author: McHUGH, Circuit Judge.

text:
    VEHICLE MARKET RESEARCH, INC., Plaintiff-Appellant, v. MITCHELL INTERNATIONAL, INC., Defendant-Appellee.
    No. 15-3243
    United States Court of Appeals, Tenth Circuit.
    Filed October 25, 2016

      Nora M. Kane, Stinson Leonard Street, Omaha, Nebraska, for Plaintiff-Appellant.
    Scott T. Schutte and Tedd M. Warden, Morgan Lewis & Bockius, LLP, Chicago, Illinois, for Defendant-Appellee.
    Before HARTZ, BACHARACH, and McHUGH, Circuit Judges. ,

      . For a more detailed factual history, refer to our prior decision in Vehicle Market Research, Inc. v. Mitchell International, Inc., 767 F.3d 987 (10th Cir. 2014) [hereinafter VMR /].

   McHUGH, Circuit Judge.

I. INTRODUCTION

Vehicle Market Research, Inc. (VMR) sued Mitchell International, Inc. (Mitchell) to recover royalties Mitchell allegedly owed pursuant to a software licensing agreement. The jury returned a verdict for Mitchell, and VMR appeals. VMR first argues the district court erred by allowing Mitchell, contrary to the law of the case doctrine, to cross-examine VMR’s sole shareholder on the value of VMR as he stated in his personal bankruptcy. Second, VMR contends the district court erred in omitting part of VMR’s proposed jury instruction on Rule 30(b)(6) witnesses. We affirm.

II. BACKGROUND I

John Tagliapiétra is the sole shareholder ofiVMR. In 1997, he developed the TLSS Product, designed to “assistf] automobile insurers in providing a fair market value for a vehicle that has been declared a total loss.” Vehicle Mkt. Research, Inc. v. Mitchell Int’l, Inc., 767 F.3d 987, 989 (10th Cir. 2014) [hereinafter VMR /] (citation omitted). VMR licensed this product exclusively te Mitehell, á company that provides products and solutions for insurance companies and collision repair facilities. In return, Mitchell agreed to pay a $1.00 royalty each time it used VMR’s product, up to a maximum of $4.5 million. Mitchell paid VMR royalties of between $200 and $3,300 monthly until September 2005.

Although Mitchell never terminated the agreement-with VMR, in November 2005, it released its own product for assessing vehicle fair market value (the Mitchell Product) and used it exclusively thereafter. Accordingly/ Mitchell discontinued paying royalties to VMR.

Mr. Tagliapiétra filed Chapter 7 bankruptcy in October 2005. Id. at 991. On his bankruptcy schedules, he listed the value of VMR’s stock as “0.00.” He did so because he “was no longer receiving royalties from Mitchell; had no expectation of receiving additional royalties from Mitchell; did not have possession or right to possess the software developed for Mitchell because the Agreement was never terminated; and had no other assets.” Id.

. Approximately a year and half later, in mid-2007, Mr. Tagliapiétra began to suspect that Mitchell had used VMR’s intellectual property to develop the Mitchell Product. After examining the Mitchell Product in 2009, Mr. Tagliapietra became convinced it infringed .on VMR’s proprietary rights.

On October 5, 2009, VMR filed a complaint against Mitchell claiming over. $4 million in damages for breach of contract and other causes of action. Fifteen days later, on October 20, 2009, the bankruptcy court approved the discharge of Mr. Ta-gliapietra’s debts based on his insolvency. The Trustee valued Mr. Tagliapietra’s interest in VMR as “unknown.” VMR /, 767 F.3d at 989.

Mitchell then moved for summary judgment under a theory of judicial estoppel based on the inconsistency between Mr. Tagliapietra’s valuation of VMR; at zero in his personal bankruptcy proceedings and the allegation in the pending litigation that Mitchell owed VMR over $4 million in royalties. Id. at 992. The district court granted Mitchell’s motion for summary judgment, and VMR appealed.

This court reversed and remanded, acknowledging that

the near-simultaneous timing between Mr. Tagliapietra’s bankruptcy discharge and the filing of this lawsuit is, suspicious, ¡and there is some facial incongruity between Mr. Tagliapietra’s approving a valuation of “unknown” for his VMR stock given his testimony that he believed at the time he filed the lawsuit that VMR was entitled to “up to $4 million in royalties” because of the legal claim.

Id. at 996-97. Nevertheless, we reasoned that judicial estoppel “would have to be based on a duty by Mr. Tagliapietra to amend his bankruptcy pleadings to report a possible increased value for his VMR stock.” Id, at 989. Because our precedent was unclear “on whether a debtor has a continuing duty to amend his bankruptcy schedules when the estate’s assets change in value,” we expressed “our reluctance to invoke judicial estoppel.” Ultimately, we concluded Mitchell had “not met its burden of showing any clearly inconsistent statements that would warrant that relief.” Id.

On remand and in anticipation of trial, both VMR and Mitchell filed motions in limine relating to the bankruptcy valuation. Mitchell sought an order allowing use of Mr. Tagliapietra’s “inconsistent sworn statements,” made during his bankruptcy, “in order to examine Mr. Tagliapietra’s veracity and credibility as a witness, and for purposes of impeachment.” Conversely, VMR moved to prohibit Mitchell from making any reference to the bankruptcy or Mr. Tagliapietra’s statements in the bankruptcy. VMR argued that VMR I “foreclose^] even a suggestion that the statements made by [Mr. Tagliapietra] ... during his bankruptcy and the statements that he’s made to this court in his deposition or during his live testimony’ were inconsistent.

The district court denied VMR’s motion and granted, in part, Mitchell’s request to use the bankruptcy valuation evidence at trial. It read our decision in VMR I as being limited to the issue of judicial estop-pel, which is “a very egregious and harsh remedy ... requiring] clearly inconsistent statements.” Concluding nothing in VMR I precluded it from doing so, the court ruled Mitchell could impeach Mr. Tagliapietra on cross-examination with prior inconsistent statements, including from the bankruptcy proceeding. The court further instructed, however, that it would not allow “an affirmative reveal ... by [Mitchell’s counsel], whether that’s in opening statement or otherwise through the testimony of another witness or whatever, any suggestion that Mr. Tagliapietra filed bankruptcy and that he did what he did in the bankruptcy.”

During discovery, VMR had noticed the deposition of Mitchell under Rule 30(b)(6), thereby compelling Mitchell to designate one or more persons to testify on behalf of the company as to the subject matters identified. See Fed. R. Civ. P. 30(b)(6). Mitchell designated' Jim Lindner, its former CEO. At his 30(b)(6) deposition, Mr. Lindner testified that he would not have allowed his employees to “use” the VMR work product in developing the Mitchell Product because that would be a breach of his “ethics of business conduct.”

The case proceeded to trial. During the direct examination of Mr. Tagliapietra, VMR’s counsel approached the bench and outlined her plan to raise preemptively his bankruptcy valuation statements, while preserving her argument that this court’s mandate precluded the introduction of any evidence on that subject:

[I]n light of the Court’s ruling about ... allowing Mitchell to attempt to impeach my client with prior inconsistent statements, without waiving my objection, I am going to introduce the issue. And I want it on the record that it’s our vehement belief that [the Tenth Circuit opinion] precludes this—the introduction of this testimony. It’s not material to this case. ... And over that objection, I’m going to elicit testimony about the statements made in the bankruptcy court. But I—in no way, shape, or form am I waiving the objection.

VMR’s counsel then questioned Mr. Ta-gliapietra about his bankruptcy valuation of VMR. Mr. Tagliapietra admitted he “placed a zero value on VMR” in his personal bankruptcy, that at the time of his bankruptcy discharge VMR’s value was “unknown,” and that he acted as VMR’s representative in filing the operative complaint claiming Mitchell owed VMR over $4 million in unpaid royalties. VMR’s counsel allowed Mr. Tagliapietra to explain that the bankruptcy valuation and estimated royalty amount were not inconsistent, because VMR was still worth “zero.”

Following this direct examination, Mitchell’s counsel cross-examined Mr. Ta-gliapietra. The district court sustained several of VMR’s objections when Mitchell attempted to explore the bankruptcy more generally. But consistent with its earlier rulings, the district court allowed Mitchell to impeach Mr. Tagliapietra with the values he had provided in the bankruptcy petition because “based on my limine ruling, it was clear that anybody could go into the bankruptcy within the limitations that I had already set.” Mitchell’s counsel elicited testimony from Mr. Tagliapietra about his prior valuation of VMR in the bankruptcy during,this cross-examination.

Also during its case-in-chief, VMR introduced Mr. Lindner’s videotaped deposition. After VMR rested, Mitchell called Mr. Lindner as a witness to explain his Rule 30(b)(6) testimony, specifically what he meant when he said he would not allow his employees to “use” VMR work product. Mr. Lindner testified at trial that what he meant in his Rule 30(b)(6) deposition was that he did not want Mitchell employees “copying any of the [VMR] code.”

VMR argued' that Mr. Lindner’s change in testimony violated Rule 30(b)(6) and proposed the following jury instruction:

In a Rule 30(b)(6) deposition, there is no distinction between the corporate representative and the corporation. The Rule 30(b)(6) designee does not give his personal opinion. Rather, he presents the corporation’s “position” on the topic. The designee testifies on behalf of the corporation and thus holds it accountable. The corporation cannot present a theory of the facts that differs from that articulated by the designated Rule 30(b)(6) representative.

Following Mitchell’s objection, the district court deleted the last sentence (underlined) from VMR’s proposed instruction and gave it to the jury as modified.

The jury found no liability and returned a verdict in favor of Mitchell. VMR filed a timely appeal. We have jurisdiction under 28 U.S.C. § 1291.

III. DISCUSSION

On appeal, VMR first contends the district court erred in admitting evidence of Mr. Tagliapietra’s bankruptcy valuation statements in violation- of this court’s mandate in VMR I. “We review de novo [the district court’s] compliance with our mandate, ‘including whether the law-of-the-case doctrine or mandate rule, forecloses any of the [district court’s] actions on remand.’” Padilla-Caldera v. Holder, 637 F.3d 1140, 1145 (10th Cir. 2011) (citation omitted). In turn, we “review a district court’s determination regarding the admissibility of evidence under an abuse of discretion standard.” United States v. Contreras, 536 F.3d 1167, 1170 (10th Cir. 2008). We conclude that use of this valuation evidence- for impeachment purposes did not violate the mandate rule and that VMR waived its right to appeal this issue because it first introduced the bankruptcy valuation evidence on direct examination of Mr. Tagliapietra.

Second, VMR argues the district court erred by improperly instructing the jury on 30(b)(6) witnesses. This court reviews the district court’s refusal to give a proposed instruction for abuse of discretion, but considers de novo whether the jury. instructions, as a .whole, correctly state the law. See United States v. Sorensen, 801 F.3d 1217, 1228-29 (10th Cir. 2015). We conclude that the district court properly deleted the final sentence of VMR’s proposed jury instruction on 30(b)(6) witnesses because it was an incorrect statement of the law. We therefore reject VMR’s claims on appeal.

A, The District Court Properly Allowed Mitchell to Cross-Examine Mr. Ta-gliapietra on His Bankruptcy Valuation of VMR

1. The District Court Did Not Violate the Law of the Case Doctrine

The law of the case doctrine provides, “when a court rules on an issue of law, the ruling ‘should continue to govern the same issues in subsequent stages in the same case.’ ” United States v. Graham, 704 F.3d 1275, 1278 (10th Cir. 2013) (citation omitted). After an appeal, “the decision of the appellate court establishes the law of the case and ordinarily will be followed by both the trial court on remand and-the appellate court in any subsequent appeal. This principle applies to all ‘issues previously decided, either explicitly or by necessary implication.’ ” Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1183 (10th Cir. 1995) (citations omitted).

VMR argues the' prior appeal of this case—VMR /—precluded Mitchell from presenting evidence of or even mentioning Mr, Tagliapietra’s bankruptcy on remand. As support for that position, VMR claims we held in VMR I that Mr. Taglia-pietra’s statements in his bankruptcy proceeding were consistent with his prayer for relief here. We find no support for this position in VMR I.

The sole question before us in VMR I was “whether the statements by VMR and Mr. Tagliapietra in the litigation against Mitchell were so clearly contrary to the statements made by Mr. Tagliapietra in his bankruptcy proceeding that VMR should be judicially estopped from proceeding with its suit against Mitchell.” VMR I, 767 F.3d at 988. Although we held they were not, nowhere in that decision do we indicate the statements were consistent or that the bankruptcy valuation will be irrelevant on remand. To the contrary, we expressly noted the availability of cross-examination on remand, noting that it is a less harsh remedy than judicial estoppel:

Our rationale behind our cautious application of the doctrine .is that judicial estoppel is a powerful weapon to employ against a party seeking to vindicate its rights, and there are often lesser weapons that can keep alleged inconsistent statements in check while preserving a party’s option to have its day in court. The most obvious of these lesser remedies is to allow the opposing party to impeach at trial the party that has made the inconsistent statement. Judicial estoppel is only appropriate when that technique or other less forceful remedies are inadequate to protect the integrity of the judicial system.

Id. at 993 (emphasis added) (citation omitted).

On remand, the district court ‘ ruled Mitchell could not present evidence of Mr. Tagliapietra’s bankruptcy in its opening statement or through the testimony of other witnesses, but allowed the evidence to be used for impeachment purposes. Nothing in our VMR I decision precluded Mitchell from using the evidence as “appropriate impeachment contemporaneous with [Mr. Tagliapietra’s] testimony.” The district court therefore did not exceed the scope of the mandate.

2. VMR Waived .Any Argument that the District Court Erred in Allowing Mitchell to Cross-Examine Mr. Ta-gliapietra on the Bankruptcy Valuation

To the extent VMR contends the district court exceeded its discretion in admitting the bankruptcy - valuation evidence, the argument is waived. “Generally, a party introducing evidence cannot complain on appeal that the evidence was erroneously admitted.” Ohler v. United States, 529 U.S. 753, 755, 120 S.Ct. 1851, 146 L.Ed.2d 826 (2000). This is true even if the party introduces the evidence only to limit its impact on cross-examination. Id. In Ohler, the defendant brought a motion in limine to exclude evidence of her prior conviction. When the district court denied the motion, the defense introduced the pri- or conviction evidence during the defendant’s direct examination in an effort to minimize the impact of the government’s “possible elicitation of the conviction on cross-examination.” Id. at 758, 120 S.Ct. 1851. The defendant was convicted and then challenged the district court’s in li-mine ruling on appeal. The Ninth Circuit affirmed, concluding the defendant had waived the objection by introducing the evidence on direct examination. On certio-rari, the Supreme Court agreed. The Court held that a defendant cannot gain an advantage on direct examination “by offering the conviction herself (and thereby removing the sting) and still preserve its admission as a claim of error on appeal.” Id. at 758, 120 S.Ct. 1851.

Under Ohler, the party introducing the evidence waives—rather than forfeits—any objection to its admission, meaning “we do not consider the claim at all, even under the forgiving plain-error standard.” Hancock v. Trammell, 798 F.3d 1002, 1011 n.3 (10th Cir. 2015). We apply the waiver doctrine “where a party has invited the error that it now seeks to challenge, or where a party attempts to reassert an argument that it previously raised and abandoned below.” United States v. Zubia-Torres, 550 F.3d 1202, 1205 (10th Cir. 2008).

On direct examination in its ease-in-chief, VMR introduced both the fact of the bankruptcy and Mr. Tagliapietra’s valuation of VMR’s shares at zero in that proceeding. VMR then provided Mr. Taglia-pietra an opportunity to explain to the jury why the bankruptcy valuation of zero was consistent with the complaint in this litigation seeking over $4 million in unpaid royalties. VMR made the strategic choice to introduce this evidence in an attempt to reduce its negative impact. And it did so despite the district court’s ruling that Mitchell could not raise the evidence in the first instance, but could use it only for impeachment.

VMR “cannot avoid the consequence of its own trial tactic by arguing it was forced” by the district court’s in limine ruling “to introduce the evidence during the direct examination ... to diminish the prejudice” that might result from impeachment evidence about the bankruptcy. Canny v. Dr. Pepper/Seven-Up Bottling Grp., Inc., 439 F.3d 894, 904 (8th Cir. 2006); see also Ohler, 529 U.S. at 758, 120 S.Ct. 1851. Because VMR “preemptively elicited” this testimony on direct examination, it cannot now appeal either the district court’s ruling in limine or Mitchell’s impeachment of the direct testimony. Hancock, 798 F.3d at 1011 n.3.

B. The District Court Did Not Abuse Its Discretion by Rejecting the Last Sentence of VMR’s Proposed Jury Instruction on 30(b)(6) Testimony

VMR next challenges the district court’s jury instruction on Rule 30(b)(6) witnesses. Federal Rule of Civil Procedure 30(b)(6) provides a mechanism through which a party can depose an artificial business entity. Under Rule 30(b)(6), the entity named in the deposition notice must “designate one or more officers, directors, or managing agents ... to testify on its behalf.” Fed. R. Civ. P. 30(b)(6). The designee is required to “testify about information known or reasonably available to the organization.” Id.

Mitchell designated Jim Lindner, its former CEO, as its designee in response to VMR’s Rule 30(b)(6) notice of Mitchell. At his 30(b)(6) deposition, Mr. Lindner stated he would not have allowed his employees to “use” the VMR work product in developing its own product because that would be a breach of his business ethics. After VMR introduced Mr. Lindner’s videotaped deposition at trial, Mitchell gave Mr. Lind-ner the opportunity to explain that when he said “use” in his deposition, he meant Mitchell employees were prohibited from “copying any of the [VMR] code.”

VMR contends the jury should have been instructed to reject Mr. Lindner’s trial testimony as inconsistent with his deposition testimony under Rule 80(b)(6). Specifically, VMR proposed a jury instruction that included the statement: “The corporation cannot present a theory of .the facts that differs from that articulated by the designated Rule 30(b)(6) representative.” The district court refused to include the quoted sentence, but otherwise instructed the jury in accordance with VMR’s proposed instruction.

VMR frames this as legal error subject to de novo review. As discussed, “[w]e review de novo whether, as a whole, the district court’s jury instructions correctly stated' the governing law and provided the jury with an ample understanding of the issues and applicable standards.” Martinez v. Caterpillar, Inc., 572 F.3d 1129, 1132 (10th Cir. 2009) (internal quotation marks omitted). But we review a district court’s decision “on whether to give a particular instruction for abuse of discretion.” Webb v. ABF Freight Sys., Inc., 155 F.3d 1230, 1248 (10th Cir. 1998). “[W]e will find an abuse of discretion if the challenged instruction incorrectly states the governing law. Furthermore, ‘[n]o particular form of words is essential if the instruction as a whole conveys the correct statement of the applicable law.’ ” Id. (alteration in original) (citations omitted); United States v. Suntar Roofing, Inc., 897 F.2d 469, 473 (10th Cir. 1990) (“[S]o long as the charge as a whole adequately states the law, the refusal to give a particular requested instruction is not an abuse of discretion.”).

Here, the district court did not abuse its discretion in rejecting the last sentence of VMR’s Rule 30(b)(6) instruction because the omitted sentence was an incorrect statement of governing law.

1. The Proposed Sentence Incorrectly Stated the Law

VMR claims 30(b)(6) testimony should be treated as a judicial admission against the corporation and not a standard eviden-tiary admission subject to impeachment and clarification. The final sentence from its proposed jury instruction supports this view: “The corporation cannot present a theory of the facts that differs from that articulated by the designated Rule 30(b)(6) representative.” VMR argues this sentence is “a direct quote from Moore’s Federal Practice.” See 7 James William Moore et al., Moore’s Federal Practice—Civil § 30.25[3].

Although Moore’s Federal Practice does say that “a corporation generally cannot present a theory of the facts that differs from that articulated by the designated Rule 30(b)(6) representative,” id. (emphasis added), it clarifies that this rule is limited to the summary judgment context, id § 30.25[3] n. 15.2 (“Conflicts with Rule 30(b)(6) testimony generally will not defeat summary judgment,”); see also id. § 30.25 (“[CJourts have ruled that because a Rule 30(b)(6) designee testifies on behalf of the entity, the entity is not allowed to defeat a motion for summary judgment based on an affidavit that conflicts with its Rule 30(b)(6) deposition or contains information that the Rule 30(b)(6) deponent professed not to know.”).

Moreover, the cases Moore’s cites as support for this .proposition make clear that it is limited to the context in which an affidavit conflicts with the Rule 30(b)(6) deposition without good reason. See Keepers, Inc. v. City of Milford, 807 F.3d 24, 35 (2d Cir. 2015) (“Some deponents will ... try to abuse Rule 30(b)(6) by intentionally offering misleading or incomplete responses, then seeking to ‘correct’ them by offering new evidence after discovery.”); MKB Constructors v. Am. Zurich Ins. Co., 49 F.Supp.3d 814, 829 (W.D. Wash., 2014) (“[A] party cannot rebut the testimony of its Rule 30(b)(6) witness when, as here, the opposing party has relied on the Rule 30(b)(6) testimony, and there is no adequate explanation for the rebuttal.”); Hyde v. Stanley Tools, 107 F.Supp.2d 992, 993 (E.D. La. 2000), aff'd, 31 Fed.Appx. 151 (5th Cir. 2001) (striking an affidavit that “directly contradict[ed]” the party’s Rule 30(b)(6) deposition when the party did not provide a “reasonable explanation” for the inconsisteney).VMR’s selective quotation from Moore’s Federal Practice does not accurately present the treatise’s position on this issue.

For example, VMR omits language from the same section of Moore’s Federal Practice, which explains that

the testimony of a Rule 30(b)(6) deponent does not absolutely bind the corporation in the sense of a judicial admission, but rather is evidence that, like any other deposition testimony, can be contradicted and used for impeachment purposes. The Rule 30(b)(6) testimony also is not binding against the organization in the sense that the testimony can be corrected, explained and supplemented, and the entity is not “irrevocably” bound to what the fairly prepared and candid designated deponent happens to remember during the testimony.

Id. (emphasis added). VMR attempts to pluck portions of the treatise’s discussion of Rule 30(b)(6), while wholly omitting sections that expressly refute its argument.

The Tenth Circuit has “not addressed whether the testimony of a Rule 30(b)(6) representative qualifies as a judicial or evidentiary admission.” Templeton v. Catlin Specialty Ins. Co., 612 Fed.Appx, 940, 959 n. 19 (10th Cir. 2015) (unpublished) (declining to decide the issue because the subject of the testimony was actually a question of law and therefore the 30(b)(6) witness’s testimony did “not create a triable issue of fact”). We have noted, however, that like Moore’s Federal Practice treatise, the “majority of courts to reach the issue ... treat the testimony of a Rule 30(b)(6) representative as merely an evi-dentiary admission, and do not give the testimony conclusive effect.” Id.; see Keepers, Inc., 807 F.3d 24, 34-35 (“[The plaintiff] rightly notes that an organization’s deposition testimony is ‘binding in the sense that whatever its deponent says can be used against the organization. But Rule 30(b)(6) testimony is not ‘binding’ in the sense that it precludes the deponent from correcting, explaining, or supplementing its statements.” (footnote omitted)); A.I. Credit Corp. v. Legion Ins. Co., 265 F.3d 630, 637 (7th Cir. 2001) (“[Testimony given at a Rule 30(b)(6) deposition is evidence which, like any other deposition testimony, can be contradicted and used for impeachment purposes.” (quoting Indus. Hard Chrome, Ltd. v. Hetran, Inc., 92 F.Supp.2d 786, 791 (N.D. Ill. 2000))); S. Wine & Spir its of Am., Inc. v. Dir. of Alcohol & Tobacco Control, 731 F.3d 799, 811 (8th Cir. 2013) (“A 30(b)(6) witness’s, legal conclusions are not binding on the party who designated him, and a designee’s testimony likely does not bind [its employer] in the sense of a judicial admission.” (citation omitted)).

We agree with our sister circuits that the testimony of a Rule 30(b)(6) witness is merely an evidentiary admission, rather than a judicial admission. Accordingly, the jury instruction given correctly states the governing law, and the district court did not abuse its discretion in omitting VMR’s proposed final sentence. Suntar Roofing, Inc., 897 F.2d at 473.

IV. CONCLUSION.

The district court did not violate the law of the case doctrine by allowing Mitchell to impeach Mr. Tagliapietra with his bankruptcy valuation of VMR, and VMR waived any objection to the district court’s ruling in limine and the use of the evidence during cross-examination because VMR first introduced the evidence on direcj; examination of Mr. Tagliapietra. The district court did not abuse its discretion in rejecting the last sentence of VMR’s proposed Rule 30(b)(6) jury instruction. We therefore AFFIRM.

      . The agreement initially specified $3.5 million, but the parties amepded this amount to $4.5 million in 2002. VMR I, 767 F.3d at 990.

      . VMR mischaracterizes the district court’s ruling when it states that "[i]f the lower court had ruled that Mitchell could only raise the bankruptcy if first introduced by VMR, of course VMR would not have done so. Instead the district court gave Mitchell carte blanche on this issue, and VMR was forced to defend a highly prejudicial and irrelevant issue rejected by this Court.” This is incorrect. The district court specifically stated it was prohibiting Mitchell from any “affirmative reveal” of the bankruptcy or Mr. Tagliapietra’s bankruptcy valuation of VMR.

      . VMR’s appellate brief does itself and this court a disservice by failing to mention that its counsel strategically raised the issue of Mr. Tagliapietra’s bankruptcy during direct examination in VMR’s case-in-chief.

      . Although Ohler was a criminal case, the same waiver rule applies in civil proceedings. See United States v. Wagoner Cty. Real Estate, 278 F.3d 1091, 1098-99 (10th Cir. 2002) (applying Ohler in a civil proceeding where a party challenged the admission of impeachment evidence of her prior conviction); Clarett v. Roberts, 657 F.3d 664, 670-71 (7th Cir. 2011) ("The logic of Ohler applies with equal force in both criminal and civil cases. The tactical nature of each party’s decisions is the same; indeed, the stakes are higher in a criminal case, and still the Supreme Court found waiver.”); Canny v. Dr. Pepper/Seven-Up Bottling Grp., Inc., 439 F.3d 894, 904 (8th Cir. 2006) (holding that "Dr. Pepper waived a challenge to the admission” of the evidence on appeal after it introduced the evidence on direct examination of its witness).

      . VMR’s proposed instruction stated, with our emphasis:
      In a Rule 30(b)(6) deposition, there is no distinction between the corporate representative and the corporation. The Rule 30(b)(6) designee does not give his personal opinion. Rather, he presents the corporation’s "position” on the topic. The designee testifies on behalf of the corporation and thus holds it accountable. The corporation cannot present a theory of the facts that differs from that articulated by the designated Rule 30(b)(6) representative.


source: Caselaw Access Project

author: MATHESON, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Frank Sharron PIPER, III, Defendant-Appellant.
    No. 15-3288
    United States Court of Appeals, Tenth Circuit.
    Filed October 25, 2016

      Paige A. Nichols, Research & Writing Specialist (Melody Brannon, Federal Public Defender, with her on the briefs), Office of the Federal Public Defender, Topeka, Kansas, appearing for Appellant.
    James A. Brown, Assistant United States Attorney (Thomas E. Beall, Acting United States Attorney, with him on the brief), Office of the United States Attorney for the District of Kansas, Topeka, Kansas, appearing for Appellee.
    Before KELLY, HARTZ, and MATHESON, Circuit Judges.
   MATHESON, Circuit Judge.

Federal prisoner Frank Sharron Piper, III, appeals the district court’s denial of his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(2), we affirm.

I. BACKGROUND

A. Conviction and Sentence

On November 28, 2012, a grand jury indicted Mr. Piper for participating in a cocaine conspiracy in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, and for various related offenses. On January 8, 2014, he pled guilty to the conspiracy charge. On May 14, 2014, the district court sentenced Mr. Piper to 135 months in prison. Mr. Piper had been on release from December 6, 2012 until he was sentenced.

B. Motion to Reduce Sentence

On November 1, 2014, Amendment 782 to the United States Sentencing Guidelines (“U.S.S.G.”) came into effect, retroactively lowering the base offense levels for certain drug offenses. The parties agree that Amendment 782 applies to Mr. Piper’s crime of conviction.

1. Mr. Piper’s Motion for a Sentence Reduction

On September 16, 2015, Mr. Piper moved for a reduced sentence under Amendment 782 and 18 U.S.C. § 3582(c)(2) (authorizing district courts to modify sentences based on retroactive guideline amendments). His supporting Memorandum of Law included only broad policy-based arguments. He argued, for example, that long drug sentences overcrowd prisons, limit inmate access to anti-recidivism programs, incapacitate prisoners long after they are likely to threaten public safety, and fail to deter crime.

2. The Government’s Response

In response, the Government argued that, despite Mr. Piper’s eligibility for a reduction under Amendment 782, he should not receive one because, after he pled guilty but before he was sentenced, he created a rap video to intimidate four cooperating witnesses whose statements had appeared in Mr. Piper’s Presentence Investigation Report (“PSR”).

The prosecution said the video was titled “No Leaks Frank James—State to State,” and that “No Leaks” referred to a rap record label and a group of people whose “CEO” was Mr. Piper. ROA, Vol. I at 113— 14. The Government described the video in its response brief to the motion as including:

• Photographs of pages from the PSR and excerpts from the PSR displayed with photographs of the cooperating witnesses.
• he defendant rapping an anti-cooperation message—referencing “conspiracy” as “the hardest charge to beat” and someone who “would try to tell on me,” then using his index finger to simulate pulling a trigger.
• A bound and gagged hostage figure in a dark room, who is later shown with his head hanging forward, nearly motionless.
• The defendant referencing those who “told on me” and stating “stop snitchin’.”
• A screen caption instructing to send letters and pictures to the defendant’s prison address.

Id. at 114-15.

Although the prosecution said the video “was saved onto a compact disc by law enforcement,” the Government did not provide the district court with a copy, relied solely on its own description and conclusions, and provided no sworn affidavit or transcript of the video’s contents. Id. at 114. After describing the video, the Government asserted the co-CEO of No Leaks, Michael Duane Mills, edited the video, uploaded it to YouTube on November 13, 2014, when Mr. Piper was in prison, and removed it from YouTube five days later.

The Government argued these facts demonstrated “a continued need to protect the public from further crimes of [Mr. Piper] and a continued need to afford adequate deterrence.” Id. at 126. A reduced sentence, it said, was therefore unwarranted under the 18 U.S.C. § 3553(a) factors, which a district court must consider when determining whether to reduce a sentence under § 3582(c)(2).

3. Mr. Piper’s Reply

Mr. Piper’s reply did not contest the Government’s description of the video’s contents. It instead argued for a reduced sentence because the Government had failed to show “Mr. Piper had anything to do with disseminating the video.” Id. at 129. It noted that Mr. Piper “had been in federal custody for months before the video was released.” Id.

4. The District Court’s Denial of Mr. Piper’s Motion

The district court denied Mr. Piper’s motion for a reduced sentence based on the following uncontested facts:

• “On November 18, 2014, government agents learned that a video titled ‘No Leaks Frank James—State to State’ had been uploaded to YouTube_ [I]t was removed later that day.”
• ‘‘The video includes still photographs of pages from defendant’s presen-tence investigation ' report which summarize statements of cooperators. The video displayed these excerpts next to still photographs of ■ the individuals who made the statements.”
• “The video also showed defendant and another individual simulating a trigger-pulling motion with their in- • dex fingers when the rap lyrics reached ‘... try to tell on me.’ ”
• Mr. Piper “created [the rap video] while on release in this case and allowed someone else to preserve a copy.”

Id. at 136.

After reciting in a footnote that “[Mr. Piper did] not suggest any innocent motive in creating the video,” the district court stated it had “reasonably conclude[d] that [Mr. Piper] created the video so that it would be disclosed, viewed and construed as a threat to cooperators'” Id. at 137-38 n.1.

Having found these facts, the court denied Mr. Piper’s motion, reasoning:

[T]he Court has considered the scope of defendant’s conduct in connection with the instant offenses and the significant danger to the community by defendant’s participation in the distribution of some 45 kilograms of cocaine. After balancing the above factors and considering the post-sentencing discovery of defendant’s rap video, the Court finds that a sentence of 135 months in prison (the original sentence and near the middle of the amended guideline range of 121 to 151 months) is sufficient but not greater than necessary to meet .the sentencing factors set forth in Section 3553(a).

Id. at 137-38.

II. DISCUSSION

Mr. Piper argues the district court (1) failed to address the policy arguments in his motion, (2) exceeded its § 3582(c)(2) authority when it considered newly alleged presentencing conduct not addressed at the original sentencing, (3) made fact findings regarding the video without holding a hearing, and (4) erroneously concluded Mr. Piper intended the video to be viewed by and construed as a threat to the cooperating witnesses.

A. Standards of Review

“We review for an abuse of discretion a district court’s decision to deny a reduction of sentence under 18 U.S.C. § 3582(c)(2).” United States v. Osborn, 679 F.3d 1193, 1195 (10th Cir. 2012). “A district court abuses its discretion whén it relies on an incorrect conclusion of law or a clearly erroneous finding of fact.” United States v. Battle, 706 F.3d 1313, 1317 (10th Cir. 2013). “The scope of a district court’s authority in a sentencing modification proceeding under 18 U.S.C. § 3582(c)(2) is a question of law that we review de novo.” United States v. Lucero, 713 F.3d 1024, 1026 (10th Cir. 2013) (brackets and citations omitted).

We review arguments not raised in district court for plain error. United States v. Rosales-Miranda, 755 F.3d 1253, 1257 (10th Cir. 2014). Under the plain error standard, Mr. Piper must demonstrate: (1) an error, (2) that is plain, meaning clear or obvious under current law, (3) that affects substantial rights, and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. at 1258.

B. Legal Background

‘“[A] judgment of conviction that includes [a sentence of imprisonment] constitutes a final judgment’ and may not be modified by a district court-except in limited circumstances.” Dillon v. United States, 560 U.S. 817, 824, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010) (quoting § 3582(b)). Under § 3582(c)(2), an exception exists “ ‘in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o)’ and made retroactive pursuant to § 994(u).” Id. at 824, 130 S.Ct. 2683 (quoting § 3582(c)(2)). These ameliorative amendments to the Guidelines do not create a right to a sentence reduction. United States v. Osborn, 679 F.3d 1193, 1196 (10th Cir. 2012). Rather, even if a defendant is eligible, such “a reduction is not mandatory but is instead committed to the sound discretion of the trial court.” United States v. Telman, 28 F.3d 94, 96 (10th Cir. 1994).

Section 3582(c)(2) authorizes a district court to reduce an otherwise final sentence under a Guidelines amendment if the reduction is consistent with U.S.S.G. § 1B1.10, the Sentencing Commission’s relevant policy statement, and after considering the factors in 18 U.S.C. § 3553(a). Dillon, 560 U.S. at 821, 130 S.Ct. 2683; 18 U.S.C. § 3582(c)(2) (stating that the district court may reduce the term of imprisonment “after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that ... such a reduction is consistent with applicable policy statements issued by the Sentencing Commission”).

Thus, when the § 3582(c)(2) exception applies, courts follow “a two-step approach.” Dillon, 560 U.S. at 827, 130 S.Ct. 2683. At step one, a court “follow[s] the Commission’s instructions in [U.S.S.G.] § 1B1.10 to determine the prisoner’s eligibility for a sentence modification and the extent of the reduction authorized.” Id. At step two, a court “considers] any applicable § 3553(a) factors and determine^] whether, in its discretion, the reduction authorized by reference to the policies relevant at step one is warranted in whole or in part under the particular circumstances of the case.” Id.

The § 3553(a) factors include “the nature and circumstances of the offense and the history and characteristics of the defendant” and “the need for the sentence imposed ... to protect the public from further crimes of the defendant.” 18 U.S.C. § 3553(a)(1), (a)(2)(C). The court may also “ ‘consider’ the defendant’s post-sentencing conduct.” Osborn, 679 F.3d at 1196 (quoting U.S.S.G. § 1B1.10 cmt. n.1(B)(iii)).

The two-step process under § 3582(c)(2) “authorize^] only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding.” Dillon, 560 U.S. at 826,130 S.Ct. 2683; see also United States v. Verdin-Garcia, 824 F.3d 1218, 1221 (10th Cir. 2016) (“Section 3582(c)(2) invites a motion for a sentencing modification, not a new sentencing proceeding.”).

C. Analysis

We affirm the denial of Mr. Piper’s motion for a reduced sentence. Each of his arguments lacks merit. The district court did not abuse its discretion or commit plain error.

1. Failure to Address Mr. Piper’s Policy Arguments

Mr. Piper argues the district court abused its discretion by failing to address his policy arguments. He contends the court must address all of a defendant’s material, nonfrivolous arguments.

Section 3582(c)(2) “requires the court to consider the factors in 18 U.S.C. § 3553(a).” Verdin-Garcia, 824 F.3d at 1221; see § 3582(c)(1)(A) (allowing a court to reduce the term of imprisonment “after considering the factors set forth in section 3553(a)” (emphasis added)). Notably, § 3582(c)(2) does not incorporate § 3553(c), which provides that a “court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence.” 18 U.S.C, § 3553(c). “This omission is significant because we have previously interpreted the meaning of both subsections, holding that § 3553(a) requires consideration [of its factors], while § 3553(c) requires an explanation of the sentence.” Verdin-Garcia, 824 F.3d at 1221 (emphasis added). Consistent with § 3582(c)(2)’s reference to § 3553(a). but not § 3553(c), the comments to the applicable policy statement—§ 1B1.10—instruct that “the court shall consider § 3553(a) factors and shall consider the nature and seriousness of the danger to the community.” Id. (quoting U.S.S.G. § 1B1.10 cmt. n.l(B)(i)-(ii) (2014)) (emphasis altered). We have therefore found “no basis to impose upon the district court a requirement to address every nonfrivolous, material argument raised by the defendant” in a § 3582(c)(2) proceeding. Id. at 1222.

The district court denied Mr. Piper’s motion based on “the scope of defendant’s conduct in connection with the [underlying] offenses,” “the significant danger to the community by defendant’s participation in” that offense, and his “rap video.” ROA, Yol. I at 137. The court considered the § 3553(a) factors, which is all that was required. It had no further duty to “address! ] every nonfrivolous, material argument raised by a defendant.” Verdin-Garcia, 824 F.3d at 1222. The court therefore acted within its discretion in declining to address Mr. Piper’s policy arguments.

2. Consideration of Presentencing Conduct

Mr. Piper argues for the first time on appeal that the district court exceeded its § 3582(c)(2) authority when it considered newly alleged presentencing conduct that was not considered during the original sentencing proceedings—that is, Mr. Piper’s creation of the video. Because Mr. Piper failed to raise this argument in district court, we review it for plain error. See Fed. R. Crim. P. 52 (“A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.”).

On appeal, Mr. Piper argues § 1B1.10 prohibits consideration of newly alleged presentencing conduct that was not considered at the original sentencing because the cdurt must “determine the amended guideline range that would have been applicable to the defendant if the amendment(s) to the guidelines ... had been in effect at the time the defendant was sentenced.” U.S.S.G. § lB1.10(b)(l). Section 1B1.10 further instructs that, “[i]n making such determination, the court shall substitute only the amendments ... for the corresponding guideline provisions that were applied when the defendant was sentenced and shall leave all other guideline application decisions unaffected.” Id. (emphasis added).

Mr. Piper also points to language in § lB1.10(a)(3) stating that, “Consistent with subsection (b), proceedings under 18 U.S.C. 3582(c)(2) and this policy statement do not constitute a full resentencing of the defendant.” Aplt. Br. at 13. He argues this language “requires the court to place the defendant in the posture he was at 'his original sentencing, with the only difference being the substituted guideline” and that court must therefore disregard new allegations of presentencing conduct. Id. at 14. He further asserts that, consistent with § 1B1.10, we have held “if the district court is to make any new findings with respect to presentence conduct during a modification proceeding, those findings must be based on and consistent with facts that were adopted at the original sentencing.” Id. at 14-15. He relies on United States v. Battle, 706 F.3d 1313 (10th Cir. 2013).

,Mr, Piper’s arguments fail under plain error review. Any error the district court may have made in considering newly alleged presentencing conduct was not clear and therefore fails the second requirement of the plain error standard.

Under plain error review, “[a]n error is clear when it is contrary to well-settled law.” United States v. Smith, 815 F.3d 671, 675 (10th Cir. 2016). To conclude a proposition of law is well-settled, “we normally require precedent directly [o]n point from the Supreme Court or our circuit or a consensus in the other circuits.”. Id. “The absence of such precedent will not, however, prevent the conclusion an error is plain when statutory language”—or in this case, the Guideline language—“is clear and obvious.” United States v. Powell, 767 F.3d 1026, 1035 (10th Cir. 2014).

Any error was not clear or obvious under current law. Nothing in Battle nor any other case law we have found clearly required the district court to disregard newly alleged presentencing conduct. In Battle, at the original sentencing, the court had held the defendant responsible for “at least 1.5 kilograms” of the cocaine at issue. Battle, 706 F.3d at 1314. Later, during the § 3582(c)(2) sentence reduction proceedings, the court concluded the defendant was responsible for 3.4 kilograms based on findings and evidence adopted at the original sentencing, and it calculated his amended guideline range accordingly. Id.

Despite the defendant’s argument that the court was bound to a finding of exactly 1.5 kilograms in the § 3582(c)(2) proceeding, we hdld that “a district court may look to its previous findings ... to make supplemental calculations of drug quantity at resentencing if such calculations are necessary to ‘determine the amended guideline range that would have been applicable’ in light of a retroactive Guideline amendment.” 706 F.3d at 1319 (emphasis added) (quoting U.S.S.G. § lB1.10(b)(l)). The cases cited by Battle clarify only that “district courts in § 3582(c)(2) proceedings cannot make findings inconsistent with that of the original sentencing court.” Id. (citing United States v. Woods, 581 F.3d 531, 538-39 (7th Cir. 2009)).

Contrary to Mr. Piper’s argument, Battle did not say that a district court must disregard new allegations of presentencing conduct. Battle did not specifically address that question. Moreover, the court’s findings about the video at issue here comport with Battle’, they are not and cannot be inconsistent with the findings from the original sentencing proceedings because the video’s existence and its contents were riot even known at the time of Mr. Piper’s original sentencing.

Without precedent directly on point, we may still find well-settled law if the Guideline language is itself “clear and obvious.” Powell, 767 F.3d at 1035. But nothing in § 1B1.10 requires a court to disregard hew allegations of presentencing conduct. Indeed, § 1B1.10 arguably allows the court to consider conduct that occurred before sentencing: the court “may consider post-sentencing conduct of the defendant that occurred after imposition of the term of imprisonment,” and the court “shall consider the factors set forth in 18 U.S.C. 3553(a).” U.S.S.G. § 1B1.10 cmt. n.l(B)(i), (iii) (2014) (emphasis added). Becáuse § 3553(a) includes consideration of presen-tencing conduct, including the “hature and circumstances of the [underlying] offense and the history and characteristics of the defendant,” Mr. Piper’s argument that the court may consider only post-sentencing conduct is inconsistent with § 1B1.10.

Additionally, § lBl.lO’s requirement that a court substitute thé amended guideline and “leave all other guideline application decisions unaffected” at step one of the Dillon analysis does not indicate the court must disregard newly alleged pre-sentencing conduct at step two when the court considers the § 3553(a) factors. Similarly, § lBl.lO’s statement that a § 3582(c)(2) proceeding “do[es] not constitute a full resentencing of the defendant” does not speak to whether a district court must disregard new allegations of presen-tencing conduct.

Because nothing in the case law ór in §. 1B1.10 clearly requires a district court to disregard new allegations of presentenc-ing conduct, Mr. Piper fails to demonstrate that the district court committed plain error.

3. Failure to Hold a Hearing

Mr. Piper argues the district court erred in finding he created the video “so that it would be disclosed, viewed and construed as a threat to cooperators” without first holding a hearing. ROA, Vol. I at 137 n.l. Mr. Piper did not request, a hearing in district court. We therefore review for plain error. See Fed. R. Crim. P. 52; Rosales-Miranda, 755 F.3d at 1257.

Mr. Piper argues the failure to hold a hearing ■ was plain error based on § 3582(e)(2)—which directs courts to make reduction decisions “consistent with applicable policy statements issued by the Sentencing Commission”—and U.S.S.G. § 6A1.3(a), a policy statement providing that, “[w]hen any factor important to the sentencing determination is reasonably in dispute, the parties shall be given an adequate opportunity to present information to the court regarding that factor.” Aplt. Reply Br. at 6-7.

Mr. Piper’s argument fails. In imposing an original sentence, a district court need not hold a § 6Al.3(a) hearing when a defendant disputes facts but fails to request a hearing. See United States v. Fortenbury, 917 F.2d 477, 480 (10th Cir. 1990) (rejecting a defendant’s complaint “that he was denied' an evidentiary hearing on disputed matters.... [because he] never requested an evidentiary hearing”). The requirements “imposed on the court at [§ 3582(c)(2)] proceedings cannot be greater than those imposed at an original sentencing.” Verdin-Garcia, 824 F.3d at 1221. Thus, when a defendant disputes facts but fails to request a hearing in a § 3582(c)(2) proceeding, a district court need not hold a hearing. We accordingly find no error.

4. Fact Finding of Intent

We review factual findings made by sentencing courts for clear error, including findings made in response to § 3582(c)(2) motions. Mr. Piper argues the district court’s finding that he “created the video so that it would be disclosed, viewed and construed as a threat to cooperators” was clearly erroneous. ROA, Vol. I at 137 n.l. We disagree.

“A factual finding is clearly erroneous only if it is without factual support in the record or if, after reviewing all the evidence, we are left with a definite and firm conviction that a mistake has been made.” United States v. Craig, 808 F.3d 1249, 1255 (10th Cir. 2015) (brackets and quotations omitted).

The district court did not commit clear error. It is undisputed that:

• The video shows Mr. Piper and another individual extend their hands toward the camera and make a trigger-pulling motion with their index fingers, while the lyrics “try to tell on me” play.,
• The video shows a hostage figure who is initially “bound and gagged in a dark room” and whose head ultimately hangs forward, motionless.
• After creating and performing in the video, Mr. Piper allowed someone to preserve a copy of it.

ROA, Vol. I at 115,136.

Based on the foregoing content and Mr. Piper’s decisions to (1) perform in a video suggesting a violent threat and (2) leave the video with a third party, we lack a “definite and firm conviction” that the district court erred in finding Mr. Piper intended the video to be viewed by and construed as a threat to the cooperating witnesses. Craig, 808 F.3d at 1255 (quotations omitted).

The possibility of an innocent explanation for the video does not transform the district court’s finding into clear error. If the “court’s account of the evidence is plausible in light of the record viewed in its entirety,” we may not reverse it even if we might have weighed the evidence differently. Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). Put simply, “[w]here there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Id. Because the district court’s interpretation of the video is plausible, another potential interpretation does not make the court’s finding about Mr. Piper’s intent clearly erroneous.

III. CONCLUSION

For the foregoing reasons, we affirm the district court’s denial of Mr. Piper’s motion for sentence reduction.

      . The Government asserted "Frank James” was Mr. Piper's alias. ROA, Vol.- I at 114.

      . Accordingly, neither the district court nor the appellate record contains the video or a sworn statement regarding its contents.

      .The Government also argued that Mr. Piper’s involvement in the video's creation while on release violated the court's terms of release, which required him to "avoid all contact, directly or indirectly with any person who is or may be a victim or witness in the investigation or prosecution....” ROA, Vol. I at 125.

      . Mr. Piper disputes this conclusion in this appeal.

      . "[B]ecause it is unnecessary to the resolution of this appeal, we need not decide whether the district court is permitted to engage in new fact-finding in determining the amended guideline range in a § 3582(c)(2) proceeding." Battle, 706 F.3d at 1319, See also United States v. Vann, 593 Fed.Appx. 782, 786 (10th Cir. 2014) (unpublished) (summarizing Battle and stating "[w]e declined to decide whether the district court could engage in new fact-finding in determining the amended guideline range in a § 3582(c)(2) proceeding” (quotations omitted)). The unpublished cases cited in this opinion are included for their persuasive value. See Fed. R. App. P. 32.1, 10th Cir. R. 32.1.

      . See also United States v. Meridyth, 573 Fed.Appx. 791, 794 (10th Cir. 2014) (unpublished) (referencing defendant’s extensive pre-incar-ceration, presentencing criminal history throughout his adult life as well as his characteristics and behavior during incarceration to determine that a full sentence reduction would be inappropriate).

      . Furthermore, although application note l(B)(iii) of § 1B1.10 states that a court "may consider post-sentencing conduct ... in determining: (I) Whether a reduction in the defendant’s term of imprisonment is warranted; and (II) the extent of such reduction” (emphasis added), nothing in § IB 1.10 or its application notes clearly addresses whether a court must disregard new allegations of presentenc-ing conduct. Thus, Mr. Piper has failed to demonstrate plain error from the text of § 1B1.10.

      . Mr. Piper argues we should not review for plain error because he disputed the Govern-merit's facts in district court. In short, he argues that raising a fact dispute is tantamount to requesting a hearing. As we made clear in United States v. Fortenbury, 917 F.2d 477 (10th Cir. 1990), it is not. 917 F.2d at 480 (rejecting a defendant’s complaint "that he was denied an evidentiary hearing” at his initial sentencing where he "disputed matters in the presentencing report” but “never requested an evidentiary hearing”).
      Mr. Piper also argues the "district court’s reliance on its finding that Mr. Piper intentionally threatened the cooperators, rather than on the government’s argúment that Mr. Piper violated his conditions of pretrial release, excuses Mr. Piper from not predicting that he needed to request a hearing, and saves him from plain error review,” Aplt. Br. at 19 n.3. We disagree. In its response brief in district court, the Government put Mr. Piper’s creation of the video at issue by arguing it rendered a reduced sentence unwarranted. The brief specifically asserted that Mr. Piper’s involvement in the creation of the rap video was ‘‘designed to intimidate witnesses.” ROA, Vol. I at 111. With this knowledge, Mr. Piper could have requested a hearing at any point thereafter, but he did not. We therefore review for plain error.

      . This is consistent with circuits that have reviewed cases decided under § 3582(c)(2). See, e.g,, United States v. Zayas-Ortiz, 808 F.3d 520, 523 (1st Cir. 2015); United States v. Mann, 709 F.3d 301, 304 (4th Cir. 2013); United States v. Valentine, 694 F.3d 665, 669-70 (6th Cir. 2012); United States v. Cooley, 590 F.3d 293, 295 (5th Cir. 2009).


author: GORSUCH, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Tremale Odale HENRY, Defendant-Appellant.
    No. 15-6181
    United States Court of Appeals, Tenth Circuit.
    FILED October 25, 2016

      Kyle Edward Wackenheim, Research and Writing Attorney (Teresa K. Brown, Assistant Federal Public Defender, with him on the briefs), Office of the Federal Public Defender, Oklahoma City, Oklahoma, for Defendant-Appellant.
    Timothy W. Ogilvie, Assistant .U.S. Attorney (Mark A. Yancey, Acting U.S. Attorney, with him on the brief), Office of the U.S. Attorney, Oklahoma City, Oklahoma, for Plaintiff-Appellee.
    Before GORSUCH, BALDOCK, and PHILLIPS, Circuit Judges.
   GORSUCH, Circuit Judge.

What began as a fight at a strip club finds its way here as a clash over hearsay. Three years ago, Tremale Henry finished a prison sentence for violating federal drug laws and began a five year term of supervised release. As a condition of his release Mr. Henry had to refrain from committing further crimes. But last summer he was arrested for assaulting another man outside Night Trips, an Oklahoma City night club. And at the probation revocation hearing that followed the district court found Mr. Henry responsible for two separate assaults with a dangerous weapon. In the first assault, the court found that Mr. Henry swung a knife at his victim but missed. In the second assault an hour later, the court found that Mr. Henry struck again, this time successfully stabbing his victim. The court found each assault independently sufficient to warrant revocation of Mr. Henry’s supervised release. It then concluded that the two assaults, along with a third violation for lying to his probation officer, collectively warranted a new prison term of 24 months followed by six further years of supervised release. On appeal Mr. Henry argues that the district court im-permissibly relied on hearsay in reaching its judgment, but with this we can only partially agree.

Take the first assault first. In finding that Mr. Henry committed this assault the district court relied largely on statements from Candace Ramsey. Ms. Ramsey testified at the revocation hearing that she saw-Mr. Henry lunge at his victim with, a small object, though she said she couldn’t see exactly what the object was. Meanwhile, a probation officer took the stand to relate that, before the hearing, Ms. Ramsey told him she had, in fact, seen Mr. Henry use a knife. The. district court apparently credited this hearsay. The court also said it relied on a surveillance video. To be sure, the video “was of poor quality” and it is not possible to discern a knife. But the video does show Mr. Henry making a rapid movement toward the victim, followed by witnesses fleeing the area, and the court found this reaction consistent with a violent assault involving a dangerous weapon. In reaching its judgment, the district court considered as well testimony from the defendant’s own witnesses who suggested that the victim “deserved what happened to him that night” and that there was indeed “ill will” between the two men. Taken together, the court found, these facts established Mr. Henry indeed committed the first assault with a dangeixms weapon.

We see no problem with the, district court’s findings here. Mr. Henry doesn’t object to the use of the video,, to Ms. Ramsey’s live testimony, or to the district judge acting as fact-finder. His only qualm is with the court’s apparent reliance on Ms. Ramsey’s hearsay statement, relayed by the probation officer, that she had seen a knife. But the fact is that “the usual rules of evidence need not be applied” in revocation hearings. See Fed. R. Crim. P. 32.1 advisory committee’s note to 1979 amendment. Indeed, the Supreme Court and this one have long allowed hearsay in supervised release proceedings: sometimes the government will use hearsay in arguing for revocation; sometimes the defendant will use hearsay in arguing against revocation (as Mr. Henry himself did in this case). In neither event are confrontation or due process rights necessarily denied, for under settled precedent the Confrontation Clause of the Sixth Amendment does not apply to supervised release revocation proceedings and the due process guarantees associated with these proceedings are “minimal.” See Morrissey v. Brewer, 408 U.S. 471, 485, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (describing due process guarantees at revocation hearings as “minimal” and explaining that “the process should be flexible enough to consider evidence ... that would not be admissible in an adversary criminal trial”); see also Fed. R. Evid. 1101(d)(3) (federal rules of evidence do not apply in proceedings “granting or revoking probation or supervised release”); Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 366, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998); Curtis v. Chester, 626 F.3d 540, 544 (10th Cir. 2010) (the Sixth Amendment Confrontation Clause does not apply to supervised release proceedings).

In the face of all this, Mr. Henry attempts a reply along these lines. He notes that Fed. R. Crim. P. 32.1(b)(2)(C) grants defendants in revocation hearings the opportunity to “question any adverse witness, unless the judge determines that the interest of justice does not require the witness to appear.” Mr. Henry observes, too, that in United States v. Jones, this court recently held the proper application of Rule 32.1(b)(2)(C) generally requires a district court to deploy a “balancing test” aimed at weighing the defendant’s interests in confronting a witness against the government’s interests in foregoing the witness’s appearance. 818 F.3d 1091,1097-98 (10th Cir. 2016). And, Mr. Henry contends, the district court in this case failed to apply Jones’s balancing test to Ms. Ramsey’s hearsay statement, meaning its decision must be reversed.

This reply, however, overstates the reach of the rule. For neither Rule 32.1(b)(2)(C) nor the Jones decision interpreting it applies to the admission of hearsay statements from witnesses who are available for cross-examination. By its express terms Rule 32.1(b)(2)(C) speaks only to whether an adverse witness is “required ... to appear” so that defendants might have the “opportunity to ... question” her. In Jones, likewise, this court “conflne[d] our analysis to [the defendant’s] right to confront [the witness in question],” addressing only “Mr. Jones’s strong interest in confrontation and cross-examination.” Jones, 818 F.3d at 1097, 1102 (emphasis added). And, as everyone acknowledges, Ms. Ramsey did appear at the hearing and Mr. Henry did have the chance to question her about her hearsay statement and its apparent inconsistency with her live testimony. Indeed, it would be pretty anomalous if the qualified confrontation interest recognized by Rule 32.1 and our precedent conveyed rights in revocation hearings more powerful than those conveyed by the Sixth Amendment Confrontation Clause in criminal trials, for even in that setting the express terms of the Clause itself do nothing to “bar admission of a [hearsay] statement so long as the declarant is present at trial to defend or explain it.” Crawford v. Washington, 541 U.S. 36, 59 n.9, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

So it is Mr. Henry has no valid complaint under Rule 32.1(b)(2)(C) or Jones with respect to the first assault. He was free to confront Ms. Ramsey and, in this way, he was afforded everything the rule and our precedent interpreting it might provide. Of course, in holding Rule 32.1(b)(2)(C) and Jones do not apply to hearsay from witnesses present for confrontation, we do not suggest this sort of hearsay is always admissible. As ever, a district court’s receipt of evidence remains subject to review for abuse of discretion. See United States v. Handley, 678 F.3d 1185, 1188 (10th Cir. 2012). And revocation hearings must of course always satisfy “minimal” due process demands. Morrissey, 408 U.S. at 485, 92 S.Ct. 2593. But no one suggests Ms. Ramsey’s statement to the probation officer falls afoul of these standards.

When it comes to the second assault, the equation changes. In finding the second assault occurred, the district court expressly relied on out-of-court statements the victim and his girlfriend made to a police detective, who in turn relayed them to Mr. Henry’s probation officer, who in turn presented them at the revocation hearing. Neither the victim, nor his girlfriend, nor even the detective was subject to cross-examination. Here, then, Rule 32.1(b)(2)(C) and Jones do apply, and here we must find error for the district court failed to conduct the balancing test Jones prescribes. To be clear, we can hardly fault the district court for this oversight: it decided Mr. Henry’s case before this court issued Jones and lacked the benefit of its guidance. But the fact remains all the same that Mr. Henry is entitled to the advantages afforded by intervening legal developments like Jones. See Griffith v. Kentucky, 479 U.S. 314, 322-23, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987).

The government doesn’t dispute any of this. Instead, it tries to work around the problem by pointing to the district court’s statement that the admission of hearsay from absent witnesses in this case was designed to serve the “interest of justice,” a phrase used in the text of Rule 32.1(b)(2)(C) itself. And invoking this phrase, the government seems to suggest, should suffice in lieu of engaging with the Jones balancing test.

We cannot quite agree. The government can’t (and doesn’t) dispute that Jones offered controlling guidance concerning how district courts should go about determining if the “interest of justice” permits the introduction of hearsay from absent witnesses. Neither does (or can) the government dispute that Jones generally demands the application of a balancing test, or that the advisory note to Rule 32.1 expressly endorses the same test. And perhaps most importantly, the government doesn’t (and can’t) dispute that Jones rejected the very same argument it attempts here, rebuffing the government’s suggestion it was enough for the district court to have cited the “interest of justice” language of Rule 32.1 without engaging its balancing test. Jones, 818 F.3d at 1100. Affording Jones the respect due precedent, we just don’t see how we might faithfully hold otherwise here.

The question remains, of course, whether the error here proved harmless. See Fed. R. Crim. P. 52(a). The government suggests any error in the admission of hearsay concerning the second assault was indeed harmless because the district court needed to find only one assault to revoke Mr. Henry’s supervised release, and its error-free finding on the first assault will do.

But though attractive on first blush, closer scrutiny reveals problems with this argument too. It’s certainly true, as the government notes, that the district court found each' assault independently sufficient to warrant revocation. But after doing that much the court proceeded to consider both assaults together when fashioning its sentence, adding to the mix a third violation not challenged here (Mr. Henry’s lies to his probation officer). And on the record before us, we simply cannot disaggregate what role, if any, the second assault played in the district court’s final sentencing decision. To be sure, the court selected a sentence at the bottom end of the guidelines range. But the range was of course only advisory, so the defendant could have (and did) request a downward variance. And we cannot be sure that, had the court ruled differently on the second violation, it still would have denied a variance and issued the sentence it did. Had the court indicated its intention to issue the same sentence without respect to the second assault, we might be convinced that the error was harmless. See, e.g., United States v. Cordova-Arevalo, 456 F.3d 1229, 1235 (10th Cir. 2006); United States v. Anderson, 189 F.3d 1201, 1214 (10th Cir. 1999). But nothing like that exists in the record. And where, as here, we can only speculate what sentence the district court would have issued absent a -legal error, our precedent indicates that the error is not harmless, and that the matter should be returned to the district court for resen-tencing. See, e.g., United States v. Harrison, 743 F.3d 760, 764 (10th Cir. 2014).

On remand, the district court’s options remain considerable. It might engage in a new sentencing analysis without relying on the second assault. It might conduct a Jones balancing test and determine the hearsay from absent witnesses was, indeed, properly considered in finding the second assault took place. It might conduct the Jones test, determine that the hearsay from absent witnesses it entertained was not' properly considered, and conduct a new hearing on the second assault. Or it might discern even a still different path not obvious to us now.. We do not encourage or prejudge the propriety of any potential remedial avenue, but hold only that on the record before us the failure to conduct a Jones balancing test cannot be dismissed as harmless error.

Remanded.

      . In his reply brief Mr. Henry argues for the first time that the government failed to afford him with adequate notice before his hearing that he faced the possibility of revocation for the first assault. But where an appellant raises an issue for'the first time in his reply brief, we generally deem it waived. Wheeler v. Comm’r, 521 F.3d 1289, 1291 (10th Cir. 2008). And in any event we do not see anything here that would amount to plain error, for the Tenth Circuit has yet to require the government to provide a "high degree of specificity” when providing notice about upcoming probation revocation hearings. United States v. Mullarie, 480 Fed.Appx. 908, 910-11 (10th Cir. 2012) (unpublished).

      . Having found that the Jones error here doesn’t qualify, as, harmless under Fed, R, Crim. P. 52(a), we- have no need to consider whether a Jones error might trigger an even more heightened constitutional harmless error analysis,