author: BALDOCK, Circuit Judge. McKAY, Circuit Judge,

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Mark Anthony WIREMAN, Defendant-Appellant.
    No. 15-3291
    United States Court of Appeals, Tenth Circuit.
    Filed February 28, 2017

      Paige A. Nichols, Research & Writing Specialist (Melody Brannon, Federal Public Defender, with her on the briefs), Office of the Federal Public Defender, Topeka, Kansas, for Defendant-Appellant.
    Jason W. Hart, Assistant United States Attorney (Thomas E. Beall, Acting United States Attorney, with him on the brief), Office of the United States Attorney, District of Kansas, Wichita, Kansas, for Plaintiff-Appellee.
    Before TYMKOVICH, Chief Judge, McKAY, and BALDOCK, Circuit Judges.
   BALDOCK, Circuit Judge.

Reviewing whether a district court adequately explained a defendant’s sentence is more of an art than a science. This inquiry, which goes to the ultimate question whether the defendant’s sentence is procedurally reasonable, Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), compels us to ensure that the district court “considered the parties’ arguments” for different sentences — an obligation that “normally” requires the district court to “explain why [it] ... rejected” any “nonfrivolous” arguments — and that the district court “ha[d] a reasoned-basis for exercising [its] own legal decisionmaking authority,” Rita v. United States, 551 U.S. 338, 356-57, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). But the manner in which the district court must engage in this analysis is not static across all cases: “The appropriateness of brevity or length, conciseness or detail, when to write, what to say, depends upon circumstances. Sometimes a judicial opinion responds to every argument; sometimes it does not.” Rita, 551 U.S. at 356, 127 S.Ct. 2456.

But no matter how inherently fluid this area of law may be, we have held time and time again that a district court does not run astray of its duty to “consider[] the parties’ arguments” simply because it does not directly address those arguments head-on — assuming, that is, that the district court imposes a within-Guidelines sentence. Indeed, if the defendant’s sentence is within the applicable Guidelines range, the district court may satisfy its obligation to explain its reasons for rejecting the defendant’s arguments for a below-Guidelines sentence by “entertain[ing] [the defendant’s] ... arguments,” United States v. Ruiz-Terrazas, 477 F.3d 1196, 1202-03 & n.4 (10th Cir. 2007) (emphasis added), and then “somehow indicating] that [it] did not rest on the guidelines alone, but considered whether the guideline sentence actually conforms, in the circumstances, to the [18 U.S.C. § 3653(a) ] statutory factors,” United States v. Martinez-Barragan, 545 F.3d 894, 903 (10th Cir. 2008) (second alteration in original) (internal quotation marks omitted). Such a “functional rejection” of a defendant’s arguments — as opposed to an explicit rejection — is entirely proper. Martinez-Barragan, 545 F.3d at 903 (internal quotation marks omitted).

Nonetheless, Defendant Mark Anthony Wireman argues today that his sentence is procedurally unreasonable because the district court did not specifically address and reject his arguments for a downward variance from his within-Guidelines sentence. We must decide whether the particular argument he made to the district court— namely, that the Guideline under which he was sentenced was inherently flawed on policy grounds — warrants an exception to our long-held rule that the district court was not required to explicitly address and reject his arguments in such an instance. Exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we hold that it does not and affirm.

*

Defendant is a frequent sexual offender who, in this particular instance, pleaded guilty to five counts of distributing child pornography in violation of 18 U.S.C. § 2252(a)(2) and one count of possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). In short, and without going into graphic detail, Defendant emailed one of his friends several images of child pornography and discussed the images over the phone with this man for their mutual sexual gratification. Defendant also emailed this same friend non-pornographic images of children he personally knew and claimed in these emails — claims that he now contends were simply fantasies — that he had sexually abused these children.

Defendant’s prior sexual offenses had also involved children: at the time he pleaded guilty in this case, Defendant had already been convicted of five different sexually based crimes involving minors. In four of the five instances, Defendant actually had physical sexual contact with a minor. In the fifth instance he provided a minor with sexually explicit material. In light of this extensive criminal history, Defendant’s Presentence Investigation Report (PSR) indicated that he had a criminal history category of IV.

Section 2G2.2 of the United States Sentencing Guidelines (U.S.S.G.), the applicable sentencing provision for Defendant’s crimes, set the base offense level for Defendant’s sentence at 22. See U.S.S.G. § 2G2.2(a)(2). Further, five Specific Offense Characteristics under § 2G2.2 applied to Defendant and increased his offense level: (1) a 2-level increase because the material at issue involved prepubescent minors, see U.S.S.G. § 2G2.2(b)(2); (2) a 2-level increase because he generically distributed material involving the sexual exploitation of a minor, see U.S.S.G. § 2G2.2(b)(3)(F); (3) a 4-level increase because the material involved sadistic, masochistic, or violent depictions, see U.S.S.G. § 2G2.2(b)(4); (4) a 5-level increase because he engaged in a pattern of activity involving the sexual abuse or exploitation of a minor, see § 2G2.2(b)(5); and (5) a 2-level increase because he used a computer or interactive computer service to distribute the material, see § 2G2.2(b)(6). Thus, after factoring in a 3-level decrease for Defendant’s acceptance of responsibility, Defendant’s total offense level was 34. Coupled with his category IV criminal history, a total offense level of 34 corresponded to a guideline range of 210-262 months’ imprisonment.

As is relevant here, Defendant argued in a sentencing memorandum to the district court that he was entitled to a downward variance from the guideline range because § 2G2.2 is inherently flawed. He made three sub-arguments in support of this claim: first, that § 2G2.2(a)(2)’s base offense level of 22 is “harsher than necessary” under the 18 U.S.C. § 3553(a) sentencing factors; second, that courts should be hesitant to rely on § 2G2.2 because the Sentencing Commission did not depend on empirical data when drafting § 2G2.2; and third, that the Specific Offense Characteristics outlined in § 2G2.2 are utilized so often “that they apply in nearly every child-pornography case” and therefore fail to distinguish between various offenders. Defendant then argued in the memorandum that his individual circumstances— including a traumatizing childhood where he was repeatedly sexually abused by family members and the fact that in this instance he shared a relatively small amount of child pornography with only one of his friends — warranted a downward variance from this excessive guideline range.

At sentencing, the district court alluded to the memorandum but did not speak at length about it:

[Defendant’s.counsel] has filed, on behalf of [Defendant], a motion for downward variance and a sentencing memorandum, as well.
... Frankly, I’m struggling with a lot of the issues that have been raised in ... [Defendant’s counsel’s] memorandum on [Defendant’s] behalf.
They’re arguments that [Defendant’s counsel] has made before and that I anticipate he will keep making until they’re addressed in a meaningful way by an appellate court, and probably even after that, if he feels the appellate court still doesn’t have it right. All of that is to be admired and respected but it may not control at this point.

Beyond this instance, the district court never again mentioned the sentencing memorandum or Defendant’s arguments by name. But when finally sentencing Defendant, the district court stated the following:

[T]he really difficult part is trying to determine a sentence that’s sufficient but not greater than necessary, which essentially means the minimum acceptable sentence in this case to comply with the purposes of sentencing.
And, obviously, I am considering the sentencing guidelines, which promote uniformity in sentencing, to some extent, although I have to say in this particular area there’s not much in the way of uniformity and I think that courts are all over the map, as both [the government] and [Defendant’s counsel] have indicated, because, frankly, offenders are all over the map.... But we hope to find some thread of uniformity in sentencing and the guidelines help in that regard by weighing the basic nature of the offense, as well as aggravating and mitigating factors.

The district court also remarked that “everybody here has done quite an extraordinary job in presenting ... to me” all the relevant information pertaining to Defendant’s sentence.

The district court ultimately sentenced Defendant to concurrent terms of 240 months’ imprisonment on each of the six counts against him. In coming to this decision, the district court was particularly concerned with the personal nature of the non-pornographic images Defendant emailed to his friend as well as Defendant’s criminal history:

[Defendant’s counsel] has talked about the relatively few number of [child pornography] images that are involved, and • certainly that’s one factor, but there’s also far more personal images than a lot of what one simply downloads on the internet where there’s no personal connection to the people who are in these images. And I don’t think that the number of images that were involving or are involved here cuts in [Defendant’s] — or cuts to his benefit when the persons who are in the images are known in some way or another to the parties that are exchanging them.
As I say, I think that there is something that is — makes a person less culpable downloading a thousand images from some unknown person and sharing them with a friend, than uploading or sharing ten images of children that they know....
Second thing, and, again, this goes to the sentence, and it’s an important factor to me, is [Defendant’s] history....
...' [W]hile I don’t think warehousing people is an appropriate goal standing alone, I do think that there are some people that pose a danger to the people who are around them, and your conduct at least would indicate that you are one of those people.
I don’t know if you could sit there today and tell me in good conscience that if you walked out of here you would never commit this kind of an offense again, and even if you told me that, and even if you believed it yourself, I’m not sure that I could believe it just based on what information I have seen and reviewed over the years relating to these kinds of offenses.

After handing down its sentence, the district court concluded the proceedings by asking Defendant and his counsel if they had “anything further.” Defendant’s counsel stated that they did not.

In a powerful and well-written brief, Defendant now claims on appeal that his sentence is procedurally unreasonable because the district court did not adequately address his critiques of § 2G2.2. He therefore asks us to vacate his sentence and remand to the district court for resentenc-ing.

We first address our standard of review. Defendant asks us to apply de novo review because, by submitting his memorandum for a downward variance to the district court, he “did everything necessary to alert the district court to the need to address the policy grounds for [his] requested variance.” But contrary to his contention, Defendant did not do everything necessary. We have previously held that even if a district court is fully apprised of a defendant’s arguments for a below-Guidelines sentence, the defendant must still contemporaneously object in the district court to “the method by which the district court arrived at a sentence, including arguments that the sentencing court failed to explain adequately the sentence imposed,” if he or she hopes to avoid plain error review on appeal of any alleged procedural flaw. United States v. Romero, 491 F.3d 1173, 1176-77 (10th Cir. 2007) (emphasis added). Here, Defendant did not object to the district court’s alleged lack of explanation even though the district court explicitly asked him if he had “anything further.” Cf. United States v. Marquez, 833 F.3d 1217, 1220 n.1 (10th Cir. 2016) (holding that the district court provided the defendant with “a sufficient opportunity to register an objection” when it asked him whether he had “ ‘[ajnything else this morning’ to address” (alteration in original)). Thus, since we cannot deviate from our prior precedent and required standard of review “barring en banc reconsideration, a superseding contrary Supreme Court decision, or authorization of all currently active judges on the court,” United States v. Edward J., 224 F.3d 1216, 1220 (10th Cir. 2000), we must apply plain error review in our quest to determine whether the district court adequately explained its reasons for rejecting Defendant’s arguments for a downward .variance.. We will find plain error only when there is “(1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Marquez, 833 F.3d at 1221 (internal quotation marks omitted).

In evaluating the first prong of the plain error standard — whether the district court committed error — we again note that a district court must explain its reasons for rejecting a defendant’s nonfrivolous arguments for a more lenient sentence. Rita, 551 U.S. at 357, 127 S.Ct. 2456. And undoubtedly, Defendant’s critiques of § 2G2.2 were nonfrivolous. The Supreme Court has held in other contexts that district courts may vary from the Sentencing Guidelines “based on a policy disagreement with those Guidelines” and “not simply based on an individualized determination that they yield an excessive sentence in a particular case.” Spears v. United States, 555 U.S. 261, 264, 266-67, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009) (considering the sentencing disparities for crack and powder cocaine offenses under the Sentencing Guidelines and concluding that “district courts are entitled to vary from the crack-cocaine guidelines -in a mine-run case where there are no particular circumstances that would otherwise justify a variance from the Guidelines’ sentencing range” (internal quotation marks omitted)); see also Kimbrough v. United States, 552 U.S. 85, 110, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (same). Some of our sister circuits have extended this logic to child pornography offenses and § 2G2.2. See, e.g., United States v. Grober, 624 F.3d 592, 608-09 (3d Cir. 2010); United States v. Dorvee, 616 F.3d 174, 188 (2d Cir. 2010). We ourselves have even described arguments criticizing § 2G2.2 as “quite forceful,” United States v. Regan, 627 F.3d 1348, 1354 (10th Cir. 2010), and have specifically cautioned district courts to “carefully apply the child pornography distribution guideline and remain mindful that they possess broad discretion in fashioning sentences under ... § 2G2.2,” ' United States v. Grigsby, 749 F.3d 908, 911 (10th Cir. 2014).

But even though Defendant’s -critiques of § 2G2.2 were nonfrivolous, we again emphasize that the manner in which a district court must explain its reasons for rejecting a defendant’s arguments is not set in stone across all cases. Different standards govern depending on “how closely [the district court’s] own judgment about the appropriate sentence ... aligns with the judgment embodied in the Guidelines.” Ruiz-Terrazas, 477 F.3d at 1201. Indeed, whether a district court can functionally reject or instead must explicitly reject a defendant’s arguments pivots on whether it ultimately imposes a sentence that is within or outside of the applicable Guidelines range. See id.

Accordingly, when a district court has varied upwards from the Guidelines, our cases have generally required the district court to specifically address and reject the arguments the defendant made for a more lenient sentence. For example, we held in United States v. Pinson, 542 F.3d 822 (10th Cir. 2008), that the district court, in a context where it imposed an upward-variant sentence, “must also address, in its statement of reasons, the material, non-frivolous arguments made by the defendant.” Id. at 833 (emphasis added). Likewise, we held in United States v. Lente, 647 F.3d 1021 (10th Cir. 2011), that “[flor us to conduct meaningful appellate review of the district court’s significant upward-variant sentence, the district court must expressly ... address [the defendant’s] argument that her sentence would create unwarranted sentencing disparities.” Id. at 1035 (emphasis added) (internal quotation marks omitted); cf. 18 U.S.C. § 3553(c)(2) (requiring the district court to state “the specific reason for the imposition of a sentence” when it imposes a sentence outside of the Guidelines range (emphasis added)).

But when the district court has imposed a sentence within the Guidelines, our cases have noted that the district court need not specifically address and reject each of the defendant’s arguments for leniency so long as the court “somehow indicate[s] that [it] did not rest on the guidelines alone, but considered whether the guideline sentence actually conforms, in the circumstances, to the [18 U.S.C. § 3553(a) ] statutory factors.” Martinez-Barragan, 545 F.3d at 903 (second alteration in original) (internal quotation marks omitted); see also id. (noting that when a district court imposes a within-Guidelines sentence, “[t]he court must provide only a general statement of its reasons and need not explicitly ... respond to every argument for leniency that it rejects in arriving at a reasonable sentence” (emphasis added) (citations and internal quotation marks omitted)). For instance, in United States v. Ruiz-Terrazas, 477 F.3d 1196 (10th Cir. 2007), we ruled that the district court was not required to “specifically address [the] defendant’s arguments” for leniency before rendering a within-Guidelines sentence, because it had “entertained [the defendant’s] ... arguments at length; indicated on the record that it had considered the Section 3553(a) factors; and proceeded to explain its reliance on the range suggested by the sentencing Guidelines.” Id, at 1202-03 & n.4 (emphases added). And in United States v. Jarrillo-Luna, 478 F.3d 1226 (10th Cir. 2007), we held that the district court did not err in failing to explicitly address the defendant’s arguments for a below-Guidelines sentence because (1) the district court adequately explained its reasons for the within-Guidelines sentence and (2) “a district court’s duty to explain why it chose the given sentence does not also require it to explain why it decided against a different sentence.” Id. at 1230 (emphasis added), overruled on other grounds by United States v. Lopez-Macias, 661 F.3d 485, 491 (10th Cir. 2011); cf. 18 U.S.C. § 3553(c) (requiring the district court to provide only a general statement of “the reasons for its imposition of the particular sentence” when it imposes a sentence within the Guidelines, range); United States v. Sanchez-Juarez, 446 F.3d 1109, 1115-18 (10th Cir. 2006) (vacating and remanding for resentencing because the district court “failed to consider [the defendant’s] argm ments” and because “[t]he record indicate[d] that at no time during the sentencing hearing or when imposing the sentence did the district court refer to the § 3553(a) factors” or otherwise “state[ ] ... reasons for the sentence it imposed”).

We are not persuaded that the principle we nóte above — that a district court need not specifically address and instead may functionally reject a defendant’s arguments for leniency when it sentences him within the Guidelines range— should differ just because the defendant critiques the applicable Guideline itself on policy grounds, as Defendant does in the case before us today. In our circuit, “a within-guideline-range sentence that the district court properly calculated ... is entitled to a rebuttable presumption of reasonableness” on appeal, Grigsby, 749 F.3d at 909, and this presumption of reasonableness holds true even if the Guideline at issue arguably contains “serious flaws” or otherwise “lack[s] an empirical basis,” United States v. Nghiem, 432 Fed.Appx. 753, 757 (10th Cir. 2011) (unpublished). In fact, we even held in a recent case that “we apply the presumption of reasonableness to sentences based on 2G2.2, regardless of its alleged lack of empirical support.” United States v. Franklin, 785 F.3d 1365, 1370 (10th Cir. 2015). We would be disregarding the spirit of this appellate presumption if we were to require the district court to defend § 2G2.2 or any other Guideline that leads to such a presumptively reasonable sentence. Even more, although a district court “does not enjoy the benefit” of that same presumption of reasonableness when fashioning a sentence, Rita, 551 U.S. at 351, 127 S.Ct. 2456, it may still conclude “in its individualized judgment” that any given Guideline is reasonable and should be given “considerable weight,” United States v. Zamora-Solorzano, 528 F.3d 1247, 1250-51 (10th Cir. 2008). And in making that conclusion, we have never held that the district court must explain away or otherwise justify any perceived deficiencies that particular Guideline may have. See Nghiem, 432 Fed.Appx. at 757 (“[A] district court is not required to engage in ‘independent analysis’ of the empirical justifications and deliberative undertakings that led to a particular Guideline.” (internal quotation marks omitted)). Indeed, both our appellate presumption of reasonableness for within-Guidelines sentences and the district court’s ability to choose to rely on a Guideline without excusing its faults stem from the basic premise that “Guidelines levels can properly follow Congressional policy regarding the severity of punishment appropriate for particular offenses” even if that policy was “not ... founded on scientific data.” Id. (citing United States v. Alvarez-Bernabe, 626 F.3d 1161, 1165-66 (10th Cir. 2010)); see also Grigsby, 749 F.3d at 911 (“[T]his does not mean a within-guideline-range sentence based on a guideline lacking an empirical basis is necessarily unreasonable, and none of our sister circuits have ever so held.” (emphasis added)).

Defendant argues against this conclusion by directing us to United States v. Morrison, 771 F.3d 687 (10th Cir. 2014), another case where we determined whether a district court had adequately explained why it rejected a defendant’s request for a downward variance based on his critiques of § 2G2.2. Id. at 691. Specifically, the defendant had argued for a below-Guidelines sentence because he believed the 2-level use-of-a-computer enhancement under § 2G2.2 was unsound. Id. The district court denied the motion, explaining that “there is a growing idea, but I don’t think it has morphed into a consensus yet. And I don’t think the particular adjustment for use of a computer is so disparate, so overly penal that I feel like it is something that needs judicial check, yet.” Id. (internal quotation marks omitted). The district court further explained that “it was denying the variance because of a ‘combination of factors’ and because ‘use of the computer does facilitate distribution and the ability to have so many photographs or images.’” Id. On appeal, we rejected the defendant’s argument that his sentence was procedurally unreasonable, because (1) “[t]he court considered [the defendant’s] policy objections at sentencing, and although brief, the court gave a sufficient explanation for rejecting them,” and (2) “the court offered a thorough explanation for why it believed the [defendant’s within-Guidelines] sentence was reasonable in light of all of the objectives set forth in 18 U.S.C. § 3553(a).” Id. at 693.

Defendant notes that “[t]he district court in Morrison explicitly considered counsel’s critique of the use-of-a-computer enhancement and explicitly explained that it disagreed with that critique and thought the enhancement fairly measured culpable conduct.” He consequently argues that “Morrison demonstrates how a district court should handle a guideline critique (address it head-on)” and that the case “supports resentencing in [his] case.”

We agree with Defendant that the district court in Morrison should be lauded for directly addressing and rejecting the defendant’s policy arguments for a downward variance. Even so, the fact that the district court in Morrison went above its call of duty does not mean that other district courts fall short of their duties when they do not directly address and reject defendants’ policy critiques of individual Guidelines. Indeed, although we labeled the Morrison district court’s explanations for rejecting the defendant’s critiques as “sufficient” and “brief,” ■ we did not intend to imply that anything less than what the district court did in that case — i.e., specifically address and reject the defendant’s critiques — was necessarily deficient. Even in light of Morrison, a district court still need not explicitly address a defendant’s arguments for a below-Guidelines sentence based on a policy critique of the Guidelines so long as (1) the ultimate sentence is within the applicable Guidelines range, and (2) “ ‘[c]ontext and the record make clear’ the district court’s reasoning for rejecting [the defendant’s] arguments.” United States v. Cereceres-Zavala, 499 F.3d 1211, 1217 (10th Cir. 2007) (quoting Rita, 551 U.S. at 359, 127 S.Ct. 2456).

We take this opportunity, however, to encourage district courts to go beyond the bare minimum. It never hurts (indeed, it can only help) for a district court to directly address and refuse a defendant’s arguments for leniency even if that is not required of it. “[A] more detailed sentencing explanation can often prove beneficial, even if it is not mandatory, helping to reduce confusion among the parties, facilitate and expedite judicial review, and provide guidance to practitioners and other defendants, enabling them to better predict the type of sentence that will be imposed in their cases.” Ruiz-Terrazas, 477 F.3d at 1202.

*

With all this in mind, we turn to whether the district court adequately explained why it rejected Defendant’s arguments for a downward variance based on his critiques of § 2G2.2. To start, there is no denying that, at the very least, the district court was aware of Defendant’s arguments for a downward variance, for the district court explicitly referenced Defendant’s sentencing memorandum at the beginning of the sentencing hearing (i.e., “I’m struggling with a lot of the issues that have been raised in” Defendant’s memorandum, “but it may not control at this point”). At the same time, there is also no denying that the district court never explicitly rejected Defendant’s arguments afterward.

But the district court did not have to explicitly reject Defendant’s arguments. The district court’s ultimate sentence of 240 months’ imprisonment was right in the middle of the suggested Guidelines range of 210-262 months’ imprisonment. As such, it needed only to “indicate that [it] did not rest on the guidelines alone, but considered whether the guideline sentence actually conforms, in the circumstances, to the [§ 3553(a) ] statutory factors.” Martinez-Barragan, 545 F.3d at 903.

And the district court did just that. For one thing, after entertaining the government’s arguments against Defendant’s sentencing memorandum and his corresponding policy critiques of § 2G2.2, the district court stated that it felt it should rely on the suggested Guidelines range “to some extent” even though “courts are all over the map” .with § 2G2.2 because it “hope[d] to find some thread of uniformity in sentencing and the guidelines help in that regard.” The district court also offered a detailed explanation in which it determined that Defendant’s extensive criminal history and the personal nature of the emailed images demanded it sentence Defendant to a long term of imprisonment. The court’s concerns about Defendant’s history and the personal nature of the images, coupled with its decision to rely on § 2G2.2’s suggested guideline range, thus acted as a functional rejection of Defendant’s policy disagreements with § 2G2.2. Indeed, we are satisfied that the district court had Defendant’s arguments in mind when sentencing him but ultimately felt that those arguments were unpersuasive and paled in comparison to Defendant’s conduct and criminal history. Consequently, the district court did not err by not explicitly responding to Defendant’s arguments for a more lenient sentence, and it was not required to defend § 2G2.2 or otherwise do or say anything more.

Because the district' court did not err, we need not reach the other three prongs of plain error review and conclude that Defendant’s sentence is procedurally reasonable. And because Defendant does not otherwise challenge that his prison sen-ténce is substantively unreasonable, his sentence is therefore

AFFIRMED.

McKAY, Circuit Judge,

concurring in the judgment.

I concur in the judgment only. I agree with the majority’s well-reasoned opinion that plain-error review applies here and that Defendant cannot satisfy this standard. But I disagree that Defendant failed the first prong of plain-error review. I write separately because I believe the district court erred by failing to explain why it rejected Defendant’s nonfrivolous argument that U.S.S.G. § 2G2.2 reflects an unsound judgment.

On appeal, Defendant contends that his sentence is procedurally unreasonable because the district court failed to address his critiques of § 2G2.2. “The [district] court, at the time of sentencing,” must “state in open court the reasons for its imposition of the particular sentence.” 18 U.S.C. § 3553(c). “[Flailing to adequately explain the chosen sentence” is a procedural error. United States v. Sanchez-Leon, 764 F.3d 1248, 1261 (10th Cir. 2014). What counts as adequate “depends upon circumstances.” Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). Sometimes the sentencing court “responds to every argument; sometimes it does not.” Id. But a district court must “set forth enough to satisfy the appellate court that [it] has considered the parties’ arguments.” Id.

When a district court imposes a within-Guidelines senténce, as it did here, “doing so will not necessarily require lengthy explanation.” Id. In such cases, the “court must provide only a general statement of its reasons.” United States v. Martinez-Barragan, 545 F.3d 894, 903 (10th Cir. 2008). It “normally need say no more.” Rita, 551 U.S. at 357, 127 S.Ct. 2456. “Unless,” that is, “a party contests the Guidelines sentence generally under § 3553(a),” i.e. “argues that the Guidelines reflect an unsound judgment.” Id. Then the sentencing judge should “go further and explain why he has rejected those arguments.” Id. This is precisely the kind of argument Defendant made here — that § 2G2.2 reflects an unsound judgment.

“Part of the sentencing judge’s obligation under 3553(c) is to respond to a defendant’s ‘nonfrivolous reasons for imposing a different sentence.’ ” United States v. Mack, 841 F.3d 514, 523 (D.C. Cir. 2016) (quoting Rita, 551 U.S. at 357, 127 S.Ct. 2456). As the majority recognizes, “undoubtedly, Defendant’s critiques of § 2G2.2 were nonfrivolous.” (Maj. Op. at 962.) This is not “a situation where a judge failed to address an argument that was so weak as .not to merit discussion.” United States v. Poulin, 745 F.3d 796, 801 (7th Cir. 2014) (internal quotation marks omitted). Indeed, we have characterized such arguments against § 2G2.2 as “quite forceful.” United States v. Regan, 627 F.3d 1348, 1354 (10th Cir. 2010). And district courts have been cautioned to “carefully apply” § 2G2.2. See United States v. Grigsby, 749 F.3d 908, 911 (10th Cir. 2014).

Yet, the district court did not respond to Defendant’s arguments that § 2G2.2 reflects an unsound judgment. Though the court said its sentence was based on Defendant’s criminal history and the nature of the offense, this does not explain why the district court rejected Defendant’s policy argument. The district court also mentioned one policy critique of § 2G.2.2— noting “there’s not much in the way of uniformity” (R. Yol. Ill at 41) — but this was not an argument raised by Defendant. In fact, Defendant argued precisely the opposite — that § 2G2.2 sentences are too similar.

It is true, as the majority points out, that a district court does not need to “respond to every argument for leniency that it rejects in arriving at a reasonable sentence.” Sanchez-Leon, 764 F.3d at 1266 (emphasis added). That is the rule for the mine run of cases. In the typical case, it makes perfect sense not to require the district court to address every, argument for leniency because there is practically no limit to the number of arguments a party could make regarding the “nature and circumstances of the offense” or the “history and characteristics of the defendant.” See 18 U.S.C. § 3553(a)(1). Every sentencing transcript would read like a Capote novel.

But policy critiques of the Guidelines are different and deserve more attention. See Rita, 551 U.S. at 357, 127 S.Ct. 2456. For starters, there are only so many nonfrivo-lous policy arguments that a party can make. Second, it is the difference between arguing about a starting point and an end point. The Guidelines anchor a sentencing: the district court sets the Guidelines range — the starting point — at the outset, and then the parties argue whether the facts and circumstances of the case call for a different endpoint. By contrast, challenging the Guidelines themselves is more like rejecting the starting point. If the applicable Guidelines do not reflect a sound judgment, it stands to reason that they should not anchor the sentencing. And because the anchoring effect of the Guidelines is so strong (as it was intended to be), a winning policy argument would have an outsized effect on the sentencing proceedings.

In my opinion, the majority has not required enough of the district court. Because Defendant presented' nonfrivolous arguments that the Guidelines reflect an unsound judgment, I believe the district court should have responded and more fully explained its decision. See Rita, 551 U.S. at 356-57, 127 S.Ct. 2456; see also Poulin, 745 F.3d at 801 (holding that the district court was “required to consider [a policy argument against § 2G2.2] and then provide reasons explaining his acceptance or rejection of it”). The district court did not do that. After obliquely referring to Defendant’s sentencing memorandum at the start of the proceeding, the sentencing judge never returned to the matter to explain his decision to reject Defendant’s policy arguments. All we know is that he did reject it. Accordingly, I believe the district court procedurally erred.

I also write separately to question the wisdom of applying the “reasonableness” presumption to within-Guidelines sentences “regardless of [a particular Guideline’s] alleged lack of empirical support.” United States v. Franklin, 785 F.3d 1365, 1370 (10th Cir.), cert. denied, — U.S. —136 S.Ct. 523, 193 L.Ed.2d 412 (2015). The majority correctly recognizes that this circuit presumes the substantive reasonableness of within-Guideline sentences “even if the Guideline at issue arguably contains serious flaws or otherwise lacks an empirical basis.” (Maj. Op. at 964 (internal quotation marks, brackets, and emphasis omitted).) This presumption is important for a number of reasons, not the least of which is that it lowers the bar for how much we will require a sentencing court to say.

The Supreme Court has upheld our appellate presumption-of-reasonableness standard of review “because ‘when the judge’s discretionary decision accords with the Commission’s view of the appropriate application of § 3553(a) in the mine run of cases, it is probable that the sentence is reasonable.’” United States v. McBride, 633 F.3d 1229, 1232-33 (10th Cir. 2011) (quoting Rita, 551 U.S. at 351, 127 S.Ct. 2456). The reasonableness presumption on appellate review “reflects the fact that, by the time an appeals court is considering a •within-Guidelines sentence on review, both the sentencing judge and the Sentencing Commission will have reached the same conclusion as to the proper sentence in the particular case.” Rita, 551 U.S. at 347, 127 S.Ct. 2456 (emphasis omitted). It is this “double determination” that “significantly increases the likelihood that the sentence is a reasonable one.” Id.

But § 2G2.2 “is fundamentally different from most [guideline provisions].” United States v. Dorvee, 616 F.3d 174, 184 (2d Cir. 2010). “Sentencing Guidelines are typically developed by the Sentencing Commission using an empirical approach based on data about past sentencing practices.” Id. When it comes to § 2G2.2, however, “the Commission did not use this empirical approach.” Id. “Instead, at the direction of Congress, the Sentencing Commission has amended the Guidelines under § 2G2.2 several times since their introduction in 1987, each time recommending harsher penalties.” Id. What’s more, even “[t]he Commission has often openly opposed these Congressionally directed changes.” Id. at 185; .see also Grigsby, 749 F.3d at 911 (noting that the Commission has “essentially endorsed the Second Circuit’s view of § 2G2.2”).

The reasonableness presumption also “reflects the nature of the Guidelines-writing task that Congress set for the Commission and the manner in which the Commission carried out that task.” Rita, 551 U.S. at 347, 127 S.Ct. 2456. “In instructing both the sentencing judge and the Commission what to do, Congress referred to the basic sentencing objectives that the statute sets forth in 18 U.S.C. § 3553(a).” Id. But, again, § 2G2.2 is “an eccentric Guideline of highly unusual provenance.” Dorvee, 616 F.3d at 188. The Commission did not carry out its Guidelines-writing task in accordance with § 3553(a)’s sentencing objectives. See id. at 187. Indeed, § 2G2.2 “is fundamentally incompatible with § 3553(a)”; because it “concentrates] all offenders at or near the statutory maximum, § 2G2.2 eviscerates the fundamental statutory requirement in § 3553(a).” Id.

When, as here, there is no “double determination” — when the sentencing judge and Sentencing Commission do not agree — when the Guidelines do not reflect § 3553(a)’s sentencing objectives — we should not presume the sentence’s reasonableness, even if it falls within the Guidelines. In such cases, I believe, we should require the district court to provide more of an explanation, not less. Cf. Rita, 551 U.S. at 357, 127 S.Ct. 2456 (recognizing that when a defendant “argues that the Guidelines reflect an unsound judgment, ... the judge will normally go further and explain why.he has rejected those arguments”). But that is not the rule in this circuit, see Franklin, 785 F.3d at 1370, and the majority faithfully adhered to this binding precedent, as we must.

*

Even though I believe the district court erred, I concur in the judgment because I believe that Defendant cannot overcome plain-error review. Because Defendant failed to object to the procedural error in the district court, we must review the sentence for plain error. This is a “demanding standard” that is “difficult to overcome.” United States v. Rosales-Miranda, 755 F.3d 1253, 1258 (10th Cir. 2014). Defendant “must demonstrate (1) an error, (2) that is plain, which means clear or obvious under current law, and (3) that affects substantial rights,” and the error must “seriously affect[] the fairness, integrity, or public reputation of judicial proceedings” in order for the court to grant discretionary relief. Id.

Here, Defendant has not established that the error affected his substantial rights. “An error seriously affects the defendant’s substantial rights, as those terms are used in the plain-error test, when the defendant demonstrates that there is a reasonable probability that, but for the error claimed, the result of the proceeding would have been different.” Id. (internal quotation marks omitted). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

On appeal, Defendant essentially rehashes his § 3553(a) arguments from below. He presents the bad with the good, and argues that “the district court’s express consideration” of his policy argument “would have tipped the balance toward a more lenient sentence.” (Appellant’s Op. Br. at 26.) But there is nothing in the record to suggest that the district court was reluctant to impose the sentence that it did. To the contrary, it imposed a middle-of-the-Guidelines sentence, and it discussed Defendant’s criminal history and the personal nature of some of the shared images. Defendant also argues that “the district court signaled in its Statement of Reasons that it would impose a different sentence in the event of a guideline error, by declining to check the box indicating that it would impose an identical sentence in that event.” (Id. at 27.) But, more accurately, this box, if checked, states that the court would impose an identical sentence “[i]n the event the guideline determination(s) made in this case are found to be incorrect.” (R. Vol. II at 48.) That is not what happened here — although I believe the district court erred by not addressing Defendant’s policy arguments, its “guideline determinations” as such were not incorrect.

Because I agree with the majority that Defendant cannot overcome plain-error review, I concur in the judgment.


source: Caselaw Access Project

author: McKAY, Circuit Judge.

license: Public Domain

text:
    Chetan PATEL, Plaintiff-Appellant, v. Roger HALL, in his official and individual capacities; Stacy Bubla, in her individual capacity; Robert Wilson, in his individual capacity; Shannon Armstrong, in his individual capacity; Brent Godfrey, in his individual capacity; Julie Faber, in her individual capacity; Steve Shay, in his individual capacity; John Frentheway, in his individual capacity, Defendants-Appellees.
    No. 15-8110
    United States Court of Appeals, Tenth Circuit.
    Filed March 1, 2017

      Philip E. Abromats (Letitia C. Abromats with him on the briefs) of Philip E. Abro-mats, P.C., Greybull, Wyoming, for Plaintiff-Appellant.
    Richard Rideout of the Law Offices of Richard Rideout, P.C., Cheyenne, Wyoming, for Defendant-Appellee Roger Hall in his official capacity.
    Jackson M. Engels, Senior Assistant Attorney General, Cheyenne, Wyoming, and Larry B. Jones of Burg, Simpson, El-dredge, Hersh & Jardine, P.C., Cody, Wyoming (Peter K. Michael, Wyoming Attorney General, and John D. Rossetti, Deputy Attorney General, Cheyenne, Wyoming, with them on the briefs), on behalf of Defendants-Appellees Roger Hall, Stacy Bubla, Robert Willson, Steve Shay, and John Frentheway in their individual capacities.
    Before BRISCOE, McKAY, and MATHESON, Circuit Judges.
   McKAY, Circuit Judge.

Plaintiff Chetan Patel appeals from the district court’s grant of summary judgment in favor of Defendants in this 42 U.S.C. § 1983 federal civil rights case, in which Plaintiff raised numerous claims against various police officers and other governmental officials involved in his arrest on charges of felony YIN fraud and the related search and seizure of his property in Basin, Wyoming.

I.

On the evening of April 20, 2011, the Basin Police Department in Big Horn County, Wyoming, received a phone call from Annette Austin asking for a police officer to come to her husband’s auto-repair business, which was located in a building her husband, Wade Austin, rented from and shared with Plaintiff. Officer Stacy Bubla responded to the call, later joined by Officer Roger Hall. The officers spoke with Wade and Annette Austin, as well as their son Kasey, who worked in the shop with his father.

Mr. Austin told the officers that he had noticed earlier in the day that the Vehicle Identification Number (VIN) plate was missing from the cab of a truck he was repairing for Plaintiff and that, after he asked Plaintiff about the missing VIN plate and then left the shop for several hours, he discovered on his return that the cab now contained a VIN plate taken from a different cab. Mr. Austin also told the officers that a second truck belonging to Plaintiff was missing a VIN plate and that Plaintiff had made comments about how easy it is to change the VIN on a vehicle. He further reported that Plaintiff had told him, when asked about the missing VIN plate, “that he talks too much and that it will get him into trouble,” and “that when he talked to people to only tell them very little or to lie to them.” (Appellant’s App. at 230.)

After speaking with the Austins, the officers contacted John Frentheway, an attorney at the County Attorney’s office. They asked Mr. Frentheway whether they could permit the Austins to remove their belongings from the premises and whether they should seal the building pending a search warrant. Mr. Frentheway answered yes to both inquiries. The officers photographed the trucks with missing or replaced VIN plates, which Mr. Austin had pointed out to them, and tagged all of the vehicles in the shop. The officers then locked and sealed the shop with police tape before leaving.

The next morning, all three Austins submitted written statements to the police and swore to their truthfulness in front of a notary. All three statements included much of the same information that the officers recorded in their police reports. They also included the additional facts that Mr. Austin worked on vehicles belonging to Plaintiff in exchange for rent and that Plaintiff had asked Ms. Austin to get a bond (presumably a notary bond) so she could sell his vehicles. Mr. Austin and his son, Kasey, further reported that Plaintiff had started telling them two weeks previously that they needed to move the vehicles off the premises to the town of Wor-land “because they were starting to draw the state[’]s attention” (id. at 224) and that they needed to stop working on customers’ vehicles until they had first repaired all of Plaintiffs cars.

On the same morning the Austins submitted their written witness statements to the police, Officer Hall drafted an affidavit for a search warrant, in which he summarized the Austins’ witness statements and his own observations from his visit to the shop on the previous night. However, all of the judges in Big Horn County were attending meetings in different parts of the state on that date, so Officer Hall was unable to immediately obtain a search warrant. Concerned that Plaintiff might remove evidence from the premises, he again contacted Mr. Frentheway and asked him whether there was probable cause to arrest Plaintiff. Based on the Austins’ sworn statements, Mr. Frentheway concluded there was sufficient probable cause to justify a warrantless arrest for felony VIN fraud. Officer Hall accordingly arrested Plaintiff on April 21.

The following day, a judge of the county court issued an arrest warrant for Plaintiff and a search warrant for the Basin property. Various law enforcement officers began searching the property on April 22. During their search of the property that morning, they discovered a razor blade, a syringe, and white powder on a table in the shop. After discovering these items, the officers left the building and obtained a new warrant to search for drugs and drug paraphernalia as well- as “VIN plates from the vehicles inside these buildings and on the property that have been removed and replaced with ones from other vehicles.” (Id. at 632.) The officers then resumed the search and continued searching until April 30, at which time they unsealed the building and returned the keys to Plaintiff. In addition to the suspected drugs and paraphernalia, they seized two loose VIN plates, the truck with the switched VIN plates, the driver’s door of the truck from which the switched VIN plate was taken, the truck with the missing VIN plates, a third truck, and an empty insurance envelope which they found laying on the shop floor near the first truck on which was written a claim number and an insurance agent’s contact information. They also photographed several documents — primarily vehicle titles and bills of sale — on which YIN numbers were written, and they inventoried many of the contents of the building in order to follow up on certain confidential informants’ tips about allegedly stolen merchandise.

Plaintiff was released from jail on April 22. In June, the county circuit court held a preliminary hearing and bound Plaintiff over to the state district court on charges of felony VIN fraud. These charges were dismissed without prejudice on October 4, 2011, and have not been re-filed against Plaintiff. All of the seized items were returned to Plaintiff in December 2011.

In April 2014, Plaintiff filed this § 1983 complaint, in which he raised fifteen federal claims and nine state law claims against various Defendants. Defendants filed separate motions for summary judgment, in which they mainly argued they were entitled to qualified immunity on the claims against them.

In his response to Defendants’ motions for summary judgment, Plaintiff relied in part on an affidavit purportedly signed by Wade Austin in 2014. To support the admission of this affidavit into evidence, Plaintiffs two attorneys each submitted affidavits stating they had met with Plaintiff and Wade Austin at a local restaurant in April 2014. At that meeting, Mr. Austin allegedly made several statements that differed from his original sworn police witness statement. For instance, he allegedly stated that it was his wife Annette, not himself, who invited the officers into the building, that the officers did not ask him for permission to enter or search his business, and that he never believed that any aspect of Plaintiffs business, including his actions regarding the VIN plates, was illegal. Plaintiffs counsel drafted an affidavit from her notes for Mr. Austin to sign and made corrections to the affidavit at his direction. The affidavit was then signed, notarized, and returned to counsel. In his 2015 deposition, Mr. Austin agreed he had met with Plaintiffs counsel at the restaurant and signed an affidavit typed by Plaintiffs counsel. However, he stated that the affidavit produced by Plaintiffs counsel in this litigation was not the affidavit he had read and signed before. “This is— somebody stuck my signature page on something that I didn’t write.... [Plaintiffs counsel] prepared it and brought it for me to proofread, but this is not the document that I proofread and had notarized.” (Id. at 1078.) In their affidavits, Plaintiffs counsel averred that the affidavit they submitted in this litigation was the same affidavit Wade Austin signed in 2014.

In granting summary judgment in favor of Defendants, the court refused to consider the purported Wade Austin affidavit produced by Plaintiffs counsel. The court also disregarded Plaintiffs attorneys’ affidavits based on its conclusion that relying on the attorneys’ affidavits would make them material witnesses to this case in violation of Rule 3.7 of the Wyoming Rules of Professional Conduct. The court then concluded that the purported Wade Austin affidavit should be disregarded both because it was irrelevant and because, without Plaintiffs counsel’s affidavits, there was no admissible evidence that it was in fact signed by Wade Austin.

On the merits, the court held that Plaintiff had not shown a constitutional violation relating to the search and seizure because the initial search of the property was allowed by Wade Austin’s consent, Officers Bubla and Hall had probable cause to seize the shop and its contents while they obtained a search warrant, the subsequent search of the property was conducted based on a properly issued search warrant supported by probable cause, and there was sufficient probable cause for Patel’s arrest. The court rejected Plaintiffs Claims that Defendants had exceeded the scope of the search warrant on the grounds that Plaintiff had not shown that the officers’ alleged ■ actions — taking photographs and inventorying items outside the scope of the warrant; looking in factory-sealed boxes; seizing three trucks, a truck door, and an envelope; and extending the search for eight days — violated clearly established law. The court rejected Plaintiff’s official-capacity claims against Officer Hall for two separate reasons, concluding that Officer Hall did not violate Plaintiffs constitutional rights and that there was no evidence he was an employee in a policymaking position. Finally, the court dismissed Plaintiffs state law claims with prejudice based on both Plaintiffs apparent failure to comply with the provisions of the Wyoming Governmental Claims Act as well as the state defense of qualified immunity.

Plaintiff appeals the district court’s entry of summary judgment on his federal claims and its dismissal with prejudice of his state law claims.

II.

We review the district court’s grant of summary judgment de novo, applying the same legal standards as the district court. Peterson v. Martinez, 707 F.3d 1197, 1207 (10th Cir. 2013). Under these standards, “[s]ummary judgment is proper if, viewing the evidence in the light most favorable to the non-moving party, there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Id. “The nonmoving party is entitled to all reasonable inferences from the record; but if the nonmovant bears the burden of persuasion on a claim at trial, summary judgment may be warranted if the movant points out a lack of evidence to support an essential element of that claim and the nonmovant cannot identify specific facts that would create a genuine issue.” Water Pik, Inc. v. Med-Sys., Inc., 726 F.3d 1136, 1143-44 (10th Cir. 2013).

We first consider the district court’s grant of summary judgment in fa-' vor of Officer Hall on Plaintiff’s official-capacity claim against him. An official-capacity claim against a municipal officer is the same as a suit against the municipality. Watson v. City of Kan. City, Kan., 857 F.2d 690, 695 (10th Cir. 1988). Such a claim requires evidence that the municipality “caused the harm through the execution of its own policy or customs or by those whose edicts or acts may fairly be said to represent official policy.” Meade v. Grubbs, 841 F.2d 1512, 1529 (10th Cir. 1988). Here, Plaintiff relies on the second way of establishing municipal liability: he does not argue his alleged harm was caused by municipal policies or customs, but instead argues he was directly harmed by Officer Hall’s actions relating to the search and seizure, contending that these actions “may fairly be said to represent” the official policy of the Town of Basin given Officer Hall’s position in the police department.

Notably, at the time of the events in question, Basin had no chief of police, since the person chosen to be the new chief had not yet been sworn into office. Officer Hall was apparently the senior officer in the police department, and the mayor told him that he “was in charge of getting things done for the police department until the new chief was in. place.” (Appellant’s App. at 651.) Officer Hall was also described in some depositions and police reports as the acting police chief for this time, period, although Defendants dispute this characterization and point to other evidence that Officer Hall did not consider himself to be the acting chief of police, but simply the “officer in charge.” (Id. at 1172.) Plaintiff does not cite to any other evidence about the nature of Officer Hall’s position in the police department or the authority he had during the interim time period before the new chief was sworn into office.

To decide whether a government employee is a final policymaker whose actions can give rise to municipal liability, we ask (1) whether the employee is meaningfully constrained by policies not of his own making; (2) whether his decisions are final, i.e., not subject to any meaningful review; and (3) whether the policy decisions and actions at issue in this case fall within the realm of his grant of authority. Randle v. City of Aurora, 69 F.3d 441, 448 (10th Cir. 1995). In his opening brief, Plaintiff argues that a jury could find this test to be satisfied because Officer Hall was “in charge” of the police department and his actions fell within his grant of authority as the head of law enforcement efforts in the Town of Basin. In response, Defendants argue that it is Plaintiffs burden to establish every element of his claim against the Town, and his failure to present any evidence on the first and second elements of the municipal-liability test mandates summary judgment in favor of Officer Hall.

In his reply brief, Plaintiff states that it is “impossible to tell from [state and local ordinances] whether someone is an acting police chief or policymaker” for the Town of Basin. (Appellant’s Reply Br. at 26.) Indeed, he effectively concedes that he cannot satisfy all of the elements of the municipal-liability test, given that “there is no paper trail or dispositive legal authority” to indicate whether or not Officer Hall — the officer “in charge” of a tiny police department in a town of 1,185 people— was meaningfully constrained by policies not of his own making, whether or not his decisions were final or were instead subject to meaningful review, and whether or not his actions fell within the realm of his grant of authority. (Id. at 27.) Plaintiff argues, however, that he should not be required to satisfy all of these elements, given that such information is in Defendants’ hands and is undiscoverable by him. He argues that we should adopt a McDonnell Douglas-style burden-shifting analysis to evaluate municipal-liability claims in this type of situation, allowing a jury to infer that the senior officer in the.police department of a small town has final policymak-ing authority unless the municipality presents evidence to rebut this inference. Cf. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (establishing a burden-shifting test for deciding whether a plaintiff in an employment discrimination case should survive summary judgment).

While we are sympathetic to Plain-. tiffs concerns about the difficulties of proving who is a final policymaker in a small town with an informally run government, we are not persuaded it would be appropriate or prudent for us to depart from our usual summary judgment and municipal-liability standards in this case, especially in light of the fact that Plaintiff did not even raise this argument until his reply brief. The evidence Plaintiff presented of Officer Hall’s position in the police department is both limited and ambiguous, and we are not persuaded that a jury could reasonably find Officer Hall to have final policymaking authority for the Town of Basin based simply on the facts that (1) he was placed temporarily “in charge” of the police department for the short period of time before the new chief took office and (2) he was described as the acting chief of police by some people. We therefore affirm the district court’s grant of summary judgment in favor of Officer Hall on Plaintiffs official-capacity claims.

We turn next to Plaintiffs federal claims against Defendants in their individual capacities. Plaintiff claims his rights were violated through (1) the warrantless search of his property; (2) the warrantless seizure of his real and personal property; (3) his warrantless arrest; (4) arrest and search warrants unsupported by probable cause; and (5) a search exceeding the scope of the warrant.

Defendants assert qualified immunity as a defense to these claims, so the burden shifts to Plaintiff to establish both that the defendants violated a constitutional right and that the right was clearly established at the time of the violation. See Castillo v. Day, 790 F.3d 1013, 1019 (10th Cir. 2015) (citing Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). A right is clearly established if, at the time of the conduct, existing precedent has “placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011). Ordinarily this standard requires either that there is a Supreme Court or Tenth Circuit decision on point, or that the “clearly established weight of authority from other courts [has] found the law to be as the plaintiff maintains.” Klen v. City of Loveland, 661 F.3d 498, 511 (10th Cir. 2011). A prior case need not have identical facts. Id. Rather, “[t]he pertinent question is ‘whether it would [have been] clear to a reasonable officer that his [or her] conduct was unlawful in the situation.’ ” Id. (quoting Bowling v. Rector, 584 F.3d 956, 964 (10th Cir. 2009)). “Put simply, qualified immunity protects ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Mullenix v. Luna, — U.S.—, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). We must not “define clearly established law at a high level of generality” because “[t]he dispositive question is ‘whether the viola-tive nature of particular conduct is clearly established.’ ” Id. (quoting al-Kidd, 563 U.S. at 742, 131 S.Ct. 2074).

First, Plaintiff argues that Officers Hall and Bubla violated his Fourth Amendment rights when they initially searched the shop without a warrant. We disagree because the search was conducted pursuant to consent. A search does not require a warrant or probable cause if it is conducted pursuant to consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United-States v. Romero, 749 F.3d 900, 905 (10th Cir. 2014). An officer may rely on a third party’s consent if that party has actual or apparent authority to consent. Romero, 749 F.3d at 905. An individual has actual authority if he or she has “(1) mutual use of the property by virtue of joint access, or (2) control for most purposes over it.” Id. (quoting United States v. Kimoana, 383 F.3d 1215, 1221 (10th Cir. 2004)). A party has apparent authority if “the officer relies on facts that turn out to be wrong or incomplete so long as the officer’s belief at the time of the search was reasonable.” Id. “Determination of consent to enter must be judged against an objective standard: would the facts available to the officer at the moment warrant a man of reasonable caution in the belief that the consenting party had authority over the premises?” Id. (quoting Illinois v. Rodriguez, 497 U.S. 177, 188, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) (brackets omitted)). “Non-verbal conduct, considered with other factors, can constitute voluntary consent to search.” United States v. Gordon, 173 F.3d 761, 766 (10th Cir. 1999).

The initial search of Plaintiff's shop was conducted pursuant to consent. Ms. Austin contacted the police and requested that an officer come to the shop. Mr. and Ms. Austin were both present, provided the officers information, and showed the officers around the shop. Plaintiffs arguments that Mr. Austin did not verbally invite the officers in and that Ms. Austin had no authority to consent are unavailing. As discussed, non-verbal conduct is sufficient to indicate consent. Showing the officers around the shop indicated Mr. Austin’s consent. Further, Ms. Austin had joint access to and control over the shop. The record indicates that Ms. Austin, at the request of Plaintiff, had obtained a bond in order to sell cars for Plaintiff. The record also shows that she would sometimes help Mr. Austin with his vehicle repair work. The fact that Ms. Austin’s name did not appear on the lease does not diminish her authority to consent to a search based on her access to and control over the shop. Thus, Ms. Austin had actual authority to consent to a search of the shop. At the very least, both Mr. and Ms. Austin had apparent authority to consent to the search. A police officer who is called to come to a business by the business owner’s spouse and then invited inside by the caller, in the presence of the owner of the business and with no objections made, is justified in acting upon the invitation without further inquiry. See Rodriguez, 497 U.S. at 188, 110 S.Ct. 2793.

Second, Plaintiff argues that Officers Hall and Bubla violated his Fourth Amendment rights when they sealed the building and some of his vehicles without a warrant or probable cause. We conclude Plaintiffs rights were not violated because the officers had probable cause to seal the shop. “[S]eeuring a dwelling, on the basis of probable cause, to prevent the destruction or removal of evidence while a search warrant is being sought is not itself an unreasonable seizure of either the dwelling or its contents.” Segura v. United States, 468 U.S. 796, 810, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984). Probable cause exists “when the facts and circumstances within the officers’ knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed” and that the person or property was involved in the crime. Cortez v. McCauley, 478 F.3d 1108, 1116 (10th Cir. 2007) (quoting United States v. Valenzuela, 365 F.3d 892, 896 (10th Cir. 2004)). “Probable cause is not a precise quantum of evidence.” Stonecipher v. Valles, 759 F.3d 1134, 1141 (10th Cir. 2014). Rather, the relevant question is whether there was a “substantial probability” — “something ‘more than a bare suspicion’ ” — that the person or property was involved in a crime. Id. (quoting Kerns v. Bader, 663 F.3d 1173, 1188 (10th Cir. 2011)).

There was probable cause to support the seizure of the shop. This seizure took place after the initial search of the shop, for which the Austins provided consent. Prior to that time, Ms. Austin had called the police department to report suspected criminal activity occurring on the premises. Mr. Austin had told the officers about the conversation he had with Plaintiff that morning in which Plaintiff told Mr. Austin that it was easy to change VIN plates, Mr. Austin informed Plaintiff that it was illegal to do so, and then Plaintiff told Mr. Austin that “no one would know if they didn’t tell them and that Wade talked too much, he just needed to keep his mouth shut.” (Appellant’s App. at 229.) The officers had also observed the vehicles in the shop with missing and reportedly switched VIN plates. Based on the initial phone call, the statements made by Mr. Austin, and the preliminary search of the building and certain vehicles, Bubla and Hall had probable cause to believe that VIN plates were being fraudulently altered on the premises and that the vehicles involved in the crime were present. Thus, they were justified in sealing the building and tagging some of the vehicles in order to preserve the evidence until a search warrant could be obtained and executed.

Third, Plaintiff argues that Hall violated his Fourth Amendment rights by arresting him without a warrant. The arrest took place without a warrant, but one was obtained the following day. We conclude that the arrest was valid because Hall had probable cause to believe that Patel was fraudulently altering VIN plates. The Fourth Amendment requires that an officer must have probable cause to initiate a search, arrest, and prosecution. Stonecipher, 759 F.3d at 1141. Probable cause exists if there is a “substantial probability” that the suspect committed the crime. Id. Officers are immune from any suit arising from an allegedly unlawful arrest if there was “arguable probable cause” to arrest the plaintiff. Id. Officers must “reasonably interview witnesses readily available at the scene, investigate basic evidence, or otherwise inquire if a crime has been committed at all before invoking the power of warrantless arrest and detention.” Cortez, 478 F.3d at 1117 (quoting Romero v. Fay, 45 F.3d 1472, 1476-77 (10th Cir. 1995)).

The information justifying the warrant-less seizure of the building and vehicles also supports Plaintiffs arrest. Plaintiff claims that Officer Hall did not adequately investigate or interview Plaintiff before making the arrest, but these allegations are not supported by the record. After the search and temporary seizure of the shop, Officer Hall obtained written statements from Wade, Annette, and Kasey Austin, all of which substantiated the statements they had made the day before. Officer Hall also met and spoke with Plaintiff personally. He explained to Plaintiff that the property had been tagged and sealed because VIN plates had been removed and/or replaced. During this conversation, Plaintiff stated that he knew about the switched VIN plates, but claimed that he had not worked on the vehicles himself. Officer Hall believed this statement to be false because he had previously observed Plaintiff working on vehicles in the shop. These statements, in addition to the facts discussed above, established probable cause to arrest Plaintiff for suspected fraudulent alteration of VIN plates.

Fourth, Plaintiff argues that the warrants to search his shop and for his arrest were defective because they were “procured with recklessly insufficient information.” (Appellant’s Opening Br. at 26 (capitalization standardized).) We disagree. An affiant seeking an arrest warrant may not knowingly or recklessly include false statements in an affidavit, or omit from it information which would vitiate probable cause. Puller v. Baca, 781 F.3d 1190, 1197 (10th Cir. 2015). If an affiant does so, “we measure probable cause by (1) removing any false information from the affidavit, (2) including any omitted material information, and then (3) inquiring whether the modified affidavit establishes probable cause for the warrant.” Id. An officer is not required to establish guilt beyond a reasonable doubt or to eliminate all other potential suspects before making an arrest, so long as there is a “substantial probability” that the suspect committed the crime. Plaintiff provides no support for his assertions that law enforcement cannot reasonably rely on witness testimony without first checking the witness’s criminal history, or that it is unreasonable to arrest someone whose criminal record includes only a municipal violation.

None of the information that Plaintiff claims was “critical” would vitiate probable cause, even if considered. Plaintiff claims that Officer Hall should have included information about the “business-related conflict” between Plaintiff and Mr. Austin: that two weeks prior to Mr. Austin’s reports to the police, Plaintiff had told Mr. Austin to stop working on other customers’ vehicles until Plaintiffs vehicles were completed. (Appellant’s Opening Br. at 30-32.) Plaintiff claims this “conflict” gave Mr. Austin “a strong motive to concoct a false story about [Plaintiff],” (id. at 31), but he offers no evidence to support this interpretation. The record, in fact, suggests that Plaintiffs-orders to work on his vehicles first further supports a finding of probable cause. Both Mr. Austin and his son Kasey informed Officer Hall that Plaintiff made this demand because he needed to move his vehicles to Worland in order to avoid the state’s attention. (Appellant’s App. at 222, 224.) These statements suggest that Plaintiff was seeking to hide illegal activity. Further, Plaintiffs demand that, the Austins finish his vehicles first was a common customer service issue that Mr. Austin encountered. In his deposition, Mr. Austin testified that Plaintiff was “not the first customer who’s told me that. I’ve had all kinds of customers, ‘Don’t you touch anything else until you fix mine.’ ... I’ve dealt with it before, and I just do it my way. I’m the one doing the work. I can do it'my way.” (Id. at 1110.) Plaintiffs orders to prioritize his vehicles would not lead a reasonable officer to believe that a “business-related conflict” existed such that Mr. Austin would feel compelled to lie about Plaintiffs actions. Accordingly, it was not necessary that such information be included in the application for a warrant.

Plaintiff also argues that Officers “Hall and Bubla appear to have been told more than they revealed in the affidavit” because they found the VIN plates quickly. (Appellant’s Opening Br. at 32-33). Plain-, tiff suggests that either the officers discovered the VIN plates unlawfully during the prior night’s allegedly unlawful search, or that Mr. Austin told the officers where the VIN plates were. (Id. at 33.) Because the prior search was lawful due to consent, this first argument is unavailing. Personal observation of contraband during a lawful search would bolster, not vitiate, probable cause. Further, even if Mr. Austin knew where the VIN plates were (a proposition the record does not support), such knowledge would not vitiate probable cause. Mr. Austin ran a business on the premises, and he allegedly observed Plaintiff engaging in suspicious activities relating to the VIN plates. Accordingly, it would not be surprising if Mr. Austin had known the location of some of the VIN plates involved. Plaintiff further argues that, if Mr. Austin had shown Officers Hall and Bubla where the VIN plates were during the initial search — again, a proposition that is wholly unsupported by the record — they would have seen the syringe and razor blade on the table. This information has no relevance to the question of whether probable cause existed to believe that Patel was altering VIN numbers on the premises and that some of the vehicles involved might still be on the premises. In fact, if Officers Hall and Bubla had observed the syringe and power during their initial lawful search, this observation would have established probable cause to search for drugs and drug paraphernalia in addition to fraudulently altered VIN plates. Accordingly, it was not. unlawful for this information to be omitted.

Fifth, Plaintiff argues that the officers exceeded the scope of the search warrant in three ways: (1) the police searched factory-sealed boxes of merchandise, which could not have contained YIN plates; (2) the police photographed title documents and other items not specifically listed in the search warrant; and (3) the police seized three trucks, a truck door, and an envelope found on the ground near one of these trucks, none of which were mentioned in the search warrant.

Plaintiffs first allegation is not supported by any record evidence, and thus there is no dispute of fact to support Plaintiffs claim on this allegation. Plaintiff concedes that the law is not clearly established on the question of whether photographing items not listed in the search warrant exceeds the scope of the warrant, and thus the officers are entitled to qualified immunity on this allegation. As for Plaintiffs third allegation, it is at least arguable that the officers exceeded the scope of the warrant by seizing the trucks and truck parts which evidenced VIN tampering, since the warrant technically only authorized the search for and seizure of the VIN plates themselves. However, particularly in light of the fact that removing the VIN plates from the vehicles in order to seize them separately would have destroyed much of their evidentiary value and created additional legal issues, we are not persuaded — and Plaintiff has certainly failed to show — that established precedents clearly put the officers on notice that they were violating constitutional law by assuming that the warrant permitted them to seize the vehicles as well as the VIN plates they contained. Cf. United States v. Hargus, 128 F.3d 1358, 1363 (10th Cir. 1997) (“Although we are given pause by the wholesale seizure of file cabinets and miscellaneous papers and property not specified in the search warrant, the officers’ conduct did not grossly exceed the scope of the warrant. Their conduct was motivated by the impracticability of on-site sorting and the time constraints of executing a daytime search warrant. The officers were authorized to seize ten broad categories of records, and those records were present in every drawer of both file cabinets .... Under these circumstances the officers did not grossly exceed the warrant in concluding they did not need to examine at the site every piece of paper in both cabinets.”).

Finally, regarding the seizure of the envelope, we hold that Plaintiff has met his burden of showing that the officers are not entitled to qualified immunity on this issue. When “a warrant clearly and precisely specifies items to be seized, and the officers executing the warrant seize additional items, those officers act unreasonably for Fourth Amendment purposes unless their conduct may be justified under an exception to the warrant requirement.” Bowling v. Rector, 584 F.3d 956, 971 (10th Cir. 2009). The warrant in this case authorized the seizure of VIN plates, illegal drugs, and drug paraphernalia. Although the officers were justified in searching the envelope to determine whether it contained any of the specified items, they have offered no exception that would allow them to then seize the envelope.

Next, Plaintiff argues that, although his complaint only raised two claims against Defendant Frentheway, other claims against him “should have been anticipated” from the claims Plaintiff made against other Defendants and from the evidence adduced, and he contends that the district court should have recognized and permitted him to proceed on these unraised claims. (Appellant’s Opening Br. at 44.) However, Plaintiff never sought to amend his complaint to include these additional claims against Defendant Frenthe-way, and “[wjhere a request for leave to amend was not presented to the trial court, there is nothing for the appellate court to review regarding amendment,” Snell v. Seidler, 2005-Ohio-6785 (Ohio Ct. App. 2005). The district court did not err in failing to sua sponte amend the complaint to include Defendant Frentheway in claims that Plaintiff did not raise against him.

We next consider Plaintiffs argument that the district court abused its discretion by disregarding the affidavit purportedly signed by Wade Austin in 2014. The district court disregarded this affidavit based in part on its conclusion that there was no admissible evidence as to its authenticity due to the court’s holding that Plaintiffs attorneys’ affidavits were inadmissible based on Wyoming’s professional conduct lawyer-as-witness rule. We note that at least one court has suggested it is improper to disregard evidence under the lawyer-as-witness rule, since this rule “does not speak to the admissibility of any particular statement [the attorney] made,” but rather “deals with whether he can ethically represent his client” at trial, and thus any concerns about the lawyer acting as a witness should be addressed through a motion to disqualify rather than the exclusion of evidence presented in pretrial proceedings. Burch-Lucich v. Lucich, 2013 WL 5876317, at *9 (D. Idaho Oct. 31, 2013) (interpreting an Idaho ethical rule virtually identical to the Wyoming rule at issue here). Moreover, Defendants cite to no pertinent authorities to support the district court’s decision to use this ethical rule to disregard Plaintiffs evidence. However, we need not resolve this question in this appeal because we conclude that, even if the facts in the purported Wade Austin affidavit are considered as part of the summary judgment analysis, they are insufficient to create a material dispute of fact defeating Defendants’ assertion of qualified immunity.

Plaintiff identifies the following statements in the purported Wade Austin affidavit as facts supporting his claims: (1) Annette Austin, not Wade Austin, invited the officers .to enter and search the business, and the officers did not ask Mr. Austin for consent; (2) Mr. Austin had no intention of abandoning, his shop, but Officer Hall told him they were seizing the property and he needed to take anything he wanted that night; (3) Officer Hall found a removed VIN plate, the syringe, and the white powder on the night of April 20; (4) Officer Hall told Mr. Austin the police had been investigating Plaintiff for three to four years and were looking for a reason to search the property; and (5) Ms. Austin wrote the statements for her husband and son as well as for herself; the police reviewed the statements and changed some of the content, and then they had Mr. Austin rewrite his statement in his own handwriting.’ We are not persuaded any of these alleged facts defeats Defendants’ assertion of qualified immunity.

First, as discussed, both Mr. and Ms. Austin had actual authority to consent to a search of the shop. Thus, Plaintiffs claim that Ms. Austin invited the officers into the shop is irrelevant to our conclusion that the search was conducted pursuant to consent.

Second, Plaintiff asserts that Mr. Austin’s alleged desire not to abandon the shop discredits his other statements that he wanted to pack up and leave the shop because he didn’t want to be involved in anything illegal. However, we are not persuaded that this fact has any relevance to the issues before us in this appeal — whether the officers violated Plaintiffs clearly established constitutional rights by searching the building, arresting Plaintiff, and seizing evidence — and thus our earlier analysis of these claims stands undisturbed.

Third, Plaintiff argues that the affidavit’s allegation that Officer Hall discovered the syringe and white powder along with the VIN plate before he obtained the first search warrant establishes a violation of the constitutional requirement for a warrant to particularly describe the things' to be seized. For support, he cites to a case in which the police used a single search warrant to seize contraband that was not within the scope .of the warrant, despite the officers’ earlier knowledge of this contraband’s existence. See Coolidge v. New Hampshire, 403 U.S. 443, 471, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). However, the police in this case obtained a second, expanded search warrant to search for drugs and drug paraphernalia, and thus we do not see how the search pursuant to this expanded warrant could have violated the particularity requirement, regardless of when Officer Hall saw the syringe and powder at the shop.

Fourth, Officer Hall’s previous investigation of Plaintiff and his subjective desire to search the building do not vitiate probable cause. Plaintiff argues that Officer Hall omitted material facts from his search warrant affidavit, and he argues that Officer Hall’s stated desire to find an excuse to search the property helps to establish that these omissions were made recklessly. However, as discussed above, we are not persuaded that any of these omissions were material to the question of probable cause. Thus, this statement in the purported Wade affidavit fails to change our conclusion that the warrants were validly issued.

Finally, as for the allegation that the police changed some of the contents of Mr. Austiffs witness statement, we note that Mr. Austin has consistently explained that the police “had [him] reword some of the statement” so “people [would] understand it better,” (Appellant’s App. at 1107; see also id. at 520), and the affidavit does not indicate that the changes were substantive rather than editorial. Moreover, Mr. Austin swore to the truth of the witness statement’s contents in front of a notary public, and his wife and son likewise swore to the truth of statements containing very similar information. With this context in mind, we conclude that a jury, even taking the evidence in the light most favorable to Plaintiff, could not reasonably infer that, had Mr. Austin’s witness statement not been altered in some unexplained way by the police, it would have provided some unidentified and unknown information that would have vitiated probable cause despite all of the other evidence of probable cause provided by Mr. Austin’s wife and son and by the two police officers’ own observations of the missing and swapped VIN plates in Plaintiff’s vehicles. Such a conclusion could only be reached by speculation, not by inference. For similar reasons, the affidavit’s bare allegation that Ms. Austin initially wrote out Mr. Austin’s witness statement — which he then signed and swore to — is' insufficient to undermine our conclusion that Officer Hall had probable cause to search the shop and arrest Plaintiff. We therefore conclude that any error by the district court in disregarding the purported Wade Austin affidavit was harmless, since none of the potentially problematic statements identified by Plaintiff in this affidavit alter any of our previous conclusions regarding Plaintiffs failure to establish a violation of his constitutional rights.

We turn then to the final issue in this appeal — whether the district court erred in dismissing Plaintiffs state law claims with prejudice. The district court gave two independent reasons for dismissing these claims. First, although only Defendant Frentheway raised this argument in his motion for summary judgment, the district court concluded that Plaintiffs state law claims were barred by the Wyoming Governmental Claims Act because he had not proven that he complied with this Act’s requirements. Second, the court briefly stated that Defendants were additionally entitled to the state defense of qualified immunity, which applies when “(1) the officer was acting within the scope of his or her duties; (2) the officer was acting in good faith; (3) the officer’s acts were reasonable under the circumstances; and (4) the officer’s acts were discretionary duties and not merely operational or ministerial duties.” Darrar v. Bourke, 910 P.2d 572, 575-76 (Wyo. 1996). Without addressing the specific elements of this test or the specific state law claims Plaintiff raised, including a claim of defamation based on a statement Officer Hall made to a newspaper, the court simply held that this test was satisfied based on the court’s earlier conclusion that the officers had probable cause for the search and seizure.

We express grave concern over the manner in which the district court disposed of these state law claims. The court’s primary reason for dismissing these claims was not raised by any Defendant except Defendant Frentheway, and the court’s reasoning appears to be at least debatable, if not erroneous, given the supplementary evidence Plaintiff has provided to support his assertion that he did indeed comply with the Wyoming Governmental Claims Act as to all Defendants except Defendant Frenthe-way — evidence he did not present below due to the other Defendants’ failure to raise this argument in their summary judgment briefing. As for the district court’s secondary reason for dismissing these claims, the court failed.both to consider the distinct factual premises and legal elements underlying each of Plaintiff’s state law claims and to address how the elements of the state defense of qualified immunity would apply to each of these claims. Moreover, we note that Defendants do not address the question of state qualified immunity in their briefs on appeal, relying solely on the Wyoming Governmental Claims Act to support affirmance of the district court’s decision. Given the extremely cursory nature of the district court’s resolution of the state law claims, the supplementary evidence and arguments Plaintiff has submitted regarding the district court’s sua sponte application of the Claims Act, and Defendants’ failure to brief the district court’s alternative ground for dismissal, we conclude that remand for further consideration by the district court is appropriate. Cf. Quinn v. Young, 780 F.3d 998, 1017-18 (10th Cir. 2015) (“But, in adjudicating these claims, the district court faltered in a critical respect — viz., it limited its express reasoning to the Fourth Amendment claim, offering us nothing to review but its bare judgment with respect to the other claims. Under these circumstances, and given the complexities of this ease related to a larceny sting operation, we believe that it would be inappropriate and imprudent for us to address in the first instance the merits of the Officers’ appeal from the district court’s qualified-immunity ruling regarding Plaintiffs’ malicious-prosecution and substantive due process claims.”).

On remand, the district court should first reconsider whether it should decline to exercise pendent jurisdiction over the state law claims and instead dismiss them without prejudice in light of the limited nature of the sole remaining federal claim in this action and the arguable existence of some unsettled questions of state law. See 28 U.S.C. § 1367(c)(2) (providing that a district court may decline to- exercise pendent jurisdiction over a state law claim that “substantially predominates over the claim or claims over which the district court has original jurisdiction”). If the district court exercises its discretion to retain pendent jurisdiction over these claims, it should provide Plaintiff with the opportunity to address the question of his compliance with the Wyoming Governmental Claims Act, and it should re-evaluate how the state defense of qualified immunity would apply to each of Plaintiffs state law claims individually and not as an undifferentiated whole.

III.

For the foregoing reasons, we REVERSE the grant of summary judgment as to the seizure of the envelope and REMAND for further proceedings on this claim. We AFFIRM the district court’s grant of summary judgment in favor of all Defendants on the remainder of Plaintiffs federal claims. Finally, we AFFIRM the district court’s dismissal with prejudice of Plaintiffs state law claims against Defendant Frentheway but REVERSE and REMAND for further proceedings the dismissal of these claims as to all other Defendants. Because we are reversing and remanding the district court’s dismissal of Plaintiffs state law claims, we DENY AS MOOT Plaintiffs motion to supplement the appellate record with evidence relating to these claims.

      . Ms. Austin also worked in the shop when they needed help, and she indicated in her deposition that she occasionally saw Officer Hall when he came to the shop (presumably for repairs on the vehicle he had purchased there, although Ms. Austin’s testimony was not clear on this point).

      . Mr. Austin later testified that the powder was drywall powder and that he used the syringe and razor blade in his work as a mechanic.

      . Judging from the police reports in the record, this vehicle was apparently seized because the cab had been modified around the area where the transmission was located and the officers were unable to locate the derivative VIN for the transmission in order to ensure that no tampering had occurred.

      . The new chief was sworn into office on May 11, 2011. (Appellant’s App. at 1169.)

      . Although Plaintiff argued in the district court that the eight-day search exceeded the scope of the warrant, he appears to have abandoned this claim on appeal. (See Appellant's Opening Br. at 35-39.)

      . Plaintiff concedes that he failed to comply with the Act’s requirements as to Defendant Frentheway (Appellant’s Reply Br. at 23), and we will affirm the court’s dismissal of his state law claims against Defendant Frenthe-way on this basis.