author: COLLOTON, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Wakinyan Wakan McARTHUR, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. William Earl Morris, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Anthony Francis Cree, Defendant-Appellant.
    No. 14-3335, No. 14-3336, No. 14-3367
    United States Court of Appeals, Eighth Circuit.
    Filed: February 23, 2017

      David Genrich, Assistant U.S. Attorney, Andrew Robert Winter, U.S. ATTORNEY’S OFFICE, District of Minnesota, Steven L. Schleicher, MASLON LLP, Minneapolis, MN, for Plaintiff-Appellee.
    Frederick J. Goetz, GOETZ & ECK-LAND, Minneapolis, MN, for Defendant-Appellant Wakinyan Wakan McArthur.
    Wakinyan Wakan McArthur, Pro Se.
    Robert H. Meyers, FEDERAL PUBLIC DEFENDER’S OFFICE, Minneapolis, MN, Thomas Harold Shiah, Barristers Trust Building, Minneapolis, MN, for Defendant-Appellant William Earl Morris.
    William Earl Morris, Pro Se.

      Anthony Francis Cree, Pro Se.
    Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.
   COLLOTON, Circuit Judge.

A jury convicted Anthony Cree, William Morris, and Wakinyan McArthur of criminal offenses stemming from their involvement with the Native Mob, a.Minnesota prison and street gang. All three appeal and argue that the district court erred as to the sufficiency of the evidence, jury instructions, or sentencing. We affirm in part, reverse in part, and remand for further proceedings.

I.

A.

As each defendant challenges the sufficiency of the evidence in support of his convictions, we recite the facts in the light most favorable to the verdicts. United States v. Paris, 816 F.3d 1037, 1038-39 (8th Cir. 2016). The Native Mob is a prison and street gang that started in south Minneapolis in the mid-1990s. The Mob developed a large presence in Minnesota and now has over two hundred members in the state. Its members participate in a variety, of criminal acts, including sales of controlled substances and assaults on members of rival gangs. Through these activities, Mob members seek to promote the gang’s reputation and to protect its members and territory.

In December 2009, McArthur called for a Mob meeting. At the meeting, Mob members elected a new group of leaders in' the gang’s hierarchical structure. Kenneth Roberts was elected War Chief, and Christopher Wuori was named Cass Lake Representative. Members also agreed to hold monthly statewide meetings.

McArthur served as Chief of the Mob, the top leadership position, from 2010 until 2012. Under McArthur, members had easy access to firearms. Members could request a firearm from another member, or they could retrieve a firearm from one of several Mob associates who stored the weapons. The Mob also placed a premium on retaining firearms. At one meeting, McArthur instructed Mob members to “cherish” firearm ownership and to stop losing Mob weapons.

McArthur and Wuori also increased the Mob’s drug trafficking operations. The two men “pooled their money together” to purchase cocaine and divided equally the income derived from their drug sales. Wuori obtained cocaine from suppliers, and then converted the cocaine into crack cocaine. Wuori often completed the conversion process in a residence that he and McArthur shared in Cass Lake, Minnesota. Members frequented the house and assisted McAr-thur and Wuori in obtaining, packaging, and storing the drugs. McArthur and Wuo-ri sold crack cocaine to several members, who then resold the drugs to individuals throughout Minnesota.

During McArthur’s term as Chief, he often encouraged members to harm rival gang leaders and others who posed a threat to the gang, urging members to be willing to “go out and shoot-’em up.” At one of the Mob’s meetings, McArthur told members to attack an enemy of the Mob, instructing one member to shoot at the enemy’s residence. McArthur also said that the Mob “need[ed] to whack” the leader of an opposition gang, and that the leader’s death “would benefit us all.”

Amos LaDuke, a former associate of the Mob, was the victim of a Mob attack. In early 2010, Mob members, including Wuori and Cree, concluded that LaDuke “needed to be whacked.” Morris also participated in discussions about LaDuke, and Wuori planned to give Morns a “gun ... in case he seen Amos somewhere.” On March 4, 2010, LaDuke was walking in Cass Lake when a car, owned by Cree, approached. Cree, Morris, and two other people were in the vehicle. Morris got out of the car, carrying a firearm as LaDuke started to run away. Morris fired several rounds toward LaDuke, striking LaDuke three times before a former police officer drove his truck between Morris and LaDuke and ended the encounter. Morris fled the scene; authorities arrested him nearby shortly thereafter. Cree and the others in the car drove away during the shooting, and Cree was apprehended in an unrelated incident later that month.

The Mob also went to great lengths to protect its drug distribution territory. Of particular concern to the Mob was Lawrence Daniels, a drug dealer who competed against the gang for control of the Cass Lake drug trade. Starting in May 2010, Mob members talked about harming Daniels in hopes of removing him from their territory. During one conversation, McAr-thur and Wuori told Mob members Roberts, Emilio Bunker, Jeremee Kraskey, Cory Oquist, and Pedro Sayers that they wanted to find Daniels and “eliminate him by any means.” McArthur and Wuori decided to send members to “get ... information out” of a known associate of Dan-' iels about Daniels’s whereabouts; from that excursion Mob members determined that Daniels was living in Bemidji, Minnesota.

Shortly after learning Daniels’s location, McArthur and other members, including Wuori, Bunker, Kraskey, and Roberts, discussed “going to Bemidji ... and shooting” Daniels. On August 21, 2010, Wuori drove Bunker, Oquist, and Sayers to Bem-idji, where the three men shot into a home where they believed Daniels lived. They realized soon after, however, that Daniels had no connection to the residence. In the presence of McArthur and Roberts, the four members recounted their error. Days later, on August 24, some of the same members made a second attempt on Daniels, shooting at the Raisch residence where Daniels was staying.

The Mob continued to pursue Daniels. At the request of McArthur and Wuori, Mob member Dale Pindegayosh agreed to participate in a home invasion to intimidate Daniels. On March 28, 2011, Pinde-gayosh and three other members, armed with firearms, broke into the home of Daniels’s father-in-law, John Wilke. Approximately two months later, McArthur and Wuori requested that Pindegayosh rob the Wilke home. Pindegayosh opted not to complete the crime, and that was the last evidence concerning Mob activity toward Daniels.

B.

Federal and state authorities began investigating the Native Mob as early as 2004. The investigation expanded after the LaDuke shooting. During the investigation, members-turned-informants wore recording devices to four Mob meetings in 2010 and 2011. Law enforcement officers conducted surveillance of several Mob members and installed GPS devices on vehicles used by members.

In January 2012, a grand jury charged Cree, Morris, McArthur, and others in a multicount indictment. Cree, Morris, and McArthur proceeded to trial. After a six-week trial, which included testimony from victims of Mob attacks, former Mob members, and investigators, a jury convicted the men of several charges. After the trial, the district court denied the defendants’ motions for judgments of acquittal or, in the alternative, new trials.

Cree was convicted of conspiracy to participate in racketeering activity, see 18 U.S.C. § 1962(d), and conspiracy to distribute and possess with intent to distribute controlled substances. See 21 U.S.C. §§ 841(a), (b), 846. He also was convicted of four counts related to his involvement in the LaDuke shooting: conspiracy to use and carry firearms during and in relation to a crime of violence, see 18 U.S.C. § 924(o), attempted murder in aid of racketeering, see id. §§ 1959(a)(5), 2, assault with a dangerous weapon in aid of racketeering, see id. §§ 1959(a)(3), 2, and use and carrying of a firearm during and in relation to a crime of violence. See id. §§ 924(c), 2. The district court sentenced Cree to 292 months’ imprisonment.

Morris’s convictions stemmed from the LaDuke shooting. He was convicted of attempted murder in aid of racketeering, assault with a dangerous weapon in aid of racketeering, use and carrying of a firearm during and in relation to a crime of violence, and possession of a firearm as a previously convicted felon. See id. § 922(g). Over Morris’s objection, the district court at sentencing ruled that Morris’s three prior Minnesota third-degree burglary convictions constituted “violent felonies” for purposes of the Armed Career Criminal Act. See id. § 924(e). Because the court found that Morris had at least three previous convictions for violent felonies, he was subject to a mandatory minimum 180-month sentence and a maximum of life on his conviction for possession of a firearm as a previously convicted felon, Count 6. See id. The court sentenced Morris to 360 months’ imprisonment on that count and to 420 months’ imprisonment total.

McArthur was convicted of conspiracy to participate in racketeering activity, conspiracy to use and carry firearms during and in relation to a crime of violence, conspiracy to distribute and possess with intent to distribute controlled substances, and distribution of a controlled substance. See 21 U.S.C. § 841(a), (b); 18 U.S.C. § 2. He also was convicted of two counts of use and carrying of a firearm during and in relation to a- crime of violence. See 18 U.S.C. §§ 924(c), 2. The first § 924(c) conviction, Count 10, was based on McAr-thur’s involvement in the shooting at the Raisch home, and the district court sentenced him to a mandatory 60-month term on that charge. Id. § 924(c)(1). The second § 924(c) conviction, Count 11, related to McArthur’s role in the Wilke home invasion. The court imposed a mandatory 300-month consecutive sentence for that conviction. Id. In total, the district court sentenced McArthur to 516 months’ imprisonment.

II.

A.

Cree’s lone argument on appeal is that the district court erred in denying his motion for judgment of acquittal because the government presented insufficient evidence to sustain his convictions. We review the denial of a motion for judgment of acquittal de novo, • viewing the evidence in the light most favorable to the verdict. Paris, 816 F.3d at 1038-39. We will reverse only if no reasonable jury could have found the defendant guilty beyond a reasonable doubt. Id.; see Fed. R. Crim. P. 29.

Cree first disputes the evidence in support of his conviction for conspiracy to participate in racketeering activity. See 18 U.S.C. § 1962(d). The government charged Cree with conspiring to violate 18 U.S.C. § 1962(c), a substantive provision of the Racketeer Influenced and Corrupt Organization (“RICO”) Act. Section 1962(c) prohibits “any person ... associated with any enterprise engaged in ... interstate ... commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity.” To convict Cree under § 1962(d)1, the government was required to prove, inter alia, that a RICO enterprise existed and that Cree agreed that he or a coconspirator would engage in a “pattern of racketeering activity.” Cree contests the evidence supporting these two findings.

A RICO enterprise includes “any union or group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4). An informal association of individuals constitutes a RICO enterprise when it is “a continuing unit that functions with a common purpose.” Boyle v. United States, 556 U.S. 938, 946, 948, 129 S.Ct. 2237, 173 L.Ed.2d 1265 (2009); see also United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981). Thus, an enterprise has “at least three Structural features: a purpose, relationships among those associated with the enterprise, and longevity sufficient to p'ermit these associates to pursue the enterprise’s purpose.” Boyle, 556 U.S. at 946, 129 S.Ct. 2237.

Cree argues that the Mob was not a RICO enterprise. Members, according to Cree, had no shared purpose and were a “loose assembly of acquaintances,” committing crimes randomly and in their own interests.

Trial testimony, however, provided ample support for the jury’s finding that the Mob constituted a RICO enterprise. The Mob had several purposes: Members worked to promote the Mob, develop its reputation, and protect its territory and members. At one meeting, McArthur reminded those in attendance that “[t]his ain’t about me. It ain’t about no individual person, man. It’s about us all.” For nearly two decades, the Mob operated as a coherent unit. Many members joined the Mob as teenagers and were in the gang for several years. The Mob had meetings, colors, signals, and symbols. Both written and unwritten rules governed members’ behavior. When a member violated one of the rules, Mob leaders meted out punishment, often in the forrii of a physical assault at the hands of other members. The Mob also used a hierarchical leadership structure, and when one leader stepped down, another member was selected for the role.

Sufficient evidence also supported the jury’s finding that Cree agreed that he or a coconspirator would engage in a “pattern of racketeering activity.” Section 1961(1) labels dozens of federal and state offenses as racketeering activities, including “any act or threat involving murder ... or dealing in a controlled substance ..., which is chargeable under State law and punishable by imprisonment for more than one year.” A “ ‘pattern of racketeering activity’ requires at least two acts of racketeering activity, ... the last of which occurred within ten years ... after the commission of a prior act of racketeering activity.” 18 U.S.C. § 1961(5).

To establish a “pattern of racketeering activity,” the government also must prove two constituent elements: that the predicate acts of racketeering are related, and “that they amount to or pose a threat of continued criminal activity.” H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 239, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989). “Criminal acts are sufficiently related ... if they had the same or similar purposes, results, participants, victims or methods of commission, or if they were otherwise ‘interrelated by distinguishing charactéris-tics’ as opposed to being ‘isolated events.’ ” United States v. Hively, 437 F.3d 752, 761-62 (8th Cir. 2006) (quoting H.J. Inc., 492 U.S. at 240, 109 S.Ct. 2893).

Continuity of racketeering activity, “or its threat, simpliciter,” is a “temporal concept.” H.J. Inc., 492 U.S. at 241-42, 109 S.Ct. 2893. One manner of proving continuity is open-ended continuity, which asks whether “the related predicates themselves involve a distinct threat of long-term racketeering activity, either implicit or explicit.” Id. at 242-43, 109 S.Ct. 2893. Open-ended continuity may be established by showing that the racketeering acts “include a specific threat of repetition extending indefinitely into the future.” Id.

Cree contends that the racketeering activity of which he was convicted, the charges relating to the shooting of LaDuke and drug distribution, were neither related to one another nor sufficient to show a threat of continued criminal activity. On this view, he thus never agreed to participate in a “pattern of racketeering activity.”

Cree’s arguments are unpersuasive. Evidence supported the jury’s finding that the LaDuke shooting and Cree’s drug distribution amounted to a pattern of racketeering activity. The acts were related, in that Cree, Wuori, and other Mob members participated in both crimes, and the acts represented a consistent desire to further the Mob’s activities. See United States v. Darden, 70 F.3d 1507, 1525 (8th Cir. 1995). Because these two acts “by their very nature threaten repetition,” the jury also could find open-endéd continuity. Hively, 437 F.3d at 761. Mob members were known for assaulting competing drug dealers or others believed to pose a threat to the Mob’s interests. It is likely that members would, and testimony suggested they did in fact, continue these tactics after the LaDuke shooting and Cree’s arrest. See United States v. Delgado, 401 F.3d 290, 298 (5th Cir. 2005); United States v. Diaz, 176 F.3d 52, 93-94 (2d Cir. 1999). A reasonable jury, therefore, could convict Cree of conspiracy to participate in racketeering activity.

Cree next complains that there was insufficient evidence to convict him of conspiring to distribute and possess with intent to distribute controlled substances. But sufficient evidence supported this conviction as well. Testimony showed that Mob members were engaged in a drug conspiracy and that Cree knowingly participated in the conspiracy. See United States v. Ramirez, 350 F.3d 780, 783-85 (8th Cir. 2003). Mob members testified that Cree was present when Wuori cooked crack cocaine, and that Cree received distribution quantities of crack cocaine from Wuori on consignment that Cree then sold in the Cass Lake area. It was for the jury to judge the truthfulness of these witnesses, and witness credibility is virtually unre-viewable on appeal. A reasonable jury could convict Cree of the charge based on this evidence.

Cree’s last argument is that the evidence did not demonstrate his “complicity” in the LaDuke shooting, a finding necessary for his four convictions relating to that incident. Cree insists that he did not know Morris was going to shoot La-Duke. The record, however, shows that Cree was aware of the impending attack on LaDuke and assisted Moms in completing the crime. Cree discussed harming LaDuke with Morris and other members, and he was present when Wuori agreed to provide a gun to Morris in case Morris encountered LaDuke. And LaDuke testified that about fifteen minutes before the shooting, he twice observed Cree staring at him as Cree and another man drove past his location. It was the jury’s prerogative to determine LaDuke’s credibility.

Cree’s recounting of the day of the attack to fellow members further demonstrates his knowing participation in the incident. Cree told members that he had found locations that LaDuke frequented and saw LaDuke “slippin’” (ie., leaving himself vulnerable to attack) in one such location. Cree then retrieved a firearm and picked up Morris to “take care” of La-Duke. On this record, a reasonable jury could convict Cree of the charges relating to the LaDuke attack, and the district court properly denied Cree’s motion for judgment of acquittal.

Cree also argues that the district court should have granted his motion for a new trial because the verdict was against the weight of the evidence. In the district court, however, Cree did not move for a new trial based on the weight of the evidence; as a result, his claim is procedurally barred on appeal, and we need not consider it. United States v. Flynn, 196 F.3d 927, 932 (8th Cir. 1999). We thus affirm the judgment of the district court as to Cree.

B.

Morris raises three claims of error. Morris first avers that the district court wrongly denied his motion for judgment of acquittal because there was insufficient evidence to convict him of either attempted murder in aid of racketeering or assault with a dangerous weapon in aid of racketeering. See 18 U.S.C. §§ 1959(a), 2. Morris does not dispute the existence of a RICO enterprise engaged in racketeering activity that affected interstate commerce or that he assaulted and attempted to murder LaDuke with a firearm. Morris instead alleges that the government did not demonstrate that he attacked LaDuke for a purpose listed in the statute — in this case, to maintain or increase his position in the Mob — because there was not proof beyond a reasonable doubt that he was, in fact, a Mob member. See id. § 1959(a).

The evidence was sufficient for the jury to conclude that Morris was a Mob member and that he shot LaDuke to maintain or increase his status in the gang. Morris discussed shooting LaDuke with other members, and some of those members later assisted Morris in carrying out the attack. A former member testified that in 2010, Wuori introduced him to Morris “as if [Morris] was Fam,” a term members used to denote membership in the gang. While some members may not have been aware of Morris, witnesses attested that members often did not know everyone in the Mob due to the Mob’s large membership. Morris’s communications on the day of the shooting and during his subsequent incarceration further support a finding that he was a Mob member. Near the time of the shooting, Morris used a cellular telephone to call a telephone number at which both McArthur and Wuori were known to receive calls. While in prison, Morris contacted several Mob members via telephone and mail, including Cree, McArthur, and Wuori, and represented himself as a member of the Mob. And it is' undisputed that members increased their standing in the gang by committing violent crimes. Thus, the jury reasonably decided that Morris attacked LaDuke to maintain or increase his position in the Mob.

Morris next asserts that the jury instructions on the § 1959(a) charges constructively amended the indictment. An indictment is constructively amended when the government or court alters the essential elements of an offense set forth in the indictment. United States v. Mariano, 729 F.3d 874, 880 (8th Cir. 2013). The indictment here charged that Morris attacked LaDuke “for the purpose of maintaining and increasing” his position in the Native Mob. Morris complains that the district court’s instruction on that element did not match the indictment, because it asked whether Morris assaulted LaDuke “to gain entrance to, or to maintain, or to increase his position” in the Mob. But Morris requested the precise jury instruction used by the district court, and he has therefore waived any claim of error based on an alleged constructive amendment. Id. at 880-82; Petschl v. United States, 369 F.2d 769, 774 (8th Cir. 1966).

Morris’s last argument is that the district court erred in ruling that his prior third-degree burglary convictions constituted violent felonies under the Armed Career Criminal Act. Morris was convicted for possession of a firearm as a previously convicted felon. See 18 U.S.C. § 922(g). This offense carries a maximum sentence of 120 months’ imprisonment. Id. § 924(a)(2). The Armed Career Criminal Act, however, provides for an enhanced sentence of 180 months to life in prison on a § 922(g) conviction, if the defendant “has three previous convictions ... for a violent felony.” See id. § 924(e)(1). Over Morris’s objection, the district court found that Morris had four prior “violent felony” convictions, three of which were for third-degree burglary in Minnesota, and that he was subject to the enhancement. The court thus imposed a 360-month sentence for Morris’s violation of § 922(g).

Morris’s initial position on appeal was that the Minnesota third-degree burglary statute, Minn. Stat. Ann. § 609.582, subd. 3, sets forth multiple, alternative versions of the crime, that at least one of the statute’s alternatives is not a violent felony, and that the district court should have applied the “modified categorical approach” to determine whether his convictions were violent felonies. Morris then revised his position in light of Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016), which was decided after this case was submitted. He now urges that the Minnesota statute is indivisible and that the offense is not a violent felony. The government agrees that the statute is indivisible but argues that third-degree burglary qualifies as generic “burglary” under § 924(e). We conclude that Morris is correct.

The Minnesota third-degree burglary statute provides that:

Whoever enters a building without consent and with intent to steal or commit any felony or gross misdemeanor while in the building, or enters a building without consent and steals or commits a felony or gross misdemeanor while in the building, ... commits burglary in the third degree and may be sentenced to imprisonment for not more than five years....

Minn. Stat. Ann. § 609.582, subd. 3. “Enters a building without consent” includes either entering or remaining in a building without the owner’s consent. Id. § 609.581, subd. 4.

The Armed Career Criminal Act defines “violent felony” to include burglary that is “punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 924(e)(2)(B). To determine whether a prior burglary conviction is a violent felony, we typically apply the “categorical approach.” Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 2247-48, 195 L.Ed.2d 604 (2016). In that analysis, we compare the elements of the statute under which the defendant was convicted with the “generic” definition of burglary set forth in Taylor v. United States, 495 U.S. 575, 598-99, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 2283, 186 L.Ed.2d 438 (2013). Only when the statute has the same or narrower elements as the generic crime does the prior conviction count as a violent felony. Id. But if the statute is divisible, setting forth “multiple, alternative versions of the crime,” and not all of the alternatives satisfy the generic definition, then we apply the “modified categorical approach” to decide which of the alternatives was the basis for the conviction. Id. at 2283-86.

Mathis explained that when a statute of conviction is phrased alternatively, the court must determine whether the listed alternatives are elements of different crimes or factual means of satisfying a single element of a single crime. If the. alternatives are “means,” then the statute sets out a single set of elements to define a single crime, and the court must apply the categorical approach to determine whether an offense of conviction qualifies as a violent felony.

Here, Mathis requires us to treat the alternatives in the Minnesota third-degree burglary statute as “means” rather than “elements.” The most helpful Minnesota court decision, although not precedential, holds that jury unanimity is not required as to one prong or the other of the burglary statute, thus suggesting that the alternatives are means rather than elements. State v. Gonzales, No. A15-0975, 2016 WL 3222795, at *2-3 (Minn. Ct. App. June 13, 2016). Morris’s charging documents underlying the prior convictions alleged both alternatives of third-degree burglary, again suggesting they are means rather than elements. Mathis, 136 S.Ct. at 2257. The statute on its face does not provide helpful guidance; there is, for example, a uniform punishment for commission of third-degree burglary. Accordingly, we agree with the parties that the Minnesota third-degree burglary statute should be treated as indivisible. We therefore must address whether the elements of the offense are broader than those of generic burglary under Taylor.

The government argues that we have ruled already that convictions under § 609.582, subd. 3, qualify as violent felonies. But the cases on which the government relies are inapposite. The decision in United States v. Sonczalla, 561 F.3d 842, 846 (8th Cir. 2009), concerned an earlier version of the third-degree burglary statute, enacted in 1986, that did not contain the second alternative in the current statute. See Minn. Stat. Ann. § 609.582, subd. 3 (1986). United States v. Constantine, 674 F.3d 985, 990 (8th Cir. 2012), did hold that § 609.582, subd. 3, “qualifies as a ‘violent felony1 under 18 U.S.C. § 924(e)(2)(B)(ii).” But Constantine cited Sonczalla, which involved the 1986 statute and thus addressed only one of the two statutory alternatives. Constantine also relied on precedent suggesting that burglary convictions qualified as violent felonies under the “residual clause” of § 924(e)(2)(B)(ii), id. but the Supreme Court later declared the residual clause unconstitutional. Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 2557, 192 L.Ed.2d 569 (2015). Because Constantine did not specify that a conviction under both of the alternatives in the current version of the Minnesota third-degree burglary statute qualified as a generic burglary under Taylor, we do not consider it controlling on the question.

The first alternative of § 609.582, subd. 3, forbids “entering] a building without consent and with intent to steal or commit any felony or gross misdemeanor” while inside. Taylor defines “generic” burglary as “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with'intent to commit a crime.” 495 U.S. at 598, 110 S.Ct. 2143. Because the first alternative of the Minnesota statute contains all of the elements in the Taylor definition, convictions based on that alternative count as violent felonies.

The second alternative of the Minnesota statute provides that “whoever enters a building without consent and steals or commits a felony or gross misdemeanor” while inside commits third-degree burglary. That portion of the statute, however, does not include the element of “intent to commit a crime” at the time of the unlawful entry or remaining. See State v. Benedict, No. A13-1324, 2014 WL 2921869, at *2 (Minn. Ct. App. June 30, 2014). Whether the second alternative qualifies as a violent felony thus depends on when, under the definition of generic burglary, an offender must form the intent to commit a crime within the building.

The government contends that the generic definition of burglary is broad enough to encompass the second alternative under § 609.582, subd. 3. Taylor said that generic burglary includes “remaining in” a building with intent to commit a crime. 495 U.S. at 598, 110 S.Ct. 2143. The government argues that a person convicted under the second alternative for entering a building without consent and then later stealing or committing a felony or gross misdemeanor while in the building meets the “remaining in” aspect of Taylor’s definition. The offender necessarily has “remained in” the building with intent to commit a crime, the argument goes, because he must have developed the requisite intent at some point while “remaining in” the building.

We reject this reading of Taylor. Taylor provides that burglary occurs when an offender enters or remains in a building or structure “with intent to commit a crime.” Id. (emphasis added). The most natural reading of Taylor and the sources on which it relied show that a generic burglary requires intent to commit a crime at the time of the unlawful or unprivileged entry or the initial “remaining in” without consent. See 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 8.13(b), (e), at 468, 473-74 & n.101 (1986) (noting that the “intent to commit a crime within need only exist at the time the defendant unlawfully remained within”); Model Penal Code § 221.1, cmt. (1), (3) (Am. Law Inst. 1980) (referencing the “purpose that accompanies the entry,” and “the purpose that must accompany the intrusion”).

The act of “remaining in” a building, for purposes of generic burglary, is not a continuous undertaking. Rather, it is a discrete event that occurs at the moment when a perpetrator, who at one point was lawfully present, exceeds his license and overstays his welcome. See LaFave & Scott, supra, § 8.13(b), (e), at 467-68 & n.47, 473-75 (distinguishing between burglary statutes that require intent to be contemporaneous with the unlawful entry or remaining and those providing “that actual commission of the offense within is an alternative basis for conviction”). If the defendant does not have the requisite intent at the moment he “remains,” then he has not committed the crime of generic burglary. The government’s reading of Taylor would render the “unlawful entry” element of generic burglary superfluous, because every unlawful entry with intent would become “remaining in” with intent as soon as the perpetrator enters. Accord United States v. Herrera-Montes, 490 F.3d 390, 392 & n.1 (5th Cir. 2007); United States v. Bernel-Aveja, 844 F.3d 206, 215-19 (5th Cir. 2016) (Higginbotham, J., concurring); United States v. Bonilla, 687 F.3d 188, 196-98 (4th Cir. 2012) (Traxler, C.J., dissenting); but see id. at 192-94 (majority opinion); Bernel-Aveja, 844 F.3d at 219-45 (Owen, J., concurring); cf. United States v. Priddy, 808 F.3d 676, 685 (6th Cir. 2015); compare also United States v. Reina-Rodriguez, 468 F.3d 1147, 1155-56 (9th Cir. 2006), with United States v. Bonat, 106 F.3d 1472, 1475-76 (9th Cir. 1997).

Because a conviction under the second alternative of § 609.582, subd. 3, does not require that the defendant have formed the “intent to commit a crime” at the time of the nonconsensual entry or remaining in, it does not satisfy the generic definition of burglary in Taylor. As a result, the indivisible statute is broader than generic burglary, and Morris’s third-degree burglary convictions do not qualify as violent felonies. Accordingly, we vacate Morris’s sentence and remand for further proceedings.

C.

1.

McArthur raises three claims of error on appeal. All three involve his two convictions for aiding and abetting the use or carrying of a firearm during and in relation to, or the possession of a firearm in furtherance of, a crime of violence. See 18 U.S.C. §§ 924(c), 2. He first argues that the district court violated his rights under the Double Jeopardy Clause by imposing consecutive sentences for those convictions, because the convictions arose from one predicate offense, conspiracy to participate in a pattern of racketeering activity. Although our circuit precedent rejects this claim, see, e.g., Hamberg v. United States, 675 F.3d 1170, 1172-73 (8th Cir. 2012); United States v. Lucas, 932 F.2d 1210, 1222-23 (8th Cir. 1991), the government nonetheless asks us to vacate one of McAr-thur’s convictions based on an internal Justice Department policy to refrain from pursuing multiple § 924(c) charges in this circumstance. The relevant policy provides that each § 924(c) charge in an indictment should be based on a separate predicate offense. See Brief for the United States in Opposition to Petition for Writ of Certiorari, Carter v. United States, 537 U.S. 1187 (2002), (No. 02-655), 2002 WL 32133544, at *8. The United States Attorney evidently charged McArthur in violation of Department policy and now requests that we vacate one of the § 924(c) convictions so that the government may belatedly comply with the policy.

The Supreme Court addressed a comparable situation in Rinaldi v. United States, 434 U.S. 22, 29, 98 S.Ct. 81, 54 L.Ed.2d 207 (1977) (per curiam), where the government prosecuted a defendant in violation of its Petite policy against multiple prosecutions by separate sovereigns for the same act. See Petite v. United States, 361 U.S. 529, 530-31, 80 S.Ct. 450, 4 L.Ed.2d 490 (1960) (per curiam). Although the conviction did not violate the Double Jeopardy Clause, see Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959), the Court held that the district court should have granted the government’s belated motion to dismiss the indictment. The Court concluded that the “overriding purpose of the Petite policy is to protect the individual from any unfairness associated with needless multiple prosecutions,” and that the defendant “should receive the benefit of the policy whenever its application is urged by the Government.” Rinaldi, 434 U.S. at 31, 98 S.Ct. 81. The policy here, although not premised on the “dual sovereignty principle inherent in our federal system,” does seek “to protect interests ... embraced by the Double Jeopardy Clause.” Id. at 29, 98 S.Ct. 81. The Justice Department has opted, as a matter of policy, to follow the view of other circuits that “the imposition of consecutive sentences under subsection 924(c) for using multiple weapons during a single crime of violence would impinge upon fundamental ‘double jeopardy’ principles.” United States v. Peña-Lora, 225 F.3d 17, 32 (1st Cir. 2000); see U.S. Dep’t of Justice, Office of Legal Education, Federal Firearms Manual § 4.25, at 192-93 (3d ed. 2001) (attached as Appendix B to the Brief for the United States in Opposition to Petition for Writ of Certiorari in Carter). We see no material distinction between this case and Rinaldi, and therefore grant the government’s request to vacate McArthur’s conviction on Count 11.

McArthur next contends that the jury instructions as to Count 10, the remaining § 924(c) charge, did not comply with Rosemond v. United States, — U.S. -, 134 S.Ct. 1240, 188 L.Ed.2d 248 (2014). This charge concerned the shooting at the Raisch residence. A person who “aids, abets, counsels, commands, induces or procures” the commission of a federal offense “is punishable as a principal.” 18 U.S.C. § 2. To convict a defendant of aiding and abetting a § 924(c) offense, the government must prove: (1) that a predicate crime of violence or drug trafficking was committed; (2) that a gun was used in a prohibited manner during the predicate offense; (3) that the defendant facilitated the firearm use, the predicate crime, or both; and (4) that the defendant had advance knowledge that one of his confederates would use or carry a gun during and in relation to the commission of the predicate crime, or would possess a gun in furtherance of the predicate offense. Rosemond, 134 S.Ct. at 1245, 1247, 1248-51.

Although the Supreme Court decided Rosemond after McArthur’s trial, we apply the case retroactively to cases on direct review. Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). But because McArthur did not object in the district court to the instructions he now challenges, we review only for plain error. Id. at 466, 117 S.Ct. 1544. To obtain relief, McArthur must show that there was an error that was obvious, rather than subject to reasonable dispute, and that the error affected his substantial rights and seriously affected the fairness, integrity, or public reputation of judicial proceedings. Id. at 466-68, 117 S.Ct. 1544; see Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009).

McArthur complains that the district court’s instructions for the charges of aiding and abetting a violation of § 924(c) did not require the jury to find that he had advance knowledge that a confederate would use or carry a firearm during the Raisch shooting. The elements instruction for aiding and abetting Count 10 required the jury to find beyond a reasonable doubt that McArthur “must ... have known that someone was going to knowingly use or carry a firearm during or in relation to, or possess a firearm in furtherance of, the crime of conspiracy to participate in a racketeering enterprise.” McArthur argues that the instruction permitted the jury to convict him based on a finding that he had advance knowledge that a coeonspirator would use, carry, or possess a firearm at some point during the conspiracy in general, as opposed to advance knowledge that a coconspirator would use, carry, or possess a firearm during the attack on the Raisch home.

The government does not address Mc-Arthur’s premise that what he refers to as “general” knowledge is insufficient to support a § 924(c) conviction under an aiding and abetting theory of liability. Rosemond says that the defendant must know in advance that a confederate will carry a gun during commission of the predicate crime. 134 S.Ct. at 1245, 1249-51. The predicate crime here was conspiracy to participate in racketeering activity, not a substantive offense of shooting at the Raisch home. See United States v. Hinds, 435 Fed.Appx. 832, 835-36 (11th Cir. 2011) (per curiam) (upholding a conviction for aiding and abetting possession of firearms in furtherance of a drug conspiracy where the defendant provided firearms to his coconspira-tors for their use in furtherance of the conspiracy); cf. Pinkerton v. United States, 328 U.S. 640, 645-48, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946); United States v. Bailey, 235 F.3d 1069, 1074 (8th Cir. 2000). But the government defends the conviction solely on the ground that the jury instructions adequately elicited a finding on whether McArthur had advance knowledge that a confederate would use a firearm in the Raisch shooting. Because we deem that avenue sufficient to sustain the judgment, we need not address whether McAr-thur’s premise is correct.

Assuming, therefore, that Rose-mond required McArthur to have advance knowledge that a firearm would be used, during the Raisch shooting, the jury instructions about which McArthur complains were not plainly erroneous. The jury was instructed that to convict McArthur for aiding and abetting in the commission of Count 10, McArthur “must ... have known that someone was going to knowingly use and carry a firearm during and in relation to, or possess a firearm in furtherance of, the crime of conspiracy to participate in a racketeering' enterprise.” The jury knew, however, that Count 10 charged that “on or about August 24, 2010, Defendant McArthur ... knowingly used and carried a firearm during and in relation to, and possessed a firearm in furtherance of, a crime of violence.” The instruction listing the elements required by § 924(c) likewise directed the jury that a necessary element of the charge was that “on or about August 24, 2010, the defendant, or another person aided and abetted by the defendant, did knowingly use or carry a firearm during and in relation to, or possess a firearm in furtherance of, that crime.” And the jury was told that it was considering whether McArthur “aided and abetted in the commission of Count 10.” Given that the references to the date of the Raisch shooting focused the jury on the specific firearm use on which Count 10 was premised, there is at least a reasonable dispute about whether the.instructions, taken as a whole, fairly and adequately submitted to the jury the “advance knowledge” question. Any error is thus not plain.

We also conclude that the district court did not err in denying McArthur’s motion for judgment of acquittal on Count 10. There was evidence that McArthur wanted to “eliminate [Daniels] by any means,” and that he was part of the group that decided to find Daniels and “shoot him.” Members involved in those conversations then mistakenly shot into a home in which they believed Daniels was staying; they informed McArthur of the mishap. Days later, members attacked the Raisch residence with Daniels as the target. Based on this evidence, along with testimony concerning the Mob’s propensity for firearms and McArthur’s decision-making authority as Chief, a reasonable jury could have found him guilty on Count 10.

2.

Having concluded that one of McAr-thur’s convictions should be vacated on the government’s request, we must determine the appropriate remedy. The district court sentenced McArthur to a total of 516 months’ imprisonment, but 300 months were attributable to the second § 924(c) conviction that will be vacated. The government contends that under the “sentencing package” doctrine, we should vacate McArthur’s sentences on all of his convictions and remand for resentencing. McAr-thur responds that the court should vacate only the sentence for Count 11, and remand with instructions to leave the sentences on his remaining convictions unchanged. Under that approach, McArthur’s total sentence would be reduced from 516 months to 216 months’ imprisonment.

Under . the sentencing package doctrine, we “may vacate the entire sentence on all counts so that, on remand, the trial court can reconfigure the sentencing plan to ensure that it remains adequate to satisfy the sentencing factors in 18 U.S.C. § 3553(a).” Greenlaw v. United States, 554 U.S. 237, 253, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008); see United States v. Bruguier, 735 F.3d 754, 764 (8th Cir. 2013) (en banc). The doctrine often arises in cases involving “multicount indictments and a successful attack by a defendant on some but not all of the counts of conviction.” Greenlaw, 554 U.S. at 253, 128 S.Ct. 2559.

This is an appropriate case for application of the sentencing package doctrine. McArthur was charged in a multi-count indictment and convicted of several crimes. He has successfully .challenged one of those convictions on appeal. When the district court determined McArthur’s sentence on the remaining counts, the court acted on the assumption that he would receive a 300-month consecutive sentence for Count 11. With that sentence vacated, the district court should have an opportunity to decide whether a term of 216 months’ imprisonment is sufficient to comply with the purposes set forth in 18 U.S.C. § 3553(a)(2). See United States v. Cureton, 739 F.3d 1032, 1045 (7th Cir. 2014).

McArthur claims that the sentencing package doctrine applies only when the vacatur of one conviction permits the district court at resentencing to apply a new enhancement under the advisory sentencing guidelines. See Gardiner v. United States, 114 F.3d 734, 736 (8th Cir. 1997). But Gardiner simply mentioned that possibility as one factor favoring resentencing, and our precedent should not be read as narrowly as McArthur suggests. In Bru-guier, for example, this court vacated all of the defendant’s sentences and remanded for resentencing without purporting to satisfy the limitation that McArthur proposes. 735 F.3d at 764. McArthur also argues that the district court may, not alter his sentences on his remaining convictions without violating the Double Jeopardy Clause. A defendant, however, has no expectation of finality in his sentence until an appeal is concluded, and the Double Jeopardy Clause “does not bar resentencing on all counts to carry out the sentencing judge’s original intent.” United States v. Evans, 314 F.3d 329, 333 (8th Cir. 2002).

For the foregoing reasons, we affirm the judgment as to Cree. We affirm Morris’s convictions but vacate his sentence and remand for further proceedings. We vacate McArthur’s conviction on Count 11, affirm his remaining convictions, • vacate McAr-thur’s entire sentence, and remand for re-sentencing.

       Neither United States v. Pledge, 821 F.3d 1035, 1037 (8th Cir. 2016), nor United States v.

        Eason, 643 F.3d 622, 623 (8th Cir. 2011), addressed the question of contemporaneous intent. Those decisions thus do not establish circuit precedent on the issue, and the government does not invoke them. See Passmore v. Astrue, 533 F.3d 658, 660-61 (8th Cir. 2008).


source: Caselaw Access Project

author: BENTON, Circuit Judge.

license: Public Domain

text:
    J.M., Next Friend Kristine McCauley, Plaintiff-Appellant v. FRANCIS HOWELL SCHOOL DISTRICT, Defendant-Appellee
    No. 16-1756
    United States Court of Appeals, Eighth Circuit.
    Submitted: January 10, 2017
    Filed: March 7, 2017

      Counsel who presented argument on behalf of the appellant was Larry Alan Bags-by, of Saint Charles, MO.
    Counsel who presented argument on behalf of the appellee was Kathryn Boehm Forster, of Saint Louis, MO. The following attorney(s) appeared on the appellee brief; Cindy Reeds Ormsby, of Saint Louis, MO, and Angela Gabel, of Saint Louis, MO.
    Before RILEY, Chief Judge, LOKEN. and BENTON, Circuit Judges.
   BENTON, Circuit Judge.

On behalf of her minor son, J.M., Kristine McCauley sued Francis Howell School District, claiming unlawful use of isolation and physical restraints. Her second amended complaint asserted violations of: (1) the Equal Protection Clause of the Fourteenth Amendment; (2) 42 U.S.C. §§ 1983 and 1988; (3) the Americans with Disabilities Act (ADA), 42 U.S.C. § 12182; (4) Section 504 of the Rehabilitation Act of 1973; and (5) the Missouri Human Rights Act (MHRA), RSMo § 213.010 et seq. The district court dismissed the federal claims for “lack of subject matter jurisdiction for failure to exhaust administrative remedies” and declined to exercise supplemental jurisdiction over the MHRA claim, dismissing it without prejudice. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

In 2011, J.M. began kindergarten in the Francis Howell School District. J.M. qualified for services under the Individuals with Disabilities Education Act (IDEA) based on his diagnoses of attention deficit hyperactivity disorder, autism spectrum disorder, anxiety disorder, séparation anxiety disorder, panic disorder, Asperger’s/autism spectrum disorder, and generalized anxiety. See 20 U.S.C. § 1400 et seq. Under the IDEA, J.M. had an Individualized Education Program (IEP).

McCauley alleges that between January 2012 and September 2014, J.M. repeatedly was placed in physical restraints and isolation without her knowledge. Learning of this, she immediately contacted the District, requesting restraints only when necessary and no isolation. On September 5, McCauley removed J.M. from the District.

McCauley sued in federal court under the IDEA, 42 U.S.C. §§ 1983 and 1988, and Missouri common law (torts of negligence per se, false imprisonment, and battery). She amended the complaint to add claims under the ADA and MHRA. The District answered, claiming failure to exhaust administrative remedies for the federal claims, and sovereign immunity for the common law tort claims. McCauley voluntarily amended her complaint, removing the IDEA and common law tort claims. Her second amended complaint thus included claims under the Equal Protection Clause, 42 U.S.C. §§ 1983 and 1988, the ADA, Section 504 of the Rehabilitation Act of 1973, and the MHRA.

The District moved to dismiss, alleging lack of subject matter jurisdiction for failure to exhaust administrative remedies under the IDEA. McCauley argued her claims were not under the IDEA, and thus not subject to exhaustion. In the alternative, she asserted exceptions to the exhaustion requirement. The district court granted the motion to dismiss.

I.

This court reviews de novo whether exhaustion of administrative remedies was required. J.B. ex rel. Bailey v. Avilla R-XIII School Dist., 721 F.3d 588, 592 (8th Cir. 2013), citing Brown v. J.B. Hunt Transp. Servs., Inc., 586 F.3d 1079, 1083 n.4 (8th Cir. 2009).

“In the IDEA, Congress established procedural safeguards to ensure individuals with disabilities will have the opportunity to obtain a free appropriate public education (FAPE).” Id., citing 20 U.S.C. § 1415(a). One safeguard is an opportunity to present complaints about the provision of a FAPE in “an impartial due process hearing.” Id., quoting Honig v. Doe, 484 U.S. 305, 311-12, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). See 20 U.S.C. § 1415(f). “A party aggrieved by the outcome of an IDEA due process hearing may challenge the outcome before the state educational review agency.” J.B., 721 F.3d at 592, citing 20 U.S.C. § 1415(g)(1). “The outcome of the administrative review hearing may then be disputed in district court.” Id., citing 20 U.S.C. § 1415(i)(2)(A).

The IDEA’S exhaustion requirement also applies to claims under the Constitution, the ADA, the Rehabilitation Act, and other federal laws protecting children with disabilities to the extent those claims seek relief “that is ..also available under [the IDEA].” 20 U.S.C. § 1415(l); Fry v. Napoleon Cmty. School, No. 15-497, — U.S. -, 137 S.Ct. 743, 752, 197 L.Ed.2d 46, 2017 WL 685533, at *8 (U.S. Feb. 22, 2017) (“Section 1415(¿) requires that a plaintiff exhaust the IDEA’S procedures before filing an action under the ADA, the Rehabilitation Act, or similar laws when (but only when) her suit ‘seek[s] relief that is also available’ under the IDEA.”); J.B., 721 F.3d at 592 (“[B]efore parties may bring a claim in district court under a different statute for which they seek relief which is also available under the IDEA, the parties must first exhaust the administrative remedies under the IDEA.”)- After argument in this case, the Supreme Court held that “ ‘relief that is also available’ under the IDEA” means “relief for the denial of a FAPE, because that is the only ‘relief the IDEA makes ‘available.’ ” Fry, 137 S.Ct. at 752, 2017 WL 685533, at *8. Thus, “exhaustion is not necessary when the gravamen of the plaintiffs suit is something other than the denial of the IDEA’S core guarantee — what the Act calls a ‘free appropriate public education.’ ” Id., at 748, 2017 WL 685533 at *3, quoting § 1412(a)(1)(A).

“[Djetermining whether a suit indeed ‘seeks’ relief for [denial of a FAPE], a court should look to the substance, or gravamen, of the plaintiffs complaint.” Id., at 752, 2017 WL 685533 at *8. The inquiry “does not ride on whether a complaint includes (or, alternatively, omits) the precise words(?) ‘FAPE’ or ‘IEP.’” Id., at 755, 2017 WL 685533 at *11. Rather, “[i]n addressing whether a complaint fits that description, a court should attend to the diverse means and ends of the statutes covering persons with disabilities — the IDEA on the one hand, the ADA and Rehabilitation Act (most notably) on the other.” Id.

The IDEA, of course, protects only “children” (well, really, adolescents too) and concerns only their schooling. § 1412(a)(1)(A). And as earlier noted, the statute’s goal is to provide each child with meaningful access to education by offering individualized instruction and related services appropriate to her “unique needs.” § 1401(29); see Rowley, 458 U.S. at 192, 198, 102 S.Ct. 3034; supra, at 753-54. By contrast, Title II of the ADA and § 504 of the Rehabilitation Act cover people with disabilities of all ages, and do so both inside and outside schools. And those statutes aim to root out disability-based discrimination, enabling each covered person (sometimes by means of reasonable accommodations) to participate equally to all others in public facilities and federally funded programs.

Id. “A further sign that the gravamen of a suit is the denial of a FAPE can emerge from the history of the proceedings. In particular, a court may consider that a plaintiff has previously invoked the IDEA’S formal procedures to handle the dispute.” Id., at 757, 2017 WL 685533 at *13.

II.

McCauley did not file an IDEA due process complaint, request a due process hearing, or engage in the exhaustion procedures under the IDEA. See 20 U.S.C. § 1415(f), (g), (l). She argues exhaustion is not required because she does not seek relief available under the IDEA. The question here is whether the complaint is based on the District’s denial of a FAPE. Fry, 137 S.Ct. at 753, 2017 WL 685533, at *8 (“[T]he thing a plaintiff must seek in order to trigger § 1415(Z )’s exhaustion rule — is relief for the denial of a FAPE.”).

Considering- “substance, not surface,” the district court did not err in finding the complaint seeks relief for denial of a FAPE under the IDEA. Id., at 755, 2017 WL 685533 at *11. The second amended complaint states, “At all times mentioned above, [J.M.] was entitled to the educational services and protections available under the Individuals with Disabilities Education Act of 1975” and “at all times [J.M. was] entitled to reasonable accommodations” for his disabilities. It alleges that “[b]etween February 2014 and September 5, 2014, J.M. was placed in physical restraints for half of the time he actually spent at Defendant’s schools.” It further states that J.M. was “denied ... because of his disability, participation in and the benefits of a public education.” These allegations show that the complaint was based on the “denial of a FAPE” under the IDEA. See id., at 758, 2017 WL 685533 at *13 (determining the Fry’s complaint “alleges only disability-based discrimination” and “contains no allegation .. accusing] the school even in general terms of refusing to provide the educational instruction and services that E.F. needs”).

“As defined in the Act, a FAPE comprises ‘special education and related services’ — both ‘instruction’ tailored to meet a child’s ‘unique needs’ and sufficient ‘supportive services’ to permit the child to benefit from that instruction.” Id., at 748-49, 2017 WL 685533 at *4, citing 20 U.S.C. §§ 1401(9), (26), (29). The ADA and Section 504, on the other hand, forbid public entities and federally funded programs or activities from discriminating based on disability. Id., at 749-50, 2017 WL 685533 at *5. The complaint here is not based on disability discrimination. Except for Count IV (the MHRA claim), the complaint does not use the word “discrimination.” Rather, the complaint is based on how the use of isolation and physical restraints failed to provide proper “sufficient ‘supportive services’ to permit [J.M.] to benefit from ... instruction,” id., at 748-49, 2017 WL 685533 at *4, and ultimately “denied [J.M.] ... the benefits of public education.” Finally, although McCauley did not “invoke!] the IDEA’S formal procedures to handle the dispute,” “the history of the proceedings,” including her initial complaint and-first amended complaint contained claims under the IDEA, which is “[a] further sign that the gravamen of [the] suit is the denial of a FAPE.” See id., at 757, 2017 WL 685533 at *13.

As noted, the Fry decision issued after argument in this case. But, the cases McCauley relies on — Moore v. Kansas City Public Schools, 828 F.3d 687 (8th Cir. 2016) and Muskrat v. Deer Creek Public Schools, 715 F.3d 775 (10th Cir. 2013) — do not change this analysis. In both, the complaints alleged common law torts seeking redress for non-educational injuries. Moore, 828 F.3d at 692 (“The gravamen of the petition is a state law action for damages seeking redress for the brutal injuries D.S. suffered as the result of repeated sexual assault and rape while under Southwest’s supervision.”); Muskrat, 715 F.3d at 785 (“No authority holds that Congress meant to funnel isolated incidents of common law torts into the IDEA exhaustion regime.... Here, the Muskrats have alleged three scattered instances of potential battery. All three instances appear to have resulted from simple frustration with [the student] rather than any legitimate disciplinary goal”). McCauley does not allege any common law torts as the foundation for non-educational injuries. In fact, she voluntarily removed the common law tort claims from her second amended complaint. Moreover, the allegations show J.M.’s injuries were education-related: “Defendant’s employees and agents had used isolation and restraint as a disciplinary tool, for their own convenience and in violation of their own policies.” (emphasis added).

Unlike the Moore complaint — which referred to the plaintiffs IEP “solely to show notice to the [school district] of the conditions that put D.S. at risk from other students” — the complaint here shows the IEP is a “central dispute of this litigation.” Moore, 828 F.3d at 692. The complaint alleges: “Defendant repeatedly and consistently violated Plaintiffs rights by utilizing isolation and restraint on J.M. which were not permitted within his IEPs.” (emphasis added). The claims here are based on the failure to implement J.M.’s IEP, specifically regarding discipline. See Muskrat, 715 F.3d at 785 (“[A] timeout-related claim must be exhausted through the IDEA’S statutory procedures.”).

McCauley also believes the complaint is not subject to exhaustion because it seeks relief not available under the IDEA, namely compensatory and punitive damages. While the IDEA allows attorney’s fees and costs (which McCauley seeks), 20 U.S.C. § 1415(i)(3)(B), compensatory and punitive damages are not available. Bradley v. Ark. Dep’t of Educ., 301 F.3d 952, 957 (8th Cir. 2002). In Fry, the Supreme Court declined to address whether exhaustion is required “when the plaintiff complains of the denial of a FAPE, but the specific remedy she requests — here, money damages for emotional distress — is not one” the IDEA provides. Fry, 137 S.Ct. at 752 n.4, 2017 WL 685533 at *8 n.4. However, this court has noted that “the IDEA’S exhaustion requirement remains the general rule, regardless of whether the administrative process offers the particular type of relief that is being sought.” J.B., 721 F.3d at 595, quoting M.P. ex rel. K. v. Indep. School Dist. No. 721, 326 F.3d 975, 980 (8th Cir. 2003). See Muskrat, 715 F.3d at 785 (holding “a plaintiff cannot avoid exhaustion simply because he or she asks for damages”); Frazier v. Fairhaven School Comm., 276 F.3d 52, 64 (1st Cir. 2002) (“[W]e hold that plaintiffs who bring an IDEA-based claim under 42 U.S.C. § 1983, in which they seek only money damages, must exhaust the administrative process available under the IDEA as a condition precedent to entering a state or federal court.”); Covington v. Knox Cnty. School Sys., 205 F.3d 912, 917 (6th Cir. 2000) (“[W]e agree with those courts that have decided that a mere claim for money damages is not sufficient to render exhaustion of administrative remedies unnecessary.”); N.B. by D.G. v. Alachua Cnty. School Bd., 84 F.3d 1376, 1379 (11th Cir. 1996) (holding that plaintiffs cannot avoid the exhaustion requirement by limiting relief to money damages because otherwise, “future litigants could avoid the exhaustion requirement simply by asking for relief that administrative authorities could not grant”). McCauley’s voluntary decision to remove J.M. from school, and thus seek only compensatory and punitive damages rather than compensatory education services, does not exempt her from the exhaustion requirement.

Because McCauley’s complaint seeks relief available under the IDEA, denial of a FAPE, the claims are subject to exhaustion, barring an applicable exception.

III.

There are three exceptions to the exhaustion requirement: (1) futility, (2) “inability of the administrative remedies to provide adequate relief,” and (3) “the establishment of an agency policy or practice of general applicability that is contrary to law.” J.B., 721 F.3d at 594, quoting Blackmon ex rel. Blackmon v. Springfield R-XII School Dist., 198 F.3d 648, 656 (8th Cir. 1999). “A court deciding whether to waive exhaustion should be ‘guided by the policies underlying the exhaustion requirement.’ ” Id., quoting Bowen v. City of New York, 476 U.S. 467, 484, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986).

Exhaustion is generally required as a matter of preventing premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review.

Id., quoting Bowen, 476 U.S. at 484, 106 S.Ct. 2022.

McCauley contends the futility and inadequate remedy exceptions apply.

A.

McCauley believes exhaustion would have been futile because she, like the Muskrat plaintiffs, attempted to address the problem by directly contacting the school. In Muskrat, however, the plaintiffs made greater attempts to work “through administrative channels to obtain the relief they sought.” Muskrat, 715 F.3d at 786. They made written and oral demands to school administrators, conferred during an IEP meeting about the relief sought, and modified the IEP to accommodate their concerns. Id. McCauley, on the other hand, alleges only that she “contacted school district officials to have the isolation immediately stopped, and consented only to restraint on a basis of necessity.” Although the complaint alleges “[s]he did not consent to isolation in the IEP team meetings,” it does not allege she sought to address her concerns with isolation and physical restraint through the IEP process or modified J.M.’s IEP to reflect those concerns.

McCauley also claims the administrative process would not have addressed all her claims. This, however, does not excuse exhaustion. See J.B., 721 F.3d at 594-95. Although the administrative process may not address all claims, this court has held exhaustion is not futile because it would allow “the agency to develop the record for judicial review and apply its expertise” to the plaintiffs “claims to the extent those claims are related to implementation” of the IEP. Id.

B.

McCauley contends the administrative process cannot provide adequate relief, compensatory and punitive damages. As discussed, this argument is without merit. See J.B., 721 F.3d at 595 (“[T]he IDEA’S exhaustion requirement remains the general rule, regardless of whether the administrative process offers- the particular type of relief that is being sought.”).

The district court properly dismissed the complaint for failure to exhaust administrative remedies.

⅜ * * ⅝ ⅜ ⅝ *

The judgment is affirmed.

      . The Honorable Nannette A. Baker, United States Magistrate Judge for the Eastern District of Missouri, to whom the case was referred for final disposition by consent of the parties pursuant to 28 U.S.C. § 636(c).

      . The parties and the district court treat the IDEA’S exhaustion requirement as jurisdictional rather than a claims-processing rule. Compare Payne v. Peninsula School Dist., 653 F.3d 863, 870 (9th Cir. 2011) (en banc) ("In sum, we hold that the exhaustion requirement in § 1415(Z) is not jurisdictional.”), with Polera v. Bd. of Educ. of the Newburgh Enlarged City School Dist., 288 F.3d 478, 483 (2nd Cir. 2002) ("A plaintiff’s failure to exhaust administrative remedies' under the IDEA deprives a court of subject matter jurisdiction.”). Here, neither party requested a ruling on this issue. "Because the District has not waived the exhaustion argument and ... [McCauley was] required to exhaust ... administrative remedies, [this court] need not reach this issue.'' See J.B. ex rel. Bailey v. Avilla R-XIII School Dist., 721 F.3d 588, 593 n.2 (8th Cir. 2013), citing Muskrat v. Deer Creek Pub. Schools, 715 F.3d 775, 784-85 (10th Cir. 2013) (declining to consider whether the IDEA’s exhaustion requirement was jurisdictional because the parties did not raise the issue and the defendants argued exhaustion in the district court).


author: RILEY, Chief Judge.

text:
    Ronald C. TUSSEY; Charles E. Fisher; Timothy Pinnell, Plaintiffs-Appellants v. ABB, INC.; John W. Cutler, Jr.; Pension Review Committee of ABB, Inc.; Pension & Thrift Management Group of ABB, Inc.; Employee Benefits Committee of ABB, Inc., Defendants-Appellees Fidelity Management Trust Company; Fidelity Management & Research Company, Defendants American Association of Retired Persons, Amicus on Behalf of Appellants Securities Industry and Financial Markets Association, Amicus on Behalf of Appellees Ronald C. Tussey; Charles E. Fisher; Timothy Pinnell, Plaintiffs-Appellees v. ABB, Inc.; John W. Cutler, Jr.; Pension Review Committee of ABB, Inc.; Pension & Thrift Management Group of ABB, Inc.; Employee Benefits Committee of ABB, Inc., Defendants-Appellants Fidelity Management Trust Company; Fidelity Management & Research Company, Defendants
    No. 15-2792, No. 16-1127
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 21, 2016
    Filed: March 9, 2017

      Counsel who presented argument on behalf of the appellants Ronald C. Tussey, Charles E. Fisher and Timothy Pinnell was Jerome Joseph Schlichter, of Saint Louis, MO. The following attorneys also appeared on the brief for appellants: Michael A. Wolff, Troy A. Doles, and Sean E. Soy'ars, of Saint Louis, MO.
    Counsel who appeared on the brief for Amicus Curiae, AARP, in support of the appellants, (15-2792 only) was Mary Ellen Signorille, AARP Foundation Litigation, Washington, DC.
    Counsel who presented argument on behalf of the appellees, ABB, John W.. Cutler, Jr., Pension Review Committee of ABB, Inc., Pension & Thrift Management Group of ABB, Inc., and Employee Benefits Committee of ABB, Inc., was Jeffrey Scott Russell, of Saint Louis, MO. The following attorneys also appeared on the appellee brief; Thomas E. Wack and Elizabeth C. Carver, both of Saint Louis, MO.
    Counsel who appeared on the brief for Amicus Curiae, Securities Industry and Financial Markets Association (SIFMA), in support of the appellees, (15-2792 only) were Alisha Q. Nanda and James R. Carroll, of Boston, MA., and Ira D. Hammer-man and Kevin Carroll, of Washington,DC.
    Before RILEY, Chief Judge, MURPHY and SMITH, Circuit Judges.
   RILEY, Chief Judge.

A class of employees who participated in ABB, Inc.’s retirement plans — “401(k) defined contribution savings plans,” to be precise, see generally 26 U.S.C. § 401(k)— accuse ABB and its agents (collectively, the ABB fiduciaries) of managing the plans for their own benefit, rather than the participants’. In an earlier appeal, we directed the district court to “reevaluate” how the participants might have been injured if the ABB fiduciaries breached their fiduciary duties under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001, et seq., when they changed the investment options for the plans. See Tussey v. ABB, Inc., 746 F.3d 327, 338 (8th Cir. 2014). Because the district court apparently mistook that direction for a definitive ruling on how to measure plan losses, and as a result entered judgment in favor of the ABB fiduciaries despite finding they did breach their duties, we vacate the judgment on that claim and remand for further consideration regarding whether the participants can prove losses to the plans. Because we thus reopen one of the participants’ substantive claims, we also vacate and remand the district court’s award of attorney fees.

1. BACKGROUND

The plans offered participants a menu of options for investing the money in their accounts. In 2000, ABB’s Pension Review Committee adopted a written policy statement describing “the underlying philosophy and process for the selection, monitoring and evaluation and, if necessary, removal of investment options.” The policy statement said the plans would offer investments in three “tiers,” organized by-how much active involvement they demanded from investors. The first tier, meant “[fjor participants unwilling or unable to make a personal asset allocation decision,” was to “offer several ‘managed allocation’ funds designed to offer the participant a professionally managed, well diversified fund or funds appropriate for the participants’ [sic] investment goals.”

John Cutler, Jr., the director of the committee’s staff, thought those “‘managed allocation’ ” funds should be “target-date” or “life-cycle” funds, which dynamically change their mix of investments to become more conservative as a specified date (such as an employee’s expected retirement) approaches. Cutler favored the Fidelity Freedom Funds, a family of funds with target dates at ten-year intervals from 2000 to 2040. Cutler also suggested removing the Vanguard Wellington Fund, an established fund that invested in stocks and bonds in a generally static ratio. The committee agreed on both points. Removing the Wellington Fund raised the question of what to do with the money participants had invested in it — roughly $123 million, representing about 8.4% of the total assets in the plans. The ABB fiduciaries decided to move the money into the Freedom Funds, a process called “mapping” assets from one investment to another. Participants whose money was mapped to a Freedom Fund remained free to choose a different investment option (or options) at any time, but the mapping decision made the Freedom Funds the default for anyone who had been invested in the Wellington Fund and did not take affirmative steps to do something else with their money.

In 2006, the participants sued the ABB fiduciaries and two Fidelity companies— the recordkeeper for the plans and the investment advisor for the Fidelity mutual funds' included in the plans — under ERISA. See 29 U.S.C. §§ 1109, 1132(a)(2) (fiduciary liability and cause of action). After a bench trial, the district court found both sets of defendants “breached some fiduciary duties that they owed to the ... Plans.” See id. § 1104(a)(1) (fiduciary duties). In particular, the district court found the ABB fiduciaries breached their fiduciary duties by (1) deciding effectively to replace the Wellington Fund with the Freedom Funds based on self-interest rather than what was best for the plans, (2) failing to properly monitor and control recordkeeping costs, and (3) agreeing to make the plans overpay for Fidelity’s services in return for Fidelity charging ABB less for corporate services it bought for itself. The Fidelity defendants were liable as well, according to the district court, because interest earned when money in the process of being added to or taken out of plan investments was invested overnight — called “float income” — should have been credited to the plans, not back to the investments. The district court awarded-the participants $21.8 million against the ABB fiduciaries for swapping the Wellington and, Freedom Funds, $13.4 million for the ABB fiduciaries’ other breaches, and $1.7 million against the Fidelity defendants on the float claim, plus attorney fees of $12.9 million from all the defendants jointly and severally, see id. § 1132(g)(1) (attorney fees).

The defendants appealed. We vacated the finding of breach for changing the investment options, explaining the district court should have afforded more deference to the discretion the plans explicitly granted the ABB fiduciaries. See Tussey, 746 F.3d at 338. Because the issue could be relevant again on remand — if the district court still found a breach after a properly deferential review — we added that, “[a]s calculated,” the original award for switching the funds was ^speculative and exceed[ed] the ‘losses to the plan[s] resulting from’ any fiduciary breach.” Id. at 338 n.7, 339 (quoting 29 U.S.C. § 1109(a)). The district court had calculated the plans’ losses by comparing the returns on the Freedom Funds to what the participants would have earned if they had invested in the Wellington Fund instead. We suggested “it seems the participants’ mapping damages, if any, would be more accurately measured by comparing the difference between the performance of the Freedom Funds and the minimum return of the subset of managed allocation funds the ABB fiduciaries could have chosen without breaching their fiduciary obligations.” Id. at 339. We affirmed the ABB fiduciaries’ liability on the other claims, reversed the judgment against the Fidelity defendants, and vacated the fee award — now only against the ABB fiduciaries — so the district court could account for the resolution of the remanded issue. See id. at 336-37, 340-41.

On remand, the district court again held the ABB fiduciaries breached their fiduciary duties. Yet the district court concluded the participants had failed to prove any losses under the theory we “tacitly approved” in the first appeal — comparing the Freedom Funds’ returns to the worst-performing of the funds the ABB fiduciaries could have properly chosen- — so the ABB fiduciaries nonetheless prevailed on that claim. In light of that result, the district court reduced the participants’ attorney fee award for work through trial by almost $2.2 million, to $10,768,474. The district court also awarded the participants' $900,000 for work on the appeal — just over two-thirds of what they requested — for a total of $11,668,474. The participants appeal the district court’s ruling on measuring losses and liability for the breach. In a consolidated cross-appeal, the ABB fiduciaries argue both parts of the fee award are still too high. See 28 U.S.C. § 1291 (appellate jurisdiction).

II. DISCUSSION

A. Liability

We start with the ABB fiduciaries’ assertion, presented as an alternative ground for affirming the district court’s judgment on the merits, that they did not actually breach their fiduciary duties, so there is no need to reach the issue of how much the plans lost. Whether the ABB fiduciaries’ actions constituted a breach is a legal question we must answer de novo. See, e.g., Tussey, 746 F.3d at 333. But what they did, and why, are factual matters on which we accept the district court’s findings unless they are clearly wrong. See, e.g., id.; Herman v. Mercantile Bank, N.A., 137 F.3d 584, 586 (8th Cir. 1998); see also Fed. R. Civ. P. 52(a)(6).

The heart of the ruling on remand, was the district court’s conclusion that “the removal of the Wellington Fund from the ... platform and the mapping of its assets to the Freedom Funds ... was motivated in large part to benefit Fidelity Trust and ABB, not the Plan participants.” The ABB fiduciaries insist that determination was the product of speculation, unfounded inferences, and the fallacy of “equat[ing] the effect of a decision with its purpose.” To the contrary, strong evidence supported the district court’s finding, notably the fact that Cutler — the director of the Pension Review Committee’s staff— and ABB’s director of employee benefits openly communicated with Fidelity about the “pricing implications” of changes to the plans’ investment lineup and the specific dollar amounts by which Fidelity would cut its fees “if the Wellington money map[ped]/default[ed] to the Freedom Funds.”

The ABB fiduciaries stress that there was a great deal of other evidence too, and some of it showed them acting against Fidelity’s interests in various ways. For instance, the ABB fiduciaries dropped other lucrative Fidelity funds from the plans and mapped their assets to non-Fidelity options. However, their examples all relate to other investment decisions, not the Wellington-Freedom swap. The fact the ABB fiduciaries apparently did not always favor Fidelity as much as they could, or seize every opportunity to send Fidelity more of the participants’ money, does little to undermine the district court’s finding about why they made the particular decisions at issue in this case. That is all the more true given that we know conclusively the ABB fiduciaries, in still other contexts, did “fail[ ] to monitor and control [Fidelity’s] recordkeeping fees” and did “pay[] [Fidelity] excessive revenue sharing from Plan assets.” Tussey, 746 F.3d at 336.

In addition to the direct evidence of meetings about “pricing implications,” the district court’s finding was based on what it saw as “circumstantial evidence” of the ABB fiduciaries’ motives. The ABB fiduciaries take issue with the district court’s approach, which they say once again failed to afford proper deference to their choices “in implementing the redesign and evaluating and selecting Plan investment options in accordance with the Plan.” Id. at 338. According to the ABB fiduciaries, the district court was wrong to focus on perceived flaws in the ABB fiduciaries’ decision-making process, such as not considering other possible replacements for the Wellington Fund and giving an explanation for mapping the assets from the Wellington Fund to the Freedom Funds that seemingly conflicted with the reason they had given for dropping the Wellington Fund, because the ABB fiduciaries had discretion over such things. The ABB fiduciaries overstate the deference they are owed.

“[A] Plan administrator deserves discretion to the extent its ex ante investment choices were reasonable given what it knew at the time.” 1⅛ When the district court considered the circumstances of how the ABB fiduciaries decided to swap the funds, it was not second-guessing whether their decision was reasonable. Nor was it naysaying their underlying determination of the appropriate procedure to use to make such a decision. Rather, the district court was observing that the ABB fiduciaries’ actions — discretionary or not — when taken together and viewed in context, shed light on their motivations. In particular, those actions tended to suggest the ABB fiduciaries did what they did not because they thought it was best for the plans, but because they wanted to get a better deal for themselves. As the district court explained, “there [were] too many coincidences to make the beneficial outcome for ABB serendipitous, particularly considering the powerful draw of self-interest when transactions are occurring out of sight and are unlikely to ever be discovered.” A fiduciary can abuse its discretion and breach its duties by acting on improper motives, even if one acting for the right reasons might have ended up in the same place. Cf. Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 117, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008); id. at 123, 128 S.Ct. 2343 (Roberts, C.J., concurring in part and concurring in the judgment); id. at 131, 128 S.Ct. 2343 (Scalia, J., dissenting).

Because the choice of whose interests to favor, the plans’ or their own, was not one over which the ABB fiduciaries could claim any discretion, cf. 29 U.S.C. § 1104(a) (“[A] fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries.” (emphasis added)); Tussey, 746 F.3d at 333-35, there was no place for deference in the district court’s factfinding on their motives. There was no clear error in that factfinding either, so we will not disturb the district court’s determination that “but for its conflict of interest, ABB would not have made the same decisions.” And we see no reason to reject the legal conclusion the district court drew from that fact — the ABB fiduciaries abused their discretion and breached their fiduciary duties.

That brings us back to the question which prompted this appeal: how to determine what that breach cost the plans? We answer de novo, because the method for measuring losses, as distinct from the calculation itself, is a legal issue, see id. at 338-39, as is the explication of our previous decisions.

What we said on this point was:

On remand, the district court should reevaluate its method of calculating the damage award, if any, for the participants’ investment selection and mapping claims. First, the district court awarded the amount that participants who had invested in the Wellington Fund presumably would have had if (1) ABB had not replaced the Wellington Fund with the Freedom Funds, and (2) the participants remained invested in the Wellington Fund for the entire period at issue. In light of the [policy statement’s] requirement to add a managed allocation fund, it seems the participants’mapping damages, if any, would be more accurately measured by comparing the difference between the performance of the Freedom Funds and the minimum return of the subset of managed allocation funds the ABB fiduciaries could have chosen without breaching their fiduciary obligations.
Second, the district court determined “it [was] a reasonable inference that participants who invested in the Freedom Funds would have invested in the Wellington Fund had it not been removed from the Plan’s investment platform.” Such an inference appears to ignore the investment provisions of the [policy statement], participant choice under the Plan, and the popularity of managed allocation funds. And the participants fail to cite any evidentiary support for inferring the participants’ voluntary, post-mapping investments in the Freedom Funds would have instead been made in the Wellington Fund, even if that fund remained as a Plan option for all of the years at issue. A reasonable inference is one which may be drawn from the evidence without resort to speculation. As calculated, the $21.8 million damage award for the participants’ mapping claim is speculative and exceeds the losses to the plan resulting from any fiduciary breach.

Id. (second alteration in original) (emphasis added) (footnote, quotation marks, and citations omitted). According to the ABB fiduciaries, the italicized language was a “binding alternative holding,” and thus became the “law of the case,” because it was necessary to give the district court a standard to apply on remand. We think that gives the highlighted language too much weight.

To be sure, we did clearly rule that the original award was wrong “[a]s calculated.” Id. at 339. At the same time, we left open exactly how it should be fixed. We suggested two points in the district court’s explanation that “seem[ed]” or “appear[ed]” to be mistaken, but we did so in tentative, qualifying terms, rather than the firm, definite language we used for our holdings (the award “is speculative and exceeds” the plans’ losses, and the district court “should reevaluate” its methodology). Id. at 338-39 (emphasis added). Properly read, the passage at issue proposed an alternative we thought warranted consideration (if measuring the plans’ losses became necessary again on remand), it did not require that the district court adopt our proffered approach. That is why our overarching instruction to the district court was to “reevaluate its method of calculating the damage award.” Id at 338. With that phrasing, we meant to make clear both that there was work — “reevaluatfion]”— left for the district court to do and the work involved resolving the “method of calculating” losses, not just their ultimate amount. Such a directive would have made little sense if, as the ABB fiduciaries assert, all we meant for the district court to do was carry out the calculations under an approach we had dictated on appeal.

The district court therefore should have considered other ways of measuring the plans’ losses from the ABB- fiduciaries’ breach, as well as the participants’ contentions about why, in their view, our proposal was misguided and contradicted persuasive authority and the- trust-law principles that generally inform ERISA decisions, cf., e.g., Donovan v. Bierwirth, 754 F.2d 1049, 1056 (2d Cir. 1985) (‘Where several alternative investment strategies were equally plausible, the court should presume that the funds would have been used in the most profitable of these. The burden of proving that the funds would have earned less than that amount is on the fiduciaries found to be in hreach of their duty.”). We leave to the district court’s discretion whether and how to expand the record and hear additional argument from the parties on this issue. Although this case arguably illustrates the dangers of saying more than we need to, we add two observations to inform the analysis on remand.

First, the district court treated our reference to measuring the Freedom Funds against “the subset of managed allocation funds the ABB fiduciaries could have chosen,” Tussey, 746 F.3d at 339, as limiting the comparison to “alternative target[date] fund[s].” That reading is echoed in the ABB fiduciaries’ claim on appeal that “this Court determined that the performance of the Freedom family had to be measured against a dynamic ‘managed allocation’ alternative.” It is unclear where the ABB fiduciaries find the requirement of a “dynamic” comparator — we certainly did not use that word. See ⅛ And we see no basis for reading such a restriction into the phrase “managed allocation funds,” either in our opinion or in the investment policy statement we took it from. According to the minutes of the meetings where the changes to the investment options were considered, both times Cutler briefed the Pension Review Committee about managed allocation funds he “not[ed] that there were two types: static and dynamic.” So while dynamic target-date funds are one kind of managed allocation fund, they are not the only one. Indeed, absent other evidence of a more limited technical definition, as a matter of plain meaning the Wellington Fund itself would appear to be a static managed allocation fund — a portfolio manager actively monitors how its assets are allocated, keeping the overall mix of investments roughly constant but selecting the stocks, bonds, and other securities it holds at any given time.

Second, it is a mistake to argue, as the ABB fiduciaries and SIFMA do, that measuring any portion of the losses by comparing the returns from the Freedom Funds with what the plans would have earned from the Wellington Fund is necessarily inappropriate because it involves “an apples-to-oranges comparison.” True, the funds are designed for different purposes and thus choose their investments differently, so there is no reason to expect them to make similar returns over any given span of time. But the point of the comparison here would just be to determine, as a factual matter, the effect of owning one fund rather than the other. The reason for any difference in returns would be immaterial.

This is not to say we are sure a comparison with the returns on the Wellington Fund must be part of measuring what the ABB fiduciaries’ breach cost the plans, just that we are unpersuaded by these two arguments against it and do not want them to unduly occupy the parties and the district court on remand. The measure and amount of the plans’ losses remain for the district' court to resolve. See generally Martin v. Feilen, 965 F.2d 660, 671-72 (8th Cir. 1992) (insisting the district court perform its “function ‘to fashion the remedy best suited to the harm’ ” even though the plaintiff had “presented only an unsound ... damage theory,” and explaining “the measure of such damages need not be exact — ‘it will be enough if the evidence show [sic] the extent of the damages as a matter of just and reasonable inference, although the result be only approximate’ ” (first quoting Garnatz v. Stifel, Nicolaus & Co., 559 F.2d 1357, 1360 (8th Cir. 1977); and then quoting Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563, 51 S.Ct. 248, 75 L.Ed. 544 (1931))).

B. Attorney Fees

In light of that disposition, we again vacate the award of attorney fees and remand for the district court to adjust the award as appropriate if the participants ultimately prevail on the liability issue. What happens on remand cannot change the outcome of the first appeal. Therefore, we need not wait to review the portion of the fee award corresponding to appellate work. The ABB fiduciaries urge us to conduct this analysis de novo. There is no reason for deference to the district court’s determinations, they explain, because the district court had no particular familiarity with what happened on appeal — if any court has special insight into the work involved, it is ours. We note the district court is still significantly more experienced than we are when it comes to analyzing and awarding attorney fees as a general matter, even if it did not see this part of the litigation firsthand. Questions of relative expertise notwithstanding, our case law is certain that when a district court’s fee award is for work on appeal, “we review its amount for abuse of discretion.” Little Rock Sch. Dist. v. Arkansas, 127 F.3d 693, 697 (8th Cir. 1997).

The main justification the ABB fiduciaries give for reducing the fee award is that it was based on hourly rates the district court drew from another large ERISA case involving the same plaintiffs’ law firm, Abbott v. Lockheed Martin Corp., No. 06-cv-701, 2015 WL 4398475 (S.D. Ill. July 17, 2015), which the ABB fiduciaries say were too high. They emphasize that the fee request in the other case was unopposed — the case had settled, the award was to come out of the settlement pot, and there was no meaningful objection from the plaintiffs’ .class — and the amount was initially set as a percentage of the total recovery, with the hourly rates serving only as a check on the product of that calculation. See id. at *1-3. Wherever the rates originally came from, a federal judge, relying on the findings of a special master, reviewed them and specifically concluded they were “reasonable and consistent with market rates.” Id. at *3-4. The ABB fiduciaries do not counter the participants’ showing with any contrary evidence affirmatively suggesting the rates are excessive, consequently,' we are satisfied the district court’s use of them was not an abuse of discretion.

The ABB fiduciaries also emphasize the participants’ lawyers won on only one issue (out of three) before' this court and accuse them of spending too much time on the appeal. The district court acknowledged both points and reduced the amount it calculated based on the hourly rates by about a third to account for them. We cannot say it was an abuse of discretion not to reduce it further.

Finally, we agree with the ABB fiduciaries that we can review and correct the incentive awards the district court ordered for the three named plaintiffs. The awards — $25,000 each — should be paid out of the class recovery, not by the ABB fiduciaries on top of the other amounts they owe. This might well be the result the district court intended — it is what the district court ordered in its original award, which its order on remand claimed to be simply “reaffirming]” on this point. And it makes sense. Incentive awards compensate lead plaintiffs for their work and the benefit they have conveyed on the rest of the class. See, e.g., Koenig v. U.S. Bank Nat’l Ass’n, ND (In re US Bancorp Litig.), 291 F.3d 1035, 1038 (8th Cir. 2002). There is no sound reason to make defendants pay for these awards.

III. CONCLUSION

The district court did not err in deciding that the ABB fiduciaries abused their discretion and breached their fiduciary duties by acting on improper motives when they replaced the Wellington Fund with the Freedom Funds as investment options for the plans. But the district court should have decided for itself how to measure what the plans lost as a result, rather than considering itself bound by our prior comments on the issue. That question is still for the district court to answer in the first instance, so the judgment in favor of the ABB fiduciaries is at best premature. We therefore vacate the judgment, vacate the award of attorney fees and costs, and remand the case for further proceedings.

      . Our prior opinion recounts the facts of the case more completely. See Tussey, 746 F.3d at 330-33. Here, we focus on what is relevant to this appeal.

      . We accept the parties' representations that the differences between the two plans at issue — one for ABB’s unionized employees, one for the others — are irrelevant here.

      . At the end of its order, the district court reassured the participants that “[i]f the Court has misread the Eighth Circuit, its decision ... can be corrected on appeal.” Thus, here we are.

      . The ABB fiduciaries, along with the Securities Industry and Financial Markets Association (SIFMA) as amicus curiae, also point out that some parts of the district court’s reasoning suggest it took a dim view of target-date funds in general, relative to more traditional funds like Wellington, perhaps based on hindsight bias and a failure to appreciate the differences between the two kinds of products. We agree that simply comparing upfront costs or looking back at the funds’ earnings after the fact would not have been a valid way to determine whether choosing the Freedom Funds over Wellington was prudent. But the district court explicitly recognized that “[t]he relative performance of the Freedom Funds and the Wellington Fund is only relevant to determine whether a loss was sustained by the Plan,” not whether there was a breach in the first place, and that "a non-conflicted fiduciary could have chosen the Freedom Funds,” so we are satisfied any misunderstanding did not affect the district court's findings.

      . Such a breach might not be actionable, if it truly did not change the result and thus did not cause any harm, but that is a separate question. See Roth v. Sawyer-Cleator Lumber Co., 16 F.3d 915, 919 (8th Cir. 1994).

      . The ABB fiduciaries also invoke the rules that one panel of this court cannot overrule another, see, e.g., Maxfield v. Cintas Corp., No. 2, 487 F.3d 1132, 1135 (8th Cir. 2007), and that the district court must strictly obey our mandate, see, e.g., Bethea v. Levi Strauss & Co., 916 F.2d 453, 456 (8th Cir. 1990). Those theories boil down to the same thing as the "law of the case” argument, namely an insistence that our statement amounted to a definitive ruling on how to measure losses from the breach.

      . The ABB fiduciaries urge us to disregard this contrast in phrasing because in 1899 another court of appeals considered itself bound by a statement of law in a Supreme Court decision even though it contained the words “it would seem.” See Anderson v. Reid, 14 App.D.C. 54, 81-82 (D.C. Cir. 1899). We do not mean to suggest such qualifications automatically render any statement to which they are attached nonbinding. Yet they are not always superfluities either. Like any other words in a judicial proclamation, they must be read and understood in context.

      . By the same logic, making the comparison would not imply a (mistaken) view that whichever fund earned more over the relevant time frame "should” have been offered to the participants, or even that it performed "better” in a meaningful sense. Not only can good bets go bust and bad bets hit the jackpot, but some investments are simply meant to pay off less than others, in return for lower risks, different exposures, or countless other considerations.

      . We dismiss as moot the participants’ motion to strike a portion of the ABB fiduciaries’ reply brief, because the challenged passages concern an issue we do not reach.