author: DENNIS JACOBS, Circuit Judge:

text:
    TRUSTEES OF the UPSTATE NEW YORK ENGINEERS PENSION FUND, Plaintiff-Appellant, v. IVY ASSET MANAGEMENT, Lawrence Simon, Howard Wohl, and Bank of New York Mellon Corporation, Defendants-Appellees.
    Docket No. 15-3124
    August Term, 2016
    United States Court of Appeals, Second Circuit.
    Argued: October 19, 2016
    Decided: December 8, 2016

      LOUIS P. MALONE III, O’Donoghue & O’Donoghue LLP, Washington, D.C. (Jennifer R. Simon; and James L. Linsey, Linsey Law Firm, PLLC, New York, NY, on the brief), for Plaintiff-Appellant.
    LEWIS J. LIMAN (Jeffrey A. Rosen-thal, on the brief), Cleary Gottlieb Steen & Hamilton LLP, New York, NY, for Defendants-Appellees.
    Before: KEARSE, JACOBS, and < POOLER, Circuit Judges. i
   DENNIS JACOBS, Circuit Judge:

An ERISA pension fund, by its trustees, sues its investment manager (and principals), alleging: that these defendants knew by 1998 that investing with Bernard L. Madoff Investment Securities LLC (“BLMIS”) was imprudent; that these defendants breached their fiduciary duty by failing to warn the fund of this fact; that if warned, the fund would have withdrawn the full sum appearing on its 1998 BLMIS account statements; and that prudent alternative investment of that sum would have earned more than the fund’s actual net withdrawals from its BLMIS account between 1999 and 2008. The trustees seek to obtain the difference by way of damages, among other remedies. The trustees also sue Bank of New York Mellon Corporation, which acquired the investment manager-in 2000, alleging that it knowingly participated as a non-fiduciary in the fiduciary breach. They appeal from a judgment-of the United States District Court for the Southern District of New York (Gardephe, J.), dismissing their complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) and for failure to allege an actual injury sufficient to establish Article III standing pursuant to Federal Rule of Civil Procedure 12(b)(1).

I

Unless otherwise noted, all facts are taken from the first amended complaint (the “complaint”).

In 1990, Ivy Asset Management (“Ivy”) agreed with the Trustees of the Upstate New York Engineers Pension Fund (the “Plan”) to serve as an investment manager and provide advice in the investment of Plan assets. Ivy, which was formed and run by defendants Lawrence Simon and Howard Wohl, continued in this role until 2009. The Plan paid Ivy an annual “basic fee” as well as a “performance fee” equal to a percentage of investment profits above a target threshold. App’x 101, 142. Guided by Ivy, the Trustees invested a portion- of Plan assets with BLMIS (Bernie Madoffs investment advisory- business) starting in 1990 and continuing until December 2008; when ' the Madoff Ponzi scheme was exposed.

As this court well knows, BLMIS conducted no actual securities or options trading on behalf of its customers. Instead,

BLMIS deposited customer investments into a single commingled checking account and, for years, fabricated customer statements to show fictitious securities trading activity and returns ranging between 10 and 17 percent annually. When customers sought to withdraw money from their accounts, including withdrawals of the fictitious profits that BLMIS had attributed to them, BLMIS sent them cash from the. commingled checking account.

Picard v. Ida Fishman Revocable Tr. (In re Bernard L. Madoff Inv. Sec. LLC), 773 F.3d 411, 415 (2d Cir. 2014).

Under the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq., Ivy, Simon, and Wohl owed fiduciary duties to the Plan. We start from the allegation that they breached these duties beginning in December 1998 by concealing their well-founded belief that investing with BLMIS was imprudent. It is not alleged that Ivy, Simon, or Wohl knew that Madoff was operating a Ponzi scheme, only that they knew that his investment strategy was incoherent and his representations regarding his supposed trades were inconsistent with publicly available information. In 1998, Ivy expressed general concerns about Madoffs operations and sought to limit the Plan’s investment with BLMIS, but it did not advise the Trustees to get out.

Ivy, Simon, and Wohl allegedly concealed their doubts about Madoff “so as to maintain [Ivy’s] assets under management and receive the fees generated by these assets.” App’x 71. Performance fees linked to the Plan’s BLMIS investment totaled $1.8 million after December 1998.

The chart below summarizes the Plan’s BLMIS investments and withdrawals from the initial date. As the chart reflects, the Plan’s withdrawals exceeded investments beginning in 2002. By December 2005, after which date the Plan made no further investments or withdrawals, the Plan had withdrawn nearly $33 million more than it had invested.

In November 2010, the bankruptcy trustee for BLMIS attempted to claw back the nearly $33 million in net profit withdrawn by the Plan, but was frustrated by the intervening statute of limitations.

As of December 1998 (when it is alleged the Plan would have pocketed its profits if well-advised), the Plan’s investment with BLMIS (net of withdrawals) was $5,725,258. At that point, the stated value of its BLMIS account was $36,629,757— though, because BLMIS was a Ponzi scheme, this account entry was fictitious. Nonetheless, as the Trustees point out, as long as BLMIS had adequate funds in hand, the entire $36,629,757 could have been withdrawn — nearly $31 million more than the Plan’s net investment — and could then have been invested elsewhere.

Instead of withdrawing and reinvesting the $36,629,757 stated value of the BLMIS account in December 1998, the Trustees invested an additional $6,300,000 over the next year (on top of the $5,725,258 net investment at that time) and then withdrew $45,000,000 over the following six years, for a net profit of $32,974,742. These ■withdrawals, however, did not deplete the stated value of the Plan’s BLMIS account, which grew apace. When Madoffs fraud was exposed in December 2008, the stated value of the account exceeded $50 million. But because the Plan was a “net winner” in Madoffs fraud — that is, it had withdrawn more than it invested — it could not recover any of these fictitious funds in BLMlS’s liquidation.

Of the four counts in the complaint, three assert claims against Ivy, Simon, and Wohl: that they breached the duty of prudence, the duty of loyalty, and the duty to administer the Plan in accordance with its governing documents. In connection with these breach-of-duty ■ claims, the Trustees allege the following injuries: (1) the Plan lost the opportunity to withdraw the full stated value of its BLMIS account in December 1998 and invest the (largely notional) $36,629,757 elsewhere; (2) the Plan paid Ivy $1.8 million in performance fees, some or all of which related to imaginary or unrecoverable profits; (3) the Trustees increased Plan members’ vested pension fund benefits in July 1999 (acting in part on the mistaken belief that the stated performance of the BLMIS account reflected reality), a step they allege they would not have taken if Ivy, Simon, or Wohl had dissuaded them from continuing to maintain an account with BLMIS; (4) the Plan incurred the expense of responding to subpoenas issued by the United States Department of Labor and the Attorney General of the State of New York related to the Plan’s investment with BLMIS; and (5) the Plan incurred legal and related expenses defending against the clawback litigation initiated by the BLMIS bankruptcy trustee.

In addition to these alleged injuries, the Trustees seek disgorgement of the $200 million earned by Simon and Wohl when Bank of New York Mellon Corporation (“BNY Mellon”) acquired Ivy in 2000. The Trustees allege that the reason Ivy, Simon, and Wohl concealed negative information about Madoff was that they feared the Trustees’ withdrawal of the BLMIS investment would reduce Ivy’s assets under management and, by extension, its acquisition value.

The fourth count is pled against BNY Mellon. Without claiming that BNY Mellon itself assumed a fiduciary duty to the Plan as a consequence of its acquisition of Ivy, the Trustees allege that BNY Mellon knowingly participated in the fiduciary breach “[b]y virtue of its acquiescence and its receipt of the investment advisory fees paid by the Plan.” App’x 90-91. In connection with this count, the Trustees seek disgorgement of those fees as well as any profits earned by Simon and Wohl as a result of their fiduciary breach.

In September 2015, the complaint was dismissed for lack of Article III standing pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(1) and, in the alternative, for failure to state a claim pursuant to Rule 12(b)(6). The district court held that the Plan suffered no legally cognizable injury because it had no right to fictitious profits and because its gains exceeded the performance fees and legal expenses relating to the BLMIS investment. Trs. of the Upstate N.Y. Eng’rs Pension Fund v. Ivy Asset Mgmt., 131 F. Supp. 3d 103, 121-26 (S.D.N.Y. 2015). The district court further ruled that: (1) the Trustees’ claim regarding increased pension benefits failed because Ivy, Simon, and Wohl were not involved in that decision, id. at 126-27; (2) the claim for disgorgement of Simon and Wohl’s $200 million failed because the Trustees inadequately alleged a causal connection between the breach of fiduciary duty and BNY Mellon’s acquisition of Ivy, id. at 127-30; and (3) the claim against BNY Mellon failed because BNY Mellon’s acquiescence and receipt of fees did not amount to participation in the fiduciary breach, id. at 130-32. On appeal, the Trustees challenge each of these holdings.

II

We review de novo the grant of a Rule 12(b)(6) motion to dismiss for failure to state a claim, accepting all factual allegations as true and drawing all reasonable inferences in favor of the plaintiff. City of Pontiac Policemen’s & Firemen’s Ret. Sys. v. UBS AG, 752 F.3d 173, 179 (2d Cir. 2014).

The same standards apply to dismissals for lack of standing pursuant to Rule 12(b)(1) when, as here, the district court based its decision solely on the allegations of the complaint and the undisputed facts evidenced in the record. Rajamin v. Deutsche Bank Nat’l Tr. Co., 757 F.3d 79, 84-85 (2d Cir. 2014). In order to establish standing: “(1) the plaintiff must have suffered an injury-in-fact; (2) there must be a causal connection between the injury and the conduct at issue; and (3) the injury must be likely to be redressed by a favorable decision.” Kendall v. Emps. Ret. Plan of Avon Prods., 561 F.3d 112, 118 (2d Cir. 2009) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). In a case arising under ERISA, a plaintiff “must allege some injury or deprivation of a specific right that arose from a violation of [an ERISA] duty in order to meet the injury-in-fact requirement.” Id. at 121.

Ill

ERISA affords a private right of action for breach of fiduciary duty under that statute:

Any person who is a fiduciary with respect to a plan who breaches any of the responsibilities, obligations, or duties imposed upon fiduciaries by this subehap-ter shall be personally liable to make good to such plan any losses to the plan resulting from each such breach, and to restore to such plan any profits of such fiduciary which have been made through use of assets of the plan by the fiduciary, and shall be subject to such other equitable or remedial relief as the court may deem appropriate, including removal of such fiduciary.

29 U.S.C. § 1109(a).

The Trustees seek both to recover alleged losses sustained by the Plan and to disgorge alleged profits made by Simon and Wohl as a result of the breach of fiduciary duty.

A: Loss of Fictitious Profits

“If, but for the breach, the [plan] would have earned even more than it actually earned, there is a ‘loss’ tor which the breaching fiduciary is liable.” Dardaganis v. Grace Capital Inc., 889 F.2d 1237, 1243 (2d Cir. 1989). Losses are measured by the difference between the plan’s actual performance and how the plan would have performed if the funds had been invested “like other funds being invested during the same period in proper transactions.” Donovan v. Bierwirth, 754 F.2d 1049, 1056 (2d Cir. 1985). “Where several alternative investment strategies were equally plausible, the court should presume that the funds would have been used in the most profitable of these.” Id

The Trustees contend that if Ivy, Simon, or Wohl had warned-them in December 1998 that investing with Madoff was imprudent, the Plan could have cashed out the entire $36,629,757 stated value of the BLMIS account and thereby realized almost $31 million in profit, which, when invested prudently, would have yielded a greater return than the nearly $33 million in profit they incrementally withdrew over the course of the next seven years. The flaw in this argument is that it is incontestable that any amount withdrawn in excess of the Plan’s net investment would have been money taken from other BLMIS customers through a fraudulent transfer. See Picard, 773 F.3d at 421-22 (“these transfers were .'.. made ‘in' connection with’ a Ponzi scheme and, as a result, were fraudulent”); Balaber-Strauss v. Sixty-Five Brokers (In re Churchill Mortg. Inv. Corp.), 256 B.R. 664, 682 (Bankr. S.D.N.Y. 2000) (noting “the universally-accepted rule that investors may retain distributions from an entity engaged in a Ponzi scheme to the extent of their investments, while distributions exceeding their investments constitute fraudulent conveyances”).

The loss of an opportunity to lay hands on funds belonging to others is not a legally cognizable injury. In this case, it is a missed chance for innocent enjoyment of a fraud. A court of equity “will not lend its power to assist or protect a fraud.” Kitchen v. Rayburn, 86 U.S. (19 Wall.) 254, 263, 22 L.Ed. 64 (1873). We therefore decline to measure loss based on the amount of other investors’ money that the Plan could have withdrawn had it maximized its potential gains in Madoffs Ponzi scheme. Cf. In re Bernard L. Madoff Inv. Sec. LLC, 654 F.3d 229, 235 (2d Cir. 2011) (“Use of the Last Statement Method in this case would have the absurd effect of treating fictitious and arbitrarily assigned paper profits as real and would give legal effect to MadofPs machinations.”).

As a practical matter, the Trustees are correct that had they withdrawn the nearly $31 million in fictitious profits from the Plan’s BLMIS account in December 1998, they would have been able to keep it. But that is not because the transfer would have been non-fraudulent; it is because the law values finality. By the time the BLMIS bankruptcy trustee attempted to claw back funds from net winners in 2010, any recovery from the Plan for the benefit of victims was defeated by invocation of the statute of limitations. In fact, this statute of limitations served to protect the nearly $33 million in profit the Plan withdrew from BLMIS prior to 2006 from clawback by the BLMIS bankruptcy trustee. The transfer would likewise have been shielded from avoidance in bankruptcy because it would have been classified as a “settlement payr ment” made “in connection with a securities contract” under Section 546(e) of the Bankruptcy Code, 11 U.S.C. § 546(e). Picard, 773 F.3d at 421-22 (internal quotation marks omitted). As this Court has explained:

These statutes of limitations reflect that, at a certain point, the need for finality is paramount even in light of countervailing equity considerations. Similarly, by enacting ■§ 546(e), Congress provided that, for. a very broad range of securities-related transfers, the interest in finality is sufficiently important that they cannot be avoided by a bankruptcy trustee at all, except as actual fraudulent transfers under § 548(a)(1)(A)..

Id, at 423. The funds the Trustees would like to have withdrawn in 1998 were not withdrawn. No interest (equity, finality, or the merits) is served by giving real' effect to a fraud because an innocent party would have gotten away with it.

It therefore does not matter whether (as the complaint claims) the Plan would have received greater returns by withdrawing the full $36,629,757 stated value of its BLMIS account in December 1998 and investing the money in a prudent alternative investment. Of course, the Plan did have a right to its net investment, which in December 1998 was $5,725,258. But the Trustees do not allege that had this money been withdrawn and invested elsewhere, the profits earned' would have exceeded the Plan’s BLMIS profits, which ultimately totaled $32,974,742 in 2005 (after which no further investments or withdrawals were made).

Even if the Trustees had explicitly alleged in their complaint that the investment of $5,725,258 in a prudent alternative investment would have earned more than the $32,974,742 earned in profit from BLMIS, such a claim would fail the test of plausibility. A cause of action under Donovan’s prudent alternative investment theory requires pleading that the ERISA-pro-tected plan suffered a loss as a result of certain funds being invested in an imprudent manner and that, had the funds been available for other investments, those investments would have earned, more than the imprudent investment actually earned. Donovan, 754 F.2d at 1056. As we have previously observed, however, “the profits recorded over time [by BLMIS] on the customer statements were, after-the-fact constructs that were ... rigged to reflect a steady and upward trajectory in good times and bad[.]” In re Bernard L. Madoff Inv. Sec. LLC, 654 F.3d at 238. In other words, Madoff s Ponzi scheme was successful because BLMIS was posting far higher returns than any other investment, returns which the Trustees were able to realize by withdrawing nearly $33 million in pure profit from their investment before the Ponzi scheme was revealed. Since Madoff was able to post such high returns only because of his fraud, it would be implausible to read the complaint here to allege that any of the Plan’s non-fraudulent alternative investments would have realized higher returns between .December 1998 and December 2005.

Indeed, any such comparable profit would have been extremely difficult to achieve. A generous 10 percent annual compounded return on a $5,725,258 investment in 1998 would have yielded a profit of about $5.4 million by 2005 — approximately $27.5 million less than what - the Plan pocketed. Even an astronomical-25 percent annual return on investment would have fallen roughly $11.4 million short. The Trustees have not claimed that any of the Plan’s alternative investment options offered returns as high as 25 percent every year between 1998 and 2005. Nor is such a rate of return plausible. The valid measure is a prudent alternative investment, not an alternative Ponzi scheme.

True, this ruling affords no remedy on this claim notwithstanding the alleged breach of fiduciary duty in the rendering of investment advice. But there is no cognizable investment loss.' And a- breach of fiduciary duty under ERISA in and of itself does not “constitute an injury-in-fact sufficient for constitutional standing.” Kendall, 561 F.3d at 121. Accordingly, the Plan has failed to allege facts sufficient to show Article III standing.

B. Performance Fees and Legal Expenses

The Trustees claim as additional losses: (1) the $1.8 million in performance fees paid to Ivy in connection with the Plan’s BLMIS investment after 1998; and (2) the costs incurred responding to the unsuccessful clawback action filed by the Madoff bankruptcy trustee and to the subpoenas issued by the United States Department of Labor and the Attorney General of the State of New York in their actions against Ivy, Simon, and Wohl.

Under the common law of trusts— which “offers a starting point for analysis of ERISA unless it is inconsistent with'the language of'the statute, its structure, or its purposes,” Harris Tr. & Sav. Bank v. Salomon Smith Barney Inc., 530 U.S. 238, 250, 120 S.Ct. 2180, 147 L.Ed.2d 187 (2000) (internal quotation marks and alterations omitted) — the “loss occasioned by one breach of trust” is not offset by “a gain which has accrued through another and distinct breach of trust.” Restatement (Second) of Trusts § 213 (1959). However, where, as here, the alleged “breaches of trust are not distinct, the trustee is accountable only for the net gain or chargeable only with the net loss resulting therefrom.” Id.; see also Cal. Ironworkers Field Pension Tr. v. Loomis Sayles & Co., 259 F.3d 1036, 1047 (9th Cir. 2001) (“[A] fiduciary is liable for the total aggregate loss of all breaches of trust and may reduce liability for the net loss of multiple breaches only when such multiple breaches are so related that they do not constitute separate and distinct breaches.”).

Here, the performance fees and the legal and compliance costs that the Trustees seek to recoup arise from the same alleged breach of trust that imprudently left the Plan invested in BLMIS. The question becomes whether the performance fees and the legal and compliance costs, added together, exceed the profit that the Plan derived in excess of what it would have made from a prudent alternative investment.

The last investment or withdrawal made in connection with the Plan’s BLMIS account occurred in December 2005 (the stated value that remained, which was imaginary anyway, was erased when the Ponzi scheme was uncovered in December 2008). Based on the total investments and withdrawals (he., through December 2005), the Plan earned a profit of $32,974,742. As discussed above, the Trustees have not alleged, nor is it plausible, that if they had been duly warned about BLMIS in December 1998 and then withdrawn the $5,725,258 principal to which they were entitled, the Plan could have obtained a profit anywhere near this large through a prudent' alternative investment. Even an implausible 25 percent annual return would have fallen short over $11 million.

It is also wholly implausible that the performance fees and legal expenses the Trustees claim as losses could have amounted to more than a few million dollars. Although the exact costs incurred responding to the clawback action and subpoenas are not stated in the complaint, one can safely conclude that these costs, when combined with the $1.8 million paid in performance fees, do not come close to matching the extraordinary profits made by the Plan’s BLMIS investment over and above what it could have made through a prudent alternative investment. Indeed, it is inconceivable that legal expenses relating to a clawback action that was barred by the statute of limitations and subpoenas asking for information about an investment would amount to many millions of dollars. Therefore, because the Trustees have not plausibly alleged losses in excess of their profits, they have not pleaded an injury in fact sufficient for Article III standing. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (requiring a complaint to “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face” (internal quotation marks omitted)).

C. Increased Pension Fund Benefits

The Trustees claim that the Plan suffered an additional loss when pension fund benefits were increased in 1999 in partial reliance on the stated performance of the BLMIS investment. It is alleged that this increase was unwarranted because it was predicated on fictitious stated values of investments that eventually became worthless, and that it reduced Plan assets and compromised the Plan’s ability to pay promised retirement benefits. Since, according to the complaint, the Trustees would not have increased pension fund benefits had they known that investing with BLMIS was imprudent, they hold Ivy, Simon,, and Wohl responsible, for the cost of the benefit increase under 29 U.S.C. § 1109(a).

The complaint does not allege that the Plan -has been or will be unable to pay the increased benefits to its participants. Although the Plan may have less of a surplus than the Trustees expected when they increased benefits in 1999, no participants are alleged to have been harmed. Nor was the Plan itself harmed; the Plan received funds far in excess' of its entitlement. Therefore, the increase in pension benefits does not constitute a cognizable loss.

The district court rejected this alleged loss for a different reason, namely that Ivy, Simon, and Wohl could not be held liable because they had no involvement in the decision to increase benefits. Trs. of the Upstate N.Y. Eng’rs Pension Fund, 131 F.Supp.3d at 127. Because we conclude that the increase in pension benefits does not constitute a cognizable loss, we need not decide that additional issue. .

D. Disgorgement of Simon and WohPs $2D0 Million

The Trustees further seek disgorgement of the $200 million that Simon and Wohl shared when BNY Mellon acquired Ivy. The Trustees argue that this money was the fruit of Simon and Wohl’s breach of fiduciary duty because Ivy’s value as an acquisition target depended in part on its assets under management, which Simon and Wohl feared would decrease if they disclosed to the Trustees their complete ■ and honest conclusions about Madoff. However, although the complaint alleges that the Trustees, would have divested from BLMIS if, Simon, and Wohl had disclosed these conclusions, it does not allege that the Trustees would have removed the assets from Ivy’s management. There is therefore no reasonable inference that Simon and Wohl’s concealment of information about Madoff affected Ivy’s acquisition price. See 29 U.S.C. § 1109(a) (permitting disgorgement of a fiduciary’s profits only where there is a causal connection between those profits and use of plan assets by the fiduciary); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (“Factual allegations must be enough to raise a right to relief above the speculative level[.]”).

IV

Finally, the Trustees allege that BNY Mellon, a non-fiduciary, knowingly participated in Ivy, Simon, and Wohl’s breach of fiduciary duty “[b]y virtue of its acquiescence and its receipt of the investment advisory fees paid by the Plan.” App’x 90-91.

“The well-settled elements of a cause of action for participation in a breach of fiduciary duty are 1) breach by a fiduciary of a duty owed to plaintiff, 2) defendant’s knowing participation in the breach, and 3) damages.” Diduck v. Kaszycki & Sons Contractors, Inc., 974 F.2d 270, 281-82 (2d Cir. 1992), abrogated on other grounds by Gerosa v. Savasta & Co., Inc., 329 F.3d 317 (2d Cir. 2003). Athough the complaint adequately alleges that BNY Mellon knew of the breach of fiduciary duty, it fails to plead facts demonstrating that BNY Mellon “affirmatively assisted], help[ed] conceal, or by virtue of failing to act when required, to do so enable[d] [the breach of fiduciary duty] to proceed.” Diduck, 974 F.2d at 284. Accordingly, the complaint fails to state a claim against BNY Mellon for participation in a breach of fiduciary duty by Ivy, Simon, and Wohl.

CONCLUSION

For the foregoing reasons, the district court’s dismissal of the Trustees’ complaint is affirmed.

      . Although not all of the information in this chart is listed in the complaint, the' parties have agreed that it is accurate.

      . Significantly, the complaint does not seek disgorgement of investment advisory fees in connection with the first three counts (alleging breach of fiduciary duty by Ivy, Simon, and Wohl). Evidently for that reason, the district court’s analysis of the claims against Ivy, Simon, and Wohl treated these fees as alleged losses sought to be recovered and not profits sought to be disgorged. The Trustees do not challenge that treatment in their briefs; they explicitly state that it is correct.

      . These calculations do -not even take into account the potential returns the Plan could have made by investing its periodic withdrawals from BLMIS prior to'2005.

      . It is possible that the Trustees would have had to respond to the clawback action and subpoenas even if they had withdrawn the Plan's BLMIS investment in 1998 because the Plan would still have receiyed fraudulent transfers and the Trustees could still have had information relevant to the government investigations into Ivy, Simon, and Wohl. However, because it does not affect the outcome of the case, we assume for present purposes that these legal and compliance expenses are losses caused by the alleged breach of fiduciary •duty.


source: Caselaw Access Project

author:
WILKINSON, Circuit Judge:
      GREGORY, Chief Judge,

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Spencer PETERS, a/k/a Smoke, Defendant-Appellant.
    No. 15-7442
    United States Court of Appeals, Fourth Circuit.
    Argued: September 23, 2016
    Decided: December 12, 2016

      ARGUED; Caroline Swift Platt, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Peter Sinclair Duffey, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Geremy C. Kamens, Federal Public Defender, Alexandria, Virginia, Robert J. Wagner, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for Appellant. Dana J. Boente, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,. Virginia, for Appellee.
    Before GREGORY, Chief Judge, and WILKINSON'and DIAZ, Circuit Judges.

      . We refer to the appellant Spencer Peters as “Peters.” When discussing his brother, we use "Terrence” or "Terrence Peters.”

   Affirmed by published opinion. Judge WILKINSON wrote the majority opinion, in which Judge DIAZ joined. Chief Judge GREGORY wrote a dissenting opinion.

WILKINSON, Circuit Judge:

Spencer Peters appeals the district court’s denial of his motion for a sentence reduction under 18 U.S.C. § 3582(e)(2),- A jury convicted Peters of both conspiracy to distribute 50 grams or more of cocaine base, or “crack,” and a related firearms conspiracy. Given the quantity of cocaine base attributable to Peters, the district court applied the maximum base offense level for drug-trafficking crimes under the Sentencing Guidelines. Peters ultimately received 480 months of imprisonment.

After Guidelines Amendment 782 increased the minimum quantity of cocaine base associated with the maximum base offense level to 25.2 kilograms, Peters moved for a sentence reduction under § 3582(c)(2). The district court denied the motion, concluding that “the quantity of controlled substance in the offense of conviction renders the defendant ineligible for a reduction of sentence.” J.A. 748. On appeal, Peters argues that the district court erred by failing to explain its eligibility determination in sufficient detail and by finding him responsible for at least 25.2 kilograms of cocaine base. For the reasons that follow, we affirm.

I.

A.

We first set forth the general statutory framework for deciding sentence reductions. Ordinarily, of course, a sentence is final. 18 U.S.C. § 3582(c) (2012). Recognizing a discrete exception to the general rule of sentencing finality, section 3582(c)(2) allows reductions to a defendant’s term of imprisonment to give the defendant “the benefit of later enacted adjustments to the judgments reflected in the Guidelines.” Dillon v. United States, 560 U.S. 817, 828, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010); see § 3582(c)(2). Section 3582(c)(2), the Supreme Court has explained, permits “only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding.” Dillon, 560 U.S. at 826, 130 S.Ct. 2683. This court has noted that § 3582(c)(2) does not allow “a do-over of an original sentencing proceeding,” in which the defendant is “cloaked in rights mandated by statutory law and the Constitution.” United States v. Legree, 205 F.3d 724, 730 (4th Cir. 2000) (quoting United States v. Tidwell, 178 F.3d 946, 949 (7th Cir. 1999)).

To decide whether to reduce a defendant’s sentence under § 3582(c)(2), courts conduct a “two-step inquiry.” Dillon, 560 U.S. at 826, 130 S.Ct. 2683; United States v. Williams, 808 F.3d 253, 257 (4th Cir. 2015). First, a court must determine the defendant’s eligibility. Section 3582(c)(2) permits a reduction only if (1) the defendant’s “term of imprisonment [was] based on a sentencing range that has subsequently been lowered by the Sentencing Commission,” and (2) the reduction “is consistent with applicable policy statements issued by the Sentencing Commission.” § 3582(c)(2). Second, the court may grant the authorized reduction “after considering the factors set forth in section 3553(a) to the extent that they are applicable.” Id.-, see 18 U.S.C. § 3553(a) (2012). The ultimate decision of “[w]hether to reduce a sentence and to what extent” is committed to the district court’s discretion. United States v. Smalls, 720 F.3d 193, 195 (4th Cir. 2013); see Legree, 205 F.3d at 727.

The Guidelines policy statement implementing the statute, Guidelines § 1B1.10, spells out the process for determining whether an amendment lowers a defendant’s sentencing range. See U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 1B1.10 (2014). Courts “shall substitute ... the amendments ... for the corresponding guideline provisions that were applied when the defendant was sentenced and shall leave all other guideline application decisions unaffected.” Id. § lB1.10(b)(l). Section 1B1.10 also functions as a gatekeeper, specifying which Guidelines amendments apply retroactively and thus may give rise to a sentence reduction under § 3582(c)(2). Id § lB1.10(a)(2)(A), (d).

B.

Motions under § 3582(c)(2) must be based on an amendment to the Guidelines. See id. § lB1.10(a)(l). Following the Fair Sentencing Act of 2010, the Sentencing Commission amended the Guidelines with respect to cocaine base offenses.

For drug-trafficking crimes in general, a defendant’s base offense level depends on the type of drug and the amount attributable to the defendant. See U.S.S.G. § 2Dl.l(a)(5), (c) (2015). The Drug Quantity Table specifies particular base offense levels for quantity ranges of various drugs, with a maximum of 38 levels. Id. § 2Dl.l(c).

The Sentencing Commission revised the Drug Quantity Table after Congress enacted the Fair Sentencing Act. To alleviate the severe sentencing disparity between crack and powder cocaine, the Act reduced the statutory penalties for cocaine base offenses. Fair Sentencing Act of 2010 § 2, Pub. L. No. 111-220, 124 Stat. 2372, 2372 (codified at 21 U.S.C. § 841 (2012)). Accordingly, Guidelines Amendments 750 and 782 lowered the base offense levels assigned to different amounts of cocaine base. The Commission made both amendments retroactive. See U.S.S.G. § lB1.10(d).

Amendment 750 increased the minimum quantity of cocaine base necessary to trigger the maximum base offense level from 4.5 to 8.4 kilograms. U.S.S.G. app. C, amend. 750 (effective Nov. 1, 2011). Amendment 782 again raised the requisite amount of cocaine base from 8.4 to 25.2 kilograms. U.S.S.G. supp. app. C, amend. 782 (effective Nov. 1, 2014).

For defendants responsible for at least 25.2 kilograms of cocaine base, Amendment 782 has np effect; the maximum base offense level (38 levels) still applies. Defendants accountable for more than 8.4 but less than 25.2 kilograms of the drug, however, will receive a base offense level of 36 levels.

II.

The appellant Spencer Peters was indicted, in 2Ó08 along with his brother Terrence Peters and their associate Clifford Noel. The two-count superseding indictment charged them with conspiring to distribute 50 grams or more of cocaine base (Count One) as well as conspiring to possess firearms in furtherance of a drug-trafficking offense (Count Two). The indictment alleged that these conspiracies lasted nearly a decade, beginning around January 2000 and ending around February 2008.

At trial, the government presented numerous witnesses, including former confederates, law enforcement officials, and individuals who purchased cocaine base from Peters and members of his organization. The evidence indicated that Peters was second only to his brother, Terrence, in the conspiracy’s multilayer hierarchy and led the group when Terrence was absent. Although-Peters was incarcerated for a period in 2003 and again from May 2005 onward, witnesses explained that Peters stayed in contact with members of the conspiracy while in prison and attempted to recruit a fellow inmate.

According to the government’s witnesses, members of the crack-distribution ring, including Peters, regularly traveled from Richmond, Virginia to New York to purchase cocaine hydrochloride, or “powder cocaine.” They usually bought one to two kilograms per trip. The group used two vehicles for these missions. Peters transported the drugs back to Richmond in his car, which was specially outfitted with hidden compartments. ' Terrence drove ahead in a separate vehicle to look out for police and warn his brother. Upon returning to Richmond, Terrence converted the powder cocaine into crack.

The group distributed crack through multiple channels, using a dedicated house as home base. Witnesses testified that the traffickers, including Peters, sold cocaine base to individual users and drug dealers, mostly for money but sometimes for firearms. One witness estimated that he had purchased a total of 1 to 1.5 kilograms of crack from the group. Peters also supplied his subordinates with cocaine base to sell on consignment. At one point, the conspirators began working in shifts, retailing crack 24/7 from their house and serving 40 to 50 customers on an average -day. The group later shifted to a wholesale model in which it primarily sold cocaine base to mid-level dealers.

The jury convicted Peters, his brother, and Noel in 2009. At sentencing, the government argued that “a highly conservative estimate of the attributable drug weight in this case exceeds 150 kilograms.” J.A. 596; At Terrence’s sentencing hearing, which directly preceded Spencer’s, the district court observed: “The Government’s estimate of 150 kilograms is not off the mark ... based on the evidence in the case of which there was ample amount and corroborated in every respect.” J.A. 630.

Under the Drug Quantity Table in effect when Peters was sentenced, defendants responsible for 4:5 or more kilograms of cocaine base received the maximum, 38-level base offense level. U.S.S.G. § 2Dl.l(c) (2008). Peters’s presentence investigation report (PSR) attributed at least 4.5 kilograms of crack to him. The PSR summarized the key facts supporting this finding:

Testimony showed that the members were bringing 1 to 2 kilograms of cocaine hydrochloride from New York to Richmond on a weekly basis. While there were time periods that no drugs were brought from New York due to members being jailed or out of town, the extended period of the conspiracy makes it clear that the total amount of cocaine base trafficked by the conspiracy members would be well in excess of 4.5 kilograms.

J.A. 756. The district court adopted the PSR.

The PSR also recommended that Peters receive a 2-level enhancement for- possessing a firearm and a 3-level enhancement as a manager or supervisor of a drug conspiracy involving at least five participants. At Peters’s sentencing hearing, the district court characterized Peters as the “acting CEO when the CEO was gone.” J.A. 644. The court noted that Peters “supervised the business [and] the subordinates” and “helped recruit new members to the organization.” Id.

Peters’s adjusted offense level of 43 and his criminal history category of I yielded an advisory Guidelines sentencing range of life in, prison.- Because of a prior drug offense, his statutory mandatory minimum sentence was 20 years.

Attuned to Peters’s individual role in the offense, the district court concluded that “[a] sentence of life imprisonment is greater than necessary to effectuate the goals set forth in Sec. 3553(a).” J.A. 787. The court varied downward and ultimately sentenced Peters to 480 months of imprisonment for Count, One and 240 months of imprisonment for Count Two, to run concurrently. This court upheld the conviction and sentence. United States v. Peters, 392 Fed.Appx. 161 (4th Cir. 2010).

In 2013, Peters filed his first motion for a sentence reduction under § 3582(c)(2). He argued that Amendment 750 lowered his sentencing range by raising the crack quantity threshold for the maximum base offense level to 8.4 kilograms. The district court denied Peters’s motion, stating: “The quantity of controlled substance in the offense of conviction renders the defendant ineligible for a sentence reduction, but, even if he were eligible, the Court would decline to [reduce his sentence] because ... the originally imposed sentence is appropriate.” J.A. 717-18. This court affirmed. United States v. Peters, 576 Fed. Appx. 209 (4th Cir. 2014).

In 2015, Peters again sought a sentence reduction under § 3582(c)(2), this time relying on Amendment 782. The Probation Office recommended-that the district court find Peters ineligible because Peters was responsible for more than 25.2 kilograms of cocaine base. As before, the district court denied the motion:

Having considered the defendant’s [motion], the Government’s response thereto and the reply, the record, the presen-tence report, the [recommendation of] the Probation Office and all other applicable requirements of law, it is hereby ORDERED that the defendant’s [motion] is denied because the quantity -of controlled substance in the offense .of conviction renders the defendant ineligible for a reduction of sentence under the retroactive crack amendment, Amendment 782.

J.A. 748. Because the district court found Peters ineligible at the first step of the § 3582(c)(2) inquiry, the court did not reach the discretionary second step.

This appeal followed.

III.

Peters’s eligibility for a sentence reduction turns, solely on whether he is responsible for at least 25.2 kilograms of cocaine base. If so, he still receives the maximum base offense level, and Amendment 782 does not alter his Guidelines sentencing range — thus precluding him from a sentence reduction under § 3582(c)(2).

Peters challenges the district court’s denial of his motion'' on two grounds. First, Peters asserts that the district court did not adequately explain why it found him ineligible. Second, he argues that any finding attributing 25.2 or more kilograms of cocaine base to him is clearly erroneous.

We review & district court’s decision to grant or deny a sentence-reduction motion under § 3582(c)(2) for abuse of discretion. Smalls, 720 F.3d at 195. We review the district court’s ruling as to the scope of its legal authority under § 3582(c)(2) de novo. United States v. Mann, 709 F.3d 301, 304 (4th Cir. 2013). Finally, we review factual determinations, including the attributable drug quantity, for clear error. Id.

A.

At the outset, we note that district courts may make additional findings on the drug quantities attributable to defendants in § 3582(c)(2) proceedings. Such findings must be supported by the record and consistent with earlier findings.

The eligibility inquiry contemplated by § 3582(c)(2) may .even require the court to supplement its findings in some circumstances. Section 3582(c)(2) instructs courts to determine whether a retroactive Guidelines amendment lowers a defendant’s sentencing range. For an- amendment to the Drug Quantity Table, this analysis hinges on whether the drug quantity attributable to the defendant exceeds or falls below the revised quantity threshold. This inquiry is straightforward where the sentencing court found the defendant responsible for a precise amount (such as “X kilograms”). But sentencing courts sometimes attribute a range'of quantities (such as “at least X kilograms”) to defendants. In these circumstances, a court deciding a § 3582(c)(2) motion may need to identify the attributable drug quantity with more precision to compare it against the new quantity threshold.

In United States v. Mann, we declined to address the question of whether district courts may supplement their findings on attributable drug quantities. Id. at 306. We noted, however, that “our sister circuits agree that additional findings lie within a sentencing court’s discretion.” Id. The Seventh Circuit, for example, held that

nothing prevents the court from making new findings that are supported by the record and not inconsistent with the findings made in the original sentencing determination. Indeed, new findings may be necessary where, as here, the retroactive amendment to the guidelines altered the relevant drug-quantity thresholds for determining the defendant’s base offense level.

United States v. Hall, 600 F.3d 872, 876 (7th Cir. 2010). The Eleventh Circuit also elaborated on the power of courts to make additional findings consistent with earlier ones: “[I]f a district court found during the original sentence proceeding that ‘at least X kilograms’ were attributable to the defendant, it may not find ... that ‘less than X kilograms’ were attributable; it may, however, find attributable X kilograms, or 2X kilograms, or 10X kilograms.” United States v. Hamilton, 715 F.3d 328, 340 (11th Cir. 2013).

Other courts of appeals have reached the same conclusion. See United States v. Wyche, 741 F.3d 1284, 1293 (D.C. Cir. 2014) (“If the original sentencing court failed to make a specific drug-quantity calculation, the resentencing court may have to make its own quantity finding in order to determine the defendant’s, guideline range.”); United States v. Battle, 706 F.3d 1313, 1319 (10th Cir. 2013) (“[A] district court may look to its previous findings ... to make supplemental calculations of drug quantity at resentencing if such calculations are necessary....”); United States v. Moore, 706 F.3d 926, 929 (8th Cir. 2013) (“[Section] lB1.10(b)(l) not only permits, but may. often require, district courts to make -findings necessary to resolve § 3582(c)(2) motions.”); United States v. Moore, 582 F.3d 641, 646 (6th Cir. 2009) (“We do not agree ... that the district court’s previous determination of ‘more than 1.5 kilograms’ means that it cannot also find more than 4.5 kilograms.”).

We now join our sister circuits in holding that a district court may make additional findings on the drug quantity attributable to a defendant. Such findings cannot contradict earlier ones and must be- supported by the record.

Here, the district court properly supplemented its earlier findings on the quantity of cocaine base attributable to Peters. The court initially attributed at least 4.5 kilograms of cocaine base to Peters. The court later found Peters ineligible for a sentence reduction based on Amendment 750, which benefited only defendants responsible for less than 8.4 kilograms of crack. Amendment 782 would lower Peters’s base offense level (and thus his sentencing range) only if he were accountable for less than 25.2 kilograms of cocaine base. It would have been impossible for the district court to determine Peters’s eligibility for. a reduction without supplementing its previous attribution of at least 8.4 kilograms of cocaine base.- In denying Peters’s motion on eligibility grounds, the court implicitly found him responsible for at least 25.2 kilograms of cocaine base. This finding was consistent with the earlier ones and, for the reasons that follow, was not clearly erroneous.

B.

The question of “whether a court ruling oh a § 3582(c)(2) motion must provide an individualized explanation is one of law that we consider de novo.” Smalls, 720 F.3d at 195. Peters argues that the district court did not adequately explain why he was ineligible. Specifically, Peters contends that the court erred by failing to make “specific findings of fact showing how it concluded that [he] [wa]s ineligible due to drug quantity,” Br. of Appellant at 8, and by failing to specify “the scopé' of the relevant conduct for which he can be held accountable,” id. at 21.

As a threshold matter, there can be no dispute that the district court found Peters ineligible because he was responsible for at least 25.2 kilograms of cocaine base. The court explained that “the quantity of controlled substance in the offense of conviction renders the defendant ineligible.” J.A. 748. Although the court did not expressly attribute 25.2 kilograms of cocaine base to Peters, his eligibility turned solely on whether he was responsible for at least that amount. See Br. of Appellant at 8. Contrary to Peters’s assertion, logic and common sense indicate the “basis [on which] the district court concluded that Mr. Peters was ineligible.” Reply Br. of Appellant at 6-7.

Moreover the “limited nature of § 3582(c)(2) proceedings,” Dillon, 560 U.S. at 827, 130 S.Ct. 2683, contrasted with plenary sentencing or resentencing proceedings, gives district courts more leeway in articulating reasons for granting or denying motions under § 3582(c)(2). In an ordinary sentencing proceeding, the district court “must place on the record an ‘individualized assessment’ based on the particular facts of the case before- it.” United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) (quoting Gall v. United States, 552 U.S. 38, 50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). The court must “adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.” Gall, 552 U.S. at 50, 128 S.Ct. 586.

For motions under § 3582(C)(2), however, “we presume a district court ... has considered the 18 U.S.C. § 3553(a) factors [under the discretionary step] and other pertinent matters before it.” Smalls, 720 F.3d at 195-96. As we explained in Legree, “[a] court need not engage in ritualistic incantation in order to establish its consideration of a legal issue. It is sufficient if ... the district court rules on issues that have been fully presented for determination. Consideration is implicit in the court’s ultimate ruling.” Legree, 205 F.3d at 728 (quoting United States v. Davis, 53 F.3d 638, 642 (4th Cir. 1995)). “[I]n the absence of evidence a court neglected to consider relevant factors,” we confirmed in Smalls, “the court does not err in failing to provide a full explanation for its § 3582(c)(2) decision.” Smalls, 720 F.3d at 196.

Like our precedents, the text of § 3582(c)(2) reflects the “fundamental differences between sentencing and sentence-modification proceedings.” Dillon, 560 U.S. at 830, 130 S.Ct. 2683. Section 3582(c)(2) directs courts to § 3553(a) but not § 3553(c), which requires courts to give reasons for imposing particular sentences “at the time of sentencing.” § 3553(c).

In short, Legree and Smalls control here. The defendants in those cases argued that the district courts erred by failing to “articulate on the record the precise reasons” for their conclusions. Legree, 205 F.3d at 727. So did the defendant in United States v. Stewart, 595 F.3d 197, 199 n.2 (4th Cir. 2010). But “[w]e held directly to the contrary” in Legree and Smalls, id., and we must do so here.

The district court’s order denying-Peters’s motion contained more detail than the ones we upheld in Legree and Smalls. The district court in Legree “provided no individualized explanation in support of its decision.” Smalls, 720 F.3d at 196. Its order stated: “[The] Amendment ... does not create a mandatory right to reduction of sentence for defendant. On consideration of the matter, this. court concludes that defendant’s sentence was correct and that no reduction is appropriate.” Order, United States v. Legree, No. 5:93-cr-92-PMD (D.S.C. Sept. 30, 1997). The defendant in Smalls unsuccessfully appealed the district court’s decision to grant a limited reduction. Smalls, 720 F.3d at 194-95. That court’s order declared, “In granting this motion, the court has considered the factors set forth in 18 U.S.C. § 3553(a).” Id. at 195 (quoting the district court),

Here the district court clarified that it denied Peters’s motion because he was ineligible. The court also noted the factual and legal sources on which it relied: “the defendant’s [motion], the Government’s response thereto and the reply, the record, the presentence report, the [recommendation of] the Probation Office and all other applicable requirements of law,” J.A. 748.

Peters argues that the presumption we endorsed in Legree and reiterated in Smalls applies only to the second, discretionary step of the § 3582(c)(2) inquiry. We can discern in Legree and Smalls no such limitation. These decisions were grounded in the nature of a § 3582(c)(2) proceeding, not in some supposed distinction between the first and second steps of the inquiry. See Smalls, 720 F.3d at 198.

Peters offers no evidence to rebut the presumption that the district court considered the relevant facts and legal principles. Where a full sentencing has been held and the defendants’ objections raised and entertained, there is simply no reason to replay the ground. Though it is. not required, it will often be the. case that the judge hearing the § 3582(c)(2) motion will have prior familiarity with the defendant and may even have conducted the original sentencing. See Smalls, 720 F.3d at 196; Legree, 205 F,3d at 729. Here, for example, the district court was “intimately] familiar[] with [Peters’s] case.” Legree, 205 F.3d at 729. The court oversaw the trial, the sentencing, and Peter’s prior motions under 28 U.S.C. § 2255 and § 3582(c)(2). It cannot be claimed that Peters was procedurally shortchanged or his motion decided by a court unfamiliar with the depth of his involvement in the conspiracy.

Of course, it is always permissible for district courts, in resolving motions under § 3582(c)(2), to offer whatever explanation they find fitting. A fuller explanation is generally preferable to an abbreviated one. But, under this court’s clear precedents, “[n]o greater specificity was required.” Id. at' 729 n.3.

G.

Finally, the district court’s finding that Peters was responsible for at least 25.2 kilograms of cocaine base was not clearly erroneous. See Mann, 709 F.3d at 304. Under Guidelines § 1B1.3, a defendant’s relevant conduct determines which base offense level applies when the Guidelines specify more than one. U.S.S;G. § lB1.3(a) (2015). Courts must assess relevant conduct on an individual basis. Id. For drug conspiracies, a defendant is accountable for

all quantities of contraband with which he was directly involved and ... all quantities of contraband that were involved in transactions carried out by other participants, if those transactions were within the scope of, and in furtherance of, the jointly undertaken criminal activity and were reasonably foreseeable in connection with that criminal activity.

§ 1B1.3 cmt. n.3(D) (describing how Guidelines § lB1.3(a)(l) applies to “offenses involving contraband (including controlled substances)”).

The district court did not commit clear error in finding Peters responsible for at least 25,2 kilograms of cocaine base under Guidelines § 1B1.3. Peters helped lead a criminal enterprise that manufactured and sold high volumes of crack for the better part of a decade. The district court’s finding was not a close call.

Peters received a 3-level enhancement for serving in the organization as his brother’s second-in-command. The record indicates that Peters was intimately familiar with the group’s business model and deeply involved in its day-to-day operations. He was responsible for transporting the cocaine hydrochloride from New York back to Richmond. Peters dispensed crack to his fellow coconspirators, or “what he called his soldiers,” J.A. 393, for them to sell on consignment. He sold crack himself. He also helped ensure the business’s security by procuring firearms. And while Terrence was incarcerated, Peters took up the mantle of leadership, making major decisions and managing the group’s affairs.

The PSR captured the full sweep of the conspiracy’s trafficking, which lasted from January 2000 to.February 2008: “Testimony showed that the members were bringing 1 to 2 kilograms of cocaine hydrochloride from New York to Richmond on a weekly basis.” J.A. 756. At Terrence’s sentencing hearing,- the district court noted that evidence of “the vastness of this operation” was “overwhelming.” J.A. 630. The court also observed that the government’s 150-kilogram estimate was. “not off the mark” given the “ample” evidence that was “corroborated in every respect.” Id.

Peters argues that he is not accountable for “any drug transactions” that occurred while he was incarcerated. Br. of Appellant at 24. But witnesses testified that while in prison, Peters kept in touch with members of the conspiracy and even arranged to bring a fellow inmate into the business.

In light of Peters’s leadership role in this high-volume crack-distribution conspiracy, it was hardly inappropriate for the district court to find Peters responsible for at least 25.2 kilograms of cocaine base. Even excluding the periods during which Peters was incarcerated, we still cannot say that the district court committed clear error. Under Guidelines § 1B1.3, Peters may be held accountable for the quantity of cocaine base “with which he was directly involved” ]51us the quantity involved in transactions carried out by his coconspira-tors that were “within the scope of, and in furtherance of’ his drug-trafficking scheme and were “reasonably foreseeable in connection with that criminal activity.” U.S.S.G. § 1B1.3 cmt. n.3(D); see id. § lBl,3(a)(l). Applying this standard, the district court’s finding that the total quantity of cocaine base attributable to Peters exceeded 25.2 kilograms did not approach clear error. The court’s conclusion that Peters was not eligible for a § 3582(c)(2) sentence reduction is accordingly affirmed.

AFFIRMED

GREGORY, Chief Judge,

dissenting:

I agree with the majority holding that a district court considering a motion under 18 U.S.C. § 3582(c)(2) may make additional findings on .the drug quantity attributable to. a defendant so long as the findings do not contradict earlier ones and are supported by the record. I disagree with the conclusion that the district court’s ruling that Peters is ineligible for a sentence reduction, without any individualized consideration of his relevant conduct, suffices as an additional drug quantity finding in this case.

Courts have a general duty to explain their reasoning. In the sentencing context, the court “should set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority.” United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (citations omitted). Citing Dillon v. United States, the majority highlights the “limited nature of § 3582(c)(2) proceedings” in comparison to ordinary sentencing proceedings. 560 U.S. 817, 825, 827, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010) (explaining that § 3582(c)(2) “does not authorize a sentencing or resentencing proceeding”). But nothing in Dillon suggests that we should abrogate .district courts’ general responsibility to provide some individualized legal reasoning.

Indeed, the rationale for requiring courts to explain their sentencing decisions applies equally to § 3582(c) proceedings. Explaining sentencing decisions “not only ‘allow[s] for meaningful appellate review’ but it also ‘promote[s] the perception of fair sentencing.’ ” Carter, 564 F.3d at 328 (citing Gall v. United States, 552 U.S. 38, 50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). This is especially true for sentence reductions made pursuant to a revised crack-cocaine ratio, which was enacted to correct structural flaws in the law, rather than to inure to the benefit of any single defendant. See, e.g., Kimbrough v. United States, 552 U.S. 85, 98, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (“[T]he severe sentences required by the [prior] 100-to-l ratio [we]re imposed ‘primarily upon black offenders.’ ”). Amendment 782 to the United States Sentencing Guidelines (“U.S.S.G.”) generally reduces by two levels the base offense levels assigned to the drug quantities described in U.S.S.G. § 2Dl.l(c) (U.S. Sentencing Comm’n Manual 2008). In cases where defendants seek redress from a flawed sentencing scheme, it would be even more valuable for the court to explain why that defendant was not eligible.

Nevertheless, the majority holds that district courts need not explain their reasoning with any particularity in sentencing modifications. Relying on this Court’s holdings in United States v. Degree, 205 F.3d 724 (4th Cir. 2000), and United States v. Smalls, 720 F.3d 193 (4th Cir. 2013), the majority presumes that the district court’s ruling that Peters is ineligible for a sentence reduction implicitly found that he was individually responsible for at least 25.2 kilograms of cocaine base. Unlike the case before us, Legree and Smalls involved challenges to the district courts’ consideration of the 18 U.S.C. § 3553(a) factors— the second, discretionary step of the § 3582(c)(2) inquiry.

The majority should be reluctant to apply such a broad presumption in eases where the defendant challenges the district court’s consideration of his eligibility for a sentence reduction — the first step of the inquiry. See Dillon, 560 U.S. at 826, 130 S.Ct. 2683 (“A court must first determine that a reduction is consistent with [U.S.S.G. § ] 1B1.10 before it may consider whether the authorized reduction is warranted ... according to the factors set forth in § 3553(a).’’). A judge is required to “explain his conclusion that an unusually lenient or an unusually harsh sentence is appropriate in a particular case with sufficient justifications.” Gall, 552 U.S. at 46, 128 S.Ct. 586. Even in cases challenging the district court’s consideration of the § 3553(a) factors, like in Legree and Smalls, we cautioned that “a talismanic recitation of the § 3553(a) factors without application to the defendant being sentenced does not demonstrate reasoned de-cisionmaking or provide an adequate basis for appellate review.” Carter, 564 F.3d at 329. (citing United States v. Stephens, 549 F.3d 459, 466-67 (6th Cir. 2008)). The same must undoubtedly be true in cases where the district court must evaluate the defendant’s eligibility for a reduction.

Determining a defendant’s eligibility requires the court to calculate the drug quantity attributable to the defendant, see U.S.S.G. § 2D1.1; U.S.S.G. App. C, Amend. 782 (effective Nov. 1, 2014), which includes the quantities associated with the defendant’s offense of conviction and any relevant conduct, United States v. Flores-Alvarado, 779 F.3d 250, 255-56 (4th Cir. 2015), as amended (Mar. 11, 2015). The drug amount is “the factual predicate necessary for sentencing.” United States v. Collins, 415 F.3d 304, 313 (4th Cir. 2005). In Collins, we held that a defendant found guilty of a drug conspiracy should receive an individualized sentence, where the dis-tnct court considers the distribution of the amount of drugs “attributable to him” as opposed to the amount distributed by the entire conspiracy. Id. at 312. It seems axiomatic that a court considering a § 3582(c)(2) motion — particularly in a case where there is an obvious need for additional drug-quantity fact finding — must provide some individualized' explanation demonstrating its consideration of the defendant’s relevant conduct. To hold that the district court made such an important factual determination by, simply finding Peters ineligible for the reduction cuts against courts’ embedded responsibility to explain their decisions. I would therefore vacate and remand with instructions to the district court to provide a fuller explanation of its drug-quantity calculation.

      . Our distinguished colleague in dissent does not discuss or dispute any of the above facts or explain what purpose a remand here could possibly serve.

       At the time Peters was sentenced, he received a base offense level of 38, which applied where the offense involved at least 4.S kilograms of' cocaine base. U.S.S.G. § 2D1.1(c)(1). Under Amendment 782, a base offense level of 38 applies where the offense involved at least 25.2 kilograms of cocaine base. Id.


author: DIAZ, Circuit Judge:

text:
    CATAWBA RIVERKEEPER FOUNDATION; Clean Air Carolina, Plaintiffs-Appellees, v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; Nicholas J. Tennyson, in his official capacity as Secretary of NCDOT, Defendants-Appellants, and Federal Highway Administration; John F. Sullivan, in his official capacity as Division Administrator of FHWA, Defendants.
    No. 15-2285
    United States Court of Appeals, Fourth Circuit.
    Argued: September 21, 2016
    Decided: December 13, 2016

      ARGUED: Scott Thomas Slusser, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,. North.Carolina, for Appellants. Kimberley . Hunter, SOUTHERN ENVIRONMENTAL LAW CENTER, Chapel Hill, North Carolina, for Appellees. ON BRIEF: Roy Cooper, Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellants. Ramona H. McGee, SOUTHERN ENVIRONMENTAL LAW CENTER, Chapel Hill, North Carolina, for Appellees.
    Before DUNCAN, KEENAN, and DIAZ, Circuit Judges.
   Vacated and remanded with instructions by published opinion. Judge DIAZ wrote the opinion, in which Judge DUNCAN and Judge KEENAN joined.

DIAZ, Circuit Judge:

This appeal involves the proposed construction of the Gaston East-West Connector, a 22-mile toll road in North Carolina spanning from southeast Gaston County to west Mecklenburg County with new crossings over the South Fork and Catawba Rivers. The Catawba Riverkeeper Foundation and Clean Air Carolina (collectively, the “Conservation Groups”) brought suit against the North Carolina Department of Transportation (“NCDOT”), the Federal Highway Administration, and officials representing those agencies, challenging the environmental analysis conducted for the Connector. The district court granted the Conservation Groups’ motion for summary judgment.

Before the district court ruled, the North Carolina General Assembly stripped the Connector of its funding and repealed the statute that expressly authorized its construction: And after the district court entered judgment, state and local authorities removed the Connector from the various planning models for such projects. At oral argument, NCDOT represented that the Connector is no longer viable. In light of these developments, we conclude that this appeal is moot and accordingly vacate the district court’s judgment.

I.

A.

Local planners in Gaston County, North Carolina first considered the need to construct a bypass to improve east-west mobility between Gaston County and Meck-lenburg County in the late 1980s. NCDOT began studying the project in 2001, meeting with other agencies and local authorities to assess the benefits of the project relative to alternatives such as mass transit or improvements to existing roadways. In coordination with . these officials, NCDOT determined that building a “new location freeway” more effectively addressed the goals of (1) “improving] east-west transportation mobility ... between Gastonia and- the Charlotte metropolitan area” and (2) “establish[ing] direct access between the rapidly growing area of southeast Gaston County and west Mecklenburg County.” J.A. 723.

As required by the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321, et seq., NCDOT and the Federal Highway Administration- (collectively, the “Agencies”) began assessing the environmental impact of the project. In the meantime, the North Carolina General Assembly designated the Connector a candidate project subject to the control of the North Carolina Turnpike Authority. N.C. Gen. Stat. § 136 — 89.183(a)(2)(b) (2006) (-repealed by 2013 N.C. Sess. Laws § 5.1). The General Assembly also gave the Turnpike Authority conditional power to propose additional projects not expressly authorized in the statute, provided they were “approved by the General Assembly prior to construction” and “shown in the current State Transportation Improvement Plan.” Id. § 136 — 89.183(a)(2) (2006).

In- April 2009, the Agencies published for public review and comment a draft Environmental Impact Statement for the Connector. The draft statement considered twelve alternative “new location” controlled-access toll roads, ranging from 21.4 to 23.7 miles in length, assessed each alternative’s capacity to meet the project’s needs, and compared each with a “no-build” baseline alternative. The Agencies also forecasted traffic demand and distribution in the geographic area through 2030, creating both a “build” forecast depicting how a network of transportation facilities would operate with projected future traffic volumes and a “no build” baseline forecast.

' To develop the traffic forecasts, the Agencies relied on data derived from socioeconomic forecasts prepared by area planning organizations that assumed construction of the Connector. The Agencies superimposed each alternative onto this set of socioeconomic projections and eliminated alternatives from further study on this basis. The draft Environmental Impact Statement also contained a qualitative Indirect and Cumulative Effects (“ICE”) report, describing the Connector’s estimated effects on growth and land use, wildlife habitat, and water resources in the geographic area.

In response to requests from environmental advocates and other agencies, the Agencies also published a quantitative ICE report that analyzed future land-use change. They first created a “build” forecast and then employed a “gravity model” to reallocate the growth effects to create the “no build” forecast baseline. The Agencies determined that construction of the Connector would result in 3,700 additional households and 300 fewer jobs in the study area when compared to the “no build” forecast.

The Agencies subsequently published a final Environmental Impact Statement, addressing public and other agency comments on the earlier draft statement and identifying the Connector as the preferred alternative. They estimated the Connector’s cost to be about $943 million, to be paid for by toll revenue bonds, an annual $35 million appropriation of “gap” funding from the North Carolina General Assembly, and other funding sources. In February 2012, the Federal Highway Administration issued a Record of Decision, identifying the Connector as the “environmentally preferable alternative ... because it represents the best overall balanced minimization of all impacts analyzed.” J.A. 3747.

B.

The Conservation Groups-participated in the NEPA process for the Connector, submitting comments ■ and attending public meetings to voice their concerns about the integrity of the environmental analysis conducted by the Agencies. Following our decision in North Carolina Wildlife Federation v. North Carolina Department of Transportation, 677 F.3d 596 (4th Cir. 2012), the Groups urged the Federal Highway Administration to rescind the Connector’s Record -of Decision and prepare a supplemental Environmental Impact Statement. The Federal Highway Administration declined to do so.

The Conservation Groups thereafter filed suit in the Western District of North Carolina pursuant to the Administrative Procedure Act, 5 U.S.C. ' § 701 et seq. (“APA”), seeking: (1) a declaratory judgment that the Agencies violated NEPA by conducting a deficient environmental analysis, (2) vacatur of the Record of Decision, and (3) injunctive relief. After the parties filed cross-motions for. summary judgment, the court transferred the case to the Eastern District of North Carolina.

While the motions were pending, the North Carolina General Assembly passed legislation requiring a data-driven prioritization process to score and rank proposed transportation projects based on a number of factors, including cost and congestion. N.C. Gen. Stat. § 136-189.11. The Connector received a low score under this hew funding formula, ranking below 1,200th place. The General Assembly subsequently repealed that portion of the statute giving the Turnpike Authority express power to build the Connector, 2013 N.C. Sess. Laws § 5.1, and rescinded the Connector’s earmarked $35 million annual funding. 2013 N.C. Sess. Laws § 4.8 (striking funding for the “Garden Parkway,” previously codified at N.C. Gen. Stat. § 136-176(b2)).

Given these developments, the district court directed the parties to brief whether the court retained subject matter jurisdiction and whether the Turnpike Authority still had the power to build the Connector. The parties urged the court to resolve the pending motions for summary judgment, arguing that the Turnpike Authority could still build the Connector as an unspecified project because it remained on the list of approved projects at both the state and local levels.

The court proceeded to the merits and granted the Conservation Groups’ motion for summary judgment, holding that the alternatives .analysis underlying the Connector “violated NEPA and the APA by using the same set of socioeconomic data that assumed construction of the [Connector] to assess the environmental impacts of the Build and No Build alternatives.” J.A, 324. The district court also agreed with the Conservation Groups that the Agencies failed to adequately assess and disclose the Connector’s environmental impacts, reasoning that:

[Defendants’ fundamental assumption that the [Connector] would have no effect on overall growth in the Metrolina region, unsupported by any evidence showing complete saturation of the region, and their use of the gravity model to reallocate assumed growth in the No Build condition constitute clear error and violates NEPA and the APA.,

J.A. 325. The court consequently vacated the Record of Decision for the Connector.

Following the district court’s ruling, the last domino fell for the Connector when it was removed from local and state transportation plans, which in turn meant that it was no longer eligible for federal funding. In short, the Connector no longer has the statutory authority or funding to proceed.

II.

NCDOT appeals the merits of the district court’s decision. But preliminarily, it also contends that the case is now moot, and therefore seeks vacatur of the district court’s order granting summary judgment to the Conservation Groups. Because we agree with NCDOT that developments subsequent to the district court’s ruling render the appeal moot; we do not address the 'merits of the district court’s ruling.

Article ID limits the jurisdiction of federal courts to cases and controversies. U.S. Const, art. Ill, § 2, cl.l. “The doctrine of mootness originates in Article Ill’s ‘case’ or ‘controversy’ language.” Incumaa v. Ozmint, 507 F.3d 281, 286 (4th Cir. 2007) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006)) (internal quotation marks omitted). Thus, “[t]o remain a justi-ciable controversy, a suit must remain alive throughout the course of litigation, to the moment of final appellate disposition.” Bahnmiller v. Derwinski, 923 F.2d 1085, 1088 (4th Cir. 1991) (internal quotation marks omitted).

, “[E]ven if a plaintiff has standing when he or she files a complaint, subsequent events can moot the claim.” Pashby v. Delia, 709 F.3d 307, 316 (4th Cir. 2013). “A case becomes moot, and thus deprives federal courts of subject matter jurisdiction, when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Id. (internal quotation marks omitted). In other words, a case is moot when “our resolution of an issue could nbt possibly have any practical effect on the outcome of the matter.” Norfolk S. Ry. Co. v. City of Alexandria, 608 F.3d 150, 161 (4th Cir. 2010).

NCDOT contends that this case became moot when local and state planners removed the Connector project from their respective transportation improvement plans, rendering the Connector “no longer eligible for federal funding or construction regardless of the merits of the NEPA issue on appeal.” Appellants’ Br. at 32-33. At oral argument, counsel for NCDOT represented that “the [Record of Decision] is really a nullity,” and further that “[t]his Project is defunct. It’s no longer moving forward.” See also Appellants’ Br. at 26 (“The Project ,,, is no longer viable”).

In turn, although the Conservation Groups concede that the Connector now lacks funding, they say that the case still presents a live controversy because the Record of Decision that approved the project has not been rescinded and could thus “be used to allow construction of the Connector at a later date.” Appellees’ Br. at 24. As they see, it, little more than shifting political priorities and- funding hinder NCDOT from using the Record of Decision to build the Connector on the basis of an allegedly flawed NEPA analysis. We do not agree.

As things now stand, the Connector faces multiple barriers to construction. To be built, it must overcome the poor ranking it received under the new funding formula enacted by the General Assembly, local and state planners must reincorpó-rate the Connector into the various local and state transportation improvement plans, and the state legislature must reallocate about $900 million to the project. Moreover, even if these events come to pass, clearing the Connector’s path to construction, we are not persuaded by the Groups’ assertion that NEPA’s implementing regulations allow the Agencies to conduct only a “superficial” and cursory reevaluation of the Connector’s Record of Decision. See 23 C.F.R. § 771.129(b) (requiring a written evaluation of the final Environmental Impact Statement if “major steps to advance the action ... have not occurred within three years after the approval of the final EIS”). Instead, the regulatory regime under which the Agencies operate renders the likelihood that NCDOT would proceed immediately' to construct the Connector pursuant to a now four-year-old Record of Decision exceedingly remote.

Under these circumstances, we decline the Conservation Groups’ request to issue “an opinion advising what the law would be upon a hypothetical state of facts.” Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975) (quoting North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971)). “[W]e may only decide cases that matter in the real world,” and as such, can offer no relief to the Conservation Groups because the Connector and its underlying NEPA analysis, deficient or not, pose only hypothetical and speculative harm. Norfolk, 608 F.3d at 161 (internal quotation marks omitted); see also Preiser, 422 U.S. at 402, 95 S.Ct. 2330 (a request for declaratory relief survives a mootness challenge where the facts “show that there is a substantial controversy, between parties having adverse legal'interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment”) (internal quotation marks omitted); Connecticut v. Massachusetts, 282 U.S. 660, 674, 51 S.Ct. 286, 75 L.Ed. 602 (1931) (An injunction “will not be granted against something merely feared as liable to occur at some indefinite time in the future.”).

In sum, given the remote possibility that the Connector could proceed pursuant to the allegedly deficient Record of Decision, and given NCDOT’s representations on appeal that the Connector is no longer viable, we cannot agree with the Conservation Groups that “[rjevival of the Connector is a real possibility.” Appellants’ Br. at 28. This case is moot.

III.

We turn now to whether we should vacate the district court’s judgment. The Conservation Groups contend that even if the case is moot, vacatur is improper because the circumstances that deprive us of subject matter jurisdiction are not the product of “happenstance,” but rather the direct result of NCDOT’s lobbying and decisions. In other words, the Groups argue that NCDOT contributed to the Connector’s demise, mooting this case. But as we explain, we do not think it proper to impute the actions of state legislators and local planners to NCDOT. Accordingly, we shall vacate the district court’s judgment.

A,

Our “customary practice when a case is rendered moot on appeal is to vacate the moot aspects of the lower court’s judgment,” Norfolk, 608 F.3d at 161. In such circumstances, the equitable remedy of va-catur “ ‘clears the path for future relitigation of the issues.between the parties.’” Alvarez v. Smith, 558 U.S. 87, 94, 130 S.Ct. 576, 175 L.Ed.2d 447 (2009) (quoting United States v. Munsingwear, 340 U.S. 36, 40, 71 S.Ct. 104, 95 L.Ed. 36 (1950)).

The Supreme Court, however, has recognized exceptions to this general practice in instances where mootness occurs through the voluntary action of the losing party, rather than through happenstance. See U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 29, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994) (“[Mjootness by reason of settlement does not justify vaca-tur of a judgment under review.”); Karcher v. May, 484 U.S. 72, 82-83, 108 S.Ct. 388, 98 L.Ed.2d 327 (1987) (vacatur inappropriate when losing party fails to pursue its appeal). Consistent with that precedent, we too have said that “ ‘vacatur normally is not appropriate ... when the losing party’s deliberate actions have rendered moot an otherwise live controversy.’” United States v. Springer, 715 F.3d 535, 541 (4th Cir. 2013) (quoting Remus Joint Venture v. McAnally, 116 F.3d 180, 185 (6th Cir. 1997)). “The rationale for this rule is that appellants should not be allowed to escape the preclusive effect of an adverse district court judgment simply by taking a unilateral action during the pendency of their appeal to moot the matter.” Id. at 542.

However, where “appellate review of the adverse ruling was prevented by ‘the vagaries of circumstance,’” vacatur remains available, “subject ... to considerations of the public interest.” Valero Terrestrial Corp. v. Paige, 211 F.3d 112, 117-18 (4th Cir. 2000) (quoting Bancorp, 513 U.S. at 25, 115 S.Ct. 386). Thus, when determining the propriety of vacatur in a moot appeal, our decision is “informed almost entirely, if not entirely, by the twin considerations of fault and public interest.” Id. at 118.

B.

The Conservation Groups contend that vacatur is inappropriate because NCDOT “contributed to the mootness of which they now complain,” by lobbying the General Assembly for the enactment of the new transportation funding statute and formally approving the Connector’s removal from the state’s transportation improvement program. Appellees’ Br. at 30. We do not agree.

We dispel first the Groups’ assertion that NCDOT’s support of transportation funding reform — characterized by the Groups as an “intentional intercession in the legislative process” — is sufficient to impute the actions of the General Assembly to NCDOT. Id. To the contrary, our precedent counsels against conflating the actions of a state executive entity with those of a state legislature. Valero, 211 F.3d at 115.

In Valero, the appellant corporation brought suit against various West Virginia executive agencies, challenging the constitutionality of certain provisions of the West Virginia Code pertaining to waste disposal and management regulation. Id. The district court declared the provisions constitutionally invalid and issued a permanent injunction prohibiting their enforcement. Id. Shortly after judgment was entered, the West Virginia Legislature revised the enjoined provisions, mooting the case and prompting the executive agencies to seek vacatur of the adverse decision. Id.

On appeal, we affirmed the district court’s vacatur of its decision, distinguishing explicitly between the actions of the state legislature in amending the statutory provisions at issue, thereby mooting the case, from the actions of the defendant state executive officials, holding that “defendant state executive officials are in a position akin to a party who finds its case mooted by ‘happenstance,’ rather than events within its control.” Id. at 121 (internal quotation marks omitted). As a result, we concluded that the principal consideration of “fault” counseled in favor of vaca-tur. Id.

Similarly, here, NCDOT, a state executive agency, is a separate entity from the North Carolina General Assembly. That NCDOT lobbied the General Assembly in support of the transportation funding reform does not alter this central distinction, nor does it warrant the conclusion that NCDOT “caused” the Connector’s demise. See Chem. Producers & Distribs. Ass’n v. Helliker, 463 F.3d 871, 879 (9th Cir. 2006) (“Lobbying Congress or a state legislature cannot be viewed as ‘causing’ subsequent legislation for purposes of the vacatur inquiry. Attributing the actions of a legislature to third parties rather than to the legislature itself is of dubious legitimacy....”).

In sum, to the extent that the enactment of transportation funding reform helped to render this case moot, we view it as the consequence of actions of the North Carolina General Assembly, not NCDOT. See Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1131 (10th Cir. 2010) (“[T]he acts of the legislature are not the acts of executive branch agencies, states, or private parties.”).

We turn next to the Groups’ assertion that vacatur is inappropriate because NCDOT intentionally mooted the case when it approved the removal of the Connector from the state’s transportation improvement program. Two points readily dispense with this argument: (1) planners at the local level retain discretion over which projects to include in their transportation improvement plans, 23 C.F.R. § 450.326(a), and (2) federal regulations require that an approved local transportation plan be included in the state’s transportation improvement program without change. See 23 C.F.R. § 450.218(b). As such, although NCDOT approved the Connector’s removal from its statewide plan, that result was a fait accompli following the local planning agency’s decision to reprove the Connector from its transportation plan. Put simply, NCDOT did not act voluntarily to moot this case.

C.

Finally, we consider the public interest. We have recognized that “there is a substantial public interest in judicial judgments.” Valero, 211 F.3d at 118. This is because “[j judicial precedents are presumptively correct and valuable to the legal community as a whole.” Id. (quoting Bancorp, 513 U.S. at 26, 115 S.Ct. 386). In Bancorp, the Supreme Court’s concern for the public interest led the Court to withhold the remedy of appellate vacatur from the losing party who had mooted the case through settlement, thereby “voluntarily forfeit[ing] his legal remedy by the ordinary processes of appeal or certiorari.” 513 U.S. at 25, 115 S.Ct. 386. The Court reasoned that employing the remedy of vaca-tur in that instance constituted “a refined form of collateral attack on the judgment” that would “disturb the orderly operation of the federal judicial system,” and therefore did not serve the public interest. Id. at 27, 115 S.Ct. 386.

This concern, however, did not prevent the Court in Bancorp from “standing] by” the proposition that “mootness by happenstance provides sufficient reason to vacate,” Id. at 23, 25 n.3, 115 S.Ct. 386 (citing Munsingwear, 340 U.S. at 40-41, 71 S.Ct. 104). We see no reason to depart from that general principle here. Because events beyond the parties’ control have mooted this appeal, leaving the district court’s decision undisturbed would not serve the public interest.

IV.

For the reasons given, we vacate the district court’s judgment and remand the case with instructions that the district court dismiss the action. See Mellen v. Bunting, 327 F.3d 355, 364 (4th Cir. 2003) (“If a claim becomes moot after the entry of a district court’s final judgment and prior to the- completion of appellate review, we generally vacate the judgment and remand for dismissal.”).

VACATED AND REMANDED WITH INSTRUCTIONS

      . The Connector is known locally as the Garden Parkway.

      . This assessment, which includes time for public notice and comment, ultimately leads to the preparation of a Record of Decision. The Record of Decision "identifies the Selected Alternative, presents the basis for the decision, identifies all the alternatives considered, specifies the ‘environmentally preferable alternative,’ and provides information on the adopted means to avoid, minimize, and compensate for environmental impacts.” J.A. 1480.

      . A gravity model produces quantified results that can serve as the basis for assessing land use change. The model "essentially holds that all other factors influencing development held constant, growth will shift towards areas with the greatest relative accessibility improvement as a result of the project.” J.A. 2350.

      . That case concerned the proposed construction of the Monroe Connector Bypass by the Agencies. 677 F.3d at 598. We concluded that the Agencies violated NEPA by failing to disclose to the public that the Bypass’s underlying NEPA analysis relied on socioeconomic data that assumed construction of the Bypass and by disseminating erroneous information about that assumption. Id. at 603. Although we did not decide whether NEPA permitted the Agencies to use data assuming .the construction of the Bypass when creating a “no build” baseline, we noted that “courts not infrequently find NEPA violations when an agency miscalculates the 'no build’ baseline or when the baseline assumes the existence of a proposed project.” Id.

      . The Court declined to grant injunctive relief, finding it unnecessary given its ruling,

      . The project remains on a 2040 horizon year plan prepared by local authorities, but it now takes the form of a 3,4-mile long bridge crossing facility,

      . Our sister circuits have also distinguished the actions of an executive entity from those of the legislature for purposes of the “voluntary action” presumption against vacatur. See, e.g., Khodara Envtl., Inc. v. Beckman, 237 F.3d 186, 195 (3d Cir. 2001) (vacating a lower court’s judgment as mooted by legislative amendment and rejecting the appellee's assertion that the appellant Federal Aviation Association "misuse[d] ... the legislative process” to encourage Congress to amend the challenged statute “to frustrate an unfavorable judgment”); Nat’l Black Police Ass’n v. District of Columbia, 108 F.3d 346, 353 (D.C. Cir. 1997) (presumption against vacatur "is Usually inapplicable when legislative action moots a case and the government seeks vacatur”).