author: WILSON, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jacobi Tavares HUNTER, Defendant-Appellant.
    No. 15-12640
    United States Court of Appeals, Eleventh Circuit.
    Date Filed: 08/26/2016

      Jonathan Colan, Daniel Matzkin, Wifre-do A. Ferrer, Emily M. Smachetti, U.S. Attorney’s Office, Miami, FL, John C. McMillan, U.S. Attorney’s Office, West Palm Beach, FL, for Plaintiff-Appellee.
    Michael Caruso, Federal Public Defender, Federal Public Defender’s Office, Miami, FL, Fletcher Peacock, Federal Public Defender’s Office, Fort Pierce, FL, for Defendant-Appellant.
    Before WILSON and JULIE CARNES, Circuit Judges, and MOORE, District Judge.

       Honorable William T. Moore, United States District Judge for the Southern District of Georgia, sitting by designation.

   WILSON, Circuit Judge:

Jacobi Hunter appeals his 60-month sentence, imposed after he pleaded guilty to drug-related charges pursuant to a written plea agreement. On appeal, Hunter contends that the government breached the plea agreement by failing to recommend a reduction for acceptance of responsibility at sentencing. We agree. Hunter was induced to plead guilty to all charges against him based, in part, on the promise that the government would recommend the reduction on his behalf. The government not only failed to recommend the reduction at sentencing, but also objected to and argued against Hunter receiving the reduction based on facts it knew prior to offering the plea deal. This conduct constitutes a breach of the agreement entered into by the parties. Accordingly, we vacate Hunter’s sentence and remand to the district court for resentencing.

I. BACKGROUND

A federal grand jury indicted Hunter on four charges of possession with intent to distribute marijuana, cocaine, crack cocaine, and heroin, in violation of 21 U.S.C. § 841(a)(1), (b)(l)(C)-(D). These charges arose from a traffic stop, wherein officers had stopped Hunter for illegal window tint on his vehicle, and, after detecting marijuana, ordered Hunter out of his car and frisked him. Hunter filed motions to dismiss and to suppress the evidence obtained during the stop, which the district court heard and denied.

During the hearing on those motions (the “suppression hearing”), which took place on February 4, 2015, with both parties present, the district court explicitly found that Hunter’s testimony regarding some of the facts leading up to the traffic stop was not credible. Specifically, the officers had testified that Hunter was driving south on Congress Avenue and had overs-teered into a right turn onto west Blue Heron Boulevard when they pulled him over for his illegal window tint, but Hunter testified that he was driving west on Blue Heron Boulevard, not Congress Avenue, and had not oversteered. Acknowledging these factual discrepancies, the district court found that “Hunter’s testimony [wa]s not credible in this regard.”

After the suppression hearing, the government extended a plea deal. The written plea agreement provided that Hunter would plead guilty to all four charges brought against him, with the following relevant stipulation (the “acceptance-of-responsibility reduction”):

The United States agrees that it will recommend at sentencing that the Court reduce by two levels the sentencing guideline level applicable to the defendant’s offense, pursuant to [§ ] 3El.l(a) of the Sentencing Guidelines, based upon the defendant’s recognition and affirmative and timely acceptance of personal responsibility. If at the time of sentencing the defendant’s offense level is determined to be 16 or greater, the government will make a motion requesting an additional one level decrease ... stating that the defendant has assisted authorities in the investigation or prosecution of her [sic] own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the Court to allocate their resources efficiently.

Hunter accepted this deal and, on March 4, 2015, pleaded guilty at a change-of-plea hearing in the district court.

The United States Probation Office prepared a presentence investigation report (PSI) that included a two-level increase for obstruction of justice and did not include a reduction for acceptance of responsibility. Hunter submitted several objections to the PSI, including objections to the enhancement for obstruction of justice and the failure to include an acceptanee-of-respon-sibility reduction. The government did not request the reduction for acceptance of responsibility. Instead, the government filed a motion seeking an upward departure or variance from the recommended guidelines range. In response, Hunter filed a motion seeking a downward variance due to, 'inter alia, the physical and mental harm he allegedly suffered during his arrest.

At sentencing, Hunter objected to the exclusion of the acceptance-of-responsibility reduction from the PSI, arguing that the government’s failure to recommend the reduction was a violation of the plea agreement. The government again did not recommend the reduction. Instead, it officially objected to Hunter receiving the reduction and argued for an enhancement. The government maintained that it was not obligated by the plea agreement to seek a reduction for acceptance of responsibility if the court concluded that Hunter had obstructed justice by committing perjury during his suppression hearing, even though the hearing took place before the plea deal was offered. Arguing that this failure to recommend the reduction constituted a breach, Hunter sought specific performance by the government and to have the case reassigned to another judge.

The district court found that the government had not breached the plea agreement, but it expressed concern that “the Government seems to give with one hand and take back with the other, because a defendant ... would believe if he signed this agreement that he was going to get the acceptance of responsibility.” Thus, the district court held it would give Hunter the acceptance-of-responsibility reduction to “solve this,” recognizing that “the decision to plead guilty is an enormously important decision.” The government subsequently conceded that, given the district court’s ruling, Hunter was “probably” entitled to a three-level reduction. The government then argued its motion for an upward departure or variance. In light of its rulings during the hearing, the court recalculated the applicable guidelines range as 18 to 24 months’ imprisonment. Over Hunter’s objections, the district court imposed a 60-month sentence. This appeal followed.

II. DISCUSSION

As a threshold matter, Hunter’s conditional plea agreement reserved the right to appeal only the denial of his motion to suppress physical evidence and waived other challenges. However, an appeal waiver does not bar a defendant’s claim that the government breached the plea agreement. United States v. Puentes-Hurtado, 794 F.3d 1278, 1284 (11th Cir. 2015); United States v. Gonsalves, 121 F.3d 1416, 1419 (11th Cir. 1997). Thus, we may consider Hunter’s appeal.

Hunter preserved his objection to the purported breach of the plea agreement in the district court, and the parties agree on the facts material to this appeal. Accordingly, we must determine only whether the government’s undisputed conduct breached the plea agreement. We review this legal issue de novo. United States v. Copeland, 381 F.3d 1101, 1104 (11th Cir. 2004). We first address whether the government breached its agreement with Hunter. Concluding that it did, we then turn to the appropriate remedy.

A. Breach

“[A] plea agreement must be construed in light of the fact that it constitutes a waiver of substantial^ constitutional rights requiring that the defendant be adequately warned of the consequences of the plea.” United States v. Jefferies, 908 F.2d 1520, 1523 (11th Cir. 1990) (internal quotation marks omitted). “A material promise by the government, which induces a defendant to plead guilty, binds the government to that promise.” United States v. Thomas, 487 F.3d 1358, 1360 (11th Cir. 2007) (per curiam) (citing Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971)). Hence, the government breaches a plea agreement when it fails to perform the promises on which the plea was based.

“Whether the government violated the agreement is judged according to the defendant’s reasonable understanding at the time he entered his plea.” United States v. Boatner, 966 F.2d 1575, 1578 (11th Cir. 1992). We apply an objective standard to “decide whether the government’s actions are inconsistent” with the defendant’s understanding of the plea agreement, Copeland, 381 F.3d at 1105, rather than reading the agreement in a “hyper-technical” or “rigidly literal” manner, United States v. Rewis, 969 F.2d 985, 988 (11th Cir. 1992) (internal quotation marks omitted).

In exchange for Hunter’s promise to plead guilty to all four charges in his indictment, the government promised to recommend a reduction for acceptance of responsibility at sentencing. Yet, at sentencing, the government did not recommend the reduction. In fact, the government objected to and argued against Hunter receiving the reduction. Viewed objectively, “the government’s actions are inconsistent with what the defendant reasonably understood when he entered his guilty plea.” See Copeland, 381 F.3d at 1105 (internal quotation mark omitted); cf. United States v. Keresztury, 293 F.3d 750, 756 (5th Cir. 2002) (“It is certainly inconsistent with a defendant’s reasonable understanding of a promise not to contest a reduction for acceptance of responsibility for the government to add its voice in support of the PSI recommendation that the defendant receive no such reduction.”).

It is clear that Hunter reasonably understood the government would recommend the acceptance-of-responsibility reduction on his behalf at sentencing. The promise to recommend the reduction was a key material concession made by the government in the plea agreement. The government did not drop any counts in the indictment or promise to make any other recommendations to the court that might potentially reduce Hunter’s sentence. And the government does not dispute that its promise to recommend an acceptance-of-responsibility reduction was a significant factor in Hunter’s decision to accept the plea agreement and waive his right to a trial. Consequently, Hunter waived' his substantial right to have the government prove each charge against him beyond a reasonable doubt before a jury of his peers as part of the consideration for the government’s promise to recommend the acceptance-of-responsibility reduction. Thus, the government’s failure to recommend the reduction violated the plea agreement reached by the parties. See Santobello, 404 U.S. at 262, 92 S.Ct. at 499 (“[Wjhen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.”).

However, the government maintains that no reversible error exists because it was excused from recommending the reduction. Under the terms of the plea agreement, the government was released from its obligation to recommend the reduction if Hunter:

(1) fails or refuses to make a full, accurate and complete disclosure to the probation office of the circumstances surrounding the relevant offense conduct;
(2) is found to have misrepresented facts to the government prior to entering into this plea agreement;
(3) committed any act inconsistent with the acceptance of responsibility pursuant to USSG § 3C1.1; or,
(4) commits any misconduct after entering into this plea agreement....

The government contends that the second exception (the “misrepresentation exception”) and/or the third exception (the “inconsistent act exception”) were met here. In support, the government points to the district court’s explicit finding at the suppression hearing: the testimony by Hunter regarding which road his car was on and whether he crossed the safety line was not credible. Thus, on appeal, as before the district court, the government argues that the district court’s credibility finding at the earlier Suppression hearing is the sole and sufficient basis for releasing the government from its obligation.

We are unpersuaded. Neither the misrepresentation exception nor the inconsistent act exception excuses the government from its obligation to recommend the acceptance-of-responsibility reduction: the government cannot avail itself of the exceptions based solely on facts of which it was aware prior to entering the plea agreement. Such a practice would render the government’s promise to recommend the reduction illusory and defy a defendant’s reasonable understanding of the plea agreement.

The district court expressly made its finding that Hunter’s testimony during the suppression hearing was not credible before the negotiation of the plea agreement, in the presence' of both parties. This undisputed fact is dispositive. At the time the government offered to recommend the reduction, it had full, current knowledge of Hunter’s non-credible testimony. That cannot be sufficient to trigger either the misrepresentation exception or the inconsistent act exception. If, at the time it offered the plea agreement, the government was aware of facts that would allow it to employ the exceptions and avoid its promise therein, then it would be extending an illusory promise. The plea agreement— which is a contract between the parties— would fail from the outset due to a lack of valid consideration. We will not construe the agreement in this manner. See, e.g., M&G Polymers USA, LLC v. Tackett, 574 U.S. -, -, 135 S.Ct. 926, 936, 190 L.Ed.2d 809 (2015) (observing that courts are “instruet[ed] ... to avoid constructions of contracts that would render promises illusory because such promises cannot serve as consideration for a contract”).

Moreover, a defendant would not have reasonably understood that the plea agreement allowed the government to evade its promise to recommend the aeceptance-of-responsibility reduction. It has long been the rule in our circuit that the defendant’s reasonable understanding of the agreement at the time of his plea controls our inquiry into the putative breach, see, e.g., Copeland, 381 F.3d at 1105, but the government failed to offer any argument in its brief that Hunter reasonably should have understood that the government could opt out of recommending the reduction. Perhaps that is because this would be a tough argument to make: a defendant would not have reasonably understood that the government could renege on recommending the reduction. As discussed above, the government knew Hunter had given non-credible testimony at the suppression hearing before it drafted, offered, and executed the plea agreement in which it promised to argue for an acceptance-of-responsibility reduction. Likewise, at the time of receiving the proffered plea deal, Hunter knew the government was aware the district court found his testimony to be non-credible. Viewed objectively, Hunter would not have reasonably understood the terms of his plea agreement to mean he was forfeiting a core constitutional right in exchange for a promise the government was already excused from fulfilling — in other words, an empty promise. See In Re Arnett, 804 F.2d 1200, 1203 (11th Cir. 1986) (per curiam) (“To constitute a valid waiver of substantial constitutional rights, a guilty plea ... must be offered with sufficient awareness of the likely consequences.” (citing Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1468-69, 25 L.Ed.2d 747 (1970))).

Our conclusion as to Hunter’s reasonable understanding of the agreement is bolstered by the timeline of events in this case. See Rewis, 969 F.2d at 988 (instructing reviewing courts to consider the plea agreement against the background of the plea negotiations). The plea bargaining process began directly after the suppression hearing. As Hunter’s defense attorney recounted at the sentencing hearing, “as soon as ... motions were concluded and the [c]ourt ruled [at the suppression hearing], [the Assistant United States Attorney (AUSA) representing the government] and I had a conversation where he agreed to prepare a plea agreement.” Hunter soon thereafter accepted the agreement, entering his change-of-plea only one month after the hearing. Therefore, the district court made an explicit finding of non-credibility at the suppression hearing — with both parties present — immediately before the government offered the plea deal. No significant time elapsed between the district court’s explicit finding of non-credible testimony and the government’s proffer of a plea agreement premised on the acceptance-of-responsibility reduction such that we could believe either party had overlooked or forgotten this finding.

Given that both parties were present when the district court explicitly found Hunter’s testimony not to be credible, and that the government then offered to recommend a reduction if Hunter pleaded guilty, it was reasonable for Hunter to believe that the promised recommendation would be forthcoming, notwithstanding the pre-agreement conduct of which the government was well aware. Indeed, the district court noted as much, stating: “[A] defendant ... would believe if he signed this agreement that he was going to get the acceptance of responsibility.” Under the objective standard by which we evaluate plea agreements, this is precisely what renders the government’s conduct a breach. We disagree with the district court’s conclusion to the contrary.

The government attempts to refute this conclusion by pointing to the text of the plea agreement. To succeed on its argument, the government must convince us that, based on the language of the above-discussed misrepresentation exception and inconsistent act exception, Hunter reasonably should have known that the government was not required to recommend the reduction. See Copeland, 381 F.3d at 1105. We are not convinced. The government’s interpretation of the exceptions is in fact inconsistent with the text.

The misrepresentation exception states that the government is excused from its obligation if a misrepresentation “is found.” The government wants us to read this phrase as including misrepresentations that are “already known.” However, a more reasonable reading is that this clause anticipates later discovery of dishonesty. See Rewis, 969 F.2d at 988 (noting that, to the extent any term in the agreement is ambiguous, we construe it against the government). That is to say, the exception most reasonably covers a scenario where the government extends an offer, the defendant accepts, and the government only then discovers that the defendant had been dishonest during or prior to the plea negotiation. In such a circumstance, we would have little trouble concluding that the government was excused from its obligation. Yet, in the present case, there were no newly found misrepresentations; the government did not discover dishonesty or additional misconduct. We cannot conclude that, based on a straightforward reading of this text, Hunter should have reasonably understood his earlier suppression hearing testimony to implicate this exception. Consequently, the misrepresentation exception does not excuse the government from its obligation.

Separately, the inconsistent act exception excuses the government if Hunter “committed any act inconsistent with the acceptance of responsibility pursuant to USSG § 3C1.1.” The government contends that, under this exception, it was only required to recommend the reduction if the district court did not apply an obstruction-of-justice enhancement based on Hunter’s suppression hearing testimony. In other words, according to the government, it had the right to seek an obstruction-of-justice enhancement based on Hunter’s earlier “inconsistent act” (or, to wait and see whether the district court made such a finding), and it only had to recommend the acceptance-of responsibility reduction if the court did not apply the enhancement.

This complicated interpretation of the exception is belied by the agreement’s plain language. Nowhere does the agreement suggest that the government’s promise to recommend the acceptance-of-responsibility reduction was contingent on some condition precedent, such as the district court failing to find an obstruction of justice. If the government intended to condition its obligation to recommend the reduction on a specific ruling with regard to an obstruction enhancement, - then it should have made that condition express. Moreover, we will not read the affirmative language that the government mil recommend the reduction as intending to do the opposite — placing itself in an inconsistent position by hoping for the opposite of its promise, and only upon receiving an adverse ruling fulfilling the express promise it made to the defendant. This type of “heads I win, tails you lose” interpretation is incompatible with the plea bargaining process.

For these reasons, we are not persuaded that any language in the plea agreement excused the government from its obligation to recommend the aceeptance-of-responsibility reduction at sentencing. The government referred to the exceptions paragraph in the plea agreement as its “escape clause.” But to accept the government’s argument is to accept that the government could make a promise it knew it did not have to keep; it could induce a guilty plea in exchange for nothing. That is not an escape clause — it is a trap door.

In sum, to obtain Hunter’s guilty plea to all charges in the indictment, the government agreed to recommend a reduction for acceptance of responsibility. However, the government not only failed to recommend the reduction at Hunter’s sentencing, but, in the face of Hunter’s continued objection that this refusal constituted a breach of the plea agreement, the government persisted in actively and formally opposing the reduction. There is no viable excuse for this conduct; it constitutes a significant and deliberate breach of the plea agreement.

B. Remedy

When a breach of the plea agreement is established and an objection to the breach was preserved, “automatic reversal is warranted.” Puckett v. United States, 556 U.S. 129, 141, 129 S.Ct. 1423, 1432, 173 L.Ed.2d 266 (2009) (citing Santobello, 404 U.S. at 261-62, 92 S.Ct. at 498-99). In such circumstances, reversal is based “upon a policy interest in establishing the trust between defendants and prosecutors that is necessary to sustain plea bargaining— an essential and highly desirable part of the criminal process.” Id., 129 S.Ct. at 1432 (internal quotation marks omitted). Since we conclude that the government breached the plea agreement and Hunter preserved his objection to that breach, reversal is required.

Additionally, Hunter is entitled to a remedy. Under our precedent, “[t]here are two remedies available when a plea agreement is breached: (1) remand the case for resentencing according to the terms of the agreement before a different judge, or (2) permit the withdrawal of the guilty plea.” Rewis, 969 F.2d at 988-89; see Boatner, 966 F.2d at 1580. The choice between these two remedies is within our discretion, although withdrawal of the plea is less favored in our circuit. See Jefferies, 908 F.2d at 1527 (collecting cases favoring specific performance).

Hunter does not wish to withdraw his plea. Instead, he requests remand and resentencing before a different judge. Hunter’s guilty plea was clearly induced by the government’s promise to recommend an acceptance-of-responsibility reduction. The government is therefore bound to that promise, and Hunter is enti-. tied to specific performance of the terms of the agreement as he reasonably understood them at the time of his plea. Accordingly, as it is within our discretion to do, we remand for resentencing according to the terms of the agreement before a different judge. See United States v. Tobon-Hernandez, 845 F.2d 277, 281 (11th Cir. 1988) (exercising discretion “in favor of specific performance” and remanding “for resentencing by another judge in compliance with the plea agreement”).

The government objects to this result, taking the position that, irrespective of breach, Hunter is not entitled to any remedy. In the government’s view, Hunter already got exactly what he bargained for because the district court applied the acceptance-of-responsibility reduction. However, this position is irreconcilable with the Supreme Court’s decision in Santobello. There, the Court reversed even though the district court had explicitly stated that the government’s sentencing recommendation (which the Court found to be in breach of the parties’ agreement) did not influence its sentencing decision. Santobello, 404 U.S. at 262, 92 S.Ct. at 499. We similarly reverse where the district court disregarded the government’s failure to recommend — and objection to — the acceptance-of-responsibility reduction.

Under Santobello, we are not concerned with whether the district court was influenced by the government’s recommendation (or lack thereof); instead, our focus is on “the interests of justice and appropriate recognition of the duties of the prosecution in relation to promises made in the negotiation of pleas of guilty.” Id., 92 S.Ct. at 499. The holding from and principles in Scmtobello are premised on the nature of the plea bargaining process.

As we have frequently noted in applying these principles, “the AUSA, not the court, violated the plea agreement; the sentencing judge’s acts are not important to this issue.” United States v. Johnson, 132 F.3d 628, 630 (11th Cir. 1998) (per curiam); see Tobon-Hernandez, 845 F.2d at 280 (“[W]e do not address the district court’s exercise of discretion in imposing a sentence. Rather, we focus on the government’s violation of its plea agreement.”); accord United States v. VanDam, 493 F.3d 1194, 1204 (10th Cir. 2007); United States v. Clark, 55 F.3d 9, 13 (1st Cir. 1995) (“[E]ven if, as in this case, the sentencing judge indicates that the prosecutor’s breach had no effect on the defendant’s sentence, the defendant is still entitled to a remedy.”). This makes sense; entering into a plea agreement forms a contract between the defendant and the government, and it is the defendant’s rights that are violated when the government breaks its promises in the agreement. By agreeing to plead guilty pursuant to a plea agreement, the defendant waives his rights “not in exchange for the actual sentence or impact on the judge, but for the prosecutor’s statements in court.” Correale v. United States, 479 F.2d 944, 949 (1st Cir. 1973) (emphasis added).

Neither Hunter nor the government could control how the district court sentenced Hunter. That is, Hunter could not bargain for, and thus was never entitled to, the acceptance-of-responsibility reduction itself. Hunter bargained for the government to stand before the district court and affirmatively recommend the reduction on his behalf. What Hunter received instead was the government objecting to the reduction in the district court and arguing against the suggestion that Hunter was entitled to it. Any actions by the district court thereafter are irrelevant to the breach and the remedy; the court can neither moot nor cure the government’s breach.

Thus, applying Santobello, we reject the government’s argument that, because the district court applied the acceptanee-of-re-sponsibility reduction, no remedy for the government’s breach is warranted. Hunter bargained for — and is entitled to — the government’s recommendation of the reduction on his behalf. That is what he must receive when he is resentenced. Accordingly, we remand for resentencing before a different district court judge. We do so, not due to lack of trust in the original sentencing judge’s capacity for fairness, but to reestablish the trust between the defendant and the government that is essential to the plea bargaining process.

III. CONCLUSION

“Because plea bargaining requires defendants to waive fundamental constitutional rights, we hold prosecutors engaging in plea bargaining to the most meticulous standards of both promise and performance.” United States v. Riggs, 287 F.3d 221, 224 (1st Cir. 2002) (internal quotation marks omitted). In addition, the plea bargaining process “must be attended by safeguards to insure the defendant what is reasonably due in the circumstances.” Santobello, 404 U.S. at 262-63, 92 S.Ct. at 499. Such requisite standards and safeguards were not met in the proceedings below. We find that the government breached its plea agreement with Hunter, and we reverse and remand for resentencing consistent with this opinion.

REVERSED and REMANDED.

      . The government's statement at the sentencing hearing that Hunter was "probably” entitled to the three-level reduction occurred after the district court had already ruled that it would give Hunter the reduction. This perfunctory, after-the-fact concession does not constitute the recommendation for which Hunter bargained.

      . The only other concession the government made was to allow Hunter to enter a conditional plea permitting an appeal of the denial of the suppression motion, pursuant to Fed. R. Crim. P. 11(a)(2). Hunter chose not to appeal the denial of his suppression motion, electing to appeal only as to breach and sentencing.

      . In fact, even if the district court had found obstruction of justice, such a finding would not excuse the government from its obligation to recommend the acceptance-of-responsibility reduction: the Sentencing Guidelines explicitly anticipate that adjustments under both the obstruction enhancement and the acceptance reduction may apply in some cases. See U.S.S.G. § 3E1.1 n.4. Additionally, the record contradicts the government's argument. The transcript of the sentencing proceedings demonstrates that the government immediately and explicitly objected to Hunter receiving the acceptance-of-responsibility reduction. Thus, as a matter of both law and fact, the government’s obstruction-of-justice argument is a non-sequitur. .

      . The government's reliance on Puckett to claim Hunter must show the breach affected his sentence is inapposite. Puckett was decided under plain-error review and did not purport to overrule Santobello in the preserved-error context. Puckett, 556 U.S. at 140-41, 129 S.Ct. at 1432. To the contrary, Puckett reaffirmed the Supreme Court’s holding in Santobello that "automatic reversal is warranted when objection to the government’s breach of a plea agreement has been preserved.” Id. at 141, 129 S.Ct. at 1432. And no binding precedent from either this court or the Supreme Court permits deviation from Santobello in the preserved-error context. Thus, for a breach that was objected to in the proceedings below, Santobello remains the controlling case.

      . Although the district court cannot cure the government's breach of a plea agreement, the Supreme Court has opined that the government may be able to do so. See Puckett, 556 U.S. at 140, 129 S.Ct. at 1432 (commenting that the government may be able to cure a breach if it "simply forgot its commitment and is willing to adhere to the [plea] agreement”); see also United States v. Diaz-Jimenez, 622 F.3d 692, 696 (7th Cir. 2010) (noting that the government might be able to cure a breach if it immediately and unequivocally adhered to the plea agreement upon objection). Here, the government failed to brief and thus waived any argument that it acted to somehow cure the breach. See United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003).

      . Given that the breach of the plea agreement requires vacatur of Hunter's sentence, Hunter's additional challenge to the procedural reasonableness of his sentence is moot.


source: Caselaw Access Project

author: DUBINA, Circuit Judge:

license: Public Domain

text:
    Jessica PARM, Plaintiff-Appellee, v. NATIONAL BANK OF CALIFORNIA, N.A., Defendant-Appellant.
    No. 15-12509
    United States Court of Appeals, Eleventh Circuit.
    Date Filed: 08/29/2016

      Darren T. Kaplan, Darren Kaplan Law Firm, PC, New York, NY, Norman E. Siegel, John Austin Moore, Steve N. Six, Stueve Siegel Hanson, LLP, Kansas City, MO, Julie Feigeles, Kopelowitz Ostrow Ferguson Weiselberg Gilbert, Miami, FL, Jeffery D. Kaliel, Hassan Zavareei, Tycko & Zavareei, LLP, Washington, DC, for Plaintiff-Appellee.
    John Friedemann, Kyle M. Fisher, Friedemann Goldberg, LLP, Santa Rosa, CA, Ross A. Albert, John P. MacNaugh-ton, Morris Manning & Martin, LLP, Atlanta, GA, John Beisner, Jessica D. Miller, Anand S. Raman, Geoffrey M. Wyatt, Skadden Arps Slate Meagher & Flom, LLP, Washington, DC, Stuart H. Singer, Boies Schiller & Flexner, LLP, Fort Laud-erdale, FL, for Defendant-Appellant.
    Before ED CARNES, Chief Judge, DUBINA, Circuit Judge, and HUCK, District Judge.

       Honorable Paul C. Huck, United States District Judge for the Southern District of Florida, sitting by designation.

   DUBINA, Circuit Judge:

This appeal arises out of a lawsuit filed by Appellee Jessica Parm (“Parm”) against Appellant Northern Bank of California (“NBCal”) regarding a payday loan Parm acquired in 2013. The district court denied NBCal’s motion to compel arbitration under Parm’s loan agreement, finding the arbitration clause unenforceable because it was unconscionable and required the parties to arbitrate in an unavailable forum. NBCal argues that the agreement does provide an arbitral forum, and the district court erred when it failed to submit the question of arbitrability to an arbitrator under the agreement’s delegation clause. After reviewing the record, reading the parties’ briefs, and having the benefit of oral argument, we affirm.

I. BACKGROUND

A. Facts

In 2013, Parm entered into a loan agreement with Western Sky Financial, LLC (“Western Sky”) over the internet from her computer in Georgia. Western Sky is a South Dakota limited liability company owned by a member of the Cheyenne River Sioux Tribe (“CRST”). The agreement provided that Parm would receive a $1,000 loan subject to certain fees and an annual interest rate of 233.71%, totaling $4,831.06 in payments. The loan also provided that Western Sky could initiate automated or other electronic fund transfers from the bank account she included on her loan application. NBCal is the financial institution that authorized these electronic transfers.

Resolution of this appeal requires interpretation of the loan agreement’s arbitration provision. The provision states in relevant part:

WAIVER OF JURY TRIAL AND ARBITRATION. PLEASE READ THIS PROVISION OF THE AGREEMENT CAREFULLY. Unless you exercise your right to opt-out of arbitration in the manner described below, any dispute you have with Western Sky or anyone else under this loan agreement will be resolved by binding arbitration. Arbitration replaces the right to go to court, including the right to have a jury, to engage in discovery (except as may be provided in the arbitration rules), and to participate in a class action or similar proceeding. In Arbitration, a dispute is resolved by an arbitrator instead of a judge or jury. Arbitration procedures are simpler and more limited than court procedures. Any Arbitration will be limited to the dispute between yourself and the holder of the Note and will not be part of a class-wide or consolidated arbitration proceeding.
Agreement to Arbitrate. You agree that any Dispute, except as provided below, will be resolved by Arbitration, which shall be conducted by the Cheyenne River Sioux Tribal Nation by an authorized representative in accordance with its consumer dispute rules and the terms of this Agreement.
Arbitration Defined. Arbitration is a means of having an independent third party resolve a Dispute. A “Dispute” is any controversy or claim between you and Western Sky or the holder or servi-cer of the Note. The term Dispute is to be given its broadest possible meaning and includes, without limitation, all claims or demands (whether past, present, or future, including events that occurred prior to the opening of this Account), based on any legal or equitable theory (tort, contract, or otherwise), and regardless of the type of relief sought (i.e. money, injunctive relief, or declaratory relief). A Dispute includes, by way of example and without limitation, any claim based upon marketing or solicitations to obtain the loan and the handling or servicing of my account whether such Dispute is based on a tribal, federal or state constitution, statute, ordinance, regulation, or common law, and including any issue concerning the validity, enforceability, or scope of this loan or the Arbitration agreement.

The following section, entitled “Choice of Arbitrator,” notified Parm that she

shall have the right to select any of the following arbitration organizations to administer the arbitration: the American Arbitration Association ...; JAMS ...; or an arbitration organization agreed upon by you and the other parties to the Dispute. The arbitration will be governed by the chosen arbitration organization’s rules and procedures applicable to consumer disputes, to the extent that those rules and procedures do not contradict either the law of the Cheyenne River Sioux Tribe or the express terms of this Agreement to Arbitrate.

B. Procedural History

Parm filed a putative class action lawsuit against NBCal in December 2014. Her complaint alleged that NBCal, acting as an originating depository financial institution, illegally permitted Western Sky to initiate electronic fund transfers from borrower checking accounts under unlawful payday loan agreements. The complaint also challenged the enforceability of the arbitration provision in the agreement by claiming that “the purported tribal arbitral forum and governing rules do not exist now and did not exist at the time the agreements were electronically signed.” NBCal filed motions to compel arbitration under Parm’s loan agreement and to dismiss the complaint. Relying on our opinion in Inetianbor v. CashCall, Inc., 768 F.3d 1346 (11th Cir. 2014), cert. denied, — U.S. -, 135 S.Ct. 1735, 191 L.Ed.2d 701 (2015) and its discussion in Parnell v. CashCall, Inc., 181 F.Supp.3d 1025, 2016 WL 3356937 (N.D. Ga. Mar. 14, 2016), the district court found the arbitration agreement unenforceable for lack of available forum and unconscionability and denied NB Cal’s motion to compel arbitration. NBCal subsequently perfected this appeal.

II. STANDARD OF REVIEW

“We review de novo the district court’s denial of a motion to compel arbitration.” Jenkins v. First Am. Cash Advance of Ga., LLC, 400 F.3d 868, 873 (11th Cir. 2005).

III. DISCUSSION

The arbitration agreement in this case is governed by the Federal Arbitration Act (“FAA”) because the loan agreement was executed via interstate commerce. See 9 U.S.C. § 2; Parnell v. CashCall, Inc., 804 F.3d 1142, 1146 (11th Cir. 2015). “The FAA places arbitration agreements on equal footing with all other contracts and sets forth a clear presumption — ‘a national policy’ — in favor of arbitration.” Parnell, 804 F.3d at 1146 (citing Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 443, 126 S.Ct. 1204, 1207, 163 L.Ed.2d 1038 (2006)). Section 4 of the FAA permits a party, such as NBCal, to seek assistance from a district court where the other party refuses to proceed under a written agreement to arbitrate. See 9 U.S.C. § 4. That court must treat the agreement to arbitrate as “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” Id. at § 2; see Parnell, 804 F.3d at 1146 (“Arbitration provisions will be upheld as valid unless defeated by fraud, duress, unconscionability, or another ‘generally applicable contract defense.’ ” (quoting Rent-A-Center v. Jackson, 561 U.S. 63, 67-68, 130 S.Ct. 2772, 2776, 177 L.Ed.2d 403 (2010))).

The loan agreement in this case contains a delegation clause, requiring the parties to submit threshold issues of “validity, enforceability, or scope of the loan or the Arbitration agreement” to arbitration. Delegation clauses are severable from the underlying agreement to arbitrate. See Rent-A-Center, 561 U.S. at 70-73, 130 S.Ct. at 2778-79. Because the loan agreement contains a delegation clause, our review is limited, at least initially, to Parm’s direct challenges to that clause. See Rent-A-Center, 561 U.S. at 72-73, 130 S.Ct. at 2779; Parnell, 804 F.3d at 1148-49. Only if we determine that the delegation clause is itself invalid or unenforceable may we review the enforceability of the arbitration agreement as a whole.

A.

We first assess Parm’s contention and the district court’s finding that the delegation clause is unenforceable because the arbitration agreement provides no available forum for an arbitrator to decide threshold issues of arbitrability. Both rely on our opinion in Inetianbor, which found a similar Western Sky arbitration agreement unenforceable due to the unavailability of the CRST as the exclusive and integral arbitral forum. Inetianbor, 768 F.3d at 1352-54. And it is true that if we find Parm’s arbitration agreement materially indistinguishable, we are bound by prior panel precedent to follow Inetianbor s conclusion that the agreement is unenforceable for lack of available forum and affirm the district court. See Anders v. Hometown Mortgage Servs., Inc., 346 F.3d 1024, 1031 (11th Cir. 2003). NBCal contends that Inetianbor does not bind this court as the distinct “Choice of Arbitrator” clause gives Parm the option to select the American Arbitration Association (“AAA”) or JAMS — both well-respected arbitration organizations — as neutral arbitral fora. To .assess these arguments, we turn to the text of Parm’s arbitration agreement.

First, because the parties have not provided us with a clear statement of CRST contract interpretation, we apply Georgia’s plain-meaning rule to interpret the loan agreement. See Parnell, 804 F.3d at 1147 (citing Paladino v. Avnet Computer Techs., Inc., 134 F.3d 1054, 1061 (11th Cir. 1998)). Applying Georgia law, the construction of an agreement that will be favored is the one “which gives meaning and effect to all of the terms of the contract over that which nullifies and renders meaningless a part of the language therein contained.” Paul v. Paul, 235 Ga. 382, 219 S.E.2d 736, 739 (1975) (internal quotation marks omitted). Furthermore, although “there is [a] presumption in favor of arbitration, ‘[t]he courts are not to twist the language of the contract to achieve a result which is favored by federal policy but contrary to the intent of the parties.’ ” Doe v. Princess Cruise Lines, Ltd., 657 F.3d 1204, 1214 (11th Cir. 2011) (second alteration in original) (quoting Goldberg v. Bear, Stearns & Co., 912 F.2d 1418, 1419-20 (11th Cir. 1990)).

NBCal argues that we should interpret the Choice of Arbitrator clause to conclude that AAA or JAMS could appoint any arbitrator, regardless of his or her affiliation with the tribe. Because the effect of NB Cal’s reading is to effectively eliminate the agreement’s express requirement that the arbitrator be a representative of the CRST, it is disfavored under Georgia law. See McCann v. Glynn Lumber Co., 199 Ga. 669, 34 S.E.2d 839, 843 (1945) (“[I]f possible, all of [a contract’s] provisions should be so interpreted as to harmonize with each other.”); Rabun & Assocs. Constr., Inc. v. Berry, 216 Ga.App. 485, 623 S.E.2d 691, 694 (2005) (“Neither the trial court nor this Court is at liberty to rewrite or revise a contract under the guise of construing it.” (internal quotation marks omitted)). By contrast, we may give effect to both clauses by construing the Choice of Arbitrator clause to give Parm the right to have AAA or JAMS administer the arbitration so long as the arbitrator selected by those organizations is a CRST representative. Because that reading harmonizes the clauses in the agreement, it is to be preferred to the one suggested by NBCal. See McCann, 34 S.E.2d at 843.

NBCal argues that our interpretation ignores language in the arbitration agreement that, NBCal suggests, excepts AAA or JAMS arbitrations from the requirement that arbitration be conducted by the CRST and its authorized representatives. That argument rests on a misreading of the forum selection clause, which provides that:

[The borrower] agree[s] that any Dispute, except as provided below, will be resolved by Arbitration which shall be conducted by the [CRST] by an authorized representative in accordance with its consumer dispute rules and the terms of this Agreement.

NBCal’s interpretation treats the words “except as provided below” as though they modify the part of the forum selection clause requiring that arbitration be “conducted by the [CRST] by an authorized representative.” That interpretation ignores the principle of English usage, formally called the nearest-reasonable-referent canon, which provides that, “When the syntax involves something other than a parallel series of nouns or verbs, a preposi-tive or postpositive modifier normally applies only to the nearest reasonable referent.” Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts 152 (2012).

In the forum selection clause, the nearest reasonable referent of the modifying phrase “except as provided below” is the word “Dispute,” which is right next to that phrase. That means the exceptions referred to in the forum selection clause are exceptions to the types of disputes that require arbitration. They are not exceptions to the requirement that arbitrations be “conducted by the [CRST] by an authorized representative,” because that requirement is not the nearest reasonable referent of the phrase “except as provided below.”

NBCal posits that such an interpretation neglects to give meaning .to the clause “except as provided below.” But it does give that clause meaning, as a modifier of and limitation on “Dispute.” That is because later parts of the agreement expressly except from arbitration certain kinds of disputes. For example, a later provision of the agreement states that disputes are not subject to arbitration if they concern the validity, effect, and enforceability of a waiver of the borrower’s rights to bring class action lawsuits and compel class-wide arbitration. And another later provision in the agreement, titled “Small Claims Exception,” creates an exception for small claims. As a result, the words “except as provided below” can readily— and under the nearest reasonable referent rule, should — be understood to modify the word “Dispute.”

We must, of course, construe the agreement in a way that is consistent with the parties’ intent. See Calhoun, GA NG, LLC v. Century Bank of Ga., 320 Ga.App. 472, 740 S.E.2d 210, 212 (2013). It cannot be contended, however, that the parties added the “Choice of Arbitrator” provision with the intent of responding to the defects in the agreement that we identified in our Inetianbor decision. The agreement at issue in this case was executed in April 2013, which is almost a year and a half before we issued our decision in Inetianbor. See Inetianbor, 768 F.3d 1346 (11th Cir.2014). In fact, the agreement in this case was executed more than four months before even the district court held that the agreement in the Inetianbor case was void. Nee Inetianbor v. CashCall, Inc., 962 F.Supp.2d 1303 (S.D.Fla.2013). There is simply no good reason to reject the construction of the agreement suggested by accepted interpretive canons.

Even if there were some reason to construe the agreement differently, the most that would show is ambiguity, and when an arbitration clause or other part of a contract is ambiguous, Georgia courts construe it in favor of the party that did not draft it. See Ga. State Fin. & Inv. Comm’n v. XL Specialty Ins. Co., 303 Ga.App. 540, 694 S.E.2d 193, 196 (2010). In this case, that party is Parm, which means we must construe ambiguities in the arbitration clause in her favor. No matter how we approach the matter, therefore, we reach the same conclusion: the arbitration agreement’s forum selection clause mandates the use of an illusory and unavailable arbi-tral forum. See, e.g., Inetianbor, 768 F.3d at 1354; Jackson v. Payday Fin., LLC, 764 F.3d 765, 776 (7th Cir. 2014).

B.

Selection of the unavailable CRST forum is not necessarily fatal to enforcement of the parties’ agreement to arbitrate; section 5 of the FAA permits us to appoint a substitute in the event there is a lapse or failure of the named forum. See 9 U.S.C. § 5. However, under our precedent, “the failure of the chosen forum preclude[s] arbitration whenever the choice of forum is an integral part of the agreement to arbitrate, rather than an ancillary logistical concern.” Inetianbor, 768 F.3d at 1350 (alteration in original) (internal quotation marks omitted) (quoting Brown v. ITT Consumer Fin. Corp., 211 F.3d 1217, 1222 (11th Cir. 2000)). Accordingly, we must determine whether the forum selection clause in the arbitration agreement was integral “to one or both of the parties at the time they entered into the agreement.” Id.

The terms of Parm’s arbitration agreement closely mirror the terms of the arbitration agreement in Inetianbor. Importantly, the forum selection clause in Parm’s agreement utilizes the identical mandatory language that any arbitration “shall be conducted” by the CRST and does not reference' any additional fora in that clause. See id. at 1350-51. Use of the word “shall” and the specific incorporation of the CRST consumer dispute rules in the agreement indicate intent to arbitrate before a specific arbitrator, rather than intent to arbitrate generally. See Miller v. GGNSC Atlanta, LLC, 323 Ga.App. 114, 746 S.E.2d 680, 686 (2013) (citations omitted). Also identical to Inetianbor, several provisions in Parm’s loan agreement expressly and repeatedly reference the CRST and the exclusive application of its laws and jurisdiction. These pervasive references to the tribal forum and its rules provide evidence that the forum selection clause was not simply an ancillary concern but an integral aspect of the parties’ agreement to arbitrate. See Inetianbor, 768 F.3d at 1350-51.

The most significant difference between Parm’s agreement and the agreement in Inetianbor is the language of the Choice of Arbitrator clause. NBCal argues that this clause provides alternative arbitral fora and proves that the CRST forum was not integral to the parties’ agreement to arbitrate. As previously discussed, the terms of the arbitration agreement state that the AAA or JAMS may administer arbitration under that organization’s rules “to the extent that those rules and procedures do not contradict” the law of the CRST and the express terms of the arbitration agreement. The terms of the arbitration agreement, incidentally, require that the arbitration be conducted by a representative of the CRST. Therefore, the Choice of Arbitrator clause only provides an administrative vehicle to appoint the CRST arbitrator and does not affect the importance of the CRST forum in the agreement. Based on the foregoing, we cannot distinguish Parm’s agreement from our analysis in Inetianbor. We are bound by our prior panel precedent to conclude that the tribal forum is integral to the parties’ agreement to arbitrate, and we may not provide a substitute under § 5 of the FAA.

Neither party disputes that the CRST forum is unavailable, and as such, we agree with the district court that we cannot enforce the delegation clause or the underlying arbitration agreement. We therefore affirm the district court’s order denying NBCal’s motion to compel arbitration in this case.

IV. CONCLUSION

We must enforce arbitration agreements, as all contracts, in accordance with their express terms. The terms of Parm’s arbitration agreement contain a forum selection clause requiring arbitration in a tribal forum that is both unavailable and integral to the parties’ agreement to arbitrate. Therefore, we cannot substitute an arbitrator in this case, and the parties cannot be compelled to arbitrate.

AFFIRMED.

      . ÑBCal argues that Parm's challenge to the delegation provision is waived under Parnell by her failure to include the challenge in her complaint. Parnell, however, is distinguishable. Addressing the identical loan agreement in Parnell, we held that “a plaintiff seek[ing] to challenge an arbitration agreement containing a delegation provision ... must challenge the delegation provision directly.” Parnell, 804 F.3d at 1144. Unlike Parm, the plaintiff in Pametl never raised a direct challenge to the delegation clause, instead challenging the arbitration provision generally as unenforceable. Id. at 1149. Had the Parnell plaintiff raised a direct challenge to the delegation clause in his opposition to a motion to compel, we would have considered it. See Rent-A-Center, 561 U.S. at 72, 130 S.Ct. at 2279 (analyzing whether the plaintiff's opposition to a motion to compel arbitration contained a direct challenge to the agreement's' delegation clause). Because Parm directly challenged the delegation clause in her opposition to the motion to compel, there is no waiver and we have jurisdiction to consider Parm's challenge.

      . We note that this reading has been adopted by several district courts. See, e.g., Yaroma v. Cashcall, Inc., 130 F.Supp.3d 1055, 1063-64 (E.D. Ky. 2015); Kemph v. Reddam, 2015 WL 1510797, at 5-6 (N.D. Ill. Mar. 27, 2015); Williams v. CashCall, Inc., 92 F.Supp.3d 847, 851-54 (E.D. Wis. 2015).

      . As the district court noted in its order denying NBCal’s motion to compel arbitration, this interpretation is consistent with the services provided by and the consumer dispute rules of the AAA and JAMS. For example, the consumer dispute rules of the AAA state that when acting as an administrator, the AAA’s “role is to manage the administrative aspects ..., such as the 'appointment of the arbitrator ... [but] not decide the merits of a case or make rules on issues.” Order at 56, Parm v. Nat’l Bank of Calif., No. 14-00320 (N.D. Ga. May 20, 2015), ECF. No. 46 (citing AAA Consumer Arbitration Rules, Introduction: About the AAA). Further, the AAA rules allow parties to direct the appointment of a specific arbitrator or make changes to applicable consumer dispute rules. See id. at 57 (citing AAA R.l(c)). The JAMS consumer dispute rules similarly allow the parties to direct the appointment of an arbitrator or make changes to the dispute rules applicable to the arbitration. See JAMS: Comprehensive Arbitration Rules & Procedures, R. 2(a) & (b).


author: MARTIN, Circuit Judge:

text:
    Brent JACOBY, Plaintiff-Appellant, v. BALDWIN COUNTY, Sheriff Mack, Major Byrne, Capt. Bennett, Sgt. Means, et al., Defendants-Appellees.
    No. 14-12932
    United States Court of Appeals, Eleventh Circuit.
    Date Filed: 08/29/2016

      Edgar A. Neely, Andrew Jacob Tuck, Alston & Bird, LLP, Atlanta, GA, for Plaintiff-Appellant.
    Jamie H. Kidd, Webb & Eley, PC, Luther J. Strange, III, Alabama Attorney General’s Office, Montgomery, AL, for Defendants-Appellees.
    Before MARTIN and JORDAN, Circuit Judges, and VINSON, District Judge.

       Honorable C. Roger Vinson, United States District Judge for the Northern District of Florida, sitting by designation.

   MARTIN, Circuit Judge:

Brent Jacoby appeals the District Court’s grant of summary judgment to Sheriff Huey Mack in this 42 U.S.C. § 1983 suit. Mr. Jacoby was a pretrial detainee at the Baldwin County Corrections Center (“Baldwin jail”) in Bay Minette, Alabama. On August 12, 20,12, Mr. Jacoby was placed in administrative segregation after testing positive for cocaine. He alleges that he was forced to sleep on the floor next to a toilet while in administrative segregation and was exposed to human excrement as a result. Mr. Jacoby also alleges that the August 15, 2012, disciplinary hearing that stemmed from his failed drug test was procedurally inadequate. First, Mr. Jacoby complains that he was prevented from calling a key witness — Sergeant Griffith — who would have testified in his defense. Second, Mr. Jacoby argues that one of the disciplinary hearing board members, Officer Arnold, should not have been permitted to hear the case because he was involved in the underlying investigation that led to Mr. Jacoby’s arrest.

On appeal, Mr. Jacoby challenges the District Court’s ruling on two claims, citing violations of the Due Process Clause of the Fourteenth Amendment for both. Mr. Jacoby first argues that Sheriff Mack violated his substantive due process rights by confining him in an unsanitary and overcrowded cell. Mr. Jacoby also argues that Sheriff Mack violated his procedural due process rights at his August 15, 2012, disciplinary hearing. We affirm the District Court as to both claims.

I.

We review de novo a district court’s decision on a motion for summary judgment, viewing the facts in the light most favorable to the plaintiff. Terrell v. Smith, 668 F.3d 1244, 1249-50 (11th Cir. 2012). Summary judgment is proper when “there is no genuine issue as to any material fact and [ ] the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) (quotation omitted); see also Fed. R. Civ. P. 56(a). “A party asserting that a fact ... is genuinely disputed must support the assertion by ... citing to particular parts of materials in the record.” Fed. R. Civ. P. 56(c)(i). Summary judgment is thus warranted “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. at 2552.

II.

Mr. Jacoby alleges that on August 12, 2012, he was placed in administrative seg-' regation in the Baldwin jail’s “F-Block” after a urine test administered by the jail came back positive for cocaine. According to Mr. Jacoby, he had to sleep on the floor next to a toilet while in administrative segregation because he was the third inmate in an 8-by-10-foot cell meant for two. He also alleges that his cellmates “uri-nat[ed] and defecatfed] over him” as he tried to sleep, and that other inmates in the segregation unit “thr[ew] feces and urine at him.” Mr. Jacoby alleges that he developed a foot rash due to these unsanitary conditions and the lack of hygiene products available to him.

On August 15, 2012, Mr. Jacoby had a disciplinary hearing about his failed drug test. Mr. Jacoby raises the issue of the propriety of one of the three officers (Officer Arnold) serving on the hearing board after having been present for the incident that resulted in Mr. Jacoby being disciplined. Mr. Jacoby also says that he wanted to call Sergeant Griffith as a witness to explain that Mr. Jacoby was working on drug busts with him, and that Mr. Jacoby was only using drugs as a cover. However, the hearing board refused to let him call Sergeant Griffith. Mr. Jacoby was found guilty of cocaine use and given 45 days of segregation. The next day, Mr. Jacoby was given 24 additional days of segregation after being found guilty in a separate disciplinary hearing of possessing a small piece of copper wire that could be used as a weapon.

III.

To proceed with his constitutional claims, Mr. Jacoby must clear the significant hurdle posed by Sheriff Mack’s qualified immunity defense. “Qualified immunity protects government officials performing discretionary functions ... from liability if their conduct violates no clearly established statutory or constitutional rights of which a reasonable person would have known.” Foy v. Holston, 94 F.3d 1528, 1532 (11th Cir. 1996). “In this [Circuit, the law can be ‘clearly established’ for qualified immunity purposes only by decisions of the U.S. Supreme Court, Eleventh Circuit Court of Appeals, or the highest court of the state where the case arose.” Jenkins v. Talladega City Bd. of Educ., 115 F.3d 821, 826 n.4 (11th Cir. 1997). If a public official was acting within the scope of his discretionary authority, the burden falls to the plaintiff to show that qualified immunity is inappropriate. Terrell, 668 F.3d at 1250. To do so, the plaintiff must: (1) “allege facts that establish that the officer violated [his] constitutional rights”; and (2) “show that the right involved was clearly established at the time of the putative misconduct.” Id. (quotation omitted). We may consider these two prongs in either order, and a public official is entitled to qualified immunity if the plaintiff fails to establish either one. See Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009).

Mr. Jacoby does not contest that Sheriff Mack was acting within his discretionary authority at all times relevant to this lawsuit. Instead, he claims that it was clearly established that both his conditions of confinement and the process provided at his August 15 disciplinary hearing were constitutionally inadequate. “For a constitutional right to be clearly established, its contours must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 2515, 153 L.Ed.2d 666 (2002) (quotation omitted). The specific action in question need not have been previously found unlawful, but “in the light of pre-existing law the unlawfulness must be apparent.” Id. (quotation omitted). The central question is whether the state of the law at the time of. the violation gave the officials “fair warning” that their alleged actions were unconstitutional. Id. at 741, 122 S.Ct. at 2516.

IV.

We first consider whether it was clearly established that Mr. Jacoby’s conditions of confinement violated his constitutional rights. Again, Mr. Jacoby alleges that he was forced to sleep “on the floor with no mattress and sheets” while “next to a toilet” during his first night in segregation. Mr. Jacoby continued to sleep on the floor next to the toilet even after the first night, saying it was his only option because he was the third occupant in a two-man cell. He alleges that he was exposed to human excrement and developed a foot rash as a result of these conditions.

While the conditions under which a convicted inmate are held are scrutinized under the Eighth Amendment’s prohibition on cruel and unusual punishment, the conditions under which a pretrial detainee are held' are reviewed under the Due Process Clause of the Fourteenth Amendment. See Bell v. Wolfish, 441 U.S. 520, 535 n.16, 99 S.Ct. 1861, 1872 n.16, 60 L.Ed.2d 447 (1979) (using the Fifth Amendment Due Process Clause). The Supreme Court established the standard for substantive due process claims raised by pretrial detainees in Bell. Bell teaches that “a [pretrial] detainee may not be punished prior to an adjudication of guilt in accordance with due process of law.” Id. at 535, 99 S.Ct. at 1872; see also McMillian v. Johnson, 88 F.3d 1554, 1564 (11th Cir.), amended on other grounds on reh’g by 101 F.3d 1363 (11th Cir. 1996). However, the government “may detain him to ensure his presence at trial and may subject him to the restrictions and conditions of the detention facility so long as those conditions and restrictions do not amount to punishment, or otherwise violate the Constitution.” Bell, 441 U.S. at 536-37, 99 S.Ct. at 1873.

“[W]hether a condition of pretrial detention amounts to punishment turns on whether the condition is imposed for the purpose of punishment or whether it is incident to some legitimate government purpose.” Magluta v. Samples, 375 F.3d 1269, 1273 (11th Cir. 2004) (citing Bell, 441 U.S. at 538, 99 S.Ct. at 1873). “[A]n expressed intent to punish on the part of detention facility officials” is sufficient, but not necessary, to establish unconstitutional pretrial punishment. Bell, 441 U.S. at 538, 99 S.Ct. at 1873-74; see also McMillian, 88 F.3d at 1564. “[A] court [also] permissibly may infer that the purpose of the governmental action is punishment” if the “restriction or condition is not reasonably related to a legitimate goal — if it is arbitrary or purposeless.” Bell, 441 U.S. at 539, 99 S.Ct. at 1874.

Bell effectively creates a two-part test. First, a court must ask whether any “legitimate goal” was served by the prison conditions. Second, it must ask whether the conditions are “reasonably related” to that goal. And, to defeat Sheriff Mack’s claim of qualified immunity, Mr. Jacoby must point to precedent that would give Sheriff Mack “fair warning” that these requirements would not be met under the conditions of confinement Mr. Jacoby says he experienced. See Hope, 536 U.S. at 741, 122 S.Ct. at 2516. We hold that Mr. Jacoby has failed to make this showing. He has pointed to no caselaw clearly establishing that putting him in a cell with two other inmates was unconstitutional punishment in violation of Bell. To the contrary, in Bell itself the Supreme Court held that “double-bunking” (placing two inmates in a cell intended for one) does not constitute punishment. 441 U.S. at 541-42, 99 S.Ct. at 1875-76. Neither has Mr. Jacoby pointed to any caselaw clearly establishing that having to sleep on a mattress on the floor violated his constitutional rights. In fact, in Hamm, this Court held that “[t]he fact that [a pretrial detainee] temporarily had to sleep upon a mattress on the floor or on a table is not necessarily a constitutional violation.” 774 F.2d at 1575.

Mr. Jacoby cites Chandler v. Baird, 926 F.2d 1057 (11th Cir. 1991), Jordan v. Doe, 38 F.3d 1559 (11th Cir. 1994), and Brooks v. Warden, 800 F.3d 1295 (11th Cir. 2015), as caselaw clearly establishing the constitutional violations he alleges. In Chandler, this Court ruled that a convicted inmate who alleged he was “confine[d] in a cold cell with no clothes except undershorts and with a plastic-covered mattress without bedding; filth on the cell’s floor and walls; deprivation of toilet paper for three days; deprivation of running water for two days; lack of soap, toothbrush, toothpaste, and linen; and the earlier occupancy of the cell by an inmate afflicted with an HIV virus” established a triable issue of fact. 926 F.2d at 1063, 1065. Likewise, in Jordan we held that a pretrial detainee’s allegations that he was held in “overcrowded, unsanitary local jails where the food was contaminated and fire, hazards existed” were sufficient for his claims to survive a motion to dismiss (though we ultimately held that the government officials in that case should have been granted qualified immunity). 38 F.3d at 1565, 1567. And finally, in Brooks we reversed the dismissal of a convicted inmate’s claims that he “was forced to defecate into his jumpsuit and sit in his own feces for two days during his three-day hospital stay.” 800 F.3d at 1303.

Taken in the light most favorable to him, Mr. Jacoby’s allegations establish that he was temporarily forced to sleep on a mattress on the floor near the toilet. His circumstances are not enough like those described in Chandler, Brooks, and Jordan for those cases to clearly establish that his conditions of confinement were unconstitutional. We therefore affirm the District Court’s ruling on Mr. Jacoby’s substantive due process claim.

V.

We next consider whether Sheriff Mack violated Mr. Jacoby’s clearly established procedural due process rights during the August 15, 2012, disciplinary hearing. Mr. Jacoby argues that his disciplinary hearing was constitutionally inadequate because: (1) he was not permitted to call Sergeant Griffith as a witness; and (2) Officer Arnold, who brought him to his drug test and then to the F-Block afterwards, was one of the three presiding officers.

A.

The Fourteenth Amendment due process safeguards that must be afforded to both pretrial detainees and convicted inmates in prison disciplinary hearings are governed by Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). See Bell, 441 U.S. at 545, 99 S.Ct. at 1877. But for an inmate to be entitled to those safeguards, he must have an interest “sufficiently embraced within Fourteenth Amendment ‘liberty’ to entitle him to th[e] minimum procedures appropriate under the circumstances and required by the Due Process Clause.” Wolff, 418 U.S. at 557, 94 S.Ct. at 2975; see also Bass v. Perrin, 170 F.3d 1312, 1318 (11th Cir. 1999) (“[W]e must .determine whether the injury claimed by the plaintiff! ] is within the scope of the Due Process Clause! which] protects against deprivations of ‘life, liberty, or property without due process of law.’ ” (quoting U.S. Const. Amend. XIV)).

Whether an inmate has a protected liberty interest that would entitle him to due process protections “is often a difficult determination in the context of a prison, because prisoners have already been deprived of their liberty in the ordinary sense of the term.” Bass, 170 F.3d at 1318. In Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), the Supreme Court gave us the test for determining whether a convicted inmate has a protected liberty interest. This test examines the hardship imposed on the inmate relative to the “basic conditions” of prison life. See id. at 485, 115 S.Ct. at 2301. Under this test, a convicted inmate is entitled to procedural due process in two circumstances. First, he is entitled to a measure of procedural due process when an increased restraint “exceed[s] [his] sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force.” Id. at 484, 115 S.Ct. at 2300. Second, he is entitled to a measure of procedural due process when a change in his conditions of confinement “imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id.

In Sandin, the Supreme Court held that placing a convicted inmate in segregated confinement for thirty days as discipline was not “a dramatic departure from the basic conditions of [the inmate’s] indeterminate sentence” of thirty years to life in prison. Id. at 485, 115 S.Ct. at 2301. Therefore, that inmate was not entitled “to the procedural protections set forth in Wolff’ before being placed in segregation. Id. at 487, 115 S.Ct. at 2302. Citing Sandin, the District Court here ruled against Mr. Jaco-by on his procedural due process claim because his confinement in disciplinary segregation “simply do[es] not give rise to a constitutionally protected liberty interest ... so as to invoke [ ] due process procedures.”

Before considering the District Court’s application of Sandin to Mr. Jacoby’s case, it is important to understand the reasoning that supported its holding. The Supreme Court explained that a convicted inmate’s disciplinary segregation did not give rise to a protected liberty interest because “[discipline by prison officials in response to a wide range of misconduct falls within the expected perimeters of the sentence imposed by a court of law.” Sandin, 515 U.S. at 485, 115 S.Ct. at 2301 (emphasis added). The Court also said the disciplinary segregation at issue in Sandin was “within the range of confinement to be normally expected for one serving an indeterminate term of 30 years to life.” Id. at 487, 115 S.Ct. at 2302.

Sandin therefore held that disciplinary segregation did not “exceed[ ] the [inmate’s] sentence in such an unexpected manner as to give rise to protection by the Due Process Clause” or “impóse[ ] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life” because he was already subject to restraint on account of his conviction and sentence. Id. at 484, 115 S.Ct. at 2300. Said another way, convicted inmates have no right to a due process hearing before being punished for disciplinary infractions unless the punishment is demonstrably harsher than the ordinary conditions of prison life. This is because these inmates are already subject to punishment on account of then-convictions and sentences.

This rationale plainly does not apply to a pretrial detainee like Mr. Jacoby. At the time he was detained at the Baldwin jail, Mr. Jacoby “ha[d] been charged with a crime [] but ha[d] not yet been tried on the charge.” Bell, 441 U.S. at 523, 99 S.Ct. at 1865. It necessarily follows that he had not been convicted or sentenced. Therefore, as the Supreme Court recognized in Bell, “under the Due Process Clause, [he could] not be punished prior to an adjudication of guilt in accordance with due process of law.” Id. at 535, 99 S.Ct. at 1872. Sandin recognized this distinction between convicted inmates, who can be punished without a due process hearing, and pretrial detainees, who cannot. As Sandin said:

The Court in Bell correctly noted that a detainee “may not be punished prior to an adjudication of guilt in accordance with due process of law.” The Court expressed concern that a State would attempt to punish a detainee for the crime for which he. was indicted via pre-conviction holding conditions. Such a course would improperly extend the legitimate reasons for which such persons are detained — to ensure their presence at trial.

Id. at 484, 115 S.Ct. at 2800 (citations omitted) (quoting Bell, 441 U.S. at 535, 99 S.Ct. at 1872).

Sandin leaves intact Bell’s holding that “a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law.” Bell, 441 U.S. at 535, 99 S.Ct. at 1872. It’s true that Mr. Jacoby’s procedural due process claim is different than the substantive due process claims brought in Bell. He challenges his being placed in segregation after what he views as an inadequate hearing. He does not challenge the general conditions of his incarceration with this claim. And the jail imposed disciplinary segregation not as punishment for the crime that led to Mr. Jacoby’s detention, but rather as punishment for his violation of jail rules. Still, Bell’s teachings apply here with equal force. A pretrial detainee like Mr. Jacoby may not be punished for his misconduct while in prison unless he is given a due process hearing. See id.

A pretrial detainee need not meet the Sandin standard to establish his right to a due process hearing before being placed in disciplinary segregation. Specifically, a pretrial detainee is not required to prove that his conditions of confinement either “exceed[] the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force” or “impose[ ] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life,” Sandin, 515 U.S. at 484, 115 S.Ct. at 2300, to be entitled to the process governed by Wolff. Rather, a pretrial detainee is entitled to a due process hearing before being subjected to “conditions [that] amount to punishment.” Bell, 441 U.S. at 535, 99 S.Ct. at 1872.

Of course this does not mean that Mr. Jacoby and his fellow pretrial detainees are free to violate jail rules with impunity. Indeed, Bell recognizes the need for “preserving internal order and discipline” • among pretrial detainees and convicted inmates alike. Id. at 546, 99 S.Ct. at 1878. What it does mean, however, is that before Mr. Jacoby, as a pretrial detainee, is punished for violating a jail rule, there must be a due process hearing to determine what rule he violated. This approach is consistent with both Bell and Sandin.

We recognize that, in Magluta, a panel of this Court applied the Sandin test to a pretrial detainee’s procedural due process claim. See 375 F.3d at 1282. However, Magluta does not categorically require the application of Sandin to pretrial detainees’ procedural due process claims for a couple of reasons. First, 'Magluta’s analysis rested primarily on pre-Sandin caselaw because the detention at issue in that ease ended two months before the Supreme Court decided Sandin. Therefore, Magluta first analyzed the plaintiffs procedural due process claim under the “mandatory language” analysis used by the Supreme Court in Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983). See Magluta, 375 F.3d at 1280. Under the (now discarded) Hewitt test, an inmate had a protected liberty interest if the prison regulation under which he was punished included “mandatory” language compelling certain procedures. See 459 U.S. at 472, 103 S.Ct. at 871. Applying this test, the Magluta panel held that the regulation at issue contained “substantive predicates and extensive use of mandatory language ... [that] create[d] a liberty interest in remaining in the general prison population.” 375 F.3d at 1281. And Magluta looked to Hewitt to determine whether the liberty interest was clearly established for the purposes of the defendants’ qualified-immunity claim. See id. at 1283-84.

It was only after conducting an extensive analysis under Hewitt that the Maglu-ta panel turned briefly to Sandin. See id. at 1281-82 & n.8 (acknowledging that “after the challenged conduct took place, the Supreme Court expressly abandoned Hewitt’s methodology” in Sandin). And even then, the Court referenced Sandin only to say that “Sandin does not operate to erode the existence of a liberty interest which was indicated by the state of the law as of the time of the conduct at issue.” Id. at 1282. In other words, the panel found that Sandin did not call for a different conclusion than Hewitt because in Magluta the pretrial detainee alleged that he had been locked in a closet-sized space with minimal human contact for 500 days, so he also met the stricter “atypical hardship” standard. Id. Magluta’s conclusion that the plaintiff met both standards does not mandate the application of Sandin to all claims by pretrial detainees. The Magluta panel was merely confirming that Sandin did not upset its Hewitt-based holding, which applied based on the law existing at the time of Mr. Magluta’s detainment.

Second, the Magluta panel’s application of Sandin does not control here because that panel never actually considered whether Sandin governs claims by pretrial detainees. Instead, Magluta summarily discussed Sandin after it had already concluded that the pretrial detainee in question had a protected liberty interest under Hewitt. See id. at 1281-82. The Magluta panel’s decision to proceed to Sandin without considering the antecedent question of whether Sandin applies to pretrial detainees is not binding on us. See United States v. Verdugo-Urquidez, 494 U.S. 259, 272, 110 S.Ct. 1056, 1064-65, 108 L.Ed.2d 222 (1990) (holding that “assum[ptions] ... [about] the validity of antecedent propositions ... are not binding in future cases that directly raise the questions”).

Every other Circuit that has squarely considered this question has concluded that Bell creates a due process right for pretrial detainees who are subject to punishment. See Surprenant v. Rivas, 424 F.3d 5, 17 (1st Cir. 2005) (“[T]he San-din Court’s rationale applies only to those convicted of crimes — not to pretrial detainees. The courts of appeals that have addressed this question are consentient on the point.”); Peoples v. CCA Det. Ctrs., 422 F.3d 1090, 1106 & n.12 (10th Cir. 2005), vacated in part on other grounds by 449 F.3d 1097 (10th Cir. 2006) (en banc) (per curiam); Benjamin v. Fraser, 264 F.3d 175, 188-89 & n.11 (2d Cir. 2001); Fuentes v. Wagner, 206 F.3d 335, 341-42 & n.9 (3d Cir. 2000); Rapier v. Harris, 172 F.3d 999, 1005 (7th Cir. 1999); Mitchell v. Dupnik, 75 F.3d 517, 524 (9th Cir. 1996). Magluta’s cursory treatment of Sandin does not prevent us from joining our Sister Circuits. We hold that, consistent with Bell, Mr. Jacoby was entitled to the due process protections enshrined in Wolff before being placed in disciplinary segregation.

B.

Because we find that Mr. Jacoby had a protected liberty interest, we must continue beyond where the District Court ended. The Baldwin jail provided Mr. Ja-coby with a hearing before placing him in disciplinary segregation, so the question before us is whether it was clearly established that the hearing violated Wolff. Where a constitutionally protected liberty interest exists, Wolff holds that a prison must give an inmate: (1) advance written notice of the charges; (2) a written statement of the reasons for the disciplinary action taken; and (3) the opportunity to call witnesses and present evidence “when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals.” 418 U.S. at 564-66, 94 S.Ct. at 2979. Wolff also holds that a prison hearing board must be “sufficiently impartial to satisfy the Due Process Clause.” Id. at 571, 94 S.Ct. at 2982.

Sheriff Mack is entitled to qualified immunity with respect to Mr. Jacoby’s procedural due process claims. We start with Mr. Jacoby’s claim that the hearing board’s refusal to call Sergeant Griffith as a witness violated his due process rights. Mr. Jacoby suggests that Wolff established that Sheriff Mack had the burden of proving that calling Sergeant Griffith was “unduly hazardous to institutional safety or correctional goals.” However, Wolff explicitly rejected the idea that defendants must state their reasons for not calling a witness:

Prison officials must have the necessary discretion to keep the hearing within reasonable limits and to refuse to call witnesses that may create a risk of reprisal or undermine authority, as well as to limit accéss to other inmates to collect statements or to compile other documentary evidence. Although we do not prescribe it, it would be useful for .the [hearing board] to state its reason for refusing to call a witness.

Id. at 566, 94 S.Ct. at 2980 (emphasis added).

“Absent specific allegations that the refusal of a disciplinary committee to call witnesses on behalf of the inmate was arbitrary, capricious or an abuse of discretion, the courts are without authority to entertain the issue.” Thomas v. Estelle, 603 F.2d 488, 490 (5th Cir. 1979) . (per curiam). Mr. Jacoby’s goal, presumably, was for Sergeant Griffith to testify that he was aware Mr. Jacoby was taking Seroqu-el as part of their jointly conceived plan to identify inmates smuggling drugs into the Baldwin jail. But Mr. Jacoby tested positive for cocaine, not Seroquel. Even if Sergeant Griffith testified exactly as Mr. Jaco-by claims he would have, it’s unclear that testimony would have helped Mr. Jacoby. Mr. Jacoby points to no easelaw that would give Sheriff Mack or others at the jail “fair warning” that failing to call Sergeant Griffith in circumstances like these was a violation of Mr. Jacoby’s due process rights.

Next, we consider Mr. Jacoby’s claim that he was denied an impartial tribunal because Officer Arnold sat on the hearing board. Mr. Jacoby emphasizes that “Officer Arnold was directly involved in the underlying investigation that resulted in Mr. Jacoby being charged with a drug violation: he retrieved Mr. Jacoby from his cell; he escorted him to the medical ward for a drug test; he remained present in the medical ward during Mr. Jacoby’s drug test; and, he put Mr. Jacoby in segregation after the positive test results were returned.” As a threshold issue, Sheriff Mack disputes that Officer Arnold was even involved in the underlying investigation. Sheriff Mack notes that Officer Arnold was not listed anywhere on the relevant activity report, did not serve as the arresting officer, and did not make the decision to drug test Mr. Jacoby.

Even accepting Mr. Jacoby’s version of events, Officer Arnold’s presence on the hearing board was not a clearly established constitutional violation. Mr. Jacoby cites Redding v. Fairman, 717 F.2d 1105 (7th Cir. 1983), in support of his claim. For starters, a Seventh Circuit case cannot clearly establish law in the Eleventh Circuit. See Jenkins, 115 F.3d at 826 n.4. Leaving that issue aside for the moment, Redding actually hurts Mr. Jacoby’s argument. In Redding, the Seventh Circuit rejected a per se rule that disciplinary committee members “should not be defendants in pending lawsuits for damages instituted by the very persons over whom the committee sits in judgment.” Id. at 1113 (quotation omitted). The Court said that the “disqualification issue should be decided on a case-by-case basis” because “[i]f every named defendant in a prisoners’ rights lawsuit must be disqualified from sitting on the [disciplinary board], ... [it] would vest too much control in a prisoner to determine the [board’s] make-up.” Id.

It’s true that Redding acknowledged that a prison official with “direct personal or otherwise substantial involvement, such as major participation in a ... decision-making role” in the underlying investigation might be disqualified from a disciplinary board. Id. (quotation omitted). We agree that it would have been facially improper for an officer with a greater deci-sionmaking role, such as the arresting officer, to serve on the hearing board. However, under Mr. Jacoby’s version of the facts, Officer Arnold had no decision-making role in his arrest. Officer Arnold merely escorted Mr. Jacoby to the drug test, waited with him during the test, then put him in disciplinary segregation. Mr. Jacoby has failed to demonstrate that Officer Arnold’s presence on the hearing board was a clearly established constitutional violation. Because he has not made such a showing as to either of his two procedural complaints, we affirm the District Court’s grant of summary judgment in favor of Sheriff Mack on this claim.

Because Mr. Jacoby is a pretrial detainee, his substantive and procedural due process claims fall within Bell’s ambit. We reiterate Bell’s holding that “a [pretrial] detainee may not be punished prior to an adjudication of guilt in accordance with due process of law.” 441 U.S. at 535, 99 S.Ct. at 1872. For this reason, we hold that Mr. Jacoby was entitled to the due process hearing he received before being punished for his misconduct while in jail. However, because Mr. Jacoby has failed to overcome Sheriff Mack’s qualified immunity defense on either of his claims, we affirm the District Court’s grant of summary judgment.

AFFIRMED.

      . The two claims Mr. Jacoby appeals were against Baldwin County, Alabama, Sheriff Huey Mack, and former Assistant Chief Deputy of Corrections Dale Byrne in the District •Court. Mr. Jacoby has not appealed the denial of his motion to substitute Major Jimmy Mil- ■ ton, who replaced Major Byrne after his death, as to his individual claims. Similarly, he has not appealed the dismissal of his claims against Baldwin County or his official-capacity claims against the individual defendants. Therefore, Mr. Jacoby's only claims remaining on appeal are against Sheriff Mack in his individual capacity for money damages and in his official capacity for injunctive relief. However, since Mr. Jacoby is no longer an inmate at the Baldwin jail, his claims for injunctive relief are moot.

      . As we must on summary judgment, we view the facts in the light most favorable to Mr. Jacoby. Terrell, 668 F.3d at 1250. However, "[a] party asserting that a fact ... is genuinely disputed must support the assertion by ... citing to particular parts of materials in the record.” Fed. R. Civ. P. 56(c)(l). Mr. Jacoby has not pointed to any evidence, such as his own affidavit or affidavits from his cellmates, supporting his claim that other inmates threw human waste at him. Without record support, we view Mr. Jacoby’s assertion as a concluso-ry allegation insufficient to create a genuine issue of material fact. Mr. Jacoby likewise fails to create a triable issue of fact on the question of whether he was deprived of hygiene products. Sheriff Mack submitted affidavit testimony by Major Milton saying that inmates in the segregation unit are given thirty minutes of recreation time each day during which they can shower. Major Milton’s affidavit also says that inmates are permitted to order "certain hygiene items” and are provided with "basic sanitary materials.” Again, Mr. Jacoby fails to "cit[e] to particular parts of materials in the record” that would support his contrary assertion that he was not allowed hygiene products. Id.

      . In Hamm v. DeKalb County, 774 F.2d 1567 (11th Cir. 1985), this Court held that "in regard to providing pretrial detainees with such basic necessities as food, living space, and medical care the minimum standard allowed by the due process clause is the same as that allowed by the eighth amendment for convicted persons.” Id. at 1574. Relying on Hamm, the Magistrate Judge’s Report and Recommendation (which the District Court adopted) applied the Eighth Amendment’s subjective deliberate indifference standard to Mr. Jacoby’s due process claim. That is, the District Court found that Mr. Jacoby had not established: (1) an “objective[ ], sufficiently serious” risk of harm, and (2) "deliberate indifference” to that risk by prison officials. Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 1977, 128 L.Ed.2d 811 (1994) (quotations omitted). We conclude that the outcome in this case is the same under either Hamm or Bell, and so apply the Supreme Court’s articulation of the standard for pretrial detainees from Bell on appeal. However, we need not decide Mr. Jacoby’s claim that the Eighth Amendment’s subjective deliberate indifference standard conflicts with Bell's objective "punishment” standard.

      . In his complaint, Mr. Jacoby also .alleged that he was confined for 23.5 hours per day in an overcrowded cell. Sheriff Mack confirms that "[i]nmates are generally allowed thirty (30) minutes time recreation in segregation.” The number of hours Mr. Jacoby was confined each day gives us pause. However, Mr. Jacoby has not argued on appeal that this condition of his confinement violated his substantive due process rights, so he has abandoned this argument. See Hamilton v. South-land Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012).

      . As with a substantive due process claim, “whether a condition of pretrial detention amounts to punishment turns on whether the condition is imposed for the purpose of punishment or whether it is incident to some legitimate government purpose.” Magluta, 375 F.3d at 1273 (citing Bell, 441 U.S. at 538, 99 S.Ct. at 1873).

      . Even if the jail had not given Mr. Jacoby a hearing. Sheriff Mack arguably would have been entitled to qualified immunity. Our case-law had not, at the time, given fair notice that pretrial detainees are entitled to a due process hearing before being punished for misconduct irrespective of the Sandin analysis.

      . Decisions of the former Fifth Circuit issued before October 1, 1981, are binding precedent on this Court. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).