author: AMBRO, Circuit Judge

text:
    Luis Antonio Dutton MYRIE, Petitioner v. The ATTORNEY GENERAL UNITED STATES of America, Respondent
    No. 16-1599
    United States Court of Appeals, Third Circuit.
    Argued November 16, 2016
    (Opinion filed: April 28, 2017)

      Nathanael P. Kibler (Argued), Baker Donelson Bearman Caldwell & Berkowitz, 265 Brookview Centre Way, Suite 600, Knoxville, TN 37828, Counsel for Petitioner
    Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, Bernard A. Joseph, Senior Litigation Counsel, Jason Wisecup, Erica B. Miles (Argued), United States Department of Justice, Office of Immigration Litigation, P.O. Box 878, Ben Franklin Station, Washington, DC 20044, Counsel for Respondent
    Before: AMBRO, CHAGARES, and FUENTES, Circuit Judges
   OPINION OF THE COURT

AMBRO, Circuit Judge

Petitioner Luis Antonio Dutton-Myrie petitions for review of a ruling by the Board of Immigration Appeals (“BIA” or “Board”) dismissing his appeal of the decision by an Immigration Judge (“IJ”) that he is ineligible for deferral of removal under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (“CAT”). Dutton-Myrie contends that the Board erred in affirming the IJ’s conclusion that the government of Panama would not be willfully blind to torturous acts against him and, in any event, stated incorrectly what constitutes acquiescence to torture by Panamanian officials. He also asserts that the IJ is biased against him and this, among other things, violated his due process rights.

We conclude that the BIA did not apply the correct legal standard under the CAT and should have reviewed the IJ’s application of this standard de novo. We remand on these grounds. While we reserve judgment on Dutton-Myrie’s due process claim, we express concern that the IJ’s opinion suggests such frustration with this case (which appears to have nine lives) that the Board should consider assigning it to a new IJ if further fact-finding is necessary.

I. Facts and Procedural History

a. Dutton-Myrie’s background

Dutton-Myrie is a native and citizen of Panama who came to the United States on a visitor’s visa in 1991 and remained after his visa expired six months later. In the early 1990s he pled guilty to cocaine-related offenses and criminal attempt to commit escape.

In 1998 the former Immigration and Naturalization Service charged Dutton-Myrie as removable for overstaying his visa and as an alien convicted of an aggravated felony for trafficking in a controlled substance. An IJ sustained the charges against him and ordered him removed to Panama. Government agents began the process of deporting Dutton-Myrie, but he de-boarded the plane undetected before it left the United States and continued to live in this country without legal status.

The Government apprehended Dutton-Myrie in 2005 and deported him to Panama. A few days after he returned, the record indicates that a group of men came to his ex-girlfriend’s apartment and stabbed him in the neck. He fled the country and re-entered the United States through its southern border.

The Government apprehended Dutton-Myrie a second time in 2007 and charged him with illegal re-entry. He ultimately pled guilty to these charges and was sentenced to time served. The Government then transferred him to the custody of Immigration and Customs Enforcement (“ICE”).

b. Removal proceedings before the Immigration Judge

The United States Department of Homeland Security reinstated in 2012 the final order of removal against Dutton-My-rie. However, an asylum officer found he expressed a reasonable fear of returning to Panama and referred him to an IJ. Dut-ton-Myrie filed an application for deferral of removal under the CAT based on his claim that members of the Mara Salvatru-cha (“MS-13”) gang would likely torture him if he returned to Panama.

Dutton-Myrie represented himself at the hearing on his application. He testified that his uncle, Reginaldo, and his brother, Ricardo, started a gang called La Banda del Norte in the 1980s in his hometown of Colón, Panama. Over time the gang spread beyond Colón, entering into feuds with rival gangs, including the MS-13. Dutton-Myrie claimed that members of the Panamanian MS-13 were responsible for beating Reginaldo to death in Brooklyn, New York, in 1992, and for murdering Ricardo in Panama four years later.

According to Dutton-Myrie, the MS-13 targeted male family members living in Panama because of their kinship ties to Reginaldo and Ricardo: in 1995, Dutton-Myrie’s brother Jose was drowned; his brother Nelson was beaten and stabbed in 1997; his brother Arnaldo was shot in 2001, was attacked again in 2004, and died in 2009 after members of the MS-13 shot him 21 times; and in 2010 his brother Regelio was shot twice but survived.

Dutton-Myrie further testified that gang members attacked him immediately after he arrived in Panama in 2005. A former girlfriend in Panama submitted an affidavit attesting that she called the police to report the attack, but no officer came to investigate. Dutton-Myrie then fled the country. He stated that he believed the police were either bribed by the MS-13 or were unwilling to protect his family, and he supported this conclusion with record evidence of his brothers’ deaths and testimonial evidence that the investigations into the murders and violent attacks remained unresolved. Dutton-Myrie also submitted a letter from the Panamanian Department of Public Safety confirming the deaths of his family members, stating that his surviving family members receive death threats, and referencing a complaint that his mother made reporting threats to her children’s lives.

The IJ found Dutton-Myrie to be credible, accepting as true his testimony that the gang had killed several of his family members and that police had not prosecuted anyone for these crimes. Though expressing “concerns for [the] safety” of Dutton-Myrie if he were removed to Panama, the IJ nonetheless determined that he failed to establish that Panamanian officials would consent or acquiesce to the harm he feared and thus denied his CAT claim.

c. The BIA’s first ruling

Dutton-Myrie appealed the IJ’s conclusion that he was not eligible for CAT relief. The BIA affirmed, holding that “[t]he evidence d[id] not establish that the Panamanian government acquiesces to torture by gangs, as the term has been interpreted by the Third Circuit, but rather shows that it has been actively trying to combat them.”

d. The Government requests remand

Dutton-Myrie petitioned our Court for review. The Attorney General filed a motion to remand to “allow the Board to reconsider and/or clarify the bases for its ... decision in light of Pieschacon-Villegas v. Att’y Gen. of the U.S., 671 F.3d 303, 311-14 (3d Cir. 2011).” We granted this motion and remanded the case to the BIA, whereupon it vacated its first decision and remanded to the IJ.

e.The Immigration Judge’s second decision and the BIA’s second ruling

The IJ issued a second ruling in 2013. He again denied CAT relief. Though the IJ found that Dutton-Myrie’s “credibility [was] not at issue,” CAT protection remained unavailable because he determined Dutton-Myrie had not established that the Panamanian government “permitted] a certain level of gang violence in order to inflict severe pain or suffering on him.” On appeal, Dutton-Myrie argued the IJ applied an erroneous legal standard for acquiescence by requiring him to show the Panamanian government intended that he be tortured.

The Board sustained the appeal. It agreed that the specific intent requirement applies only to those who commit acts of torture, whereas an applicant need only show willful blindness to establish acquiescence to the torture by others. It also noted that the IJ failed to consider evidence relevant to the likelihood of future harm. The Board therefore found it “necessary to again remand [for the IJ] to reassess whether [Dutton-Myrie] established acquiescence” despite the Panamanian government’s opposition to the MS-13, as well as “evidence of future torture.”

f.The IJ’s third decision and the Board’s remand

The IJ denied relief a third time in 2014. There he relied on independent research he put into evidence, including a 2011 Panama Crime and Safety Report and an article from Panama Digest, which he found suggested the MS-13 gang was a “recent phenomenon” in Panama. The IJ further deviated from his prior two findings of credibility, stating instead that the evidence cast “serious doubt on the veracity of [Dutton-Myrie]’s claim that MS-13 lay behind the devastation to his family.” The IJ discounted the letter from the Department of Public Safety in Panama as unverified. He then concluded without discussion that the evidence was insufficient to establish willful blindness.

Dutton-Myrie appealed, and once again the Board ordered a remand to the IJ for further proceedings. It held that he erred in (1) questioning Dutton-Myrie’s credibility despite finding him credible in prior proceedings, (2) failing to notify Dutton-Myrie that further corroboration was required, and (3) relying on an internet search that was not part of the record of proceedings. The Board directed the IJ on remand “again [to] determine whether [Dutton-Myrie] established acquiescence, as well as evidence of the likelihood of future torture.”

g.The IJ’s fourth decision and the Board’s affirmance

On remand, the IJ requested that both parties respond to the country conditions evidence the IJ introduced previously. The record contains notice of a hearing, yet the BIA cannot locate a transcript of the hearing and the Government now contests Dut-ton-Myrie’s claim that it occurred. In his fourth decision, the IJ concluded that there was no rebuttal of the evidence suggesting that the MS-13 had only recently begun to infiltrate Panama and opined that he was “wholly unconvinced” that the group had attacked Dutton-Myrie and his brothers. Yet the IJ specifically stepped back from any adverse credibility determination as the legal basis for his decision. Instead, he relied on his conclusion that Dutton-Myrie could not establish the Panamanian government would acquiesce to the harm he alleged and cited the absence of corroborating evidence that the MS-13 was responsible for the deaths of Dutton-Myrie’s family members or that it was operating in Panama when the attacks occurred. The IJ also found that Panama was actively combating gangs and that Dutton-Myrie could not establish that it was unwilling or unable to protect him because he had not reported the 2005 attack to the police and presented no further evidence that a public official was “willing to do him harm or [to] acquiesce in someone else doing him harm.”

Once again, Dutton-Myrie appealed the IJ’s decision, and here the BIA dismissed the appeal. It discerned no clear error in the IJ’s finding that the Panamanian government fell short of acquiescing to torture. The Board supported this conclusion by citing to the IJ’s findings that (1) “Panama ‘actively engage[s]’ against criminal gangs and combats crime,” and (2) “although the applicant was attacked in February 2005, he never reported the incident to police.” The BIA also rejected Dutton-Myrie’s due process claims, finding insufficient evidence that the IJ harbored personal bias against Dutton-Myrie or that the IJ failed to consider relevant evidence. While the Board recognized that “the [IJ] did not specifically reference a letter from the Department of Public Safety in Panama [confirming his family members’ deaths, stating that his surviving family members continue to receive death threats, and referencing his mother’s complaint reporting threats to her children’s lives],” the Board concluded that “this [was] insufficient to establish that the [IJ] did not consider this evidence.” Another petition for review followed.

II. Jurisdiction and Standard of Review

We have jurisdiction under 8 U.S.C. § 1252(a)(1) to review a final order of the BIA denying CAT relief. However, because Dutton-Myrie is subject to removal based on an aggravated-felony conviction, the statute constrains our jurisdiction to “constitutional claims or questions of law,” as “factual or discretionary determinations are outside of our scope of review.” Pierre v. Att’y Gen., 528 F.3d 180, 184 (3d Cir. 2008) (en banc) (referring to the provisions of 8 U.S.C. § 1252(a)(2)(C)-(D)).

Constitutional claims or questions of law we review de novo. Silva-Rengifo v. Att’y Gen., 473 F.3d 58, 63 (3d Cir. 2007). Where the BIA affirms and partially reiterates the IJ’s discussions and determinations, we look to both decisions. Sandie v. Att’y Gen., 562 F.3d 246, 250 (3d Cir. 2009). If the Board relies only on some of the grounds given for denying relief, we review only these grounds. Chukwu v. Att’y Gen., 484 F.3d 185, 193 (3d Cir. 2007).

III. Analysis

a. The Convention Against Torture

Article 3 of the CAT provides that “[n]o State Party shall expel, return ... or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” “The burden of proof is on the applicant ... to establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). “For an act to constitute torture under the [CAT] and the implementing regulations, it must be: (1) an act causing severe physical or mental pain or suffering; (2) intentionally inflicted; (3) for an illicit or proscribed purpose; (4) by or at the instigation of or with the consent or acquiescence of a public official who has custody or physical control of the victim; and (5) not arising from lawful sanctions.” Auguste v. Ridge, 395 F.3d 123, 151 (3d Cir. 2005) (citing Matter of J-E-, 23 I. & N. Dec. 291, 297 (BIA 2002)). “If an alien produces sufficient evidence to satisfy that burden, withholding of removal or deferring of removal [under the CAT] is mandatory.” Silvar-Rengifo, 473 F.3d at 64 (citing 8 C.F.R. §§ 1208.16-18).

To establish acquiescence, an applicant must demonstrate that, prior to the activity constituting torture, a public official was aware of it and thereafter breached the legal responsibility to intervene and prevent it. 8 C.F.R. § 1208.18(a)(7). The applicant can meet this standard even where the government does not have actual knowledge of the torturous activity if he “produc[es] sufficient evidence that the government [] is willfully blind to such activities.” Silvar-Rengifo, 473 F.3d at 65; see also Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 350 (3d Cir. 2008) (quoting Silva-Rengifo, 473 F.3d at 65). “[A]ll evidence relevant to the possibility of future torture shall be considered.” 8 C.F.R. § 1206.16(c)(3); see Pieschacon-Villegas, 671 F.3d at 310. Circumstantial evidence may establish acquiescence to targeted acts of violence even when the government has an official policy or is engaged in a campaign of opposition against the entity the applicant fears. See id. at 312; Gomez-Zuluaga, 527 F.3d at 351.

b. The BIA applied the incorrect standard of review to the IJ’s determination that Dutton-Myrie could not establish government acquiescence to the torture he fears.

Dutton-Myrie argues that the BIA erred in reviewing for clear error the IJ’s conclusion that the Panamanian government would not acquiesce to torture. True enough, the Code of Federal Regulations directs the Board to review the IJ’s findings of fact for clear error, 8 C.F.R. § 1003.1 (d)(3)(f), but its authority to review questions of law, discretion, and judgment is de novo, id. at § 1003.1(d)(3)(ii); see also In re Cabrera, 241 I. & N. Dec. 459, 460 (BIA 2008) (interpreting the regulation as providing de novo review of questions of law or mixed questions of law and fact). We agree with Dutton-Myrie that the question of whether likely government conduct equates to acquiescence is a mixed question of law and fact under our decision in Kaplun v. Att’y Gen., 602 F.3d 260 (3d. Cir. 2010). What this means is that the Board should review without deference the ultimate conclusion that the findings of fact do not meet the legal standard.

To determine whether an applicant has met the burden of establishing that it is more likely than not he would be tortured if removed, the IJ must address two questions: “(1) what is likely to happen to the petitioner if removed; and (2) does what is likely to happen amount to the legal definition of torture?” Id. at 271. In the first part of the inquiry, the IJ reviews the evidence and determines future events more likely than not to occur. These findings are “made up of facts” and are “dis-tin[ct] from [their] legal effect.” Id. at 269 (citing Black’s Law Dictionary 669 (9th ed. 2009)). Accordingly, the Board reviews these factual findings for clear error. Id. at 269-71. The IJ then determines whether the likely harm qualifies as torture under the governing regulations, and the Board reviews this legal conclusion de novo. Id. at 271.

In assessing whether an applicant has established that public officials will acquiesce to the feared tortuous acts of a non-state actor, the IJ also must conduct a two-part analysis. First, the IJ makes a factual finding or findings as to how public officials will likely act in response to the harm the petitioner fears. Next, the IJ assesses whether the likely response from public officials qualifies as acquiescence under the governing regulations. As above with respect to determinations of torture, this second part of the inquiry is a legal question. While the Board reviews the first part for clear error, it must review the second de novo.

To the extent a dictum in Kaplun suggested that whether the government would acquiesce was a factual question, id. at 272, it addressed only the first component of the inquiry into acquiescence: how the government would likely act in response to the harm the applicant fears. We clarify that the IJ must then apply the legal standard for acquiescence to determine whether this response establishes that a public official was “aware[] of [the torturous] activity” and subsequently breaches his or her “legal responsibility to intervene to prevent such activity.” 8 C.F.R. § 1208.18(a)(7). In colloquial terms, the question might be: Is the official willfully blind?

The Board stated that it found “no clear error in the Immigration Judge’s finding that the government of Panama would not be acquiescent to any torture.” While the Board was correct in reviewing for clear error the IJ’s factual findings (that the government actively engages against criminal gangs and that Dutton-Myrie did not provide the police notice that the gang attacked him in the past), it should have determined de novo whether these findings were sufficient to establish acquiescence.

Although it is possible that the BIA considered the appropriate willful blindness standard before concluding that the IJ’s factual findings on likely government conduct would not qualify as acquiescence to torture as a matter of law, we cannot tell from the BIA’s short decision whether this is indeed the case. “In order for us to be able to give meaningful review to the BIA’s decision, we must have some insight into its reasoning.” Awolesi v. Ashcroft, 341 F.3d 227, 232 (3d Cir. 2003). In any subsequent opinions in this case, the BIA should endeavor to explain clearly which conclusions of the IJ it is reviewing and which standard it is applying in so doing.

While we recognize this error may have resulted from a miscommunication on our part, the Board’s decision illustrates why we must remand. Because the Board did not conduct the second step of this two-part analysis, we have little insight into the basis for its determination that the IJ’s opinion “clearly reflects that he used the proper ‘willful blindness’ standard in relation to the issue of acquiescence.” In support of its conclusion, the Board provides only a citation to a portion of the IJ’s opinion where he neither defines willful blindness nor indicates why Dutton-My-rie’s evidence of willful blindness was insufficient to establish acquiescence. While the IJ states that he is incorporating his “prior references to the CAT standards,” and that he “already addressed” the holding of Pieschacon-Villegas in prior rulings, the Board found that the IJ failed to apply our holdings on acquiescence in Pieschacon-Villegas and Roye v. Att’y Gen., 693 F.3d 333 (3d Cir. 2012), in those rulings. Remand in this instance will give the Board an opportunity to provide a reasoned basis for its conclusion as to whether Dutton-Myrie can establish the necessary elements of torture.

c. On remand, the Board must consider circumstantial evidence of willful blindness.

The regulations require the Agency to consider all evidence relevant to the possibility of future torture. See 8 C.F.R. § 1206.16(c)(3); Pieschacon-Villegas, 671 F.3d at 313-14. Circumstantial evidence that public officials are willfully blind may establish acquiescence to future torture. Hence the Board must consider it.

Dutton-Myrie submitted circumstantial evidence via live testimony and sworn letters attesting that the Panamanian government had not taken steps to protect him or his family in the past and would likely continue to breach the duty to intervene in the future. In particular, he submitted a letter from the Panamanian Public Safety Department attesting to continued threats to his family members and that his mother lodged grievances about these threats with public officials. For the IJ not to reference this letter, and then for the BIA to intuit that somehow he considered it in concluding against Dutton-Myrie, is simply too speculative an inference to draw.

We also cannot conclude based on the record before us that the Board considered other relevant circumstantial evidence. Dutton-Myrie submitted an affidavit from his former girlfriend in which she stated that she reported the 2005 incident to the police. The Board did not address this evidence, but stated that the IJ’s decision clearly reflects that he applied the proper willful blindness standard with a citation to the final page of his opinion where he dismissed Dutton-Myrie’s former girlfriend’s testimony as “not verified.” Why a signed affidavit did not qualify as verified testimonial evidence escapes us. If it is to be disregarded, we need to know why.

Dutton-Myrie also testified about the futility of reporting to the police. In his first decisions, the IJ found this testimony credible and never notified Dutton-Myrie of a subsequent view otherwise. In any event, because this evidence is relevant to determining if the harm he fears will be met with a “blind eye” by authorities, the Board needed to consider it.

We also disagree with the Board’s reliance on two factual findings in support its conclusion that the IJ did not err in finding no government acquiescence to torture. It affirmed on the grounds that (1) “the record indicates that the government of Panama ‘actively engage[s]’ against criminal gangs and combats crime,” and (2) “although the applicant was attacked in February, 2005, he never reported the incident to police.” However, neither one of these circumstances, either alone or with the other, precludes an applicant from establishing that the government was willfully blind. “[A]n applicant can establish governmental acquiescence even if the government opposes the [] organization that is engaged in torturous acts.” Pieschacon-Villegas, 671 F.3d at 312. And nowhere do the regulations require actual knowledge of specific torturous acts against the applicant.

When the Board has relied on the failure to report crimes to show the absence of actual knowledge by a government official, along with the government’s active opposition to the group the petitioner fears, in concluding a petitioner cannot establish acquiescence, we have nonetheless remanded with instructions to consider circumstantial evidence that may establish willful blindness. See Gomez-Zuluaga, 527 F.3d at 351; Silva-Rengifo, 473 F.3d at 70; see also Bhatt v. Att’y Gen., 608 Fed. Appx. 93, 98 (3d Cir. 2015). Thus we grant the petition for review and remand for further proceedings consistent with this opinion.

We conclude with a comment on Dutton-Myrie’s due process claim that the IJ deprived him of his right to a fair hearing before a neutral arbiter. We do not decide it, but note our impression that this case, as it is becoming the immigration version of Dickens’s Jamdyce and Jamdyce, may be ripe for reassignment if further fact-finding is necessary.

      . He was also sentenced to two years of supervised release in the event that he was not immediately deported to Panama.

      . We do not reach Dutton-Myrie’s claim that his due process rights were violated by the failure to prepare a record of remand proceedings.


source: Caselaw Access Project

author: HARDIMAN, Circuit Judge.

license: Public Domain

text:
    IN RE: the TRUSTEES OF CONNEAUT LAKE PARK, INC., Debtor Park Restoration, LLC v. Erie Insurance Exchange; The Trustees of Conneaut Lake Park, a charitable trust; Crawford County, a political subdivision; Summit Township, a municipal corporation; Tax Claim Bureau of Crawford County; Conneaut School District Summit Township, a municipal corporation; Crawford County, a political subdivision; The Tax Claim Bureau of Crawford County; The Conneaut School District, Appellants
    No. 16-2516
    United States Court of Appeals, Third Circuit.
    Argued January 18, 2017
    (Opinion Filed: May 2, 2017)

      John F. Mizner [Argued], Mizner Law Firm, 311 West Sixth Street, Erie, PA 16507, Counsel for Appellee

      Lawrence C. Bolla, Michael P. Kruszew-ski, Arthur D. Martinucci [Argued], Quinn Buseck Leemhuis Toohey & Kroto, 2222 West Grandview Boulevard, Erie, PA 16506, Counsel for Appellants
    Before: FISHER , HARDIMAN, and GREENAWAY, JR., Circuit Judges.

       Honorable D. Michael Fisher, United States Circuit Judge for the Third Circuit, assumed senior status on February 1, 2017.

   OPINION OF THE COURT

HARDIMAN, Circuit Judge.

Pennsylvania law prohibits insurance companies from paying fire insurance proceeds to a “named insured” unless the local municipality certifies that no delinquent taxes are owed on the property where the insured structure was located. 40 Pa. Stat. § 638. The District Court held that “named insured” as used in Section 638 includes only those who own the structure at issue and are responsible for the delinquent taxes. Because the Bankruptcy Court rightly held that this interpretation contravenes the text of the statute, we will reverse.

I

This appeal involves Conneaut Lake Park, which abuts Conneaut Lake in Crawford County, Pennsylvania. The Park included a historic venue known as the Beach Club, which was owned by the Trustees of Conneaut Lake Park, Inc. Appellant Park Restoration, LLC, operated the Beach Club under a management agreement with the Trustees. Park Restoration insured the Beach Club against fire loss for $611,000 through Erie Insurance Exchange. When the Beach Club was destroyed by fire in 2013, Park Restoration submitted a claim to Erie. Erie did not dispute the claim, but in accordance with 40 Pa. Stat § 638, it required Park Restoration to obtain a certificate from the local municipal treasurer stating whether back taxes were owed on the property.

Park Restoration received a certificate showing a total of $478,260.75 in delinquent property taxes owed by the Trustees to Summit Township, Crawford County, the Tax Claim Bureau of Crawford County, and Conneaut School District (collectively, Taxing Authorities). These delinquent taxes dated back to 1996, well before Park Restoration signed its management agreement with the Trustees, and the taxes were owed on the entire 55.33 acre parcel on Conneaut Lake, not just the single acre that included the Beach Club. Nonetheless, because of the tax delinquency, Erie notified Park Restoration that it would transfer to the Taxing Authorities $478,260.75 of the $611,000 insurance proceeds. Park Restoration objected, prompting Erie to interplead the proceeds in the Court of Common Pleas of Crawford County.

The interpleader action was transferred to the United States Bankruptcy Court for the Western District of Pennsylvania after the Trustees filed for bankruptcy. In the Bankruptcy Court, Park Restoration argued that Section 638 “applies solely to those situations where the fee owner of the property is insured and where the tax liabilities at issue are the financial responsibility of the owner as well.” In re Trustees of Conneaut Lake Park, Inc., 543 B.R. 193, 198 (Bankr. W.D. Pa. 2015). Park Restoration argued that any other construction would violate the Takings Clauses of the United States Constitution and the Pennsylvania Constitution. The Trustees responded that Park Restoration was not entitled to any of the insurance proceeds because Park Restoration insured the Trustees’ property. Therefore, the Trustees sought the remaining insurance proceeds after the Taxing Authorities were compensated.

The Taxing Authorities and Park Restoration filed cross motions for summary judgment. The Bankruptcy Court granted partial summary judgment in favor of both parties. It held that under Section 638 the Taxing Authorities were entitled to full payment of the delinquent taxes ($478,-260.75), and that Park Restoration, as the named insured, was entitled to the balance of the insurance proceeds.

Park Restoration and the Trustees filed cross-appeals to the United States District Court for the Western District of Pennsylvania. Park Restoration argued, for the first time, that because the insured property constituted only 9% of the tax value of the parcel, Park Restoration’s insurance proceeds should apply pro rata to the tax debt. It also argued that anything more would be an unconstitutional taking. Meanwhile, the Trustees claimed entitlement to the balance of the insurance proceeds because they owned the Beach Club.

The District Court affirmed the Bankruptcy Court’s summary judgment for Park Restoration as. against the Trustees, but reversed the Bankruptcy Court’s summary judgment for the Taxing Authorities as against Park Restoration. The Court held that Section 638 is ambiguous because it uses “named insured” and “insured property owner” interchangeably. In re Trustees of Conneaut Lake Park, Inc., 551 B.R. 577, 584-85 (W.D. Pa. 2016). The District Court then considered legislative intent and concluded that the General Assembly intended Section 638 to apply only to property owners. The Court reasoned that because Park Restoration did not own the Beach Club or the parcel upon which it was located, it was not responsible for the Trustees’ delinquent taxes. The Taxing Authorities appealed the District Court’s judgment.

II

The Bankruptcy Court had jurisdiction under 28 U.S.C. §§ 157(b) and 1334(b). The District Court had appellate jurisdiction under 28 U.S.C. § 158(a). Our jurisdiction lies under 28 U.S.C. §§ 158(d) and 1291. “Because the District Court sat as an appellate court, reviewing an order of the Bankruptcy Court, our review of the District Court’s determinations is plenary.” In re Wettach, 811 F.3d 99, 104 (3d Cir. 2016) (quoting In re Bocchino, 794 F.3d 376, 379 (3d Cir. 2015)).

III

The Taxing Authorities argue that the District Court erred in reversing the Bankruptcy Court’s order granting them summary judgment. We agree. Section 638 required Erie to transfer funds from Park Restoration’s insurance claim to the Taxing Authorities irrespective of Park Restoration’s property interest in the Beach Club. Though Park Restoration’s public policy and equitable arguments are not without force, they cannot vitiate the statutory language. Additionally, we agree with the Bankruptcy Court that Section 638 as applied in this case does not violate the Takings Clauses of the United States Constitution or the Pennsylvania Constitution.

A

Although Pennsylvania courts have not addressed the question presented in this appeal, we believe that the text of Section 638 compels reversal. “When ascertaining Pennsylvania law, the decisions of the Pennsylvania Supreme Court are the authoritative source.” Spence v. ESAB Grp., Inc., 623 F.3d 212, 216 (3d Cir. 2010). Because the Pennsylvania Supreme Court has not ruled on this issue, “we must predict how it would rule.” Id. (citing Covington v. Cont’l Gen. Tire, Inc., 381 F.3d 216, 218 (3d Cir. 2004)). When interpreting Pennsylvania law, we apply its rules of statutory interpretation. See 1 Pa. Cons. Stat. § 1921 (providing guidance for courts interpreting Pennsylvania statutes); see also United States v. Atiyeh, 402 F.3d 354, 369-71 (3d Cir. 2005) (applying Pennsylvania rules of statutory interpretation to construe a statute). Pennsylvania’s General Assembly also provided that Section 638 “shall be liberally construed to accomplish its purpose.” 40 Pa. Stat. § 638(k).

Section 638 is relatively straightforward and its application here proceeds in three steps. First, the statute prohibits insurance companies from “pay[ing] a claim of a named insured for fire damage to a structure located within the municipality,” unless the insurance company is furnished with an appropriate certificate from the municipal treasurer. 40 Pa. Stat. § 638(a). Thus, Erie was prohibited from paying a claim to Park Restoration (the named insured) for fire damage to the Beach Club (the damaged structure) unless Erie was furnished with the appropriate certificate.

Second, there will be one of two types of certificates issued depending on whether delinquent taxes are owed on the property where the structure was located. When, as in this ease, there is a tax delinquency, the municipal treasurer is required to issue “a certificate and bill showing the amount of delinquent taxes, assessments, penalties and user charges against the property as of the date specified in the request.” 40 Pa. Stat. § 638(b)(1)(h) (emphasis added). Here, the 55.33 acre tax parcel on Con-neaut Lake had a tax delinquency of $478,260.75.

Finally, upon receipt of the certificate, Erie was required to “transfer to the treasurer an amount from the insurance proceeds necessary to pay the taxes.” 40 Pa. Stat. § 638(b)(2)(h).

As the Bankruptcy Court observed, the statute does not “qualify its terms by requiring that the named insured be the ‘owner’ of the structure destroyed by the fire. Nor does the statute limit the imposition of the tax claim against insurance proceeds payable to the entity primarily liable for the tax debt in question.” Conneaut Lake Park, Inc., 543 B.R. at 203. The tax claim is “levied against the insured property” —that is, it is “in rem in nature and runs with the real property.” Id. (internal formatting and quotation marks omitted). So the Taxing Authorities’ claim “attache[d] to any fire insurance proceeds payable to any named insured as opposed to being limited solely to the beneficial .interests (if any) of the primarily liable taxpayer.” Id.

Unlike the Bankruptcy Court, the District Court found the statute ambiguous. In doing so, the District Court cited 40 Pa. Stat. § 638(b)(2)(i), which uses the terms “insured property owner” and “named insured.” Perceiving that these terms were used interchangeably, the District Court concluded that “[a] straight-forward reading of the statute demonstrates that it is referencing the same party when it refers to the ‘named insured’ and the ‘insured property owner.’ ” Conneaut Lake Park, Inc., 551 B.R. at 585. According to the District Court, the only way to resolve the inconsistency was to “assume that the General Assembly meant that the ‘named insured’ and ‘the insured property owner’ are synonymous” throughout the entire statute. Id. It followed, then, that this inconsistency rendered Section 638 “reasonably susceptible [to] different interpretations.” Id. (quoting Dobrek v. Phelan, 419 F.3d 259, 264 (3d Cir. 2005)).

We need not opine as to whether the District Court is correct that the General Assembly used the terms “named insured” and “insured property owner” interchangeably for purposes of Section 638(b)(2)(i), which applies when a property is free from tax delinquency. It suffices to say that the subsection upon which the District Court relied has no application here, where property taxes undoubtedly were in arrears. And the subsection relevant to this case (Section 638(b)(l)(ii)) refers to “named insured” with nary a mention of “insured property owner.”

“When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa. Cons. Stat. § 1921(b). The statute’s unambiguous words “are presumed to be the best indication of legislative intent.” Reid v. City of Philadelphia, 598 Pa. 389, 957 A.2d 232, 235 (2008) (quoting Chanceford Aviation Props., L.L.P. v. Chanceford Twp. Bd. of Supervisors, 592 Pa. 100, 923 A.2d 1099, 1104 (2007)). Because the Bankruptcy Court correctly held that the applicable statutory provision is unambiguous, we must reverse the District Court’s order in that respect.

B

Park Restoration raises two other arguments in support of its position that Section 638 applies only to property owners. These arguments — that public policy and equity compel us to affirm the District Court — cannot vitiate the text of the statute.

1

Park Restoration argues that the public policy underlying Section 638 was to prevent property owners from “burning] their buildings or structures to collect the insurance proceeds” by requiring that money “be first used to pay delinquent real estate taxes.” Park Rest. Br. 16. From this premise, it concludes that this “rationale does not apply where the insured does not have a responsibility to pay ... real estate taxes or to repair or secure a building or structure.” Id.

We have little doubt that the statute’s principal purpose is to stop property owners from profiting from arson. But that purpose does not compel the conclusion that “named insured” does not also apply to insured occupants who have no ownership interest. The public policy concern regarding misfeasance by property owners applies nearly as forcefully to lessees or others who have insured property they don’t own. Moreover, Park Restoration’s interpretation could incentivize an end rim around Section 638 by permitting unscrupulous owners to use the corporate form to collect insurance proceeds without satisfying their delinquent taxes.

2

At oral argument, counsel for Park Restoration insisted that reinstatement of the Bankruptcy Court’s order would bestow an inequitable windfall upon the Trustees. In response, the Taxing Authorities explained that the Joint Plan of Reorganization provides for payment on their first tax lien as follows: (a) net proceeds of sale of six separate lots owned by the Trustees; (b) payment of $478,260.75 due from Park Restoration’s fire insurance proceeds; and (c) a “safeguard” for the prevention of an overpayment to the Taxing Authorities. Taxing Authorities Rule 28j Letter dated Jan. 23, 2017, at 3. In effect, this payment plan means that since the Taxing Authorities have won this appeal, it is possible that the net proceeds from the sale of these lots will be used to satisfy delinquent taxes owed on other parcels or to satisfy other claims from the Trustees’ creditors rather than to pay the tax debt owed by the Trustees on the parcel where the Beach Club was located. Park Restoration Rule 28j Letter dated Jan. 28, 2017, at 2-3. While Park Restoration makes a plausible case that it might be subject to an inequitable distribution of proceeds at a later date, the record on appeal neither compels that conclusion nor allows us to make a definitive judgment in that regard. Thus, we will rely on the Bankruptcy Court to consider those issues in due course and we emphasize that nothing in this opinion should be construed to preclude Park Restoration from seeking an accounting or any other equitable relief in the future.

C

Park Restoration argues here, as it did in the Bankruptcy Court, that “allowing the Taxing Authorities to be paid ... from the Insurance Proceeds results in a ‘gratuitous confiscation’ of [Park Restoration’s] property without just compensation in violation of the Takings Clause(s) found in both the U.S. Constitution and the Pennsylvania Constitution.” Conneaut Lake Park, Inc., 543 B.R. at 204. We find this argument tenuous at best.

The Fifth Amendment provides that “private property [shall not] be taken for public use, without just compensation.” U.S. Const, amend., V. The Fifth Amendment applies to the States through the Fourteenth Amendment. Palazzolo v. Rhode Island, 533 U.S. 606, 617, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001). The Pennsylvania Constitution also provides that “private property [shall not] be taken or applied to public use, without authority of law and without just compensation being first made or secured.” Pa. Const. Art. I, § 10. The Pennsylvania Supreme Court follows federal law in Takings Clause cases so our analysis under the Fifth Amendment applies equally to Pennsylvania’s Constitution. Corman v. NCAA, 74 A.3d 1149, 1167 (Pa. Commw. Ct. 2013).

To determine whether an unconstitutional taking occurred, we ask three questions: (1) was there a taking?; (2) was that taking for public use?; and (3) did the claimant receive just compensation? Takings may occur either by physical appropriation of property or regulatory activity. See Home v. Dep’t of Agric., — U.S. -, 135 - S.Ct. 2419, 2427, 192 L.Ed.2d 388 (2015). On the one hand, physical appropriation of property is “a per se taking, without regard to other factors.” Id. Thus, “[w]hen the government physically takes possession of an interest in property ... it has a categorical duty to compensate the former owner, regardless of whether the interest that is taken constitutes an entire parcel or merely a part thereof.” Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 321, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002) (citations omitted). Regulatory takings require a more detailed analysis, however. Although “property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” Pa. Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 67 L.Ed. 322 (1922). There are “at least two discrete categories of regulatory action” that violate the Fifth Amendment: “regulations that compel the property owner to suffer a physical ‘invasion’ of his property” and “regulation [that] denies all economically beneficial or productive use of land.” Lucas v. S. Carolina Coastal Council, 505 U.S. 1003, 1015, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992). When determining whether a regulatory taking has occurred, the Court may consider the “economic impact of the regulation on the claimant” and the “character of the governmental action.” Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978).

In this appeal, we need not determine whether there was an actual or regulatory taking because the party asserting the claim must have a “legally cognizable property interest.” Prometheus Radio Project v. FCC, 373 F.3d 372, 428-29 (3d Cir. 2004). Here, it is clear that Park Restoration had no legally cognizable property interest in the entirety of the proceeds from its insurance policy because Section 638 made receipt of such proceeds conditional on satisfying the delinquent taxes owed on the insured property. The policy states that “[Erie] will pay [Park Restoration] unless some other person is named in the policy or is legally entitled to receive payment,” Conneaut Lake Park, Inc., 543 B.R. at 199, and that “[t]his policy conforms to the laws of the state in which [Park Restoration’s] principal office is located.” Id. at 205. Section 638 had been enacted by the General Assembly and adopted by the required local ordinance long before Park Restoration obtained its insurance policy from Erie. Thus, the insurance policy incorporated the statute. See Coolspring Stone Supply, Inc. v. Am. States Life Ins. Co., 10 F.3d 144, 147-48 (3d Cir. 1993) (finding that “pertinent statutory provisions of Pennsylvania insurance law are deemed incorporated into insurance policies” (quoting Santos v. Ins. Placement Facility, 426 Pa.Super. 226, 626 A.2d 1177, 1179 (1993))).

In sum, when Park Restoration insured the Beach Club, its rights to any insurance proceeds were subject to the claim of the Taxing Authorities. Without a legally cognizable property interest, Park Restoration has no cognizable takings claim. Prometheus Radio Project v. FCC, 373 F.3d 372, 428-29 (3d Cir. 2004). Park Restoration’s “failure to establish any greater entitlement to the proceeds under its policy (and Pennsylvania law) is fatal to its assertion that payment of Insurance Proceeds to the Taxing Authorities would violate the Takings Clause(s) of the U.S. Constitution and the Pennsylvania Constitution.” Conneaut Lake Park, Inc., 543 B.R. at 206 (citing Mahon, 260 U.S. at 413, 43 S.Ct. 158).

rv

For the reasons stated, we will reverse the judgment of the District Court and remand for entry of judgment in favor of the Taxing Authorities.


author: RESTREPO, Circuit Judge.

text:
    UNITED STATES of America v. Jose Angel RODRIGUEZ, Appellant
    No. 16-3232
    United States Court of Appeals, Third Circuit.
    Argued: January 25, 2017
    (Opinion Filed: April 28, 2017)
    Amended: May 1, 2017

      James V. Wade, Ronald A. Krauss [ARGUED], Office of Federal Public Defender, 100 Chestnut Street, Suite 306, Harrisburg, PA 17101, Counsel for Appellant
    Bruce D. Brandler, Scott R. Ford, Carlo D. Marchioli [ARGUED], United States Attorney’s Office, Middle District of Pennsylvania, 228 Walnut Street, Suite 220, Harrisburg, PA 17108, Counsel for Appel-lee
    Before: CHAGARES, RESTREPO and ROTH, Circuit Judges.
   OPINION OF THE COURT

RESTREPO, Circuit Judge.

Appellant Jose Rodriguez appeals as substantively unreasonable the District Court’s discretionary denial of his motion for a sentencing reduction under 18 U.S.C. § 3582(c)(2). While this would ordinarily be a routine appeal, it is not here because the Government raises a novel challenge to our appellate jurisdiction. The Government contends that we lack jurisdiction to consider whether a ruling on a Section 3582(c)(2) motion was substantively unreasonable. We conclude that we have jurisdiction under 28 U.S.C. § 1291. We will affirm.

I

In 2012, Rodriguez pled guilty to conspiracy to distribute cocaine, 21 U.S.C. § 846, and conspiracy to possess firearms in furtherance of drug trafficking, 18 U.S.C. § 924(o). The drug quantity was more than 15 and less than 50 kilograms of cocaine. Rodriguez was also responsible for multiple drug-related robberies. His sentencing range was 120-150 months. The District Court ultimately sentenced Rodriguez to 123 months’ imprisonment and 3 years’ supervised release.

In 2016, Rodriguez filed a motion for a sentencing reduction under 18 U.S.C. § 3582(c)(2). The basis for the motion was Amendment 782 of the Sentencing Guidelines. Amendment. 782 reduced by two the offense levels in Section 2D1.1 for drug quantities that trigger a mandatory minimum sentence. U.S.S.G. Supp. App. C, Amend. 782. Amendment 782 is retroactive, provided that any reduction take effect on or after November 1, 2015. U.S.S.G. Supp. App. C, Amend. 788; U.S.S.G. § lB1.10(d); U.S.S.G. § 1B1.10, cmt. n.6.

The District Court found Rodriguez eligible for an Amendment 782 sentencing reduction, but denied relief in the exercise of its discretion. The District Court found that Rodriguez had engaged in “an unyielding and escalating pattern of drug-related and violent behavior which has been undeterred by prior and substantial terms of imprisonment.” App. 12. Rodriguez now appeals. He asserts that his unmodified sentence is substantively unreasonable, based upon the factors listed in 18 U.S.C. § 3553(a) and his post-sentencing conduct.

II

The District Court had jurisdiction under 18 U.S.C. § 3231. United States v. Styer, 573 F.3d 151, 153 n.2 (3d Cir. 2009). We have jurisdiction to address our own jurisdiction. United States v. United Mine Workers of Am., 330 U.S. 258, 291, 67 S.Ct. 677, 91 L.Ed. 884 (1947). We hold that we have jurisdiction over the merits of this appeal under 28 U.S.C. § 1291, as explained below. Styer, 573 F.3d at 153 n.2. We review the District Court’s decision to deny Rodriguez’s sentencing reduction motion for abuse of discretion. United States v. Thompson, 825 F.3d 198, 203 (3d Cir. 2016) (citation omitted).

III

This case involves a motion for a sentencing reduction under 18 U.S.C. § 3582(c)(2). Section 3582(c)(2) is an “exception to the general rule of finality” over sentencing judgments, set forth at 18 U.S.C. § 3582(b). Dillon v. United States, 560 U.S. 817, 824, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010). Section 3582(c)(2) applies to amendments to the Sentencing Guidelines. It provides that a district court may reduce a sentence if two conditions are met: (1) the defendant was sentenced “based on a sentencing range that has subsequently been lowered by the Sentencing Commission” and (2) “a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2); see also United States v. Flemming, 617 F.3d 252, 257 (3d Cir. 2010).

The “policy statement!]” referenced in Section 3582(c)(2) is Section 1B1.10 of the Sentencing Guidelines. See Dillon, 560 U.S. at 827, 130 S.Ct. 2683. Section 1B1.10, in turn, contains its own, more specific requirements for a sentencing reduction. Under Section 1B1.10, the amendment to the Sentencing Guidelines must be retroactive. U.S.S.G. § IB.1.10(a)(2)(A), (d). It must also “have the effect of lowering the defendant’s applicable guideline range,” based upon a prescribed method of calculation. U.S.S.G. § lB.1.10(a)(2)(B).

If these eligibility requirements are met, a district court has the discretion to grant a sentencing reduction “after considering the factors set forth in section 3553(a) to the extent that they are applicable.” 18 U.S.C. § 3582(c)(2); see also Flemming, 617 F.3d at 257. In addition, a district court “shall consider the nature and seriousness of the danger to any person or the community” and “may consider post-sentencing conduct of the defendant.” U.S.S.G. § 1B1.10, cmt. n.l(B)(ii-iii); see also Flemming, 617 F.3d at 257.

IV

Rodriguez is indisputably eligible for a Section 3582(c)(2) sentencing reduction under Amendment 782. The District Court, however, denied relief in the exercise of its discretion. The Government contends that we lack appellate jurisdiction over Rodriguez’s claim that his unmodified sentence is substantively unreasonable. We disagree. For the reasons below, we have jurisdiction over the District Court’s final order under 28 U.S.C. § 1291.

A

This Court routinely exercises jurisdiction over appeals just like this one. Although the vast majority of these decisions are unpublished, we have held in an analogous, published case, Styer, that “[w]e have jurisdiction under 28 U.S.C. § 1291.” 573 F.3d at 153 n.2. In Styer, we not only asserted jurisdiction, but also reached the merits of the defendant’s claim that his unmodified sentence was substantively unreasonable in light of the Section 3553(a) factors. Id. at 154-55. This ruling on the merits implies that we were satisfied as to our jurisdiction. See Trent Realty Assocs. v. First Fed. Sav. & Loan Ass’n of Phila., 657 F.2d 29, 36 (3d Cir. 1981).

Styer notwithstanding, the Government argues that there is no binding precedent establishing our appellate jurisdiction because our prior treatment was cursory. Assuming arguendo that Styer is not binding, we will explain why we have jurisdiction under Section 1291.

At the outset, we note that three other Circuits have also concluded after a full analysis that jurisdiction lies under Section 1291. Jones, 846 F.3d at 370; United States v. Washington, 759 F.3d 1175, 1180-81 (10th Cir. 2014); United States v. Dunn, 728 F.3d 1151, 1156-58 (9th Cir. 2013). At least two more Circuits have, in recent decisions, asserted jurisdiction under Section 1291, without explanation. United States v. Hernandez-Marfil, 825 F.3d 410, 411 (8th Cir. 2016) (per curiam); United States v. Purnell, 701 F.3d 1186, 1188 (7th Cir. 2012) (jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742). The only Circuit to reach a contrary holding is the Sixth Circuit, which held sua sponte that it lacks jurisdiction to review for substantive reasonableness a ruling on a Section 3582(c) motion. United States v. Bowers, 615 F.3d 715, 717 (6th Cir. 2010). No Circuit has followed this 2010 decision.

B

We turn now to the substance of our jurisdictional ruling, beginning with the text of 28 U.S.C. § 1291. Section 1291 provides that the courts of appeals have “jurisdiction of appeals from all final decisions of the district courts.” 28 U.S.C. § 1291. “Final judgment in a criminal case means sentence. The sentence is the judgment.” Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 82 L.Ed. 204 (1937). As we have stated, “[a] judgment of sentence is a final order.... This court not only has the [p]ower to review an appeal after sentence of conviction, we have the [d]uty to review it as a final order, 28 U.S.C. § 1291.” United States v. Moskow, 588 F.2d 882 (3d Cir. 1978). Accordingly this Court regularly exercises jurisdiction over sentencing appeals under Section 1291 (in addition to 18 U.S.C. § 3742). See, e.g., United States v. Tomko, 562 F.3d 558, 564 n.5 (3d Cir. 2009) (en banc); United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir. 2007); United States v. Charles, 467 F.3d 828, 830 n.4 (3d Cir. 2006); United States v. Cooper, 437 F.3d 324, 327 n.4 (3d Cir. 2006), abrogated on other grounds by Rita v. United States, 551 U.S. 338, 346-47, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007).

Our many decisions exercising Section 1291 jurisdiction over sentencing appeals are analogous to the instant case, which is an appeal of a ruling on a Section 3582(c)(2) motion. Like sentencing judgments, rulings on Section 3582(c)(2) motions are “unquestionably ‘final decisions of [a] district ] court’ because 'they close the criminal cases once again.” Jones, 846 F.3d at 369 (alteration in original) (quoting 28 U.S.C. § 1291). Thus, the judgment of the District Court denying Rodriguez’s sentencing reduction motion was a final order under Section 1291.

C

This, however, does not fully resolve our inquiry as to whether we have Section 1291 jurisdiction over Rodriguez’s appeal. This is because another, narrower jurisdictional statute — 18 U.S.C. § 3742 — could potentially interfere with our Section 1291 jurisdiction. For the reasons below, we hold that it does not.

1

Section 3742(a) provides that a defendant may appeal “an otherwise final sentence” under enumerated circumstances; i.e. if the sentence:

(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect application of the sentencing guidelines; or-
(3) is greater than the sentence specified in the applicable guideline range to the extent that the sentence includes a greater fine or term of imprisonment, probation, or supervised release than the maximum established in the guideline range, or includes a more limiting condition of probation or supervised release under section 3563(b)(6) or (b)(ll) than the maximum established in the guideline range; or
(4)was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.

18 U.S.C. § 3742(a).

Our Section 1291 jurisdiction may be limited in some cases by Section 3742. As a general principle, an appellant cannot resort to Section 1291’s “broad grant of jurisdiction to circumvent statutory restrictions on sentencing appeals in § 3742.” Jones, 846 F.3d at 369. More specifically, “the presence of Section 3742 might pose an obstacle” to review under Section 1291 if Section 3742’s “provisions barred review for reasonableness” and the statute were otherwise applicable. Id. (citation omitted).

Section 3742 is not an “obstacle” to our Section 1291 jurisdiction because it does not bar review for reasonableness. To the contrary, Section 3742(a)(1) allows review for reasonableness because “an unreasonable sentence is ‘imposed in violation of law’ under 18 U.S.C. § 3742(a)(1).” Cooper, 437 F.3d at 327 (applying United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)); see also United States v. Jackson, 467 F.3d 834, 838 (3d Cir. 2006) (holding that post-Booker “we have jurisdiction to review all criminal sentences for reasonableness”). The fact that Section 3742 permits reasonableness review “completely moots the theory that use of § 1291 would undercut § 3742’s limitations.” Jones, 846 F.3d at 369.

2

The Government attempts to refute our jurisdictional holding by drawing upon this Court’s precedent regarding downward departures. A departure is a sentence outside the Guideline range “given for reasons contemplated by the Guidelines themselves (under U.S.S.G. § 4A1.3 and Ch. 5, Pt. K)Jackson, 467 F:3d at 837 n.2. As the Government emphasizes, we lack jurisdiction to review a district court’s discretionary denial of a downward departure. See, e.g., United States v. Ruiz, 536 U.S. 622, 627, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002); Jackson, 467 F.3d at 839; Cooper, 437 F.3d at 333; United States v. Denardi, 892 F.2d 269, 272 (3d Cir. 1989).

Our downward departure cases are distinguishable. As we held in Cooper, this distinction turns upon Congress’s intent in enacting Section 3742. As to a downward departure, Sections “3742(a) and (b) reflect Congress’s intent to foreclose review of a sentencing court’s decision not to depart” under the relevant Guidelines. Cooper, 437 F.3d at 333 (citations omitted). But as to a substantively unreasonable sentence, Section 3742 does not evince Congress’s intent to foreclose review. This is because “in enacting §§ 3742(a)(1) and (b)(1), Congress could not have contemplated that the sentencing scheme it adopted would later be declared advisory” in Booker. Id. at 328.

To synthesize these two points, “§ 3742 works in tandem with § 1291 [potentially] limiting judicial .review of only those sentencing decisions that are part of Congress’s sentencing Guidelines scheme but leaving intact the general grant of jurisdiction over sentencing appeals under § 1291.” Briana Lynn Rosenbaum, Righting the Historical Record: A Case for Appellate Jurisdiction over Sentences for Reasonableness under 28 U.S.C. § 1291, 62 Hastings L.J. 865, 918 (2011). Thus, we have jurisdiction over Rodriguez’s appeal under Section 1291, notwithstanding Section 3742.

y

We now reach the merits of Rodriguez’s appeal. We conclude that the District Court did not impose a substantively unreasonable sentence based upon the 18 U.S.C. § 3553(a) factors, the threat to public safety and Rodriguez’s post-sentencing conduct. See U.S.S.G. § 1B1.10, cmt. n.1(B)(ii-iii). Rodriguez participated in a vast drug trafficking conspiracy and a series of violent, armed robberies, including a robbery of a drug dealer’s family. He has an extensive criminal history. Rodriguez committed the underlying crimes soon after his release from a lengthy prison sentence for drug and firearm offenses. Although Rodriguez has had no misconduct in prison, the District Court considered this fact and concluded that it does not outweigh the public safety risk. The District .Court also considered the fact that Rodriguez accepted responsibility, and concluded that he has been appropriately rewarded. “This weighing and consideration of multiple factors, expressly left to a court’s discretion, is exactly the type of ‘reasoned appraisal’ to which we defer on review.” Styer, 573 F.3d at 155 (quoting Kimbrough v. United States, 552 U.S. 85, 111, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007)).

VI

The judgment of the District Court will be affirmed.

      . All references to Section IB 1.10 refer to the 2015 edition of the Guidelines Manual, which was effective November 1, 2015. See U.S.S.G. § IB 1.10, cmt. n.8 (providing that “the court shall use the version of this policy statement that is in effect on the date on which the court reduces the defendant’s term of imprisonment as provided by 18 U.S.C. § 3582(c)(2)’’).

      . Because we conclude that we have jurisdiction under 28 U.S.C. § 1291, we need not determine whether we also have jurisdiction under 18 U.S.C. § 3742.

      . At oral argument, the Government described the origins of its novel challenge to our jurisdiction. The Government’s argument was prompted by proceedings in an analogous case, United States v. Jones, 846 F.3d 366 (D.C. Cir. 2017). In Jones, the District of Columbia Circuit sua sponte ordered supplemental briefing on jurisdiction. The Government filed a supplemental brief in Jones. It then filed an almost verbatim copy of the Jones brief as its principal brief in Rodriguez’s case. See Consolidated Suppl. Br. for Appellee, United States v. Jones, 846 F.3d 366 (D.C. Cir. 2017) (Nos. 15-3063, 15-3064), 846 F.3d 366, 2016 WL 6092381. Jones has since been decided, against the Government. Jones, 846 F.3d at 370 (exercising jurisdiction under Section 1291).

      . Bowers conflicts with the settled law of our Court. Specifically, Bowers begins with the premise that 28 U.S.C. § 1291 is not a source of jurisdiction for sentencing appeals. Bowers, 615 F.3d at 719 (citation omitted). In contrast, our Court regularly hears sentencing appeals under both 28 U.S.C. § 1291 and 18 U.S.C. § 3742. See infra Section IV.B.

      . As set forth below, Section 3742 does not bar review for reasonableness. This is sufficient to establish that Section 3742 is not a barrier to our jurisdiction under Section 1291. As such, we need not reach the question whether Section 3742' is otherwise applicable to a Section 3582(c)(2) sentencing reduction motion.

      . The Tenth Circuit also considered the potential interaction between Section 1291 and Section 3742, but framed the question slightly differently. United States v. Hahn, 359 F.3d 1315, 1321 (10th Cir. 2004) (en banc). Hahn asked whether Section 3742 “impliedly repeal[ed],” in relevant part, Section 1291. Id. (quoting Branch v. Smith, 538 U.S. 254, 273, 123 S.Ct. 1429, 155 L.Ed.2d 407 (2003) (plurality)). It concluded that it did not. Id. at 1322. Although, like Jones, we do not employ the implied repeal doctrine here, our holding is consistent with Hahn.

      . A “departure” is different from a "variance,” which is a sentence outside the Guidelines range under Booker. Jackson, 467 F.3d at 837 n.2.