author: HULL, Circuit Judge:

text:
    Harvey L. TUCKER, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
    No. 16-11042
    United States Court of Appeals, Eleventh Circuit.
    Date Filed: 11/21/2016

      Merritt A. Gardner, Gardner- Law Office, Tampa, FL, for Petitioner-Appellant.
    Julie Ciamporcero Avetta, Richard Far-ber, U.S. Department of Justice, Chief Appellate Section Tax Division, Washington, DC, Gary A. Begun, Miriam C. Dillard, Internal Revenue Service, Jacksonville, FL, for Respondent-Appellee.
    Before TJOFLAT and HULL, Circuit Judges, and MENDOZA, District Judge.

       Honorable Carlos Eduardo Mendoza, United States District Judge, for the Middle District of Florida, sitting by designation.

   HULL, Circuit Judge:

Appellant Harvey L. Tucker petitions for review of the United States Tax Court’s decision upholding the Commissioner of Internal Revenue’s (the “Commissioner”) determination that he owes income tax deficiencies and related penalties for 2004, 2005, and 2006. After review and oral argument, we affirm.

I. FACTUAL BACKGROUND

A. Tucker’s Real Estate Development Company

At all times relevant to this appeal, Tucker was the president, director, and sole shareholder of a Florida “S” corporation called Paragon Homes Corporation (“Paragon”), which was in the business of real estate acquisition, development, and sales. Paragon was incorporated in November 1997. Paragon filed annual reports in 2008, 2010, and 2011. Paragon remained an active corporation until September 28, 2012. Paragon owned several properties in Hillsborough County, Florida, including multiacre tracts, platted subdivisions, lots, and single-family homes. At the beginning of 2008, Paragon was a solvent company meeting its payroll and paying its mortgage obligations, rent, insurance premiums, real estate taxes, and utility bills.

In order to obtain the funds to purchase real property, Paragon took out mortgages with several banks, including Platinum Bank (“Platinum”), Branch Banking & Trust Co. (“BB&T”), Wachovia Bank (“Wachovia”), and Fidelity Bank (“Fidelity”). All mortgages were with recourse to Paragon. Tucker also personally guaranteed the mortgage loans on Paragon’s properties.

B. The 2008 Housing Market Crash

In 2007 and 2008, the residential real estate market in Hillsborough County went into sharp decline, with annual housing starts down 79% from their peak in June 2006, annual closings down 65% from that date, and with a 36% decline in median home price for a single-family unit.

According to Tucker’s trial testimony, Paragon was out of business and insolvent by the end of 2008. Paragon had no sales and no revenue. As a result, Paragon “cease[d] ... operations” at the end of 2008—it closed its office, dismissed its employees, and stopped making payments on its mortgages, insurance premiums, and taxes. At the close of 2008, Paragon had little over $12,000 in its bank accounts. In Tucker’s mind, Paragon’s real estate inventory—individually and in the aggregate—was “worthless” as of December 31, 2008, because “prices had fallen through the floor. There was no demand and we couldn’t generate any sales. So, Paragon Homes ... had no value, had a negative value.”

C. Paragon’s Properties

According to the record evidence, Paragon owned (and owed mortgages on) the following properties as of December 31, 2008:

D, Paragon Disposes of its Properties

Even after Paragon was allegedly shuttered at the end of 2008, Tucker was aware of his continuing obligations on the mortgages. He claimed that, at the end of 2008, he owed more than $2 million on Paragon’s “underwater” properties.

In the summer of 2009, Tucker transferred funds to Paragon, a move he later called a “disastrous mistake.” Specifically, bank records for Paragon’s business account show deposits / credits of $85,028 in June 2009; $70,000 in July 2009; $460,000 in August 2009; and $772,525.81 in September 2009. Tucker testified that he did this in order to use Paragon as a “conduit” to discharge his liabilities and “protect” himself. Tucker testified that he wished to complete and sell homes under construction in order to pay off the mortgages and limit his personal losses.

According to Tucker, he continued acting throughout 2009 and 2010 solely to mitigate his personal losses. Tucker testified that this infusion of money was not a capital contribution to Paragon, nor did he on any occasion act to save or protect Paragon.

The record shows that the properties and mortgages were disposed of as follows:

1. Properties Secured by Mortgages from Platinum

On October 27, 2008, Platinum filed a foreclosure lawsuit against Tucker and Paragon in the Circuit Court for Hillsbor-ough County, Florida. On February 11, 2009, a final judgment of foreclosure was entered in favor of Platinum. On October 12, 2009, Platinum, Paragon, and Tucker entered into a Mutual General Release, which relieved Tucker and Paragon of all liabilities on the properties in exchange for a $275,000 payment. Tucker testified that he alone paid the settlement amount.

2. Properties Secured by Mortgages from BB&T

On September 24, 2008, BB&T filed a foreclosure lawsuit against Tucker and Paragon in the Circuit Court for Hillsbor-ough County, Florida. On March 4, 2009, a final judgment of foreclosure was entered in favor of BB&T. On September 9, 2009, BB&T, Paragon, and Tucker entered into a.Settlement Agreement and Release of Claims, which relieved Tucker and Paragon of all liabilities on the properties, as well as Paragon’s line of. credit with BB&T, in exchange for a $160,000 payment. Tucker testified that he alone paid the settlement amount. Yet Paragon’s business account reflects a $160,000 check drawn on Paragon’s account on September 4, 2009.

3.. Properties Secured by Mortgages from Fidelity

On May 12, 2009, Tucker, through Paragon, signed and filed a Notice of Commencement as to Walden Reserve—Lot 8 / Block 2, identifying Paragon as the owner and contractor for a single-family residence to be built on this property. As Tucker explained, this was an attempt “to finish the [construction of the property] to put [it] in a saleable condition to help mitigate my damages.” Tucker stated that the Notice of Commencement was in Paragon’s name because Paragon was the named owner of the property.

On September 25, 2009, another lot in Walden Reserve (Lot 15 / Block 2) was sold for $239,000, satisfying the mortgage obligation on that property. On October 29, 2009, Misty Glen—Lot 5 / Block B was sold for $254,000, satisfying the mortgage obligation on that property.

On March 1, 2010, Fidelity filed a foreclosure suit against Tucker and Paragon in the Circuit Court for Hillsborough County, Florida, seeking foreclosure on 33 lots in a tract identified as Walden Reserve. On February 23, 2011, a final judgment of foreclosure was entered in favor of Fidelity-

On July 28,,2010,'Walden Reserve—Lot 3, Block 2 was sold for $210,000, satisfying the mortgage obligation on that property.

4. Properties Secured by Mortgages from Wachovia

In September 2010, Wells Fargo Bank, as successor to Wachovia, filed a foreclosure suit against Tucker and Paragon, as to all properties except Misty Glen—Lot 2, Block B.

On October 8, 2010, Paragon undertook development of Walden Reserve—Lot 19, Block 1. Tucker, through Paragon,' signed and filed a Notice of Commencement, identifying Paragon as the owner and contractor for a single-family residence to be built on this property.

E.Tucker Transfers Funds Out of Paragon

On November 30, 2009, there was a balance of $839,744.58 in Paragon’s bank account. In December 2009, on the advice of his counsel, Tucker established Harvey L. Tucker Family, LLLP, and transferred $358,255.63 from Paragon’s bank account to the LLLP. He also transferred a little over $400,000 from the Paragon account to himself, and he used these funds to purchase a variable annuity life insurance policy. Tucker testified that he did this to protect himself from “[blanks and other creditors.”

F. The Federal Income Tax Returns

On its 2008 federal income tax return, Paragon reported a loss of approximately $10.8 million. Of this, approximately $8,928,845 was attributable to a “write down” of Paragon’s real estate inventory to current market value as of December 31, 2008. Tucker then claimed a flow-through loss from Paragon of roughly $6.78 million on his individual 2008 income tax return. As a. result of this loss, Tucker reported a 2008 net operating loss (“NOL”) of more than $6.7 million.

Tucker then elected to carry the 2008 NOL back to tax years 2003, 2004, 2005, 2006, and 2007. Tucker sought a refund totaling almost $2 million for tax years 2003, 2004, 2005, and 2006 based on the loss carrybacks.

G. The Commissioner Issues , a Notice of Deficiency to Tucker

The Commissioner conducted an audit and concluded that Paragon’s allowable loss for 2008 was, in actuality, only $1.5 million. As a result, on June 4, 2013, the Commissioner issued a Notice of Deficiency to Tucker, indicating that it had disallowed his claimed NOL carrybacks for 2004, 2005, and 2006. The Notice of Deficiency indicated that Tucker owed the following amounts:

II. PROCEDURAL HISTORY

On August 26, 2013, Tucker filed a petition with the Tax Court challenging the Commissioner’s Notice of Deficiency. On December 9, 2014, the Tax Court held a one-day bench trial.

On September 22, 2015, the Tax Court released its memorandum opinion. The Tax Court explained that whether Tucker’s NOL carrybacks were proper depended on whether the Commissioner correctly disallowed Paragon’s claimed deduction under I.R.C. § 165(a) and its accompanying regulation, which allow deductions for losses stemming from “closed and completed transactions,” which may include abandonment of an asset or an asset becoming worthless. The Tax Court stated the general rule that, when a taxpayer’s real property is secured by a recourse obligation, the taxpayer is not entitled to a loss deduction until the year of the foreclosure sale, regardless of abandonment or worthlessness. The Tax Court noted Tucker’s argument that Paragon’s investments in its properties were “closed and completed” at the end of 2008 because it was “impossible” for Paragon to pay a deficiency judgment, and that any money later invested in the properties came from Tucker’s own pocket in an effort to mitigate his own personal exposure. The Tax Court summarized that, “[i]n essence [Tucker] argues that the facts and circumstances of his ease distinguish it from other cases involving recourse loans [and that, therefore,] the general rule ... should not apply.”

In support of this argument, as the Tax Court noted, Tucker relied on Treasury Reg. § 1.165—1(d)(2). But the Tax Court rejected this argument because it “confuses the test for ‘closed and completed transactions’ with respect to casualty losses and losses on land due to abandonment and worthlessness of property” and “mistakes the taxpayer for the banks.” The Tax Court also rejected Tucker’s argument that Paragon could not pay a deficiency judgment as “simply not true,” pointing to the funds that Paragon had in its accounts during 2009.

The Tax Court also determined that “the record does not indicate that any of Paragon’s properties were abandoned or became worthless.” It determined, instead, that Paragon’s “subsequent attempts in 2009 and 2010 to sell the properties, construct homes, and settle claims with the banks show that Paragon did not abandon the properties.” Furthermore, the properties were not worthless to Paragon at the end of 2008 because “the properties could be used to reduce Paragon’s liability exposure for a deficiency judgment.” In addition, Tucker’s own expert witness testified that the properties had some value and there was “some demand” for the properties at the. end of 2008. Thus, the Tax Court concluded that Tucker had not met his burden of establishing the abandonment or worthlessness of the properties by the end of 2008.

,On February 3, 2016, the Tax Court entered, a - formal decision imposing the following deficiencies and penalties against Tucker:

Tucker timely appealed the Tax Court’s determination to this Court.

III. DISCUSSION

We review the Tax Court’s legal conclusions de novo, and its factual findings for clear error. Gustashaw v. Comm’r, 696 F.3d 1124, 1134 (11th Cir. 2012). The Commissioner’s determination of a deficiency is presumed correct, and the taxpayer has the burden of proving otherwise. Welch v. Helvering, 290 U.S. 111, 115, 54 S.Ct. 8, 9, 78 L.Ed. 212 (1933). Additionally, deductions are a matter of legislative grace, and the taxpayer has the burden of proving his entitlement to any claimed deduction. C. A. White Trucking Co., Inc. v. Comm’r, 601 F.2d 867, 869 (5th Cir. 1979).

Section 165(a) of the Internal Revenue Code allows a deduction for “any loss sustained during the taxable year and not compensated for by insurance or otherwise.” I.R.C. § 165(a). The accompanying regulation states, “[t]o be allowable as a deduction under section 165(a), a loss must be evidenced by closed and completed transactions, fixed by identifiable events, and ... actually sustained during the taxable year.” Treas. Reg. § 1.165-1(b); see also id. § 1.165—1(d)(1). In most cases, a “closed and completed transaction” will occur upon a sale or other disposition of the property, but this requirement may also be satisfied if the taxpayer abandons the asset or the asset becomes worthless. Proesel v. Comm’r, 77 T.C. 992, 1005-06 (1981). “Abandonment” and “worthlessness” are separate and distinct grounds, either one of which may give rise to a deduction under § 165(a). Echols v. Comm’r, 935 F.2d 703, 706 (5th Cir. 1991).

A. Paragon Did Not Abandon the Properties in 2008

To show abandonment, the taxpayer must demonstrate both “an intention to abandon and some act evidencing that intention.” Dezendorf v. Comm’r, 312 F.2d 95, 96 (5th Cir. 1963); see also Echols, 935 F.2d at 707 (“[T]he abandoning party must manifest an intent to abandon by some overt act or statement reasonably calculated to give a third party notice of the abandonment.”); Middleton v. Comm’r, 77 T.C. 310, 322 (1981), (writing that abandonment requires (1) an intention on the part of the owner to abandon the asset; and (2) an affirmative act of abandonment), aff'd 693 F.2d 124 (11th Cir. 1982). Additionally, the abandonment must occur in the tax year for which the deduction is claimed. Dezendorf, 312 F.2d at 96. Determinations regarding the existence and timing of an abandonment are issues of fact. L & C Springs Assocs. v. Comm’r, 188 F.3d 866, 870 (7th Cir. 1999).

Here, Paragon points to the fact that it had closed its office, dismissed its employees, and stopped making payments on its obligations by December 31, 2008, as evidence of its abandonment. The parties dispute whether cessation of business operations is itself enough to show abandonment. We need not decide this issue, however, because the Tax Court’s finding that “the record does not indicate that any of Paragon’s properties were abandoned” by the end of 2008 was not clearly erroneous. See Gustashaw, 696 F.3d at 1134.

The record demonstrates that Paragon continued to develop and sell the properties throughout 2009 and 2010. This is evidenced by the fact that two properties were sold in September and October 2009, another property was sold in July 2010, and Paragon undertook construction of two homes, as evidenced by the Notices of Commencement that were filed on May 12, 2009, and October 8, 2010. Tucker also funneled more than $800,000 of his personal money into Paragon’s business account in order to facilitate construction on the properties. And, unlike the taxpayers in Middleton, Paragon never offered to re-convey the properties back to the mortgagees in lieu of foreclosure. See 77 T.C. at 322-23. Instead, Paragon signed settlement agreements with Platinum and BB&T in late 2009. Thus, Paragon’s overt acts did not evidence an intention to abandon the properties. See Dezendorf, 312 F.2d at 96; Middleton, 77 T.C. at 322.

We are cognizant of Tucker’s argument that all of these actions were intended to protect himself from his creditors and personal obligations on the mortgages, and that he did not act to protect or save Paragon. However, he has not pointed us to any cases supporting his argument that his subjective intention to act purely for his own protection is sufficient to meet his burden. And his argument that Paragon was essentially defunct and out of business by the end of 2008 is belied by the record evidence demonstrating that Paragon continued to file reports with the State of Florida after December 31, 2008, it signed the settlement agreements with Platinum and BB&T, it was listed as the owner/builder on the Notices of Commencement, and it was listed as the “seller” on the realty Sales documents. Under these circumstances, the Tax Court did not clearly err in determining that Paragon did not abandon the properties in 2008.

B. The Properties Did Not Become Worthless to Paragon in 2008

To receive a deduction ■ for “worthlessness,” a taxpayer must demonstrate “his subjective determination of worthlessness in a given year, coupled with a showing that in such year the asset in question is in fact essentially valueless.” Echols, 935 F.2d at 708. The requirement of worthlessness is a “de minimus rule that the taxpayer does not have to prove that a given asset is absolutely, positively without any value whatsoever.” Id. at 708 n.2. Transfer of title is not a prerequisite to a finding of either abandonment or worthlessness. Id. at 706. Further, while a taxpayer need not be “an incorrigible optimist in his determination of when property becomes worthless, a mere decline, diminution, or shrinkage in value is not sufficient to establish a loss.” Proesel, 77 T.C. at 1006. The question of worthlessness is “peculiarly one of fact” in which the petitioner bears the .burden of proof. Id.; see also Boehm v. Comm’r, 326 U.S. 287, 293, 66 S.Ct. 120, 124, 90 L.Ed. 78 (1945) (stating that the question of whether an asset became worthless during a given taxable year “is purely a question of fact to be determined in the first instance by the Tax Court”).

Tucker and the Commissioner agree on the general rule that, in the case of recourse debts, the loss deduction must be taken in the year that the foreclosure sale occurs, regardless of whether the property was abandoned by or became worthless to the mortgagor in a prior year. See Helvering v. Hammel, 311 U.S. 504, 512, 61 S.Ct. 368, 372, 85 L.Ed. 303 (1941) (holding that the foreclosure sale was the “definitive event” establishing the taxpayers’ loss); George v. United States, 124 F.3d 216 (10th Cir. 1997) (unpublished table decision) (determining, in the context of a recourse loan, that the taxpayer was entitled to a deduction on the loss from real property in-the year in which it was sold at a foreclosure sale, not in the year in which it was abandoned and/or became worthless to him); Comm’r v. Green, 126 F.2d 70, 71-72 (3d Cir. 1942) (concluding that taxpayers could not deduct their loss on property secured by a recourse obligation in the year they allegedly abandoned the property; instead, they must take the loss deduction in the year that the foreclosure sale occurred).

The Third Circuit in Green explained whether the mortgage at issue was a recourse mortgage was of “fundamental importance” to resolving the case. 126 F.2d at 72. That is because where the mortgagor retains liability for the debt, “the property continues until [the] foreclosure sale to have some value which, when determined by the sale, bears directly upon the extent of" the owner’s liability for a deficiency judgment.” Id.

Tucker attempts to evade this general rale by relying on a novel interpretation of Treas. Reg. § 1.165-l(d). That regulation provides:

A loss shall be allowed as a deduction under section 165(a) only for the taxable year in which the loss is sustained. For this purpose, a loss shall be treated as sustained during the. taxable year in which the loss occurs as evidenced by closed and completed transactions and as fixed by identifiable events occurring in such taxable year. .. , ,.

Treas. Reg. § 1.165—1(d)(1). The regulation then goes on to distinguish between instances where the loss is covered by a claim for reimbursement “to which there is a reasonable prospect of recovery” and losses that are not covered by such claims. See id. § 1.165-l(d)(2)(i)-(iii). Where there exists a claim with a reasonable prospect of recovery, “no portion of the loss ... may be ... sustained, for purposes of section 165, until it can be ascertained with reasonable certainty whether or not such reimbursement will be received.” See id. § 1.165—l(d)(2)(i). Where such a claim does not exist, however, the loss may be sustained during the taxable year “in which the casualty or other event occurs.” See id. § 1.165—l(d)(2)(ii).

By way of illustration, the regulation gives the following examples: Suppose a property worth $10,000 is completely destroyed in a fire in 1961, and the taxpayer’s only claim for reimbursement consists of an insurance claim for $8,000, which claim is settled in 1962. Id. The taxpayer would then sustain a loss of $2,000 in 1961 under § 1.165—1 (d)(2)(ii). Id. If, on the other hand, the taxpayer’s car were completely destroyed in 1961 due to the negligence of another person, and there exists a reasonable prospect of recovery on a claim for the full value of the car against that other driver, the taxpayer would not sustain the loss “until the taxable year in which the claim is adjudicated or otherwise settled” under § 1.165-l(d)(2)(i). Id.

Tucker argues that, because the regulation authorizes the loss event to be a “closed and completed transaction” in the year the loss occurred where there is no claim with a reasonable prospect of recovery when considering whether a taxpayer will receive additional money, the inverse must also be true: certain loss events can constitute a “closed and completed transaction” when determining whether the taxpayer will pay additional monies. Further, by the end of 2008, there was “no reasonable prospect” that Paragon would be able to pay a deficiency judgment. Tucker concedes that the regulation nominally applies to casualty losses, but he stresses that the regulation also encompasses “other event[s] ... which may result in a loss.” He claims that the 2008 market crash was just such an “other event.”

There is support for Tucker’s contention that market events can sufficiently “fix” a loss such that the deduction may be taken in the year that the loss occurs. See Echols, 9356F.2d at 705-08; Helvering v. Gordon, 134 F.2d 685, 686-89 (4th Cir. 1943); Rhodes v. Comm’r, 100 F.2d 966, 970 (6th Cir. 1939); Denman v. Brumback, 58 F.2d 128, 129 (6th Cir. 1932); Tejon Ranch Co. & Subsidiaries v. Comm’r, 49 T.C.M. (CCH) 1357 (1985); Middleton, 77 T.C. at 320-24. None of these cases, however, involved recourse loans or a nominally defunct business that continued to develop and sell the allegedly worthless asset after its alleged dissolution.

Moreover, Tucker has pointed us to no case law supporting his tortured and novel reading of the regulation. The thrust of the regulation is that a taxpayer may only claim a deduction under § 165(a) in the year that the amount of the loss becomes readily ascertainable. See Treas. Reg. § 1.165—1(d)(2). Here, the total losses to Paragon were not ascertainable or fixed at the end of 2008. None of the homes had been formally foreclosed upon or sold. Further, in the event of foreclosure, the banks would have recourse both to Paragon and to Tucker personally. As the case law makes clear, in the case of a recourse debt, the amount of the loss is not readily ascertainable until the foreclosure sale because the property’s value is directly linked to the extent of the owner’s liability on a deficiency judgment. Green, 126 F.2d at 72.

Tucker counters that Paragon would not have owed anything in a default judgment because it was insolvent and out of business on December 31, 2008. But the Tax Court made a finding of fact that this assertion was not true. The record evidence amply supports this finding, along with the finding that the properties wei-e not worthless to Paragon at the end of 2008.

It is common sense that, if the properties could be sold to satisfy the mortgages, used as consideration in a settlement, or updated to increase the value (all of which actually occurred), then Paragon’s liability on the mortgage debts would be reduced. This reduction has value. Further, while it is not required that the assets be “absolutely, positively without any value whatsoever,” Tucker’s own expert witness testified that the properties had some value and there was “some demand” for the properties at the end of 2008. Echols, 935 F.2d at 708 n.2. This conclusion does not, as Tucker contends, mean that “property is never worthless regardless of the encumbrances where it has any intrinsic value.” Such a holding would be contrary to case law and, indeed, the Tax Court acknowledged that a § 165(a) deduction based on worthlessness “requires worthlessness of the taxpayer’s equity in the property.” See Echols, 935 F.2d at 705-08; Gordon, 134 F.2d at 687-89; Middleton, 77 T.C. at 320-24. The Tax Court merely concluded that, in this case, the properties retained enough value to avoid being “worthless” within the meaning of § 165(a).

Finally, the Tax Court did not clearly err in determining that a deficiency judgment against Paragon would not be “impossible” given the funds flowing in and out of Paragon’s bank account in 2009. Though this money came from Tucker- in a purported attempt to use Paragon as a “conduit” to cut his own losses, a move that Tucker now acknowledges was a “disastrous mistake,” his actions demonstrate that a deficiency judgment against Paragon would have been possible after the foreclosure sales. Taxpayers cannot have it both ways—they cannot both freely use a business to settle debts and sell assets and then claim that the business was defunct the whole while.

Accordingly, the Tax Court properly determined that Tucker had not met his burden of demonstrating that the ■ Commissioner’s disallowance of the § 165(a) loss deduction was incorrect.

IV. CONCLUSION

For the foregoing reasons, we affirm the decision of the Tax Court.

AFFIRMED.

      . The parties dispute whether Tucker has waived his argument pertaining to the penalties imposed by the Tax Court. Regardless, Tucker concedes that, should we rule against him on the loss-deduction issue, we need not reach the penalty issue. Accordingly, we do not address it.

      . Paragon elected to be an "S” corporation for federal income tax purposes. This simply means that the tax attributes of the corporation pass through to the shareholders. See I.R.C. §§ 1366(a), 6037(a).

      . On August 29, 2008, Paragon sold a parcel in Hillsborough County identified as the Huntley property for $735,000, a contract price less than the mortgage on the property. The lender, Platinum, held the mortgage on that property, but it released the mortgage to permit the sale to proceed. The balance of the mortgage was extinguished as part of the parties' settlement agreement. Neither Tucker nor the Commissioner included the Huntley property in the determination of Paragon’s inventory as of December 31, 2008.

      . The judgment lists an effective date of August 19, 2009.

      . The remainder of the claimed loss consisted of interest expense deductions, depreciation deductions, and a deduction for financial fees. Tucker has not contested the Tax Court’s dis-allowance of these other deductions. Thus, Tucker has waived any claim with respect to these items. See Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1306 (11th Cir. 2012).

      . In general, a net operating loss may be carried back only to the two taxable years preceding the loss year. I.R.C. § 172(b)(l)(A)(i). A special rule, however, applied to net operating losses incurred during the 2008 taxable year that allowed taxpayers to elect to carry back a 2008 net operating loss attributable to án eligiblé small business for a period of three to five years instead-of the usual two. The Worker, Homeownership, and Business Assistance Act of 2009, Pub. L. No. 111-92, § 13(a), Nov. 6, 2009, 123 Stat. 2984,2992.

      . A recourse obligation or debt is one guaranteed by a third party such that the lender would have recourse to seek payment from this third party in the event of default. See Laney v. Comm'r, 674 F.2d 342, 349 (5th Cir. Unit A 1982). There is no dispute in this case that the mortgages securing the properties were recourse debts.

      . The Tax Court also affirmed the Commissioner's disallowance of additional deductions and the imposition of penalties.

      . As explained above, Tucker’s NOL carry-backs stem from Paragon’s claimed $10.8 million loss in 2008, which in-turn relied on a massive write down of the FMV of its properties on December 31, 2008. Accordingly, as the Tax Court noted, the issue is Paragon's claimed § 165(a) loss, and the operative question is whether Paragon (not Tucker) abandoned the properties and/or whether the properties were worthless to Paragon by the end of 2008.

      . It is true that the Tax Court has previously written that, where a taxpayer's interest in a partnership became worthless in a given year, the taxpayer could take a § 165(a) deduction in that year, even though the taxpayer continued to contribute funds to the partnership "only to minimize its own losses.” Tejón Ranch Co. & Subsidiaries v. Comm'r, 49 T.C.M. (CCH) 1357 (1985). Tucker did not cite this case in his briefs and, in any event, it is distinguishable because it dealt with the worthlessness of a partnership interest, not the alleged worthlessness of a piece of real property.


source: Caselaw Access Project

author: VINSON, District Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Keenan Aubrey DAVIS, Kelsey Videl Coffee, Defendants-Appellants.
    No. 15-10927
    United States Court of Appeals, Eleventh Circuit.
    (November 22, 2016)

      Cherie Krigsman, Yvette Rhodes, Susan Hollis Rothstein-Youakim, Arthur Lee Bentley, III, U.S. Attorney’s Office, Tampa, FL, Shawn P. Napier, U.S. Attorney’s Office, Orlando, FL, for Plaintiff-Appellee.
    Michelle P. Smith, Law Office of Michelle P. Smith, PA, Orlando, FL, for Defendant-Appellant Keenan Aubrey Davis.
    Charles M. Greene, Paetra Terry Brownlee, Charles M. Greene, PA, Orlando, FL, for Defendant-Appellant Kelsey Videl Coffee.
    Before MARTIN and JORDAN, Circuit Judges, and VINSON, District Judge.

       Honorable C. Roger .Vinson, United, States District Judge for the Northern District of Florida, sitting by designation’.

   VINSON, District Judge:

The verdict form is one of the most important parts of a criminal jury trial, but it often receives the least attention. This is a case in point.

The defendants here were charged (and found guilty of several counts) in an .eight-count superseding indictment. The verdict forms that were given to the jury mistakenly listed one of the counts as “robbery” instead of “using a firearm during and in relation to [a robbery].” Everyone missed the error—the defendants and the government (who jointly submitted the verdict forms), the district court judge, and court personnel—and the error was later transposed onto the defendants’ written judgments, where it was. not discovered until more than five months after the trial. When the district court learned of the error, it gave the -parties notice and amended the judgments under Rule 36 of the Federal Rules of Criminal Procedure, which provides in full: “After giving any notice it considers appropriate, the court may at any time correct a clerical error in a judgment, order, or other part of the record, or correct an error in the record arising from oversight or omission.” The defendants argue on appeal ’that the amendment was improper and that the original (erroneous) judgments should be reinstated, consistent with what the jurors found. After close review and oral argument, we conclude that the district court properly amended the judgments and we affirm.

I.

Between May and September 2013, there was a string of six retail robberies in and near Orange County, Florida. The robbers wore gloves and hid their faces behind masks. Eventually, Keenan Davis was arrested and charged with all six robberies, while his friend Kelsey Coffee was charged in connection with five of the six. These robberies were carried out with help from numerous accomplices, including, among others, Tiandre Rogers, Moses Patterson, Danoris Scott, and Jamal Tillman, each of whom pled guilty and (except for Tillman) agreed to testify for the government. Davis and Coffee opted to go to trial, where the evidence against them (viewed in the light most favorable to the government) showed the following with respect to the six robberies.

(1) On the morning of May 10, 2013, Davis, Rogers, Patterson,. and Scott robbed the manager of Rack Room Shoes at an outlet mall in Orlando as she left the store with a bank deposit. The robbery was . Patterson’s idea as he worked at the store and knew when the manager left for the bank. Patterson waited outside and alerted the others when she exited the store, at which point Davis and Scott sprayed her with mace and grabbed the deposit, while Rogers drove the getaway car. No firearm was used during this first robbery, and there is no evidence that Coffee was involved.

(2) On May 26, 2013, Davis (carrying a shotgun) and Patterson (carrying an “air-soft” gun that looked like a real pistol) robbed a Levi’s store just a few doors down from the Rack Room Shoes. Scott served as lookout and Rogers drove the getaway car. It was the government’s theory that this second robbery was carried out with “inside help” from Coffee, who worked at the store and was friends with Davis, Patterson, Scott, Rogers, and Tillman. After the robbery, Davis, Patterson, Scott, and Rogers met at a hotel room to divide the $86,000 that they stole. Davis and Patterson took pictures of themselves posing with the money.

(3) Early in the morning on July 30, 2013, Coffee, Davis, Patterson, and Rogers robbed an Oshkosh b’Gosh store at the outlet mall. Coffee carried the shotgun and Patterson carried the airsoft gun. They removed a 300-pound safe from the store, which they later discovered contained only about $2,000 in cash, gift cards, and a couple of iPads.

(4) On August 6, 2013, Coffee, Davis, and Patterson robbed a McDonald’s in Apopka, Florida. Once again, Coffee carried the shotgun and Patterson carried the airsoft gun. They tied up all the employees with “zipties” and took what they could from the safe, which was only about $700.

(5) In early August 2013, Davis exchanged a series of text messages with Cavoniss Lewis, a friend who worked at a Sweetbay Market grocery store. Davis tried to convince Lewis to help them rob the store, and he assured her in one of his texts that “we have all the answers and tools to perform the job perfectly,” but she refused to participate. Thereafter, on August 20, 2013, Davis, Coffee, Patterson, and Scott robbed the Sweetbay Market without Lewis’s help. The group used the shotgun and airsoft pistol for this robbery, which was confirmed by three employees who testified at the trial and video from the store’s surveillance camera that was played to the jury. When Lewis learned of the robbery afterward, she felt uncomfortable and thought that she should say something. She contacted the store’s human resources department, which, in turn, contacted the police. Lewis subsequently gave the police access to her phone and previous text messages with Davis.

(6)Finally, on September 7, 2013, Coffee, Davis, and Patterson (with help from Rogers, Scott, Tillman and others) robbed a Nike outlet at a mall in Ellenton, Florida. The group drove to the outlet mall in two separate cars and, upon arrival, they split up. Coffee walked past the Nike store to survey the area; Davis sat at a nearby table to get prepared; and Patterson walked through the parking lot toward the store with a dust broom, dust pan, and black plastic trash bag in order to avoid suspicion. Unbeknownst to them, they were under police surveillance at the time. While Patterson was on his way to the Nike store, one of the undercover officers on the surveillance team saw him walk right in front of the officer’s car, sit down on the curb, put on gloves, and start to pull a mask or “something” over his face. The officer also noticed that Patterson was carrying what appeared to be a shotgun inside the plastic trash bag. Patterson saw the undercover officer watching him and got worried that “something was up,” so he went back to his car and put the dust broom, dust pan, and trash bag inside the trunk and, in his words, “replaced” the shotgun. At or around this point, there was a delay as the group began to have a disagreement about whether they should go forward with the robbery. Because there were so many people at the outlet mall and in the parking lot, some members of the group began to think it was a “bad idea” and wanted to back out. Davis and Coffee insisted on moving forward with the plan, however, and eventually the two men entered the Nike store armed with only the airsoft pistol. They tied up all the employees with zipties and emptied the safe of approximately $15,000. As they left, the police and members of the SWAT team converged on the scene. Tillman was arrested in front of the Nike store; Davis and Coffee were arrested after trying to flee on foot; and Patterson was arrested while attempting to drive the getaway car with Rogers and Scott. The shotgun was found in the trunk of the getaway car, along with a loaded Taurus handgun on the floorboard.

The defendants were charged in a multi-count indictment. Counts 1, 2, 4, 5, 6, and 8 charged robbery in violation of 18 U.S.C. § 1951(a) (for the Rack Room Shoes, Levi’s, Oshkosh b’Gosh, McDonald’s, Sweetbay Market, and Nike store robberies, respectively), while Counts 3 and 7 charged the possession and use of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A) (for the Levi’s and Sweetbay Market robberies, respectively). As previously indicated,- all of the other co-defendants pled guilty and several agreed to testify for the government. Davis and Coffee elected to go to trial, and their defense was that the others were lying and had falsely accused them in order to get sentence reductions.

Throughout the trial, the jury was repeatedly told that there were two groups of offenses. For example, the district court judge read the superseding indictment to the jury pool during voir dire, which clearly delineated the robbery and firearm offenses. Similarly, the government told the jury during its opening statement that the defendants were both charged with several counts of robbery and “two counts of using a firearm, brandishing a firearm in relation to or in furtherance of those robberies.” Counsel for Coffee likewise told the jury during opening statement that there were several counts, that the government had correctly “summarized” those counts, and that careful attention should be paid to each one as “[tjhere are some charges of robbery of separate stores and there are some charges relating to the possession of firearms.”

The closing arguments to the jury similarly highlighted that the two firearm offenses in Counts 8 and 7 were separate and distinct from the robbery charges. For example, after discussing the robberies themselves, the government told the jury about “the two other crimes:”

[IJfs a separate federal crime for anyone to use a firearm in relation to or carry a firearm during and in relation to or possess a firearm in furtherance of a crime of violence. The elements you have to show there, the defendant committed ■ a violent crime as charged in counts 3 and 7. There’s two counts of using the firearm.

The government further told the jurors that for those two counts they had to find, inter alia, that a firearm was used during and in relation to the robberies that were charged in Counts 2 and 6, namely, the Levi’s and Sweetbay Market robberies: “You have seen the videos of the Sweetbay robbery. The robbery progressed and everybody knew shotguns were going to be used from Levi’s to Sweetbay. Each of the defendants actively participated in the violent crimes charged in Levi’s and Sweet-bay for the firearm counts.”

Coffee’s attorney noted the differences between the two groups of offenses during his closing argument as well:

So you will see several instances referred to as 1951. That would be the robbery of Levi’s, Oshkosh, McDonald’s, Sweetbay, and Nike. All of those events are reflected in the verdict format as 1951.
There are also two charges in the indictment and two spaces on the verdict form. This would be count three that relates to Levi’s and count seven. Those are completely different criminal offenses. They have different elements. They require different kinds of proof, and they are distinct and separate.... So I’m going to ask you to pay close attention as you review the verdict form, match it up with the indictment and consider the evidence as it relates to each offense and each element of each offense and see if indeed the government has met its burden of proof, in fact, the highest burden that exists in law.

Coffee’s counsel then proceeded to further discuss the “six [robbery] counts that are effectively the same,” after which he told the jurors what was required for the two firearm offenses “in counts three and seven.”

At the end of closing arguments, the district court instructed the jury on the law to be applied and the elements that had to be proven, and it is undisputed that those instructions were correct. After setting forth the elements for the robbery counts, the district court instructed the jury that: “It’s a separate federal crime for anyone to use a firearm in relation to or carry a firearm during and in relation to or possess a firearm in furtherance of a crime of violence.” The district court gave lengthy instructions for the two firearm charges “in counts three and seven”—and told the jury that those charges related to the robberies “charged in counts two and six of the indictment, respectively”—and each juror was given a written copy of the instructions, along with at least one copy of the superseding indictment. The district court also sent back two verdict forms (one for each defendant) that Davis, Coffee, and the government had jointly submitted. However, both verdict forms contained an error with one of the two firearm counts. Specifically, while Count 3 was correct, the verdicts mistakenly identified Count 7 as charging the defendants with “robbery, in violation of 18 U.S.C. § 924(c)(1)(A).” In other words, Count 7 was incorrectly named, but the statutory citation was accurate. The verdict forms for the firearm offenses charged in Counts 3 and 7 thus read (emphasis added):

Count Three of the Indictment
As to the offense of using a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A),
We, the Jury, find the defendant [Davis/Coffee]:
N ot Guilty_ Guilty_
Count Seven of the Indictment
As to the offense of robbery, in violation of 18 U.S.C. § 924(c)(1)(A),
We, the Jury, find the defendant [Davis/Coffee]:
N ot Guilty_ Guilty_

At the charging conference, the attorneys had been asked if they had objections to the verdict form as written, and they all said “no objection.” Neither the parties nor the district court noticed the error with Count 7 on the verdict forms before or while the jurors deliberated. During deliberations, the jurors asked the following question: “[Does] the offense of using a firearm which would violate 18 U.S.C. § 924 require the person to have actual physical possession of the firearm[?] Is the mere knowledge that a person is in possession of a firearm a violation of 18 U.S.C. § 924[?]” The district court suggested responding to the question by referring the jurors to the standard “possession” and “aiding and abetting” instructions (which were included in the already-given instructions). The parties agreed, and that is what the jury was told. The jury continued their deliberations and subsequently reached a verdict. Pursuant to that verdict, Davis was found guilty on all counts, while Coffee was found guilty of Counts 4 through 8, but not guilty of Counts 2 and 3 (relating to the Levi’s store robbery).

Three weeks after the trial, Davis filed a motion for judgment of acquittal with respect to Counts 1 through 7, or, alternatively, for a new trial. The district court denied the motion, holding that the verdict was supported by the evidence. At that point in time, neither Davis nor anyone else had noticed the problem with the verdict forms.

The United States Probation Office subsequently prepared the defendants’ pre-sentence investigation reports (“PSRs”), and it failed to notice the verdict form error at that time as well. Indeed, the PSRs for both defendants represented that they had been convicted on Count 7 of “Possession and Use of a Firearm During and in Relation to a Crime of Violence” in violation of 18 U.S.C. § 924(c)(1)(A), and neither side objected. In Coffee’s PSR, the probation office divided the robbery counts into four groups. Group Four, which concerned the Nike robbery, carried the highest adjusted offense level (30) and included a five-level increase under USSG § 2B3.1(b)(2)(C) “[sjince a firearm was brandished or possessed.”

Thereafter, at their sentencing hearings, the district court formally adjudged both defendants guilty of the counts on which they had been convicted, including “possession and use of a firearm during and in relation to a crime of violence” for Count 7. Once again, no one objected. The district court proceeded to sentence Coffee to concurrent terms of 150 months imprisonment on Counts 4, 5, 6, and 8, followed by a statutorily-mandated consecutive term of 84 months on Count 7, for a total of 234 months. Davis was sentenced to concurrent terms of 16 months on Counts 1, 2, 4, 5, 6, and 8, followed by a statutorily-mandated consecutive term of 84 months on Count 3, and a statutorily-mandated consecutive term of 300 months on Count 7, for a total of 400 months. Notably, the written judgments mirrored the verdict forms, which means they correctly reflected that both defendants had been conT victed in Count 7 of violating Section 924(c)(1)(A), but, under the “Nature of Offense” heading, the judgments erroneously described that count as “Robbery,” Still, no one noticed the error. On March 3, 2015, the defendants filed this appeal.

Almost two months later, on April.27, 2015, while the defendants’ appeal was pénding—and before their briefs were filed—the district court learned of the error on the verdict forms and in the judgments. However, it was not the parties who discovered and advised the district court of the error; rather, it was brought to the district court’s attention by the U.S. Probation Office. The district judge, sua sponte, invited the parties to advise if they had any objection to her amending the judgments to correct this clerical or “scrivener’s” error. The defendants both filed objections, arguing that the judgments should not be amended as to Count 7 but, rather, that count, should continue to read “robbery, in violation of 18 U.S.C. § 924(c)(1)(A).” While at first blush it may appear unusual for a party to ask that a clearly incorrect judgment remain uncorrected, there was a reason for this request: The defendants argued in their objections that if the jury had found them guilty of “robbery” in Count 7 as opposed to the Section 924(c) firearm charge (and if their written judgments continued to reflect a “robbery” conviction for that count), then their statutoiily-mandate d consecutive sentences were “illegal” and should entitle them to a new sentencing. In a thorough 14-page order, the district court rejected this argument and amended the judgments over their objections. The defendants now appeal this ruling.

II.

The first thing we have to do is determine our standard of review. Do we review for plain error, or is our review de novo? To answer this question, it is important to make clear exactly what the defendants are challenging on appeal.

If the defendants were directly challenging their verdict forms and seeking reversal based on the errors therein, we would review for plain error because they did not object to the verdict forms “before the jury retire[d] to deliberate.” Fed. R. Crim. P. 30(d); see also, e.g., United States v. Mitchell, 146 F.3d 1338, 1342 (11th Cir. 1998) (“Because [the defendant] did not raise objections to the [verdict form] we review ... for plain error.”). In order to establish* plain error, a defendant must show that (1) an error existed, (2) it was plain, (3) the error affected his substantial rights, and (4) it seriously affected the fairness, integrity or public reputation of the judicial proceedings. See, e.g., United States v. DiFalco, 837 F.3d 1207, 1220-21 (11th Cir. 2016) (citations omitted). “The plain error test is ‘difficult to meet’ and places ‘a daunting obstacle before the appellant.’ ” Id. at 1221 (citation omitted). Perhaps believing they might not be able to satisfy this difficult-to-meet standard, the defendants do not directly challenge the verdict form error itself. Rather, they have focused their attention on the propriety of the district court amending their written judgments pursuant to Rule 36. A district court’s application of Rule 36 is reviewed de novo. United States v. Portillo, 363 F.3d 1161, 1164 (11th Cir. 2004). So, that is the standard of review that we will apply.

III.

“It is clear in this Circuit that Rule 36 may not be used to make a substantive alteration to a criminal sentence.” Id. (citation and quotation marks omitted). Our precedent provides that while Rule 36 may be used to correct a “clerical” error in a written judgment, “correction of the judgment [cannot] prejudice the defendant in any reversible way.” United States v. Diaz, 190 F.3d 1247, 1252 (11th Cir. 1999); see also United States v. Reeves, 742 F.3d 487, 507 n.12 (11th Cir. 2014).

The defendants argue that the amended judgment did not correct a clerical error, but rather it constituted a substantive alteration that prejudiced them. They contend that it was a “substantive alteration” as the jury may have been confused and thought they were finding the defendants guilty of “robbery” in Count 7; and, therefore, amending the judgments to reflect a-Section 924(c) firearm conviction “prejudiced” them to the extent they were exposed to a minimum mandatory (and consecutive) sentence. The defendants thus ask that we reverse this case and remand with instructions for the district court to strike the amended judgments and reinstate the original judgments to accurately reflect what the jury found. We must decline this request.

Preliminarily, what the defendants claim the jury found, ie., “robbery, in violation of 18 U.S.C. § 924(c)(1)(A),” does not exist. There is no such crime in the U.S. Code. It should go without saying that a district court cannot knowingly reinstate a judgment that reflects an offense that does not exist and with which the defendant was never charged. At oral argument, Coffee’s attorney was : asked a hypothetical that illustrates the problem with the relief that defendants seek. She was asked to assume that in drafting the original judgment, the district court only identified' Count 7 as a violation of 18 U.S.C. § 924(c)(1)(A), without any further description of the charge. Under those facts, counsel was asked, could defendants have moved the district court to amend the original judgment to include “robbery” before the statutory citation, consistent with how the verdict form read? Counsel acknowledged that they could not have asked the district court to .do that—and, furthermore, that the district court would have had no authority and jurisdiction to do it—“because robbery under 924(c) doesn’t exist.” That is the defendants’ dilemma (as counsel recognized during oral argument): if the district court could not have amended the judgment to track the verdict form by adding the “robbery” description (because there is no such crime), how could it be error for the district court to amend the judgment to omit “robbery” and replace it with the correct charge? On the unique facts of this case, we hold that it was not error.

First, it does not appear that the jurors were confused and thought they were convicting the defendants of “robbery” on Count 7. In the absence of any reason to believe otherwise (and none has been suggested), we presume the jury was paying attention when: (a) the district court read the superseding indictment to the jury pool during voir dire, and it correctly sets out that Count 7 was for “using a firearm during and in relation to” robbery of the Sweetbay Market; (b) both the. government and defense counsel repeatedly told the jury during their opening statements and closing arguments that the six robbery counts were separate and distinct—and required different kinds of proof—from the two firearm counts in Counts 3 and 7 (the former of which was correctly described on the verdict form); (c) the jurors were given a copy of the superseding indictment and specifically told (by defense counsel) to be sure and “match ... up” the two groups of offenses; and (d) the district court gave correct final instructions on the law and told the jurors yet again that the two firearm charges “in counts three and seven” were different than the robbery counts (and each juror received a written copy of the jury instructions). Moreover, the jury’s question during deliberations (“[Does] the offense of using a firearm which would violate 18 U.S.C. ■ § 924 re^ ■quire the person to have actual physical possession of the firearm?”) suggests the jurors understood and appreciated the distinction between a Section 924 firearm violation and a Section 1951 robbery charge. On this record,' it is doubtful that the jurors were confused and thought they were convicting the defendants of a “robbery” offense in Count 7. And if the jurors were not confused, and knew they were finding the defendants guilty of a Section 924(c) charge, amending the written judgments to accurately reflect that offense was not a “substantive alteration”' of the jury’s verdict.

Second, even if we were to agree with the defendants that the record is at least ambiguous with respect to what the jurors found on Count 7, there was no prejudice on the facts of this case. To sustain a conviction under Section 924(c) for robbery of the Sweetbay Market, the government had to prove that (1) during and in relation to that robbery, the defendants (2) used, carried, or possessed a firearm in furtherance thereof. See, e.g., United States v. Miranda, 425 F.3d 953, 959 (11th Cir. 2005). The defendants did not dispute at trial that, the government proved its case with respect to that charge if the jury found that they were two of the several men behind the masks at the Sweetbay Market robbery. Their whole defense was that their co-defendants had falsely accused them to get a reduction in their own sentences.

■ Even if we assume' that the jurors were confused by the error in the verdict form and somehow—and inexplicably—thought Count 7 was a second “robbery” charge relating to- the Sweetbay Market, by finding the defendants guilty of that count (and of Count 6), the jury necessarily found that they were part of the group that robbed the store. And it is undisputed that the perpetrators of that robbery carried and used the shotgun during and in relation thereto. The eyewitness victims testified to that effect, and the store surveillance video confirms it. In fact, Davis’s attorney admitted during her closing argument that “for Levi’s, Oshkosh, Sweetbay and McDonald’s, [the], shotgun was used,” and both defendants have conceded in their briefs on appeal that the. shotgun was brought into the Sweetbay Market specifically “to scare the store employees” during that robbery. It is thus inarguable that the shotgun was used in furtherance of the Sweetbay Market robbery. United States v. Timmons, 283 F.3d 1246, 1252 (11th Cir. 2002) (concluding that the word “furtherance” in Section 924(c) “should be given its plain meaning,” which means the government need only establish that the firearm “helped,' furthered, promoted, or advanced” the robbery in some way). It flows therefrom that the jury found the defendants guilty of the firearm charge in Count 7, even if they were “confused” by the fact that the crime was incorrectly described oh the verdict form. Consequently, there was no prejudice in amending the judgments to' reflect a violation of Section 924(c). The salient point is the defendants were not exposed to a longer prison term because of the Rule 36 amendment but, rather, because the jury inescapably found that they had used a gun for the Sweetbay Market robbery.

- While we have not been able to locate any Eleventh Circuit case directly on point, the conclusion we reach today is consistent with our prior opinion in United States v. Diaz, supra, 190 F.3d at 1247. The defendant in that case was charged with conspiracy to distribute cocaine, and the verdict form correctly identified and described that offense. However, the jury was instructed on conspiracy to possess with intent to distribute cocaine and, after he was convicted, his written judgment reflected that erroneous -charge. The defendant appealed the judgment, challenging its validity on the ground that the district court had convicted him of a crime that was not charged in the indictment. On review, this Court considered whether the error in the judgment was merely clerical, or whether it was something more. If the error was clerical, the case could be remanded with instructions for the district court to enter an amended judgment under Rule 36. If it was something more, ie., if it would “prejudice the defendant in any reversible way,” then Rule 36 would not apply. See id. at 1252. Diaz held that the error was clerical and that it was proper to remand the case with instructions for the district court to amend the judgment in accordance with the indictment and the jury’s verdict. The panel identified seven reasons for its decision, five of which are directly applicable here.

First, the court “reviewed all the other points of error as to the conviction argued on this appeal and [found] them to be without merit. But for this error the judgment would be affirmed.” Id. We have likewise considered all 'of the other arguments that the defendants here have raised and find them to be without merit. See supra note 9.

Second, Diaz found that “there was no apparent confusion as far as the jury was concerned.” 190 F.3d at 1252. This finding was based, in relevant part, on the fact that the jurors had been provided a copy of the indictment, they were “told to follow” it, and the record (the closing arguments in particular) “made quite clear” to the jury what the real charge was. Id. That, as previously noted, is exactly the same situation in this case.

Third, Diaz said it was significant that “the thrust of the defense in this case was the lack of credibility of the government’s witnesses. There was little, if any, suggestion that the evidence they gave did not satisfy the elements of the crime charged.” Id. That, too, is the same situation presented here. Davis and Coffee based their defense on the argument that the government’s cooperating witnesses should not be believed because their testimony was at times inconsistent and they were seeking to curry favor with the government. There was (and is) no argument that the evidence at trial did not otherwise prove the elements of the firearm charge in Count 7.

Fourth, the Diaz court observed that “although the jury was not specifically charged on the indictment crime of conspiracy to distribute, there was no objection or request by defense counsel, although objections and requests were specifically invited by the court, so that cannot be claimed as error on this appeal.” Id. at 1252-53. Of course, that circumstance is also present here since the defendants not only said that they had “no objection” to the verdict forms when asked, but they actually submitted them.

Fifth, and importantly, the Diaz court stated:

[I]f the testimony of the government’s witnesses is true, the evidence overwhelmingly proves that the defendant was guilty of [the charged offense of] conspiracy to distribute cocaine. Whether that testimony was true was squarely put to the jury by both the instructions of the court and the argument of both counsel. It was the jury’s job to determine who was telling the truth, and who was not.

Id. at 1253. Again, that is the same situation in this case. There was (and can be) no argument that if the jurors believed that the cooperating co-defendants told the truth to the extent they testified that Davis and Coffee participated in the Sweetbay Market robbery (and, with their verdict, they obviously did believe that testimony), then the evidence overwhelming and irrefutably establishes that the defendants were guilty of the firearm offense charged in Count 7.

For its sixth and seventh reasons, Diaz noted that both of the crimes at issue there (conspiracy to distribute cocaine and conspiracy to possess with the intent to distribute cocaine) were charged as conspiracies under the- same statute and with the same underlying substantive offense statute, and they thus implicated the same sentencing guidelines; consequently, the difference between the two offenses, from a practical standpoint, was “a distinction without a difference.” See id. Seizing on this portion of the Diaz opinion, Coffee argues in his reply brief that prejudice can be inferred (and, therefore, the error was not merely clerical) because robbery and using a firearm during and in relation to a crime of violence are controlled by different statutes and are not subject to the same sentencing guidelines. And, further, robbery and using a firearm during and in relation to a crime of violence require proof of different and separate elements and do not have a single common element, like the conspiracy crimes in Diaz. This is all true, but it does not help the defendants. While this prejudice argument could have merit if it was possible that defendants might have been acquitted on Count 7 if it were not for the error in the verdict form, the verdict that the jury rendered on Count 6 and Count 7 makes clear that would not have happened. The final two Diaz “reasons” are simply not applicable here.

Ultimately, if it was proper to use Rule 36 to amend the judgment in Diaz, where the erroneous judgment arose out of an erroneous jury instruction that was given to the jury, it was proper to use the .rule here, where the erroneous judgment arose out of an erroneous verdict form that- (a) was not objected to, (b) did not in any way confuse the jury, or, even if.it did, (c). could not have possibly prejudiced. the. defendants. Consistent with our analysis in Diaz, we conclude that the verdict form error was harmless on the facts of this case, and amending the judgments that were based on those verdict forms is the sort of clerical correction contemplated by Rule 36.

IV.

For all these reasons, the judgment of the district court is AFFIRMED.

      . The defendants 'have raised additional arguments as' well, including sufficiency of the evidence and sentencing challenges. We find that those other arguments lack merit and do not require extended discussion. See note 9 infra. The error with the verdict forms and judgments presents the only real issue on appeal.

      . "Airsoft guns are replicas of firearms; they usually have the same color, dimensions, weight ánd markings as real firearms.” Gibbs v. Lomas, 755 F.3d 529, 534 (7th Cir. 2014).

      . As will be seen, Coffee was acquitted of the charges stemming from the Levi’s robbery, but Davis was convicted.

      . This officer, Detective Joseph Petta with the Manatee County Sheriff's Office, did not know for sure at the time (or at trial) who the person was. However, Patterson’s trial testimony makes clear that he was the person Detective Petta saw.

      .Davis’s attorney referenced certain of this evidence during her closing argument, when she told the jury that:
      [Patterson] had that shotgun in a plastic bag ... fixing to mask up when [he saw Detective Petta and said] oh, hold up. Don’t—let’s not attack—let's not do the take down. And they waited and it was 30 minutes while [Patterson] went back to the car and put it in the trunk. * * * Detective Petta saw [Patterson] walking back and forth with a shotgun in the bag.

      . Davis was charged in all eight counts. Coffee was charged in every count except Count 1 (Rack Room Shoes) since there was no evidence that he played any role in that first robbery,

      . Davis did not move with respect to Count 8 (the Nike robbery) as he .was caught at the scene. Indeed, his, attorney told the jury during closing argument: “Ladies and gentlemen, I’m not going to stand up here and tell you ... that he was not guilty ,of the Nike robbery. .,. He was, So as to that count, count 8, that’s decided. He was caught redhanded coming out of the Nike, he's running away with the money and a toy gun in -his bag.”

      . Presumably, whoever drafted the written judgments simply looked to the verdict forms for a description of the offenses.

      . The defendants have raised other arguments on appeal as well, but they can be disposed of quickly. They first argue that the district court erred in denying Davis's motion for judgment of acquittal and/or motion for new trial based on sufficiency of the evidence grounds. Viewing the evidence in the light most favorable to the government—as we must—we have no difficulty saying that a reasonable jury could have found the defendants guilty and that a new trial is not warranted. Indeed, the evidence of defendants’ guilt was overwhelming.
      Their sentencing arguments fare no better. The defendants contend that their sentences were substantively unreasonable as they received longer sentences than their co-defendants (all of whom pled guilty); Coffee maintains that the district court improperly calculated his advisory guideline range by applying the five-level enhancement for possession of the Taurus pistol in the getaway car during the Nike robbery and for the shotgun that Patterson took out of the trunk, but then put back in, during the course of that crime; and Davis argues that the district court erred in "stacking” his two Section 924 convictions. These arguments find no support in the law. The latter argument in particular—as Davis concedes—is foreclosed by binding circuit and Supreme Court precedent. See Deal v. United States, 508 U.S. 129, 131, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993); United States v. Rawlings, 821 F.2d 1543, 1545 (11th Cir. 1987).

      . This discussion of the plain error standard assumes, without deciding, that our review of the verdict form error would not be barred entirely by the invited error doctrine given that the defendants jointly submitted the verdict forms, See, e.g., United States v. James, 642 F.3d 1333, 1337 (11th Cir. 2011) (concluding that invited error barred- review where defendant "submitted the very instruction he now challenges”).

      . It strikes us as more probable that the jury did not even notice that Count 7 had been incorrectly described as "robbery” on the verdict form. We note once again that all of the attorneys, the district judge, her law clerk, and court staff missed it. It seems unlikely that the jury noticed something that the experienced attorneys and court personnel (including the probation office) missed for several months. The jurors perhaps looked at the number of the count (but not closely at the , description) • and just assumed that it said “using a firearm during and hi relation to a crime of violence,” as charged in the superseding indictment, described in the instructions, and as they had been repeatedly .told by the lawyers and the judge during the course of trial.
      Despite tins trial .record, however, the defendants maintain that there is evidence of jury confusion. Specifically, they note that the jury's question during deliberations asked about the "offense” of using a firearm in violation of Section 924, rather than using the plural "offenses.” They suggest that this shows the jurors were confused and thought there was only one Section 924 charge. We suspect the defendants are reading too much into the phrasing of the question. Indeed, the jurors may have begun the question “[does] the offense of using a firearm” because they knew that whatever answer the district court gave would obviously apply to both charged crimes, and, consequently, the alternative "do the offenses of using a firearm” was unnecessary. Regardless, even if we were to agree that the phrasing of the question indicated confusion on the jury’s part, as we will discuss next, the defendants would still not be entitled to relief on the facts presentéd.

      . To highlight just one of numerous examples, Coffee’s attorney told the jury. during closing argument' that the cooperating government witnesses each had a strong incentive to lie and, "frankly, ... it all circles back [to them] and whether or not you’re willing to accept what they say[.]’’

      . Davis made this concession in his brief, and Coffee expressly adopted and joined Davis's brief.

      . In fact, once again, the offense of using a firearm during and in relation to a crime of violence subjects a defendant to a minimum mandatory (and consecutive) sentence.

      . The district court recognized that many cases involving Rule 36 amendments involve correcting a statutory citation, as opposed to correcting how a crime was named or listed on the verdict form. However, the district court believed this was "a distinction without a difference” because “Defendants do not identify, and the Court could not locate, a case specifically holding that the correction of a clerical error is limited to the correction of the statute of conviction in a judgment.” Incidentally, we note that the Third Circuit confronted this same factual situation in Government of Virgin Islands v. Bedford, 671 F.2d 758 (3d Cir. 1982), and it said that Rule 36 can be utilized to correct such "clerical errors.” The defendant there was charged by information with unlawful possession of an unlicensed firearm during the commission of a crime of violence, but the verdict form mistakenly described the crime as possession of a dangerous weapon during the commission of a crime of violence, which was a separate statutory offense. No one noticed the error before or after the verdict was read in open court. On appeal, the defendant argued for reversal because, inter alia, he "was never charged with the offense he was convicted of” and the verdict was "fatally flawed and at variance with the charge” set out in the information. See id. at 762-63. The Court of Appeals wasted little time with this argument as it held that “the error in the verdict form was merely clerical.” See id. at 763. After observing that "it was apparent from the information, the Government’s evidence at trial, and the court’s instruction that [the charge] involved possession of a firearm,” our sister circuit said: "It is clear to us that what occurred was a clerical mistake, which could have been corrected at any time by the district court under Fed. R. Crim. P. 36.” See id. at 763-64; cf. Pacheco v. Dugger, 850 F.2d 1493, 1495 (11th Cir. 1988) (holding in Section 2254 habeas case that appellate counsel was not ineffective for failing to seek reversal based on the fact that the verdict form listed • a different crime (sexual battery with great force) than the one charged in the indictment (sexual battery involving the use or threatened use of a deadly weapon); concluding "the slight discrepancy in the title which was used to describe the crime was insignificant” and "immaterial” since the jury was given a “complete” instruction for the offense charged in the indictment).


author: MARTIN, Circuit Judge:

text:
    WRIGHT TRANSPORTATION, INC., Plaintiff-Appellee, v. PILOT CORPORATION, Pilot Travel Centers LLC, d.b.a. Pilot Flying J, James A. Haslam, III, John Freeman, Defendants-Appellants, Brian Mosher, Mark Hazelwood, Defendants.
    No. 15-15184
    United States Court of Appeals, Eleventh Circuit.
    (November 22, 2016)

      Stephen M. Tunstall, Law Offices of Stephen M’. Tunstall PC, Mobile, AL, for Plaintiff-Appellee.
    Glenn M. Kurtz, Gregory Starner, Joshua D. Weedman, White & Case LLP, New York, NY, Parker D. Kasmer, Mark Christian King, Lightfoot Franklin & White, LLC, Birmingham, AL, for D'efendants-Appellants Pilot Corporation, and Pilot Travel Centers, LLC, d.b.a. Pilot Flying J.
    Stephen D. Brody, O’Melveny & Myers, LLP, Washington, DC, Walter Joseph McCorkle, Balch & Bingham, LLP, Montgomery, AL, for Defendant-Appellant James A. Haslam, III.
    Martin G. Durkin, Jr., Simon Auerbach, Michael Anthony Grill, Holland & Knight, LLP, Chicago, IL, for Defendant-Appellant John Freeman.
    Before MARTIN and JORDAN, Circuit Judges, and VINSON, District Judge.

       Honorable C. Roger Vinson, United States District Judge for the Northern District of Florida, sitting by designation.

   MARTIN, Circuit Judge:

This appeal arises out of several years of litigation between the parties now before us, as well as many others. This litigation has occupied the federal courts in the form of individual suits, class actions, and multi-district litigation. The issue on appeal is whether federal courts that are given original subject-matter jurisdiction over state-law claims by the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d), retain that jurisdiction even when the class claims are dismissed before the class is certified. The District Court found that CAFA does not vest the federal courts with original jurisdiction over state-law claims after the class claims are dismissed. After careful review and with the benefit of oral argument, we reverse and remand.

I.

Pilot Corporation, Pilot Travel Centers LLC, d/b/a Pilot Flying J, and the named employees of each (collectively, “Pilot”) operate the largest chain of truck stops in the United States. As part of this business, Pilot contracts to provide diesel fuel to long-haul trucking companies at discounted rates. A 2013 FBI investigation found evidence that Pilot employees had engaged in a conspiracy to defraud Pilot’s customers by withholding the contracted-for discounts without the customers’ knowledge or approval.

Wright Transportation, Inc. (“Wright”) is an Alabama corporation that had a fuel-discount contract with Pilot. In July 2013 it brought this federal lawsuit as a class action on behalf of itself and others who had fuel-discount contracts with Pilot. Wright alleged that Pilot and certain Pilot employees systematically shortchanged some trucking companies with whom Pilot had discount agreements by failing to give them the agreed-upon benefits. The lawsuit alleged that Pilot targeted customers whom it considered to be unsophisticated, including small businesses that lacked the resources to easily discover Pilot’s scheme and Latino customers who might face a language barrier.

Wright brought several claims against Pilot under both state and federal law: (1) violations of 18 U.S.C. § 1962(c) for racketeering; (2) violation of 18 U.S.C. § 1962(d) for conspiracy to commit racketeering; (3) breach of contract under state law; (4) deceptive trade practices in violation of state law; (5) unjust enrichment under state law (brought on behalf of only a subset of class members in states with such laws); (6) fraudulent misrepresentation under state law; (7) negligent misrepresentation under state law; and (8) suppression of the proper discounts owed to the class members under state law.

A.

The procedural history that gives rise to this appeal is unusually complex. Because it is the complex procedural history that has led to the question we must answer here, we will set out that history in some detail. Wright first filed suit in the United States District Court for the Southern District of Alabama in July 2013. Although many of the claims were based in state law, Wright alleged it was proper for the court to exercise federal jurisdiction over all of the claims for four independent reasons: (1) federal-question jurisdiction under 28 U.S.C. § 1331 for the federal racketeering claims; (2) diversity jurisdiction under 28 U.S.C. § 1332(a); (3) jurisdiction under CAFA, 28 U.S.C. § 1332(d); and (4) supplemental jurisdiction under 28 U.S.C. § 1367.

In January 2014, the District Court granted part of the defendants’ motion to dismiss Wright’s claims. In particular, the court dismissed both of Wright’s federal racketeering claims as well as its state-law claims for fraudulent misrepresentation, negligent misrepresentation, and suppression of discounts. The court dismissed these claims on account of Wright’s failure to plead the defendants’ conduct with sufficient particularity under Federal Rule of Civil Procedure 9(b). The court went on to dismiss Wright’s deceptive practices claim on the ground that Wright was not able to satisfy one of the statutory elements.

In this ruling, the District Court also dismissed all of the class claims asserted in the complaint. While Wright’s case was pending in the Alabama District Court, a rival class-action suit reached a court-approved settlement in the United States District Court for the Eastern District of Arkansas. Even before the Arkansas settlement received final approval, Wright and Pilot had acknowledged that the judicial approval of this settlement would “deprive [Wright] of standing to pursue [its] class claims.” The approval from the Arkansas court occurred before the Alabama District Court’s ruling on the motion to dismiss in this case, so, in keeping with the parties’ acknowledgement, it dismissed the class claims. While the District Court dismissed the state-law claims for breach of contract and unjust enrichment brought for the class, those claims survived for Wright individually.

B.

Meanwhile, in April 2014, six separate suits were pending against Pilot in five other federal judicial districts around the country. These lawsuits were all brought by parties who had opted out of the nationwide class settlement approved by the Arkansas District Court and who were making claims similar to Wright’s. At Pilot’s urging, these six other suits were consolidated with Wright’s into one multidistrict-litigation (“MDL”) proceeding in the United States District Court for the Eastern District of Kentucky (“the MDL court”).

In July 2015, the MDL court found new information that deprived it of diversity jurisdiction over this case. The MDL court became aware of a March 2015 filing by Pilot Travel Centers LLC in the United States District Court for the Middle District of Florida. Wright, as an Alabama corporation with its principal place of business in Alabama, is, of course, a citizen of Alabama. Pilot’s Florida filing alleged that one of the members of its LLC was a citizen of a state that Pilot had not disclosed in the consolidated cases. In light of this allegation, the MDL court ordered Pilot to file a response detailing the citizenship of each defendant, and, where a defendant was an LLC, to disclose the citizenship of each LLC member. Pilot’s response included that it had a “sub-sub-sub-sub-member” that was a citizen of Alabama at the time Wright filed its suit. Pilot advised the court that “after extensive diligence and receipt of new information from Pilot’s members, it appears that Pilot is a citizen of ... Alabama.” Yet Pilot urged the MDL court to retain jurisdiction over Wright’s suit because Wright originally asserted its claims under CAFA. Without deciding the question of jurisdiction under CAFA, the MDL court remanded the case to the Alabama District Court in September 2015.

C.

On remand to the District Court, Wright moved to dismiss its remaining claims without prejudice so that it could refile in Alabama state court. Pilot argued in opposition that the District Court had original jurisdiction under CAFA and, alternatively, should continue to retain supplemental jurisdiction.

The District Court dismissed the CAFA argument in a footnote:

The defendants insist that “post-filing events do not divest a court of CAFA jurisdiction.” This may be so, see Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1268 n.12 (11th Cir. 2009), but it is irrelevant; the dismissal of the CAFA (and RICO) claims means the Court “has dismissed all claims over which it has original jurisdiction,” which means its statutorily granted discretion to decline to exercise supplemental jurisdiction has been triggered. See, e.g., Brown v. Mortgage Electronic Registration Systems, Inc., 738 F.3d 926, 933 (8th Cir. 2013) (upon dismissing CAFA claim, trial court had discretion under Section 1367(c) whether to retain state claim).

Wright Transp., Inc. v. Pilot Corp., No. CV 13-0352-WS-N, 2015 WL 6511306, at *2 n.2 (S.D. Ala. Oct. 27, 2015) (citation omitted);

The District Court then analyzed whether to exercise supplemental jurisdiction. The District Court reasoned that considerations of comity and fairness favor remand when federal claims are dismissed before trial unless they are outweighed by considerations of judicial economy and convenience. The District Court found that judicial economy did not support retaining jurisdiction because the case had largely been pending before the MDL court, leaving the District Court unfamiliar with the merits of the case. It also found that the state court in Alabama was just as convenient for the parties as the Alabama federal court. Thus, the District Court found no “compelling [ ] argument for exercising supplemental jurisdiction” over Wright’s state-law claims and dismissed them without prejudice so Wright could refile them in state court. This appeal followed.

II.

Pilot argues that the District Court erred in holding it did not have original jurisdiction over Wright’s state-law claims under CAFA. We review de novo “questions of subject matter jurisdiction and statutory interpretation.” Lindley v. FDIC, 733 F.3d 1043, 1050 (11th Cir. 2013).

Specifically, Pilot argues that' CAFA conferred original jurisdiction over all of Wright’s claims at the time Wright filed them, such that the jurisdiction could not have divested when the class claims were later dismissed. Phot asks us to rule that once this original jurisdiction is conferred under CAFA, it sticks for the entire life of the case, such that it could not be destroyed by later events like the class settlement in the Eastern District of Arkansas.

A.

In its complaint, Wright alleged eight counts against Pilot: two federal claims brought pursuant to 18 U.S.C. § 1962 and six state-law claims. Wright alleged that these claims were made both “for itself and all members of the [proposed] Class of all others similarly situated.”

■ Wright also alleged in its complaint that the District Court had original jurisdiction over its suit pursuant to CAFA. District courts have • “original jurisdiction of any civil action” under CAFA where three criteria are met. 28 U.S.C. § 1332(d)(2). First, the amount in controversy must exceed $5 million, as aggregated from the claims of the individual class members. Id. §§ 1332(d)(2), (6). Second, the suit must be brought as a “class action” for a proposed class with at least one-hundred members. Id. §§ 1332(d)(2), (5). Third, “any member of [the] class ... [must be] a citizen of a State different from any defendant.” Id. § 1332(d)(2)(A).

B.

After its federal and class claims were dismissed and the lack of diversity jurisdiction discovered, Wright requested that the District Court dismiss its remaining state-law claims without prejudice, so that it could refile them in state court. Phot, wishing to remain in federal court, opposes dismissal.

Pilot points to this Court’s precedent in Vega v. T-Mobile USA, Inc., 564 F.3d 1256 (11th Cir. 2009), arguing that we “held that a plaintiff’s failure to certify a class does not divest the federal courts of subject matter jurisdiction under CAFA.” It is noteworthy that in Vega we reviewed a case in which -the District Court modified a proposed- nationwide class to be a Florida-only class and certified it on that basis. Id. at 1264. This Court reversed. We concluded that the District Court abused its discretion in finding thé numerosity requirement of Federal Rule of Civil Procedure 23 satisfied because the record contained no Florida-only evidence of sufficient nu-merosity. Id.- at 1267-68. We noted that the failure to show numerosity “does not divest the federal courts of subject matter jurisdiction under [ ] CAFA,” even though it gives rise to the possibility that there are fewer than one hundred members of the class. Id. at 1268 n.12. We reasoned that “jurisdictional facts are assessed at the time of removal; and post-removal events (including non-certification, de-cer-tification, or severance) do not deprive federal courts of subject matter jurisdiction.” Id.

Our reasoning in Vega was explicitly adopted by the Seventh Circuit, and every circuit to consider this question- has agreed. In Cunningham Charter Corp. v. Learjet, Inc., 592 F.3d 805 (7th Cir. 2010), the Seventh Circuit wrote that it agreed with this Court’s holding that subject-matter jurisdiction is not destroyed when a district court denies class certification, because “federal jurisdiction under the Class Action Fairness Act does not depend on certification.” Id. at 806 (citing Vega). More recently, the Fifth Circuit wrote that “[ejvery circuit that has addressed the question has held that post-removal events do not oust CAFA jurisdiction.” Louisiana v. Am. Nat’l Prop. & Cas. Co., 746 F.3d 633, 639 (5th Cir. 2014) (collecting cases from the Sixth, Seventh, Eighth, Ninth, and Eleventh Circuits); see also In Touch Concepts, Inc, v. Cellco P’ship, 788 F.3d 98, 102 (2d Cir. 2015) (“[W]e join the Seventh Circuit in holding that jurisdiction under CAFA is secure even though, after removal, the plaintiffs amended their complaint to eliminate the class allegations.” (quotation omitted)).

Class-action claims filed in or removed to federal court under CAFA can be dismissed for lack of jurisdiction if those claims contain frivolous attempts to invoke CAFA jurisdiction or lack the expectation that a class may be eventually certified. See Cunningham, 592 F.3d at 806 (interpreting 28 U.S.C. § 1332(d)(8)). Such dismissals, though, mean the federal court never had CAFA jurisdiction in the first place; they do not mean that jurisdiction existed and then was lost. See id. at 806-07. In this way, CAFA jurisdiction is analogous to conventional diversity jurisdiction, which is not destroyed by post-filing changes' to party citizenship, but only by discovery that the parties were not actually diverse at the time the operative complaint was filed. See id. at 807; see also In re Burlington N. Santa Fe Ry. Co., 606 F.3d 379, 381 (7th Cir. 2010) (per curiam) (“CAFA is, at base, an extension of diversity jurisdiction.”). Therefore, CAFA jurisdiction is not easily defeated.

C.

There is one major difference between the precedent relied upon by Pilot and this case. The precedent involves suits filed in state court and then removed to federal court under CAFA. Here, Wright first filed directly in federal court under CAFA but now wishes to refile in state court.

“[Rjemoval cases present concerns about forum manipulation that counsel against allowing a plaintiffs post-removal amendments to affect jurisdiction.” In re Burlington, 606 F.3d at 381. Those concerns dictate that we guard against a plaintiff whose case has been removed to federal court and who then amends its pleadings in an attempt to manipulate its way back into state court. However, those “forum-manipulation concerns [ ] simply do not exist when it is the plaintiff who chooses a federal forum and then pleads away jurisdiction through amendment.” Rockwell Int’l Corp. v. United States, 549 U.S. 457, 474 n.6, 127 S.Ct. 1397, 1409 n.6, 167 L.Ed.2d 190 (2007). “Thus, when a plaintiff files a complaint in federal court and then voluntarily amends the complaint, courts look to the amended complaint to determine jurisdiction.” Id. at 473-74, 127 S.Ct. at 1409; see also Pintando v. Miami-Dade Hous. Agency, 501 F.3d 1241, 1243 (11th Cir. 2007) (per curiam) (“[W]e follow Rockwell and agree ... that we must look to [the plaintiffs] amended complaint to determine whether we have subject-matter jurisdiction.”). The Second Circuit, in .dicta, applied this concept to a hypothetical CAFA case, writing that if a case were filed originally in federal court under CAFA jurisdiction, the court would have to dismiss it as soon as the plaintiff filed an amended complaint that dropped all class-action allegations. In Touch, 788 F.3d at 101. Therefore, the reasons for the hard- and-fast rule that even the plaintiff amending the complaint cannot defeat CAFA jurisdiction do not necessarily exist for suits originally filed in federal court. See, e.g., In re Burlington, 606 F.3d at 381 (holding that a plaintiff’s post-removal decision to amend away its class claims does not destroy CAFA jurisdiction).

This case does not require us to decide whether a plaintiffs amendments after filing in a federal court can divest that court of CAFA jurisdiction. The parties do not suggest that any action by the plaintiff divested the federal courts of CAFA jurisdiction here. Instead, Wright argues that the District Court’s dismissal of the class claims after the settlement in the Eastern District of Arkansas destroyed CAFA jurisdiction. But that settlement occurred after Wright filed its complaint. Wright advances no argument that the complaint was frivolous or deficient under CAFA at the time it was filed. When the post-filing action that did away with the class claims is not an amendment to the complaint, we see no basis for distinguishing cases originally filed in federal court under CAFA from those removed, to federal court. We therefore conclude that CAFA continues to confer original federal jurisdiction over the remaining state-law claims in this suit.

D.

Because CAFA vested the District Court with original jurisdiction over the remaining claims, there was no need for it to analyze supplemental jurisdiction. Supplemental jurisdiction does have a role in CAFA cases, but only in those that also have “state-law claims that were never subject to CAFA jurisdiction.” In Touch, 788 F.3d at 102 (plaintiff filed tort claims in its individual capacity separate from its class claims).

The District Court relied on Brown v. Mortgage Electronic Registration Systems, Inc., 738 F.3d 926 (8th Cir. 2013), to support its decision to analyze supplemental jurisdiction. In Brown the Eighth Circuit dismissed CAFA claims but exercised supplemental jurisdiction over the remaining claims. Id. at 933. But Brown is different from this case because it was removed to federal court based on only one of its claims qualifying for CAFA jurisdiction. That meant it was appropriate to consider whether to grant supplemental jurisdiction over the non-class claims. Id. at 930, 933. Here, no one disputes that all eight claims were properly pleaded as CAFA claims. Thus, the District Court had original jurisdiction over all eight claims, and that jurisdiction continues to survive even after later events meant there would be no class.

REVERSED and REMANDED.

      . Wright Transportation, Inc. named four individuals as defendants. At all relevant times, Defendant James A, Haslam III was Chairman and CEO of Pilot, Defendant Mark Ha-zelwood was President of Pilot, Defendant Brian Mosher was Director of National Accounts and Director of Sales for Pilot Flying J, and Defendant John Freeman was Vice President of Sales for Pilot, Only Mr. Haslam and Mr, Freeman are still parties to this appeal, but this determination of subject-matter jurisdiction under CAFA applies to all defendants named in the complaint. See Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 1237, 163 L.Ed.2d 1097 (2006) ("[Cjourts ... have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party.”).

      . Wright filed its complaint in the Alabama District Court on July 10, 2013. On July 16, 2013, the Arkansas District Court preliminarily approved a settlement. It granted final approval of that settlement on November 25, 2013.

      . “[L]ike a limited partnership, a limited liability company is a citizen of any state of which a member of the company is a citizen.” Rolling Greens MHP, L.P. v. Comcast SCH Holdings L.L.C., 374 F.3d 1020, 1022 (11th Cir. 2004) (per curiam).

      . Pilot explained this was “a member of an LLC that is, in turn, a member of an LLC that is, in turn, a member of an LP that is, in turn, ■ a member of an LLC that is, in turn, a member of Pilot [Travel Centers LLC].”

      . As set out above, the other three bases given for subject-matter jurisdiction were defeated over the course of this litigation: (1) the federal claims were dismissed as not properly pleaded; (2) the parties were ultimately found to have lacked diversity throughout the litigation, including when the complaint was filed; and (3) supplemental jurisdiction was not exercised,

      . There are exceptions that are not relevant here. See 28 U.S.C. § 1332(d)(4).

      . We discuss below whether it is significant that in Vega the suit was removed from state court while this one was filed originally - in federal court.

      . This very case serves as an example. Here, the discovery earlier in this litigation that Pilot Travel Centers LLC had a "sub-sub-sub-sub-member” that was a citizen of Alabama at the time of filing meant that diversity jurisdiction never existed.

      . This is one "exception[] to the principle that once jurisdiction, always jurisdiction.” Cunningham, 592 F.3d at 807. Other exceptions include when "a case becomes moot in the course of the litigation.... [and when] after the case is filed it is discovered that there was no jurisdiction at the outset—not that this is really an exception ... it is a case in which there never was federal jurisdiction.” Id. (citation omitted).

      . Pilot’s argument that the District Court could continue to exercise supplemental jurisdiction over Wright’s state, claims may have confused the issue. We must nevertheless decline to apply the doctrine of invited error because “subject matter jurisdiction ,.. can never be forfeited or waived.” United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 1785, 152 L.Ed.2d 860 (2002); see also Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 1244, 163 L.Ed.2d 1097 (2006) (”[C]ourts ... have an independent obligation to determine whether subject-matter jurisdiction exists_”).