author: JERRY E. SMITH, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Santiago SOLANO-HERNANDEZ, Defendant-Appellant.
    No. 15-41554, No. 15-41582
    United States Court of Appeals, Fifth Circuit.
    January 26, 2017

      Terri-Lei O’Malley, Renata Anri Gowie, Assistant U.S. Attorneys, U.S. Attorney’s Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.
    Marjorie A. Meyers, Federal Public Defender, Michael Lance Herman, Assistant Federal Public Defender, Federal Public Defender’s Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.
    Before JOLLY, SMITH, and PRADO, Circuit Judges.
   JERRY E. SMITH, Circuit Judge:

Santiago Solano-Hernandez appeals his conviction and sentence for illegal reentry after deportation. He contends that the district court erred in characterizing his New Jersey conviction for “Endangering the Welfare of a Child” as a crime of violence (“COV”). We affirm.

I.

In 2012, Solano-Hernandez pleaded guilty in the District of New Jersey to illegal reentry after deportation following a conviction for an aggravated felony, 8 U.S.C. § 1326(a) and (b)(2). The plea agreement stipulated that his 1995 New Jersey conviction for third-degree “Endangering the Welfare of a Child” involved the sexual abuse of a minor and was therefore a “crime of violence” as defined by U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 2L1.2 cmt. n.l(B)(iii). Solano-Hernandez was sentenced to twenty-seven months’ imprisonment, as well as a two-year term of supervised release (“SR”) that commenced in October 2013. He was deported in November 2013.

In March 2014, Solano-Hernandez was arrested for illegally entering the United States and was deported without prosecution the next month. In October 2014, his probation officer filed a revocation petition in the District of New Jersey, alleging that Solano-Hernandez had violated the terms of SR because of his illegal reentry. The district court issued an arrest warrant.

In December 2014, Solano-Hernandez was once again arrested for illegally entering and was indicted in the Southern District of Texas for illegal reentry of a previously deported alien, 8 U.S.C. § 1326. Jurisdiction over the SR violation was transferred to the Southern District of Texas. Solano-Hernandez pleaded guilty, without a plea agreement, to the new illegal-reentry offense.

The presentence report (“PSR”) assessed Solano-Hernandez a base offense level of 8 under U.S.S.G. § 2L1.2(a). He received a 12-level enhancement under U.S.S.G. § 2L1.2(b)(l)(A)(ii) because he had been deported after a conviction for a felony COV. The basis of that enhancement was the same 1995 New Jersey conviction for “Endangering the Welfare of a Child.” Following a three-level reduction for acceptance of responsibility, U.S.S.G. § 3E1.1, the PSR assigned a total offense level of 17, which, combined with a criminal-history category of III, yielded a guideline range of 30 to 37 months. Solano-Hernandez did not object to the PSR’s guidelines calculations.

The district court conducted a joint sentencing and revocation hearing and sentenced Solano-Hernandez to 30 months’ imprisonment and three years of SR for the new reentry offense. The judgment states that he was sentenced under 8 U.S.C. § 1326(a) and (b)(2). The district court also revoked his prior SR and sentenced him to four months’ imprisonment, to be served consecutively to the illegal-reentry sentence. Solano-Hernandez appealed the § 1326 conviction and the revocation judgment, and we consolidated the appeals.

II.

Solano-Hernandez contends that the district court erred in characterizing his 1995 conviction as a COV, thus triggering the twelve-level enhancement. Because he did not object, we apply the plain-error standard. United States v. Peltier, 505 F.3d 389, 391 (5th Cir. 2007). To establish plain error, Solano-Hernandez must show (1) an error; (2) that was clear or obvious; and (3) that affected his substantial rights. Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). “[I]f the above three prongs are satisfied, [we have] the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. (quotation marks and alterations omitted). “Meeting all four prongs is difficult, as it should be.” Id. (quotation marks omitted).

A.

To determine whether a conviction qualifies as a COV, we apply the “categorical approach,” United States v. Rodriguez, 711 F.3d 541, 544, 549 (5th Cir. 2013) (en bane), under which we first look to the offense category that triggers the enhancement. We

evaluate whether the meaning of that offense category is clear from the language of the enhancement at issue or its applicable commentary. If not, we ... determine whether that undefined offense category is an offense category defined at common law, or an offense category that is not defined at common law ... [I]f the offense category is a non-common-law offense category, then we derive its “generic, contemporary meaning” from its common usage as stated in legal and other well-accepted dictionaries.

Id. at 544.

We then look to the state statute of conviction and, ordinarily, compare its elements to the generic meaning of the offense category. Id. But where a state statute is divisible, having “multiple alternative elements,” we may apply the “modified categorical approach,” which permits us to “look[ ] to a limited class of documents ... to determine what crime, with what elements, a defendant was convicted of.” We can then compare the elements of that crime to the generic meaning of the offense category. Mathis, 136 S.Ct. at 2249.

The relevant offense category is “sexual abuse of a minor.” That category “is neither clearly defined in the Guidelines nor an offense defined at common law.” Thus, we must look to its generic, contemporary meaning. “ ‘Sexual’ is defined as ‘[o]f, per-taming to, affecting, or characteristic of sex, the sexes, or the sex organs and their functions.’ ” “Abuse” is defined as “to take unfair or undue advantage of or to use or treat so as to injure, hurt, or damage.” Id. (quotation marks omitted). “We have repeatedly endorsed the definition of ‘sexual abuse’ set forth in Black’s Law Dictionary, which is ‘an illegal or wrongful sex act, esp. one performed against a minor by an adult.’ ” Finally, “minor” is a person under the age of eighteen. Rodriguez, 711 F.3d at 560.

Solano-Hernandez was convicted under a statute providing that

[a]ny person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who engages in sexual conduct which would impair or debauch the morals of the child, or who causes the child harm that would make the child an abused or neglected child as defined in R.S.9:6-1, R.S.9:6-3 and P.L.1974, c. 119, s. 1 (C.9:6-8.21) is guilty of a crime of the second degree. Any other person who engages in conduct or who causes harm as described in this subsection to a child under the age of 16 is guilty of a crime of the third degree.

N.J. Stat. Ann. § 2C:24-4 (West 1994). So-lano-Hernandez maintains that the statute has alternative elements, thus justifying resort to the modified categorical approach.

We agree. New Jersey courts have interpreted Section 2C:24-4 as having two prongs. The elements of the first prong are (1) engaging in sexual conduct; (2) knowingly; (3) with a child under the age of sixteen; and (4) the conduct has the capacity to debauch or impair the morals of a child. The elements of the second prong are (1) the victim is a child; (2) the defendant had a duty of care for him; and (3) the defendant knowingly caused the child harm, making him an abused or neglected child. State v. Frisby, 174 N.J. 583, 811 A.2d 414, 423 (2002). “Because the statute provide[s] alternative elements that could constitute child endangerment ... the statute is divisible.”

The parties concur that the “engaging] in sexual conduct” prong falls within the generic definition of “sexual abuse of a child.” But they dispute whether Solano-Hernandez’s conviction can properly be narrowed to that prong. Under the modified categorical approach, we may look to certain records to narrow the statute of conviction. Those records “are generally limited to ... the charging document, written plea agreement, transcript, of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” If such records “do not provide conclusive evidence, we assume the defendant’s conduct constituted the ‘least culpable act satisfying the count of conviction.’ ” Because both parties agree that a conviction under the second prong does not constitute “sexual abuse of a minor,” the district court could have applied the COV- enhancement only if appropriate records established that Solano-Hernandez was convicted for “engag[ing] in sexual conduct.”

The PSR contained four records: (1) a 1994 New Jersey indictment; (2) Solano-Hernandez’s plea form; (3) a copy of Section 2C:24-4; and (4) the New Jersey judgment. The parties agree that the first three records cannot narrow the offense. The indictment charged Solano-Hernandez with violating Section 2C:14-2c(5) based on “an act of sexual penetration upon L.O. when L.O. was at least 13 but less than 16 years old and [Solano-Hernandez] was at least 4 years older than L.O.” But because Solano-Hernandez was actually convicted under a different statute, the indictment cannot be used to narrow the offense. The plea form specifies only that Solano-Hernandez pleaded guilty of “Endangering the Welfare of a Child” in the third degree; it does not provide the factual basis.

The dispute ultimately centers on the judgment, which contains a field for a “Statement of Reasons,” in which the New Jersey court wrote “See Reasons Attached.” Attached is a document entitled “Reasons for Sentence,” which describes the “circumstances surrounding [the offense.]” It also describes aggravating and mitigating circumstances. Solano-Her-nandez contends that the attached factual description cannot narrow the offense because there is no indication that he “assented” to those facts. See Herrera-Alvarez, 753 F.3d at 138. He points us to Larin-Ulloa v. Gonzales, 462 F.3d 456, 468-69 (5th Cir. 2006), in which we said, “Unlike the charging document, the guilty plea, or the factual basis for the plea confirmed by the defendant, sentencing reasons and factors do not simply define the charge and the defendant’s. guilty plea, but, instead, frequently refer to facts neither alleged nor admitted in court.” Sola-no-Hernandez points out that New Jersey law required the court to provide its reasons for imposing the sentence. See N.J.Stat. Ann. § 2C:43-2 (West 1994).

The government counters that we have said that “state court judgment[s] fall within the scope of documents a court may consider under Shepard.” United States v. Garcia-Arellano, 522 F.3d 477, 480 (5th Cir. 2008), overruled by Mathis, 136 S.Ct. at 2250. Though we have repeatedly noted that judgments are appropriate records, we have not yet had occasion to elaborate on how a judgment may be used. It may certainly be used for establishing the fact of conviction or to show which part of the statute a defendant was convicted of. But if the judgment includes narrowing facts, the overriding requirement remains that they must be “explicit factual finding[s] by the trial judge to which the defendant assented.” Shepard, 544 U.S. at 16, 125 S.Ct. 1254 (emphasis added). A sentencing court may not rely on facts merely because they appear in a judgment.

. There is no indication that Solano-Her-nandez assented to the facts in the “Reasons for Sentence.” Thus, the district court could not properly rely on it. Without the facts in the “Reasons for Sentence,” the documents in the PSR are not “conclusive evidence” that Solano-Hernandez was convicted under the “engaging] in sexual conduct” prong of Section 2C:24-4. Vigil, 774 F.3d at 385. Consequently, the district court erred in enhancing the sentence under U.S.S.G. § 2L1.2(b)(l)(A)(ii).

B.

Merely showing error, however, is never sufficient to satisfy the stringent standard of plain-error review. Instead, Solano-Hernandez must show that “the legal error [was] clear or obvious, rather than subject to reasonable debate.” United States v. Ellis, 564 F.3d 370, 377-78 (5th Cir. 2009) (quoting Puckett, 556 U.S. at 135, 129 S.Ct. 1423). We pretermit deciding this second prong and assume arguen-do that the error was plain, because, as explicated below, the entreaty to grant plain-error review fails at the fourth prong.

To satisfy the third prong, Solano-Her-nandez must show that his substantial rights were affected. Puckett, 556 U.S. at 135, 129 S.Ct. 1423. For the same reason that we pretermit discussion of the second prong, we assume arguendo that the third prong is satisfied.

C.

Even if Solano-Hernandez were to satisfy the first three prongs, we must decide whether to exercise our discretion to remedy the error. We do so only where “the error seriously affedfe] the fairness, integrity or public reputation of judicial proceedings.” “The fourth prong ... is not satisfied simply because the ‘plainly’ erroneous sentencing guideline range yields a longer sentence than the range that, on appeal, we perceive as correct.” United States v. Sarabia-Martinez, 779 F.3d 274, 278 (5th Cir. 2015). Rather, “[t]he types of errors that warrant reversal are ones that would shock the conscience of the common man, serve as a powerful indictment against our system of justice, or seriously call into question the competence or integrity of the district judge.” United States v. Segura, 747 F.3d 323, 331 (5th Cir. 2014) (quotation marks omitted).

This is not one, of those rare cases. “[W]e have declined to exercise our discretion to notice sentencing errors [when the facts involve] recidivistic behavior.” Martinez-Rodriguez, 821 F.3d at 666. Solano-Hernandez has been deported on four separate occasions and was convicted of the same offense, illegal reentry, several years ago. Indeed, he had been deported mere months before the illegal reentry with which this case is concerned. We have also considered criminal history in deciding whether to exercise our discretion. In addition to his illegal reentry and “Endangering the Welfare of a Child” convictions, Solano-Hernandez has been convicted of aggravated assault with a deadly weapon. Finally, we note that the 30-month sentence is only six months outside the correct guideline range and well within the 20-year statutory maximum.

We cannot say that the error or resulting sentence would “shock the conscience of the common man, serve as a powerful indictment against our system of justice, or seriously call into question the competence or integrity of the district judge.” Segura, 747 F.3d at 331 (quoting Escalante-Reyes, 689 F.3d at 435). Thus, even if the district court plainly erred, we will not exercise our discretion to remedy that error.

III.

Solano-Hernandez claims that the district court erred in convicting him under 8 U.S.C. § 1326(b)(2), which applies to aliens “whose removal was subsequent to a conviction for commission of an aggravated felony.” He contends that his 1995 conviction was not for sexual abuse of a minor and so does not qualify as an aggravated felony. But even if he were correct, he had also been convicted in 2013 of illegal reentry under Section 1326(b)(2), and that qualifies as an aggravated felony. Thus, the court did not err in convicting Solano-Hernandez under Section 1326(b)(2).

The conviction and sentence are AFFIRMED.

      . All U.S.S.G. citations are to the 2014 version, under which the court sentenced Sola-no-Hernandez.

      . On appeal, Solano-Hernandez challenges only the § 1326 conviction and sentence. Because he does not identify any specific error with the revocation or the revocation sentence, he has abandoned any challenge to the revocation proceeding. United States v. Charles, 469 F.3d 402, 408 (5th Cir. 2006).

      . Mathis v. United States, -U.S. -, 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016); see also Rodriguez, 711 F.3d at 549 n.8.

      . The district court applied the enhancement under U.S.S.G. § 2L1.2(b)(l)(A)(ii), which is triggered by a prior conviction for a COV. The guideline commentary defines COV to include "sexual abuse of a minor." U.S.S.G. § 2L1.2 cmt. n.l(B)(iii). See United States v. Hernandez-Hernandez, 817 F.3d 207, 212 (5th Cir. 2016) ("Guideline commentary is given controlling weight if it is not plainly erroneous or inconsistent with the guidelines." (quoting United States v. Flores-Gallo, 625 F.3d 819, 821 (5th Cir. 2010))); see also United States v. Rayo-Valdez, 302 F.3d 314, 316 (5th Cir. 2002) (holding that sexual abuse of a minor constitutes a COV under U.S.S.G. § 2L1.2).

      . United States v. Vigil, 774 F.3d 331, 334 (5th Cir. 2014) (citing Rodriguez, 711 F.3d at 557-58).

      . Id. (quoting Contreras v. Holder, 754 F.3d 286, 294 (5th Cir. 2014)).

      . Id. (quoting "Sexual Abuse,” Black’s Law Dictionary (9th ed. 2009)).

      . See, e.g., State v. Hutchinson, No. A-1377-05T4, 2011 WL 5105449, at *6 (N.J. Super. Ct. App. Div. Oct. 28, 2011) (per curiam). In interpreting the elements of state statutés, it is appropriate to look to state-court decisions. United States v. Uribe, 838 F.3d 667, 670 (5th Cir. 2016) (citing Mathis, 136 S.Ct. at 2250, 2256-57).

      . In re W.P., No. A-1913-10T1, 2011 WL 2330902, at *2 (N.J. Super. Ct. App. Div. June 15, 2011) (per curiam) (citing State v. Hackett, 166 N.J. 66, 764 A.2d 421, 428 (2001); State v. Bryant, 419 N.J.Super. 15, 15 A.3d 865, 866 (2011)).

      . United States v. Berry, 814 F.3d 192, 199 (4th Cir. 2016); see also Stubbs v. Attorney Gen. of U.S., 452 F.3d 251, 254-55 (3d Cir. 2006) (concluding that § 2C:24-4 contains alternative elements).

      . See Jabbar v. Attorney Gen. of U.S., 508 Fed.Appx. 156, 159 (3d Cir. 2013) (per curiam) (holding that a conviction under Section 2C:24-4 constituted "sexual abuse of a minor”); Uzoka v. Attorney Gen. of U.S., 489 Fed.Appx. 595, 597-98 (3d Cir. 2012) (per curiam) (same).

      . United States v. Herrera-Alvarez, 753 F.3d 132, 138 (5th Cir. 2014) (quoting Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)).

      . Vigil, 774 F.3d at 335 (quoting United States v. Espinoza, 733 F.3d 568, 572 (5th Cir. 2013)).

      . See Stubbs, 452 F.3d at 254 (“A conviction could lie under [Section 2C:24-4] for willfully failing to provide proper and sufficient food’ for a child pursuant to N.J. STAT. ANN. § 9:6-1, one of the enumerated protective-welfare statutes. This offense would hardly constitute 'sexual abuse of a minor'....").

      . United States v. Gonzalez-Ramirez, 477 F.3d 310, 315 (5th Cir. 2007); United States v. Turner, 349 F.3d 833, 836 (5th Cir. 2003). Although the state-court documents indicate that an amended indictment was issued, a copy of the amended indictment is not part of the record.

      . The "Reasons for Sentence” describes the circumstances as follows:
      On April 7, 1994 a juvenile victim, L.M.O., responded to Green Brook Police Department with her mother and a relative to report a sexual assault. The victim gave a statement to police indicating that she had sexual intercourse with the defendant, who at the time of the offense was 23 years old. The offense took place in the Green Brook Motel, Route 22, Green Brook, New Jersey. The victim reported that at the time of the offense she was 14 years old. On April 28, 1994 the defendant was picked up for questioning. The defendant was read his Miranda rights which he indicated that he understood. He gave a taped statement in which he admitted that he had sexual intercourse with the victim on April 7, 1994.

      . E.g., Garcia-Arellano, 522 F.3d at 480; United States v. Conde-Castaneda, 753 F.3d 172, 176 (5th Cir. 2014); United States v. Elizondo-Hernandez, 755 F.3d 779, 781-82 (5th Cir. 2014) (per curiam).

      . For example, suppose a divisible statute has two subparts, (a) and (b), and that sub-part (a) qualifies as a COV, though subpart (b) does not. If a judgment specifies that a conviction is under subpart (a), the sentencing court may look to the judgment to narrow the offense.

      . United. States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc) (alteration in original) (quoting Puckett, 556 U.S. at 135, 129 S.Ct. 1423).

      . See also Ellis, 564 F.3d at 378 ("Not every error that increases a sentence need be corrected by a call upon plain error doctrine."); United States v. Wooley, 740 F.3d 359, 369 (5th Cir. 2014) ("This circuit has repeatedly emphasized that even when we find that the first three factors have been established, this fourth factor is not automatically satisfied.” (quotation marks omitted)).

        .See United States v. Patino-Almendariz, No. 15-41146, 664 Fed.Appx. 399, 402, 2016 WL 6871993, at *3 (5th Cir. Nov. 21, 2016) (per curiam) (unpublished) (noting that prior convictions for illegal reentry counseled against the exercise of discretion).

      . See United States v. Luviano, 604 Fed.Appx. 347, 348-49 (5th Cir. 2015) (per cu-riam) (declining to correct an error because, inter alia, “Luviano returned to the United States within 18 months after his most recent removal, thereby committing the same offense that gave rise to the term of supervised release.”).

      . See, e.g., United States v. Brown, 826 F.3d 835, 841 (5th Cir. 2016); Segura, 747 F.3d at 33; Patino-Almendariz, 664 Fed.Appx. at 402, 2016 WL 6871993, at *3.

      . In asking us to exercise our discretion, Solano-Hernandez points to cases with larger disparities. See United States v. Hernandez, 690 F.3d 613, 621-22 (5th Cir.2012) (12-month disparity); United States v. Mudekunye, 646 F.3d 281, 290-91 (5th Cir. 2011) (per curiam) (19-month disparity); United States v. John, 597 F.3d 263, 285-86 (5th Cir. 2010) (21-month disparity).

      . See Luviano, 604 Fed.Appx. at 349 (declining to correct an error because, inter alia, "the 24-month sentence did not exceed the available statutory maximum”).

      . See 8 U.S.C. § 1101(a)(43)(A) (defining "aggravated felony” to include "sexual abuse of a minor”).

      . 8 U.S.C. § 1101 (a)(43)(0) (defining “aggravated felony” to include "an offense described in section 1325(a) or 1326 of this title committed by an alien who was previously deported on the basis of a conviction for an offense described in another subparagraph of this paragraph"). See Gamboa-Garcia, 620 F.3d at 548 ("Under its plain language, the 2004 [§ 1326(b)(2)] conviction is itself an aggravated felony under § 1101(a)(43)(O).”); United States v. Zamora, 519 Fed.Appx. 251, 252 (5th Cir. 2013) (per curiam) ("[A] conviction for illegal reentry under § 1326(b)(2) is an aggravated felony within the meaning of § 1101(a)(43)(O).”).


source: Caselaw Access Project

author: W. EUGENE DAVIS, Circuit Judge:

license: Public Domain

text:
    REMINGTON LODGING & HOSPITALITY, L.L.C., Petitioner Cross-Respondent v. NATIONAL LABOR RELATIONS BOARD, Respondent Cross-Petitioner
    No. 16-60106
    United States Court of Appeals, Fifth Circuit.
    Filed January 27, 2017

      Karl M. Terrell, Stokes Wagner Hunt Maretz & Terrell, A.L.C., Atlanta, GA, for Petitioner Cross-Respondent.
    Linda Dreeben, Esq., Deputy Associate General Counsel, David Casserly, Richard F. Griffin, Jr., Elizabeth Ann Heaney, Esq., National Labor Relations Board, Appellate & Supreme Court Litigation Branch, Washington, DC, James G. Paul-sen, National Labor Relations Board, Regional Office, Brooklyn, NY, James G. Paulsen, National Labor Relations Board, Region 15, New Orleans, LA, for Respondent Cross-Petitioner.
    Before DAVIS, DENNIS, and SOUTHWICK, Circuit Judges.
   W. EUGENE DAVIS, Circuit Judge:

Remington Lodging & Hospitality, LLC (“Remington”) petitions for partial review of a National Labor Relations Board (“NLRB” or the “Board”) order finding that it violated Sections 8(a)(1) and (3) of the National Labor Relations Act (“NLRA”). The Board cross-petitions for enforcement of the order. For the reasons set out below, we DENY Remington’s petition for partial review and ENFORCE the order.

I.

We have jurisdiction to decide this case pursuant to Sections 10(e) and (f) of the NLRA. “We review the NLRB’s legal conclusions de novo and its ‘factual findings under a substantial evidence standard.’ ” “ ‘Substantial evidence is that which is relevant and sufficient for a reasonable mind to accept as adequate to support a conclusion. It is more than a mere scintilla and less than a preponderance.’” “In making this determination, ‘we may not reweigh the evidence, try the case de novo, or substitute our judgment for that of the NLRB, even if the evidence preponderates against the NLRB’s decision.’ ” “ ‘Only in the most rare and unusual cases will an appellate court conclude that a finding of fact made by the NLRB is not supported by substantial evidence.’ ”

II.

Remington challenges two of the Board’s findings. Because these two findings are unrelated, we discuss each separately and in turn.

A.

Remington is a hotel management company that, in December 2011, was hired to manage the Hyatt Regency Long Island hotel (the “Hyatt” or the “Hotel”). The Hotel, at the time, outsourced its housekeeping department to a staffing company called Hospitality Staffing Services (“HSS”). It was also one of the poorest performing Hyatt-branded properties, in terms of guest-satisfaction scores, in the United States.

Upon taking over as property manager, Remington decided to terminate the Hotel’s contract with HSS, consistent with its general preference to directly employ its employees. Meanwhile, the Hotel’s guestroom component score—which serves as the primary indicator of housekeeping effectiveness and is measured against an average benchmark of 50—continued to decline. In March, it was 20.4. In April, it was 6.0. In May, it was 8.3. And in June, it was 1.1.

On June 28, 2012, Remington contacted HSS about re-outsourcing the Hotel’s housekeeping department, citing the aforementioned scores and unrelated financial considerations. On August 16, 2012, Remington and HSS executed a new outsourcing agreement (“the 2012 HSS contract”), which took effect on August 21, 2012. On February 12, 2016, the Board held that the 2012 HSS contract was motivated, at least in part, by anti-union animus and that it therefore violated Sections 8(a)(1) and (3) of the NLRA.

Remington challenges this finding on both factual and legal grounds. We begin with the law. Section 8(a)(1) states that employers may not “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed” by the NLRA. Section 8(a)(3) states that employers may not discriminate “in regard to hire or tenure of employment ... to encourage or discourage membership in any labor organization.” Although the protections of Section 8(a)(3) and Section 8(a)(1) “are not contemporaneous, a violation of [the former] constitutes a derivative violation of [the latter].”

Where, as here, Section 8 allegations turn on employer motivation, they are analyzed under the burden-shifting framework first established in N.L.R.B. v. Wright Line, a Division of Wright Line, Inc., 662 F.2d 899 (1st Cir. 1981), and approved by the Supreme Court in N.L.R.B. v. Transportation Management Corp., 462 U.S. 393, 400-01, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983), abrogated in part on other grounds, Director, Office of Workers’ Compensation Programs, Department of Labor v. Greenwich Collieries, 512 U.S. 267, 276-77, 114 S.Ct. 2251, 129 L.Ed.2d 221 (1994). Pursuant to this framework, the initial burden rests with the General Counsel to show, by a preponderance of the evidence, that the employer undertook an adverse employment action motivated, at least in part, by anti-union animus. The burden then shifts to the employer to show, by a preponderance of the evidence, that it would have taken the adverse action “regardless of any [anti-union] animus.” An employer who would have taken the same action regardless of any anti-union animus has not violated Section 8.

Remington argues that in order to violate Section 8(a)(3), the General Counsel must produce evidence that the employer’s “discrimination in fact caused or resulted in a discouragement of union membership” which, in this case, the General Counsel failed to do. That requirement, however, is completely inconsistent with our precedent. We have held that Section 8(a)(3) “makes it unlawful for an employer to discriminate against employees ... for the purpose of discouraging membership in a labor organization.” The General Counsel need not prove discouragement as a matter of fact.

Now on to the facts. Remington argues that the Board’s finding that the 2012 HSS contract violated Sections 8(a)(1) and (3) is not supported by substantial evidence. Having reviewed all of evidence, we disagree.

■ Jose Vega, a union activist, began visiting the Hotel in April 2012, and union activity commenced shortly thereafter. Nina Palacios, a Remington housekeeper, testified that in May 2012, Remington Supervisor Percida Rosero approached her and asked whether she had been asked to participate in a union meeting. Veronica Flores, a Remington housekeeper, testified that in June 2012, the Hotel’s then-director of housekeeping, Andrew Arpiño, called her into his office and asked whether she “knew anything about a union.” No more than 28 days later — perhaps coincidentally and perhaps riot — Remington, for the first time in over six months, initiated contact with HSS and discussed outsourcing its employees.

Also relevant is a conversation that took . place on August 22, 2012, the day after the 2012 HSS contract took effect. Remington employee Maritz Torres approached Rose-ro and asked “what was going on,” i.e., why did Remington choose to re-outsource the Hotel’s housekeeping department to HSS? “[B]ecause of the Union,”- Rosero replied.

Remington did not address this exchange in its petition or its reply. But even assuming that Rosero was not “personally involved in [Remington’s] decision” to re-outsource the Hotel’s housekeeping department, Rosero’s statement provides “an explanation” that she, “as a supervisor,” was qualified to give. Such a “definitive” statement, in these circumstances, constitutes substantial evidence of unlawful motive sufficient to withstand our deferential Standard of review.

We have considered Remington’s argument that it decided to remain a joint employer under the second HSS contract so as to evince a desire not “to avoid [its] duty to bargain with a union.” Ultimately, however, “[w]e- must pay ‘special deference’ to the [Board’s] conclusion that [an] employment decision was illegally motivated ... where, as here, conflicting evidence requires that essential credibility determinations be made.”

B.

Remington also challenges the Board’s finding that its decision to discharge Hotel employee Margaret Loiacono (“Loiacono”) violated Section 8(a)(1) of the NLRA. The facts relevant to Loiacono’s discharge were well laid out by the Board majority.

In late December 2012, as part of its campaign against the Union, [Remington] distributed to each employee a pie chart setting forth the employee’s compensation and how it was allocated. The ostensible purpose of the chart was to demonstrate to employees that they received compensation and benefits beyond their base salary. On December 30, Loiacono, a lobby ambassador charged with greeting guests, left her post for 10 to 15 minutes to discuss her pie chart with Supervisor Yohenna Borrero. Loia-cono informed Borrero that the chart was inaccurate because it allocated a portion of her compensation to a uniform allowance, and she did not wear a uniform. Loiacono stated that other employees’ charts might also contain mistakes. Later that day, Loiacono repeated her concerns to [Remington’s] general manager, Jeff Rostek, and suggested that the chart be corrected. Still later that day, management spoke to Loiaco-no and two other employees about the difficulty employees would face in obtaining a collective-bargaining agreement and [Remington’s] purported freedom not to honor one.
The next day, [Remington’s] housekeeping manager, Andrew Arpiño, sent [General Manager] Rostek an email containing a “statement” of Supervisor Borrero recounting her conversation with Loia-cono the previous day. The statement purported to be Arpino’s typewritten transaction of Borrero’s oral account. According to the statement, Loiacono asserted that [Remington] should pay her the equivalent of a uniform allowance and should do the same for Borre-ro, accused [Remington] of “lying to the people,” said “that [what Remington was doing] was against the law,” and threatened to sue the hotel. The statement also noted that Loiacono had been communicating with another employee, Ken, about the pie chart discrepancies, and that Loiacono was waiting for Ken to discuss the issue with [General Manager] Rostek. [Remington] discharged Loiacono on January 2, 2013.

The Board recognized, and both sides concede, that Loiacono was not engaged in protected activity when she was terminated. Yet the Board still held that Loiacono’s discharge violated Section 8(a)(1) of the NLRA. Remington argues that without finding the former, the Board cannot hold the latter. We disagree.

The NLRA protects both actual and “alleged union activities.” “Thus, proof of an unfair labor practice does not require proof of actual union activity; it is sufficient if the employer was motivated by suspected union activity in discharging the employee.” “The same is true if an employer” acts to prevent future protected activity. Employers cannot bypass the protections of the NLRA by launching a “pre-emptive strike.”

Now, once again, on to the facts. The lawfulness of Loiacono’s termination necessarily turns on motive. We therefore analyze it under the same Wright Line burden-shifting framework outlined supra. Substantial evidence is the standard. We cannot simply re-weigh the evidence and displace those findings with which we disagree.

As a “lobby ambassador,” Loiacono was required to be in the lobby at all times. She was the Hotel’s “lead cheerleader”— telling incoming guests hello, wishing outgoing guests goodbye, and addressing any complaints brought to her attention. Remington argues that Loiacono’s decision to leave her post at 11:30 a.m. on a Sunday morning — “a heavy checkout time” — was indefensible, and that it previously terminated two “similarly situated” lobby ambassadors for doing the same thing. Remington’s attempted use of comparators is consistent with our precedent insofar as it recognizes that an employer who would have taken the same action regardless of any anti-union animus has not violated Section 8. We, however, find that the Remington comparators were not “similarly situated” to Loiacono.

The Remington comparators were fired for ignoring guests in order to engage in a sports discussion with each other. Loiaco-no was fired for leaving the lobby to discuss, with Remington, material that it distributed in order to advance its antiunion campaign. Loiacono did not ignore any guests, and Rostek never sought to the end the conversation.

Remington argues that we are getting lost in the details. That Loiacono and the comparators were all fired for the same offense, and that Remington has therefore proven that it would have taken the same action regardless of any anti-union animus. But the details are important, and the Board was entitled to consider the sub- , stance of the conversation. An employer violates Section 8(a)(1) when it acts with the intent to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed” by the NLRA, and a conversation about unionization may implicate the rights guaranteed by the NLRA more than a conversation about sports.

HI.

For the foregoing reasons, we DENY Remington’s petition for partial review and ENFORCE the order.

      . See 29 U.S.C. § 160(e)-(f).

      . Flex Frac Logistics, L.L.C. v. N.L.R.B., 746 F.3d 205, 207 (5th Cir. 2014) (quoting Sara Lee Bakery Grp., Inc. v. N.L.R.B., 514 F.3d 422, 428 (5th Cir. 2008)).

      . Id. at 207-08 (quoting El Paso Elec. Co. v. N.L.R.B., 681 F.3d 651, 656 (5th Cir. 2012)) (alteration omitted).

      . Id. at 208 (quoting El Paso, 681 F.3d at 656-57) (alterations omitted).

      . Ibid, (quoting Merchants Truck Line, Inc. v. N.L.R.B., 577 F.2d 1011, 1015 n.3 (5th Cir. 1978)) (alteration omitted).

      . 29 U.S.C. § 158(a)(1).

      . 29 U.S.C. § 158(a)(3).

      . Metro. Edison Co. v. N.L.R.B., 460 U.S. 693, 698 n.4, 103 S.Ct. 1467, 75 L.Ed.2d 387 (1983).

      . N.L.R.B. v. Arkema, Inc., 710 F.3d 308, 320-21 (5th Cir. 2013); see MCPC Inc. v. N.L.R.B., 813 F.3d 475, 487-90 (3d Cir. 2016) (distinguishing Wright Line from the framework established in N.L.R.B. v. Burnup. & Sims, Inc., 379 U.S. 21, 23, 85 S.Ct. 171, 13 L.Ed.2d 1 (1964)); Shamrock Foods Co. v. N.L.R.B., 346 F.3d 1130, 1135-36 (D.C. Cir. 2003) (same).

      . Ahearn v. lackson Hosp. Corp., 351 F.3d 226, 238 (6th Cir. 2003) (citing Trans. Mgmt. Corp., 462 U.S. at 399-403, 103 S.Ct. 2469); Poly-Am., Inc. v. N.L.R.B., 260 F.3d 465, 488 (5th Cir. 2001) (internal quotations omitted).

      . Arkema, 710 F.3d at 321.

      . New Orleans Cold Storage & Warehouse Co. v. N.L.R.B., 201 F.3d 592, 599-600 (5th Cir. 2000) (emphasis added).

      . Valmont Indus., Inc. v. N.L.R.B., 244 F.3d 454, 465 (5th Cir. 2001) (Section 8 does not require "[o]vert direct evidence of an unlawful motive.... Circumstantial evidence of discriminatory animus may be sufficient” depending on, inter alia, "the timing of the employer's action in relationship to union activity. ...”).

      . Tcb Sys., Inc. & Serv. Employees Int’l Union, Local 32bj, Successor to Serv. Employees Int’l Union, Local 11, 355 NLRB 883, 885 (2010), enf’d, TCB Sys., Inc. v. N.L.R.B., 448 Fed.Appx. 993, 996 (11th Cir. 2011).

      . See id.

      . N.L.R.B. v. Brookwood Furniture, Div. of U.S. Indus., 701 F.2d 452, 464 (5th Cir. 1983).

      . N.L.R.B. v. Link-Belt Co., 311 U.S. 584, 589-90, 61 S.Ct. 358, 85 L.Ed. 368 (1941).

      . Holyoke Visiting Nurses Ass’n v. N.L.R.B., 11 F.3d 302, 307 (1st Cir. 1993); see Saffels v. Rice, 40 F.3d 1546, 1549 (8th Cir. 1994) (citing numerous cases in which courts have held that the NLRA protects employees who "did not actually engage in” protected activity).

      . Dover Energy, Inc. v. NLRB, 818 F.3d 725, 730 (D.C. Cir. 2016).

      . Parexel Int’l, 356 NLRB 516, 517 (2011); see Dover Energy, 818 F.3d at 730 (citing Parexel); N.L.R.B. v. RELCO Locomotives, Inc., 734 F.3d 764, 790 (8th Cir. 2013) (discussing Parexel).

      . See Sutter E. Bay Hosps. v. N.L.R.B., 687 F.3d 424, 434 (D.C. Cir. 2012) (noting that Wright Line applies “when an employee is disciplined for a reason purportedly unrelated to any protected activity, such as a discharge for theft or poor performance’’); Citizens Inv. Servs. Corp. v. N.L.R.B., 430 F.3d 1195, 1198 (D.C. Cir. 2005) (analyzing an alleged Section 8(a)(1) violation under Wright Line).

        . See Inova Health Sys. v. N.L.R.B., 795 F.3d 68, 80 (D.C. Cir. 2015) (referring to any NLRB evidentiary challenge as "a hard hill to climb”); Brookwood Furniture, 701 F.2d at 464 ("While it is true that illegal motive for an employment decision may not be lightly inferred, it is also axiomatic that once the Board has made such an inference, a reviewing court may not lightly displace the Board’s factual finding of discriminatory intent.”).

      . 29 U.S.C. § 158(a)(1).

      . The Board made numerous findings that Remington did not address in its petition. Specifically, the Board found: (1) that Remington violated Section 8(a)(1) by unlawfully interrogating or threatening employees on six occasions from May through early August 2012; (2) that Remington violated Section 8(a)(1) by unlawfully interrogating or threatening employees on six occasions in late August and September 2012; (3) that Remington violated Section 8(a)(1) by stating in its campaign literature that it would more strictly enforce workplace rules if the employees voted to unionize; and (4) that Remington violated Sections 8(a)(1) and (3) by refusing to rehire the incumbent housekeepers after it terminated the 2012 HSS contract. Remington has, by virtue of its silence, waived any objection to these findings, Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994), and they are therefore summarily enforced.


author: E. GRADY JOLLY, Circuit Judge:

text:
    HENIFF TRANSPORTATION SYSTEMS, L.L.C., Plaintiff-Appellant v. TRIMAC TRANSPORTATION SERVICES, INCORPORATED, Defendant-Appellee
    No. 16-40553
    United States Court of Appeals, Fifth Circuit.
    January 30, 2017

      John William Lynd, Esq., Donato, Minx, Brown & Pool, P.C.,. Houston, TX, for Plaintiff-Appellant.
    Scott Novak, Lorance & Thompson, P.C., Houston, TX, for Defendant-Appel-lee.
    Before JOLLY, HIGGINBOTHAM, and GRAVES, Circuit Judges.
   E. GRADY JOLLY, Circuit Judge:

Heniff Transportation Systems, LLC (“Heniff’) was hired to transport chemicals from Texas to Illinois. It in turn hired Trimac Transportation Services, Inc. (“Trimac”) to clean the tanker prior to the trip. The cleaning was not performed correctly, and the chemicals became contaminated. Heniff sued Trimac for the resulting damages. The district court dismissed Heniff s state law claims, finding that they were preempted by the Carmack Amendment, codified in relevant part at 49 U.S.C. § 14706 et seq., which establishes a federal liability regime for claims concerning goods damaged or lost during transportation in interstate commerce. We agree with the district court that Heniff s claims are preempted by the Carmack Amendment because the service that Trimac provided, a tanker wash, was a “service! ] related to [the] movement [of property in interstate commerce],” 49 U.S.C. § 18102(28). Accordingly, we affirm.

I.

Heniff provides transportation and product delivery services. Trimac provides a wide variety of transportation and delivery services including, among other things, cleaning services for tanker-trailers used by other transportation companies.

In November 2011, Heniff entered into an agreement with Huntsman Corporation (“Huntsman”), a chemical producer, to transport a load of chemicals from its plant in Texas to its customer, Lambent Technologies Corp. (“Lambent”), in Illinois. Knowing the chemicals might become contaminated if exposed to any cleaning agents or residue, Huntsman required that the tanker-trailer used for the transportation undergo a very thorough “Kosher wash.” This wash was specified in the bill of lading that Huntsman issued.

Heniff contracted with Trimac to have its tanker washed the day before the trip. This practice was routine; Heniff rented storage space from Trimac and regularly used Trimac’s cleaning services for its tankers. For whatever reason, the tanker did not receive a proper Kosher wash. As a result of the inadequate wash, this new load of chemicals became contaminated. Additionally, after the contaminated chemicals were delivered and entered Lambent’s facilities, the chemicals in turn contaminated other chemicals and damaged Lambent’s equipment.

A few months later, Heniff; along with its insurer, Hartford Fire Insurance Company (“Hartford”), settled with Lambent for the damage caused by the contaminated shipment. They paid a combined $30,394 for the spoiled cargo and $208,516 for other damages to Lambent’s property.

II.

In February 2015, Heniff filed this suit against Trimac in federal court in Illinois. It alleged several state law claims relating to the contamination incident, as well as a federal claim for liability apportionment under the Carmack Amendment, see 49 U.S.C. § 14706(b). The court transferred the case to the Eastern District of Texas.

Trimac then moved for partial summary judgment on the state law claims. The district court granted the motion and held that all of Heniffs state law claims are preempted by the Carmack Amendment. It specifically found that the Carmack Amendment applied because Trimac was acting as a “carrier” under the statute because the tank-washing service that Trimac provided was a “service[] related to [the] movement [of property in interstate commerce].” See 49 U.S.C. §§ 13102(3), 13102(14), 13102(23).

Several months later, Trimac moved for summary judgment on the remaining Car-mack Amendment apportionment claim. The district court granted that motion as well, finding that Heniff failed to comply with the procedural requirements outlined in the Carmack Amendment.

Heniff appeals the district court’s holding that the state law claims are preempted.

III.

We review the grant of a motion for summary judgment de novo, applying the same legal standards as the district court. Lifecare Hosps., Inc. v. Health Plus of Louisiana, Inc., 418 F.3d 436, 439 (5th Cir. 2005). We may affirm the district court’s ruling on any grounds supported by the record. Id. Summary judgment is proper when the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In reviewing an appeal from summary judgment, we “view the facts in the light most favorable to the non-moving party and draw all reasonable inferences .in its favor.” See Deville v. Marcantel, 567 F.3d 156, 163-64 (5th Cir. 2009).

IV.

The only issue in this appeal is whether Heniffs state law claims are preempted by the Carmack Amendment. We hold that they are, and so affirm.

A.

The Carmack Amendment establishes the standard for imposing liability on a motor carrier for the actual loss or injury to property transported through interstate commerce. Distribuidora Mari Jose, S.A. de C.V. v. Transmaritime, Inc., 738 F.3d 703, 706 (5th Cir. 2013). The Carmack Amendment generally preempts state law claims arising out of the shipment of goods by interstate carriers. Id. “The purpose of the Amendment is to establish [] uniform federal guidelines designed in part to remove the uncertainty surrounding a carrier’s liability when damage occurs to a shipper’s interstate shipment.” Id. (citations and quotations omitted). The Amendment “provide[s] the exclusive cause of action for loss or damages to goods arising from the interstate transportation of those goods by a common carrier.” Hoskins v. Bekins Van Lines, 343 F.3d 769, 778 (5th Cir. 2003) (emphasis omitted). This Court has repeatedly recognized the “broad reach” of the Carmack Amendment. See, e.g., id. at 777.

The Carmack Amendment provides, in relevant part:

(a) General liability.—
(1) Motor carriers and freight forwarders. — A carrier providing transportation or service subject to jurisdiction under subchapter I or III of chapter 135 shall issue a receipt or bill of lading for property it receives for transportation under this part. That carrier and any other carrier that delivers the property and is providing transportation or service subject to jurisdiction under sub-chapter I or III of chapter 135 or chapter 105 are liable to the person entitled to recover under the receipt or bill of lading. The liability imposed under this paragraph is for the actual loss or injury to the property caused by (A) the receiving carrier, (B) the delivering carrier, or (C) another carrier over whose line or route the property is transported in the United States or from a place in the United States to a place in an adjacent' foreign country when transported under a through bill of lading and, except in the case of a freight forwarder, applies to property reconsigned or diverted under a tariff under section 13702. Failure to issue a receipt or bill of lading does not affect the liability of a carrier....
(b) Apportionment. — The carrier issuing the receipt or bill of lading under subsection (a) of this section or delivering the property for which the receipt or bill of lading was issued is entitled to recover from the carrier over whose line or route the loss or injury occurred the amount required to be paid to the owners of the property, as evidenced by a receipt, judgment, or transcript, and the amount of its expenses reasonably incurred in defending a civil action brought by that person.

49 U.S.C. § 14706. The operative term “carrier” is defined as “a motor carrier, a water carrier, and a freight forwarder.” 49 U.S.C. § 13102(3). “Motor carrier” is further defined as “a person providing motor vehicle transportation for compensation.” 49 U.S.C. § 13102(14). The term “transportation” “includes” “equipment of any kind related to the movement of passengers or property,” as well as “services related to that movement, including arranging for, receipt, delivery, elevation, transfer in transit, refrigeration, icing, ventilation, storage, handling, packing, unpacking, and interchange of passengers and property.” 49 U.S.C. § 13102(23).

In other words, one who provides motor-vehicle-related “services related to [the] movement [of passengers or property in interstate commerce],” 49 U.S.C. § 13102(23), provides a “service subject to [the] jurisdiction” of the Carmack Amendment, see 49 U.S.C. § 14706(a), and any state law claims asserting “loss or damages to goods” in connection to those services are preempted by the Amendment. Hoskins, 343 F.3d at 778 & n.7; see also Transmaritime, 738 F.3d at 706.

B.

We hold that the service that Trimac provided — cleaning Heniffs tanker-trailer so that it could be used to transport chemicals from Texas to Illinois' — was a “service[] related to [the] movement [of passengers or property in interstate commerce].” 49 U.S.C. § 13102(23). Accordingly, Trimac was providing “transportation,” 49 U.S.C. § 13102(23), and was thus acting as a “motor carrier,” 49 U.S.C. § 13102(14), and was thus a “carrier,” 49 U.S.C. § 13102(3), and was thus subject to the Carmack Amendment, see 49 U.S.C. § 14706(a)(1) (providing that a “carrier ... that delivers the property and is providing transportation or service subject to jurisdiction under [the Carmack Amendment] ... [is] liable to the person entitled to recover”). Heniffs state law claims pertaining to the damage of goods caused by these services, which are the subject of this appeal, are thus preempted by the Amendment. See 49 U.S.C. § 14706(a)(1); Transmaritime, 738 F.3d at 706.

Heniff makes, in effect, two arguments that its claims are not preempted by the Carmack Amendment. Neither is compelling.

First, Heniff argues that the tanker wash service that Trimac provided was not a “service! ] related to [the] movement [of passengers or property in interstate commerce],” because it is dissimilar to the examples of services provided in the statute.

But the plain language of the statute compels a finding that the tanker wash was such a “service.” “Transportation” “in-eludes ... services related to [the] movement [of passengers or .property in interstate commerce], including arranging for, receipt, delivery, elevation, transfer in transit, refrigeration, icing, ventilation, storage, handling, packing, unpacking, and interchange of passengers and property.” 49 U.S.C. § 13102(23) (emphasis added). As the district court correctly noted, the phrase “including” in the statute indicates that the examples of “services” listed in the statute are an illustrative and non-exhaustive list. See Include, Black’s Law Dictionary (10th ed. 2014) (“The participle including typically indicates a partial list ... But some drafters use phrases such as including without limitation and including but not limited to — which mean the same thing.”). Washing a tanker-trailer using industrial cleaning methods so that the tanker-trailer may transport chemicals from one state to another is plainly a “service[] related to [the] movement [of passengers or property in interstate commerce].” 49 U.S.C. § 13102(23).

Indeed, the “Kosher wash” was so critical to this shipment of goods that the bill of lading explicitly required that such a wash occur prior to shipment. Further, the service — -that is, preparing a vessel for safe transport of the cargo — is analogous to several of the examples listed in the statute, including “arranging for,” “handling,” “refrigeration,” “icing,” and “ventilation.” This holding is also consistent with the “broad reach” that courts assign to the Carmack Amendment, Hoskins, 343 F.3d at 777, as well as the purpose of the Amendment: a uniform liability regime for causes of action stemming from “the loss or damages to goods arising from the interstate transportation of those goods by a common carrier.” Id. at 778 (emphasis omitted).

Second, Heniff argues that because Trimac was never a party to any bill of lading — the bill of lading in this case was between Heniff and Huntsman — and because the bill of lading was not actually issued until after the wash was performed, Trimac is not subject to the Carmack Amendment.

But this argument ignores the plain language of the Amendment, which states that “[fjailure to issue a receipt or bill of lading does not affect the liability of a carrier.” 49 U.S.C. § 14706(a)(1); see also Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp., 561 U.S. 89, 102-03, 130 S.Ct. 2433, 177 L.Ed.2d 424 (2010) (“Carmack applies only to transport of property for which Carmack requires a receiving carrier to issue a bill of lading, regardless of whether that carrier erroneously fails to issue such a bill ... The decisive question is not whether the ... carrier in fact issued a Carmack bill but rather whether that carrier was required to issue a bill by Carmack’s first sentence.”). The terms of the bill of lading and whether a bill is issued at all are irrelevant to the applicability of the Carmack Amendment.

Further, “[l]iability under the Carmack Amendment ... extends beyond the carrier who actually provides the transportation. It extends to any carrier ‘providing transportation or service.’ ” Land O’Lakes, Inc. v. Superior Serv. Transp of Wis., Inc., 500 F.Supp.2d 1150, 1155 (E.D. Wis. 2007) (quoting 49 U.S.C. § 14706(a)(1)). Indeed, the Carmack Amendment specifically provides for an apportionment remedy whereby one carrier may recover from another carrier “over whose line or route the loss or injury occurred.” 49 U.S.C. § 14706(b).

Heniff also suggests that because Trimac had no knowledge of the upcoming shipment and did not know that the particular tanker it was washing was going to be used to transport chemicals across state lines, it was not subject to the Carmack Amendment. But the Carmack Amendment does not have any scienter requirement; all that matters is whether the claims fall under the “jurisdiction” of the Carmack Amendment, which, as we have stated, they do here, regardless of whether Trimac knew as much at the time it provided the wash services.

V.

For these reasons, we hold that the tanker wash services that Trimac provided were “services related to [the] movement [of passengers or property in interstate commerce],” 49 U.S.C. § 13102(23), and thus Trimac was acting as a “carrier” subject to the Carmack Amendment. The judgment of the district court dismissing Heniffs state law claims as preempted is

AFFIRMED.

      . The wash receipt that Trimac issued states that it administered a “special clean.” The parties dispute what exactly went wrong with respect to which wash (a "Kosher wash” or a "special clean”) was ordered, or whether the distinction had any practical impact.

      . Heniff and Hartford, in its capacity as sub-rogee of Heniff, initially jointly filed a suit asserting substantially identical allegations against Trimac in state court in Illinois. After that case was removed to federal court, both parties voluntarily dismissed their claims without prejudice. Hartford later refiled its claims, this time by itself, in state court in Texas. After that case was removed to federal court, and prior to Heniffs filing of the instant case, Hartford settled its claims with Trimac and voluntarily dismissed that case.

      . Heniff does not appeal the finding that its federal apportionment claim failed due to failure to comply with the Carmack Amendment's procedural requirements.

      . In support of its non-preemption argument, Heniff cites only one unpublished district court decision, D.M. Best Co. v. Summit Worldwide, LLC, No. CIV. A. H-08-1279, 2009 WL 5061776 (S.D. Tex. Dec. 15, 2009). The DM. Best court found that a company hired to load equipment onto trailers for transportation by the carrier did not fall within the scope of the Carmack Amendment. Id. at *2. That decision, however, appears incorrect in the light of the plain language of the Amendment, which provides a non-exclusive list of “services” and also specifically enumerates "arranging for,” “handling,” “packing,” and "unpacking” as services within the purview of the Amendment. Further, the court relied on Camp v. TNT Logistics Corp., 553 F.3d 502, 508 (7th Cir. 2009), stating the “Seventh Circuit has held that a party who loaded the cargo did not provide 'services related to' the movement of the goods.” D.M. Best, 2009 WL 5061776 at *2. That appears to misread the Seventh Circuit's opinion; in fact, the Seventh Circuit grounded its decision on the fact that the party in question “was a third-party logistics company whose main focus was the timely and efficient procurement of auto parts.” Camp, 553 F.3d at 508. The opinion does not suggest that the logistics company actually engaged in the labor of loading the cargo.

      . Accord Hubbard v. All States Relocation Servs., Inc., 114 F.Supp.2d 1374, 1381 (S.D. Ga. 2000) ("[A] bill of lading is irrelevant to the applicability of the Carmack Amendment.”).

      . Heniff actually brought such a claim under the Carmack Amendment in addition to its state law claims. In so doing, it specifically alleged that Trimac was a "motor carrier” under the Carmack Amendment because the statute defines "transportation” to include "services related to [the] movement of [people or property].” Complaint ¶¶ 30-33. The district court dismissed the Carmack claim for failure to comply with procedural requirements. Heniff did not appeal that ruling but appealed only the ruling that the state law claims were Carmack-preempted. In so appealing, it argues that the Carmack Amendment never applied at all to this transaction. Although pleading in the alternative may be permissible, the irony of Heniff's alternative pleading glitters.

      . Because we hold that Heniff's claims are preempted based on the plain language of the statute, we need not consider Trimac’s alternative arguments that (1) Trimac was a "motor carrier” because it had a properly published tariff with the Surface Transportation Board and (2) Heniffs claims were precluded based on holdings reached by the district court in the case between Hartford (Heniff’s insurer) and Trimac.