source: Caselaw Access Project

author: KAREN NELSON MOORE, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Sandra Maxine WHITE, Defendant-Appellant.
    No. 15-2234
    United States Court of Appeals, Sixth Circuit.
    Argued: December 1, 2016
    Decided and Filed: January 13, 2017

      ARGUED: Matthew T. Nelson, WARNER, NORCROSS & JUDD LLP, Grand Rapids, Michigan, for Appellant. Hagen W. Frank, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Ap-pellee. ON BRIEF: Matthew T. Nelson, C. Ryan Grondzik, WARNER, NORCROSS & JUDD LLP, Grand Rapids, Michigan, for Appellant. Hagen W. Frank, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee.
    Before: MOORE and CLAY, Circuit Judges; HOOD, District Judge.

       The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting by designation.

   OPINION

KAREN NELSON MOORE, Circuit Judge.

Sandra White (“White”) and her husband Joseph White operated a travel agency. In order to obtain low airline fares for the agency’s clients, White routinely booked military-rate travel for her nonmilitary-member clients. When airlines became suspicious of White’s practices, and asked her for proof of her clients’ military status, White manufactured fake military identification cards and sent them to the airlines as alleged proof of her clients’ military credentials. The airlines suspected that the military identification cards were forged and contacted investigators. After a jury trial, White was convicted of mail fraud and aggravated identity theft, and sentenced to a total of ninety-four months of imprisonment.

White now challenges her conviction and sentence on the basis that (1) the district court read an improper definition of the term “use” into the aggravated identity theft statute; (2) the district court abused its discretion in refusing to admit certain evidence of White’s intention to repay some of the airlines’ losses; and (3) the district court erred in calculating the amount of White’s victims’ losses. For the reasons set forth below, we AFFIRM the judgment of the district court.

I. FACTS AND PROCEDURE

Defendant Sandra White and her husband Joseph White owned and operated Corporate Travel Consultants/Travel by Design, Inc. (“CTC”) from 1989 through 2011. R. 89 (Stipulation) (Page ID #480). The agency’s accreditation was revoked in 2003 after audits conducted by United Airlines determined that CTC generally and White specifically had engaged in fraudulent ticketing schemes that cost the airline nearly $100,000 in airfares. R. 112 (Presen-tence Investigation Report (“PSR”)) (Page ID #572). White nonetheless continued her work as a travel agent as a subcontractor for other accredited travel agencies throughout the country, enabling her to maintain her practice of acquiring and selling airfares. Id. White continued to obtain fraudulent ticket fares for her clients by providing false information about her clients’ ages, possession of various discount certificates, and military status. Id. As a travel agent, White had an opportunity to obtain additional revenue through commissions, service fees, and additional bookings. R. 143 (Trial Tr. Vol. 4 at 735) (Page ID #1477). At tidal, White’s victims testified that she charged service fees and other airfare directly to her clients’ credit cards, sometimes for persons other than those specific clients, and sometimes without their permission. R. 142 (Trial Tr. Vol. 3) (Page ID #1264,1343-44).

When travel agencies violate an airline’s fare policy in a manner that causes the airline financial loss, the airline issues Agency Debit Memoranda (“ADM”) detailing the loss and requiring payment to the airline. R. 112 (PSR) (Page ID #571). An operator of one of the travel agencies with whom White subcontracted testified at trial that within two years of working with White, the agency received more than $100,000 in ADMs based on airfare that White booked with Delta and United Airlines. R. 144 (Trial Tr. Vol. 5 at 894-95, 909, 913-14) (Page ID #1636-87, 1651, 1655-56). During one six-month period between January 1, 2010 and June 30, 2010, one of the travel agencies for which White was a subcontractor saw its percentage of sales resulting in ADMs increase from “[n]ot even a quarter of one percent, less than a half of a percent” to nearly fifteen percent. Id. at Page ID #1654-57.

The fraudulent scheme that is largely at issue in this case concerns White’s practice of securing lower rates by falsely informing airlines that her clients were members of the United States Armed Forces. R. 143 (Trial Tr. Vol. 4) (Page ID #1497-99); R. 144 (Trial Tr. Vol. 5) (Page ID #1656-57). Because of the volume of White’s bookings, airlines and other travel agencies became suspicious. When White was asked by her subcontracting partners to produce proof that her customers qualified for military discounts, she created false Armed Forces Identification (“AFID”) cards using customers’ real names and actual dates of birth. R. 143 (Trial Tr. Vol. 4) (Page ID #1500-1501). The airlines determined that the cards White manufactured were fraudulent and subsequently notified the United States Secret Service. R. 139 (Trial Tr. Vol. 1) (Page ID #923-28).

Sandra White was charged with wire fraud in a single-count Indictment on November 7, 2013. R. 1 (Indictment) (Page ID #1). On February 27, 2014, the Government filed a First Superseding Indictment charging White with wire fraud and aggravated identity theft. R. 2 (First Superseding Indictment) (Page ID #9). In addition, her husband, Joseph .White, was charged. The Government offered the Whites a deal wherein White would plead guilty to the wire fraud count and Joseph White would accept a diversionary disposition. R. 31 (Plea Agreement) (Page ID #77). Joseph White refused the agreement, and the Whites proceeded toward trial. Two months before trial, White moved to dismiss Count Two, the aggravated identity theft count, which the government opposed. R. 53 (Mot. to Dismiss) (Page ID #190); R. 56 (Resp. in Opp.) (Page ID #215). The district court denied the motion. R. 148 (Mot. Hr’g) (Page ID #2160-61); R. 63 (Order) (Page ID #242). White filed a motion for reconsideration immediately before trial, R. 81 (Mot. for Reconsideration) (Page ID #453), and the district court again denied the motion to dismiss Count Two. R. .91 (Order) (Page ID #484); R. 139 (Trial Tr. Vol. 1) (Page ID #743-745). .

During trial, White attempted to offer evidence about her repayment of some of the airlines’ and travel agencies’ losses that resulted from her scheme. The district court permitted White to examine witnesses about actual repayments that were made to victims; however, White was not permitted to delve into loss-recoupment negotiations that took place long after White was confronted by her victims. R. 143 (Trial Tr. Vol. 4) (Page ID #1530r 31).

The’ jury found White guilty' on both counts on June 2, 2015. Joseph White was acquitted. On September 25, 2015, the court sentenced White to seventy months of imprisonment on Count One and twenty-four months on Count Two, to be served consecutively. R. 121 (Judgment) (Page ID #675). White filed a timely notice of appeal.

II. ANALYSIS

A. Standard of Review

Whether the district court properly construed the meaning of the word “uses” within the ambit of 18 U.S.C. § 1028A is a question of statutory construction. We review issues of statutory interpretation de novo. United States v. Miller, 734 F.3d 530, 539 (6th Cir. 2013). We also review a district court’s denial of a motion to dismiss the indictment de novo. United States v. Ali, 557 F.3d 715, 720 (6th Cir. 2009).

We review a district court’s evi-dentiary rulings for abuse of discretion. United States v. Freeman, 730 F.3d 590, 595 (6th Cir. 2013). “An abuse of discretion occurs when a district court relies on clearly erroneous findings of fact, improperly applies the law, or uses an erroneous legal standard.” United States v. Dixon, 413 F.3d 540, 544 (6th Cir. 2005). “[W]e will leave rulings about admissibility of evidence undisturbed unless we are left with the definite and firm conviction that the [district] court ... committed a clear error of judgment in the conclusion it reached.” United States v. Wagner, 382 F.3d 598, 616 (6th Cir. 2004) (internal quotation marks omitted).

“We review a district court’s calculation of the ‘amount of loss’ for clear error, but consider the methodology behind it de novo.” United States v. Meda, 812 F.3d 502, 519 (6th Cir. 2015). We have previously instructed district courts “to determine the amount of loss [under U.S.S.G. § 2Bl.l(b)(l) ] by a preponderance of the evidence, and the district court’s findings are not to be overturned unless they are clearly erroneous.” United States v. McCarty, 628 F.3d 284, 290 (6th Cir. 2010) (quoting United States v. Triana, 468 F.3d 308, 321 (6th Cir. 2006)). “In order to challenge this calculation, [the defendant] must ‘carry the burden of demonstrating that the court’s evaluation of the loss was not only inexact but outside the universe of acceptable computations.’” United States v. Martinez, 588 F.3d 301, 326 (6th Cir. 2009) (quoting United States v. Raithatha, 385 F.3d 1013, 1024 (6th Cir. 2004), vacated and remanded on other grounds, 543 U.S. 1136, 125 S.Ct. 1348, 161 L.Ed.2d 94 (2005)).

B. Defining “Use” Pursuant to 18 U.S.C. § 1028A

White first argues that the district court incorrectly applied Sixth Circuit precedent in holding that “use” of a means identification under 18 U.S.C. § 1028A includes a situation where a defendant purports to act on behalf of another individual by employing that individual’s means of identification. Defendant White was found guilty of aggravated identity theft, which is defined by 18 U.S.C. § 1028A(a)(l):

(1) In general.—Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.

18 U.S.C. § 1028A. Congress enacted § 1028A in 2004 because at the time, “many identity thieves receivefd] short terms of imprisonment or probation” and “after their release, many of these thieves will go on to use false identities to commit much more serious crimes.” H.R. Rep. No. 108-528, 2004 U.S.C.C.A.N. 779 (2004). The aggravated identity theft statute “is intended to reduce the incidence of identity theft and fraud and address the most serious criminals by providing stronger penalties for those who would commit such crimes in furtherance of other more serious crimes.” Id. at 785.

White’s First Superseding Indictment alleged that she “did knowingly use, without lawful authority, means of identification of other persons, to wit, the names of 27 persons for whom she had previously obtained significantly reduced military fares by fraudulently representing that they were members of the Armed Forces of the United States-” R. 2 (First Superseding Indictment at 7) (Page ID #15). The Government further alleged that “[White] used the noted means of identification to manufacture fake Armed Forces Identification Cards, which she then sent by means of interstate wire communications to Delta Airlines, Cain Travel, and The Travel Agent Company in an attempt to justify reduced fares that she had previously obtained in the course of committing wire fraud.” Id.

White argues that the district court failed to apply correctly two of our decisions: United States v. Medlock, 792 F.3d 700 (6th Cir. 2015), and United States v. Miller, 734 F.3d 530 (6th Cir. 2013). Although Miller and Medlock are instructive, we cannot conclude that they counsel in favor of reversal.

In Miller, defendant David Miller was convicted by a jury of two counts of making false statements to a bank and two counts of aggravated identify theft in violation of 18 U.S.C. § 1028A. 734 F.3d at 534. Miller, like White, argued that the aggravated identity theft conviction was improper because he did not “use” a means of identification pursuant to § 1028A. Id. We agreed with Miller and reversed his aggravated identity theft convictions. Id. at 542. Miller had received a loan from a bank for the purchase of land after pledging that land as collateral. Id. at 534. As part of the closing process, Miller submitted to the bank a resolution stating that all persons with an investment stake in the land had attended a recent meeting to discuss the potential loan, and that at that meeting those individuals voted unanimously to allow the property to be pledged as collateral for the loan. Id. at 535. Both statements were false. The resolution also contained the handwritten names of all individuals with an investment stake in the property, as written by Miller’s partner. Id.

The defendant’s argument in Miller was that “18 U.S.C. § 1028A does not criminalize this conduct because he only lied about what [two of the investors whose names were written on the resolution] did, but he did not ‘use’ their names or identities.” Id. at 539. Miller further asserted that he did not “use” another person’s name “because he did not steal or possess their identities, impersonate them or pass himself off as one of them, act on their behalf, or obtain anything of value in one of their names.” Id. at 541. The government responded that “Miller ‘used’ their names to fraudulently obtain a loan from First Bank by misrepresenting that he had the authority to act on behalf of those individuals.” Id. at 539.

In analyzing § 1028A, we concluded that the statute was ambiguous “[b]ecause the parties’ competing interpretations of ‘uses’ demonstrate that it is not entirely clear whether § 1028A criminalizes Miller’s conduct.” Id. at 541. After concluding that legislative history provided no guidance for how we should resolve the ambiguity in Miller’s case, and having been confronted with two reasonable interpretations of the term “uses,” we applied the rule of lenity, which “requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them.” Id. at 542 (quoting United States v. Beals, 698 F.3d 248, 273 (6th Cir. 2012)). In so doing, we con-eluded that “as a matter of law, Miller did not ‘use’ a means of identification within the meaning of § 1028A by signing a document in his own name which falsely stated that Foster and Lipson gave him authority [to act on them behalf].... ” Miller, 734 F.3d at 542. Specifically, we concluded that “[n]othing inherent in the term ‘uses,’ its placement in the text of § 1028A, or the statute’s legislative history clearly and definitely indicates that the term, as applied to the names of persons, is broad enough to reach the mere act of saying that the persons did something” when they in fact had not. Id. (emphasis added).

We applied our holding in Miller to a somewhat different set of facts in Medlock. There, Mr. and Mrs. Medlock operated a non-emergency ambulance service (“MAS”) that transported patients to kidney dialysis. Medlock, 792 F.3d at 703. The couple’s transport company was later reimbursed for those transports by Medicare. Id. Pursuant to United States Department of Health and Human Services (“HHS”) guidelines, a non-emergency ambulance transport company is reimbursed “only when such transport is medically necessary for bedridden patients.” Id. In those circumstances, the ambulance company must have an Emergency Medical Technician (“EMT”) accompany the passenger. Id. at 703-04. Additionally, “[t]he ambulance company documents each trip with a certification of medical necessity (CMN), signed by a doctor, and a ‘run sheet,’ which a Medicare contractor other than the ambulance company reviews to determine whether Medicare should reimburse the company for the trip.” Id. at 704 (footnote omitted). An investigation into MAS concluded that the company’s records lacked some CMNs, and surveillance revealed “four patients walking, riding in the front seat, being double-loaded in an ambulance (i.e., being driven two patients, rather than one, at a time), being driven by single-staffed ambulances, or being transported by wheelchair (rather than stretcher).” Id. Each of those transports had been billed as “single-passenger and ‘stretcher required’ (or equivalent).” Id. Investigators also found at the couple’s home a number of forged CMNs and run tickets. Id.

The government in Medlock argued “that the Medlocks ‘used’ the name and Medicare Identification Numbers of Medicare beneficiaries when they ‘caused a claim to be submitted to Medicare for reimbursement that contained’ such names and numbers ‘without lawful authoxity to do so because the claim falsely stated that’ stretchers were required for transport.” Id. at 705. Finding the Miller rationale “persuasive,” we concluded that the term “use” “must have a more limited definition than the government suggests.” Medlock, 792 F.3d at 706. In comparing Medlock to Miller, we noted that “the defendant in Miller lied about what his partners did and the Medlocks lied about what they did_” Id. (emphasis in original). In finding that the Medlocks did not “use” the names of their patients in violation of § 1028A, we emphasized that the Med-locks “did transport the specific beneficiaries whose names they entered on the forms; they lied only about their own eligibility for reimbursement for the service.” Id. (emphasis in original). While the Med-locks “misrepresented how and why the beneficiaries were transported, ... they did not use those beneficiaries’ identities to do so.” Id. at 707 (emphasis in original). The addendum to our Medlock opinion is also instructive. Id. at 712. There, we affirmed Kathy Medlock’s conviction for aggravated identity theft where she “forgefd] a physician’s signature and thus us[ed] his identity to secure reimbursement fraudulently for unnecessary ambulance transports.” Id. We concluded that “[o]ur rationale for reversing the convictions [on the aggravated identity theft counts relating to the previously discussed falsely submitted Medicare claims] does not apply” to the conviction for signature forging. Id.

In responding to our decisions in Miller and Medlock, the Government argues here that “[v]iewed in a continuum, then, from (1) using names in a lie about what one did [Medlock], to (2) using names in a lie about what others did [Miller], to (3) using names to manufacture fake identification documents and then purporting to submit them on behalf of those persons [White], the facts in this case are well within the reach of the statute as it has now twice been construed.” Gov. Br. at 30. The Government asks that we focus not “on what White did with clients’ names at the time she obtained economic value through fraud,” but “on what she did with their names afterwards when she was attempting to avoid having to repay that value.” Id. at 31. Indeed, Count Two of the First Superseding Indictment alleges that White “used the noted means of identification to manufacture fake Armed Forces Identification Cards, which she then sent by means of interstate wire communications to Delta Airlines, Cain Travel, and The Travel Agent Company in an attempt to justify reduced fares that she had previously obtained” during the commission of her wire fi’aud scheme. R. 2 (First Superseding Indictment at 7) (Page ID #15).

We conclude that White’s actions are distinguishable from both the Miller and Medlock defendants, and that White’s actions in this case are most similar to Kathy Medlock’s affirmed aggravated identity theft conviction for signature forging in the Medlock addendum. Both of those cases were principally about defendants who lied about their own actions. And, importantly, the personal information used in both Miller and Medlock was memorialized in documents that were submitted to other parties with the Miller and Medlock defendants’ names and identities included on those documents. White did more than simply lie about whether her clients were eligible for military discounts. Indeed, she did more than assert to the airlines that her clients were eligible. She took a significant additional step, and submitted what she represented to be actual identification that the United States Military purportedly had issued for her clients. When Wfiiite’s scheme simply involved telling the airlines that her clients were members of the military, her statements to the airlines were similar to the resolution submitted to the bank in Miller and the inaccurate CMNs in Medlock because she was submitting false information about others in her own name. The distinction in this case (and the similarity to Kathy Med-lock’s valid conviction under § 1028A for signature forging) arises from WTiite’s actions in creating false military identification cards and attempting to pass them off as her clients’ own personal means of identification.

The parties do not dispute whether the manufactured military identification cards constituted means of identification or whether they were possessed without lawful authority. We note that “the phrase ‘without lawful authority’ in § 1028A is not limited to instances of theft, but includes cases where the defendant obtained the permission of the person whose information the defendant misused.” United States v. Lumbard, 706 F.3d 716, 725 (6th Cir. 2013). Further, White’s knowledge that she was submitting to the airlines the identification information of her clients satisfies the mens rea requirement of § 1028A. Flores-Figueroa v. United States, 556 U.S. 646, 657, 129 S.Ct. 1886, 173 L.Ed.2d 853 (2009). We therefore conclude that White was properly convicted pursuant to 18 U.S.C. § 1028A because when she manu-factored and submitted to the airlines the fraudulent military identification cards, she “used,” without lawful authority, a means of identification of another person during and in relation to the wire-fraud felony of which she was convicted.

C. Evidentiary Rulings on After-the-Fact Repayment Negotiations

White next argues that the district court abused its discretion by limiting her ability to admit documents related to after-the-fact repayment negotiations with victims of her fraud. As noted supra, we review evi-dentiary rulings for abuse of discretion. White, however, argues that the district court was not ruling on evidentiary issues, but rather was ruling that a particular defense was not available to White as a matter of law. Def. Br. at 25. White is incorrect. The district court excluded some of the evidence of post-loss repayment negotiations on the ground that the evidence was inadmissible pursuant to Federal Rules of Evidence 402 and 403. The district court did, however, permit certain evidence of White’s attempts at repayment to proceed to the jury. We therefore conclude that the district judge’s decision to limit evidence of after-the-fact repayment negotiations must be reviewed for abuse of discretion.

The Government points to United States v. Carter, 483 Fed.Appx. 70 (6th Cir. 2012), a case upon which the district court relied, as the case most instructive on this point. Gov. Br. at 35; R. 146 (Trial Tr. Vol. 7) (Page ID #2007). In Carter, a defendant sought to offer testimony from its corporate counsel that certain efforts were made to remedy and investigate apparent fraud after a demand for repayment had been made. The district court in Carter excluded the evidence, and we affirmed, stating:

A defendant’s intention to repay the victims of fraud is no defense. Likewise, subsequent investigations, repayments, or settlement attempts shed no light on whether a defendant had a previous intent to defraud. These efforts have at best ... small probative value for the purpose of showing lack of evil intent.
Defendant’s subsequent attempts to rectify the fraud are irrelevant to his earlier intent or state of mind, and the district court was within its broad discretion under Rule 403 to exclude that evidence.

Carter, 483 Fed.Appx. at 75 (citations omitted). Three other circuits join the Sixth Circuit in curtailing admission of evidence of post-accusation repayment. See United States v. Jimenez, 513 F.3d 62, 75 (3d Cir. 2008); United States v. Suba, 132 F.3d 662, 677 (11th Cir. 1998); United States v. Sirang, 70 F.3d 588, 595 (11th Cir. 1995); United States v. Foshee, 578 F.2d 629, 632 (5th Cir. 1978).

We note that the trial judge did admit evidence regarding repayments that White actually made. The district court did not, however, permit the admission of evidence of loss-recoupment negotiations that transpired after White’s plan was uncovered. White sought to admit evidence that, long after her fraudulent scheme was discovered, she attempted to repay some of her victims for some of their losses.' These negotiations between White and her victims transpired only after White was confronted by the airlines, her victims, and law enforcement. The temporal, relationship between the fraudulent activity and the attempts at repayment is too attenuated to warrant a reversal. The trial judge, having received full briefing on this issue, R. 94 (Def. Trial Br.) (Page ID #489); R. 98 (Gov. Resp.) (Page ID #500), decided that some of the evidence of repayment was inadmissible under both Carter and Federal Rule of Evidence 403, R. 146 (Trial Tr. Vol. 7) (Page ID #2007); R. 145 (Trial Tr. Vol. 6) (Page ID #1837), and we conclude that he did not abuse his discretion.

D. Calculating Loss Attributable to Defendant White

White’s final argument is that the district court was speculative and incorrect in calculating the amount of loss the airlines suffered. The Probation Office calculated the loss to White’s victims under U.S.S.G. § 2Bl.l(b)(l)(H), which requires at least $400,000 but not more than $1,000,000 in intended loss. R. 112 (PSR) (Page ID #577). The method for calculating loss was adduced at trial from the testimony of various airline representatives. White argues that the airlines’ testimony regarding their loss calculation, which the district court admitted at trial over White’s repeated objections, was “subjective” and that it “significantly overestimated” the amount of loss to the airlines. Def. Br. at 30. The Government, noting that the district court correctly relied on the evidence presented at trial and distilled in the pre-sentence investigation report in accepting the loss calculation, argues that “White challenges a body of documentary and testimonial evidence, provided by industry professionals with decades on the job, with nothing more than a line of ineffective cross-examination that she has recycled into a meritless appellate argument.” Gov. Br. at 40.

“We review a district court’s calculation of the ‘amount of loss’ for clear error, but consider the methodology behind it de novo.” Meda, 812 F.3d at 519. “[T]he district court is to determine the amount of loss [under U.S.S.G. § 2Bl.l(b)(l) ] by a preponderance of the evidence, and the district court’s findings are not to be overturned unless they are clearly erroneous.” United States v. Healy, 553 Fed.Appx. 560, 564 (6th Cir. 2014) (quoting United States v. McCarty, 628 F.3d 284, 290 (6th Cir. 2010)). In demonstrating clear error, “a defendant must show the calculation ‘was not only inexact but outside the universe of acceptable computations.’ ” Id. (quoting United States v. Martinez, 588 F.3d 301, 326 (6th Cir. 2009)).

We cannot concludé from the record that the district court’s determination of loss in this case was “outside the universe of acceptable computations,” or that the methodology used to calculate loss was incorrect. Id. The trial record reveals that the airlines used standard ticket-auditing practices to determine the difference between the fares White obtained fraudulently and the next-cheapest fare possible. Several of the airline witnesses testified about the auditing process during trial, and several audit records were admitted into evidence.

Prior to sentencing, White filed several objections to the PSR, and the government responded. R. 115 (Def. Sent. Obj.) (Page ID #638); R. 116 (Gov. Resp.) (Page ID #654). In her sentencing memorandum, White stated her belief that “[t]he elements of the loss calculation are incorrect and overstated.” R. 115 at Page ID #645. At sentencing, the government represented that “[a]s far as the guidelines go, meeting with [White’s counsel], there is no dispute at this point as to the loss figures .... [White’s counsel] has looked over my filing, Docket Number 116, and agrees with the government’s calculations as far as loss goes.” R. 150 (Sent. Hr’g Tr. at 4) (Page ID #2203); R. 116 (Gov. Sent. Mem. at 7) (Page ID #660). The government then specified the loss amount as $663,610. R. 150 (Sent. Hr’g Tr. at 5) (Page ID #2204). White’s counsel then stated, “I agree on the loss number that we have come to, your Honor, in this sense: Of course we have raised objections about the admissibility of the government’s evidence and, of course, preserve those objections. But we have no objections or want to present no different proofs on these points_ [W]e have come to an agreement on this loss number.” Id. at Page ID #2205. The parties thus agreed that the total loss attributable to White for guidelines calculation purposes was $663,610. R. 150 (Sent. Hr’g Tr. at 5-6) (Page ID #2204-05); R. 116 (Gov. Sent. Mem.) (Page ID #660).

The record does not support a finding that the loss calculation offered by the government and accepted by the district court was outside the universe of acceptable computations. Indeed, the method used to calculate the loss was one that several airline industry witnesses agreed was reasonable, and White did not present evidence that an alternate theory was preferable. Moreover, White did not present evidence that her method would result in an amount below the beginning of the range in U.S.S.G. § 2Bl.l(b)(l)(H) of $400,000. The district court’s determination of the loss attributable to White was not clear error, and its method was reasonable. We therefore affirm the district court’s conclusion regarding calculation of the loss.

III. CONCLUSION

For the reasons set forth above, we AFFIRM the judgment of the district court.


author: ROGERS, Circuit Judge.

text:
    Bobby DODD, Plaintiff-Appellant, v. CITY OF CHATTANOOGA, TENNESSEE; Chattanooga Fire and Police Pension Fund, Defendants-Appellees.
    No. 16-5470
    United States Court of Appeals, Sixth Circuit.
    Argued: November 30, 2016
    Decided and Filed: January 18, 2017

      ARGUED: William Gerald Tidwell, Jr., TIDWELL, IZELL & RICHARDSON, Chattanooga, Tennessee, for Appellant. Zachary H. Greene, MILLER & MARTIN PLLC, Chattanooga, Tennessee, for Ap-pellee City of Chattanooga. Cameron S. Hill, BAKER DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC, Chattanooga, Tennessee, for Appellee Chattanooga Fire and Police Pension Fund. ON BRIEF: William Gerald Tidwell, Jr., TID-WELL, IZELL & RICHARDSON, Chattanooga, Tennessee, for Appellant. Zachary H. Greene, W. Scott Parrish, MILLER & MARTIN PLLC, Chattanooga, Tennessee, for Appellee City of Chattanooga. Cameron S. Hill, William E. Robinson, BAKER DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC, Chattanooga, Tennessee, for Appellee Chattanooga Fire and Police Pension Fund.
    Before: NORRIS, GIBBONS, and ROGERS, Circuit Judges.
   OPINION

ROGERS, Circuit Judge.

This case arises out of a 2012 amendment to the law governing Chattanooga’s Fire and Police Pension Fund. Before 2013, a Fund member’s surviving spouse could receive benefits after the member died without incurring a proportional reduction in the member’s lifetime benefits. In 2012, the City of Chattanooga removed this “default death benefit” for members who were not eligible to retire as of January 1, 2013. Bobby Dodd was not eligible to retire on that date and therefore opted for a five-percent reduction in current, lifetime benefits so that his wife could receive an additional benefit upon his death. Because Dodd would not have incurred this five-percent reduction prior to the 2012 amendment, he sued the City and the Fund, asserting claims under the federal Contract Clause, Due Process Clause, and Takings Clause, as well as Tennessee’s Law of the Land Clause. Dodd also argued that the 2012 amendment was not validly enacted under local law. The district court granted the City’s and the Fund’s motions for summary judgment on all claims, which Dodd now appeals. Because Dodd does not have a contract or property right to the default death benefit, his constitutional claims fail. Dodd’s challenge to the validity of the amendment’s enactment is also without merit.

I.

Chattanooga’s fire and police pension plan is codified in §§ 2-400 to 2-425 of the Chattanooga City Code. Under the plan, a member’s interest in future pension benefits vests after ten years of active service. Chattanooga, Tenn., Code § 2-415 [hereinafter Code]. At that point, the member has the right to receive either a full refund of his contributions or a deferred vested retirement benefit upon turning fifty-five. Id. Then, after twenty-five years of active service, the member becomes entitled to an annual Service Retirement Pension under § 2-411. The pension benefit is calculated, pursuant to § 2-411(a), based on the member’s years of active service and a percentage of his average pay.

Typically, a member’s retirement benefit takes the form of a single-life annuity paid out in monthly installments. However, a member may elect a “Joint and Survivor Option,” which spreads the annuity out over two lives, as an alternative under § 2-418, There are various alternative options in § 2-418, but only Option D is relevant to this appeal. Under Option D, a member receives “[a] decreased retirement benefit payable ... for life,” which continues after the member’s death to a surviving beneficiary, who receives fifty percent of what the member received during his lifetime. Code § 2-418(1). When a member selects Option D, he ends up receiving the actuarial equivalent of a single-life annuity. Id. However, the monthly pension payments during the member’s lifetime are reduced by five percent to account for the funds paid to the member’s beneficiary after the member dies.

In a separate section, the pension plan provides for a “death benefit.” Before the 2012 amendment at issue in this case, § 2-411(c) provided:

Upon the death of any member employed on November 3, 1992, who is retired under the provisions of this Section, or upon the death of such member prior to retirement, but eligible for benefits under this Section, there shall be paid to said member’s beneficiary a death benefit of $10,000.00, and the benefits under Section 2-418, and the surviving spouse shall be paid the sum of $500.00 per month until death if said spouse is not a beneficiary under one of the options listed in Section 2-418. If the member has not elected any option prior to his or her death, a benefit shall be payable to the deceased’s surviving spouse, if any, as though he or she had elected Option D., Section 2-418.

Code § 2-411(c) (2003) (emphasis added). ■Under' this provision, if a member was employed by the City on November 3, 1992, and had elected a Joint and Survivor option, upon the member’s death his beneficiary would receive whatever benefits the beneficiary was entitled to under the member’s § 2-418 election. Pursuant to the boldfaced text, if the member did not make an election under § 2-418, his surviving spouse, if any, would still receive benefits after the member died as if the member had elected Option D. This is the “default death benefit.” As the district court ex<-plained, the default death benefit created a “loophole by which a retiree could receive the full amount of his/her pension in the form of a single life annuity, then have his/her spouse receive a generous death benefit paid in monthly installments, rather than electing a Joint and Survivor option,” which would have decreased the retiree’s lifetime payments.

In response to a substantial financial crisis following the 2008 recession, the City amended the pension plan in 2012 through Ordinance 12674. See Chattanooga, Tenn., Ordinance 12674 (Dee. 11, 2012) [hereinafter Ordinance 12674]. The ordinance eliminated the default death benefit for plan participants who were not eligible to retire as of January 1, 2013, by amending § 2-411(c) to read:

Effective January 1, 2013, upon the death of such member who is eligible for benefits under this Section, there shall be paid to said member’s beneficiary a death benefit of $10,000.00, and the benefits, if any, elected by the member under Section 2-418. If the member has not elected any option prior to his or her death, a benefit shall be payable to the deceased’s surviving spouse, if any, as though he or she had elected Option D., Section 2-418. Notwithstanding the foregoing, if a member who is employed on November 3, 1992, but is not eligible for benefits under this Section on January 1, 2013, or is employed after November 3, 1992, shall die before retirement and after reaching the conditions to be eligible for benefits under this Section or shall die after retirement, there shall be paid to his or her beneficiary or beneficiaries the benefit of $10,000.00 and such benefits elected under Section 2-418.

Ordinance 12674 (emphasis added). Under the amended § 2-411(c), a member who becomes eligible to retire after January 1, 2013, must select an option under § 2-418 for the member’s surviving spouse to receive payments after the member’s death. The benefits are no longer automatic; a member cannot receive the death benefits without proportionally reducing her lifetime payments.

Dodd joined the Chattanooga Police Department on June 6, 1986, and retired as Chief of Police on December 31, 2013, after twenty-five-and-a-half years of service. Prior to the 2012 amendment, Dodd was eligible for the default death benefit, as he was employed in the police force on November 3, 1992. After the 2012 amendment, however, Dodd is no longer eligible for the default death benefit, as he was not eligible to retire until June of 2013—after January 1, 2013. Dodd learned of the change on December 20, 2012, while completing his retirement paperwork, and accordingly elected Joint and Survivor Option D. Because the 2012 amendment forced Dodd to elect Option D for his spouse to actually receive benefits upon Dodd’s death, his current monthly pension has been reduced by five percent—from $6,695.64 to $6,360.86.

Dodd sued the City and the Fund over Ordinance 12674’s elimination of the default death benefit, asserting claims under the Contract Clause, Due Process Clause, and Takings Clause of the U.S. Constitution, as well as the Law of the Land Clause of the Tennessee Constitution. Dodd also claimed that Ordinance 12674 was not validly enacted under Chattanooga law because the City Council passed it after two readings, see Ordinance 12674 p. 5, whereas the pension plan required three. Code § 2-411(d) reads: “The City Council ... may, by ordinance, passed on three separate readings, amend any section of’ the pension plan. In contrast, Chattanooga’s Charter provides that “[n]o ordinance shall be valid unless passed on two (2) separate readings.” Chattanooga, Tenn., Charter § 11.2 [hereinafter Charter]. Previously, the Charter provided for three readings, but the City amended the provision to two readings in 2004. See Chattanooga, Tenn., Ordinance 11590 (Aug. 3, 2004) [hereinafter Ordinance 11590]. While amending the Charter from requiring three readings to requiring two, the City also declared “[t]hat all laws constituting the present Charter of the City of Chattanooga, not in conflict with this amendatory home rule ordinance, be and the same are continued in full force and effect, and all laws or parts of laws in conflict therewith are hereby repealed.” Id. sec. 2. Despite this declaration, the pension plan still requires—on its face— the City Council to read an ordinance that amends the plan three times before adopting it. When the City passed Ordinance 12674—the law challenged in this case— this three-readings requirement existed side-by-side with the two-readings requirement in the City Charter.

Below, the City and the Fund argued that, because the “all laws or parts of laws in conflict therewith are hereby repealed” language effectively repealed the pension plan’s three-readings requirement, only two readings were required to amend the plan through Ordinance 12674. Dodd responded that a separate City Charter provision, § 11.12, prevented the City from repealing the pension plan’s three-readings requirement through the ordinance that amended the Charter from requiring three readings to requiring two. The district court rejected Dodd’s argument. The court reasoned that, because the City Charter controls over conflicting ordinances, the Charter’s two-readings requirement controlled. The court held that, therefore, Ordinance 12674 was validly enacted after only two readings.

The district court also rejected Dodd’s constitutional arguments, starting with his Contract Clause claim. The court held that Dodd’s Contract Clause claim failed as a matter of law because he had no contract right to the default death benefit. The court reasoned that the City Code “unambiguously states that employees only have a contractual interest in vested and accrued financial benefits.” The court further noted that, under the former Code, the default death benefit did not vest or accrue until a member reached twenty-five years of service. Because Dodd had not completed twenty-five years of service when the City amended the default death benefit, he had no vested, accrued interest in the benefit, and thus no contract right to it. The district court rejected Dodd’s Due Process Clause, Law of the Land Clause, and Takings Clause claims along the same lines. The court held that, even if Dodd was entitled to the default death benefit, he would not have a cognizable substantive due process claim. Furthermore, the court reasoned that Dodd had no constitutionally protected property interest in the default death benefit to support his Takings Clause and procedural due process claims. Accordingly, the court granted the City’s and the Fund’s motions for summary judgment, which Dodd now appeals.

II.

Dodd’s Contract Clause claim fails because he had no contract right to the default death benefit when the City amended the benefit in 2012. Frazier v. City of Chattanooga, Tennessee, 841 F.3d 433 (6th Cir. 2016), largely forecloses Dodd’s claim. In Frazier, several members of Chattanooga’s Fire and Police Pension Fund challenged a 2014 amendment to the plan that reduced retirees’ annual cost-of-living adjustment. We held that, pursuant to Chattanooga Code § 2-411(d), the City expressed an intent to be bound only to— and thus pension-plan members can claim a contract right only to—vested, accrued financial benefits. See id. at 436. Because the cost-of-living adjustment was neither vested nor accrued, the members’ Contract Clause claim failed. Id. at 438. So too here; because the default death benefit is neither vested nor accrued, Dodd cannot claim contractual entitlement to it.

As a preliminary matter, § 2-411(d)’s amending language applies to Dodd, even though it was not part of the plan until fourteen years after Dodd joined the police force. From the time Dodd entered the force in 1986 until § 2-411(d) was amended in 2000, the pension plan’s amending language only mentioned increasing benefits.-See Chattanooga, Tenn., Ordinance 9778 sec. 1, item 3 (Aug. 18, 1992). In contrast, the current language in § 2-411(d) reads:

The City Council, City of Chattanooga ... may, by ordinance, passed on three separate readings, amend any section of the [pension plan]; provided that such amendment is not inconsistent with sound actuarial principles, methods, and actuarial assumptions and further provided that such amendment shall not in any way decrease any vested financial benefits accrued by any participant or beneficiary of the ... Fund.

Chattanooga, Tenn., Ordinance 11012 sec. 1, item 7 (May 9, 2000) [hereinafter Ordinance 11012]. It does not automatically follow that, because the pension plan did not specifically allow the City to decrease benefits until fourteen years into Dodd’s service, the current language that allows the City to do so cannot apply to him. This premise ignores the fundamental assumption in Contract Clause analysis that legislation merely expresses current government policy—and future legislatures are free to change that policy—rather than creating contractual obligations. See Nat’l R.R. Passenger Corp. v. Atchison, Topeka & Santa Fe Ry. Co., 470 U.S. 451, 465-66, 105 S.Ct. 1441, 84 L.Ed.2d 432 (1985). Under this rule, because the plan did not specifically limit the City’s ability to reduce pension benefits before 2000, the City likely could have freely amended the plan until it added the current § 2-411(d) language. Furthermore, in Tennessee a pension plan is not “ ‘frozen’ against detrimental changes or modifications the moment an employee begins to participate in it.” Blackwell v. Quarterly Cty. Court of Shelby Cty., 622 S.W.2d 535, 541 (Tenn. 1981). The plan was similarly not set in stone the moment Dodd’s right to some future benefits vested upon reaching ten years of service. Section 2-411(d), along with its limits on decreasing vested, accrued financial benefits, therefore applies to Dodd.

Dodd’s interest in the default death benefit had not vested before the City removed the benefit in 2012. The pension plan’s express vesting provision is § 2-415, titled “Termination of employment after ten years of service; vesting; death after termination.” Code § 2-415. As we recognized in Frazier, “[a]fter ten years of service, § 2-415 gives a participant the right either to a full refund of her contributions or to retirement benefits upon turning fifty-five.” Frazier, 841 F.3d at 437. Just because Dodd’s interest in some future benefits vested after ten years of service does not mean that Dodd became entitled to the default death benefit when he hit ten years. Section 2-415 lists which interests vest after ten years of service, and those interests do not include the default death benefit. Dodd thus does not have a vested interest in the benefit.

Furthermore, Dodd’s interest in the default death benefit had not accrued before the 2012 amendment. In Frazier, we defined “accrued,” as the term is used in Code § 2-411(d), to mean “ ‘[t]o come into existence as a claim that is legally enforceable.’ ” Id. (alteration in original) (quoting American Heritage Dictionary of the English Language 12 (4th ed. 2000)). Section 2-411(c) requires a member to be “retired under the provisions of this Section [or] eligible for benefits under this Section” before the member is entitled to the death benefit. Code § 2-411(c). That is, the member must have completed twenty-five years of active service. Thus, Dodd’s right to the default death benefit would not have become legally enforceable until he reached twenty-five years of service. Dodd did not hit twenty-five years until June 2013, after the City passed Ordinance 12674 in December of 2012. Dodd therefore did not have an accrued interest in the default death benefit before the City made him ineligible for the benefit.

Because Dodd’s interest in the default death benefit was neither vested nor accrued when the City passed Ordinance 12674, Dodd is not contractually entitled to the benefit. Blackwell v. The Quarterly County Court of Shelby County, 622 S.W.2d 535 (Tenn. 1981), does not change this result. In Blackwell, the Tennessee Supreme Court “held that a reduction in [pension] plan participants’ base benefits cannot constitutionally be applied to employees whose interests have vested after ten years of creditable service.” Frazier, 841 F.3d at 438. In Frazier, we noted that Blackwell was unhelpful to determining whether the pension plan’s cost-of-living adjustment was a vested, accrued financial benefit, because Blackioell only dealt with decreasing base retirement benefits. See id. The 2012 amendment to the default death benefit similarly did not adjust Dodd’s base benefit—even though Dodd’s lifetime payments were reduced when he elected Option D, he and his wife will ultimately receive the actuarial equivalent of a single-life annuity. So Blackwell is also inapposite here.

Dodd’s alternative constitutional arguments fail along with his Contract Clause claim. First, to the extent Dodd relies on a substantive due process theory, he has no cognizable claim. We have reasoned that “[s]tate-created rights such as [the] contractual right to promotion do not rise to the level of ‘fundamental’ interests protected by substantive due process.” Charles v. Baesler, 910 F.2d 1349, 1353 (6th Cir. 1990). This rationale applies equally to Dodd’s interest in the default death benefit. Dodd’s due process claim is cognizable, if at all, under procedural due process, not substantive due process. Second, Dodd’s procedural due process and Takings Clause theories fail because he does not have a constitutionally protected property interest in the default death benefit. “[T]o have a property interest in a contractual benefit, a person must ‘have a legitimate claim of entitlement to it.’ ” City of Pontiac Retired Emps. Ass’n v. Schimmel, 751 F.3d 427, 432 (6th Cir. 2014) (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). If the state has total discretion to award or remove a benefit, a person cannot claim entitlement to the benefit. Puckett v. Lexington-Fayette Urban Cty. Gov’t, 833 F.3d 590, 605 (6th Cir. 2016). As discussed in the Contract Clause analysis above, in 2012 the City had discretion to remove the default death benefit from those, like Dodd, who were not yet eligible to retire. Dodd therefore has no protected property interest in the benefit and no viable procedural due process or Takings Clause claim.

III.

Dodd’s only argument on appeal that Ordinance 12674 was not validly enacted—that City Charter § 11.12 prevented the City from repealing the three-readings requirement—is also without merit. Charter § 11.12 reads:

The City of Chattanooga, in the preparation of any digest of its local laws and ordinances is hereby empowered and authorized to codify, revise and collect in the form of a Code all ordinances of a general nature, and in so doing, the city council shall have full power and authority without special ordinance referring to each ordinance amended, altered, repealed or modified, to amend, alter, repeal or modify any ordinance of a general nature other than contract ordinances, franchise ordinances, ordinances relating to bond issues or other ordinances in or by which the city has assumed such contract obligations as are protected by the Constitution of the United States or the State of Tennessee.

Charter § 11.12. Dodd argues on appeal that the City could not repeal § 2-411(d)’s three-readings requirement through the ordinance that purported to repeal it because the ordinance was a “general ordinance,” whereas § 11.12 requires a “special ordinance,” one specifically referring to the ordinances it modifies, to amend the pension plan.

However, Dodd’s argument ignores the opening clause of Charter § 11.12. The provision’s limitations only apply, if at all, when the City modifies the pension plan through its codification power. Yet the City did not repeal the three-readings requirement through its codification power. The relevant ordinance’s preamble states that it was passed pursuant to Article XI, Section 9 of the Tennessee State Constitution, which is the home-rule provision that gives the City the power to amend its charter. See Ordinance 11590 pmbl. There is no indication in the ordinance—and Dodd has presented no argument to this court—that the City was legislating pursuant to its codification power, rather than this general power to amend the Charter. Thus, Charter § 11.12’s limitations did not apply when the City repealed the three-readings requirement. Because Dodd presents no other argument that Ordinance 12674 was not validly enacted, his challenge is unsuccessful.

IV.

The judgment of the district court is affirmed.

      . When the City passed Ordinance 12674, this provision was in the City Charter, not the Code. See Chattanooga, Tenn., Ordinance 11012 sec. 1, item 7 (May 9, 2000).

      . Currently, a provision in the City Charter specific to the pension plan allows the City Council to amend the plan after only two readings. See Chattanooga, Tenn., Ordinance 12677 sec. 28 (Dec. 18, 2012). Because the provision was not enacted until after the City passed Ordinance 12674, however, presumably it is not relevant to Dodd’s case. Furthermore, because none of the parties raises an argument on appeal about how this change affects Dodd's validity argument, we do not consider it.

      . Because Tennessee courts interpret the state’s Law of the Land Clause as synonymous with the federal Due Process Clause, Daugherty v. State, 216 Tenn. 666, 393 S.W.2d 739, 743 (1965), we address the two together,


author: KETHLEDGE, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert F. CROSS, Defendant-Appellant.
    No. 15-5641
    United States Court of Appeals, Sixth Circuit.
    Argued: April 26, 2016
    Decided and Filed: January 18, 2017

      ON BRIEF: David S. Hoskins, HOS-KINS, HILL & HILL, PLLC, Corbin, Kentucky, for Appellant. Charles P. Wisdom, Jr., UNITED STATES ATTORNEY’S OFFICE, Lexington, Kentucky, Ellen Kathleen Coffey, UNITED STATES ATTORNEY’S OFFICE, London, Kentucky, for Appellee.
    Before: KETHLEDGE and WHITE, Circuit Judges; COHN, District Judge.

       The Honorable Avem L. Cohn, United States District Judge for the Eastern District of Michigan, sitting by designation.

   OPINION

KETHLEDGE, Circuit Judge.

Robert Cross argues that the district court lacked jurisdiction to revoke his supervised release a second time based on conduct occurring before the first revocation. We reject that argument and affirm.

Cross was convicted of a federal marijuana offense in 2006 and sentenced to 60 months in prison, to be followed by 48 months of supervised release. In August 2010 Cross’s prison term ended and his supervised release began. During the next 32 months, Cross committed two state-law offenses: drug possession and theft, both of which violated the conditions of Cross’s supervised release. The district court learned about the drug possession first; on that ground the court revoked Cross’s supervised release in April 2013 and ordered him to serve eight months in prison, to be followed by another 24 months of supervised release. In December 2013, Cross finished his eight-month post-revocation incarceration and resumed his supervised release.

The district court did not learn about Cross’s theft offense until April 2015, after Cross pled guilty to that offense in Kentucky state court. By then Cross had completed about 15 months of his remaining 24-month period of supervised release. In June 2015 the district court held a revocation hearing, at which Cross argued that the district court lacked jurisdiction to revoke his supervised release based on the theft offense. The district court rejected that argument, revoked Cross’s supervised release, and sentenced him to a single day’s post-revocation incarceration and another 60 months of supervised release.

We review de novo the district court’s June 2016 determination that it had jurisdiction to revoke Cross’s supervised release. See United States v. Goins, 516 F.3d 416, 419 (6th Cir. 2008). The question, broadly stated, is whether a district court’s supervisory authority over a defendant continues unbroken throughout the defendant’s supervised release, or whether, instead, when a court revokes the defendant’s supervised release, the court revokes its own supervisory authority along with it. Cross takes the latter view: as he sees it, his supervised release ended when the district court first revoked it in April 2013; a second, distinct term of supervised release then began in December 2013, when he finished his eight-month prison term; and the district court lacked authority to revoke that second term of supervised release based upon a crime (the theft offense) that Cross committed during the first.

Cross’s argument misconstrues the nature of revocation as described in 18 U.S.C. § 3583(e). Under that provision, revocation and termination of supervised release are distinct concepts. Termination “diseharge[s] the defendant” and thereby ends the district court’s supervision of him. Id. § 3583(e)(1). Thus, if the district court later discovered that the defendant had earlier violated some condition of his supervised release, the court would lack authority to send him back to prison for that violation qua violation. Revocation, in contrast, means that the defendant must “serve in prison all or part of the term of supervised release[.]” Id. § 3583(e)(3) (emphasis added). Thus, revocation does not terminate the defendant’s supervised release; quite the contrary, it requires him to serve “all or part” of it in prison. Indeed the Supreme Court has already held that “a ‘revoked’ term of supervised release survives to be served in prison.” Johnson v. United States, 529 U.S. 694, 707, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000).

Revocation therefore revokes only the release part of supervised release; the district court’s supervisory authority continues until the defendant’s supervised release terminates or expires. See id. at 706, 120 S.Ct. 1795; 18 U.S.C. § 3583(e)(2) (providing that a district court may extend supervised release or modify its conditions “at any time prior to ... expiration or termination”). And because the district court’s authority continues throughout the defendant’s supervised release, so too does the court’s ability to police violations of the release’s conditions. Here, Cross’s supervised release—and thus the district court’s supervisory authority—had neither terminated nor expired by June 2015. The district court therefore had authority then to revoke Cross’s supervised release a second time based upon its discovery that Cross had committed a second violation.

Although in Johnson the Supreme Court construed the 1994 version of § 3583, none of the amendments to that section since then liberate us to equate revocation of supervised release with termination of it. Section 3583(e)(3) says now, just as it did then, that revocation means the defendant must “serve in prison all or part of the term of supervised release[.]” That is reason enough not to disregard the Supreme Court’s interpretation of that very same language in Johnson.

Nor does the addition of § 3583(h) change the outcome. That section makes explicit what the Supreme Court in Johnson said was implicit: namely that, when the district court revokes a defendant’s supervised release, “the court may include a requirement that the defendant be placed on a term of supervised release after imprisonment.” 18 U.S.C. § 3583(h). Cross emphasizes—as the Ninth Circuit emphasized in United States v. Wing, 682 F.3d 861, 871 (9th Cir. 2012)—that § 3583(h) refers to the period of supervised release that a defendant serves in prison as a “term of imprisonment!)]” From that reference Cross infers that such periods are no longer part of the defendant’s supervised release; and that the defendant’s supervised release must end before this new term of imprisonment; and that the district court’s supervisory authority must end with it; and that the court’s authority (per its intrinsic nature, apparently) during any later period of supervised release for the same conviction does not extend to violations committed during the earlier period. The argument is more metaphysical than legal. More prosaically, its first premise—that time spent in prison (after a revocation) is not part of the defendant’s supervised release—conflicts with the plain terms of § 3583(e)(3).

A more straightforward reading of the statute is that “term of imprisonment[,]” as used in § 3583(h), simply refers to the period of supervised release that a defendant serves in prison. And apart from simplicity, that reading treats the respective texts of § 3583(e)(3) and § 3583(h) as compatible rather than contradictory. See Maracich v. Spears, — U.S. -, 133 S.Ct. 2191, 2205, 186 L.Ed.2d 275 (2013). We see no basis, therefore, for us to take a different view of revocation than the Supreme Court took in Johnson. Accord United States v. Winfield, 665 F.3d 107, 112-13 (4th Cir. 2012) (“a district court retains its § 3583(e) power to impose additional prison time post-recovation”); United States v. Johnson, 243 Fed.Appx. 666, 668-69 (3d Cir. 2007) (same).

The district court’s judgment is affirmed.


text:
    Holland HARDAWAY, Petitioner-Appellant, v. Sharon BURT, Warden, Respondent-Appellee.
    No. 16-1666
    United States Court of Appeals, Sixth Circuit.
    Filed January 18, 2017
   ORDER

Holland Hardaway, a Michigan prisoner proceeding pro se, filed a notice of appeal from the district court’s judgment denying his 28 U.S.C. § 2254 habeas corpus petition. Hardaway has now filed an application for a certificate of appealability (COA). See Fed. R. App. P. 22(b).

In 1994, a Michigan jury convicted Hardaway of second-degree murder in violation of Michigan Compiled Laws § 750.317, and possession of a firearm during the commission of a felony in violation of Michigan Compiled Laws § 750.227b(l). See People v. Hardaway, No. 304814, 2013 WL 132710 (Mich. Ct. App. Jan. 10, 2013). He pleaded guilty to' being a fourth offense habitual offender under Michigan Compiled Laws § 769.12. These convictions arose out of the shooting death of Norman Spruiel, an undercover Detroit police officer. Id. Hardaway was originally charged with open murder, assault with intent to commit murder, and one count of felony firearm, but he was acquitted of the assault charge.

The trial court sentenced Hardaway to forty to eighty years in prison for the second-degree murder conviction and a consecutive sentence of five years for the felony-firearm conviction. His appeal, filed through counsel, was dismissed as untimely. People v. Hardaway, No. 177099 (Mich. Ct. App. Aug. 18, 1995) (unpublished). His motion for a delayed application for leave to appeal was also denied, People v. Hardaway, No. 202045 (Mich. Ct. App. Sept. 25, 1997) (unpublished), and the Michigan Supreme Court denied leave to appeal. People v. Hardaway, 459 Mich. 876, 585 N.W.2d 303 (1998) (table). In December 1998, Hardaway filed a motion for relief from judgment, which was denied, and his appeal was denied for lack of merit. People v. Hardaway, No. 222000 (Mich. Ct. App. Mar. 30, 2000) (unpublished). The state supreme court (lenied leave to appeal. People v. Hardaway, 463 Mich. 934, 622 N.W.2d 64 (2000) (table).

On January 17, 2001, Hardaway filed his first habeas petition. In March 2002, the district court dismissed the petition as time-barred. This court denied a COA, Hardaway v. Robinson, No. 02-1415 (6th Cir Oct. 16, 2002) (unpublished order), and the Supreme Court denied certiorari. In June 2004, Hardaway filed a motion for relief from judgment under Federal Rule of Civil Procedure 60(b). In granting the motion, the district court determined that it had miscalculated the date that Harda-way’s convictions became final, reinstated the habeas petition as timely filed, and ordered the warden to respond. In January 2008, the district court denied all of Hardaway’s claims on the merits.

In a published decision, this court reversed and remanded with instructions that the district court grant a conditional writ directing the state to afford Harda-way a direct appeal. Hardaway v. Robinson, 655 F.3d 445 (6th Cir. 2011) (amended order). The court determined that Harda-way was prejudiced by his appellate counsel’s deficient performance because his counsel’s failure to file an appellate brief rendered a direct appeal “entirely nonexistent,” and Michigan’s post-conviction proceedings were not an adequate substitute for a direct appeal of right. Id. at 449. Upon remand, the state court appointed counsel, provided Hardaway an appeal of right, and affirmed his convictions and sentence. Hardaway, 2013 WL 132710, at *14.

Hardaway then filed a second federal habeas corpus petition, raising the following claims: 1) ineffective assistance of trial and appellate counsel; 2) judicial bias; 3) violation of his Sixth Amendment right to confront witnesses and present a defense; 4) faulty jury instructions on intent to murder and coercive supplemental instructions to the jury; 5) prosecutorial misconduct; 6) withholding of exculpatory material; and 7) denial of a speedy and meaningful appeal. The district court denied the petition and denied a COA.

With one exception, Hardaway recounts all of the above arguments in his request for a COA. Because Hardaway fails to raise a challenge to the prosecution’s comments about his girlfriend’s arrest, he has abandoned this argument and it will not be addressed. See Elzy v. United States, 205 F.3d 882, 886 (6th Cir. 2000).

A COA may issue when an “applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To satisfy this standard, a petitioner must demonstrate “that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 123 S.Ct. 1029. “When the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

As discussed herein, the district court concluded that some of Hardaway’s claims were procedurally defaulted. Procedural default occurs when a petitioner fails to comply with a regularly enforced state court procedural rule that is an adequate and independent ground to bar review of a federal constitutional claim. Hartman v. Bagley, 492 F.3d 347, 357 (6th Cir. 2007); Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). A petitioner “can overcome a procedural default by showing (a) cause for the default and (b) actual prejudice from it.” Hall v. Vasbinder, 563 F.3d 222, 236 (6th Cir. 2009); Bonilla v. Hurley, 370 F.3d 494, 498 (6th Cir. 2004).

This court previously summarized the relevant facts in this case:

Hardaway shot and killed Norman Spruiel, a Detroit police officer, on October 2, 1993. Hardaway’s defense was that he did not know Spruiel was a police officer, and that he returned fire in self-defense. Officer Spruiel and his partner had been working undercover, investigating a murder near a body shop where Hardaway was employed. Believing the two men were about to rob the repair shop, Hardaway went home, retrieved a rifle, and returned to the shop. Shots were fired, and Officer Spruiel was fatally wounded. Both sides claimed the other shot first.

Hardaway, 655 F.3d at 446. Officer Clifton Counts, Spruiel’s partner who was present at the shooting, testified that prior to shots being fired, he had revealed his badge to Hardaway’s cousin and the owner of the body shop. Hardaway, 2013 WL 132710, at *1. Counts also testified that he heard Hardaway say “[F]ucking police,” after he fired shots in Spruiel’s direction. Id.

Ineffective Assistance of Counsel Claims

Ineffective-assistance claims are reviewed under the two-part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland requires a defendant to show that counsel’s performance was deficient and that the deficient performance prejudiced the defense such that the defendant was denied a fair trial. Id. at 687, 104 S.Ct. 2052. Counsel is “strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690, 104 S.Ct. 2052. The test for prejudice is whether “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. In habeas review, the question becomes “not whether counsel’s actions were reasonable,” but “whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Harrington v. Richter, 562 U.S. 86, 105, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).

Hardaway first argues that his trial counsel was ineffective for failure to timely disclose counsel’s friendship with the victim. Mid-trial, counsel stated in court that he had known Spruiel, played softball with him, and had roller-skated with him. The state appellate court rejected this ineffective-assistance-of-counsel claim, stating that Hardaway had presented “nothing beyond his bald assertion” that counsel failed to mention this acquaintance prior to trial, Hardaway, 2013 WL 132710, at *3. The state court added that, in any event, counsel had “vigorously contested the prosecutor’s case and pursued [Hardaway’s] self-defense theory throughout [the] trial,” resulting in a second-degree murder conviction “despite considerable evidence” that supported premeditation and a first-degree murder conviction. Id. The district court emphasized that an “actual conflict of interest” meant a “conflict that affected counsel’s performance—as opposed to a mere theoretical division of loyalties,” citing Mickens v. Taylor, 535 U.S. 162, 171, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002), and provided several examples of counsel’s zealous representation.

Hardaway presented no evidence to support his bare allegation that counsel’s association with Spruiel was a conflict or that “an actual conflict of interest adversely affected his lawyer’s performance.” Strick land, 466 U.S. at 692, 104 S.Ct. 2052 (quoting Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)). The state appellate court provided sufficient reasons for finding that counsel met the Strickland deferential standard of representing Hardaway with reasonable professional judgment.

Hardaway next argues that his counsel was ineffective for failing to further investigate and introduce evidence to refute the medical examiner’s testimony that Spruiel was shot in the back, which was central to Hardaway’s self-defense theory. The parties stipulated to information in a surgeon’s report indicating that a bullet entered Spruiel’s right side under the armpit, and that Spruiel suffered another gunshot wound to the left flank. On appeal, the state court determined that, because this stipulation was presented to the jury and because the jury heard his counsel’s closing argument that this evidence conflicted with the medical examiner’s opinion that Spruiel was shot in the back, counsel’s performance was not deficient and did not prejudice the case when he failed to call the surgeon to testify. Hardaway, 2013 WL 132710, at *3-4. No jurist of reason would disagree with this conclusion. Likewise, counsel did not prejudice Hardaway by failing to investigate notes taken by another officer, Sergeant Davis, which were based on the same medical records.

The district court also concluded, in light of the conflicting evidence already presented for the jury’s consideration, that the outcome of Hardaway’s trial would not have been different if either the surgeon or Sergeant Davis had testified. In addition, Hardaway failed to show that Spruiel was wearing a bullet-proof vest or jacket at the time of the shooting, so counsel could not have presented reliable laboratory evidence that no bullet struck his jacket in the back, as Hardaway argues. Based on these facts, reasonable jurists would conclude that counsel satisfied Strickland’s deferential standard in failing to further investigate and present additional evidence regarding the location of Spruiel’s gunshot wounds.

Hardaway also claims that counsel performed deficiently by failing to move for a directed verdict on the first-degree murder charge. Because Hardaway was acquitted of the charge, reasonable jurists would conclude that this failure by counsel did not prejudice his case, as noted by the district court. Moreover, the state appellate court found that the evidence would have been sufficient to convict Hardaway of the first-degree murder charge. Hardaway, 2013 WL 132710, at *5. Specifically, Hardaway had retrieved a rifle from his home before proceeding in a vehicle to the vicinity where Spruiel’s car was parked, slowly drove past Spruiel twice before approaching him a third time, repeatedly fired shots at him, and finally declared, “[Fjucking police.” Id. The state court concluded that the evidence was sufficient to show that Spruiel had an opportunity to reconsider his actions and thus that he “premediated and deliberated the killing,” which would have established the requisite elements of first-degree murder under Michigan law. Id. (citing People v. Abraham, 234 Mich.App. 640, 599 N.W.2d 736, 745 (1999)). Based on this evidence, reasonable jurists would conclude that trial counsel met the Strickland deferential standard when he did not request a directed verdict on the first-degree murder charge.

Judicial Bias Claims

Hardaway argues that, based on Michigan case law and criminal rules, he was entitled to a hearing on his claim of judicial bias. The state appellate court deter-

mined that Hardaway based his claim only on the trial judge’s adverse evidentiary rulings and presented no evidence that the judge’s decision arose out of favoritism or bias. Hardaway, 2013 WL 132710, at *6. The state court also rejected Hardaway’s claim that the circuit court violated Michigan Criminal Rule 2.003(D)(3)(a)(i) by refusing to refer his motion to disqualify to the chief judge. Id. at *7.

As the district court explained, the trial court’s alleged procedural error was based on its interpretation of the state’s criminal rules and thus is not cognizable on federal habeas review unless the state court’s ruling was so fundamentally unfair that it amounted to a due process violation. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); Moreland v. Bradshaw, 699 F.3d 908, 923 (6th Cir. 2012). As the district court also found, the ruling by the trial court did not reveal a “high degree of favoritism or antagonism as to make fair judgment impossible” for a jury. See Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). Therefore, jurists of reason could not conclude that this issue deserves encouragement to proceed further. See Miller-El, 537 U.S. at 327, 123 S.Ct. 1029.

Right to Confront Witnesses and Present a Defense

Hardaway argues that he was denied his right to confront witnesses under the Sixth Amendment when the trial court denied the admission of evidence regarding three instances of prior conduct by Counts and Spruiel involving the discharge of their firearms while on patrol. Harda-way relies on Michigan evidentiary rules and case law that permit evidence of a victim’s character where self-defense is an issue. Applying Michigan Rules of Evidence 404 and 405, along with several Michigan eases, the state appellate court determined that none of the officers’ prior acts were admissible because Hardaway had failed to prove that he was aware of the officers’ past history at the time of the shooting and thus could not show that he was in fear while in the officers’ presence at the time he fired at Spruiel. Hardaway, 2013 WL 132710, at *8-9. The district court upheld the state court’s reasoning, adding that, even if the trial court erred in excluding this evidence, the remaining evidence was substantial enough to support a finding that Hardaway fired the first shot. In addition, had the prior incidents been introduced, the prosecutor could have shown that, in all three incidents, investigations cleared Spruiel and Counts of all wrongdoing.

As explained above, such claims based on evidentiary rulings under state law are not cognizable on federal habeas review. See Estelle, 502 U.S. at 67-68, 112 S.Ct. 475; Moreland, 699 F.3d at 923. Moreover, based on the state court’s findings and the district court’s reasons, Hardaway failed to show that the exclusion of the evidence regarding the officers’ three prior shooting incidents was so fundamentally unfair that it amounted to a due process violation. See, e.g., Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) (a state may “exclude evidence through the application of evidentiary rules that ... serve the interests of fairness and reliability—even if the defendant would prefer to see that evidence admitted”).

The state court did not address Harda-way’s claims that statements that Counts had made to investigating officers during initial interviews were wrongfully excluded and that the trial court should have permitted additional questioning about these interviews during cross-examination. The district court reviewed the trial transcript and determined that the jury was aware of the interviews and that Counts was advised of his rights during one interview. The trial court also permitted Hardaway’s counsel to question a police sergeant about police procedures when an officer is involved in a fatal shooting as in this case. This sergeant testified that, usually, an officer involved in a shooting is assigned an attorney who is present during the officer’s questioning. Another police officer, who was in charge of the crime scene, testified and described in detail Counts’s responses during the post-shooting interview. The officers’ testimony revealed some slight inconsistencies, which the district court determined were sufficient for the jury to assess Counts’s credibility based on his post-incident statements without additional cross-examination. For these reasons, jurists of reason could not disagree with the district court’s resolution of this constitutional claim.

Jury Instructions

Hardaway challenges the jury instructions on second-degree murder. He argues that the jury was improperly instructed that it could presume intent from his use of a deadly weapon and, thus, the state was erroneously relieved of proving every element of the charge. Addressing this claim, the state appellate court noted that, at trial, Hardaway had indicated his satisfaction with the jury instructions, which constituted a waiver of this claim under state law. Hardaway, 2013 WL 132710, at *11. The district court properly determined that, as a result, Hardaway had procedurally defaulted the claim and had presented no cause for the default or prejudice to his case or evidence of actual innocence to excuse the default. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), and Lundgren v. Mitchell, 440 F.3d 754, 764 (6th Cir. 2006). Therefore, jurists of reason would not find it debatable whether the district court was correct in its procedural ruling on this claim. Slack, 529 U.S. at 484, 120 S.Ct. 1595.

Hardaway also challenges the trial court’s supplemental jury instructions given after the jury twice notified the court that it was deadlocked on two of the charges. The trial court instructed the jury twice, over defense counsel’s objection, that it should continue deliberations. The challenged instruction concluded with the judge’s comment to the jury that “you [the jury] will deliberate for as long as necessary for you to reach [an] agreement.” Hardaway presented this challenge in his first habeas petition, and this court rejected the claim, concluding that, “in light of the entire supplemental instruction, the Michigan trial court’s determination that the Allen charge was not coercive [was] not an unreasonable application of federal law.” Hardaway, 655 F.3d at 447. Applying the Supreme Court’s directives in Allen and in Jenkins v. United States, 380 U.S. 445, 85 S.Ct. 1059, 13 L.Ed.2d 957 (1965), this court noted that the trial court included “several remarks that were sufficient to mitigate any coercive effect the comment might have had.” Id. at 448, 85 S.Ct. 1059.

Subsequently, the state appellate court determined that the challenged instruction did not suggest that the jury “had to reach some outcome within a specified period of time or fail its mission, or otherwise urge the jury to reach a verdict as part of its civic duty”—factors that the Michigan courts must consider when determining whether a jury instruction is coercive. Hardaway, 2013 WL 132710, at *10. The state court highlighted the trial court’s assurance to the jury that it had “plenty of time” remaining to deliberate and that the trial court’s final instructions that closely tracked the state’s standard deadlocked-jury instruction.

The district court relied on the rationale set forth in the state appellate court’s decision and in this court’s previous order and determined that the trial court’s remarks were not coercive. In light of this court’s prior findings and the state court’s more recent observations on direct appeal, reasonable jurists would not debate that this claim does not deserve encouragement to proceed further.

Prosecutorial Misconduct

Hardaway argues that the prosecutor denied him a fair trial by presenting arguments to the jury that were not supported by the facts, specifically that Spruiel was fleeing from Hardaway and thus was shot in the back. To be entitled to habeas relief on a prosecutorial misconduct claim, the petitioner must show that the prosecutor’s conduct so infected the trial so as to render the conviction fundamentally unfair. Parker v. Matthews, 567 U.S. 37, 132 S.Ct. 2148, 2153, 183 L.Ed.2d 32 (2012); Gillard v. Mitchell, 445 F.3d 883, 897 (6th Cir. 2006) (citing Donnelly v. De-Christoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)).

The state court noted that Hardaway failed to preserve this issue by objecting at trial to the prosecutor’s arguments. Hardaway, 2013 WL 132710, at *12. Thus, based on Michigan’s contemporaneous objection rule, the state appellate court reviewed the prosecutorial misconduct claim only for plain error. Id. The district court declined to review the claim, reiterating that the state court’s finding that Harda-way failed to preserve his prosecutorial-misconduct claims and failed to demonstrate cause and prejudice for his default of this claim.

The state court’s application of plain error based on Hardaway’s failure to comply with Michigan’s contemporaneous objection rule was a procedural default of this claim, and the state’s application of that rule was an adequate and independent ground for purposes of federal habeas review. See Awkal v. Mitchell, 613 F.3d 629, 648 (6th Cir. 2010). As the district court noted, Hardaway failed to present any cause for this procedural default, or prejudice supported by evidence of his actual innocence. Therefore, Hardaway has not overcome this procedural default, see Hall, 563 F.3d at 236, and reasonable jurists would not find it debatable that the district court was correct in this procedural ruling. See Slack, 529 U.S. at 484, 120 S.Ct. 1595.

Hardaway also claims that the prosecutor improperly presented an unsupported motive for the shooting, introducing evidence of Hardaway’s prior convictions and implying that he may have had a grudge with police from his prior dealings with law enforcement. As the district court noted, Hardaway’s previous convictions were properly admitted, and it should be presumed that the jury followed the trial court’s instructions that the prosecutor’s statements and arguments were not evidence. See Weeks v. Angelone, 528 U.S. 225, 234, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000). Thus, the prosecutor’s statements did not prejudice Hardaway, and reasonable jurists would not debate the district court’s determination that this prosecutorial misconduct claim does not deserve encouragement to proceed further.

Excessive Delay for the Appeal

Hardaway summarizes the lengthy procedural history of his case, blaming the delay of his direct appeal on attorney error, delays in mail delivery, and error and bias by the trial judge. Hardaway claims that his appeal was therefore a “meaningless ritual” because evidence was lost, witnesses were no longer available, and his funds for defending himself had been depleted.

Hardaway did not exhaust this claim in state court, but the district court could nevertheless address it on the merits because, as that court noted, exhaustion is not a jurisdictional requirement. See 28 U.S.C. § 2254(b)(2); see also Pudelski v. Wilson, 576 F.3d 595, 606 (6th Cir. 2009). A due process analysis applies to such a claim, and this court has applied a modified version of speedy trial claims to claims that an undue delay in the appellate process was a violation of the defendant’s constitutional rights. See United States v. Gray, 52 Fed.Appx. 650, 653-55 (6th Cir. 2002). However, the district court properly determined that the Supreme Court has not determined whether there is such a constitutional right, so habeas relief would not be available to Hardaway even if he could prove undue delay. See Parker, 132 S.Ct. at 2155. As a result, reasonable jurists would not debate that this claim does not deserve encouragement to proceed further.

Brady Violation

Lastly, Hardaway argues that the prosecution violated his right to Brady [v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)] material when it failed to disclose statements by Counts during the initial investigation and that the district court would not have bound him over on the murder charge if these statements had been revealed. Specifically, Hardaway alleges that Counts initially stated to the investigating officers that he was the first to shoot after seeing Harda-way exit his car with a weapon, and that the remark of “fucking police” could have come from someone else at the scene. The state appellate court noted that Hardaway did not contest his ability to obtain these statements, taken from police notes, and that, even if the statements had been admitted at the time, the overall remaining evidence was adequate to find probable cause and bind Hardaway over on the murder charge. See Hardaway, 2013 WL 132710, at *13.

In accordance with Brady, favorable material evidence must be disclosed to the defense. Evidence is material only if there is a “reasonable probability” that it would affect the outcome of the proceeding. United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). As the district court noted, the prosecution met its burden under state law of establishing that a “person of prudence and caution could conscientiously entertain a reasonable belief’ that Hardaway’s shooting was premediated so as to support the first-degree murder charge. Therefore, the state would not have altered its decision to bind Hardaway over on this charge and, in any event, Hardaway was acquitted on that charge. Based on these circumstances, Hardaway did not show that there was a reasonable probability that, had the evidence been disclosed at the preliminary hearing, it would have affected the outcome of the proceeding. See id. Therefore, this claim deserves no encouragement to proceed further.

Accordingly, the application for a COA is DENIED.

      . See Allen v. United States, 164 U.S. 492, 501-02, 17 S.Ct. 154, 41 L.Ed. 528 (1896).