author: McKEE, Chief Judge

text:
    UNITED STATES of America v. Maximo MATEO-MEDINA a/k/a David Contreras a/k/a Luis Nieves a/k/a Joseph Robles, Appellant
    No. 15-2862
    United States Court of Appeals, Third Circuit.
    Submitted Pursuant to Third Circuit L.A.R. 34.1(a), April 18, 2016
    (Filed: January 9, 2017)

      Brett G. Sweitzer, Esq., Federal Community Defender, Office for the Eastern District of Pennsylvania, 601 Walnut Street, The Curtis Center, Suite 540 West, Philadelphia, PA 19106, Counsel for Appellant
    Bernadette A. McKeon, Esq., Clare P. Pozos, Esq., Office of United States Attorney, 615 Chestnut Street, Suite 1250 Philadelphia, PA 19106, Counsel for Appellee

      Before: McKEE, Chief Judge, FUENTES, and ROTH, Circuit Judges

      . Judge Theodore McKee concluded his term as Chief of the United States Court of Appeals for the Third Circuit on September 30, 2016. Judge Brooks Smith became Chief Judge on October 1, 2016.

   OPINION OF THE COURT

McKEE, Chief Judge

Maximo Mateo-Medina appeals his sentence of twelve months plus one day imprisonment for illegally reentering the United States, in violation of 8 U.S.C. § 1326(a) and (b)(1). Although Mateo-Med-ina pled guilty to the offense, he now appeals the sentence, arguing that the sentencing court violated his Due Process Clause rights by impermissibly considering, among other things, arrests that did not result in convictions. The Presentence Investigation Report (PSR) that disclosed those arrests did not contain any of the underlying conduct. For the reasons set forth below, we agree and we will therefore vacate the sentence that was imposed and remand for resentencing.

I. Factual & Procedural Background

Mateo-Medina, a citizen of the Dominican Republic, was initially deported from the United States in December 2012 after being convicted of unlawfully obtaining a U.S. passport and serving a five-month sentence for that offense. Shortly after he was deported, his common law wife, Milagros Rasuk, a U.S. citizen with whom Ma-teo-Medina had been residing for fifteen years prior to his deportation, was diagnosed with terminal colon cancer. Rasuk had two adult children from a prior marriage, both of whom had become drug addicts, and one of whom, Miguel, resided with Mateo-Medina and Rasuk. Rasuk’s oldest son, Risdael, who suffers from mental health issues, had his own child, Angel. No doubt because of Risdael’s drug addiction, he abandoned Angel for all practical purposes, and Angel was raised by Mateo-Medina and Rasuk.

When Mateo-Medina received word that Rasuk had been diagnosed with terminal cancer, he returned to the United States to care for her during her final months of life. She died in February 2014. Angel was no older than eleven when his grandmother, Rasuk, died. Mateo-Medina continued to care for Angel and became his sole caretaker following Rasuk’s death.

According to Mateo-Medina, Miguel’s continued presence in the household became increasingly disruptive and problematic following Rasuk’s death because of Miguel’s involvement with drugs and alcohol. Mateo-Medina claims that when he (Mateo-Medina) attempted to intercede and confront Miguel about his behavior, Miguel reported Mateo-Medina to the immigration authorities, informed them of his illegal reentry, and kicked Mateo-Medina out of the home.

Miguel’s strategy apparently worked because Mateo-Medina was subsequently arrested and charged with illegal reentry. He thereafter pled guilty to one count of reentry after removal in violation of 8 U.S.C. § 1326(a) and (b)(2).

Mateo-Medina’s PSR calculated his offense level at ten, and his criminal history category was II. This resulted in a recommended sentence of eight to fourteen months’ imprisonment. The PSR noted that Mateo-Medina had two previous convictions, one for driving under the influence in 2000, and one for fraudulently applying for a United States passport in 2012. Mateo-Medina was arrested under a different alias each time. The PSR also noted that Mateo-Medina had “numerous” arrests that did not lead to conviction. Aside from the arrests leading to his two convictions, Mateo-Medina had been arrested six other times. However, each of the charges involved in his arrests had been withdrawn or dismissed, except for one which lacked a recorded disposition. As we noted earlier, the PSR did not describe any of the underlying conduct purportedly leading to those arrests.

Mateo-Medina argued for a downward departure from the suggested eight to fourteen-month guideline range. The District Court did depart downward one level. The court adjusted Mateo-Medina’s Guidelines range downward to six to twelve months’ imprisonment based on an offense level of nine and a criminal history category of II. At the sentencing hearing, both the prosecutor and the defense argued for a sentence of time served, which would have been equivalent to roughly six months, or the lower end of the Guidelines range. In spite of this, the District Court sentenced Mateo-Medina to twelve months plus one day, followed by two years of supervised release.

In calculating Mateo-Medina’s sentence, the District Court relied on the relevant factors in 18 U.S.C. § 3553(a) and information contained in the PSR. Significantly, the District Court also relied in part on Mateo-Medina’s record of arrests that did not lead to conviction. The court explained:

I also cannot overlook the defendant’s rather extensive and I think we all have our own barometer of what is extensive versus what is not extensive interaction with the criminal justice system. But there were as I counted, I believe seven arrests, two convictions in three states since 1988. So, the defendant who was in this country initially illegally since at least the 80s has engaged in conduct which to the Court’s view belied and made ring hollow a little bit his desire to merely come to America to seek a better life.

II. Standard of Review

As a threshold matter, the parties disagree on the applicable standard of review. The Government argues that, because Mar teo-Medina’s objection to the District Court’s statement regarding the defendant’s prior arrest record was not preserved at sentencing, it is reviewed for plain error. Under that standard, Mateo-Medina would bear the burden of establishing the District Court committed plain error. This, the Government urges, Ma-teo-Medina has failed to do because, even if he could show plain error, he cannot show that it affected the outcome of the proceedings.

Mateo-Medina counters that he did indeed preserve the issue, and review should therefore be plenary. Mateo-Medi-na points out that counsel objected to the inclusion of the arrest record in the PSR and at the sentencing hearing. He claims that the District Court understood the objection as an attempt to exclude the arrests as a sentencing consideration, and overruled it based on the court’s (erroneous) view that arrests are “appropriate for the Court to consider [ ] under the statutory [sentencing] factors.” Thus, in response to a defense objection, the District Court expressly ruled on the exact issue Mateo-Medina raises on appeal. Mateo-Medina argues that this amounts to preservation, not forfeiture. We need not address whether Mateo-Medina preserved his objection at sentencing because our precedent clearly demonstrates that a district court’s consideration, even in part, of a bare arrest record is plain error.

III. Discussion

A. Error

Our review of a criminal sentence “proceeds in two stages.” First, we review for procedural error, “such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.” Under the plain error standard, a defendant must show: (1) error, (2) that is plain or obvious, and (3) that affects a defendant’s substantial rights. “If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” If we find procedural error “our preferred course is to remand the case for resentencing, without going any further.” In the absence of procedural error, we will then determine whether the sentence imposed was substantively reasonable. When reviewing for substantive reasonableness, “we will affirm [the sentence] unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.”

Mateo-Medina relies on our opinion in United States v. Berry to argue that the District Court plainly erred in considering his bare record of arrests not leading to conviction when imposing his sentence. There, the sentencing judge considered the relevant factors under 18 U.S.C. § 3553(a) but also speculated about the reasons why the defendants’ robbery charges had been nol prossed. In the process, the prosecutor misread the PSR regarding Berry’s bald arrest record.

The sentencing judge also inflated the defendant’s propensity for crime by speculating that it was “rather obvious that the reason he doesn’t have any actual adult convictions is because of the breakdowns in the court — in the state court system— and not because of innocence.” The court also considered appropriate factors under Section 3553(a) such as the seriousness of the crimes of conviction. However, in imposing the sentence on Berry and his code-fendant, the court explained:

Taking all those factors in to account, given the fact that their criminal points ... I don’t think reflect quite adequately, the seriousness of their criminal exposure in the past. The fact that they were charged with crimes and then, the prosecution was dropped because nobody showed up to prosecute or something like that, means that their criminal history points were probably understated.

Berry appealed, arguing that the district court should not have considered, even in part, his bald arrest record, when those arrests did not lead to a conviction. He also argued that the sentencing court erred in speculating about why some prior charges were nol prossed and assuming he was guilty of offenses that were dismissed. Because neither Berry nor his codefendant objected during sentencing, we reviewed for plain error. We specifically noted as a threshold matter “that resentencing would be required here even without the district court’s speculation about the reasons for prior charges being nol prossed because of the misstatement of the defendant’s arrest record and the district court’s misreading of the PSRs.” Further, we explained:

A defendant cannot be deprived of liberty based upon mere speculation. We therefore follow the reasoning of the majority of our sister appellate courts and hold that a bare arrest record— without more — does not justify an assumption that a defendant has committed other crimes and it therefore cannot support increasing his/her sentence in the absence of adequate proof of criminal activity.

Here, the District Court also not only considered but misstated Mateo-Med-ina’s prior arrests. While the District Court considered a host of relevant factors under Section 3553(a), it also erroneously and puzzlingly relied on his misstated bald arrest record, stating:

I also cannot overlook the defendant’s rather extensive and I think we all have our own barometer of what is extensive versus what is not extensive interaction with the criminal justice system. But there were as I counted, I believe seven arrests [actually six], two convictions in three states since 1988.

The Government argues that these statements indicate only the District Court’s doubt as to Mateo-Medina’s credibility in stating his reasons to return to the United States, not his criminal nature, a point that the government terms the “crucial” distinguishing factor between Berry and this case. However, Mateo-Medina had only two convictions in the United States since 1988; one was a fifteen-year-old DUI, and the other was for the passport violation for which he was deported in 2012. It strains credulity to argue, as the Government does, that the sentencing court was referring only to these two convictions as an extensive interaction with the criminal justice system.

Accordingly, we conclude that, given our holding in Berry, the District Court’s consideration of Mateo-Medina’s record of pri- or arrests that did not lead to conviction was plain error under the circumstances here.

The Government next argues that: It was certainly not unreasonable for the district court to consider that persons genuinely occupied with the care of a terminally ill relative and a child typically do not have numerous interactions with the criminal justice system.

This argument is both irrelevant and illogical. It assumes that one in Mateo-Medina’s circumstance who is caring for a terminally ill relative does not venture outside the confínes of the home — a nonsensical proposition. It also ignores the rationale that we clearly explained in Berry:

[R]eliance on arrest records may also exacerbate sentencing disparities arising from economic, social and/or racial factors. For example, officers in affluent neighborhoods may be very reluctant to arrest someone for behavior that would readily cause an officer in the proverbial “high crime” neighborhood to make an arrest. A record of a prior arrest may, therefore, be as suggestive of a defendant’s demographics as his/her potential for recidivism or his/her past criminality.

Since we wrote Berry, substantial research and commentary has only reinforced the regrettable circumstances that we emphasized in disallowing consideration of bare arrest records at sentencing. In 2018, The Sentencing Project released a shadow report to the United Nations Human Rights Committee, Regarding Racial Disparities in the United States Criminal Justice System (Sentencing Project Report). The Sentencing Project Report pointed to a wide body of scholarship indicating that socioeconomic factors influenced disparities in arrest rates.

The Sentencing Project Report also remarked on recent research indicating that police are more likely to stop, and arrest, people of color due to implicit bias. Implicit bias, or stereotyping, consists of the unconscious assumptions that humans make about individuals, particularly in situations that require rapid decision-making, such as police encounters. “Extensive research has shown that in such situations the vast majority of Americans of all races implicitly associate black Americans with adjectives such as ‘dangerous,’ ‘aggressive,’ ‘violent,’ and ‘criminal.’ ”

In addition, a recent empirical study analyzed thirteen years’ worth of data on race, socioeconomic factors, drug use, and drug arrests. The study found that African-Americans, Hispanics, and whites used drugs in roughly the same percentages, and in roughly the same ways. The study controlled for variables such as whether the participant lived in high-crime, gang-controlled areas. Despite those controls, the study concluded that “in early adulthood, race disparities in drug arrest[s] grew substantially; as early as age 22, African-Americans had 83% greater odds of a drug arrest than whites and at age 27 this disparity was 235%.” With respect to Hispanics, the study found that socioeconomic factors such as residing in an inner-city neighborhood accounted for much of the disparity in drug arrest rates.

Accordingly, we conclude here, as we did in Berry, that the District Court plainly erred when it considered Mateo-Medina’s bare arrest record when imposing sentence.

B. Substantial Rights

Having concluded that the sentencing court committed plain error in considering Mateo-Medina’s record of prior arrests, we turn next to the question of whether the error violated Mateo-Medina’s substantial rights. As explained in United States v. Marcus, errors that violate substantial rights “[i]n the ordinary case” must be “ ‘prejudicial,’ which means that there must be a reasonable probability that the error affected the outcome of the trial.”

Here, as we have explained, the sentencing court erroneously considered Mateo-Medina’s bare arrest record when determining the length of his sentence. It did so in spite of the prosecution and defense counsel agreeing to a lighter sentence and in spite of Mateo-Medina’s minimal record of only two prior convictions for nonviolent offenses since the 1980s. We realize that the sentencing court also referenced numerous other factors that were appropriate to consider in deciding upon Mateo-Medina’s sentence. However, that is no more palliative here than it was in Berry. The District Court’s determination of an appropriate sentence for Mateo-Medina was nevertheless influenced by the impermissible consideration of Mateo-Medina’s arrest record. We think it highly unlikely that the court was thereafter able to unr-ing the bell when considering the guidelines or the factors contained in Section 3553(a). As we said in Berry, “The guidelines are, after all, purely advisory, and unsupported speculation about a defendant’s background is problematic whether it results in an upward departure, denial of a downward departure, or causes the sentencing court to evaluate the § 3553(a) factors with a jaundiced eye.” Here, for example, the sentencing court stated that Mateo-Medina’s prior interactions with the police made his statement that he came to the United States to seek a better life “ring hollow.” We therefore conclude that the court’s improper consideration of his bare arrest record affected the entire sentencing hearing and resulted in prejudicial error.

Finally, calculating a person’s sentence based on crimes for which he or she was not convicted undoubtedly undermines the fairness, integrity, and public reputation of judicial proceedings.

Thus, all four plain error factors are met here, and resentencing is required.

IY. Conclusion

For the foregoing reasons, we will remand the matter to the District Court for resentencing.

      . Mateo-Medina’s mother, who was also a United States citizen, died of lung cancer 10 months later.

      .Angel's therapist credits Mateo-Medina with providing a "stable, reliable, loving environment,” for Angel following Rasuk’s death. Appellant’s Br, at 6 (citing J.A. at 68).

      . PSR at ¶ 6.

      . While this sentence was technically an upward variance from the Guidelines range of six to 12 months, the sentencing court explained that imposing a sentence greater than one year would make Mateo-Medina eligible for “good time credit” which could reduce his term of imprisonment by 54 days (15%). 18 U.S.C. § 3624(b)(1).

      . J.A. at 115 (emphasis added).

      . We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

      . Gov’t Br. at 12; see also United States v. Flores-Mejia, 759 F,3d 253, 256 (3d Cir. 2014) (en banc); United States v. Couch, 291 F.3d 251, 252-54 (3d Cir. 2002).

      . Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997).

      . Appellant’s Br. at 3, 12 n.7.

      . J.A. at 100.

      . See United States v. Berry, 553 F.3d 273, 281-84 (3d Cir. 2009).

      . United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc).

      . Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).

      . United States v. Goodson, 544 F.3d 529, 539 (3d Cir. 2008) (citations omitted).

      . Id. (quoting Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (citation omitted)).

        .United States v. Merced, 603 F.3d 203, 214 (3d Cir. 2010) (citation omitted). However, on rare occasions, we have chosen to proceed to the second step of the analysis, substantive reasonableness, despite finding procedural error. See United States v. Lychock, 578 F.3d 214, 219-20 (3d Cir. 2009). We find Lychock to be the exception rather than the rule, as that case concerned a defendant who was found guilty of possessing over 150 images of child pornography, but who received no jail term at sentencing, and where the district court provided no reasonable rationale for its actions.

      . Tomko, 562 F.3d at 568.

      . 553 F.3d 273 (3d Cir. 2009).

      . Berry, 553 F.3d at 277.

      . Id.

      . Id. at 279.

      . 553 F.3d at 279.

      . Id. at 280.

      . Id. at 284.

      .Although 18 U.S.C. § 3661 provides that ‘‘[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted for an offense which a court in the United States may receive and consider for the purpose of imposing an appropriate sentence," such information must be reliable. See Berry, 553 F.3d at 279-80 (explaining that facts considered at sentencing must be proved by preponderance of the evidence to satisfy requirements of Due Process Clause). As explained more fully herein, the bare arrest record relied on by the District Court in this case does not meet this requirement of reliability.

      . J.A. at 115.

      . Gov't Br. at 17.

      . Gov’t Br. at 19.

      . Berry, 553 F.3d at 285 (citing Barbara Bennett Woodhouse, Youthful Indiscretions: Culture, Class Status, and the Passage to Adulthood, 51 DEPAUL L. REV. 743 (2002); Jane W. Gibson-Carpenter & James E. Carpenter, Race, Poverty, and Justice: Looking Where the Streetlight Shines, 3-SPG Kan. J.L. & Pub. Poly 99, 101 (1994) ("Police officers who have worked in many types of neighborhoods acknowledge that they call home to middle-class parents more readily. Between suburban and urban departments, the difference can be even more striking. A department of college-educated officers in a suburb of Minneapolis in the 1970s went so far as to invite parents and children into the station to discuss their problems confidentially, with virtual immunity from formal handling.'')).

      . The Sentencing Project, Report of The Sentencing Project to the United Nations Human Rights Committee Regarding Racial Disparities in the United States Criminal Justice System (August 2013), available at http://sentencing project.org/wp-conten1/uploads/2015/12/Race- and-Justice-Shadow-Report-ICCPR.pdf (hereinafter Sentencing Project Report).

      . Sentencing Project Report at 3.

      . Id. at 3-4.

      . Id. at 4 (internal citations omitted).

      . Ojmarrh Mitchell & Michael S. Caudy, Examining Racial Disparities in Drug Arrests, Justice Quarterly (Jan. 2013), available at http://dx.doi.org/10.1080/07418825.2012. 761721.

      . Id. at 22 ("Contrary to popular explanations of racial disparities in drug arrest[s], this research found that the racial disparity in drug arrests between black and whites cannot be explained by race differences in the extent of drug offending, nor the nature of drug offending. In fact, in this sample, African-Americans (and Hispanics) were no more, and often less, likely to be involved in drug offending than whites. Further, while minorities were more likely to live in the kinds of neighborhoods with heavy police emphasis on drug control and living in such neighborhoods had a strong relationship to drug arrest; neighborhood context explained only a small portion of racial disparity in drug arrests between African-Americans and whites.”)

      . Id.

      . Id.

      . 560 U.S. 258, 130 S.Ct. 2159, 176 L.Ed.2d 1012 (2010).

      . Id. at 262, 130 S.Ct. 2159 (citations omitted).

      . 553 F.3d at 281 (citing United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)).

      . J.A. at 115.

      .While Mateo-Medina has finished his term of incarceration, he remains subject to the remainder of his two-year term of supervised release, with all of the restrictions that supervised release entails. We are confident that resentencing that accurately reflects Mateo-Medina’s minor criminal history will afford him some relief from those restrictions.


source: Caselaw Access Project

author: BARBARA MILANO KEENAN, Circuit Judge:

license: Public Domain

text:
    QINETIQ US HOLDINGS, INC. & SUBSIDIARIES, PetitionerAppellant, v. COMMISSIONER OF INTERNAL REVENUE, RespondentAppellee.
    No. 15-2192
    United States Court of Appeals, Fourth Circuit.
    Argued: October 26, 2016
    Decided: January 6, 2017

      ARGUED: Gregory G. Garre, Latham & Watkins LLP, Washington, D.C., for Appellant. Ellen Page DelSole, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF: Gerald A. Kafka, Benjamin W. Snyder, Nicolle Nonken Gibbs, Latham & Watkins LLP, Washington, D.C., for Appellant. Caroline D. Cirao-lo, Acting Assistant Attorney General, Diana L. Erbsen, Deputy Assistant Attorney General, Gilbert S. Rothenberg, Teresa E. McLaughlin, Tax Division, United States Department of Justice, Washington, D.C., for Appellee.
    Before KING, KEENAN, and DIAZ, Circuit Judges.
   Affirmed by published opinion. Judge KEENAN wrote the opinion, in which Judge KING and Judge DIAZ joined.

BARBARA MILANO KEENAN, Circuit Judge:

This appeal from a decision of the United States Tax Court (the tax court) involves the federal income tax treatment of shares of stock issued to an executive employee of Dominion Technology Resources, Inc. (DTRI), around the time of DTRI’s founding. The company’s successor in interest, QinetiQ U.S. Holdings, Inc. & Subsidiaries (QinetiQ), contends that the stock was issued in connection with the executive’s employment and was subject to a substantial risk of forfeiture until 2008. On this basis, QinetiQ argues that it is entitled to a tax deduction for the value of the stock as a trade or business expense in the tax year ending March 31, 2009.

After reviewing QinetiQ’s tax return, the Internal Revenue Service (IRS) issued a Notice of Deficiency concluding that Qine-tiQ had not shown its entitlement to the claimed deduction. QinetiQ later filed suit in the tax court, raising both a procedural and a substantive argument. QinetiQ argued that the IRS failed to give a reasoned explanation in the Notice of Deficiency for denying the tax deduction. QinetiQ also argued that the stock qualified as a deductible trade or business expense in tax year 2008, because the stock was issued in connection with services and was subject to a substantial risk of forfeiture until that year. The tax court rejected the procedural argument, holding that the Notice of Deficiency provided.sufficient explanation. The tax court also held that QinetiQ failed to show that the stock was issued in connection with services and was subject to a substantial risk of forfeiture. Accordingly, the tax court entered judgment in favor of the IRS.

Upon our review, we conclude that the IRS complied with all applicable procedural requirements in issuing the Notice of Deficiency to QinetiQ. We further hold that the tax court did not err in concluding that the stock failed to qualify as a deductible expense for the tax year ending March 31, 2009, because the stock was not issued subject to a substantial risk of forfeiture. We therefore affirm the tax court’s judgment.

I.

In March 2002, Thomas G. Hume (Hume) formed “Thomas G. Hume, Inc.” as a corporation organized under the laws of Virginia. Hume was the sole shareholder, and served with his wife, Karyn Hume, as the initial directors of the corporation. Hume filed federal tax forms electing for the corporation to be treated as an “S corporation,” in order to permit the corporation’s profits and losses to be passed through to him individually. See 26 U.S.C. § 1366(b). Thomas G. Hume, Inc. appears not to have engaged in any business before November 2002.

In November 2002, Hume and Julian Chin took certain actions to facilitate Chin’s joining the business enterprise. On December 6, 2002, Hume and Karyn Hume, as directors, filed articles of amendment with the Commonwealth of Virginia changing the name of the corporation to Dominion Technology Resources, Inc. and creating two classes of shares, class A voting stock and class B nonvoting stock. The next day, Karyn Hume resigned from DTRI’s board of directors, leaving Hume as the sole director. On December 9, 2002, Hume paid a par value of $450 in exchange for 4,500 shares of DTRI class A voting stock, and Chin paid the same par value in exchange for 4,455 shares of DTRI class A voting stock and 45 shares of DTRI class B nonvoting stock.

On December 12, 2002, Hume executed a “Consent in Lieu of the Organizational Meeting of the Board of Directors of [DTRI]” (December Consent), which offered for sale and issuance 4,500 shares of class A stock to Hume, and 4,455 shares of class A and 45 shares of class B stock to Chin. Attached to the December Consent were letters signed by Hume and Chin acknowledging their intent to subscribe to the stated stock shares. Also included in the December Consent was authorization for DTRI to enter into a Shareholders Agreement and employment agreements with Hume and Chin. In a separate paragraph, the December Consent further authorized DTRI to enter into individual employment agreements and restrictive stock agreements with other employees.

The Shareholders Agreement entered into by DTRI, Hume, and Chin stated that the parties

believe that it is in their mutual best interest to make provisions for the future disposition of all of the shares of common stock of the Corporation to the end that continuity of harmonious management is assured, and a fair process is established by which said shares of common stock may be transferred, conveyed, assigned or sold[.]

To that end, the Shareholders Agreement prescribed provisions for restricting the sale or transfer of stock and for returning stock to the corporation in the event of either Hume’s or Chin’s death, disability, or termination of employment with DTRI.

The Shareholders Agreement contained provisions for calculating the “Agreement Value” of the shares upon the occurrence of any of these events, and gave the corporation the option of repurchasing Hume’s or Chin’s shares at the calculated value in the event of such death, disability, or termination without cause. Additionally, in the event of voluntary resignation by the employee, the Shareholders Agreement provided DTRI the option of purchasing the shares at 5% of the Agreement Value for every year of the departing employee’s employment, up to a maximum of 100% after twenty years. However, in the event that the employee voluntarily resigned and engaged in competition with DTRI, or that DTRI terminated the employee for cause, the corporation would have the option to purchase the shares at 5% of the Agreement Value for every year of employment, up to a maximum of 25% of the Agreement Value.

Also in December 2002, DTRI entered into stock agreements with other employees that were far more restrictive than the terms of the Shareholders Agreement executed by Hume and Chin. The stock agreements with the other employees contained greater limitations on the transfer of stock and a less generous method for calculating stock value for purposes of DTRI’s repurchase of a departing employee’s stock. Also, unlike Hume and Chin, the other employees did not receive any voting rights in the stock they received.

DTRI entered into employment agreements with Hume, Chin, and other employees in December 2002. The employment agreements with Hume and Chin bore no reference to stock issued as compensation. In contrast, the employment agreements for the other employees who received stock in December 2002 explicitly referenced, under a contract section labeled “Compensation,” nonvoting stock that was issued subject to restrictions.

DTRI, Hume, and Chin filed yearly tax documents treating DTRI as a pass-through entity between tax years 2002 and 2006, with Hume and Chin identified as the shareholders. In DTRI’s tax filings from 2002 to 2006, DTRI allocated its net income or loss to Hume and Chin, based on their respective percentage of stock ownership in DTRI in each taxable year. In December 2006, DTRI revoked its S corporation election, effective January 1, 2007, From 2002 through 2007, DTRI did not report the stock issued in 2002 to Hume and Chin as employment compensation, and therefore did not withhold federal payroll taxes on the issued stock. In contrast, DTRI, Hume, and Chin reported as employment compensation shares later granted to Hume and Chin.

In 2008, QinetiQ entered into negotiations to purchase DTRI. On August 4, 2008, QinetiQ, Project Black Acquisition Corp., DTR.I, Hume, and Chin entered into a final agreement and plan of merger, with QinetiQ paying $123 million in exchange for all outstanding stock in DTRI. Immediately before the transaction closed, Hume and Chin executed consent agreements waiving DTRI’s rights with respect to stock transfer restrictions or partially vested stock. The merger transaction closed in October 2008.

For the tax year ending on March 31, 2009, QinetiQ withheld payroll taxes in accordance with the value of the stock received by Hume and Chin in 2002, and claimed deductions under 26 U.S.C. § 83(h), as wages paid to Hume and Chin for the fair market value of the shares originally issued to them in December 2002. Hume and Chin filed personal income tax returns for tax year 2008 claiming as wage income the 2008 value of their respective shares issued in December 2002.

The IRS transmitted to QinetiQ a Notice of Deficiency stating that the IRS had determined that QinetiQ “ha[d] not established that [it was] entitled” to a deduction “under the provisions of [26 U.S.C.] § 83,” and that QinetiQ’s taxable income for the year thereby was increased by “$117,777,-501.” The IRS did not give a further explanation of its decision in its Notice of Deficiency.

QinetiQ filed a petition in the tax court challenging the sufficiency of the Notice of Deficiency, as well as the IRS’s substantive determination with respect to Chin’s shares. The tax court ruled that QinetiQ had not demonstrated entitlement to the deduction on two independent bases, namely, that the stock was not property “transferred in connection with the performance of services” and was not “subject to a substantial risk of forfeiture” at the time Chin acquired the shares. QinetiQ appeals from the tax court’s judgment.

II.

We first address QinetiQ’s argument that the Notice of Deficiency is invalid because it failed to provide a reasoned explanation for the agency’s final decision, as required by the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-06. This issue presents a question of law that we consider de novo. Starnes v. Comm’r, 680 F.3d 417, 425 (4th Cir. 2012).

A.

The APA authorizes district courts to review agency actions with a “focal point” on the “administrative record already in existence.” Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) (per curiam). The Supreme Court has held that a required component of this administrative record is a “reasoned explanation for [the agency] action.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515-16, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009). QinetiQ anchors its argument on this principle, maintaining that this requirement of a reasoned explanation necessarily applies to a Notice of Deficiency, because that notice is a final agency action within the meaning of the APA. Thus, according to QinetiQ, failure by the IRS to comply with this APA requirement rendered the Notice of Deficiency invalid.

We disagree with QinetiQ’s argument, which fails to consider the unique system of judicial review provided by the Internal Revenue Code for adjudication of the merits of a Notice of Deficiency. It is that specific body of law, rather than the more general provisions for judicial review authorized by the APA, that governs the content requirements of a Notice of Deficiency.

Under the APA, the “task of the reviewing court is to apply the appropriate APA standard of review ... to the agency decision based on the record the agency presents to the reviewing court.” Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743-44, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985) (internal citation omitted). The reviewing court in such a case generally is not authorized to conduct a de novo evaluation of the record or to “reach its own conclusions” regarding the subject matter before the agency. Id. at 744, 105 S.Ct. 1598.

Some agency-specific statutes, however, provide materially different procedures for judicial review that predate the APA’s enactment. One such example is the Internal Revenue Code (the Code), which authorizes de novo review in the tax court of a Notice of Deficiency. See 26 U.S.C. § 6214; Eren v. Comm’r, 180 F.3d 594, 597 (4th Cir. 1999). We discussed this unique system of judicial review in our decision in O’Dwyer v. Commissioner, 266 F.2d 575 (4th Cir. 1959). We explained that because the Code’s provisions for de novo review in the tax court permit consideration of new evidence and new issues not presented at the agency level, those provisions are incompatible with the limited judicial review of final agency actions allowed under the APA. Id. at 580; see also 26 U.S.C. § 6214(a).

Additionally, we observe that for an agency action to be deemed “final” within the meaning of the APA and, thus, subject to the APA’s requirement of a reasoned explanation, the agency “action must be one by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 178, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (internal citation and quotation marks omitted). “[Ljegal consequences” include agency determinations that restrict the government’s power to take contrary litigation positions in subsequent proceedings. See U.S. Army Corps of Eng’rs. v. Hawkes Co., 136 S. Ct. 1807, 1814 (2016) (holding that agency determinations effectively giving a five-year “safe harbor” from government suits create “legal consequences” within the meaning of the Bennett test).

After issuing a Notice of Deficiency, however, the IRS may later assert in the tax court new legal theories and allege additional deficiencies. See 26 U.S.C. § 6214(a); Tax Ct. R. 142(a)(1). Likewise, a taxpayer may raise new matters before the tax court not previously considered during the administrative process. 26 U.S.C. § 6214(a). In contrast to these fluid procedures, the APA’s “arbitrary” and “capricious” standard requires that judicial review of an agency action be confined to the static administrative record with deference accorded to the agency’s decision, and that the agency action be final in all respects before judicial review commences. See 5 U.S.C. §§ 704, 706(2)(A); Pitts, 411 U.S. at 142, 93 S.Ct. 1241.

Given these significant variations in the scope of judicial review under the two statutory schemes, we conclude that the APA’s general procedures for judicial review, including the requirement of a reasoned explanation in a final agency decision, were not intended by Congress to be superimposed on the Internal Revenue Code’s specific procedures for de novo judicial review of the merits of a Notice of Deficiency. As the Supreme Court has emphasized, Congress did not intend for the APA “to duplicate the previously established special statutory procedures relating to specific agencies.” Bowen v. Massachusetts, 487 U.S. 879, 903, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988); see also Hinck v. United States, 550 U.S. 501, 506, 127 S.Ct. 2011, 167 L.Ed.2d 888 (2007) (“[I]n most contexts, a precisely drawn, detailed statute pre-empts more general remedies.”) (internal citation and quotation marks omitted). Accordingly, we hold that the APA’s requirement of a reasoned explanation in support of a final agency action does not apply to a Notice of Deficiency issued by the IRS and that, therefore, the Notice of Deficiency issued to QinetiQ in this case was not subject to that APA requirement.

B.

We next consider whether the Notice of Deficiency in this case was insufficient to satisfy the requirement of Section 7522(a) of the Code that the IRS “describe [in the Notice] the basis for, and identify the amounts (if any) of, the tax due, interest, additional amounts, additions to the tax, and assessable penalties.” 26 U.S.C. § 7522(a). The statute further provides that “an inadequate description under the preceding sentence shall not invalidate such notice.” Id. However, the statute is silent regarding the circumstances, if any, that will cause a Notice of Deficiency to be invalidated. Id.

Some federal courts of appeal have held that a Notice of Deficiency may be invalidated for the failure to include certain information. For example, before the 1988 enactment of Section 7522, we held that a Notice of Deficiency must contain a statement that the IRS has examined a return and has determined a deficiency in an “exact amount.” Abrams v. Comm’r, 787 F.2d 939, 941 (4th Cir. 1986). And, after the enactment of Section 7522, the Ninth Circuit implicitly has endorsed application of a rule that major errors in a Notice of Deficiency causing prejudice to a taxpayer will render that determination invalid. See Elings v. Comm’r, 324 F.3d 1110,1113 (9th Cir. 2003). Also, the Tenth Circuit has held that a Notice of Deficiency may not be used to implicitly deny without explanation a taxpayer’s request for discretionary relief. See Fisher v. Comm’r, 45 F.3d 396, 397 (10th Cir. 1995). In contrast, some of our sister circuits have held that minor, nonprejudicial flaws in a Notice of Deficiency will not cause such notice to be invalidated. Elings, 324 F.3d at 1113; Smith v. Comm’r, 275 F.3d 912, 915 & n.2 (10th Cir. 2001).

Upon consideration of this authority, we hold that the Notice of Deficiency issued to QinetiQ satisfied the basic requirements of the Internal Revenue Code. The Notice of Deficiency informed QinetiQ that the IRS had determined a deficiency in an exact amount for a particular tax year, and incorporated by reference an enclosed statement that “the deduction you claimed for Salaries and Wages in the amount of $117,777,501 under the provisions of [Code] § 83 is disallowed in full as you have not established that you are entitled to such a deduction.” The Notice of Deficiency further informed QinetiQ that it had the right to contest this deficiency determination in the tax court. In light of the taxpayer’s burden to show entitlement to a particular deduction, INDOPCO, Inc. v. Comm’r, 503 U.S. 79, 84, 112 S.Ct. 1039, 117 L.Ed.2d 226 (1992), we discern no prejudice to QinetiQ due to the absence of additional information in the Notice of Deficiency. Accordingly, we hold that its content was sufficient to satisfy the requirements of the Internal Revenue Code.

III.

Finally, we turn to the merits of QinetiQ’s claim that QinetiQ was entitled to a tax deduction in tax year 2008 for the stock Chin acquired from DTRI in 2002. In addressing this issue, we apply an established standard of review. Decisions of the tax court are subject on appeal to the same standard we apply to civil bench trials on appeal from the district courts. Estate of Waters v. Comm’r, 48 F.3d 838, 841-42 (4th Cir. 1995). Under this standard, we review factual findings for clear error, legal questions de novo, and mixed questions of law and fact de novo. Waterman v. Comm’r, 179 F.3d 123, 126 (4th Cir. 1999); Waters, 48 F.3d at 842.

QinetiQ argues that the stock Chin acquired from DTRI in 2002 qualified as a trade or business expense in 2008, because the stock was transferred “in connection with” Chin’s employment with DTRI, and was “subject to a substantial risk of forfeiture” until Chin sold the shares in 2008 as part of DTRI’s merger with QinetiQ. See 26 U.S.C. §§ 83(h), 162. The IRS responds that the tax court properly rejected Qine-tiQ’s claim because the evidence showed that Chin subscribed to the stock for investment, rather than in connection with his employment with DTRI, and that the stock was not issued subject to a substantial risk of forfeiture.

We agree with the IRS that the tax court did not err in rejecting QinetiQ’s claimed deduction. Section 83(a) of the Code, in relevant part, generally treats property transferred “in connection with the performance of services” as “gross income of the person who performed such services.” 26 U.S.C. § 83(a). Because a transfer of this nature is treated as gross income of the individual providing such services, the employer ordinarily is entitled to a deduction for the equivalent value as a trade or business expense. 26 U.S.C. §§ 83(h), 162(a).

This rule is modified, however, when property transferred “in connection with the performance of services” is “subject to a substantial risk of forfeiture.” 26 U.S.C. § 83(a). Property transferred under such circumstances is not treated as gross income of the individual providing services until the first taxable year in which the property was no longer subject to a substantial risk of forfeiture. Id. Therefore, an employer seeking to establish entitlement to a deduction for property transferred to an employee in a prior tax year must show both: (1) that the property was transferred “in connection with the performance of services”; and (2) that the property was “subject to a substantial risk of forfeiture” from the time the property was transferred until the tax year for which the deduction is claimed. Id.) see also Strom v. United States, 641 F.3d 1051,1055-56 (9th Cir. 2011); United States v. Bergbauer, 602 F.3d 569, 580 (4th Cir. 2010). Thus, if the employer fails to establish either of these two required elements, the employer is not entitled to claim the property transferred in an earlier tax year as a trade or business expense. See 26 U.S.C. §§ 83(a), 83(h), 162(a).

In the present case, the tax court found that QinetiQ had failed to prove either requirement for establishing its claimed deduction. We conclude that the record supports the tax court’s determination that the stock transferred to Chin in 2002 was not issued subject to a substantial risk of forfeiture. Because this factor is a required element of proof for establishing entitlement to the claimed deduction in the tax year in dispute, we limit our analysis to this single element and do not address the other statutorily required element that the stock have been transferred in connection with the performance of services.

Under Treasury regulations implementing Section 83(a), the term “substantial risk of forfeiture” is applied in the context of the “facts and circumstances” of each individual case. 26 C.F.R. § 1.83-3(c)(l). The relevant regulation further clarifies that property is not “subject to a substantial risk of forfeiture to the extent that the employer is required to pay the fair market value of such property to the employee upon the return of such property.” Id. In addition, property is not subject to a substantial risk of forfeiture if “at the time of the transfer the facts and circumstances demonstrate that the forfeiture condition is unlikely to be enforced.” Id. § 1.83— 3(c)(1), (3). Likewise, conditions imposed at the time of transfer that require the return of property “if the employee is discharged for cause or for committing a crime,” or “if the employee accepts a job with a competing firm,” will not be sufficient to constitute a substantial risk of forfeiture. Id. § 1.83-3(c)(2).

Here, the terms of the Shareholders Agreement between DTRI, Hume, and Chin recited certain conditions that would require Chin to return the stock to DTRI. In the event of Chin’s death, disability, or termination without cause, the Shareholders Agreement provided a formula for DTRI to repurchase Chin’s stock that corresponded with “one hundred percent (100%) [of] the Agreement Value.” Given this requirement of fair market value, the repurchase of Chin’s stock under those circumstances would not be considered a “forfeiture” within the meaning of the relevant regulation. 26 C.F.R. § 1.83-3(c)(l).

In the event of Chin’s voluntary resignation, the Shareholders Agreement would have provided for DTRI to repurchase the stock at “five percent (5%) [of the Agreement Value] for every full year of service” by Chin, up to the full Agreement Value after 20 years of service. However, if Chin were terminated for cause or voluntarily resigned and engaged in competition with DTRI, the stock repurchase price would be 5% of the Agreement Value for each year of service, up to a maximum of 25% of the Agreement Value.

Read together, these additional provisions of the Shareholders Agreement indicate that the only circumstances in which Chin would be required to forfeit his stock at a below-market price would be if Chin voluntarily resigned before 20 years of employment, if Chin voluntarily resigned and entered into competition with DTRI, or if Chin were terminated for cause. Because the regulation provides that forfeiture provisions triggered by termination for cause or by engaging in competition do not constitute a “substantial risk of forfeiture,” 26 C.F.R. § 1.83-3(c)(2), the only remaining ground for forfeiture would be the circumstance of Chin’s voluntary resignation.

With respect to this sole remaining ground for forfeiture, the tax court concluded that the likelihood of forfeiture due to Chin’s voluntary resignation did not amount to a “substantial risk.” The tax court made a factual determination that Hume would have been unlikely to enforce the shareholder restrictions on the stock in the event of Chin’s voluntary departure. In concluding that Chin’s stock was not subject to a substantial risk of forfeiture but was intended to be treated as “fully vested and outstanding stock” without restrictions, the tax court cited Chin’s role as an initial investor in DTRI, Chin’s “very close work relationship” with Hume, and Chin’s “vital role within DTRI as the executive vice president, COO, and a 49.75% shareholder in voting stock.”

Based on our review, we conclude that the tax court’s factual conclusion, that Chin’s significant ownership position in DTRI and his strong relationship with Hume demonstrated that the stock was not transferred in 2002 subject to a “substantial risk of forfeiture,” is not clearly erroneous and was supported by the record. We therefore hold that the tax court did not err in concluding that QinetiQ failed to establish its entitlement to the claimed deduction.

IV.

For these reasons, we affirm the tax court’s judgment.

AFFIRMED

      . Par value is an "arbitrary dollar amount assigned to a stock share by the corporate charter.” Par Value, Black’s Law Dictionary 1298 (10th ed. 2014).

      . Originally, QinetiQ challenged the classification of the shares issued to both Hume and Chin but, during the pendency of the tax court case, QinetiQ conceded that the stock shares issued to Hume did not qualify as Section 83 property.

      . QinetiQ argues that this Court's opinion in O'Dwyer no longer is "good law” because O’Dwyer relied on an outmoded line of reasoning that the APA’s procedures for judicial review apply only to formal adjudications, to the exclusion of informal agency actions. Although the APA’s judicial review procedures have since been held to apply to informal agency actions, as well as to formal adjudications, see Fla. Power & Light Co., 470 U.S. at 744, 105 S.Ct. 1598, we observe that the central holding of O’Dwyer remains valid, namely, that the de novo review procedures provided by the Internal Revenue Code, rather than the judicial review procedures under the APA, govern judicial review of deficiency proceedings.

      . We acknowledge that the APA anticipates that "de novo” determination of facts by the reviewing court may sometimes be appropriate. 5 U.S.C. § 706(2)(F). However, this is not such a case, because application of the APA would simply "duplicate the previously established special statutory procedures” of the Internal Revenue Code. Bowen, 487 U.S. at 903, 108 S.Ct. 2722.

      . The language now codified at 26 U.S.C. § 7522 was originally codified at Section 7521 in 1988 and renumbered as Section 7522 in 1990. See Omnibus Taxpayer Bill of Rights, Pub. L. No. 100-647, § 6233, 102 Stat. 3342, 3735 (1988); Revenue Reconciliation Act of 1990, Pub. L. No. 101-508, § 11704, 104 Stat. 1388, 1388-519 (1990).

      .We do not read Fisher, as QinetiQ urges, as requiring a reasoned explanation in all Notices of Deficiency. The court in Fisher was asked to review the Commissioner’s implicit denial, through inaction, of a discretionary waiver of a tax penalty. See Fisher, 45 F.3d at 396-97 (citing 26 U.S.C. § 6661(c)). The court in Fisher held, that without an explicit agency ruling to review, the tax court "had no basis for determining what reasons the Commissioner may have relied upon,” and that, therefore, the Commissioner "failed to demonstrate that she had exercised her discretion.”

        Id. at 397. The rationale of Fzsher thus applies only to cases in which courts review agency action for abuse of discretion, rather than cases in which the tax court applies a de novo standard of review. See id.

      . The Shareholders Agreement prescribed an objective method for calculating the value of the corporation, based on four times the earnings of the corporation in the fiscal year immediately preceding the event requiring valuation. Nothing in the record indicates that this formula would not result in the fair market value of the stock.


author: THACKER, Circuit Judge: TRAXLER, Circuit Judge:

text:
    Brilliant SEMENOVA, PlaintiffAppellant, v. MARYLAND TRANSIT ADMINISTRATION, Defendant-Appellee.
    No. 15-2125
    United States Court of Appeals, Fourth Circuit.
    Argued: December 8, 2016
    Decided: January 10, 2017

      ARGUED: Joel Robert Zuckerman, MAXWELL BARKE & ZUCKERMAN LLC, Rockville, Maryland, for Appellant. Julie Theresa Sweeney, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Ap-pellee. ON BRIEF: James S. Maxwell, MAXWELL BARKE & ZUCKERMAN LLC, Rockville, Maryland, for Appellant. Brian E. Frosh, Attorney General, Jennifer L. Katz, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellee.
    Before TRAXLER, FLOYD, and THACKER, Circuit Judges.
   Reversed and remanded by published opinion. Judge THACKER wrote the opinion, in which Judge FLOYD joined. Judge TRAXLER wrote a dissenting opinion.

THACKER, Circuit Judge:

Brilliant Semenova (“Appellant”) sued the Maryland Transit Administration (“Ap-pellee”) pursuant to the Americans with Disabilities Act (“ADA”), alleging disability discrimination in its provision of public services. The ADA does not include a statute of limitations, so the district court applied the two-year statute of limitations from Maryland’s Anti-Discrimination Law (the “Maryland Law”) and dismissed the suit as untimely. But because the Maryland Law does not contain a cause of action for disability discrimination in the provision of public services, the closer state-law analog to Appellant’s claim is a general civil action, which is subject to a three-year statute of limitations. Applying this more analogous statute of limitations, we reverse and remand because the complaint here alleges discrimination occurring within three years of its filing.

I.

On October 30, 2014, Appellant filed a complaint in the United States District Court for the District of Maryland alleging Appellee violated Title II of the ADA in operating its commuter bus service. Appellant alleges that although she suffers from cerebral palsy and uses a walker or crutches, “[o]n numerous occasions, beginning in or about October, 2011 ... and continuing through 2012,” bus operators refused to use an assistance lift or otherwise assist her in boarding the bus. J.A. 7. Because she relied on the bus to attend classes at the Community College of Baltimore County, Appellant alleges, this discrimination forced her withdrawal from school “in the summer of 2012.” Id. at 8.

Appellee moved to dismiss on timeliness grounds, arguing that because the ADA does not provide a statute of limitations, ADA claims brought in Maryland are subject to the two-year statute of limitations found in the Maryland Law; and the last alleged discriminatory act was over two years before Appellant filed her complaint. Appellant responded that her complaint was timely because Maryland’s three-year statute of limitations for general civil actions applies to her claim.

In response, the district court issued a one-page memo, containing only one paragraph explaining why it sided with Appel-lee, and dismissed Appellant’s complaint. Without further illumination, the district court acknowledged that the Maryland Law “does not expressly apply to disability claims related to public accommodations” but nevertheless concluded, “the Fourth Circuit would find the two year limitations period [contained in the Maryland Law] to be the one that should” apply to Appellant's claim. J.A. 36. In a separate order without further reasoning, the district court dismissed the complaint as untimely. This appeal followed.

II.

We review de novo dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), assuming as true the complaint’s factual allegations and construing “all reasonable inferences” in favor of the plaintiff. Belmora LLC v. Bayer Consumer Care AG, 819 F.3d 697, 702 (4th Cir. 2016) (internal quotation marks omitted). A court may grant a 12(b)(6) motion on statute of limitations grounds only “if the time bar is apparent on the face of the complaint.” Dean v. Pilgrim’s Pride Corp., 395 F.3d 471, 474 (4th Cir. 2005).

III.

Because Title II of the ADA does not contain a statute of limitations, federal courts “borrow the state statute of limitations that applies to the most analogous state-law claim.” A Soc’y Without A Name v. Virginia, 655 F.3d 342, 347 (4th Cir. 2011). Although “the most analogous statute need not be identical,” state legislation containing a statute of limitations will only control if it provides substantially “the same rights and remedies” as the ADA. Wolsky v. Med. Coll, of Hampton Roads, 1 F.3d 222, 224-25 (4th Cir. 1993). In A Society Without A Name v. Virginia, for example, we considered the applicable limitations period for ADA claims brought in Virginia. See 655 F.3d at 347-48. We held that the one-year statute of limitations in the Virginia Rights of Persons with Disabilities Act applies, given the state law’s express pronouncement that regulations promulgated pursuant to the statute “shall be consistent, whenever applicable,” with the ADA. Id. at 348 (quoting Va. Code. Ann. § 51.5-40).

Given the substantially similar language between the ADA and the Rehabilitation Act, see A Soc’y Without A Name, 655 F.3d at 347, we have applied the same analysis to determine the applicable statute of limitations for Rehabilitation Act claims. Thus, in Wolsky v. Medical College of Hampton Roads, we held that the statute of limitations in the Virginia Rights of Persons with Disabilities Act also applies to Rehabilitation Act claims brought in Virginia, instead of the more general statute of limitations for personal injury claims. See 1 F.3d at 225. We deemed the Virginia law an “exact state law counterpart” to the Rehabilitation Act because it tracks the language of the federal law, requires regulations promulgated pursuant to state law to be consistent with the federal law, and affords the same remedies as the federal law. Id. at 224-25.

Similarly, in McCulloch v. Branch Banking & Trust Co., we held that the 180-day statute of limitations in the North Carolina Handicapped Persons Protection Act applies to Rehabilitation Act claims brought in that state. See 35 F.3d 127,132 (4th Cir. 1994). In so holding, we relied in part on the statute’s prohibition of the same type of discrimination alleged in the underlying complaint. See id. at 130.

Critically, however, the Maryland Law does not provide Appellant “the same rights and remedies” as the ADA because it does not provide a cause of action for disability discrimination in the provision of public services. Wolsky, 1 F.3d at 224. Rather, the closer state-law analog to such an ADA claim is Maryland’s more general statute of limitations, requiring plaintiffs to file civil actions “within three years from the date it accrues unless another provision of the Code provides” otherwise. Md. Code Ann., Cts. & Jud. Proc. § 5-101; see A Soc’y Without A Name, 655 F.3d at 347.

In A Society Without A Name, Wolsky, and McCulloch, we applied state statutes of limitations to federal claims, at least in part, because the relevant state laws also allowed claims for the same type of discrimination the plaintiffs alleged pursuant to federal law. See N.C. Gen. Stat. Ann. §§ 168A-5(a) (prohibiting disability employment discrimination), -11 (creating “civil action to enforce rights granted or protected by this chapter”); Va. Code. Ann. §§ 51.5-40, (prohibiting disability discrimination in programs receiving state funding), -46 (creating cause of action to enforce “the rights set forth in this chapter”). In stark contrast to the broad enforcement mechanisms these statutes include, the Maryland Law only recognizes causes of action in limited circumstances. See, e.g., Md. Code Ann., State Gov’t § 20-1035 (creating cause of action for disability housing discrimination); § 20-1013 (creating cause of action for disability employment discrimination). And although the Maryland Law allows claims based on local anti-discrimination laws in Howard, Montgomery, and Prince George’s Counties, which prohibit discrimination in public accommodations, see § 20-1202; Md., Howard Cty. Code § 12.210; Md., Montgomery Cty. Code, §§ 27-10, -11; Md., Prince George’s Cty. Code §§ 2-186, 2-220, we are not tasked with finding the closest local analog to federal law, but the closest state analog. See A Soc’y Without A Name, 655 F.3d at 347.

Further, the holding below was an outlier in the District of Maryland, which has held time and again that ADA claims are subject to Maryland’s three-year statute of limitations governing general civil actions. See, e.g.,_Innes v. Bd. of Regents of Univ. Sys. of Md., 29 F.Supp.3d 566, 572 (D. Md. 2014); Schalk v. Associated Anesthesiology Practice, 316 F.Supp.2d 244, 251 (D. Md. 2004); Ross v. Bd. of Educ. of Prince George’s Cty., 195 F.Supp.2d 730, 735 n.2 (D. Md. 2002); Speciner v. NationsBank, N.A., 215 F.Supp.2d 622, 634 (D. Md. 2002); Kohler v. Shenasky, 914 F.Supp. 1206, 1211 (D. Md. 1995). Although the District of Maryland decided most of these cases before recent amendments to the Maryland Law that created a cause of action for disability employment discrimination, see H.B. 54, 2009 Leg., 426th Sess. (Md. 2009) (codified as amended at Md. Code Ann., State Gov’t § 20-1035), and expanded protections for persons with disabilities or records of disability, see H.B. 393, 2009 Leg., 426th Leg., (Md. 2009) (codified as amended at §§ 20-601, -603, -606), those amendments did nothing to modify the rights and remedies of a plaintiff in Appellant’s shoes who alleges discrimination in the provision of public services.

Thus, we hold that Appellant’s claim is subject to a three-year statute of limitations. We need not decide whether the complaint alleges discrimination occurring as Appellant argues, “through [the end of] 2012,” or, as Appellee argues, no later than the summer of 2012 when Appellant withdrew from school. Because Appellant filed her complaint on October 30, 2014, either date would fall within the three-year filing period. The district court thus erred by dismissing Appellant’s claim as untimely.

IV.

For the foregoing reasons, we reverse the district court’s dismissal and remand for further proceedings.

REVERSED AND REMANDED

TRAXLER, Circuit Judge:

I respectfully dissent. In my view the district court correctly applied a two-year limitations period to Semenova’s ADA claim, and I would affirm the district court’s dismissal of her complaint.

Because Title II of the ADA does not contain a statute of limitations, courts “borrow the state statute of limitations that applies to the most analogous state-law claim.” A Society Without a Name v. Virginia, 655 F.3d 342, 347 (4th Cir. 2011). The reason courts adopt the statute governing the most analogous state-law cause of action is critical. The tradition “is based on a congressional decision to defer to ‘the State’s judgment on the proper balance between the policies of repose and the substantive policies of enforcement embodied in the state cause of action.’ ” Hardin v. Straub, 490 U.S. 536, 538, 109 S.Ct. 1998, 104 L.Ed.2d 582 (1989) (quoting Wilson v. Garcia, 471 U.S. 261, 271, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985)).

In my view, the Maryland legislature has expressed its judgment in very clear terms on the proper balance to be struck. Maryland statutory law provides private causes of action for many types of discrimination — including disability discrimination. In each case, the legislature has provided that the statute of limitations is two years. Indeed, claims made under several such Maryland statutes are closely analogous to Title II claims. See, e.g., Md. Code, State Gov’t §§ 20-705 — 20-707, 20-1035 (housing discrimination); Md. Code, State Gov’t §§ 20-606, 20-1009, 20-1013 (employment discrimination). Most analogous, in my view, however, are claims under § 20-1202 of Maryland’s State Government Code. That statute provides for private causes of action “for damages, injunctive relief, or other civil relief’ for violations of the anti-discrimination laws of Howard, Montgomery, and Prince George’s Counties, each of which prohibit discrimination — including disability discrimination— in places of public accommodation, see Howard Cty. Code § 12.210; Mont. Cty. Code §§ 27-10, 27-11; Prince George’s Cty. Code §§ 2-186, 2-220. The decision of the Maryland legislature that a two-year statute of limitations applies to such state-law actions leaves no doubt concerning what balance the Maryland legislature would strike regarding the appropriate limitations period for Title II actions.

Semenova has not identified any difference between § 20-1202 claims and Title II claims that that would give us any reason to doubt that the Maryland legislature’s judgment regarding the proper limitations period for § 20-1202 claims would apply just as well to Title II actions. Indeed, Semenova’s only argument that § 20-1202 is not the most analogous cause of action is that the facts alleged in her complaint would not state a claim under § 20-1202, because the discrimination she alleged did not occur in one of the three counties to which § 20-1202 applies. But this argument misunderstands the role that § 20-1202 plays in our analysis. The similarity of a § 20-1202 cause of action to one brought under Title II matters because of what it reveals about the Maryland legislature’s judgment concerning the balance it favored regarding considerations of repose; it has nothing to do with the question of whether Semenova herself could have brought a § 20-1202 claim.

Furthermore, regarding the determination of the appropriate limitations period, it is unlikely Congress would have sanctioned a construction of the ADA under which the length of the statute of limitations would depend upon “an analysis of the particular facts of each claim,” as such an approach would “inevitably breed[ ] uncertainty and time-consuming litigation.” Wilson, 471 U.S. at 272,105 S.Ct. 1938; see id. at 272-75, 105 S.Ct. 1938. Rather, “[t]he federal interests in uniformity, certainty, and the minimization of unnecessary litigation all support the conclusion that Congress favored” a less fact-specific approach. Id. at 275,105 S.Ct. 1938.

Semenova argues that despite the obvious close similarities between Title II claims and those made under § 20-1202, the three-year statute governing general civil actions, § 5-101 of the Maryland Courts and Judicial Proceedings Code, actually provides a closer analogue. But we rejected a very similar argument in McCullough v. Branch Banking & Trust Co., 35 F.3d 127 (4th Cir. 1994). In that case, the plaintiff brought suit against his employer claiming that he was terminated because of his handicap in violation of § 504 of the Rehabilitation Act. See McCullough, 35 F.3d at 128. Like the ADA, the Rehabilitation Act provides no statute of limitations; thus, we were required to decide which state limitations period applied. See id. at 129. The employer favored the 180-day period applicable to claims under the North Carolina Handicapped Persons Protection Act (the “North Carolina Act”). See id. The plaintiff, on the other hand, preferred the three-year period generally applicable to wrongful-discharge actions. See id. at 131.

We agreed with the employer. See id. at 130-32. In so doing, we acknowledged that, for several reasons, the North Carolina Act was by no means a perfect analogue: (1) the North Carolina Act provides for a bench trial while the Rehabilitation allows for jury trials; (2) while the Rehabilitation Act allows for full compensatory and punitive damages, the North Carolina Act allows only injunctive relief and back pay; (3) the Rehabilitation Act, unlike the North Carolina Act, does not extend or base coverage upon receipt of state assistance; and (4) the Rehabilitation Act, unlike the North Carolina Act, does not require the employee to notify the employer of his or her disability and to make accommodation suggestions and cooperate in evaluating possible accommodations. See id. at 131.

Nevertheless, we rejected the plaintiffs argument that these distinctions kept the North Carolina Act from being the most closely analogous, explaining:

[Plaintiffs identification of the distinctions between the Rehabilitation Act and the North Carolina Act] begs the question of which North Carolina statute is most analogous to the Rehabilitation Act. The differences between the North Carolina Act and the Rehabilitation Act identified by McCullough do not, by themselves, magically tip the balance of similarities so as to make the general wrongful discharge provision more analogous to the Rehabilitation Act than the specific provisions of the North Carolina Act. It simply means that, in North Carolina, there is no perfect counterpart to the Rehabilitation Act, and we must determine which statute is more appropriate.

Id. at 132 (emphasis added). In the end, we held that, despite the differences the plaintiff had identified, the North Carolina Act was a better fit than the general wrongful-discharge statute because the North Carolina Act and the Rehabilitation Act both “redress discrimination against the same very specific group of persons,” whereas “the general wrongful discharge statute protects against a wide range of discrimination which, although including persons with disabilities, also encompasses many other classes of individuals.” Id.; see also Wolsky v. Medical Coll. Of Hampton Roads, 1 F.3d 222, 225 (4th Cir. 1993) (“[The Supreme Court] acknowledged that minor differences between state and federal statutes are acceptable and the most analogous statute need not be identical.”).

Similar reasons dictate that § 20-1202 claims are the closest analogue to claims brought under Title II. It seems fairly plain to me that a statute creating a private right of action for illegal discrimination is a closer fit than a catchall statute governing all sorts of civil actions. And, the difference Semenova identifies between causes of action under § 20-1202 and those under Title II of the ADA — that § 20-1202 applies in only certain subdivisions of the relevant jurisdiction — is much less significant from the standpoint of applying the Maryland legislature’s limitations-period judgment than were the differences we considered in McCullough. Notwithstanding the fact that § 20-1202 applies only to three counties, the critical fact remains that victims of discrimination in those counties have a state-law cause of action under § 20-1202 that closely resembles a Title II claim, and the Maryland legislature has decided that a two-year limitations period applies to such actions. I believe that is the legislative judgment that should control here.

For all of the foregoing reasons, I respectfully dissent.

      . Title II applies to public entities, including state and local governments and their instru-mentalities, see 42 U.S.C. § 12131(1), and prohibits disability discrimination in the provision of public transportation services, see § 12132; 49 C.F.R. § 37.5.

      . Citations to the "J.A.” refer to the Joint Appendix filed by the parties in this appeal.

      . See Americans with Disabilities Act of 1990, as amended, 42 U.S.C. §§ 12131-12165.

      . At oral argument, Semenova maintained that a cause of action under § 20-1202 could not possibly be the most analogous state-law cause of action because a § 20-1202 action must be based on the violation of county discrimination law. But it is hard to understand Semenova’s point. Section 20-1202 is a Maryland statute creating a Maryland cause of action aimed at providing redress for victims of disability discrimination that would not otherwise be available. See Edwards Sys. Tech. v, Corbin, 379 Md. 278, 841 A.2d 845, 857-58 (2004) (regarding statutory predecessor to § 20-1202). And it was the Maryland state legislature that decided that a two-year limitations period would apply to such actions. See Md. Code, State Gov't § 20-1202(c)(1).

      .Maryland statutory law prohibits public-accommodations disability discrimination throughout the state, see Md. Code, State Gov't § 20-304, but does not provide for a private right of action for violation of this statewide ban.

      . We have borrowed statutes of limitation from state-law anti-discrimination statutes in other cases brought under the ADA and Rehabilitation Act. See A Society Without a Name v. Virginia, 655 F.3d 342, 348 (4th Cir. 2011) (holding one-year limitations period set forth in Virginia Rights of Persons with Disabilities Act applies to Title II claims brought in Virginia); Wolsky v. Medical Coll. Of Hampton Roads, 1 F.3d 222, 224-25 (4th Cir. 1993) (holding same limitations period applies to Rehabilitation Act claims brought in Virginia).

      . I would conclude, for the reasons explained in McCullough, that the two-year statute of limitations is consistent with the federal policies underlying the ADA. See McCullough v. Branch Banking & Trust Co., 35 F.3d 127, 131 (4th Cir, 1994). And I agree with the district court’s conclusion that Semenova's action is time-barred, assuming that a two-year limitations period applies.


author: FLOYD, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Brandon TATE, Defendant-Appellant.
    No. 15-4252
    United States Court of Appeals, Fourth Circuit.
    Argued: October 28, 2016
    Decided: January 11, 2017

      ARGUED: Roderick Morris Wright, Jr., WRIGHT LAW FIRM OF CHARLOTTE, PLLC, Charlotte, North Carolina, for Appellant. Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: Jill Westmoreland Rose, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Ap-pellee.
    Before GREGORY, Chief Judge, and KEENAN and FLOYD, Circuit Judges.
   Affirmed by published opinion. Judge FLOYD wrote the opinion, in which Chief Judge GREGORY and Judge KEENAN joined.

FLOYD, Circuit Judge:

Appellant Brandon Tate signed a plea agreement in which the government agreed to seek a sentence at the lowest end of the “applicable guideline range.” At sentencing, the government recommended a sentence at the lowest end of the guideline range found by the district court. Tate now argues that in doing so, the government breached the plea agreement. Tate contends that the government was actually obligated to recommend a sentence at the lowest end of the correct guideline range, which, in his view, was lower than the range found by the court. We disagree, and hold that in this case, the phrase “applicable guideline range” only obligated the government to recommend a sentence at the lowest end of the guideline range found by the district court. Because the government fulfilled this obligation, it did not breach the plea agreement. Accordingly, we affirm.

I.

In a written plea agreement, Tate agreed to plead guilty to possession with intent to distribute and distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (2012). The plea agreement stated that the government would “seek a sentence at the lowest end of and either party may seek a departure or variance from the ‘applicable guideline range.’ (U.S.S.G. § 5C1.1).” J.A. 74. Additionally, Tate agreed to waive all “rights to contest the conviction except for: (1) claims of ineffective assistance of counsel or (2) prosecutorial misconduct.” J.A. 77. Tate also agreed to waive “all rights conferred by 18 U.S.C. § 3742 or otherwise to appeal whatever sentence is imposed with the two exceptions set forth above.” Id.

A magistrate -judge then held a hearing pursuant to Federal Rule of Criminal Procedure 11. At the hearing, Tate consented to plead guilty, and the magistrate judge established Tate’s competence to plead guilty and his understanding of the terms of his plea agreement.

A presentence report (PSR) and, later, a revised PSR were then prepared. The revised PSR calculated a base offense level of 24 under the Sentencing Guidelines. Tate then received a three-level reduction for acceptance of responsibility, which resulted in a total offense level of 21. The revised PSR then assigned Tate seven criminal history points and calculated his criminal history as Category IV. This criminal history category and the total offense level of 21 resulted in a guideline range of 57 to 71 months’ imprisonment.

Tate objected to the revised PSR’s assignment of three criminal history points for his four 2004 North Carolina state convictions for common law robbery, robbery with a dangerous weapon, and attempted robbery with a dangerous weapon. Tate claimed that those convictions should not have been the basis for additional points under the Guidelines because they were part of a consolidated sentence. He argued that his guideline range should have actually been 46 to 57 months’ imprisonment.

At sentencing in March 2015, the district court adopted the magistrate judge’s finding that Tate’s guilty plea was knowingly and voluntarily made, and found there was a factual basis to support the entry of the plea. The district court overruled Tate’s objections to the revised PSR’s assignment of criminal history points, and adopted the revised PSR’s calculation of the guideline range of 57 to 71 months’ imprisonment. The government then recommended a sentence of 57 months, and stated that it was doing so in compliance with the plea agreement. The government also stated that Tate had been making good use of his time in prison, and that this boded well for his future. The district court then sentenced Tate to 57 months’ imprisonment.

Tate noted a timely appeal of his sentence, claiming that the government’s sentencing recommendation breached the plea agreement. The government then moved to dismiss the appeal, arguing that the appeal waiver in Tate’s plea agreement bars Tate’s claim.

II.

The first issue, raised in the government’s motion to dismiss, is whether Tate’s appeal waiver bars this claim. In the appeal waiver, Tate waived all rights to appeal his conviction and his sentence, except for claims of ineffective assistance of counsel and prosecutorial misconduct.

Tate’s appeal waiver is generally valid. However, “[a] defendant’s waiver of appellate rights cannot foreclose an argument that the government breached its obligations under the plea agreement.” United States v. Dawson, 587 F.3d 640, 644 n.4 (4th Cir. 2009) (citing United States v. Cohen, 459 F.3d 490, 495 (4th Cir. 2006)). Here, Tate argues that the government breached the plea agreement. This Court may review that claim; it is not barred by the appeal waiver.

III.

We now turn to the main issue in this case: whether or not the government breached the plea agreement. In the plea agreement, the government agreed to seek a sentence at the lowest end of the “applicable guideline range.” The government contends that this provision obligated it to recommend a sentence at the lowest end of the guideline range found by the district court. Tate argues that the government was not permitted to rely on the range found by the district court, but was instead obligated to recommend an even lower sentence, based on what he alleges is the correct guideline range.

Because Tate did not raise this issue below, we review his claim for plain error. Fed. R. Crim. P. 52(b); Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). Plain error analysis has four prongs: (1) there must be an error; (2) the error must be plain; (3) the appellant’s “substantial rights” must be affected by the error; and (4) the error must seriously affect “the fairness, integrity or public reputation of judicial proceedings.” Puckett, 556 U.S. at 135, 129 S.Ct. 1423 (internal quotation mark omitted). To prevail, Tate would need to prove all four prongs; however, Tate’s appeal fails on the first prong, error.

Tate alleges that the government breached the plea agreement. Plea agreements are grounded in contract law, and both parties to a plea agreement should receive the benefit of their bargain. Dawson, 587 F.3d at 645. The government breaches a plea agreement when a promise it made to induce the plea goes unfulfilled. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). However, “[a] central tenet of contract law is that no party is obligated to provide more than is specified in the agreement itself. Accordingly, in enforcing plea agreements, the government is held only to those promises that it actually made to the defendant.” United States v. Peglera, 33 F.3d 412, 413 (4th Cir. 1994).

In determining what promises the government made, we read “a plea agreement’s plain language in its ordinary sense.” United States v. Jordan, 509 F.3d 191, 195 (4th Cir. 2007) (internal quotation marks omitted). Moreover, any ambiguities in a plea agreement are construed against the government as its drafter. United States v. Barefoot, 754 F.3d 226, 246 (4th Cir. 2014). Whether a plea agreement is ambiguous on its face is a question of law to be resolved by the courts, Jordan, 509 F.3d at 195, and we will not create an ambiguity where none legitimately exists.

In determining whether the government breached the plea agreement in this case, we will assume arguendo that the lower guideline range proposed by Tate of 46 to 57 months was the correct guideline range, and that the range found by the district court was incorrect. Notably, Tate has waived his right to appeal the court’s guideline range determination. The only question here is what the government was required to do under the plea agreement. The plea agreement stated that the government would seek a sentence at the lowest end of the “applicable guideline range.” We hold that the “applicable guideline range” means the guideline range found by the district court, and that, therefore, the government’s sentencing recommendation complied with the plea agreement.

A.

First, the natural reading of the phrase “applicable guideline range” is the guideline range found by the district court, because it is clearly the district court that is assigned the task of determining the “applicable guideline range.” The Supreme Court has consistently held that sentencing in federal district courts is to proceed as follows: First, the district court must determine “the applicable [gjuidelines range.” Molina-Martinez v. United States, — U.S.-, 136 S.Ct. 1338,1342, 194 L.Ed.2d 444 (2016); see also Peugh v. United States, — U.S. -, 133 S.Ct. 2072, 2080, 186 L.Ed.2d 84 (2013); Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Next, once the district court determines this range, the government and the defendant present their arguments regarding what the sentence should be. Peugh, 133 S.Ct. at 2080. The court considers these arguments, along with the factors set forth in 18 U.S.C. § 3553(a). Id. Then, the court determines the defendant’s sentence, and states its reasons for this sentence on the record. Id.

In the process described above, it is plainly the task of the district court to determine the “applicable guideline range,” and it is this range that forms the basis of the rest of the sentencing hearing. See Gall, 552 U.S. at 49, 128 S.Ct. 586 (“[T]he Guidelines should be the starting point and the initial benchmark.”) Thus, in the context of a federal sentencing proceeding, where the district court first determines the “applicable guideline range” and the government then has an opportunity to make a sentencing recommendation, it is clear that a promise by the government to recommend a sentence at the lowest end of the “applicable guideline range” is a promise to recommend a sentence at the lowest end of the range found by the court.

Additionally, the Guidelines themselves state “[t]he court shall determine the kinds of sentence and the guideline range as set forth in the guidelines,” and instruct that the court does so in accordance with U.S.S.G. 1B1.2, which is entitled “Applicable Guidelines.” U.S.S.G. lBl.l(a)(l). The Guidelines as a whole are written as instructions to the court on how to determine the applicable guideline range. It is clear that it is the district court, and no other entity, that traditionally determines the “applicable guideline range.”

Based on the above, we hold that the phrase “applicable guideline range,” as used in the plea agreement here, unambiguously refers to the guideline range found by the district court.

B.

Second, although this Court has not dealt with this exact issue before, it has previously considered similar arguments made by criminal defendants claiming that the imposition of incorrect sentences rendered their appeal waivers invalid. See United States v. Brown, 232 F.3d 399, 404 (4th Cir. 2000); United States v. Bowden, 975 F.2d 1080, 1081 n.1 (4th Cir. 1992). These cases support the above interpretation of “applicable guideline range.”

In Bowden, this Court was presented with an appeal waiver that read, “By this agreement Defendant waives any appeal and the right to exercise any post-conviction rights ... if the sentence imposed herein is within the [Sentencing Guidelines.]” 975 F.2d at 1081 n.l (emphasis added). In that case, we held that the waiver preserved the defendant’s right to challenge his sentence as being outside of the Guidelines, because the waiver was expressly conditioned on the sentence being within the Guidelines. Id.

In contrast, in Brown, the defendant had signed a plea agreement with a waiver of all rights to appeal his sentence; however, a different part of the plea agreement stated that “[t]he Defendant understands ... [t]hat sentencing will be in accordance with the United States Sentencing Guidelines.” 232 F.3d at 404 (alterations in original). There, this Court held that the defendant had waived all rights to contest his sentence, and that the other statement that his sentence would be “in accordance with” the Guidelines did not qualify or change this unconditional waiver. Id. We explained:

A common sense reading of [the relevant provision] indicates that its purpose is merely to inform Brown that his sentence will be calculated using the Sentencing Guidelines. The paragraph does not, in any way, condition the waiver of Brown’s right to appeal on a proper application of the Guidelines, as the plea in Bowden did.

Id.

Although Bowden and Brown address the validity of appeal waivers, rather than the government-breach argument presented here, they are still instructive. Read together, these cases indicate that a provision in a plea agreement that is explicitly conditioned on a correct sentence under the Guidelines will be honored, but a mere reference to the Guidelines is not sufficient to create such a condition. The provision at issue here falls into the latter category. Moreover, Brown counsels that common sense should be used when interpreting such provisions. Here, when the process and structure of sentencing are taken into account, common sense dictates that “applicable guideline range” signifies the range found by the district court.

C.

Third and finally, Tate’s proposed interpretation of the plea agreement is logically untenable. Tate contends that the term “applicable guideline range” should be read to mean the correct guideline range— which in this case we assume to be 46 to 57 months. Tate is thus arguing that the only way the government could have complied with the plea agreement would have been through a recommendation of a 46 month sentence. Under Tate’s view, any other recommendation violates the plea agreement. However, although it was entirely possible for Tate’s attorney to calculate the guideline range and propose that the specific figure of 46 months be included in the agreement when it was made, the agreement does not say 46 months. No specific number of months is included. Rather, the agreement uses only the indeterminate phrase, “the lowest end of ... the ‘applicable guideline range.’ ”

The fact that the two parties did not specify a number of months in the agreement, even though it was completely possible for them to do so, and instead merely agreed to the lowest end of a yet-to-be-determined “range,” manifestly implies that they anticipated that a third party (i.e., the district court) was going to determine that range. If the two parties had actually agreed to 46 months, there is no conceivable reason why they would forego memorializing this agreement, and instead opt for the indeterminate “the lowest end of ... the ‘applicable guideline range’ ” language contained in the plea agreement. It is well established that the government is not “obligated to provide more than is specified in the agreement itself.” Peglera, 33 F.3d at 413. Tate’s interpretation of the plea agreement would violate this rule.

rv.

At bottom, Tate’s true grievance is with the district court’s application of the Guidelines in determining the guideline range. However, Tate has waived the right to present this issue on appeal. He cannot now convert this claim of sentencing error into a claim of breach by the government when the government has complied fully with the terms of the plea agreement.

As used in the plea agreement here, the phrase “applicable guideline range” unambiguously means the guideline range determined by the district court. The government complied with the plea agreement when it made its sentencing recommendation based on the district court’s guideline range calculation. Therefore, an error did not occur, and the plain error standard has not been met. Accordingly, the judgment below is

AFFIRMED.

      . A criminal defendant may waive the right to appeal if that waiver is knowing and voluntary. United States v. Davis, 689 F.3d 349, 354 (4th Cir. 2012) (per curiam). "Generally, if a district court questions a- defendant regarding the waiver of appellate rights during the Rule 11 colloquy and the record indicates that the defendant understood the full significance of the waiver, the waiver is valid.” United States v. Thornsbury, 670 F.3d 532, 537 (4th Cir. 2012). Here, Tate confirmed at his Rule 11 hearing that he agreed with the appeal waiver and understood that he was waiving his right to appeal his conviction and sentence. His waiver is therefore valid.

      . This holding should not be read to preclude claims of bad faith or prosecutorial misconduct. No such claims have been made in this case.

      . In all three cited cases, the Court has used the specific phrase "applicable [gjuidelines range” to describe the range determined by the district court. Molina-Martinez, 136 S.Ct. at 1342; Peugh, 133 S.Ct. at 2080; Gall, 552 U.S. at 49, 128 S.Ct. 586.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee v. Felipe Martinez RAMIREZ, Defendant-Appellant
    No. 16-10109 Summary Calendar
    United States Court of Appeals, Fifth Circuit.
    Filed November 3, 2016
    James Wesley Hendrix, Assistant U.S. Attorney, U.S. Attorney’s Office, Northern District of Texas, Dallas, TX, for Plaintiff-Appellee.
    Jerry Van Beard, Esq., Assistant Federal Public Defender, Kevin Joel Page, Federal Public Defender’s Office, Northern District of Texas, Dallas, TX, David E. Sloan, Assistant Federal Public Defender, Federal Public Defender’s Office, Northern District of Texas, Lubbock, TX, for Defendant-Appellant.
    Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
   PER CURIAM:

Felipe Martinez Ramirez was convicted of one count of producing child pornography and was sentenced to serve 210 months in prison and ten years on supervised release. In the sole issue raised in this appeal, he argues that his sentence is procedurally and substantively unreasonable because U.S.S.G. § 2G2.1 lacks an empirical basis.

As Martinez Ramirez acknowledges, this argument is unavailing under United States v. Miller, 665 F.3d 114, 121-22 (5th Cir. 2011), which involved U.S.S.G. § 2G2.2. In Miller, we explained that we “will not reject a Guidelines provision as unreasonable or irrational simply because it is not based on empirical data and even if it leads to some disparities in sentencing.” 665 F.3d at 121-22. Instead, we follow the logic that “Empirically based or not, the Guidelines remain the Guidelines.” Id. at 121. The same logic controls here, and the judgment of the district court is AFFIRMED.

Although the logic of Miller is controlling, since it involves a different Guideline than that at issue here, we decline to grant summary disposition. Nonetheless, because Martinez Ramirez is not entitled to relief, there is no need for further briefing. Accordingly, the Government’s motion for summary affirmance and, in the alternative, an extension of time to file its brief, is DENIED.


text:
    Carla FREW; Charlotte Garvin, as next friend of her minor children Johnny Martinez, Brooklyn Garvin and BreAnna Garvin; Class Members; Nicole Carroll, Class Representative; Maria Ayala, as next friend of her minor children, Christopher Arizola, Leonard Jimenez, and Joseph Veliz; Mary Jane Garza, as next friend of her minor children, Hilary Garza and Sarah Renea Garza, Plaintiffs-Appellants, v. M.D. Kyle JANEK; M.D. David L. Lakey, Defendants-Appellees.
    No. 15-40229
    United States Court of Appeals, Fifth Circuit.
    Filed November 3, 2016
    Timothy Borne Garrigan, Stuckey, Gar-rigan & Castetter Law Offices, Nacogdo-ches, TX, for Plaintiffs-Appellants.
    J. Campbell Barker, Deputy Solicitor General, Philip Lionberger, Office of the Solicitor General for the State of Texas, Sean Patrick Flammer, Esq., Philip Lion-berger, Office of the Attorney General for the State of Texas, for Defendants-Appel-lees.
    Before HIGGINBOTHAM, SOUTHWICK, and HIGGINSON, Circuit Judges.
   PER CURIAM:

The Parties’ Petitions for Panel Rehearing are DENIED and no member of this panel nor judge in regular active service on the court having requested that the court be polled on Rehearing En Banc, (FED R. APP. P. and 5TH CIR. R. 35), Appellees’ Petition for Rehearing En Banc is also DENIED.

On remand, the district court may consider the vacated portions of its order under either prong 1 of Rule 60(b)(5) (the judgment has been satisfied, released, or discharged), prong 3 of Rule 60(b)(5) (applying it prospectively is no longer equitable), or both. We were unable to determine whether the able district court’s decision under prong 1 or prong 3 of Rule 60(b)(5) would have been the same with the “shortage” metric that this Court found controlled. Given the considerable flexibility accorded state implementation of its policies with attendant protected deference, the Supreme Court in Home left to courts under Rule 60(b)(5), and district courts in the first instance, to make that call. The deference in turn due to the presiding district court judge reflects its greater appreciation of the consent decree in operation and, nuances aside, its ability to decide if the decree has lived its life — leaving attending, ongoing societal ills to the political processes of today.

As for Appellees’ argument as it relates to prong 1 that they do not have the information to analyze the second part of the panel opinion’s “shortage” metric (average client load of the relevant class of provider), we disagree. Like the parties in Frew v. Gilbert and Frew v. Hawkins, the parties here may use witnesses, and/or develop other methods for retrieving the necessary information, should the district court find the inquiry necessary.

The other arguments raised by the parties in their petitions for panel rehearing are unpersuasive.

      . See Horne v. Flores, 557 U.S. 433, 454, 129 S.Ct. 2579, 174 L.Ed.2d 406 (2009) ("Use of the disjunctive 'or' [in Rule 60(b)(5) ] makes it clear that each of the provision’s three grounds for relief is independently sufficient and therefore that relief may be warranted even if petitioners have not 'satisfied' the original order.”).

      . 109 F,Supp.2d 579, 604 (E.D. Tex. 2000), vacated sub nom. Frazar v. Gilbert, 300 F.3d 530 (5th Cir. 2002), rev'd sub nom. Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 124 S.Ct. 899, 157 L.Ed.2d 855 (2004).

      . 401 F.Supp.2d 619, 656-57 (E.D. Tex. 2005), aff'd sub nom. Frazar v. Ladd, 457 F.3d 432 (5th Cir. 2006).