author: DIANA GRIBBON MOTZ, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Joeann WHARTON, Defendant-Appellant.
    No. 15-4103
    United States Court of Appeals, Fourth Circuit.
    Argued: September 20, 2016
    Decided: October 21, 2016

      ARGUED: Julie L.B. Stelzig, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant. Paul Nitze, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellant. Rod J. Rosenstem, United States Attorney, Judson T. Mihok, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Ap-pellee.
    Before WILKINSON, MOTZ, and HARRIS, Circuit Judges.
   Affirmed by published opinion. Judge MOTZ wrote the opinion, in which Judge WILKINSON and Judge HARRIS joined.

DIANA GRIBBON MOTZ, Circuit Judge:

Joeann Wharton appeals her convictions of conspiracy, making a false statement, theft, and embezzlement, all in connection . with • her unlawful receipt of government benefits. She principally contends that the district court should have suppressed evidence found at her house. Wharton maintains, that, in the affidavit supporting the search warrant for the house, the affiant recklessly omitted material, exculpatory facts. Because the inclusion of the omitted information would not have defeated probable cause for the search, that information was not material. Accordingly, we affirm the judgment of the district court.

I.

After their mother’s death in 2002, Wharton’s two granddaughters, Chaqueira Wbarton and Essence Wharton, moved in with her. Wharton applied for, and received, Social Security survivors’ benefits on their behalf, obligating her to spend those funds for their care. In July 2012, the Government learned that the girls were not receiving the benefits, and since 2009 had not even lived with Wharton in her house on Utrecht Roád in Baltimore, Maryland. The Government then launched an investigation of Wharton’s use of the survivors’ benefits. Special Agent Mark Gray of the Social Security Administration’s Office of the Inspector General headed that investigation.

As part of his investigation, Agent Gray reviewed state and federal records and interviewed Wharton’s two granddaughters, Chaqueira Wharton and Essence Wharton, Wharton’s children LaSean Wharton and Tasha Muriel, Wharton’s husband John Wharton, and Wharton herself. Agent Gray’s investigation uncovered other evidence of Wharton engaging in potentially fraudulent activity involving government benefits. On January 31, 2013, a federal grand jury indicted Wharton on two counts of theft of government property in violation of 18 U.S.C, § 641 and 42 U.S.C. § 1383a(a)(3).

Five months later, on June 27, 2013, the grand jury issued a sealed superseding indictment, which was unsealed on July 10, 2013. The superseding indictment charged both Joeann Wharton and her husband, John Wharton, with multiple counts involving conspiracy to embezzle, embezzlement, and making false statements to obtain government benefits. On July 1, 2013, while the superseding indictment remained sealed, Agent Gray sought a search warrant of the Utrecht Road house to obtain evidence about John Wharton. In the affidavit Agent Gray offered in support of the search warrant, he set forth substantial evidence of criminal activity by John Wharton and asserted that John Wharton and Joeann Wharton lived together at the Utrecht Road house. Upon consideration of the affidavit, a magistrate judge issued the search warrant. Agent Gray and another agent executed it the following day, uncovering a number of documents relevant to the charges against both John Wharton and Joeann Wharton.

Prior to trial, Joeann Wharton moved to suppress all the evidence obtained in that search. She argued that Agent Gray had recklessly omitted material exculpatory evidence from the affidavit, namely that John Wharton lived only in the basement of the house. The district court held a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), to consider the question. After a two-day evidentiary hearing, and an additional day of oral argument, the district court largely denied the suppression motion.

A lengthy trial followed at which the district court admitted evidence obtained in the search of the common areas of the house. The jury convicted Joeann Wharton of Social Security fraud in violation of 42 U.S.C. § 1383a(a)(3),. and convicted both Joeann Wharton and John "Wharton of conspiracy to embezzle money from the United States in violation of 18 U.S.C. § 371, two counts of making false statements to the SSA in violation of 42 U.S.C. § 1383a(a)(2), and two counts of embezzlement from the United States in violation of 18 U.S.C. § 641.

II.

The critical information ' that Joeann Wharton maintains Agent Gray recklessly omitted from his affidavit were facts demonstrating that she and her husband “occupied different parts of the house.” Brief of Appellant at 23. She contends that the omission of these facts rendered Agent Gray’s affidavit materially false in violation of the Fourth Amendment. See Maryland v. Garrison, 480 U.S. 79, 85, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987) (“Plainly, if the officers had known ... that there were two separate dwelling units on the third floor of 2036 Park Avenue, they would have been obligated to exclude ’ respondent’s apartment from the scope of the requested warrant,”).

The Utrecht Road house occupies three levels: a basement; a main first floor; and an upstairs second floor. The second floor contains two bedrooms and a bathroom. The .first floor consists of a kitchen, a living/dining area, and the front door to the house. The basement consists of a bedroom, a separate entrance, a half-bath, a refrigerator, and a microwave. An interi- or door connects the first floor to the basement.

For the most part, Agent Gray’s ten-page, twenty-two paragraph affidavit seeking a warrant to search the Utrecht Road house for evidence of John Wharton’s criminal activity outlines the nature of that activity. Agent Gray also made the following representations as to the living arrangement within the house: 1) he and another agent interviewed John Wharton and Joeann Wharton together at the Utrecht Road house; 2) at this interview, “the Whartons stated that they had been married continuously for 43 years, and that they lived together” in the house; 3) the Baltimore Gas & Electric Company provides power to the entire house through an account in John Wharton’s name; 4) the Dish Network provides television service to the entire house through an account listing both John' Wharton and Joeann Wharton as authorized users; and 5) Agent Gray knew “from interviews in June 2013 with Lesean [sic] Wharton and his sister Tasha Muriel that John and Joeann are currently living” in the house. Joeann Wharton did not (and does not) challenge any of these facts. What she contends is that Agent Gray recklessly omitted from his affidavit other material information indicating that she and John occupied distinct areas of the house.

After considering the evidence the parties produced' at the Franks hearing, the district court found that LaSean Wharton had told Agent Gray that his parents slept in separate bedrooms but shared a kitchen and common areas. The court found that Tasha Muriel had told Agent Gray that both of her parents lived in the Utrecht Road house, but John Wharton lived in the basement while Joeann Wharton occupied the upstairs floors. According to Muriel, although John Wharton would occasionally visit the kitchen and dining areas, he did so by invitation only, mostly at family gatherings. The district court further found that Wharton’s granddaughters had told Agent Gray that they needed to knock on an interior door to the basement, which typically remained locked, on the rare occasions they went to their' grandfather’s part of the house. Finally, the court found that some of Agent Gray’s notes and the documents he obtained during his investigation indicated that Joeann Wharton lived separately from John Wharton in the house. The district court concluded that although Agent Gray recklessly omitted this information from his affidavit, because it was not material, its omission did not violate the Fourth Amendment.

III.

With these facts in mind, we turn to the legal question before us—whether the district court erred in finding that the omissions in the affidavit were not material, and so denying Wharton’s suppression motion. When considering a district court’s ruling on a suppression motion, “we review factual findings for clear error and legal determinations de novo.” United States v. Lewis, 606 F.3d 193, 197 (4th Cir. 2010). We “construe the evidence in the light most favorable to the prevailing party,” here the Government, “and give due weight to inferences drawn from those facts by resident judges and law enforcement officers.” Id. (internal quotation marks omitted).

The Fourth Amendment mandates that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const, amend. TV. The district court properly recognized that Franks governs Wharton’s challenge. Defendants may bring Franks challenges both when an affidavit contains a false statement and when the affiant has omitted material facts from the affidavit. United States v. Lull, 824 F.3d 109, 114 (4th Cir. 2016). To establish a Franks violation, a defendant must prove that the affiant either intentionally or recklessly made a materially false statement or that the affi-ant intentionally or recklessly omitted material information from the affidavit. Id. Thus, Franks requires proof of both intentionality and materiality. Id. We need only discuss the materiality requirement here.

An omission is material if it is “necessary to the [neutral and disinterested magistrate’s] finding of probable cause.” Franks, 438 U.S. at 156, 98 S.Ct. 2674. Even if relevant, information is not material unless “its inclusion in •the affidavit would defeat probable cause.” See United States v. Colkley, 899 F.2d 297, 301 (4th Cir. 1990).

In assessing materiality, we “insert the facts recklessly [or intentionally] omitted, and then determine whether or not the corrected warrant affidavit would establish probable'cause. If the corrected warrant affidavit establishes probable cause,” there is no Franks violation. Miller v. Prince George’s Cty., 475 F.3d 621, 628 (4th Cir. 2007) (internal quotation marks and citations omitted). Therefore, for Wharton to succeed on her Franks challenge, she must demonstrate that the totality of both the facts Agent Gray provided in his affidavit and the facts that he omitted do not signal “a fair probability that ... evidence of [John Wharton’s] crime w[ould] be found” in the common areas. See Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (defining the probable cause standard).

In Lull, we recently considered another Franks omission challenge. We held that a law enforcement officer’s reckless omission of facts from his affidavit, which undermined the reliability of a confidential informant, were material and required reversal of Lull’s conviction. 824 F.3d at 118-20. There, a police officer had executed a search warrant of Lull’s house and, in doing so, found drugs and weapons the Government later used against him. Id. at 113. In his application for a search warrant, the officer swore that an undercover informant had advised him that “Lull was selling quantities of Cocaine, Marijuana and other illegal drugs from his home address,” and that this informant “had recently bought illegal drugs from ... Lull.” Id. The officer did not disclose, however, that immediately after completing a controlled buy with Lull, the informant tried to steal some of the money police had given him to make the buy. Id. at 112-13. We. held that this omission fundamentally undermined the informant’s reliability, thereby invalidating the search warrant. Id. at 111.

In assessing the materiality of that omission, we noted that the informant supplied much of the factual basis for the affidavit. Id. at 118. Because the confidential informant was inherently unreliable, we excised his (otherwise-undisputed) statements from the affidavit. Id. Without the informant’s statements, nothing in the affidavit “identifie[d] Lull specifically as the seller or otherwise connected] him to the drug transaction.” Id. at 119. Accordingly, we held the omission material. Id. at 120.

Similarly, in United States v. Tate, 524 F.3d 449, 451 (4th Cir. 2008), we held that a defendant should have received a Franks hearing when he offered evidence that an affiant police officer failed to disclose that he had trespassed in searching the defendant’s trash to obtain eyidence of criminal activity. We explained that the omission was material because “[i]f the trash investigation was conducted illegally, the facts derived from it would have to be stricken from the affidavit,” and without those facts, “the affidavit would not have supported a finding of probable cause.” Id. at 457.

In both Lull and Tate, correcting the affidavit to include the omitted information undermined the foundational core of the affidavit. Here, the inclusion of the omitted information does not do that. For in this case, the corrected affidavit still includes unchallenged information establishing probable cause.

Most critical is Agent Gray’s un-controverted account in his affidavit of his joint interview of John Wharton and Joeann Wharton at the Utrecht Road house. During that interview, John and Joeann Wharton stated that they lived together at the house and had stayed continuously married for forty-three years. This account alone easily demonstrates the requisite fair probability that a search of the common areas of the house would reveal evidence of John Wharton’s crimes.

Moreover, two other pieces of evidence Agent Gray provided in his affidavit—bills for shared cable and electric services— buttress that conclusion. A magistrate judge could conclude from John Wharton’s monetary contributions to the television and power services for the entire house that he utilized those seryices. Indeed, John Wharton’s involvement with those accounts, particularly given the fact that the BGE account was in his name only, indicates continued interaction between John Wharton and Joeann Wharton, at least to the degree necessary to manage the utility accounts. These inferences further support the view that John Wharton had access to the common areas of the house.

To be sure, the omitted information Agent Gray learned from his interviews with the Wharton children and grandchildren, and documents, some of which suggested two distinct units within the Utrecht Road house, is relevant to the question of the Whartons’ living arrangements. But, even considering those facts, the corrected affidavit still establishes probable cause to search all the common areas of the house.

Significantly, nothing in the omitted information demonstrated, or even suggested, that John Wharton jacked access to the common areas of the house. For example, LaSean Wharton had told Agent Gray that his parents maintained separate bedrooms; but LaSean never said that John Wharton remained exclusively downstairs or did not enter the common areas. Agent Gray’s notes lend themselves to a similar inference; to the extent they imply a division of the house into two distinct units, this demonstrates only that John Wharton did not have access to Joeann Wharton’s bedroom. And while the statements of Tasha Muriel, Chaqueira Wharton, and Essence Wharton all provide evidence. of John Wharton’s lack-of access to Joeann Wharton’s bedroom (at least to the best of their knowledge), nothing in those statements showed that John Wharton did not have access to the common areas of .the house.

Additionally, unlike the officers in Lull and Tate, nothing Agent Gray omitted casts doubts on the inherent validity (whether through unreliability, illegality, etc.) of any information in the original affidavit. Certainly the omitted information provides more detail to the picture Agent Gray’s affidavit painted. However, those omitted facts simply join the facts Agent Gray proffered to form the totality of the circumstances a magistrate judge would consider in assessing probable cause for the corrected affidavit. And given the merely relevant nature of those additional facts, their omission does not constitute a Franks violation.

The only contemporaneous evidence in the corrected affidavit specific to John Wharton’s access to the common areas of the house indicates that he did have access to those areas. And nothing Agent Gray omitted from his affidavit discredited that conclusion. We are satisfied that, even corrected, the affidavit provided the magistrate judge with “a substantial basis for .,. concluding that probable cause existed” that John Wharton would utilize public areas and leave in them evidence of his own criminal activity. Gates, 462 U.S. at 288-39, 103 S.Ct. 2317 (alterations in original). Accordingly, the district court properly held that the omissions were not material and so did not defeat probable cause.

IV. ■

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

AFFIRMED.

      . Wharton also contends that the superseding indictment did not provide her with adequate notice of the crimes charged and that the differences between the superseding indictment and the Government’s proof at trial constituted a prejudicial variance requiring reversal. As the district court held, neither argument is persuasive. The superseding indictment, like that we held sufficient in United States v. Perry, 757 F.3d 166, 172 (4th Cir. 2014), tracked the statutory language and set forth specific details about the nature of the charges; for instance, the superseding indictment informed Wharton of the kind and source of the funds she assertedly embezzled and the time during which the alleged offenses took place. As for the divergence between the superseding indictment and the evidence at trial, the Government proved a narrower set of facts at trial than it alleged in the superseding indictment, but the superseding indictment alleged everything the Government proved at trial. There was no reversible error. See United States v. Allmendinger, 706 F.3d 330, 339 (4th Cir. 2013).

      . The district court granted the motion with respect to Joeann Wharton's second floor bedroom and ordered that the documents found there would not be admitted into evidence at her trial. Although in its appellate brief, the Government contends that the district court erred in suppressing these documents, the Government acknowledges that in the district court it "did not challenge” that decision, and simply asks us to affirm the judgment of the district court. Brief of Appellee at 17, 26-31, and 55. Thus, the Government has waived any challenge to the order concerning Joeann Wharton’s bedroom, and we do not discuss it further. We consider the adequacy of Agent Gray’s affidavit only with respect to the remainder of the house and henceforth characterize that portion of the house as "the common areas.”

      . In so holding, the court relied on the joint cable and utility bills, the fact that Agent Gray interviewed John Wharton and Joeann Wharton together in the Utrecht Road house, and their representations as to a long-standing marriage during that interview. The court also relied on two facts Agent Gray did not include in his affidavit but that Wharton’s evidence at the Franks hearing established: (1) Tasha Muriel told Agent Gray that John Wharton would occasionally cook in the kitchen and had access to the dining room; and (2) LaSean Wharton told Agent Gray that John Wharton and Joeann Wharton shared a kitchen and common areas, On appeal, the parties strongly dispute whether the district court properly considered these two pieces of additional evidence in assessing the materiality of Agent Gray's omissions. We have held that "[i]n evaluating whether probable cause would have existed if the omitted statements had been included,” a court must “only consider the information actually presented to the magistrate during the warrant application” by the Government. United States v. Lull, 824 F.3d 109, 119 n.3 (4th Cir. 2016) (internal quotation marks omitted). While Lull precludes a court from relying on extrinsic evidence the Government offers to bolster an affidavit facing a Franks challenge, it does not speak to whether a court can consider extrinsic evidence offered by a defendant. Given our holding, we need not resolve that question in this case.

      . Franks, and many of the cases applying it, involve defendants claiming that the district court improperly denied them an evidentiary hearing to test the integrity of the affidavit supporting a search warrant. Of course, because the district court granted Wharton a Franks hearing, and there is no challenge to that decision, we do not address that preliminary question here.


source: Caselaw Access Project

author: WILKINSON, Circuit Judge:

license: Public Domain

text:
    Ronald Donald DINGLE, Petitioner-Appellant, v. Warden Robert M. STEVENSON, Respondent-Appellee.
    No. 15-6832
    United States Court of Appeals, Fourth Circuit.
    Argued: September 20, 2016
    Decided: October 25, 2016

      ARGUED: Stephen J. van Stempvoort, MILLER JOHNSON, Grand Rapids, Michigan, for Appellant. Alphonso Simon, Jr., OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Appellee. ON BRIEF: Alan Wilson, Attorney General, John W. McIntosh, Chief Deputy Attorney General, Donald J. Zelenka, Assistant Deputy Attorney General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Appellee.
    Before WILKINSON, MOTZ, and HARRIS, Circuit Judges.
   Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge MOTZ and Judge HARRIS joined.

WILKINSON, Circuit Judge:

More than twenty years ago, Ronald Donald Dingle was indicted for murder and a host of other crimes committed while he was a minor. The state of South Carolina intended to seek the death penalty against him, and Dingle pled guilty in exchange for a life sentence with the opportunity for parole.

Dingle now seeks to challenge the validity of his guilty plea and appeals the district court’s denial of relief on his 28 U.S.C. § 2254 petition. We granted a certificate of appealability on the limited issue of whether Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), which invalidated the death penalty for juvenile offenders, may be applied retroactively to invalidate Dingle’s guilty plea. We hold that Roper does not provide an avenue for relief and affirm the district court’s dismissal of his federal habeas petition.

I.

While the procedural posture of this case is something of a tangle, the facts relevant to the issue on which we granted the certificate are relatively straightforward.

On March 15, 1993, Dingle, a seventeen-year-old juvenile at the time of the offense, was charged by the state of South Carolina with murder, assault and battery with intent to kill, first-degree burglary, kidnapping, pointing a firearm, two counts of possession of a weapon during a violent crime, and two counts of possession of a sawed-off shotgun. The state filed a notice of intent to seek the death penalty, and on April 17, 1995, Dingle pled guilty to all the charges in exchange for life imprisonment with the possibility of parole. Although the trial judge sentenced Dingle to consecutive terms of imprisonment following the initial life sentence for murder, all parties agreed that Dingle should be eligible for parole after thirty years.

As it turned out, however, the consecutive nature of Dingle’s sentences precluded any possibility of parole. Dingle filed an application for post-conviction relief (“PCR”), asserting that the prospect of parole eligibility was an integral element of the plea bargain. On December 5, 1997, the PCR court vacated the sentences and remanded “for sentencing consistent with the intent of the plea agreement or for a new trial.” J.A. 338.

After sevex-al years went by without a hearing, Dingle filed a motion for speedy trial in the Sumter County Court of General Sessions. In the meantime, the Supreme Court decided Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), which held that imposing capital punishment on juvenile offenders was a violation of the Eighth Amendment. At the hearing on July 28, 2005, Dingle argued that he should be allowed to withdraw his guilty plea because, in light of Roper, he no longer received the benefit of a bargain premised on avoiding the death penalty.

The Court of General Sessions rejected Dingle’s request for a new trial. Rather, the court determined that the plea should be evaluated based on the law as it existed in 1995—the court could give him the benefit of his bargain by restructuring the sentence such that he would be eligible for parole after thirty years. Dingle appealed and the South Carolina Supreme Court rejected the claim that Roper deprived him of the benefit of his plea deal. State v. Dingle, 376 S.C. 643, 659 S.E.2d 101, 106 (2008).

On January 8, 2009, Dingle filed a second application for PCR. This time, he argued that Roper applied retroactively to his case and that his guilty plea was involuntary because it was made for the sole purpose of avoiding cruel and unusual punishment. The PCR court found that the essence of Dingle’s Roper claim was already raised and ruled upon by the South Carolina Supreme Court. Accordingly, it was barred by res judicata. Dingle unsuccessfully appealed the PCR court’s order, and filed a third application for PCR that was later dismissed.

Dingle also filed a petition under 28 U.S.C. § 2254 for a writ of habeas corpus in the United States District Court for the District of South Carolina. In his petition, Dingle raised four claims of error. On November 10, 2009, the district court dismissed the claims without prejudice.

On September 13, 2013, Dingle filed the instant § 2254 petition. He contested his conviction on six grounds, including various assertions of ineffective assistance of counsel and prosecutorial misconduct. The magistrate judge recommended denying the petition in its entirety, rejecting some of the claims on the merits and finding that others were procedurally defaulted. The district court adopted the magistrate judge’s report and recommendation and denied relief on Dingle’s § 2254 petition. This court granted a certificate of appeala-bility on a single issue: “whether Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), may be applied retroactively to invalidate Dingle’s guilty plea where, pre-Roper, he allegedly pled guilty to avoid the death penalty.” We denied a certificate as to all other claims.

II.

Dingle’s primary contention is that his guilty plea should be abrogated in light of Roper’s holding that the death penalty may not be imposed on juvenile offenders. He asserts, first, that Roper articulated a substantive rule that applies retroactively to his case, see Montgomery v. Louisiana, — U.S. -, 136 S.Ct. 718, 734, 193 L.Ed.2d 599 (2016) (“Miller is no less substantive than are Roper and Graham.”), and, second, that if the state cannot seek the death penalty against him now, it was improper for the state to do so in 1995. Accordingly, because the plea agreement was motivated by a desire to avoid cruel and unusual punishment, Dingle argues that his plea was involuntary and invalid.

In resolving this question, we reiterate that this appeal does not raise such issues as ineffective assistance of counsel or pros-ecutorial misconduct in the plea negotiations. The court was careful to limit the certificate of appealability to the Roper claim and to deny a certificate to all remaining claims, many of which are better suited for and have been addressed in other proceedings. The case that comes before us is a pure question of law: whether Roper, of its own force as a substantive rule, applies retroactively to undo a guilty plea.

There are several difficulties with this argument, which we address in turn.

A.

The Supreme Court in Roper announced a distinct constitutional rule prohibiting the imposition of the death penalty on juvenile offenders. Roper, 543 U.S. at 568, 125 S.Ct. 1183, In so doing, however, the Court was careful to limit the scope of this constitutional bar to the “most severe punishment” of a capital sentence, where the Eighth Amendment applies with “special force.” Id. The Court therefore made clear that its holding should be construed to apply only to the sentence actually at issue in that case, which was capital punishment.

Dingle nonetheless argues that Roper is a substantive rule and should apply retroactively to invalidate his guilty plea. This contention, however, compares apples and oranges. We readily grant that Roper announced a substantive rule, but that does not decide the outcome of the case at hand. The inescapable fact is that Dingle did not receive the death penalty. Nor did he receive a life sentence without parole. See Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). Rather, Dingle received a'life sentence with the possibility of parole after thirty years. In essence, Dingle seeks to extrapolate from the distinct constitutional right recognized in Roper to a much broader substantive rule that extends to plea agreements negotiated in the shadow of the death penalty.

The district court correctly found that Roper did not apply to situations where a defendant pled guilty to a non-capital sentence to avoid the possibility of a capital sentence. Dingle v. Stevenson, 772 F.Supp.2d 734, 740 (D.S.C. 2009). The death penalty here operated only as part of the calculus in the plea negotiations, and acknowledging that Roper might have altered the calculus is a far cry from finding that its substantive rule applies. It hap pens in the ordinary give and take of a plea bargain that a substantive rule may indirectly bear, on the outcome of the negotiation. Yet the Supreme Court has not suggested that a substantive rule would stretch beyond the proscribed sentence to reopen guilty pleas with a different sentence. See Montgomery v. Louisiana, — U.S. -, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016). Rather, when a defendant pleads guilty based on the strength of the state’s case and an assessment of the range of penalties to which he might otherwise be exposed, we have been especially reluctant to rescind the bargain. See United States v. Fugit, 703 F.3d 248, 253 (4th Cir. 2012) (citing United States v. Dominguez Benitez, 542 U.S. 74, 82-83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)). Pleading guilty typically. entails a deliberate choice to accept the risks and rewards of a deal, and that decision may not be casually set aside on the basis of buyer’s remorse.

B.

This precise principle was put in play in Brady v. United States, 397 U.S. 742, 90 S.Ct, 1463, 25 L.Ed.2d 747 (1970), There, as here, a criminal defendant was death eligible and entered into a plea agreement to avoid capital punishment. Subsequent legal developments would have made the defendant ineligible for the death penalty, and the defendant urged on that basis that he be permitted to withdraw his plea. Id. at 756, 90 S.Ct. 1463 (citing United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968)). The Court rejected that contention, and its language is worth quoting because it is highly pertinent here:

Often the decision to plead guilty is heavily influenced by the defendant’s appraisal of the prosecution’s case against him and by the apparent likelihood of securing leniency should a guilty plea be offered and accepted. Considerations like these frequently present imponderable questions for which there áre no certain answers; judgments may be made that in the light of later events seem improvident, although they were perfectly sensible at the time.

Id. at 756-57, 90 S.Ct. 1463.

And again:

The rule that a. plea must be intelligently made to be valid does not require that a plea be vulnerable, to later attack if the defendant did not correctly assess every relevant factor entering into his decision. ... More particularly, absent misrepresentation or other impermissible conduct by state agents, a voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise.

Id. at 757, 90 S.Ct. 1463 (citation omitted).

And again:

The fact that Brady did not anticipate United States v. Jackson does not impugn the truth or reliability of his plea. We .find no requirement in the Constitution that a defendant must be permitted to disown his solemn admissions in open court that he committed the act with which he is charged simply because it later develops that the State would have had a weaker case than the defendant had thought or that the maximum penalty then assumed applicable has been held inapplicable in subsequent judicial decisions.

Id. (citation omitted).

Brady is remarkable not only for the fact that the Court emphatically repeated its holding, but that it managed to drive the point home in so many different ways. Dingle tries to assert that the coercion involved in his plea negotiation was uniquely debilitating because he “knuckl[ed] under threat” of what we now understand to be cruel and unusual punishment. App. Br. at 24. But the logic in Brady applies generally, regardless of the reason that a defendant is no longer death eligible. See Brady, 397 U.S. at 755, 90 S.Ct. 1463 (“[A] plea of guilty is not invalid merely because entered to avoid the possibility of a death penalty.”).

Contracts in general are a bet on the future. Plea bargains are -no different: a classic guilty plea permits a defendant to gain a present benefit in return for the risk that he - may have to forego future favorable legal developments. Dingle received that present benefit—avoiding the death penalty and life without parole— under the law as it existed at the time. Although Roper, in hindsight, altered the calculus underlying Dingle’s decision to accept a plea agreement, it does not undermine the voluntariness of his plea. Some element of pressure exists in every deal, as the tradeoff between present certainty and future uncertainty is emblematic of the process of plea bargaining. Brady makes all that exceptionally clear and in following its teachings we find no infirmity in the plea that Dingle entered.

III.

The judgment of the district court is accordingly

AFFIRMED.

       The state argues that AEDPA’s deferential standard of review governs this action. AED-PA, however, applies only to claims that have been “adjudicated on the merits in State court proceedings," 28 U.S.C. § 2254(d) (20.12), and there is some dispute as to whether South Carolina courts actually decided Dingle’s Roper claim on the merits. Because we would affirm the district judge in all events, we will apply de novo review to this case.


author: AGEE, Circuit Judge:

text:
    Zhikeng TANG, a/k/a Zhikeng Tansg, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
    No. 15-1879
    United States Court of Appeals, Fourth Circuit,
    Argued: September 20, 2016
    Decided: October 26, 2016

      ARGUED: Gary Jay Yerman, Yerman & Jia, LLC, New York, New York, for Petitioner. Sarah Elizabeth Crockett, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF: Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, Leslie McKay, Assistant Director, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.
    Before GREGORY, Chief Judge, and KING and AGEE, Circuit Judges.
   Petition denied by published opinion. Judge AGEE wrote the opinion, in which Chief Judge GREGORY and Judge KING joined.

AGEE, Circuit Judge:

Petitioner Zhikeng Tang, a native and citizen of China, seeks review of the decision of the Board of Immigration Appeals (the “Board”) denying his requests for asylum, withholding of removal, and protection under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 (“CAT”). Because substantial evidence supports the Board’s decision, we deny Tang’s petition for review.

L.

Tang entered the United States in July 2009 without admission or inspection. His wife and child remained behind in Fuzhou City, China, located within the Fujian Province. In August 2011, a coworker introduced Tang to Catholicism, and he began to attend a local church. He filed for asylum later that year, and the government initiated removal proceedings.

During a hearing before an immigration judge (“IJ”), Tang conceded removability, but sought asylum, withholding of removal, and CAT protection based on his new-found religion. Tang testified that his faith was genuine and that he shared his religious teachings with his family and friends. He submitted letters and other documents evidencing his membership in the Catholic Church. Despite China’s recognition of Catholicism, Tang claimed his faith obliged him to attend an underground Catholic church, rather than a state-approved church. Tang maintained that he would proselytize if he were removed to China, and he feared persecution by the Chinese government for participation in an underground church. In support of his claim that he would be persecuted, Tang proffered letters from his wife and a friend, both in China, which represented that there were some instances of persecution of underground Catholic churches in. that country. Tang also provided the IJ with two State Department reports that he viewed as. critical of. China’s treatment of certain religious groups.

The IJ determined that Tang’s testimony was credible, but' that Tang had not met his burden of showing that he would be persecuted in China for practicing Catholicism. The IJ suggested that Tang would be able to join the Catholic Church sanctioned by the Chinese government and noted that Tang had not explained how this church was not authentic. Despite Tang’s testimony and the other evidence submitted in the case, the IJ did not “find enough ■ evidence to establish that [Tang] faces an objectively reasonable risk of persecution on account of his Roman Catholicism.” J.A. 49. Because Tang could not meet the standard for asylum eligibility, the IJ concluded .that he also failed to satisfy the higher standard for withholding of removal. Finally, with respect to CAT protection, the IJ determined that Tang had “not shown even an objectively reasonable chance that he will, face torture in China, much less the requisite ‘more likely than not’ chance of torture.” J.A. 50. The IJ ordered Tang’s removal to China.

On administrative appeal, the Board agreed with the IJ that Tang “did not meet his burden to establish his eligibility for asylum or withholding of removal under the Act based on his conversion to Roman Catholicism while in the United States.” J.A. 8. The Board found that Tang had not shown that the .Chinese government was aware or would become aware of his Catholic faith, nor had he “established that there is a pattern or practice of persecution in China of persons similarly situated to him.” J.A. 3. The Board also noted that Tang did not challenge the IJ’s CAT ruling and, thus, that claim was waived.

II.

When the Board adopts and supplements an IJ decision, as it did here, we review both rulings. See Hernandez-Nolasco v. Lynch, 807 F.3d 95, 97 (4th Cir. 2015). Our review is “narrow and deferential,” Djadjou v. Holder, 662 F.3d 265, 273 (4th Cir. 2011), and we will uphold the Board’s removal decision unless it is “manifestly contrary to law.” 8 U.S.C. § 1252(b)(4)(C) (2012). The alien has the burden of .proving that he or she is entitled to asylum, withholding of removal, or protection under CAT. See 8 U.S.C. § 1158(b)(1)(B) (2012) (asylum); id. § 1231(b)(3)(C) (withholding of removal); 8 C.F.R. § 1208.16(c)(2) (CAT).

We review the Board’s factual rulings under, the substantial evidence standard, which dictates that “findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B) (2012). In other words, “[w]e uphold factual findings unless no rational factfinder could agree with the [Board’s] position.” Temu v. Holder, 740 F.3d 887, 891 (4th Cir. 2014). The Board’s removal “decisions must remain undisturbed if they are supported by reasonable, substantial, and probative evidence on the record considered as á whole.” Tassi v. Holder, 660 F.3d 710, 719 (4th Cir. 2011). We may not reweigh the evidence, see Lin v. Holder, 736 F.3d 343, 351 (4th Cir. 2013), and, “[e]ven if the record ‘plausibly could support two results: the one the IJ chose and the one [the petitioner] advances, reversal is only appropriate where the court find[s] that the evidence not only supports [the opposite] conclusion, but compels it.’ ” Mulyani v. Holder, 771 F.3d 190, 197 (4th Cir. 2014) (quoting Niang v. Gonzales, 492 F.3d 505, 511 (4th Cir. 2007)). We review the Board’s legal conclusions de novo. See Hernandez-Nolasco, 807 F.3d at 97.

III.

Tang challenges the Board’s denial of asylum, withholding of removal, and CAT protection. We address each in turn.

A.

Tang argues primarily that the Board’s decision to deny his asylum request is erroneous. Specifically, he takes issue with the Board’s determination that he did not meet his burden of showing a well-founded fear of future persecution. Tang contends that this holding is not supported by substantial evidence.

The Immigration and Nationality Act empowers the Attorney General to grant asylum to aliens who qualify as refugees under the statutory definition, at her discretion. See 8 U.S.C. § 1158(b)(1)(A) (2012); Hernandez-Avalos v. Lynch, 784 F.3d 944, 948 (4th Cir. 2015). The alien has the burden of proving that he or she is a refugee, 8 U.S.C. § 1158(b)(1)(B), defined as “any person who is outside any country of such person’s nationality ... and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). “The applicant may qualify as a refugee ... because he or she has a well-founded fear of future persecution.” 8 C.F.R. § 1208.13(b). “Persecution takes the form of ‘threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom.’ ” Singh v. Holder, 699 F.3d 321, 332 (4th Cir. 2012) (quoting Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993)). Actions “less severe than threats to life or freedom” may rise to the level of persecution, but they must be something more than “mere harassment.” Li v. Gonzales, 405 F.3d 171, 177 (4th Cir. 2005) (quoting Pandan v. Ashcroft, 339 F.3d 567, 573 (7th Cir. 2003)) (internal quotation marks omitted).

Based on the applicable statutory provisions, an applicant “must show (1) that he has a subjective fear of persecution based on race, religion, nationality, social group membership, or political opinion, (2) that a reasonable person would have a fear of persecution in that situation, and (3) that his fear has some basis in objective reality.” Rusu v. INS, 296 F.3d 316, 324 (4th Cir. 2002). “The subjective component is satisfied ‘by presenting candid, credible, and sincere testimony demonstrating a genuine fear of persecution,’ ” while “ ‘[t]he objective element requires the asylum [applicant] to show, with specific, concrete facts, that a reasonable person in like circumstances would fear persecution.’ ” Marynenka v. Holder, 592 F.3d 594, 600 (4th Cir. 2010) (quoting Yong Hao Chen v. INS, 195 F.3d 198, 201-02 (4th Cir. 1999)).

Tang has satisfied the subjective component of his claim based upon the IJ’s favorable credibility finding. See, e.g., Ai Hua Chen v. Holder, 742 F.3d 171, 181 (4th Cir. 2014) (“Again, both Li and Chen were found to be credible witnesses. Their task, therefore, was to establish that their genuine subjective fear of persecution based on their religious faith is objectively reasonable .... ”). The only issue, then, is whether he can demonstrate an objective fear of persecution.

An objective fear of persecution exists when “[t]here is a reasonable possibility of suffering such persecution if [the applicant] were to return to that country.” 8 C.F.R. § 1208.13(b)(2)(i)(B). The alien is required “to provide evidence that there is a reasonable possibility he or she would be singled out individually for persecution” unless “[t]he applicant establishes that there is a pattern or practice [of persecution on account of the applicant’s religion] in his or her country of nationality.” Id. § 1208.13(b)(2)(iii); see also Yong Hao Chen, 195 F.3d at 203-04. To establish a pattern or practice of persecution, “[t]he key for the applicant is to show the thorough or systematic nature of the persecution he fears.” Yong Hao Chen, 195 F.3d at 203.

Here, Tang has not argued that he will be singled out for persecution in China, nor. has he asserted that the Chinese government has any awareness of his religious affiliation. In fact, the Board observed that Tang had presented no evidence suggesting the Chinese government was in any way cognizant of him or his religious beliefs. Tang, therefore, has waived any challenge to the Board’s conclusion that he failed to prove he would be singled out for persecution. See Suarez-Valenzuela v. Holder, 714 F.3d 241, 248-49 (4th Cir. 2013) (“Consequently, by neglecting to challenge the BIA’s findings ... in his opening brief, Suarez-Valenzuela waived this argument.”). In any event, the record contains no evidence that would support that argument.

Thus, Tang can satisfy his burden of proof only by showing a pattern or practice of persecution in China against persons similarly situated to him. He fails to do so.

The determination that Tang did not face “an objectively reasonable chance (at least a ten percent chance) of persecution in China” is supported by Tang’s own evidence in the record. Tang, for instance, submitted two State Department documents: a 2012 International Religious Freedom Report (J.A. 197-244) and a 2012 Human Rights Report (J.A. 246-405). These documents confirm that the Chinese government recognizes the Roman Catholic Church, millions of Catholics attend registered Catholic churches, the government “has allowed the Vatican discreet input into selecting some bishops” of the registered Catholic Church, and “an estimated 90 percent of [registered] bishops have reconciled with the Vatican.” J.A. 201. Moreover, if Tang wishes to attend an underground church instead of an officially recognized church, the State Department documents provide that individuals who do not participate in the recognized church are generally permitted to worship at home without registration, and “[i]n parts of the country, local authorities tacitly approved of or did not - interfere with the activities of unregistered groups.” J.A. 204. The Board’s observation that the State Department reports “do not show that there is a pattern or practice of persecution in China of persons similarly, situated to him, ordinary lay practitioners who .attend underground Catholic churches” is substantially supported by the record in this case. J.A. 3.

Tang counters with several isolated examples of mistreatment recited in the State Department documents of those who attend unsanctioned Catholic churches and unregistered churches in general. For example, the documents suggest that some local governments “pressure unregistered Catholic priests and believers to renounce all ordinations approved by the Holy See.” J.A. 201-02. Tang’s arguments are similar to those we rejected in Ai Hua Chen v. Holder, 742 F.3d 171 (4th Cir. 2014).

In Ai, Hua Chen, the petitioners were “practicing Christians” who claimed that, if removed to China, they “would be compelled by [their] beliefs to attend an unsanctioned ‘underground’ or ‘house’ church rather than an ‘official registered church’ that ‘preachfes] about the ... government’s policies.’ ” Id. at 181-82. In support of those assertions, the petitioners recited isolated incidents noted in State Department documents, like those upon which Tang now relies. We observed, “[although these materials certainly reported isolated cases of official harassment, the general picture presented by both reports was simply that official treatment of Christians who attend unregistered house churches varies substantially based on locale and that such Christians in many regions practice their religion without interference.” Id. at 183. Like Tang here, the petitioners failed to “direct[] us to any portion of these reports suggesting widespread persecution of Christians attending house churches in the Fujian Province.” Id. Thus, we concluded that their “evidence [was] not so compelling that we cannot defer to the agency’s factual determinations.” Id. Likewise, Tang’s reliance on random instances of harassment in State Department documents does not demonstrate the widespread persecution he needs to satisfy his burden.

Accordingly, we conclude—as we did in Ai Hua Chen—that the accounts in the State Department reports, which document only isolated instances of harassment and disparate treatment of unregistered Catholic churches in different locations, substantially support the Board’s finding of a lack of widespread persecution. We cannot say that “the applicant’s evidence ‘was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed.’ ” Djadjou, 662 F.3d at 273 (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). Therefore, we cannot disturb the Board’s conclusion that Tang failed to establish a well-founded fear of persecution. See Ai Hua Chen, 742 F.3d at 184.

B.

Next, Tang contends that the Board erred in denying his application for' withholding of removal. Tang asserts that the evidence that supports his claim for asylum likewise allows him to satisfy the withholding of removal requirements.

The withholding of removal eligibility standard requires an applicant to “establish that if she is removed, there is a clear probability that her ‘life or freedom would be threatened ... because of [her] race, religion, nationality, membership in a particular social group, or political opinion.’ ” Marynenka, 592 F.3d at 600 (quoting 8 U.S.C. § 1231(b)(3)(A) (2012)) (emphasis added). “To establish clear probability, the alien must prove ‘it is more likely than not that [his] life or freedom would be threatened in the country of removal.’ ” Lizama v. Holder, 629 F.3d 440, 446 (4th Cir. 2011) (quoting Gomis v. Holder, 571 F.3d 353, 359 (4th Cir. 2009)), This burden of proof is more demanding than that of asylum, and therefore “an applicant who fails to meet the lower standard for showing eligibility for asylum will be unable to satisfy the higher standard for showing withholding of removal.” Mirisawo v. Holder, 599 F.3d 391, 396 (4th Cir. 2010). Because Tang failed to meet his burden of proof for asylum, , we necessarily hold that Tang has not shown that he is entitled to withholding of removal. See Ai Hua Chen, 742 F.3d at 184.

C.

Finally, Tang appeals the Board’s refusal to extend protection under CAT. He argues that the evidence he presented shows that the government torture of unregistered church members is prolific in China.

An alien may qualify for CAT protection if he or she shows that “it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). Although Tang brought a claim under CAT before the IJ, he failed to appeal the IJ’s denial of that claim to the Board. A final order of removal is reviewable only if “the alien has exhausted all administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1) (2012). Because Tang failed to exhaust his administrative remedies on this claim, vve lack jurisdiction to review it. See Cordova v. Holder, 759 F.3d 332, 336 n.2 (4th Cir. 2014).

IV.

For all these reasons, Tang’s petition for review of the Board’s decision is •

DENIED.

      . Although Tang filed his asylum application more than two years after entering the United States, the immigration judge ruled that Tang’s application was timely. An application for asylum must be filed within one year after the alien enters the country, unless the alien shows "either the existence of changed circumstances which materially affect the applicant’s eligibility for asylum or extraordinary circumstances relating to the delay in filing an application within the period specified.” See 8 U.S.C. § 1158(a)(2)(B), (D) (2012). The immigration judge found that Tang's adoption of Catholicism was a changed circumstance and that he filed his application within a reasonable time period following his conversion. The Government did not contest this holding before the Board or on appeal. Thus, the timeliness of Tang’s filing is not before us.

      . Unless otherwise indicated, all citations to the Code of Federal Regulations are to the version in effect at the time the described events took place.

      . An applicant can raise a rebuttable presumption of future persecution by showing that he or she has suffered past persecution. However, Tang did not allege past persecution at any stage of the proceedings and therefore must show a well-founded fear of future persecution to qualify as a refugee for asylum purposes.

      .Tang offered the State Department’s 2014 International Religious Freedom Report, published in late 2015, to this Court in a filing pursuant to Federal Rule of Appellate Procedure 28(j). However, “the court of appeals shall decide the petition only on the administrative record on which the order of removal is based.” 8 U.S.C. § 1252(b)(4)(A) (2012). We decline to consider this evidence as it was not part of the administrative record on which the Board and IJ relied.

      , We ultimately granted the petition for review on grounds of "China's one-child policy,” but we denied the petition "to the extent it [was] grounded on the religious faith of the petitioners." Ai Hua Chen, 742 F.3d at 174.

      . Tang also references the letters of his wife and a friend, but, at best, these letters show only isolated and sporadic instances of actions related to an underground church,


author: DUNCAN, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellant, v. Maria Rosalba ALVARADO McTague; Felix Adriano Chujoy, a/k/a Felix Chujoy Alvarado; Gladys Georgette Chujoy, a/k/a Gladys Johnston, Defendants-Appellees.
    No. 15-4739
    United States Court of Appeals, Fourth Circuit.
    Argued: September 23, 2016
    Decided: October 26, 2016

      , ARGUED: Jean Barrett Hudson, Office of the United States Attorney, Charlottes-ville, Virginia, for Appellant. Aubrey Gene Hart, Jr., A. Gene Hart, Jr., PC, Harrison-burg, Virginia; Aaron Lee Cook, Aaron L. Cook, PC, Harrisonburg, Virginia, for Ap-pellees. ON BRIEF: John P. Fishwick, Jr., United States Attorney, Roanoke, Virginia, Heather Lynn Carlton, Assistant United States Attorney, Office of the United States Attorney, Charlottesville, Virginia, for Appellant. W. Andrew Harding, Convy & Harding, PLC, Harrisonburg, Virginia, for Appellee Gladys Georgette Chujoy.
    Before DUNCAN, AGEE, and HARRIS, Circuit Judges.
   Vacated and remanded by published opinion. Judge DUNCAN wrote the opinion, in which Judge AGEE and Judge HARRIS joined.

DUNCAN, Circuit Judge:

The government brings this interlocutory appeal from an order of the district court excluding grand jury testimony from use at trial without having found prosecu-torial misconduct or bad faith in the underlying grand jury proceeding. For the reasons that follow, we vacate the order and remand for further proceedings not inconsistent with this opinion.

I.

A.

The grand jury investigation at issue here took place in October 2015, but relates back to criminal proceedings that began in 2014. On December 4, 2014, a federal grand jury indicted Maria Rosalba Avarado McTague (“Avarado”) and. Felix Chujoy (“Felix”) on charges of visa fraud and various immigration violations stemming from their operation of a Peruvian restaurant in Virginia. The indictment alleged that Avarado smuggled immigrants into the United States to work in the restaurant. It further alleged that both Avarado and Felix employed these and other undocumented immigrants in horrendous and illegal working conditions, either paying them well below the minimum wage or requiring them to work as indentured servants to repay Avarado for smuggling them into the United States.

Ater their arrest, the district court released Avarado and Felix on bond. As a condition of release, Avarado and Felix could not contact witnesses or alleged victims in the case.

During this time, a grand jury continued to investigate additional charges and suspects. In expectation of a superseding indictment, the parties jointly moved for a continuance. The district court granted the motion and, postponed trial to June 22, 2015.

B.

On March 12, 2015, the grand jury returned a superseding indictment. The superseding indictment (1) charged Alvarado and Felix with additional labor trafficking counts, (2) added Gladys Chujoy—Felix’s sister and Alvarado’s daughter—as a defendant, and (3) charged all three Defendants with obstruction of justice, witness tampering, and conspiracy to witness tamper. The magistrate judge released Gladys Chujoy on bond, but revoked bond for Alvarado and Felix after- finding probable cause to believe that they had violated their conditions of release. Evidence suggested that Alvarado and Felix had been contacting witnesses using other people’s phones to avoid detection. Over the next several months, the government investigated these allegations by interviewing individuals whose telephone numbers appeared in witnesses’ cellphone records.

In May 2015, as part of this investigation, the government interviewed several friends of Alvarado and the Chujoys, including Carolyn Edlind and Sheriff Donald Smith. Based on those interviews, the government subpoenaed Edlind and Smith to testify at the upcoming trial.

On June 21, 2015, due to a personal emergency, the government moved for another continuance. The district court granted the motion, finding it to be in the interest of justice. So as not to adversely affect Alvarado and Felix, it ordered them released from jail on bond. Although Alvarado was obliged to obtain new counsel, Defendants did not object to the continuance and explicitly waived any potential speedy trial objection. .The district court scheduled the new trial date for October 26, 2015.

In late August 2015, counsel for an in-máte at the Rockingham County.Jail invited the government to interview his client about information concerning Felix. Felix had been incarcerated at the Rockingham County Jail with this inmate following his arrest on the superseding indictment. The inmate revealed that he and other inmates had given Felix their PIN numbers so that Felix could make calls from jail without detection. The government obtained recorded conversations from the jail and discovered that Felix had placed at least eleven calls from May 2015 to June 2015 using other inmates’ PIN numbers. Felix spoke with Smith on nine of those calls, and the conversations provided evidence of a witness-tampering scheme between Felix, Ed-lind, and Smith—information that Edlind and Smith did not disclose during their May 2015 interviews with federal law enforcement.

C.

Because this conduct took place after ■the . superseding indictment, the United States began a new investigation of Felix regarding witness tampering and obstruction of justice. The government subpoenaed Edlind and Smith to testify when the next grand jury convened on October 6, 2015. Edlind’s and Smith’s testimony provided further evidence of the post-superseding indictment witness-tampering scheme. The government promptly disclosed the grand jury evidence to the district court and Defendants.

On October 20, 2015, the government presented the grand jury with additional testimony and physical evidence concerning the ' potential witness-tampering scheme between Felix, Edlind, and Smith. That same day, the grand jury returned a new indictment against Felix -and Edlind on multiple counts, including conspiracy to witness tamper, witness tampering, and obstruction of justice. The indictment also charged Edlind with perjury and a second count of obstruction of justice for allegedly lying during her grand jury testimony about her contact with Felix.

In response to this new information, Alvarado filed a motion for a continuance to investigate possible prosecutorial misconduct at the October 2015 grand jury proceedings. The district court granted the continuance and set a new trial date of December 1, 2015. In addition,, the district court invited Defendants to file motions related to prosecutorial misconduct after reviewing the grand jury transcripts disclosed by the government.

D.

On November 13, 2015, Defendants filed a joint motion to dismiss all indictments, claiming that the government abused the October 2015 grand jury process by gathering evidence for the superseding indictment. Specifically, Defendants alleged that the government called Edlind and Smith before the grand jury for the dominant purpose of gathering additional evidence against Defendants on the superseding indictment and discovering Defendants’ evidence and trial strategy. The district court denied Defendants’ motion, finding that no prosecutorial misconduct occurred.

The district court nevertheless limited the government’s use of October 2015 grand jury evidence at the upcoming trial on the superseding indictment. The district court concluded that the government could not (1) call Edlind oí Smith to testify in its case-in-chief as to any subjects covered in their October 6, 2015, grand jury testimony, nor could it (2) use their grand jury testimony for any purposes at trial—including to impeach Edlind or Smith, if Defendants called them as witnesses.

The district court based its remedy on a “unique combination of circumstances,” which it found to be “fundamentally unfair.” J.A. 460. First, the district court found that several lines of questioning extended beyond the new witness tampering and obstruction charges into allegations underlying the original charges. J.A. 458. Second, the district court cited “the ongoing delay” occasioned by the second continuance, sought by the government, and the third continuance, sought by Defendants. J.A. 459. It bears repeating that in addition to expressly finding that “the government’s examination of Edlind and Smith did not go so far as to constitute misconduct,” J.A. 455, the district court also did not hold that the government engaged in bad-faith questioning or abused the grand jury process.

The government appeals the district court’s order pursuant to 18 U.S.C. § 3731 and 28 U.S.C. § 1291.

II.

On appeal, the government argues that the district court abused its discretion by sanctioning the government without finding prosecutorial misconduct. According to the, government, in the absence of such a finding, an evidentiary exclusion will never lie. Defendants counter that the district court justifiably fashioned a limited eviden-tiary remedy to address fundamental unfairness.

This court reviews a district court’s evidentiary rulings for abuse of discretion. United States v. Hedgepeth, 418 F.3d 411, 418-19 (4th Cir. 2005). Although this standard accords deference to the district courts, it does not insulate them from review. A district court abuses its discretion when it (1) acts “arbitrarily, as if neither by rule nor discretion,” (2) fails to “adequately ... take into account judicially recognized factors constraining its exercise” of discretion, or (3) rests its decision on “erroneous factual or legal premises.” James v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1993).

We find that the district court abused its discretion in this case. District courts have the supervisory duty to ensure that the grand jury “process is not abused or used for purposes of oppression or injustice.” United States v. U.S. Dist. Court for S. Dist. of W. Va., 238 F.2d 713, 722 (4th Cir. 1956). But a district court must provide a sufficient explanation for its decisions in furtherance of that duty to provide a meaningful basis for review. See Jacobson, 6 F.3d at 239-40. That is what the district court failed to do here. As we explain below, its stated reasons do not comport with our precedent or the facts of record, and its conclusion regarding “fundamental fairness” provides no legal standard by which to measure the appropriateness of the evidentiary exclusion.

We nevertheless reject the government’s argument that the district court may never exclude grand jury evidence except as a sanction for prosecutorial misconduct. The absence of such a finding, however, makes it particularly incumbent upon the district court to explain both the reasoning for and the parameters of any exclusion of evidence derived from grand jury proceedings.

We begin by considering our precedent on grand jury abuse. We then consider-the district court’s stated reasons for the evi-dentiary exclusion in light of that precedent. And finally, we address the government’s argument for a categorical rule.

A.

Under our precedent on grand jury abuse, this court adheres to “the universal rule” that prosecutors cannot use grand jury proceedings for the “sole or dominant purpose” of preparing for trial on an already pending .indictment. United States v. Moss, 756 F.2d 329, 332 (4th Cir. 1985). For example, the government may not use the grand jury to improve its case in an already pending trial by preserving witness statements, locking in a witness’s testimony, pressuring potential trial witnesses to testify favorably, or otherwise employing the grand jury for pretrial discovery. See id. at 331-32 (collecting cases). In short, “once a criminal defendant has been indicted, the Government is barred from employing the grand jury for the ‘sole or dominant purpose’ of developing additional evidence against the defendant.” United States v. Bros. Constr. Co. of Ohio, 219 F.3d 300, 314 (4th Cir. 2000) (quoting Moss, 756 F.2d at 332). A district court has discretion to take appropriate remedial action where it finds grand jury abuse in the form of an improper sole or dominant purpose. See United States v. Brinkman, 739 F.2d 977, 980 (4th Cir. 1984). Here, the district court did not find an improper sole or dominant purpose, but nevertheless determined there was a need to fashion an evidentiary remedy based on perceived fundamental unfairness.

However, to protect the grand jury’s investigative function, this court has repeatedly recognized that district courts should refrain from intervening in the grand jury process absent compelling evidence of grand jury abuse. See, e.g., Moss, 756 F.2d at 331-32. Defendants alleging grand jury abuse bear the burden of rebutting the “presumption of regularity attache[d] to a grand jury’s proceeding.” Bros. Constr., 219 F.3d at 314 (quoting Moss, 756 F.2d at 332). This presumption is further strengthened where, as here, a grand jury returns new indictments with additional charges or defendants. See Moss, 756 F.2d at 332-33. Indeed, some of our sister circuits have gone so far as to hold that the government has an automatic safe harbor when the superseding indictment adds new charges or new defendants. See, e.g., United States v. Flemmi, 245 F.3d 24, 30 (1st Cir. 2001).

Although our circuit has not applied such a per se rule, the fact that new indictments issued is a circumstance a district court should factor into its. overall analysis as militating in favor of the government, not just in determining the dominant purpose of the grand jury proceeding, but also in crafting an evidentiary remedy. "The function of the grand, jury is to inquire into all information that might possibly bear on its investigation until it has identified an offense or has satisfied itself that none has occurred.” United States v. R. Enters., Inc., 498 U.S. 292, 297, 111 S.Ct. 722, 112 L.Ed.2d 795 (1991). Such an investigation requires broad and thorough examination of grand jury witnesses. United States v. Dionisio, 410 U.S. 1, 12-13, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973).

When there is a pending indictment, grand jury witnesses often have information pertinent to both already-indicted charges and new charges. The grand jury is not required to disregard the former when investigating the latter. “Lacking clairvoyance, grand juries must be allowed to investigate freely individuals suspected of involvement in crimes for which indictments have already been issued.” Moss, 756 F.2d at 332. An already-indicted defendant is not insulated from a grand jury investigation into new offenses committed after the initial indictment. Id. at 331-32. A grand jury in such a situation must perform the same broad and thorough investigation required of all grand juries. See Blair v. United States, 250 U.S. 273, 282, 39 S.Ct. 468, 63 L.Ed. 979 (1919) (“As has been said before, the identity of the offender, and the precise nature of the offense, if there be one, normally are developed at the conclusion of the grand jury’s labors, riot at the beginning.”). A district court has some supervisory authority over these proceedings, but it should not restrict grand jury evidence arising out of “a good-faith inquiry into charges that are not covered in the [initial] indictment.” Bros. Constr., 219 F.3d at 314.

B.

In light of this precedent, we next examine the district court’s proffered reasons for its exclusion of evidence remedy: (1) the scope of questions asked at the October 2015 grand jury proceeding and (2) “ongoing delay” occasioned by the second and third trial continuances. We are compelled to conclude that neither reason justifies the district court’s remedy.

1.

Part of the perceived necessity for a remedy arose from the district court’s finding that “a not-insignificant portion of the questions asked at the October grand jury session went beyond the subject of witness tampering and obstruction, and delved into information probative to the underlying charges.” J.A. 458. The district court also' noted that “questions asked about conversations between the witnesses and defense counsel [were] of particular concern. Because so many of the government’s questions addressed issues closely intertwined with the underlying charges, including a potential trial defense, some evidentiary restriction [was] needed.” J.A. 458.

The reasoning underlying the district court’s observations is obscure and does not provide a basis upon which appellate review can be conducted. The opinion fails to explain the relevance of the fact that the government’s questioning may have been “closely intertwined with the underlying charges” to the determination of whether the questions arose out of “a good-faith inquiry into charges that [were] not covered in the indictment.” Bros. Constr., 219 F.3d at 314. Uncovering evidence against an already-indicted person does not provide ipso facto evidence that the government failed to conduct its questioning in good faith. Moss, 756 F.2d at 332. In this regard, the district court’s opinion fails to explain how it factored the issuance of the new indictments into its analysis of any ground for an evidentiary remedy. Again, broader lines of questioning help determine what charges are appropriate, and which suspects should be tried. R. Enters., 498 U.S. at 297, 111 S.Ct. 722. Incidental benefits alone cannot justify exclusion of grand jury evidence. See Moss, 756 F.2d at 332; United States v. (Under Seal), 714 F.2d 347, 350 (4th Cir. 1983). The district court abused its discretion when it based its evidentiary exclusion partially on the grounds that some questions “seem[ed] to' stray far afield of the new allegations,” J.A. 455, without providing a legal justification for so doing.

2.

The district court also stated that the delay occasioned by two of the trial continuances supported its evidentiary remedy. J.A. 459-60. But like the discussion about the scope of the government’s questioning, we cannot discern from the district court’s opinion how the government’s conduct in relation to the continuances supported the district court’s remedy.

The first cited continuance resulted from the government’s emergency motion in June 2015. The district court noted that this continuance caused the delay that required Alvarado to obtain new counsel. However, as we have noted, Defendants were released from jail to . minimize any adverse effect on them. Moreover, while the district court is responsible for balancing prejudice to defendants in granting, a continuance, United States v. LaRouche, 896 F.2d 815, 823-25 (4th Cir. 1990), the district court here found that granting the continuance would be in the interest of justice. The district court must explain why a delay it found fully justified at the time, now supports an evidentiary remedy.

The district court further stated that “[i]n granting the government’s motion for a continuance in June, the court did not expect that the government would undertake to develop additional evidence for use at trial.” J.A. 460. This statement, too, is perplexing; how it relates to Defendants’ claims of grand jury abuse is not clear. The district court did not explicitly state that the government used the October 2015 grand jury hearing to develop additional evidence for. already-indicted offenses; indeed, in finding neither prosecu-torial misconduct nor bad faith the district court suggests to the contrary. We fail to see, and the district court fails to explain, how the government’s preparation for trial otherwise has any bearing on the district court’s conclusion that an evidentiary exclusion was required.

The only other motion for a continuance cited by the district court as a basis for its evidentiary remedy is Alvarado’s. J.A. 459-60. To justify reliance on Alvarado’s motion for a continuance to impose eviden-tiary sanctions on the government, the district court attributes the impetus for the motion to the October 2015 indictment. This rationale fails for the same reason that the government’s motion for a continuance does: the district court does not explain how the government engaged in anything other than a good-faith inquiry into new charges. Citing the indictment alone for evidence of grand jury abuse directly contradicts our prior holding that an indictment provides strong evidence of a proper purpose. See Moss, 756 F.2d at 332-33.

In the absence of a tenable explanation we are left to infer that the district court perceived a pattern of questionable behavior on the part of the government motivating the delay. However, the district court did not explicitly detail such a finding, or for that matter specify what government conduct was impermissible. This court will not read between the lines to affirm an order that affects the independence accorded to the grand jury’s investigative process. If new evidence came to the district court’s attention that prosecutorial misconduct or bad faith contributed to the circumstances causing either continuance, then the district court must state so in its opinion. See In re Grand Jury Subpoena, 175 F.3d 332, 337-38 (4th Cir. 1999) (finding that timing of events could be one factor a district court considers in deciding whether sufficient prosecutorial misconduct exists to justify quashing a grand jury subpoena). The district court abused its discretion in citing delay as a justification for its remedy without explaining how the delay related to alleged grand jury abuse and why a remedy of evidentiary exclusion was appropriate.

C.

On appeal the government not only argues that the district court lacked a justification for its remedy, but also takes the further step of urging us to hold that a district court has no power to issue a remedy when it finds a proper dominant purpose. Although the Fourth Circuit has not squarely confronted the issue, at least one other circuit has taken such a stance. See United States v. US Infrastructure, Inc., 576 F.3d 1195, 1215 (11th Cir. 2009) (rejecting the defendants’ claims of grand jury abuse “[bjecause the government did not use the grand jury ‘primarily’ to obtain evidence” related to prior indictments where most of the questioning related to new charges).

We nevertheless decline to adopt the government’s position. Our precedent “forbids” the government from engaging in impermissible questioning during a grand jury proceeding. See In re Grand Jury Proceedings No. 92-4, 42 F.3d 876, 878 (4th Cir. 1994) (“This prohibition bars, inter alia, grand jury requests that amount to civil or criminal discovery, as well as arbitrary, malicious, or harassing inquiries.” (internal citation omitted)). We are not prepared to say that there could be no circumstances in which the government has undertaken a line of questioning that falls just short of impermissibility but nevertheless calls for some remedial action. See id.; see also United States v. Doe, 455 F.2d 1270, 1276 (1st Cir. 1972). District courts must be vested with some discretion to remedy conduct they find troubling even if the conduct does not rise to the level of misconduct. A defendant claiming grand jury abuse faces an uphill climb, but this court will not render the hill insurmountable.

It is simply that, on these facts, the district court has provided us with no navigational aids. Where the district court cannot conclude the government employed the grand jury for an improper sole or dominant purpose, it becomes even more incumbent upon the district court to state with particularity what it found troubling, and how it tailored its remedy to correct that finding. Otherwise such exclusions risk chilling proper uses of the grand jury.

The instant case presents an apt example. The nature of questioning for a grand jury investigating obstruction of justice or witness tampering will necessarily require some inquiry into the facts of the underlying, ongoing case. As the district court itself recognized, “questions that touched on Edlind’s and Smith’s prior contact with Alvarado, [Felix] Chujoy, and [Gladys] Chujoy have a credible relationship with the new allegations of witness tampering.” J.A. 455. It is for this reason that the district court found that Defendants had not met their heavy burden of demonstrating “that the government questioned Ed-lind or Smith with the sole or dominant purpose of preparing for trial on the superseding indictment.” J.A. 457. The record supported this conclusion.

Yet the district court continued, finding it “necessary to fashion an appropriate evidentiary remedy.” J.A. 457. But to fashion an appropriate remedy the district court must identify with specificity what troubling circumstances justified its evi-dentiary exclusion, and how it narrowly tailored that exclusion to prevent sweeping up evidence that arose from good-faith questioning. Holding otherwise would disregard the principle that “the law presumes, absent a strong showing to the contrary, that a grand jury acts within the legitimate scope of its authority.” R. Enters., 498 U.S. at 300, 111 S.Ct. 722.

III.

What undergirds our decision today is the presumption of regularity attached to grand jury proceedings. In cases like the present one, the fact that a challenged grand jury proceeding returns new indictments renders this presumption even stronger. This court will not affirm an order overriding that presumption on the basis of mere concerns divorced from any recognized legal justification.

Therefore, we hold that the district court abused its discretion. On remand, the district court should allow the government to use Edlind’s and Smith’s grand jury testimony or explain with specificity both the legal basis for its exclusion, and how its sanction is narrowly tailored to that concern. For the reasons stated above, we vacate the order and remand for further proceedings not inconsistent with this opinion.

VACATED AND REMANDED

      . Furthermore, the district court’s reliance on Brothers Construction as authority to the contrary is misplaced. Like the district court in our case, the district court in Brothers Construction limited evidentiary use of some testimony without finding prosecutorial misconduct. 219 F.3d at 313-14. However, in Brothers Construction, these evidentiary rulings were not at issue on appeal. Moreover, the district court in Brothers Construction did not explain the legal basis for its eviden-tiary rulings, and the only other reference to these rulings occurs in a trial transcript, J.A. 458 n.3. Likewise, that transcript also fails to offer legal justification for the district court’s exclusion, noting only that the district court planned to exclude some evidence. One district court's legally unsubstantiated remedy does not justify another district court’s legally unsubstantiated remedy.