author: KELLY, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee v. Michael John WALKER, Defendant-Appellant
    No. 15-2921
    United States Court of Appeals, Eighth Circuit.
    Submitted: May 18, 2016
    Filed: October 18, 2016

      Counsel who presented argument on behalf of the appellant was Paul C. Engh, of Minneapolis, MN.
    Counsel who presented argument on behalf of the appellee was Amber M. Brennan, AUSA, of Minneapolis, MN.
    Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.
   KELLY, Circuit Judge.

A jury convicted Michael Walker of being a felon in possession of a firearm and ammunition. Based on Walker’s criminal history, the district court sentenced him to 20 years in prison under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). On appeal, Walker challenges the denial of his motions to suppress evidence and to dismiss on speedy-trial grounds. He also argues that the district court abused its discretion by limiting his cross-examination at trial of one of the government’s witnesses, and by rejecting his proposed jury instructions. Finally, he contends that the district court erred by determining that he qualified as an armed career criminal. Having jurisdiction under 28 U.S.C. § 1291, we affirm Walker’s conviction, but vacate his sentence and remand for resen-tencing.

I. Background

On January 21, 2014, Walker was charged in a two-count indictment with being a felon in possession of a firearm, and being a felon in possession of ammunition, both in violation of 18 U.S.C. §§ 922(g) and 924(e). Walker made his initial appearance three days later, and, in mid-February, he filed several motions, including a motion to suppress evidence obtained during a traffic stop. In mid-June, the suppression motion was denied after an evidentiary hearing. Shortly thereafter, Walker’s counsel moved on Walker’s behalf for a competency evaluation. While the competency proceedings were pending, Walker moved to dismiss on speedy-trial grounds. In December, the district court found Walker to be competent, and denied his motion to dismiss. On January 5, 2015, the case proceeded to a jury trial, where Walker was convicted on both counts. In August, the district court sentenced Walker to 20 years in prison after determining that he qualified as an armed career criminal based on his prior Minnesota convictions for third-degree burglary, attempted aggravated robbery with a dangerous weapon, and second-degree burglary. Walker filed a timely notice of appeal.

II. Discussion

A. Motion to Suppress Evidence

During the suppression hearing before a magistrate judge, Minneapolis police officers James Golgart and Jeremy Foster testified as follows. In the early morning hours of September 30, 2013, Golgart and Foster were on patrol, when Walker, driving a white BMW with a cracked windshield, passed their squad car. As the BMW passed Golgart and Foster, they could see that its windshield was cracked: Golgart stated that the crack started on the passenger side and “spider[ed]” over to the driver’s side of the vehicle in such a manner that it obstructed the driver’s view; Foster stated that the .windshield was cracked on the passenger side, but that the crack did not extend all the way across the windshield. The officers followed the BMW for two blocks, during which time it blocked a crosswalk when it stopped at a traffic light. The officers initiated a traffic stop, and approached the BMW. As soon as the windows of the BMW were rolled down, they could both smell “fresh,” i.e., unburned, marijuana, an odor they had been trained to detect during their training as police officers. Walker appeared to be very nervous. Golgart then decided to search the BMW, arid both Walker and his passenger were secured in the squad car. During Golgart’s search of the passenger compartment of the BMW, he did not find any marijuana, but he did find under the' driver’s seat a glass pipe and a rock-like substance he believed to be cocaine. At that point, Golgart informed Walker and the passenger that they were under arrest, and continued searching the BMW. In the trunk, Golgart discovered a 12-gauge shotgun, a box of shotgun shells in a bag from the sporting goods store Cabela’s, and a high-capacity rifle magazine filled with ammunition. Golgart and Foster subsequently transported Walker and the passenger to the Hennepin County Jail, where jail personnel discovered marijuana in the passenger’s anus.

Golgart acknowledged that, in 2010, he had been the subject of an internal affairs (IA) investigation regarding an incident in which he examined a suspicious suitcase without contacting the bomb squad. He testified that he was terminated from the police department after the investigators concluded that he had given a false statement during the IA investigation, but that his termination was later rescinded and replaced with a 40-hour suspension without pay for his failure to use proper discretion regarding the suspicious suitcase.

The magistrate judge recommended denial of Walker’s suppression motion, reasoning that—whether or not the crack in the windshield actually obstructed Walker’s vision—the officers’ observations, regarding the windshield provided a particularized and objective basis to stop the vehicle in order to determine whether there was a violation of Minnesota Statutes § 169.71(a)(1), which provides that a person shall not operate a motor vehicle with a windshield cracked to an extent to limit or obstruct proper vision. The magistrate judge further reasoned that the smell of marijuana and Walker’s nervousness established probable cause for the warrantless search of the BMW under the automobile exception to the Fourth Amendment’s warrant requirement. Walker objected to the recommendation, contending that the magistrate judge had accepted Golgart’s testimony as credible without considering the IA investigation. The district court summarily overruled Walker’s objection, adopted the recommendation, and denied the suppression motion. The district court later denied Walker’s motion to reopen the suppression issue to present a newspaper article discussing the fact that crosswalks in Minneapolis required frequent repainting.

On appeal, Walker does not dispute that the BMW’s windshield was cracked; he asserts only- that the windshield was not cracked to such an extent that it impeded the driver’s view, and he argues that Golgart therefore lacked a valid basis for the traffic stop. Walker also argues that Golgart impermissibly extended the traffic stop beyond the time necessary to investigate the cracked windshield, citing Rodriguez v. United States, — U.S. -, 135 S.Ct. 1609, 1614, 191 L.Ed.2d 492 (2015), which held that an officer’s authority for conducting a traffic stop ends when tasks related to the traffic infraction are, or reasonably should have been, completed.

“We review the denial of a motion to suppress de novo but the underlying factual determinations for clear error, giving due weight to inferences drawn by law enforcement officials.” United States v. Hurd, 785 F.3d 311, 314 (8th Cir. 2015) (quoting United States v. Clutter, 674 F.3d 980, 982 (8th Cir. 2012)). We will affirm unless the denial of the motion is unsupported by substantial evidence, is based on an erroneous interpretation of the law, or it is clear, based on-the entire record, that a mistake was made. United States v. Zamora-Lopez, 685 F.3d 787, 789 (8th Cir. 2012) (citing United States v. Payne, 534 F.3d 948, 950-51 (8th Cir. 2008)).

“Under, the Fourth Amendment, a traffic stop is reasonable if it is supported by either probable cause or an ar-ticulable and reasonable suspicion that a traffic violation has occurred.” United States v. Washington, 455 F.3d 824, 826 (8th Cir. 2006). Any traffic violation, regardless of its perceived severity, provides an officer with probable cause to stop the driver, but the officer must have an objectively reasonable basis for believing that the driver has committed a violation. Id.; see also United States v. Jones, 275 F.3d 673, 680 (8th Cir. 2001). Here, the district court accepted as credible Golgart’s testimony that he believed, based on his observations, that the crack in the BMW’s windshield obstructed the driver’s view. United States v. Frencher, 503 F.3d 701, 701 (8th Cir. 2007) (“A credibility determination made by a district court after a hearing on the merits of a motion to suppress is ‘virtually unassailable on appeal.’” (quoting United States v. Guel-Contreras, 468 F.3d 517, 521 (8th Cir. 2006))). Even if Golgart was mistaken, his observations regarding the severity of the crack provided a reasonable basis for his belief that Walker was violating § 169.71(a)(1). See United States v. Smart, 393 F.3d 767, 771 (8th Cir. 2005) (possibility that defendant had not violated traffic law, and subsequent determination that he had not, did not mean that officer’s initial suspicion of violation was unreasonable).

Walker .also contends that Gol-gart impermissibly extended the traffic stop beyond the time necessary to investigate the cracked windshield. In Rodriguez, the Supreme Court held that a police officer may conduct checks unrelated to a traffic stop, but he may not do so in a manner that prolongs the stop, “absent the reasonable suspicion ordinarily demanded to justify detaining an individual.” Rodriguez, 135 S.Ct. at 1615. Under the automobile exception to the Fourth Amendment’s warrant requirement, a police officer who has lawfully made a roadside stop of a vehicle may search the passenger compartment and trunk of that vehicle if probable cause exists to believe that contraband or evidence of criminal activity is located inside the vehicle. United States v. Caves, 890 F.2d 87, 89 (8th Cir. 1989). Probable cause for a search under the automobile exception exists if the facts and circumstances known to the officers when they began the search were sufficient in themselves for a person of reasonable caution to believe that contraband or evidence of criminal activity was present in the vehicle. Id, at 90. The odor of unburned marijuana can be highly probative in establishing probable cause for a search. See Johnson v. United States, 333 U.S. 10, 13, 68 S.Ct. 367, 92 L.Ed. 436 (1948) (presence of odor, testified to by witness who is qualified to know that odor is distinctive to forbidden substance, might be persuasive evidence of probable cause for search); United States v. Smith, 789 F.3d 923, 928-29 (8th Cir. 2015) (holding that the smell of marijuana combined with the credible testimony of a police officer is sufficient to establish probable cause); Caves, 890 F.2d at 91 (odor of burnt- marijuana emanating from driver is less probative of existence of unused marijuana in vehicle than would be odor of unburned marijuana emanating from both driver and vehicle); see also United States v. Gerard, 362 F.3d 484, 489 (8th Cir. 2004) (noting that other circuits have held odor of marijuana, standing alone, is sufficient to support probable cause). Here, Golgart smelled unburnéd marijuana immediately after Walker opened the windows of the BMW. This information provided Golgart a basis to further detain Walker that was independent of the cracked windshield, and it also provided probable cause to search the car. Because both the traffic stop and the search of the BMW were lawful, the district court did not err in denying Walker’s suppression motion.

Walker also challenges the district court’s denial of his motion to reopen the suppression issue. We review the denial of a motion to reopen a suppression issue for abuse of discretion. United States v. Chavez Loya, 528 F.3d 546, 555 (8th Cir. 2008). The only evidence Walker sought to present related to the allegation that he was blocking a crosswalk at or near the time of the traffic stop. Given that the district court determined that the traffic stop was valid based on the crack in the BMW’s windshield, we cannot say that the court abused its discretion by denying his motion to reopen,'as the evidence regarding the crosswalk would have had no impact on the court’s ruling.

B. Motion to Dismiss

On June 24, 2014, two weeks after the denial of Walker’s suppression motion, the government filed its motions in limine in anticipation of the then-scheduled June 30 trial date. The next day, Walker’s counsel moved for a competency evaluation, and then moved to withdraw as counsel. The district court granted the motions, directed the Attorney General to conduct an evaluation, and ordered that the report be returned “within 30 days or as soon as possible.” However, Walker was not transported to the Metropolitan Correctional Center (MCC) in Chicago, Illinois, for the evaluation until late August. On September 16, the district court granted MCC’s request for a 15-day extension to complete Walker’s evaluation, and ordered that the report be returned by October 31. The district court received the report via email on November 14, and, approximately 10 days later, conducted a competency hearing. On December 1, the court entered an order, finding that Walker was competent.

In the meantime, on November 17, Walker, through new counsel, moved to dismiss the case, contending that the delay occasioned by the competency proceedings violated his right to a speedy trial under both the Speedy Trial Act, 18 U.S.C. § 3161(c)(1) (trial shall commence within 70 days from, as relevant, date defendant appeared before judicial officer), and the Sixth Amendment. The district court denied the motion. Thereafter,- Walker responded to the government’s motions in limine, which were resolved on December 30. The trial commenced on January 5, 2015.

On appeal, Walker argues that neither the approximately 60-day delay in his transportation to MGC, nor the 14 days by which MCC’s report exceeded the district court’s deadline, should be excluded from the speedy-trial computation under the Speedy Trial Act. His arguments, however, are foreclosed by United States v. McGhee, 532 F.3d 733 (8th Cir. 2008). In McGhee, the district court ordered a competency evaluation in August; in October, the defendant, still awaiting transportation for the evaluation, moved to withdraw his competency motion. The court denied the motion and ordered that the defendant be transported. The evaluation report—dated in December—was filed in early January. Id. at 736-37. This court concluded that the time periods while the defendant was awaiting transportation for the evaluation and while the evaluation was being completed, as well as the time period between the date on the report and its filing, were all-excluded from the speedy-trial computation under the Speedy Trial Act because they were part of the competency proceedings, whether or not the time periods were reasonable. Id. at 736-38 (reviewing district court’s legal conclusions de novo); see also 18 U.S.C. § 3161(h)(1)(A) (excluding delays caused by proceedings to determine defendant’s mental competency). Walker’s attempts to distinguish McGhee are unavailing, and we cannot discern any material differences between the facts in McGhee and the facts in this case. Thus we conclude that there was no violation of the Speedy Trial Act.

Walker also argues that his Sixth Amendment speedy-trial right was violated. The Sixth Amendment guarantees a criminal defendant the right to a speedy trial. U.S. Const. amend. VI; Doggett v. United States, 505 U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). “[I]t is an unusual case” in which a defendant’s Sixth Amendment speedy-trial right was violated but the Speedy Trial Act was not. United States v. Thirion, 813 F.2d 146, 154 (8th Cir. 1987). To determine whether there has been a Sixth Amendment violation, we balance four factors: (1) the length of delay; (2) the reason for the delay; (3) defendant’s assertion of his right; and (4) prejudice. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

As to the first factor, the defendant must allege that “the interval between accusation and trial has crossed the threshold dividing ordinary from ‘presumptively prejudicial’ delay” in order to trigger the remainder of the Barker analysis. United States v. DeGarmo, 450 F.3d 360, 364-65 (8th Cir. 2006) (quoting Doggett, 505 U.S. at 651-52, 112 S.Ct. 2686). If this initial showing is made, the court will consider the extent to which the delay stretches beyond the “bare minimum” needed to trigger judicial examination. Id. at 365. “A delay approaching a year may meet the threshold for presumptively prejudicial delay requiring application of the Barker factors.” United States v. Titlbach, 339 F.3d 692, 699 (8th Cir. 2003); see also Doggett, 505 U.S. at 652 n.1, 112 S.Ct. 2686 (noting that lower courts had generally found delay presumptively prejudicial “at least as it approaches one year”). Here, the delay of approximately eleven and a half months between Walker’s indictment and his trial meets the threshold, but barely.

As to the second factor, the court must determine whether the government or the defendant was “more to blame” for the delay. United States v. Rodriguez-Valencia, 753 F.3d 801, 806 (8th Cir.), cert. denied, — U.S. -, 135 S.Ct. 390, 190 L.Ed.2d 275 (2014). Here, Walker was responsible for most of the delay, which was occasioned by his motions to suppress evidence, for a competency evaluation, and to dismiss. See McGhee, 532 F.3d at 739 (concluding that defendant was responsible for delays by motions for competency evaluation and to dismiss indictment on speedy-trial grounds). Further, there is no evidence that the government intentionally caused any delay in order to gain a tactical advantage. See id.

As to the third factor, Walker asserted his speedy-trial right in due course on November 17, three days after MCC returned its report regarding his competency. See id. (defendant asserted his speedy-trial right upon return from competency evaluation). As to the fourth factor, Walker asserts that he was prejudiced by the delay due to the “ennui of waiting,” but he does not argue that his defense was impaired by the delay. His “ennui,” without more, is insufficient to demonstrate prejudice. See id. at 740 (“although anxiety and concern are present in every case, this alone does not demonstrate prejudice”; noting that defendant had not shown any “actual prejudice”).

Thus, considering the Barker factors and the facts here, we conclude that Walker’s Sixth Amendment speedy-trial right was not violated, and we affirm the denial of his motion to dismiss.

C. Limitations on Cross-Examination

Shortly before Walker moved for the competency evaluation, the government filed its motions in limine, seeking, as relevant, to preclude Walker from introducing at trial evidence regarding the IA investigation, and to preclude him from relitigating the lawfulness of the traffic stop. The district court granted the motion, reasoning that the IA investigation was only “marginally relevant” and would likely confuse the jury, and that the lawfulness of the traffic stop had already been determined. On appeal, Walker contends that cross-examination regarding the IA investigation was necessary to impeach Golgart’s basis for the traffic stop, and to show that he had a “habit of inaccuracy.”

The Confrontation Clause of the Sixth Amendment guarantees a criminal defendant the right to confront the witnesses against him. Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986), However, trial judges retain “wide latitude” to impose reasonable limits on cross-examination based on concerns about, inter alia, confusion of the issues or interrogation that is only marginally relevant. Id. at 679, 106 S.Ct. 1431. In order to establish a Confrontation Clause violation, the defendant must demonstrate that “a reasonable jury might have received a significantly different impression of a witness’s credibility had counsel been allowed to pursue the proposed line of cross-examination.” United States v. Oaks, 606 F.3d 530, 540 (8th Cir. 2010). We will not reverse a district court’s decision to limit cross-examination “unless there has been a clear abuse of discretion and a showing of prejudice to the defendant.” Id

In the present case, the IA investigation was minimally relevant for the purpose of impeaching Golgart’s testimony regarding the basis for the traffic stop, given that the legality of the traffic stop had been determined during the pre-trial suppression proceedings. Cf. United States v. Hall, 171 F.3d 1133, 1146 (8th Cir. 1999) (concluding that district court did not abuse its discretion in limiting cross-examination regarding witnesses’s prior untrue statement where the prior statement was in unrelated case and of only slight relevance). Furthermore, it was not likely that the jury would have received a significantly different impression of Golgart’s credibility in light of his own trial testimony: Golgart acknowledged that, while searching the BMW, he handled the shotgun without wearing latex gloves, in violation of the police department’s policy. Finally, there was a risk that cross-examination regarding the IA investigation would have confused the issues before the jury. It was unclear that the facts involved in this case bore any similarity to the facts ultimately relied on in the resolution of the IA investigation, and the ultimate resolution of the investigation was somewhat difficult to explain. Under these circumstances, cross-examination' regarding the IA investigation would have diverted the jury’s attention to a collateral matter with marginal relevance, and thé district court did not abuse its discretion in limiting Walker’s cross-examination on that issue. See United States v. Johnson, 968 F.2d 765, 766-67 (8th Cir. 1992) (district court did not abuse discretion by disallowing questioning on collateral issue of internal police investigation).

D. Rejection of Walker’s- Proposed Jury Instructions

Walker submitted two proposed jury instructions, Instruction 26 and Instruction 27. Instruction 26 read:

When evaluating whether or not Mr. Walker was in knowing possession of the gun and ammunition in question, you are further instructed that the fact he drove the car when it was stopped, or that hé obtained the car from the BMW dealership beforehand is not proof he possessed what was discovered inside. Knowingly driving that car differs from knowing possession of its contents.

Walker contended that this instruction was necessary in light of United States v. Dooley, 580 F.3d 682, 686-87 (8th Cir. 2009) (district court erred in' instructing jury that defendant was in constructive- possession of firearm if he had control over vehicle in which it was located; defendant’s proximity to contraband does not establish constructive possession when he is unaware of its presence). Instruction 27 read:

[T]he [government must prove beyond a reasonable doubt that Mr. Walker knowingly possessed] the firearm and ammunition. The law does not permit the jury to presume his knowledge of illegality. That is to say, it is the government’s singular burden to prove Mr. Walker not only knowingly possessed the gun and ammunition, but that he also knew said possession was in violation of federal statutes. This additional requirement of proof is imposed upon the government to assure that no conviction be had on the basis of an assumption that Mr. Walker necessarily understood the law when he may not have.

For support, Walker cited United States v. Bruguier, 735 F.3d 754, 760-61 (8th Cir. 2013) (en banc), which held that in order to be convicted of sexually abusing an incapacitated victim, a defendant must have had knowledge of the victim’s incapacity. The district court summarily declined to give Instruction 26, and declined to give Instruction 27 on the basis that Bruguier was inapplicable. Rather, the court instructed the jury that the essential elements of the offenses included, as relevant, that Walker “knowingly possessed” the shotgun and ammunition. The court further instructed the jury that a person who, “although not in actual possession, has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it.” At the joint request of the parties, the court also instructed the jury that “an act is done knowingly if the Defendant was aware of the act and does not act through ignorance, mistake, or accident.”

We review the district court’s rejection of a defendant’s proposed jury instructions for an abuse of discretion, recognizing that district courts have broad discretion in the formulation of instructions. We will affirm so long as the jury instructions, taken as a whole, fairly and adequately submitted the issues to the jury. United States v. Thunder, 745 F.3d 870, 873-74 (8th Cir. 2014).

First, as to Instruction 26, Walker’s suggestion that his possession of the BMW was “not proof’ that he possessed the items in the trunk incorrectly suggested that his control over the BMW could not constitute some evidence of his knowledge of the BMW’s contents. See United States v. Ellis, 817 F.3d 570, 576 (8th Cir. 2016) (possession may be either actual or constructive; defendant may be in constructive possession of firearm if he has dominion and control over firearm itself, or over premises in which firearm was located; defendant’s dominion and control over vehicle may indicate knowledge of vehicle’s contents). Furthermore, while the instruction at issue in Dooley erroneously stated that constructive possession was established by mere proximity to the contraband, the jury in this case was correctly instructed that the government bore the burden to prove that Walker “knowingly possessed” the shotgun and ammunition, that his possession could be constructive, and that “ignorance, mistake, or accident” were insufficient to establish knowing possession. See United States v. Christy, 647 F.3d 768, 770 (8th Cir. 2011) (there is no error if instructions as whole adequately set forth law, afford counsel opportunity to argue defense’s theory, and reasonably ensure that jury appropriately considers it).

Second, as to Instruction 27, Walker’s suggestion that the government had the burden to prove he was aware of the “illegality’ of his possession of the shotgun and ammunition was a plain misstatement of the law. This court has held that §§ 922 and 924 require neither “knowledge of the law nor an intent to violate it.” United States v. Farrell, 69 F.3d 891, 893 (8th Cir. 1995). Bruguier does not demand a different conclusion. In that case, this court held that the statute at issue required that the defendant have knowledge of the facts that made his conduct unlawful. Bruguier, 735 F.3d at 760-61. Similarly, in this case, the government was required to prove that Walker “knew of the facts that constituted the offense under § 922(g),” not that he knew his possession of the shotgun and ammunition were illegal. United States v. Miller, 646 F.3d 1128, 1132 (8th Cir. 2011) (citing United States v. Lippman, 369 F.3d 1039, 1043 (8th Cir. 2004)). Accordingly, we conclude that the district court did not abuse its discretion by rejecting Instructions 26 and 27.

E. Classification as an Armed Career Criminal

Under the ACCA, a person convicted of violating § 922(g) who has three previous convictions for, as relevant, a “violent felony” is subject to a 15-year mandatory-minimum prison term. 18 U.S.C. § 924(e)(1). In this case, the presentenee report (PSR) stated that Walker qualified as an armed career criminal based on his 1987 Minnesota conviction for third-degree burglary, and his 1998 Minnesota convictions for attempted aggravated robbery with a dangerous weapon and for second-degree burglary.

In the district court, Walker objected to his classification as an armed career criminal, asserting, as relevant, that Minnesota’s burglary statutes were “divisible” because they defined multiple methods by which burglary could be committed, and only one subsection of the definition of first-degree burglary included an element involving violence. At the August 2015 sentencing hearing, the district court determined that Walker qualified as - an armed career criminal, and sentenced him to two concurrent 240-month prison terms.

On appeal, Walker reasserts his arguments challenging his classification as an armed career criminal, including his argument that Minnesota’s burglary statutes are divisible. This court reviews de novo the district court’s determination that a defendant’s prior conviction constitutes a violent felony under the ACCA. See United States v. Soileau, 686 F.3d 861, 864 (8th Cir. 2012).

“Burglary” is one of the offenses specifically enumerated as a violent felony under the ACCA. 18 U.S.C. § 924(e)(2)(B)(ii). The Supreme Court has defined generic “burglary” for ACCA purposes as “any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Taylor v. United States, 495 U.S. 575, 599, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). The Supreme Court recognized in Taylor that “burglary,” as used in the ACCA, encompasses “run-of-the-mill” burglaries, including burglaries that do not involve the use, or threatened use, of force. Id. at 597-98, 110 S.Ct. 2143 (“Congress presumably realized that the word ‘burglary’ is commonly understood to include not only aggravated burglaries, but also run-of-the-mill burglaries involving an unarmed offender, an unoccupied building, and no use or threat of force.”).

We recently held that Minnesota’s current third-degree burglary statute is.divisible because it sets forth multiple, alternative versions of the crime, only one of which qualifies as a violent felony. United States v. McArthur, Nos. 14-3335, 14-3336, 14-3367, 836 F.3d 931, 941-45, 2016 WL 4698285, at *6-8 (8th Cir. Sept. 8, 2016); see Minn. Statutes § 609.582(3) (“Whoever enters a building without consent and with intent to steal or commit any felony or gross misdemeanor while in the building, or enters a building without consent and steals or commits any felony or gross misdemeanor while in the building, either directly or as an accomplice, commits burglary in the third degree”). Specifically, we concluded that the alternative defining burglary to include “entering] a building without consent and with intent to steal or commit any felony or gross misdemeanor” qualified as a violent felony, while the alternative defining burglary as “entering] a building without consent and stealing] or committing] a felony or gross misdemeanor while in the building” did not qualify as a violent felony. Id. (district court should have applied “modified categorical approach” to ascertain which alternative formed basis of prior conviction in order to determine whether conviction qualified as ACCA predicate offense). Minnesota’s second-degree burglary statute in effect in 1998 contained similar language and thus was also divisible. See Minn. Statutes § 609.582(2) (1997) (“Whoever enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building, commits burglary in the second degree.”)

It is questionable whether Walker sufficiently raised in the district court the particular concern at issue in McArthur, and he did not raise this argument on appeal. However, we exercise our discretion to consider the matter sua sponte under the plain error standard of review, and conclude that Walker is entitled to relief. See Silber v. United States, 370 U.S. 717, 717-18, 82 S.Ct. 1287, 8 L.Ed.2d 798 (1962) (per curiam) (“Appellate courts ... may, of their own motion, notice errors to which no exception has been taken, if. the errors are obvious, or if they otherwise seriously affect the fairness, integrity, or public reputation of judicial proceedings.” (quotation omitted)); United States v. Jones, 574 F.3d 546, 549 (8th Cir. 2009) (when defendant does not raise particular issue in district court, this court reviews for plain error; under plain error review, defendant must show (1) an error; (2) that is plain; and (3) that affects his substantial rights) (citation omitted). Because § 609.582(2) was divisible, the district court should have applied the modified categorical approach to ascertain which alternative of the statute formed the basis of Walker’s conviction, and whether he thus qualified for enhanced sentences under the ACCA. See Henderson v. United States, — U.S. -, 133 S.Ct. 1121, 1130, 185 L.Ed.2d 85 (2013). (it is enough that error be plain at time of appellate consideration); see also 18 U.S.C. 924(a)(2) (Violation of § 922(g) punishable by not more than 10 years in prison).

When applying the “modified categorical approach,” the court may look to a limited class of documents to determine for what crime the defendant was convicted. Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016). In this case, the only evidence in the record establishing Walker’s conviction for second-degree burglary came from the PSR, which described his conviction based on “court records.” Without information specifically identifying the source of that description, we cannot rely on the assertions in the PSR to establish which alternative of the statute Walker was convicted of violating, and we therefore cannot conclude that his second-degree burglary conviction qualified as an ACCA predicate offense. United States v. Shockley, 816 F.3d 1058, 1063 (8th Cir. 2016).

Accordingly we vacate Walker’s sentence and remand to the district court for further proceedings. We note’ that’ Walker’s objection to his classification as an armed career criminal arguably did not raise the particular issue discussed in Mc-Arthur, and that the issue is now properly framed. Under these’ circumstances, we decline to impose limitations on the evidence the district court may consider on remand. See United States v. King, 598 F.3d 1043, 1050 (8th Cir. 2010) (declining to foreclose further development of record on remand where defense counsel failed to explain clearly objection to sentence enhancement in district court, and where issue was properly framed after appeal).

III. Conclusion

For the foregoing reasons, we vacate Walker’s sentence and remand for resen-tencing. We affirm in all other respects.

      . Walker also argued that his 1987 third-degree burglary conviction was too old to qualify as an ACCA predicate offense. However, there is no limitation under the ACCA as to the age of convictions qualifying as predicate offenses. See United States v. Rodriguez, 612 F.3d 1049, 1056 (8th Cir. 2010).

      . Walker’s 1987 conviction for third-degree burglary stemmed from his violation of the version of Minn. Statutes § 609.582(3) in effect 1986. As we noted in McArthur, the 1986 version of § 609.582(3) did not contain the second alternative. See McArthur, 836 F.3d at 943-44, 2016 WL 4698285 at *7. We have previously held that, a conviction under the 1986 version of § 609.582(3) qualified as an ACCA predicate offense: United States v. Sonczalla, 561 F.3d 842, 846 (8th Cir. 2009) (conviction under Minnesota's 1986 third-degree burglary statute qualified as ACCA predi- ' cate offense).

      . On appeal, Walker also argues that his attempted robbery conviction and his second-degree burglary conviction did not qualify as separate ACCA predicate offenses because they were committed as part of a "pattern of continuous conduct.” Because we vacate Walker’s sentence on other grounds, we need not address this argument. In addition, we do not address Walker's argument—raised for the first time in his reply brief—that proposed amendments to the United States Sentencing Guidelines should have been applied in determining whether he was an armed career criminal. United States v. Wilkens, 742 F.3d 354, 360 n.2 (8th Cir. 2014) (this court generally does not address issues and arguments asserted for first time in reply brief (citation omitted)).


source: Caselaw Access Project

author: LOKEN, Circuit Judge.

license: Public Domain

text:
    Ronda WALKER, Plaintiff-Appellant v. PROGRESSIVE DIRECT INSURANCE COMPANY, et al., Defendants-Appellees
    No. 16-1433
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 20, 2016
    Filed: October 18, 2016
    Counsel who presented argument on behalf of the appellant was John Christian Steffens, of Cape Girardeau, MO. In addition to Mr. Steffens, thé following attorney(s) appeared on the appellant brief; J. Michael Payne, of Cape Girardeau, MO., and John D. Harding, of Cape Girardeau, MO.
    Counsel who presented argument on behalf of the appellee was James A. Wilke, of Saint Louis, MO. In addition to Mr. James A. Wilke, the following attorney(s) appeared on the appellee brief; Daniel Wilke, of Saint Louis, MO.
    Before LOKEN, BEAM, and BENTON, Circuit Judges.
   LOKEN, Circuit Judge.

Steve Walker died in a motorcycle accident. His wife, Ronda Walker, brought a wrongful death action against the driver of the other vehicle, which the parties settled for the driver’s liability policy limit of $25,000. Ronda then sued the Walkers’ insurer, Progressive Direct Insurance Company, to recover underinsured motorist insurance (“UIM”) under two Progressive Auto Policies insuring their six other cars. After Progressive removed the action to federal court, the district court granted Progressive’s motion .for summary judgment, concluding that the policies’ “owned vehicle” exclusion barred UIM coverage because Steve did not purchase UIM coverage under a separate policy insuring his motorcycle. Ronda appeals. Reviewing. de. novo the district court’s interpretation of the insurance policies and their ambiguity, as Missouri law requires, we affirm. Floyd-Tunnell v. Shelter Mut. Ins. Co., 439 S.W.3d 215, 217 (Mo. banc 2014).

The two Progressive policies provided UIM coverage for each of the six named vehicles. The policies’ “owned vehicle” exclusion (“OVE”) is common in auto liability policies. The Supreme Court of Missouri, has noted the exclusion’s purpose: “ope cannot simply buy a policy of insurance on one vehicle and then argue that the policy covers other vehicles that the insured also owns but chose not to insure.” Dutton v. American Family Mut. Ins. Co., 454 S.W.3d 319, 323 (Mo. banc 2015). Here, Steve Walker separately insured his motorcycle without UIM coverage.

UIM coverage is not required by statute in Missouri, so Ronda’s coverage claim turns on the UIM provisions in Progressive’s policies, construed in accordance with Missouri law. Progressive provided UIM coverage in Part III (B) of its Auto Policy. The “Insuring Agreement” in Part III (B) provided:

If you pay the premium for this coverage, we will pay for damages that an insured person is legally entitled to recover from the owner or operator of an underinsured motor vehicle because of bodily injury:
1. sustained by that insured person;
2. caused by an accident; and
3. arising out of the ownership, maintenance, or use of an underinsured motor vehicle.

The policies’ general definitions defined “Bodily injury” to mean “bodily harm ... including death that results from bodily harm,” and defined “You” to mean “a person shown as a named insured on the declarations page.”

The OVE exclusion in Part III (B) provided that UIM coverage will not apply:

1. to bodily injury sustained by any person while using or occupying:
⅝ ⅜ ⅝
b. a motor vehicle that is owned by or available for the regular use of you or a relative. This exclusion does not apply to a covered auto that is insured under this Part III (B)....

Part III (B)’s Limits of Liability section provided that the “each person” limit of liability “includes the total of all claims made for bodily injury to an insured person and all claims of others derived from such bodily injury, including ... wrongful death.” Part III (B) also contained a relevant Additional Definition:

Insured person means:
a. you or a relative ...
and
d. any person who is entitled to recover damages covered by this Part III (B) because of bodily injury sustained by a person described in [sub-part] a....

In this case, Steve Walker was a named insured on the policies’ Declarations Page and therefore was an “insured person.” He sustained bodily injury caused by an accident arising out of the use of an underin-sured motor vehicle. Therefore, unless excluded, the Insuring Agreement in Part III (B) covered a claim by Steve, had he survived, or, after his death, a wrongful death claim by Ronda based upon (“derived from”) Steve’s bodily injury. However, as the district court explained, Part III (B)’s OVE barred coverage for these claims because “[Steve] was a named insured who owned the vehicle he was driving during the accident, and that vehicle was not covered under the policies at issue here.” As in Bush v. Shelter Mut. Ins. Co., 412 S.W.3d 336, 342 (Mo. App. 2013), the Progressive policies’ OVE exclusion “simply and unambiguously precludes coverage for damages sustained while the insured is occupying a vehicle he owns that is not included on the policies’] declarations page.”

On appeal, as in the district court, Ronda avoids this straightforward analysis applying Progressive’s OVE to the undisputed facts in this case. Rather, she argues that the OVE does not bar a claim for her own injury because (i) she is a person named on the policy Declarations Page and therefore an “insured person”; (ii) she may recover wrongful death damages from an underinsured motorist, see Mo. Rev. Stat. § 537.080.1(1); and (iii) “[s]he was not using or occupying any vehicle involved in the accident, nor did she suffer any bodily injuries in the accident.”

The district court succinctly answered this contention: “if ‘you’ could only mean plaintiff herself, there would be nothing for her to recover under UIM coverage because she was not injured.” We agree. Of course, Ronda did suffer personal injury from Steve’s death that may be recovered in a wrongful death damage action. See Mo. Rev. Stat. § 537.090. But she did not suffer “bodily injury” as defined in the Progressive Auto Policy, and Part III (B) provides UIM coverage only to an insured person for “bodily injury sustained by that insured person.” Thus, Ronda’s argument that the policy definition of “you” makes the OVE ambiguous when she seeks coverage for her own injury does not identify a relevant ambiguity. Ronda’s UIM claim is not covered whether “you” refers to Ronda or Steve, or both, because a UIM claim based on Steve’s bodily injury is barred by the OVE, and Part III (B) provides no UIM coverage for a separate claim by the other named insured, Ronda.

The Supreme Court of Missouri reached the same conclusion in Floyd-Tunnell, where the plaintiff claimed uninsured motorist coverage for her husband’s wrongful death under each of their three auto policies, but the insurer, applying an OVE exclusion, limited coverage to the statutory minimum for the policies covering cars the husband was not driving when the accident occurred. 439 S.W.3d at 217. On appeal, plaintiff argued “that the policies provide coverage to her . for [wrongful death] damages, and because she was not in the car' when the accident occurred, the [OVE] exclusion does not limit this coverage.” Id. at 219. The Supreme Court rejected this argument, concluding that the policies’ plain language—“money owed to an insured for bodily injury ... sustained by that insured”—did not cover a claim for wrongful death damages. Because plaintiff did not suffer bodily injury herself, “[t]he plain language of the policies denies her coverage for the damages she sustained as a result of her husband’s death.” Id. That reasoning applies and is controlling here.

The judgment of the district court is affirmed.

      . The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the Eastern District of Missouri.


author: BENTON, Circuit Judge.

text:
    UNITED STATES of America, EX REL. Chickoiyah MILLER, ex rel. Cathy Sillman, Plaintiff Chickoiyah Miller; Cathy Sillman, Relators-Appellants v. WESTON EDUCATIONAL, INC., doing business as Heritage College, Defendant-Appellee
    No. 14-1760
    United States Court of Appeals, Eighth Circuit.
    Submitted: July 29, 2016
    Filed: October 19, 2016

      Matthew V. Bartle, Bartle & Marcus LLC, Kansas City, MO, argued (David L. Marcus, Bartle & Marcus LLC, Kansas City, MO, Gene P. Graham, Bryan T. White, White Graham Buckley & Carr, LLC, Independence, MO, on the brief), for appellants.
    Steven M. Gombos, Ritzert & Leyton, P.C., Fairfax, VA, argued (Matthew T. Geiger, Geiger Prell, LLC, Overland Park, KS, on the brief), for appellee.
    Benjamin L. Mizer, Principal Deputy Asst. Atty. Gen., Michael S. Raab, Charles W. Scarborough, Appellate Staff, Civ. Div., U.S. Dept, of Justice, Washington, DC, Tammy Dickinson, U.S. Atty., Kansas City, MO, for amicus curiae United States of America supporting appellants.
    Before SMITH, BENTON, and SHEPHERD, Circuit Judges.
   BENTON, Circuit Judge.

Chickoiyah Yehnee Miller and Cathy Lynn Sillman filed a qui tam False Claims suit against Heritage College, alleging it fraudulently induced the Department of Education (DOE) to provide funds by falsely promising to keep accurate student records. Each relator also alleged retaliation under the FCA and wrongful discharge under state law. The district court granted summary judgment to Heritage. Relators appealed, except on Sillman’s retaliation claim. The Supreme Court vacated this court’s earlier opinion. Weston Educ., Inc. v. United States ex rel. Miller, — U.S. -, 136 S.Ct. 2505, 195 L.Ed.2d 836 (2016), vacating United States ex rel. Miller v. Weston Educ., Inc., 784 F.3d 1198 (8th Cir. 2015). Having jurisdiction under 28 U.S.C. § 1291, this court reverses and remands the FCA claim, and affirms the employment claims.

I.

Heritage, a for-profit college, signed a Program Participation Agreement (PPA) with- the DOE to participate in programs under Title IV of the Higher Education Act of 1965. See 20 U.S.C. §§ 1070-1099d (2012) (providing federal financial assistance to eligible post-secondary students). Under the PPA, Heritage and its students submit applications for specific federal grants, loans, or .scholarships. Around 97% of Heritage students receive Title IV aid, accounting for about 90% of gross tuition. From 2009 to 2012, the DOE disbursed $32,817,727 to Heritage.

The PPA obligates Heritage to “establish and maintain such administrative and fiscal procedures and records as may be necessary to ensure proper and efficient administration of funds.” See also 20 U.S.C. § 1094(a)(3) (same language); 34 C.F.R. § 668.14(b)(4) (same language). This includes “[djocumentation” of each student’s eligibility and of any refunds due on behalf of the student. 34 C.F.R. § 668.24(c)(iii)-(iv). To be eligible for funds, a student must make “satisfactory progress.” Id. §§ 668.32(f), 668.34. SP is measured by cumulative grade point average. See Heritage Coll., ABHES Institutional Self-Evaluation Report 72 (2007) (noting student must attain 70% GPA by end of program to make SP). Refunds to the DOE may be due when a student withdraws, depending on how much of a program the student completed. See 34 C.F.R. § 668.22(e) (noting no refund required if student completes 60% or more of program). Withdrawal is determined by the “last date of academic attendance.” Id. § 668.22(b)(1).

Relators, both former Heritage employees, claim that Heritage altered grade and attendance records from 2006 to 2012 to ensure students made SP and to avoid refunds, thereby maximizing Title IV funds. Miller saw an administrator increase student grades without instructor knowledge or consent, erasing the grades in a paper grade book and replacing them. She identifies a number of her own students—from before and after the signing of- the PPA—whose transcripts reflect higher grades than she awarded. She saw administrators alter attendance records to mark absent students as present. At meetings in 2009 and 2010, Miller heard administrators discuss keeping students at Heritage long enough to get all Title IV funds possible. Two other program managers testified that administrators ordered them to go through instructor grade books and change failing grades to passing. Other Heritage employees and instructors witnessed or participated in altering grade and attendance records, before and after the signing of the PPA. For the purpose of summary judgment, Heritage does not dispute it altered records.

In December 2010, Relators complained to Heritage about this and other alleged misconduct. Heritage fired Sillman on December 27, 2010, citing poor job performance and interpersonal skills. Miller quit on January 7, 2011, claiming that she had been excluded from meetings, removed as program manager, refused a previously-offered employment position, docked Saturday pay, and threatened with termination.

Relators filed a qui tarn FCA action, alleging numerous theories .of FCA liability. The federal government declined to intervene. Relators added claims for retaliation under the FCA and wrongful discharge under. Missouri law. The -. court granted summary judgment to Heritage on all claims. Relators appeal on one theory of FCA liability, fi’audulent inducement. They also appeal the judgments on wrongful discharge and Miller’s retaliation claim.

II.

Relators claim that Heritage committed fraudulent inducement by signing the PPA without intending to maintain “records as may be -necessary to ensure proper and efficient administration of funds.” The district court held Heritage did not promise to keep perfect records and any promise was ¡not material to the disbursement of funds. This court reviews de novo a grant of summary judgment. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). Summary judgment is proper when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as .a matter of law.” Fed. R. Civ. P. 56(a). A court “must view the evidence in the light most favorable to the opposing party” and draw “reasonable inferences” in favor of that party. Tolan v. Cotton, — U.S. -, 134 S.Ct. 1861, 1866, 1868, 188 L.Ed.2d 895 (2014) (per curiam) (internal quotation marks omitted).

The FCA makes liable anyone who “knowingly makes, uses, or causes to be made or used, á false record or statement material to a false or fraudulent ciaim.” 31 U.S.C. § 3729(a)(1)(B). Under fraudulent inducement, FCA liability attaches to “each claim submitted to the government under a contract so long as the original contract was obtained through false statements or fraudulent conduct.” In re Baycol Prods. Litig., 732 F.3d 869, 876 (8th Cir. 2013), citing United States ex rel. Marcus v. Hess, 317 U.S. 537, 543-44, 552, 63 S.Ct. 379, 87 L.Ed. 443 (1943) (finding contractors liable under. FCA for all claims submitted under government contract obtained by collusive bidding). Accord United States v. United Techs. Corp., 626 F.3d 313, 320 (6th Cir. 2011) (“False statements underlying multi-year contracts generate a stream of related invoices and cause the government to pay all of the invoices related to the contract.”); United States ex rel. Longhi v. United States, 575 F.3d 458, 468 (5th Cir. 2009) (“[Although the Defendants’ subsequent claims for payment made under the contract were not literally false, [because] they derived from the original fraudulent misrepresentation, they, too, became actionable false claims.” (second alteration in original) (internal quotation marks omitted)); United States ex rel. Hendow v. Univ. of Phoenix, 461 F.3d 1166, 1173 (9th Cir. 2006) (“[Liability will attach to each claim submitted to the government under a contract, when- the contract ... was originally obtained through false statements or fraudulent conduct.”); United States ex rel. Main v. Oakland City Univ., 426 F.3d 914, 916 (7th Cir. 2005) (“If a false statement is integral to a causal chain leading to payment, it is irrelevant how the federal bureaucracy has apportioned the statements among layers of paperwork.”); Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 788 (4th Cir. 1999) (stating “any time a false statement is made in a transaction involving a call on the U.S. fisc, False Claims Act liability may attach” even if “the claims that were submitted were not in and of themselves false”). See also United States v. Neifert-White Co., 390 U.S. 228, 232, 88 S.Ct. 959, 19 L.Ed.2d 1061 (1968) (noting FCA “was intended to reach all types of fraud, without qualification, that might result in financial loss to the Government”).

Fraudulent inducement 'requires a plaintiff to show: (1) the defendant made a “false record or statement”; (2) the defendant knew the statement was false; (3) the statement was material; and (4) the defendant made a “claim” for the government to pay money or forfeit money due. See Baycol, 732 F.3d at 875-76 (“[A] claim alleging fraud in the inducement of a government contract does focus on the false or fraudulent statements which induced the government to enter into the contract at the outset.”); United States ex rel. Vigil v. Nelnet, Inc., 639 F.3d 791, 796, 799 (8th Cir. 2011) (requiring materiality). At issue is whether Heritage made a knowingly false statement, and whether it was material.

A.

Relators claim that Heritage falsely stated it would keep accurate student records. Heritage argues that the PPA does not require the maintenance of these specific grading and attendance records.

For a statement to be knowingly false, a person must have “actual knowledge of the information,” or act in “deliberate ignorance” or “reckless disregard” of the truth or falsity of the information. 31 U.S.C. § 3729(b). “Innocent mistakes and negligence are not offenses under the Act. In short, the claim must be a lie.” United States ex rel. Onnen v. Sioux Falls Indep. Sch. Dist. No. 49-5, 688 F.3d 410, 413 n.2 (8th Cir. 2012). A defendant’s “reasonable interpretation of any ambiguity inherent in the regulations belies the scienter necessary to establish a claim of fraud.” United States ex rel. Ketroser v. Mayo Found., 729 F.3d 825, 832 (8th Cir. 2013).

By executing the PPA, Heritage represented it would “establish and maintain such administrative and fiscal procedures and records as may be necessary to ensure proper and efficient administration of funds.” To demonstrate this promise was false, it is not enough to show that Heritage did not comply with the PPA; Relators must show that Heritage, when signing the PPA, knew accurate grade and attendance records were required, and that Heritage intended not to maintain those records. See Main, 426 F.3d at 917 (“[I]f the University knew about the rule and told the [DOE] that it would comply, while planning to do otherwise, it is exposed to penalties under the False Claims Act”).

Relators point to the following evidence of Heritage’s pre-PPA knowledge and intent. First, they note that Heritage’s own policy states, “It is vitally important that the school maintain accurate student records. We are responsible to the state, the accrediting agency, the U.S. Department of Education .... Student records must be accurate and complete.'We must be able to create and keep records of all student’s enrollment activities, academic achievement, and financial activities.” Heritage Coll. Heritage Inst., Student Records Operation Manual 3 (2007). They further note that- Heritage knew it must keep “[djocumentation” of student eligibility and refunds, see 34 C.F.R. § 668.24(c)(iii)-(iv), to which grade and attendance records are necessary. Relators emphasize a federal regulation providing, “Falsification of any document received from a student or pertaining to a student’s eligibility for assistance under” Title IV is an example of fraud that “eause[s] misuse and the likely loss of Title IV, HEA program funds.” § 668.83(c)(2)(iii)(A). While this regulation addresses when DOE can take emergency action, a reasonable jury could find it shows Heritage’s understanding of what records are “necessary to ensure proper and efficient administration of funds.”

Second, Relators highlight a pattern of record falsification. The district coúrt found, “Relators have presented evidence of numerous instances where Heritage administrators changed a student’s failing grade to a passing grade without the instructor’s knowledge and consent or instructed a teacher to change a failing grade to a passing grade.” It also found, “Relators have submitted evidence of numerous instances where students were awarded attendance hours when they apparently did not physically attend class.” For example, two instructors at Heritage before the PPA’s execution, Rebecca Boom and Leanne Smith, testified that administrators ordered some students’ grades changed from failing to passing. Boom also testified she gave, under orders from Heritage administrators, • at least 25 to 30 students attendance when they did not fulfill the requirements. She saw another administrator do the same. The director of education in early 2006, Allison Bilbrey, said that there was a pattern of Heritage employees falsifying grades and attendance records (including the last date of attendance). Student Danielle L. Kimball declared that her attendance record reflects false hours throughout 2008 and 2009. Student Lonnie T. Black swore that his transcript has passing grades for multiple classes that he failed, and that he was often given attendance for days he was not in class. Miller declared Heritage regularly altered records, and highlights 9 pre-PPA students whose grades were increased without her knowledge and 7 whose attendance records were altered multiple times. She testified that in 2008 and 2009 she saw more than 50 instances of administrators adding attendance for absent students by writing on the roster before it was electronically recorded. Heritage admitted that altered attendance resulted in some students remaining in school when they should have been withdrawn and a refund calculated.

Relators also call attention to records falsified in 2009 to 2012, after the PPA was signed. Miller witnessed Heritage’s new director of education erase the grades of an'entire class from the instructor’s paper grade book, and replace them. She identifies several other students whose grade or attendance records were altered. Program manager Shana Hopke recalled multiple meetings where Heritage administrators told all program managers to go through instructor grade books and change failing grades to passing, Hopke changed several students’ grades by erasing and replacing them in the paper book, and saw an administrator, multiple times, do the same. She also testified that hundreds .of attendance records were falsified. Program manager Tesse Graham resigned because twice she was ordered to go through instructor grade books and increase grades below 70%. Instructors Linda Glover, Mindy Hattey, Rena Keller, and Territa Smith, as well as administrator Jenny Caruso, stated that administrators awarded attendance when a student was not in class and did not complete work in makeup time. Glover identified several students whose grades were increased without her knowledge, and Territa Smith said an administrator routinely asked her to increase grades from failing to passing (which she did a couple of times). Relators argue that the pre- and post-PPA pattern of altered records indicates Heritage intended to manipulate Title IV funding. Heritage denies this intent, but offers no other reason for changing the records.

Third, Relators point to evidence that Heritage aimed to maximize its Title IV funding. One instructor testified that, between September 2007 and September 2009, Hei’itage administrators “made it clear in a couple of staff meetings that basically they were receiving funds from the federal government for every butt that was in the seat and it was very important that we keep butts in the seat.” Another instructor swore that administrators explicitly linked student attendance and financial aid, and that retention efforts (including daily calls from multiple Heritage employees) were geared toward getting a student through, 60% of the program so the student would not lose financial aid. (No refunds to DOE are required if a student completes .60% of the program.) In 2009 and 2010, Miller heard administrators discuss “the importance of retaining students as long as possible in order to receive the maximum amount of federal student loan funds” and that “the goal was to keep students long enough to grab the entire amount of tuition paid for by their federal student loan funds.”

Based on this evidence, a reasonable jury could find that Heritage knew it had to keep accurate grade and attendance records and intended not to do so. True, that none of the identified altered records impacted Title IV disbursements or refunds undermines Relators’ evidence of intent. So does the fact that most of Relators’ examples of altered records come after the signing of the. PPA. But at summary judgment this court examines whether there is a genuine issue of material fact; it does not weigh the evidence or decide credibility. Tolan, 134 S.Ct. at 1866. Viewed favorably to Relators, Heritage’s policy and its agreement to comply with certain Title IV regulations show that it knew that accurate grade and attendance records were necessary to administer funds; it had a pattern of altering records, both before and after signing the PPA; and it aimed to maximize Title IV funds. See id. at 1866, 1868 (noting evidence and reasonable inferences are viewed in favor of nonmoving party). The district court acknowledges that Relators’ evidence “gives rise to the possibility that some of the inaccurate attendance hours were recorded in order to delay the student’s effective withdrawal date, and thereby increase the amount of federal aid that Heritage could retain.” There is a dispute of material fact whether, when signing the PPA, Heritage intended to manipulate its records in order to impede the proper administration of funds, and thus whether Heritage made a false promise to the DOE.

The district court found otherwise because “Heritage did not explicitly promise to prohibit administrators from changing student grades or to only award grades given by instructors. Nor did Heritage promise to maintain perfect attendance records that, in every instance, are based on the student’s physical presence in the classroom.” Relators cite no regulation establishing specific attendance or grading policies. But the grade and attendance records Heritage kept are “necessary to ensure the proper and efficient administration of funds”: They determine eligibility (and .thus disbursements) and refunds. See 34 C.F.R. §§ 668.34 (noting GPA determines SP, which determines eligibility), 668.22(b) (setting withdrawal date as “last date of academic attendance as determined by the institution from its attendance records”). While not every grade or day of attendance impacts funding, the DOE cannot determine whether funds were properly administered if records are inaccurate. Heritage, for the purpose of this appeal, does not dispute that it falsified these records. It does not argue that it acted in accordance with legitimate grade and attendance policies, or only falsified records that could not impact Title IV funding. Because there is a dispute of material fact about how Heritage understood its obligations and whether it intended to comply with the PPA, the district court erred in granting summary judgment.

B.

Heritage asserts that the falsified grade and attendance records did not cause improper disbursement or retention of Title IV funds, and thus were not material to government funding decisions. The district court agreed that any false statement by Heritage about recordkeeping was not material.

A false statement or record is “material” for FCA purposes if either (1) a reasonable person would likely attach importance to it or (2) the defendant knew or should have known that the government would attach importance to it. See United Health Servs., Inc. v. United States ex rel. Escobar, — U.S. -, 136 S.Ct. 1989, 2002-03, 195 L.Ed.2d 348 (2016). “[W]hen evaluating materiality under the False Claims Act, the Government’s decision to expressly identify a provision as a condition of payment is relevant, but not automatically dispositive.” Id, at 2003. Under Escobar, a false promise to comply with express conditions is material if it would affect a reasonable government funding decision or if the defendant had reason to know it would affect a government funding decision.

Heritage focuses on the link between individual falsified records and specific Title IV disbursements or refunds. This focus conflates theories of liability, and ignores Baycol and cases from the other circuits. As noted, fraudulent inducement examines the false statements that induced the government to enter the contract— liability for the specific claims for payment attaches “so long as the original contract was obtained through false statements or fraudulent conduct.” Baycol, 732 F.3d at 875-76 (rejecting that plaintiff must tie “allegations of [defendant’s] fraud to specific fraudulent claims for payment,” and attaching liability to every claim submitted under fraudulently induced contract). Accord United Techs. Corp., 626 F.3d at 320; Longhi, 575 F.3d at 468; Hendow, 461 F.3d at 1173; Main, 426 F.3d at 916; Harrison, 176 F.3d at 788. Materiality depends on whether Heritage’s promise to maintain accurate grade and attendance records influenced the government’s decision to enter into its relationship with Heritage.

Construing the evidence most favorably to Relators, Heritage’s promise influenced the government’s decision. The government expressly conditioned Heritage’s participation in Title IV on compliance with the recordkeeping requirement. While conditioning is not “automatically dispositive” of materiality, it is “relevant” to materiality. See Escobar, 136 S.Ct. at 2003. Here, the government imposed the condition in three ways. First, to be eligible for Title IV an institution “shall” enter into a PPA that “shall condition the initial and continuing eligibility of an institution to participate in a program upon compliance with” certain requirements, including that the “institution will establish and maintain such administrative and fiscal procedures and records as may be necessary to ensure proper and efficient administration of funds.” 20 U.S.C. § 1094(a) (emphases added).

Second, a federal regulation specifies:

An institution may participate in any Title IV, HEA program ... only if the institution enters into a written program participation agreement with the Secretary .... A program participation agreement conditions the initial and continued participation of an eligible institution in any Title IV, HEA program upon compliance with the provisions of this part [including maintaining records necessary to ensure proper and efficient administration of funds].

34 C.F.R. § 668.14(a)(1), (b)(4) (emphases added). Third, the PPA incorporates the same recordkeeping requirement: “The execution of this Agreement by the Institution and the Secretary is a prerequisite to the Institution’s initial or continued participation in any Title IV, HEA Program.” (emphasis added).

In addition to this triple conditioning, the significance of the requirement and the government’s acts show that the record-keeping promise was material. Heritage promised to “maintain such ... records as may be necessary to ensure proper and efficient administration of funds.” A reasonable person would attach importance to a promise to do what is necessary to ensure funds go where they are supposed to go. See Escobar, 136 S.Ct. at 2002-03, quoting Restatement (Second) of Torts § 538, at 80. The government’s acts confirm that it cares about the promise at issue: The DOE relies on school-maintained records to monitor regulatory compliance. See, e.g., LA LAN 2000 Comput. Training Ctr., U.S. Dep’t of Educ., No. 0550SP, 2010 WL 3514127, at *2-4 (Aug. 20, 2010); DeMarge Coll., U.S. Dep’t of Educ., No. 0439SP, 2009 WL 2906470, at *4-5 (July 31, 2009). When colleges do not adhere to this promise, there are consequences. As Relators argue (and Heritage admits for purposes of summary judgr ment), the DOE sometimes terminates otherwise eligible institutions for falsifying student attendance and grade records. The government’s reliance on colleges’ accurate recordkeeping shows the importance of Heritage’s initial promise to maintain accurate records. For purposes of summary judgment, Heritage’s promise to keep accurate records was material.

To the extent Heritage asserts that its statements, even if false, did not cause any actual harm, this is not an element of materiality. See Baycol, 732 F.3d at 877 (not requiring proof that fraudulently induced contract caused government to pay more for pills than it would have otherwise). See also id. at 880-81 (Loken, J., dissenting) (discussing when damages are warranted); United States ex rel. Feldman v. van Gorp, 697 F.3d 78, 87-88, 91, 93 (2d Cir. 2012) (finding false statements material to grant renewals, and addressing government’s receipt of qualitatively different program under damages); United Techs. Corp., 626 F.3d at 320, 322 (finding false statements material but noting government is not entitled to damages if it received fair market value); Longhi, 575 F.3d at 472-73 (finding liability for fraudulently induced grant even though defendant produced satisfactory product, and awarding as damages the full amount paid). Cf. United States ex rel. Sanders v. Am.-Amicable Life Ins. Co. of Tex., 545 F.3d 256, 259 (3d Cir. 2008) (“[A] party can be subject to FCA liability (i.e. civil penalties) even where the government suffers no monetary injury.”); Harrison, 176 F.3d at 785 n.7 (“[T]here is no requirement that the government have suffered damages as a result of the fraud.”). The court erred in ruling Heritage’s promise was not material to the government’s disbursement decisions.

III.

Miller claims that Heritage retaliated against her in four ways: (1) exclusion from meetings, (2) demotion, (3) docking of Saturday pay, and (4) withdrawal of an offer for a career services position. The district court granted summary judgment to Heritage, finding that Miller failed to prove it engaged in retaliatory conduct.

The FCA provides a cause of action to an employee that is “discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee ... in furtherance of an [FCA] action.” 31 U.S.C. § 3730(h) (providing for reinstatement, backpay, and special damages for retaliated-against employee). “[A] plaintiff must prove that (1) the plaintiff was engaged in conduct protected by the FCA; (2) the plaintiffs employer knew that the plaintiff engaged in the protected activity; (3) the employer retaliated against the plaintiff; and (4) the retaliation was motivated solely by the plaintiffs protected activity.” Schuhardt v. Washington Univ., 390 F.3d 563, 566 (8th Cir. 2004).

The district court did not err in finding that Heritage’s actions were not retaliatory. Although one meeting was held without Miller’s knowledge, the subject of the meeting was not part of her job arid she concedes she was not excluded. Miller’s claim that she was denied Saturday pay is speculative: It is based on a single day when Miller cannot recall if she was paid or not. This is insufficient to support a claim for retaliation.

Miller asserts she was demoted because she was told by two Heritage administrators that she would no longer be a program manager and should focus on getting her degree. Shortly after this conversation, the vice president assured Miller that it was “not true,” there would be no change in her position, and she did not need a degree. The district court noted that Miller was not demoted: Her salary and her job responsibilities did not change, and no demotion was formalized or put in writing. Miller argues that even if she was not demoted, being told that she would be is still retaliation—presumably as a “threat[]” or “harass[ment].” Miller does not explain why this qualifies as a threat or harassment when she was soon told she would not be demoted and experienced no adverse impact (for example, no decrease in pay).. Miller argues that Heritage failed to prove her job was not taken away, but the burden is on Miller to show retaliatory conduct. See Schuhardt, 390 F.3d at 566.

Miller also claims that Heritage offered her a new position with career services, but withdrew the offer after she complained about fraud. Miller fails to explain, and cites no authority, that this constitutes harassment or discrimination in the terms of conditions of employment. Although she seems to dispute that this would have been a lateral move, Miller argues no advantages or increase in salary for the career services position. She asserts that without the career services position, she effectively had no job. As discussed, however, she has not demonstrated she was removed as program manager. The district court properly dismissed Miller’s retaliation claim based on her failure to demonstrate retaliatory action by Heritage.

IV.

Miller-and Sillman both claim that they were wrongfully discharged. Missouri recognizes a “very narrowly drawn” public policy exception to at-will employment. Frevert v. Ford Motor Co., 614 F.3d 466, 471 (8th Cir. 2010), quoting Margiotta v. Christian Hosp. Ne. Nw., 315 S.W.3d 342, 346 (Mo. banc 2010). “An at-will employee may not be terminated for refusing to perform an illegal act or reporting wrongdoing or violations of law to superiors or third parties.” Margiotta, 315 S.W.3d at 346.

A.

Miller claims she was constructively discharged. She resigned on January 7, 2011. “Constructive discharge occurs when an employer deliberately renders an employee’s working conditions so intolerable that the employee is forced to quit his or her job.... [T]he working conditions must be such that a reasonable person would find them intolerable.” Wallingsford v. City of Maplewood, 287 S.W.3d 682, 686 (Mo. banc 2009) (internal quotation marks omitted), citing Gamber v. Mo. Dep't of Health & Senior Servs., 225 S.W.3d 470, 477 (Mo. App. 2007). Constructive discharge “requires more than a single incident; rather, the claim requires proof of a continuous pattern of discriminatory treatment.” Id.

A reasonable person would not find Miller’s working conditions intolerable: She was not demoted, did not receive a reduction in salary, was not excluded from meetings, and did not lose any job responsibilities. There is no evidence she would have experienced these actions had she not resigned. While Miller was denied the career services position, she does not explain why this creates objectively intolerable working conditions. See Gamber, 225 S.W.3d at 479 (finding that informing plaintiff of inability to transfer to another county did not render conditions intolerable). The district court did not err in dismissing Miller’s wrongful discharge claim.

B.

Heritage terminated Sillman on December 27, 2010. Sillman claims she was wrongfully discharged because she reported misconduct. The district court found Sillman failed to demonstrate that the reported misconduct violated any law or clear public policy.

To demonstrate wrongful discharge, a plaintiff “must show that he reported to superiors or to public authorities serious misconduct that constitutes a violation of the law and of well established and dearly mandated public policy.” Frevert, 614 F.3d at 471, quoting Margiotta, 315 S.W.3d at 347. The reported violation must be based on “explicit authority” such as “a constitutional provision, a statute, a regulation based on a statute or a rule promulgated by a governmental body.” Id., quoting Margiotta, 315 S.W.3d at 346. “[I]t must’affirmatively appear from the face of the petition that the legal provision in question involves a clear mandate of public policy.” Id. (internal quotation marks omitted). “A vague or general statute, regulation, or rule cannot be successfully pled under the at-will wrongful termination theory, because it would force the court to decide on its own what public policy requires,” Margiotta, 315 S.W.3d at 346. See also Fleshner v. Pepose Vision Inst., P.C., 304 S.W.3d 81, 96 (Mo banc. 2010) (“Public policy is not to be determined by the varying personal opinions and whims of judges or courts .... ” (internal quotation marks omitted)).

Sillman sent a letter .to Heritage on December 16, 2010, reporting that Heritage was failing to “return any remaining financial aid funds over to students” and failing to “tell the students they exist.” The letter claimed that this “goes beyond innocent mistakes and crosses the line into student loan fraud that may get someone in very bad trouble.” (The letter reported three other purportedly unlawful practices, which Sillman does not discuss on appeal:) The letter did not address falsification of grade or attendance records.

Heritage argues that Sillman links the reported misconduct to legal violations for the first time on appeal. But Sillman’s complaint cited numerous “explicit authorities].” Frevert, 614 F.3d at 471. On appeal, Sillman points to 34 C.F.R. § 668.14(b)(25) (2010), which provides that an institution is liable for “[i]m-properly spent or unspent funds,” and § 668.82(a)-(b), which provides that an institution is a fiduciary subject to “the highest standard of care and diligence.” These provisions do not involve clear public policy: Both offer only general standards. Compare Margiotta, 315 S.W.3d at 348 (finding regulation providing “patient has the right to receive care in a safe setting” is too vague to support clear public policy), with Boyle v. Vista Eyewear, Inc., 700 S.W.2d 859, 876 (Mo. App. 1985) (requiring eyeglasses manufacturers to harden and test eyeglasses mandates clear public policy). Further, Sillman has not shown how the reported misconduct violates these two regulations. See Bazzi v. Tyco Healthcare Grp., 652 F.3d 943, 948 (8th Cir. 2011) (noting public policy exception does not extend to “complaints about acts or omissions [plaintiff] subjectively believes to be violations of the law or public policy”).

Sillman argues that there “should be no doubt that stealing student loan money is serious misconduct that violates the law and public policy.” She points to 34 C.F.R. § 668.14(b)(1) (2010), which requires compliance with all relevant statutes and related regulations of Title IV. It is insufficient to claim “theft” or violation of unspecified Title IV regulations, and § 668.14(b)(1) is too vague to support clearly mandated public policy. See Frevert, 614 F.3d at 471-72, citing Link v. K-Mart Corp., 689 F.Supp. 982, 985 (W.D. Mo. 1988) (finding references to “theft” without “implicatfing]” any statute are insufficient to establish clear public policy), and Adolphsen v. Hallmark Cards, Inc., 907 S.W.2d 333, 338 (Mo. App. 1995) (holding violation of “federal safety regulations” without specifying which ones is insufficient). The Dunn v. Enterprise case relied upon by Sillman does not suggest otherwise, as the plaintiff there relied upon specific regulations detailing the form and content of filings with the Securities and Exchange Commission. Dunn v. Enter. Rent-A-Car Co., 170 S.W.3d 1, 8 (Mo. App. 2005) (finding Securities Act of 1933 and Securities Exchange Act of 1934 establish clearly mandated public policy). The district court did not err in dismissing Sillman’s wrongful discharge claim.

⅜ # * * ⅜ * #

The judgment is reversed in part and affirmed in part, and the case remanded for proceedings consistent with this opinion.

      . Except where otherwise noted, all citations are to Title IV statutes and regulations- in effect when Heritage signed the PPA in Feb-ruaiy 2009. Citation to the FCA is to the current version, except where otherwise noted.

      . Relators argue falsification of records is inconsistent with Heritage’s fiduciary duty to administer Title IV funds with "the highest standard of care and diligence.” 34 C.F.R. § 668.82. However, Relators fail to argue how Heritage’s knowledge of this general duty shows Heritage's pre-PPA knowledge and intent for the types of alterations made here. Relators also point to several statements of fact that were uncontroverted on summary judgment. These statements reflect Heritage’s current litigation position and do not reveal Heritage's pre-PPA knowledge or policies.

      . In May 2009, Congress amended the relevant FCA provision. Previously, a person was liable for knowingly making a false statement "to get a false or fraudulent claim paid or approved by the Government.” 31 U.S.C. § 3729(a)(2) (2006) (amended 2009). Now, a person is liable for knowingly making a false statement "material to a false or fraudulent claim.” § 3729(a)(1)(B), 123 Stat. 1617, 1621 (2009). The amended statute applies to conduct after the date of amendment, except that § 3729(a)(1)(B) applies' to claims pending on or after June 7, 2008. § 3729 note (Effective Date of 2009 Amendment), 123 Stat. at 1625. Both versions require materiality. See Vigil, 639 F.3d at 799, Heritage suggests that this case is governed by the pre-amendment case law on materiality. Escobar makes clear that the FCA’s materiality requirements are similar throughout. See Escobar, 136 S.Ct. at 2002-03 (declining to resolve whether an FCA .materiality requirement was governed by statute or common law because identical principles applied). Heritage's recordkeeping promise' in the PPA is material under either the pre- or post-amendment standard,

      . In her statement of facts and discussion of wrongful discharge, Miller also asserts that she was threatened with termination. Miller does not provide any detail of this alleged threat—for example, who made it, when it was made, and what was said—or cite to the record.

      . To establish the standard for retaliatory conduct, Miller cites a Ninth Circuit case holding that an employer's action is not retaliation under the FCA unless it would be an adverse action under Title VII. See Moore v. Cal. Inst. of Tech. Jet Propulsion Lab., 275 F.3d 838, 847-48 (9th Cir. 2002). This court has cited Title VII case law when examining FCA retaliation. See, e.g., Townsend v. Bayer Corp., 774 F.3d 446, 457 (8th Cir. 2014), citing Torgerson, 643 F.3d at 1046. But Miller cites no case where this court adopts the Title VII standard for FCA retaliation claims. Miller also fails to explain how Heritage’s actions are adverse actions under Title VII.

      . This court does not consider 34 C.F.R. § 685.309(g), which was not in Sillman’s complaint or raised before the district court. See Holland v. Sam’s Club, 487 F.3d 641, 644 (8th Cir. 2007) (noting this court ordinarily does not consider arguments raised for the first time on appeal).


author: ARNOLD, Circuit Judge.

text:
    Ryan FERGUSON, Plaintiff-Appellee v. John SHORT, Detective; Jeff Nichols, Detective; Jeff Westbrook, Detective; Bryan Liebhart, Detective; Latisha Stroer, Detective; Lloyd Simons, Detective, Defendants-Appellants
    No. 15-2857
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 21, 2016
    Filed: October 19, 2016

      Bradley C. Letterman, Schreimann, Raekers, Francka & Blunt, L.L.C., Jefferson City, MO, argued (Christopher P. Raekers, on the brief), for appellants.
    Kathleen T. Zellner, Kathleen T. Zellner & Associates, P.C., Downers Grove, IL, argued (Samuel Henderson, St. Louis, MO, on the brief), for appellee.
    Before WOLLMAN, ARNOLD, and KELLY, Circuit Judges.
   ARNOLD, Circuit Judge.

This case is about an allegedly improper investigation into the murder of Kent Heitholt. The murder went unsolved for two years until Charles Erickson caught the attention of the detectives working the case. After implicating himself and Ryan Ferguson in the killing, EricksOn pleaded guilty to second-degree murder and first-degree robbery and agreed to testify against Ferguson at Ferguson’s murder trial. A jury convicted Ferguson of second-degree murder and first-degree robbery based largely on Erickson’s testimony. More than five years later, the Missouri Court of Appeals vacated Ferguson’s convictions because the government had withheld exculpatory evidence from him, undermining the outcome of his criminal trial. See Ferguson v. Dormire, 413 S.W.3d 40, 73 (Mo. Ct. App. 2013).

Ferguson now sues several detectives who investigated the murder. He contends that they destroyed or suppressed exculpatory evidence, in violation of his right to procedural due process under the Fourteenth Amendment; fabricated evidence and recklessly or intentionally failed to investigate the murder, in violation of his right to substantive due process under the Fourteenth Amendment; and conspired to deprive him of his constitutional rights. He also asserts state-law claims for malicious prosecution and false arrest.

The detectives moved for summary judgment, which the district court granted in part and denied in part. The district court granted summary judgment for the detectives on Ferguson’s procedural due-process claim and on one aspect of his substantive due-process claim based on the fabrication of evidence. Ferguson does not challenge these determinations here; rather, the detectives filed this interlocutory appeal, challenging the district court’s denial of their motion for summary judgment.

Ferguson moves to dismiss this appeal for lack of jurisdiction. We ordinarily lack jurisdiction over an interlocutory appeal challenging the denial of a motion for summary judgment, Van Wyhe v. Reisch, 581 F.3d 639, 647 (8th Cir. 2009), but we have jurisdiction when summary judgment is denied on the issue of qualified immunity. Mallak v. City of Baxter, 823 F.3d 441, 445 (8th Cir. 2016). Qualified immunity shields government officials from liability unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would know. Id. Jurisdiction over these interlocutory appeals reaches only to issues of law, Aaron v. Shelley, 624 F.3d 882, 883 (8th Cir. 2010); where the order below turns on issues of fact rather than abstract issues of law, we lack jurisdiction. For example, we lack jurisdiction to review the denial of summary judgment based on the pretrial record showing a genuine dispute of material fact on a qualified-immunity issue. Johnson v. Jones, 515 U.S. 304, 307, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995).

Courts must resolve the matter of qualified immunity as soon as possible or the party claiming it will be deprived of its benefit—immunity from suit. Payne v. Britten, 749 F.3d 697, 700 (8th Cir. 2014), Government officials claiming qualified immunity are entitled to a thorough examination of their defense. We therefore have jurisdiction to review reasoned denials of qualified immunity and failures or refusals to rule on qualified immunity. When the district court fails to rule on qualified immunity, we will remand the case to the district court to decide the qualified-immunity question. Id, at 701.

The parties dispute whether the detectives’ appeal involves qualified immunity. Indeed some of the 19 points that the detectives raise on appeal involve issues unrelated to qualified immunity, which we cannot review. For example, we lack jurisdiction under Johnson to review whether “Ferguson failed to present sufficient evidence to show he was deprived of a constitutional right or that [the detectives] reached an agreement to deprive him of his constitutional rights.” But we usually do not throw the baby out with the bathwater when an interlocutory appeal raises both reviewable qualified-immunity questions and unreviewable ones. See, e.g., White v. McKinley, 519 F.3d 806, 812-13 (8th Cir. 2008). Some of the points raised here do, at least on their surface, raise qualified-immunity issues.

Ferguson is correct that the detectives cannot save their interlocutory appeal simply by framing their arguments in terms of qualified immunity. Austin v. Long, 779 F.3d 522, 524 (8th Cir. 2015). But instead of classifying the multiple points on appeal as either wheat or chaff, we resolve this case on the ground that we simply lack an order denying a motion for summary judgment on qualified-immunity grounds. The district court issued a thorough 62-page opinion resolving the motion for summary judgment, but qualified immunity made only a brief cameo appearance in one paragraph at the beginning of the opinion’s discussion section. In that paragraph, the district court set out the broad principles of qualified immunity; nowhere were these principles, in this paragraph or elsewhere in the opinion, applied to the facts. The opinion reads like an ordinary summary-judgment ruling, determining if there are factual disputes and resolving legal points unrelated to qualified immunity. We are therefore unable to construe this order as one from which an interlocutory appeal can lié.

Ferguson asks us simply to dismiss this appeal, arguing that the detectives failed to raise and preserve the qualified-immunity issue in the district court altogether and only now couch their appeal in terms of qualified immunity to ensure our jurisdiction. We are unwilling to go that far. References to qualified immunity are peppered throughout the detectives’ suggestions in support of their motion for summary judgment. In fact, the first numbered paragraph in the detectives’ two-page motion for summary judgment says, “Summary Judgment is also appropriate on the basis of qualified immunity.” So this is not a situation where the detectives raise an argument only in an inconspicuous footnote. Cf. Equip. Mfrs. Inst. v. Janklow, 300 F.3d 842, 848 n.2 (8th Cir. 2002).

Since we conclude that the detectives raised the'qualified-immunity issue on the face of the papers, we remand the case to the district court for consideration of the motion for summary judgment on the basis of qualified immunity. In considering that motion, the district court of course can decide as a preliminary matter whether the detectives discussed the issue of qualified immunity in sufficient detail and with sufficient citations to undisputed record evidence to enable the district court to rule on the matter. See Jones v. United Parcel Serv., Inc., 461 F.3d 982, 990 (8th Cir. 2006). If it determines that the detectives did so, the distinct court can then enter an explicit order and judgment on the matter one way or the other. If it determines that the detectives did not do so, the district court can proceed to resolve the case in the ordinary course and may consider any motions by the detectives as may be consistent with any scheduling orders that the district court deems applicable.

We deny the motion to dismiss the appeal and remand the case to the district court.