author: WILKINSON, Circuit Judge:

text:
    Johnny BENNETT, Petitioner-Appellee, v. Bryan P. STIRLING, Commissioner, South Carolina Department of Corrections; Joseph McFadden, Warden, Lieber Correctional Institution, Respondents-Appellants.
    No. 16-3
    United States Court of Appeals, Fourth Circuit.
    Argued: October 25, 2016
    Decided: November 21, 2016

      ARGUED: Alphonso Simon, Jr., Office of the Attorney General of South Carolina, Columbia, South Carolina, for Appellants. John Henry Blume, III, Cornell Law School, Ithaca, New York, for Appellee. ON BRIEF: Alan Wilson, Attorney General, John W. McIntosh, Chief Deputy Attorney General, Donald J. Zelenka, Assistant Deputy Attorney General, Office of the Attorney General of South Carolina, Columbia, South Carolina, for Appellants. Lindsey S. Vann, Justice 360, Columbia, South Carolina, for Appellee. ■
    Before WILKINSON, KING, and HARRIS, Circuit Judges.
   Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge KING and Judge HARRIS joined.

WILKINSON, Circuit Judge:

Petitioner Johnny Bennett challenges the imposition of a capital sentence in the South Carolina courts. While recognizing full well the deferential standard of review under AEDPA, we nonetheless agree with the district court that the sentencing was suffused with racially coded references to a degree that made a fair proceeding impossible. We therefore affirm the judgment of the district court granting habeas relief.

I.

Bennett, a black man, was convicted in 1995 for murder, kidnapping, armed robbery, and larceny in a South Carolina trial court. In a separate penalty proceeding, the state, with Solicitor Donald Myers at the helm, emphasized the size difference between Bennett (6'6" and 300 pounds) and the victim Benton Smith, a black man with a slight, build (6'7" and 135 pounds). A mixed-race jury sentenced Bennett to death for the murder. On appeal, the South Carolina Supreme Court upheld Bennett’s convictions but reversed his death sentence, ordering the trial court to conduct a new sentencing. State v. Bennett, 328 S.C. 251, 493 S.E.2d 845 (1997) (Bennett I).

The second sentencing proceeding was held in 2000. As in the first trial, Myers led the prosecution and the jury sentenced Bennett to death. But this time, the jury was composed of white jurors only. And before this all-white jury, Myers chose to use racially - charged language from the first sentence of his opening argument to his final soliloquy, casting aside the race-neutral presentation he had employed with the mixed-race jury.

The most egregious- appeals to racial prejudice came in his closing argument, in which he referred to Bennett using a slew of derogatory terms. Myers admonished the jury, “Meeting [Bennett] again will be like meeting King Kong on a bad day.” J.A. 1443. He also labeled Bennett a “caveman,” a “mountain man,” a “monster,” a “big old tiger,” and “[t]he beast of burden.” J.A. 1420-44. In addition, Myers intentionally elicited irrelevant, inflammatory testimony from one of the state’s witnesses, who recounted a dream in which he was chased by murderous, black Indians. While cross-examining a defense witness, Myers alludéd to Bennett’s sfexual partner as “the blonde-headed lady,” J.A. 1343-44, alerting the jury to the interracial nature of the relationship.

Bennett moved for a new trial, but the trial court denied his request. The court found that the “King Kong” comment “was not an appeal to racial prejudice” and was an “invited response” to the defense’s portrayal of Bennett as a peaceful and helpful prison citizen. J.A. 1628-29. As a result, the court concluded, the reference did not result in a denial of due process. The court analyzed the “caveman” comment separately and arrived at the same conclusions.

The South Carolina Supreme Court affirmed the death sentence, holding that the comments “did not improperly inject racial issues into the trial.” State v. Bennett, 369 S.C. 219, 632 S.E.2d 281, 289 (2006) (Bennett II). The court observed that the “King Kong” label “could have racial connotations” but found that Myers’s use of the term “was not an appeal to the passions or prejudices of the jury.” Id. at 288. Instead, the reference conveyed Bennett’s “size and strength as they related to his past crimes” and was an invited response. Id. at 288-89. The court found the “caveman” comment “merely descriptive” of testimony that Bennett had twice pulled someone else by the hair. Id. at 289. The United States Supreme Court denied certiorari. Bennett v. South Carolina, 549 U.S. 1061, 127 S.Ct. 681, 166 L.Ed.2d 530 (2006) (mem.).

In 2008, Bennett sought post-conviction relief (PCR) in state court, arguing that the seating of a racially biased juror violate ed his right to an impartial jury under the Sixth and Fourteenth Amendments. While preparing for the PCR proceeding, Bennett’s counsel interviewed a former juror and asked why the juror thought Bennett committed the murder. The juror responded, “Because he was just a dumb nigger.” J.A. 1846. After hearing testimony from the juror, the PCR court denied relief on the grounds that the juror was not racially biased at the time of the actual sentencing. The South Carolina Supreme Court denied certiorari.

Bennett filed the instant petition for federal habeas relief under 28 U.S.C. § 2254 in 2014. He raised seven grounds for relief, including prosecutorial misconduct and juror bias. After a hearing, the district court granted relief independently on both grounds, vacated Bennett’s death sentence, and “returned] the matter to the Lexington County Court of General Sessions for resentencing within 180 days of [the] order.” Bennett v. Stirling, 170 F.Supp.3d 851, 855 (D.S.C. 2016). According to the district court, the state courts unreasonably determined that the “King Kong” comment, “black Indians" testimony, and “blonde-headed lady” remark were not intentional appeals to racial prejudice. Id. at 861-67. The district court also found unreasonable the PCR court’s determination that the juror was not racially biased at the time of the sentencing. Id at 867-72. The respondents now appeal.

II.

We review de novo the district court’s decision to grant habeas relief under 28 U.S.C. § 2254. Winston v. Pearson, 683 F.3d 489, 503-04 (4th Cir. 2012).

A.

Under Section 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPÁ), a federal court may not grant a state prisoner’s habeas petition unléss the state court’s adjudication of the prisoner’s claim was legally or factually unreasonable. See 28 U.S.C. § 2254(d); Pub. L. No. 104-132, § 104, 110 Stat. 1214, 1218-19 (codified at 28 U.S.C. § 2254). More precisely, Section 2254(d)(1) allows reliéf if the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” § 2254(d)(1). Circuit precedent “cannot form the basis for habe-as relief.” Parker v. Matthews, 567 U.S. 37, 132 S.Ct. 2148, 2155, 183 L.Ed.2d 32 (2012). In addition, “[t]he more general the [federal] rule, the more leeway [state] courts have in reaching outcomes in case-by-case determinations.” Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004). Section 2254(d)(2), in turn, permits relief where the state court’s decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” § 2254(d)(2). A state court’s factual determinations are presumed correct, and the petitioner must rebut this presumption by clear and convincing evidence. § 2254(e)(1).

Federal courts thus owe state tribunals significant deference. In the words of the Supreme Court, “A state court’s determination that a claim lacks merit precludes federal habeas relief So long as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (quoting Yarborough, 541 U.S. at 664, 124 S.Ct. 2140).

Section 2254 thus imposes' a high yet not insurmountable hurdle to relief. The statute “reflects the view that habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice- systems,’ not a substitute for ordinary error correction.” Id. at 102-03, 131 S.Ct. 770 (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in the judgment)). Federal habeas review may not be used “to second-guess the reasonable decisions of state courts.” Renico v. Lett, 559 U.S. 766, 779, 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010). But AEDPA deference is not unlimited. It “does not by definition preclude relief’ and “does not imply abandonment or abdication of judicial review.” Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).

B.

Bennett alleges that the prosecutor appealed to racial prejudice in his capital sentencing proceeding. Accordingly,' the “clearly established Federal law” that governs our analysis is the Supreme Court’s decision in Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). Darden held .that a prosecutor’s improper comments offend the Constitution if they “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Id. at 181, 106 S.Ct. 2464 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)); see Parker, 132 S.Ct. at 2153. Under this standard, it “is not enough that the prosecutors’ remarks were undesirable or even universally condemned.” Darden, 477 U.S. at 180-81, 106 S.Ct. 2464. Courts must- conduct a fact-specific inquiry and examine the challenged comments in the context of the whole record. United States v. Young, 470 U.S. 1, 11-12, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985).

Prosecutors, moreover, retain substantial latitude-to present their case as they see fit. That latitude is not to be casually abridged. The Supreme Court has cautioned that “[t]he line separating acceptable from improper advocacy is not easily drawn.” Id. at- 7, 105 S.Ct. 1038, Accordingly, courts “should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning” or that a jpry “will draw that meaning from the plethora of less damaging interpretations.” Donnelly, 416 U.S. at 647, 94 S.Ct. 1868.

But while a prosecutor “may strike hard blows, he is not at liberty to strike foul ones.” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). It. is beyond dispute that “[t]he Constitution prohibits racially biased pros-ecutorial arguments.” McCleskey v. Kemp, 481 U.S. 279, 309 n.30, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). Racial prejudice, “odious. in all aspects, is especially pernicious in the administration of justice.” Rose v. Mitchell, 443 U.S. 545, 555, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979). For this reason, the Supreme Court has “engaged in ‘unceasing efforts’ to eradicate racial prejudice from our criminal justice system.” McCleskey, 481 U.S. at 309, 107 S.Ct. 1756 (quoting Batson v. Kentucky, 476 U.S. 79, 85, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)).

Finally, we remain sensitive to the Court’s judgment that “the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination.” California v. Ramos, 463 U.S. 992, 998-99, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983). Courts cannot avert their eyes from the risk that “racial prejudice infect[ed] a capital sentencing proceeding ... in light of the complete finality of the death sentence.” Turner v. Murray, 476 U.S. 28, 36, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986) (plurality opinion).

For the reasons that follow, the prosecutor’s argument here exceeded all permissible bounds.

III.

The state courts unreasonably determined that the prosecutor’s references to Bennett during closing argument were not appeals to racial prejudice. Drawing on this flawed factual finding, the courts unreasonably concluded that Bennett’s right to due process was not violated.

A.

We understand that closing arguments can be florid. Vivid expression and exaggeration for effect are many an attorney’s stock-in-trade. But the remarks challenged here were unmistakably calculated to inflame racial fears and apprehensions on the part of the jury. Just before the jury left the courtroom to decide whether Bennett would receive a capital sentence, Myers delivered a final summation in which he alternated between characterizing Bennett as a primitive, subhuman species and a wild, vicious animal. Myers labeled Bennett an “old caveman,” a “mountain man” (twice), a “monster,” and a “big old tiger.” J.A. 1420-34. Referring to the murder and then to Bennett, the prosecutor remarked, “Painful, vile, cruel, inhuman, everywhere. Everywhere. Everywhere. The beast of burden.” J.A. 1444. The coup de gráce in this sad story arrived when Myers warned the jury what would result if it did not impose the death penalty: ‘You give him life, the real Johnny will come back. You give him life and he’ll come back out. Meeting him again will be like meeting King Kong on a bad day. Vile Johnny. Mean Johnny. Manipulating Johnny. Murderous Johnny.” J.A. 1443.

The state courts, most notably the South Carolina Supreme Court, found that the “King Kong” comment was “not an appeal to the passions or prejudices of the jury.” Behnett II, 632 S.E.2d at 288. The state supreme court explained:

[T]he trial court properly determined that [Bennett’s] size and strength were probative of the aggravating circumstance of physical torture, which the [trial] court charged to the jury. In this regard, the Solicitor’s use of the term “King Kong” was not suggestive of a giant black gorilla who abducts a white woman, but rather, descriptive of [Bennett’s] size and stoength as they related to his past crimes.

Id. The court also found that the “caveman” comment was “merely descriptive of two of [Bennett’s] past violent incidents” because the prosecutor made the remark while mentioning how Bennett pulled two individuals by their hair. Id. at 289.

With all respect, these were unreasonable findings of fact. The prosecutor’s comments were poorly disguised appeals to racial prejudice. It is impossible to divorce the prosecutor’s “King Kong” remark, “caveman” label, and other descriptions of a black capital defendant from their odious historical context. And in context, the prosecutor’s comments mined a vein of historical prejudice against African-Americans, who have been appallingly disparaged as primates or members of a subhuman species in some lesser state of evolution. We are mindful that courts “should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning.” Donnelly, 416 U.S. at 647, 94 S.Ct. 1868. But here, “the prosecutor’s remarks were quite focused, unambiguous, and strong.” Caldwell v. Mississippi, 472 U.S. 320, 340, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). The comments plugged into potent symbols of racial prejudice, encouraging the jury to fear Bennett or regard him as less human on account of his race.

The “King Kong” comment especially drew on longtime staples of racial denigration. That comment was “not just humiliating, but degrading and humiliating in the extreme.” Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 285 (4th Cir. 2015) (en banc) (internal quotation marks omitted). Likening Bennett to King Kong in particular stoked race-based fears by conjuring the image of a gargantuan, black ape who goes on a killing spree and proceeds to swing the frail, white, blonde Fay Wray at the top of the Empire State Building. Petitioner is right to note that the film is regarded by many critics as “a racist cautionary tale about interracial romance.” Br. of Appellee at 40 (quoting Phillip Goff et al., Not Yet Human: Implicit Knowledge, Historical Dehumanization, and Contemporary Consequences, 94 J. Personality & Soc. Psychol. 292, 293 (2008)).

In addition to the content of the remarks, the particular circumstances of this case do not leave any doubt that the challenged comments were appeals to racial prejudice, not innocent descriptions of Bennett’s size and strength. The prosecutor easily could have highlighted Bennett’s physical attributes in a race-neutral manner. There was no impediment to the prosecutor’s ability to note “repeated examples of [Bennett’s] proclivity to viciously and savagely attack others defenseless to someone of his size.” Reply Br. of Appellants at 2. Indeed, the prosecutor did so in a race-neutral manner before the earlier mixed-race jury. In addition, the state used cardboard figures without objection in the second sentencing to convey the size disparity between Bennett and his victim. See Br. of Appellants at 38. And of course, the jury could see Bennett and assess his size as he sat in the courtroom. See Br. of Appellee at 50. The prosecutor’s references then were not only gratuitous but were, as the district court explained, “a not so subtle dog whistle on race that this Court cannot and will not ignore.” Bennett, 170 F.Supp.3d at 866.

B.

The South Carolina Supreme Court’s factual determinations with respect to Myers’s close led to its erroneous legal conclusion that Bennett’s due process rights were not violated. It is important to consider the procedural distortion wrought by the challenged remarks. The capital sentencing determination “requires the individual jurors to focus their collective judgment on the unique characteristics of a particular criminal defendant.” McCleskey, 481 U.S. at 311, 107 S.Ct. 1756. Impairing the jury’s ability “to confront and examine the individuality of the defendant would be particularly devastating to any argument for consideration of ... ‘[those] compassionate or mitigating factors stemming from the diverse frailties of humankind.’ ” Caldwell, 472 U.S. at 330, 105 S.Ct. 2633 (quoting Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (plurality opinion)). The prosecutor’s closing comments here risked reducing Bennett to his race and damaged the jury’s ability to consider objectively, and individually, whether merey was warranted.

We must also evaluate the challenged remarks in the context of the record as- a whole. See Young, 470 U.S. at 11-12, 105 S.Ct. 1038. The prosecutor’s opening statement began, “Ladies and gentlemen, you all have seen the defendant, Johnny Bennett; huge, -giant man, six-six, six-seven, brutal monster size.” J.A. 273. In the next breath, Myers branded Bennett a “big old brute.” Id. Drawing to a close, Myers called Bennett a “big old bear of a fellow,” J.A. 277, with a “[b]ig old bear of a fist,” J.A. 280.

The animal imagery was shortly reinforced by racial imagery from one of the state’s witnesses. The ■ witness, Shannon Gilbert, was white and had been assaulted by Bennett several years earlier. The prosecutor asked Gilbert, “Do you have any consciousness about being in a hospital; do you know of any dreams or anything?” J.A. 393. Gilbert began to testify that he remembered only one dream from his stay at the hospital, but the defense objected on relevance grounds. Myers, who plainly knew what Gilbert would say, responded that Gilbert would “bring out the relevance,” Id. Gilbert proceeded to describe his dream: “Indians were chasing me trying to kill me, and the thing that I thought was they were black.... [TJhere might have been a link. You know, that I was remembering something about trying to get away from someone.” J.A. 394. At the district court hearing, the respondents conceded that Myers elicited the testimony and that they could not articulate a purpose for the testimony other than invoking racial fears.

. Myers also made certain that the jury knew that Bennett had a sexual relationship with a white prison guard. Byron Collins, a defense witness, testified that Bennett helped him recover from depression while in prison. Myers’s initial cross-examination consisted of a series of inquiries about whether Bennett had encouraged- Collins to be disruptive or to break prison rules; Collins answered each question in the negative. The defense briefly built on this line of questioning on redirect. On recross, Myers swerved in a different direction and asked, “There was one guard that loved Johnny Bennett and that was Judie Hardee, you remember her?” J.A. 1343. Collins responded, “The real big lady?” Id. Myers answered, “Judie Har-dee, you remember her, the blonde-headed lady?” J.A. 1343-44. Collins said he didn’t remember, and the prosecution rested.

During his closing argument, Myers reminded the jury that Bennett was “having sex with the female guard” no fewer than seven times. J.A. 1441. While the state argues that “it is extremely common today for people to color their hair,” Br. of Appellants at 46, the district court rightly noted that “almost all women with blonde hair are white,” Bennett, 170 F.Supp.3d at 864. As the district court found, “The Solicitor’s carefully choreographed questioning alerted [Bennett’s] all-white jury that his prison guard lover was a white woman.” Id. at 863.

There was therefore nothing isolated about the prosecutor’s racially-charged references to Bennett during closing argument. In Donnelly, the Supreme Court found that a habeas petitioner’s due process rights were not violated in part because the prosecutor’s remark “was but one moment in an extended trial.” Donnelly, 416 U.S. at 645, 94 S.Ct. 1868. Here, in contrast, we do not have “a case where the misconduct of the prosecuting attorney was slight or confined to a single instance, but one where such misconduct was pronounced and persistent, with a probable cumulative effect upon the jury which cannot be disregarded as inconsequential.” Berger, 295 U.S. at 89, 55 S.Ct. 629.

Whether the “black Indians” testimony or the “blonde-headed lady” comment would independently merit reversal is not a question we need answer, Suffice it to say that those comments do nothing to dispel our misgivings about what transpired here. Race was a recurrent theme throughout the capital sentencing proceeding, a theme designed to implant both racial fears and prejudices in the mind of the jury by playing upon ancient staples of racial disparagement and discrimination.

Our ruling does nothing to drain the adversary process of its spontaneity or to suppress the free-wheeling style that some of the finest advocates employ. The proceeding here hardly needed to be run this way. We note once again that in front of the mixed-race jury at the first sentencing, Myers managed to respect the Constitution’s prohibition on appeals to racial prejudice. His closing argument was race-neutral, and he did not elicit testimony on the “black Indians” dream.

When arguing before an all-white jury, however, the prosecutor suddenly and tellingly took a different, race-oriented approach. And though it should not have been necessary by the year 2000, the defense’s repeated objections put Myers on notice that he had come dangerously close to crossing the constitutional line even before his closing argument began. Immediately after Myers referred to Bennett’s sexual partner as “the blonde-headed lady,” the defense moved for a mistrial on the basis of prosecutorial misconduct. Renewing the motion after the jury exited the courtroom, the defense argued that it had repeatedly alerted the court to “the Solicitor’s attempts] to insert race into this case” and that the “blonde-headed-lady” comment was “one of the most despicable performances [the defense had] ever seen.” J.A. 1377.

There can be no fair claim that the prosecutor’s tactics were invited. The state conceded before the district court that there was no improper conduct by the defense; the defense’s witnesses merely portrayed Bennett as a non-violent peacemaker and a model citizen in the prison community. The prosecution had every right, of course, to .paint a dramatically different picture, but through evidence that pointed to the actions .of the man, not the happenstance of his race.

Finally, no curative instructions were given. Unlike the trial judge in Donnelly, who directed the jury to ignore the challenged remark, 416 U.S. at 644, 94 S.Ct. 1868, the state trial court here never instructed the jury on particular comments, such as the “King Kong” and “caveman” references, the “blonde-headed lady” remark, or the “black Indians” testimony. Whether curative instructions would have cured the problem or simply served to reinforce the racial references is a question we need not address, for the jury retired from the courtroom unadmonished and its deliberations reached the prosecution’s desired result.

TV.

Even apart from the deference due them under AEDPA, we emphasize our respect for the efforts of our colleagues in state courts. We stress once again that prosecutors are entitled to significant latitude in pressing their closing arguments. There is no presumption of prejudice from a simple untoward remark; many challenged prose-cutorial comments will amount to little more than fleeting remarks whose impact is negligible in the context of an entire trial. But the prosecutor’s conduct here “so infected the trial with unfairness as to make the resulting [sentence] a denial of due process.” Darden, 477 U.S. at 181, 106 S.Ct. 2464 (quoting Donnelly, 416 U.S. at 643, 94 S.Ct. 1868).

The record here tells the story. There is no need for elaboration on our part. The criminal justice system must win the trust of all Americans by delivering justice without regard to the race or ethnicity of those who come before it. The many instances where the system performs its duties admirably help to build the trust of the people. A proceeding like this one threatens to tear that trust apart.

For the foregoing reasons, the judgment is affirmed.

AFFIRMED

       Our ruling on the prosecutor’s comments makes it unnecessary to consider Bennett’s claim that the seating of a racially biased juror violated his right to an impartial jury.


source: Caselaw Access Project

author: DIANA GRIBBON MOTZ, Circuit Judge:

license: Public Domain

text:
    John David RAPLEE, Jr., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. Maryland Association for Justice, Amicus Supporting Appellant.
    No. 14-1217
    United States Court of Appeals, Fourth Circuit.
    Argued: October 25, 2016
    Decided: November 22, 2016

      ARGUED: L. Palmer Foret, Ashcraft & Gerel, LLP, Rockville, Maryland, for Appellant. Neil R. White, Office of the United States Attorney, Greenbelt, Maryland, for Appellee. ON BRIEF: Wayne Mansulla, Peter T. Anderson, Ashcraft & Gerel, LLP, Rockville, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Office of the United States Attorney, Baltimore, Maryland, for Appellee. Michael J. Winkelman, McCarthy & Winkel-man LLP, Lanham, Maryland, for Amicus Curiae. . ;
    Before NIEMEYER and MOTZ, Circuit Judges, and DAVIS, Senior Circuit Judge.
   Affirmed by published opinion. Judge MOTZ wrote the opinion, in which Judge NIEMEYER and Senior Judge DAVIS joined.

DIANA GRIBBON MOTZ, Circuit Judge:

John Raplee challenges the dismissal of his Federal Tort Claims Act (“FTCA”) complaint as untimely. In compliance with state law, Raplee initially filed a medical malpractice claim with Maryland’s alternative dispute resolution agency. Although he filed with the state agency within the FTCA’s limitations period, he did not file a complaint in federal court until well after that period had passed. Raplee contends that by filing a required state administrative claim, an “action is begun” for the purposes of the FTCA’s limitations period. 28 U.S.C. § 2401(b) (2012). Alternatively, he asserts that equitable tolling principles excuse his failure to comply with the limitations period. Because an “action is begun” under the FTCA only by filing a civil action in federal district court, Raplee’s claim was untimely. Further, he has not demonstrated any extraordinary circumstances warranting equitable tolling. Accordingly, we affirm the judgment of the district court.

I.

In September 2006, Raplee underwent surgery at the National Institutes of Health, an operating division of the United States Department of Health and Human Services (“HHS”). Raplee alleges that the surgeons “negligently positioned]” him while he was under anesthesia, resulting in permanent damage to the muscles and nerves in his left foot.

The FTCA renders the United States liable for the torts of its employees, including the surgeons in this case, “in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674. The FTCA requires a plaintiff pursuing a tort claim to follow a multi-step process. First, a plaintiff must file his claim with the appropriate federal agency, which then has the power to settle or deny it. 28 U-S.C. §§ 2401(b), 2676(a). The plaintiff may file a civil action against the United States only if the agency has denied the claim. 28 U.S.C. § 2675(a).

In November 2006, Raplee retained the law firm Ashcraft & Gerel, LLP to represent him in his medical malpractice claim against the United States. On September 16, 2008, Ashcraft & Gerel, through Martin Trpis, filed Raplee’s claim with HHS.

Trpis had left Ashcraft & Gerel by May 2010 while Raplee’s claim was still under administrative review at HHS. Although lawyers from the firm continued to represent Raplee, no one notified HHS of Trpis’s departure, and no other attorney from Ashcraft & Gerel filed an appearance with HHS.

On June 19, 2012, HHS mailed its notice of final denial by certified letter to Trpis at Ashcraft & Gerel. Section 2401(b) of the FTCA bars any tort claim against the United States unless the “action is begun within six months” after the federal agency mails notice of its denial of the claim. 28 U.S.C. § 2401(b). Therefore, Raplee had until December 19, 2012 to begin an action pursuant to the FTCÁ.

The letter HHS sent to Trpis at Ash-craft & Gerel was returned to HHS as undeliverable. The envelope containing the letter was stamped “Returned to Sender” with a handwritten note explaining that Trpis was “no longer at this company.” HHS confirmed that it had sent the letter to the correct address, but it made no further attempt to send notice of its denial; The record contains no evidence that Ra-plee, Trpis, or anyone else inquired as to the status of Raplee’s claim.

Because the FTCA merely waives sovereign immunity to make the United States amenable to a state tort suit, the substantive law of the state where the tort occurred determines the liability of the United States. 28 U.S.C. § 1346(b)(1); see, e.g., Levin v. United States, — U.S. —, 133 S.Ct. 1224, 1228, 185 L.Ed.2d 343 (2013). Accordingly, as the parties agree, Maryland plaintiffs wishing to bring medical malpractice claims against the United States under the FTCA must comply with Maryland’s pre-filing requirements.

On November 8, 2012, Raplee, represented by an Ashcraft & Gerel lawyer (but not Trpis), filed a claim with Maryland’s Health Care Alternative Dispute Resolution Office. Under Maryland law, a plaintiff must submit a medical malpractice claim to this state agency before filing the claim in court. Md. Code Ann., Cts. & Jud. Proc. § 3-2A-02(a), -04(a)(l)(i) (West 2016). A plaintiff must then submit an expert report certifying that the claim is meritorious within ninety days. Id. § 3-2A-04(b)(l)(i)(l). Once a claimant has submitted ah expert report, he may waive arbitration and proceed to court. Id. § 3-2A-06B(a).

Although Raplee filed his initial claim with the Maryland - agency in November 2012—approximately one month before the FTCA filing deadline in December 2012— he did not file his expert report until February 2013. And he did not waive arbitration until March 2013. Raplee finally filed a complaint with the federal district court on May 3, 2013—nearly five months after expiration of his time to begin an action under § 2401(b).

The United States moved to dismiss Ra-plee’s claim for lack of subject matter jurisdiction. The district court granted the motion because, at the time, we considered the FTCA’s limitations period to be jurisdictional, See, e.g., Gould v. U.S. Dep’t of Health & Human Servs., 905 F.2d 738, 741-42 (4th Cir. 1990) (en banc). On appeal, we held the case in abeyance while the Supreme Court resolved that very issue. In United States v. Kwai Fun Wong, — U.S. —, 135 S.Ct. 1625, 1629, 191 L.Ed.2d 533 (2015), the Court held that the FTCA’s limitations period is not a jurisdictional rule but a claims-processing rule that allows for equitable tolling. In light of this decision, we remahdéd Ra-plee’s case so that the district court could decide whether Raplee was entitled to equitable tolling.' The district court concluded that he was not, reasoning that Raplee failed to show that extraordinary circumstances had prevented him from filing in a timely manner.

On appeal, Raplee contends that his claim was timely because, by filing his claim with the state agency, an “action [was] begun” under § 2401(b) of the FTCA. He also contends that, even if his claim was untimely, he is entitled to equitable tolling. We consider these arguments in turn. ,.

II.

In order to determine whether Ra-plee’s claim was ■ timely, we -must decide when an , “action is begun” -under § 2401(b). We review questions of statutory interpretation de novo. Stone v. Instrumentation Lab. Co., 591 F.3d 239, 242-43 (4th Cir. 2009).

When construing a statute, we start with its text. Lamie v. U.S. Tr., 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004). If the meaning of the text is plain—in other words, if it bears only one reasonable interpretation—that meaning controls. Id. “The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997).

The word “action” in § 2401(b) has only one reasonable meaning: it refers to a federal civil action. The language of the statute and the context in which it occurs confirm this.

“Action” has a settled technical meaning in the law: “action” means a lawsuit. See Black’s Law Dictionary 49 (4th ed. 1951) (“The legal and formal demand of one’s right ... in a court of justice.”). This meaning of “action” has an ancient lineage. See Ex parte Milligan, 71 U.S. (4 Wall.) 2, 112-13, 18 L.Ed. 281 (1866) (“In any legal sense, action, suit, and cause, are convertible terms” and “[i]n law language a suit is the prosecution of some demand in a court of justice.” (quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 407, 5 L.Ed. 257 (1821))).

Moreover, the Supreme Court settled any question about the term’s current meaning when the Court promulgated the Federal Rules of Civil Procedure in 1938. The Federal Rules famously abolished distinctions between various types of judicial proceedings—like the distinction between “actions at law” and “suits in equity”—by announcing that “[t]here shall be one form of action to be known as ‘civil action.’” Fed. R. Civ. P. 2 (1938). The Advisory Committee made clear that this innovation in terminology sought to bring uniformity both to federal civil procedure and the United States Code. Id. advisory committee’s note to 1937 adoption (“Reference to actions at law or suits in equity in all statutes should now be treated as referring to the civil action prescribed in these rules.”).

Congress adopted the language of § 2401(b) against this backdrop, and the statutory context supports the conclusion that all references to “action” in the FTCA refer to a judicial civil lawsuit. For example, § 2401(a)—the text immediately preceding § 2401(b)—provides that “every civil action commenced against the United States shall be barred unless the complaint is filed within six years.” 28 U.S.C. § 2401(a) (emphases added). The next sentence provides an exception: “The action of any person under legal disability or beyond the seas at the time the claim accrues may be commenced within three years after the disability ceases.” Id. (emphasis added). As another example, § 2402 provides that “any action against the United States under section 1346 shall be tried by the court without a jury.” Id. § 2402 (emphases added).

Thus, both the text and statutory context indicate that the word “action” in § 2401(b) refers only to a civil action filed in court. Common sense recommends this understanding all the more strongly when considering a statute of limitations, the very purpose of which is to identify the deadline for filing a lawsuit in court.

The references to § 1346 in the FTCA confirm that the only type of civil action contemplated by § 2401(b) is a federal civil action. See 28 U.S.C. § 1346(b)(1). There can be no doubt that a plaintiff begins an action under the FTCA by bringing “[a] tort claim against the United States.” 28 U.S.C. § 2401(b). But the federal district courts have exclusive jurisdiction over these claims. 28 U.S.C. § 1346(b)(1). Thus, a plaintiff cannot satisfy the FTCA’s limitations period by filing an action with a state agency that lacks jurisdiction over such an action.

Raplee seeks to ignore all of this statutory language. He proposes that an “action is begun” under the FTCA as soon as a plaintiff takes some required step toward pursuing a tort claim against the United States. But that would mean Congress enacted a statute of limitations that says nothing specific about what a plaintiff must do to satisfy the limitations period and nothing at all about when a plaintiff’s time to file a complaint in federal court elapses. This would make no sense.

In sum, § 2401(b) requires a plaintiff to bring a federal civil action within six months after a federal agency mails its notice of final denial of his claim. Of course, the only way to begin a federal civil action is by filing a complaint with a federal district court. Fed. R. Civ. P. 3. Raplee did not file his complaint with the district' court within the six-month limitations period, and therefore his complaint was untimely.

III.

Even so, Raplee contends that the district court erred in refusing to consider his case by tolling the limitations period. In a non-habeas context like this, we generally review denials of equitable tolling for abuse of discretion. Rouse v. Lee, 339 F.3d 238, 247 n.6 (4th Cir. 2003) (en banc). But see Cruz v. Maypa, 773 F.3d 138, 143 (4th Cir. 2014) (noting that in some circumstances review is de novo)'.

Plaintiffs are entitled to equitable tolling only if they show that they have pursued their rights diligently and extraordinary circumstances prevented them from filing on time. See Holland v. Florida, 560 U.S. 631, 649, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). We have explained that equitable tolling is reserved for “those rare instances where—due to circumstances external to the party’s own conduct—it would be unconscionable to enforce the limitation period against the party and gross injustice would result.” Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000). The district court concluded that Raplee failed to demonstrate that extraordinary circumstances prevented him from filing on time. Raplee asserts that the court erred for two reasons.

A.

First, Raplee maintains that HHS wrongfully deprived him of notice that his claim had been denied by failing to send him a second notice. This, he argues, constitutes an extraordinary circumstance.

Wrongful conduct by an opposing party can trigger equitable tolling. Id. However, HHS did nothing wrong in this case. It mailed notice to Raplee’s counsel of record at the address counsel had provided—the offices of Ashcraft & Gerel. When the notice was returned undelivered, - HHS took the extra step of confirming that it had been sent to the correct address, a step the statute does not require. Raplee does not dispute that HHS sent the notice to the correct address, and the unrebutted record evidence shows that it arrived there. We know of no statute or regulation that requires anything more of HHS, and Raplee has pointed to none.

Furthermore, the failure to receive the notice is largely attributable to action or inaction by past and present lawyers at Ashcraft & Gerel. Those lawyers took no steps to ensure that Raplee’s case would be handled seamlessly after Trpis left the firm. They never notified HHS about the departure of one lawyer or the substitution of another. When the certified letter from HH-S arrived at Ashcraft & Gerel’s office, the letter was simply rejected without being opened.

Nothing extraordinary occurred here. This is just the type of thing that can happen when busy lawyers inadvertently fail to handle personnel changes and office mail carefully. Such conduct is unfortunately understandable; it hardly qualifies as an extraordinary circumstance. Cf. Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) (holding that equitable tolling did not apply to an untimely action under the Civil Rights Act where the attorney was out of the country when notice arrived at his office); Rouse, 339 F.3d at 251, 253 (holding that equitable tolling did not apply to a death-row inmate’s habeas petition where inmate’s attorney filed one day late); Harris, 209 F.3d at 331 (holding that an attorney’s misinterpretation of AED-PA’s limitations period did not warrant tolling).

B.

Raplee also contends that Trpis, his original Ashcraft & Gerel attorney, abandoned him and that this constitutes an extraordinary circumstance under the Supreme Court’s decision in Maples v. Thomas, 565 U.S. 266, 132 S.Ct. 912, 181 L.Ed.2d 807 (2012). This argument also fails.

In Maples, a state prisoner on death row procedurally defaulted on his habeas claim because, unbeknownst to him, his attorneys left the firm handling the case and no other attorneys took over for them. The Supreme Court held that the prisoner had demonstrated cause that excused his procedural default because his “attorney abandon[ed] his client without notice, and thereby occasioned] the default.” Id. at 922.

In a habeas case, like Maples, the injustice of holding a petitioner responsible for his attorneys’ abandonment is obvious. There is no redemption for habeas petitioners whose attorneys abandon them in this way. A malpractice suit cannot compensate them for the loss of freedom—or life itself. For that reason, habeas cases are precisely the type of circumstance where abandonment calls for a remedy like equitable tolling.

In contrast, in a civil suit for damages, if a plaintiff misses a deadline because his attorney abandoned him, he can recover those damages from the attorney. For this reason, the Maples rule may not apply in civil actions seeking damages. See Choice Hotels Int’l, Inc. v. Grover, 792 F.3d 753, 755-56 (7th Cir. 2015), cert. denied, — U.S. —, 136 S.Ct. 691, 193 L.Ed.2d 521 (2015) (suggesting as much and declining to apply Maples in a breach of contract case). But see Sneed v. Shinseki, 737 F.3d 719, 728 (Fed. Cir. 2013) (applying Maples, over a dissent, to a veterans’ benefits case because of “[t]he special treatment Congress reserved for veterans”).

We need not—and do not—here resolve the reach of Maples because, even if Maples applies in civil cases, like the case at hand, it does not help Raplee here. Although the facts of this case bear some similarity to those in Maples, they differ in a crucial respect: abandonment by his attorneys did not cause Raplee to miss the filing deadline. Raplee’s original Ashcraft & Gerel attorney left the firm in 2010, but the record offers no evidence that Ashcraft & Gerel lawyers abandoned him. On the contrary, the record clearly establishes other Ashcraft & Gerel attorneys took over Raplee’s case almost two years before the Act’s deadline passed in December 2012. For example, a lawyer from the firm procured the ■ required expert report as early as January 2011. A lawyer from the firm continued to represent Raplee before the state agency and the district court, and a lawyer from Ashcraft' & Gerel continues to represent Raplee in this appeal. Accordingly, whatever abandonment may have occurred in this case had nothing to do with the untimely filing.

IV.

We recognize that, in some cases, state requirements like Maryland’s may place unusually high burdens on FTCA. plaintiffs. It takes time and effort to develop a case and secure credible expert testimony. Moreover, there" is no guarantee that a state agency will process claims swiftly enough to allow a plaintiff to file within the FTCA’s limitations period.

There are, however, procedural devices available to mitigate the burdens of state law filing requirements, A district court has broad power to issue stays to control its docket, and it can use that power to craft a solution to such problems. For example, in a recent case where the plaintiff filed a timely federal FTCA complaint before satisfying Maryland’s pre-filing requirements, Chief Judge Catherine Blake stayed the federal proceedings rather than dismiss the case. Anderson v. United States, Civ. No. CCB-08-3, 2008 WL 3307137, at *4 (D. Md. Aug. 8, 2008). This gave the plaintiff an opportunity to satisfy the state requirements- without risking an untimely federal filing., (Of course, that solution was unavailable here because Ra-plee filed an untimely federal complaint.)

We -recognize’ that deciding whether to stay proceedings, as Judge Blake did, “calls for the exercise of judgment, which must weigh competing interests and maintain an even balance.” Landis v. N. Am. Co., 299 U.S. 248, 254-55, 57 S.Ct. 163, 81 L.Ed. 153 (1936). But in a typical case, allowing plaintiffs to file their federal complaints under the FTCA before completing state law requirements would seem to promote both the objectives of § 2401(b) and the FTCA’s overall purpose of affording private citizens relief for injuries they suffer as a result of the federal government tortfeasors.

This is particularly true given that the FTCA’s limitations period is not a jurisdictional rule but a claims-processing one. Kwai Fun Wong, 135 S.Ct. at 1638. Like other claims-processing rules, § 2401(b) “seek[s] to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times.” Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 435, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011). Plaintiffs cannot avoid this rule absent extraordinary circumstances. However, Congress did not design § 2401(b) as a gauntlet for plaintiffs to run. The statute does not require a plaintiff to complete all state law requirements before filing a complaint with the district court. Rather, a plaintiff fully satisfies the claims-processing objective by filing a complaint with the federal district court within the limitations period while simultaneously working to satisfy state law requirements.

V.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.


text:
    UBS FINANCIAL SERVICES, INC., Petitioner-Appellant, v. Gary T. PADUSSIS, Respondent-Appellee.
    No. 15-2148
    United States Court of Appeals, Fourth Circuit.
    Argued: October 25, 2016
    Decided: November 22, 2016

      ARGUED: Francis X. Dee, McElróy, Deutsch, Mulvanéy & Carpenter, LLP, Newark, New Jersey, for Appellant. Edward Patrick McDermott, Sr.,‘ Law Office of E. Patrick McDermott LLC, Annapolis, Maryland, for Appellee. ON BRIEF: Margaret L. Watson, McElroy, Deutsch, Mul-vaney & Carpenter, LLP, New York, New York, for Appellant.
    Before WILKINSON, KING, and HARRIS, Circuit Judges.
   Affirmed by published opinion. Judge • WILKINSON wrote the opinion, in which Judge KING and Judge HARRIS joined.

WILKINSON, Circuit Judge:

Appellant UBS Financial Services (“UBSFS”) challenges an arbitration award that, in practical effect, granted Gary Padussis over $900,000 in compensatory damages. The district court refused to disturb the award, and we now affirm its judgment. Any other result would open arbitration proceedings to a host of challenges over the very type of subsidiary questions that Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002), indicated should be left to the discretion of the arbitral body.

I.

. Gary Padussis worked for UBSFS as a financial advisor from 2009 through 2013; When he joined UBSFS, Padussis brought with him a team of three financial advisors as well as an established business clientele. As part of his initial compensation, UBSFS lent Padussis over $2.7 million. Padussis signed a promissory note, which provided that any remaining balance would immediately come due if Padussis ended his employment with UBSFS. Pa-dussis also executed a Letter of Understanding describing his compensation and a Financial Advisor Team Agreement governing the operations of his team. All the agreements provided that any dispute would be subject to arbitration before the Financial Industry Regulatory Authority (“FINRA”).

Padussis resigned from UBSFS in 2013, complaining that UBSFS had ruined his team of financial advisors and cost him valuable clients. Upon his resignation, Pa-dussis owed UBSFS the remaining balance on the promissory note, nearly $1.6 million. When he failed to pay that amount, UBSFS initiated arbitration on June 3, 2013. Padussis responded with counterclaims on July 31, 2013, alleging that UBSFS’s interference with his team was both tortious and a breach of contractual duties.

Under the FINRA Code of Arbitration Procedure for Industry Disputes, the Director of FINRA Dispute Resolution is responsible for the process of selecting the panel of three arbitrators required here. First, the Director mails a list of potential arbitrators for each of the three panel positions to each party “within approximately 30 days after the last answer is due.” FINRA Rule 13403. Each “party may strike up to four of the arbitrators from each list” and rank the remaining ones. FINRA Rule 13404. The parties must return their preferences within twenty days of the lists being sent, and the Director then combines the rankings sent by the parties to select the arbitration panel. FINRA Rule 13405.

If a party fails to return its ranked lists within twenty days, the Director proceeds as if that party has no preferences, FIN-RA Rule 13404(d). The Code allows the Director to extend any deadline set by the Code for good cause. FINRA Rulé 13207(c). The Code also gives the Director discretion to “make any decision that is consistent with the purposes of the Code to facilitate the appointment of arbitrators.” FINRA Rule 13412. The Director can delegate these duties. FINRA Rule 13100(k).

In this case, FINRA mailed lists of potential arbitrators to the parties on August 21, 2013. UBSFS did not return its ranked lists by the deadline of September 10 because, UBSFS claims, it never received them.

On September 11, UBSFS received a letter, dated September 3, that reminded the parties of the impending deadline for returning their lists. Realizing that it had missed the deadline, UBSFS'filed a motion to extend the time to submit its preferences. Padussis opposed this motion. He argued that UBSFS notified him in mid-August that it was transferring the case to new counsel but that the new counsel had not yet filed a notice of appearance. Padus-sis claimed that this transfer led to confusion over which counsel was responsible for submitting UBSFS’s preferences.

FINRA’s Regional Director—to whom the Director had apparently delegated responsibility—denied UBSFS’s motion for an extension. UBSFS appealed to the Director, who affirmed the denial. The Director ruled that good cause to extend the deadline did not exist because FINRA had timely mailed the initial lists of arbitrators as well as a courtesy reminder, and had not received any mail returned as undeliverable.

FINRA proceeded to select a panel of three arbitrators based on Padussis’s lists of preferences. At the first panel hearing, UBSFS challenged the composition of the panel based on UBSFS’s lack of participation in the selection of the arbitrators. The panel reviewed the evidence,, denied UBSFS’s challenge, and proceeded with the arbitration.

On October 27, 2014, the panel issued its final decision. The panel.awarded UBSFS $1,683,262 and awarded Padussis $932,887. The decision denied “[a]ny and all relief not specifically addressed.” J.A. 24, Pursuant to the FINRA Code, the decision did not explain the panel’s reasoning.

UBSFS was altogether displeased with this outcome. Padussis insisted that due- to a statutory lien and the prospect of bankruptcy, he would be financially unable to pay the balance of the note, which left UBSFS in the position of owing him over $900,000 for the damage he claimed it had done to his business. UBSFS then filed this action to vacate the arbitral award. It argued that the ai’bitrators were not selected in accordance with the parties’ agreement because UBSFS had not provided its preferences to FINRA. In the alternative,. UBSFS sought to have the district court offset the awards, citing Pa-dussis’s admission that he was unlikely to be able to pay his portion of the judgment. The district court confirmed the arbitration award in its entirety and declined to impose an offset. UBSFS now appeals.

II.

The scope of judicial review of an arbitration award “is among the narrowest known at law.” Apex Plumbing Supply, Inc. v. U.S. Supply Co., Inc., 142 F.3d 188, 193 (4th Cir. 1998). Courts may vacate or modify an arbitration award only under the limited circumstances listed in thé Federal Arbitration Act, 9 U.S.C. § 10-11, or under the common law if the award “fails to draw its essence from the contract” or “evidences a manifest disregard of the law.” Patten v. Signator Ins. Agency, Inc., 441 F.3d 230, 234 (4th Cir. 2006).

This circumscribed scope of review means that “in reviewing such an award, a district or appellate court is lirhit-ed to determine whether the arbitrators did the job they were told to do—not whether they did it well, or correctly, or reasonably, but simply whether they did it.” Three S Del., Inc. v. DataQuick Info. Sys., Inc., 492 F.3d 520, 527 (4th Cir. 2007) (internal quotation marks omitted). To ensure arbitrators did the job they were told to do and did not “exceed[ ] their powers,” 9 U.S.C. § 10(a)(4), courts will resolve certain threshold questions of arbitrability. For example, a court will decide whether parties agreed to arbitrate a particular dispute, AT&T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 651, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986), or whether arbitrators were appointed according to the parties’ agreement. Cargill Rice v. Empresa Nicaraguense Dealimentos Basicos, 25 F.3d 223, 225 (4th Cir. 1994).

Beyond these basic questions of ar-bitrability, courts defer to the arbitral panel both on the merits of the final decision and on procedural questions that “grow out of the dispute,” even where those questions “bear on its final disposition.” Howsam, 537 U.S. at 84, 123 S.Ct. 588 (quoting John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 557, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964)). We need not repair here to .the standards of review customarily applied to fact finding and discretionary procedural rulings because that would simply constitute us, contrary to the Supreme Court’s admonitions, as a typical appellate court.

The “widely recognized” policy “to encourage the. usq of arbitration” requires this limited scope of judicial review. Remmey v. PaineWebber, Inc., 32 F.3d 143, 146 (4th Cir. 1994). Parties agree to arbitration to avoid the time and expense of litigation. But “to allow full scrutiny of such awards would frustrate the purpose of having arbitration at all.” Apex Plumbing, 142 F.3d at 193.

Instead, the narrow standard of review acts as a bulwark against legal ingenuity. Lawyers can easily find one thing or another in almost any proceeding to which they wish to take exception. There are benefits to such legal creativity in many contexts but not in the one before us. Allowing procedural challenges to every award would force parties into court to argue their dispute a second time, incurring the litigation costs and delays they intended to avoid by agreeing to arbitration in the first place.

In other words, the rules that limit our review of arbitration awards are meant to avoid exactly what has happened here, which is a protracted set of judicial proceedings that have sacrificed the very advantages inhering in the arbitral forum.

III.

UBSFS seeks to vacate the arbitral award on two grounds. It first contends that the arbitrators were not selected according to the parties’ agreement. Section 5 of the Federal Arbitration Act provides that if the parties’ arbitration agreement includes a method for appointing arbitrators, “such method shall be followed.” 9 U.S.C. § 5. This court will generally vacate “[a]rbitration awards made by arbitrators not appointed under the method provided in the parties’ contract.” Cargill Rice, 25 F.3d at 226.

The parties here agreed to arbitrate according to the FINRA Code. UBSFS complains that because it never received the lists of arbitrators, the process of appointing arbitrators did not follow the method in the Code. An examination of the record shows, to the contrary, that FINRA adhered to the Code.

FINRA Rule 13403(b) requires that the Director create three lists of potential arbitrators for the panel. FINRA did this. Rule 13403(c)(1) requires that the Director mail these lists to the parties. FINRA did this. Rule 13404(d) requires that if the Director does not receive a party’s ranked lists within twenty days of sending the lists, “the Director will proceed as though the party did not want to” provide its preferences. FINRA did this too. Rules 13405 and 13406 describe how to appoint the arbitrators after receiving the lists, and FINRA followed these rules as well.

Unable to find a specific rule FINRA violated, UBSFS argues that the Code as a whole “ensure[s] that each party ha[s] the opportunity to participate in the selection of arbitrators.” Appellant’s Br. at 23. UBSFS points to the fact that a few rules describe the parties’ participation in selecting arbitrators, but this is unsurprising in a Code that sets forth a process for the mutual selection of arbitrators. The Code simply does not require the participation of each party prior to the valid appointment of an arbitration panel.

In fact, Rule 13404(d) does the opposite. It requires the Director to appoint arbitrators without a party’s input if the Director does not receive that party’s preferences by the deadline. Rule 13404(d) could require the Director to contact the party before proceeding, or it could allow the party an opportunity to rebut any presumption that it did not wish to participate in the selection of the arbitrators. Instead, it simply instructs the Director to act as if the party did not intend to submit ranked lists and to proceed with the appointment of arbitrators. That is exactly what FIN-RA did here.

This case, then, does not involve the question of whether FINRA failed to follow the rules for appointing an arbitrator. FINRA did. Instead, this is a question of whether FINRA properly applied those rules. UBSFS seems to believe that the Director erred in not finding good cause to extend the deadline for UBSFS to submit its preferences under Rule 13207 and in not “exercispng] discretionary authority” to ensure that UBSFS had a say in the composition of the arbitration panel under Rule 13412. These questions, though, are procedural questions and “are for arbitral, rather than judicial, resolution.” Dockser v. Schwartzberg, 433 F.3d 421, 425 (4th Cir. 2006).

While courts decide some questions of arbitrability» the Supreme Court has directed that “ ‘procedural questions which grow out of the dispute and bear on its final disposition’ are presumptively not for the judge, but for an arbitrator, to decide.” Howsam, 537 U.S. at 84, 123 S.Ct. 588 (quoting John Wiley, 376 U.S. at 557, 84 S.Ct. 909). Thus, whether arbitration rules time-bar a claim is for the arbitral body to decide. Howsam, 537 U.S. at 85, 123 S.Ct. 588. Likewise, the arbitral body decides whether arbitration rules require a panel of one or three arbitrators. Dockser, 433 F.3d at 425.

Here, whether good cause existed to extend the deadline was for FINRA to decide. UBSFS argues that it did not receive the lists of arbitrators. Padussis responds that the mailing was never returned to FINRA as undeliverable and that the whole problem was due to UBSFS’s negligence—that UBSFS should have expected the lists shortly after Pa-dussis filed his Answer and Counterclaim but that the matter fell between the cracks at UBSFS due to the transfer of the case to different counsel. This back and forth is rather beside the point. As with other procedural questions, the parties would have expected FINRA to decide this issue because the rules “provide specific nonjudicial procedures for its resolution.” Id. at 426. FINRA rules expressly give the Director the power to “exercise discretionary authority and make any decision that is consistent with the purposes of the Code to facilitate the appointment of arbitrators.” FINRA Rule 13412. UBSFS cannot complain that the Director—rather than the appointed arbitrators—resolved the issue because the parties expressly granted this authority to the Director. Dockser, 433 F.3d at 428.

Moreover, this claim concerns “the written rules governing the parties’ arbitration proceeding,” Id. at 427, and the arbitral body is “comparatively more expert” in applying those rules than courts. Howsam, 537 U.S. at 85, 123 S.Ct. 588. This is especially true here, where the Director can better determine whether an extension of a deadline will help reach a more just outcome or simply deprive the parties of a timely resolution.

We will not second-guess FINRA’s decision that there was not good cause to extend the deadline. The parties agreed to arbitrate their disputes according to rules that clearly gave the Director the authority to make that decision. To -usurp the Director’s authority would be to open courts to legions of questions about whether arbitral bodies properly applied one rule or another. This would deprive parties of the very benefits they sought by agreeing to arbitration—relatively prompt and inexpensive dispute resolution.

IV.

UBSFS next asks this court to impose an offset on the arbitration award. As discussed above, the arbitration panel here found that (1) Padussis owed.UBSFS $1.68 million on the promissory note (which Par dussis contends he would be unable to pay) and that (2) UBSFS was liable to Padussis for $932,000 based on his various employment claims. Offsetting the damages granted to Padussis from the $1.68 million would result in a net award to UBSFS of about $750,000, entirely cancelling out Pa-dussis’s award and freeing UBSFS of the need to cut a check'. This court has previously recognized that “an offset of arbitration awards might constitute a modification of the award in some circumstances.” Nat’l Risk Underwriters, Inc. v. Occidental Fire & Cas. Co. of N.C., 931 F.2d 1015, 1017 (4th Cir. 1991). While such circumstances did not exist in that case, they do exist here. This arbitration award expressly denied “[a]ny and all relief not specifically addressed” by the award, and the award did not mention an offset. J.A. 24. Thus, applying an offset to this award would be a modification of the award.

Under the Federal Arbitration Act, a court can modify an award only under specific, narrow circumstances. Relevant here, a court may modify an award “[w]here the award is imperfect in matter of form not affecting the merits of the controversy.” 9 U.S.C. § 11. Any order to modify an award must “effect the intent thereof and promote justice between the parties.” Id.

Assuming arguendo that imposing an offset would be a “matter of form not affecting the merits of the controversy,” an offset here would not effectuate the intent of the arbitrators, and we thus decline to impose one. The award itself is silent on the question of an offset, and there is no evidence’ in the record that would enable us to say that the arbitrators intended for the award to include one.

UBSFS contends that an offset “would not change the arbitrators’ valuation decision” but would provide a “simple, fair” result, which must have been the intent of the arbitrators. Appellant’s Reply Br. at 25-26. An offset, though, changes the practical effect of the award. In a similar situation, a FINRA arbitration panel heard arguments for and against an offset and declined to provide one. UBS Fin. Servs., Inc. v. Mann, No. 14-10621, 2014 WL 1746249, at *3 (E.D. Mich. Apr. 30,.2014). We cannot know what the arbitration panel in this case would have ruled if UBSFS had asked it to provide an offset. That decision, though, was for the arbitration panel, and UBSFS should have asked the panel to make it. For whatever reason, it did not do so, and the question is simply not one for the courts to answer.

UBSFS also argues that regardless of the arbitrators’ actual intent, we should recognize a presumption favoring an offset. However, imposing such a presumption would place a judicial gloss on the arbitration award. Such a gloss is inappropriate here, where ■ the award expressly limits itself to the relief specifically addressed and was rendered pursuant to a detailed set of rules. As the Seventh Circuit has noted, the “arbitrator’s failure to mention offsets in his ruling means that no offset was granted.” Int’l Union of Operating Eng’rs, Local No. 841 v. Murphy Co., 82 F.3d 185, 190 (7th Cir. 1996).

V.

When all is said and done, UBSFS plainly agreed to a process and then declined to abide by the result of that process. It agreed to arbitration; the dispute was within the scope of that agreement; and the rules by which the arbitration would proceed were openly declared and followed. The arbitration here spanned eighteen hearing sessions over nine separate days. We can find no basis for overturning the arbitral decision. The district court’s denial of UBSFS’s motion to vacate the award is therefore

AFFIRMED.

      . UBSFS also contends that we should vacate the award on the common law ground that the award "fails to draw its essence from the contract.” Patten, 441 F.3d at 234. UBSFS relies on its argument that FINRA disregarded the agreed-upon method of selecting arbitrators. As discussed above, FINRA followed those rules. We thus find UBSFS’s common law claim meritless.

      . In fact, FINRA has since amended its rules to provide for a presumption of an offset, but that amendment is effective only for arbitration awards rendered after October 24, 2016. Press Release, FINRA, Regulatory Notice 16-36: SEC Approves Amendments to the Codes of Arbitration Procedure Regarding Award Offsets (Sept. 2016); see also Order Approving a Proposed Rule Change to Permit Award Offsets in Arbitration, Exchange Act Release NO. 78557, 81 Fed. Reg. 54,901 (Aug. 11, 2016). For us to rewrite that amendment to make it effective for an arbitration award rendered in October 2014 would be to displace FINRA’s authority over its own arbitral proceedings. We must therefore observe the rules in place at the time of the arbitration.


author: FLOYD, Circuit Judge:

text:
    Nicanor Perez RODRIGUEZ, Petitioner-Appellant, v. Dennis BUSH, Warden, Respondent-Appellee. Nicanor Perez Rodriguez, Petitioner-Appellant, v. Dennis Bush, Warden, Respondent-Appellee.
    No. 14-7297, No. 15-6716
    United States Court of Appeals, Fourth Circuit.
    Argued: September 20, 2016
    Decided: November 23, 2016

      ARGUED: Matthew Jay Kappel, Green-ville, South Carolina, for Appellant. Alphonso Simon, Jr., Office of the Attorney General of South Carolina, Columbia, South Carolina, for Appellee. ON BRIEF: Alan Wilson, Attorney General, John W. McIntosh, Chief Deputy Attorney General, Donald J. Zelenka, Assistant Deputy Attorney General, Office of the Attorney General of South Carolina, Columbia, South Carolina, for Appellee.
    Before KEENAN, FLOYD, and THACKER, Circuit Judges.
   Affirmed by published opinion. Judge FLOYD wrote the opinion, in which Judge KEENAN and Judge THACKER joined.

FLOYD, Circuit Judge:

Nicanor Perez Rodriguez appeals the order of the district court below denying his 28 U.S.C. § 2254 petition.

Immediately before Rodriguez’s state criminal trial for drug trafficking, the trial judge rejected a plea agreement reached between Rodriguez and the state prosecutor. The judge did so off the record, and gave no reason for this rejection other than stating that he “was ready to try a case.” J.A. 167. Rodriguez’s attorney did not object to the rejection of the plea, nor did he ask the judge to place his reasons for rejecting the plea on the record. Rodriguez contends that his counsel’s failure to object constitutes ineffective assistance of counsel. He asks this Court for relief under 28 U.S.C. § 2254.

To prevail on an ineffective assistance of counsel claim, Rodriguez must show (1) “that counsel’s performance was deficient” and (2) “that the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Rodriguez has not shown that his defense was prejudiced by his counsel’s alleged error. For this reason, we affirm the decision of the district court.

I.

In 2009, a South Carolina jury convicted Rodriguez on multiple counts of drug trafficking. The trial court sentenced Rodriguez to an aggregate term of 45 years of imprisonment.

In 2010, Rodriguez filed in state court a motion for postconviction relief (the “PCR Motion”). In his PCR Motion, Rodriguez asserted that the trial court violated his federal due process rights by refusing to allow him to enter a guilty plea pursuant to a negotiated plea agreement. Rodriguez also alleged that his trial counsel provided ineffective assistance by failing to object to the trial court’s rejection of his plea, which then precluded appellate review of the issue.

The state court held an evidentiary hearing on the PCR Motion. At the hearing, Rodriguez’s trial counsel, James Er-vin, testified that prior to Rodriguez’s trial, the state offered Rodriguez a plea deal with a recommended- 25-year’ sentence, which Rodriguez rejected; On the day of trial,, the state offered Rodriguez a new plea agreement with a recommended sentence of 20 years, which Rodriguez accepted. The state made similar offers to Rodriguez’s co-defendants, whose cases were also scheduled to go to trial that day.

The trial judge accepted Rodriguez’s co-defendants’s pleas. The prosecutor and Er-vin then approached the trial judge in chambers to inform him of Rodriguez’s plea agreement. Ervin testified that the trial judge said that “he was not going to accept the plea and that he was ready to try a case this week or that week.” J.A. 167. Ervin testified, “I’d never had that happen before.... So I was, myself, professionally confused as to how to proceed.” J.A. 168. Ervin explained that he attempted to persuade the judge to accept the plea deal, noting that the judge had just accepted Rodriguez’s co-defendants’. similar pleas. Ervin did not, however, object to or mention the court’s rejection of the plea agreement on the record. The trial judge never stated on the record why he refused the plea agreement.

The state court denied the PCR Motion as relevant to this appeal. It identified the relevant issues presented as:

(1) Ineffective assistance of counsel:
b. Failure to object to the trial judge’s decision not to accept the plea recommendation.
(2) Trial judge’s refusal to accept the plea recommendation was a denial of • due process.

J.A. 190. The court held that Rodriguez failed to meet his burden to show that Ervin should have objected to the judge’s refusal to accept the plea agreement, and that Rodriguez could not prove prejudice. Additionally, the court held that Rodriguez’s due process rights had • not been violated.

Rodriguez then filed a petition for a writ of certiorari in the Supreme Court of South Carolina, challenging the denial of the PCR motion. In a summary opinion, the Supreme Court of South Carolina denied Rodriguez’s petition for certiorari on this issue. See Rodriguez v. State, No. 2013-MO-023, 2013 WL 8596567 (S.C. Aug. 14, 2013) (per curiam).

Rodriguez then filed the instant § 2254 petition. The district court below denied his. petition. Rodriguez then filed a motion for a certificate of appealability, which this Court granted.

II.

A.

This Court reviews de novo the district court’s decision denying Rodriguez’s § 2254 petition. Grueninger v. Dir., Va. Dep’t of Corr., 813 F.3d 517, 523 (4th Cir. 2016). When a state court has adjudicated a § 2254 petitioner’s claim on the merits, however, the § 2254 petition may only be granted if the adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,

28 U.S.C. § 2254(d). To establish that a state court - unreasonably applied federal law, a petitioner must demonstrate “that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).

To demonstrate ineffective assistance of counsel, Rodriguez must show (1) “that counsel’s performance was deficient,” and (2) “that the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Because the state court addressed the ineffective assistance claim in denying Rodriguez’s PCR Motion, Rodriguez must establish under § 2254(d) that the state court unreasonably applied Strickland. The inquiry is thus “whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Harrington, 562 U.S. at 105, 131 S.Ct. 770. “The standards created by Strickland and § 2254(d) are both highly deferential and when the two apply in.tandem, review is doubly so.” Id. (internal quotation marks and citations omitted).

Although Strickland is a two-prong test, “a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a. result of the alleged deficiencies .... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ... that course should be followed/’ Strickland, 466 U.S. at 697, 104 S.Ct. 2052. Here, Rodriguez’s claim .can be disposed of on the “prejudice” prong.

To prove prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a .probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. A defendant is not prejudiced if his counsel fails to make an objection that is “wholly meritless under current governing law[.]” Lockhart v. Fretwell, 506 U.S. 364, 374, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993).

B.

Rodriguez contends that his counsel was ineffective because he failed to object to the rejection of the plea agreement and preserve the issue for appellate review. He argues that his counsel should have objected and alleged a violation of federal due process. We hold, however, that an objection claiming a violation of federal due process rights would, in this case, have been wholly meritless. The Supreme Court has clearly stated that there is no federal right that a plea be accepted by a judge. Missouri v. Frye, 566 U.S. 133, 132 S.Ct. 1399, 1410, 182 L.Ed.2d 379 (2012). As a result, Rodriguez was not prejudiced by his counsel's failure to object.

Rodriguez’s claim that the judge’s rejection of his plea violated his federal due process rights is based on language in Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Santo-bello states, “There is, of course, no absolute right to have a guilty plea accepted. A court may reject a plea in' exercise of sound judicial discretion.” Id. (citations omitted). Rodriguez asserts that this statement creates a federal due process right that a plea only be rejected in the “exercise of sound judicial discretion.”

This contention, however, is misplaced, This reading of Santobello is itself untenable, and moreover, in cases after Santobel-lo, the Supreme Court has made clear that there is no federal due process right that a plea be accepted, stating, “a defendant has no right to be offered a plea, nor a federal right that the judge accept it.” Frye, 132 S.Ct. at 1410 (citations omitted). Notably, the Court even cited Santobello in support of this proposition. See id.

This same language was repeated in Lafler v. Cooper, 566 U.S. 156, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). See id. at 1387 (quoting Frye, 132 S.Ct. at 1410). In Lafler, the Supreme Court explained how the Strickland standard for ineffective assistance should be applied when an attorney errs in advising a defendant not to accept a plea agreement. Id The Court went on to explain, “If no plea offer is made, or a plea deal is accepted by the defendant but rejected by the judge, the issue raised here simply does not arise.” Id. (emphasis added). This further demonstrates that there is no due process right that a plea be accepted by a judge.

In addition, this Court has also acknowledged that there is no constitutional right that a plea bargain be accepted, stating, “[a] defendant has no constitutional right to a plea bargain. Nor is there a constitutional right to have a plea bargain, once made, accepted by the court.... [T]he court may accept or reject the plea at its discretion.” Fields v. Attorney Gen. of Md., 956 F.2d 1290, 1297 n.19 (4th Cir. 1992) (citations omitted); Again, Santobello was cited for this proposition. See id.

Based on the above interpretations of Santobello by the Supreme Court and by this Court, there is not a valid argument that Santobello announced a constitutional due process right that a judge, accept a plea bargain. For this reason, an objection to a judge’s plea rejection based on Santo-bello .does not have merit. Rodriguez was therefore not prejudiced by his attorney’s failure to make this meritless objection.

iii.

Rodriguez has not demonstrated prejudice in this case. The objection he contends that his attorney should have made is without merit. As a result, we hold that the state PCR court’s determination that Rodriguez was not prejudiced is reasonable, and the district court below did not err -in denying Rodriguez’s request for relief under 28 U.S.C. § 2254. Accordingly, the judgment below is

AFFIRMED.

      . Rodriguez raised another claim, regarding his counsel’s failure to inform him of his right to appeal, but this claim is not relevant here.

      . Rodriguez also presented the direct appeal issue, not relevant here, which the court considered and dismissed.

      . Rodriguez also briefly argues that Rule 11 of the Federal Rules of Criminal Procedure regulates a state judge’s ability to reject a plea agreement. This argument is without merit as well. Rodriguez’s trial was a state trial. The Federal Rules of Criminal Procedure apply to federal trials, not state trials. See Fed. R.Crim.P. 1(a)(1) ("These rules govern the procedure in all criminal proceedings in the United States district courts, the United States courts of appeals, and the Supreme Court of the United States.”); Wade v. Coiner, 468 F.2d 1059, 1060 (4th Cir. 1972) (stating that state courts are not bound by Rule 11).

      . Rodriguez also points to Seventh' Circuit precedent for his contention that Santobello created a federal due process right that a plea be accepted; however, the cases he cites involve appeals from federal district courts (rather than state courts), and the interpretation of Rule 11. None of these cases invoke due process in their analysis. See, e,g., United States v. Delegal, 678 F.2d 47, 50 (7th Cir. 1982); United States v. Davis, 516 F.2d 574, 578 (7th Cir. 1975).


author: JAMES E. GRAVES, JR., Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee v. Leighton COMRIE, Defendant-Appellant
    No. 15-31072
    United States Court of Appeals, Fifth Circuit.
    FILED November 16, 2016

      Jeffrey Ryan McLaren, Kevin G. Boit-mann, Diane Hollenshead Copes, Esq., Michael Edward McMahon, Esq., Assistant U.S. Attorneys, U.S., Attorney’s Office, Eastern District of Louisiana, New Orleans, LA, for Plaintiff-Appellee..
    Michael Boland Admirand, Federal Public Defender’s Office, Eastern District of Louisiana, New Orleans, LA, for Defendant-Appellant.
    Before JOLLY, HAYNES, and GRAVES, Circuit Judges.
   JAMES E. GRAVES, JR., Circuit Judge:

In this appeal, a defendant urges us to vacate his conviction and sentence pursuant to a Religious Freedom Restoration Act (“RFRA”) defense he concedes was never presented to the district court. Finding no reversible plain error, we AFFIRM.

FACTUAL BACKGROUND

On Christmas Eve, 2014, Louisiana Probation and Parole officers made a routine visit to Leighton Comrie’s home. Comrie’s brother-in-law let the officers into the residence, and the officers “detected a strong odor of marijuana.” Officers saw Comrie exit the master bathroom “holding a marijuana cigarette.” The probation officers summoned the New Orleans Police Department, and “recovered” the following items from Comrie’s home: “a .357 caliber ... revolver, ... 82 rounds of .357 [caliber] ammunition, ... 313 rounds of .22 [caliber] ammunition, 50 rounds of .45. caliber ammunition,” either 3 or 4 shooting range target sheets, and “approximately 12 grams [of] marijuana.”

Comrie subsequently entered an unconditional guilty plea for violations of 21 U.S.C. § 844(a), which criminalizes possession of controlled substances (here, marijuana), and 18 U.S.C. § 922(g), which forbids certain classes of people (here, an individual with a prior felony conviction) from possessing firearms.

During the proceedings below, connections between Comrie’s marijuana use and his affiliation with the Rastafari religion entered the record through two sources: (1) the U.S. Probation Office’s presentence investigation report, and (2) an oral statement offered by Comrie’s wife.

The presentence report, which the district court adopted “as its findings of fact,” includes quotations through which Comrie directly linked marijuana use and Rasta-fari religious practices. According to Com-rie, he grew up under the care of grandparents in Trenchtown, Kingston, Jamaica. There, at age seven, Comrie began using marijuana in connection with his Rastafari faith. According to Comrie, he thus grew up “smoking weed, reading the bible, and praising God.” Neither Comrie nor the Government objected to the presentence report.

At the sentencing hearing, Comrie’s wife stated, “[h]e had marijuana ... and it’s a part of his religion, and it wasn’t right, with all due respect to the Court.” After defense counsel presented argument regarding mitigating circumstances, Comrie confirmed that did not wish to withdraw his guilty plea.

The district court rendered concurrent sentences of 15 months imprisonment, “with credit for time served in federal prison or waiting for federal prison,” for each of Comrie’s two offenses.

' Comrie -now appeals his marijuana possession conviction and sentence.

JURISDICTION

The district court had jurisdiction over this federal criminal case under 18 U.S.C. § 3231. This Court has appellate jurisdiction to review Comrie’s conviction and sentence under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

STANDARD OF REVIEW

The parties suggest that we should review the record for plain error. See Appellant’s Br. at 7; Appellee’s Br. at 5. Though Comrie’s failure to raise a RFRA defense below may constitute a waiver, the Government candidly conceded at oral argument that its briefing did not urge us to deem Comrie’s argument waived. We therefore apply the plain error standard.

“To succeed on plain error review, [Comrie] must show (1) a forfeited error, (2) that is clear or obvious, and (3) that affects [his] substantial rights.” United States v. Cordova-Soto, 804 F.3d 714, 722 (5th Cir. 2015) (citing Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009)), cert. denied, — U.S. —, 136 S.Ct. 2507, 195 L.Ed.2d 840 (2016). “If an appellant makes such a showing, we may exercise our discretion ‘to remedy the error only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.’” Id. (quoting Puckett, 556 U.S. at 135, 129 S.Ct. 1423) (ellipsis and brackets omitted).

ANALYSIS

Our holding that no reversible plain error exists flows necessarily from our conclusion that the district court committed no error. We would not, in this case, exercise our remedial discretion even if we perceived an error, because we discern no threat to “the fairness, integrity or public reputation of judicial proceedings” ■ in the district court’s failure to unilaterally raise and consider a RFRA defense that Comrie himself never asserted. See United States v. Muhammad, 165 F.3d 327, 337 (5th Cir. 1999) (concluding that a RFRA defense raised “for the first time on appeal” would not warrant the exercise of remedial discretion under the final prong of plain error review).

I. Absence of Error

As a threshold matter, we hold that the district court committed no error when it accepted Comrie’s plea and sentenced him without identifying, sua sponte, and expressly considering possible RFRA arguments.

“Congress enacted RFRA in order to provide greater protection for religious exercise than is available under the First Amendment.” Holt v. Hobbs, — U.S. —, 135 S.Ct. 853, 859-60, 190 L.Ed.2d 747 (2015). “A person whose religious practices are burdened in violation of RFRA ‘may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief.’ ” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 424, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006) (quoting 42 U.S.C. § 2000bb-l(c)).

Notably, the statutory framework depends upon litigants to affirmatively invoke RFRA defenses. See Muhammad, 165 F.3d at 336-37 (applying plain error standard of review where appellant only raised a RFRA argument “for the first time on appeal”); see also Hankins v. Lyght, 441 F.3d 96, 104 (2d Cir. 2006) (“A party may certainly waive or forfeit a RFRA defense by, failing to argue that a law or action substantially burdens the party’s religion,”). To claim RFRA’s protections, a person “must show that (1) the relevant religious exercise is ‘grounded in a sincerely held religious belief and (2) the government’s action or policy ‘substantially burdens that exercise by, for example, forcing the plaintiff to engage in conduct that seriously violates his or her religious beliefs.’” Ali v. Stephens, 822 F.3d 776, 782-783 (5th Cir. 2016) (quoting Holt, 135 S.Ct. at 862) (brackets and internal quotations omitted). Only “if the [religious person] carries this burden” does the government “bear[ ] the burden of proof to show that its action or policy (Í) is in furtherance of a compelling governmental interest and (2) is the least restrictive means of "furthering that interest.” Id, at 783. ■

In this case, even assuming for the sake of argumeht that Comrie’s statements recorded in the presentence report and his wife’s statements at the sentencing hearing would satisfy Comrie’s initial RFRA burdens, Comrie never “assertfed]” a RFRA violation “as a claim or defense” below. See 42 U.S.C. § 2000bb-l(c); see also Appellant’s Br. at 7 (conceding that “Comrie did not raise, this defense below — ”). Instead, Comrie entered a guilty plea.

We conclude that the district court committed no error, and certainly no reversible “plain error,” when it accepted Comrie’s plea and sentenced him without reference to an unraised RFRA defense. Cf. Musacchio v. United States, — U.S. —, 136 S.Ct. 709, 718, 193 L.Ed.2d 639 (2016) (“We conclude ... that a district court’s failure to enforce an unraised limitations defense under [18 U.S.C.] § 3282(a) cannot be a plain error.”). Com-rie’s appeal, therefore, fails to satisfy the first prong of our plain error review.

II. Remedial Discretion

' We further note that "even if Comrie could satisfy the first three prongs of our plain error review standard, his appeal does not present circumstances warranting our discretionary intervention. Upon plain error review, “we may exercise our discretion ‘to remedy [an] error only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.’ ” Cordova-Soto, 804 F.3d at 722 (quoting Puckett, 556 U.S. at 135, 129 S.Ct. 1423) (ellipsis and original brackets omitted).

Comrie’s failure to raise RFRA arguments below deprived the district court of its best opportunity to consider the “fact-driven” RFRA analysis, and left the Government with “no opportunity to present factual evidence of either its compelling governmental interests or the legitimate ... objectives to be served—” See Muhammad, 165 F.3d at 337. “[0]ne of the most important purposes of the plain error rule ... is to require parties to present issues to the district court for resolution, and potentially avoid unnecessary, wasteful appeals as to issues that the district court might have decided in the appellant’s favor, had the court simply been given an opportunity to do so.” Id. Under the circumstances of this case, we conclude that “the fairness, integrity, and public reputation of judicial proceedings are not seriously affected by our discretionary decision to enforce our long-standing, well-established, salutary requirement that issues be first considered by the district court.” See id.

CONCLUSION

We hold that the district court did not err by accepting Comrie’s guilty plea and sentencing him without reference to Com-rie’s unraised RFRA arguments. Under the circumstances presented by this case, moreover, the error Comrie perceives would not persuade us to exercise our remedial discretion. Accordingly, we AFFIRM.

      . Comrie was on probation pursuant to his 2013 conviction for possession with intent to distribute marijuana.

      . In context, this use of the word “it” refers to Comrie’s prosecution.

      . Because we hold Comrie demonstrates no reversible plain error, we leave open the question of whether we could withhold appellate review altogether, pursuant to our waiver doctrine. See Musacchio v. United States, — U.S. —, 136 S.Ct. 709, 718 & n.3, 193 L.Ed.2d 639 (2016) (holding that a district court’s "failure to enforce” an unraised limitations defense under 18 U.S.C. § 3282(a) "cannot be a plain error,” and consequently leaving open the question of "whether the failure to raise that defense in the District Court amounted] to waiver _”). In a case predating the Supreme Court’s Musacchio decision, this Court applied plain error review to an un-raised RFRA argument. See United States v. Muhammad, 165 F.3d 327, 336 (5th Cir. 1999) (applying plain error review to First Amendment and RFRA arguments "raised for the first time on appeal”).

      . Ali construed the Religious Land Use and Institutionalized Persons Act of 2000 (RLUI-PA), 42 U.S.C. § 2000cc, not RFRA. The precedent provides guidance in RFRA cases, however, since the RLUIPA "mirrors RFRA” and allows persons "to seek religious accommodations pursuant to the same standard as set forth in RFRA,” See Holt, 135 S.Ct. at 860 (quoting O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. at 436, 126 S.Ct. 1211).