author: KORMAN, District Judge: TASHIMA, Circuit Judge,

text:
    IN RE Richard STERBA; Olga Sterba, Debtors, PNC Bank, Appellant, v. Richard Sterba and Olga Sterba, Appellees. Linda S. Green, Chapter 7 Trustee, Real-party-in-interest.
    No. 14-60061
    United States Court of Appeals, Ninth Circuit.
    Submitted October 18, 2016  San Francisco, California
    Filed April 5, 2017

      Douglas B. Provencher and Janis H. Grattan, Provencher & Flatt LLP, Santa Rosa, California, for Appellant.
    Thomas P. Kelly III, Santa Rosa, California, for Appellees.
    Before: A. WALLACE TASHIMA and MILAN D. SMITH, JR., Circuit Judges, and EDWARD R. KORMAN, District Judge.

       The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2)(C).

      The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation.

   Concurrence by Judge TASHIMA

OPINION

KORMAN, District Judge:

When it comes to conflicts of law, bankruptcy is a bit of an odd duck. The substantive focus is often on state law, as it always is in diversity eases. But where a federal court sitting in diversity applies the forum state’s choice-of-law rules — a straightforward policy that prevents the forum’s federal character from determining the outcome of disputes that are really about state law — we have held that in bankruptcy, federal choice-of-law rules control which state’s law applies. Lindsay v. Beneficial Reinsurance Co. (In re Lindsay), 59 F.3d 942, 948 (9th Cir. 1995).

This case adds another wrinkle: The dispute here arises out of a clause in a promissory note providing that it should be construed according to Ohio law. So we face two issues — one sounding in contract, the other in conflict of laws. The first is whether such a general choice of law clause encompasses issues relating to the statute of limitations, or whether the parties to an agreement must select a limitations period expressly if they want to do so at all? The second is, if the parties must select a statute of limitations expressly and fail to do so, how should a bankruptcy court determine which state’s limitations period applies?

BACKGROUND

In 2007, the Sterbas bought a condo in California. They took out two loans secured by liens against the property, of which National City Bank held the junior one. The Sterbas’ promissory note to National City provided in relevant part that: “[T]he Bank is a national bank located in Ohio and Bank’s decision to make this Loan ... was made in Ohio. Therefore, this Note shall be governed by and construed in accordance with ... the laws of Ohio ... without regard to conflict of law principles.” Less than a year after the loans were made, the Sterbas defaulted, the senior lender foreclosed, and National City was left holding the bag for $42,000.

When the Sterbas filed for bankruptcy in the Northern District of California in 2013, PNC Bank (National City’s successor in interest) filed a claim based on the 2007 note. The Sterbas objected, contending that the claim was barred by California’s applicable four-year statute of limitations. See Cal. Code Civ. Proc. § 337. PNC, in turn, argued that the claim was timely because the promissory note’s choice of Ohio law incorporated Ohio’s six-year limitations period. See Ohio Rev. Code § 1303.16.

The bankruptcy judge agreed that the promissory note selected Ohio’s six-year limitations period, and overruled the Ster-bas’ objection. The Bankruptcy Appellate Panel reversed. PNC appeals from the BAP’s decision.

DISCUSSION

Ordinarily, when parties to an agreement select the law they want to govern an issue, federal courts will enforce that choice. See, e.g., Flores v. Am. Seafoods Co., 335 F.3d 904, 916-19 (9th Cir. 2003). But where a choice-of-law provision does not expressly include the statute of limitations, we have construed it as silent on the issue. In Des Brisay v. Goldfield Corp.—a federal securities case — we applied federal common law to hold that a clause providing for a contract to “be governed by and interpreted according to the laws of the [Canadian] province of British Columbia,” did not include the statute of limitations. 637 F.2d 680, 682 (9th Cir. 1981). The contractual choice-of-law provision in this case, adopting Ohio law, is materially identical to the one we construed in Des Brisay.

Our holding in Des Brisay was based on our recognition that choice-of-law provisions are concerned mainly with substantive law, and “generally do not contemplate ... statutes of limitation,” which are “usually considered” a matter of local procedure “related to judicial administration.” Id. (citing Restatement (Second) of Conflict of Laws § 122 cmt. a). Unbound by the contractual choice-of-law provision, we went on to hold that “[t]he rule in federal securities actions is to apply the applicable limitations period of the state in which the federal court sits. Ernst & Ernst v. Hochfelder, 425 U.S. 185, 210 n.29, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976).” Id. (additional citations omitted). As the citation to Ernst & Ernst suggests, this holding was based on the principle that where “no statute of limitations is provided for” a federal cause of action, “the law of limitations of the forum State is followed.” Ernst & Ernst, 425 U.S. at 210 n.29, 96 S.Ct. 1375.

Unlike Des Brisay, this is not a federal securities case premised on an implied right of action. Nor is this a case, like those arising under 42 U.S.C. § 1983, where Congress has created a right of action but remained silent as to the applicable limitations period. The fact that Des Brisay involved a suit under an implied right of action allowed us, in the absence of an effective choice by the parties, to apply the simple, well-established rule that a federal right of action for which no statute of limitations is provided is subject to the limitations period which the forum state applies to analogous claims. Wilson v. Garcia, 471 U.S. 261, 266-67, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985).

Rather than an implied cause of action under federal law, this case involves a common-law action on a promissory note, for which both Ohio and California have statutorily prescribed a statute of limitations. So while Des Brisay resolves the contractual issue in this case, it does not dispose of the conflicts-of-law problem that results. Under these circumstances, the applicable rule is prescribed by § 142 of the Restatement (Second) of Conflict of Laws, which addresses conflicts between statutes of limitation.

Federal choice-of-law rules in the Ninth Circuit follow the Restatement (Second) of Conflict of Laws, see Liberty Tool, & Mfg. (In re Vortex Fishing Systems), 277 F.3d 1057, 1069 (9th Cir. 2001), as a “source of general choice-of-law principles,” and “an appropriate starting point for applying federal common law in this area.” Harris v. Polskie Linie Lotnicze, 820 F.2d 1000, 1003 (9th Cir. 1987). More recently, in Flores v. American Seafoods Co., we observed that we only “considered] the principles stated in [the] Restatement (Second) of Conflict of Laws § 187 to the extent we conclude ... that they are persuasive.” 335 F.3d 904, 919 (9th Cir. 2003). We have directly adopted § 142, the particular provision of the Second Restatement applicable here.

The 1971 version of § 142 provides that “(1) An action will not be maintained if it is barred by the statute of limitations of the forum, including a provision borrowing the statute of limitations of another state.” The 1988 version of § 142 is similarly worded, except that it provides a limited carve-out for “exceptional circumstances.” Specifically and in relevant part, it reads as follows: “[I]n general, unless the exceptional circumstances of the case make such a result unreasonable ... The forum will apply its own statute of limitations barring the claim.” (emphasis added).

The Second Restatement’s preference for the forum state’s statute of limitations, in cases where it has the shorter limitations period, is based on the policy that “[a] state has a substantial interest in preventing the prosecution in its courts of claims which it deems to be ‘stale.’ ” § 142, cmt. f (1988). In the ordinary case, that interest is treated as controlling because vindicating it imposes no real prejudice on the time-barred party — dismissal of a claim as barred by the statute of limitations generally “does not constitute a judgment on the merits,” and following such a dismissal “the plaintiff will usually remain. free to sue” in a state with a more generous limitations period. Id. But where a countervailing interest exists such that “under the special circumstances of the case dismissal ... would be unjust,” the forum (here, California) will apply another state’s longer statute of limitations. Id.

The application of § 142 compels the conclusion that California’s shorter statute of limitations does not apply here, because this case presents the sort of “exceptional circumstances” under which the 1988 version of the Second Restatement looks past the law of the forum, and applies a longer foreign limitations period. The Restatement, to be sure, does not provide an exhaustive or technical definition of an exceptional circumstance. Nevertheless, the comment to the 1988 version of § 142 makes clear that the present case comes within that category. Indeed, this case is on all fours with the Restatement’s only example of what would constitute such a “special,” “unjust” circumstance: “[W]hen through no fault of the plaintiff an alternative forum is not available as, for example, where jurisdiction could not be obtained over the defendant in any [other] state....” Id.

Here — exactly as the comment describes — the unique strictures of the bankruptcy code mean that, through no fault of PNC’s, there is no forum for its claim other than the Northern District of California. This is not a case filed voluntarily in California, in which a dismissal on statute of limitations grounds would be without prejudice to bringing the same claim in Ohio. See Mid-Century Ins. Co. v. Superior Court, 138 Cal.App.4th 769, 41 Cal.Rptr.3d 833, 837 (2006). Rather, once the Sterbas declared bankruptcy, PNC was obligated to bring all its claims in the district where the Sterbas filed. Under these circumstances, to reject PNC’s claim as time-barred would be the functional equivalent of a dismissal on the merits. Where another jurisdiction — National City’s home state of Ohio — would hear the claim, and has a substantial interest in its resolution, disallowing it by mechanical adoption of California’s statute of limitations would be wholly unreasonable. We hold that under these exceptional circumstances, the bankruptcy court was correct to apply Ohio’s six-year statute of limitations and overrule the Sterbas’ objection to PNC’s claim.

Des Brisay’s decision to rely on the 1971 version of § 122 of the Second Restatement, to hold that an agreement selecting a statute of limitations must do so expressly, does not bind us to apply the 1971 version of § 142 — which is identical to the 1988 version, with the exception of the narrow carve-out for “exceptional circumstances” on which we base our decision. There is clear Ninth Circuit precedent adopting the 1988 version of § 142. In Huynh v. Chase Manhattan Bank, a federal-question case where the underlying rights at stake (in deposits held by American banks in Vietnam) were not created by federal law, we held that “[fjederal common law follows the approach outlined in the Restatement (Second) of Conflict of Laws,” and that “[accordingly, barring exceptional circumstances” we would select a statute of limitations by following the approach outlined in the 1988 version of § 142. 465 F.3d 992, 997 (9th Cir. 2006) (emphasis added). While the panel in Huynh eventually applied the statute of limitations dictated by a straightforward application of § 142, it did so only after expressly determining that such exceptional circumstances were not in fact present. See id. at 1005.

Moreover, Des Brisay did not rely on either the 1971 or 1988 version of § 142. Rather, because it was decided in 1981, it relied on the comment to the 1971 version of § 122, the text of which provides that a court will generally apply its local law “prescribing how litigation shall be conducted,” and does not specifically address the statute of limitations. The comment to which Des Brisay cites, however, does point to the statute of limitations as an example of a rule “primarily concerning] judicial administration,” with respect to which “the forum will usually apply its own rule.” § 122 cmt. a (1971) (citing § 142) (emphasis added).

We need not take issue with this aspect of Des Brisay’s analysis, because it merely provided the basis for its holding that contractual choice-of-law provisions “generally” do not include the statute of limitations. See 637 F.2d at 682. Even if we had not already decided the question in Huynh, nothing in Des Brisay would require us to apply the 1971 version of § 142. Moreover, the difference between the 1971 and 1988 versions of § 142 is not significant. The 1988 version simply creates a very narrow exception to the general rule — essentially unchanged from 1971 — that the law of the forum governs issues relating to the statute of limitations. Thus, even if we were forced by precedent to apply the 1971 version of § 142, adopting the kind of narrow exception to the general rule that now appears in the 1988 version would hardly create an “irreconcilable conflict,” Atonio v. Wards Cove Packing Co., Inc., 810 F.2d 1477, 1478-79 (9th Cir. 1987) (en banc), or threaten the “uniformity of the court’s decisions,” Fed. R. App. P. 35(a)(1), and we would not have to go en banc to do so.

CONCLUSION

The judgement of the Bankruptcy Appellate Panel is REVERSED, and the case is REMANDED to the bankruptcy court for further proceedings consistent with this opinion.

TASHIMA, Circuit Judge,

concurring in the judgment:

Although the majority reaches the correct result, it gets there by an unnecessarily circuitous route. Because I believe there is a more direct route, that is not only shorter, but preferable, I concur in the judgment only.

The promissory note at issue in this case contains the following choice-of-law provision:

[T]his Note shall be governed by and construed in accordance with ... the laws of Ohio, to the extent Ohio laws are not preempted by federal laws or regulations, and without regard to conflict of law principles.

(Emphasis added.) The question we should be asking ourselves is whether there is any valid reason why the parties’ choice-of-law should not be honored? As the majority recognizes, Maj. Op. at 1177 & 1179, because this is a federal question case, federal choice-of-law rules, which generally follow the Restatement (Second) of Conflict of Laws (“Restatement”), apply. See Liberty Tool & Mfg. v. Vortex Fishing Sys., Inc. (In re Vortex Fishing Sys., Inc.), 277 F.3d 1057, 1069 (9th Cir. 2001).

In turn, § 187 of the Restatement provides that “[t]he law of the state chosen by the parties ... will be applied.... ” We have consistently honored the parties’ choice-of-law, including provisions of similar import to the italicized provision in this case that the chosen law applies “without regard to conflict of law principles.” See, e.g., Mortensen v. Bresnan Comm’cns, LLC, 722 F.3d 1151, 1155 (9th Cir. 2013) (applying New York law “without regard to New York’s choice of law principles” (footnote omitted)); Fuku-Bonsai, Inc. v. E.I. Du Pont de Nemours & Co., 187 F.3d 1031, 1033 n.3 (9th Cir. 1999) (applying Delaware law “without giving effect to the conflict of laws or choice of law provisions thereof’); id. at 1034 (“it is agreed that Delaware law applies”) (Boochever, J., dissenting).

Under this line of cases and § 187, there is no reason not to give effect to the parties’ choice-of-law, which included their choice of the Ohio statute of limitations. That choice was made by inclusion of the phrase “without regard to conflict of law principles,” which, in this case, means without regard to any analysis that would otherwise be called for under § 142 of the Restatement. Thus, the majority’s extended analysis of how § 142 should be applied in this case contravenes the parties’ choice-of-law that the Ohio statute of limitations should apply, “without regard to conflict of law principles.”

For these reasons, I concur in the judgment REVERSING the judgment of the BAP and REMANDING for further proceedings.

      . There is a circuit split on this issue. Compare In re Lindsay with Bianco v. Erkins (In re Gaston & Snow), 243 F.3d 599, 605-7 (2d Cir. 2001) (holding that the forum state's choice-of-law rules apply in the absence of a strong federal interest), and Compliance Marine, Inc. v. Campbell (In re Merritt Dredging Co., Inc.), 839 F.2d 203, 206 (4th Cir. 1988) (same).

      . We pass over the fact that, under the circumstances of this case, California has no interest in barring PNC's claim. California law would allow the parties to select their own limitations period, even if they wanted one longer than that prescribed by the California Legislature. See ABF Capital Corp. v. Berglass, 130 Cal.App.4th 825, 30 Cal.Rptr.3d 588, 594 (2005). California’s willingness to do so suggests that it is not concerned as much with preventing the prosecution of stale claims as it is with vindicating the interest of contracting parties in seeing their agreements enforced. Indeed, California has adopted § 187 of the Second Restatement, which broadly enforces "[t]he law of the state chosen by the parties to govern their contractual rights and duties.” See Nedlloyd Lines B.V. v. Superior Court, 3 Cal.4th 459, 11 Cal.Rptr.2d 330, 834 P.2d 1148, 1150-51 (1992).

      . The majority completely ignores this italicized phrase in its analysis, noting only that “[t]he contractual choice-of-law provision in this case, adopting Ohio law, is materially identical to the one we construed in Des Brisay." Maj. Op. at 1178. But, of course, the choice-of-law provision at issue in Des Brisay did not include a provision like or comparable to the italicized phrase quoted in the text, above. See Des Brisay v. Goldfield Corp., 637 F.2d 680, 682 (9th Cir. 1981).


source: Caselaw Access Project

author: ENGLAND, District Judge:

license: Public Domain

text:
    Eric BOSTON, individually, Plaintiff-Appellee, v. KITSAP COUNTY, a Municipal Corporation organized under the laws of the State of Washington; Conmed, Inc., a foreign corporation doing business in Kitsap County, Defendants-Appellants.
    No. 15-35296
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted December 9, 2016 Seattle, Washington
    Filed April 7, 2017

      Marc Rosenberg (argued), Lee Smart P.S. Inc., Seattle, Washington, for Defendants-Appellants.
    Anthony Clarence Otto (argued), Law Office of Anthony C. Otto, Port Orchard, Washington, for Plaintiff-Appellee.
    Before: RICHARD C. TALLMAN and MORGAN CHRISTEN, Circuit Judges, and MORRISON C. ENGLAND, JR., District Judge.

       The Honorable Morrison C. England, Jr., United States District Judge for the Eastern District of California, sitting by designation.

   OPINION

ENGLAND, District Judge:

Appellants Kitsap County (“Kitsap”) and Conmed, Inc. (“Conmed”) (collectively, “Appellants”) appeal from the district court’s denial of their motion to dismiss as time barred Appellee Eric Boston’s (“Ap-pellee” or “Plaintiff’) claims brought under 42 U.S.C. § 1983. Appellee contends that the applicable statute of limitations was tolled under RCW 4.96.020. We hold, however, that because RCW 4.96.020 is a special statute of limitations as opposed to a typical tolling provision, it is not applicable to'claims filed under § 1983. As a result, we find that Appellee filed his federal complaint after the applicable three-year statute of limitations had expired, and that his § 1983 claims are thus time barred and consequently should be dismissed. We reverse the district court’s order denying Appellants’ motion to dismiss and remand with instructions to dismiss Plaintiffs § 1983 claims as time barred.

I

Appellee’s substantive claims arise out of injuries he sustained between January 3, 2011, and February 14, 2011, while he was housed at the Kitsap County Jail. Given those injuries, Appellee submitted a tort claim on January 3, 2014, to Kitsap County. Washington’s claims presentment statute, RCW 4.96.020, provides:

No action subject to the claim filing requirements of this section shall be commenced against any local government entity, or against any local government entity’s officers, employees, or volunteers, acting in such capacity, for damages arising out of tortious conduct until sixty calendar days have elapsed after the claim has first been presented to the agent of the governing body thereof. The applicable period of limitations within which an action must be commenced shall be tolled during the sixty calendar day period. For the purposes of the applicable period of limitations, an action commenced within five court days after the sixty calendar day period has elapsed is deemed to have been presented on the first day after the sixty calendar day period elapsed.

RCW 4.96.020(4).

After receiving no response from Kitsap, Appellee filed a federal district court lawsuit on March 10, 2014, in the Western District of Washington alleging causes of action for violation of 42 U.S.C. § 1983 and negligence against Kitsap and Conmed, a private entity that contracted with Kitsap to provide inmate healthcare services. Subsequently, on March 11, 2014, Appellee filed a materially identical state court action in Pierce County Superior Court. The state court action has been stayed pending resolution of this federal case.

Appellants thereafter moved in this federal action to, among other things, dismiss Appellee’s § 1983 claims as time barred. The magistrate judge issued a Report and Recommendation, which recommended rejecting Appellants’ arguments on the ground that, although “[t]here has been some dispute as to whether the tolling provision in RCW § 4.96.020(4) applies to 42 U.S.C. § 1983 actions ..., whether or not plaintiff actually filed a claim appears to be central to the district courts’ analysis.” Since Appellee had filed a claim prior to expiration of the statute of limitations, the magistrate judge determined that Ap-pellee was entitled to 60 additional days in which to file his instant § 1983 action. The district court adopted the Report and Recommendation and denied Appellants’ motion to dismiss.

Appellants subsequently moved for a “stay of proceedings and certification of issue to the Ninth Circuit,” which the district court construed as a motion for interlocutory appeal. The court granted the motion, and this appeal followed.

II

We have jurisdiction under 28 U.S.C. § 1292, and “[w]e review a district court’s decision to grant or deny a motion to dismiss pursuant to Rule 12(b)(6) de novo.” Camacho v. Bridgeport Fin. Inc., 430 F.3d 1078, 1079 (9th Cir. 2005). Questions of statutory interpretation are also subject to de novo review. Id.

Ill

It is undisputed that “[t]he Civil Rights Act of 1871 does not contain a provision limiting the time within which a claim under the Act may be brought.” Rose v. Rinaldi, 654 F.2d 546, 547 (9th Cir. 1981). “Thus, the federal courts will apply the applicable period of limitations under state law for the jurisdiction in which the claim arose.” Id. In Washington, “[t]he catch-all three-year limitations period ‘for any other injury to the person or rights of another’ contained in R.C.W. 4.16.080(2)” applies to § 1983 claims like Appellee’s. Id. Washington’s related tolling provisions apply as well. See Hardin v. Straub, 490 U.S. 536, 539, 109 S.Ct. 1998, 104 L.Ed.2d 582 (1998). It is also well settled that state notice of claim provisions are inapplicable to § 1983 actions. See Felder v. Casey, 487 U.S. 131, 133, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988); Joshua v. Newell, 871 F.2d 884, 886 (9th Cir. 1989). The question, then, is whether the 60-day extension in RCW 4.96.020(4) is a true tolling provision that would apply to Appellee’s § 1983 action, or whether it is a special statute of limitations contained in a basic notice of claim provision, which is inapplicable to Appellee’s action. To answer this question, we must first examine two related cases previously before this court: Harding v. Galceran, 889 F.2d 906 (9th Cir. 1989), and Silva v. Crain, 169 F.3d 608 (9th Cir. 1999).

In Harding, we addressed the question whether § 1983 claims were tolled pursuant to California Government Code § 945.3. 889 F.2d at 907-08. Section 945.3 “prevents civil actions against peace officers from being filed while criminal charges are pending against the potential plaintiff,” and “tolls the statute of limitations on the civil actions until the criminal charges are resolved.” Id. Harding determined that “although section 945.3 may not prohibit a potential plaintiff from bringing a section 1983 claim against a peace officer while criminal actions are pending, section 945.3’s tolling provision may still apply to toll the limitations period while criminal actions are pending against the potential plaintiff.” Id. at 908. Because state tolling provisions must be applied unless they are inconsistent with the federal law at issue, and because there was no inconsistency between § 945.3’s tolling provision and the purposes of § 1983, tolling in that instance was proper. Id. at 909.

Ten years later, we considered a related but distinct question in Silva, 169 F.3d at 609. There, plaintiff analogized his situation to Harding and argued that California’s notice of claim provision at California Government Code § 945.6 operated to change the one-year statute of limitations of his § 1983 claim to either six months after delivery of the written notice or, if no written notice was provided, two years after accrual of the cause of action, depending on the public entity’s response to the claim presented. See id. at 609-10. We rejected plaintiffs argument, reasoning that the Harding panel had “simply followed the general rule that [the court] applies] the state’s general residual statute of limitations and state rules which toll the running of that statute.” Id. at 610 (emphasis original). The statute at issue in Silva was not a state tolling provision like the provision addressed in Harding, but instead was a “separate freestanding special statute of limitations which applied] when claims [were] presented to public agencies.” Id. at 611. We therefore held that California’s general residual tort statute of limitations — and not the special statute of limitations set forth in its claims presentment statute — applied to § 1983 claims arising in California. Id.

Indeed, the statute at issue in Harding contained a classic tolling provision — it established a plaintiff-specific hurdle to filing suit, and then provided that the duration of that impediment would not be counted toward the running of the statute of limitations. On the other end of the spectrum, the provision at issue in Silva provided a classic “special statute of limitations.” Rather than pausing the applicable statute of limitations (or “stopping the clock”), that provision entirely changed the statute of limitations based on the filing of a claim. Accordingly, Harding stands for the unremarkable proposition that state tolling provisions apply to § 1983 claims (so long as they are not preempted by federal law), and Silva stands for the equally unremarkable proposition that special statutes of limitations have no bearing on those federal causes of action.

Against that backdrop we turn now to RCW 4.96.020, which is both similar to and yet unlike either provision discussed above. For the reasons set forth below, we find RCW 4.96.020 to be more akin to the special statute of limitations addressed in Silva than the standard tolling provision of Harding. We therefore hold that RCW 4.96.020 has no bearing on § 1983 actions, and as a result Appellee’s claims in this case are time barred.

A

First, though RCW 4.96.020(4) provides that the applicable limitations period “shall be tolled,” the use of the word “tolled” is not dispositive. Rather, we consider the operation of the provision — which automatically extends the applicable statute of limitations by a set number of days. The automatic extension of a statute by a uniform amount of time effectively creates an entirely new statute of limitations for any claim subject to the presentment rules. And because there can be no civil case unless a claim is presented, the “extended” statute of limitations becomes the true limitations period in all such cases.

Appellee argues that RCW 4.96.020 is a tolling provision because it stops the clock upon the filing of a claim and starts it again once the 60-day period expires. The problem with that approach on closer inspection, however, is that there is no reason to “stop” the clock when we know exactly when it will “start” again. Instead, we simply add 60 days to the underlying limitations period to calculate the new limitations period. Despite use of the word “tolling,” in application RCW 4.96.020(4) changes the statute of limitations based on the claims presentment statute and establishes a new statute of limitations applicable to all similarly situated plaintiffs (i.e., plaintiffs suing defendants entitled to presentment) across the board. See Castro v. Stanwood Sch. Dist. No. 401, 151 Wash.2d 221, 226, 86 P.3d 1166 (2004) (describing RCW 4.96.020(4) as a “tolling provision” but noting that “[e]ssentially, the provision adds 60 days to the end of the otherwise applicable statute of limitations”). Because the statute creates the same new limitations period for every similarly situated litigant, use of the word “tolled” is imprecise.

B

Second,' true “tolling provisions” are commonly put in place to address a recognized impediment to filing suit. Typically, this impediment is outside of the plaintiffs control, and the respective tolling period differs from person to person depending on the duration of the particular impediment. An ordinary plaintiff does not control the factors giving rise to the need for tolling and thus cannot unilaterally stop the limitations clock. Tolling provisions provide for an unknown tolling period because the duration of the underlying impediment is unknown and unknowable. RCW 4.96.020 does none of that.

1

In the context of § 1983 actions, RCW 4.96.020 permits a plaintiff to unilaterally extend the limitations period by filing a claim. Because § 1983 plaintiffs are not required to present their federal claims pursuant to state notice of claims statutes, see Felder v. Casey, 487 U.S. 131, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988); Joshua v. Newell, 871 F.2d 884, 886 (9th Cir. 1989), a choice to do so is a unilateral decision on the part of a plaintiff. The opportunity to exercise that option is much different than the circumstances that traditionally give rise to tolling in other cases.

This is important because allowing a plaintiff to unilaterally modify an existing statute of limitations, especially when it can be done on the last day of the limitations period as is permissible under RCW 4.96.020, is inconsistent with the policies underlying the longstanding use of statutes of limitations in our judicial system. “Statutes of limitations serve the policies of ‘repose, elimination of stale claims, and certainty about a plaintiffs opportunity for recovery and a defendant’s potential liabilities.’ ” In re Neff, 824 F.3d 1181, 1185 (9th Cir. 2016) (quoting Young v. United States, 535 U.S. 43, 47, 122 S.Ct. 1036, 152 L.Ed.2d 79 (2002)). “By setting a deadline for bringing a claim, statutes of limitations encourage plaintiffs to pursue diligent prosecution of known claims [ ] and thereby protect defendants against stale or unduly delayed claims.” Id. (internal quotation marks and citations omitted). If a plaintiff can wait until the last minute, file an optional state claim, and thereby extend the statute of limitations applicable to a § 1983 action, the plaintiff is able to sit on his rights (as in this case), instead of diligently pursuing his available causes of action. More importantly, it undermines the protection defendants count on to avoid “stale or unduly delayed claims.”

The import of these limitations periods to potential defendants is all the more evident if we consider the impact Appel-lee’s interpretation of RCW 4.96.020(4) would have on a public servant. “[Statutes of limitation are among the universally familiar aspects of litigation considered indispensable to any scheme of justice,” Felder, 487 U.S. at 140, 108 S.Ct. 2302, and civil defendants thus depend on knowing there is some determinable limit on their potential liability. In Washington, § 1983 actions are subject to a three-year statute of limitations period. As a result, a public servant (e.g., a peace officer) would typically be able to determine the point at which a claim would be so stale that he or she could no longer be forced to defend against it. That is not the case if a plaintiff may decide on the last day of the applicable limitations period to file a claim pursuant to RCW 4.96.020, thereby garnering for himself 60 more days to pursue a civil action. Indeed, under such a circumstance, the plaintiff would be put in the position to unfairly control the course of litigation.

A plaintiffs ability to unilaterally control the statute of limitations therefore cuts against the interpretation that ROW 4.96.020(4) is a tolling provision. Our analysis is also consistent with the decision in Harding. In that case, the plaintiff was involuntarily prevented from pursuing a suit as to his state claims because the state made the decision to prosecute him. Whether the plaintiff was subject to criminal prosecution was outside of his control and no action was required by plaintiff to trigger the right to tolling. Importantly, the impediment was known to all and could not be used to blindside a potential defendant. Under those circumstances, applying a rule that extended the tolling provision to § 1983 actions, even if a plaintiff was not prohibited from bringing the action itself, did not operate to allow one party to gain an unfair advantage over another.

Accordingly, given the fact that under Appellee’s argument, ROW 4.96.020(4) would permit him to unilaterally extend the statute of limitations applicable to his § 1988 claim, it differs from traditional tolling provisions and is more akin to a special statute of limitations.

2

As mentioned above, ROW 4.96.020 also differs from a typical tolling provision in that it extends the relevant statute of limitations by the same amount of time — 60 days — for every plaintiff and in every case. Generally, when it comes to tolling provisions, the legislature is unable to predict how much time any particular statute will need to be extended in an individual case, and so it provides that a statute is tolled until the relevant impediment comes to an end. For example, although the age of majority will typically be the same in any particular state, how long it takes a plaintiff to reach that age will differ in each case. Similarly, the amount of time a potential defendant may be serving in the military or at war, or the length of a criminal prosecution, will vary.

A special statute of limitations, on the other hand, is triggered when a plaintiff makes a conscious decision to file a claim and, as in Silva, an entirely new limitations period becomes applicable. That is precisely the case here. Appellee decided to file a claim, and, at least as to his negligence cause of action, his statute of limitations became three years plus 60 days. The limitations period would be the same for any litigant pursuing a negligence claim against Kitsap because filing a claim is a mandatory condition precedent to filing suit. Stated another way, there is only one statute of limitations applicable to a claim like Appellee’s negligence cause of action, and that is the one set forth in RCW 4.96.020(4). A plaintiff in Appellee’s shoes would never be subjected to a three-year statute of limitations because he must timely submit a claim in order to litigate his case at all. If he timely submits a claim, his statute of limitations is automatically three years and 60 days. Accordingly, despite use of the word tolling, and despite any language indicating that a clock starts or stops, RCW 4.96.020(4) is, at base, a special statute of limitations.

C

Finally, although not controlling in this court, it is significant that the only Washington state appellate court to address the issue so far has agreed that the 60-day extension of time under RCW 4.96.020(4) should not apply to § 1983 actions. See Southwick v. Seattle Police Officer John Doe #s 1-5, 145 Wash.App. 292, 186 P.3d 1089, 1090 (2008). The Southwick court reasoned that:

As in Silva, the relevant law is a notice of claims statute containing a tolling provision. The tolling provision of RCW 4.96.020(4) is not a general tolling provision applicable to all personal injury actions. It is contained in the same statute requiring a delay of 60 days following the mandatory filing of a state claim with a local government agency before the commencement of suit and is inextricably intertwined with this claim-filing requirement. It has no application generally to personal injury actions where no claim is required, and no applicability to § 1983.

Id. at 1093. Although the Southwick panel refers to RCW 496.020(4) as a “tolling provision,” it then goes on to state, “[a]s the Silva court noted, state notice of claims statutes and their special statutes of limitations have no application to § 1983 claims.” Id We agree with Southwick’s ultimate conclusion that RCW 4.96.020(4) is not a “general tolling provision” that needs to be incorporated into the statute of limitations for § 1983 claims. The fact that the State of Washington itself has determined that its own statute was intended as a special statute of limitations that should not be imported federally as a tolling provision is, at the very least, persuasive support for holding the same.

D

We also note that even if RCW 496.020 acted to toll the statute of limitations on Appellee’s § 1983 action, it would nonetheless not act to toll that limitations period as to Conmed. Conmed is a private entity, separate and distinct from Kitsap, and Conmed was not entitled to receive — and did not in fact receive — notice of the claim. Appellee has cited no authority indicating that such a defendant, even if its operations are intertwined with that of a public entity, should be bound by an extension of a statute of limitations period derived from a notice of claim statute, especially when that defendant was not entitled to a claim and was never presented with one.

IV

RCW 4.96.020 contains a special statute of limitations. It does not operate to toll the state’s general residual limitations period applicable to § 1983 actions, and Ap-pellee’s § 1983 claims should thus have been dismissed. We therefore REVERSE and REMAND, with instructions to the district court to dismiss Plaintiffs § 1983 claims as time barred.

      . See, e.g., RCW 4.16.170 (Tolling of statute— Actions, when deemed commenced or not commenced); RCW 4.16.180 (Statute tolled by absence from state, concealment, etc.); RCW 4.16.200 (Statute tolled by death); RCW 4.16.210 (Statute tolled — by war as to enemy alien); RCW 4.16.220 (Statute tolled — As to person in military service of United States); RCW 4.16.230 (Statute tolled by judicial proceedings); RCW 7.75.080 (Statutes of limitations tolled until dispute resolution process concluded); RCW 19.120.100 (Limitation period tolled); RCW 19.86.Í20 (Limitation of actions — Tolling).

      . This is much different from the compulsory application of the statute to state claims where a claimant must file a claim or lose a cause of action. When a claim is mandatory, circumstances outside of the plaintiff’s control warrant an extension of time to accommodate a state-imposed obligation. Because the plaintiff is at an unavoidable disadvantage, the system acts to equalize the playing field by extending the time during which a defendant remains subject to liability.

      . The interests at stake in the instant case are much different than those discussed in Harding. Here, a plaintiff may simply be required to initiate a judicial § 1983 action prior to having a local entity review and dispose of his claim. He is nonetheless pursuing the same claims against the same parties, whose interests in each proceeding align. Such is not the case when a criminal defendant is simultaneously defending against criminal charges and pursuing civil relief. In the latter case, aside from the potential conflicts identified in Harding, the litigant could find that his Fifth Amendment right against self-incrimination acts as a bar to adequately pursuing his civil claims or, conversely, that attempting to fully prosecute a civil action could jeopardize his Fifth Amendment rights. This type of conflict is much more fundamental to our basic system of rights than anything arguably associated with pursuing a § 1983 action prior to resolution of a plaintiff’s presented claims and is more akin to the traditional "impediments” that statutes of limitation are intended to address.

      . The internally conflicting statements in Southwick regarding whether RCW 4.96.020(4) is a tolling provision or special statute of limitations are indicative of the loose manner in which federal and state courts across the board use those terms.


author: SCHROEDER, Circuit Judge:

text:
    Ben L. FORTSON, Plaintiff-Appellant, v. LOS ANGELES CITY ATTORNEY’S OFFICE; California Department of Justice, Bureau of Firearms; City of Los Angeles Police Department; Carmen A. Trutanich, individual and City Attorney, official capacity; Bernie Brown, individual and Supervising Attorney, official capacity; Victor Brown, individual and Detective II, Serial No. 30082, official capacity; Rick Tompkins, Detective Supervisor of Gun Unit, No. 27904, official capacity; Wong, L.A.P.D. Police Officer II, No. 21883, official capacity; Hernandez, L.A.P.D. Police Officer II, No. 36039, official capacity; Ross, L.A.P.D. Police Officer III, No. 25445, official capacity; Higa, D.O.J. Agent, official capacity; Torres, D.O.J. Agent, official capacity; Mejia, D.O.J. Agent, official capacity; Malaika Cole, individual and L.A. City Attorney, official capacity; Alin Cem Cem Sahagian, individual and L.A. City Attorney, official capacity; Gregory Alan Dorfman, individual and L.A. City Attorney, official capacity; Carol Parszik, Special Agent/Supervisor, official capacity; Kosal Bun, Individual and Los Angeles Police Officer, No. 33600, official capacity, Defendants-Appellees.
    No. 15-55497
    United States Court of Appeals, Ninth Circuit.
    Submitted February 6, 2017 , Pasadena, California
    Filed April 7, 2017

      Benjamin L. Fortson, Lake Los Ange-les, California, pro se Plaintiff-Appellant.
    Michael N. Feuer, City Attorney; Paul L. Winnemore, Deputy City Attorney; Office of the Los Angeles City Attorney, Los Angeles, California; for Defendants-Appel-lees.
    Terry A. Barak, Deputy Attorney General; Elizabeth S. Angres, Supervising Deputy Attorney General; Kristin G. Ho-gue, Senior Assistant Attorney General; Xavier Becerra, Attorney General; Office of the Attorney General, Los Angeles, California; for State Defendants-Appellees.
    Before: MARY M. SCHROEDER, ANDRE M. DAVIS, and MARY H. MURGUIA, Circuit Judges.

       The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

       The Honorable Andre M. Davis, United States Circuit Judge for the Fourth Circuit, sitting by designation.

   OPINION

SCHROEDER, Circuit Judge:

This appeal challenges the constitutionality of California’s ten-year ban on possession of firearms after a conviction for misdemeanor domestic violence. Plaintiff Benjamin Fortson appeals the dismissal of his action under 42 U.S.C. § 1983 for failure to state a claim. He contends that the Los Angeles Police Department, the Los Angeles City Attorney’s Office, the California Bureau of Firearms, and individual officers, agents, and attorneys violated his Second Amendment rights by seizing firearms and ammunition he kept in his home, and then prosecuting him for the unlawful possession of firearms and ammunition. Fortson had previously been convicted of misdemeanor domestic violence, which under California law, automatically triggers a ten-year prohibition on the ownership or possession of firearms and ammunition. Fortson’s sentencing judge gave him a partial exception so Fortson could keep and possess firearms at his place of work as an armed security guard.

Fortson challenges the California law both facially and as applied to him. Since we have already upheld the more restrictive federal lifetime ban for persons convicted of misdemeanor domestic violence, we now must uphold the California law as well. See United States v. Chovan, 735 F.3d 1127, 1139-41 (9th Cir. 2013). We also hold that the law was validly applied to Fortson.

Fortson additionally maintains that defendants violated his Fourth and Fourteenth Amendment rights by falsely arresting him and maliciously prosecuting him. Since the record reflects that his arrest and prosecution were based on probable cause that he possessed the weapons unlawfully, he necessarily cannot be granted relief on these claims. See Dubner v. City & Cty. of San Francisco, 266 F.3d 959, 964 (9th Cir. 2001) (holding that the existence of probable cause is a complete defense to a § 1983 claim alleging false arrest); Lassiter v. City of Bremerton, 556 F.3d 1049, 1054-55 (9th Cir. 2009) (holding the same for malicious prosecution).

Fortson also claims a violation of the Fifth and Fourteenth Amendments because he was never read a warning regarding his rights per Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Miranda claims, however, are not cognizable under 42 U.S.C. § 1983. See Chavez v. Martinez, 538 U.S. 760, 772, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003).

Lastly, Fortson brings official-capacity claims against the Los Angeles Police Department, Los Angeles City Attorney’s Office, and the California Bureau of Firearms. The California Bureau of Firearms, however, is immune from suit under the Eleventh Amendment. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Fort-son’s official-capacity claims against the Los Angeles Police Department also fail because Fortson has not sufficiently alleged an underlying constitutional violation or otherwise identified an official policy or custom that was the “moving force” behind a potential constitutional violation. See Yousefian v. City of Glendale, 779 F.3d 1010, 1016 (9th Cir. 2015); Monell v. Dep’t of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). We therefore affirm the judgment of the district court.

BACKGROUND

Benjamin Fortson was convicted of a single count of misdemeanor domestic abuse in violation of Cal. Penal Code § 243 on September 25, 2009. Under California law, a conviction for Cal. Penal Code § 243 triggered Cal. Penal Code § 12021(c)(1), which makes it a misdemeanor to own, purchase, receive, or have in one’s custody or control any firearm for a period of ten years. Fortson’s employment, however, was as an armed security guard, and, in light of this, the sentencing court entered a modification specifically allowing him to use and keep a weapon while at work. Fortson was not allowed to have weapons at his home or in his possession when not at work.

On April 13, 2011, Fortson returned to court because he had satisfied all the affirmative obligations of his sentence. Under Cal. Penal Code § 1203.4, his domestic violence conviction was vacated and his probation and protective order were terminated. Fortson changed his plea from nolo contendere to not guilty, and the case was dismissed. Fortson apparently, but incorrectly, believed this restored his right to keep and possess firearms at home, and he soon acquired two guns and some ammunition.

The California Bureau of Firearms (“BOF”) routinely runs an automatic nightly computer check to determine if any prohibited persons are in unlawful possession of firearms. One of these checks flagged Fortson. Per BOF policy, BOF agents accompanied by Los Angeles Police Department (“LAPD”) officers arrived at Fortson’s home on August 24, 2011. Under BOF policy, the officers were to inform Fortson that they had reason to believe he was in unlawful possession of firearms, and request permission to enter and seize them; if permission was denied, the officers were to return with a warrant.

When the officers arrived at Fortson’s home they demanded his weapons. Fortson repeatedly maintained that he was allowed to keep and possess firearms at home under his sentencing order. Over his objections and after restraining him, the officers seized the weapons. Fortson was later charged with violating the ten-year ban on owning firearms and ammunition, but these charges were eventually dropped in the furtherance of justice.

Fortson filed this Section 1983 action in 2012. The district court dismissed the individual prosecutors and City Attorney’s office on grounds of absolute prosecutorial immunity and dismissed the BOF on sovereign immunity grounds. It also dismissed Fortson’s facial challenge to California’s ten-year prohibition, but gave Fortson leave to file an amended complaint to state an as applied challenge. Fortson filed his amended complaint, bringing individual- and official-capacity claims based on violations of the Second Amendment both facially and as applied, as well as a Miranda claim, and claims of false imprisonment and malicious prosecution. The district court then dismissed all these claims with prejudice. A Fourth Amendment claim of unlawful search against the BOF agents and LAPD officers in their individual capacities survived the motion to dismiss. Fortson, however, agreed to voluntarily dismiss that claim without prejudice so that he could pursue this appeal.

DISCUSSION

Fortson argues that California’s ten-year ban is facially invalid under the Second Amendment. In the alternative, he contends that the sentencing court did not impose the full ten-year ban, so that the seizure of his guns as violating the ten-year ban was unconstitutional as applied to him. The precedential legal issue is the constitutionality of the ten-year ban. Our decision is controlled by our circuit precedent upholding an even stricter federal ban.

In United States v. Chovan, we upheld 18 U.S.C. § 922(g)(9) against a challenge to its validity under the Second Amendment. That law imposes a lifetime ban on firearm ownership for those convicted of misdemeanor domestic violence. Applying intermediate scrutiny, we noted that the “core of the Second Amendment is ‘the right of law-abiding, responsible citizens to use arms in defense of hearth and home.’ ” Chovan, 735 F.3d at 1138 (quoting Dist. of Columbia v. Heller, 554 U.S. 570, 635, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008)). The federal lifetime ban thus does not implicate the core of the Second Amendment because it “regulates firearm possession for individuals with criminal convictions.” Id.

We went on to observe that the ban did, however, place a “quite substantial” burden on “domestic violence misdemeanants’ rights.” Id. Nonetheless, we noted that the federal ban “advances an important government objective ... [of] preventing domestic gun violence.” Id. at 1139 (emphasis in original). Looking to the purpose and history of the federal ban, we held that domestic violence has a high rate of recidivism, and when a gun is used, domestic violence is far more likely to result in the victim’s death. Thus, there is a reasonable fit between preventing domestic gun violence and preventing domestic abusers from possessing or using guns. In light of this, we held that the federal lifetime ban was substantially related to the important government interest. See id. at 1139-40 (noting the “high rate of domestic violence recidivism,” the use of firearms in “roughly 65% of [domestic violence] murders,” and that “the use of guns by domestic abusers is more likely to result in the victim’s death”).

California’s ten-year ban advances the same government interest and is substantially related to that interest for the reasons we identified in Chovan. Indeed, it is far less restrictive and less burdensome on domestic violence misdemeanants’ rights in that it only restricts ownership, use, or possession of firearms for ten years, rather than for life. Thus, as we held with respect to the federal lifetime ban, “the statute passes constitutional muster under intermediate scrutiny.” Id. at 1141.

In Fortson’s as-applied challenge, he argues that the ban does not apply to him. He appears to be under the misapprehension that because his sentencing court did not specifically notify him that the ban on keeping or using firearms in his home lasted ten years, it was coterminous with his probation. This is not so. The prohibition attached automatically, and though it has a notice requirement, lack of notice is not a defense. See Cal. Penal Code § 29810. Though his sentencing court granted Fortson an exception to the ban so he could use and keep guns for his job, the exception was applied only to his possession of guns at his place of work. Fortson alleged no other facts about himself and his background that would distinguish him from any other domestic violence misde-meanant, and thus his as-applied challenge fails. See Chovan, 735 F.3d at 1142; see also Binderup v. Att’y Gen. United States of America, 836 F.3d 336, 346 (3d Cir. 2016) (en banc) (holding that a plaintiff must allege facts that distinguish him from the typical person the ban applies to in order to state an as applied claim).

Fortson’s other claims were also correctly dismissed. The malicious prosecution and false arrest claims necessarily fail because his arrest and prosecution were supported by probable cause. See Dubner, 266 F.3d at 964 (“A claim for unlawful arrest is cognizable under § 1983 as a violation of the Fourth Amendment, provided the arrest was without probable cause or other justification.”); Lassiter, 556 F.3d at 1054-55 (“[PJrobable cause is an absolute defense to malicious prosecution.”). Fortson’s arrest and prosecution followed the discovery of his unlawfully possessed guns and ammunition. Although the search that uncovered his guns may have been unlawful, evidence recovered can nevertheless create probable cause sufficient to defeat subsequent claims of malicious prosecution and unlawful arrest/imprisonment. See Lingo v. City of Salem, 832 F.3d 953, 959-60 (9th Cir. 2016) (rejecting the argument that “probable cause to arrest may be supported only by information that was obtained in accordance with the Fourth Amendment”). Here, the officers actually knew that Fort-son had guns and ammunition because the officers found them, and the officers had reason to believe, based on the BOF flag, that he was prohibited from possessing them. See Dubner, 266 F.3d at 966 (“Probable cause exists when, under the totality of the circumstances known to the arresting officers. ..., a prudent person would believe the suspect had committed a crime.”). The district court properly dismissed his malicious prosecution and false arrest claims.

The Miranda claim also fails because the Supreme Court has held that failure to give Miranda warnings does not create liability in a civil rights action. Chavez, 538 U.S. at 772, 123 S.Ct. 1994.

The district court also properly dismissed Fortson’s official-capacity claims against the Los Angeles City Attorney’s Office, LAPD, and the BOF. The district court correctly concluded that the BOF is immune from suit under the Eleventh Amendment. See Will, 491 U.S. at 66, 109 S.Ct. 2304. Further, Fortson’s official-capacity claims against the LAPD also fail because he has not sufficiently alleged an underlying constitutional violation or otherwise identified an official policy or custom that was the “moving force” behind a potential constitutional violation. See Yousefian, 779 F.3d at 1016; Monell, 436 U.S. at 69, 98 S.Ct. 1670.

For the foregoing reasons, the district court properly dismissed Plaintiffs claims.

AFFIRMED.

      . California has since made minor changes to this law and changed its codification; the current version can be found at Cal. Penal Code § 29805.


author: THOMAS, Chief Judge: THOMAS, Chief Judge,

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Guillermo ARRIAGA-PINON, aka Guillermo Pinon-Ariaga, Defendant-Appellant.
    No. 16-50188
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted February 8, 2017, Pasadena, California
    Filed April 7, 2017

      Kara Hartzler, Federal Defenders of San Diego, Inc., San Diego, California, for Defendant-Appellant.
    Mark R. Rehe, Assistant United States Attorney; Helen H. Hong, Chief, Appellate Section, Criminal Division; Laura E. Duffy, United States Attorney; United States Attorney’s Office, San Diego, California; for Plaintiff-Appellee.
    Before: SIDNEY R. THOMAS, Chief Judge, and ANDREW J. KLEINFELD and JACQUELINE H. NGUYEN, Circuit Judges.
   Concurrence by Chief Judge THOMAS

OPINION

THOMAS, Chief Judge:

Guillermo Arriaga-Pinon (“Arriaga”) appeals an eighteen-month sentence imposed after he pleaded no’ contest to unlawful reentry following removal in violation of 8 U.S.C. §§ 1326(a) and (b). Arriaga contends that, in light of the United States Supreme Court’s decision in Mathis v. United States, — U.S. —, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016), the district court erred when it applied the modified categorical approach to determine that his 2014 conviction under California Vehicle Code section 10851(a) constituted an aggravated felony. In the alternative, Arria-ga argues that even if section 10851(a) is divisible, and the modified categorical approach applied, the record of conviction does not demonstrate that he was convicted of an aggravated felony theft offense. We agree with Arriaga’s alternative argument. We therefore vacate Arriaga’s sentence and remand for resentencing.

I

After waiving indictment, Arriaga was charged with unlawful reentry into the United States in violation of 8 U.S.C. §§ 1326(a) and (b). According to the information, he was found in California in January 2016 despite having been “excluded, deported and removed from the United States to Mexico” in December 2015. Arri-aga pleaded guilty and was sentenced to eighteen months in prison and two years of supervised release.

Arriaga had previously been convicted of violating California Vehicle Code section 10851(a) in January 2014. Count One of the relevant complaint alleged:

On or about January 17, 2014, [Arriaga] ... did unlawfully drive and take a certain vehicle, to wit, 1985 Nissan ... then and there the personal property of DANIEL BAUTISTA, ABRAHAM LOPEZ without the consent of and with intent, either permanently or temporarily, to deprive the said owner of title to and possession of said vehicle.

In the plea colloquy, Arriaga pled no contest to what the court described as “unlawful driving or taking of a vehicle in violation of Vehicle Code Section 10851(a).”

The presentencing report acknowledges a discrepancy as to the count of conviction in the court documents in that the judgment notes Arriaga was convicted of receiving ¡stolen property under Count 3 as well as of stealing a vehicle under Count 1. Nevertheless, the presentencing report concludes — and the parties appear to agree — that Arriaga only pleaded nolo con-tendere to Count 1 of the felony complaint, which states that Arriaga did “unlawfully drive and take a certain vehicle, to wit, 1985 Nissan [personal property of owner] ... without the consent of and with intent, either permanently or temporarily, to deprive the said owner of title to and possession of said vehicle.” A minute order dated January 22, 2014, also recorded that Arria-ga pleaded nolo contendere to Count 1, a violation of section 10851(a). The plea transcript reflects the same, indicating that Arriaga pled nolo contendere on Count 1 alongside a co-defendant who pled nolo contendere on Count 3.

At sentencing, the United States argued that, pursuant to United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) § 2L1.2(b)(1)(C), Arriaga should be subject to an eight-level sentencing enhancement on the basis of this conviction. Specifically, the government explained that although section 10851 is not a categorical match for an aggravated felony theft offense under 8 U.S.C. § 1101(a)(43)(G), the state statute is divisible and the modified categorical approach would reveal a match. The district court agreed and applied the enhancement, ultimately sentencing Arriaga to eighteen months in prison — the lowest in the range — after having taken into account some mitigating factors.

Arriaga timely appealed his sentence, arguing that Mathis v. United States, — U.S. —, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016), made the modified categorical approach inapplicable to section 10851(a) because the statute is indivisible under Mathis and therefore it cannot qualify as a generic theft offense. In the alternative, Arriaga argued that even if section 10851(a) remains divisible under the new Mathis framework, his own conviction documents do not unambiguously show that he was convicted of an aggravated felony theft offense.

Whether a specific “conviction constitutes an aggravated felony for purposes of U.S.S.G. § 2L1.2(b)(1)(C) is a question of law that [this Court] review[s] de novo.” United States v. Vidal, 504 F.3d 1072, 1075 (9th Cir. 2007) (en banc).

II

Our examination to determine whether a conviction constitutes an aggravated felony under the Guidelines is governed by the analysis articulated by the Supreme Court in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), as recently modified by Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) and Mathis v. United States, — U.S. —, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). Under that analysis, we inquire first “whether the elements of the crime of conviction sufficiently match the elements of [the generic federal crime].” Mathis, 136 S.Ct. at 2248. If the statute is over-broad and thus not a categorical match, we next ask whether the statute’s elements are also an indivisible set. See id. at 2248-49. Finally, if the statute is divisible, then the modified categorical approach applies and “a sentencing court looks to a limited class of documents ... to determine what crime, with what elements, a defendant was convicted of.” Id. at 2249; see also Almanza-Arenas v. Lynch, 798 F.3d 863, 867-68 (9th Cir. 2015) (en banc).

Our first task, then, is to examine the statute of conviction to determine whether it categorically qualifies as a predicate offense for federal sentencing purposes. In doing so, we focus solely on whether the elements of the statute of conviction match the elements of the identified qualifying federal offense. Taylor, 495 U.S. at 600-01, 110 S.Ct. 2143. If they do, the conviction may be used to enhance the sentence without looking further. However, if the state statute criminalizes conduct that would not qualify as a federal predicate offense, then the offense does not categorically qualify as a proper predicate offense. United States v. Corona-Sanchez, 291 F.3d 1201, 1203 (9th Cir. 2002) (en banc), superseded on other grounds by U.S.S.G. § 2L1.2 emt. n. 2 (2002). In this case, our task is easy, because we have already held that a conviction under section 10851(a) does not satisfy the elements of the generic theft offense, as required in order to apply the categorical approach. Vidal, 504 F.3d at 1074. Section 10851(a) does not match the elements of the generic theft offense because it applies not only to the principals and accomplices, but also to accessories after the fact. See id. at 1074-75.

Thus, we turn to the second analytical step, namely, whether section 10851(a) contains a single, indivisible set of elements. At first blush, that examination would appear easy, because we have previously held that “California Vehicle Code section 10851(a) is divisible in that it imposes criminal liability in the alternative on principals as well as on accessories after the fact.” Duenas-Alvarez v. Holder, 733 F.3d 812, 814 (9th Cir. 2013). That would seem to end the matter. However, Arriaga argues that Mathis compels the conclusion that the statute is actually indivisible. Thus, he contends that Duenas-Alvarez must be overruled.

Three-judge panels are not free to overrule prior circuit precedent unless intervening Supreme Court or en banc authority “undercuts] the theory or reasoning underlying the prior circuit precedent in a way that the cases are clearly irreconcilable.” Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). As discussed in the concurrence, there are serious questions as to whether Duenas-Alvarez is clearly irreconcilable with Mathis. However, we need not reach that question in this case because, even assuming Duenas-Alva-rez remains good law, the conviction fails to satisfy the modified categorical test at stage three, and therefore is not a qualifying predicate offense.

At stage three of the examination, we employ the modified categorical analysis. “The modified categorical approach allows courts to look beyond the statutory text to a limited set of documents to determine the elements of the state offense of which the defendant was convicted when some alternative elements of the state crime would match the federal, generic crime, and other alternative elements would not.” Rendon v. Holder, 764 F.3d 1077, 1083 (9th Cir. 2014). The modified categorical approach “merely helps implement the categorical approach when a defendant was convicted of violating a divisible statute.” Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 2285, 186 L.Ed.2d 438 (2013). Thus, the modified approach “retains the categorical approach’s central feature: a focus on the elements, rather than the facts, of a crime.” Id.

Under the modified categorical analysis, “[a] prior conviction based on an overly inclusive criminal statute that resulted from a guilty plea rather than a jury verdict will support a sentence enhancement only if the record confirms that the plea ‘necessarily’ rested on the fact identifying the [offense] as generic.” United States v. Vidal, 504 F.3d 1072, 1086 (1997) (en banc) (quoting Shepard v. United States, 544 U.S. 13, 21, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)). In making this determination,’ our review is “limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Shepard, 544 U.S. at 16, 125 S.Ct. 1254. We may not “look beyond the record of conviction itself to the particular facts underlying the conviction.” Fenandez-Ruiz v. Gonzales, 468 F.3d 1159, 1164 (9th Cir. 2006) (internal quotation marks omitted) (quoting Tokatly v. Ashcroft, 371 F.3d 613, 620 (9th Cir. 2004)).

In this case, we confront a record of conviction almost identical to the one we considered in Vidal. In that case, we concluded that the judicially noticable documents did not satisfy the requirements of the modified categorical approach because the record of conviction did not establish that he was actually convicted of a qualifying aggravated felony theft offense. The felony complaint in Arriaga’s case describes him as “unlawfully driving] and tak[ing] a certain vehicle,” which is precisely the same as the complaint in Vidal, see 504 F.3d at 1075. In Vidal’s, case, as in Arriaga’s, “the written plea and waiver of rights form shows that [the defendant] pled guilty only to driving a stolen vehicle” and that “[n]o recitation of the factual basis for [his] plea appears on this form.” Id. In both cases, the defendants entered a nolo contendere plea. Both pleas were given as to the statute, not the charging document. Thus, neither defendant admitted “the specific details about his conduct on the counts to which he pled guilty.” Id. at 1089 (quoting Carty v. Nelson, 426 F.3d 1064, 1068 (9th Cir. 2005)). Further, in Arriaga’s plea colloquy, the court asked how Arriaga would plead to “Count 1 with unlawful driving or taking of a vehicle in violation of Vehicle Code Section 10851(a).” The record is ambiguous whether Arriaga was pleading nolo contendere to the “or” stated in the plea colloquy or to the “and” in the felony complaint. Thus, from the judicially noticable documents we may examine under the modified categorical approach, the record does not establish as to whether he was convicted as a principal or as an accessory after the fact. Therefore, the conviction does not qualify under the modified categorical approach.

The government contends that Duenas-Alvarez suggests a different conclusion. However, Duenas-Alvarez involved markedly different facts. The defendant was charged with the crime of taking a vehicle without the owner’s consent and that he “did willfully and unlawfully drive or take” the vehicle. 733 F.3d at 815. The abstract of judgment showed that the defendant pleaded guilty to “auto theft.” Id. In short, the conviction documents in Duenas-Alva-rez differ significantly from the documents at issue here and in Vidal. Vidal compels our conclusion that the judicially noticable documents are not sufficient to show that Arriaga was convicted of an aggravated felony within the meaning of the Guidelines.

Accordingly, the district court erred in applying a sentencing enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(C). We therefore reverse and remand for resentencing.

REVERSED AND REMANDED.

THOMAS, Chief Judge,

concurring:

I take the somewhat unusual step of writing a separate concurrence to address the issue the panel did not need to resolve, namely whether the Supreme Court’s recent analysis in Mathis v. United States, — U.S. —, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016) requires us to overrule Duenas-Alvarez v. Holder, 733 F.3d 812 (9th Cir. 2013). I conclude that it does. However, three judge panels should take care in overruling prior circuit precedent as posing an “irreconcilable conflict” with intervening precedent pursuant to Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). In this case, because the defendant was entitled to relief regardless of whether Duenas-Alvarez remained good law, there was no need to reach that issue. However, because Mathis has altered the legal landscape, I believe that the question should be addressed at an appropriate time.

In Mathis, the Court emphasized “Tailor’s demand for certainty” in determining whether the statute of conviction qualified as a predicate offense under applicable federal law. 136 S.Ct. at 2257 (quoting Shepard v. United States, 544 U.S. 13, 21, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)). The focus of Mathis was the determination of that “certainty” in deciding whether the statute of conviction was divisible at stage two of the analysis we described in Lopez-Valencia v. Lynch, 798 F.3d 863, 867-68 (9th Cir. 2015) (en banc).

In Mathis, the Court analyzed a law that did not categorically qualify as a predicate crime. It thus proceeded to examine whether the statute was divisible because it listed multiple elements disjunctively, or indivisible because it enumerated various factual means of committing a single element of the crime. 136 S.Ct. at 2249. Thus, the “first task for a sentencing court faced with an alternatively phrased statute is thus to determine whether its listed items are elements or means.” Id. at 2256. To make that determination, the Court instructed that three different sources should be consulted: (1) state case law, (2) the text of the statute, and (3) certain conviction records. Id. at 2256-57.

As to state case law, the Court noted that federal courts are bound by state courts’ interpretation of state law, including any determination of a state offense’s elements. Johnson v. United States, 559 U.S. 133, 138-39, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). So, when a state supreme court has held that a statute lists “ ‘alternative method[s]’ of committing one offense ... a sentencing judge need only follow” that guidance. Mathis, 136 S.Ct. at 2256 (citing Schad v. Arizona, 501 U.S. 624, 636, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991)).

The Court also noted that “the statute on its face may resolve the issue” by assigning different punishments to different statutory alternatives. Id. Under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), those alternatives must necessarily be elements. Id. By contrast, “if a statutory list is drafted to offer ‘illustrative examples,’ then it includes only a crime’s means of commission.” Id. (citing United States v. Howard, 742 F.3d 1334, 1348 (11th Cir. 2014); United States v. Cabrera-Umanzor, 728 F.3d 347, 353 (4th Cir. 2013)).

Finally, if “state law fails to provide clear answers, federal judges have another place to look: the record of a prior conviction itself.” Mathis, 136 S.Ct. at 2256. Indeed, the Court cited Judge Kozinski’s explanation of this tool approvingly, writing that “such a ‘peek at the [record] documents’ is for ‘the sole and limited purpose of determining whether [the listed items are] elements] of the offense.” Id. at 2257 (alterations in original) (citing Rendon v. Holder, 782 F.3d 466, 473-74 (9th Cir. 2015) (Kozinski, J., dissenting from denial of reh’g en banc)). Helpful documents may include “an indictment and correlative jury instructions.” Id. And the use of “a single umbrella term” in charging documents might show that each listed alternative is only a possible means of commission whereas “referencing one alternative term to the exclusion of all others” could indicate that the statute contains a list of elements. Id. But the Court also noted that “such record materials will not in every case speak plainly, and if they do not, a sentencing judge will not be able to satisfy ‘Taylor’s demand for certainty’ when determining whether a defendant was convicted of a generic offense.” Id. (citing Shepard, 544 U.S. at 21, 125 S.Ct. 1254).

Applying the Mathis analysis to the statute in question leads to the conclusion that it is an individual statute for federal sentencing purposes.

First, California case law does not establish that the statute is divisible under the Mathis analysis. There is no example of a California case that defines a separate set of elements under section 10851 for those convicted as a principal under the statute and those convicted as an accessory after the fact. See People v. Barrick, 33 Cal.3d 115, 187 Cal.Rptr. 716, 654 P.2d 1243, 1255 (1982) (in bank) (defining the elements of section 10851); People v. Moon, 37 Cal.4th 1, 32 Cal.Rptr.3d 894, 117 P.3d 591, 607 (2005) (“[Section 10851] requires a driving or taking with the specific intent to deprive the owner permanently or temporarily of title or possession of the automobile.”) (quoting Barrick, 187 Cal.Rptr. 716, 654 P.2d at 1255); People v. James, 157 Cal.App.3d 381, 203 Cal.Rptr. 716, 719 (1984); People v. Green, 34 Cal.App.4th 165, 40 Cal.Rptr .2d 239, 247 (1995). A conviction for being an accessory after the fact does not trigger the eight-level sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(C). Vidal, 504 F.3d at 1090. The fact that this Court noted in Vidal that a defendant only “could have been convicted as an accessory after the fact instead of as, not in addition to, a principal,” 504 F.3d at 1087 n.26 (emphases in original), does not change the fact that a jury need not agree that a defendant was either the accessory or the principal. It is only true that any single juror must conclude beyond a reasonable doubt that the defendant was either an accessory after the fact or a principal and not both or either. Vidal relied on one case, People v. Slayden, 73 Cal.App.2d 345, 166 P.2d 304 (1946), to conclude that prosecution as an accessory was proper “with an appropriately modified jury instruction.” 504 F.3d at 1084 n.20. But this case from 1946 appears to be an anomaly — the parties cited no other. More recent cases suggest no separate accomplice jury instruction is required. See, e.g., People v. Queen, 2002 WL 1360673, at *4 (Cal. Ct. App. June 24, 2002) (“[T]he trial court properly instructed the jury that a finding that Queen was a passenger and not in the garage at the time of the taking would not foreclose a conviction, provided the jury found all of the elements of the crime were met, that is, that Queen participated in taking or driving with the specific intent at the time the car was taken to deprive the owner of his vehicle either temporarily or permanently. This response was a proper statement of law.”) (emphases in original); People v. Venegas, 2012 WL 734094, at *11 (Cal. Ct. App. Mar. 6, 2012). Therefore, state law does not compel the conclusion that the statute is divisible.

Second, the statute itself is not a clearly elemental statute, as described in Mathis. It criminalizes:

[a]ny person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing!)]

The statute does not attach particular punishments to potentially distinct crimes, nor does it list elements and explicitly suggest that they attach to one alternative over another. Thus, under Mathis, we cannot conclude that the statute is divisible from the plain language of the statute alone.

The final analytic step is the Kozinski “peek” at the records of conviction. As the Opinion suggests, Arriaga’s records of conviction do not plainly speak to the elements of his crime of conviction. Nor do the records of conviction of other similarly-situated defendants.

Thus, when we apply the analytical framework set forth in Mathis, we cannot conclude, with the certainty that Taylor demands that California Vehicle Code section 10851(a) is divisible. Therefore, for the purposes of federal law, we must treat it as an indivisible statute under Mathis.

Of course, I recognize that our Circuit has reached a contrary conclusion in cases decided prior to Mathis, as noted by the majority opinion. We analyzed the statute at issue in this case in both United States v. Vidal, 504 F.3d 1072 (9th Cir. 2007) (en banc) and in Duenas-Alvarez v. Holder, 733 F.3d 812 (9th Cir. 2013). The Vidal Court never explicitly addressed divisibility, holding instead that under the modified categorical approach, the records of conviction did not show with certainty whether the defendant was convicted as a principal or an accessory after the fact under section 10851(a), thus precluding the extension of liability for the generic federal offense. 504 F.3d at 1090.

Duenas-Alvarez v. Holder, 733 F.3d 812 (9th Cir. 2013) did discuss section 10851(a)’s divisibility, but only insofar as it concluded that the statute “is divisible in that it imposes criminal liability in the alternative on principals as well as on accessories after the fact.” Id. at 814. This determination rested almost entirely on the fact that section 10851(a) is phrased in the disjunctive — which can mean that a statute refers to separate crimes with separate elements. However, as Mathis made clear, the inquiry does not end at noticing that a statute is phrased in the disjunctive. See Mathis, 136 S.Ct. at 2253 (“[A] statute’s listing of disjunctive means does nothing to mitigate the possible unfairness of basing an increased penalty on something not legally necessary to a prior conviction.”).

I do not suggest these conclusions were incorrect based on the law applicable at the time. But Mathis has altered the legal landscape. In applying Mathis to this statute, I conclude that we must consider it indivisible for federal sentencing purposes. Therefore, although I concur fully in the majority analysis, I believe Mathis requires us, at the appropriate time, to reexamine our jurisprudence as to the divisibility of section 10851(a).

      . 8 U.S.C. § 1326(a) provides that "Subject to subsection (b) of this section, any alien who— (1) has been ... deported, or removed ... and thereafter (2) enters, attempts to enter, or is at any time found in, the United States, unless [he hasn't left or has permission to reenter], shall be fined under Title 18, or •imprisoned not more than 2 years, or both.” 8 U.S.C. § 1326(a).

      . 8 U.S.C. § 1326(b) provides criminal penalties for reentry of certain removed aliens. Specifically, where "removal was subsequent to a conviction for commission of an aggravated felony, such alien shall be fined under such title, imprisoned not more than 20 years, or both.” 8 U.S.C. § 1326(b)(2).

      . The State cites People v. Umanzor, 2009 WL 604921 (Cal. Ct. App. 2009) (unpublished), asserting that the charges in this case demonstrate that section 10851(a) must be divisible as to principal and accessory after the fact liability. But a single, unpublished case from the California Court of Appeals — which provides an account of the statute in question that conflicts with other unpublished cases— "fails to provide clear answers.” See Mathis, 136 S.Ct. at 2256. In short, state case law does not definitively answer whether section 10851(a) is divisible at this time.


author: GORSUCH, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Tremale Odale HENRY, Defendant-Appellant.
    No. 15-6181
    United States Court of Appeals, Tenth Circuit.
    Filed February 3, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

Remanded.

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

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

      . In a petition for panel rehearing filed after we issued our decision, the government attempts yet another harmless error argument. Here the government accepts that the district court erred in finding a second independent probation violation at the (so-called) "guilt” phase of the revocation proceedings without first engaging the Jones test. But it claims this error was harmless because the district court would have been free under United States v. Ruby, 706 F.3d 1221, 1226 (10th Cir. 2013), to consider hearsay evidence about any "bad acts” of any sort at the "sentencing” phase of its revocation proceedings without addressing the Jones test. However that may be, though, this particular argument never found its way to us until the petition for panel rehearing so it has been forfeited. United States v. Charley, 189 F.3d 1251, 1264 n.16 (10th Cir. 1999). Further and even on its own terms, the argument doesn’t quite satisfy. For even if the district court could have considered hearsay evidence about the second assault at the "sentencing phase” without first engaging the Jones test, that’s not what happened here. The district court used the second assault to find a second independent supervised release violation at the "guilt” phase of the revocation proceedings. And short of speculation we just cannot be sure what impact the district court's finding of a second and independent probation violation at the "guilt” phase had on its "sentencing” decision. Maybe in the district judge’s mind nothing turned on whether the evidence surrounding the assault formally amounted to a second, independent violation instead of just more "bad acts”; but maybe it did. After all, district courts not infrequently cite the existence of multiple, independent supervised release violations (not just the "bad acts” underlying them) as factors influencing their sentencing decisions. See, e.g., United States v. Fulton, 567 Fed.Appx. 668, 673 (10th Cir. 2014); United States v. Keller, 372 Fed.Appx. 883, 889 (10th Cir. 2010); United States v. Hooks, 368 Fed.Appx. 885, 888 (10th Cir. 2010). Neither is harmless error doctrine license for rank speculation. When it comes to the loss of liberty, it is better to know on remand than guess on appeal.