source: Caselaw Access Project

author: GREGG COSTA, Circuit Judge:

license: Public Domain

text:
    C&C INVESTMENT PROPERTIES, L.L.C.; Glen I. Collins, Plaintiffs-Appellants v. TRUSTMARK NATIONAL BANK, Defendant-Third Party Plaintiff-Appellee v. Charlotte D. Collins, Third Party Defendant-Appellant
    No. 16-60166
    Summary Calendar
    United States Court of Appeals, Fifth Circuit.
    Filed October 3, 2016

      William T. May, Esq., Counsel, James C. Griffin, Esq., Barry, Palmer, Thaggard, May & Bailey, L.L.P., Meridian, MS, for Plaintiffs-Appellants.
    Charles Phillip Buffington, Jr., George Robert Parrott, II, Adams & Reese, L.L.P., Ridgeland, MS, for Defendant-Third Party Plaintiff-Appellee.
    William T. May, Esq., Counsel, James C. Griffin, Esq., Barry, Palmer, Thaggard, May & Bailey, L.L.P., Meridian, for Third Party Defendant-Appellant.
    Before KING, DENNIS, and COSTA, Circuit Judges.
   GREGG COSTA, Circuit Judge:

At the height of the savings & loan crisis, we considered a number of cases involving the D’Oench, Duhme doctrine. See, e.g., Resolution Trust Corp. v. Murray, 935 F.2d 89 (5th Cir. 1991); Fed. Sav. & Loan Ins. Corp. v. Cribbs, 918 F.2d 557 (5th Cir. 1990); Fed. Sav. & Loan Ins. Corp. v. Murray, 853 F.2d 1251 (5th Cir. 1988). That doctrine, which originated in the federal common law and is now codified at 12 U.S.C. § 1823(e), prevents borrowers from relying on oral agreements they allegedly had with a failed bank to defend against collection efforts of a federal receiver like the Federal Deposit Insurance Corporation (FDIC). D’Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 459-60, 62 S.Ct. 676, 86 L.Ed. 956 (1942). The failure of a Mississippi bank in the aftermath of the 2008 financial crisis requires us to again consider the doctrine.

L

In 2004, Glen and Charlotte Collins formed C&C Investment Properties, LLC to buy, rent, and flip real estate. Between 2006 and 2009, C&C bought several foreclosed properties from Heritage Banking Group. C&C financed these purchases through promissory notes payable to Heritage, which were secured by deeds of trust encumbering the properties and guaranteed personally by the Collinses. According to the Collinses, the purchases were subject to the following side agreement: C&C would pay Heritage amounts equal to what Heritage paid for the properties at foreclosure and Heritage would later refinance the properties to account for their renovation value.

C&C stopped making payments on the loans because Heritage purportedly did not live up to the side agreement. As a result, it defaulted on the notes and guaranties. In response, Heritage foreclosed on the properties. Aggrieved, Glen Collins and C&C sued Heritage for breach of contract and fraudulent inducement.

While the suit was pending, Heritage was declared insolvent and the FDIC was appointed as receiver. That same day, the FDIC entered into a Purchase and Assumption Agreement with Trustmark National Bank, under which it transferred to Trustmark various Heritage assets and liabilities, including the C&C notes and guaranties.

Upon being substituted for Heritage as a defendant, the FDIC moved to dismiss the case. Before the court could rule on the motion, however, Mr. Collins and C&C sought and obtained leave to amend, adding Trustmark as a defendant. The FDIC thereafter renewed its motion, which was granted.

Once added as a party, Trustmark pleaded section 1823(e) as a defense and filed counterclaims against C&C and the Collinses (hereafter referred to jointly as the “borrowers”) for the amount still owing on the notes. Trustmark also sought reimbursement for its costs and expenses related to collection and enforcement of the loans.

Trustmark fíled a motion for summary judgment, arguing that because the claims against it and the defenses to its counterclaims are based on an unwritten side agreement between C&C and Heritage, section 1828(e) bars them. The borrowers objected, asserting that Trustmark either affirmatively or by being dilatory waived this defense. They further argued that, even if there was no waiver, there is a material fact dispute about whether the side agreement exists in a written form sufficient to overcome section 1823(e). The district court granted Trustmark’s motion.

II.

We review a summary judgment ruling de novo. Davis v. Fort Bend Cty., 765 F.3d 480, 484 (5th Cir. 2014). We interpret all facts and draw all reasonable inferences in favor of the nonmovant. Ion v. Chevron USA, Inc., 731 F.3d 379, 389 (5th Cir. 2013). Summary judgment is appropriate only when the record reveals “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(a).

D’Oench, Duhme bars parties from “rely[ing] on an oral agreement between [a failed bank and its customer] as the basis for defenses or claims against the FDIC.” Lemaire v. FDIC, 20 F.3d 654, 657 (5th Cir. 1994). Enacted in 1950, not long after the Supreme Court decided D’Oench, Duhme, section 1823(e) codifies that common law ruling. Bowen v. FDIC, 915 F.2d 1013, 1015 n.3 (5th Cir. 1990). The statute provides that any “agreement which tends to diminish or defeat the interest of the [FDIC] in any asset acquired by it under this section” shall not “be valid against the [FDIC] unless such agreement” is: (1) in writing; (2) contemporaneously executed by the depository institution and the person claiming an adverse interest; (3) approved by the board of directors of the depository institution and reflected in the minutes of the board; and (4) continuously, from the time of its execution, an official record of the depository institution. 12 U.S.C. § 1823(e)(1). We have extended these protections to private parties, like Trustmark, that purchase the assets of insolvent banks from the FDIC. Porras v. Petroplex Sav. Ass’n, 903 F.2d 379, 381 (5th Cir. 1990).

There are two reasons for the D’Oench, Duhme rule. First, it “allow[s] federal and state bank examiners to rely on a bank’s records in evaluating the worth of the bank’s assets.” Langley v. FDIC, 484 U.S. 86, 91, 108 S.Ct. 396, 98 L.Ed.2d 340 (1987). Séeond, it “ensure[s] mature consideration of unusual loan transactions by senior bank officials, and prevents] fraudulent insertion of new terms, with the collusion of bank employees, when a bank appears headed for failure.” Id. at 92, 108 S.Ct. 396.

The borrowers do not dispute these general principles of section 1823(e) or their applicability to this case. Instead, they attempt to avoid the defense in three ways. The first two involve waiver, as the borrowers contend that Trustmark substantively waived the defense in its agreement for the purchase of the Heritage assets and also procedurally waived the defense by asserting it too late in this lawsuit.

An affirmative waiver occurs when a party voluntarily or intentionally surrenders a known right. Salzstein v. Bekins Van Lines Inc., 993 F.2d 1187, 1191 (5th Cir. 1993). The borrowers maintain that Trustmark, through Section 2.1(n) of its Purchase and Assumption Agreement with the FDIC, did just that. Section 2.1(n) states:

The Assuming Institution expressly assumes at Book Value (subject to adjustment pursuant to Article VIII) and agrees to pay, perform, and discharge, all of the following liabilities of the Failed Bank as of the Bank Closing Date, except as otherwise provided in this Agreement (such liabilities referred to as “Liabilities Assumed”);
(n) all asset-relatéd offensive litigation liabilities and all asset-related defensive litigation liabilities, but only to the ex- ' tent such liabilities relate to assets subject to a Shared-Loss Agreement, and provided that all other defensive litigation and any class actions with respect to credit card business are retained by the Receiver.

This language, the borrowers assert, makes clear that Trustmark assumed liability on the subject loans free of any section 1823(e) defense. We disagree.

Our sole case dealing with affirmative waivers in this context suggests the borrowers have not made a sufficient showing. In Tex. Refrigeration Supply, Inc. v. FDIC, 953 F.2d 975 (5th Cir. 1992), we remarked that the borrowers’ “most appealing argument” was that a purchaser of failed bank assets “waived any D’Oench, Duhme defenses to [the] claims [against it]” through its “Purchase and Assumption Agreement” with the FDIC. 953 F.2d at 983-84. That agreement stated, in pertinent part, that the purchaser assumed certain “liabilities as shall be certified by the Receiver ... tohether or not they [wejre reflected on the books of the Failed Bank as of Bank Closing.” Id. (emphasis added) (internal quotation marks omitted). The borrowers argued that purchasing the assets irrespective of whether they were recorded on the books of the failed bank waived the D’Oench, Duhme rule that only recorded agreements are enforceable. We found no waiver without having to interpret this provision, however, relying instead on the provision stating that the lender only assumed liability for claims certified as valid by the FDIC, which had not been done for the claims being asserted. Id.

Unlike the agreement in Texas Refrigeration, Trustmark’s agreement with the FDIC makes no mention of liabilities not reflected on the books of the failed bank. It merely addresses which Heritage asset-related litigation liabilities, assumed by the FDIC, were transferred, to Trustmark. Nothing about it expressly- or impliedly indicates a voluntary or intentional surrender by Trustmark of the section 1823(e) defense it inherited from the FDIC.

We also reject the borrowers’ assertion that Trustmark waived this defense by raising it in a dilatory manner. Even when a party has failed to assert an affirmative defense in its answer, we may allow it to assert the defense “if it is raised at a pragmatically sufficient time and [the plaintiff] was not prejudiced in its ability to respond.” Arismendez v. Nightingale Home Health Care, Inc., 493 F.3d 602, 610 (5th Cir. 2007) (alteration in original) (internal quotations omitted); see also Rogers v. McDorman, 521 F.3d 381, 386-87 (5th Cir. 2008) (finding no unfair surprise when, despite the defense not being pleaded, plaintiffs had notice in light of it being alluded to in the answer and a pretrial brief, as well as during a pretrial hearing); Standard Waste Sys. Ltd. v. Mid-Continent. Cas. Co., 612 F.3d 394, 398-99 (5th Cir. 2010) (finding the failure to plead an affirmative defense did not result in unfair surprise when defendant expressly mentioned it in denial .letters, a joint status report, and the expert witness designation list).-

Unlike the defendants in the cases just cited, Trustmark raised its section 1823(e) defense in its answer so there is no basis for the borrowers- to argue unfair surprise. Indeed, they don’t do so. Instead, they argue Trustmark was required to include the defense in a Rule 12 motion to dismiss, like the FDIC did. Trustmark’s failure to do so, according to the borrowers, caused an unnecessary continuation of the litigation that should preclude it from asserting the defense at the summary judgment stage.

This argument reveals a basic misunderstanding of the rules of civil procedure. Rule 12(b)(6) provides a means by which a defendant may seek to dismiss a claim at the pleading stage; it does not require that a defense be asserted through that procedure. Fed. R. Civ. P. 12(b) (“Every defense to a claim for relief must be asserted in the responsive pleading if one is required. But a party mwy assert the following defenses by motion ... (6) failure to state a claim upon which relief can be granted.” (emphasis added)); Fed. R. Civ. P. 12(h)(1) (omitting a Rule 12(b)(6) defense from the defenses that may be subject to waiver by failure to assert at the Rule 12 stage). Rule 12 expressly provides that a defendant not pursuing a Rule 12(b)(6) defense at the pleading stage may raise it later in the litigation, including at trial. Fed. R. Civ. P. 12(h)(2)(C) (stating that “failure to state a claim upon which relief can be granted ... may be raised ... at trial”). And it is common that affirmative defenses sometimes raised in Rule 12(b)(6) motions, take a limitations defense as but one example, may also be raised, via a summary judgment motion. See e.g., FDIC v. Dawson, 4 F,3d 1303, 1306 (5th Cir. 1993). One obvious reason a defendant may wait is that a Rule 12(b)(6) motion typically cannot rely on evidence outside the complaint. See Brand Coupon Network, LLC v. Catalina Mktg. Corp., 748 F.3d 631, 635 (5th Cir. 2014). But even when there is no apparent reason for doing so, the rules allow a defendant to assert an affirmative defense .that may have been suitable for Rule 12(b)(6) disposition at the summary judgment stage.

As for the efficiency concerns the borrowers raise, a plaintiff desiring early resolution of an affirmative defense may seek to strike it under Federal Rule of Civil Procedure 12(f). See 5C Charles Alan Weight & Aethur R. Miller, FedeRal PraCtice & Procedure § 1381 (3d. ed. 2004) (explaining that the “insufficient defense” language in Rule 12(f) had been read to allow a challenge to the legal sufficiency of an affirmative defense). Or- the parties can agree to file an early summary judgment motion, without the need for full discovery. But there is nothing that barred Trustmark from pursuing the section 1823(e) defense, asserted in its answer, at the summary judgment stage after discovery concluded.

Apart from their unsuccessful waiver arguments, the borrowers argue that a material fact dispute exists that should have precluded summary judgment: whether the side agreement is in a written form sufficient to overcome section 1823(e). They point to the testimony of a Heritage division president who, when asked whether something in writing described the arrangement between C&C and Heritage, replied, “there may have been—well, I would have ... gotten—and I can’t remember whether it was an e-mail or something from Tim Leitaker saying it was okay for me to do that.” The executive was then asked whether there was something in writing other than the email, .to which he replied, “I don’t remember the exact communication, but, yeah ... I guess I’m positive that it was communicated in writing. If not, it still had to be signed off on every time I turned.a loan in for it.”

Even viewing the executive’s testimony about the purported side agreement in favor of the borrowers, there is no evidence from which a jury might conclude that all of the conditions - necessary to overcome section 1823(e) are present. At most, the statements are evidence of communications describing the purported side agreement. We have doubts whether such writings would meet even the first requirement: that the “agreement” itself be in writing— not other communications referring to it. 12 U.S.C. § 1823(e)(1)(A). That the agreement be in writing, however, is only one requirement of section 1823(e). The written agreement must also meet the three other non-secrecy requirements. 12 U.S.C. § 1823 (e)(l)(B)-(D). The bank executive does not state that the communication was signed by Heritage and the borrowers, approved by Heritage’s Board of Directors, or continuously kept as an official Heritage record. Nor do the borrowers point to any other evidence supporting these additional statutory requirements. See Resolution Trust Corp. v. MeCrory, 951 F;2d 68, 72 (5th Cir; 1992) (holding that a copy of an agreement executed by an insolvent bank found in the draft documents of the bank’s attorney did not satisfy section 1823(e)’s requirements because it was not an official record of the failed bank); Twin Constr., Inc. v. Boca Raton, Inc., 925 F.2d 378, 383-84 (11th Cir. 1991) (holding that a written form, despite outlining the obligations of both parties and existing in the insolvent bank’s records, did not meet section 1823(e)’s requirements because it had not been executed by the failed bank); FDIC v. Gardner, 606 F.Supp. 1484, 1488 (S.D. Miss. 1985) (finding that a written agreement executed by a failed bank president could not be enforced against the FDIC because it was not specifically approved by the board).

The judgment of the district court is AFFIRMED.

      . More than four hundred FDIC-insured banks failed from 2008-2012. Only ten had ■ failed in the five years prior to 2008. See FDIC; Failed Bank List, Federal Deposit Insurance Corporation, https://www.fdic.gov/bank/ individual/failed/banklist.html (last updated Sept. 15, 2016).


author: REAVLEY, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee v. 2005 PILATUS AIRCRAFT, BEARING TAIL NO. N679PE, Defendant Pablo Zarate Juarez; Viza Construction, L.L.C.; Premier International Holdings, Limited, Claimants-Appellants
    No. 16-40298
    United States Court of Appeals, Fifth Circuit.
    Filed October 3, 2016
    Lori Silverstein Roth, U.S. Attorney’s Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.

      John D. Cline, San Francisco, CA, Chris Flood, Flood & Flood, Houston, TX, for Claimants-Appellants.
    Before REAVLEY, DAVIS, and JONES, Circuit Judges.
   REAVLEY, Circuit Judge:

This appeal follows a criminal investigation which resulted in the United States Government seizing a 2005 Pilatus Aircraft, Bearing Tail No. N679PE, and instituting a civil forfeiture proceeding against the plane. Subsequently, Pablo Zarate Juarez (“Zarate”), a Mexican citizen, claimed an interest in the aircraft, individually and on behalf of Viza Construction, L.L.C. and Premier International Holdings, Limited, (collectively “Claimants”). Zarate, while in Mexico, was indicted on money laundering conspiracy and bank fraud charges related to the civil forfeiture of the aircraft. The Government moved, against Claimants’ opposition, to dismiss the claims to the aircraft under the Fugitive Disentitlement statute, 28 U.S.C. § 2466, which prevents a claimant who is a fugitive from justice from contesting the civil forfeiture. The district court dismissed the claims under § 2466 and denied Claimants’ motion to stay the civil proceedings. We affirm.

I.

The “fugitive - disentitlement doctrine,” dating back to the late 19th. century, authorized “an appellate court to dismiss an appeal or writ in a criminal matter when the party seeking relief becomes a fugitive.” Degen v. United States, 517 U.S. 820, 823, 116 S.Ct. 1777, 1780, 135 L.Ed.2d 102 (1996) (Citing Ortega-Rodriguez v. United States, 507 U.S. 234, 239, 113 S.Ct. 1199, 1203, 122 L.Ed.2d 581, (1993); and Smith v. United States, 94 U.S. 97, 24, 4 Otto 97, 24 L.Ed. 32 (1876)). An issue existed as to whether this disentitlement applied to civil forféiture cases until Congress resolved the issue by enacting 28 U.S.C. § 2466, which provides that:

(a) A judicial officer may disallow a person from using the resources of the courts of the United States in furtherance of a claim in .any related civil forfeiture action or a claim in third party proceedings in any related criminal forfeiture action upon a finding that such person—
(1) after notice or knowledge of the fact that a warrant or process has been issued for his apprehension, in order to avoid criminal prosecution—
(A) purposely leaves the jurisdiction of the United States;
(B) declines to enter, or reenter the United States to submit to its jurisdiction; or
■ (C) otherwise evades the jurisdiction of the court in which a criminal case is pending against the person; and
(2) is not confined or held in custody in any other jurisdiction for commission of criminal conduct in that jurisdiction.
(b) Subsection (a) may be applied to a claim filed by a corporation if any majority shareholder, or individual filing the claim on behalf of the corporation is a person to whom subsection (a) applies.

28 U.S.C. § 2466. Our issue is whether the Government proved that Zarate declined to enter/reenter the United States to submit to its jurisdiction, or otherwise evaded the criminal court’s jurisdiction.

II.

Claimants argue on appeal that: (1) the Government did not prove Zarate remained outside the Únited States to intentionally avoid criminal prosecution; (2) Za-rate’s due process rights were violated; and (8) the district court abused its discretion by dismissing the claims instead of granting a stay.

A. Zarate remained outside United States to deliberately escape prosecution

The Government demonstrates the court’s findings in United States v. $671,160.00 in U.S. Currency, 730 F.3d 1051, 1057 (9th Cir, 2013) to be consistent with the instant ease in finding that a totality of the circumstances showed that Zarate deliberately remained away from the United States to avoid criminal prosecution. We agree. Zarate had previously visited the United States approximately 100 times in less than three years prior to the seizure of the aircraft. The record also established that Zarate has family residing in this country, as well as significant business interests here. Yet, he.chose not to return to the United States after the seizure of the plane in June 2012.

B. Application of fugitive disentitlement does not violate Claimants’ due process rights

Claimants next contend that Za-rate’s choice of whether or not to enter the United States to fight the civil forfeiture of the plane or to face criminal prosecution was a violation of his due process rights, specifically his rights under the Mexico-United States extradition treaty. For support, Claimants cite the Supreme Court’s decision in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), wherein the Court found it “intolerable that one constitutional right should have to be surrendered in order to assert another” when a criminal defendant was faced with giving up his Fourth Amendment rights or Fifth Amendment privilege against self-incrimination.' Zarate has no rights to claim because of that treaty. The United States does not seek to extradite, and a right to be hehrd is waived by not seeking it. See U.S. v. Batato, No. 15-1360, 833 F.3d 413, 2016 WL 4254916 (4th Cir. Aug. 12, 2016).

C. District court did not' abuse its discretion in denying stay

Finally, Claimants argue that the district court abused its discretion in dismissing their claims instead of granting a stay of the civil forfeiture proceeding. We disagree. The district court denied the requested stay first because Zarate is a fugitive from justice. The district court also noted Claimants’ inconsistent positions regarding the stay in the matter. The record reveals that Claimants repeatedly opposed the Government’s motions/extensions for stay, did not oppose when the Government moved to lift the stay,' but then filed for a stay on their own behalf. Moreover, the district court explained that Zarate failed to personally appear in any proceedings related to the forfeiture action—only appearing telephonically in one hearing—and has not answered discovery or provided otherwise meaningful participation in the forfeiture action.

III.

Since the record supports a finding that Zarate remained outside the United States to intentionally avoid criminal prosecution, the elements of § 2466 are met and the claims in opposition lack merit,' the judgment is affirmed.

AFFIRMED.

      . Zarate ultimately withdrew his individual claim after the district court ordered him to personally appear for deposition.

      . The same is true here as the court said there: "There is no dispute that Ionita knows full well that he is wanted by the State of California, Ionita’s attempt to reclaim the defendant funds by litigating the civil forfeiture claim while avoiding answering the criminal charge is precisely the situation that the Fugitive Disentitlement Statute was enacted to address.” Id. at 1056.

      . 28 U.S.C. 981(g)(2) provides that "Upon the motion of a claimant, the court shall stay the civil forfeiture proceeding with respect to that claimant if the court determines that (A) the claimant is the subject of a related criminal investigation or case; (B) the claimant has standing to assert a claim in the civil forfeiture proceeding; and (C) continuation of the forfeiture proceeding will burdén the right of the claimant against self-incrimination in the related investigation or case.”


author: PER CURIAM:

text:
    Richard A. HAASE; Audrey L. Haase, Plaintiffs-Appellants v. COUNTRYWIDE HOME LOANS, INCORPORATED; Bank of America, N.A.; Deutsche Bank National Trust Company as Trustee; Morgan Stanley ABS Capital I, Incorporated; Barrett Daffin Frappier Turner & Engel, L.L.P.; Certificate Holders for Morgan Stanley ABS Capital I, Incorporated Trust 2006-HE6, Mortgage Pass Through Certificates, Series 2006-HE6; United States of America; Fifth Circuit Court of the United States of America; Honorable Gary Miller; Honorable E. Grady Jolly; Honorable Antonin Scalia; Deutsche National Bank and Trust Company, Defendants-Appellees.
    No. 16-20322
    United States Court of Appeals, Fifth Circuit.
    FILED October 3, 2016

      Richard A. Haase, Audrey L. Haase, Pro Se.
    Jeffrey Ray Seewald, McGlinchey Stafford, P.L.L.C., Houston, TX, Nathan Tem-pleton Anderson, Assistant General Counsel, Capital One, N.A., Plano, TX, Cody Patrick Peterson, Esq., McGlinchey Stafford, P.L.L.C., Dallas, TX, for Defendants-Appellees.
    Before SMITH, DENNIS, and SOUTHWICK, Circuit Judges.
   PER CURIAM:

Appellants Richard and Audrey Haase appeal the district court’s dismissal of their suit against multiple defendants. The “Fifth Circuit Court of the United States of America” is among the named defendants in that suit, apparently due to this court’s role in a prior proceeding involving the appellants. The appellants have not filed an opening brief on appeal; instead, they move to transfer this appeal to another circuit, contending that because they named the entire court in their lawsuit, all of this court’s judges are biased and therefore may not adjudicate the case. Alternatively, the appellants move for an extension of time to file their brief. Appellees Countrywide Home Loans, Inc.; Bank of America, NA; and Deutsche Bank National Trust Company move to dismiss the appeal for want of prosecution. We deny the appellants’ motion to transfer and the alternative motion for an extension of time, and we grant the appellees’ motion to dismiss.

First, as to the motion to transfer the case, federal judges are generally precluded from adjudicating a proceeding if they are a party to the proceeding or if they have a personal bias or prejudice concerning a party. 28 U.S.C. § 455(b). However, under the Rule of Necessity, judges may decide a case even if they have a personal interest in it if “the case cannot be heard otherwise.” United States v. Will, 449 U.S. 200, 213, 101 S.Ct. 471, 66 L.Ed.2d 392 (1980); accord Ignacio v. Judges of the United States Court of Appeals for Ninth Circuit, 453 F.3d 1160, 1163 (9th Cir. 2006). The appellants correctly suggest that disqualification of every judge whom they accuse of bias would allow no judge on this court to adjudicate the case. Accordingly, the Rule of Necessity qualifies the judges of this court to both hear and decide this.appeal. See Will, 449 U.S. at 213, 101 S.Ct. 471; see also In re City of Houston, 745 F.2d 925, 930 n.9 (5th Cir. 1984) (under the Rule of Necessity, “where all are disqualified, none are disqualified” (citation and internal quotation marks omitted)).

The existence of qualified judges in other circuits does not undercut the applicability of the Rule of Necessity and does not require transferring the case where an appellant indiscriminately names all judges on a court or, as here, the court itself as defendants. E.g., Ignacio, 453 F.3d at 1164-65; Tapia-Ortiz v. Winter, 185 F.3d 8, 10 (2d Cir. 1999); see also City of Houston, 745 F.2d at 930-31 n.9 (noting that an otherwise disqualified judge can invoke the rule of necessity to hear a case if all judges in his district are disqualified even if there are qualified judges in other districts).

Second, as to the appellants’ alternative motion for an extension of time to file their brief, the appellants’ brief on appeal was due on August 24, 2016. Under our Fifth Circuit Rule 31.4.1(a), “the clerk must receive a request for extension at least seven days before the due date, unless the movant demonstrates, in detail, that the facts that form the basis of the motion either did not exist earlier or were not and with due diligence could not have been known earlier.” Here, the clerk received the appellants’ motion for an extension on August 26, two days after the due date, and the appellants do not even attempt to make the required showing under Rule 31.4.1(a).

Accordingly, the appellees’ motion to transfer is DENIED, their alternative motion for an extension of time is likewise DENIED, and the appellees’ motion to dismiss is GRANTED. The appeal is DISMISSED for want of prosecution.

IT IS SO ORDERED.


author: EDITH H. JONES, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee v. Felix URIBE, also known as Francisco Servin Luna, Defendant-Appellant
    No. 15-51223
    United States Court of Appeals, Fifth Circuit.
    Filed October 3, 2016

      Joseph H. Gay, Jr., Mara Asya Blatt, Esq., Assistant U.S. Attorneys, U.S. Attorney’s Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.

      Gerald Conway Moton, Esq., Moton Law Office, San Antonio, TX, for Defendant-Appellant.
    Before REAVLEY, DAVIS, and JONES, Circuit Judges.
   EDITH H. JONES, Circuit Judge:

Felix Uribe pled guilty to violating 8 U.S.C. § 1326 for illegally reentering the United States after being deported. Because Uribe had previously been convicted of burglary of a habitation in Texas, see Tex. Penal Code § 30.02(a), his presen-tence report included, and the district court applied, a 16-level crime of violence enhancement to Uribe’s base offense level pursuant to the Sentencing Guidelines. U.S.S.G. § 2L.2(b)(l)(A)(ii). This court has previously held that Tex. Penal Code § 30.02(a)(1) defines a generic burglary of a dwelling within the scope of this enhancement. The question Uribe raises here is whether our precedent must be altered in light of Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). We hold it does not and affirm the sentence.

Although' Uribe’s judicial confession to burglary of a habitation does not expressly state whéther he violated § 30.02(a)(1) or (a)(3), he effectively confessed to violating both provisions when he admitted he “unlawfully ..'. intentionally and knowingly entered a habitation ... with the intent to commit theft,” see id. § 30.02(a)(1), and “did unlawfully '... • intentionally and knowingly enter a habitation ... and then and there commit and attempt to commit theft,” see id. § 30.02(a)(3).

The district court overruled Uribe’s objection to the 16-level enhancement and sentenced Uribe to a term of imprisonment of 75 months, followed by a three-year term of supervised release. The district court added that it would have imposed the same sentence due to Uribe’s criminal history and the 18 U.S.G. § 3553(a) sentencing factors even if the crime of violence enhancement was incorrect. Uribe timely appealed.

DISCUSSION

The district court’s enhancement was proper under the Sentencing Guidelines, which authorize a 16-level increase in sentencing range for committing a prior “crime of violence.” U.S.S.G. § 2L.2. This court has held that under the modified categorical approach, Texas Penal Code § 30.02(a) is a divisible statute, and that § 30.02(a)(1) matches the generic definition of “burglary of a dwelling” because it comprises the elements of “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” United States v. Murillo-Lopez, 444 F.3d 337, 341 (5th Cir. 2006) (quoting Taylor v. United States, 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990))'. This subsection falls within the guidelines’ relevant definition of a crime of violence. United States v. Conde-Castaneda, 753 F.3d 172, 175-79 (2014). The issue in this case is whether the Supreme Court’s recent decision in Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016) disturbs Conde-Castaneda. We hold that it does not.

Mathis applied the categorical approach to a state burglary statute that contained alternative means to satisfy one of its elements. In so doing, Mathis provided helpful guidance for determining whether a predicate statute of conviction is divisible. United States v. Howell, No. 15-10336, 838 F.3d 489, 496-97, 2016 WL 5314661, at *6 (5th Cir. Sept. 22, 2016). A statute that outlines only various means of committing the predicate offense is not divisible, whereas a statute that sets forth alternative elements of each offense is divisible. Mathis, 136 S.Ct. at 2256. The difficulty, however, lies in ascertaining whether the state statute contains alternative means or elements. A federal court should defer to state law in making this determination. Id. at 2250. A sentencing judge may consider state court rulings, the face of the statute, the statute’s structure, and “if state law fails to provide clear answers,” a judge may consider the record of prior conviction. Id. at 2256-57 & n.7,

The Texas burglary statute is elements-based. The statute provides:

(a) A person commits an offense if, without the effective consent of the owner, the person:
(1)enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault; or
(2) remains concealed, with intent to commit a felony, theft, or an assault, in a building or habitation; or
(3) enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.

Tex. Penal Code § 30.02(a). A statutory list that provides “illustrative examples,” is a clear indication that the statute “includes only a crime’s means of commission.” Mathis, 136 S.Ct. at 2256. Unlike the state statute at issue in Mathis, which criminalized the unlawful entry into “any building, structure, [or] land, water, or ah- vehicle,” Iowa Code § 702.12, the Texas burglary statute does not provide an illustrative list or outline multiple ways to satisfy a single element. Id. at 2250.

Important to this means-elements inquiry is also whether a state’s highest court has described the statute as constituting means or elements. The Texas Court of Criminal Appeals—Texas’s highest court for criminal cases—classifies this statute as elements-based. Day v. State, 532 S.W.2d 302, 305-06 (Tex. Crim. App. 1975), abrogated on other grounds, Hall v. State, 225 S.W.3d 524, 527-31 (Tex. Crim. App. 2007) (“The elements of the three types of burglary are set out following ... As can be seen, the first three elements of each of the three types of burglary and criminal trespass are virtually identical. The fourth main element of burglary ... is absent from the offense of criminal trespass.” (emphases added)); see also Devaughn v. State, 749 S.W.2d 62, 65 (Tex. Crim. App. 1988) (stating that under § 30.02(a)(1) “[pjroof of the intent to commit either theft or felony was, and is, a necessary element in the State’s case” (emphasis added)). Bolstered by Mathis, we conclude that each provision of the statute sets forth elements, not means.

Because the predicate statute is elements-based, it is divisible and the modified categorical approach applies to determine which of the provisions of § 30.02(a) was the basis of Uribe’s conviction. Mathis, 136 S.Ct. at 2249. Uribe confessed to violating § 30.02(a)(1) and (a)(3), and he was convicted under § 30.02(a). In applying the modified categorical approach, Ur-ibe’s conviction must be compared with the generic offense of burglary. Id. Uribe confessed to knowingly entering the victim’s habitation with the intent to commit felony theft. This was sufficient to constitute a violation of § 30.02(a)(1), which aligns with the generic offense of burglary, and constitutes a “burglary of a dwelling” under the Sentencing Guidelines. Conde-Castaneda, 753 F.3d at 176. Uribe’s crime of violence enhancement was proper.

CONCLUSION

For the foregoing reasons, the sentence is AFFIRMED.

      . Uribe contends that ambiguity pervades the indictment, judicial confession, and judgment. We disagree. The judgment does not specify whether Uribe was convicted under § 30.02(a)(1) or (a)(3); it convicts him under . § 30.02 generally. However, the indictment charged him with unlawful entry into a woman's house with intent to commit sexual assault (violation of § 30.02(a)(1)) and unlawful entry with the commission or attempted commission of sexual assault (violating § 30.02(a)(3)). That Uribe pled down to admitting theft rather than sexual assault in these two charges is material only to their classification in Texas law as first or second degree felony offenses. What is significant, however, is the connection between his judgment, the judicial confession and the indict- - • ment. The indictment charged Uribe with violating-each of these noted subsections. Even though the judicial confession does not cite the statutory subsections, the language of the confession precisely tracks the language of each subsection. There is no ambiguity; Uribe cannot escape the enhancement by pointing to distinctions without a difference.

      . This version of the Texas burglary statute, Tex. Penal Code § 30.02(a), was later amended to include “assault’’ in every subsection. This, however, does not change the court's elements-means analysis. CRIMES AND OFFENSES—CORRECTIONAL INSTITUTIONS—CRIMINAL PROCEDURE, 1995 Tex. Sess. Law Serv. Ch. 318 (S.B. 15) (VERNON’S).


author: STEPHEN A. HIGGINSON, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Duane Michael SHERIDAN, Defendant-Appellant.
    No. 15-41678
    Summary Calendar
    United States Court of Appeals, Fifth Circuit.
    Filed October 4, 2016

      John A. Reed, Renata Ann Gowie, U.S. Attorney’s Office, Houston, TX, for Plaintiff-Appellee.
    Marjorie A. Meyers, Philip G. Gallagher, Scott Andrew Martin, Federal Public Defender’s Office, Houston, TX, for Defendant-Appellant.
    Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
   STEPHEN A. HIGGINSON, Circuit Judge:

After a jury tidal in the Southern District of Texas, Duane Michael Sheridan was convicted of two counts of transporting aliens within the United States, in violation of 8 U.S.C. § 1324—one count for transporting Luis Machaen-Lopez and one count for transporting Maria Cruz-Galin-do, both citizens of Mexico. At a checkpoint in Falfurrias, Texas, United States Border Patrol agents found Machaen-Lo-pez and Cruz-Galindo in a large tool box in the back of a pickup truck driven by Sheridan, but owned by Sheridan’s cousin. Sheridan’s defense at trial partly depended on his supposed unawareness of the aliens in the back of the truck.

Sheridan now appeals his conviction, arguing that the district court abused its discretion in denying his request for a jury instruction like that found necessary in United States v. Pennington, 20 F.3d 593 (5th Cir. 1994). In Pennington, this court held that a jury can infer the knowledge element of unlawful drug possession from the defendant’s control of a vehicle in which the drugs are contained, but that when the drugs are hidden, control alone is not sufficient to prove knowledge. Id. at 598, 600.

Sheridan requested the following instruction:

The government may not rely only upon a defendant’s ownership and control of a vehicle to prove the defendant knew that the aliens were present in the vehicle. The government must prove by competent evidence, beyond a reasonable doubt, that the defendant knew the aliens were in the vehicle, and therefore within his possession and control.

After denying Sheridan’s proposed instruction, the district court instructed the jury according to the Fifth Circuit Pattern Jury Instructions:

For you to find the defendant guilty of [transporting aliens], you must be convinced that the Government has proved each of the following beyond a reasonable doubt: One, that Luis Alberto Ma-chaen-Lopez was an alien who had entered or remained in the United States in violation of the law; Two, that the defendant knew or recklessly disregarded the fact that said alien was in the United States in violation of the law; and Three, that the defendant transported or attempted to transport said alien, within the United States with the intent to further the alien’s unlawful presence.

See generally Fifth Circuit Pattern Jury Instructions (Criminal Cases) 2.01B (2015). The court also instructed that “Count Two is exactly the same,” but applied to Maria Cruz-Galindo as the illegal alien.

We review the district court’s “refusal to provide a requested jury instruction for an abuse of discretion.” United States v. Wright, 634 F.3d 770, 775 (5th Cir. 2011) (quoting Cooper Indus., Inc. v. Tarmac Roofing Sys., Inc., 276 F.3d 704, 714 (5th Cir. 2002)). A district court abuses its discretion by failing to issue a defendant’s requested instruction if the instruction “(1) is substantively correct; (2) is not substantially covered in the charge given to the jury; and (3) concerns an important point in the trial so that the failure to give it seriously impairs the defendant’s ability to present effectively a particular defense.” United States v. Simkanin, 420 F.3d 397, 410 (5th Cir. 2005). “ ‘It is well-settled,’ however, ‘that a district court does not err by giving a charge that tracks this Circuit’s pattern jury instructions and that is a correct statement of the law.’” United States v. Richardson, 676 F.3d 491, 507 (5th Cir. 2012) (quoting United States v, Whitfield, 590 F.3d 325, 354 (5th Cir. 2009)). Because the district court followed the Fifth' Circuit Pattern Jury Instructions, the only issue is whether the charge is a correct statement of the law. Id.

Sheridan argues that the district court’s instruction (and by extension, the Fifth Circuit Pattern Jury Instruction) “took for granted Mr. Sheridan’s awareness that ‘said alien’ (the hidden cargo) was present in the pickup truck.” Sheridan also argues that the instruction “in no way” addresses whether the Government can rely on a defendant’s control of a vehicle to prove that he knew aliens were present within the vehicle.

The actual language of the instruction renders Sheridan’s concerns unfounded. A jury’s finding that a defendant “knew or recklessly disregarded the fact that [an] alien was in the United States in violation of the law” requires the jury to find that the defendant knows that a person, who is an alien, exists. Belatedly, the third element of the offense—that a defendant “transported ... said alien within the United States with intent to further the alien’s unlawful presence”—confirms both actual knowledge of an alien’s presence as well as “intent to further the alien’s unlawful presence.” In addition, the district court instructed the jury that knowledge cannot be shown by mistake or accident.

The district court’s jury 'charge was a correct statement of the law relating to the crime of transporting aliens, and the court did not abuse its discretion in refusing to provide Sheridan’s proposed supplemental instruction, borrowed from our constructive possession of narcotics caselaw. Accordingly, the judgment of the district court is AFFIRMED.


author: PER CURIAM. STRANCH, Circuit Judge,

text:
    Thomas Charles CRANGLE, Petitioner-Appellant, v. Bennie KELLY, Warden, Respondent-Appellee.
    No. 14-3447
    United States Court of Appeals, Sixth Circuit.
    Argued: April 19, 2016
    Decided and Filed: September 22, 2016

      ARGUED: D. Bruce La Pierre, Nicole L. Pelletier, Washington University School of Law, St. Louis, Missouri, for Appellant. Stephanie L. Watson, Office of the Ohio Attorney General, Columbus, Ohio, for Ap-pellee. ON BRIEF: D. Bruce La Pierre, Nicole L. Pelletier, Washington University School of Law, St. Louis, Missouri, Brian C. Walsh, Bryan Cave LLP, St. Louis, Missouri, for Appellant. Stephanie L. Watson, Paul Kerridge, Office of the Ohio Attorney General, Columbus, Ohio, for Ap-pellee. Thomas Charles Crangle, Grafton, Ohio, pro se.
    Before: SILER, SUTTON, and STRANCH, Circuit Judges.
   OPINION

PER CURIAM.

In 2013, Thomas Crangle filed a habeas petition in federal court under 28 U.S.C. § 2254. His petition included three ineffective assistance of counsel claims. He also alleged that his plea was constitutionally invalid because it was not made knowingly, intelligently, and with sufficient awareness of the relevant circumstances and likely consequences. See United States v. Ruiz, 536 U.S. 622, 629, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002). Specifically, he argued that the state trial court misrepresented his maximum sentence by informing him that he would not be subject to post-release control—even though post-release control was statutorily mandated. See Rue- las v. Wolfenbarger, 580 F.3d 403, 408 (6th Cir. 2009). The federal district court dismissed Crangle’s petition as untimely.

On appeal, Crangle contends that, because the state-court order imposing post-release control whs a new judgment, his petition was timely under 28 U.S.C. § 2244(d)(1)(A). He also argues that his petition was timely under § 2244(d)(1)(D). We conclude that the state-court order was a new judgment that reset AEDPA’s one-year statute of limitations and thus REVERSE the federal district court’s order and REMAND for further proceedings. We do not reach Crangle’s arguments with regard to § 2244(d)(1)(D).

I. BACKGROUND

In November 2006, an Ohio grand jury indicted Thomas Crangle for rape of a minor, kidnapping, and gross sexual imposition. Crangle initially pled not guilty. In February 2007, he agreed to plead guilty to one count of rape with a recommended sentence of life imprisonment and parole eligibility after ten years. In signing the plea agreement, Crangle acknowledged, “I have been informed that if I am imprisoned, after my release from prison I [May_ or Will_] be supervised under post-release control, R.C. 2967.28, which could last up to 5 years,” with a checkmark entered after “Will.” At the sentencing hearing, however, the state court judge and Crangle’s own attorney incorrectly informed him that he would be subject to “straight parole” and not post-release control. The sentencing entry also did not indicate that Crangle would be subject to post-release control, despite the conflicting provision in his plea.agreement.

Crangle filed a notice of appeal in December 2007. On direct appeal, he argued that his counsel provided ineffective assistance by encouraging him to plead guilty rather than no contest to the rape charge. The Ohio court of appeals upheld the trial court’s judgment on November 5, 2008. Because Crangle did not appeal to the Ohio Supreme Court, his conviction became final 45 days later, on December 20, 2008.

A. Crangle’s state challenges to his conviction and sentence.

On June 16, 2010—over a year after Crangle’s conviction became final—the Ohio Supreme Court decided State ex rel. Carnail v. McCormick, 126 Ohio St.3d 124, 931 N.E.2d 110 (Ohio 2010). In Camail, the trial judge sentenced the defendant to life in prison with possibility of parole after ten years, but “failed to include in the sentencing entry any term of postrelease control.” Id. at 124, 931 N.E.2d at 111-12. On appeal, the defendant argued that his sentence was “void because it did not include postrelease control for his rape convictions.” Id. at 125, 931 N.E.2d at 112. A majority of the Ohio Supreme Court agreed, holding that the postrelease control “statute’s plaip, unambiguous language expressly requires the inclusion of a mandatory postrelease-control term of five years for each prison sentence for felonies of the first degree and felony sex offenses”—even for indefinite or .life sentences. Id. at 126-27, 931 N.E.2d at 113-14. The Court thus “grant[ed] a writ of mandamus to compel [the trial judge], to issue a sentencing entry that complie[d] with the postrelease-control provisions.” Id. at 131, 931 N.E.2d at 117.

On August 1, 2010, Crangle obtained a copy of Camail from the prison library. Four days later, he filed pro se motions to withdraw his guilty plea and, based on Camail, “to sentence him. to a lawful sentence, properly imposing post-release control.” He argued that his “guilty plea was not knowingly, intelligently, and voluntarily[ ] made” because “he was not ... correctly advised of post-release control sanctions.”

On November 16, 2010, the trial court denied Crangle’s motion to withdraw his guilty plea. It also “orderfed] a correction to the judgment of conviction be filed NUNC PRO TUNC ... to include five (5) years mandatory post release sanctions.” Whereas Crangle’s plea agreement stated that the post-release control could last “up to 5 years,” the new judgment of conviction provided that Crangle “shall be supervised on post-release control by the Adult Parole Authority for a mandatory period of 5 years after being released from prison.” It also set out sanctions that could be imposed if Crangle “violate[d] the terms and conditions of postrelease control.” The order was backdated to Cran-gle’s initial sentencing in November 2007.

Crangle appealed the denial of his motion to withdraw his guilty plea. In a split decision, the court of appeals affirmed in November 2011. The Ohio Supreme Court denied leave to appeal on April 4, 2012.

In July 2012, Crangle filed a pro se delayed application to reopen his direct appeal, arguing that his delay should be excused because he could not have discovered the sentencing error before Carnail. The court of appeals held that Crangle "ha[d]not demonstrated good cause for his untimely filing” and denied Crangle’s application to reopen. The Ohio Supreme Court denied leave to appeal in January 2013.

In March 2013, Crangle filed a pro se motion in the Ohio Supreme Court for leave to file a delayed appeal from the November 2008 decision upholding his conviction. The Ohio Supreme Court denied this motion in May 2013.

B. Crangle’s federal habeas petition.

Crangle placed a federal habeas petition in the prison mailing system on March 28, 2013, which was docketed on April 15, 2013. He alleged that he had received ineffective- assistance of counsel under the Sixth and Fourteenth Amendments because: his trial counsel had advised him to enter a plea of guilty rather than no contest; his trial counsel had misinformed him about whether post-release control would be imposed; and his appellate counsel had failed to raise the sentencing error on direct appeal. He also alleged that the trial court violated his due process rights under the Fifth and Fourteenth Amendments by misrepresenting his sentence and accepting his guilty plea.

In March 2014, the federal district court dismissed Crangle’s habeas petition as untimely. It held that Crangle’s “conviction became final on December 20, 2008, when [he] failed to file a notice of appeal with the Ohio Supreme Court within 45 days of the state appellate court decision affirming his conviction” and that “AEDPA’s one-year statute of limitations expired on December 20, 2009.” It also concluded that the state court’s November 19, 2010 nunc pro tunc order was not “a new judgment of sentence that restart[ed] the statute of limitations under 28 U.S.C. § 2244(d)(1)(A),” and that Crangle could have discovered the factual predicate of his federal habeas claims before August 2010, thus precluding a new start date under 28 U.S.C. § 2244(d)(1)(D).

In March 2015, the motions judge granted a certificate of appealability, holding that reasonable jurists could debate whether Crangle’s second, third, and fourth claims for relief—-that is, the claims involving the imposition of post-release control— were timely under § 2244(d)(1)(D). The motions judge also held, based on our unpublished decisions in Mackey v. Warden, 525 FedAppx. 357 (6th Cir. 2013) (per curiam), and Eberle v. Warden, 532 Fed. Appx. 605 (6th Cir. 2013), that reasonable jurists could not debate the district court’s conclusion that the November 2010 nunc pro tunc order did not restart the statute of limitations under § 2244(d)(1)(A).

In December 2015, we decided King v. Morgan, 807 F.3d 154 (6th Cir. 2015). There, we emphasized that a new sentence leads to a “new judgment [that] normally resets the statute-of-limitations clock,” id. at 159, and that this new judgment allows a prisoner to attack both the new sentence and the undisturbed original conviction without any possibility of facing the second or successive limits, id. at 157. In light of King, we asked the parties to file supplemental briefing on whether the November 2010 nunc pro tunc order was a new judgment that reset the statute of limitations clock under § 2244(d)(1)(A). We now hold that it was.

II. ANALYSIS

We review de novo the district court’s decision to deny a 28 U.S.C. § 2254 petition for untimeliness. Board v. Bradshaw, 805 F.3d 769, 771 (6th Cir. 2015).

The statute of limitations governing Crangle’s § 2254 petition provides that “[a] 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1). This limitations period runs from the latest of four dates:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or ■
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

Id. Crangle argues that the November 2010 nunc pro tunc order that imposed post-release control was a new sentence that resets the limitations clock under § 2244(d)(1)(A).

In Magwood v. Patterson, 561 U.S. 320, 130 S.Ct. 2788, 177 L.Ed.2d 592 (2010), the Supreme Court considered whether a new sentence “was an unreviewable ‘second or successive’ challenge under 28 U-.S.C. § 2244(b).”' Id. at 323, 130 S.Ct. 2788. The Court held that the defendant’s “resen-tencing led to a new judgment,” which meant that a challenge to the new sentence was not second or successive. Id. at 331, 130 S.Ct. 2788. The defendant in Mag-wood sought only to challenge his new sentence, however, and the Court declined to resolve whether its “reading of § 2244(b) would allow a petitioner ... to file a subsequent application challenging not only his resulting, new sentence, but also his original, undisturbed conviction.” Id. at 342, 130 S.Ct. 2788.

We took that question up in King v. Morgan, 807 F.3d 154 (6th Cir. 2015), where we held that “a- habeas petitioner, after a full resentencing and the new judgment that goes with it, may challenge his undisturbed conviction without triggering the ‘second or successive’ requirements.” Id. at 156. “As a matter of custom and usage,” we observed, “a judgment in a criminal case ‘includes both the adjudication of guilt and the sentence.’ ” Id. 157-58 (quoting Deal v. United States, 508 U.S. 129, 132, 113 S.Ct. 1993, 124 L.Ed.2d 44 1993). Thus, “[e]ven when the only change in the state-court proceeding relates to the sentence,” the court must issue a new judgment that both imposes the modified sentence and reinstates the conviction. Id. at 158. And because “the existence of a new judgment is dispositive, in resetting the ‘second or successive’ count ... the existence of a new judgment permits a new application to attack the sentence, the conviction, or both.” Id. (quoting Magwood, 561 U.S. at 338, 130 S.Ct. 2788) (internal quotation marks omitted).

Although King's holding was limited to second or successive petitions, in evaluating “the net effect of [its] decision,” the court noted that the decision “may allow more habeas petitions” because “[t]he entry of a new judgment normally resets the statute-of-limitations clock” under § 2244(d)(1)(A). Id. at 159. We agree with the King court’s analysis. The interpretation of “judgment” in Magwood and King applies with equal force to § 2244(d)(1)(A) and § 2254(a). Accordingly, because “[t]he sentence is the judgment,” Burton v. Stewart, 549 U.S. 147, 156, 127 S.Ct. 793, 166 L.Ed.2d 628 (2007) (quotation omitted), a new sentence not only, permits a challenge to either the new sentence or the undisturbed conviction, but also restarts AEDPA’s one-year window to challenge that judgment.

The State points to Mackey v. Warden, 525 Fed.Appx. 357 (6th Cir. 2013), where we held that, when a limited resentencing imposed only post-release control, it reset the one-year clock only if the petitioner' requested “relief [from the] imposition of post-release controls.” Id. at 362-63. But Mackey is no longer good law after King. In King, we held that, after a new sentence, a prisoner can bring a new petition attacking the underlying conviction as well as the new judgment. 807 F.3d at 157-58. King thus abrogated Mackey's statement that, when a resentencing is limited in scope, a prisoner can only challenge the new part of the sentence. Magwood and King likewise abrogated Bachman v. Bagley, 487 F.3d 979, 983 (6th Cir. 2007), where we held that a sexual predator designation that was imposed after the original judgment restarted the one-year clock only for a challenge to the sexual predator designation,

Our analysis is consistent with a line of cases in which a limited resentencing benefits the prisoner, such as in a sentence-reduction proceeding under 18 U.S.C. § 3582(c) or Criminal Rule 35(b). Such sentence modifications, federal law provides, do not disturb the underlying initial judgment, which continues to “constitute[ ] a final judgment.” 18 U.S.C. § 3582(b). As several other courts of appeals have noted, such “a reduced sentence [is] not a new one.” United States v. Jones, 796 F.3d 483, 485 (5th Cir. 2015) (§ 3582(e)); see, e.g., White v. United States, 745 F.3d 834, 836-37 (7th Cir. 2014) (§ 3582(c)); United States v. Olvera, 775 F.3d 726, 729 (5th Cir. 2015) (Rule 35(b)); Murphy v. United States, 634 F.3d 1303, 1309 (11th Cir. 2011) (Rule 35(b)) (collecting cases); see also Reichert v. United States, 101 Fed.Appx. 13, 14 (6th Cir. 2004) (Rule 35(b)). A new, worse-than-before sentence, by contrast, amounts to a new judgment. See Burton, 549 U.S. at 156-57, 127 S.Ct. 793.

That segues to the final question in this appeal; Did the November 2010 nunc pro tunc order effect a new, worse-than-before sentence? The State argues that it did not. At minimum, the State contends, Crangle must serve five years of parole— that is, the entire length of postrelease control—and supervision under parole is no different from supervision under post-release control. Thus, the State argues, because post-release control is no different from parole, Crangle’s sentence after the November 2010 nunc pro tunc order was substantively the same as his sentence before. The November 2010 nunc pro tunc order did not, in other words, effect a new judgment; it effected the same judgment by a different name.

We disagree. Post-release control materially increases the potential restrictions on Crangle’s liberty for at least two reasons. First, upon the prisoner’s release to post-release control, the parole board must impose at least one post-release control sanction “to apply during the prisoner’s period of post-release control.” Ohio Rev. Code § 2967.28(D)(1). These are drawn from Ohio Revised Code §§ 2929.16-.18, which authorize a wide variety of sanctions, including community service, residential restrictions, curfews, and fines. Parole does not appear to have the same statutory requirement. See Ohio Rev. Code § 5149.01-.12; id. § 2967.02. Additionally, while both parolees and releas-ees—the statutory term for persons on post-release control—may be required to reside in a “halfway house” upon release, it appears that only releasees can be required to reside in a “community-based correctional facility” or a “jail.” That is a material change in conditions. See Ohio Rev. Code § 2967.14 (providing that parole board may require both parolees and releases “to reside in a halfway house or other suitable community residential center” upon release); id. § 2967.28(D) (authorizing parole board to impose residential sanctions on releasees upon release); id. § 2929.16(A) (defining residential sanctions to include a “[a] term of up to six months at a community-based correctional facility” and “ a term of up to six months in a jail”).

Second, releasees that re-offend after completing post-release control may be subject to a collateral consequence that parolees avoid. When a parolee completes parole, Ohio law directs the parole board to issue a certificate of final release. See Ohio Rev. Code § 2967.16(A). When a re-leasee completes post-release control, Ohio law not only directs the parole board to issue a certificate of final release, but also to “classify the termination of post-release control as favorable or unfavorable depending on the offender’s conduct and compliance with the conditions of supervision.” Id. § 2967.16(B)(1); see also Ohio Admin. Code § 5120:1-1-42(A). Ohio law provides that an unfavorable “[designation shall be considered as a relevant factor in sentencing ... if the offender is convicted of a felony offense subsequent to the completion or termination of the period of post-release control.” Ohio Admin. Code § 512Q:1-1-42(A); see also Ohio Rev. Code § 2929.12(D)(1) (providing that “[t]he sentencing court shall consider” whether the offender was “unfavorably terminated from post-release control for a prior offense”). Thus, post-release control supervision exposes an inmate to the possibility of an unfavorable designation, which in. turn exposes the inmate to the possibility of greater punishment if he or she reoffends. That, too, is a material difference in Cran-gle’s conditions of confinement.

The State has no . answer to these arguments. Instead, it attempts to sidestep this conclusion by seizing on the fact that the November 2010 order is labeled “nunc pro tunc.” The phrase “nunc pro tunc” means “now for then” and “refers to situations in which the court’s records do not accurately reflect its actions.” Kusay v. United States, 62 F.3d 192, 193 (7th Cir. 1995) (citation omitted). Nunc pro tunc orders are customarily used only “to correct erroneous records,” not to “revise the substance of what transpired or to backdate events.” Id. If the November 2010 nunc pro tunc order merely corrected a record to accurately reflect the court’s actions, it would not be a new sentence that resets the statute of limitations under § 2244(d)(1)(A)-

But that’s not what happened here. At sentencing, the trial court told Crangle that he would not be subject to post-release control and entered judgment accordingly. The later nunc pro tunc order walked back the trial court’s statement, imposed post-release control, and reworded Crangle’s sentence. That is not merely the correction of a clerical error. No matter the label, the November 2010 order changed the substance of his sentence— and thus amounted to a new judgment. A state court’s decision to affix the label nunc pro tunc to an order does not control the federal questions whether the order changes his conditions of confinement.

Because the November 19, 2010 nunc pro tunc order created a new sentence, it was a new judgment that reset the one-year statute of limitations to file a habeas corpus petition. Under 28 U.S.C. § 2244(d)(2), the statute of limitations was tolled from the date Crangle received notice of the nunc pro tunc order to the date when he received notice of the Ohio Supreme Court’s decision to deny leave to appeal. The Ohio Supreme Court denied leave to appeal on April 4, 2012 and Cran-gle placed his federal habeas petition in the prison mailing system on March 28, 2013—that is, within one year. His petition was therefore timely.

III. CONCLUSION

For the foregoing reasons, we REVERSE the district court’s order denying Crangle’s habeas petition for untimeliness and REMAND for further proceedings. Because Crangle’s petition was timely under § 2244(d)(1)(A), we do not reach his arguments regarding § 2244(d)(1)(D).

STRANCH, Circuit Judge,

concurring.

I concur with the lead opinion in this case. I write separately to address Cran-gle’s argument that under the Supreme Court’s decision in Johnson v. United States, 544 U.S. 295, 125 S.Ct. 1571, 161 L.Ed.2d 542 (2005), the November 2010 nunc pro tunc order is a factual predicate that resets the limitations period under § 2244(d)(1)(D). I think the order is a factual predicate and provides another avenue of relief to Crangle.

A. Johnson’s interpretation of § 2244(d)(1)(D).

Section 2244(d)(1)(D) provides that the one-year limitations period runs from “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” This provision is most often invoked when a habeas petitioner obtains previously undiscovered evidence. In Johnson, however, the Supreme Court held that a vacatur order may also qualify as a factual predicate. 544 U.S. at 302, 125 S.Ct. 1571. Because Johnson is the main guidepost, I begin there.

The petitioner in Johnson had pled guilty to distributing cocaine in violation of federal law. Id. at 298, 125 S.Ct. 1571. Based on two prior state convictions, the federal district court judge imposed the career offender enhancement under § 4B1.1 of the Guidelines Manual. Id. at 298, 125 S.Ct. 1571. The defendant appealed his sentence, arguing that one of his two predicate state convictions was invalid. Id. at 298-99,125 S.Ct. 1571. The Eleventh Circuit affirmed. Id. at 299,125 S.Ct. 1571.

The one-year deadline to file a federal habeas petition passed. Johnson then petitioned for a writ of habeas corpus in state court, claiming his failure to knowingly waive his right to counsel invalidated his guilty pleas in seven cases—one of which had served as a predicate conviction for the career offender enhancement. Id. at 300-01, 125 S.Ct. 1571. The state court ultimately entered an order of vacatur, reversing all seven convictions. Id. at 301, 125 S.Ct. 1571. Johnson then moved pro se under 28 U.S.C.. § 2255, “claiming] his motion was timely because the order vacating the state, judgment was ‘new evidence’ not previously discoverable, and so the trigger of a renewed limitation period.” Id. at 301, 125 S.Ct. 1571. The federal district court denied the motion as untimely, the Eleventh Circuit affirmed, and the Supreme Court granted certiorari to determine “whether vacatur of a prior state conviction used to enhance a federal sentence can start the 1-year limitation period under the fourth alternative, of the § 2255 rule.” Id. at 302, 125 S.Ct. 1571.

The Supreme Court held that “the state-court vacatur is a matter of fact for purposes of the limitation rule.” Id. at 302, 125 S.Ct. 1571. Noting that courts “commonly speak of the fact of a prior conviction,” the Court reasoned that “an order vacating a predicate conviction is spoken of as a fact just as sensibly as the order entering it,” for both are “subject to proof or disproof like any other factual issue.” Id. at 306-07, 125 S.Ct. 1571. Thus, for limitations purposes, a vacatur order is a “factual predicate” that may be “discovered” by the petitioner. The Court reasoned-that even though by “bringing that proceeding, the petitioner causes the factual event to occur,” id. at 307, 125 S.Ct. 1571, a petitioner must “learn of the court’s response in the state proceeding,” which “surely qualifies] as a kind of discovery falling within the statutory language,” id. at 308, 125 S.Ct. 1571.

■The Court also concluded that “the statute, allows the=fact of the . state-court order to set the 1-year period running only if the petitioner has shown'due diligence in seeking the order.” Id. at 302, 125 S.Ct. 1571. With regard to predicate convictions for federal sentencing enhancements, “diligence can be shown by prompt action on the part of the. petitioner as. soon as he is in a position to realize that he has an interest in challenging the prior conviction with its potential to enhance the later sentence.” Id. at 308, 125 S.Ct. 1571. For this purpose, the one-year period “begins when a petitioner receives notice of the order vacating the prior conviction, provided that he has sought it with due diligence in state court, after entry of judgment in the federal case with the enhanced sentence.” Id. at 298, 125 S.Ct. 1571. Because the petitioner in Johnson failed to explain his 21-36 month delay in seeking the vacatur order, the Court found that his petition was untimely. Id. at 311, 125 S.Ct. 1571. '

B. Whether the November 2010 nunc pro tunc order is a factual predicate

Johnson addressed a state-court vacatur order, but language in the majority opinion supports a broad reading of what can qualify as a factual predicate. Specifically, in observing that one can “ ‘discover’ a fact that one has helped generate,” the Court reasoned that this discovery can “be the result of a court proceeding or some other process begun at the petitioner’s behest,” id. at 310, 125 S.Ct. 1571, implying that any court order a petitioner generates may potentially qualify.

Four circuits have concluded that Johnson extends beyond state-court vacatur orders. The Third Circuit has read Johnson to support the proposition that any “legal event” in the petitioner’s litigation history may “constitute the ‘factual predicate’ of a habeas corpus claim under section 2254.” McAleese v. Brennan, 483 F.3d 206, 216-17 (3d Cir. 2007); see also id. (holding that parole denial is a factual predicate). Similarly, the Fourth Circuit has concluded that the modification of a state conviction (as opposed to the vacatur of a conviction), can be a factual predicate. See United States v. Williams, 162 Fed.Appx. 254, 257 (4th Cir. 2006). The Seventh and Ninth Circuits have also indicated that Johnson extends beyond vacatur orders. See Lo v. Endicott, 506 F.3d 572, 575-76 (7th Cir. 2007) (observing that “some state court judgments could potentially constitute a trigger for a new limitations period,” but noting that it must be a “fact within [the petitioner’s] own litigation history that changed his legal status”); Shannon v. Newland, 410 F.3d 1083, 1088 (9th Cir. 2005) (“Johnson established[d] that a state-court decision can, in some circumstances, qualify as a fact — ”). The Second and Fifth Circuits have held that legal events in a petitioner’s litigation history were factual predicates, but before Johnson was decided.Nee Cook'v. N.Y. State Div. of Parole, 321 F.3d 274, 280-81 (2d Cir. 2003) (parole revocation); Kimbrell v. Cockrell, 311 F.3d 361, 363-64 (5th Cir. 2002) (prison disciplinary hearing).

I agree with the reasoning of our sister circuits and, therefore, would hold that the November 2010 nunc pro tunc qualifies as a factual predicate under § 2244(d)(1)(D). Like the petitioner in Johnson, Crangle helped generate the November 2010 nunc pro tunc order by filing a motion with the court. And as with the vacatur order in Johnson, the November 2010 order was subject to proof and disproof and was in Crangle’s own litigation history.

C. Whether Crangle exercised due diligence in seeking the order.

The requirement that the petitioner act with “due diligence in seeking the order,” Johnson, 544 U.S. at 302, 125 S.Ct. 1571, “does not require the maximum feasible diligence, only ‘due,’ or reasonable, diligence,” DiCenzi v. Rose, 452 F.3d 465, 470 (6th Cir. 2006) (citation omitted). In making this determination, the court must account for “the reality of the prison system” and be careful to avoid “impos[ing] an unreasonable burden on prisoners.” Id. at 470. Due diligence “is an inexact measure of how much delay is too much,” Johnson, 544 U.S. at 309 n.7, 125 S.Ct. 1571, but entails “prompt action ... as soon as [the petitioner was] in a position to realize that he ha[d] an interest in” challenging the conviction and thereby generating the state court order that serves as the factual predicate, id. at 308, 125 S.Ct. 1571.

The Seventh Circuit’s decision in Villanueva v. Anglin, 719 F.3d 769 (7th Cir. 2013), is instructive. There, the petitioners’ “plea agreements made no mention of any term of - supervised release even though Illinois imposes a three-year term of mandatory supervised release” on their respective charges. Id. at 771. At both of their “plea hearings, however, the state judges mentioned the mandatory term of supervised release and obtained the defendants’ understanding that the law imposed such a term.” Id. Learning about the mandatory supervised release requirement in prison, both petitioners filed pro se petitions for post-judgment relief. Id. at 772. They exhausted their state remedies,. then filed § 2254 petitions in federal district court, arguing that imposing mandatory supervised release violated due process. Id. at 773 (citing Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971)). Both petitions were denied on the merits. Id.

On appeal, the Seventh Circuit considered whether § 2244(d)(1)(D) applied to the petitioner’s claim. Id. at 774. Due diligence, the court observed, “is equivalent to a rule of ‘inquiry notice.’” Id. (quoting Clark v. United States, 703 F.3d 1098, 1100 (7th Cir. 2013) (Posner, J.)); see also Cole v. Warden, Georgia State Prison, 768 F.3d 1150, 1156 (11th Cir. 2014) (adopting Villa-nueva’s inquiry-notice analysis). “For limitations purposes,” the court explained further, “the question is whether, given the state judge’s statements during the plea and sentencing hearing, [the petitioner] could have known” about the mandatory supervised release “had he exercised due diligence.” Id. at 775. The Seventh Circuit concluded that the state court judges’ “warning that petitioners’ pleas subjected them to mandatory supervised release was all the notice they needed.” Id: at 774. Because the petitioners “could have learned of [the mandatory supervised release requirement] on the day they were sentenced. had they used due diligence,” the court held that their federal habeas petitions were time barred. Id.

Unlike the state court judges in Villane-uva, who informed the petitioners that their sentences included mandatory supervised release, here both the state court judge and Crangle’s own attorney told him that he would not receive post-release control. The prosecutor did not challenge the state court judge’s ruling, nor did he object to the state court’s journal entry of Crangle’s sentence. Thus, at the time of his sentencing, Crangle lacked inquiry notice of his sentence to post-release control supervision.

In all likelihood, Crangle did not receive inquiry notice until August 1, 2010, when State ex rel. Carnail v. McCormick, 126 Ohio St.3d 124, 931 N.E.2d 110 (Ohio 2010), was made available in the prison law library. Crangle filed his motion to withdraw his plea on August 5, 2010—just four days later. That is certainly diligent for the purposes of § 2244(d)(1)(D). Compare Granger v. Hurt, 90 Fed.Appx. 97, 100 (6th Cir.2004) (holding that delay of two months was “not unreasonable” in light of “the reality of the prison system”), with Johnson, 544 U.S. at 311, 125 S.Ct. 1571 (holding that delay of .21-36 months was not diligent absent explanation for delay).

The State cites to a line of authority holding that new case law cannot serve as a factual predicate under § 2244(d)(1)(D). Although the State acknowledges, that Crangle. does not actually argue that the Camail decision is a factual predicate, it asserts that these cases also establish that Crangle cannot use Camail to show due diligence. I find that leap of logic unsup-poited.

The cases referenced all share a common feáture: the new case law did not directly alter the petitioner’s legal status, but instead established a generally-applicable substantive rule, which, the petitioner argued, helped his claim. In Shannon v. Newland, 410 F.3d 1083 (9th Cir. 2005), for instance, the petitioner argued that a California Supreme Court decision was a “factual predicate” that “triggered a new one-year statute of limitations” under Johnson. Id. at 1088. Although the Ninth Circuit acknowledged that “Johnson established[d] that a state-court decision can, in some circumstances, qualify as a fact,” it concluded that the California Supreme Court decision did not. Whereas “[i]n Johnson, the state-court decision in question was a decision in the petitioner’s own ease” that “directly eliminated [the petitioner’s] legal status as a convict,” the Ninth Circuit observed, the California Supreme Court case “merely established an abstract proposition of law” and • “had no direct; effect on [the petitioner’s] legal status.” Id. at 1088-89.

The Seventh Circuit drew a similar distinction in Lo v. Endicott, 506 F.3d 572 (7th Cir. 2007), noting that a state court order that is a “fact within [the petitioner’s] own litigation history that changed his legal status,” id. at 575, is needed to “trigger for a new limitations period,” id. at 576. The Fourth and Eighth Circuits have also adopted this distinction. See Whiteside v. United States, 775 F.3d 180, 183-84 (4th Cir. 2014) (concluding that state court' decision did not qualify as a factual predicate because it merely “announced a generally applicable legal rule” and “did not directly alter [the petitioner’s] legal status”); E.J.R.E. v. United States, 453 F.3d 1094, 1098 (8th Cir. 2006) (holding that state court decision did not qualify as a fact because it was “a ruling exclusively within the domain of the courts and is incapable of being proved or disproved”).

Here, the relevant state court order— the November 2010 nunc pro tunc order— was a fact in Crangle’s own litigation history that changed his legal status, not an unrelated case establishing an abstract proposition of law. Thus, under the line of authority from the Fourth, Seventh, Eighth, and Ninth Circuits, the November 2010 order would qualify as a factual predicate under § 2244(d)(1)(D). It is true that this line of authority would also hold that Camail cannot serve as a factual predicate. But Crangle does not argue that Camail qualifies as a factual predicate. Instead, Camail goes to due diligence; that is, it helps explain why Crangle waited until August 5, 2010 to challenge his sentence. None of these cases suggest that Camail cannot be used for this purpose.

Practically, I think that permitting new substantive law to inform due diligence simply makes good sense. Consider an example. Assume that a state supreme court exercises original jurisdiction and strikes down a state crime—State Crime X—as unconstitutional. See, e.g., Ohio Const, art. IV, § 2(B) (providing that the Ohio Supreme Court’s original jurisdiction includes habeas corpus). Assume further that no other lower court has spoken on this issue. Isn’t the state supreme court’s unexpected decision relevant to the due diligence inquiry? If an inmate moves to vacate his State Crime X conviction within days of the state supreme court decision, it seems perfectly reasonable to me that this evidences the exercise of due diligence by that inmate.

The State then warns that permitting new substantive law- to inform due diligence would “open the floodgates.” I am unpersuaded. Applying Johnson in the manner described above would not restart the limitations period every time a case is decided that could help a petitioner’s claim. A case establishing a new substantive rule may help to show that the petitioner exercised due. diligence in seeking the court order, but it would not, on its own, reset the statute of limitations; the petitioner must actually use the case to generate a court order in his- own litigation history. Moreover, § 2244(d)(1)(D) provides that the one-year limitations period runs from “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” Id. (emphasis added). That also functions as a check, because only court orders that can serve as a factual predicate, for a claim restart the clock, and then only as to the claim based on the order; claims that do not rely on the order remain time barred.

In sum, I would hold that the November 2010 nunc pro tunc order was a factual predicate and that Camail properly informed just the issue of whether Crangle exercised due diligence in seeking that order. Both Johnson and the decisions of our sister circuits support this reading. I would therefore hold that Crangle. has stated another available avenue for relief because he has shown the necessary due diligence and that the November 2010 nunc pro tunc order is a factual predicate that resets the limitations period under § 2244(d)(1)(D).

      . The State also relies on Eberle v. Warden, 532 Fed.Appx. 605 (6th Cir. 2013). But Eberle did not restart the limitations clock because the state-court action helped Eberle: the state court vacated a five-year term of postrelease control that should not have been imposed in the first place. Id.- at 609-110.

        . See Ohio Dep’t of Rehab. & Corr., No. 105-PBD-08, Post Release Control Screening and Assessment 2 (2015).

      . The State notes that the parole board may place a parolee in a community-based correctional facility or jail for violating parole, but it does not point to any provision authorizing the parole board to impose these residential sanctions upon release.

      . The Ohio Revised Code defines parolee as "any inmate who has been released from confinement on parole by order of the adult parole authority” and "who is under supervision of the adult parole authority and has not been granted a final release.” Ohio Rev. Code § 2967.01(1). It defines “releasee” as "an inmate who has been released from confinement pursuant to section 2967.28 of the Revised Code”—that is, the post-release control provision of the Ohio Revised Code—"under a period of post-release control that includes one or more post-release control sanctions.” Id. § 2967.01(J). The State notes that one administrative regulation defines "releasee” to include persons on either parole or post-release control. See Ohio Admin. • Code § 5120:1-1-01(F), Be that,as it may, here we are interpreting statutory provisions, and we must therefore rely on statutory definitions.

      . The State argues that Crangle was on notice before Camail came down, pointing to his plea agreement and various state court decisions. I find all of these arguments unpersuasive.