author: KAVANAUGH, Circuit Judge:

text:
    Patrick KINCAID, on behalf of himself and all others similarly situated, et al., Appellants v. GOVERNMENT OF the DISTRICT OF COLUMBIA, Appellee
    No. 16-7066
    United States Court of Appeals, District of Columbia Circuit.
    Argued February 15, 2017
    Decided April 25, 2017

      Jeffrey Light argued the cause for appellants. With him on the briefs were William Claiborne and Lynn E. Cunningham.
    Jason Lederstein, Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellee. With him on the brief were Karl A. Racine, Attorney General, Todd S. Kim, Solicitor General, and Loren L. AliK-han, Deputy Solicitor General.
    Before: KAVANAUGH, Circuit Judge, and SENTELLE and RANDOLPH, Senior Circuit Judges.
   KAVANAUGH, Circuit Judge:

This case concerns the District of Columbia’s post-and-forfeit statute. Under that law, certain individuals arrested for misdemeanor crimes receive an opportunity to resolve their criminal charges immediately by paying a relatively small sum of money, typically $25 to $50. An arrestee who chooses to use the post-and-forfeit procedure is released without the need to attend any criminal proceedings and without any admission of fault or record of conviction. An arrestee who declines to use the post-and-forfeit procedure is entitled to all criminal due process protections, including an initial hearing before a judicial officer and a trial on the merits.

In this case, a group of individuals who resolved their misdemeanor charges using the post-and-forfeit procedure later filed suit, challenging the procedure and the statute authorizing it as unconstitutional. They argue that the post-and-forfeit procedure deprives arrestees of their property in violation of the Due Process Clause of the Fifth Amendment. They also contend that the statute authorizing the post-and-forfeit procedure is void for vagueness under the Due Process Clause. The District Court dismissed those claims, concluding that the post-and-forfeit statute is consistent with the Due Process Clause. We affirm.

I

A

In 2004, the Council of the District of Columbia adopted the First Amendment Rights and Police Standards Act. The Act took effect in 2005 following a 30-day period of congressional review. See 52 D.C. Reg. 5417 (June 10, 2005). Among other things, the Act codified D.C.’s longstanding “post-and-forfeit” procedure. See D.C. Code § 5-335.01. That procedure has been used to resolve low-level criminal charges in the District for more than 50 years. Under the post-and-forfeit procedure, police officers may offer a misdemeanor ar-restee the opportunity to “obtain a full and final resolution of the criminal charge” by posting and simultaneously forfeiting an amount of money associated with the charge. Id. § 5-335.01(a)(3). In other words, the post-and-forfeit procedure allows ah arrestee to pay a sum of money to resolve his or her criminal charge without having to proceed through the traditional criminal process. The post-and-forfeit amounts are pre-determined by the Superior Court of the District of Columbia and are available online. Those amounts typically range from $25 to $50, but may in some cases extend up to $500 or $1,000 for certain misdemeanor offenses. See Superi- or Court Bond and Collateral List, Non-Traffic Offenses (June 11, 2014).

An arrestee who chooses to use the post- and-forfeit procedure must pay the amount associated with his or her misdemeanor charge. Following payment, the arrestee’s charge is fully resolved and the arrestee need not attend any further criminal proceedings. The statute makes clear that an arrestee’s choice to use the post-and-forfeit procedure “is not a conviction of a crime and shall not be equated to a criminal conviction.” D.C. Code .§ 5-335.01(b). The statute similarly specifies that resolution of a charge using the post-and-forfeit procedure “may not be relied upon by any District of Columbia court or agency in a subsequent criminal, civil, or administrative proceeding or administrative action to impose any sanction, penalty, enhanced sentence, or civil disability.” Id.

By statute, an arrestee who receives a post-and-forfeit offer must also be provided with a form that explains the post-and-forfeit process. The form must make clear, among other things, that the arrestee has “the right to choose” whether to “[a]ccept the post-and-forfeit offer and terminate the criminal case” or, alternatively, “[proceed with the criminal case and a potential adjudication on the merits of the criminal charge.” Id. § 5-335.01(e)(2); see also id. § 5-335.01(e)(l), (3)-(7). In order to accept a post-and-forfeit offer, an arrestee must indicate his or her understanding and approval of the process by signing the required form. Id. § 5-335.01(g).

An arrestee may choose to decline a post-and-forfeit offer and instead contest the criminal charges. If an arrestee does so, the criminal process moves forward as usual. The arrestee is afforded all of the traditional due process protections associated with the criminal process. Those protections may include, among other things, a hearing before a judicial officer. Pending that hearing, an arrestee is released “on citation” with instructions to return to court. See id. § 5-335.01(e)(3); id. § 23-584. If the Government chooses to proceed with its case against an arrestee, the arrestee is entitled to contest the relevant charges at a trial on the merits.

If an arrestee uses the post-and-forfeit procedure but later decides to contest the criminal charges, the statute provides a mechanism to do so. Any person who uses the post-and-forfeit procedure may seek, within 90 days of the forfeiture, to “set aside the forfeiture and proceed with the criminal case.” Id. § 5-335.01(e)(4).

B

In 2014, Metropolitan Police officers arrested Patrick Kincaid and charged him with possession of an open container of alcohol. The officers transported Kincaid to the local station house. At the station house, the officers offered Kincaid the opportunity to resolve his misdemeanor charge through the post-and-forfeit procedure. Kincaid accepted. Kincaid signed a form acknowledging that, by accepting the post-and-forfeit offer, he was making the choice to forfeit both the sum of $25 and his “right to a hearing in court.” Kincaid Collateral/Bond Receipt Form, J.A. 37. The form that Kincaid signed also stated that Kincaid could seek to set aside the forfeiture and proceed with the criminal case within 90 days. Id.

Although Kincaid chose to resolve his charge through the post-and-forfeit procedure, he maintains that his arrest was improper. But Kincaid declined to file a motion to set aside his forfeiture and challenge his arrest in a criminal court proceeding. Instead, Kincaid filed a class action lawsuit in the District Court on behalf of himself and other individuals who used the post-and-forfeit procedure to resolve misdemeanor criminal charges. The suit challenged the post-and-forfeit statute as unconstitutional on a number of grounds.

As relevant here, Kincaid’s complaint asserted that the post-and-forfeit procedure violates arrestees’ due process rights because it deprives them of their money without a hearing. In addition, Kincaid claimed that the post-and-forfeit statute is unconstitutionally vague because it grants too much enforcement discretion to law enforcement officials. The District of Columbia moved to dismiss Kincaid’s complaint for failure to state a claim. The District Court granted the District of Columbia’s motion and dismissed Kincaid’s constitutional claims. See Kincaid v. District of Columbia, 177 F.Supp.3d 548 (D.D.C. 2016).

Kincaid now appeals the District Court’s dismissal of his procedural due process and vagueness claims. We review the District Court’s decision de novo.

II

A

We first address Kincaid’s claim that the post-and-forfeit procedure violates due process because it deprives individuals of their money without a hearing. The Due Process Clause of the Fifth Amendment bars D.C. officials from depriving any person “of life, liberty, or property, without due process of law.” U.S. Const, amend. V. As a general matter, the Due Process Clause requires the Government to provide certain “procedural protections” before depriving individuals of their property interests. Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). The due process test set forth by the Supreme Court in Mathews v. El-dridge requires a judicial balancing of the Government’s interests against the individual’s interests. See id. at 334-35, 96 S.Ct. 893.

“In the field of criminal law,” however, the Bill of Rights “speaks in explicit terms to many aspects of criminal procedure.” Medina v. California, 505 U.S. 437, 443, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992). For that reason, the Supreme Court has stated that “the Due Process Clause has limited operation” beyond the “specific guarantees enumerated in the Bill of Rights.” Id. (internal quotation mark omitted). According to the Supreme Court, “expansion of those constitutional guarantees under the open-ended rubric of the Due Process Clause invites undue interference with both considered legislative judgments and the careful balance that the Constitution strikes between liberty and order.” Id.

Therefore, when examining due process claims in the realm of criminal procedure, courts apply a test that is somewhat more deferential than the Mathews v. Eldridge test: A rule of criminal procedure usually does not violate the Due Process Clause unless it (i) “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,” or (ii) “transgresses any recognized principle of ‘fundamental fairness’ in operation.” Id. at 445, 448, 112 S.Ct. 2572 (quoting Patterson v. New York, 432 U.S. 197, 202, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977); Dowling v. United States, 493 U.S. 342, 352, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990)).

Here the post-and-forfeit procedure is a procedural rule that is a “part of the criminal process.” Nelson v. Colorado, No. 15-1256, slip op. at 5, — U.S. -, -, 137 S.Ct. 1249, 197 L.Ed.2d 611, 2017 WL 1390727 (U.S. 2017) (internal quotation mark omitted). Indeed, the post-and-forfeit procedure is the process for resolving a criminal charge for arrestees who choose to use it. So the Medina test applies. But Kincaid has failed to show that the post-and-forfeit procedure violates either prong of the Medina test.

We first assess whether the post- and-forfeit procedure offends any fundamental “principle of justice” that is deeply rooted “in the traditions and conscience of our people.” Medina, 505 U.S. at 445, 112 S.Ct. 2572. Historical practice and, to a lesser extent, contemporary practice are relevant to that inquiry. Id. at 446-47, 112 S.Ct. 2572; see also Herrera v. Collins, 506 U.S. 390, 408, 410, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). The District of Columbia has used the post-and-forfeit procedure for more than 50 years. See, e.g., Henderson v. District of Columbia, 169 A.2d 759 (D.C. 1961). That said, D.C. has failed to identify any history of post-and-forfeit statutes beyond that time period or in other jurisdictions. But many jurisdictions have long employed similar procedures through which individuals may pay a fíne to resolve minor offenses without the need to appear at a hearing — as can be confirmed by anyone who has opted to pay a speeding ticket rather than challenge it in court. See, e.g., District of Columbia v. Franklin Investment Co., 404 A.2d 536, 539 n.7 (D.C. 1979) (To enforce municipal parking regulations in “large cities, the bail in a small and usually standard amount is waived and forfeited without further proceedings.”) (quoting 7 Eugene Mcquillin, The Law of Municipal Corporations § 24:651 (3d ed. 1968)); see also Cal. Vehicle Code § 40510.5 (vehicle code infractions); S.C. Code Ann. § 56-5-6220 (criminal traffic violations); Tex. Code Criminal Procedure Ann. arts. 27.14, 45.044 (select misdemeanors); Utah Code Ann. § 77-7-21 (select misdemeanors and infractions); LePage v. Bumila, 407 Mass. 163, 552 N.E.2d 80, 82 (1990) (the decision to pay a “traffic citation and forgo a judicial appeal” is often “but a convenient method of concluding the criminal action, convenient both to the person charged and to the administrators of traffic law enforcement”) (internal quotation mark omitted).

Moreover, the “voluntary exchange” enabled by the post-and-forfeit procedure is akin to the practice of plea bargaining, through which individuals may opt out of a criminal hearing or trial in exchange for certain resolution of a charge or a reduced sentence. Fox v. District of Columbia, 851 F.Supp.2d 20, 23 (D.D.C. 2012); see District of Columbia v. Baylor, 125 Wash. Law Rptr. 1665, 1676 (1997) (post-and-forfeit procedure “is a set of mutual agreements” that “is, in short, an implicit plea bargain”). Plea bargaining is a longstanding and prevalent part of our federal and state criminal justice systems. See generally George Fisher, Plea Bargaining’s Triumph: A History of Plea Bargaining in America (2003); see also Lafler v. Cooper, 566 U.S. 156, 170, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012) (“[Cjriminal justice today is for the most part a system of pleas, not a system of trials.”); Chaffin v. Stynchcombe, 412 U.S. 17, 31 n.18, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973) (“The legitimacy of the practice of ‘plea bargaining’ ” has “not been doubted and where properly administered it is to be encouraged as an essential and desirable component of the administration of justice.”) (internal quotation marks omitted).

Given all of the above, we cannot say that the post-and-forfeit procedure “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Medina, 505 U.S. at 445, 112 S.Ct. 2572.

We next examine whether the post-and-forfeit procedure “transgresses any recognized principle of fundamental fairness in operation.” Id. at 448, 112 S.Ct. 2572 (internal quotation marks omitted). It does not. Kincaid’s central contention is that the post-and-forfeit procedure unfairly deprives arrestees of their forfeited funds without a hearing. But that argument does not accurately describe how the post-and-forfeit procedure works. The procedure does not require any arrestee to forfeit funds without a hearing. An arrestee may have a hearing — and, for that matter, all other criminal due process protections — if he or she chooses to contest the charge. The post-and-forfeit procedure provides an arrestee with an additional opportunity to resolve the charge by forfeiting funds without the need to attend a criminal hearing. Even an arrestee who initially decides to use the post-and-forfeit procedure, moreover, may upon further consideration seek to set aside the forfeiture and proceed with the criminal case. See D.C. Code § 5-335.01(é)(4). Offering arrestees an option to participate in the voluntary post- and-forfeit procedure does not unfairly deprive any arrestee of an opportunity for a hearing.

Kincaid counters that the post-and-forfeit procedure, although voluntary on paper, presents a coercive “Hobson’s choice” in practice. According to Kincaid, the option to resolve a charge using the post- and-forfeit procedure is so superior to the alternative of proceeding through the traditional criminal process -that arrestees are left with little practical choice but to forfeit their funds and due process rights. But the Supreme Court’s precedents in analogous situations reject that kind of argument. For example, the Supreme Court has long sanctioned law enforcement practices, including plea bargaining, that may exert “pressure” on defendants to waive “a series of fundamental rights” in exchange for the “substantial benefits” of leniency. United States v. Mezzanatto, 518 U.S. 196, 210, 115 S.Ct. 797, 130 L.Ed.2d 697 (1995) (quoting Corbitt v. New Jersey, 439 U.S. 212, 219, 99 S.Ct. 492, 58 L.Ed.2d 466 (1978)). Such “difficult choices,” according to the Court, are an “inevitable — and permissible — attribute of any legitimate system which tolerates. and encourages the negotiation of pleas.” Corbitt, 439 U.S. at 220, 99 S.Ct. 492 (internal quotation marks omitted). We decline Kincaid’s invitation to deviate from that established precedent by adopting a novel “unconstitutional conditions” rule that would call into question the traditional practices of police departments, prosecutors, and law enforcement agencies across the country.

We recognize the possibility that a police officer may arrest someone on a bogus charge and then offer the post-and-forfeit option. In those circumstances, an arrestee may think it is easier to just pay the money rather than go through the hassle of contesting the officer’s improper action. But the fact that the post-and'-forfeit procedure may be abused in certain cases does not warrant wholesale invalidation of the post-and-forfeit statute. Cf. Mezzanatto, 513 U.S. at 210, 115 S.Ct. 797 (“The mere potential for abuse of prosecutorial bargaining power is an insufficient basis for foreclosing negotiation altogether.”). If there is police abuse of this process, there are other, more targeted tools — including the ability of an arrestee to file a lawsuit claiming -wrongful arrest — to deter, detect, and punish such police misconduct.

In short, the post-and-forfeit statute does not deprive arrestees of their procedural due process rights under the Due Process Clause. Kincaid obviously believes that the post-and-forfeit statute is bad policy. The District disagrees, arguing that the post-and-forfeit statute is beneficial to both the city and the many arrestees who have used the post-and-forfeit procedure to avoid criminal convictions. The proper forum for that policy debate is the D.C. City Council or Congress, not this Court.

B

Kincaid’s vagueness challenge to the post-and-forfeit statute is likewise una-' vailing. The Due Process Clause “prohibits the Government from taking away someone’s life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.” Beckles v. United States, — U.S. -, -, 137 S.Ct. 886, 892, 197 L.Ed.2d 145 (2017) (internal quotation marks omitted) (quoting Johnson v. United States, — U.S. -, -, 135 S.Ct. 2551, 2556, 192 L.Ed.2d 569 (2015)). Kincaid contends that the post-and-forfeit statute violates that principle because it vests police with too much discretion. That is so, according to Kincaid, because the police have the discretion to determine whether an arrestee can resolve the charge through the post- and-forfeit procedure, or instead whether the arrestee must adjudicate the charge through the normal criminal process and thus be exposed to the requisite statutory punishment.

As a threshold matter, it is not clear that the void-for-vagueness doctrine applies to the post-and-forfeit statute. The Supreme Court has applied the vagueness doctrine to two kinds of laws: those that “define criminal offenses” and those that “fix the permissible sentences for criminal offenses.” Id. at -, 187 S.Ct. 886 (emphasis omitted). The post-and-forfeit statute, which offers a procedure to resolve a charge without a criminal conviction, does not fit neatly into either category.

In any event, we need not decide whether the vagueness doctrine applies here. Even assuming that it does, Kin-caid’s vagueness challenge fails. Contrary to Kincaid’s argument, the fact that the post-and-forfeit statute gives police the discretion to offer an arrestee an opportunity to post and forfeit does not render the statute unconstitutionally vague.

To begin with, police discretion under the post-and-forfeit statute is not as broad as Kincaid claims. The post-and-forfeit statute does not give police “absolute discretion” to “decide what activities” constitute criminal offenses. Chicago v. Morales, 527 U.S. 41, 61, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) (internal quotation marks omitted). Offenses are defined by the individual misdemeanor statutes, which Kincaid does not contest. Nor do police have the power to decide the amount of money required to resolve a charge. Those amounts are determined by the Superior Court of the District of Columbia. D.C. Code § 5-385.02; Kincaid v. District of Columbia, 177 F.Supp.3d 548, 550 (D.D.C. 2016).

To be sure, police have discretion to determine whether to offer the post-and-forfeit option to an arrestee. But Supreme Court precedent teaches that the presence of enforcement discretion alone does not render a statutory scheme unconstitutionally vague. In United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979), for example, the Court confronted a statutory scheme under which prosecutors had discretion to prosecute the same offense under two different statutes — one carrying a five-year prison term and one carrying a two-year prison term. The defendant, who had been convicted under the statute carrying the five-year term, argued that the statutory scheme was void for vagueness. The Supreme Court disagreed. The Court rejected the argument that the statutes “imper-missibly delegate to the Executive Branch the Legislature’s responsibility to fix criminal penalties.” Id. at 125-26, 99 S.Ct. 2198. No such impermissible delegation was present, according to the Court, because the provisions at issue “plainly demarcate the range of penalties” to which a defendant may be subject. Id. at 126, 99 S.Ct. 2198. The Court further noted that the prosecutor’s broad discretion to determine which charge and sentence to pursue did not alter that analysis. On the contrary, the Court stated that its precedent has “long recognized that when an act violates more than one criminal statute, the Government may prosecute under .either so long as it does not discriminate against any class of defendants.” Id. at 123-24, 99 S.Ct. 2198.

In its recent decision in Beckles v. United States, the Supreme Court reiterated that a penalty scheme is not unconstitutionally vague merely because it confers “discretion to select an appropriate sentence from within a statutory range.” 137 S.Ct. at 893. That is true, the Court stated, “even when that discretion is unfettered.” Id. at-, 137 S.Ct. 886. Citing Batchelder, the Court noted that so long as a statutory scheme specifies the conduct prohibited and the range of “penalties available,” the fact that there may be “uncertainty” about “what penalties may be imposed” does not render the statutory .scheme void for vagueness. Id. at-, 137 S.Ct. 886 (internal quotation marks omitted).

The Supreme Court’s decisions in Batchelder and Beckles are on point here: The fact that the post-and-forfeit statute grants police “discretion to select” whether to offer arrestees the opportunity to post and forfeit does not render the statute unconstitutionally vague. Id. at -, 137 S.Ct. 886; Batchelder, 442 U.S. at 125-26, 99 S.Ct. 2198. The Supreme Court has long allowed discretionary decisions by police, prosecutors, and regulators as part and parcel of the exercise of executive power. See, e.g., Town of Castle Rock v. Gonzales, 545 U.S. 748, 760-61, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005); Heckler v. Chaney, 470 U.S. 821, 881-32, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985); Batchelder, 442 U.S. at 124, 99 S.Ct. 2198; Bordenkircher v. Hayes, 434 U.S. 357, 364-65, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978); Confiscation Cases, 74 U.S. 454, 457-59, 7 Wall. 454, 19 L.Ed. 196 (1868); cf. Marbury v. Madison, 5 U.S. 137, 165-66, 1 Cranch 137, 2 L.Ed. 60 (1803). Under Kincaid’s' vagueness theory, a countless number of those discretionary decisions — from whether to make an arrest to whether to offer a plea to whether to enforce a statute against a regulated party — would run afoul of the vagueness doctrine. Kincaid’s theory is not the law.

We have considered all of Kincaid’s arguments. We conclude that the District of Columbia’s post-and-forfeit statute complies with the Due Process Clause of the Fifth Amendment to the Constitution. We therefore affirm the judgment of the District Court.

So ordered.

      . In 2014, the Council approved amendments to the post-and-forfeit statute. See Post-Arrest Process Clarification Amendment Act, 61 D.C. Reg. 8320 (Aug. 15, 2014). The amended version of the statute took effect in 2015. See 62 D.C. Reg. 5432 (May 1, 2015). Nothing in this case turns on the changes that were made. For ease of reference, we refer to the version in effect now.

      . "Selectivity in the enforcement of criminal laws is, of course, subject to constitutional constraints.” Batchelder, 442 U.S. at 125, 99 S.Ct. 2198. Individuals may therefore seek to challenge enforcement decisions made on the basis of "an unjustifiable standard such as race, religion, or other arbitrary classification.” Id. at 125 n.9, 99 S.Ct. 2198 (internal quotation mark omitted). Kincaid has not alleged that kind of discrimination here.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. William BERRÍOS-CRUZ, Defendant, Appellant.
    No. 14-1058
    United States Court of Appeals, First Circuit.
    December 12, 2016
    Lenore Glaser on brief for appellant.
    Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Thomas F. Klumper, Assistant United States Attorney, Senior Appellate Counsel, on brief for appellee.
    Before HOWARD, Chief Judge, TORRUELLA and KAYATTA, Circuit Judges.
   PER CURIAM.

Defendant-Appellant William Berrios-Cruz appeals certain special conditions of supervised release imposed in connection with his guilty plea to production of child pornography. See 18 U.S.C. § 2251(a). Because Berrios’s plea agreement contained a knowing and voluntary waiver of any right to appeal his sentence, we may reach the merits of his claims only to prevent a “miscarriage of justice.” United States v. Vélez-Luciano, 814 F.3d 553, 559 (1st Cir. 2016). With respect to all but one of the challenged conditions, Berrios falls short of this bar and, accordingly, we must enforce his appellate waiver.

Condition four’s requirement that Berr-ios submit to penile plethysmograph (“PPG”) testing, however, presents a different situation. Indeed, the government concedes that this requirement, imposed without any explanation by the district court, should be vacated. See United States v. Medina, 779 F.3d 55, 71 (1st Cir. 2015) (holding that the district court must “provide a substantial justification before making submission to PPG testing part of a condition of supervised release”). We agree that enforcement of Berrios’s appellate waiver with respect to the PPG testing requirement would result in a miscarriage of justice. See Vélez-Luciano, 814 F.3d at 564-65 (holding that “potentially subjecting [the defendant] to PPG testing when the government expressly disavows the utility of this particular procedure about which we have expressed reservations, especially when the record lacks any explanation of the applicability of PPG testing to this defendant, constitutes a miscarriage of justice,” as well as plain error (citation omitted)).

For the foregoing reasons, we VACATE the portion of condition four that authorizes PPG testing and remand for the district court to consider the parties’ joint recommendation that the relevant part of the condition be stricken. We AFFIRM all other aspects of Berrios’s sentence.


author: W. EUGENE DAVIS, Circuit Judge:

text:
    Jose FLORES-LARRAZOLA, also known as Jose Maria Flores, also known as Jose Maria Flores-Larrazola, Petitioner v. Loretta LYNCH, U.S. Attorney General, Respondent
    No. 14-60888
    United States Court of Appeals, Fifth Circuit.
    Filed January 6, 2017
    Richard L. Prinz, Law Office of Richard Prinz, Houston, TX, for Petitioner.
    David Harding Wetmore, U.S. Department of Justice, Civil Division/OIL, Washington, DC, for Respondent.
    Before DAVIS, ELROD, and HIGGINSON, Circuit Judges.
   W. EUGENE DAVIS, Circuit Judge:

Treating the Petition for Rehearing En Banc as a Petition for Panel Rehearing, the Petition for Panel Rehearing is DENIED. No member of the panel nor judge in regular active service of the court having requested that the court be polled on Rehearing En Banc (Fed. R. App. P. and 5th Cir. R. 35), the Petition for Rehearing En Banc is DENIED.

In his petition, Flores-Larrazola argues that the relevant Arkansas statute — Ark. Code Ann. § 5-64-401(a) — is indivisible based upon the Supreme Court’s decision in Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). We disagree. The Arkansas Supreme Court has held that Ark. Code Ann. § 5-64-401(a) is divisible, and under Mathis, we must heed its command.

Spaho v. United States Attorney General, 837 F.3d 1172, 1177 (11th Cir. 2016), also supports our holding. In that case, the Eleventh Circuit analyzed a Florida statute that provides in relevant part that “a person may not sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance.” The court held that the statutory “text delineates six discrete alternative elements: sale, delivery, manufacture, possession with intent to sell, possession with intent to deliver, and possession with intent to manufacture. Accordingly, the statute is divisible.”

Our divisibility analysis mirrors that of Spaho. Ark. Code Ann. § 5-64-401(a) renders it unlawful for any person to purposely, knowingly, or recklessly manufacture, deliver, or possess with the intent to manufacture or deliver a controlled substance. These twelve elements, like the six in Spa-ho, come together to create “several different crimes.”

      . Cothren v. State, 344 Ark. 697, 42 S.W.3d 543, 547-49 (2001) (holding that “manufacturing a controlled substance" and "possession of a controlled substance with the intent to deliver” are separate offenses that both fall within the purview of Ark. Code Ann. § 5-64— 401(a)).

      . Mathis, 136 S.Ct. at 2256; see United States v. Howell, 838 F.3d 489, 498 (5th Cir. 2016) (holding that a Texas statute is "cleaifly]" indivisible based upon a prior ruling of the Texas Court of Criminal Appeals).

      . Fla. Stat. Ann. § 893.13(l)(a).

      . Spaho, 837 F.3d at 1177.

      . Mathis, 136 S.Ct. at 2254.


author: JUNELL, District Judge:

text:
    Edward BURDETT, Plaintiff-Appellant, v. REMINGTON ARMS COMPANY, L.L.C.; Sporting Goods Properties, Incorporated, Defendants-Appellees.
    No. 16-11216
    United States Court of Appeals, Fifth Circuit.
    FILED April 19, 2017

      Timothy W. Monsees, Robert Thrasher, Monsees & Mayer, P.C., Kansas City, MO, for Plaintiff-Appellant.
    Dale Gene Wills, Esq., Andrew Arthur Lothson, Swanson, Martin & Bell, L.L.P., Chicago, IL, James David Jordan, Munsch Hardt Kopf & Harr, P.C., Dallas, TX, for Defendants-Appellees.
    Before SMITH and HAYNES, Circuit Judges, and JUNELL, District Judge.

       District Judge of the Western District of Texas, sitting by designation.

   JUNELL, District Judge:

Edward Burdett was injured while hunting in Texas when his rifle suddenly discharged, firing a bullet through his foot. He sued, alleging five products liability claims and one claim under the Texas Deceptive Trade Practices-Consumer Protection Act. The district court entered a summary judgment in favor of Remington Arms Company, LLC and Sporting Goods Properties, Inc. For the reasons explained below, we AFFIRM.

I.

During a hunting trip, Burdett was sitting in a friend’s pickup truck when his Remington Model 700 rifle suddenly discharged, sending a bullet through his left foot. The rifle was designed, manufactured, and assembled by Remington Arms Company, LLC (Remington) and Sporting Goods Properties, Inc. (SGPI) in Ilion, New York, where Burdett argues the conduct causing the injury occurred. Burdett purchased the rifle in approximately 1998 from a reseller in Georgia. Burdett is a resident of both Texas and Georgia.

Burdett filed suit on December 22, 2015, in the Dallas division of the Northern District of Texas. He alleged five products liability claims, one of which fell under a Georgia statute, and one claim under the Texas Deceptive Trade Practices-Consumer Protection Act. Remington and SGPI filed a motion for summary judgment. Therein, they argued Burdett’s claims were time-barred by the Texas statute of repose, which provides that “a claimant must commence a products liability action against a manufacturer or seller of a product before the end of 15 years after the date of the sale of the product by the defendant.” Tex. Civ. Peac. & Rem. Code § 16.012(b). The statute of repose begins running when the product is first sold by the manufacturer. The parties have been unable to provide the date the rifle was first sold, but Burdett acknowledges that he purchased the rifle no later than 1998.

Burdett countered that New York, rather than Texas, law applies and thus his claims were not time barred. Unlike Texas, New York does not have a statute of repose. See Fargas v. Cincinnati Mach., LLC, 986 F.Supp.2d 420, 423 (S.D.N.Y. 2013). Burdett took issue with § 71.031 of the Texas Civil Practice and Remedies Code, arguing that it does not apply to actions filed in federal court and is not a choice of law provision. Section 71.031 provides:

(a) An action for damages for the death or personal injury of a citizen of this state, of the United States, or of a foreign country may be enforced in the courts of this state, although the wrongful act, neglect, or default causing the death or injury takes place in a foreign state or country, if:
(1) a law of the foreign state or country or of this state gives a right to maintain an action for damages for the death or injury;
(2) the action is begun in this state within the time provided by the laws of this state for beginning the action;
(3) for a resident of a foreign state or country, the action is begun in this state within the time provided by the laws of the foreign state or country in which the wrongful act, neglect, or default took place; and
(4) in the case of a citizen of a foreign country, the country has equal treaty rights with the United States on behalf of its citizens.

Tex. Civ. Peac. & Rem. Code § 71.031(a)(1)-(4). The district court disagreed with Bur-dett and held that § 71.031 is a codified choice of law provision warranting application of Texas law and Texas’s 15-year statute of repose. The court computed the 15-year deadline by using the date of rifle’s sale in 1998. Given that Burdett commenced the instant suit more than 15 years from the date he purchased the rifle in 1998, the court granted Remington and SGPI’s motion for summary judgment. Burdett appealed.

II.

A district court’s decision on choice of law questions and motions for summary judgment is reviewed de novo. Railroad Mgmt. Co. v. CFS Louisiana Midstream Co., 428 F.3d 214, 221-22 (5th Cir. 2005). A federal court sitting in diversity jurisdiction must apply the choice of law rules of the forum state when a conflict of law exists. Ingalls Shipbuilding v. Federal Ins. Co., 410 F.3d 214, 230 (5th Cir. 2005). The parties do not dispute that Texas choice of law rules apply in this case.

III.

The issue on appeal is whether the district court properly applied Texas’s choice of law rules, which is dependent upon whether § 71.031(a) of the Texas Civil Practice and Remedies Code is a choice of law provision and whether the statute applies in federal court. An analysis of this court’s prior decision in Hyde v. Hoffmann-La Roche, Inc., 511 F.3d 506 (5th Cir. 2007) resolves this issue.

Hyde involved a products liability action that was removed to federal court based on diversity jurisdiction. In determining what state’s laws applied, we stated that “[wjhile as a general proposition, Texas applies the ‘most significant relationship’ test in sections 6 and 145 of the Restatement (Second) of Conflict of Laws in determining what law applies in tort cases, the Texas Legislature has enacted legislation to govern choice of law in some respects. Section 71.03 of the Texas Civil Practice and Remedies Code is such a codification.” Id. at 511.

In so holding, the Hyde court considered the Supreme Court of Texas’s characterization of § 71.031 in Owens Coming v. Carter, 997 S.W.2d 560 (Tex. 1999). Cf. Barfield v. Madison Cty., 212 F.3d 269, 271-72 (5th Cir. 2000) (“When adjudicating claims for which state law provides the rules of decision, we are bound to apply the law as interpreted by the state’s highest court.”). There, the Texas court stated that the borrowing statute provisions of § 71.031 are “essentially a codified choice-of-law rule governing the timeliness of actions.” Owens Corning, 997 S.W.2d at 573. Accordingly, both this court and the Supreme Court of Texas have concluded that § 71.031 is a codified choice of law provision. Absent en banc reconsideration of this issue, we are bound by our precedent in Hyde. See United States v. Stone, 306 F.3d 241, 243 (5th Cir. 2002).

Burdett next asserts that § 71.031 does not apply in federal court. He argues the plain language of the statute makes clear it was only meant to apply to state courts. In Hyde, we applied § 71.031 to a proceeding in federal court and held that “under Texas law, a resident plaintiff ... must establish under subsection (a)(2) that his action was instituted in Texas ‘within the time provided by the laws of [Texas] for beginning the action,’ and that includes Texas statutes of repose.” 511 F.3d at 511-13. Because, we are bound by our previous decision, Burdett’s assertions are unavailing. .

IV.

Having established that § 71.031 is a choice of law provision that applies in both state and federal courts, we turn now to the district court’s application of the statute to Burdett’s case. An analysis of § 71.031 demonstrates the result is the same regardless of whether Burdett is considered a resident of Texas or Georgia. If the plaintiff is a resident of a foreign state, he may bring suit in Texas if he satisfies the first three requirements under § 71.031(a); a Texas resident need only satisfy the first two. Tex. Civ. Prac. & Rem. Code § 71.031(a)(l)-(3).

If Burdett was considered a resident of Georgia, the only difference would be that both Texas and New York law would apply. As New York does not have a statute of repose, the only dispute between the parties is whether the action was timely filed pursuant to § 71.031(a)(2), a requirement that must be satisfied regardless of whether Burdett is considered a resident of Texas or Georgia.

Texas’s statute of repose provides that a products liability action must be initiated “before the end of 15 years after the date of the sale of the product by the defendant.” Tex. Civ. Prac. & Rem. Code § 16.012(b). The statute of repose begins running when the product is first sold by the manufacturer.

As previously mentioned, the parties are unaware of the date Remington first sold the rifle. However, given that Burdett purchased it from a retailer in Georgia in approximately 1998, the date of the rifle’s first sale was undoubtedly prior to 1998. Even assuming the rifle was first purchased in 1998, Burdett had until 2013 to initiate his products liability suit. Yet, Bur-dett did not commence this action until 2015, which was more than fifteen years from the date of the sale of the rifle. Accordingly, Burdett’s claims were time barred, and by his own admission, there is no genuine issue of material fact. Thus, we affirm the district court’s entry of summary judgment.

AFFIRMED.

      . For purposes of diversity jurisdiction, "the citizenship of a LLC is determined by the citizenship of all of its members.” Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1079-80 (5th Cir. 2008). In the district court, the allegations of citizenship did not provide the citizenship of Remington's members. In response to an inquiry by this court, the parties provided a joint letter establishing that, based on the citizenship of each of Remington's members, Remington is a citizen of Delaware and North Carolina. Pursuant to 28 U.S.C. § 1653, we elect to treat this letter, agreed upon by all parties and further confirmed at oral argument, as an amendment to the pleadings of citizenship. We conclude, therefore, that jurisdiction is proper in the federal courts.

      . At some point, Remington Arms Company, Inc., changed its name to Sporting Goods Properties, Inc.

      . Section 71.031(a)(3) is known as the borrowing statute. "[S]ection 71.031(a)(3) 'borrows' another state’s statute of limitations such that a foreign plaintiff whose cause of action for personal injury or wrongful death arose in a foreign state with a shorter limitations period than Texas’s must file within the limitations period prescribed by that state’s law.” Owens Corning v. Carter, 997 S.W.2d 560, 566 (Tex. 1999).


author: JENNIFER WALKER ELROD, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Donshay JONES, Defendant-Appellant.
    No. 16-10463
    United States Court of Appeals, Fifth Circuit.
    Filed April 20, 2017
    Brian W. McKay, Esq., James Wesley Hendrix, Assistant U.S. Attorneys, U.S. Attorney’s Office, Dallas, TX, for Plaintiff-Appellee.
    Darren Robert Hatch, Reagan McLain & Hatch, L.L.P., Dallas, TX, for Defendant-Appellant.
    Before SMITH, ELROD, and HAYNES, Circuit Judges.
   JENNIFER WALKER ELROD, Circuit Judge:

Defendant-Appellant Donshay Jones pleaded guilty to one count of carjacking in violation of 18 U.S.C. §§ 2119 and 2 and to one count of using, carrying, or brandishing a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A). Jones challenges the constitutionality of § 2119 as applied to him because, he argues, the vehicle he carjacked was removed from interstate commerce. Jones also argues that carjacking does not constitute a “crime of violence” under § 924(c)(1). Because the minimal interstate commerce nexus that our precedent requires for prosecution under § 2119 was satisfied and because carjacking is a “crime of violence” under § 924(c)(1), we AFFIRM the district court’s judgment.

I.

Defendant-Appellant Donshay Jones confronted a woman and her four-year-old son at gunpoint as they were walking from their vehicle to their apartment building late at night. Jones threatened to shoot the woman and her son if she did not give him everything she had in her possession. After the woman gave Jones her car keys, Jones and an accomplice entered the woman’s vehicle and drove away. The next day, investigators located Jones and the accomplice along with the stolen vehicle. Jones and the accomplice were both arrested.

Jones was indicted on two counts: one count of carjacking in violation of 18 U.S.C. §§ 2119 and 2; and one count of using, carrying, or brandishing a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1). Jones filed a motion to dismiss the indictment, challenging the constitutionality of § 2119 and arguing that the vehicle he carjacked was removed from interstate commerce and therefore beyond the jurisdiction of federal law enforcement. The district court denied this motion. Jones later filed a second motion to dismiss, arguing that the carjacking statute is not a predicate “crime of violence” that could support a conviction under § 924(c). The district court denied this motion as well.

Jones ultimately pleaded guilty to both counts of the indictment while preserving his right to challenge the district court’s denial of his two motions to dismiss. Jones stipulated that he committed the robbery, that he brandished a gun in the process, and that the stolen vehicle “was not manufactured in the State of Texas and had been shipped, transported, and received from another state prior to the carjacking.” The district court imposed a sentence of imprisonment for a term of 168 months. Jones has appealed both of the district court’s orders denying his motions to dismiss the indictment.

II.

We review de novo a district court’s denial of a defendant’s motion to dismiss an indictment. United States v. Kay, 513 F.3d 432, 440 (5th Cir. 2007). We also review de novo the issue of whether a statute is unconstitutionally vague. United States v. Gonzalez-Longoria, 831 F.3d 670, 674 (5th Cir. 2016) (en banc) (“Whether a statute is unconstitutionally vague is a question of law, which we likewise review de novo.”).

III.

Jones raises two arguments on appeal. First, Jones argues that the federal carjacking statute — 18 U.S.C. §§ 2119 — is unconstitutional as applied to him. Second, Jones argues that the definition of “crime of violence” under 18 U.S.C. § 924(c)(3) is unconstitutionally vague and that carjacking does not otherwise qualify as a crime of violence. Neither of these arguments is persuasive.

A.

Jones contends that the carjacking statute is unconstitutional as applied to him because the stolen vehicle did not have a sufficient nexus to interstate commerce. Jones admits that the vehicle was manufactured in Michigan and transported to Texas in 2008, but he argues that because the vehicle had not left the state for over five years, no rational basis exists to conclude that the carjacking in this case substantially affected interstate commerce. This narrow view of interstate commerce under § 2119 is foreclosed by our precedent.

Section 2119 prohibits the “tak[ing of] a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation.... ” 18 U.S.C. § 2119. In United States v. Coleman, we held “that the carjacking statute is a valid exercise of congressional authority under the Commerce Clause because Congress could rationally believe that the activity of auto theft has a substantial effect on interstate commerce[.]” 78 F.3d 154, 158 (5th Cir. 1996). We have repeatedly affirmed the constitutionality of the federal carjacking statute and have recognized as “foreclosed” constitutional challenges to the minimal interstate commerce nexus our precedent requires for prosecution under the statute. See, e.g., United States v. Turner, 674 F.3d 420, 444 (5th Cir. 2012). Because the vehicle that Jones stole was transported in interstate commerce, his as-applied constitutional challenge to § 2119 fails. See United States v. Harris, 25 F.3d 1275, 1280 (5th Cir. 1994) (“So long as the activity regulated has an effect on interstate commerce it makes no difference that the transported item is now ‘at rest’ and is no longer ‘in’ interstate commerce”) (quoting United States v. Johnson, 22 F.3d 106, 109 (6th Cir. 1994)); see also Taylor v. United States, — U.S. -, 136 S.Ct. 2074, 2081, 195 L.Ed.2d 456 (2016) (“[I]t makes no difference under our [Commerce Clause] cases that any actual or threatened effect on commerce in a particular case is minimal.”).

B.

Jones also argues that the federal carjacking statute is not a predicate “crime of violence” that can support a conviction under § 924(e). A “crime of violence” is defined under § 924(c)(3) as follows:

(3) For purposes of this subsection the term “crime of violence” means an offense that is a felony and—
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. § 924(c)(3). Jones argues that § 924(c)(3)(B) is unconstitutionally vague under the Supreme Court’s decision in Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Jones further argues that because § 924(c)(3)(B) is unconstitutional, carjacking does not qualify as a “crime of violence” because it does not fit under § 924(c)(3)(A).

Jones’s argument that § 924(c)(3)(B) is unconstitutionally vague under Johnson is foreclosed by our en banc decision in United States v. Gonzalez-Longoria, 831 F.3d 670 (5th Cir. 2016). In Gonzalez-Longoria, we held that the definition of “crime of violence” found in 18 U.S.C. § 16(b) remains constitutional in the aftermath of Johnson. Gonzalez-Longoria, 831 F.3d at 675-77. The definition of “crime of violence” found in § 16(b) is identical to the definition found in § 924(c)(3)(B); therefore, the definition of “crime of violence” under § 924(c)(3)(B) is not unconstitutionally vague. See United States v. Chapman, 851 F.3d 363, 374-75 (5th Cir. 2017).

Further, contrary to Jones’s assertion, carjacking fits under the definition set forth in § 924(c)(3)(A) — it “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Section 2119 provides that a person commits an offense when, “with the intent to cause death or serious bodily harm,” he takes a motor vehicle “by force and violence or by intimidation.” 18 U.S.C. § 2119. Jones contends that because carjacking can be committed by intimidation (i.e., fear of bodily harm), and because a threat to cause harm is not the same as a threat to use force, the “use, attempted use, or threatened use of physical force against the person or property of another” is not an element that must be satisfied in order to convict a defendant under the federal carjacking statute. Therefore, Jones argues, carjacking is not a “crime of violence” under § 924(c)(3)(A).

Our own precedent, although in the bank robbery context, leads us to conclude that a crime that has as an element a taking “by force and violence or by intimidation” is a “crime of violence” under § 924(c)(3)(A). See United States v. Brewer, 848 F.3d 711, 715-16 (5th Cir. 2017) (holding that the bank robbery statute, 18 U.S.C. § 2113(a) — which similarly requires taking property “by force and violence, or by intimidation” — is a crime of violence under United States Sentencing Guidelines § 4B1.2, which defines “crime of violence” in exactly the same manner as § 924(c)(3)(A)). To hold otherwise would create a circuit split with at least two of our sister circuits. See In re Smith, 829 F.3d 1276, 1280-81 (11th Cir. 2016) (holding that the elements of carjacking under § 2119 “meet the requirements that the force clause in § 924(c)(3)(A) sets out for a qualifying underlying offense”); United States v. Evans, 848 F.3d 242, 247 (4th Cir. 2017) (holding that the elements of carjacking under § 2119 satisfy § 924(c)(3)(A) and noting that the court is “not aware of any ease in which a court' has interpreted the term ‘intimidation’ in the carjacking statute as meaning anything other than a threat of violent force”). In light of our precedent addressing an analogous statute, we see no reason to create such a circuit split by holding differently from how our sister circuits have held. See Home Port Rentals, Inc. v. Int’l Yachting Grp., Inc., 252 F.3d 399, 407 (5th Cir. 2001).

IV.

For the foregoing reasons, we hold that the district court did not err in denying Jones’s motions to dismiss. Accordingly, the district court’s judgment is AFFIRMED.

      . Jones argues that the stolen vehicle was in the hands of an "ultimate consumer” and, therefore, not in interstate commerce at the time of the theft. Jones proposes that we adopt the "ultimate consumer” test — as that term is defined in the Fair Labor Standards Act — and apply it on a case-by-case basis to limit the jurisdictional reach of § 2119. Jones does not offer any authority, binding or otherwise, that the "ultimate consumer” doctrine applies to § 2119 or any other criminal context. Jones’s novel argument that the ultimate consumer doctrine should be transplanted from the Fair Labor Standards Act context into the carjacking context cannot circumvent our binding precedent. See Sykes v. Texas Air Corp., 834 F.2d 488, 492 (5th Cir. 1987) ("The fact that in [the prior decision] no litigant made and no judge considered the fancy argument advanced in this case does not authorize us to disregard our Court’s strong rule that we cannot overrule the prior decision.”).

      . In Brewer, the defendants, who were convicted of bank robbery, argued that a person can commit bank robbery by intimidation without threatened, attempted, or actual use of force. Brewer, 848 F.3d at 715. We concluded that bank robbery necessarily requires at least an implicit threat to use violent force. Id. ("The kind of ‘intimidation’ that suffices to put a victim in fear of bodily injury during the course of a bank robbery, and which would in turn allow a defendant to complete such a robbery, is the very sort of threat of immediate, destructive, and violent force required to satisfy the ‘crime of violence’ definition. It is hard to imagine any successful robbery accomplished by threatening some far removed reprisal that does not involve physical force.”). Because bank robbery, like carjacking, requires a taking "by force and violence or by intimidation,” we believe our holding in Brewer is sufficiently analogous to the federal carjacking statute to conclude that carjacking is also a crime of violence under § 924(c)(3)(A). See also United States v. Buck, 847 F.3d 267, 274-75 (5th Cir. 2017).


author: STEPHEN A. HIGGINSON, Circuit • Judge:

text:
    Brian M. NEIMAN; William Kruse; and The Moshe Issac Foundation, Individually and on behalf of all others similarly situated, Plaintiffs-Appellants v. T. Paul BULMAHN; Albert L. Reese, Jr.; Keith R. Godwin; Leland E. Tate, Defendants-Appellees
    No. 15-31094
    United States Court of Appeals, Fifth Circuit.
    FILED April 21, 2017

      William B. Federman, Stuart William Emmons, Esq., Federman & Sherwood, Oklahoma City, OK, Patricia I. Avery, Wolf Popper, L.L.P., New York, NY, for Plaintiffs-Appellants.
    Paul R. Bessette, Michael John Biles, Esq., Attorney, James Patrick Sullivan, King & Spalding, L.L.P., Austin, TX, Roy C. Cheatwood, Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., New Orleans, LA, for Defendants-Appellees.
    Before HIGGINBOTHAM, ELROD, and HIGGINSON, Circuit Judges.
   STEPHEN A. HIGGINSON, Circuit • Judge:

This securities class action concerns ATP Oil & Gas Corporation’s (“ATP”) collapse into bankruptcy. Plaintiffs-Appellants were shareholders of ATP, a company engaged in the acquisition, development, and production of oil and gas properties. Plaintiffs allege that Defendants, each of whom was an officer or director of ATP, misrepresented (1) the production of Well 941 #4 (‘Well #4”) (a new well that ATP brought online in 2011), (2) ATP’s liquidity and whether the company had the available funds to complete the Clipper pipeline (a pipeline project that ATP anticipated completing in late 2012), and (3) the true reason that Matt MeCarroll resigned as CEO of ATP. The district court dismissed Plaintiffs’ Second Amended Complaint with prejudice. Plaintiffs appealed. We AFFIRM.

I

A. ATP

ATP was a Texas company that developed oil and gas properties. As of March 2010, ATP had an interest in 104 wells in the Gulf of Mexico. Defendants were each officers of ATP. Defendant T. Paul Bul-mahn served as Chairman, Chief Executive Officer, and director of ATP from May 2008 through the bankruptcy. Defendant Albert L. Reese, Jr., served as CFO of ATP from March 1999 through the bankruptcy. Defendant Keith R. Godwin served as ATP’s Chief Accounting Officer from April 2004 through the bankruptcy. Defendant Leland E. Tate served as President of ATP from May 2008 through the bankruptcy.

B. Well #4

In August 2011, ATP began production from Well #4. ATP stated that “[t]he well delivered on ATP’s original expectations with an initial rate exceeding 7,000 Boe [barrels of oil equivalent] per day.... Company-wide production now exceeds 31,000 Boe per day.”

On September 12, 2011, Reese re-stated that ATP projected its total production at 31,000 Boe per day. On September 26, 2011, Moody’s Investors Service issued a report, which claimed that ATP’s cash flow was “not sufficient to cover” ATP’s outstanding notes. Reese responded to the Moody’s article on September 29, 2011, stating, “I can’t fight rumors or reports, all I can do is continue to deliver on the promises we’ve made. Our expectation is that everything is going to be fine.”

Plaintiffs claim that both of Reese’s statements were false and misleading because Well #4 actually was producing far less than the projected 7,000 Boe per day. In November 2011, ATP disclosed that Well #4 actually was producing 3,500 Boe per day.

C.ATP’s Liquidity and Financial Condition

Plaintiffs raise a number of allegations concerning Defendants’ representations that ATP’s liquidity and financial condition were solid from 2010 to 2012. Throughout the period, Defendants routinely stated that ATP had sufficient liquidity to meet its capital needs. Plaintiffs allege that each of these statements was false or misleading, arguing that in fact from 2010 to 2012, ATP’s financial condition was worsening and its liquidity position was crumbling. In support, Plaintiffs first point to Reese’s testimony at ATP’s bankruptcy hearing where Reese testified that ATP was “facing a severe liquidity crisis[.]” Second, Plaintiffs argue that ATP’s reliance on financing signaled its imminent liquidity crisis. Namely, Plaintiffs allege that beginning in April 2010, ATP was forced to sell a significant portion of future production from its wells (in the form of overriding royalty interests (“ORRIs”) and net profit interests (“NPIs”) — financial instruments that sell a percentage of future income from an asset) to finance drilling projects. In support, Plaintiffs cite Confidential Witness Three (“CW3”), a certified public accountant who worked in ATP’s accounting and finance department from June 2010 to October 2011, and who observed that “even if [ATP’s wells] produced like gangbusters, they don’t have a right to that money — their cash flows are already spoken for.” Third, Confidential Witness Four (“CW4”), the Vice President of Production at ATP from June 2001 until October 2013, additionally noted that during the class period, ATP often delayed maintenance work and payments to vendors in order to manage cash flow. Indeed, by May 2012, ATP’s cash position became so strained that it withheld approximately $23.2 million in ORRI and NPI payments in order to stave off bankruptcy.

D. The Clipper Project

Up until its bankruptcy, ATP was developing the Clipper wells in the- Gulf of Mexico. ATP believed that the Clipper wells held plentiful reserves. However, to monetize those reserves ATP needed to build a pipeline connecting the Clipper wells to the nearest oil production platform. The total cost of completing the Clipper pipeline was estimated at between $140 million and $150 million. ATP’s management believed that the revenue from the Clipper wells would alleviate ATP’s poor financial condition. ATP’s management routinely touted the Clipper project’s potential revenue. Plaintiffs allege that each of these statements was false and misleading because ATP did not have the available capital or access to capital necessary to complete the Clipper pipeline.

E. Matt McCarroll’s Resignation

On June 1, 2012, ATP issued a press release announcing that Matt McCarroll had been hired as CEO, replacing Defendant Bulmahn. Six days later, on June 7, 2012, ATP issued a second press release announcing that ATP “was unable to reach a mutually agreeable employment agreement with Mr. McCarroll and effective today he has submitted his resignation.” Defendants Bulmahn and Reese were listed as individuals to contact on both press releases.

Plaintiffs contend that the reason given for McCarroll’s resignation was false or misleading. According to Plaintiffs, the true reason for McCarroll’s departure was that McCarroll discovered ATP’s financial weaknesses and wanted to begin restruc-taring immediately, but the ATP Board would not agree.

II

“We review de novo the district court’s dismissal of the securities fraud complaint....” Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005). “A plaintiffs complaint will survive a Rule 12(b)(6) motion to dismiss if, accepting its factual allegations as true, the complaint plausibly states a claim for relief.” Local 731 I.B. of T. Excavators & Pavers Pension Trust Fund v. Diodes, Inc., 810 F.3d 951, 956 (5th Cir. 2016) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). “Where, as here, the complaint involves an allegation of fraud, Federal Rule of Civil Procedure 9(b) imposes a higher standard on the complainant, requiring that he plead with ‘particularity the circumstances constituting fraud.’ ” Id. “The PSLRA has raised the pleading bar even higher and enhances Rule 9(b)’s particularity requirement for pleading fraud in two ways.” Id. (citing Ind. Elec. Workers’ Pension Trust Fund IBEW v. Shaw Grp., Inc., 537 F.3d 527, 533 (5th Cir. 2008)). “First the plaintiff must ‘specify each statement alleged to have been misleading, and the reason or reasons why the statement is misleading.’ ” Id. (citing Shaw Grp., 537 F.3d at 533). “Second, ‘for each act or omission alleged to be false or misleading, plaintiffs must state with particularity facts giving rise to a strong inference that the defendant acted with the requisite state of mind.’ ” Id. (quoting Shaw Grp., 537 F.3d at 533).

Plaintiffs assert two claims. Count One alleges that Defendants violated Section 10(b) of the Exchange Act and Rule 10b-5 promulgated thereunder. Count Two alleges that Defendants are liable as control persons under Section 20(a) of the Exchange Act.

To state a claim under Rule 10b-5 “a plaintiff must allege, in connection with the purchase or sale of securities, ‘(1) a misstatement or an omission (2) of material fact (3) made with scienter (4) on which the plaintiff relied (5) that proximately caused [the plaintiffs] injury.’ ” Nathenson v. Zonagen Inc., 267 F.3d 400, 406-07 (5th Cir. 2001) (quoting Tuchman v. DSC Commc’ns Corp., 14 F.3d 1061, 1067 (5th Cir. 1994)); see also Goldstein v. MCI WorldCom, 340 F.3d 238, 244 (5th Cir. 2003).

[A] plaintiff pleading a false or misleading statement or omission as the basis for a section 10(b) and Rule 10b-5 securities fraud claim must, to avoid dismissal pursuant to Rule 9(b) and 15 U.S.C. §§ 78u-4(b)(l) & 78u-4(b)(3)(A) [the PSLRA]: (1) specify ... each statement alleged to have been misleading, i.e., contended to be fraudulent; (2) identify the speaker; (3) state when and where the statement was made; (4) plead with particularity the contents of the false representations; (5) plead with particularity what the person making the misrepresentation obtained thereby; and (6) explain the reason or reasons why the statement is misleading, i.e., why the statement is fraudulent.

Goldstein, 340 F.3d at 245 (quoting ABC Arbitrage Plaintiffs Grp. v. Tchuruk, 291 F.3d 336, 350 (5th Cir. 2002)).

“Under Section 20(a), a person who exerts control over a person who violates any provision of the Securities Exchange Act can be held jointly and severally liable with the primary actor of the underlying securities law violation.” Flaherty & Crumrine Preferred Income Fund, Inc. v. TXU Corp., 565 F.3d 200, 206 n.4 (5th Cir. 2009). Nonetheless, “[cjontrol person liability is secondary only and cannot exist in the absence of a primary violation.” Southland Sec. Corp. v. INSpire Ins. Sols., Inc., 365 F.3d 353, 383 (5th Cir. 2004) (citing Lovelace v. Software Spectrum Inc., 78 F.3d 1015, 1021 n.8 (5th Cir. 1996)).

Ill

A. Reese’s Statements

Broadly, Plaintiffs’ scienter theory with respect to Reese’s statements about Well #4’s production is that prior to speaking on September 12 or September 29, Reese knew, or was severely reckless in not knowing, that Well #4’s production had dropped. Plaintiffs ground this theory in three sources: (1) Reese’s purported motive to deceive investors, (2) allegations made by certain confidential witnesses, and (3) Reese’s high rank in the company. The district court rejected Plaintiffs’ scien-ter theory. We agree.

“ ‘Scienter’ is ‘a mental state embracing intent to deceive, manipulate, or defraud[.]’ ” Goldstein, 340 F.3d at 245 (quoting Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193 n.12, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976)). “[P]laintiffs can demonstrate scienter by a showing of ‘severe recklessness’....” Id.

[Severe recklessness] is limited to those highly unreasonable omissions or misrepresentations that involve not merely simple or even inexcusable negligence, but an extreme departure from the standards of ordinary care, and that present a danger of misleading buyers or sellers which is either known to the defendant or is so obvious that the defendant must have been aware of it.

Spitzberg v. Hous. Am. Energy Corp., 758 F.3d 676, 684 (5th Cir. 2014) (quoting Rosenzweig v. Azurix Corp., 332 F.3d 854, 866 (5th Cir. 2003)).

“[W]e must look to the Complaint in toto in deciding whether it adequately pleads scienter.” Barrie v. Intervoice-Brite, Inc., 397 F.3d 249, 263 (5th Cir. 2005), opinion modified on denial of reh’g, 409 F.3d 653 (5th Cir. 2005) (citing Goldstein, 340 F.3d at 246-47). “A three-step framework guides this ... evaluation. First, the factual allegations in the pleadings must be accepted as true. Second, the court must consider the entire complaint. ... Third, the court must consider plausible inferences supporting as well as opposing a strong inference of scienter.” Diodes, 810 F.3d at 956-57 (internal citations omitted). “Ultimately, in order to create an inference of scienter, the allegations in the complaint must be ‘cogent and compelling,’ not simply ‘reasonable,’ or ‘permissible.’ ” Id. at 957 (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 323, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007)).

Plaintiffs’ scienter allegations fall short for three reasons. First, Plaintiffs have failed adequately to plead that Reese had a motive to mislead the public in September 2011. The fact that ATP disclosed the true production of Well #4 in November 2011, just two months after Reese’s statements, belies an inference of scienter. On November 9, 2011, Tate stated

As we brought [Well #4] on production, what we saw was a completion efficiency where there was more wellbore draw-down near the well bore than what we had seen during the well test and as a result we can make on a routine basis about 3,500 barrels a day equivalent out of that well.

It would have made little sense for Reese to lie about Well #4’s production in September only for Tate to disclose the true production in November. This is especially true because Plaintiffs have not alleged that Reese had a particular reason to lie in September that would have vanished by November. For example, Plaintiffs do not allege that Reese inflated ATP’s production numbers in September in order to facilitate an important business opportunity that was no longer salient in November. Instead, Plaintiffs allege that throughout Fall 2011, ATP’s fiscal position continually worsened.

Plaintiffs’ contrary suggestion that Reese had a motive to lie is not supported by our case law. We have found that “[t]he desire to raise capital in the normal course of business does not support a strong inference of scienter because virtually all corporate insiders share this goal.” Owens v. Jastrow, 789 F.3d 529, 539 (5th Cir. 2015) (citing Abrams v. Baker Hughes Inc., 292 F.3d 424, 434 (5th Cir. 2002)). The “outlier” to this proposition is Gold-stein where this court found that the company’s “need to complete a ‘crucial’ $129 billion merger ... gave the company a motive to inflate its financial results.” Shaw Grp., 537 F.3d at 544 (quoting Goldstein, 340 F.3d at 242, 250).

Plaintiffs do not explain with any specificity why, in September 2011, when Reese spoke, ATP had a more than routine need to raise capital. For example, Plaintiffs have not alleged that in September 2011, ATP was in critical negotiations to facilitate financing or to seek out potential creditors. Rather, Plaintiffs’ allegations indicate that in September 2011, ATP could easily access credit, and, indeed, did so many times.

Although lack of motive is not fatal to Plaintiffs’ claim, “[w]here, as here, the plaintiffis have] not alleged a clear motive for the alleged misstatements or omissions, the strength of [the] circumstantial evidence of scienter must be correspondingly greater.” See R2 Invs. LDC v. Phillips, 401 F.3d 638, 644 (5th Cir. 2005).

Second, Plaintiffs’ Confidential Witness allegations fall short. All that Plaintiffs’ Confidential Witness allegations indicate is that reports were made available to Reese, which showed that Well #4 was not producing 7,000 Boe per day. Plaintiffs have not directly alleged that Reese actually read the reports or was otherwise made aware of the lower production. The allegation that CW4 claims to have been confident that Reese knew of the production numbers does not plausibly allege Reese’s knowledge because Plaintiffs fail to plead any basis for CW4’s confidence. Thus, the critical question is whether it is proper to, infer that Reese was made aware, or was severely reckless in not being aware, of Well #4’s lower production.

Our precedent indicates that for allegations concerning internal corporate reports alone to support a strong inference of scienter (1) the complaint must have “corroborating details regarding the contents of allegedly contrary reports, their authors and recipients[,]” Abrams, 292 F.3d at 432, and (2) the corporate reports be connected to the speaking executive in a persuasive way, see Goldstein, 340 F.3d at 251-52.

Plaintiffs’ allegations fail on the second element. Plaintiffs allege that Reese received weekly emails containing production reports. Plaintiffs do not directly allege, however, that Reese read the relevant section of the reports before he made either his September 12 or September 29 statements. Instead, Plaintiffs ask the court to infer that Reese either actually reviewed the production reports, or was severely reckless in not doing so, from the fact that he received them.

Goldstein comes the closest to defining when a plaintiff adequately alleges that an executive has knowledge of a report. 340 F.3d 238. There, the plaintiffs alleged that two executives, Ebbers and Sullivan, misstated WorldCom’s financial position by failing to write off over $500 million of uncollectable accounts receivable. Id. at 243-44. In support of their scienter allegations, plaintiffs alleged that WorldCom’s legal department prepared a monthly list of delinquent accounts. Id. at 251. Plaintiffs alleged that the list should have alerted Ebbers and Sullivan to the need for a write off. Id. at 251-52. That list was sent to certain financial officers including David Myers, the company controller. Id. at 251. Plaintiffs alleged that Ebbers and Sullivan must have become aware of the list, or were severely reckless in not doing so, because Myers directly reported to Ebbers and Sullivan. Id. at 251-52. The court rejected the argument, holding that the PSLRA did not allow “the plaintiffs to make a conclusory assumption that simply because a monthly report was generated and distributed to an individual who reported to Ebbers and Sullivan, Ebbers or Sullivan had knowledge of certain delim quent account information which may appear in monthly reports.” Id. at 252. Instead, the court suggested that plaintiffs should have alleged, for example, that Myers presented or discussed the report with Ebbers and Sullivan. Id.

The specifics of this case make the inference that Reese actually looked at Well #4’s data tenuous. CW4 testified that each week ATP’s executives would receive a productivity report listing both company-wide metrics and individual well data. For Reese to determine that Well #4’s productivity had fallen, he would have had to open not only the email from CW4’s staff containing the productivity report, but also open the productivity report, parse through data for ATP’s other hundred or so wells, find the data for Well #4, and then notice that the data differed from his August statements in a material way. Absent an allegation that Reese was alerted to the Well #4 data in some way, inferring that Reese took those steps is less plausible than inferring that he would not have read specific entries in the emailed reports.

Indeed, the allegations in the Complaint suggest that Reese may have had good reason not to look at the reports without prompting. CW4, the person charged with creating the production reports, never reported directly to Reese. Additionally, Reese did not attend the weekly production meetings where the reports were discussed. Instead, CW4 reported to George Morris, the Chief Operating Officer, and Morris attended the production meetings. These allegations indicate that Morris, not Reese, was charged with monitoring production, and accordingly, strengthen the inference that Reese would likely not have read the weekly production reports absent some basis for him to do so.

Third, Reese’s position in the company does not aid Plaintiffs’ scienter allegations. As a general matter, “[a] pleading of scienter may not rest on the inference that defendants must have been aware of the misstatement based on their positions within the company.” Abrams, 292 F.3d at 432 (citing In re Advanta Corp. Sec. Litig., 180 F.3d 525, 539 (3d Cir. 1999)). However, in Nathenson, we held that occasionally “special circumstances” would permit a plaintiff to plead scienter by pleading a defendant’s position in the company. 267 F.3d at 425.

The ‘special circumstances’ cases exhibit some combination of four considerations that might tip the scales in favor of an inference of scienter. First, the smaller the company the more likely it is that corporate executives would be familiar with the intricacies of day to day operations. Second, the transaction at issue may have been critical to the company’s continued vitality. Third, the misrepresented or omitted information at issue would have been readily apparent to the speaker. Fourth, the defendant’s statements were internally inconsistent with one another.

Diodes, 810 F.3d at 959 (internal citations omitted).

The “special circumstances” exception does not apply here. First, with over 60 employees, ATP was approximately twice as large as the companies in the cases where this court has found a “special circumstance.” See Nathenson, 267 F.3d at 425 (32 to 35 employees); Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 342 (5th Cir. 2008) (no employees). Second, Well #4 was not material enough to place this case into the “special circumstances” category. That is not to say that Well #4 was not important to ATP. ATP’s own August 24, 2011 report indicated that Well #4 was projected to produce 22.5% of ATP’s total output. However, this court’s jurisprudence requires more. Indeed, this court has previously found that the “special circumstances” doctrine was not implicated by statements concerning an asset that comprised 22% of the respective company’s total portfolio. See Jastrow, 789 F.3d at 540 (“Defendants’ alleged misstatement of the MBS portfolio valuation was not as crucial to the continuing operation of Guaranty as were the misstatements regarding the patent’s applicability in Nathenson. Although Guaranty’s non-agency MBS portfolio was undeniably a large and important business asset, it is not alleged to have been Guaranty’s single product, instead comprising at all relevant times no more than 22% of Guaranty’s total assets.”); see also Abrams, 292 F.3d at 438 (Parker, J., concurring). Third, as explained above, Plaintiffs’ allegations fail to create a strong inference that it would have been readily apparent to Reese that his re-articulation of the August 24 report materially misstated Well #4’s true production. And, last, Plaintiffs concede that Reese’s statements were not internally inconsistent with other ATP speakers. Taking all these factors together, we conclude that Plaintiffs have failed to plead facts that would make this a “special circumstances” case.

In short, viewing Plaintiffs’ allegations as a whole, we agree with the district court that Plaintiffs failed adequately to allege scienter with regard to Reese’s statements.

B. Liquidity and Clipper

From 2010 to 2012, Defendants represented, in various ways, that ATP had sufficient liquidity to meet its capital needs. For example, in September 2011, Reese stated that ATP had a “solid capital position,” and in April 2012, Reese stated that “[l]iquidity is sound.” Defendants further opined that ATP had sufficient capital to fund the Clipper project, which Defendants represented would add significant production. Plaintiffs allege that each of these statements was false and misleading because ATP’s capital position crumbled from 2010 to 2012 such that it had no hope of completing the Clipper project. Even if the statements were false, we hold that Plaintiffs failed adequately to plead scien-ter.

First, the fact that ATP continuously disclosed its worsening cash position belies a claim of scienter. From 2010 to 2012, ATP’s financial statements and the notes that accompanied them repeatedly warned investors that ATP had negative working capital and that ATP was financing its-short-term cash or service needs by ceding shares of its long-term profits. It would have made little sense for Defendants to simultaneously disclose to, and mislead, the public about ATP’s liquidity position. For this reason, “[additional transparency ... further negates the inference of scienter.” Jastrow, 789 F.3d at 541; see also Diodes, 810 F.3d at 960.

Second, the nature of ATP’s cash position undercuts Plaintiffs’ scienter allegations. There were ample grounds to disagree about the state of ATP’s finances from 2010 to 2012. As the company itself explained in May 2012, “[i]n the event we do not achieve the projected production and cash flow increases [from ATP’s planned future projects], we will attempt to fund any short-term liquidity needs through other financing sources[.]” However, the company warned that “there is no assurance that we will be able to do so in the future if required to meet any short-term liquidity needs.” Thus, ATP’s financial condition by 2012 was essentially a disclosed bet on future production. ATP had highly leveraged its future cash flows to continue production and exploration. This placed a great deal of pressure on .the limited number of producing wells that ATP operated. Indeed, the pressure on ATP’s production was so great that, according to ATP’s first quarter 2012 Form 10-Q, any significant disruption to its business “could have a material adverse effect on ... [ATP’s] ability to meet [its] commitments as they come due.” Nonetheless, if ATP had been able to bring its planned new production online, it could have secured significant increased revenue. Certainly, a reasonable investor could have looked at this situation and concluded that ATP’s financial condition was untenable. Indeed, some investors did precisely that; for example, Moody’s issued a report in September 2011 suggesting that ATP had a “high likelihood” of restructuring. But that was not the only reasonable view of ATP’s finances. If ATP could bridge its liquidity gap and begin to benefit from its planned new wells, the company could have tapped into significant revenue. Against this backdrop, Defendants were not required to “present an overly gloomy or cautious picture of the company’s current performance[ ]” so long as their statements were “reasonably consistent with reasonably available data.” Abrams, 292 F.3d at 433.

Third, the timing of ATP’s liquidity statements does not support an inference of scienter. It is true that in May 2012, ATP indicated that it was within its financing capability, and three months later, ATP declared bankruptcy. Plaintiffs argue that this temporal proximity establishes scienter, citing to Plotkin, 407 F.3d 690. In Plotkin, the court noted that “allegations of later-emerging facts can, in some circumstances, provide warrant for inferences about an earlier situation. For example, the fact that a business files for bankruptcy on ‘Day Two,’ may, under the right surrounding circumstances, provide grounds for inferring that the business was performing poorly on ‘Day One.’ ” Id. at 698 (citing Novak v. Kasaks, 216 F.3d 300, 313 (2d Cir. 2000)). However, Plotkin does not aid the inference of scienter here because ATP disclosed its capital position in May 2012. That is, the inference that Plotkin endorses would allow the court to infer that ATP had potential liquidity problems in May 2012. However, that inference says nothing about Defendants’ scienter because ATP disclosed those liquidity concerns. The same is true with regard to ATP’s decision to hire bankruptcy counsel in June or July of 2012. ATP had disclosed its liquidity problems to the market in May 2012. The fact that a month later ATP would consult bankruptcy counsel hardly indicates that ATP’s executives knew that they would run out of cash. Indeed, many companies engage bankruptcy counsel to explore restructuring options before management is sure that the company will fail. See, e.g., Richard M. Cieri, The Role of a Restructuring Lawyer, in Arthur J. Abramowitz Et. al. Inside the Minds: The Art and Science of Bankruptcy Law, http://www.gibsondunn.com/fstore/ documents/pubs/CierLRestructuring_ Lawyer.pdf (“The goal of a restructuring lawyer is to stay out of bankruptcy. Therefore, a restructuring lawyer is successful when a company never has to commence a bankruptcy case. In the vast majority of cases, bankruptcy should be the last option because it is a very difficult and expensive process”).

Fourth, and for similar reasons, neither the bankruptcy trustee’s allegations, McCarroll’s assessment of ATP’s financial conditions, the Confidential Witnesses’ assessments of ATP’s liquidity, nor the Bankruptcy Judge’s determination that ATP filed bankruptcy too late established an inference of scienter. The fact that others disagreed with Defendants’ assessments of ATP’s liquidity does not indicate that Defendants’ assessments were not truly or reasonably held. See, e.g., Jastrow, 789 F.3d at 545 (finding that a Confidential Witness’s disagreement with management about whether to rely on ratings agencies did not contribute to an inference of scien-ter); Zueco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 999 (9th Cir. 2009), as amended (Feb. 10, 2009) (finding that “disagreement among employees with regard to the proper scrap rate, is not enough to establish a cogent or compelling scienter allegation”).

Fifth, Plaintiffs’ motive allegations do not support an inference of scienter. Plaintiffs contend that the motive to raise capital here was more than typical because ATP needed to raise funds to continue its operations. Here, ATP’s opportunity to mislead potential capital partners was severely limited by ATP’s continuous disclosure of its liquidity position. Moreover, the fact that Plaintiffs have not alleged that Defendants themselves profited from their alleged misstatements undercuts a motive allegation. See Jastrow, 789 F.3d at 545 n.18; Nathenson, 267 F.3d at 421 (“[T]he fact that the other defendants did not sell their shares during the relevant class period undermines plaintiffs’ claim.” (quoting Acito v. IMCERA Grp., Inc., 47 F.3d 47, 54 (2d Cir. 1995)).

Again, viewing the Complaint as a whole, we hold that Plaintiffs’ allegations of scienter as to ATP’s liquidity and the Clipper project fail as a matter of law.

C. McCarroll’s Resignation

On June 1, 2012, ATP issued a press release announcing that Matt McCarroll had been hired as CEO, replacing Defendant Bulmahn. Six days later, on June 7, 2012, ATP issued a second press release announcing that ATP “was unable to reach a mutually agreeable employment agreement with Mr. McCarroll and effective today he has submitted his resignation.” Plaintiffs contend that the reason given for McCarroll’s resignation was false or misleading.

However, nothing in the Complaint indicates that McCarroll informed either Bulmahn or Reese, or indeed anyone at ATP, of his reason for resigning. For example, when McCarroll claimed that he recommended restructuring but the Board declined, he did not indicate that he conditioned his employment on the Board restructuring. Likewise, when McCarroll told a private investigator that ATP’s finances were a disaster, he did not indicate that he made that statement to anyone at ATP or that he told ATP that he resigned because of the company’s financial condition. Absent some allegation that McCar-roll informed someone at ATP why he resigned, there is no basis for the court to conclude that Bulmahn and Reese knew or were reckless in not knowing McCarrolPs “true” reasons. See Southland, 365 F.3d at 361 (“[W]e will not ‘strain to find inferences favorable to the plaintiffs.’ ” (quoting Westfall v. Miller, 77 F.3d 868, 870 (5th Cir. 1996)).

We AFFIRM.

      . In short, the Complaint here alleged facts that undercut the inference that Reese read the Well #4 production data. Accordingly, we have no occasion to decide, as a general matter, when an executive can be charged with knowledge of specific facts based on the allegation that the executive received an email containing those facts.