of the law, the facts, and the state of proceedings, no more is exigible. See United States v. Pelletier, 469 F.3d 194, 204 (1st Cir. 2006) (finding no error, even though district court’s word choice was “an. awkward locution,” since court clearly understood the law); cf. Dopp v. Pritzker, 38 F.3d 1239, 1244 n.5 (1st Cir. 1994) (acknowledging that trial courts need not be “letter-perfect in their syntax”). The court below satisfied this standard. When all is said and done, we find no error, plain or otherwise, in the court’s characterization of the outcome of the January 15 hearing as an “opportunity” afforded to the appellant.

B.

This leaves the appellant’s claim that his two-year sentence is substantively unreasonable. Inasmuch as this claim was raised below, our review is for abuse of discretion. See United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir.), cert. denied, — U.S. —, 136 S.Ct. 258, 193 L.Ed.2d 191 (2015).

The touchstone of abuse of discretion review in federal sentencing is reasonableness. See Gall, 552 U.S. at 46, 128 S.Ct. 586. In this context, “reasonableness is a protean concept, not an absolute.” United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008). An inquiry into the substantive reasonableness of a sentence must “take into account the totality of the circumstances, including the extent of any variance from the Guidelines range.” Gall, 552 U.S. at 51, 128 S.Ct. 586. The test is whether the sentence reflects “a plausible sentencing rationale and a defensible result.” Martin, 520 F.3d at 96.

Here, our analysis starts with the relevant statutory framework. Congress enacted 18 U.S.C. § 3583(e) to guide a sentencing court in the exercise of its discretion when imposing, inter alia, a sentence following the revocation of a term of supervised release. “The maximum sentence for a person who violates the conditions of his supervised release varies based on the severity of ‘the offense that resulted in the term of supervised release.’ ” United States v. Fontanez, 845 F.3d 439, 445 (1st Cir. 2017) (quoting 18 U.S.C. § 3583(e)(3)). For this purpose, offenses are grouped in various categories. See 18 U.S.C. § 3583(e)(3). The parties agree that the underlying offense in this case (felon in possession) is a class C violation, which bears a maximum two-year sentence upon revocation of supervised release. See id.

Section 3583 incorporates by reference some, but not all, of the sentencing factors limned in 18 U.S.C. § 3553(a). See United States v. Vargas-Dávila, 649 F.3d 129, 131 (1st Cir. 2011). These incorporated factors include the nature of the offense, 18 U.S.C. § 3553(a)(1); the offender’s history and characteristics, id.; the need for deterrence, id. § 3553(a)(2)(B); and the need to protect the public, id. § 3553(a)(2)(C). Although the court must mull all of the incorporated factors, “it need not do so mechanically.” Vargas-Dávila, 649 F.3d at 131.

In the case at hand, the appellant asseverates that his sentence is substantively unreasonable because his supervised release was never before revoked and the sentencing record shows no “plausible explanation” for the sentence. The force of this asseveration is undercut to a significant extent by the appellant’s course of conduct. Actions have consequences, and the appellant’s actions gave the district court ample reason to believe that only a substantial sentence would deter him from his wayward practices. By the same token, the appellant’s actions showed that he was a particularly poor candidate for a further term of supervised release. As the court observed, from the very beginning, the appellant “demonstrated that he [was] unable to comply with the conditions of his supervision.” This assessment was borne out by the probation officer, who recommended that the appellant not be given any term of supervised release because “he [did] not cooperate or commit[ ] to the terms at all.”

Even without any consideration of the incidents that prompted the second revocation hearing, the record makes manifest that the appellant was a serial violator of the conditions of supervised release. He repeatedly left his transitional housing program without authorization and failed, on several occasions, to follow his probation officer’s instructions. What is more, the appellant was explicitly warned, during both the first and second hearings, that any further violations would result in the revocation of his supervised release (and, thus, in additional prison time). These warnings went unheeded, and the court acted well within its discretion in giving heavy weight to this checkered history.

The court’s rationale plainly justified a substantial sentence. We recognize that the court proceeded to impose a statutory maximum two-year sentence, notwithstanding that the guideline sentencing range topped out at eleven months of incarceration. See USSG § 7B1.4(a). But the guideline ranges with respect to sentences for revocation of supervised release are merely advisory, see United States v. Work, 409 F.3d 484, 492 (1st Cir. 2005) (citing USSG §§ 7B1.1-7B1.5), and the court had the authority to vary upward from the applicable range so long as the circumstances justified such a variance. We think that they did: a high-end guideline sentence would in all likelihood have carried with it a new supervised release term, see 18 U.S.C. § 3583(h), and the appellant had given the court reason to believe that a new term of supervised release would be fruitless. In view of the appellant’s demonstrated unwillingness to comply with conditions of supervised release, the court’s decision to eschew a new term of supervision and instead impose a lengthier sentence seems altogether appropriate.

The upshot, then, is that the court articulated a plausible sentencing rationale and reached a defensible result. It considered the proper mix of sentencing factors (including the appellant’s history and characteristics, the seriousness of the offense, promoting respect for the law, providing just punishment, and furthering deterrence) and concluded that the “statutory maximum term in this case [was] warranted.” On this record, the two-year sentence — though severe — did not “fall[] outside the ‘expansive boundaries’ of the entire' range of reasonable sentences.” Vargas-Dávila, 649 F.3d at 130 (quoting Martin, 520 F.3d at 92).

III. CONCLUSION

We need go no further. For the reasons elucidated above, the sentence is

Affirmed.

      . To be sure, the appellant's counsel stated, at the end of the disposition hearing, that the appellant objected to the sentence as "procedurally ... unreasonable.” No objection was raised, however, to the court’s “two previous opportunities” comments. A general objection to the procedural reasonableness of a sentence is not sufficient to preserve a specific challenge to any of the sentencing court’s particularized findings. To preserve a claim of error for appellate review, an objection must be sufficiently specific to call the district court’s attention to the asserted error. See United States v. Ríos-Hernández, 645 F.3d 456, 462 (1st Cir. 2011); United States v. Holmquist, 36 F.3d 154, 168 (1st Cir. 1994); United States v. Boylan, 898 F.2d 230, 249 (1st Cir. 1990).

      . The appellant did not object to this portion of the minutes (even though he objected to a different portion of the minutes).

      . For the sake of completeness, we note that the appellant actually received a third opportunity when — less than a month after the January 15 revocation hearing — he flouted his supervised release conditions and left his transitional housing program without authorization. Rather than notifying the court of this lapse, the probation officer simply arranged for the appellant to re-enter the program.

      . The district court's sentencing rationale did not address whether or not the appellant actually committed the infractions alleged in the motion that sparked the January 15 revocation hearing. Instead, the court relied mainly on facts such as that the appellant showed "poor judgment” and "repeated[ly] failed to cooperate with the probation officer, the supervision strategies and the work plan set out for him.” Those discerned facts find firm footing in the record.


author: BARRON, Circuit Judge.

text:
    Paul M. MCDONOUGH, Plaintiff, Appellant, v. CITY OF PORTLAND; Non-Reserved Taxi Group, Inc., Defendants, Appellees.
    No. 16-1959
    United States Court of Appeals, First Circuit.
    May 1, 2017
    John S. Whitman, with Heidi J. Hart and Richardson, Whitman, Large & Badger, Portland, ME, for appellant.
    Edward R. Benjamin, Jr., with Adrianne E. Fouts and Drummond Woodsum, Portland, ME, for appellee City of Portland.
    Sigmund D. Schütz, with Preti, Flaherty, Beliveau & Pachios, LLP, Portland, ME, for appellee Non-Reserved Taxi Group.
    Before THOMPSON, STAHL, and BARRON, Circuit Judges.
   BARRON, Circuit Judge.

This case concerns a suit by Paul M. McDonough, in which he challenges the system by which the City of Portland (“Portland”) distributes permits for taxis to pick up passengers at the Portland International Jetport. McDonough alleges that Portland, in violation of the federal Constitution, denied him the opportunity to apply for a permit on the basis of his race and national origin. The District Court granted summary judgment to Portland, because it ruled that McDonough did not have standing to bring his constitutional challenge. We affirm.

McDonough filed his complaint in Maine Superior Court on December 30, 2014. Portland removed the suit to the United States District Court for the District of Maine on April 24, 2015. Non-Reserved Taxi Group then intervened in the action. After some discovery, all parties filed motions for summary judgment on March 21, 2016.

The summary judgment record shows that McDonough was asked in his deposition whether he would be able and willing to apply for the permit and to pay the $800 application fee if Portland removed the cap on the number of permits, as McDonough sought in his complaint. McDonough answered: “To spend the $800? That’s a very, very, very — -that’s a very accurate thing. I probably — I probably wouldn’t be — I’d want to go there, but it’s all relative. I wouldn’t be as inclined to go there now with the — you’re talking about if the same number of cabs were allowed there or are we talking about when we used to go there for 12 cabs? See, I don’t know.” The attorney taking his deposition clarified that her question was about whether “everything is the same except you can now apply for a permit.” McDonough replied: “Geez, I don’t know. Well, the other thing that I got to keep in mind now, I’m old and I don’t know how much longer I’m going to be doing this.... It’s mostly principle. I know that’s a foregone word these days. Some people don’t even know what I mean when I mention that.”

After the deposition, McDonough submitted, in a sworn statement, an errata sheet that contained a series of corrections to his deposition testimony, presumably pursuant to Rule 30(e) of the Federal Rules of Civil Procedure. He corrected the above statement to the following: “I am 71 years old, I’ve driven a cab for 47 years, and I don’t know how much longer I’m going to be doing this. If I am physically able to continue working over 50 hours a week, and to change my hours to match when the planes arrive, then I would definitely pay the $800 [fee] for a ... permit.”

McDonough does not dispute that, to have standing to bring this challenge, he must show that he is “able and ready” to apply for a permit. Donahue v. City of Boston, 371 F.3d 7, 14 (1st Cir. 2014). He also does not dispute that, to meet his burden of showing that he is “able and ready” to apply for a permit, he must show “a likelihood that he will compete for the governmental benefit in question in the future.” Cotter v. City of Boston, 323 F.3d 160, 167 (1st Cir. 2003).

Applying that “likelihood” standard, the District Court accepted the errata sheet, notwithstanding the defendants’ objection that it should be disregarded under the “sham affidavit” doctrine. But, the District Court concluded that, even crediting Mc-Donough’s corrected statement from the errata sheet, McDonough had not met his burden of demonstrating a genuine dispute of fact regarding whether there was a likelihood that McDonough was ready and able to apply for the permit. The District Court explained that the corrected statement set forth in the errata sheet revealed McDonough’s own uncertainty regarding whether he would be physically able to work fifty hours a week and to change his working hours to match when planes arrive.

On appeal, McDonough contends that the District Court erred because the statement from the errata sheet sufficed to create a genuine issue of material fact regarding the likelihood that he would seek the permit. But, after reviewing the District Court’s decision de novo, see Donahue, 371 F.3d at 13, we disagree. The corrected statement in the errata sheet at most indicates that there is a possibility— not a likelihood — that McDonough will be able and ready to apply for the permit that he contends he is being unlawfully denied the opportunity to seek. Accordingly, we see no basis for reversing the ruling of the District Court.

Nor do the precedents on which McDon-ough relies support a different conclusion. In U.S. AirWaves, Inc. v. FCC, 232 F.3d 227 (D.C. Cir. 2000), the plaintiff was a bidder for a license, and contended that the agency set unlawful rules for the auction. In ruling that the plaintiff did have standing, the D.C. Circuit explained that, to show that a prospective applicant is “ready, willing, and able” to seek a benefit and has standing to challenge an allegedly impermissible legal restriction on the opportunity to seek it, the applicant does not need to show that it would participate “regardless of the circumstances then prevailing.” Id. at 232 (citing Orange Park Florida T.V., Inc. v. FCC, 811 F.2d 664, 672 & n.18 (D.C. Cir. 1987)). But, the D.C. Circuit did not suggest that a plaintiff could establish standing merely by showing that it was possible that the plaintiff might seek the benefit going forward, which is all that McDonough has shown. Rather, in U.S. AirWaves, the plaintiff had submitted a bid in the first auction, and affirmed in a sworn affidavit submitted by its chief executive that it “intended”— without qualification — to bid in a future auction and was able to raise the capital necessary to do so. 232 F.3d at 232.

McDonough’s reliance on Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970), Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), Clements v. Fashing, 457 U.S. 957, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982), and Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993), is equally misplaced. Those cases simply hold that, when a plaintiff challenges a discriminatory process by which some state benefit is distributed, the plaintiff need not prove that he would actually be successful in obtaining that benefit if he applied, whether that benefit is a public office, a seat in a medical school, or a contract for work. See Ne. Fla. Chapter of Associated Gen. Contractors of Am., 508 U.S. at 666, 113 S.Ct. 2297. These cases do not support the conclusion that a plaintiff can establish standing merely by asserting that, while he might apply for the benefit he contends he is being unlawfully barred from seeking, he would do so only if he could make changes in his working conditions that the summary judgment record provides no basis for concluding that it is likely he would make.

Finally, McDonough states in his brief on appeal that he was “mistaken” in stating in the errata sheet that he would apply for a permit only if he was able to change his working hours. He points out that the record shows that some of his current working hours currently match some of the times that planes already land at the airport. He contends in his brief that the record thus shows that there is no need for him to change his hours in order for him to apply for the permit.

Thé record does show some level of overlap between his current working hours and the landing times. The fact remains, however, that McDonough’s own statement in the errata sheet avers that he would apply for a permit only if he could change his working hours. And McDonough nowhere represents, either in that errata sheet or elsewhere in the record, that he would not need to change his working hours if there were the degree of overlap that currently exists between his working hours and the landing times. Thus, his attempt on appeal to in effect revise his already once-revised statement regarding his intentions cannot suffice to create the genuine issue of material fact that, on this record, is missing. .

The judgment of the District Court is affirmed.


author: DENNIS JACOBS, Circuit Judge,

text:
    UNITED STATES of America, Appellee, v. Carlo J. MARINELLO, II, Appellant.
    15-2224
    United States Court of Appeals, Second Circuit.
    February 15, 2017
    Joseph M. LaTona, Buffalo, NY, for Defendant-Appellant.
    Russell T. Ippolito, Jr., Assistant United States Attorney, Buffalo, NY, for James P. Kennedy, Jr., Acting United States Attorney for the Western District of New York, Appellee.
    Present: ROBERT A. KATZMANN, Chief Judge, DENNIS JACOBS, JOSÉ A. CABRANES, ROSEMARY S. POOLER, REENA RAGGI,' PETER W. HALL, DEBRA ANN LIVINGSTON, DENNY CHIN, RAYMOND J. LOHIER, JR., SUSAN L. CARNEY, CHRISTOPHER F. DRONEY, Circuit Judges.

      . Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting United States Attorney James P. Kennedy, Jr., is automatically substituted for former United States Attorney William J. Hochul, Jr.

   ORDER

Following disposition of this appeal, an active judge of the Court requested a poll on whether to rehear the case en banc. A poll having been conducted and there being no majority favoring en banc review, rehearing en banc is hereby DENIED.

Dennis Jacobs, Circuit Judge, joined by José A. Cabranes, Circuit Judge, dissents by opinion from the denial of rehearing en banc.

DENNIS JACOBS, Circuit Judge,

joined by JOSÉ A. CABRANES, Circuit Judge, dissenting from the denial of rehearing in banc:

I respectfully dissent from the denial of rehearing in bane. The panel weighed in on the wrong side of a circuit split, affirmed a criminal conviction based on the most vague of residual clauses, and in so doing has cleared a garden path for prosecutorial abuse.

I

Marinello was convicted at trial on nine counts. Eight of them (for willful failure to file tax returns) raise no issue. The single problematic count is for violating the “omnibus clause” of the criminal portion of the Internal Revenue Code, which makes it a felony to “in any other way corruptly ... obstruct! 1 or impede!], or endeavor!] to obstruct or impede, the due administration of this title.” 26 U.S.C. § 7212(a). Yes: “this title” is the entire corpus of the Internal Revenue Code — a slow read in 27 volumes of the United States Code Annotated.

The government charged that Marinello violated the omnibus clause in eight different ways. And the district court instructed the jury that it was enough for conviction that Marinello violated the statute in any single one of those several ways — and that the jurors did not need to agree among themselves as to which.

Among the acts listed in the jury charge as violating the omnibus clause are:

• “failing to maintain corporate books and records for Express Courier [his small business]”;
• “failing to provide [his] accountant with complete and accurate information related to [his] personal income and the income of Express Courier”;
• “destroying, shredding and discarding business records of Express Courier”;
• “cashing business checks received by Express Courier for services rendered”; and
• “paying employees of Express Courier with cash.”

839 F.3d at 213 (internal brackets omitted). If this is the law, nobody is safe: the jury charge allowed individual jurors to convict on the grounds, variously, that Marinello did not keep adequate records; that, having kept them, he destroyed them; or that, having kept them and preserved them from destruction, he failed to give them to his accountant.

After conviction on all counts, Marinello moved for a new trial on the ground, inter alia, that the omnibus clause applied only to knowing obstruction of an ongoing IRS investigation, not to every possible impediment to the administration of any of the uncountable provisions of the Internal Revenue Code; and that he therefore should have been acquitted because there was no evidence that he was aware of an IRS investigation.

The district court rejected the argument and the panel affirmed, holding: “under section 7212(a), ‘the due administration of this title’ is not limited to a pending IRS investigation or proceeding of which the defendant had knowledge.” 839 F.3d at 223. Accordingly, the law in the Second Circuit today is that it is a felony to “corruptly” take (or try to take) any of the actions listed above — or to take or try to take any other action that impedes the “due administration” of the Internal Revenue Code.

The Sixth Circuit, alert to the sweep of criminalizable conduct, held that the omnibus clause was limited to cases in which the defendant knew of a pending IRS action. United States v. Kassouf, 144 F.3d 952 (6th Cir. 1998); United States v. Miner, 774 F.3d 336, 342-45 (6th Cir. 2014). The Sixth Circuit’s view is now distinctly in the minority, and the panel’s opinion here signs on to the emerging consensus of error in the circuit courts.

II

Increasingly, the’Supreme Court casts a cold eye on broad residual criminal statutes (particularly omnibus clauses like the one here), and has saved such statutes by construing the statutory text to cabin them.

In United States v. Aguilar, the Court considered a similarly worded statute concerning grand juror intimidation: the residual clause imposed criminal liability for one who “corruptly ... endeavors to influence, obstruct, or impede, the due administration of justice.” 515 U.S. 593, 599-600, 115 S.Ct. 2357, 132 L.Ed.2d 520 (1995) (interpreting 18 U.S.C. § 1503). To curb the impermissible breadth of the wording, the Court (a) implicitly interpreted “the due administration of justice” to require a court or grand jury proceeding (and thus excluded “an investigation independent of the court’s or grand jury’s authority”), and (b) explicitly required a “nexus” with, a grand jury or judicial proceeding to support criminal liability.

Similar alarm about fair warning and overbreadth animates Arthur Andersen LLP v. United States, which recognized and generously construed a knowledge requirement to limit the scope of a statute that criminalized “corruptly persuading]” someone to destroy documents. 544 U.S. 696, 125 S.Ct. 2129, 161 L.Ed.2d 1008 (2005) (interpreting 18 U.S.C. § 1512). For much the same reason, the Supreme Court sharply curtailed so-called honest-services fraud in Skilling v. United States, 561 U.S. 358, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010). Further, in Yates v. United States, the government used a provision of the Sarbanes-Oxley Act criminalizing destruction of evidence to prosecute a poaching fisherman who threw fish overboard; the plurality invoked the rule of lenity to reverse on the ground that, under the statute, a fish was not a “tangible object.” — U.S. —, 135 S.Ct. 1074, 1088, 191 L.Ed.2d 64 (2015) (interpreting 18 U.S.C. § 1519). And in Johnson v. United States, the Court held that the “residual clause” of the Armed Career Criminal Act was so vague that it failed to provide the constitutionally required fair notice of what conduct it actually punished. — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) (interpreting 18 U.S.C. § 924(e)). Most recently, in McDonnell v. United States, the Court rejected an expansive view of what qualifies as an “official act” in public corruption cases. — U.S. —, 136 S.Ct. 2355, 195 L.Ed.2d 639 (2016).

Ill

The panel opinion in Marinello affords the sort of capacious, unbounded, and oppressive opportunity for prosecutorial abuse that the Supreme Court has repeatedly curtailed.

The actus reus for this crime is the failure to keep sufficient books and records. The panel opinion likely took comfort in the mens rea requirement that the act or acts be done “corruptly.” Any such comfort is surely an illusion, for two reasons. First, the risk of wrongful conviction, even with a mens rea requirement, is real: the line between aggressive tax avoidance and “corrupt” obstruction can be hard to discern, especially when no IRS investigation is active. Second, alleging a corrupt motive is no burden at all. Prosecutorial power is not just the power to convict those we are sure have guilty minds; it is also the power to destroy people. How easy it is under the panel’s opinion for an overzealous or partisan prosecutor to investigate, to threaten, to force into pleading, or perhaps (with luck) to convict anybody.

The saving requirement that the Sixth Circuit added is that there must have been a pending IRS action of which the defendant was aware. That measure goes a good way toward setting some bounds. It construes the statute as a specialized tool for active IRS investigations, rather than a prosecutor’s hammer that can be brought down upon any citizen.

And what is lost in confining this statute to interference with ongoing proceedings? Failure to pay taxes is already a crime, as is tax evasion. See 26 U.S.C. § 7201-7207; 18 U.S.C. § 371. Marinello himself, who is certainly culpable for his tax evasion, was in fact convicted of eight such felonies aside from the single count of violating the omnibus clause. Indiscriminate application of this omnibus clause serves only to snag citizens who cannot be caught in the fine-drawn net of specified offenses, or to pile on offenses when a real tax cheat is convicted.

The panel opinion does not consider the risk of prosecutorial abuse at all, and dismisses overbreadth and vagueness in a single paragraph — and that paragraph merely cites other decisions. 839 F.3d at 221-22. Instead, the panel opinion spends pages positing differences between the phrases “due administration of justice” and “due administration of this title,” and looking to statutory context and legislative history in an attempt to distinguish the Supreme Court’s interpretation of a nearly identical statute in Aguilar.

The attempt fails. Aguilar looked to the conduct specified in the rest of the statute in construing the omnibus clause of 18 U.S.C. § 1503(a), and the panel opinion seeks to distinguish the omnibus clause here (§ 7212(a)) on that basis. But reading § 7212(a) in context subverts rather than supports the panel’s broad interpretation: a contextual reading demonstrates that § 7212(a) is about impediments to the work of particular officers and employees of the IRS, rather than to the work of the IRS in the abstract or in whole. The relevant text of § 7212(a) is as follows, with the omnibus clause italicized:

Whoever corruptly or by force or threats of force (including any threatening letter or communication) endeavors to intimidate or impede any officer or employee of the United States acting in an official capacity under this title, or in any other way corruptly or by force or threats of force (including any threatening letter or communication) obstructs or impedes, or endeavors to obstruct or impede, the due administration of this title, shall, upon conviction thereof ... The term “threats of force”, as used in this subsection, means threats of bodily harm to the officer or employee of the United States or to a member of his family.

The Supreme Court construed the Aguilar clause to require a grand jury or judicial proceeding because earlier parts of the Aguilar statute implicitly require a grand jury or judicial proceeding. By the same token, the text that precedes the omnibus clause here, and is part of the same sentence and subsection, presupposes an identifiable officer or employee. That is because it prohibits corruptly or threateningly attempting “to intimidate or impede any officer or employee of the United States acting in an official capacity.” Statutory cross-references to § 7212(a) in the Internal Revenue Code (which were passed as part of the same legislative act as § 7212(a) itself) also presuppose a particular officer or employee who has been impeded. Section 6531(6) describes it as “relating to intimidation of officers and employees of the United States,” and section 7601(b) describes it as forbidding “forcible obstruction or hindrance of Treasury officers or employees in the performance of their duties.” 26 U.S.C. § 6531(6); 26 U.S.C. § 7601(b).

The same subsection defines “threats of force” in terms that bear upon individual agents, and thereby compels the inference of an ongoing matter: “The term ‘threats of force’, as used in this subsection, means threats of bodily harm to the officer or employee of the United States or to a member of his family.” 26 U.S.C. § 7212(a). Both the initial clause of § 7212(a) and the omnibus clause ban threats of force; so the omnibus clause also supposes an identifiable IRS officer or employee. Similarly, the one statutory example of obstruction — in each clause of § 7212(a) — is sending a “threatening letter or communication.” Inasmuch as there are nearly 80,000 IRS officers or employees, it is scarcely possible a letter (however threatening) that is sent without a named addressee would in any way “impede” the work of this army.

The same point can be made about the destruction of documents. Unless an investigation is ongoing, it is impossible to point to a particular IRS employee among those 80,000 whose work has been impeded. And only when an IRS investigation is ongoing can one posit, as the statute itself does, a particular officer who has been impeded (such as by a taxpayer writing a threatening letter or destroying personal documents) — and that officer is the investigator on the case. Reading § 7212(a)’s omnibus clause in light of the section that precedes it thus leads us back to the requirement of an active investigation.

As to legislative history, the panel relies on its absence to distinguish this case from Aguilar. 839 F.3d at 221. That is a thin reed; in any event, there is relevant legislative history for § 7212(a), and it confirms my view.

Finally, unlike the panel, I decline to defer to the Department of Justice’s views to determine the scope of a criminal statute. Id. at 223.

Even if the majority is correct — even if any limit to the omnibus clause is insupportable — then we should have gone in banc to determine whether such a limitless statute is constitutional. At some point, prosecutors must encounter boundaries to discretion, so that no American prosecutor can say, “Show me the man and I’ll find you the crime.”

      . See Internal Revenue Code of 1954, Pub.L. 83-591.

      . The legislative history, discussed in footnote 3, also backs up the view that § 7212(a) is aimed at obstruction of particular IRS officers or employees.

      . The prior version of § 7212(a) only prohibited forcible obstruction of IRS officers. Int. Rev. Code of 1939, ch. 34, § 3601(c)(1). When Congress re-wrote the tax code and re-drafted § 7212(a) in 1954, the Senate and House Reports only briefly explained the purpose of § 7212(a) (their explanation for the addition to the statute is in italics):
      Subsection (a) of this section, relating to the intimidation or impeding of any officer or employee of the United States acting in an official capacity under this title, or by force or threat of force attempting to obstruct or impede the due administration of this title is new in part. This section provides for the punishment of threats or threatening acts against agents of the Internal Revenue Service, or any other officer or employee of the United States, or members of the families of such persons, on account of the performance by such agents or officers or employees of their official duties. This section will also punish the corrupt solicitation of an internal revenue employee.

      H.R.Rep. No. 1337, 83rd Cong., 2d Sess. (1954); S.Rep. No-1622, 83rd Cong., 2d Sess. (1954) (emphasis added). If Congress intended to dramatically expand the scope of the law in the way the panel conceives, the legislative history gives no hint of it.