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    EVERGREEN SQUARE OF CUDAHY, et al., Plaintiffs-Appellants, v. WISCONSIN HOUSING & ECONOMIC DEVELOPMENT AUTHORITY, Defendant/Third Party Plaintiff-Appellee. and Craig T. Clemmensen, Acting Secretary of the United States Department of Housing & Urban Development, Third Party Defendant-Appellee.
    No. 16-1475
    United States Court of Appeals, Seventh Circuit.
    Argued September 27, 2016
    Decided February 17, 2017

      Carl Coan, III, Attorney, Coan & Lyons, Washington, DC, K. Scott Wagner, Attorney, Wagner Law Group, S.C., Milwaukee, WI, for Plaintiffs-Appellants.
    Robert A. Jaffe, Barry Paul Steinberg, Attorneys, Kutak Rock LLP, Washington, DC, for Wisconsin Housing and Economic Development Authority.

      David DeCelles, Attorney, Department of Justice, Washington, DC, for Craig T. Clemmensen.
    Before BAUER, ROVNER, and HAMILTON, Circuit Judges.
   ROVNER, Circuit Judge.

Evergreen Square of Cudahy (“Evergreen Square”), Grant Park Square Apartments Company (“Grant Park”), and Washington Square Apartments Company (“Washington Square”) are property owners (collectively, “Owners”) who participated in the federal rental assistance program commonly known as “Section 8.” They sued the Wisconsin Housing and Economic Development Authority (‘Wisconsin Housing” or the “Authority”) for allegedly breaching the contracts that governed payments to the Owners under the program. Because Wisconsin Housing receives all of its Section 8 funding from the United States Department of Housing and Urban Development (“HUD”), the Authority filed a third-party breach of contract claim against HUD. The district court granted summary judgment in favor of Wisconsin Housing and dismissed the claims against HUD as moot. The Owners appeal and we affirm.

I.

The Section 8 program provides housing assistance payments “[f]or the purpose of aiding low-income families in obtaining a decent place to live and of promoting economically mixed housing[.]” 42 U.S.C. § 1437f(a). See also Cisneros v. Alpine Ridge Group, 508 U.S. 10, 12-14, 113 S.Ct. 1898, 123 L.Ed.2d 572 (1993) (explaining basic features of the Section 8 program). The program is administered by HUD in conjunction with public housing agencies. HUD enters into annual contribution contracts with public housing agencies, which in turn enter into contracts with property owners to make housing assistance payments that subsidize rentals for qualified tenants. Under these contracts, the tenants are required to pay a percentage of their income to the property owners, the housing agencies pay the remaining rent, and HUD reimburses the housing agencies. In areas where there are no public housing agencies, HUD enters into contracts directly with property owners in order to provide housing assistance payments. In this case, HUD contracted with Wisconsin Housing, which in turn entered into agreements with each of the Owners. The parties call the agreements between the state housing agencies and property owners “housing assistance payment contracts” or “HAP contracts” and we will follow that convention as well.

Section 8 provides that the HAP contracts will establish the maximum monthly rent which property owners are entitled to receive for each dwelling unit. 42 U.S.C. § 1437f(c)(l)(A). In addition to setting standards for the initial rent for subsidized units, Section 8 also dictates how rents may be adjusted in order to reflect changes in fair market rental values over time. The statute provides that a HAP contract “shall provide for adjustment annually or more frequently in the maximum monthly rents for units covered by the contract to reflect changes in the fair market rentals established in the housing area for similar types and sizes of dwelling units or, if the Secretary determines, on the basis of a reasonable formula.” 42 U.S.C. § 1437f(e)(2)(A). But Congress also imposed an overall limit on any increases, providing that rent adjustments “shall not result in material differences between the rents charged for assisted units and unassisted units of similar quality, type, and age in the same market area, as determined by the Secretary.” 42 U.S.C. § 1437f(c)(2)(C).

Even with these measures in place, the automatic rent increase system sometimes pushed rents well above market rates for comparable unsubsidized housing units. See One & Ken Valley Housing Group v. Maine State Housing Auth., 716 F.3d 218, 221 (1st Cir. 2013). When HUD tried to rein in the excess increases, lawsuits followed. In response to this litigation over HAP contracts, Congress amended Section 8, first in 1988 and again in 1994. As a result of the 1988 amendments, HUD or a public housing agency could deny an automatic annual rent adjustment at a Section 8 site by submitting a comparability study to the property owner at least sixty days before the adjustment was to take effect. One & Ken Valley, 716 F.3d at 221-22. This change led to more litigation by property owners who asserted that their HAP contracts entitled them to automatic annual adjustments without regard to comparability studies. The Supreme Court concluded that, under the overall limitations clause of the HAP contracts, property owners were not entitled to formula-based rent adjustments that materially exceed market rents for comparable units. Alpine Ridge, 508 U.S. at 21, 113 S.Ct. 1898. The Court also found that the overall limitation clause of the HAP contracts “affords the Secretary sufficient discretion to design and implement comparability studies as a reasonable means of effectuating its mandate.” Alpine Ridge, 508 U.S. at 21, 113 S.Ct. 1898; One & Ken Valley, 716 F.3d at 222.

In 1994, one year after the Alpine Ridge decision, Congress amended Section 8 again:

[WJhere the maximum monthly rent ... to be adjusted using an annual adjustment factor exceeds the fair market rental for an existing dwelling unit in the market area, the Secretary shall adjust the rent only to the extent that the owner demonstrates that the adjusted rent would not exceed the rent for an unassisted unit of similar quality, type, and age in the same market area, as determined by the Secretary.

42 U.S.C. § 1437f(c)(2)(A). Under the 1988 provision, HUD had the burden of producing a comparability study whenever it sought to withhold an automatic adjustment. The 1994 amendment shifted to the property owners the burden of demonstrating that adjusted rents would not exceed the market rent for comparable unassisted units. One & Ken Valley, 716 F.3d at 222.

In 1995, HUD issued Notice H 95-12 (“1995 Notice”) in order to provide housing authorities with guidelines for implementing the statutory changes. The 1995 Notice directed public housing authorities to consult HUD’s annual fair market rent charts for different unit types in different geographic regions. Where the automatic increase would result in a rent higher than the corresponding fair market value listed in HUD-published tables, the 1995 Notice directed public housing authorities to assume that the contract rent is above-market. But HUD also accounted for the fact that, under the overall limitation clause, landlords were entitled to receive above-market rents to the extent that those differences existed at the outset of their contracts:

HUD adopted an assumption that, from the outset, public housing agencies were paying Section 8 landlords 10 percent more than the fair market rents for comparable units.

As long as the difference between the adjusted rent and the fair market rent is less than this “initial difference,” Notice H 95-12 allows state and local housing agencies to continue to grant rent increases based on the automatic annual adjustment factors. However, if the difference between the adjusted rent and the HUD-published fair market rate rises to more than 10 percent of the initial contract rent, Notice H 95-12 instructs ■ housing authorities to deny further upward adjustments to Section 8 landlords. A Section 8 landlord can only escape from under this ceiling by submitting its own rent comparability study showing that, despite the discrepancy with HUD’s published fair market rents, the Section 8 unit is actually under-priced relative to comparable unsubsidized • units in the area.

One & Ken Valley, 716 F.3d at 223.

As part of the Section 8 program, each year, HUD publishes “annual adjustment factors” for specific geographic areas that reflect changes in the Consumer Price Index for rents and utilities over the prior year. See 24 C.F.R. §§ 888.201-204 (2012). Prior to the 1994 amendments, HUD published a single table to apply to all housing stock. After the 1994 amendments, HUD began publishing two tables each year, one for “turnover units,” and one for “non-turnover units.” The turnover rates apply to units occupied by a new tenant since the last annual contract anniversary date. The non-turnover rates apply to units occupied by the same tenant as the last contract anniversary date. The tables presume that the costs to landlords are lower when the same tenant stays in the unit, and so the non-turnover rates are one percent (.01) lower than the turnover rates.

To this point, we have described the general provisions at play in all Section 8 HAP contracts, and we now turn to the facts specific to this case. Evergreen Square owns a 105-unit housing project in Cudahy, Wisconsin. Evergreen Square’s HAP contract term began with a five-year term on April 1, 1977. The contract has been renewed seven times (in five year increments) and is set to expire on March 31, 2017. Grant Park owns a 153-unit project in South Milwaukee, Wisconsin. Grant Park’s initial five-year contract commenced on July 1, 1980 and was then renewed for five additional five-year terms, expiring on June 30, 2010. Washington Square owns an 88-unit project in Cudahy, Wisconsin. Washington Square’s initial twenty-year HAP contract went into effect on December 1, 1982, was renewed twice for five-year terms, and expired on November 30, 2012. Both the Evergreen Square and Grant Park HAP contracts provide that, on the anniversary daté, the contract rents “shall be adjusted by applying the applicable Automatic Annual Adjustment Factor most recently published by the Government.” Washington Square’s contract is slightly different. It provides that, “[u]pon request from the Owner to [Wisconsin Housing], Contract Rents will be adjusted on the anniversary date” of the HAP Contract “in accordance with 24 CFR Part 888 and this Contract. See, however, paragraph (d).” Paragraph (d) implemented the overall limitation provision of the- statute. A similar overall limitation paragraph appears in the contracts for Evergreen Square and Grant Park, but only Washington Square was required to ask for the automatic annual increase. From 2006 until the contract expired in 2012, Wisconsin Housing approved adjustments to Washington Square’s rents only when Washington Square submitted a rent adjustment request.

The Owners sued Wisconsin Housing in federal court for breaching the HAP contracts by failing to approve automatic rent increases for certain years, by requiring the Owners to submit comparability studies in order to receive increases, and by arbitrarily reducing the increases for non-turnover units by one percent. Wisconsin Housing filed a third-party suit against HUD, which provides all of the funding for the program. After the district court dismissed the suit for lack of federal jurisdiction, we reversed and remanded with instructions to reinstate the plaintiffs’ complaint. See Evergreen Square of Cudahy v. Wisconsin Housing & Econ. Dev. Auth., 776 F.3d 463 (7th Cir. 2015). We concluded that, although the breach of contract claims found their origins in state rather than federal law, the claims' belonged in federal court under the “special and small category of cases in which arising under jurisdiction still lies.” Evergreen Square, 776 F.3d at 465-66 (quoting Gunn v. Minton, — U.S. -, 133 S.Ct. 1059, 1064, 185 L.Ed.2d 72 (2013)).

On remand, the plaintiffs proceeded with three primary claims against Wisconsin Housing: (1) breach of Washington Square’s HAP contract for failing to automatically adjust contract rents on an annual basis; (2) breach of all the Owners’ HAP contracts for employing a one percent reduction on the rent adjustments for non-turnover units; and (3) declaratory judgment to determine whether Wisconsin Housing could require, under Evergreen Square’s HAP contract, rent comparability studies as a prerequisite to receiving rent adjustments or employ a one percent reduction for rent adjustments on non-turnover units. For the third-party claims against HUD, the court allowed Wisconsin Housing to proceed on claims for breach of the annual contributions contracts and declaratory judgment to determine Wisconsin Housing’s rights and obligations under the 1994 amendments. After all parties moved for summary judgment, the district court granted judgment in favor of Wisconsin Housing on all of the Owners’ claims, and dismissed the third party claims against HUD as moot. The Owners appeal.

II.

On appeal, the Owners contend that Washington Square should not be held to the contract provision requiring it to request an annual adjustment before receiving one. They contend that Washington Square should be excused from complying with this contract term because: (1) enforcing the provision would result in a disproportionate forfeiture; and (2) Wisconsin Housing breached the Washington Square HAP contract by requiring a rent comparability study as a prerequisite to receiving an increase. The Owners also argue that the district court erred in upholding the one percent reduction for rent increases in non-turnover units, maintaining that the adjustments must be made on a reasonable basis and the one percent reduction is arbitrary. Our review ⅝ of the district court’s grant of summary judgment is de novo. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Yahnke v. Kane County, Ill., 823 F.3d 1066, 1070 (7th Cir. 2016). Summary judgment is appropriate when there are no genuine disputes of ' material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson, 477 U.S. at 255, 106 S.Ct. 2505; Yahnke, 823 F.3d at 1070.

A.

The district court noted that “[t]he parties do not dispute the application of Wisconsin law to the parties’ state-law breach of contract claim.” Evergreen Square of Cudahy v. Wisconsin Housing & Econ. Dev. Auth., 2016 WL 53871, *8 n.19 (E.D. Wis. Jan. 4, 2016). The court cited Grable & Sons Metal Products, Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 320, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005), for the proposition that the Supreme Court expressly contemplated the application of state law in these circumstances. In their opening brief, the Owners assumed (without arguing) that Wisconsin law would apply to the contract-based claims. Wisconsin Housing also assumed in its response brief that Wisconsin law would apply to any state-law breach-of-contract claim, citing our earlier opinion regarding jurisdiction. See Evergreen Square, 776 F.3d at 465 (where we referred to the plaintiffs’ claims as “state-law breach-of-contract claims”).

■ But HUD took another view. In its response brief, HUD asserts that the enforcement of Section 8 HAP contracts is a question of nationwide applicability that must be governed by federal common law. In a footnote, HUD cited United States v. Kimbell Foods, Inc., 440 U.S. 715, 728, 99 S.Ct. 1448, 59 L.Ed.2d 711 (1979), and Price v. Pierce, 823 F.2d 1114, 1120 (7th Cir. 1987), in support. Kimbell Foods noted that “federal law governs questions involving the rights of the United States arising under nationwide federal programs.” 440 U.S. at 726, 99 S.Ct. 1448. However:

Controversies directly affecting the operations of federal programs, although governed by federal law, do not inevitably require resort to uniform federal rules. Whether to adopt state law or to fashion a nationwide federal rule is a matter of judicial policy dependent upon a variety of considerations always relevant to the nature of the specific governmental interests and to the effects upon them of applying state law.

Kimbell Foods, 440 U.S. at 727-28, 99 S.Ct. 1448 (omitting internal citations and quotation marks). In determining whether state or federal law should apply in such circumstances, the Court considered whether the federal program at issue should be, by its nature, uniform in character throughout the nation; whether the application of state law would frustrate specific objectives of the federal program; and whether the application of a federal rule would disrupt commercial relationships predicated on state law. Kimbell Foods, 440 U.S. at 728-29, 99 S.Ct. 1448.

In Price, we considered a suit brought by prospective tenants of Section 8 housing against a property owner that had a contract with the Illinois Housing Development Authority. The would-be tenants were turned away.by the property owner, allegedly in violation of a contract between the owner and the housing authority to reserve a percentage of units for low-income tenants in exchange for mortgage subsidies the owner received. The question was “what remedies shall be available for breach of a contract designed to effectuate the program of economically mixed housing.” Price, 823 F.2d at 1120. We decided ultimately that federal law should apply:

The argument for a federal rule is particularly strong in these housing cases; as we suggested earlier, it would be odd to think that a suit by tenants and applicants for federally subsidized housing against developers of such housing for breach of contracts approved by HUD and fundamental to the achievement of HUD’s objectives under section 1437f would have to be brought in state court and decided in accordance with state contract law.

Price, 823 F.2d at 1120. See also Holbrook v. Pitt, 643 F.2d 1261, 1270 n.16 (7th Cir. 1981) (concluding in a suit interpreting HUD contracts that “[fjederal common law applies to plaintiffs’ third-party beneficiary claims since a federal agency is a party to the action and since the outcome of this case will directly affect substantial financial obligations of the United States.”).

Although HUD clearly relied on Kimbell Foods and Price, two arguably controlling cases, in their reply, the Owners chastise HUD for “[cjiting no authority for its position.” Reply Brief at 3 n.2. In this undeveloped, footnoted argument, the Owners ton to Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 641, 101 S.Ct. 2061, 68 L.Ed.2d 500 (1981), in support of a bald claim that federal common law is applied only in exceptional circumstances and that this case is not one of them. In fact, in Texas Industries, the Court opined that:

federal common law exists only in such narrow areas as those concerned with the rights and obligations of the United States, interstate and international disputes implicating the conflicting rights of States or our relations with foreign nations, and admiralty cases. In these instances, our federal system does not permit the controversy to be resolved under state law, either because the authority and duties of the United States as sovereign are intimately involved or because the interstate or international nature of the controversy makes it inappropriate for state law to control.

451 U.S. at 641, 101 S.Ct. 2061. Given that the United States would be obligated to reimburse the state housing authority for rent increases, and given that a federal statute controls much of the language of HAP contracts, this passage arguably supports the application of federal common law. As we noted in Price, it would be peculiar to construe, contracts that are approved by HUD, and that are fundamental to the success of HUD’s objectives under Section 8, in accordance with state contract law. Application of state law to the standardized language of the HAP contracts and resort to state law defenses to breaches of HUD contracts could lead to a lack of uniformity in this nation-wide program that is largely dependent on federal funding.

So after the district court thought the choice-of-law matter resolved, we are left on appeal with a war waged in footnotes on a complex issue. A party may waive an argument by presenting it only in an undeveloped footnote. United States v. Warner, 792 F.3d 847, 856 (7th Cir. 2015); Harmon v. Gordon, 712 F.3d 1044, 1053 (7th Cir. 2013). Moreover, none of the parties briefed the question of whether there is a difference between federal common law and Wisconsin law that would affect the outcome here. As we conclude below, however, the choice of law applicable to the breach of contract claims does not affect the outcome here. See also Eriem Surgical, Inc. v. United States, 843 F.3d 1160, 1161 (7th Cir. 2016) (noting that one might infer from Kimbell Foods that, in determining which law governs corporate successorship when the dispute concerns debts to the national government, federal law controls but generally absorbs state law unless it is hostile to national interests, but also noting that the Supreme Court has reserved the issue).

B.

We begin with Washington Square’s claim that it should not be held to the language in its HAP contract providing that rents would be adjusted annually “upon request from the Owner.” From 2006 to 2012, Wisconsin Housing adjusted Washington Square’s rents only when Washington Square submitted a rent adjustment request to the Authority. Washington Square contends that it should be excused from the requirement of requesting the annual adjustment because holding it to this term would result in a “disproportionate forfeiture.” Washington Square cites Restatement (Second) of Contracts § 229 (Excuse of a Condition to Avoid Forfeiture) in support of this argument:

To the extent that the non-occurrence of a condition would cause disproportionate forfeiture, a court may excuse the nonoccurrence of that condition unless its occurrence was a material part of the agreed exchange.

Washington Square asserts that if the court holds it to the contract term requiring it to ask for a rent adjustment before receiving one, it will lose some $400,000 in revenue, a result it characterizes as a “disproportionate forfeiture.” Washington Square argues that adherence to this term of the contract may be excused because it is not a material term of the agreement and it provides no pecuniary benefit to Wisconsin Housing.

In making this argument, the Owners (who insist that Wisconsin law applies) concede that the “doctrine of disproportionate forfeiture is not well-developed in Wisconsin.” That is an understatement: none of the parties were able to find a case where a Wisconsin court relied on section 229 to decide an issue. Nor is there any indication in the case law that this section of the Restatement has been adopted into the federal common law of contracts. In any case, as the district court explained, section 229 of the Restatement does not apply here, and cannot be used to excuse Washington Square’s failure to perform under the HAP contract.

First, application of section 229 is discretionary and so Washington Square would have to demonstrate on appeal that the court abused its discretion in refusing to apply the doctrine. See Restatement (Second) of Contracts § 229, cmt. b (noting that the rule is a flexible one and stating that “its application is within the sound discretion of the court.”). The district court declined to apply section 229 here because the court concluded that the HAP contract’s “request” provision was a material term. The court noted that the language of the contract requiring Washington Square to request an adjustment was an unambiguous condition precedent, and Washington Square failed to fulfill this requirement in the pertinent years. See Haddon Housing Assocs., L.P. v. United States, 711 F.3d 1330, 1336-40 (Fed. Cir. 2013) (treating the HAP contract provision requiring an owner to request an increase before receiving one as a clear and enforceable condition precedent). In fact, the Owners conceded that Wisconsin Housing did not deny any of Washington Square’s requests for a rent adjustment, and the only years in which Washington Square did not receive an adjustment were those in which it did not submit a request. As the district court noted, rent requests set into motion a time and labor intensive process, and so this was not a mere technical term. See 2002 Notice (describing the process for adjustment of contract rents). In short, the parties treated the requirement as a material term, it was a material term, and section 229 of the Restatement cannot, therefore, be applied to excuse it. There was no abuse of discretion in that decision.

Section 229 also does not apply because there is no forfeiture in play here. “ ‘[Forfeiture’ is used to refer to the denial of compensation that results when the obligee loses his right to the agreed exchange after he has relied substantially, as by preparation or performance on the expectation of that exchange.” Restatement (Second) of Contracts, § 229, cmt. b. Washington Square does not point to any evidence that it took any action in substantial reliance on the expectation of rent increases. As is apparent from the consistent practice of the parties, Washington Square knew it would not receive an increase unless, as required by the HAP contract, it requested one. Reliance on an unrequested increase would not have been reasonable under the circumstances.

Washington Square also asserts that it was excused from the condition precedent of requesting an increase because Wisconsin Housing breached the contract by requiring rent comparability studies prior to receiving an increase. Relying on the Federal Circuit’s opinion in Haddon, Washington Square asserts that Wisconsin Housing’s implementation of the 1994 amendments is a breach of the HAP contract. But the HAP contract in Haddon was executed in 1981 with a thirty-year term. 711 F.3d at 1334. The 1994 amendments came in the midst of that term and the implementation of those amendments in the middle of the term arguably breached the HAP contract as it was originally written. Washington Square fails to acknowledge that its original HAP contract expired in 2002, and that the 1994 amendments became a part of the HAP contract when it was renewed that year. See Norfolk & Western, 499 U.S. at 130, 111 S.Ct. 1156 (noting that laws in existence at the time and place of the making of a contract are incorporated into the terms of the contract); Dairyland Greyhound Park, 719 N.W.2d at 432 (same). Haddon is thus distinguishable on the facts because the 1994 amendments were applied in that case to a contract that predated the passage of the law.

But assuming for the sake of argument that the implementation of the 1994 amendments was a breach of Washington Square’s HAP contract, even Haddon does not support Washington Square’s contention that the breach excused it from complying with the condition precedent. Haddon, 711 F.3d at 1338 (“We find, however, that HUD’s insistence on comparability studies, though a breach of the HAP contract, does not operate to excuse Haddon’s failure to make the requests for adjustments required under § 2.7(b) of the HAP Contract.”). The Haddon court rejected any claim that performance of the condition precedent was excused by HUD’s alleged breach because the property owner failed to demonstrate that HUD took any action that prevented or hindered the owner’s ability to make a request for a rent adjustment. The same rationale applies here. Wisconsin Housing did nothing to prevent Washington Square from making the request for an increase. As in Haddon, there was no allegation that Wisconsin Housing refused to process requests or threatened to penalize Washington Square for making requests unsupported by a rent comparability study. To the contrary, in years where Washington Square made the request for an adjustment, Wisconsin Housing granted those requests without requiring a rent comparability study.

Finally, the district court found it unnecessary to decide Washington Square’s argument that the Authority repudiated the HAP contract by requiring rent comparability studies. The court concluded that the argument was unsupported by the record because Washington Square had conceded that it did not submit any rent comparability studies to Wisconsin Housing during the limitations period, and yet received certain rent adjustments nonetheless. Washington Square’s argument was thus reduced to a claim that, if it had submitted a request for a rent increase, it may have been denied the increase absent a rent comparability study, if gross rents exceeded fair market value. The district court, noting the many uncertainties and gaps in the record, characterized this as a skeletal argument that need not be decided. See United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (finding that an undeveloped claim is not preserved). We agree. But for the sake of completeness, we also note that, having elected to continue with the contract in the face of Wisconsin Housing’s alleged breach, Washington Square was still bound by the terms of the deal, including the condition precedent. Haddon, 711 F.3d at 1339 (where the owner elected to pursue a claim for partial breach and the government continued performing, the owner cannot then refuse to perform its obligations under the contract). If a party to a contract breaks it, the other party can abandon the contract (unless the breach is very minor) and sue for damages, or it can continue with the contract and sue for damages. But if it makes the latter election, it is bound to the obligations that the contract imposes on it. Emerald Invs. Ltd. P’ship v. Allmerica Fin. Life Ins. & Annuity Co., 516 F.3d 612, 618 (7th Cir. 2008). Because Washington Square continued with the contract in the face of Wisconsin Housing’s alleged breach, Washington Square was bound by the obligations of the contract, including the requirement that it request an adjustment of rent.

C.

Finally, all of the Owners challenge the district court’s determination that Wisconsin Housing did not breach any HAP contracts by applying a one percent reduction for non-turnover units when calculating rent adjustments. The Evergreen Square and Grant Park HAP contracts provide that contract rents “shall be adjusted by applying the applicable Automatic Annual Adjustment Factor most recently published by the Government.” The Washington Square HAP contract specifies that rents will be adjusted “in accordance with 24 C.F.R. Part 888 and this Contract.” Prior to 1995, HUD published one table each year in the Federal Register, listing adjustment factors used to determine rent increases. The same rate was applied to turnover and non-turnover units. But with the 1994 amendments, Congress implemented a mandatory one percent reduction in the annual adjustment factor for non-turnover units:

for any unit occupied by the same family at the time of the last annual rental adjustment, where the assistance contract provides for the adjustment of the maximum monthly rent by applying an annual adjustment factor and where the rent for a unit is otherwise eligible for an adjustment based on the full amount of the factor, 0.01 shall be subtracted from the amount of the factor, except that the factor shall not be reduced to less than 1.0.

42 U.S.C. § 1437f(c)(2)(A). At the time each Owners’ HAP contract was initially executed, the statute provided only that the adjustments reflect fair market rents in the housing area for similar types and sizes of dwelling units, or that the new rents be calculated on the basis of a reasonable formula. The Owners assert that the later-implemented one percent reduction for non-turnover units is not based on fair market rents and is not calculated on the basis of a reasonable formula. Rather, they characterize the reduction as arbitrary and in breach of the HAP contracts.

As with the other arguments regarding breach of contract, the Owners do not take into account that, although a different version of the statute was in place at the time the HAP contracts were originally executed, all of the original contracts expired and were renewed before the time period for which they are now claiming damages. In particular, Evergreen Square entered into its first HAP contract on April 1, 1977 for a term of five years. The contract was then renewed for seven additional five-year terms, with an expiration date of March 31, 2017. Grant Park’s initial HAP contract became effective July 1, 1980, with an initial contract term of five years. It was subsequently renewed for five additional five-year terms. And Washington Square’s HAP initial contract became effective December 1, 1982, with a term of twenty years. It was then renewed for two additional five year terms. The Owners filed suit in June 2013, and the statute of limitations is six years. The 1994 amendments went into effect in 1995, and therefore each owner renewed its HAP contract after the 1994 amendments and before the first date for damages under the statute of limitations. Because laws which exist at the time of the making of a contract enter into and form a part of it as fully as if they had been expressly referred to or incorporated in its terms, the 1994 amendments became part of each contract that was renewed after the 1994 amendments became effective. Norfolk & Western Ry. Co., 499 U.S. at 130, 111 S.Ct. 1156; Farmers’ & Merchants’ Bank, 262 U.S. at 660, 43 S.Ct. 651; Dairyland Greyhound Park, 719 N.W.2d at 432. This means that Wisconsin Housing did nothing more than apply the law that was in effect wheh the HAP contracts were renewed. Because that law was incorporated into the contracts, the Authority’s implementation of the statute’s one percent reduction for non-turnover units could not breach any of the contracts.

The district court rejected the Owners’ challenge to the one percent reduction for a slightly different reason. The district court found that Wisconsin Housing was required by the HAP contracts and by law to use the tables published by HUD. It was HUD, not Wisconsin Housing, that published the table reflecting the one percent reduction for non-turnover units. The HAP contracts for Evergreen Square and Grant Park stated that annual rent adjustments must be calculated “by applying the applicable Automatic Annual Adjustment Factor most recently published by the Government.” The HAP contracts make clear that it is HUD’s responsibility to determine the applicable adjustment factors. For Washington Square, the HAP contract provided that rents would be adjusted “in accordance with 24 C.F.R. Part 888 and this Contract.” Under 24 C.F.R. Part 888, HUD is charged with the duty of creating and publishing the applicable adjustment factors. Wisconsin Housing had no role in setting the adjustment rates and no discretion to override HUD’s published numbers. The district court concluded that Wisconsin Housing’s reliance on HUD’s published table for non-turnover units was not only permissible, it was obligatory under the language of the contracts. District courts deciding whether a state housing agency breached a HAP contract by applying the one percent reduction for non-turnover units have uniformly rejected the property owners’ claims. Cathedral Square Partners Ltd. P’ship v. South Dakota Housing Dev. Auth., 2011 WL 43019, *14-*18 (D.S.D. Jan. 5, 2011); Greenleaf L.P. v. Illinois Housing Dev. Auth., 2010 WL 3894126, *6-*8 (N. D. Ill. Sept. 30, 2010). The only courts to hold to the contrary involved HUD as the defendant in the breach of contract case. Haddon, 711 F.3d at 1336; Statesman II Apartments, Inc. v. United States, 66 Fed.Cl. 608, 625 (2005). In essence, the district court concluded that the Owners sued the wrong party when they took aim against Wisconsin Housing rather than HUD. Wisconsin Housing could not be held liable for breach because the Authority was simply complying with federal mandates enacted by HUD. In any case, though, because the Owners’ HAP contracts were renewed after Congress amended Section 8 to reflect the one percent reduction, the amendments became part of the contracts. Enforcement of the one percent statutory mandate could not constitute a breach of contract under those circumstances.

III.

In sum, Washington Square was not excused from complying with the HAP contract condition precedent requiring it to request a rent increase. The doctrine of disproportionate forfeiture simply does not apply under these facts. Moreover, Wisconsin Housing did not breach any HAP contracts by requiring rent comparability studies in certain circumstances or by applying a one percent reduction for non-turnover units. In each instance, the Owners’ contracts were renewed after Congress amended Section 8 to include these provisions, and the provisions became part of the new contracts. Because the Owners’ primary claims fail, we agree with the district court that the third-party claims against HUD are moot.

AFFIRMED.

      . “Unit type” refers to the size of the housing unit. Unit types include efficiency, one-bedroom, two-bedroom, three-bedroom and four-bedroom units.

      . Since 1995, successive HUD publications have carried forward the implementation of these policies. As of the time the district court ruled, Notice H 2002-10 ("2002 Notice”) was the most recent of the notices.

      . Specifically, the district court cited Justice Thomas's concurrence, where he stated, ”[t]he Court faithfully applies our precedents interpreting 28 U.S.C. § 1331 to authorize federal-court jurisdiction over some cases in which state law creates the cause of action but requires determination of an issue of federal law[.]" Grable & Sons, 545 U.S. at 320, 125 S.Ct. 2363 (Thomas, J., concurring). The court may have over read the import of the concurrence, which does not seem to "expressly” contemplate application of state law in-these circumstances. The decision focuses on whether federal jurisdiction exists in a case requiring the court to interpret a federal tax provision in the context of a state court suit to quiet title. The Court did not directly answer the question presented here.

      . Although we characterized, the plaintiffs’ complaint as presenting "state-law breach-of-contract claims,” we did not address whether Wisconsin law should be applied.

      . Washington Square asserts that the procedures set forth in the 2002 Notice could not fairly apply to a contract executed in 1982. But Washington Square fails to note that the original term of the contract was twenty years, expiring in 2002. The agreement was then renewed twice for two additional five year terms, until its expiration in 2012. Washington Square is suing for rent increases during the extended term, when the 2002 Notice was in effect. Moreover, Washington Square’s claims for damages are cabined by the statute of limitations. The date of the earliest breach for which Washington Square may recover is December 1, 2007, which is well after the 2002 contract renewal. Norfolk & Western Ry. Co. v. American Train Dispatchers Ass’n, 499 U.S. 117, 130, 111 S.Ct. 1156, 113 L.Ed.2d 95 (1991) ("Laws which subsist at the time and place of the making of a contract, and where it is to be performed, enter into and form a part of it, as fully as if they had been expressly referred to or incorporated in its terms. This principle embraces alike those laws which affect its construction and those which affect its enforcement or discharge.”); Farmers' & Merchants’ Bank of Monroe, N.C. v. Federal Reserve Bank of Richmond, Va., 262 U.S. 649, 660, 43 S.Ct. 651, 67 L.Ed. 1157 (1923) (same); Dairyland Greyhound Park, Inc. v. Doyle, 295 Wis.2d 1, 719 N.W.2d 408, 432 (2006).

      . In Haddon, the Federal Circuit characterized the length of the HAP contract as "for a maximum term of 30 years.” See also Haddon Housing Assocs., LLC v. United States, 99 Fed. Cl. 311, 316 (2011) (noting that Haddon leased its property to the housing authority for a thirty-year term).

      . The Federal Circuit concluded that HUD's implementation of the 1994 amendments constituted a breach of the Haddon HAP contract. 711 F.3d at 1336. Haddon is distinguishable from the instant case because the changes effected by the 1994 amendments came in the middle of the contract term, and because Haddon sued HUD directly rather than the local housing authority. We do not decide today whether the 1994 amendments would breach a HAP contract if the changes were implemented in the middle of a contract term or if an owner sued HUD directly. That is simply not the situation here, and so our decision is not in conflict with that of the Federal Circuit.

      . We note again that Haddon is further distinguishable because the HAP contract was executed in 1981 for a thirty-year term. Congress amended Section 8 during the term of the contract to require the one percent reduction for non-turnover units, changing the terms of the deal in the middle of the contract term. In the instant case, the contracts were renewed after Congress amended the statute, and the amendments were thereby swept into the contracts.


source: Caselaw Access Project

author: RILEY, Chief Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Corey Victor BEVINS, Defendant-Appellant.
    No. 15-3986
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 21, 2016
    Filed: February 14, 2017

      Deidre Yvonne Aanstad, Lisa D. Kirkpatrick, Assistant U.S. Attorneys, U.S. Attorney’s Office, for Plaintiff-Appellee.
    Paul C. Engh, Minneapolis, MN, for Defendant-Appellant.
    Corey Victor Bevins, Pro Se.
    Before RILEY, Chief Judge, WOLLMAN and BENTON, Circuit Judges.
   RILEY, Chief Judge.

Corey Bevins pled guilty to production of child pornography in violation of 18 U.S.C. § 2251(a) and (e), receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2) and (b)(1), and possession of child pornography in violation of 18 U.S.C. §§ 1151, 2252(a)(4)(A), and 2252(b)(2). The district court sentenced Bevins to 300 months in prison after varying downward from Bevins’s advisory Guidelines range of 720 months. On appeal, Bevins contends the district court procedurally erred by improperly calculating his Guidelines range and failing adequately to explain his 300-month sentence at the sentencing hearing. Bevins also asserts his sentence is substantively unreasonable. We do not find merit in any of Bevins’s challenges. Therefore, we affirm his sentence. See 28 U.S.C. § 1291 (appellate jurisdiction).

I. BACKGROUND

In April 2013, law enforcement agents discovered a host computer they believed contained child pornography files. The computer’s IP address was tracked , to a residence in northwest Minnesota where Bevins, then age 37, lived with his mother and her husband. In January 2014, officers executed a search warrant on the property and seized four computer towers, an SD memory card, a USB drive, a cell phone, and 73 CDs that belonged to Bevins. The memory card contained five videos and seven images of Bevins engaged in sexual acts with known minors, including nine-year-old M.B., a daughter of Bevins’s cousin. Bevins was arrested and confessed to having a six-month “relationship” with M.B. “a couple years ago,” engaging in sexual conduct with M.B., and recording M.B. engaged in sexual conduct with him on multiple occasions. Officers later found an additional 60 images and 269 videos of child pornography, which Bevins admitted he knowingly downloaded from the internet.

The government filed a superseding indictment in April 2015, charging Bevins with nine counts: counts 1 and 2 for production of child pornography, see 18 U.S.C. § 2251(a), (e); count 3 for attempted production of child pornography, see id.; counts 4 through 8 for receipt of child pornography, see id. § 2252(a)(2), (b)(1); and count 9 for possession of child pornography, see id. §§ 1151, 2252(a)(4)(A), (b)(2). Bevins pled guilty to counts 2 (production), 5 (receipt), and 9 (possession), in exchange for the government dismissing the remaining six counts. In the plea agreement, Bevins further admitted he “used and attempted to use the same known victim to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct on two additional occasions.” The plea agreement made clear this “[would] be considered relevant conduct for sentencing purposes.”

The presentence investigation report (PSR) assessed Bevins’s conduct and the plea agreement under the advisory United States Sentencing Guidelines (Guidelines or U.S.S.G.), and recommended a prison sentence of 720 months. Bevins objected to several enhancements and adjustments applied in the PSR. Specifically, Bevins disputed the five levels added for patterned behavior, see U.S.S.G. § 2G2.2(b)(5), the five levels added for Be-vins being a repeat and dangerous sex offender, see id. § 4B1.5(b)(l), the four levels added for sadistic or masochistic behavior, see id. § 2G2.1(b)(4), and the three levels added as a result of the PSR not grouping the production and attempted production counts, see id. § 3D1.4. Bevins also asked the district court to vary downward given “[i]ndividualize[d] consideration[s],” and because “the child pornography guidelines are essentially unworkable” and “without empirical basis.” Bevins suggested a 180-month sentence — the statutory minimum if all sentences ran concurrently — would be “more than sufficient.” See 18 U.S.C. §§ 2251(e), 2252(b), 3553(a). While the government agreed a downward variance was appropriate, it advocated for a below-Guidehnes sentence of 360 months.

At the sentencing hearing, the district court reported it had reviewed the PSR and the parties’ position papers regarding Bevins’s objections and the sentencing factors. After listening to the parties’ oral arguments, the district court overruled all objections to the PSR and sentenced Be-vins as follows:

Well, taking into account the 3553(a) factors, it’s my judgment that a total sentence in this case, and I’ll break it down, of 25 years in prison meets the objectives of 3553(a). And that will be a sentence of 15 years on Count 2, 5 years on Count 5, 5 years on Count 9, all to run consecutively for a total of a 25-year [300-month] sentence.

On appeal, Bevins challenges his Guidelines range, the adequacy of the district court’s explanation regarding the § 3553(a) factors, and the substantive reasonableness of his sentence.

II. DISCUSSION

In reviewing Bevins’s sentence, we “must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). If the district court’s sentencing decision is free of procedural error, we “then consider the substantive reasonableness of the sentence imposed.” Id. Bevins makes several arguments which we address in turn.

A. Guidelines Calculations

Bevins first argues the district court procedurally erred by improperly calculating his Guidelines range. “[W]e review the district court’s application of the Guidelines de novo.” United States v. Poe, 764 F.3d 914, 917 (8th Cir. 2014). We begin by noting we need not address Bevins’s challenges to the calculation of his adjusted offense level for the receipt and possession counts — namely, that a four-level enhancement for committing an offense that involved “material that portrays ... sadistic or masochistic conduct” under § 2G2.2(b)(4) was unwarranted, that his conduct was too “sporadic” to support a five-level enhancement for “engaging] in a pattern of activity” under § 2G2.2(b)(5), and that adding five levels under § 4B1.5(b)(l) for being a “repeat and dangerous sex offender” resulted in an impermissible “double count” when paired with the pattern enhancement. These issues had no impact on Bevins’s Guidelines range. The receipt and possession counts were grouped with the production count to which Bevins pled guilty. See U.S.S.G. § 3D1.2(c). And the production count had a higher adjusted offense level and controlled for purposes of calculating Bevins’s Guidelines range. See id. § 3D1.3, .4. The receipt and possession counts (along with the challenged increases) became irrelevant as a practical matter. See Fed. R. Crim. P. 52(a) (harmless error).

We proceed to Bevins’s argument that he should not have received a five-level enhancement for being a “repeat and dangerous sex offender” because § 4B1.5(b)(l) “should” require proof of a prior conviction. The Guidelines reject Be-vins’s proposed reading. The five-level increase under § 4B1.5(b)(l) applies when “the defendant engaged in a pattern of activity involving prohibited sexual conduct.” A pattern exists if the defendant engaged in such conduct “on at least two separate occasions ... without regard to whether the occasion ... resulted in a conviction.” U.S.S.G. § 4B1.5 cmt. n.4(B); see also United States v. Godsey, 690 F.3d 906, 910 (8th Cir. 2012) (“Unless an Application Note is clearly erroneous or in conflict with the Constitution, a federal statute, or the guideline itself, the note is binding on a district court.”). The PSR noted “Bevins created at least two videos depicting child pornography on separate dates” and admitted to engaging in prohibited sexual conduct on multiple occasions. This conduct is sufficient to make Bevins a repeat and dangerous sex offender triggering § 4B1.5(b)(l).

We also find the four-level enhancement under § 2G2.1(b)(4) warranted because, as the enhancement requires, “the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence.” The Guidelines do not define these terms, but we have previously held images showing an adult male engaging (or attempting to engage, in) intercourse or oral sex with a minor were included within the provision’s scope. See, e.g., United States v. Diaz, 368 F.3d 991, 992 (8th Cir. 2004). Bevins produced videos showing him attempting to penetrate and penetrating M.B. despite her resistance. The videos plainly constitute material that warranted the four-level enhancement under § 2G2.1(b)(4).

Lastly, the PSR added three levels to Bevins’s combined offense level under § 3D1.4 because, although Bevins pled guilty to only one production count, he stipulated to the conduct that gave rise to the dismissed production and attempted production counts. See U.S.S.G. § lB1.2(c). Bevins proposes the three production counts should have been grouped because they “involved the same victim, the same pattern,” and “ ‘substantially the same harm’ ” such that they should have been grouped under § 3D1.2. Our precedent forecloses this proposition. Each time Bevins produced videos of M.B. engaged in sexual conduct, “he inflicted a separate and distinct harm upon that child; therefore, his actions cannot be considered substantially the same harm for grouping purposes under § 3D1.2.” United States v. Kiel, 454 F.3d 819, 822 (8th Cir. 2006); see also U.S.S.G. § 3D1.2 cmt. n.4. Bevins’s total offense level and Guidelines range were correctly calculated.

B. Record Adequacy

Bevins also claims the district court “fail[ed] to make an adequate record” of why the 300-month sentence “is justified” in light of the factors listed in 18 U.S.C. § 3553(a). It is of course true a district court is required to consider the § 3553(a) factors and “must adequately explain the chosen sentence to allow for meaningful appellate review.” Gall, 552 U.S. at 50, 128 S.Ct. 586; see 18 U.S.C. § 3553(c); Rita v. United States, 551 U.S. 338, 356-59, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). It is also true the sentencing explanation in this case was succinct, and the district court “might have said more.” Rita, 551 U.S. at 358-59, 127 S.Ct. 2456 (“He must have believed that there was not much more to say.”). Bevins did not object to the adequacy of the district court’s explanation at the sentencing hearing and raises this claim for the first time on appeal. The government cites United States v. Maxwell, 778 F.3d 719, 734 (8th Cir. 2015), to argue such failure to object waives the issue; however, a subsequent opinion clarified we do “routinely ... conduct ] plain-error review of claims that a district court failed adequately to explain a chosen sentence.” United States v. Chavarria-Ortiz, 828 F.3d 668, 671 (8th Cir. 2016); cf. Maxwell, 778 F.3d at 734-35 (applying plain-error review despite declaring the court would “not sustain a procedural challenge ... by a defendant who did not object to the adequacy of the court’s explanation at sentencing”). “As a practical matter, however, a forfeited challenge to the adequacy of a district court’s explanation for a sentence ... faces long odds.” Chavarria-Ortiz, 828 F.3d at 671.

We start with the well-settled principle that when considering the § 3553(a) factors, “[a] district court is not required to make specific findings; all that is generally required to satisfy the appellate court is evidence that the district court was aware of the relevant factors.” United States v. Perkins, 526 F.3d 1107, 1110 (8th Cir. 2008). Here there can be no doubt the district court was aware of, and indeed considered and applied, the § 3553(a) factors — this is made obvious by the fact the district court did vary downward. Furthermore, the district court had at its disposal the PSR, which discussed the § 3553(a) factors and “contained] extensive information regarding [Bevins], his history and characteristics, the nature and circumstances of the offense, the kinds of sentences available, and a recommended advisory sentencing guidelines range, all of which are factors under § 3558(a).” United States v. Jones, 493 F.3d 938, 941 (8th Cir. 2007), vacated, 552 U.S. 1091, 128 S.Ct. 928, 169 L.Ed.2d 719, mid reinstated per curiam, 275 Fed.Appx. 561, 562 n.2 (8th Cir. 2008). The district court also noted on the record that it read the parties’ position papers regarding the § 3553(a) factors, and the district court listened to the parties’ oral arguments at the hearing. See United States v. Johnson, 619 F.3d 910, 922 (8th Cir. 2010) (“[T]he district court was aware of [defendant’s] arguments, and we therefore presume that the district court considered and rejected them.”). Be-vins “points to nothing to suggest a reasonable probability that the district court would have imposed a more lenient sentence if the court had elected to discuss the appropriateness of the sentence at greater length.” Chavarria-Ortiz, 828 F.3d at 672. In light of all these reasons we are convinced the district court’s explanation, though brief, was not so plainly inadequate as to warrant reversal.

C. Sentence Reasonableness

Having found no procedural error, we are left with Bevins’s contention that his sentence is substantively unreasonable. We review the substantive reasonableness of a sentence “under a deferential abuse-of-discretion standard.” Gall, 552 U.S. at 41, 128 S.Ct. 586. Here, the district court sentenced Bevins to 300 months in prison — a term 420 months' (35 years) shorter than his advisory Guidelines range. After Gall, it is an “ ‘unusual case when we reverse a district court sentence ... as substantively unreasonable,’ ” United States v. Feemster, 572 F.3d 455, 464 (8th Cir. 2009) (en banc) (quoting United States v. Gardellini, 545 F.3d 1089, 1090 (D.C. Cir. 2008)), and it is “nearly inconceivable” that a sentence is so high as to be substantively unreasonable and constitute an abuse of discretion when the district court imposed a below-Guidelines sentence, United States v. Lazarski, 560 F.3d 731, 733 (8th Cir. 2009). The sentence imposed was not unreasonably high.

III. CONCLUSION

We affirm.

      . The Honorable Richard H. Kyle, United States District Judge for the District of Minnesota.

      . Bevins's total offense level exceeded the level recognized by the Guidelines, and thus was reduced from 49 to 43. See U.S.S.G. ch. 5, pt. A, cmt. n.2. The Guidelines range was life imprisonment, but the combined maximum term allowed under the statutes was 720 months. See 18 U.S.C. §§ 2251(e), 2252(b); U.S.S.G. ch. 5, pt. A.


author: BENTON, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee v. Antonio Karlos THIGPEN, also known as Antionio Karlos Thigpen, also known as Hustler, also known as Tone Cappone, also known as Tone, also known as Tonio, Defendant-Appellant
    No. 16-2482
    United States Court of Appeals, Eighth Circuit.
    Submitted: January 13, 2017
    Filed: February 15, 2017

      Counsel who represented the appellant was Heather Quick, AFPD, of Cedar Rapids, IA.
    Counsel who represented the appellee was Steven Kelly Young, AUSA, of Cedar Rapids, IA.
    Before LOKEN, BEAM, and BENTON, Circuit Judges.
   BENTON, Circuit Judge.

Antonio K. Thigpen pled guilty to being a felon and unlawful user in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1), 922(g)(3), and 924(a)(2). The district court sentenced him to 120 months’ imprisonment. He appeals the sentence, challenging the guidelines determination. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

Police received a call about a disturbance between seven or eight people, one allegedly with a gun. A witness told officers the one with the gun was a black male wearing a white sweat suit with a black logo. Searching the area, police found Thigpen, who matched the description. Officers directed Thigpen to remain on the porch of the house where he was’ standing. He entered the house, closed the door, but exited about 20 seconds later. Police detained him. He admitted possessing marijuana. Police found about 5 grams in his pocket.

The owners of the house consented to a search. Police found a Glock pistol in a garbage can near the front door. The pistol had a scratched-off serial number on its frame and had been reported stolen. The owners denied possession. Thigpen later admitted putting the gun in the garbage can.

Thigpen pled guilty. Over his objections, the district court: (1) increased his base offense level pursuant to U.S.S.G. § 2K2.1(a)(2) based on a prior Iowa felony conviction for third-degree burglary; (2) imposed a four-level increase under U.S.S.G. § 2K2.1(b)(4)(B) for a firearm with “an altered or obliterated serial number;” and (3) imposed a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for possession of a firearm “in connection with another felony offense.” Adjusting downward for acceptance of responsibility, the court calculated a 29 total offense level and a category IV criminal history, making the guidelines range 121 to 151 months, which became 120 months due to a statutory maximum. The court sentenced him to 120 months.

I.

Thigpen disputes that his Iowa third-degree burglary conviction is a “crime of violence” under U.S.S.G. § 2K2.1(a)(2). This court “review[s] de novo a district court’s determination that an offense qualifies as a crime of violence under the Guidelines.” United States v. Harrison, 809 F.3d 420, 425 (8th Cir. 2015), citing United States v. Tessmer, 659 F.3d 716, 717 (8th Cir. 2011).

At sentencing, Thigpen argued his third-degree burglary conviction was not “a crime of violence” because Iowa’s burglary statute is broader than generic burglary. After sentencing, the United States Supreme Court held that a conviction under Iowa’s burglary statute is not a violent felony for purposes of the Armed Career Criminal Act. Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 2248, 195 L.Ed.2d 604 (2016). The government concedes that Thigpen’s Iowa third-degree burglary conviction is not “a crime of violence” for purposes of enhancement under section 2K2.1(a)(2).

Without this enhancement, Thig-pen’s total offense level of 29 becomes 25. Thigpen requests remand, invoking a new guidelines' range of 84-105 months. The government asserts harmless error. “When the guidelines are incorrectly applied, [this court] remandfe] for resentenc-ing unless the error was harmless, such as when the district court would have imposed the same sentence absent the error.” United States v. Idriss, 436 F.3d 946, 951 (8th Cir. 2006).

At sentencing, the district court acknowledged the pending Mathis case, but declined to “speculate] as to what the United States Supreme Court will do,” instead “applying] the law in the Eighth Circuit which currently exists.” It said:

The Court would note that in terms of the burglary being a predicate at Paragraph 17, I believe there would be some overlap if the Court had erred on that and we were at 27/IV. Then I think the effective guideline range would overlap the 29/IV.

Considering the section 3553(a) factors, the court said:

The Court hereby imposes a nonguide-line sentence. Although I considered the guidelines and did the computation of the advisory guideline sentencing range, I did not depend solely on that computation in reaching my sentencing decision in this case. Therefore, any error in the computation of the advisory guideline computation or any retroactive changes to the advisory guidelines would not affect or change in any way my determination that the sentence that is sufficient but not greater than necessary to achieve the goals of sentencing is the sentence of 120 months.
In arriving at the sentence, I considered each and every factor at 18 United States Code Section 3553(a). And in arriving at my nonguideline sentence of 120 months, I particularly relied on the nature and circumstances of the offense and the history and characteristics of the defendant.

Although the district court mistakenly believed Thigpen’s total offense level would be 27 rather than 25 if it decided the Iowa conviction was not “a crime of violence,” the court “did not depend solely on that computation in reaching [the] sentencing decision,” noting that any error “would not affect or change in any way my determination that the sentence that is sufficient but not greater than necessary to achieve the goals of sentencing is the sentence of 120 months.” Because the district court stated it would impose the same sentence regardless of the guidelines- calculation, the section 2K2.1(a)(2) enhancement was harmless error. See United States v. Pappas, 715 F.3d 225, 230 (8th Cir. 2013) (holding harmless any error in the guidelines calculation where the dis-triet court explicitly said it would have imposed the same sentence “regardless of the guidelines”); United States v. Davis, 583 F.3d 1081, 1094-95 (8th Cir. 2009) (holding harmless any error in the guidelines calculation where the district court explicitly said it would have imposed same sentence “regardless of whether [defendant] was a career offender”).

II.

Thigpen asserts the district court erred in imposing a four-level increase under U.S.S.G. § 2K2.1(b)(4)(B) based on the pistol’s “altered or obliterated serial number.” This court reviews factual findings for clear error and application of the sentencing guidelines de novo. United States v. Jauron, 832 F.3d 859, 863 (8th Cir. 2016).

As a police officer testified at sentencing, Glock pistols have four parts: (1) a barrel; (2) a slide; (3) a frame; and (4) a spring. Typically, they have one serial number, located in three places — the barrel, the slide, and the frame. Because the frame is the only part requiring a federal firearms license, it is considered the permanent part, and, the number on it is the permanent number. The barrel and slide are interchangeable and could have different serial numbers than the frame.

Here, the serial numbers on the barrel and slide were unaltered and identifiable. However, two of the six numbers on the frame were scratched off. As the officer testified, if the barrel and slide — the interchangeable parts — had been replaced with serial numbers different from the frame, the pistol would not. easily be identifiable from the partially obliterated serial number on its frame.

Thigpen argues the enhancement was inappropriate because only one of the pistol’s three serial numbers was altered, and officers identified it from the other two. Section 2K2.1(b)(4)(B) requires a four-level enhancement if a defendant possesses a firearm that “had an altered or obliterated serial number.” Whether this section applies when only one number is altered or obliterated, is an issue of first impression for this court.

The First and Eleventh Circuits recently held that section 2K2.1(b)(4)(B) requires only that one serial number be altered or obliterated, even if others are clearly legible. See United States v. Warren, 820 F.3d 406, 408 (11th Cir.), cert. denied, — U.S. -, 137 S.Ct. 221, 196 L.Ed.2d 171 (2016); United States v. Serrano-Mercado, 784 F.3d 838, 850 (1st Cir. 2015), cert. denied, 2017 WL 160457, — U.S. -, 137 S.Ct. 812, 196 L.Ed.2d 599 (2017). The Eleventh Circuit reasoned:

The guidelines require only that the firearm in question “had an altered or obliterated serial number.” U.S.S.G. § 2K2.1(b)(4)(B) (emphasis added). As the First Circuit has recently explained, that language “does not require that all of the gun’s serial numbers be so affected.” United States v. Serrano-Mercado, 784 F.3d 838, 850 (1st Cir. 2015). We have said in other contexts that “[i]n common terms, when ‘a’ or ‘an’ is followed by a restrictive clause or modifier, this typically signals that the article is being used as a synonym for either ‘any’ or ‘one.’ ” United States v. Alabama, 778 F.3d 926, 932 (11th Cir. 2015).... Read in that fashion, the § 2K2.1(b)(4)(B) enhancement applies either when any serial number on a gun has been altered or obliterated or when just one serial number has been altered or obliterated.

The First and Eleventh Circuits’ reasoning “accords with the intent of Guideline § 2K2.1(b)(4), which is to discourage the use of untraceable weaponry.” Serrano-Mercado, 784 F.3d at 850 (internal quotations omitted), quoting United States v. Carter, 421 F.3d 909, 914 (9th Cir. 2005). As the district court found:

The guideline does not require that all the serial numbers on an assembled firearm be obliterated or altered. One is enough, and that’s a plain reading of the guideline. And, of course, in this case, having the serial number obliterated on the frame is the most important serial number, because that is the definition of a firearm, the frame of it. There is no evidence that the obliterated serial number on the frame is the same serial number as on the barrel and the slide. It just makes sense that if you obliterated a serial number on any firearm component, particularly the frame, that could result in that particular component not being traceable. And obviously, this guideline focuses on tracing the firearms and being able to trace the firearms, and when you materially change that serial number, it makes accurate information as to the original of that firearm less accessible.

Based on the plain language of section 2K2.1(b)(4)(B), it applies “when the serial number on the frame of a firearm is obliterated even if other serial numbers on the firearm, like the one left intact on the slide [and the barrel] of this weapon, are unaltered.” Serrano-Mercado, 784 F.3d at 850. The district court did not err in applying the section 2K2.1(b)(4)(B) enhancement.

III.

Thigpen argues the district court erred in imposing a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for possession of a firearm “in connection with another felony offense.” This court “review[s] de novo the district court’s interpretation and application of the Guidelines.” United States v. Jackson, 633 F.3d 703, 705 (8th Cir. 2011).

The four-level enhancement under section 2K2.1(b)(6)(B) applies if a defendant “[u]sed or possessed any firearm or ammunition in connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). The guideline commentary defines “another felony offense” as:

[A]ny Federal, state, or local offense, other than the explosive or firearms possession or trafficking offense, punishable by imprisonment for a term exceeding one year, regardless of whether a criminal charge was brought, or a conviction obtained.

U.S.S.G. § 2K2.1, cmt. n.14 (C).

Thigpen’s prior conviction was under Iowa Code § 724.4(1), which says:

Except as otherwise provided in this section, a person who goes armed with a dangerous weapon concealed on or about the person, or who, within the limits of any city, goes- armed with a pistol or revolver, or any loaded firearm of any kind, whether concealed or not, or who knowingly carries or transports in a vehicle a pistol or revolver, commits an aggravated misdemeanor.

Thigpen maintains his conviction is excepted from the definition of “other felony offense” as an “explosive or firearms possession or trafficking offense.” In United States v. Walker, this court rejected this argument, holding Iowa Code § 724.4(1) “does not fall within the narrow Note 14(C) exclusion for ‘the ... firearms possession ... offense.’ ” United States v. Walker, 771 F.3d 449, 453 (8th Cir. 2014). While Thigpen disagrees with Walker, he recognizes it is binding precedent. See United States v. Reynolds, 116 F.3d 328, 330 (8th Cir. 1997) (“One panel may not overrule another.”).

The district court did not err in assessing the four-level enhancement for possessing a firearm “in connection with another felony offense.”

IV.

Thigpen believes the district court procedurally erred by stating it was imposing a non-guideline sentence and then imposing a guideline sentence. This court “reviewfs] the imposition of sentences, whether inside or outside the Guidelines range, [under] a deferential abuse-of-discretion standard.” United States v. Jones, 612 F.3d 1040, 1044 (8th Cir. 2010), quoting United States v. Hayes, 518 F.3d 989, 995 (8th Cir. 2008). It “must first ensure that the district court committed no significant procedural error.” Id., quoting Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Where, as here, the “defendant fails to object timely to a procedural sentencing errbr, the error is forfeited and may only be reviewed for plain error.” United States v. Hill, 552 F.3d 686, 690 (8th Cir. 2009), quoting United States v. Vaughn, 519 F.3d 802, 804 (8th Cir. 2008). “Under plain error review, the defendant must show: (1) an error; (2) that is plain; and (3) that affects substantial rights.” Id., citing Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997).

Thigpen cannot show any alleged procedural error affected his substantial rights or that “but for the error he would have received a more favorable sentence.” United States v. Linderman, 587 F.3d 896, 899 (8th Cir. 2009), quoting United States v. Pirani, 406 F.3d 543, 552 (8th Cir. 2005) (en banc). The district court stated it did not depend solely on the guidelines in reaching a decision. Rather, it engaged in a thorough analysis of the section 3553(a) factors, noting Thigpen was at “extremely high risk to recidivate due to his lengthy criminal history” and “prior association with a Chicago street gang.” It also noted his non-compliance with court-mandated supervision and his “total lack of respect for the law.” The court’s statement that it was imposing a non-guideline sentence was not plain error.

* * # * * ⅜ *

The judgment is affirmed.

      . The Honorable Linda R. Reade, Chief Judge, United States District Court for the Northern District of Iowa.


author: WOLLMAN, Circuit Judge.

text:
    Maria Dolores FUENTES-ERAZO; Gerardo Yosimar Fuentes-Erazo, Petitioners v. Jeff B. SESSIONS, Attorney General of the United States
      , Respondent
    No. 15-3149
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 20, 2016
    Filed: February 16, 2017

      Counsel who presented argument on behalf of the petitioners was Kristen Hathaway, a student at the University of Minnesota Law School, Minneapolis, MN. Also appearing on the brief were Anton Chris Brown, Shannon Jankowski, and Anne Dutton, student attorneys at the University of Minnesota Law School, Minneapolis, MN, Benjamin Casper, Supervising Attorney, University of Minnesota Law School, Center for New Americans, Minneapolis, MN, and Sally Silk, of Minneapolis, MN.
    Counsel who presented argument on behalf of the respondent was Jamie M. Dowd, Office of Immigration Litigation, U.S. Department of Justice, Washington, DC.
    Before WOLLMAN, SMITH, and COLLOTON, Circuit Judges. •

      . Jeff B. Sessions is automatically substituted pursuant to Federal Rule of Appellate Procedure 43(c)(2).

   WOLLMAN, Circuit Judge.

Maria Dolores Fuentes-Erazo and her minor son Gerardo Yosimar Fuentes-Era-zo, each a native and citizen of Honduras, petition for review of an order of the Board of Immigration Appeals (BIA) dismissing their appeal from an immigration judge’s (IJ) decision to deny their applications for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). We deny the petition for review.

Fuentes and her infant son entered the United States without admission or parole on June 14, 2014, near Hidalgo, Texas, and were immediately apprehended by Department of Homeland Security (DHS) agents. After DHS initiated removal proceedings, Fuentes conceded that she and her son were removable, and she applied for asylum, withholding of removal, and relief under the CAT. She asserted that she had been abused in the past by Elvis Santos, her former domestic partner, and that she feared future abuse by Santos if she were forced to return to Honduras.

At a hearing before the IJ, Fuentes testified that she began a relationship with Elvis Santos when she was in her mid-teens. When she was about sixteen years old, she left her family home in the village of Tontolar and went to live with Santos in the village of Callejones, about an hour’s walk away. She became pregnant shortly thereafter and eventually gave birth to her first son, Oslis. She testified that Santos was initially “really good, very kind,” but that he began to mistreat her when he learned that she was pregnant. Santos denied paternity and began a pattern of psychological, physical, and sexual abuse, isolating Fuentes from other people, forbidding her from working, striking her with his hands and other objects, kicking her, threatening her with a knife and a gun, and raping her.' The physical and sexual abuse occurred several times a month, often after Santos had been drinking. Fuentes stated that she did not report the abuse to police because the nearest police station was a three-hour drive away in San Marcos, because it was uncommon for people in her village to report things to the police, and because she was afraid that Santos would take “revenge” on her if she reported him. She also did not seek medical treatment for any injuries Santos caused her.

Fuentes attempted to leave Santos, once by hiding in some trees for several hours, once by hiding at Santos’s sister’s house for several hours, and once by hiding at a neighbor’s home for several hours, but she eventually returned home on her own each time. In 2009, however, she left Santos for good, taking Oslis and traveling to her sister’s house in Santa Barbara, which was five or six hours away by bus. The two lived with Fuentes’s sister in Santa Barbara for a year and a half. Although Fuentes heard that Santos was asking about her, he did not contact her in Santa Barbara, because she “didn’t tell anybody,” including her family, where she was.

Fuentes and Oslis left Santa Barbara and moved to the town of San Marcos, about three hours by bus from Santos’s Callejones home, so that Fuentes could work. At Fuentes’s request, her parents came to San Marcos and took nine-year-old Oslis back to Tontolar to live with them, where he continues to reside. Despite his proximity to Oslis, Santos has never called or visited him while Oslis has been living with Fuentes’s parents. Meanwhile, Fuentes lived in and cleaned a house in San Marcos for “about a year and a half,” after which she worked in a restaurant for roughly eleven months, where patrons told her that Santos had been looking for her. Fuentes met a man named Luis at the restaurant and began a relationship with him in 2013 that resulted in a second pregnancy. Fuentes stated that she did not feel safe in San Marcos because she “was closer” to Santos, but she also stated that Santos did not contact her in San Marcos and did not know that she was there.

Fuentes eventually left San Marcos and moved to San Pedro, a town approximately seven hours by bus from Santos’s Calle-jones home. She lived in and cleaned a house in San Pedro for several months until she gave birth to her second son, Gerardo, in September 2013. Santos did not contact Fuentes by phone or in person while she was living in San Pedro. Fuentes then returned to her sister’s house in Santa Barbara, where she stayed until Gerardo was about six months old. Thereafter, she moved back to San Marcos at the invitation of Margarita Reyes, a family friend or “godmother,” who helped Fuentes secure the cleaning and restaurant jobs she previously held in San Marcos. Fuentes stated that Santos learned about this time that she had had a son with another man, leading her to fear that Santos would kill her and Gerardo “out of jealousy.” About one month after returning to San Marcos, Fuentes used money provided by Reyes to travel .to the United States, which, as earlier stated, she entered from Mexico on June 14, 2014.

Fuentes testified that there was nowhere she could live in Honduras if she returned to that country because she did not “have a place to go,” and did not “know anybody over there.” She stated that she could not live with her parents, because they lived near Santos. She testified that she would not be able to work in a restaurant or as a house cleaner because she had to take care of her children. She also did not believe that she could support her children financially or that anyone else could care for them while she worked, explaining that her mother was ill and her father was too old. She did not believe that she could live with any of her six siblings or another family member. She stated that although Reyes had helped her obtain employment in Honduras in the past, she likely could not provide such help in the future because she had her own job. Although Fuentes “never saw [Santos] again” after she left him in 2009 and managed to avoid him for almost five years before she left Honduras, she stated that she did not think she could avoid him if she returned to Honduras because she had heard Santos was looking for her and that he had since acquired a vehicle and could now travel around Honduras to find her.

The IJ denied relief, concluding that even if Fuentes had established that she suffered past persecution, she had not demonstrated that the harm she suffered was on account of her membership in her proposed particular social group, composed of “Honduran women in domestic relationships who are unable to leave their relationships.” The IJ acknowledged Fuentes’s abusive relationship with Santos, but noted that Fuentes did in fact “leave that relationship and reside[ ] ⅛ Honduras for approximately five years” thereafter, during which she entered into a relationship with and had a child by another man. Noting also that Fuentes “moved freely to different locations, had employment,” and “had no contact voluntarily or not with [Santos after] she left him in 2009,” the IJ concluded that Fuentes had failed to demonstrate her membership in her proposed social group and thus had failed to establish the requisite nexus between any abuse she had suffered and a protected ground. The IJ also concluded that Fuentes had failed to demonstrate that the Honduran government was unable or unwilling to protect her from harm inflicted by Santos. Acknowledging that the documentary evidence “suggests a lot of difficulty on the part of the government in addressing the problems of domestic violence in Honduras,” the IJ noted that the • government was “not helpless,” and further noted that Fuentes “never gave the government an opportunity to try to protect her” because she “never called the police.” Finally, the IJ observed that Fuentes “successfully avoided [Santos] for five years after she left him,” that Santos “had no interest in locating” her, and thus that she would be able to relocate within Honduras if she were returned. The IJ denied Fuentes’s application for asylum and, because she “failed to meet the lower burden for asylum,” also denied withholding of removal. The IJ also denied relief under the CAT, citing a “dearth of evidence” regarding torture by, or with the acquiescence of, the Honduran government. The BIA dismissed Fuentes’s subsequent appeal, finding “no clear error of fact or mistake of law” in the IJ’s decision to deny all forms of relief.

We review the BIA’s decision for substantial evidence on the record as a whole and will uphold its factual findings unless the petitioner “demonstrates that the evidence he presented not only supports a contrary conclusion but compels it.” Ngugi v. Lynch, 826 F.3d 1132, 1136 (8th Cir. 2016) (citation omitted); see also 8 U.S.C. § 1252(b)(4)(B) (stating that findings of fact cannot be disturbed “unless any reasonable adjudicator would be compelled to conclude to the contrary”). We review the BIA’s legal determinations de novo, giving due deference to the BIA’s interpretation of the statutes and regulations it administers. Salman v. Holder, 687 F.3d 991, 994 (8th Cir. 2012). To the extent the BIA adopted the findings or reasoning of the IJ, we consider the two decisions together. Garcia v. Holder, 746 F.3d 869, 872 (8th Cir. 2014).

To qualify for asylum, Fuentes bears the burden of demonstrating that she is a “refugee,” who is unable or unwilling to return to Honduras because of past persecution or a well-founded fear of future persecution on account of her “membership in a particular social group.” See 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1). To qualify for withholding of removal, Fuentes bears the even higher burden of demonstrating a “clear probability” that she will be persecuted on account of her membership in a particular social group. See Khrystotodorov v. Mukasey, 551 F.3d 775, 781 (8th Cir. 2008) (noting “more stringent” standard of proof for withholding of removal). To qualify for CAT relief, Fuentes must establish that it is more likely than not that she would be subjected to torture “with the consent or acquiescence of a public official” if returned to Honduras, 8 C.F.R. § 208.18(a)(1), a generally “more onerous” standard than that for asylum or withholding of removal, Khrystotodorov, 551 F.3d at 782. “ ‘Acquiescence’ requires prior awareness of the torture and breach of a legal responsibility to intervene.” Saldana v. Lynch, 820 F.3d 970, 978 (8th Cir. 2016). “A government’s ‘willful blindness toward the torture of citizens by third parties’ amounts to unlawful acquiescence.” Khrystotodorov, 551 F.3d at 782 (quoting Mouawad v. Gonzales, 485 F.3d 405, 413 (8th Cir. 2007)). Whether a government acquiesces in torture inflicted by a private actor is a question of fact that must be resolved based on the record as a whole. See Saldana 820 F.3d at 978.

Substantial evidence supports the BIA’s determination that Fuentes failed to establish that she was or will be persecuted on account of a protected ground. See Gonzales v. Thomas, 547 U.S. 183, 186, 126 S.Ct. 1613, 164 L.Ed.2d 358 (2006) (per curiam) (noting that whether a petitioner is a member of a particular social group “requires determining the facts and deciding whether the facts as found fall within [the] statutory term”). To be eligible for asylum or withholding of removal on the basis of her membership in a particular social group, Fuentes was required to establish that she is actually a member of the legally cognizable particular social group that she identified, and that the persecution she fears actually was, or will be, inflicted on account of her membership in that group. See Gonzalez Cano v. Lynch, 809 F.3d 1056, 1058 (8th Cir. 2016) (noting that petitioner “must prove first that he is a member of a cognizable particular social group); De Castro-Gutierrez v. Holder, 713 F.3d 375, 381 (8th Cir. 2013) (noting that, even if proposed particular social group were cognizable, petitioner’s claim would fail because she did not prove-her membership in that group “in the first place”); Safaie v. I.N.S., 25 F.3d 636, 640 (8th Cir. 1994) (noting that petitioner must “identify a group that constitutes ‘a particular social group[,]’ ... establish that [she] is a member of that group, and ... show that [she] would be persecuted or has a well-founded fear of persecution based on that membership” (citation omitted)), superseded by statute on other grounds, as recognized in Rife v. Ashcroft, 374 F.3d 606, 614-15 (8th Cir. 2004). Fuentes has failed to make the requisite showing.

Fuentes identified her proposed particular social group as Honduran women in domestic, relationships who are unable to leave their relationships. As noted by Fuentes, the BIA concluded in Matter of A-R-C-G-, 26 I.&N. Dec. 388, 392, 392-95 (BIA 2014), that “married women in Guatemala who are unable to leave their relationship[s]” constitute a legally cognizable particular social group for purposes of asylum and withholding of removal. But in A-R-C-G-, the petitioner’s actual membership in the proposed particular social group was undisputed. Id. The petitioner there attempted to flee her relationship on several occasions, but each time her husband tracked her down and either threatened to kill her if she did not return to him, or persuaded her to return by promising to cease his abusive treatment. Id. at 389. Here, by contrast, Fuentes herself testified — and the IJ and the BIA subsequently found — that she was, in fact, able to leave her relationship with Santos. Indeed, Fuentes left Santos .in 2009 and resided in Honduras safely for approximately five years, during which time she traveled and worked in several different parts of Honduras, entered into a relationship with another man, and gave birth to a second child — all without having any contact whatsoever with Santos. Fuentes also acknowledged that Santos never contacted Oslis while he was living with her or her parents. Substantial evidence supports the BIA’s finding that Fuentes failed to demonstrate that she was a member of her proposed particular social group and that she was thus ineligible for asylum or withholding of removal. See Ngugi, 826 F.3d at 1136; see also Saldana, 820 F.3d at 978 (noting that failure to meet standard of proof for asylum necessarily results in failure to meet higher standard of proof for withholding of removal).

Although Fuentes is not required to establish her membership in a cognizable particular social group to qualify for relief under the CAT, she is required to show a likelihood that she would be tortured if she were returned to Honduras and that the torture would be inflicted “with the consent or acquiescence of a public official.” Garcia, 746 F.3d at 873 (quoting 8 C.F.R. § 1208.18(a)(1)). Fuentes has failed to make this showing. The basis of her fear is the domestic abuse inflicted upon her by Santos — a private actor. She claims that, because of the Honduran government’s complacency and ineffectiveness in the face of a long-standing, widespread, and ongoing domestic-violence problem, the government will not protect her if she is returned to Honduras. But she did not establish that the Honduran government was aware of Santos’s conduct, much less that it consented to or acquiesced in that, conduct. Fuentes testified that she never reported Santos to the police or to other government officials — and thus she never gave the government the opportunity to protect her from Santos’s conduct. See Menjivar v. Gonzales, 416 F.3d 918, 922 (8th Cir. 2005) (noting that substantial evidence supported finding that the government was not unable or unwilling to control alleged persecutor, where petitioner never reported incidents and the government lacked opportunity to respond). On this record, a reasonable adjudicator would not be compelled to find that the incidents described by Fuentes occurred' with the imprimatur or acquiescence of Honduran officials.

Fuentes argues that reporting Santos’s conduct to the police would have been futile, and she cites to country reports, • expert affidavits, and other documents in the record indicating that domestic violence is a widespread problem in Honduras, that impunity for perpetrators is common, and that the laws and institutions in place to assist victims are largely ineffectual. She contends that this evidence compels the conclusion that the Honduran government condones domestic violence or, at the very least, is completely helpless to stop it, and that the BIA failed to assign this evidence appropriate weight. We disagree. The IJ and the BIA considered the documentary evidence she proffered and acknowledged that there is ongoing violence against women in Honduras, but concluded that Fuentes had not established that the government generally consents to or acquiesces in domestic violence. See, e.g., Garcia, 746 F.3d at 873 (“Demonstrating acquiescence of a public official requires proof that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity.” (citation omitted)). It is evident that the Honduran government has not eliminated the problem of domestic violence and that it has fallen short in providing the necessary resources to address the issue. But as we have observed, “[¡Inability to control private actors is an imprecise concept that leaves room for discretion by the [BIA].” Saldana, 820 F.3d at 977. The record does not compel a finding that the Honduran government would acquiesce in any harm that Santos might inflict in the future. See id. at 976-77 (noting that “[njeither difficulty controlling private behavior nor failure to solve every crime or to act on every report is sufficient to” show that the government-condones the conduct or is unable to protect the victims).

Because the BIA did not err in concluding that Fuentes failed to establish that she was a member of her self-described social groups or that the Honduran government will consent to or acquiesce in her mistreatment if she is returned to that country, we need not address whether her proposed particular social groups were cognizable or whether the mistreatment she has suffered or allegedly will suffer rose to the level of persecution. See Gonzalez Cano, 809 F.3d at 1059 (concluding that, because petitioner did not demonstrate likelihood of persecution on account of membership in a particular social group, court need not reach whether government was unable or unwilling to control persecutors); Saldana, 820 F.3d at 975-77 (declining to address in first instance particular-social-group issue, but affirming denial of relief due to insufficient evidence that harm by private actors was “persecution” that government condoned or was unable to control); see also Salman, 687 F.3d at 995 (concluding that, because petitioner’s failure to establish government acquiescence in harassment was fatal to asylum claim, the court need not address whether harassment rose to level of persecution or was based on a statutorily protected ground); Gutierrez-Vidal v. Holder, 709 F.3d 728, 733 n.1 (8th Cir. 2013) (noting that because petitioner did not demonstrate harm amounting to persecution, asylum claim failed regardless of relocation issue).

The petition for review is denied.

      . Gerardo Fuentes-Erazo was included as a derivative claimant on his mother's applications for relief.

      . Fuentes argues that the BIA erred in failing to consider her second proposed particular social group, composed of those Honduran women who are unable to leave the fathers of their children. This argument similarly fails, for Fuentes’s ability to leave Santos precludes her claim of membership in this group.