author: PAMELA HARRIS, Circuit Judge:

text:
    BALFOUR BEATTY INFRASTRUCTURE, INC., Plaintiff-Appellant, v. MAYOR AND CITY COUNCIL OF BALTIMORE, Defendant-Appellee.
    No. 16-1322
    United States Court of Appeals, Fourth Circuit.
    Argued: January 25, 2017
    Decided: April 25, 2017

      ARGUED: Gregory S. Martin, MARTIN HILD, P.A., Maitland, Florida, for Appellant. Patrick Donald Sheridan, BALTIMORE CITY DEPARTMENT OF LAW, Baltimore, Maryland, for Appellee. ON BRIEF: Lucas F. Webster, HUDDLES, JONES, SORTEBERG & DAC-HILLE, P.C., Columbia, Maryland, for Appellant. Thomas P.G. Webb, Assistant Solicitor, BALTIMORE CITY DEPARTMENT OF LAW, Baltimore, Maryland, for Appellee.
    Before GREGORY, Chief Judge, and THACKER and HARRIS, Circuit Judges.
   PAMELA HARRIS, Circuit Judge:

Balfour Beatty Infrastructure, Inc. (“BBII”) sued the City of Baltimore for breach of contract, alleging that the City unlawfully assessed liquidated damages against the company for failure to complete a construction project on time. The issue in this appeal is whether BBII must exhaust its administrative remedies against the City before suing in federal court. We agree with the district court that BBII is not excused from the normal requirement of administrative exhaustion under Maryland law, and therefore affirm the district court’s dismissal for lack of subject matter jurisdiction.

I.

A.

This case involves two public works contracts entered into by the City of Baltimore and BBII, under which BBII agreed to build certain parts of a wastewater treatment system aimed at reducing pollution in the Chesapeake Bay. The contracts stipulate that “[t]ime is of the essence,” J.A. 72, 75, and BBII committed to completing its work by February 28, 2015. If it did not, then the City would have the right to assess liquidated damages for each day past the deadline, by withholding a portion of its monthly payments to BBII.

The contracts also incorporate provisions for the resolution of claims and disputes, which require BBII to seek administrative review of any dispute related to its contracts with the City before suing in court. Those provisions are grounded in the City’s Charter, which authorizes the City to establish an administrative process for the resolution of disputes arising from City construction contracts. See Charter of Baltimore City, art. II, § 4(A)(g) (2002 revision). Pursuant to that authority, the City has provided for an administrative dispute resolution process that governs all claims by contractors related to public works projects, set forth in the City’s “Department of Public Works Specifications— Materials, Highways, Bridges, Utilities and Incidental Structures 2006,” generally known as the “Green Book.”

Neither party disputes that the Green Book dispute resolution process is incorporated into the contracts at issue here. Under that dispute resolution process, a contractor is required to give “prompt notice” of any claim or dispute to the Department of Public Works engineer assigned to its project. J.A. 99. That engineer, along with the project’s inspector and division head, is charged with initial review of the claim, with the contractor responsible for providing any additional information requested by the City. If the contractor chooses to appeal, then review proceeds up through a Department of Public Works bureau head and, if the contractor remains dissatisfied, to ultimate review by the Director of Public Works, who acts as a hearing officer during an on-the-record administrative hearing and issues a final decision. At that point - and only at that point — the contractor may bring its claim to a “court of competent jurisdiction.” J.A. 101.

B.

During the course of its work on the wastewater treatment system, BBII ran into what it calls a “series of design errors, omissions and inconsistencies” on the part of the City that made it impossible to finish the project by the February 28, 2015 deadline. J.A. 11. On March 2, 2015, two days after the deadline had expired and before final action on several BBII extension requests, the City informed BBII that it would exercise its contractual right to assess liquidated damages at the rate of $20,000 per day on each contract, until the projects were completed. The City then began to deduct $40,000 per day from its monthly payments to BBII.

BBII bypassed the administrative process incorporated into its contracts with the City and went directly to federal court to file this suit. Naming as defendants the Mayor and City Council of Baltimore (“the City”), BBII alleged that the City had materially breached its contracts with BBII by declaring BBII in default and assessing liquidated damages without first pursuing its own claims through the administrative dispute resolution process and affording BBII an administrative hearing. According to BBII, the City’s actions amounted to an illegal and ultra vires “abandonment” of the Green Book administrative process, relieving BBII of any obligation to use that process itself. J.A. 366.

The district court disagreed, and held that BBII was required to exhaust the administrative remedies provided for by its City contracts. The court began by describing Maryland law’s “strong preference for administrative exhaustion,” J.A. 362 — a preference, it noted, that is consistent with federal law, as well. Under Maryland law, the court explained, it is well established that “[wjhere an administrative agency has primary or exclusive jurisdiction over a controversy, the parties to the controversy must ordinarily await a final administrative decision before resorting to the courts for resolution of the controversy.” J.A. 363 (quoting Heery Int’l, Inc. v. Montgomery Cty., Md., 384 Md. 129, 862 A.2d 976, 981 (2004)). And that general principle, the court determined, governs this case, where the Green Book provisions incorporated into BBII’s contracts “mandate[] that the prescribed administrative procedures are the exclusive procedures for the prosecution and resolution of all claims and disputes.” J.A. 365 (internal quotation marks omitted).

The district court recognized that the exhaustion requirement applies only where the agency designated to hear a dispute actually has “jurisdiction over [the] controversy,” Heery, 862 A.2d at 981—or, correspondingly, that there is an exception to the exhaustion requirement when the “reviewing agency is ‘palpably without jurisdiction’ ” to adjudicate a party’s claim. J.A. 365 (quoting Heery, 862 A.2d at 989). That exception, the district court explained, also “requires a complaining party to plead an ‘irreparable injury’ if it is forced to navigate the prescribed administrative process.” J.A. 365-66 (quoting Heery, 862 A.2d at 989). Because BBII could show neither that the City officials designated to review its contract dispute are “palpably without jurisdiction” to do so, nor that it would be irreparably damaged if required to postpone litigation until completion of the.administrative process, the court concluded, the exception does not apply.

Whether the City acted unlawfully by assessing liquidated damages without first engaging in the Green Book administrative process, as alleged by BBII, is a different question, the court explained — and precisely the kind of regulatory interpretation issue that “should be decided administratively before proceeding to judicial review” under Maryland law. J.A. 367 (citing Heery, 862 A.2d at 986). Even assuming, as BBII argued, that the City acted without authority in taking liquidated damages absent administrative review, that would not excuse BBII from exhausting its administrative remedies: Maryland courts have not adopted an exception to exhaustion for cases in which “the act of an administrative agency is alleged to be ultra vires or illegal.” J.A. 368 (quoting Soley v. State Comm’n on Human Relations, 277 Md. 521, 356 A.2d 254, 258 (1976)).

Finally, the district court rejected BBII’s claim that it need not exhaust its administrative remedies because the City employees who would review its claims are biased against BBII and naturally predisposed to favor the City’s own positions. If that were so, the court reasoned, then an administrative agency involved in a dispute could never require exhaustion of administrative remedies — undermining a “fundamental purpose” of exhaustion, the “protection of an administrative agency’s authority to interpret its own regulations, statutes, and other guidelines.” J.A. 370 (quoting Fru-Con Constr., LLC v. Mayor of Baltimore, No. RDB-14-434, 2014 WL 6675625, at *6 (D. Md. Nov. 24, 2014)).

Because BBII failed to exhaust its administrative remedies, the district court dismissed its action against the City for lack of subject matter jurisdiction. This timely appeal followed.

II.

This Court reviews de novo a district court’s dismissal for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Pitt Cty. v. Hotels.com, L.P., 553 F.3d 308, 311 (4th Cir. 2009). A Rule 12(b)(1) motion to dismiss should be granted “only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Evans v. B.F. Perkins Co., a Div. of Standex Int’l Corp., 166 F.3d 642, 647 (4th Cir. 1999) (internal quotation marks omitted).

We agree with the district court that on the undisputed record facts and as a matter of law, BBII was required to exhaust its contractual administrative remedies before filing this action in federal court. BBII’s principal argument to the contrary is that it was excused from administrative exhaustion under Maryland law because the “City acted ‘palpably without jurisdiction’ in taking liquidated damages against BBII without first following the contractual dispute resolution procedure.” Br. of Appellant at 2. But that position reflects a fundamental misunderstanding of the “palpably without jurisdiction” exception to the exhaustion requirement under Maryland law.

As the district court explained, although Maryland law generally requires that administrative remedies be exhausted before proceeding to court, it admits of an exception when the administrative tribunal charged with considering a party’s claim is “palpably without jurisdiction” to hear and resolve that claim or class of claims. See Heery, 862 A.2d at 985 (administrative agency is “palpably without jurisdiction” for purposes of exhaustion exception where it “lacks a clear authority to adjudicate a given class of claims” designated for exhaustion); see also, e.g., State v. Md. State Bd. of Contract Appeals, 364 Md. 446, 773 A.2d 504, 511 (2001) (“palpably without jurisdiction” exception applies where dispute is pending before adjudicatory administrative agency that does not have jurisdiction to review the matter). It is easy to understand why such ah exception might exist: There is little, if anything, to be gained by insisting that a party take its dispute to a tribunal that lacks the authority to rule on it, or to provide a remedy. See United Ins. Co. of Am. v. Md. Ins. Admin., 450 Md. 1, 144 A.3d 1230, 1249 (2016) (recognizing exhaustion exception “[w]here the administrative agency cannot provide to any substantial degree a remedy”). Indeed, the Supreme Court has observed that exhaustion may be excused as futile when the agency charged with administrative review is not empowered to adjudicate the issue presented or to grant effective relief. See McCarthy v. Madigan, 503 U.S. 140, 147-48, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992), superseded by statute on other grounds, 42 U.S.C. § 1997e(a).

But that exception has no application here. Nobody disputes that BBII’s contracts with the City are public works contracts governed by the Department of Public Works Green Book and its dispute resolution procedures. And as the Green Book makes clear, the Department of Public Works officials charged with administrative review of contractor claims arising from public works contracts have the authority to hear and resolve those claims. See, e.g., J.A. 99-100 (project engineer has discretion to grant extensions on public works projects); J.A. 100 (bureau head has “all of the authority and powers to settle disputes” arising from public works contracts); J.A. 101 (Director of Public Works shall “resolve. any and all claims and/or disputes” under public works contracts). That is all that is required to take this case outside the “palpably without jurisdiction” exception to the normal expectation of administrative exhaustion. See State Bd. of Contract Appeals, 773 A.2d at 511; Heery, 862 A.2d at 985-86.

BBII does not even allege that the relevant agency officials lack the authority to review its breach of contract claims against the City. Instead, it argues that the City lacked authority to deduct liquidated damages from its payments to BBII without first engaging in the Green Book dispute resolution process. But that, as the district court recognized, is an entirely different issue, going to the merits of the underlying dispute between BBII and the City rather than to the “palpably without jurisdiction” exception. BBII reads the Green Book regulations incorporated into its contracts as requiring administrative exhaustion by the City, as well as by contractors; the City disagrees, and construes the contractual dispute resolution process as binding on contractors but not on the City. Under Maryland law, that is precisely the kind of interpretive question that is to be “determined by a final administrative decision and to be judicially reviewed only after the administrative remedy has been exhausted.” Heery, 862 A.2d at 986 (internal quotation marks omitted). Indeed, Maryland’s highest court held just that in Heery, on facts remarkably similar to those before us now, finding that whether Montgomery County’s administrative dispute resolution process governed claims by the County as well as by contractors was a matter to be exhausted before the relevant county agency. Id.

It may well be, as the district court suggested, that the City has the better of the interpretive argument here, and that the Green Book does not require that the City follow its administrative review procedures prior to taking liquidated damages. But we need not reach that question, because as the district court also recognized, the outcome does not matter for purposes of exhaustion. Even assuming that the City is wrong, and that it impermissibly assessed liquidated damages without engaging in the contractual dispute resolution process, that would not relieve BBII from its own obligation to exhaust administrative remedies. The Maryland courts have made clear that even when an interpretive dispute is “phrased in terms of the agency’s ‘authority,’ ‘power’ or ‘jurisdiction’ to take a certain type of action in a specific case,” it must be submitted first to the agency for decision. Id. at 982 (quoting Md. Comm’n on Human Relations v. Mass Transit Admin., 294 Md. 225, 449 A.2d 385, 389 (1982)); see Soley, 356 A.2d at 258 (requiring exhaustion even “where the act of an administrative agency is alleged to be ultra vires or illegal”). Under Maryland law, that is, “[a] party’s argument that an agency will be exceeding its authority if it ultimately ... decides the case contrary to that party’s position[] does not excuse the failure” to exhaust administrative remedies. Heery, 862 A.2d at 982-83 (quoting Mass Transit Admin., 449 A.2d at 389).

Nor need we address the district court’s conclusion that BBII would not suffer “irreparable injury” if required to exhaust administrative remedies, given that an eventual judgment in BBII’s favor would compensate it adequately for any losses. As the district court explained, Heery suggests that the “palpably without jurisdiction” exception requires not only that the designated administrative tribunal clearly lack jurisdiction over the parties’ dispute, but also that involvement in the administrative process would cause “irreparable injury” to the party invoking the exception. See 862 A.2d at 989. Because BBII has not shown or even alleged that the Department of Public Works lacks jurisdiction over its breach of contract claim, we have no occasion to further explore this other aspect of Maryland’s exhaustion exception or its application to this case.

Finally, like the district court, we find no merit to BBII’s argument that it is excused from exhaustion because the City has predetermined the outcome of the administrative proceeding. Again, we need not decide whether and under precisely what circumstances Maryland law provides for a “bias” exception to the general requirement of administrative exhaustion. Here, BBII has failed to allege any facts showing “bias” on the part of the City that would render inadequate BBII’s administrative remedies. BBII points to a letter from the Department of Public Works expressing concern about the status and timeliness of BBII’s work, but that does not bear on whether the City has predetermined the outcome of BBII’s legal claim regarding the City’s obligations under the Green Book’s administrative review process. And as the district court observed, if BBII’s theory that City officials inevitably will be “predisposed” to favor the City’s position was enough to excuse exhaustion, the “bias” exception would swallow the rule: Under no circumstances could a government agency require that its own officials or tribunals be given the first opportunity to address a claim against it. BBII’s conclusory allegation of “bias,” without more, does not entitle it to bypass the administrative dispute resolution process for which it contracted.

III.

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

AFFIRMED.

      . The City originally contracted with Fru-Con Construction Corporation, which assigned its contract to Fru-Con Construction, LLC, which in turn merged into Balfour Beatty Infrastructure, Inc. For ease of reference, we refer to all three as BBII.

      . This is not the first time that BBII has sued the City for breach of contract without first exhausting its administrative remedies. As the district court noted, it has once before dismissed an action by BBII arising out of a City contract for failure to exhaust the administrative procedures set out in the City's standard public works contract. See Fru-Con Constr., LLC v. Mayor of Baltimore, No. RDB-14-434, 2014 WL 6675625, at *6 (D. Md. Nov. 24, 2014).


source: Caselaw Access Project

author: KING, Circuit Judge:

license: Public Domain

text:
    Daniel Jorge CASTENDET-LEWIS, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
    No. 15-2484
    United States Court of Appeals, Fourth Circuit.
    Argued: January 24, 2017
    Decided: April 25, 2017

      ARGUED: Michael Robert Huston, GIBSON, DUNN & CRUTCHER LLP, Washington, D.C., for Petitioner. Manuel Alexander Palau, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Terri J. Scadron, Assistant Director, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
    Before GREGORY, Chief Judge, KING, Circuit Judge, and DAVIS, Senior Circuit Judge.
   KING, Circuit Judge:

After pleading guilty to a statutory burglary offense in Virginia, Daniel Jorge Castendet-Lewis — a native of Panama admitted to the United States on a B-2 visitor visa in 2007 — was subjected to so-called “expedited removal proceedings.” The Department of Homeland Security (the “DHS”) initiated those proceedings because Castendet was not lawfully admitted to this country for permanent residence and his burglary offense is, in the DHS’s view, an aggravated felony for purposes of immigration law. Castendet unsuccessfully sought review in the immigration court of the DHS’s aggravated felony determination, petitioned for our review, and then was removed to Panama. Following the DHS’s subsequent cancellation of Castendet’s removal order, the Attorney General moved in this Court to dismiss Castendet’s petition for review. As explained below, we stand by a prior panel ruling denying the Attorney General’s motion to dismiss, and we grant Castendet’s petition for review, vacate the DHS’s order of removal, and remand.

I.

A.

Castendet was born in Panama on February 4,1994. He grew up in Colon, where criminal activities were a substantial part of his life. Castendet’s father, Jorge Daniel Castendet Marcia, was a police officer in the Noriega government. Marcia physically and psychologically abused Castendet, as well as other members of the family. Marcia also trafficked in drugs, accepted bribes, and provided weapons for illegal gangs. One of Castendet’s brothers, Jorge Wilkerson, regularly joined his father in illegal pursuits that included drug trafficking.

Although Marcia did not live with Cas-tendet, various associates of Marcia and Wilkerson — including corrupt police officers and members of a gang called the Cold Coffin Kids — were frequent visitors at Castendet’s family home. They often came there to retrieve items containing illegal drugs. During such visits, Marcia and Wilkerson’s criminal associates occasionally threatened Castendet and other family members. On one occasion, corrupt officers seized tires that Wilkerson had stored on the house balcony — tires that Castendet believed to contain drugs. Those officers threatened to harm Castendet and his family if they divulged what had occurred. Another time, a corrupt officer came to the home seeking electronic speakers in which Wilkerson had concealed drugs. When Castendet told the officer that Wilkerson had removed the speakers from the house, the officer threatened to hurt Castendet.

In 2006, the Cold Coffin Kids shot and killed one of Castendet’s friends, a boy named Jack, while the pair were together walking home from school. Castendet believes that the gang killed Jack because Jack knew of the gang’s activities from staying at Castendet’s house.' The Cold Coffin Kids left Castendet unharmed, but warned him that he “did not see anything, or else.” See A.R. 268.

On April 3, 2007, thirteen-year-old Cas-tendet — along with his mother and younger brother — fled Panama and entered the United States on B-2 visitor visas. For nearly six years, Castendet did well in this country by attending school, joining a church, and spending time with more upstanding family members. Even here, however, criminal elements came to permeate Castendet’s life. When Castendet was eighteen years old, on January 18, 2013, two of his friends — Ryan Rice and Malik Best — broke into the home of a Mrs. McCree in Newport News, Virginia. After pilfering several items, including Nike shoes and three watches, Rice and Best came to Castendet’s home to conceal the stolen goods. The pair “told [Castendet] to come with them” and “see how [McCree] is living.” See A.R. 668. After first declining to accompany Rice and Best to McCree’s house, Castendet gave in to the peer pressure. He went with his friends to McCree’s home and waited while Rice and Best went inside. At some point, Castendet also entered the McCree home and Rice stole a Dell laptop computer from it.

In early 2013, Castendet was arrested and indicted in Newport News for grand larceny and statutory burglary. On July 9, 2013, he pleaded guilty to the statutory burglary offense. See Va. Code § 18.2-91. Pursuant to his plea agreement with the state prosecutor, the grand larceny charge was dismissed. Two months later, on September 4, 2013, the state court sentenced Castendet to five years in prison with all five years suspended, essentially a sentence of time served.

B.

On September 6, 2013, two days after Castendet was sentenced, the DHS initiated its expedited removal proceedings against him. Those proceedings were conducted under 8 U.S.C. § 1228(b), which provides for the expedited removal of an alien not lawfully admitted for permanent residence who has been convicted of an aggravated felony as explained in 8 U.S.C. § 1227(a)(2)(A)(iii). The DHS contended that Castendet was subject to expedited removal because his Virginia statutory burglary offense qualifies as an aggravated felony. That same day, the DHS issued Castendet a Final Administrative Removal Order (the “Removal Order”).

Castendet subsequently requested and received what is called a “reasonable fear interview.” Following that interview, an asylum officer determined that Castendet possessed a reasonable fear of persecution or torture if he was removed to Panama. In January 2014, the asylum officer referred the matter to an immigration judge (an “IJ”) for a withholding-only proceeding. ■ Castendet then filed applications for asylum, withholding of removal, and protection under the Convention Against Torture (the “CAT”). He contended therein that the DHS’s Removal Order was improper, in that his Virginia statutory burglary offense is not an aggravated felony under § 1227(a)(2)(A)(iii).

On August 4, 2014, the IJ denied Cas-tendet’s applications for withholding of removal and protection under the CAT. The IJ also concluded that he lacked jurisdiction to consider Castendet’s asylum application. Additionally, the IJ deemed himself unauthorized to assess Castendet’s challenge to the DHS’s categorization of his burglary offense as an aggravated felony. See Etienne v. Lynch, 813 F.3d 135, 138 (4th Cir. 2015) (concluding that alien in expedited removal proceedings can challenge legal basis for removal in appropriate court of appeals only).

Castendet promptly appealed to the Board of Immigration Appeals (the “BIA”). On January 26, 2015, the BIA ruled that Castendet was not entitled to challenge the legal basis of his removal— i.e., whether his burglary offense qualifies as an aggravated felony — because he had been placed in expedited removal proceedings. The BIA also agreed that the IJ lacked jurisdiction to consider Castendet’s asylum application, but remanded for further consideration of Castendet’s requests for withholding of removal and CAT protection.

At the conclusion of the remand proceedings, on June 22, 2015, a different IJ denied Castendet withholding of removal and CAT relief. Castendet again appealed to the BIA, which on October 27, 2015, again affirmed. On November 25, 2015, Castendet petitioned for our review, and he was thereafter removed to Panama. We possess jurisdiction pursuant to 8 U.S.C. § 1252(a)(1).

C.

On June 17, 2016, six months after removing Castendet to Panama, the DHS cancelled his Removal Order. Three days later, the Attorney General moved to dismiss Castendet’s petition for review, making two contentions. The Attorney General first argued that cancellation of the Removal Order negated the “statutory basis for this Court’s exercise of jurisdiction.” See Motion to Dismiss, Castendet-Lewis v. Sessions, No. 15-2484, at 5 (4th Cir. June 20, 2016), ECF No. 23. Next, he contended that a regulatory provision— § 288.1(d)(2)(iii) of Title 8 of the Code of Federal Regulations—vested the DHS with the authority to cancel the Removal Order.

Castendet opposed dismissal, contending that the DHS “does not have the authority to cancel a final administrative removal order” for the purpose of defeating the jurisdiction of a court of appeals. See Response in Opposition, Castendet-Lewis v. Sessions, No. 15-2484, at 1 (4th Cir. July 15, 2016), ECF No. 28. Castendet argued that we should reject the Attorney General’s “transparent attempt to avoid judicial review in this case.” Id. at 2. He urged us to adhere to an approach taken by the Third Circuit, which recently rejected similar efforts by the DHS to cancel removal orders and then have those cancellations used by the Attorney General to seek dismissal of petitions under review in that court of appeals. See Walker v. Att’y Gen., 625 Fed.Appx. 87, 89 (3d Cir. 2015); Rodriguez-Celaya v. Att’y Gen., 597 Fed.Appx. 79, 81 (3d Cir. 2015).

In September 2016, we denied the Attorney General’s motion to dismiss the petition for review, observing that “we find no authority that would allow the DHS to cancel a final administrative removal order under the circumstances presented in this case.” See Order, Castendet-Lewis v. Sessions, No. 15-2484, at 2 (4th Cir. Sept. 6, 2016), ECF No. 30 (the “Order Denying Dismissal”). The Attorney General nevertheless renewed his dismissal request in his response brief.

II.

We first assess — and deny — the Attorney General’s renewed motion to dismiss. We then proceed to the merits of Casten-det’s petition for review, which contends that his burglary offense is not an aggravated felony. Because we agree with Cas-tendet’s contention, we grant the petition.

A.

We begin with the Attorney General’s renewed request for dismissal of the petition for review. The premise of that request is that we cannot review the Removal Order because the DHS has can-celled it. In his initial motion to dismiss, the Attorney General raised only two contentions in support of dismissal — that we lack jurisdiction to review a removal order cancelled by the DHS, and that

§ 238.1(D)(2)(iii) of Title 8 of the Code of Federal Regulations authorizes the DHS to cancel a removal order. The Attorney General now advances a total of five grounds for dismissal, including the two we already rejected. His three new arguments are that the DHS has prosecutorial discretion to cancel a removal order, the DHS has inherent authority to cancel a removal order, and Castendet’s petition for review is moot in the absence of a removal order.

1.

We need only address one of the Attorney General’s restated contentions. We do not reconsider the ruling of our Order Denying Dismissal that § 238.1(D)(2)(iii) fails to authorize the DHS to cancel the Removal Order, as that ruling is the law of the case. See United States v. Rosen, 557 F.3d 192, 199 (4th Cir. 2009) (explaining that earlier legal ruling is binding through all subsequent stages of proceeding). We again assess the Attorney General’s jurisdictional contention, however, because the law of the case doctrine does not bar us “from revisiting a prior ruling of a motion panel on the Court’s jurisdiction.” See CNF Constructors, Inc. v. Donohoe Const. Co., 57 F.3d 395, 397 n.1 (4th Cir. 1995).

The Attorney General maintains that we lack jurisdiction because a final order of removal does not exist. Our jurisdiction stems from 8 U.S.C. § 1252(a)(1), which provides that a court of appeals may review “a final order of removal.” According to the Attorney General, the DHS’s cancellation of the Removal Order rendered the Removal Order nonexistent and unreviewable. That proposition, however, ignores the facts in these proceedings. The DHS removed Castendet pursuant to the Removal Order, as to which he then sought review. We possessed § 1252(a)(1) jurisdiction when Castendet filed his petition for review. The DHS thereafter cancelled the Removal Order. We know of no authority of the DHS — and none has been presented here — to strip us of jurisdiction in a pending case simply by writing “cancelled” on a removal order the DHS has used to remove an alien.

2.

Next, we address only one of the Attorney General’s three new contentions. He has waived two of those arguments by not timely raising them in the motion to dismiss: that the DHS has both the prosecu-torial discretion and the inherent authority to cancel a removal order. We nevertheless address the Attorney General’s mootness contention — even though not raised in the motion to dismiss — because “the question of whether we are presented with a live case or controversy is a question we may raise sua sponte since mootness goes to the heart of the Article III jurisdiction of the courts.” See Friedman’s, Inc. v. Dunlap, 290 F.3d 191, 197 (4th Cir. 2002) (internal quotation marks omitted).

The Attorney General maintains that the DHS’s cancellation of the Removal Order has mooted this matter because Castendet is no longer subject to removal. We disagree for two sound reasons. First, the DHS’s classification of Castendet as an aggravated felon spawns collateral consequences unrelated to the Removal Order. See Smith v. Ashcroft, 295 F.3d 425, 428 (4th Cir. 2002) (“[TJhough [the petitioner] is no' longer in the United States, he is unmistakably affected by the legal implications of our decision. If he prevails, there is a possibility he can beneficially unravel his untoward immigration status.”). For example, Castendet’s status as an aggravated felon could preclude him from ever receiving permission to reenter the United States. See United States v. Madrigal-Valadez, 561 F.3d 370, 373-74 (4th Cir. 2009) (rejecting mootness argument because conviction could impact petitioner’s ability to reenter).

Second, this proceeding has not been mooted because the DHS’s conduct under challenge could be repeated. If Castendet reentered the United States, the DHS could recommence its removal proceedings, likely on the premise that he is an aggravated felon. The Attorney General has not foreclosed the possibility of the DHS later reasserting that Castendet is an aggravated felon. See Wall v. Wade, 741 F.3d 492, 497 (4th Cir. 2014) (“It is well established that a defendant’s voluntary cessation of a challenged practice moots an action only if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” (internal quotation marks omitted)). We therefore decline to dismiss Castendet’s petition on mootness grounds, and the Removal Order yet exists.

B.

Turning to the merits of Casten-det’s petition for review, the dispositive issue is whether the offense of statutory burglary in Virginia constitutes an aggravated felony for purposes of immigration law. Whether a crime is an aggravated felony is a question of law that we review de novo. See Mbea v. Gonzales, 482 F.3d 276, 279 (4th Cir. 2007).

1.

Castendet’s Removal Order is predicated on 8 U.S.C. § 1227(a)(2)(A)(iii), which provides that “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.” An “aggravated felony” includes, inter alia, a “burglary offense for which the term of imprisonment [is] at least one year.” See 8 U.S.C. § 1101(a)(43)(G).

To determine whether a state offense qualifies as an aggravated felony, we generally utilize the “categorical approach” described by the Supreme Court in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). See Omargharib v. Holder, 775 F.3d 192, 196 (4th Cir. 2014). Under the categorical approach, we will consider only the elements of the offense of conviction, not the underlying conduct. Id. If the offense of conviction has the same elements as the generic federal offense, then the offense of conviction qualifies as an aggravated felony. Id. But, if the offense of conviction “sweeps more broadly and criminalizes more conduct than the generic federal crime,” then the offense of conviction is not an aggravated felony — even if the defendant actually committed that offense in its generic form. Id. (internal quotation marks omitted).

The Attorney General contends, however, that Virginia statutory burglary is a “divisible offense,” requiring us to apply the “modified categorical approach.” The modified categorical approach “helps implement the categorical approach when a defendant was convicted of violating a divisible statute.” See Descamps, 133 S.Ct. at 2285. To that end, the modified categorical approach applies only when a statute is divisible, i.e., when it “sets out one or more elements of the offense in the alternative,” id. at 2281, and “so effectively creates several different ... crimes,” id. at 2285 (alteration in original) (internal quotation marks omitted). As Justice Kagan explained in Descamps, if one of the alternative elements

matches an element in the generic offense, but the other ... does not, the modified categorical approach permits sentencing courts to consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant’s prior conviction.

Id. at 2281. In such a situation, the reviewing court can then compare the elements of the offense of conviction with the elements of the generic crime. The court is not entitled, however, to apply the modified categorical approach to an indivisible statute — that is, a statute that does not contain alternative elements.

Just last year, in Mathis v. United States, the Supreme Court explained that “elements are the constituent parts of a crime’s legal definition — the things the prosecution must prove to sustain a conviction.” See — U.S. -, 136 S.Ct. 2243, 2248, 195 L.Ed.2d 604 (2016) (internal quotation marks omitted). An element is, in other words, “what the jury must find beyond a reasonable doubt to convict the defendant” and “what the defendant necessarily admits when he pleads guilty.” Id. Facts, on the other hand, “are mere real-world things — extraneous to the crime’s legal requirements.” Id. Facts “are circum-stancefe] or event[s] having no legal effect [or] consequence.” Id. (alterations in original) (internal quotation marks omitted). Statutes that “enumerate[ ] various factual means of committing a single element,” rather than statutes that “list[ ] multiple elements disjunctively,” are indivisible. Id. at 2249.

2.

Applying the Supreme Court’s directives in Descamps and Mathis, it is clear that the Virginia burglary statute is indivisible. The statute proscribes the following conduct:

(1) Committing “any of the acts mentioned in § 18.2-90 with intent to commit larceny, or any felony other thán murder, rape, robbery or arson”; or
(2) Committing “any of the acts mentioned in § 18.2-89 or § 18.2-90 with intent to commit assault and battery.”

See Va. Code § 18.2-91. Section 18.2-91 incorporates section 18.2-90, which cannot be divided into alternative elements. Section 18.2-90 penalizes any person who, with the intent to commit murder, rape, robbery, or arson,

(1) In the nighttime enters without breaking a dwelling house or an adjoining, occupied outhouse;
(2) In the daytime breaks and enters a dwelling house or an adjoining, occupied outhouse;
(3) Enters and conceals himself in a dwelling house or an adjoining, occupied outhouse; or
(4) In the nighttime enters without breaking, or at any time breaks and enters or enters and conceals himself in, any of the following locations:
• Any building permanently affixed to realty;
• Any ship, vessel or river craft;
• Any railroad car; or
• Any automobile, truck or trailer, if that automobile, truck or trailer is used as a dwelling or place of human habitation.

See Va. Code § 18.2-90.

Put more simply, section 18.2-90 identifies four means of committing the requisite entry to sustain a statutory burglary conviction: (1) entering without breaking in the nighttime; (2) breaking and entering in the daytime; (3). entering and concealing oneself in a dwelling house or an adjoined, occupied outhouse at any time; or (4) entering without breaking in the nighttime, or at any time breaking and entering or entering and concealing oneself in a number of non-house locations. See Va. Code § 18.2-90. The foregoing are four distinct factual means of describing how the statutory offense of burglary can be committed — rather than different elements — because the Virginia courts analyze them interchangeably. See Mathis, 136 S.Ct. at 2256 (explaining that court decisions are relevant to determining divisibility). For example, in Finney v. Commonwealth, the Supreme Court of Virginia analyzed how an entry is accomplished. See 277 Va. 83, 671 S.E.2d 169, 172 (2009). Observing that the burglary of an affixed shed had allegedly occurred in the daytime rather than in the nighttime, the state supreme court then assessed whether the defendant had committed a breaking, as required by section 18.2-90. Id.; see also Scott v. Commonwealth, 49 Va.App. 68, 636 S.E.2d 893, 896-97 (2006) (implying that Commonwealth can charge defendant generally with statutory burglary).

. Of additional importance, the indictment against Castendet charged alternative factual means of committing statutory burglary, thereby belying the Attorney General’s contention that the Virginia burglary statute is divisible. Specifically, the indictment alleged that Castendet “feloniously did enter in the nighttime without breaking or at any time did break and enter or enter and conceal himself in a building permanently affixed to realty belonging to [Mrs. McCree].” See A.R. 541 (emphasis added); see also Mathis, 136 S.Ct. at 2257 (explaining that where an indictment lists alternative terms in lieu of selecting one term, the indictment provides “as clear an indication as any that each alternative is only a possible means of commission, not an element that the prosecutor must prove”); Descamps, 133 S.Ct. at 2290 (“A prosecutor charging a violation of a divisible statute must generally select the relevant element from its list of alternatives.”). We are therefore satisfied that the Virginia burglary statute is indivisible.

3.

The Attorney General nevertheless contends that our decision in United States v. Foster — decided five years prior to the Supreme Court’s decision in Mathis—requires a different result. See United States v. Foster, 662 F.3d 291 (4th Cir. 2011), reh’g denied, 674 F.3d 391 (4th Cir. 2012). In Foster, we ruled that the Virginia burglary statute was divisible — and thus, under the facts of that case, a violent felony under the Armed Career Criminal Act — as to the locational aspect of the statute. We explained that courts “normally may look only to the statutory elements of an offense and the fact of the conviction.” Id. at 293. But, “because some statutes (like the Virginia provisions at issue here) define burglary broadly enough to encompass enclosures other than a building or structure, the categorical approach may permit the sentencing court to go beyond the mere fact of conviction in certain cases.” Id. (internal quotation marks omitted). The parties in Foster agreed that, “because the applicable Virginia statute is broader than generic burglary as defined by the Supreme Court in Taylor, we should review [pertinent] documents to determine whether a plea of guilty to burglary defined by a non-generic statute necessarily admitted elements of the generic offense.” Id. (internal quotation marks omitted).

Our approach in Foster, however, does not survive the Supreme Court’s decision in Mathis. There, the Supreme Court used' the example of a statute with an element requiring the use of a deadly weapon. The hypothetical statute “provide[d] that the use of a knife, gun, bat, or similar weapon would all qualify.” See Mathis, 136 S.Ct. at 2249 (internal quotation marks omitted). According to the Court, “[b]ecause that kind of list merely specifies diverse means of satisfying a single element of a single crime — or otherwise said, spells out various factual ways of committing some component of the offense — a jury need not find (or a defendant admit) any particular item.” Id. In fact, “[t]he itemized construction gives a sentencing court no special warrant to explore the facts of an offense, rather than to determine the crime’s elements and compare them with the generic definition.” Id. at 2251.

So too with section 18.2-91 of the Virginia Code, which incorporates section 18.2-90’s enumeration of various ways of committing the locational aspect of Virginia’s statutory burglary offense. In Foster, the parties agreed to review documents to consider whether the defendant had committed the generic version of Virginia statutory burglary by breaking and entering a building or structure. Tost-Mathis, however, it is clear that the locational aspect of section 18.2-90 enumerates “diverse means of satisfying a single element of a single crime.” See Mathis, 136 S.Ct. at 2249. Our conclusion stems from the clear language of section 18.2-90, which provides a list of locations—each of which would qualify as an element of statutory burglary. See Va. Code § 18.2-90 (providing that statutory burglary can occur when person “enters and conceals himself in any building permanently affixed to realty, or any ship, vessel or river craft or any railroad car, or any automobile, truck or trailer, if such automobile, truck or trailer is used as a dwelling or place of human habitation”). Moreover, the Supreme Court of Virginia appears to view the locational terms of section 18.2-90 interchangeably. In Graybeal v. Commonwealth, the defendant was convicted of statutory burglary after he broke into twelve trailers that were used by a mobile home seller as models. See 228 Va. 736, 324 S.E.2d 698, 699 (1985). After concluding that the burgled trailers were not “used as a dwelling or place of human habitation,” as required by section 18.2-90, the Supreme Court of Virginia went on to assess whether the defendant had burgled any of the other structures named by section 18.2-90. Id. at 700. To sustain a conviction, neither the court nor the jury had to find that a particular structure was broken into — any of the enumerated options would have sufficed.

In sum, we are satisfied that the Virginia burglary statute provides different factual means that constitute entry and location — not different elements. The statute thus is not divisible, and application of the modified categorical approach is inappropriate in connection therewith.

4.

In these circumstances, we must assess whether a Virginia statutory burglary constitutes an aggravated felony using the categorical approach. See Omargharib, 775 F.3d at 196. As the Attorney General concedes in this proceeding, the Virginia burglary statute is broader than the federal crime of generic burglary. In Taylor, the Supreme Court included in its definition of a generic burglary “an unlawful or unprivileged entry” into “a building or other structure,” and explained that state burglary statutes that “eliminat[e] the requirement that the entry be unlawful, or ... includ[e] places, such as automobiles and vending machines, other than buildings,” fall outside the definition of generic burglary. See 495 U.S. at 598-99, 110 S.Ct. 2143. As we noted above, the Virginia burglary statute is satisfied by various alternative means of entry, including one’s entry without breaking or one’s concealment after lawful entry. By proscribing such conduct, the statute falls outside the scope of generic burglary. The Virginia burglary statute also reaches several places that are not buildings or structures, such as ships, vessels, river craft, railroad cars, automobiles, trucks, and trailers. As the BIA recently recognized, the breadth of the statute means that it falls outside the definition of an aggravated felony. See In re H-M-F, _ I. & N. Dec._(BIA Mar. 29, 2017). Utilizing the categorical approach, we are also satisfied that the Virginia offense of statutory burglary criminalizes more conduct than the generic federal offense of burglary. The DHS therefore erred in classifying Casten-det’s conviction as an aggravated felony.

III.

Pursuant to the foregoing, we grant the petition for review, vacate the DHS’s Removal Order, and remand for such other and further proceedings as may be appropriate.

PETITION FOR REVIEW GRANTED; VACATED AND REMANDED.

      . The facts recited herein are largely drawn from Castendet’s hearing testimony, which was deemed credible in the immigration court.

      . Citations herein to "A.R. _" refer to the contents of the Administrative Record filed by the parties in this matter.

      . A B-2 visitor visa entitles an alien to enter this country for tourism, pleasure, or visiting. Castendet thus entered the United States lawfully but overstayed his B-2 visitor visa.

      . Although Castendet has already been removed to Panama, he is entitled to review in a court of appeals. See Carachuri-Rosendo v. Holder, 560 U.S. 563, 573 n.8, 130 S.Ct. 2577, 177 L.Ed.2d 68 (2010).

      . The DHS’s cancellation of the Removal Order followed our denial of the Attorney General’s motion to remand. The Attorney General had moved for a remand to the DHS for consideration of new authorities pertaining to whether Castendet's statutory burglary offense qualifies as an aggravated felony. We denied the Attorney General’s motion. See Order, Castendet-Lewis v. Sessions, No. 15-2484 (4th Cir. May 13, 2016), ECF No. 21. The Attorney General has not renewed the motion to remand.

      .By his petition for review, Castendet also asserts that both the IJ and the BIA erroneously determined that he is not entitled to withholding of removal or CAT protection. We need not reach or address those issues today. See Sotnikau v. Lynch, 846 F.3d 731, 735 n.2 (4th Cir. 2017).

      . The decisions relied on by the Attorney General for the proposition that we lack jurisdiction are readily distinguishable. In Aguilar-Aguilar v. Napolitano, the Tenth Circuit ruled that it could not review the DHS’s decision to terminate removal proceedings and institute expedited proceedings because the IJ's decision did not result in a final order of removal. See 700 F.3d 1238, 1243 (10th Cir. 2012). Similarly, in Galindo-Romero v. Holder, the Ninth Circuit dismissed the petition for review for lack of jurisdiction because the challenged decisions did not result in an order of removal. See 640 F.3d 873, 877 (9th Cir. 2011).

      . Section 18.2-91 of the Virginia Code also incorporates section 18.2-89, which penalizes any person who "break[s] and enter[s] the dwelling house of another in the nighttime with intent to commit a felony or other larceny therein.” See Va. Code § 18.2-89. Section 18.2-89 therefore corresponds with the generic federal crime of burglary. See Taylor v. United States, 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).

      . Furthermore, Virginia's model jury instructions illustrate that the offense of statutory burglary can be committed in various ways:
      The defendant is charged with the crime of statutory burglary. The Commonwealth must prove beyond a reasonable doubt both of the following elements of that crime:
      (1) That the defendant without permission [in the nighttime entered without breaking; in the daytime broke and entered; in the daytime entered and concealed himself in] [a dwelling house; a building permanently affixed to realty]; and
      (2) That he did so with the intent to commit [murder; rape; robbery; arson].

        See Criminal Jury Instructions for Virginia, No. G12.200 (2015); see also Mathis, 136 S.Ct. at 2257 (noting that jury instructions are relevant to determining whether listed items constitute alternative means or elements of offense); Omargharib, 775 F.3d at 199-200 (same).


author: WILKINSON, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Cornell Louis ROBINSON, Defendant-Appellant.
    No. 15-4741
    United States Court of Appeals, Fourth Circuit.
    Argued: March 24, 2017
    Decided: April 25, 2017

      ARGUED: John Robert Grimm, HARRIS, WILTSHIRE & GRANNIS, LLP, Washington, D.C., for Appellant. Patricia Corwin McLane, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public Defender, Baltimore, Maryland, Paresh Patel, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
    Before WILKINSON, KING, and AGEE, Circuit Judges.
   WILKINSON, Circuit Judge:

Defendant-appellant Cornell Robinson was convicted after a three-day jury trial of various offenses related to the crime of carjacking. For the reasons that follow, the challenges to his convictions are lacking in merit.

I.

Around 3 a.m. on March 24, 2014, Precious Crawford began experiencing labor pains. She called her boyfriend, Kwazia Mitchell, to drive her to the hospital. As the couple was walking from Crawford’s apartment to her car, they noticed three men carrying guns and wearing masks. The men were later identified as Robinson, Devery Kelley, and a third co-conspirator named Moe.

Crawford and Mitchell hurried to Crawford’s car. Before Mitchell could unlock the car door for Crawford, Robinson started beating on the car window. Mitchell fled, leaving behind Crawford — who, being in labor, could not flee — as well as a key chain with the keys to the car and apartment. Robinson was carrying a handgun, and Kelley had a shotgun, and the two men pointed their guns at Crawford. They forced her to retrieve the key chain Mitchell had left and walked her to the apartment building. Robinson repeatedly threatened Crawford, asking her “Do you want to die?” J.A. 293.

The two men demanded that Crawford open the apartment door for them and get any money in the apartment. Crawford was unable to unlock the apartment door because she did not have the right key, which had fallen off of the key chain when Mitchell had fled. She told the men that she did not have the apartment key and begged to be allowed to go to the hospital to give birth. When the men realized that Crawford could not let them into the apartment, Robinson grabbed the car key from her, and the two men drove away in her car.

The police soon found Robinson driving Crawford’s car. After a chase through residential streets, Robinson drove the' car into a cul-de-sac. Both men fled on foot and were quickly arrested. Robinson and Kelley had thrown their guns out of the car during the chase, and the police recovered a handgun and a shotgun, both loaded, from the path of the car chase.

On September 10, 2014, a grand jury returned a superseding indictment charging Robinson with carjacking, in violation of 18 U.S.C. § 2119; use of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c); and possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). The government dropped a fourth charge — for Hobbs Act robbery — before trial. Robinson’s trial began on July 27, 2015. After three days of testimony from Kelley, Crawford, a neighbor who witnessed the carjacking, and police officers, the jury found Robinson guilty of all three charges. He now appeals.

II.

Robinson first claims that there was insufficient evidence for his conviction of carjacking under 18 U.S.C. § 2119. To find a defendant guilty under § 2119, a jury must find that “the defendant ‘(1) with intent to cause death or serious bodily harm (2) took a motor vehicle (3) that had been transported, shipped or received in interstate or foreign commerce (4) from the person or presence of another (5) by force and violence or intimidation.’ ” United States v. Foster, 507 F.3d 233, 246 (4th Cir. 2007) (quoting United States v. Applewhaite, 195 F.3d 679, 685 (3d Cir. 1999)). Here, Robinson argues that there was no evidence that he had an intent to cause death or serious bodily harm. Specifically, he contends that a reasonable jury could not have found that his actions were anything more than empty threats or that any intent existed at the moment he took Crawford’s keys.

A defendant who challenges the sufficiency of the evidence “must overcome a heavy burden.” United States v. Hoyte, 51 F.3d 1239, 1245 (4th Cir. 1995). In conducting a review of the sufficiency of the evidence, we ask “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original). It is the responsibility of the jury, not ours, “to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Id. at 319, 99 S.Ct. 2781. We cannot “overturn a substantially supported verdict merely because [we] find[] the verdict unpalatable or determinen that another, reasonable verdict would be preferable.” United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc).

Robinson is far from meeting that burden here. He first contends that his threats to Crawford were empty and that he would not have harmed her even if she had resisted his taking the car key. To obtain a § 2119 carjacking conviction, the government cannot show merely that a defendant tried to intimidate the victim; there must be evidence “that the defendant would have at least attempted to seriously harm or kill the driver if that action had been necessary to complete the taking of the car.” Holloway v. United States, 526 U.S. 1, 12, 119 S.Ct. 966, 143 L.Ed.2d 1 (1999). Thus, this court has held that “holding a ‘cold and hard’ object” to a victim’s neck — without any evidence that the object was a gun or that the defendant intended to do anything more than scare the victim — is not sufficient to show an intent to cause harm. United States v. Bailey, 819 F.3d 92, 97 (4th Cir. 2016).

Robinson argues that the element of “intent to cause death or serious harm” in connection with the car’s taking was missing as a matter of law. He points to Kelley’s testimony that the two would not have hurt Crawford because she was in labor and the fact that they did not hurt Crawford despite her failure to let them into the apartment. The government counters with evidence that Robinson was ear-rying a loaded gun pointed at Crawford and that he verbally threatened her by asking “Do you want to die?” J.A. 293. Perhaps a reasonable jury could draw a conclusion from all this evidence that Robinson’s threats were a mere bluff. That is, however, a question of fact, and it is clearly the jury’s duty, not ours, to decide it. Because there is evidence from which a rational fact finder could conclude that Robinson’s threats were all too real, we cannot reverse the verdict. See United States v. Washington, 714 F.3d 962, 969 (6th Cir. 2013) (finding sufficient evidence of intent for carjacking where defendant pointed gun at victim and yelled “You think I’m playing?!”); Foster, 507 F.3d at 247 (finding sufficient evidence of intent for carjacking where defendant held gun to victim’s head and ordered victim out of car).

Robinson also argues that there is no evidence that he possessed the requisite intent at the moment he grabbed the car keys out of Crawford’s hand. The Supreme Court has instructed that, in order to sustain a conviction for carjacking, the defendant’s intent to cause serious harm must exist “at the precise moment he demanded or took control over the car.” Holloway, 526 U.S. at 8, 119 S.Ct. 966. Other circuits have relied on this language to overturn carjacking convictions where the defendant stole a car to flee the scene of an assault or murder. United States v. Harris, 420 F.3d 467 (5th Cir. 2005); Applewhaite, 195 F.3d 679. In these cases, there was no evidence that the defendant had an intent to cause harm when he stole the car or that such an intent had any nexus to the stealing of the car. Rather, the defendant stole the car as “a mere ‘afterthought’ ” to the violent crime. Harris, 420 F.3d at 474 (quoting Applewhaite, 195 F.3d at 685).

We need not say if Harris and Applewhaite reflect the law of this circuit because they would not in any event control this case. Robinson attempts to characterize his carjacking as an “afterthought” to the planned robbery of Crawford’s apartment. But whether he originally planned to steal the car or not, Robinson grabbed Crawford’s car keys while holding a loaded gun and after threatening her life. This is plenty of evidence of an intent to cause serious harm when he took control of the car. Even if this were a closer case, the question of Robinson’s intent at the moment he stole the car is a question of fact for the jury. Courts must resist invading the jury’s province by transforming questions of fact into matters of law.

III.

Robinson also challenges the indictment, contending that it was duplicitous because he was charged in one count for violating 18 U.S.C. § 922(g) both with the actual possession of the handgun he was carrying and with the constructive possession of the shotgun that Kelley was carrying. An indictment is duplicitous if it charges two offenses in one count, creating “the risk that a jury divided on two different offenses could nonetheless convict for the improperly fused double count.” United States v. Robinson, 627 F.3d 941, 957 (4th Cir. 2010). Such a jury would not unanimously agree on the offense that the defendant committed, violating the defendant’s Sixth Amendment right to a unanimous verdict. United States v. Kakos, 483 F.3d 441, 444 (6th Cir. 2007).

As an initial matter, this challenge is foreclosed by Robinson’s failure to raise it before trial as required by Federal Rule of Criminal Procedure 12(b)(3)(B). This court generally will not review a belated duplicity challenge to an indictment absent a showing of good cause, see United States v. King, 628 F.3d 693, 699 (4th Cir. 2011); Robinson, 627 F.3d at 957; United States v. Price, 763 F.2d 640, 643 (4th Cir. 1985), or plain error. United States v. Thomas, 669 F.3d 421, 424-25 (4th Cir. 2012).

But there was no error at all in the indictment, let alone error that was “clear or obvious.” United States v. Lynn, 592 F.3d 572, 577 (4th Cir. 2010). An indictment is duplicitous if it charges two offenses in one count, and Robinson contends that his possession of the handgun and the shotgun constituted two violations of § 922(g). However, the “simultaneous possession of multiple firearms generally constitutes only” one violation of § 922(g). United States v. Dunford, 148 F.3d 385, 390 (4th Cir. 1998) (quoting United States v. Hutching, 75 F.3d 1453, 1459 (10th Cir. 1996)). In other words, a defendant violates § 922(g) once when he possesses at one time and place “any firearm or ammunition,” 18 U.S.C. § 922(g); it does not matter if he has one, two, three, or more firearms. A defendant who possesses firearms or ammunition at different times or places, on the other hand, commits multiple violations of § 922(g). United States v. Goodine, 400 F.3d 202, 208 (4th Cir. 2005). Here Robinson committed one violation because he possessed the handgun and the shotgun at the same time and place, and the indictment properly charged this single violation in one count. In fact, had the indictment charged and the jury convicted Robinson on two counts of violating § 922(g), he would likely now be raising a multiplicity challenge to the indictment, arguing that he was being punished twice for a single violation of § 922(g). Duplicity and multiplicity are a Scylla and Charybdis of sorts, and the government navigated properly.

Nonetheless, Robinson argues that the two theories of possession — he actually possessed the handgun and constructively possessed the shotgun — should be treated as separate offenses because each requires different evidence and combining the two in one count creates the risk of a non-unanimous jury verdict. Robinson claims that our decision in Goodine created a new rule requiring a separate count for each firearm for which different evidence is required to prove possession. Far from creating this new rule, however, Goodine reiterated that “[t]he key to the Dunford decision was the fact that the multiple firearms involved in that prosecution were ‘seized at the same time.’ ” Goodine, 400 F.3d at 208 (quoting Dunford, 148 F.3d at 390). The simultaneous possession of multiple firearms is still one violation of § 922(g) that should be charged in one count.

More fundamentally, Robinson’s focus on the evidence required to prove an offense elides the distinction between different means of committing one offense and different offenses. An indictment is not duplicitous “if it includes in [one] count multiple ways of committing a single offense.” United States v. Daugerdas, 837 F.3d 212, 225 (2d Cir. 2016). Indeed, a jury can disagree on the means by which a defendant committed an offense, so long as it unanimously agrees that each element of the offense is satisfied. Richardson v. United States, 526 U.S. 813, 817, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999). Here, Robinson’s offense was the possession of “any firearm.” 18 U.S.C. § 922(g). The jury could disagree on the means by which he committed that offense — that is, which firearm he possessed or how he came to possess the firearm. The jury did unanimously agree, though, that at the time that he committed the carjacking, Robinson was a felon in possession of “any firearm.” Because the jurors agreed on the elements of the offense that he committed, it matters not that they may have disagreed on this or that item of evidence, and Robinson received the unanimous verdict to which he was entitled.

IV.

For the foregoing reasons, we reject Robinson’s challenges, and his convictions are

AFFIRMED.

       Robinson’s challenge to his conviction for use of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c), depends on our vacating his conviction for carjacking. Because we sustain his conviction for carjacking, we must also sustain his conviction under § 924(c).


author: FLOYD, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. David Tobias MAY, Defendant-Appellant.
    No. 15-7912
    United States Court of Appeals, Fourth Circuit.
    Argued: January 26, 2017
    Decided: April 25, 2017

      ARGUED: Lisa M. Lorish, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charlottesville, Virginia, for Appellant. Jennifer R. Bockhorst, OFFICE OF THE UNITED STATES ATTORNEY, Abingdon, Virginia, for Appel-lee. ON BRIEF: Larry W. Shelton, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, Virginia, for Appellant. John P. Fishwiek, Jr., United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.
    Before GREGORY, Chief Judge, and DUNCAN and FLOYD, Circuit Judges.
   FLOYD, Circuit Judge:

In mid-2009, David May pleaded guilty to various drug and firearm offenses, and was sentenced pursuant to a stipulated plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C). In November 2014, the Sentencing Guidelines were amended, retroactively lowering the offense levels associated with two of the offenses to which May pleaded guilty. In February 2015, the district court, sua sponte, denied May a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2), on the grounds that May’s sentence was not based on the Guidelines. In September 2015, May filed a motion for reconsideration of the district court’s sua sponte denial, which the district court denied two months later. May timely appealed the denial of his motion for reconsideration, challenging the district court’s refusal to apply the amended Guidelines to his sentence. We agree with the district court’s denial of relief, and we therefore affirm.

I.

In a nineteen-count indictment filed on May 14, 2008, David May was charged with various drug and firearms offenses by a grand jury in the Western District of Virginia. On May 4, 2009, May entered into a plea agreement with the government pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). May pleaded guilty to conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(C) (Count 1); distribution of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846(b)(1)(C) (Count 8); using and carrying a firearm during and in relation to, and possession of a firearm in furtherance of, a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Count 9); and possession of a firearm after having been convicted of a crime punishable by more than one year imprisonment and while being an unlawful user of a controlled substance, in violation of 18 U.S.C. § 922(g)(1) and (3) (Count 13). J.A. 31-32. In exchange, the remaining fifteen counts from the indictment were dropped. May’s plea agreement also included an appeal waiver.

Under a section titled “Sentencing Provisions” and a subsection titled “General Matters,” the plea agreement stated that pursuant to Rule 11(c)(1)(C), the parties agreed to May’s prison term. J.A. 33. The parties agreed to a prison term of 180 months on the drug counts (Counts 1 and 8), a concurrent term of 120 months on the felon in possession count (Count 13), and a consecutive term of 60 months on the § 924(c) count (Count 9). Id.

Immediately following the “General Matters” subsection, the plea agreement contains a subsection titled “Sentencing Guidelines.” J.A. 34. In this subsection, the parties set forth their stipulations as to offense level calculations under the Sentencing Guidelines. The parties agreed to an offense level of 30 for the drug counts, which corresponded to “350 grams to 499.99 grams of methamphetamine” (Counts 1 and 8); an offense level of 16 for the felon in possession count (Count 13); and a total offense level of 30 for all the above-described counts (Counts 1, 8, and 13). Id. The parties also stated that the guideline range for the § 924(c) count (Count 9) was a term of 60 months imprisonment. Id.

The probation office then prepared a presentence report (PSR). The PSR relied on a total offense level of 30, as was stipulated, and a criminal history category of V, as was determined by the probation office, to conclude that “the advisory guideline range for imprisonment is 151 to 188 months.” J.A. 93. The PSR noted, however, that “in the plea agreement, the defendant has pled to a total term of 240 months.” Id.

On July 20, 2009, the district court accepted May’s plea agreement and sentenced him to a total of 240 months: a term of 180 months on the drug counts (Counts 1 and 8), a concurrent term of 120 months on the felon in possession count (Count 13), and a consecutive term of 60 months on the § 924(c) count (Count 9). J.A. 44-46.

On November 1, 2014, Amendment 782 to the Guidelines—which was made retroactive by Amendment 788—went into effect. See U.S.S.G. Supp. to App. C, Amends. 782 & 788 (Nov. 1, 2014). Amendment 782 reduced by two the offense levels assigned to drug quantities listed in U.S.S.G. § 2D1.1, which governs Counts 1 and 8 in this case.

On February 25, 2015, the district court, sua sponte, denied May a sentence reduction under Amendment 782 pursuant to 18 U.S.C. § 3582(c)(2) (the “Section 3582(c)(2) Denial Order”). J.A. 51. The district court explained that because May’s plea agreement neither called for May to be sentenced within a particular Guidelines sentencing range, nor clarified that his agreed-upon sentence was based on a Guidelines sentencing range applicable to the offense of conviction, May was ineligible for any reduction under Amendment 782. Id.

May claims that he was never properly notified of the Section 3582(c)(2) Denial Order. May had no counsel of record at the time to receive electronic notification of the entry of the order. May also denies ever receiving the order in the mail, and even the government concedes that there is no routine minute entry to confirm that the order was mailed. See Appellee’s Supp. Br. at 9 n.3.

Lisa Lorish, an Assistant Federal Public Defender, later learned about May’s case and the Section 3582(c)(2) Denial Order while conducting an internal review of cases where a drug reduction might apply. See Appellant’s Supp. Br. at 9 n.2. On September 18, 2015, May, represented by Lorish, filed a motion for reconsideration of the Section 3582(c)(2) Denial Order. This motion argued that May’s “plea agreement clearly ties the drug related sentence of 180 months to [his] drug guidelines,” and that he therefore qualifies for § 3582(c)(2) relief. J.A. 53.

The government responded with a motion opposing any sentence reduction on the grounds that May’s plea agreement did not expressly rely on the Guidelines. Nowhere in this motion did the government assert that the district court lacked authority to grant relief following a motion for reconsideration of a § 3582(c)(2) ruling.

On November 18, 2015, the district court issued an order denying May’s motion for reconsideration. J.A. 64-67. The district court reiterated its conclusion that May was ineligible for § 3582(c)(2) relief because his plea agreement “did not stipulate to the range of imprisonment under the guidelines” and “did not stipulate to the Criminal History category applicable to [May].” J.A. 66-67.

On December 1, 2015, May’s counsel appealed the denial of May’s motion for reconsideration. On appeal, the parties initially briefed the issue of whether May’s plea agreement was sufficiently based on the Guidelines to qualify him for § 3582(c)(2) relief. This Court then ordered and received supplemental briefing “addressing whether May’s 18 U.S.C. § 3582 (2012) motion was successive and/or barred by United States v. Goodwyn, 596 F.3d 233, 234 (4th Cir. 2010).” Order, United States v. May, No. 15-7912 (4th Cir. 2016), ECF No. 39. At no point in its briefing did the government invoke May’s appeal waiver, “and we will not sua sponte enforce it.” United States v. Jones, 667 F.3d 477, 486 (4th Cir. 2012).

II.

Although we have previously prohibited 18 U.S.C. § 3582(c)(2)-based motions for reconsideration, United States v. Goodwyn, 596 F.3d 233, 234 (4th Cir. 2010), we understand this prohibition to be non-jurisdietional, and thus waived when the government failed to assert it below.

Section 3582(c)(2) provides:

The court may not modify a term of imprisonment once it has been imposed except that—
(2) in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.

The Supreme Court requires Congress to “clearly state[ ] that a threshold limitation on a statute’s scope shall count as jurisdictional” before a court can treat the limitation as such. Arbaugh v. Y&H Corp., 546 U.S. 500, 515-16, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). But the prohibition on § 3582(c)(2)-based motions for reconsideration is not based on a limitation that Congress has clearly ranked as jurisdictional. Rather, it is implied from § 3582(c)(2)’s silence on a district court’s authority to grant motions for reconsideration, coupled with sentence finality interests and “the clear intent of § 3582 ... to constrain postjudgment sentence modifications.” Goodwyn, 596 F.3d at 235-36. We therefore conclude that the implied prohibition on § 3582(c)(2)-based motions for reconsideration, as recognized in Goodwyn, is non-jurisdictional.

Our conclusion comports with the decisions of at least four of our sister circuits. See United States v. Anderson, 772 F.3d 662, 666-67 (11th Cir. 2014); United States v. Beard, 745 F.3d 288, 291-92 (7th Cir. 2014); Trujillo, 713 F.3d at 1006-08; United States v. Weatherspoon, 696 F.3d 416, 421-22 (3d Cir. 2012). Some of these decisions admittedly dealt with purely successive motions for relief premised on a single retroactive Guidelines amendment, rather than with motions for reconsideration, but § 3582(c)(2) does not expressly authorize nor prohibit either type of motion. Thus, the rule is the same for both purely successive § 3582(c)(2) motions and § 3582(c)(2)-based motions for reconsideration: A defendant cannot obtain relief on the basis of such motions, but this prohibition is non-jurisdictional and thus subject to waiver.

In the present case, this Court is confronted with a motion for reconsideration unauthorized by § 3582(c)(2). We believe, however, that the government has waived its right to object to the district court’s failure to deny May relief on the grounds that he brought an unauthorized motion for reconsideration. As the government concedes, see Appellee’s Supp. Reply Br. at 1, it never invoked § 3582(c)(2)’s prohibition on motions for reconsideration at the district court level. Because the government failed to raise this non-jurisdictional limitation below, it is waived on appeal. See Trujillo, 713 F.3d at 1008; Weatherspoon, 696 F.3d at 422; see also United States v. Benton, 523 F.3d 424, 428 (4th Cir. 2008) (“Failure to raise an argument before the district court typically results in the waiver of that argument on appeal.”).

III.

The district • court concluded that May was ineligible for 18 U.S.C. § 3582(c)(2) relief from the court because he was sentenced pursuant to a Rule 11(c)(1)(C) plea agreement that did not use a Guidelines sentencing range. We review de novo the district court’s conclusion regarding the scope of its legal authority-under § 3582(c)(2). United States v. Mann, 709 F.3d 301, 304 (4th Cir. 2013). Upon review of the record, we agree with the district court’s conclusion that May was ineligible for relief.

In Freeman v. United States, 564 U.S. 522, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011), the Supreme Court considered the issue of whether a district court may grant a § 3582(c)(2) sentence reduction motion when the original sentence is imposed pursuant to a Rule 11(c)(1)(C) plea agreement. This issue turned on whether such a sentence is “based on” a Guidelines sentencing range—a prerequisite for relief under the terms of § 3582(c)(2).

The controlling opinion in Freeman, authored by Justice Sotomayor, held that a sentence imposed pursuant to a Rule 11(c)(1)(C) plea agreement is generally based on the agreement itself rather than on the Guidelines, thus precluding § 3582(c)(2) relief in most Rule 11(c)(1)(C) cases. Freeman, 564 U.S. at 535-38, 131 S.Ct. 2685 (Sotomayor, J., concurring in judgment). This general rule is subject to the following exception: When a defendant’s plea agreement “call[s] for the defendant to be sentenced within a particular Guidelines sentencing range,” or to a “specific term of imprisonment” within a particular Guidelines sentencing range, then “the term of imprisonment the court imposes is ‘based on’ the agreed-upon sen-fencing range within the meaning of § 3582(c)(2).” Id. at 538-39, 131 S.Ct. 2685. Consequently, “[i]f that Guidelines range is subsequently lowered by the Sentencing Commission, the defendant is eligible for sentence reduction.” Id.

This exception was at issue in Freeman itself. There, the defendant entered into a Rule 11(c)(1)(C) plea agreement that contained (i) the defendant’s stipulated total offense level; (ii) his anticipated criminal history category; and (iii) a proposed prison term that was expressly linked to the Guidelines and that fell within the Guidelines sentencing range corresponding to the plea agreement’s offense level and criminal history determinations. Id. at 542-43, 131 S.Ct. 2685. When the aforementioned Guidelines sentencing range was subsequently lowered, Justice Sotoma-yor reasoned that the defendant became eligible for relief, because his prison term was “based on” a subsequently-lowered Guidelines sentencing range under her definition of the phrase. Id. at 542-44, 131 S.Ct. 2685.

Of course, not all plea agreements contain the level of Guidelines-specific detail that was contained in the plea agreement examined in Freeman. At least two of our sister circuits have had the opportunity to apply the Freeman rule to circumstances where, as here, a Rule 11(c)(1)(C) plea agreement outlined a proposed prison term and an offense level stipulation, but did not expressly link the sentence to the Guidelines and did not contain a criminal history determination. See United States v. Scott, 711 F.3d 784, 786 (7th Cir. 2013); United States v. Rivera-Martinez, 665 F.3d 344, 345-46 (1st Cir. 2011). Both circuits concluded that the proposed prison term contained in such agreements are not “based on” a Guidelines sentencing range for § 3582(c)(2) purposes, thus precluding § 3582(c)(2) relief. Scott, 711 F.3d at 787; Rivera-Martinez, 665 F.3d at 348-50. We agree with these persuasive authorities.

May’s plea agreement did not “expressly use[ ] a [subsequently-lowered] Guidelines sentencing range to establish the [proposed] term of imprisonment.” Freeman, 564 U.S. at 539, 131 S.Ct. 2685 (Sotomayor, J., concurring in judgment). Accordingly, his plea agreement did not in explicit terms “make clear that the basis for the specified term is a Guidelines sentencing range.” Id.

Moreover, even assuming that it would suffice to have a proposed prison term implicitly linked to a particular Guidelines sentencing range, no such link can exist here. After all, May’s plea agreement does not contain all the ingredients necessary to establish a particular Guidelines sentencing range. Whereas the plea agreement considered in Freeman contained both an offense level stipulation and an anticipated criminal history category, id. at 542-43, 131 S.Ct. 2685, May’s plea agreement contains only the former and not the latter.

May argues that we need not insist that the plea agreement make a criminal history determination, because “a criminal history category is an objective determination that cannot be influenced by the agreement of the parties.” Appellant’s Br. at 14. This argument misses the mark. The relevant inquiry is whether a defendant’s plea agreement makes clear that its proposed sentence is based on an “agreed-upon” Guidelines sentencing range. Freeman, 564 U.S. at 538-39, 131 S.Ct. 2685 (Sotomayor, J., concurring in judgment). An ingredient of an agreed-upon Guidelines sentencing range is necessarily an agreed-upon criminal history category, not a defendant’s criminal history category in the “objective” sense that was not agreed upon.

Although absent from the plea agreement, a particular Guidelines sentencing range might still be discovered upon review of “the parties’ background negotiations or the facts that informed the sentencing judge’s decision to accept the plea.” Rivera-Martinez, 665 F.3d at 349. However, Justice Sotomayor’s concurrence “forbids us from making such an archeological dig,” id. and instead confines our inquiry to the four corners of the plea agreement, see Freeman, 564 U.S. at 538, 131 S.Ct. 2685 (Sotomayor, J., concurring in judgment) (directing focus to the parties’ “binding agreement,” rather than to “a free-ranging search through the parties’ negotiating history in search of a Guidelines sentencing range that might have been relevant to the agreement or the court’s acceptance of it”).

Looking at the plea agreement alone, the most that can be said about the parties’ proposed sentence is that it was implicitly based on a Guidelines sentencing range ingredient, i.e., a particular offense level. But § 3582(c)(2)’s text does not authorize relief when the defendant has agreed to be sentenced to a term of imprisonment based on an ingredient of a sentencing range that has been subsequently lowered. Rather, the statute authorizes relief only when the defendant has been “sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered.” § 3582(c)(2) (emphasis added). Because we cannot conclude that the proposed sentence at issue here was based on a particular Guidelines sentencing range subsequently lowered by the Sentencing Commission, we agree with the district court that May is ineligible for § 3582(c)(2) relief.

IV.

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

AFFIRMED.

      . Rule 11(c)(1)(C) makes the parties’ recommended sentence binding on the district court once the court accepts the plea agreement.

      . Some authorities—none of which are binding in this Circuit — have read Goodwyn as suggesting that a jurisdictional limitation exists with respect to § 3582(c)(2)-based motions for reconsideration. See, e.g., United States v. Trujillo, 713 F.3d 1003, 1007 (9th Cir. 2013); United States v. Mann, 435 Fed. Appx. 254, 255 (4th Cir. 2011) (per curiam). We reject this reading of our precedent. Go-odwyn never used the word "jurisdiction” in its opinion, and it did not purport to identify a clear statement in § 3582(c)(2) that created a jurisdictional limitation on motions for reconsideration.

      . In light of our waiver holding, we need not explore other avenues of relief available to a defendant who, as here, was subject to a sua sponte denial of § 3582(c)(2) relief that he or she did not learn about (through no fault of the defendant) until after the applicable appeal deadline has passed. The unfairness of such a situation is self-evident. At'a minimum, a defendant in that situation can call upon Federal Rule of Appellate Procedure 4(b)(4), which "authorizes a district court to extend the [appeal] deadline up to thirty additional days '[u]pon a finding of excusable neglect or good cause.' ” United States v. Urutyan, 564 F.3d 679, 684 n.6 (4th Cir. 2009) (quoting Fed. R. App. P. 4(b)(4)) (modification in original).

      . Freeman was decided by a four-Justice plurality, plus an opinion by Justice Sotomayor concurring in the judgment. We have held that Justice Sotomayor's concurrence provides the narrowest grounds for Freeman's holding and is therefore the controlling opinion in that case. See United States v. Brown, 653 F.3d 337, 339-40 & n.1 (4th Cir. 2011); see also United States v. Hughes, 849 F.3d 1008, 1013 (11th Cir. 2017) (listing nine circuits (including itself) that view Justice Soto-mayor’s concurrence as the controlling opinion in Freeman, and noting that only the Ninth and D.C. Circuits have held otherwise).