author: PATRICK E. HIGGINBOTHAM, Circuit Judge:

text:
    James T. RODGERS; Claudette M. Rodgers, Plaintiffs-Appellants v. UNITED STATES of America, Defendant-Appellee Avrum M. Stein; Joan Stein, Plaintiffs-Appellants v. United States of America, Defendant-Appellee David S. Holland; Jacque N. Holland, Plaintiffs-Appellants v. United States of America, Defendant-Appellee Linvel M. Bingham; Vicki L. Bingham, Plaintiffs-Appellants v. United States of America, Defendant-Appellee
    No. 15-20494
    CONSOLIDATED WITH 15-41176
    United States Court of Appeals, Fifth Circuit.
    FILED November 30, 2016

      Sallie W. Gladney, Thomas E, Redding, Attorneys, Redding & Associates, P.C., Houston, TX, for Plaintiffs-Appellants.
    Richard Caldarone, Michael J. Haungs, Esq., Supervisory Attorney, U.S. Department of Justice, Tax Division, Appellate Section, Washington, DC, Herbert W. Lin-der, U.S. Department of Justice, Tax Division, Dallas, TX, for Defendant-Appellee.
    Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
   PATRICK E. HIGGINBOTHAM, Circuit Judge:

These consolidated tax refund suits are the latest in a line of cases stemming from faulty American Agri-Corp (“AMCOR”) investments, In the 1980s, Plaintiffs James and Claudette Rodgers, Avruiri arid Joan Stein, David and Jácqué Holland, and Linvel and Vicki Bingham (“Taxpayers”), were partners in AMCOR partnerships that the Internal Revenue Service (“IRS”) investigated as shams. Taxpayers settled with the IRS and paid the amounts assessed, but now seek refunds claiming that the IRS’s assessments were -untimely and that the IRS failed to issue notices of deficiency. Our decision in Irvine v. United States forecloses both arguments. Here, like in Irvine, the district courts- lack subject matter jurisdiction to hear these refund claims. Additionally, the variance doctrine forecloses Taxpayers’ argument that the IRS failed to issue notices of deficiency because Taxpayers did not make such an argument in their claims for refund before the IRS. Both district courts granted summary judgment for the IRS. We affirm.

I. Statutory Background

The Tax Equity and Fiscal Responsibility Act of 1982 (“TEFRA”), which amended the Internal Revenue Code, is the statute at the center of this case. As the Supreme Court explained in U.S. v. Woods:

A partnership does not pay federal income taxes; instead, its taxable income and losses pass through to the partners. 26 U.S.C. § 701. A partnership must report its tax items on an information return, § 6031(a), and the partners must report their distributive shares of the partnership’s tax items on their own individual returns, §§ 702, 704.
Before 1982, the IRS had no way of correcting errors on a partnership’s return in a single, unified proceeding.

In an effort to address these difficulties, Congress enacted TEFRA. “TEFRA requires partnerships to file informational returns reflecting the partnership’s income, gains, deductions, and credits. Individual partners then report their proportionate share of the items on their own tax returns.” TEFRA established three categories for items considered in the tax treatment of a partnership: “partnership items,” “nonpartnership items,” and “affected items.” TEFRA also created a two-

stage procedure for the IRS to determine partnership-related tax matters: first, the IRS assesses partnership items, making any adjustments it deems necessary, and then it may initiate proceedings against individual partners.

A. Two-Stage Proceedings

At the first step, “[i]f the IRS adjusts any partnership items on a partnership’s informational income tax return, it must notify the individual partners by issuing [a Notice of Final Partnership Administrative Adjustment (“FPAA”)].” When the FPAA becomes final, the IRS may tax the individual partners for their shares of the adjusted partnership items. Partners can, however, challenge the FPAA in partnership-level proceedings before the FPAA becomes final. Within 90 days after a FPAA issues, the “tax matters partner” (“TMP”) may file a petition for readjustment of the partnership items in Tax Court or federal district court. If the TMP does not challenge the proposed partnership adjustments within 90 days, non-TMP notice partners may file a petition for readjustment within the following 60 days. If a partnership-level challenge is filed — either by the TMP or by another partner — each partner in the partnership is deemed a party to the case. “Once the adjustments to partnership items have become final, the IRS may undertake further proceedings at the partner level to make any resulting ‘computational adjustments’ in the tax liability of the individual partners.”

“If a partner individually settles-his or her partnership tax liability with the IRS, ‘the partner will no longer be able to participate in the partnership level litigation, and will be bound instead by the terms of the settlement agreement.’” “The TMP may bind ‘non-notice’ partners to a settlement agreement resolving partnership items if the TMP expressly states in the agreement that it ‘shall bind the other partners.’ ”

B. Statutes of Limitations

The general tax assessment statute of limitations is codified at § 6501(a). It provides that when a tax return is filed, the IRS has three years from the filing date to assess taxes. However, when the taxes are attributable to a partnership item or affected item, TEFRA allows for that three-year statute of limitations to be extended under certain circumstances. Section 6229(a) states that taxes that are

attributable to any partnership item (or affected item) ... shall not expire before the date which is 3 .years after the later of—
(1) the date on which the partnership return for such taxable year was filed, or
(2) the last day for filing such return for such year (determined without regard to extensions).

Section 6229(a) “does not establish an independent statute of limitations for issuing FPAAs.” This means, as this Court explained in Curr-Spec Partners, L.P. v. Commissioner of Internal Revenue, that

the Commissioner may issue an FPAA at any time, subject only to the practical limitation that the FPAA may. affect only those partners whose individual returns remain open under IRC § 6501(a) or some extension thereto, such as the minimum period of IRC § 6229(a), before which the statute of limitations may not expire. Stated differently, the Commissioner is free to assess partnership-item tax on any taxpayer who, on his individual tax return, has taken advantage of the now-challenged partnership items within the preceding three years (or, in the event of an extension, within the extended statute of limitations).

Under § 6229(b), the three-year statute of limitations for partnership items can be extended by agreement. Under § 6229(d), the statute of limitations is tolled if an FPAA is mailed to the TMP. If, following the FPAA, the TMP or another partner petitions for readjustment at the partnership level, the limitations period is suspended until one year after the conclusion of those partnership-level proceedings. Finally, “[i]n the case of a failure by a partnership to file, a return 'for any taxable year, any tax attributable to a partnership item (or affected item) arising in such year may be assessed at any time.”

C. Notices of Deficiency

In general, upon the IRS’s determination of a tax deficiency, 26 U.S.C. § 6212(a) requires the IRS to send the taxpayer notice of that deficiency. Such notices allow partners to challenge the alleged deficiency in the Tax Court before paying it. However, when the tax assessment is for a “computational adjustment,” — such as those that follow partnership-level adjustments — the IRS is not required to issue a notice of deficiency, subject to two exceptions, Relevant here, a notice of deficiency is required if a deficiency “is attributable to [ ] affected items which require partner level determinations.”

D. Jurisdictional Limitations ;

TÉFRA limits the district courts’ subject matter jurisdiction. Although district courts generally have jurisdiction over a partner’s refund claim, § 7422(h) specifically deprives refund courts of jurisdiction over a partner’s claim for refund attributable to a “partnership item,” with limited exceptions.

II. Facts

These consolidated cases are part of a series of tax refund suits that stem from limited partnerships managed by AMCOR. This Court has described AMCOR partnerships before:

These partnerships had as stated goals acquiring agricultural land, investing in agricultural ventures, and growing crops. AMCOR solicited investments from high-income professionals across the country. Each partner in an AM-COR partnership would receive a projected tax loss from crops planted in the first year of roughly twice that partner’s investment. Investors paid the farming expenses up front and deducted the amount invested on their tax returns. The next year, when the crops were harvested, the amount of loss in excess of the amount invested would be subject to taxes. However, the farming expenses typically exceeded any income realized from the farming activities.

Here, Taxpayers were partners in four different AMCOR partnerships. The Steins were partners in Agri-Venture Associates (“AVA”) in 1984; the Binghams were partners in Emperor Seedless-85 (“ES85”) in 1985; the Hollands were partners in Canyon Desert Vineyards (“CDV”) in 1985; and the Rodgers were partners in Agri-Venture Fund (“AVF”) in 1985 and 1986. By 1987, all of the partnerships and Taxpayers had filed their tax returns for the years at issue. Notably, however, AVA’s 1984 partnership tax return was signed by “Joseph Voyer, Treasurer,” based , on which the parties dispute the validity of the return.

“In 1987, the IRS began an investigation and audit into the AMCOR partnerships to determine whether they were impermissible tax shelters.” The IRS asserts, that in 1988, the TMPs for AVF, CDV and ES85 signed Forms 872-P, which extended the IRS’s assessment periods for each of the partnerships until, either April 30,1991, or, if a FPAA was sent to the partnership, “until one year after the date on which the determination of partnership items became final.” Taxpayers disagree and assert that the “admissible evidence disproves that ‘[i]n 1988, the [TMP] for the partnerships including [AVF, CDV, and ES85] signed’ alleged extensions.”

In April of 1991, the IRS issued FPAAs for each of the four partnerships. Shortly thereafter, partners in each of the partnerships initiated suits in the Tax Court which challenged the FPAAs for, among other reasons, violating the statute of limitations. Notably, Taxpayers allege they did not participate in these suits, arguing that the version of § 6226(d)(2) in effect at the time barred them from doing so because their assessment periods had expired by 1990 (three years after they filed their tax returns). Taxpayers are correct that the version of 28 U.S.C. § 6226 in effect in 1991 barred partners from being treated as parties to another partner’s partnership suit if “the period within which any tax attributable to such partnership items may be assessed against that partner expired.” Similarly, § 6226(d)(2) barred partners with expired tax assessment periods from filing a readjustment petition. However, the parties dispute whether Taxpayers’ assessment periods were expired, such that the 1991 provisions barred them from joining or taking action. The Tax Court suits (that Taxpayers insist they were not parties to) were consolidated for disposition of the statute of limitations issue. The parties filed cross-motions for summary judgment, which the Tax' Court denied in 1993, finding that there were “genuine, and perhaps crucial, issues of material fact” to be resolved. In 1994, the original consolidation was severed, and both the partners and IRS moved to reconsider the 1993 Order.

Between 1997 and 1999, Taxpayers each settled with the IRS. In these settlements, which were silent as to the statute of limitations issue, Taxpayers agreed to pay additional income tax and interest as a result of the IRS’s adjustments to partnership items. Taxpayers paid the IRS in full, and now seek to recover these payments in these refund suit.

Meanwhile, on February 2, 1998, the IRS and Tax Court partners filed a joint motion to withdraw their earlier motions for reconsideration of the 1993. Order. But between April 9, 1999 and June 29, 2000, the TMPs intervened and ultimately agreed to try the statute of limitations issue, which developed into Agri-Cal Venture Associates v. Commissioner of Internal Revenue (“Agri-Cal”). Agri-Cal was the consolidated case of several partnerships, including AVF (in which the Rodgers were partners) and AVA (in which the Steins were partners). Taxpayers argue that the IRS and the TMPs did not intend other partnerships to be bound by Agri-Cal, although there was a stipulation that CDV (in which the Hollands were partners) and ES85 (in which the Binghams were partners) would be so bound. On August 28, 2000, the Tax Court concluded:

None of the partnerships has sustained the affirmative defense of statute of limi-. tations; the FPAA’s issued to AVA and TFV for the 1984 and 1985 taxable years are valid. The FPAA’s issued to AVF, DV-85, and HFA-II for the 1985 taxable year are valid.

The Tax Court found the assessments valid for the 1984 year, because the AVA partnership never filed a valid return (it was signed by Joseph Voyer, not a partner), so the statute of limitations never began to run. The Tax Court.found the assessments valid for the 1985 year, because the Forms 872 sufficiently extended the three-year statute of limitations.

After the Agri-Cal decision, the IRS and TMPs engaged in negotiations in‘an attempt to settle all the AMCOR suits. The agreements were entered on July 19, 2001, and included the following: “That the assessment of any deficiencies in income tax that are attributable to the adjustments to partnership items for the years 1984 and 1985 are not barred by the provisions of I.R.C. § 6229” (the statute of limitations extension provision).

Around the same time as the Agri-Cal litigation and the post-Agri-Cal negotiations, Taxpayers filed claims with the IRS in an attempt to be refunded what they paid to the IRS after their settlements. Among other arguments, Taxpayers asserted the assessments were invalid because the IRS assessed after the statute of limitations had run. Taxpayers did not assert, however, that the IRS failed to issue required notices of deficiency. In 2001, the IRS denied the refund claims of the Rodgers, Steins and Binghams, finding the claims “precluded under I.R.C. 7422(h).” The IRS did not act on the claim filed by the Hollands, in the form of an amended tax return.

Taxpayers subsequently brought, a refund action in two federal district courts, the Rodgerses, Steins, and Hollands in a consolidated action in the Southern District of Texas and the Binghams in the Eastern. District of Texas. In both cases, the parties filed cross-motions' for summary judgment, and both district courts granted summary judgment for the Government. In Bingham, the district court held that § 7422(h) deprived it of jurisdiction, because the Binghams’ claim that the assessments were time-barred was a claim for a refund attributable to a partnership item under § 6229. The Rodgers court similarly held that it lacked jurisdiction under § 7422(h) to consider plaintiffs’ § 6229 limitations period because § 6229 is a partnership item. Both courts relied heavily on Irvine v. United States.

Taxpayers also argued in.both district courts that the IRS was required to issue notices of deficiency before making the assessments at issue. Both district courts rejected this claim, albeit for different reasons. In Bingham, the district court rejected Taxpayers’ notice of deficiency claim, finding it barred by the “variance doctrine,” because Taxpayers failed to assert this argument in their initial refund suit. The district court in Rodgers rejécted taxpayers’ argument “on the merits” because “Section 6601(a) operates in conjunction with Section 6229(a), and Section 6229(a) is a 'partnership item.”’ Taxpayers appealed, and this Court entered an order consolidating the two cases.

III. Standard of Review

This Court reviews both a district court’s grant of summary judgment and its determination of subject matter jurisdiction de novo. “Summary judgment is appropriate when ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ”

IV. Discussion

At the heart of both of Taxpayers’ claims is a question of jurisdiction. This Court has explained, “[i]n a partner-level refund action,” such as this one, “courts do not have jurisdiction over partnership items.”

A. Statute of Limitations Claim

Because § 7422(h) deprives the courts of jurisdiction to consider a partner’s claim for refund attributable to a partnership item, and because Taxpayers’ statute of limitations claim is attributable to a partnership item, the district courts lack jurisdiction to hear this claim..

■ Section 7422(h) states: “No action may be brought for a refund attributable to partnership items .. .” This means “[i]f the refund is attributable to partnership items, section 7422(h) applies and deprives the court of jurisdiction. If ... the refund is attributable to nonpartnership items, then section 7422(h) is irrelevant, and the general grant of jurisdiction is effective.” The § 6229 assessment period, at issue in Taxpayers’ statute of limitations claim, is a partnership item, Section 6229 can extend § 6501’s general three-year statute of limitations for tax assessments, “such as when the TME enters into an agreement with the IRS to extend the period, fraudu: lent, returns are filed, or the partnership fails to file a return,”

Taxpayers advance.a multitude of reasons that the IRS’s assessments of the taxes at issue were untimely and the district courts have jurisdiction to hear their refund claims. Taxpayers contend that they in fact prevailed on the limitations issue in the proceedings below such, that refund jurisdiction is not barred, that the IRS failed to identify a valid partnership-level extension, that their case is.distinguishable from Irvine, and that the district courts’ interpretation of Irvine directly conflicts with our earlier decisions in Curr-Spec Partners, L.P. v. Commissioner of Internal Revenue and Duffle v. United States. The IRS responds that Irvine compels the outcome that the district courts lacked subject matter jurisdiction over the limitations claim, that Irvine is consistent with precedent and cannot be distinguished, and that Taxpayers did not prevail on the limitations issue in the proceedings below.

Both district courts concluded that the statute of limitations' claim cannot be determined without reference to the government’s asserted bases for extensions under § 6229. Since § 6229 is a partnership item, they held - that § 7422(h) deprives the courts of:jurisdiction to consider Taxpayers’ limitations claim. We agree.

This outcome is compelled by Irvine. Like Taxpayers here, the Irvine plaintiffs “were partners in AMCOR limited partnerships in the 1980s” who asserted that they were improperly “assessed by the IRS after the 26 U.S.C. § 6501(a) statute of limitations had passed.” They maintained “that 26 U.S.C. § 7422(h) [did] not bar jurisdiction because the § 6501(a) statute of limitations is a nonpartnership item based on the specific facts of each partner’s situation.”

The Irvine Court identified the dispositive question as “whether the [plaintiffs’] claim that the additional tax assessments were time-barred is a claim for a refund attributable to partnership or nonpartnership items.” It noted the “significant interplay between § 6501(a) and § 6229(a), a separate provision that can extend the § 6501(a) period for partnership items,” The Irvine Court pointed to Weiner v. United States and Federal Circuit cases and reaffirmed the principle “that where the government asserts § 6229 as a basis to extend the § 6501(a) statute of limitations, the claim for refund is ‘attributable to’ a partnership item and § 7422(h) bars consideration of the limitations claim.” The Irvine Court explained that the gov-eminent asserted § 6229 extensions based on agreement by the TMP and no valid partnership return being filed, but that in any event a refund court may not litigate or.re-litigate the merits of extensions because they are partnership items. The Irvine plaintiffs “were required to raise the statute of limitations issue in the partnership-level proceeding prior to settlement and [were] barred from raising it in the refund action.” Irvine accordingly held that “the district court lacked jurisdiction over the statute of limitations claim under § 7422(h).”

The same claims compel the same result. Here, Taxpayers maintain, “[t]he IRS did not assess within the Taxpayers’ § 6501(a) three-year deadlines [and] [i]t did not assess within the § 6229(a) three year periods after the Partnerships filed their returns.” But, like in Irvine, the IRS asserted § 6229 extensions — that the AVA partnership return was invalid for not being signed by a partner, and that the TMPs for the other partnerships agreed to extensions. Because “the government asserted] § 6229 as a basis to extend the § 6501(a) statute of limitations, the claim for refund is ‘attributable to’ a partnership item and § 7422(h) bars consideration of the limitations claim.”

Taxpayers vigorously dispute the validity of the IRS’s asserted bases for extension. For example, they assert that the TMP extensions were invalid because they were not signed by the actual TMP at the time, and that Taxpayers could not participate in the Tax Court lawsuits challenging the FPAAs because the version of § 6226(d)(2) in effect at the time barred them from doing so. Although Taxpayers were not directly involved in the Tax Court suits, the government asserted § 6229 extensions to the statutes of limitations of their partnership items. We acknowledge Taxpayers’ argument that they were barred from participating in the partnership proceedings, and that the TMP-extensions were invalid, but Irvine controls: “a refund court litigating or re-litigating a partnership item, such as the merits of the asserted § 6229 basis for an extension of the limitations period, is exactly the result prohibited by TEFRA.” Thus, although some of the underlying partnership-level facts are disputed, they are not material.

B. Notice of Deficiency Claim

Taxpayers also argue the IRS assessments are invalid because the IRS failed to issue deficiency notices as required by § 6213(a) and § 6230(a)(2)(A)(i). However, this claim would require that we adjudicate partnership items, which § 7422(h) bars us from doing. Alternatively, under the variance doctrine, Taxpayers’ failure to raise the argument in their refund claims before the IRS prohibits them from raising it in these refund courts. Finally, even if we could reach the merits of Taxpayers’ argument, it would fail.

Section 6213(a) describes the general procedures for taxpayers who wish to challenge a deficiency by petitioning the Tax Court. Section 6230(a) provides that generally deficiency notices are' not' required for computational adjustments, but § 6230(a)(2)(A)(i)creates an exception and réquires deficiency notices for deficiencies attributable to “affected items which require partner level determinations.” Taxpayers argue they fall within this exception, because, first, their purported deficiencies were attributable to the violation of their assessment deadlines, which are affected items under § 6231(a)(5). And second, these affected items required partner-level determinations because “to validly assess, the IRS was required to identify partner-level exceptions to their § 6501(a) three-year assessment periods.”

The IRS primarily takes issue with Taxpayers’ analysis because § 7442(h) “precludes consideration of [their] contention in these refund suits.” As previously noted, § 7422(h) specifically deprives refund courts of jurisdiction over a partner’s claim for refund attributable to “partnership items.” The IRS asserts that Taxpayers’ notice of deficiency theory “would necessarily implicate the question whether the limitations period was, in fact, extended under § 6229,” which is a partnership item. That is, Taxpayers’ first contention that their deficiencies were attributable to violation of their assessment deadlines “is correct if, and only if, the assessments were untimely under § 6501(a),” which is inseparable from the § 6229 partnership-item extension. Additionally, the IRS maintains that Taxpayers’ argument that such affected items required partner level determinations “is .correct only if the partnership-level extensions on which the Government relies do not apply.” The IRS alternatively argues that Taxpayers’ deficiency claim is barred by the variance doctrine, and that even on the merits, Taxpayers’ deficiency notice claim would fail.

The Rodgers court found Taxpayers’ deficiency argument foreclosed by Irvine, It explained, “[Taxpayers’] argument ... hinges, on their position that Section 6501 is the only relevant limitations period, and that the Court should ignore Section 6229. This argument is foreclosed by Irvine and numerous other authority.” The Bingham court held that Taxpayers. were barred from, making their notice of deficiency claim under the variance doctrine, because the plaintiffs did not assert such an argument as a basis for refunds when they filed their refund claims with the IRS. We agree with both district courts.

Taxpayers aver deficiency notices were required based on the § 6230(a)(2)(A)® exception to § 6230(a)’s general rule that deficiency' notices are not required for computational adjustments. For the exception to apply, the Taxpayers’ deficiency must be attributable to “affected items which require partner level determinations.” Taxpayers insist that their deficiency was attributable to “the violation of their assessment deadlines,” which would fall under § 6501(a).

Refund courts do not have jurisdiction to adjudicate Taxpayers’ contention because it assumes that the IRS did not properly extend their assessment deadlines under § 6229. But as previously <1⅛ cussed, Irvine concluded that § 7422(h) prohibits this Court from adjudicating the merits of § 6229 extensions. If this Court were to agree with Taxpayers that their deficiencies were attributable to violation of § 6501(a), we would also necessarily be finding that the § 6229 extensions did not apply — which would be a merits determination prohibited by Irvine. Accordingly, the district courts lack jurisdiction to consider Taxpayer’s deficiency claim.

Furthermore, contrary to Taxpayers’ claim, Irvine does not conflict with Curr-Spec and Duffie. In Curr-Spec, this Court held “that IRC § 6229(a) does not establish an independent statute of limitations for issuing FPAAs,” rather it may extend the general three-year statute of limitations in § -6501(a). Irvine accepted this understanding;

In Duffie, the parties disputed whether § 7422(h) deprived the district court of jurisdiction to consider “Duffies’ claim that the IRS erred in assessing § 6621(c) interest against them.” This Court reasoned, “[t]he Duffies’ refund claim is attributable to the. Tax Court’s determination that the Texas Farm Venturers activities were sharp transactions ... Because the nature of a partnership’s activities — whether they are sham transactions — is the partnership-item component of an affected item, the Duffies’ refund claim is based on the determination of a partnership item.” The Duffie Court thus held that § 7422(h) barred, jurisdiction on that claim. Irvine does, not conflict with Duffie, and in fact repeatedly referenced Duffie.

Taxpayers additionally argue that Rodgers erred, because if the § 6501(a) statute of., limitations is barred under § 623Q(a)(2)(A)(i) for being linked with § 6229, a partnership item, then § 6230(a)(2)(A)® would be rendered meaningless, because “by definition, every affected item has at least one partnership-item component.” Although there is some merit in Taxpayers’ interpretation claim, it reaches too far. Section 6230(a)(2)(A)(i) still requires deficiency notices for non- § 6501(a)/§ 6229 affected items which require partner level determinations. Furthermore, Taxpayers incorrectly state that the Rodgers court held that “§ 6230(a)(2)(A)(i) does not apply when an affected item has a partnership-item component.” Although one could read the Rodgers decision to suggest that § 6229(a) transforms § 6501(a) into a partnership item for § 6230(a)(2)(A)(i) notice deficiency purposes, this was not its holding. It found merely that in this case, contrary to Taxpayers’ arguments, § 6501 could not be separated from § 6229 given Irvine. For the reasons already stated, we agree.

Additionally and alternatively, Taxpayers’ deficiency argument is foreclosed by the variance doctrine. 26 U.S.C. § 7422(a) requires that tax refund claims comply with “the regulations of the Secretary established in pursuance thereof.” 26 C.F.R. § 301.6402-2(b)(l) provides:

The claim must-set- forth in detail each ground upon which a credit or refund is claimed and facts sufficient to apprise the Commissioner of the exact basis thereof .,. A claim which does not comply with this paragraph will not be considered for any purpose as a claim for refund or credit.

As this Court recently explained, “[t]his regulation'codifies the variance doctrine.” This means that “[a]bsent a waiver by the Government, a taxpayer is barred from raising in a refund suit grounds for recovery which had not previously been set forth in its claim for a refund.”

The IRS maintains that Taxpayers’ notice of deficiency claim is barred by the variance doctrine, as they did not raise it in their administrative refund claims. Taxpayers respond that their deficiency claim was fairly contained in the general language of their administrative claims, citing the following paragraph:

The assessment of tax and interest was made after the statute of limitations had already expired. Any amount assessed and collected after the statute of limitar tions has expired constitutes an overpayment pursuant to Internal Revenue Code § 6401.

Neither this paragraph nor the rest of Taxpayers’ administrative claims “set forth in detail” Taxpayers’ notice of .deficiency ground “upon which a credit or refund is claimed and facts sufficient to apprise the Commissioner of the exact basis thereof.” It is not enough to argue that the statute of limitations claim “inherently include[s]” the notice of deficiency claim. Such an understanding would defeat the purpose of “assuring] that the Commissioner is apprised of the exact nature of the claim and the facts upon which the claim is advanced so that there is an opportunity to make an administrative determination of the claim.”

Taxpayers further argue that the IRS had a duty to conduct a meaningful investigation based on the administrative claim assertions, and had they done so, the IRS would have ascertained that deficiency notices were required. But this is not correct either. It is the Taxpayers’ duty to inform the IRS 'of grounds for recovery in their refund claim, not the other way around.

Taxpayers also contend that the IRS waived its variance argument because it violated procedure and failed to conduct an investigation into Taxpayers’ statute of limitations grounds in their administrative claim. As an initial matter, “a taxpayer asserting a waiver bears an extremely heavy burden of proving such a waiver.” And in any event, the IRS addressed Taxpayers’ statute of limitations claim:

Your claim for refund of the tax paid under the settlement agreement entered into with Appeals, Form 870-P(AD), concerning the partnership is denied. Your claim is precluded under I.R.C. 7422(h). TEFRA requires that all challenges to adjustments of partnership items be made in a single, unified agency proceeding, at the partnership level.

Though cursory, the IRS’s reliance on § 7422(h) demonstrates it rejected Taxpayers’ statute of limitations argument based on § 7422(h)’s bar on refund suits attributable to partnership items. Given this conclusion, -the IRS had no need to consider the merits of the claim, such as the validity of limitations extensions. Taxpayers argue that the IRS “applied § 7422(h) only to preclude Taxpayers from challenging the partnership-item adjustments they had agreed to in their Forms 870-P(AD),” which they did not challenge. But Taxpayers’ attempt to separate their statute of limitations argument from the adjustments to partnership items is unpersuasive, given that their statute of limitations claim requires partnership-level determinations, as previously explained. •

Moreover, the exception to the variance doctrine “in cases where the Government’s unilateral action itself creates the substantial variance,” does not apply here. The variance arose from Taxpayers’ failure to assert a deficiency notice ground in its refund claim, not any later action by the IRS of which Taxpayers could not have been aware, as was the case in El Paso CGP Co. v. United States.

Finally, Taxpayers argue the IRS waived the variance doctrine argument for failing to brief it in its motion for summary judgment. But even if the variance doctrine was not jurisdictional and could thus be waived by a party, the IRS did not waive what Taxpayers failed to plead.

In sum, because “the variance doctrine requires that the grounds for recovery advanced in federal court must be the same as advanced before the IRS,” and because Taxpayers’ did not advance deficiency notice grounds under § 6230(a)(2)(A)(i) before the IRS, their notice of deficiency claim is alternatively barred by the variance doctrine.

And even if it was not so barred, it would fail on the merits. Taxpayers’ argument that their deficiencies were attributable to a violation of their assessment deadline misunderstands “deficiency.” Deficiency is defined at 26 U.S.C. § 6211(a):

“the amount by which the tax imposed by subtitle A or B, or chapter 41, 42, 43, or 44 exceeds the excess of—
(1) the sum of
(A) the amount shown as the tax by the taxpayer upon his return, if a return was made by the taxpayer and an amount was shown as- the tax by the taxpayer thereon, plus
(B) the amounts previously assessed (or collected without assessment) as a deficiency, over—
(2) the amount of rebates, as defined in subsection (b)(2), made.

Taxpayers argue that their deficiency was $0. But this conclusion is based on Taxpayers’ argument that the IRS’s assessment was untimely, which this court may not consider for the reasons stated earlier in this decision, and nevertheless contravenes the statutory definition of deficiency. Section 6211(a) first looks to the “tax imposed by subtitle A or B, or chapter 41, 42, 43, or 44,” not the tax a taxpayer believes should have been imposed by such subtitles, or chapters. The taxes imposed here exceeded $0. Accordingly, even if the courts could consider Taxpayers’ notice of deficiency claim, it would not be successful.

V. Conclusion

For the reasons stated above, we affirm the decisions of the district courts.

      . Irvine v. United States, 729 F.3d 455, 458 (5th Cir. 2013). Claudette Rodgers, Joan Stein and Jacque Holland are parties because they filed joint returns with their spouses. The others were AMCOR partners.

      . 729 F.3d 455 (5th Cir. 2013).

      . Formerly codified generally at 26 U.S.C. §§ 6221-6233; P.L. 97-248 (Sept. 3, 1982), 96 Stat. 324, Alexander v. United States, 44 F.3d 328, 330 (5th Cir. 1995) ("In 1982, Congress enacted [TEFRA] to improve the auditing and adjustments of income tax items attributable to partnerships,” (internal citation omitted)). Notably, the Bipartisan Budget Act of 2015 repealed and replaced TEFRA, and struck 26 U.S.C. §. 7422(h), the jurisdictional provision at issue .here. See Bipartisan Budget Act of 2015, Pub. L. No. 114-74 (Nov. 2, 2015), 129 Stat. 584; McNeill v. United States, 836 F.3d 1282, 1287 (10th Cir,2016) (“Congress has recently revamped the process for auditing partnerships in order to permit the, IRS, beginning in 2018, to recoup taxes from the partnership itself rather than the partners individually." (citing Bipartisan Budget Act of 2015)),

      . — U.S. —, 134 S.Ct. 557, 562, 187 L.Ed.2d 472 (2013).

      . See id. at 563.

      . Irvine, 729 F.3d at 459 (citing Weiner v. United States, 389 F.3d 152, 154 (5th Cir. 2004)).

      . 26 U.S.C. § 6231(a)(3M5) ("(3) Partnership item. — The term "partnership item” means, with respect to a partnership, any item required to be taken into account for the partnership's taxable year under any provision of subtitle A to the extent regulations prescribed by the Secretary provide that, for purposes of this subtitle, such item is more appropriately determined at the partnership level than at the partner level. (4) Nonpartnership item.— The term "nonpartnership item” means an item which is (or is treated as) not a partnership item. (5) Affected item. — The term "affected item” means any item to the extent such item is affected by a "partnership item.”).

      . See Woods, 134 S.Ct. at 563.

      . Irvine, 729 F.3d at 460 (citing 26 U.S.C. § 6223; Duffie v. United States, 600 F.3d 362, 366 (5th Cir. 2010)). See also Anisa Afshar, The Statute of Limitations for the Tefra Partnership Proceedings: The Interplay Between Section 6229 and Section 6501, 64 Tax Law. 701, 705 (2011) ("An FPAA is the TEFRA’s equivalent of a 'notice of deficiency’ for partnerships. The FPAA puts the partners on notice that the [IRS] disagrees with their treatment of partnership items and intends to adjust it.” (citation omitted)).

      . Curr-Spec Partners, L.P. v. C.I.R., 579 F.3d 391, 394-95 (5th Cir. 2009) ("After the FPAA becomes final, the Commissioner may assess tax to the individual partners whose tax returns for the year or years in question remain open under IRC § 6501(a), for those partners’ distributive shares of the adjusted partnership items.”).

      . See 26 U.S.C. § 6231(a)(7).

      . Id. § 6226(a) (in the federal district court for the district in which the partnership’s principal place of business is located). Alternatively, the TMP may file in the Court of Federal Claims. Id.

      . Id. § 6226(b)(1).

      . Id. § 6226(c)(1).

      . Woods, 134 S.Ct. at 563 (citing 26 U.S.C. § 6231(a)(6)).

      . Irvine, 729 F.3d at 460. (quoting Weiner, 389 F.3d at 155).

      . Duffie, 600 F.3d at 367 (citing 26 U.S.C. § 6224(c)(3)(A)).

      . See 26 § U.S.C. 6501(a) (“[e]xcept as otherwise provided in this section, the amount of any tax imposed by this title shall be assessed within 3 years after the .return was filed ... and no proceeding in court without assessment for the collection .of such tax shall be begun after the expiration of such period.”); Curr-Spec Partners, L.P., 579 F.3d at 393, n.1 (“Even though the statute of limitations runs three years after the date that the return was filed ... a return filed early is generally deemed filed on the date that the return was due, thereby giving the Commissioner more than three years within which to assess tax.” (citing 26 U.S.C. § 6501(b)(1))).

      . See Curr-Spec Partners, L.P., 579 F.3d at 396-97.

      . Id. at 393.

      . Id. at 399.

      . 26 U.S.C. § 6229(b)(1) ("The period described in subsection (a) (including an extension period under this subsection) may be extended—
      (A) with respect to any partner, by an agreement entered into by the Secretary and such partner, and
      (B) with respect to all partners, by an agreement entered into by the Secretary and the tax matters partner (or any other person authorized by the partnership in writing to enter into such an agreement),
      before the expiration of such period.”).

      . Weiner, 389 F.3d at 155; 26 U.S.C. § 6229(d) states; “If notice of a [FPAA] with respect to any taxable year is mailed to the [TMP], the running of the period specified in subsection (a) (as modified by other provisions of this section) shall be suspended—
      (1) for the period during which an action may be brought under section 6226 (and, if a petition is filed under section 6226 with respect to such administrative adjustment, until the decision of the court becomes final), and
      (2) for 1 year thereafter.”

      . 26 U.S.C. § 6229(d).

      . Id. § 6229(c)(3).

      . Woods, 134 S.Ct. at 562 (citing 26 U.S.C. § 6213(a)).

      . See Woods, 134 S.Ct. at 563 ("Once- the adjustments to partnership items have become final, the IRS may undertake further proceedings at the partner level to make any resulting computational adjustments' in the tax liability of the individual partners. § 6231(a)(6).”).

      . 26 U.S.C. § 6230(a)(1).

      . Id. § 6230(a)(2). The other exception is not at issue. See id. § 6230(a)(2) (exception when items "become nonpartnership items” for specified reasons.).

      . 28 U.S.C. §§ 1340, 1346(a)(1); Irvine, 729 F.3d at 460.

      . 26 U.S.C. § 7422(h); see also Irvine, 729 F.3d at 460. Taxpayers have not argued that the two exceptions in the text of § 7422(h) are relevant here.

      . Duffie, 600 F.3d at 367 (citation omitted); accord Irvine, 729 F.3d at 457-58.

      . The Rodgers’s refund claim for 1986 is dependent on their 1985 refund claim.

      . According to Agri-Cal Venture Associates et al. v. C.I.R., 80 T.C.M, (CCH) 295 (T.C. 2000), Joseph Voyer was not apparently a partner in the AVA partnership, and instead was an officer of AMCOR.

      . Duffie, 600 F.3d at 367.

      . This Court could only locate the Form 872-P for ES85 (signed by George L. Schreiber as TMP for ES85). Taxpayers assert that Fred Behrens, not George Schreiber, was the statutory TMP of AVF, CDV, and ES85, and thus contend that this 872-P Form is invalid.

      . 26 U.S.C. § 6226(d)(1)(B) (1991), amended by Pub. L. 105-34, § 1239(b), 111 Stat. 1026, 1027, 1028 (1997) (amended 2015).

      . 26 U.S.C. § 6226(d)(2) (1991) (amended 2015).

      . In 1997, § 6226(d) was amended to allow partners formerly barred from participating in partnership-level proceedings to participate "solely for the purpose of asserting that the period of limitations for assessing any tax attributable to partnership items has expired with respect to such person, and the court having jurisdiction of such action shall have jurisdiction to consider such assertion,” See 26 U.S.C. § 6226(d)(1)(B). Importantly, this amendment only applied to partnership tax years ending after August 5,. 1997. Taxpayer Relief Act of 1997, Pub. L. 105-34, § 1238, 111 Stat. 1026 (1997). Therefore, if Taxpayers were in fact barred from challenging the IRS’s FPAAs, they assert the 1997 amendment did not affect their ability to participate in partnership-level proceedings for their claims from the late 1980s.

      . Generally, when a partner settles with the IRS, "the partnership items of a partner ... shall become nonpartnership items.” 26 U.S.C. § 6231(b)(1)(C). However, in Weiner v. United States, this Court determined that — for the purpose of determining if the Court had jurisdiction under 7422(h) — a settlement agreement did not convert the statute of limitations claim into a partner-level item. 389 F.3d at 159.

      . Agri-Cal Venture Associates v. C.I.R., 2000 WL 1211147, n.1 (T.C. 2000).

      . Taxpayers argue that the stipulations only bound the TMPs of CDV and ES85, not the other partners.

      . Agri-Cal Venture, 2000 WL 1211147, at *23,

      . Id. at *8-10, *11.

      . Id. at *15.

      . An affidavit of Mr. Frederick Behrens states that the "IRS filed a Motion for Entry of Decisions Pursuant to Rule 248(b) reflecting [the TMPs] understanding and intent that ... our 'contingent agreement' and the resulting agreed decisions would be binding only on those partners ‘who meet the interest requirements of I.R.C. § 6226(d)’ and only as to partnership items."

      . The Hollands attempted to file a refund claim bn December 30, 1999 by submitting an amended return signed by their attorney.

      . The parties dispute the validity of the Hollands’ claim. The government argues that "[t]he IRS never acted on the purported refund claim filed by the Hollands, but that is because the Hollands never filed a valid claim.” Their amended tax return -for 1985 was signed by their attorney, not the Hollands themselves. The IRS argues that "[t]he return was thus not valid, because an agent may sign a return on behalf of a taxpayer only in very narrow circumstances not present here,” and because the power of attorney did not grant the Hollands' attorney the authority to file the return. The Hollands counter that their return was properly filed. The dispute does not impact the outcome of this suit, since even assuming the Hollands properly filed their return, they face the same jurisdictional bars as the other Taxpayers.

      .After the suits were administratively closed without prejudice, Taxpayers in 2014 moved to consolidate the suits filed by the Rodgerses, Steins, and Hollands and to reopen both the consolidated proceeding and Bingham. The district courts granted the motions.

      . Irvine, 729 F.3d at 460.

      . Id. (quoting Fed. R, Civ. P. 56(a)),

      . Duffle, 600 F.3d at 366 (citing 26 U.S.C. § 7422(h)) (emphasis added).

      . The entire provision reads: "No action may be brought for a refund attributable to partnership items (as defined in section 6231(a)(3)) except as provided in - section 6228(b) or section 6230(c)." Taxpayers have not argued that the two exceptions in the text of § 7422(h) are relevant to this case,

      . Irvine, 729 F.3d at 461 (quoting Alexander v. United States, 44 F.3d 328, 331 (5th Cir. 1995)).

      . Irvine, 729 F.3d at 461 (“In Weiner, this court held that the § 6229 assessment period is a partnership item that cannot be raised in partner-level litigation," (citing Weiner, 389 F.3d at 157-58) (other citation omitted)).

      . Irvine, 729 F,3d at 461 (internal citations omitted),

      . 729 F.3d 455.

      . Id. at 458.

      . Id. at 460. After FPAAs were issued in the case, other partners filed suits in the Tax Court contesting them, "including claiming that the FPAAs were untimely." Id. at 458, While the Tax Court suits were pending and before the partnership-level settlements, the Irvine plaintiffs settled with the IRS. Id. After settlement, the IRS assessed additional taxes, which each plaintiff paid before filing administrative claims for refunds in 2002 and 2003. See id. at 458-59. Meanwhile, “the Táx Court issued á decision determining that each FPAA issued to the partnerships was timely pursuant to 26 U.S.C. § 6229.” Id. at 458.

      . Id. at 460.

      . Id. at 461.

      . Id, (citing Curr-Spec, 579 F.3d at 396).

      . Id. at 461-62 (citations omitted).

      . Id. at 462 (further explaining that "[w]here a § 6229 basis for an extension is asserted, questions about whether the partnerships' returns were fraudulent, contained substantial omissions, were never filed, or were subject to any extension agreements are matters to be determined at the partnership level under TEFRA’s statutory scheme.”).

      . Id. (citation omitted).

      . Id.

      . Irvine, 729 F.3d at 461-62.

      . Despite the Rodgers court statement that Taxpayers "were engaged with the IRS in partnership-level proceedings to which Section 6229’s extension applied.”

      . Irvine, 729 F.3d at 462 (citing Weiner, 389 F.3d at 158.). Our rule of orderliness requires we follow Irvine. See Jacobs v. Nat'l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008).

      . Taxpayers claim that if they had received notices of deficiencies, they could have,challenged the deficiencies in partner-level Tax Court proceedings.

      . Courts sometimes categorize affected items under this provision as either "substantive affected items,” which are those that require partner-level determinations, and "computational affected items,” which are those that do not. See Irvine, 729 F.3d at 464 (“A computational adjustment to an individual partner’s tax liability can be made at the conclusion of the partnership level proceeding ‘without any factual determination at the partner level.’ A substantive affected item, however, requires ‘fact-finding particular to the individual partner’ before any adjustment to tax liability can be made.” (citations omitted)).

      . 26 U.S.C. § 7422(h) (with limited exceptions).

      . 26 U.S.C. § 6230(a)(2)(A)(i) (deficiency notice required for "any deficiency attributable to [] affected items which require partner level determinations”).

      . 26 U.S.C. § 6230(a)(2)(A)(i). Section 6231(a)(5) defines affected item as "any item to the extent such item is affected by a partnership item,”

      . See Irvine, 729 F.3d at 462 ("However, a refund court litigating or re-litigating a partnership item, such as the merits of the asserted § 6229 basis for an extension of the limitations period, is exactly the result prohibited by TEFRA.”).

      . 579 F.3d 391 (5th Cir. 2009),

      . 600 F.3d 362 (5th Cir. 2010).

      . Curr-Spec, 579 F.3d at 393.

      . Id. at 396; see id. at 401 ("The three-year statute of limitations of IRC § 6501(a) is the period within which the Commissioner may assess taxes on an individual partner (subject to extension) for partnership items.”).

      . Duffie, 600 F.3d at 382.

      . Id. at 383.

      . See id.

      . "For example, a taxpayer-partner’s medical expense deduction under 26 U.S.C. § 213(a) is an ‘affected item.’ Because a taxpayer can only deduct medical expenses to the extent those expenses exceed 7.5% of adjusted gross income, a change in the partnership's income affects the amount of the partner’s deduction,” Duffie, 600 F.3d at 366.

      . El Paso CGP Co. v. United States, 748 F.3d 225, 228 (5th Cir. 2014).

      . Mallette Bros. Const. Co. v. United States, 695 F.2d 145, 155 (5th Cir. 1983) (citations omitted); accord Angelus Milling Co. v. C.I.R., 325 U.S. 293, 297, 65 S.Ct. 1162, 89 L.Ed. 1619 (1945) ("Since, however, the tight net which the Treasury Regulations fashion is for the protection of the revenue, courts should not unduly help disobedient refund claimants to slip through it. The showing should be unmistakable that the Commissioner has in fact been fit to dispense with his formal requirements and to examine the merits of the claim. It is not enough that in some roundabout way the facts supporting the claim may have reached him.”).

      . 26 C.F.R. § 301,6402-2(b)(l).

      . Mallette Bros. Const. Co., 695 F.2d at 155 (citations omitted); accord id. ("The alleged error must be clearly and specifically set forth in the refund claim. A generalized plea of error will not suffice.” (citations omitted)).

      . 26 C.F.R. § 301.6402-2(b)(1).

      . Mallette Bros. Const. Co., 695 F.2d at 156.

      . The IRS did not send a denial letter to the Hollands presumably because they submitted their claim for refund on an amended tax return signed by their attorney. Regardless, like the other three Taxpayers, the Hollands’ notice of deficiency claim would fail on the merits.

      . El Paso CGP Co., 748 F.3d at 229 (citations omitted).

      . See 748 F.3d at 229.

      . El Paso CGP Co., 748 F.3d at 228 ("To assert a court's jurisdiction over a claim for refund, the variance doctrine requires that the grounds for recovery advanced in federal court must be the same as advanced before the IRS.”) (emphasis added).

      .The Rodgerses original complaint stated: "This is a suit arising under Sections 7422, 6401, 6402, 6230(c), 6621(c), arid 6404(e) of the Internal Revenue Code ...” The complaint’s reference to § 6230(c) is insufficient to assert, a deficiency notice claim under § 6230(a). The Bingham’s original complaint more broadly asserted: "This is a suit arising under Sections 7422, 6401, ... 6230, and 6621(c) of the Internal Revenue Code ...” But even if this could be construed as adequately pleading the deficiency notice claim under § 6230(a), the variance doctrine argument was sufficiently before the district court. Keelan v. Majesco Software, Inc., 407 F.3d 332, 339-40 (5th Cir. 2005),

      . El Paso CGP Co., 748 F.3d at 227.

      . The IRS assessed the following amounts: (1) $24,239.00 in tax and $34,016.99 in interest against the Rodgerses for 1985; (2) $2,031.00 in tax and $3,435.61 in interest against the Rodgerses for 1986; (3) $26,694.00 in tax and $47,245.69 in interest against the Steins for 1984; (4) $16,206.00 in tax and $28,634.21 in interest against the Hollands for 1985; and (5) $11,265.00 in tax and $21,676.16 in interest against the Bing-hams for 1985, .


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    M.C. MOORE, as father and next friend to minors Joyce Marie Moore, Jerry Moore, and Thelma Louise Moore, Plaintiff v. TANGIPAHOA PARISH SCHOOL BOARD, a corporation, Defendant-Appellant v. Donald C. Massey, Court Appointed Compliance Officer, Tangipahoa Parish School Board, Movant-Appellee
    No. 16-30025
    United States Court of Appeals, Fifth Circuit.
    Filed December 6, 2016

      Pamela Wescovich Dill, Robert L. Ham-monds, Hammonds, Sills, Adkins & Guice, L.L.P., Baton Rouge, Ashley E. Sandage, Esq., Cashe, Coudrain & Sandage, Hammond, LA, for Defendant-Appellant.
    Robert E. Couhig, Jr., Jonathan Percy Lemann, Donald C. Massey, Jeffrey Thomas Pastorek, Couhig Partners, LLC, New Orleans, LA, for Movant-Appellee.
    Before STEWART, Chief Judge, and SMITH and DENNIS, Circuit Judges.
   PER CURIAM:

In this decades-old school desegregation case, Defendant Tangipahoa Parish School Board (the Board) appeals the district court’s order doubling the compensation of Donald Massey, the part-time Court Compliance Officer (CCO) tasked with monitoring the "integration efforts' of the Tangi-pahoa Parish School System. Massey, in addition to arguing that we should affirm on the merits, has also moved to dismiss the appeal alleging that we lack jurisdiction. We conclude that we have jurisdiction and affirm.

I

This desegregation case was filed in 1965. In 1967, the district court entered a comprehensive order establishing certain student' assignment and facilities requirements aimed at assisting the school district in achieving unitary school system status. Since then the district court has exercised its jurisdiction over this matter and has issued numerous additional orders aimed at reaching this goal. As relevant here, in 2008, the district court created the current CCO position, a part-time monitor tasked with ensuring that the parties comply with the court’s orders. As set forth by the district court, the CCO

shall review and assure that the school district implements the provisions of this Order, collaboratively work with and provide assistance to the Chief Desegregation Implementation Officer, offer suggestions to the school district as to possible methods or procedures which might be implemented to further enhance desegregation aims, and prepare an annual report to the parties and the court as to the progress of the school district’s implementation of each of the provisions of this Order.

The district court appointed Massey to this position in August 2014;.at the time the position’s monthly salary was $4,000.

In 2015, Massey asked the Board for a raise but the Board denied his request. Massey then filed a motion with the district court, seeking compensation at an hourly rate. The Board and the plaintiffs jointly opposed the motion. The. district court granted the motion, but rather than imposing an hourly rate as Massey had requested, the court increased his monthly salary to $8,000 per month. The Board appealed.

II

We must first address whether we have jurisdiction to hear this appeal. The Board argues that jurisdiction lies pursuant to 28 U.S.C. § 1292(a)(1) or alternatively under the collateral order doctrine. Because we conclude that we have jurisdiction under § 1292(a)(1), we decline to consider whether we would also have jurisdiction under the collateral order doctrine.

Typically, appellate jurisdiction is limited to “final decisions of the district courts.” 28 U.S.C. § 1291. That is, decisions “by which a district court disassociates itself from a case.” Swint v. Chambers County Comm’n, 514 U.S. 35, 42, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995). But under 28 U.S.C. § 1292(a)(1), we also have jurisdiction over appeals from “[[Interlocutory orders of the district courts ... granting, continuing, modifying, refusing or dissolving injunctions.” “A district court ‘grant[s]’ an injunction when an action it takes is ‘directed to a party, enforceable by contempt, and designed to accord or protect some or all of the substantive relief sought in the complaint in more than a temporary fashion.’ ” In re Deepwater Horizon, 793 F.3d 479, 491 (5th Cir. 2015) (quoting Police Ass’n of New Orleans Through Cannatella v. City of New Orleans, 100 F.3d 1159, 1166 (5th Cir. 1996)) (alteration in original); see also Integrity Collision Ctr. v. City of Fulshear, 837 F.3d 581, 586 (5th Cir. 2016) (order directing city to including towing company on the non-consent tow list was an injunction subject to enforcement by the district court and thus appealable under Section 1292(a)(1)). “A district court ‘modif[ies]’ an injunction when it ‘changes the obligations imposed by the injunction.’ ” In re Deepwater Horizon, 793 F.3d at 491 (quoting Charles A. Wright & Arthur R. Miller, Federal Practioe and Procedure § 3924.2 (3d ed. 2014)) (alteration in original). “This court takes a practical view of what constitutes a modification, ‘looking] beyond the terms used by the parties and the district court to the substance of the action.’ ” Id. (quoting In re Seabulk Offshore Ltd., 158 F.3d 897, 899 (5th Cir. 1998)) (alteration in original).

In the school desegregation context, the courts of appeals routinely exercise appellate jurisdiction under § 1292(a)(1) over orders like the one at issue in this case. “[E]quitable decrees that impose a continuing supervisory function on the court commonly ... contemplate the subsequent issuance of specific implementing injunctions” and “[e]ach such injunction is appealable regardless of finality.” People Who Care v. Rockford Bd. of Educ., Sch. Dist. No. 205, 171 F.3d 1083, 1086 (7th Cir. 1999). In People Who Care, a case challenging a budget order entered by a magistrate judge for the purpose of funding school integration, the Seventh Circuit observed that the initial desegregation decree was essentially “an injunction generator” allowing the district court to exercise its ongoing supervisory function to ensure the school district achieved and maintained unitary status. Id. This is analogous to what is happening in this case. The initial decree issued by the district court in 1967 was “an injunction generator,” and the district court’s order that the Board increase Massey’s salary is a subsequent injunction that flows directly from that original order, and is thus “appealable regardless of finality.” See id. We thus conclude that this court has jurisdiction.

Ill

With respect to the merits, the Board argues that the district court abused its discretion' by increasing Massey’s salary from $4,000 per month to $8,000 per month. The Board also argues that the district court erred in referring to the CCO position as a “special master” under Federal Rule of Civil Procedure 53 and that even if it did not err in that regard, the district court based its decision on unreliable and irrelevant information.

We review the district court’s determination of Massey’s salary for an abuse of discretion. See Samnorwood Indep. Sch. Dist. v. Tex. Educ. Agency, 533 F.3d 258, 267 (5th Cir. 2008) (citing Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971)). “A district court abuses its discretion if it bases its decision on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” United States v. Texas, 601 F.3d 354, 362 (5th Cir. 2010) (quoting Ross v. Marshall, 426 F.3d 745, 763 (5th Cir. 2005)) (internal quotation marks omitted).

The fact that the district court referred to Massey as a special master is a distinction without a difference. Although the CCO position was created pursuant to the court’s inherent authority in fashioning equitable remedies, see Ex parte Peterson, 253 U.S. 300, 312, 40 S.Ct. 543, 64 L.Ed. 919 (1920), the Board points to no authority to support its argument that the court’s inherent power differs in any meaningful way from its authority pursuant to Rule 53 to appoint special masters, see Ruiz v. Estelle, 679 F.2d 1115, 1161 n.240 (5th Cir. 1982) (“Beyond the provisions of [Rule 53] for appointing and making references to Masters, a Federal District Court has the inherent power to supply itself , with this instrument for the administration of justice when deemed by it essential.” (quoting Schwimmer v. United States, 232 F.2d 855, 865 (8th Cir. 1956)) (internal quotation marks and citations omitted)), amended in part, vacated in part, 688 F.2d 266 (5th Cir. 1982). Therefore, the district court’s characterization of Massey as a special master was not an abuse of discretion.

Ñor did the district court abuse its discretion by relying on Rule 53 in calculating the increase in Massey’s salary. Under Rule 53(g)(1), “thé court may set a new basis and terms [for the master’s compensation] after giving notice and opportunity to be heard.” The fixing of fees and costs for a special master rests within the court’s discretion. Gary W. v. State of La., 601 F.2d 240, 245 (5th Cir. 1979). After giving both sides an opportunity to brief this issue, the district court issued its order raising Massey’s salary.

The district court applied the “Hart formula,” derived from Hart v. Community School Board of Brooklyn, New York School District. No. 21, 383 F.Supp. 699 (E.D.N.Y. 1974), in determining Massey’s compensation. In Hart, the court concluded that “a reasonable fee would be based upon about half that obtainable by private attorneys in commercial matters.” Id. at 767; see also United States v. Yonkers Bd. of Educ., 108 F.R.D. 199, 202 (S.D.N.Y. 1985) (noting that courts have emphasized the public nature of such work in setting reasonable fees well below those charged in commercial legal matters). Applying this as a baseline, the court determined that $140 per hour was an appropriate hourly rate for the CCO position. The court then multiplied this number by the average number of hours that Massey worked per month as CCO.

The Board does not dispute that the hourly rate the court calculated was reasonable; rather the Board argues that the district court erred in accepting that Mas.sey worked seventy hours per month on average in performing his duties as a CCO. First, the Board argues that the district court erred in relying on a summary that Massey provided in calculating his salary. The Board argues that this summary only included the total number of hours worked and descriptions of the tasks performed, but was not itemized and did not include time entries. The Board offers no authority, nor have we found any, that supports its argument that Massey was required to extensively document his activities, or that he had to provide specific documentation in order to receive a salary increase. We therefore conclude the court did not abuse its discretion in relying on the information that Massey provided in calculating his salary.

Second, the Board argues that the district court improperly credited Massey with time spent working as a CCO when many of the tasks that Massey reported to have performed were outside the scope of his duties and responsibilities as a. CCO. Such reported activities included organizing and moderating “community meetings” to discuss. bullying and forming a blue ribbon panel to discuss issues concerning “at-risk kids” in the school district. The Board argues that these issues are beyond the scope of the district court’s desegregation orders and therefore the district court should not have counted those activities when calculating' Massey’s compensation as CCO.

We cannot say that the district court’s decision was an abuse of discretion. School integration is an enormously complex enterprise that requires consideration of an enormous number of factors. Cf. Swann, 402 U.S. at 27 n.10, 91 S.Ct. 1267 (“There is no universal answer to complex problems of desegregation; there is obviously no one plan that will do the job in every case.”). Efforts to achieve unitary status are bound to have a far reaching impact and unpredictable consequences across the school district. In this case, the district court has issued orders related to student discipline and special education programs. The Board’s interpretation of the CCO’s role in overseeing the district’s integration efforts is far too narrow. The CCO’s responsibilities — which include “offering] suggestions to the school district as to possible methods or procedures which might be implemented to further enhance desegregation aims” — are broadly defined and therefore it is reasonable to allow- him some flexibility in how he carries out his duties. The district court has exercised its oversight over this case for many years and is well-versed with regard to the details and progress of the integration efforts and the role that the CCO plays. We therefore find that the district court did not abuse its discretion when it took Massey’s reported activities into consideration when it calculated his new salary.

IV

For the foregoing reasons, the district court’s decision is AFFIRMED.

      . We note that there is tension among our precedents interpreting and applying § 1292(a)(1). Although this court takes a "practical view” as to what constitutes a modification of an injunction, we have also said that when an order is not expressly an injunction or a modification of an injunction but has the "practical effect” thereof, the order must have "serious, potentially irreparable consequences” in order for jurisdiction to lie. See, é.g:, Sherri A.D. v. Kirby, 975 F.2d 193, 203 & n.14 (5th Cir. 1992) (“orders which explicitly grant or deny injunctive relief are immediately appealable as of right,” but "orders which ... have the practical effect of denying an injunction, but do not do so in explicit terms, are 'immediately appealable if the order threatens ‘serious, perhaps irreparable consequences' and can be effectively challenged only by an immediate appeal”). Deepwater Horizon, however, suggests that an appellant must always show "serious, perhaps irreparable consequences” to confer jurisdiction under § 1292(a). 793 F.3d at 492. But see Brumfield v. La. State Bd. of Educ., 806 F,3d 289, 297 (5th Cir. 2015) (interpreting an order as an injunction even though it did not explicitly state it was for injunctive relief, but not discussing the consequences before determining that the court had jurisdiction). Because jurisdiction would be proper under any of these interpretations of § 1292(a)(1), we decline to resolve these tensions.


author: OWEN, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Obed TORRES-HERNANDEZ, Defendant-Appellant.
    No. 15-41654
    United States Court of Appeals, Fifth Circuit.
    Filed December 6, 2016
    John Richard Berry, Renata Ann Gowie, Assistant U.S. Attorneys, U.S. Attorney’s Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.
    Philip Thomas Cowen, Esq., Law Office of Philip Cowen, Brownsville, TX, Fabian Limas, Jr., Brownsville, TX, for Defendant-Appellant.
    Before KING, OWEN, and HAYNES, Circuit Judges.
   OWEN, Circuit Judge:

Obed Torres-Hernandez was charged under 21 U.S.C. § 841(a)(1) and (b)(1)(C), and 18 U.S.C. § 2 with possession with intent to distribute 95 kilograms of marijuana, and he pled guilty to that offense. He was sentenced to 57 months of imprisonment and contends on appeal that because his participation in this drug trafficking offense was limited to carrying a bundle of marijuana on his back across the border between Texas and Mexico, the district court erred in failing to grant a downward adjustment of his offense level. Torres-Hernandez contends that under § 3B1.2 of the Sentencing Guidelines, in light of Amendment 794, which became effective on November 1, 2015, he played a minor role in the offense and should have received a two-level reduction. We affirm the district court’s judgment.

I

Customs and Border Patrol agents observed six individuals walking north from the Rio Grande River towards Brownsville, Texas carrying bundles on their backs. Obed Torres-Hernandez and others were apprehended shortly thereafter, and five bundles of marijuana were found nearby. Four individuals, ineluding Torres-Hernandez, were arrested while the other two, who were juveniles, were released. The four men who were arrested had strap marks on their backs that were consistent with having carried the bundles. Each of the men admitted that he knew he was transporting a controlled substance within the United States. The bundles, collectively, contained 95 kilograms of marijuana.

Torres-Hernandez pled guilty, and he was held accountable for the full amount of marijuana (95- kilograms) that the four smugglers were jointly transporting. Torres-Hernandez had prior criminal convictions, including a conviction in 2010 for possession with intent to distribute 162.75 kilograms of marijuana. That offense was committed in the same manner, and in essentially the same location, as the offense that is the subject of this appeal. The presentence report calculated the advisory Guideline’s sentencing range to be 46 to 57 months of imprisonment. This calculation was based on an offense level of 19 and nine criminal history points, placing Torres-Hernandez in criminal history category IV.

Torres-Hernandez objected to this calculation, contending that, under § 3B1.2 of the Guidelines, he was entitled to a two-level reduction of his offense level because as a drug courier, he played only a minor role in the offense. At the sentencing hearing held on December 2, 2015, counsel argued that Torres-Hernandez should receive an adjustment based on Amendment 794 to the Guidelines, which had become effective one month earlier, on November 1,2015, because he was one of several men crossing the river with a backpack of marijuana,. there was* no evidence he was in possession of a radio or map, Torres-Hernandez did not know the ultimate destination of the drugs, and he did not have any authority to decide or influence the destination of the drugs.

The prosecutor countered that Torres-Hernandez had previously committed the same offense, served 54 months of a mandatory 60 months* prison sentence, had been deported in January 2014, and had committed the instant offense in the same manner and place less than one year later. The prosecutor argued that the district court could infer from this prior conviction that Torres-Hernandez had some knowledge of the drug trafficking organization and how it worked. The prosecutor also argued that Torres-Hernandez’s violation of the law was flagrant and warranted a sentence at the top of the advisory sentencing range.

After hearing these arguments, the’district court declined to grant a minor role adjustment and sentenced Torres-Hernandez to 57 months of imprisonment for the possession-with-intent-to-distribute offense. Torres-Hernandez was also in violation of his term of supervised release imposed for his prior drug trafficking offense, and the district court sentenced him to 18 months of imprisonment consecutive to the 57 months’ sentence. Torres-Hernandez appeals his 57 months’ sentence. The sentence for the violation of supervised release imposed in the prior judgment of conviction is not at issue in this appeal.

II

Torres-Hernandez contends’ that Amendment 794 materially changed the factors that a sentencing court should consider in deciding whether to apply a mitigating role adjustment under § 3B1.2. He asserts that the district court misapplied the law in assessing whether he should have recéived a minor role adjustment.

Section 3B1.2 of the Sentencing Guidelines instructs sentencing courts to decrease a defendant’s offense level by four levels “[i]f the defendant was a minimal participant in any criminal activity,” two levels “[i]f the defendant was a minor participant in any criminal activity,” and three levels if the defendant’s level of participation fell between minimal and minor. The commentary to § 3B1.2 provides that a mitigating role adjustment is available to any defendant “who plays a part in committing the offense that makes him substantially less culpable than the average participant.”

Amendment 794 left the text of § 3B1.2 unchanged but made various revisions to the commentary. The Commission provided various reasons for the amendment. The Commission first explained that the amendment was a result of a study that, overall, found the mitigating role provision in the Guidelines “is applied inconsistently and more sparingly than the Commission intended.” The Commission then explained that “[i]n drug cases, the Commission’s study confirmed that mitigating role is applied inconsistently to drug defendants who performed similar low-level functions (and that rates of application vary widely from district to district).” The Commission continued,

[f|or example, application of mitigating role varies along the southwest border, with a low of 14.3 percent of couriers and .mules receiving the mitigating .role adjustment in one district compared to a high of 97.2 percent in another. Moreover, among drug defendants who do receive mitigating role, there are differences from district to district in application rates of the 2-, 3-, and 4-level adjustments.

The amendment does not, however, impose any concrete requirements as to whether and when drug “couriers and mules,” like Torres-Hernandez, should receive a mitfl gating role adjustment and if so, which level of the three options should apply. Instead, the Commission provided. “additional guidance” by “[sjpecifially ... address[ing] a circuit conflict and other case law that may be discouraging courts from applying the adjustment in otherwise appropriate circumstances.” The Commission additionally provided “a non-exhaustive list of factors for the court to consider in determining whether an adjustment applies, and, if so, the amount of the adjustment.”

With regard-to the circuit conflict, the Commission noted that the Seventh and Ninth Circuits had concluded that the “average participant,” as used in § 3B1.2, “means only those persons who actually participated in the criminal activity at issue in the defendant’s case, so that the defendant’s culpability is determined only by reference to his or her co-participants in the case at hand.” The Commission observed that the First and Second Circuits had interpreted § 3B1.2 differently, “concluding] -that the ‘average participant’ also includes ‘the universe of persons participating in similar crimes.’ ” Under this latter approach, the Commission said that “courts will ordinarily consider the defendant’s. culpability relative both to his co-participants and to the typical offender.” The Commission stated that Amendment 794 “generally adopts the approach of the Seventh and Ninth Circuits,” such that “when determining mitigating role, the defendant is to be compared with the other participants ‘in the criminal activity.’” The Commission explained that “[f]ocusing the court’s attention on the individual defendant and the other participants is more consistent with the other provisions of Chapter Three, Part B.”

The Commission also reasoned .that at least four Circuit Courts of Appeals had “denied [a defendant] a mitigating role adjustment solely because he or she was ‘integral’ or ‘indispensable’ to the commission of the offense.” Disagreeing with this approach, the Commission explained that Amendment 794 “revise[d] the commentary to emphasize that ‘the fact that a defendant performs an essential or indispensable role in the criminal activity is not determinative’ and that such a defendant may receive a mitigating role adjustment, if he or she is otherwise eligible.” The commentary was amended to- specify that “[t]he fact that a defendant performs an essential or indispensable role -in the criminal activity is not determinative [and] [s]uch a defendant may receive an adjustment under this guideline if he or she is substantially less culpable than the average participant in the criminal activity.”

The list of non-exhaustive factors added to the commentary by Amendment 794 directs a sentencing court to consider:

(i) the degree to which the defendant understood the scope and structure of the criminal activity;
(ii) the degree to which the defendant participated in planning or organizing the criminal activity;
(in) the degree to which the defendant exercised decision-making authority or influenced the exercise of decision-making authority;
(iv) the nature and extent of the defendant’s participation in the commission of the criminal activity, including the acts the defendant performed and the responsibility and discretion the defendant had in performing those acts;
(v) the degree to which the defendant . stood to benefit from the criminal activity..

Amendment 794 provides that “a defendant who does not have a proprietary interest in the criminal activity and who is simply being paid to perform certain tasks should be considered for an adjustment under this guideline.”

m

“The district court’s ‘interpretation or application of the Sentencing Guidelines’ is reviewed de novo, while its factual findings are reviewed for clear error.” Whether a defendant “was a minor or minimal participant is a factual determination that we review for clear error.” In this context, we have held that “[a] district court’s factual findings are not clearly erroneous if they are ‘plausible in light of the record as a whole.’” We have further held .that “[a] party seeking an adjustment in the base level of an offense bears the burden of proving by a preponderance of the evidence that the adjustment is warranted.”

The commentary to § 3B1.2 provides guidance for determining when a defendant who plays a part in committing the offense is “substantially less culpable than the average participant.” This part of the commentary, which was essentially unchanged by Amendment 794, explains:

A defendant who is accountable under § 1B1.3 (Relevant Conduct) only for,the conduct in which the defendant personally was involved and who performs a limited function in the criminal activity may receive an adjustment under this guideline. For example, a defendant who is convicted of a drug trafficking offense, whose participation in that offense was limited to transporting or storing drugs and who is accountable under § IB 1.3 only for the quantity of drugs the defendant personally transported or stored may receive an adjustment under this guideline.

Torres-Hernandez relies heavily on this provision,'but he does hot come within its parameters. He was held accountable for more than “only ... the quantity of drugs [he] personally transported.” He was held accountable for the entire quantity of drugs that the group of men transported. An example in the commentary to § 1B1.3 addresses the accountability for those who transport drugs in the manner that Torres-Hernandez did:

Defendants T, U, V, and W are hired by a supplier to backpack a quantity of marihuana across the border from Mexico into the United States. Defendants T, U, V, and W receive their individual shipments from the supplier at the same time and coordinate their importation efforts by walking across the border together for mutual assistance and protection. Each defendant is accountable for the aggregate quantity of marihuana transported by the four defendants. The four defendants engaged in a jointly undertaken criminal activity, the object of which was the importation of the four backpacks containing marihuana (subsection (a)(1)(B)), and aided and abetted each ' other’s actions (subsection (a)(1)(A)) in carrying out the jointly undertaken criminal activity (which under subsection (a)(1)(B) were also in furtherance of, and reasonably foreseeable in connection with, the criminal activity).

This example then contrasts when it would be appropriate to hold a defendant accountable only for the amount he transported:

In contrast, if Defendants T, U, V, and W were hired individually, transported their individual shipments at different times, and otherwise operated independently, each defendant would be accountable only for the quantity of marihuana he personally transported (subsection (a)(1)(A)). As this example illustrates, the scope of the jointly undertaken criminal activity may depend upon whether, in the particular circumstances, the nature of the offense is more appropriately viewed as one jointly undertaken criminal activity or as a number of separate criminal activities. See Application Note 3(B).

Accordingly, the statement in Application Note 3(A) of the Commentary to Guideline section 3B1.2 that “[a] defendant who is accountable under § IB 1.3 (Relevant Conduct) only for the conduct in which the defendant personally was involved and who performs a limited function in the criminal activity may receive an adjustment under this guideline” is inapplicable to Torres-Hernandez.

Amendment 794’s explanation that “average participant,” as used in § 3B1.2, “means only those persons who actually participated in the criminal activity at issue in the defendant’s case, so that the defendant’s culpability is determined only by reference to his or her co-participants in the case at hand” also indicates that the district court correctly construed and applied this section of the Guidelines. The only evidence in the record regarding the participation of others in the possession of the 95 kilograms of marijuana for distribution pertains to the other individuals who had transported the drugs on their respective backs. Torres-Hernandez was no more or less culpable than the other transporters. He did not offer any evidence as to the participation, or expected participation, of others involved in the growing, further transportation, or intended sale of this marijuana.

With regard to the factors added by Amendment 794 to the commentary accompanying § 3B1.2, the Commission expressly stated that they are nonexclusive, and they are only factors. We cannot say that the district court erred, clearly or otherwise, in applying these factors to the facts of this case. Torres-Hernandez certainly understood that he and those accompanying him were illegally transporting marijuana within the United States, as part of the distribution chain. There is no evidence as to his participation in planning or organizing the criminal activity, or the degree to which he exercised decision-making authority or influenced the exercise of that authority. This weighs in favor of an adjustment. The evidence is clear, however, as to the nature and extent of his participation in this criminal activity and the acts he performed. He participated in physically transporting the marijuana into the United States. He was paid for his participation, though the amount of his compensation does not appear to be in the record. Another consideration in the commentary to § 3B1.2 says that “a defendant who does not have a proprietary interest in the criminal activity and who is simply being paid to perform certain tasks should be considered for an adjustment.” There was no evidence as to whether Torres-Hernandez had a proprietary interest, but even if he did not, this is but one factor to be considered by the sentencing court.

The Presentence Report does not discuss in any detail a mitigating role adjustment or any of the factors presented in the commentary. But that is not dispositive of whether the district court considered the various factors set forth in the commentary to § 3B1.2. Torres-Hernandez objected to the Presentence Report and argued that he was entitled to an adjustment because his role in the offense was minor. The arguments were before the district court.

In contending that the district court incorrectly applied § 3B1.2, Torres-Hernandez relies primarily on the district court’s statement at the sentencing hearing that “getting the drugs into the United States is a critical role and is not a minor role by any means.” This is not an indication that the district court relied solely on its view that transporting the marijuana into this country was a critical role in the offense. Counsel for Torres-Hernandez made arguments, based on Amendment 794 and the commentary to § 3B1.2, as to why Torres-Hernandez’s participation should be considered minor. The Government made counter arguments. The district court was not required to expressly weigh each factor in § 3B1.2 on the record. Based on the record of what was presented to the district court in Torres-Hernandez’s written objections, his arguments at the sentencing hearing, and the Government’s responses, the district court considered and rejected counsel’s arguments, not because the district court was unaware of or failed to consider the factors in the commentary to. § 3B1.2, but because it weighed the factors and concluded that based on the offense charged, which was possession of a controlled substance for distribution, and the defendant’s role in that offense as'compared to the others identified as participating, Torres-Hernandez was not entitled to an adjustment. The district court’s finding that Torres-Hernandez was not a minor participant and that he was not entitled to an adjustment is plausible based on the record.

The commentary to § 3B1.2, including the explanations in Amendment 794 for th¿ revisions to that commentary, does not require, as a matter of law, that an adjustment must be made for transporters such as Torres-Hernandez. The commentary and Amendment 794 instead confirm that there are many factors that a sentencing court should consider, and how those factors are weighed remains within the sentencing court’s discretion. The Guidelines expressly, provide that whether to -grant a reduction in the offense level based on a defendant’s participation in the offense “involves a determination that is heavily dependent upon the facts of the particular case.”

* * *

We AFFIRM the district court’s judgment.'

      . The original indictment alleged more than 100 kilograms of marijuana, but a subsequent reweigh showed only 95 kilograms.

      . The defendant was also sentenced to 18 months to run consecutively for violation of the terms of his probation for a previous offense.

      . See U.S. Sentencing Guidelines Manual § 3B1.2 (U.S. Sentencing Comm'n 2015) [hereinafter U.S.S.G.].

      , U.S.S.G. app. C, amend. 794, at 116-18 (Supp. Nov. 1, 2015).

      .' U.S.S.G. § 3B1.2,

      . Id. § 3B1.2 cmt. n.3(A).

      . See U.S.S.G. app. C, amend. 794, at 117-18 (Supp. Nov. 1, 2015).

      . Id. at 117.

      . Id.

      . Id.

      . Id.

      . Id. (citing United States v. Cantrell, 433 F.3d 1269, 1283 (9th Cir. 2006); United States v. Benitez, 34 F.3d 1489, 1498 (9th Cir. 1994); United States v. DePriest, 6 F.3d 1201, 1214 (7th Cir. 1993)).

      . Id. (quoting United States v. Santos, 357 F.3d 136, 142 (1st Cir. 2004)) (citing United States v. Rahman, 189 F.3d 88, 159 (2d Cir. 1999)).

      . Id.

        . Id. , ‘

      . Id. (citing U.S.S.G. § 3B1.2 cmt n.3(C)).

      . Id, at 118 (citing United States v. Skinner, 690 F.3d 772, 783-84 (6th Cir. 2012); United States v. Deans, 590 F.3d 907, 910 (8th Cir. 2010); United States v. Panaigua-Verdugo, 537 F.3d 722, 725 (7th Cir, 2008); United States v. Carter, 971 F.2d 597, 600 (10th Cir. 1992)).

      . Id, (quoting U.S.S.G. § 3B1.2 cmt. n.3(C)).

      . Id. at 116.

      . Id.

      . Id.

      . United States v. Lige, 635 F.3d 668, 670 (5th Cir. 2011) (quoting United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008)).

      . United States v. Gomez-Valle, 828 F.3d 324, 327 (5th Cir. 2016) (quoting United States v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2005)).

      . United States v. Miranda, 248 F.3d 434, 446 (5th Cir. 2001) (quoting United States v. Alford, 142 F.3d 825, 831 (5th Cir. 1998)).

      . Id.

      . U.S.S.G. § 3B1.2 cmt. n.3(A).

      . Id.

      . Id.

      . U.S.S.G. § 1B1.3 n.4(C)(viii),

      . Id.

      . U.S.S.G. app. C, amend. 794, at 117 (Supp. Nov. 1, 2015) (citing United States v. Cantrell, 433 F.3d 1269, 1283 (9th Cir. 2006); United States v. Benitez, 34 F.3d 1489, 1498 (9th Cir. 1994); United States v. DePriest, 6 F.3d 1201, 1214 (7th Cir. 1993)).

      . U.S.S.G. § 3B1.2 cmt. n.3(C).

      . See generally United States v. Morosco, 822 F.3d 1, 24 (1st Cir. 2016).

      . U.S.S.G. § 3B1.2 n.3(C),