author: BARRON, Circuit Judge.

text:
    Brenda PIPPIN, Grace Parker, Plaintiffs, Appellants, v. BOULEVARD MOTEL CORP., d/b/a Comfort Inn South Portland Hotel, Defendant, Appellee.
    Nos. 15-2011, 15-2012
    United States Court of Appeals, First Circuit.
    August 31, 2016

      James A. Clifford, with whom Andrew P. Cotter and Clifford & Clifford, LLC, were on brief, for appellants.
    Barbara Archer Hirsch for Maine Human Rights Commission, amicus curiae.
    Katharine I. Rand, with whom James R. Erwin, Michelle Y. Bush, and Pierce Atwood LLP, Portland, ME, were on brief, for appellee.
    Anne Noel Occhialino, Attorney, Equal Employment Opportunity Commission, P. David Lopez, General Counsel, Jennifer S. Goldstein, Associate General Counsel, and Lorraine C. Davis, Assistant General Counsel, on brief for Equal Employment Opportunity Commission, amicus curiae.
    Before TORRUELLA and BARRON, Circuit Judges, and LISI, District Judge.

       Of the District of Rhode Island, sitting by designation.

   BARRON, Circuit Judge.

Plaintiffs Brenda Pippin and Grace Parker are former employees of the Boulevard Motel Corporation (“Boulevard”). They filed complaints that alleged that Boulevard fired them in violation of the Maine Whistleblowers’ Protection Act (“MWPA”) and the Maine Human Rights Act (“MHRA”). The District Court granted summary judgment for Boulevard, relying on a purported “job duties exception” to both statutes. On appeal, the parties agree that our intervening decision in Harrison v. Granite Bay Care, Inc., 811 F.3d 36 (1st Cir. 2016), made clear that no “job duties exception” exists under either the MWPA or, by implication, the MHRA. But Boulevard argues that we nonetheless can affirm the District Court’s ruling because it is supportable on other grounds. Because we disagree that other grounds support the order granting summary judgment, we reverse.

I.

“On review of an order granting summary judgment, we recite the facts in the light most favorable to the nonmoving partfies].” Walsh v. TelTech Sys., Inc., 821 F.3d 155, 157-58 (1st Cir. 2016). Thus, we present the facts in the light most favorable to the plaintiffs.

This case concerns an incident of sexual harassment that occurred at the Comfort Inn Hotel in South Portland, Maine. The hotel is owned by the defendant, Boulevard. The plaintiffs are Pippin, the hotel’s former executive housekeeper, and Parker, the hotel’s former assistant executive housekeeper.

The incident involved a maintenance worker at the hotel making graphic, sexual comments to a female housekeeper about her body. The victim — -along with Pippin and Parker — made the initial report of the incident to the defendant. The three women made that report to the hotel’s general manager, Beth Landergren. At that initial meeting on April 27, 2010, Pippin told Lan-dergren: “[the victim] needs to talk to you.... she has gone through some incidents with [the maintenance worker] ... and it’s not pleasant.” The victim then proceeded to describe the incident to Lan-dergren.

In the course of the defendant’s resulting investigation of the incident, the plaintiffs each also made oral and written statements about it to Ignacio Mello, the defendant’s human resources manager. On May 11, 2010, after the investigation had come to a close, the defendant sent a written reprimand to the maintenance worker. No further disciplinary action was taken against him.

More than three weeks later, on June 2, 2010, each plaintiff sent another written statement to Mello. Parker’s statement described a conversation with a co-worker, Veronica Connolly, in which Connolly had reported feeling pressured by Landergren to protect the accused harasser during the investigation. Pippin’s statement recounted a meeting that she had with the victim and Landergren the day before, during which the victim had accused Landergren of, among other things, only caring about “saving [the accused harasser].”

In 2011, both plaintiffs were terminated from their employment by the defendant. On March 21, 2014, each plaintiff brought suit, in two separate complaints, in Maine Superior Court. Each plaintiff alleged that her termination violated both the MWPA, which protects an employee who, in good faith, “reports orally or in writing to [her] employer or a public body what the employee has reasonable cause to believe is a violation of [ ] law” by her employer, Me. Rev. Stat. tit. 26, § 833; Costain v. Sunbury Primary Care, P.A., 954 A.2d 1051, 1054 (Me. 2008), and the antiretaliation provision of the MHRA, which prohibits “discrimination] against any individual because that individual has opposed any act or practice that is unlawful under [the MHRA],” see Me. Rev. Stat. tit. 5, § 4633.

Boulevard removed the two cases to federal court on April 22, 2014. On February 27, 2015, Boulevard filed a motion for summary judgment in each case, contending that neither plaintiff had engaged in activity protected by either statute. In its ruling on the motions, the District Court concluded that a “job duties exception” applied under both the MWPA and the MHRA, that Pippin and Parker were carrying out their job duties in making the initial report of harassment, and that the letters the plaintiffs sent after the defendant ended the investigation were not made in opposition to any unlawful activity by the employer. Based on those conclusions, the District Court granted Boulevard’s motion as to both plaintiffs. At the end of its opinion, however, the District Court stated that it had “misgivings” about the application of the job duties exception to each statute and that it was “concerned that the job duties exception ha[d] denied Ms. Pippin and Ms. Parker their day in court.”

The plaintiffs separately appealed, and we consolidated the two appeals. On January 8, 2016, the plaintiffs filed their initial brief. Five days later, we issued a decision in Harrison v. Granite Bay Care, Inc., 811 F.3d 36, 49 (1st Cir. 2016), in which we made clear that no “broad-based job duties exception” applied under the MWPA. We explained that “although a particular employee’s job duties may be relevant in discerning his or her actual motivation in reporting information, those duties are not dispositive of’ whether the employee engaged in protected activity under the statute. Id. at 51. In light of Harrison, we asked the plaintiffs to file a new brief and adjusted the briefing schedule accordingly. A full round of briefing, along with oral argument, followed.

II.

Before turning directly to our review of the District Court’s order, we need to provide some background regarding both the applicable law and the arguments that the parties are making on appeal. We start with the claims arising under the MWPA and then turn to those arising under the MHRA.

To obtain relief under the MWPA, a plaintiff must show that “(1) she engaged in activity protected by the [MJWPA; (2) she experienced an adverse employment action; and (3) a causal connection existed between the protected activity and the adverse employment action.” Walsh v. Town of Millinocket, 28 A.3d 610, 616 (Me. 2011). The parties agree that only the first of these three elements is at issue on appeal, as the defendant did not move for summary judgment on any other ground.

The parties are less than clear as to which of the plaintiffs’ actions constitutes the potentially qualifying “report[ ]” under the MWPA. See Me. Rev. Stat. tit. 26, § 833(1)(A). But the plaintiffs do not argue that their post-investigation letters to Mel-lo standing alone would constitute such a report. The plaintiffs thus appear to be contending that their initial report is the one that qualifies, at least when considered in light of their later conduct. The defendant, for its part, does not appear to contest that we may evaluate the plaintiffs’ course of conduct as a whole in determining whether that initial report qualifies as protected activity. Nor does the defendant challenge the plaintiffs’ assertion that the initial report concerning the maintenance worker’s harassment constitutes a potentially qualifying report of unlawful conduct committed by the plaintiffs’ employer.

Of course, the District Court concluded that the plaintiffs’ initial report was not protected activity under the MWPA based on its conclusion that pre-Harrison precedent set forth a “job duties exception” to the MWPA. But Harrison made clear that “the critical point when analyzing whether a plaintiff has made out the first element of a [MWPA] claim — engaging in activity protected by the Act — is an employee’s motivation in making a particular report or complaint.” 811 F.3d at 51. Thus, as we explained in Harrison, a plaintiff may be deemed to have engaged in activity protected by the MWPA even if the report of unlawful activity she makes is one her employer required her to make as part of her job duties. The employee need only show that her “report was made to shed light on and ‘in opposition to’ [the defendant’s potential illegal acts.” Id.

Turning to the plaintiffs’ claims under § 4633 of the MHRA, the statute prohibits discrimination against any individual who “has opposed an[ ] act or practice that is unlawful under [the MHRA],” Me. Rev. Stat. tit. 5, § 4633. The only element of the plaintiffs’ claims under this statute that is in dispute on appeal is, once again, whether the plaintiffs engaged in protected activity under the statute. And although the District Court relied on a job duties exception in ruling that the plaintiffs did not, the defendant concedes that — at least after Harrison — the plaintiffs can show that they engaged in protected activity so long as they can show that their initial report was made in opposition to the maintenance worker’s harassment, which the parties agree was conduct that is unlawful under the MHRA.

Against this background, our task is clear. Because neither party has asked us to remand to allow the District Court to further consider the motions for summary judgment on the underlying claims in light of Harrison, and because we may affirm the District Court on any ground made manifest in the record, Walsh, 821 F.3d at 161, we must now decide what the evidence shows regarding whether the plaintiffs’ initial report to their employer was made “in opposition to” the harassment being reported. See Miranda-Rivera v. Toledo-Dávila, 813 F.3d 64, 69 (1st Cir. 2016) (explaining that, for purposes of summary judgment, “[a] ‘genuine’ dispute exists when a jury can reasonably interpret the evidence in the non-movant’s favor”). Only if the record shows “that there is ’no genuine dispute as to any material fact” regarding whether that report was made with the requisite oppositional motivation would the District Court’s orders granting summary judgment be proper. Massachusetts Delivery Ass’n v. Healey, 821 F.3d 187, 191 (1st Cir. 2016) (quoting Fed. R. Civ. P. 56(a)). Our review is de novo, and we must “view[ ] the facts in the light most favorable to the non-moving partfies],” the plaintiffs. Id.

III.

The defendant contends that, even under Harrison, the evidence supporting the plaintiffs’ claims that they engaged in protected activity under the MWPA and under § 4633 of the MHRA is insufficient to permit the plaintiffs’ claims to survive summary judgment. Specifically, the defendant argues that the evidence reveals that the plaintiffs “merely ensured that [the victimj’s complaint ... was passed up the chain” and provided what “information they had in the context of written statements and interviews.” And the defendant further contends that the evidence shows that the plaintiffs never expressed “any personal opinion about [the accused harasser]’s actions or concern about [defendant's response to [the vic-timj’s harassment complaint.” For that reason, the defendant contends that the record is devoid of evidence that the plaintiffs acted with the requisite oppositional intent.

But, as we have explained in an analogous context, opposition to unlawful activity may take forms other than express statements of opposition. Rather, “employees may communicate their views to their employers through ‘purposive conduct.’” Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 47 (1st Cir. 2010) (addressing a claim under Title VII of the 1964 Civil Rights Act) (quoting Crawford v. Metro. Gov’t of Nashville & Davidson Cty., Tenn., 555 U.S. 271, 281, 129 S.Ct. 846, 172 L.Ed.2d 650 (2009) (Alito, J., concurring)); accord DeMasters v. Carilion Clinic, 796 F.3d 409, 417 (4th Cir. 2015) (recognizing that courts have taken “an expansive view of what constitutes oppositional conduct” under Title VII). And, here, the plaintiffs contend that the record as a whole shows that they did just that. See DeMasters, 796 F.3d at 418 (“[W]e must examine the course of a plaintiffs conduct through a panoramic lens, viewing the individual scenes in their broader context and judging the picture as a whole.”)

In particular, the plaintiffs point not only to their role in initially reporting the harassment to a supervisor but also to the evidence of their unsolicited, post-investigation letters to Mello concerning how the allegation of harassment had been handled by the defendant. They contend that this, evidence — considered as a whole — supports a reasonable inference that, in initially reporting the harassment, they were motivated not only by their interest in fulfilling their job duties but also by their opposition to the employer’s unlawful conduct. The defendant, by contrast, contends that even viewing the plaintiffs’ course of conduct as a whole, there is no evidence that any of the plaintiffs’ conduct was taken with the requisite motivation. We disagree.

The record shows that Pippin and Parker did more than simply facilitate the victim’s lodging of her complaint and then cooperate with the ensuing investigation. Rather, the record reveals that three weeks after that investigation into the complaint of harassment had come to an end, Pippin had a meeting with the victim and Landergren at which the victim told Landergren that she was unhappy with the defendant’s resolution of her complaint. The record then shows that, the next day, Pippin and Parker, apparently on their own initiative, each sent handwritten letters to Mello recounting ongoing concerns that their coworkers, including the victim, had about the integrity of the investigation.

In her letter, Pippin wrote that the victim stated during that meeting that Lan-dergren only cared about “saving [the accused harasser]” and that the victim did not trust Landergren. Pippin also wrote that the victim told Landergren that a coworker, Connolly, had apologized to the victim for lying during the investigation and that Connolly had said she would have been fired if she had not lied. Parker’s separate letter to Mello described a conversation that she had with Connolly in which Connolly stated that she had felt pressured by Landergren to “go along with [her] about the [harassment] situation” and that she felt she would have been fired if she had not.

Thus, the record, read in the light most favorable to the plaintiffs, shows that the plaintiffs were fired after continuing to raise concerns about the handling of an investigation into a complaint of sexual harassment that they, along with the victim, had first reported to the employer. And the record further supports the plaintiffs’ claims that they continued to press these concerns even after the employer’s investigation had ended and even though they were apparently under no obligation to their employer to do so. See Harrison, 811 F.3d at 51 (“[A] particular employee’s job duties may be relevant in discerning his or her actual motivation in reporting information, [although] those duties are not dispositive of the question.”).

To be sure, this is a close ease. The plaintiffs’ initial reports of harassment involved little more than Pippin’s telling Landergren that the victim needed to talk to her about something that was “not pleasant.” And perhaps Pippin and Parker sent their post-investigation letters purely out of an interest in ensuring the proper handling of internal investigations or in informing the human resources department about unrest among their co-workers.

But a reasonable jury would not be required to draw either of those inferences. Rather, a trier of fact reasonably could draw the common-sense inference that these employees, who first were involved in reporting an incident of harassment to their employer and then persisted in raising concerns to their employer about an internal investigation of that incident following a meeting in which the victim expressed concerns about how her initial complaint had been handled, were motivated throughout by their opposition to the employer’s unlawful conduct. See Ballew v. Georgia, 435 U.S. 223, 233-34, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978) (discussing the importance of a jury’s “application of the common sense of the community to the facts of any given case”); CSX Transp., Inc. v. McBride, 564 U.S. 685, 700, 131 S.Ct. 2630, 180 L.Ed.2d 637 (2011) (referring to a jury’s use of “experience and common sense”); United States v. Smith, 680 F.2d 255, 260 (1st Cir. 1982) (“Neither juries nor judges are required to divorce themselves of common sense.... ”). Thus, a jury reasonably could conclude that their initial report of harassment to their employer “was made to shed light on and ‘in opposition to’ [the defendant’s potential illegal acts.” See Harrison, 811 F.3d at 51. And, as the defendant concedes, if a jury reasonably could reach that conclusion, then we must reverse the District Court’s orders granting summary judgment.

Of course, on remand it is possible that the jury will find that the plaintiffs did not engage in protected activity under either statute or that the plaintiffs’ claims may fail for some other reason. But those possibilities are just that. They provide no basis for affirming the summary judgment rulings concerning whether the plaintiffs engaged in protected activity under the MWPA or § 4633 of the MHRA, and thereby denying the plaintiffs the opportunity to convince a jury otherwise. See Rubinovitz v. Rogato, 60 F.3d 906, 912 (1st Cir. 1995) (vacating a grant of summary judgment even while recognizing that “the case might be a difficult one for the plaintiffs,” given the Court’s “obligation to draw all reasonable inferences in favor of the party opposing summary judgment”).

IV.

For the reasons set forth above, we reverse the order of the District Court granting summary judgment and remand this case for further proceedings consistent with this opinion.

      . Parker also helped the victim, who struggled to write in English, to write a statement to submit to Mello in connection with his investigation. At the end of the letter Parker wrote on behalf of the victim, Parker wrote: "This is written by Grace Parker because [the victim] can not spell and write English very well.” Parker then included a postscript in which she recounted the victim's description of the impact of the incident on her. Parker concluded the postscript by writing: "[The victim] also mentioned that this entire incident was embarrassing and very hard to talk about. I told her she has done nothing wrong.”

      . We thank amici curiae Equal Employment Opportunity Commission and Maine Human Rights Commission for their briefs in support of reversal.

      . Other provisions of the MHRA constitute the source of an employee's right of action for a violation of the MWPA. See Me. Rev. Stat. Ann. lit. 5, §§4572, 4621; Harrison, 811 F.3d at 46 n.12.

      . Maine courts have made clear that, in adopting the MHRA, "the Maine legislature by adopting provisions that generally track the federal antidiscrimination statutes intended the courts to look to the federal case law to 'provide significant guidance in the construction of [the Maine] statute.’ " Maine Human Rights Comm’n v. City of Auburn, 408 A.2d 1253, 1261 (Me. 1979) (quoting Maine Human Rights Comm’n v. Local 1361, Me., 383 A.2d 369, 375 (Me. 1978)).

      . For this reason, the defendant's contention that the plaintiffs’ post-investigation letters themselves constituted direct opposition only to the allegedly biased investigation, and not to the harassment giving rise to that investigation, is beside the point.


source: Caselaw Access Project

author: THOMPSON, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. David W. LACOUTURE, Defendant, Appellant.
    No. 15-1238
    United States Court of Appeals, First Circuit.
    August 31, 2016
    [Hon. Nathaniel M. Gorton, U.S. District Judge]
    Joshua R. Hanye on brief for appellant.
    Eric S. Rosen, Assistant United States Attorney, and Carmen M. Ortiz, United States Attorney, on brief for appellee.
    Before LYNCH, THOMPSON, and KAYATTA, Circuit Judges.
   THOMPSON, Circuit Judge.

In violation of his probation and federal and state laws that required him to register as a sex offender, Defendant-appellant David W. Lacouture fled Massachusetts for Missouri, where he lived using a fake identity until he was accused of molesting a neighbor’s child and arrested. The case before us concerns only Lacouture’s sentence for the crime of failing to register as a sex offender, to which he pled guilty. At sentencing, the district court applied an eight-level enhancement on the basis of the Missouri charge, which Lacouture argues was error. Because the record does not reveal whether the district court found reliable the out-of-court statement upon which the prosecution primarily relies, we remand this matter for clarification of whether the district court so found, and why.

BACKGROUND

A. The Underlying Offense

In September 2010, Lacouture pled guilty in Barnstable Superior Court in Massachusetts to one count of indecent assault and battery on a minor. For his crime, Lacouture received a two- and-a-half year sentence — eighteen months of which was a term of imprisonment and the remainder of which was to be served on probation.

On June 2, 2011, after completing the carceral portion of his sentence, Lacouture was released on probation, and was required by both federal and state law to register with the Massachusetts Sex Offender Registry Board (“SORB”). See 42 U.S.C. § 16913(b); Mass. Gen. Laws ch. 6, § 178F. Because Lacouture was homeless at the time of his release, he was required to verify his SORB registration by appearing in person at the local police department every 30 days, see Mass. Gen. Laws ch. 6, § 178F1/2, and, as is required of all sex offenders, to notify SORB of any changes in address, see 42 U.S.C. § 16913(c); Mass. Gen. Laws ch. 6 § 178H(a).

B. Unlawful Wayfaring

Alas, at some point after June 17, 2011, Lacouture left Massachusetts without letting anyone know. At first, the state court issued a warrant for Lacouture for violation of his probation requirements. Then, when thirty days passed and Lacouture did not resurface, the court issued a second warrant, this time with a new charge for failure to register as a sex offender.

While his disappearance was being investigated, Lacouture managed to wind up far away in Joplin, Missouri. There, he found some work, took up the alias “Damon Hunter” and nickname “Rhino,” and lived for a time as a fugitive under that assumed identity. This new life was abruptly interrupted on April 2, '2013, when Lacouture was arrested for child molestation.

Some weeks prior to Lacouture’s arrest, Lacouture’s eight-year-old neighbor had been found masturbating by her aunt. When the aunt asked the girl about it, the girl told her aunt that “Rhino” had touched her inappropriately and done to her “other things we are not supposed to do.” The aunt told the girl’s mother, and the mother alerted the Joplin police on March 16, 2013.

A Sexual Abuse Investigative Interview (“SAIN”) was conducted a few days later. When asked about the incident, the child recounted that, sometime before Thanksgiving but after the start of the school year in 2012 (when she was seven years old), she had gone over to Lacouture’s house alone to pet his cat, and Lacouture had put his hands down her pants and touched the area around her vagina, which had made her feel uncomfortable. She also told the interviewer that she had run home immediately afterward and informed her mother. A medical exam detected no physical evidence of the alleged 2012 abuse.

The arrest followed shortly thereafter. During post-arrest questioning, Lacouture recalled he had picked the child up off the ground, and in doing so, had put his arm under her crotch area, but denied ever having touched the girl sexually. (The case related to this arrest, by the way, remains pending in Missouri at the time of this opinion’s publishing.) Lacouture also admitted that “Damon Hunter” and “Rhino” were aliases, and that he had been living in Joplin unlawfully and in violation of his sex offender registration requirements.

C. The Case at Hand

This brings us to our present case. La-couture was transported back to Massachusetts and eventually indicted in federal court for one count of failure to register as a sex offender, to which he pled guilty.

A PSI report was prepared. Because Lacouture’s underlying state conviction qualified him as a Tier II sex offender, the PSI report assigned a base offense level of fourteen. See U.S.S.G. § 2A3.5(a)(2). To this, the PSI report added the eight-level enhancement for commission of a sex offense against a minor while in failure-to-register status, on the basis of the evidence that Lacouture had molested his neighbor’s child in Joplin. See id. § 2A3.5(b)(l)(C). The PSI report then subtracted three levels for acceptance of responsibility, resulting in a total offense level of nineteen. Based on Lacouture’s criminal history category of VI, this put the guideline range at 63 to 78 months.

Lacouture objected, among other things, to the PSI report’s recommendation that the district court apply an eight-level enhancement on the basis of the unproven Joplin allegations, which he claimed were false. The district court disagreed, finding that the eight-level enhancement applied, and adopted the PSI report’s guideline range. The judge sentenced Lacouture to the highest guideline sentence: 78 months (or 6 years and 6 months) of imprisonment. Lacouture timely appealed.

DISCUSSION

Lacouture’s sole argument on appeal is that the district court erred in applying the eight-level enhancement in its guideline calculation because the court lacked sufficient evidence to find that he had committed a sex offense against a minor. A district court’s error in calculating the guideline range requires resentenc-ing where it “affects or arguably affects the sentence imposed.” United States v. Ramos-Paulino, 488 F.3d 459, 463 (1st Cir. 2007).

We review a district court’s sentencing factor findings for clear error. United States v. Morgan, 384 F.3d 1, 5 (1st Cir. 2004). “It is the government’s burden at sentencing to prove sentencing enhancement factors by a preponderance of the evidence, and a district court may base its determinations on ‘any evidence that it reasonably finds to be reliable.’ ” United States v. Almeida, 748 F.3d 41, 53 (1st Cir. 2014) (quoting United States v. Walker, 665 F.3d 212, 232 (1st Cir. 2011)).

The government urges us to find that it met its burden here because the SAIN transcript, in which the child herself gave an account of the incident, gave the sentencing judge an adequate basis to find that Lacouture had molested the child. The government argues that the child’s accusations are consistent with two prior convictions in Lacouture’s criminal history (for indecent assault and battery and for indecent exposure), which both involved children under the age of fourteen. To the extent that further corroboration of the child’s account was necessary, the government continues, it was supported by police reports containing both the mother’s original statements to the police — that the aunt had discovered the child masturbating and that the child had told her aunt, “Rhino used to do it to me as well as other things we are not supposed to do” — and Lacou-ture’s own statements during police questioning that he recalled picking the child up off the ground and placing his arm under her crotch area.

But here is where we are stuck. Some of the very police reports that the government claims are corroborative appear at times to undermine, rather than verify, the child’s account. And the district court left unaddressed the question of whether, in light of these discrepancies, the child’s interview statements are sufficiently reliable to support the conclusion that the alleged molestation occurred. We explain.

First, during the SAIN, the child told the interviewer that immediately following the incident, she had gone home and told her mother what had happened, and that her mother had told her “never to go back over to his house again.” But according to the initial police report, the mother told the police that she learned of the incident from the child’s aunt, which was not until March 2013. '

Additionally, when the interviewer asked the child how many different times Lacou-ture had inappropriately touched her, the girl responded that it had happened only “[o]nce,” and when the interviewer asked whether he had ever touched “any other pláces on [her] body,” she answered, “Nope.” But, conflictingly, in the statement the child allegedly made to her aunt— “Rhino used to do it to me as well as other things we are not supposed to do” — she seems to have suggested both that there was more than one instance of molestation, and that there may have been more than one kind of inappropriate act.

Furthermore, when the interviewer asked the child whether “anybody else” had ever “touched ... any places on [her] body” that they “weren’t supposed to touch,” the child answered, “No.” But during a post-SAIN interview, the child’s mother told the police that the child had been molested previously by a grandfather.

Finally, several months before the SAIN, the mother reported to the police that the child had told her she had been “touched” by someone across the street, but withdrew the accusations when the child then “told [the mother] that she [had] lied about being touched.” The child’s mother told the police during her post-SAIN interview that, while she thought the child was likely telling the truth about this incident now, she “was not sure” whether she was lying again.

We do not assert that the dissonance between the SAIN transcript and the police reports requires that the child’s account be disbelieved. But we do conclude that we ought go no further in our review because we cannot tell from the sentencing judge’s conclusory finding whether he found the child’s SAIN statement reliable, hence admissible, and why. In ruling on this issue, the judge stated simply: “[T]he Court does believe, under the reduced standard by which it is to determine sentencing factors, a preponderance of the evidence^] ... that, while this Defendant was on failure-to-register status, he committed a sex offense[.]” “[I]n other words,” the judge went on, “the conduct is sufficient on the evidence ... that the Defendant was in commission of conduct that was in violation of a ... sex-conduct statute, and therefore ... the eight-level increase is warranted.” It is not clear from this sparse discussion whether the sentencing judge found the child’s interview statements to be reliable, and if so, how he came to his conclusion despite the apparent inconsistencies. As a result, we cannot tell whether the judge clearly erred in finding that the sentencing enhancement applied on the basis of the evidence.

The stakes of a potentially erroneously calculated guideline range in this case are clear. The district court imposed a top-of-the-range sentence of 78 months (6 years and 6 months). Without the enhancement, the range would have been 30 to 37 months, resulting in a guideline ceiling of 3 years and 1 month — less than half the sentence Lacouture ultimately received.

Given the impact that a possible error would have had on the sentence and the need for further clarification before we can determine whether an error occurred, see United States v. Jimenez Martinez, 83 F.3d 488, 494 (1st Cir. 1996) (expressing “concern[]” over “the court’s failure to articulate any reason why [a questionable] affidavit was reliable,” and finding the court erred in relying on it without an evidentiary hearing), we think the wisest course here is to follow our occasional practice of remanding the matter to the district court, as we have previously done in cases where a district court’s explanation of a sentence is inadequate, see United States v. Lucena-Rivera, 750 F.3d 43, 53 (1st Cir. 2014) (remanding with instructions to revisit the application of a sentencing enhancement, as “is appropriate when the basis in the sentencing record for the application of an enhancement requires clarification”).

On remand, the district court should indicate whether it found the child’s statement to be reliable and how it reached that conclusion.

CONCLUSION

Because we are unable to determine whether the district court erred in applying the eight-level sentencing enhancement, we vacate the sentence and remand for further proceedings consistent with this opinion.

      . Because Lacouture’s conviction resulted from a guilty plea, we draw the facts from the plea agreement, the Presentence Investigation ("PSI”) report, other documents in the sentencing record, and the transcript of the sentencing hearing. See United States v. Ocasio-Cancel, 727 F.3d 85, 88 (1st Cir. 2013).

      . The interview appears to have been conducted at the Joplin Police Department by a Missouri Sexual Assault Investigative Network interviewer. The interview was video-recorded, but the sentencing record contains only a transcript of the interview.

      . Lacouture argues that his appeal involves only pure legal questions and thus asks us to apply de novo review, but his challenge goes to the district court’s factual finding that La-couture committed a sex offense while on failure-to-register status, and therefore the clear error standard applies. See United States v. Savarese, 686 F.3d 1, 15 (1st Cir. 2012) ("[W]here, as here, a defendant challenges the factual predicate supporting the court’s application of a sentencing enhancement, 'we ask only whether the court clearly erred in finding that the government proved the disputed fact by a preponderance of the evidence.’ ” (quoting United States v. Luciano, 414 F.3d 174, 180 (1st Cir. 2005))).

      . Although propensity evidence is normally inadmissible in criminal trials, it is admissible in cases involving child molestation, see Fed. R. Evid. 414 ("In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed' any other child molestation.”), and, in any case, the government offers the convictions here for purposes of sentencing.

      . Lacouture maintains that the present incident, of which he stands accused, and this prior incident of sexual assault, about which the girl admitted she lied, are, in fact, one and the same, as both allegedly occurred "several months” before March 2013 and involved a "neighbor.” The government agrees that this is a "plausible inference,” but argues that, if anything, this shows the child was consistent in her story, even if she retracted her first report of it, perhaps out of embarrassment or fear. For reasons we explain in a moment, we leave it for the district court to weigh these competing inferences.

      . We are mindful that recounting a sex crime can be a traumatic experience that may make telling a linear story difficult, and that this hardship is compounded when the victim is á child. Nonetheless, a sentencing enhancement cannot be applied unless the government meets its burden to prove the predicate fact or facts by a preponderance of the evidence.

      .This would-be guideline range is based on a base offense level of fourteen, minus two levels for acceptance of responsibility, resulting in a total offense level of twelve. (Only two levels are subtracted for acceptance of responsibility because, without the eight-level enhancement, Lacouture would not have qualified for the additional one-level decrease for timely notice of his intent to plead guilty, which the PSI report recommended and the district court adopted, because that decrease only applies where the offense level is sixteen or greater. See U.S.S.G. § 3El.l(b).)

      . To this end, the district court may wish to request that the government produce the video recording of the SAIN in order to aid its assessment of the child’s responses.


text:
    Joseph MCGUNIGLE, Plaintiff, Appellant, v. CITY OF QUINCY; Paul Keenan; John Dougan, Defendants, Appellees.
    No. 15-2224
    United States Court of Appeals, First Circuit.
    August 31, 2016

      Brian Rogal, with whom Rogal & Don-nellan, P.C. was on brief, for appellant.
    John R. Hitt, with whom Cosgrove, Ei-senberg and Kiley, P.C., Boston, MA, was on brief, for City of Quincy, and individual appellees, in their official capacities.
    Geoffery P. Wermuth, with whom Murphy, Hesse, Toomey & Lehane LLP, Quincy, MA, was on brief, for individual appel-lees in their individual capacities.
    Before THOMPSON, SELYA, and KAYATTA, Circuit Judges.
   THOMPSON, Circuit Judge.

Plaintiff-appellant Joseph McGunigle (McGunigle), a former Quincy police officer, brought this action against the City of Quincy, Chief of Police Paul Keenan (Chief Keenan), and Captain John Dougan (Captain Dougan) (collectively, appellees), claiming, among other things, that appel-lees retaliated against him for protected speech in violation of his First Amendment rights. The district court granted appel-lees’ motion for summary judgment. After careful consideration, we affirm.

I. BACKGROUND

As required when reviewing an order granting summary judgment, we summarize the facts in the light most favorable to the non-moving party — here, McGunigle. Del Valle-Santana v. Servicios Legales De P.R. Inc., 804 F.3d 127, 128 (1st Cir. 2015).

A. The Long Road to Here

This case has a long, circuitous history. It begins in 2006 with a neighborhood disagreement about leash laws, and culminates a decade later with alleged witness intimidation. Because this history provides essential context for our decision, it is necessary for us to go into some detail here. Bear with us.

B. McGunigle’s Dog Ordinance Crusade

In the fall of 2006, McGunigle and his wife, Dianne McGunigle (Dianne), bought a waterfront home in Quincy, Massachusetts. Purchasing an oceanfront house had been a lifelong dream of the McGunigles. Unfortunately, after moving in, they began witnessing multiple violations of Quincy’s dog ordinances. The ordinances require dog owners to keep their dogs leashed and to clean up after them, but apparently were not readily enforced on the beach across from their house. McGunigle claims that his neighbors frequently “allowed their dogs to roam the neighborhood” and to defecate on the beach. Tensions between McGunigle and his neighbors over the dog ordinances escalated, finally coming to a head in early 2007 when an unleashed Great Dane attacked McGunigle’s dog, and an unleashed Golden Labrador attacked his wife and “lunged” at a woman holding her six-month-old child.

In response to the later incident, a “dog hearing” was held at the Quincy Police Department. As best we can tell, this hearing was essentially a neighborhood mediation, facilitated by Captain Dougan. McGu-nigle was allowed to attend the hearing, but only if he changed out of his police uniform since he was not representing the police department at the hearing. He declined to change and did not attend. His wife, Dianne, did go and testified, along with other members of the community. At the conclusion of the hearing, the Golden Labrador’s owner agreed to keep her dog on an expandable leash and to enroll him in dog training courses.

Apparently unhappy with the outcome of the hearing, McGunigle went to Captain Dougan’s office “shortly after” to speak with him about the ordinance issue. McGu-nigle wanted to show Captain Dougan a videotape that, he claimed, disproved the testimony of some of his neighbors at the hearing as to whether the Golden Labrador was' let off its leash. Captain Dougan declined to watch the video, and told McGunigle that it was too late to present additional evidence because the hearing was over. During this conversation, McGu-nigle was in uniform and on duty.

Frustrated by the continued lack of enforcement of the dog ordinances, the McGunigles continued their campaign against what they perceived to be a policy of non-enforcement. They reported violations of the dog ordinances to Quincy Animal Control Officer Don Conboy, and wrote numerous letters to the Mayor of Quincy, various city councilors, and the press, expressing their concerns. By May 2007, McGunigle had decided to take matters into his own hands, and he began issuing citations for violations of the dog ordinances to a number of his neighbors. Most of the neighbors who received citations from McGunigle had testified adversely to his wife at the hearing. The citations were issued by McGunigle in his capacity as a Quincy police officer.

McGunigle’s neighbors complained to the then-Chief of the Quincy Police Department, Robert Crowley. Chief Crowley ordered McGunigle to stop writing dog-ordinance citations to his neighbors and while off-duty. McGunigle initially complied with the order. But about a month later, McGunigle started issuing citations anew, which prompted his neighbors to again voice complaints to police leadership about McGunigle’s harassment. For example, one neighbor, who received a citation after walking her dog on private property, called Captain Dougan in tears explaining “that she felt that Officer McGunigle was using his authority to intimidate her.” Another neighbor claimed that she received a citation from McGunigle for having her dog unleashed “but at the time the ticket was written [she] was at work and [her] dog was home all day.” After receiving these complaints, Chief Crowley suspended McGunigle for five days for insubordination for violating his order to stop issuing citations.

In support of McGunigle, the union challenged his suspension, arguing that Chief Crowley’s order was unlawful because it ran afoul of McGunigle’s oath to enforce city ordinances. An arbitrator ultimately concluded that there was not just cause to discipline McGunigle because the City of Quincy failed to respond to the union’s inquiry into the lawfulness of the order. Accordingly, the arbitrator vacated the suspension, finding that McGunigle could not be suspended “for violation of an order whose lawfulness had not been determined before [he] was suspended.”

By early September 2007, the press had picked up on the growing controversy. 0’n September 15, 2007, WHDH Channel 7 News aired a television report about the dog ordinances, the lack of enforcement, McGunigle’s crusade, and his suspension. During the broadcast, McGunigle was shown making the following statement: “I’m just doing my job, you know, trying to make the neighborhood safe and, uh, enforcing some violations down there to make it cleaner.” He later added: “We’re not quitting; we’re just beginning to fight.” McGunigle was off-duty, in plain clothes, and was standing in front of his house when he was interviewed. But when the first statement aired, the screen caption read “Officer Joseph McGunigle, Quincy Police Dept.”

A little over a week later, the Boston Globe ran a story on McGunigle’s dispute with his neighbors. Identifying McGunigle as a Quincy police officer, the article reported that McGunigle had “issued about 11 citations, with fines of $50 to $100” to his neighbors, and credited McGunigle with declaring that the dog ordinance violations have been tolerated for years and that he “won’t put up with it.” McGunigle was quoted as saying that he had “paid $620,000 for [his] oceanfront home” and that he was “not letting dogs [defecate] on [his] yard.” (second alteration in original). The article also reported allegations by McGunigle’s neighbors that he was harassing and intimidating them. One neighbor was quoted as saying that he was issued a citation even though he did not own a dog (his girlfriend did). The article noted that McGunigle had “acknowledge[d] videotaping” his neighbors, tearing down a neighbor’s fence when he realized it was on his property, and that he had previously been suspended from the police force. But the article also highlighted that McGunigle had defenders in the community, who agreed that “the dog problem ... had' gotten out of hand.” The paper painted McGunigle as “unrepentant,” crediting him with saying that “he was only enforcing the law and has done nothing wrong.”

In the wake of all this publicity, the Quincy Sun reported that the Mayor of Quincy, William Phelan, had approached McGunigle’s wife, Dianne, and told her to “drop” the dog-ordinance issue and to “let it go.” Nevertheless, Mayor Phelan later held a public meeting to address the issue. The public meeting was attended by 60 members of the community and several other public officials. The upshot of this meeting is not set out in the record. Nor does the record reflect the ultimate resolution of the dog ordinance controversy. Nearly a year later, Chief Crowley retired and, in July of 2008, Paul Keenan was promoted to Chief of Police.

C. End of the Line: Traffic Cones and Witness Intimidation

Three years after Chief Keenan was promoted, and four years after the dog-ordinance controversy and publicity surrounding it, McGunigle once again found himself in a dispute with a neighbor, Michelle Webber. On July 30, 2011, McGuni-gle pulled up in front of her house — in his police car and wearing his uniform — and confiscated traffic cones from her driveway. McGunigle believed that these traffic cones belonged to National Grid and were stolen. In fact, the traffic cones belonged to Webber and she had placed them there to stop people from turning around in her driveway (she lives at the end of a dead end street). When Webber tried to explain that she owned the traffic cones, she claims McGunigle looked at her in “an intimidating fit of rage” and told her that he was taking the cones “before someone [got] arrested!”

Webber, who had previously received citations from McGunigle during the dog ordinance brouhaha, filed a citizen complaint regarding the incident in which she claimed that “McGunigle was coddling his gun” while talking to her and that she “believe[d] that [her] life was in danger.” Webber added that she was “very concerned for [her] well being, knowing that [ ] McGunigle [was] carrying a loaded weapon,” and that she had previously witnessed “McGunigle’s inability to control his rage and anger” and his “harassment and intimidation” of “the whole community.”

According to the police report following-up on Webber’s complaint, multiple witnesses to the exchange noted that the cones were clearly on Webber’s property, and that McGunigle was “abrasive, loud, and argumentative” during the encounter. These witnesses echoed Webber’s statements, describing McGunigle as “very threatening,” and explaining that his “hostility” “caused them concern.” One witness added that McGunigle “carrying a gun was ‘[s]cary.’ ”

In the aftermath of the traffic cone incident, McGunigle was suspended pending an investigation. Chief Keenan ordered McGunigle to turn in his firearm and to stay away from the Quincy police station. On October 17, 2011, during the ongoing cone investigation, and while McGunigle was suspended and subject to the stay-away order, Webber visited the station to apply for a firearms license. Minutes after she arrived, McGunigle pulled up in front of the station. According to McGunigle, he wanted to use the ATM machine in the lobby. Knowing that McGunigle was suspended because of the complaint filed by Webber, a lieutenant quickly escorted Webber to the records room so that she and McGunigle would not run into each other. When Webber was told that McGu-nigle had come to the station while she was there, she “became visibly upset and shaken” and the lieutenant had to take her to Chief Keenan’s office “to calm her down” before she could depart.

The lieutenant later explained that he thought McGunigle had followed Webber to the police station, and that McGunigle’s presence there was part of “a pattern of intimidation and harassment.” Based on this new incident, Chief Keenan charged McGunigle with additional, separate violations for, among other things, willfully violating the stay-away order and intimidating a witness.

An appointing authority held hearings on the cone incident on November 2, November 21, and December 20, 2011. The hearing officer found that McGunigle had violated the Department’s personal conduct policy and recommended that the new Mayor of Quincy, Thomas P. Koch, affirm a five-day suspension without pay. In addition, the hearing officer recommended that “McGunigle be suspended for a period of up to thirty days ... and ordered to Anger Management Training.” On March 9, 2012, Mayor Koch accepted the recommendation.

Soon thereafter, on March 12, 2012, Chief Keenan revoked McGunigle’s license to carry because he had come to believe that McGunigle “was unfit to carry a firearm.” This revocation decision was based, in part, on the hearing officer’s findings from the cone incident and, in part, on Chief Keenan’s belief that McGunigle had intentionally harassed and intimidated Webber. Consequently, on April 23, 2012, Chief Keenan recommended McGunigle’s immediate termination,- explaining that he “deemed [McGunigle] to be unfit to be a City of Quincy Police Officer, and an unsuitable person to carry and possess a firearm.” Additionally, he requested that the second Webber incident be reviewed by the appointing authority and that a disciplinary hearing be held to consider McGunigle’s termination.

The same day Chief Keenan revoked McGunigle’s license to carry a firearm, the Patriot Ledger newspaper ran an article about McGunigle’s suspension. In a section describing the “traffic cone” incident, Chief Keenan was quoted as saying: “His version differed considerably from all of the eyewitness versions .'.. [ujntruthfulness for a police officer is a serious infraction.”

Two weeks later, Chief Keenan was quoted in another Patriot Ledger article. The article explained that Chief Keenan had filed a new complaint against McGuni-gle, alleging that McGunigle had disobeyed a direct order to stay away from the police station while out on administrative leave. Chief Keenan was quoted as saying: “Basically, he walked to the ATM, but I don’t believe he conducted business.... We don’t believe that he had a legitimate purpose to be in there. I believe it was in an effort to intimidate a witness in the previous disciplinary actions.” In a follow-up article that ran in advance of the hearing, the Patriot Ledger quoted the Chief as saying: “In my 29 years on the force, there’s been nothing like this that I can remember.”

A hearing on the second Webber incident was held on May 18, 2012, and on June- 12, 2012, the hearing officer recommended MeGunigle’s termination. In a written decision, concurring with Chief Keenan that McGunigle had “exhibited an inability to conform to the standards of the Quincy Police Department,” the hearing officer concluded that McGunigle’s insubordination in refusing to obey the stay-away order, in conjunction with McGuni-gle’s “extensive” disciplinary record, “warrant[ed] termination in and of itself.” In particular, the hearing officer found that it was “more likely than not” that McGunigle was either “actually following” Webber or that he saw her enter the police station and was attempting to harass or intimidate her. The hearing officer also found that termination was supported because McGunigle had lost his license to carry, which is a condition of employment, and because he intimidated a witness (Webber), who had filed a complaint against him. After receipt of the hearing officer’s decision, Mayor Koch terminated McGunigle’s employment effective immediately.

McGunigle promptly sought judicial review of the revocation of his firearm license. But, on December 4, 2012, the Quincy District Court upheld the revocation, concluding that- “the revocation of McGunigle’s license to carry a firearm [was] supported.” The state court judge added that it was reasonable for Chief Keenan to “have found that McGunigle was a person who ... was out of control and who reflected poor decision making” and that “[w]hen all [his] behavior [was] pieced together, including the lobby incident, it was reasonable for [Chief] Keenan to conclude that McGunigle’s behavior was ... an escalation of improper behavior and that the revocation of his firearms license was needed to ensure safety.” The Massachusetts Superior Court subsequently affirmed the district court’s decision, concluding that “[g]iven the numerous complaints from neighbors and other citizens about McGunigle’s threatening or harassing behavior and the allegation from a neighbor that he used his service weapon on at least one occasion to give further weight to a threat ... [Chief] Keenan had reasonable grounds for revoking McGuni-gle’s [license to carry].” See McGunigle v. City of Quincy, 132 F.Supp.3d 155, 167 (D. Mass. 2015).

On January 27, 2013, an arbitrator, acting on a union grievance, affirmed McGu-nigle’s termination, explaining that the loss of his license to carry provided the city with just cause to terminate him. The arbitrator made clear, however, that he “lack[ed] the authority to reconsider the wisdom of ... Chief Keenan’s revocation action.”

D. Relevant Federal District Court Proceedings

McGunigle then brought the action at issue here against the City of Quincy, Chief Keenan, and Captain Dougan, alleging that he was retaliated against for exercising his First Amendment rights by making statements to various news organizations in 2007 regarding the dog-ordinance issue. McGunigle also brought a claim for defamation against Chief Keenan based on the statements he made to the press in advance of McGunigle’s termination hearing.

After various proceedings, not relevant here, appellees moved for summary judgment on all of McGunigle’s remaining claims: (1) a First Amendment retaliation claim under 42 U.S.C., § 1983; (2) a claim under the Massachusetts Civil Rights Act (MCRA), Mass. Gen. L. c. 12 § 111, against Chief Keenan and Captain Dougan in their individual capacities; and (3) a claim for defamation against Chief Keenan. The district court granted the motion, concluding that McGunigle could not show a § 1983 retaliation claim because his “relatively weak” interest in commenting on the dog-ordinance issue did not outweigh “the strong interests of the Quincy Police Department in maintaining obedience, loyalty, discipline, and the perception of fairness.” McGunigle, 132 F.Supp.3d at 173. Moreover, the district court found the evidence “insufficient to support a claim of a causal connection between the speech and the alleged retaliation” and that “[e]ven if there were a constitutional violation, [Chief] Keenan and [Captain] Dougan would be entitled to qualified immunity, because objectively reasonable officials would not have understood under the circumstances that the conduct .at issue could have violated McGunigle’s constitutional right to free speech.” Id. at 176.

As a result, the district court concluded that McGunigle could not establish a claim under the MCRA against Chief Keenan and Captain Dougan because they did not interfere with McGunigle’s “exercise or enjoyment of rights secured by the Constitution or the laws of the United States or the Commonwealth.” Id. at 177 (quoting Bally v. Ne. Univ., 403 Mass. 713, 532 N.E.2d 49 (1989)). The district court also concluded that McGunigle could not maintain a defamation claim against Chief Keenan for statements that appeared in the 2012 newspaper articles because “none of the quotes from [Chief] Keenan are capable of defamatory interpretations.” Id. at 180. McGunigle timely appealed.

II. DISCUSSION

Before us, McGunigle argues that the district court erred in granting summary judgment on his First Amendment claims because (1) when he made the 2007 statements to the press regarding the dog-ordinance issue he was speaking as a private citizen on a matter of public concern; (2) his interest in commenting on the dog-ordinance issue outweighed his employer’s interests; and (3) there is sufficient evidence in the record to permit a jury to find that his protected speech was a substantial motivating factor in his termination. He also argues that there is sufficient evidence of threats against him to sustain his MCRA claim. Finally, McGunigle argues that his defamation claim against Chief Keenan was improperly dismissed because Chief Keenan’s statements “were clearly defamatory.”

Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56. Our review is de novo, and we examine the record in the light most favorable to the nonmoving party and draw all reasonable inferences in that party’s favor. Del Valle-Santana, 804 F.3d at 129. We are not bound by the district court’s reasoning and we may “affirm the entry of summary judgment on any ground apparent from the record.” Rodriguez-Sanchez v. Municipality of Santa Isabel, 658 F.3d 125, 129 (1st Cir. 2011).

A. Section 1983 Retaliation Claim

“[T]he law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions ... for speaking out.” Mercado-Berrios v. Cancel-Alegría, 611 F.3d 18, 25 (1st Cir. 2010) (omission in original) (quoting Hartman v. Moore, 547 U.S. 250, 256, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006)). This rule holds trué in public employment as well, but “in recognition of the government’s interest in running an effective workplace, the protection that public employees enjoy against speech-based reprisals is qualified.” Id. at 26; see also Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) (“When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom.”).

To succeed on his § 1983 First Amendment retaliation claim, McGunigle must establish that: (1) he was speaking “as a citizen on a matter of public concern”; (2) his interests, “as a citizen, in commenting upon matters of public concern” outweighed his employer’s interest “in promoting the efficiency of the public services it performs through its employees”; and (3) “the protected expression was a substantial or motivating factor in the adverse employment decision.” Decotiis v. Whittemore, 635 F.3d 22, 29 (1st Cir. 2011) (quoting Curran v. Cousins, 509 F.3d 36, 44-45 (1st Cir. 2007)). Even if all three inquiries are resolved in McGunigle’s favor, “the employer may still escape liability if it can show that it would have reached the same decision even absent the protected conduct.” Id. (quoting Rodríguez-García v. Miranda-Marín, 610 F.3d 756, 765-66 (1st Cir. 2010)).

The district court bypassed step one and proceeded to step two, determining that McGunigle’s claim failed at the second step. McGunigle, 132 F.Supp.3d at 173. Specifically, the district court concluded that McGunigle’s interest in commenting on the dog-ordinance issue did not outweigh his employer’s interests “in maintaining the obedience and loyalty of its police officers” and “in setting enforcement priorities and ensuring that those priorities are implemented in a fair and sensible manner.” Id. at 172-73; see also Decotiis, 635 F.3d at 35 (explaining that at step two the court must apply the Pickering test, which “balance[s] the value of an employee’s speech — both the employee’s own interests and the public’s interest in the information the employee seeks to impart — against the employer’s legitimate government interest in ‘preventing unnecessary disruptions and inefficiencies in carrying out its public service mission’ ” (quoting Guilloty Perez v. Pierluisi, 339 F.3d 43, 52 (1st Cir. 2003))). But because, as we explain below, we conclude that McGunigle has failed to offer any evidence demonstrating a causal connection between his speech and the adverse employment actions, we will not tarry at step one or two, but will proceed directly to the third step of the retaliation inquiry — causation.

As noted above, to succeed on his First Amendment retaliation claim, McGu-nigle must introduce sufficient evidence to allow a finding that his speech “was a substantial or motivating factor behind the adverse employment action.” Guilloty Perez, 339 F.3d at 55. Although McGunigle may rely on circumstantial evidence to make this showing, he must produce some facts linking his employer’s adverse employment actions to his protected conduct. Id. at 55-56. “If [McGunigle] succeeds in establishing this causal relationship, the burden of persuasion shifts to the defendants to prove ... that the adverse employment action would have been taken ’even in the absence of the protected conduct.’” Id. at 56 (quoting Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)).

McGunigle argues, in essence, that he produced sufficient circumstantial evidence to show that, after he spoke out about the police department’s failure to enforce the dog ordinances, Chief Keenan had it in for him. McGunigle claims that Chief Keenan employed “a pattern of serious, unsupported adverse employment actions” to punish him for speaking out. Although McGunigle seemed to concede at oral argument that the only potentially actionable adverse employment actions were Chief Keenan’s 2012 revocation of his license to carry and McGunigle’s subsequent termination, McGunigle points to a variety of other allegedly harassing incidents as evidence of Chief Keenan’s animus. Most concretely, McGunigle relies on Chief Keenan’s 2009 order that McGunigle surrender his firearm and undergo a psychiatric evaluation, and the Department’s handling of his FMLA leave as evidence of Chief Keenan’s harassment (see footnote 2).

But even assuming, favorably to McGu-nigle, that Chief Keenan’s requirement that McGunigle undergo a psychiatric evaluation and his handling of the FMLA leave amounted to adverse employment actions in the § 1983 context, Barton v. Clancy, 632 F.3d 9, 29 (1st Cir. 2011) (explaining that “the ‘adverse employment action’ inquiry in the section 1983 context focuses on whether an employer’s acts, viewed objectively, place substantial pressure on the employee’s political views” and noting that “[a] campaign of informal harassment ... would support a First Amendment retaliation claim if the alleged harassment would have [ ] a chilling effect”), McGunigle points to nothing linking these incidents to his protected speech. He simply argues that they must have been in retaliation for his speech because they happened after-wards.

McGunigle admits, however, that for the purposes of his First Amendment claim his only relevant speech was in the fall of 2007. In other words, McGunigle acknowledges that there was a temporal gap of at least two years between his speech and the first allegedly harassing incident — Chief Keenan’s requirement that McGunigle submit to a psychiatric evaluation — and a gap of over five years between his protected speech and the loss of his license to carry and his discharge. McGu-nigle does not answer for this causation gap, which, standing alone, is too long to support an inference of a causal connection between his speech and the adverse employment actions absent other evidence of improper motive. See, e.g., González-Droz v. González-Colón, 660 F.3d 1, 17 (1st Cir. 2011) (finding that “an interval of [fourteen months] cannot establish the necessary linkage between protected speech and some challenged action”); Lewis v. City of Boston, 321 F.3d 207, 218 (1st Cir. 2003) (finding that a temporal gap of “over a year and a half before [the plaintiff] was terminated ... seriously undermines his temporal proximity argument”).

Any inference that McGunigle’s speech was the motivating factor behind Chief Keenan’s revocation of his license to carry and his termination is further undermined by the fact that Chief Keenan was not even the Chief at the time of the protected speech. McGunigle offers no explanation of why Chief Keenan would retaliate against him for actions that occurred a year before he became Chief, and the record similarly provides no insight.

On the other hand, the record suggests, even when viewed favorably to McGunigle, that Chief Keenan’s concerns about McGu-nigle’s temperament were reasonable. As discussed above, in the lead up to McGuni-gle’s termination, Chief Keenan received numerous complaints about McGunigle’s handling of the traffic cone incident. Multiple witnesses claimed that McGunigle had been “abrasive, loud, and argumentative” during his interactions with Webber. One witness, who actually described himself as a “friend” of McGunigle’s, added that McGunigle having or “carrying a gun was ‘scary.’ ” Webber echoed these concerns in her citizen complaint, explaining that she felt unsafe around McGunigle and was “very concerned for [her] well being, knowing that [ ] McGunigle [was] carrying a loaded weapon.”

Against this backdrop, it was certainly reasonable for Chief Keenan to be concerned about McGunigle’s fitness to carry and possess a firearm. And whatever McGunigle’s subjective intentions, when McGunigle then disobeyed Chief Keenan’s stay-away order and followed Webber into the police station, it was similarly rational for Chief Keenan to worry that McGunigle was intentionally harassing and intimidating her. Indeed, when the Quincy District Court upheld the revocation of McGuni-gle’s firearm license, it unambiguously concluded that it was reasonable for Chief Keenan to “have found that McGunigle was a person who ... was out of control and who reflected poor decision making.” Furthermore, the record supports the inference that McGunigle’s behavior may have been escalating, and McGunigle has presented no probative evidence demonstrating that Chief Keenan’s stated reasons for revoking his license to carry were pre-textual.

Piecing all of McGunigle’s behavior together, then, not only has McGunigle failed to establish a causal connection between his protected speech and the adverse employment actions, but appellees have met their burden to show that they would have taken the same adverse employment actions regardless of McGunigle’s 2007 speech. See Guilloty Perez, 339 F.3d at 56 (noting that “[i]f the plaintiff succeeds in establishing this causal relationship, the burden of persuasion shifts to the defendants to prove ‘by a preponderance of the evidence’ that the adverse employment action would have been taken ‘even in the absence of the protected conduct.’ ” (quoting Lewis, 321 F.3d at 219 and Mt. Healthy, 429 U.S. at 287, 97 S.Ct. 568)). We therefore conclude that McGunigle’s § 1983 First Amendment retaliation claim fails at the summary judgment stage.

B. MCRA Claim

Having found that McGunigle has proffered insufficient facts to survive a motion for summary judgment on his § 1983 claim, we can make short work of his MCRA claim against Chief Keenan and Captain Dougan in their individual capad-ties. To prevail, McGunigle must show that “(1) his exercise or enjoyment of rights secured by the Constitution or laws of either the United States or of the Commonwealth (2) has been interfered with, or attempted to be interfered with, and (3) that the interference or attempted interference was by threats, intimidation or coercion.” Bally, 532 N.E.2d at 51-52 (quoting Mass. Gen. L. c. 12, § 11H). For the reasons discussed in some detail above, we conclude that Chief Keenan and Captain Dougan did not interfere with McGu-nigle’s “exercise or enjoyment of rights secured by the Constitution or laws of either the- United States or of the Commonwealth.” Id.

Moreover, we agree with the district court that McGunigle has failed to identify threats, intimidation, or coercion by Chief Keenan or Captain Dougan sufficient to give rise to an MCRA claim. See Planned Parenthood League of Mass., Inc. v. Blake, 417 Mass. 467,631 N.E.2d 985, 990 (1994) (explaining that “threat” “involves the intentional exertion of pressure to make another fearful or apprehensive of injury or harm”; “intimidation” “involves putting in fear for the purpose of compelling or deterring conduct”; and “coercion” involves “the application to another of such force, either physical or moral, as to constrain him to do against his will something he would not otherwise have done”). McGuni-gle points to only one comment by either Chief Keenan or Captain Dougan that he claims rises to the level of threats, intimidation, or coercion: an alleged January 2009 statement by Captain Dougan to a union representative that if McGunigle did not “watch himself,” he was “gonna get canned.”

This single alleged comment — made not to McGunigle, but to a third party — is likely insufficient to sustain McGunigle’s MCRA claim. Regardless, as the district court noted in an earlier Rule 12(b)(6) proceeding, the statute of limitations for McGunigle’s MCRA claim is three years, see Flynn v. Associated Press, 401 Mass. 776, 519 N.E.2d 1304, 1305 (1988), and therefore any “retaliatory acts that took place prior to May 11, 2009 are untimely and no longer actionable,” McGunigle v. City of Quincy, No. 12-10852-JLT, 2013 WL 3892901, at *2 (D. Mass. July 25, 2013). Accordingly, we conclude that McGunigle’s MCRA claim also fails at the summary judgment stage.

C. Defamation Claim

Finally, McGunigle argues that his defamation claim against Chief Keenan was improperly subjected to summary judgment because Chief Keenan’s statements to the press in the wake of the traffic cone incident “were clearly defamatory.”

To succeed on his defamation claim, McGunigle must show that: (1) Chief Keenan “made a statement, concerning [McGunigle], to a third party”; (2) “the statement was defamatory such that it ’could damage [MeGunigle’s] reputation in the community’”; (3) Chief Keenan “was at fault in making the statement”; and (4) the statement caused McGunigle to suffer either “economic loss ... or is actionable without proof of economic loss.” Shay v. Walters, 702 F.3d 76, 81 (1st Cir. 2012) (quoting Ravnikar v. Bogojavlensky, 438 Mass. 627, 782 N.E.2d 508, 510-11 (2003)). And because police officers are “public officials” for the purposes of a defamation action, McGunigle cannot recover on his defamation claim unless he also “proves by clear and convincing evidence that [Chief Keenan] made the false statement with actual malice.” Rotkiewicz v. Sadowsky, 431 Mass. 748, 730 N.E.2d 282, 287, 289 (2000). This means that McGunigle must show that Chief Keenan “published” the defamatory statement with “knowledge that it was false or reckless disregard of whether it was false.” Id. at 289 (quoting Stone v. Essex Cty. Newspapers, Inc., 367 Mass. 849, 330 N.E.2d 161, 173 (1975)). It is McGunigle’s burden to prove that the “allegedly defamatory statement^ are] materially false.” Yohe v. Nugent, 321 F.3d 35, 41 (1st Cir. 2003).

McGunigle relies on two Patriot Ledger articles to support his defamation claim. First, McGunigle points to the March 12, 2012, article where Chief Keenan is quoted as saying that McGunigle’s “version [of the cone incident] differed considerably from all of the eyewitness versions” and that “[u]ntruthfulness for a police officer is a serious infraction.” Next, McGunigle points to the March 21, 2012, article concerning the revocation of McGu-nigle’s i license to carry due to allegations that he intimidated Webber. In that article, Chief Keenan is quoted as saying that “[b]asically [McGunigle] walked to an ATM, but I don’t believe he conducted business.... We don’t believe that he had a legitimate purpose to be in there. I believe it was in an effort to intimidate the witness in the previous disciplinary case.”

McGunigle argues that these statements were defamatory and that Chief Keenan knew them to Be false. But to succeed on his defamation claim, McGu-nigle must proffer “sufficient evidence to permit the conclusion that [Chief Keenan] in fact entertained serious doubts as to the truth of his [statements].” Stone, 330 N.E.2d at 173. This is an entirely subjective inquiry, Rotkiewicz, 730 N.E.2d at 289, and McGunigle points to nothing in the summary judgment record that suggests Chief Keenan made these statements knowing that they were false or with reckless disregard for their truth or falsity. See id. at 287.

To the contrary, as discussed in some detail above, the evidence suggests that Chief Keenan reasonably believed that McGunigle was lying about the cone incident and about intentionally harassing Webber — remember: Chief Keenan had previously charged McGunigle with untruthfulness about the cone incident; the cone incident eye-witness statements, if not considerably different from McGuni-gle’s version of events, at least tended to corroborate Webber’s version; the lieutenant who witnessed the second Webber incident also thought that McGunigle had followed Webber to the police station as part of “a pattern of intimidation and harassment”; and the second hearing officér similarly concluded that McGunigle was likely attempting to harass or intimidate Web-ber.

Viewing the record as a' whole, then, it is clear that the allegedly defamatory statements reflect Chief Keenan’s honest belief that McGunigle had been untruthful and that he had intimidated a witness, and McGunigle has offered no evidence that Chief Keenan believed any of the statements’ implied facts to be false, or that Chief Keenan recklessly disregarded any actual facts. See Rotkiewicz, 730 N.E.2d at 289. We therefore agree with the district court that no genuine issue of material fact exists as to whether Chief Keenan’s statements were defamatory.

III. CONCLUSION

For the reasons articulated above, we affirm. Costs to appellees.

      . Although the articles themselves are not contained in the record, McGunigle acknowledged that, around the same time as the Boston Globe coverage, the Patriot Ledger and the Quincy Sun ran similar articles regarding the dog ordinance controversy, but McGuni-gle did not recall if he made any comments to those papers.

      . All did not go smoothly for McGunigle in the intervening years. To begin with, a year after Chief Keenan took over from Chief Crowley, McGunigle's brother was involved in an altercation and was criminally charged as a result. As a consequence, McGunigle missed several days of work and, to justify his absence, he submitted a doctor's note, explaining that he was having "a mental health issue.” Upon receiving this note, Chief Keenan promptly placed McGunigle on paid administrative leave, and ordered him to surrender his firearm and undergo a psychiatric evaluation. While on paid leave and waiting for the evaluation, McGunigle was not allowed work details or overtime. In an effort to get him reinstated immediately, McGunigle’s doctor wrote several follow-up notes to Chief Keenan, clarifying that McGunigle's absence "was not due to a personal mental health issue,” and opining that he could "return to work.” McGunigle eventually submitted to the ordered psychiatric evaluation, and once he was cleared, Chief Keenan reinstated McGunigle immediately.
      Then, six months later, McGunigle’s wife suffered a heart attack, and McGunigle requested leave. He was granted three months under the Family Medical Leave Act (FMLA), but when his leave expired McGunigle did not return to work. Because McGunigle failed to provide any updates, he was not granted an extension of his FMLA leave and his continued absence was considered unexcused sick time. Once McGunigle returned to work, the leave issue was "straightened out” and all of McGunigle’s accrued vacation and sick time was restored.

      . Around the same time, while the initial cone-incident charges were still pending, McGunigle requested his personnel file. In response, McGunigle was provided with a file containing only four pieces of paper. Believing that he was being denied access to his file, he lodged a complaint with the Attorney General’s Office. He was then informed that Chief Keenan "was in the process of giving all [his] files to the union attorney." Eventually, McGunigle's complete personnel file was provided to the union attorney, and McGunigle reviewed it in late October 2011.

      . Between 1998 and 2011, McGunigle faced multiple disciplinary violations, however, the exact contours of all these violations are not divulged in the record.

      . McGunigle did not appeal the Massachusetts Superior Court decision. See Mass. Gen. L. c. 140, § 131(f); see also e.g., Mazurczyk v. Chief of Police of Chelmsford, No. 14-P-369, 2014 WL 6994664, at *1 (Mass. App. Ct. Dec. 12, 2014) (reviewing District and Superior Court decisions and considering whether "the chief acted within the authority granted by G.L. c. 140, § 131, to determine individual suitability to carry a firearm”).

      . McGunigle also makes a confusing, throwaway argument that appellees' claim that they were not motivated by McGunigle's speech necessarily forecloses Chief Keenan’s and Captain Dougan's qualified immunity defense. Because we do not reach the merits of the parties' qualified immunity arguments, we do not attempt to tease out this argument.

      . At the first step, we, like the district court, are skeptical that McGunigle was acting as a private citizen. His statements to WHDH Channel 7 News and to the Boston Globe that he was "just doing [his] job,” and that "he was only enforcing the law” certainly give the impression that he was speaking as a police officer and not as a citizen. See Foley v. Town of Randolph, 598 F.3d 1, 6 (1st Cir. 2010) (explaining that "when public employees make statements 'pursuant to their official duties,’ they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communication from employer discipline” (quoting Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006))).

      . McGunigle argues that the jury could also consider, as evidence of Chief .Keenan’s harassment: (1) Chief Keenan’s statement in a deposition that he agreed with Chief Crowley’s order to stop issuing citations; (2) an unsupported allegation that Chief Keenan had personal animosity towards McGunigle; (3) the fact that Chief Keenan admitted at the deposition that he had seen the WHDH Channel 7 news report; and (4) the fact that McGu-nigle's personnel file contained copies of the dog ordinance newspaper articles.

      . We note that these allegedly harassing incidents were eventually resolved without detriment to McGunigle. Once he returned to work, McGunigle's FMLA leave was recognized and his sick time restored. And McGu-nigle admits that Chief Keenan “had the right to require [ ] McGunigle to submit to a mental health examination” after receiving a note from McGunigle's personal physician declaring that McGunigle was having "a mental health issue.”

      . McGunigle also points to Mayor Phelan's reported comment to McGunigle’s wife that she should “drop” the dog-ordinance issue and "let it go.” But we are unsure how Mayor Phelan’s statement amounts to threats, intimidation, or coercion by Chief Keenan or Captain Dougan. And we do not see how Mayor Phelan’s reported statement to McGunigle’s wife equals an interference with McGunigle's exercise or enjoyment of rights secured by the federal or state constitution by threats, intimidation, or coercion.

      . Because we conclude that McGunigle’s § 1983 retaliation claim and MCRA claim fail, we need not address the parties’ qualified immunity arguments.

      . In the district court, McGunigle relied on an additional defamatory statement: a May 2, 2012 article about McGunigle’s termination hearing where Chief Keenan is quoted as saying ”[i]n my 29 years on the force, there’s been nothing like this that I can remember.” The district court concluded that the statement was merely "an example of 'rhetorical hyperbole’ ” and that it could not "form the basis for a defamation claim.” McGunigle v. City of Quincy, 132 F.Supp.3d 155, 179 (D: Mass. 2015). McGunigle does not renew this claim on appeal.


author: PER CURIAM:

text:
    Thomas WEILAND, Petitioner, v. Loretta E. LYNCH, United States Attorney General, Respondent.
    Docket No. 14-3631-ag
    August Term, 2015
    United States Court of Appeals, Second Circuit.
    Submitted: June 27, 2016
    Decided: June 29, 2016

      Stephen K. Tills, Orchard Park, NY, for Petitioner.
    D. Nicholas Harling, Trial Attorney (Ernesto H. Molina, Jr., Assistant Director, on the brief), for Benjamin C. Mizer, Principal Deputy Assistant Attorney General, United States Department of Justice, Washington, DC, for Respondent.
    Before: PARKER, LOHIER, and CARNEY, Circuit Judges.
   PER CURIAM:

Thomas Weiland, a citizen of Germany, petitions for review of a Board of Immigration Appeals (“BIA”) decision dismissing his appeal from a decision of the Immigration Court ordering his removal. Weiland was charged as removable based on his conviction for possession of child pornography under New York Penal Law § 263.11, which the Government characterizes as an aggravated felony. Weiland argues that this conviction does not qualify as an aggravated felony under the Immigration and Nationality Act (“INA”) because it lacks an interstate commerce element that is present in the analogous federal child pornography statute. But in Torres v. Lynch, which was decided after briefing concluded in this appeal, the Supreme Court held that violation of a state criminal law may constitute an aggravated felony for purposes of the INA even if the law lacks a federal jurisdictional element. — U.S.-, 136 S.Ct. 1619, 1634, 194 L.Ed.2d 737 (2016). We therefore DENY the petition for review of the BIA’s decision.

BACKGROUND

Weiland entered the United States as a visitor in 1969 and became a lawful permanent resident the following year. In 2004 he was convicted of possessing an obscene sexual performance by a child in violation of New York Penal Law § 263.11. The Department of Homeland Security later initiated removal proceedings against him based on the 2004 conviction, which it viewed as an aggravated felony as defined' in 8 U.S.C. § 1101(a)(43)(I). The INA includes in its definition of aggravated felonies any offense “described in section ... 2252 of Title 18,” which prohibits the possession, reproduction, and distribution of child pornography. 8 U.S.C. § 1101(a)(43)(D; 18 U.S.C. § 2252. As the INA further makes clear, “[t]he term [aggravated felony] applies to an offense ... whether in violation of Federal or State law.” 8 U.S.C. § 1101(a)(43).

Weiland argued to the Immigration Judge that this definition of “aggravated felony” did not cover his conviction. Both parties agreed that § 2252(a)(4) was the federal provision that most resembled the elements of the New York child pornography statute under which Weiland was convicted. But § 2252(a)(4) includes a federal jurisdictional requirement that New York’s child pornography statute lacks. In order to convict a defendant under the federal statute, the visual depiction must have been possessed either within the special maritime and territorial jurisdiction of the United States or on any land or building owned, leased, used, or controlled by the United States Government; or it must have been transported using a means or facility of interstate or foreign commerce. 18 U.S.C. § 2252(a)(4). According to Wei-land, his conviction was not an offense described in § 2252(a)(4) because the New York statute does not. have an interstate commerce requirement.

The Immigration Judge rejected this argument and ordered Weiland removed. Relying on the BIA’s decision in In re Vasquez-Muniz, 23 I. & N. Dec. 207, 213 (BIA 2002), the Immigration Judge concluded that a state criminal law need not contain a federal jurisdictional element to be “described in” one of the corresponding federal statutes identified in § 1101(a)(43). The BIA dismissed Weiland’s appeal. In re Thomas Weiland, No. [ AXXX XXX XXX ] (BIA Aug. 28, 2014). This appeal followed. With the agreement of both parties, we held our disposition of the appeal in abeyance pending the Supreme Court’s decision in Torres v. Lynch, — U.S. -, 136 S.Ct. 1619, 194 L.Ed.2d 737 (2016).

DISCUSSION

On appeal, Weiland renewed his claim that New York’s child pornography statute is not “an offense described in” 18 U.S.C. § 2252. But, as Weiland appears to acknowledge, that argument was foreclosed by our decision in Torres v. Holder, 764 F.3d 152 (2d Cir. 2014).

In Torres we considered whether a New York state conviction for attempted arson qualified as an aggravated felony under the IN A. Id. at 153. New York’s arson law, like the child pornography law under which Weiland was convicted, had a federal analogue that was included in the INA’s definition of an aggravated felony. See 8 U.S.C. § 1101(a)(43)(E)(i). The federal statute differed from the state law only insofar as it required that the property damaged was “used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce.” 18 U.S.C. § 844(i). We were inclined to conclude for purposes of § 1101(a)(43) that an offense “described in” a federal statute “need not reproduce the federal jurisdictional element to have immigration consequences.” Torres, 764 F.3d at 157. But we also acknowledged that “this conclusion [did not] follow[] inexorably from the INA’s text and structure.” Id. We therefore deferred to the interpretation of the BIA, which held in In re Bautista, 25 I. & N. Dec. 616 (BIA 2011), that New York’s arson statute was an offense “described in” 18 U.S.C. § 844(i). Torres, 764 F.3d at 158; see also Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (“[I]f the statute is silent or ambiguous with respect to the specific issue ... a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency”).

On appeal, Weiland urged us to reconsider our decision in Torres. “Generally speaking,” we are “bound by prior decisions of this court unless and until ... [they] are reversed en banc or by the Supreme Court.” In re Arab Bank, PLC Alien Tort Statute Litig., 808 F.3d 144, 154 (2d Cir. 2015) (quotation marks omitted). “[T]here is an exception to this general rule when an ‘intervening Supreme Court decision casts doubt on our controlling precedent.’ ” Id. (alteration omitted) (quoting Wojchowski v. Daines, 498 F.3d 99, 106 (2d Cir. 2007)). Weiland argued we should nevertheless disregard Torres because the Third Circuit has vacated Bautista, the BIA decision to which we deferred. See Bautista v. Attorney Gen. of U.S., 744 F.3d 54, 66 (3d Cir. 2014). Shortly after briefing concluded in Weiland’s appeal, however, the Supreme Court granted certiorari review of our decision in Torres and affirmed, thus abrogating the Third Circuit’s decision in Bautista. See Torres v. Lynch, 136 S.Ct. at 1634 (2016). The Court held that a federal jurisdictional element “is properly ignored when determining if a state offense counts as an aggravated felony under § 1101(a)(43).” Id.

After the Supreme Court decided Torres v. Lynch, we permitted the parties to submit additional briefing. Abandoning his original argument, Weiland now claims that, unlike the arson statute at issue in Torres v. Lynch, which, he asserts, has no “innate link to interstate commerce,” the interstate commerce component of the federal child pornography statute is a requirement of the underlying substantive offense. See Pet’r’s Letter 2, June 7, 2016, ECF No. 90. This argument is unavailing for two reasons. First, Weiland ignores that, in addition to proscribing the transportation of child pornography using a means of interstate commerce, § 2252 also criminalizes the possession of child pornography “in the special maritime and territorial jurisdiction of the United States, or on any land or building owned by, leased to, or otherwise used by or under the control of the Government of the United States.” 18 U.S.C. § 2252(a)(4). Weiland does not argue that this element is also a requirement of the substantive offense. Second, the Court in Torres v. Lynch expressed concern that requiring a state law to include a federal jurisdictional element in order to be an offense “described in” one of the federal laws identified in § 1101(a)(43) would exclude most state child pornography laws — an outcome that the Court characterized as “perverse.” Torres v. Lynch, 136 S.Ct. at 1628-29. In light of Torres v. Lynch, we conclude that New York’s child pornography statute is an offense “described in” § 2252.

CONCLUSION

For the foregoing reasons, we DENY the petition for review of the BIA’s decision.