text:
    UNITED STATES of America, Plaintiff-Appellee, v. Roger Harry OLSON, II, Defendant-Appellant.
    No. 16-10507 Summary Calendar
    United States Court of Appeals, Fifth Circuit.
    Filed February 20, 2017

      Gary C. Tromblay, Assistant U.S. Attorney, James Wesley Hendrix, Assistant U.S. Attorney, U.S. Attorney’s Office, Northern District of Texas, Dallas, TX, for Plaintiff-Appellee.
    Kevin Blake Ross, Law Office of Kevin B. Ross, P.C., James Joseph Mongaras, Jr., Sorrels, Udashen & Anton, Dallas, TX, for Defendant-Appellant. '
    Before JOLLY, SMITH, and GRAVES, Circuit Judges.
   PER CURIAM:

After the denial of his motion to suppress, Roger Olson, II, pleaded guilty of possession with intent to distribute fifty grams or more of methamphetamine and possession with intent to distribute gamma hydroxybutyric acid. On appeal, Olson challenges the denial of his motion to suppress and the application of the career-offender guideline, U.S. Sentencing Guidelines § 4B1.1, based on his two convictions of possession for sale of methamphetamine in violation of California Health & Safety Code § 11378.

By pleading guilty voluntarily and unconditionally, a criminal defendant waives his right to challenge any nonjuris-dictional defects in the criminal proceedings that occurred before the plea. United States v. Stevens, 487 F.3d 232, 238 (5th Cir. 2007). This waiver includes the right to raise any further objections based on the denial of a motion to suppress. Id.

Though a defendant may enter into a conditional guilty plea preserving the right to appeal pretrial rulings, the plea must be in writing and designate the particular issues that are preserved for appeal; the government must consent to it; and the district court must approve it. United States v. Wise, 179 F.3d 184, 186-87 (5th Cir. 1999); see Fed. R. Crim. P. 11(a)(2); Stevens, 487 F.3d at 238. A conditional guilty plea may not be implied. Wise, 179 F.3d at 186.

We have excused variances from these technical requirements where “the record clearly indicates that the defendant intended to enter a conditional guilty plea, that the defendant expressed the intention to appeal a particular pretrial ruling, and that neither the government nor the district court opposed such a plea.” Stevens, 487 F.3d at 238 (internal quotation marks and citation omitted); see Wise, 179 F.3d at 187. That is not the situation here.

The parties did not enter into a written plea agreement. Moreover, the record contains no suggestion that Olson intended to plead guilty conditionally, that he expressed an intent to appeal the suppression ruling, or that the government and the court assented to a conditional plea. Finally, Olson does not contend, and it is not apparent from the transcript of his rearraignment hearing, that his plea was involuntary. By entering a voluntary, unconditional plea of guilty, he therefore waived the right to challenge the denial of the motion to suppress.

Olson contends that a conviction under § 11378 does not qualify as a controlled-substance offense under § 4B1.1 because it criminalizes an offer to sell a controlled substance. A defendant is a career offender for purposes of the guidelines if, among other things, the conviction for which he is being sentenced is a felony crime of violence (“COV”) or controlled-substance offense and he has at least two felony convictions for either a COV or a controlled-substance offense. § 4B1.1(a); see also U.S.S.G. § 4B1.2 (defining the terms in § 4B1.1). In relevant part, § 4B1.2(b) defines a controlled-substance offense as “an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits ... the possession of a controlled substance ... with intent to manufacture, import, export, distribute, or dispense.”

In United States v. Castellon-Aragon, 772 F.3d 1023, 1024 (5th Cir. 2014), we held that possession of methamphetamine for sale, in violation of § 11378, is a drug-trafficking offense under U.S.S.G. § 2L1.2. We cited United States v. Valle-Montalbo, 474 F.3d 1197, 1201 (9th Cir. 2007), which concluded that “[b]oth the plain text of Health & Safety Code § 11378, and California case law confirm that § 11378 only criminalizes possession of dangerous drugs with the intent to sell them.” Valle-Montalbo, 474 F.3d at 1201. Possession of a controlled substance with the intent to sell, deliver or, distribute it plainly qualifies as a controlled-substance offense under § 4B1.1. See United States v. Ford, 509 F.3d 714, 716-17 (5th Cir. 2007), abrogated on other grounds by United States v. Tanksley, 848 F.3d 347, 352-53, 2017 WL 213835, at *4 (5th Cir. 2017) (on petition for rehearing). An offer to sell a controlled substance, on the other hand, does not necessarily require the defendant to actually or constructively possess the controlled substance or to intend to distribute it. Ford, 509 F.3d at 716-17.

Thus, Olson’s theory that § 11378 criminalizes offers to sell a controlled substance is without merit, because a conviction under § 11378 requires proof of actual or constructive possession of a controlled substance and the intent to sell it. Accordingly, the district court properly applied the career-offender enhancement based on Olson’s two convictions of possession of methamphetamine for sale.

AFFIRMED.


source: Caselaw Access Project

author: EDITH BROWN CLEMENT, Circuit Judge:

license: Public Domain

text:
    Nicole MABRY, as Mother and Next Friend of T.M., a Minor, Plaintiff-Appellant v. LEE COUNTY, Defendant-Appellee
    No. 16-60231
    United States Court of Appeals, Fifth Circuit.
    FILED February 21, 2017

      Victor Israel Fleitas, Tupelo, MS, for Plaintiff-Appellant.
    William C. Murphree, Esq., Mitchell, McNutt & Sams, Gary Lee Carnathan, I, Esq., Attorney, Carnathan & McAuley, Tupelo, MS, for Defendant-Appellee.
    Jessica R. Feierman, Marsha L. Levick, Chief Counsel, Juvenile Law Center,' Philadelphia, PA, for Amicus Curiae Juvenile Law Center.
    Before WIENER, CLEMENT, and HIGGINSON, Circuit Judges.
   EDITH BROWN CLEMENT, Circuit Judge:

T.M., a middle school student, was arrested after a fight on school property and taken to a juvenile detention center. As part, of standard intake procedures at the center, she was subjected to a strip and cavity search. She was released from the center that same evening. All charges were eventually dropped. Nicole Mabry (“Ma-bry”), T.M.’s mother, brought suit against Lee County (“County”) and others on T.M.’s behalf, alleging among other things that the strip and cavity search violated T.M.’s Fourth Amendment rights. The district court granted the County’s motion for partial summary judgment on the Fourth Amendment issue. Mabry timely appealed. We AFFIRM.

I

The facts essential to this appeal are not in dispute. T.M. was a twelve-year old student at Tupelo Middle School. She was in a physical altercation with a fellow student on school property. Pursuant to the school’s zero-tolerance policy, the school principal consulted with the Tupelo police officer assigned to be the School Resource Officer (“SRO”). Following that conversation, the SRO determined there was probable cause to arrest T.M. on charges of assault, disorderly conduct, and disruption of a school session. He called the Lee County Youth Court’s judicial designee and was given authorization, based on the designee’s determination of probable cause, to transport T.M. to the Lee County Juvenile Detention Center (“Center”). He then removed T.M. from school property, handcuffed her, and patted her down. No weapons or contraband were found.

Center intake procedures dictated that all juveniles processed into the Center were to be searched for contraband using a metal detecting wand and a pat down. In addition, procedures required that juveniles charged with a violent, theft, or drug offense who were to be placed into the Center’s general population be subjected to a visual strip and cavity search. All juveniles brought to the Center were processed for placement in the general population unless the Youth Court specifically informed the Center that the juvenile was to be held as a “non-detainee.”

Pursuant to these policies, a female corrections officer searched T.M. when she arrived at the Center. The officer first used the metal detecting wand and patted T.M. down, finding no contraband. At that point, the officer had no reason to suspect T.M. was concealing any contraband in or on her person. Because T.M. was charged with a violent offense, however, Center policy required that the officer strip and cavity search T.M. In a private setting, T.M. was made to strip naked, bend over, spread her buttocks, display the anal cavity, and cough. At no point did the officer touch T.M. during the search. No contraband was found. Following the search, T.M. showered, dressed, moved to a holding cell for approximately twenty minutes, and then entered the general population. She was released from the Center later that evening. No charges against T.M. were pursued.

Mabry sued on T.M.’s behalf. The County filed two separate motions for partial summary judgment. The district court granted both motions and — because neither motion was for complete summary judgment — ordered Mabry to show cause as to whether any remaining claims existed against the County. Mabry responded that no remaining claims existed, and the district court entered final judgment.

Mabry timely appealed. Her appeal is limited to a single issue: whether the district court erred in determining that Ma-bry failed to create a genuine issue of material fact that the Center’s search of T.M. violated T.M.’s Fourth Amendment rights. We AFFIRM.

II

We review “the district court’s ruling on summary judgment de novo, applying the same standard as the district court in the first instance.” Davis v. Fort Bend Cty., 765 F.3d 480, 484 (5th Cir. 2014): Summary judgment is appropriate only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

III

The Fourth Amendment to the United States Constitution reads in relevant part, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Because “[t]he Fourth Amendment prohibits only unreasonable searches,” Grady v. North Carolina, — U.S. -, 135 S.Ct. 1368, 1371, 191 L.Ed.2d 459 (2015), it has been left to courts to draw the line between reason and unreason. There are many different kinds of searches, varying in relative intrusiveness and distinguishable by context. Unsurprisingly, search and seizure jurisprudence has been patchwork, composed of a number of different tests, to be applied to different kinds of searches and in different settings.

The question presented to us is whether Mabry has shown that the County’s visual strip and cavity search of T.M., who was detained for simple assault pursuant to a probable cause determination by a judicial designee, violated the Fourth Amendment. To answer, it is necessary to probe the Supreme Court’s Fourth Amendment precedents to determine whether any bind us. Although there are myriad Supreme Court cases that are at least tangentially related to the issues raised here, three are especially pertinent. None is on all-fours with the facts here. We give a brief summary of each nonetheless, to properly situate our substantive analysis below in the context of governing Supreme Court case law.

A. Bell v. Wolfish

Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), “is the starting point for understanding” how to evaluate the reasonableness of a search at a correctional facility. Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 566 U.S. 318, 132 S.Ct. 1510, 1516, 182 L.Ed.2d 566 (2012). In Bell, a group of adult pretrial detainees brought a class action suit, challenging, among other things, a New York correctional facility’s practice of strip and cavity searching all inmates “after every contact visit with a person from outside the institution.” 441 U.S. at 558, 99 S.Ct. 1861. The searches were strictly visual; inmates were not touched. Id. at 558 n.39, 99 S.Ct. 1861. The Court announced a holistic balancing test to be applied when determining a search’s reasonableness:

The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intru-sion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.

Id. at 559, 99 S.Ct. 1861. Applying this test to the searches at issue in Bell, the Court “[b]alance[d] the significant and legitimate security interests of the institution against the privacy interests of the inmates,” and concluded that the balance weighed in favor of the reasonableness of the searches. Id. at 560, 99 S.Ct. 1861.

B. Safford v. Redding

The inmates in Bell were adults. Thirty years later, the Supreme Court addressed the constitutionality of strip searches of minor students by school officials on school property. See Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009). In Safford, the principal of a middle school oversaw the search of a student who was required to “pull her bra out and to the side and shake it, and to pull out the elastic on her underpants, thus exposing her breasts and pelvic area to some degree.” Id. at 369, 129 S.Ct. 2633. The Court, relying heavily on prior precedent in New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985), held that, when assessing the constitutionality of “searches- by school officials[,] a ‘careful balancing of governmental and private interests suggests that the public interest is best served’ ” by applying “a standard of reasonable suspicion.” Safford, 557 U.S. at 370, 129 S.Ct. 2633 (quoting T.L.O., 469 U.S. at 341, 105 S.Ct. 733). In addition to having reasonable suspicion to conduct a search, the Court explained, school officials must also narrow the scope of the search such that “the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” Id. (quoting T.L.O., 469 U.S. at 342, 105 S.Ct. 733). Importantly for present purposes, the Court emphasized that the Fourth Amendment’s interest-balancing calculus outlined in Bell is necessarily different when applied to minors, in part because “adolescent vulnerability intensifies the patent intrusiveness” of a strip search. Id. at 375, 129 S.Ct. 2633.

C. Florence v. Board of Chosen Freeholders

The most recent relevant Supreme Court precedent came in Florence, 132 S.Ct. 1510. An adult pretrial detainee challenged strip and cavity searches conducted pursuant to routine intake procedures. The Court reiterated the Bell balancing test but further emphasized that “a responsible Fourth Amendment balance is not well served by standards requiring sensitive, case-by-case determinations of government need, lest every discretionary judgment in the field be converted into an occasion for constitutional review.” Id. at 1517-18 (quoting Atwater v. Lago Vista, 532 U.S. 318, 347, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001)). Rather than directly applying Bell’s holistic balancing test, the Court applied a more deferential Fourth Amendment calculus. See id. at 1515.

The Florence Court held that “a regulation impinging on an inmate’s constitutional rights must be upheld ‘if it is reasonably related to legitimate penological interests.’ ” Id. (quoting Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)). The Court further stressed the deference owed to correctional officials in designing search policies intended to ensure security, noting that, “in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response ... courts should ordinarily defer to their expert judgment in such matters.” Id. at 1517 (quoting Block v. Rutherford, 468 U.S. 576, 584-85, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984)). While taking pains to describe and apply the long-established reasonableness framework of Bell and other Fourth Amendment precedent, the Court in Florence nonetheless set up a high hurdle for inmates challenging the constitutionality of searches. The Court concluded that, in the correctional context, the burden is on the plaintiff to prove with substantial evidence that the challenged search does not advance a legitimate peno-logical interest.

Although stressing the importance of deference to correctional officials, the Court suggested that substantial evidence could demonstrate that a correctional strip search policy is an exaggerated response to security concerns when, compared to the facts presented in Florence, the need for such a policy is lower, the justification weaker, the intrusiveness higher, or an alternative, less invasive policy more feasible. Justice Kennedy’s majority opinion clarified that “[tjhis case does not require the Court to rule on the types of searches that would be reasonable in instance where, for example, a detainee will be held without assignment to the general jail population and without substantial contact with other detainees.... The accommodations provided in these situations may diminish the need to conduct some aspects of the searches at issue.” Id. at 1522-23. Similarly, Chief Justice Roberts stressed: “it is important for me that the Court does not foreclose the possibility of an exception to the rule it announces.” Id. at 1523. Justice Alito highlighted that “the Court does not hold that it is always reasonable to conduct a full -strip search of an arrestee whose detention has not been reviewed by a judicial officer and who could be held in available facilities apart from the general population. Most of those arrested for minor offenses are not dangerous, and most are released from custody prior to or at the time of their initial appearance before a magistrate.... For these persons, admission to the general jail population, with the concomitant humiliation of a strip search, may not be reasonable, particularly if an alternative procedure is feasible.” Id. at 1524 (Alito, J., concurring). Despite this cautionary language, the Court in Florence nonetheless made clear that the evidentia-ry burden rests with the plaintiff when challenging a correctional search policy. Without substantial evidence to the contrary, courts should defer to the reasonableness determinations of correctional officials.

IV

As the district court noted, T.M.’s case “lies at the intersection” of Safford and Florence: both precedents share important similarities with the facts here, but neither is on all-fours. Mabry v. Lee Cty., 168 F.Supp.3d 940, 945 (N.D. Miss. 2016). T.M.’s case is like Safford in that it involves the search of a minor student, and it is like Florence in that the search was conducted pursuant to routine intake procedures at a correctional facility. The first question we must address, then, is whether Florence or Safford — or neither — controls in cases when, as here, the inmate who is searched on intake into a correctional facility is a juvenile.

Only one of our sister circuits has addressed precisely this question since Florence was decided. In J.B. ex rel. Benjamin v. Fassnacht, 801 F.3d 386 (3d Cir. 2015), a minor was strip and cavity searched pursuant to routine intake procedures at a juvenile detention center. The Third Circuit held that Florence controlled for two reasons. First, focusing on the logic underlying Florence, the court asserted that “[tjhere is no easy way to distinguish between juvenile and adult detainees in terms of the security risks cited by the Supreme Court in Florence.” Id. at 343. And, the court explained, because juveniles and adults pose the same security risks, it follows that the same constitutional test for reasonableness should apply in assessing searches meant to mitigate those risks. See id. at 344-45.

Second, the court in J.B. homed in on certain language in the Florence opinion that seems to indicate a broad scope of the holding, including Florence’s, expansive definition of jail to include “other detention facilities.” Id. at 339 (quoting Florence, 132 S.Ct. at 1513). The court noted that this “sweeping language ... comports with the federal definition of prison: ‘[A]ny Federal, State, or local facility that incarcerates or detains juveniles or adults’ ” Id. at 347 (quoting 18 U.S.C. § 3626(g)) (emphasis added). Thus, relying on its reading of Florence’s substantive logic and certain passages in the opinion’s language, the Third Circuit concluded that Florence controls in cases involving strip and cavity searches of minors.

The County urges us to follow the Third Circuit in holding that Florence controls in cases involving juveniles. Mabry and her amici argue that Florence does not control when minors are involved, and that we should instead apply Safford’s reasonable-suspicion test or some other alternative.

In explaining its motivation for shifting the burden of marshalling substantial evidence onto plaintiffs who challenge a search’s reasonableness, the Court in Florence stressed the deference owed to correctional officers. The reason for that deference is because courts do not have “sufficient expertise ... to mandate, under the Constitution ... specific restrictions and limitations.” Florence, 132 S.Ct. at 1513. “Maintaining safety and order” in correctional facilities “requires the expertise of correctional officials.” Id. at 1515. Consequently, “determining whether a policy is reasonably related to legitimate security interests is peculiarly within the province and professional expertise of corrections officials.” Id. at 1517 (internal quotation marks omitted). It is this expertise on the part of officials, and the lack thereof on the part of courts, that motivates the deferential test outlined in Florence.

Florence’s, argument as to institutional competence applies with equal force to juvenile detention centers as it does to adult correctional institutions. That is, we can discern no reason why designing and implementing méasures to maintain safety and order in. juvenile detention centers requires any less expertise than in adult correctional facilities, nor do we see why courts are more competent to achieve the task in'the juvenile context. Importantly, the persuasiveness of this point is not undermined by the fact that the actual security concerns and privacy interests implicated in the juvenile detention center context may be different in important ways from those faced in adult correctional facilities. See, e.g., Safford, 557 U.S. at 375, 129 S.Ct. 2633 (noting that “adolescent vulnerability intensifies the patent intrusiveness” of a search); J.B., 801 F.3d at 343 (explaining that “juveniles pose risks unique from those of adults as the state acts as the minor’s de facto guardian ... during a minor’s detention period”). Nevertheless, we read Florence to mean that, in the correctional context— whether juvenile or adult — courts, which are not experts, should still defer to officials who are. The logic underlying Florence’s deferential test thus compels the conclusion that the deference given to correctional officials in the adult context applies to correctional officials in the juvenile context as well.

V

Having concluded that the burden allocation of Florence applies, we now determine whether Mabry has put forward substantial, evidence demonstrating that the search policy that the Center applied to T.M. was not “reasonably related to legitimate penological interests.” Florence, 132 S.Ct. at 1515. Making that determination requires us to ask whether Mabry has pointed to “substantial evidence in the record to indicate that the officials have exaggerated their response.” Id. at 1517 (quoting Block, 468 U.S. at 584-85, 104 S.Ct. 3227).

Mabry acknowledges that, under Florence, it is her burden to prove the policy’s unreasonableness with substantial evidence. Yet, in her brief, Mabry focuses her argument exclusively on the threshold question of whether Florence should apply to T.M.’s case. She makes no real effort to present evidence that the Center’s search policy is exaggerated, unnecessary, or irrational in any way. Accordingly, she effectively concedes that she cannot prevail under Florence’s test.

Mabry’s effective concession on this point is fatal to her claim, even though we note that, at oral argument, counsel for the County could not point to even one instance in which contraband was found via the strip and cavity search that could not have been found through use of the metal detecting wand and pat-down. Furthermore, the County has given no explanation for the Center’s blanket policy of placing all incoming juvenile pretrial detainees into its general population as a default matter, absent some special indication from the Youth Court to the contrary. Indeed, at no point in its brief does the County point to any evidence whatsoever legitimating any components of the Center’s intake procedures, including the search policy.

Despite the paucity of the County’s defense of the Center’s policies and procedures, Mabry failed to enter evidence into the record below making a substantial showing that the Center’s search policy is an exaggerated or otherwise irrational response to the problem of Center security. Mabry’s argument must therefore be rejected.

VI

The district court’s ruling is AFFIRMED.

      . Courts have not always been precise in the terminology they use to describe various kinds of searches. For purposes of uniformity, we call any search in which an inmate is made to remove clothes a “strip search,” and any search in which an inmate is made to remove clothes and allow visual inspection of the private parts a "strip and cavity search.”

      . The Sixth Circuit faced a similar situation in T.S. v. Doe, 742 F.3d 632 (6th Cir. 2014), but ultimately decided that case on qualified immunity grounds, and so did not make any holding as to whether Florence applies to searches of juveniles.

      . At oral argument, Mabry’s counsel explicitly conceded that he had not attempted to make any argument applying the Florence test.


author: PATRICK E. HIGGINBOTHAM, Circuit Judge:

text:
    Rolando RUIZ, Petitioner-Appellant, v. William STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
    No. 11-70011
    United States Court of Appeals, Fifth Circuit.
    Filed February 21, 2017

      Kathryn M. Kase, Esq., Burke Morley Butler, Texas Defender Service, Houston, TX, Lee Benjamin Kovarsky, Esq., University of Maryland Law School, Baltimore, MD, for Petitioner-Appellant.
    Jeremy Craig Greenwell, Esq., Assistant Attorney General, Office of the Attorney General, Postconviction Litigation Division, George A. d’Hemecourt, Assistant Attorney General, Office of the Attorney General, Austin, TX, for Respondent-Ap-pellee.
    Before HIGGINBOTHAM, DENNIS, and ELROD, Circuit Judges.
   PATRICK E. HIGGINBOTHAM, Circuit Judge:

Rolando Ruiz murdered Theresa Rodriguez for remuneration on July 14, 1992, a crime for which he has been convicted and sentenced to death. In the two decades since, Ruiz has enjoyed the full benefit of the procedural protections of the laws of the United States and the State of Texas. With less than a month before his execution, Ruiz returns to this Court, asserting that we were in error in determining that the Texas Court of Criminal Appeals had denied his Wiggins claims on the merits rather than based on state procedural grounds. Unpersuaded, we deny the motion to recall mandate.

I.

After his direct appeals, Ruiz filed his first state application for a writ of habeas corpus on September 15, 1997. The Texas Court of Criminal Appeals denied relief in an unpublished opinion on April 2, 2003. On February 18, 2004, Ruiz filed his first federal petition for a writ of habeas corpus in the Western District of Texas, asserting various claims including, for the first time, Wiggins claims of ineffective assistance of counsel. The district court correctly determined that those claims were unex-hausted and denied relief. We affirmed that decision and denied a certificate of appealability.

Ruiz subsequently returned to the state courts to press his Wiggins claims. In 2007, the Texas Court of Criminal Appeals issued an unpublished opinion denying relief, with a four-judge plurality characterizing the petition as an abuse of the writ, as well as a separate statement by Judge Womack and a dissenting statement by Judge Holcomb. Ruiz then returned to the federal district court under Rule 60(b), requesting that court set aside its earlier denial of relief and arguing that the Texas Court of Criminal Appeals decision dismissing his second state habeas petition was a decision on the merits. The district court determined that “[bjecause the state appellate court dismissed petitioner’s second state habeas application on state writ-abuse principles, petitioner has procedurally defaulted on those claims for purposes of federal habeas review.”

We reversed. We held that the principles of Michigan v. Long and Hams v. Reed “give[ ] to state courts control over the federal review of their opinions” by giving them the power to plainly state the grounds their decisions rest upon. Because we were uncertain that the decision of the Texas Court of Criminal appeals turned on state law grounds, we determined — as we were required to do — that Ruiz’s petition rested on federal law and that “Ruiz’s Wiggins claim was properly before the federal district court.” Ruiz then returned to the district court, which held an evidentiary hearing — the first by any court — and determined that, while Ruiz had persuaded that his counsel’s per-formanee was deficient, he had failed to demonstrate the requisite prejudice.

We denied Ruiz’s subsequent request for a certificate of appealability. While the district court had conducted a de novo examination of Ruiz’s Wiggins evidence, we reviewed that evidence under the deferential standard of 28 U.S.C. § 2254(d). This followed from our required resolution of uncertainty in the state court order in favor of federal jurisdiction. We held that “Ruiz’s new evidence bears scant resemblance to that adduced in Wiggins and Williams v. Taylor [529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) ], cases in which the Supreme Court found prejudice” and that “[bjecause there is no debatable issue on prejudice, we need not reach the question of whether Ruiz’s trial counsel’s failure to introduce the new ha-beas evidence at trial amounted to deficient representation.” The Supreme Court denied certiorari.

II.

Ruiz then returned to the Texas courts with a third state habeas application. The Texas Court of Criminal Appeals stayed his execution pending review before dismissing that petition late last year. In that opinion, the Texas Court of Criminal appeals stated that “[the 2007 dismissal for abuse of the writ] did not address the merits of Ruiz’s IAC claims” and charae-terized this Court’s holding to the contrary as “an innovative way to allow the merits of Ruiz’s IAC claims to be addressed by the federal district court.” According to Ruiz, these statements are evidence of a manifest error in our 2013 opinion. Ruiz avers that our decision that the Texas state courts had evaluated his Wiggins claims on the merits, and consequently that the § 2254(d) standard of review applied, is “clearly an error” in light of the Texas Court of Criminal Appeals’s statements to the contrary. Ruiz urges that this error requires this court to recall the mandate in order to prevent injustice.

Our earlier decision was not erroneous. As we explained in óur opinion, the writings of the separate and dissenting judges of the Texas Court of Criminal Appeals left us uncertain that its decision was footed in state law. The principles of Michigan v. Long and progeny required that we resolve that uncertainty in favor of federal jurisdiction. We respect the recent repair to its order by that able court and its statement of what it intended in its original ruling. We respectfully disagree that its intent was then fully effectuated.

Regardless, the fall of the error is now only a muse, for a contrary determination would not favor Ruiz, as we would then have not had jurisdiction to hear those claims. Ruiz appears to argue that there is a middle ground between the deferential standard necessitated by the state court’s “on the merits” dismissal of his Wiggins claims and a finding that he had procedurally defaulted. Not so. The Supreme Court has held that § 2254(d) applies even where the state court issues a summary denial without an accompanying statement of reasons. “When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Our holding that the Texas Court of Criminal Appeals dismissed his petition on the merits necessarily triggered the deferential standard he faced under § 2254(d) when he returned six years later. In short, Ruiz’s Wiggins claims have run their course and are drained of purchase.

Ruiz’s motion to withdraw the mandate is denied.

Attachment

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

WR-27,328-03

EX PARTE ROLANDO RUIZ

ON APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE NO. 92-CR-6718B FROM THE 227™ DISTRICT COURT OF BEXAR COUNTY

Per Curiam. Womack, i., filed a statement respecting the dismissal of the application. Holcomb, i., filed a statement dissenting to the dismissal of the application in which Johnson, J. Joins. Price and Hervey, JJ., not participating.

ORDER

This is a subsequent application for writ of habeas corpus filed pursuant to Texas Code of Criminal Procedure, Article 11.071, Section 5. Applicant asserts in two claims that he failed to receive the effective assistance of counsel during his trial and post-conviction review.

Applicant was convicted of capital murder on January 18, 1995. We affirmed the conviction and sentence on direct appeal. Ruiz v. State, No 72,072 (Tex. Crim. App. Februaiy 25, 1998). On September 15, 1997, applicant filed his initial application for writ of habeas corpus pursuant to Article 11.071. We denied relief. Ex parte Ruiz, No. WR-27,328-02 (Tex. Crim. App. April 2,2003).

We have reviewed these claims and find that they do not meet the requirements for consideration of subsequent claims under Article 11.071, Section 5. This application is dismissed as an abuse of the writ and the motion for stay of execution is denied.

IT IS SO ORDERED THIS THE 6th DAY OF JULY, 2007.

Do Not Publish

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

WR-27Í328-03'

EX PARTE ROLANDO RUIZ, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS . FROM BEXAR COUNTY

WOMACK j., filed a statement respecting the dismissal of the application.

I join the Court’s order dismissing the subsequent application.

Ruiz asks us not to apply the statutory restriction, on subsequent applications. He alleges that he was denied effective assistance of counsel when his trial attorneys failed to present certain evidence at the punishment hearing, and his habeas counsel did just as badly by failing to raise that claim in his first application. In such circumstances, he argues, the restriction on subsequent applications cannot be used to leave an applicant without a remedy.

I think this is a serious and unresolved question, but it is not presented in this case.

The evidence in question was of two kinds: certain facts about the applicant’s experiences during childhood and the opinion of a psychologist. Trial counsel hired the psychologist,

(Ex paito Ruiz, concurrence - 2)

considered his report, and chose not to cali him at trial because his findings about the applicant would do more harm than good. This was not an unreasonable decision.

The application does not allege that counsel knew of the facts about the applicant's childhood, nor does it demonstrate that counsel would have been unreasonable to decide that such facts would have been more harmful than helpful when the jury considered the issue of the applicant’s being likely to commit criminal acts of violence in the future.

Therefore, it seems to me, we do not reach the question: whether the unreasonable failure of a first habeas application to present meritorious claims could ever be surmounted in the courts of this state.

Filed July 6,2007.

Do not publish.

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO. WR-27328-03

EX PARTE ROLANDO RUIZ

ON APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE NO. 92-CR-67I8B FROM THE 277⅛ DISTRICT COURT OF BEXAR COUNTY

HOLCOMB, 3., filed a statement dissenting to the dismissal of the application, joined by JOHNSON, J.

DISSENTING STATEMENT

In the case before us, the applicant "presents the dear question of whether the State of Texas can protect a judgment which rests on ineffective assistance of trial counsel by providing habeas counsel who failed to function as post-conviction counsel in any meaningful sense." Thus, the applicant in this case has suffered a violation of his Sixth Amendment right to counsel not on one but at both the trial and the state habeas levels of proceedings. Ironically, it was due to the ineffective assistance of counsel in the state habeas proceedings that further deprived the applicant from receiving any relief at the federal level, in spite of both the federal district court and the Fifth Circuit’s recognition that applicant had been denied ineffective assistance by both his trial and state habeas counsels. The present application is therefore this applicant’s final means to obtain any meaningful redress for the significant deprivation of his Sixth Amendment rights that he has suffered during the lower court proceedings in this State.

Unfortunately, and with all due respect, I feel this Court has misinterpreted the applicant’s actual claim. The question presented is not only whether the applicant’s trial counsel was ineffective in failing to present mitigating evidence at the punishment phase of his capital minder trial, but also whether he was ineffective in failing to investigate substantial mitigating evidence when they had reason to believe that it might exist. This failure to investigate could, if true, support a Sixth Amendment claim for relief, especially after Wiggins v. Smith, upon which the applicant principally relies. Indeed, there does appear to be a significant reason for the trial counsel to have believed such evidence existed. Nevertheless, he failed to investigate, let alone' bring any mitigating evidence to the jury’s attention. Similarly, the state habeas counsel failed to discover, let alone bring such evidence to the Court’s attention, when he filed the first application for writ of habeas corpus on this applicant’s behalf. Given what the federal courts found to be obvious and glaring failures of both the applicant’s trial and state habeas counsels, 1 believe that this applicant should at least have been given a. chance to be fairly heard at this, literally final, stage of his proceedings. Since the Court declines to do so, I respectfully dissent.

Filed: July 6, 2007

Do not publish

      . See Ruiz v. Dretke, No. SA-03-CA-303-OG, 2005 WL 2146119, at *7 (W.D. Tex. Aug. 29, 2005).

      . Id.

      . Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). In Wiggins, the Supreme Court held that inadequate investigation into mitigating evidence by counsel could constitute ineffective assistance of counsel under the Strickland factors. See also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

      . Ruiz, 2005 WL 2146119, at *9.

      . Id. at *12.

      . Ruiz v. Quarterman, 460 F.3d 638 (5th Cir. 2006).

      . Ex parte Ruiz, No. WR-27,328-03, 2007 WL 2011023 (Tex. Crim. App. July 6, 2007).

      . Ruiz v. Quarterman, No. SA-03-CA-303-OG, 2007 WL 2437401 (W.D. Tex. July 10, 2007).

      . Id. at *4.

      . Ruiz v. Quarterman, 504 F.3d 523 (5th Cir. 2007).

      . Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983); Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). In particular, in Long, the Court held that "when ... a state court decision fairly appears to rest primarily on federal law, or to.be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so.” Long, 463 U.S. at 1040-41, 103 S.Ct. 3469; accord Harris, 489 U.S. at 264-65, 109 S.Ct. 1038 (rejecting the argument that the "plain statement rule” should be replaced with a presumption that state courts rely on independent and adequate state law grounds).

      . Ruiz, 504 F.3d at 527.

      . As we discussed in 2007, "[t]he Texas Code of Criminal Procedure, as interpreted by the CCA, provides for subsequent applications where (1) the factual or legal basis for the subsequent claim was previously unavailable and (2) where the facts alleged would constitute a federal constitutional violation that would likely require relief from either the conviction or the sentence. The boilerplate dismissal by the CCA of an application for abuse of the writ is itself uncertain on this point, being unclear whether the CCA decision was based on the first element, a state-law question, or on the second element, a question of federal constitutional law.” Id.

      . Id. at 528.

      . Ruiz v. Thaler, 783 F.Supp.2d 905, 911 (W.D. Tex. 2011).

      . Id. at 940, 947.

      . Ruiz v. Stephens, 728 F.3d 416 (5th Cir. 2013).

      . Ruiz, 783 F.Supp.2d at 913.

      . Ruiz, 728 F.3d at 423; see also Ruiz, 504 F.3d at 528.

      . Id. at 427, 429.

      . Ruiz v. Stephens, - U.S. -, 134 S.Ct. 2290, 189 L.Ed.2d 179 (2014).

      . Ex parte Ruiz, Nos. WR-27,328-03 and WR-27,328-04, — S.W.3d -, 2016 WL 6609721 (Tex. Crim. App. Nov. 9, 2016).

      . Id. at -, - n. 80, 2016 WL 6609721, at *4, *17 n.80.

      . Ruiz, 504 F.3d at 527. We discussed the separate writings of two judges. Those separate writings were not included in the published order of the court, but were before us. We have attached those statements here.

        .Id. at 527-28.

      . Rocha v. Thaler, 619 F.3d 387, 400 (5th Cir. 2010); see also Coleman v. Thompson, 501 U.S. 722, 730, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).

      . Harrington v. Richter, 562 U.S. 86, 98, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).

      . Id. at 99, 131 S.Ct. 770; see also Johnson v. Williams, - U.S. -, 133 S.Ct. 1088, 1094, 185 L.Ed.2d 105 (2013).

      CODE Crim. Proc. art. 11.071, § 5.

       Applicant’s Subsequent Application for Post-Conviction Relief, at 1.

         See Ruiz v. Dretke. Memorandum Opinion and Order of Judge Garcia, August 29,2005 (Exhibit 3) (denying habeas relief on procedural grounds due to “[t]he inexplicable failure of petitioner’s state habeas counsel to raise any of these claims during petitioner’s state habeas corpus proceeding.”). See also Ruiz v. Quarterman, 460 F.3d 638,644 (5th Cir. 2006) (Exhibit 2) (similarly denying relief on procedural grounds in spite of acknowledging the district court’s finding that “trial counsel was ineffective and [its suggestion] that state habeas counsel was [likewise] ineffective.”).

       539 U.S. 510(2003).


author: EDWARD C. PRADO, Circuit Judge:

text:
    ALCOA, INCORPORATED; Alcoa Commercial Windows, L.L.C., doing business as TRACO, a single employer, Petitioners Cross-Respondents, v. NATIONAL LABOR RELATIONS BOARD, Respondent Cross-Petitioner.
    No. 15-60848
    United States Court of Appeals, Fifth Circuit.
    Filed February 22, 2017

      Brian Hayes, Esq., Ogletree Deakins, P.C., Washington, DC, Thomas Alfred Smock, Esq., Ogletree Deakins, P.C., Pittsburgh, PA, for Petitioners Cross-Respondents.
    Linda Dreeben, Esq., Deputy Associate General Counsel, Julie Brock Broido, Supervisory Attorney, Milakshmi Varuni Ra-japakse, Esq., National Labor Relations Board, Appellate & Supreme Court Litigation Branch, Washington, DC, Martha Elaine Kinard, Esq., Director, National Labor Relations Board, Fort Worth, TX, for Respondent Cross-Petitioner.
    Mariana Padias, Keren Wheeler, Assistant General Counsels, Daniel M. Kovalik, Esq., Associate General Counsel, United Steelworkers of America, Pittsburgh, PA, for Intervenor United Steel, Paper and Forestry, Rubber Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC.
    Before CLEMENT, PRADO, and OWEN, Circuit Judges.
   EDWARD C. PRADO, Circuit Judge:

This Court is asked to review an order of the National Labor Relations Board (“the NLRB” or “the Board”) finding that Alcoa, Inc. (“Alcoa”) and its wholly owned subsidiary, Alcoa Commercial Windows, LLC d/b/a TRACO (“TRACO”), violated the National Labor Relations Act (“the NLRA” or “the Act”). Specifically, the Board determined that (1) Alcoa and TRA-CO (collectively, “the Companies”) are a “single employer” and (2) the Companies violated Section 8(a)(1) of the Act by denying Alcoa employees access to TRACO facilities for handbilling purposes and engaging in unlawful surveillance of handbillers. The Companies petition for review of the Board’s determination that they constitute a single employer and that the single-employer doctrine can be used to hold them liable under Section 8(a)(1). The Board cross-applies for enforcement of its order.'

Because substantial evidence supports the Board’s finding that the Companies qualify as a single employer, and because it is reasonable and consistent with the Act to apply the single-employer doctrine to the question of liability under Section 8(a)(1), we DENY the petition for review and GRANT the Board’s cross-petition for enforcement.

I. BACKGROUND

Alcoa is a multinational corporation that mines bauxite, produces aluminum, and manufactures aluminum-related products (including windows). TRACO manufactures windows and doors. TRACO is a wholly owned subsidiary of Reynolds Metals Company (“Reynolds Metals”), which in turn is a wholly owned subsidiary of Alcoa. TRACO was acquired by Reynolds Metals in 2010 and became a part of the North American segment of Building and Construction Systems (“BCS”), a business unit of Alcoa.

In late 2010, after Alcoa purchased TRACO, TRACO employees contacted the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC (“the Union”) about obtaining union representation. Thereafter Philip Ornot, a Union organizer, visited the TRACO facility to determine at which locations Union representatives would be permitted to handbill. Local police indicated handbilling could occur in the right-of-ways on the sides of public roads adjacent to the facility and at crosswalks between the facility and TRACO-owned parking lots.

On September 7, 2011, the Union held a conference near TRACO for Union representatives and members employed at facilities owned by Alcoa. Jim Robinson, who is employed by the Union, called Kevin O’Brien, the director of industrial relations at Alcoa, to give him a “heads up” that Union representatives — and some Alcoa employees who were Union members — intended to handbill outside the TRACO facility the following day during a shift change. O’Brien responded that handbill-ing in the right-of-ways was permissible but that he would “need to get with [Alcoa] legal counsel” about handbilling in TRACO parking lots. After their conversation, O’Brien discussed the matter with two attorneys in the Alcoa legal department and called Robinson back to inform him that “those individuals who were not employees of TRACO could not enter the property, that they would need to stay on the right-of-way ... [, and] that it would not be proper for them to go in the parking lot.”

After giving Robinson this directive, O’Brien informed TRACO management of the impending union activity in a conference call with TRACO General Manager Jeff Jost, several other TRACO managers, and Alcoa attorneys. O’Brien testified that he wanted to warn Jost that there would be a large crowd outside the facility and “give him ... advice as to what was the appropriate way to handle it.” O’Brien gave Jost his phone number and instructed him that if there was a problem the next day, he could call O’Brien.

The following morning, Ornot and twenty-four conference attendees went to pass out leaflets at the TRACO facility. Brad Manzolillo, the Union’s attorney, spoke with three TRACO management officials and explained that he believed several off-duty Alcoa employees who had chosen to accompany him had a right to handbill in TRACO-owned parking lots and other outside areas of the facility. Although Alcoa employees had previously been permitted to enter the facility as long as they had their IDs and clearance, TRACO management refused to allow the Alcoa employees to enter any TRACO property. •

After arriving on the scene, Jost reiterated this position to Manzolillo and called O’Brien so that he could speak with the Union attorney. O’Brien told Manzolillo the Alcoa employees would not be allowed on TRACO property. When Manzolillo and the Alcoa employees crossed the street to join the rest of the group handbilling in the public right-of-way, Jost positioned himself near a group of handbillers outside the TRACO facility. As a result, any TRA-CO employee seeking to obtain a leaflet would have to'pass by Jost. Jost remained in this position for approximately twenty to thirty minutes.

The Union filed the underlying charge in this case on September 23, 2011. Thereafter the Union amended the charge twice— once on November 23, 2011, and again on April 4, 2013. On April 18, 2013, the NLRB issued a complaint in the case alleging the Companies had violated Section 8(a)(1) of the Act in the following ways: (1) denying Alcoa employees access to the TRACO facility for handbilling purposes; (2) unlawfully surveilling handbillers; and (3) maintaining an overly broad distribution and solicitation policy. The case was tried on July 10 and 11, 2013, before Administrative Law Judge (“ALJ”) Mark Carissimi.

The ALJ issued his decision on September 20, 2013, and determined that Alcoa and TRACO constitute a single employer within the meaning of the Act and thus violated Section 8(a)(1) of the Act by refusing Alcoa employees entry into the TRACO facility. He also concluded that the Companies engaged in unlawful surveillance. The Companies filed their exceptions to the decision, and the NLRB General Counsel filed an answer to those exceptions. On taking these into consideration, the NLRB issued its final Decision and Order on November 16, 2015, adopting the ALJ’s recommended order. The Companies petitioned this Court for review of the Board’s order on December 2, 2015, and the Board cross-applied for enforcement. The Union also filed a motion for leave to intervene in this appeal, which was granted.

II. DISCUSSION

We review the NLRB’s policy determinations, under a deferential standard. The Supreme Court has recognized that Congress entrusted the NLRB with “the task of ‘applying the Act’s general prohibitory language in the light of the infinite combinations of events - which might be charged as violative of its terms.’ ” Beth Israel Hosp. v. NLRB, 437 U.S. 483, 500-01, 98 S.Ct. 2463, 57 L.Ed.2d 370 (1978) (quoting Republic Aviation Corp. v. NLRB, 324 U.S. 793, 798, 65 S.Ct. 982, 89 L.Ed. 1372 (1945)). In other words, “the NLRB has the primary responsibility for developing and applying national labor policy,” and Board rules are thus afforded “considerable deference.” NLRB v. Curtin Matheson Sci., Inc., 494 U.S. 775, 786, 110 S.Ct. 1542, 108 L.Ed.2d 801 (1990). Accordingly, this Court will not disturb the Board’s policy determination “as long as it is rational and consistent with the Act.” Trencor, Inc. v. NLRB, 110 F.3d 268, 279 (5th Cir. 1997) (quoting Curtin Matheson, 494 U.S. at 787, 110 S.Ct. 1542). So while the “standard of review for a question of law decided by the Board is de novo, ... if the Board’s construction of the statute is ‘reasonably defensible,’ its orders are to be enforced.” NLRB v. Motorola Inc., 991 F.2d 278, 282 (5th Cir. 1993) (quoting Standard Fittings Co. v. NLRB, 845 F.2d 1311, 1314 (5th Cir. 1988)).

“When considering the [B]oard’s application for enforcement, we must determine whether the underlying findings of fact are supported by substantial evidence on the record considered as a whole.” Id.; 29 U.S.C. § 160(e). If supported by substantial evidence, the Board’s findings of fact are “conclusive.” 29 U.S.C. § 160(e); see Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951). “Substantial evidence is such relevant evidence that a reasonable mind would accept to support a conclusion.” NLRB v. Allied Aviation Fueling of Dall. LP, 490 F.3d 374, 378 (5th Cir. 2007) (internal quotation marks omitted). In determining whether substantial evidence supports the Board’s conclusion, this Court “do[es] not make credibility determinations or réweigh the evidence.” Id. Rather, “[r]ecognizing the Board’s expertise in labor law, we will defer to plausible inferences [the Board] draws from the evidence, even if we might reach a contrary result were we deciding the case de novo.” NLRB v. Thermon Heat Tracing Servs., Inc., 143 F.3d 181, 185 (5th Cir. 1998) (quoting NLRB v. Turner Tool & Joint Rebuilders Corp., 670 F.2d 637, 641 (5th Cir. 1982)). But “in assessing whether the evidence in the record is substantial we must consider the facts that militate or detract from the NLRB’s decision as well as those that support it.” Id.

A. The Single-Employer Doctrine

Alcoa first argues that the Board incorrectly determined that it and TRACO constitute a single employer within the meaning of the Act. “[I]n determining the relevant employer, the Board considers several nominally separate business entities to be a single employer where they comprise an integrated enterprise.” S. Prairie Constr. Co. v. Local No. 627, Int’l Union of Operating Eng’rs, 425 U.S. 800, 802 n.3, 96 S.Ct. 1842, 48 L.Ed.2d 382 (1976) (quoting Radio & Television Broad. Technicians Local Union 1264 v. Broad. Serv. of Mobile Inc., 380 U.S. 255, 256, 85 S.Ct. 876, 13 L.Ed.2d 789 (1965) (per curiam)). To determine whether several entities are a single employer within the meaning of the Act, the Board looks to four factors: (1) common ownership; (2) interrelation of operations; (3) common management; and (4) centralized control of labor relations. Radio & Television Broad., 380 U.S. at 256, 85 S.Ct. 876; NLRB v. DMR Corp., 699 F.2d 788, 790-91 (5th Cir. 1983). “However, no one of these factors is controlling, nor need all criteria be present. Single employer status ultimately depends on ‘all the circumstances of the case’ and is characterized as an absence of an ‘arm’s length relationship found among unintegrated companies.’ ” DMR, 699 F.2d at 791 (quoting Local 627, Int’l Union of Operating Eng’rs v. NLRB, 518 F.2d 1040, 1045-46 (D.C. Cir. 1975), aff'd in part on this issue, rev’d in part sub nom. S. Prairie Constr., 425 U.S. 800, 96 S.Ct. 1842, 48 L.Ed.2d 382). But, “the factors of common control over labor relations, common management, and interrelation of operations are more critical than the factor of common ownership” and “centralized control of labor relations is of particular importance.” Oaktree Capital Mgmt., L.P. v. NLRB, 452 Fed.Appx. 433, 438 (5th Cir. 2011) (per curiam) (quoting Covanta Energy Corp., 356 N.L.R.B. 706, 726 (2011)).

As an initial matter, both parties agree that Alcoa and TRACO share common ownership as it is undisputed that TRACO is a wholly owned subsidiary of Alcoa. See Masland Indus., Inc., 311 N.L.R.B. 184, 186 (1993) (“With regard to common ownership, the relationship of [a] privately held corporate parent to wholly owned corporate subsidiary eliminates that issue from contention.”). In addition, neither party disputes the Board’s finding that the Companies do not share “common day-today management.” See Cimato Bros., Inc., 352 N.L.R.B. 797, 799 (2008). But the Companies and the NLRB disagree as to whether the remaining two factors favor finding that the Companies are a single employer under the Act. The Board based its finding that the Companies are a single employer on its determination that: (1) Alcoa and TRACO are commonly owned; (2) there is a substantial interrelationship between the two; and (3) Alcoa controls the labor relations of TRACO at a policy level. We agree. We turn now to the two disputed prongs of the single employer test: interrelation of operations and common control of labor relations.

1. Interrelation of Operations

In determining whether two nominally separate entities have interrelated operations, the Board considers a host of factors. For instance, as it did in this case the Board can consider whether the subject entities hold themselves out to the public and employees as a single business, Masland Indus., 311 N.L.R.B. at 187, and whether the two actually deal with one another at arm’s length, Spurlino Materials, LLC, 357 N.L.R.B. 1510, 1517 (2011). These factors are neither exclusive nor exhaustive, and they need not all come out in favor of finding interrelation for the Board to reasonably reach that conclusion. See, e.g., id. at 1516 (determining there was an interrelation of operations even where two companies were created and licensed separately, located in different states, served different markets, had their own personnel and equipment, and kept separate financial records, credit cards, and bank accounts).

Here, substantial evidence supports the Board’s finding that Alcoa and TRACO held themselves out to the public and employees as a single entity. First, Alcoa released several statements after it bought TRACO which demonstrate that the acquisition was intended to merge the businesses of both entities. When Alcoa purchased TRACO in 2010, its annual report stated that it “added to [the Alcoa] portfolio the commercial window business of Traco, which solidifies Alcoa!s exterior building and construction systems offerings.” In a press release discussing the purchase, Alcoa described the “combination” of businesses as expanding the “opportunities to grow [the Companies’] collective business.” Thereafter, Alcoa transferred all of its window and window frame manufacturing to TRACO.

Second, since 2011 the Companies held themselves out to employees and the public as a combined business through their own safety and employment materials. For example, TRACO’s safety video refers to the company as “Alcoa, Traco,” displays both companies’ logos side by side, and cautions viewers to “abide by all Alcoa safety rules and regulations.” This video is shown to all visitors to the TRACO facility. In 2012, TRACO implemented a new employee handbook. The handbook, like the video, repeatedly refers to Alcoa and its policies and describes Alcoa’s position on unions. Even applications for employment at TRACO between 2011 and 2012 “had the name ‘Alcoa’ at the top ... [and] also asked the question, ‘Have you ever been employed by Alcoa?’ ”

Although the Companies argue that use of the “Alcoa” name merely shows that TRACO comes under the “brand-name umbrella” of Alcoa, there is no support for this distinction. In fact, the Board has repeatedly found that use of another entity’s name is a factor in favor of finding interrelation of operations. See, e.g., Masland Indus., 311 N.L.R.B. at 187 (considering use of uniforms and identification cards bearing the name of another company as evidence of interrelation of operations); Cardio Data Sys. Corp., 264 N.L.R.B. 37, 41 (1982) (treating the use of another company’s stationery for an official communication as evidence of interrelation of operations). Thus, the repeated use of the “Alcoa” name is evidence that Alcoa and TRACO hold themselves out to the public and employees as a consolidated entity.

Third, there is some evidence suggesting that Alcoa and TRACO may not have dealt with one another at arm’s length. Alcoa provides TRACO with various business services, and TRACO generally pays for these services through intercompany accounting charges. Although the Board is correct that nothing in the record establishes that TRACO generally pays Alcoa full and fair value for its services, nothing suggests the contrary either. It is clear, however, that TRACO was never charged for advice its management received from Alcoa officials in connection with the events of this case. Together with the use of intercompany accounting, TRACO’s non-payment for the advice from Alcoa officials serves as some evidence that Alcoa and TRACO have interrelated operations. See Spurlino, 357 N.L.R.B. at 1517 (finding lack of an arm’s-length relationship where related entities recorded charges on a ledger but “d[id] not actually invoice each other” and did not charge the actual cost of some services); Bolivar-Tees, Inc., 349 N.L.R.B. 720, 721 (2007), enforced, 551 F.3d 722 (8th Cir. 2008) (“[N]on-arm’s length transactions at reduced prices or without payment entirely [are] ... probative of interrelation of operations.” (quoting Lebanite Corp., 346 N.L.R.B. 748, 748 n.5 (2006))).

While the record does not show that Alcoa controls daily decisions at TRACO, in an unpublished case this Court recognized that day-to-day control of operations is not required to find that two entities are a single employer under the NLRA. Oaktree, 452 Fed.Appx. at 442. We find this persuasive particularly in light of the NLRB’s repeated recognition that such overwhelming control is not required. See, e.g., Spurlino, 357 N.L.R.B. at 1516 (finding interrelated operations even though the entities “were created and licensed separately, are geographically removed and serve different markets in different states, and have their own personnel and equipment”); Royal Typewriter Co., 209 N.L.R.B. 1006, 1010 (1974) (concluding that operations were interrelated even though “day-to-day matters were of necessity left to the separate divisions”), enforced, 533 F.2d 1030 (8th Cir. 1976).

Because there is evidence that, at least in some circumstances, TRACO and Alcoa have held themselves out to the public and employees as a single business, and there is some evidence that TRACO received management services from Alcoa for which it did not pay, substantial evidence supports the Board’s finding of interrelated operations.

2. Common Control of Labor Relations

In determining single-employer status, it. is well recognized that the factor of “centralized control of labor relations is of particular importance.” Oaktree, 452 Fed.Appx. at 438 (quoting Covanta, 356 N.L.R.B. at 726); accord NLRB v. O’Neill, 965 F.2d 1522, 1529 (9th Cir. 1992); Penntech Papers, Inc. v. NLRB, 706 F.2d 18, 26 (1st Cir. 1983). The “fundamental inquiry is whether there exists overall control of critical matters at the policy level,” not whether there is control over day-to-day labor decisions. Oaktree, 452 Fed.Appx. at 438, 442 (quoting Covanta, 356 N.L.R.B. at 726). Here, the Board concluded that the Companies share centralized control of labor relations. We agree.

The trainings and materials given by Alcoa to TRACO support a finding of common control of labor relations. Although TRACO paid for this information, payment alone is not enough to establish independence of the two entities with respect to their labor policies. See Covanta, 356 N.L.R.B. at 727. The fact that the Companies characterize the information as “advice” that TRACO officials were “not required to follow” or “even receive ... at all,” does not mean, as the Companies urge, that TRACO’s labor relations are totally independent of Alcoa’s for the purpose of the single-employer inquiry, see Pathology Inst., Inc., 320 NLRB 1050, 1059 (1996) (“[I]t is the existence of interrelation], not a compulsion to be interrelated, that is the material consideration.”), enforced, 116 F.3d 482 (9th Cir. 1997). And regardless of any requirement that TRACO follow Alcoa’s guidance, or lack thereof, Alcoa’s policy with regard to unions was also clearly presented in the TRACO employee handbook. This demonstrates that TRACO adopted Alcoa’s policy as its own, and moreover, as the events leading up to this case show, that Alcoa did actually control certain aspects of TRACO’s labor policy.

Particularly, O’Brien’s communications with the Union and his direction of TRA-CO management reveal such actual control. Although it appears that Robinson, a representative of the Union, initially called O’Brien because the two had a preexisting relationship, O’Brien made no attempt to refer him to TRACO. Rather, O’Brien consulted with Alcoa legal counsel about whether it would be proper for Union representatives to handbill on or near the TRACO property without ever informing TRACO. In fact, O’Brien did not even initially report the advice from legal counsel to TRACO management. Instead, he simply informed Robinson that “individuals who were not employees of TRACO ... would need to stay on the right-of-way” when handbilling. In other words, O’Brien, an Alcoa employee, made the ultimate decision as to whether and where handbilling would be permitted at TRACO. Only after making the decision himself did O’Brien call TRACO to inform management about the imminent union activity and how management should deal with it. In O’Brien’s own words, his “purpose in calling Mr. Jost was to first and foremost make sure there was no incident, that the matter would be handled appropriately the next day.” Such involvement in the underlying decision-making process that resulted in the alleged unfair labor practices is probative of centralized control of labor relations and single-employer status. See Oaktree, 452 Fed.Appx. at 441-42 (finding that the involvement of a corporate owner of a resort in the “underlying incidents” giving rise to the litigation was evidence of centralized control of labor relations); Royal Typewriter, 209 N.L.R.B. at 1010-11 (determining that labor relations were commonly controlled where there was “extensive participation by officials of Litton Industries in the conduct alleged ... to constitute unfair labor practices”).

In sum, because there is substantial evidence showing common control over labor relations as well as interrelation of operations and common ownership, we hold the Board correctly determined that Alcoa and TRACO constitute a single employer.

B. Violation of Section 8(a)(1) of the NLRA

After concluding that Alcoa and TRACO constitute a single employer under the NLRA, the Board determined that the Companies had violated Section 8(a)(1) of the NLRA by (1) excluding Alcoa employees from the TRACO facility and (2) unlawfully surveilling handbilling activities. Section 8(a)(1) of the NLRA makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed” by Section 7 of the Act. 29 U.S.C. § 158. Section 7, in turn, gives employees the “right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157, In fact, “the right to organize is at the very core of the purpose for which the NLRA was enacted.” Sears, Roebuck & Co. v. San Diego Cty. Dist. Council of Carpenters, 436 U.S. 180, 206 n.42, 98 S.Ct. 1745, 56 L.Ed.2d 209 (1978). And this right “necessarily encompasses the right ... to communicate with one another regarding self-organization at the jobsite.” Beth Israel, 437 U.S. at 491, 98 S.Ct. 2463. We address the violations found by the Board in turn.

1. Exclusion of Alcoa Employees from the TRACO Facility

The Board first found that the exclusion of Alcoa employees from the TRACO facility violated Section 8(a)(1) of the Act. It is well-established that the Act permits employees to engage in protected union organizing activities during nonworking time. Republic Aviation, 324 U.S. at 803-04 & n.10, 65 S.Ct. 982. Among other things, Section 8(a)(1) protects “off-duty employees engaging, in Section 7 activity in outside nonworking areas of their employer’s facilities.” Hillhaven Highland House, 336 N.L.R.B. 646, 647 (2001), enforced, 344 F.3d 523 (6th Cir. 2003); accord ITT Indus., Inc. v. NLRB, 251 F.3d 995, 999-1000 (D.C. Cir. 2001). This includes union activity employees engage in at their employer’s facilities “other than where they work[ ].” Hillhaven, 336 N.L.R.B. at 647; accord ITT Indus., Inc. v. NLRB, 413 F.3d 64, 70-71 (D.C. Cir. 2005). In Hillhaven, the Board explained that offsite employees are “ ‘employees’ in the narrow sense” — that “[w]hen an offsite employee seeks to encourage the organization of similarly situated employees at another employer facility, the employee seeks to further his own welfare.” 336 N.L.R.B. at 648; accord ITT Indus., 413 F.3d at 70-71. “In attempting to organize the unorganized, employees seek strength in numbers to increase the power of their union and ultimately to improve their own working conditions.” Hillhaven, 336 N.L.R.B. at 648 (citing United Food & Commercial Workers Locals 951, 7 & 1036 (Meijer, Inc.), 329 N.L.R.B. 730, 734 (1999)); accord ITT Indus., 413 F.3d at 71. Thus, these rights are “personal rather than derivative.” ITT Indus., 413 F.3d at 71.

On the other hand, the Board recognizes that this derivative right of an offsite employee must be balanced against the employer’s property and managerial interests. Hillhaven, 336 N.L.R.B. at 650; accord ITT Indus., 413 F.3d at 72 (describing the “inherent tension” between these interests (quoting Hillhaven, 336 N.L.R.B. at 650)). In balancing employee-employer interests the Board considers, for instance, the potential that “an influx of offsite employees might raise security problems, traffic control problems, or other difficulties that might well justify an employer’s restriction (or even prohibition) of such access.” Hillhaven, 336 N.L.R.B. at 650; accord ITT Indus., 413 F.3d at 73. But at the same time, the Board cautions “that an employer must demonstrate why its security needs or related business justifications warrant restrictions on access by offsite visiting employees.” Hillhaven, 336 N.L.R.B. at 650; accord ITT Indus., 413 F.3d at 73.

Here, the Board applied the test from Hillhaven to the context of the single-employer relationship. In its decision, the Board recognized that “no prior Board precedent ... expressly holds that the employees of one entity that comprises part of a single employer have a right of access to the exterior areas of the plant of another entity that is also part of the single employer for purposes of organizational handbilling.” However, it concluded that such a decision would be reasonable in light of the Board’s prior opinion in Mine Workers (Boich Mining Co.), 301 N.L.R.B. 872 (1991). We agree.

In Boich, the Board determined that two wholly owned subsidiaries of a holding company constituted a single employer. Id. at 872. As a result, it concluded that the employees of one subsidiary could strike against the other subsidiary pursuant to Section 8(b)(4)(B) of the NLRA. Id. In applying the single-employer doctrine in the context of Section 8(b)(4)(B), the Board looked to the purpose of that part of the statute: “[T]o preserve the traditional right of striking employees to bring pressure against employers who are substantially involved in their dispute, while protecting neutral employers from being enmeshed in it.” Id. at 873 (quoting Curtin Matheson Sci., Inc., 248 N.L.R.B. 1212, 1212-13 (1980)). Because the purpose of the statute focused on the neutrality of an employer with respect to a labor dispute, and since the Board determined the two subsidiaries were so intertwined as to be a single employer, the Board found it consistent to apply the single-employer doctrine to Section 8(b)(4)(B). Id. at 875. Two intertwined subsidiaries, in essence, could not be neutral with respect to each other’s labor disputes.

Likewise, applying the single-employer doctrine to the question of liability under Section 8(a)(1) is consistent with its purpose. In discussing why Section 8(a)(1) rights apply to offsite employees, both Hillhaven and ITT stress the idea that similarly situated employees (even at different facilities) derive strength in numbers because together they can collectively push for better working conditions. ITT Indus., 413 F.3d at 70-71; Hillhaven, 336 N.L.R.B. at 648. Thus, the question in determining consistency with the statute is really whether applying the single-employer doctrine in this context serves to protect employees’ rights to collectively pressure their employer. We hold that it does. When two entities qualify as a single employer, a court, among other things, considers whether the two entities share common control at a “policy level” — including over labor relations. If there exists such a degree of common control and interrelation, it follows that collective action efforts, like those involved in this case, would help employees exert pressure on that common source of labor policy. Thus, applying the single-employer doctrine in this context is consistent with the purpose of Section 8(a)(1). See Trencor, 110 F.3d at 279 (stating that this Court will not disturb the Board’s policy determination unless it is unreasonable or inconsistent with the Act). Accordingly, we find this application proper.

Barring their objection to application of the single-employer doctrine in this case, the Companies do not dispute that substantial evidence supports the Board’s finding that the Companies violated Section 8(a)(1) by denying Alcoa employees access to TRACO facilities for handbilling purposes. Therefore, we will summarily enforce the Board’s order with respect to liability under Section 8(a)(1) on this issue. See Sara Lee Bakery Grp., Inc. v. NLRB, 514 F.3d 422, 429 (5th Cir. 2008) (“[W]hen an employer does not challenge a finding of the Board, the unchallenged issue is waived on appeal, entitling the Board to summary enforcement.”).

2. Surveillance of Handhilling

The Board also determined that the Companies violated Section 8(a)(1) of the Act by unlawfully surveilling union activity. It is undisputed that TRACO General Manager Jost positioned himself outside the TRACO facility near union handbillers so that he could see which TRACO employees accepted handbills. Nor is the Board’s finding that this was out of the ordinary contested. This sort of observation constitutes unlawful surveillance under the Act. See NLRB v. Aero Corp., 581 F.2d 511, 512-13 (5th Cir. 1978) (determining that a supervisor’s observation of his employees’ union activity in a public park was unlawful surveillance); Aladdin Gaming, LLC, 345 N.L.R.B. 585, 585-86 (2005) (finding observation of employees’ union activities unlawful where it is out of the ordinary). Because the Companies do not challenge this finding, we likewise summarily enforce the Board’s order on the issue of unlawful surveillance. See Sara Lee Bakery Grp., 514 F.3d at 429.

III. CONCLUSION

For the foregoing reasons, the Companies’ petition for review is DENIED, and the Board’s cross-application for enforcement is GRANTED.

      . The ALJ dismissed the final allegation — that the Companies maintained an overly broad solicitation and distribution policy — and that issue is not on appeal before this Court.

      . Although the Companies argue that these statements are describing the relationship between BCS and TRACO, not that between Alcoa and TRACO, BCS is a "business group/ unit” of Alcoa. Thus the addition of TRACO to BCS is in effect the addition of TRACO to Alcoa and serves as evidence of interrelation of operations.

      . In support of their argument that day-to-day control is required to find single-employer status, the Companies cite Lusk v. Foxmeyer Health Corp., 129 F.3d 773 (5th Cir. 1997). Although in Lusk this Court did note the importance of considering day-to-day control when conducting the single-employer inquiry, it only considered doing so in the context of the ADEA. Id. at 777. Because this case involves the NLRA, the decision in Lusk does not guide our analysis here.

      . The Board’s decision was primarily based on: (1) a daylong training Alcoa provided to TRACO managers, which included information about keeping the facility free of unions; (2) an instance where O’Brien gave instructions to TRACO management about the steps to take if union literature were found at TRA-CO; (3) material the Alcoa labor relations department gave to TRACO management following the handbilling incident; and (4) O'Brien's alleged direct involvement in the incidents involved in this case.


author: JERRY E. SMITH, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Kevin Lyndel MASSEY, Defendant-Appellant.
    No. 16-40041
    United States Court of Appeals, Fifth Circuit.
    Filed February 22, 2017

      John A. Reed, Renata Ann Gowie, Carmen Castillo Mitchell, Assistant U.S. Attorneys, U.S. Attorney’s Office, Houston, TX, for Plaintiff-Appellee.
    Philip Thomas Cowen, Esq., Law Office . of Philip Cowen, Brownsville, TX, for Defendant-Appellant.
    Before SMITH, CLEMENT, and SOUTHWICK, Circuit Judges.
   JERRY E. SMITH, Circuit Judge:

Kevin Massey challenges .his conviction of possession of a firearm by a convicted felon. We affirm.

I.

Massey participated in an armed citizen group that patrolled the border between the United States and Mexico to deter the entry of illegal aliens. At the time of his arrest, the group was camped near the Sabal Palms Sanctuary on the property of Rusty Monsees. Massey met with Guillermo Aguilar, the program coordinator of the sanctuary, to discuss conducting patrols on its property. Aguilar could not authorize the group to patrol in the sanctuary but told Massey he would not turn them away. Aguilar believed, based on his conversation with Massey, that the patrols were coordinated with the Border Patrol.

Later, while patrolling the sanctuary, Massey encountered the Border Patrol when it responded to a report of illegal aliens in the area. Agent Danny Cantu first encountered a different person on patrol and advised him to leave. During that conversation, fellow Border Patrol Agent Marcos Gonzales fired several shots at another armed patrolman nearby. Cantu responded to the sound of the shots and at that time ran into Massey, who was armed with a Centurion 39 Sporter long rifle.

The Border Patrol seized the firearms carried by Massey and the other patrolmen; Massey was also carrying a Springfield XDS .45 caliber pistol. The encounter was investigated by the Bureau of Alcohol, Tobacco, Firearms and Explosives (“BAT-FE”). Massey was arrested in the parking lot of the hotel in which he was staying; he informed the agents that he was armed. The arresting agent removed an HS Pro-dukt model XDS .45 caliber handgun from Massey’s front pocket and seized another .45 caliber handgun from his hotel room.

II.

Massey was charged with four counts of possession of a firearm by a convicted felon under 18 U.S.C. § 922(g). He moved to dismiss on the grounds that he was complying with Texas’s felon-in-possession statute and that Section 922(g) is unconsti-. tutional as applied to him. He also maintained that, to satisfy the jurisdictional element of Section 922(g), the government was required to prove more than just that the firearms had traveled in interstate commerce. That motion was denied.

At Massey’s bench trial, evidence was presented that all of the firearms he possessed were manufactured in Vermont or Croatia. The government presented evidence that Massey had a 1988 Texas conviction of burglary of a habitation for which he was sentenced to five years. Massey moved for a directed verdict based on his interstate-commerce theory. The district court denied the motion and found Massey guilty on all counts. Two of the four counts were dismissed on the government’s motion, and judgment was entered against Massey on the remaining two. He was sentenced, within the guideline range, to 41 months’ imprisonment and three years of supervised release.

III.

Massey contends, on three grounds, that there was insufficient evidence to convict him of violating Section 922(g). He claims that the indictment was constructively amended because the government did not prove that his possession of the firearms affected interstate commerce. He asserts that under Texas law, he was permitted to have the firearms because he possessed them on “premises at which the person lives.” Tex. Penal Code § 46.04(a)(2). Finally, he believes it was error for the district court to make no determination on whether his rights had been restored. All three of these theories fail.

A.

Massey’s indictment was not constructively amended, because the language of his indictment mirrored that of the statute of conviction. “[A]n indictment which follows the language of the statute under which it is brought is sufficient to give a defendant notice of the crime of which he is charged.” United States v. Thomas, 348 F.3d 78, 82 (5th Cir. 2003) (internal quotation marks omitted). The jurisdictional element of Section 922(g)(1) includes circumstances in which the possession of the firearm was intrastate, but the firearm had previously traveled in interstate commerce, including from the place it was manufactured to the place of the relevant possession. United States v. Rawls, 85 F.3d 240, 243 (5th Cir. 1996). In contrast, “[a] constructive amendment occurs when the jury is permitted to convict the defendant upon a factual basis that effectively modifies an essential element of the offense charged.” United States v. Rubio, 321 F.3d 517, 521 (5th Cir. 2003).

The wording of Massey’s indictment and the statute are nearly identical. The indictment charged that Massey “did knowingly possess in and affecting interstate commerce a firearm.” The statute’s interstate commerce element requires the defendant to “possess in or affecting commerce, any firearm or ammunition.” 18 U.S.C. § 922(g). Pursuant to that indictment, the government put on evidence that Massey’s firearms had traveled to Texas from Vermont and Croatia, where they were manufactured. The indictment was not constructively amended.

B.

The government was not required to prove the legality, under Texas law, of Massey’s possession of the firearms, because that is irrelevant to his conviction under Section 922(g). To convict under Section 922(g)(1), the government must prove three elements: “(1) that the defendant previously had been convicted of a felony; (2) that he possessed a firearm; and (3) that [it] traveled in or affected interstate commerce.” United States v. Guidry, 406 F.3d 314, 318 (5th Cir. 2005); 18 U.S.C. § 922(g)(1). The statute contains no requirement that the possession be illegal under state law. Texas law is relevant only to evaluating the applicability of Massey’s prior conviction. The prior conviction charged in the indictment was his 1988 Texas conviction of burglary of a habitation, and the government presented evidence of that conviction.

C.

The district court was not required to address whether Massey’s rights had been restored in Texas such that he would be permitted to possess a firearm. Massey does not identify the statutory basis of that claim, but we assume he is referring to the exception to Section 922(g) for “[a]ny conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored ... unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.” 18 U.S.C. § 921(a)(20).

Massey has the burden to show that his rights had been restored such that his burglary conviction was not applicable under Section 922(g). United States v. Huff, 370 F.3d 454, 458-59 (5th Cir. 2004). He has pointed to no evidence that his rights had been restored after his 1988 burglary conviction. Without that evidence, the district court was not required to make any finding regarding the restoration of Massey’s rights.

IV.

Massey’s conviction does not violate the Second Amendment, the Commerce Clause, or the Ex Post Facto Clause of the U.S. Constitution. His Second Amendment and Commerce Clause theories are foreclosed by the rule of orderliness, which forbids us to overrule the holdings of this court. His Ex Post Facto Clause claim with respect to amendments to Texas’s felon-in-possession statute is irrelevant to his conviction under federal law.

A.

The Second Amendment framework adopted in National Rifle Ass’n of America, Inc. v. BATFE, 700 F.3d 185, 194 (5th Cir. 2012), precludes this panel from reexamining, as Massey claims we must, the constitutionality of Section 922(g). In District of Columbia v. Heller, 554 U.S. 570, 626, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), the Court specifically preserved the constitutionality of felon-in-possession states: “[N]othing in our opinion should be taken to cast doubt on the longstanding prohibitions on the possession of firearms by felons and the mentally ill.... ” We reaffirmed the constitutionality of Section 922(g) in both United States v. Anderson, 559 F.3d 348, 352 & n.6 (5th Cir. 2009), and National Rifle Ass’n, 700 F.3d at 194 n.7. The rule of orderliness does not permit us to revisit those holdings. See Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008).

B.

Massey’s notion that his conviction under Section 922(g)(1) violates the Commerce Clause in light of United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), is also foreclosed. We have considered that reasoning and rejected it. See Rawls, 85 F.3d at 242. “This court has repeatedly emphasized- that the constitutionality of § 922(g)(1) is not open to question.” United States v. de Leon, 170 F.3d 494, 499 (5th Cir. 1999). We are bound to hold that Section 922(g)(1) is constitutional under Lopez. See Jacobs, 548 F.3d at 378.

C.

Massey’s conviction does not violate the Ex Post Facto Clause as a result of amendments to Texas’s felon-in-possession statute, Texas Penal Code § 46.04, because that statute is irrelevant to his conviction. As discussed in Part III.B, supra, state law is relevant only to the prior-conviction element of Section 922(g). That was satisfied by Massey’s burglary conviction.

AFFIRMED.

      . "It shall be unlawful for any person — (1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year ... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” 18 U.S.C. § 922(g)(1).

      . See, e.g., Vaughan v. Anderson Reg’l Med. Ctr., No. 16-60104, 849 F.3d 588, 592, 2017 WL 629265, at *3 (5th Cir. Feb. 15, 2017).