text:
    Tonja AMES, Plaintiff-Appellee, v. KING COUNTY, WASHINGTON, Defendant, and Heather R. Volpe, member of the King County Sheriffs Department; Christopher Sawtelle, member of the King County Sheriffs Department; Daniel L. Christian, member of the King County Sheriffs Department, Defendants-Appellants.
    No. 14-36035
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted December 7, 2016, Seattle, Washington
    Filed January 13, 2017

      David J. Hackett (argued), Senior Deputy Prosecuting Attorney; Daniel T. Sátter-berg, Prosecuting Attorney; King County Prosecuting Attorney’s Office, Seattle, Washington; for Defendants-Appellants.
    Darryl Parker (argued), Civil Rights Justice Center PLLC, Seattle, Washington, for Plaintiff-Appellee.
    Before: M. MARGARET McKEOWN, RICHARD C. TALLMAN, and MORGAN B. CHRISTEN, Circuit Judges.
   OPINION

TALLMAN, Circuit Judge:

This interlocutory appeal requires us to address the reasonableness of actions taken by King County Sheriffs Deputies functioning in their community caretaking capacities during a life-and-death medical emergency. We reverse the district court’s denial of qualified immunity on Appellee’s excessive force and unlawful search claims because we conclude the deputies’ actions were objectively reasonable in light of the urgent need to deliver life-saving care to an overdose victim, and to ensure the safety of everyone at the scene.

I

The events leading up to the use of force and search at issue in this case are largely undisputed. On February 6, 2013, at 6:30 p,m., Tonja Ames called 911 to summon an ambulance for her 22-year-old son, Colin Briganti. Briganti lived in a converted garage apartment attached to his mother’s home and suffered from heart and lung problems as a result of prior drug abuse. Upon arriving home from work that day, Ames found Briganti in his bedroom “slumped over on the couch drooling” and incoherent. She also found what appeared to be a suicide note and feared Briganti may have overdosed on one of his medications. Ames called her neighbors, William and Linda Eby, who came over to help.

The 911 operator classified the call as a Priority 1 suicide attempt and dispatched a firefighter/EMT aid crew and a police officer to Ames’s residence. According to the County, it is common practice for police officers to respond to attempted suicide calls in order to secure the scene and ensure the safety of the aid crew. King County Sheriffs Deputy Heather Volpe, who is an expert instructor in drug recognition, arrived at Ames’s house within approximately four minutes of Ames’s 911 call, pulling up at virtually the same time as an aid car from Woodinville Fire and Rescue. The aid car was manned by Lieutenant Drago Nevistic and Firefighter/EMTs Chris Mezzone and Larry Laurent. Ames met Deputy Volpe and the aid crew in her driveway by the front right corner of the house and told them about Briganti’s medical history, his current condition, and the suicide note. Ames then directed Deputy Volpe and the aid crew around to the garage apartment entrance at the back of the house. Firefighter/EMTs Mezzone and Laurent were in the lead and entered the apartment, with Ames, Deputy Volpe, and Lieutenant Nev-istic following behind.

As Ames, Deputy Volpe, and Lieutenant Nevistic arrived at the doorway, Ames refused entry to Deputy Volpe. Ames told Deputy Volpe that only the aid crew could enter the apartment. According to Ames, Deputy Volpe replied, “If I can’t enter the home, then you get no service,” and directed the aid crew to exit the apartment. Firefighter/EMTs Mezzone and Laurent withdrew from the apartment; they had not yet engaged with Briganti but Laurent had observed that he was sitting in a chair, “semi-conscious” and “lethargic,” and that he “barely could keep his eyes open.”

Neither Deputy Volpe nor any member of the aid crew had ever encountered a situation where the person who called 911 would not allow police to enter with the emergency medical personnel responding to the call. Because Ames’s refusal was unusual, and because the call involved a possible suicide attempt, Deputy Volpe became concerned for the safety of the responders on the scene and what might have happened inside the apartment. Together, Deputy Volpe and the aid crew retreated to their vehicles parked at the curb. Deputy Volpe radioed to inform dispatch and her patrol supervisor, Sergeant Kevin Johannes, that Ames was refusing to let police enter and the aid crew was refusing to work on Briganti inside the apartment. Deputy Volpe requested backup and waited, further advising dispatch that Briganti had overdosed on pills and was semi-conscious and very lethargic. Deputy Volpe had specialized training as a Drug Recognition Expert Instructor with knowledge of various medications and their effects. She was concerned that Bri-ganti would die. Ames had listed Briganti’s medications for Deputy Volpe when the aid crew first arrived, and Deputy Volpe recognized most of them as Central Nervous System depressants.

Before leaving Briganti’s apartment, the aid crew did not tell Ames that they could treat her son outside the apartment or that they would wait outside for him. When the first responders withdrew, Ames and her neighbors had remained in Bri-ganti’s apartment. Ames panicked—thinking the aid crew was going to leave—and enlisted her neighbors to help her carry Briganti outside and load him into her pickup truck parked in the driveway so she could drive him to the nearest hospital. Deputy Volpe watched as Ames and her neighbors carried Briganti, apparently unconscious, out from behind the house. She assumed Ames would now let the aid crew work on Briganti in the driveway but, once she observed their efforts to load Briganti into Ames’s truck, Deputy Volpe radioed her patrol supervisor: “Looks like they’re trying to load him up into a truck and leave.... Should I stop them[?]” Sergeant Johannes replied: ‘Yeah, if you have aid there they need to work on him. So, yeah.” Deputy Volpe then moved her patrol car to block the truck’s exit from the driveway and approached Ames as she was climbing into the driver’s side of the truck cab. Ames’s neighbors had finished buckling Briganti into the passenger seat, where he remained slumped over and unresponsive during the events that followed.

Deputy Volpe yelled at Ames as she approached the truck, telling Ames that she needed to let the EMTs take Briganti and that it was unlawful for Ames to leave with him. When Deputy Volpe refused to move her patrol car, Ames became angry, pointed her finger at Deputy Volpe, and yelled: “Move your f-ing vehicle. I’m taking my son to the hospital. You guys left. You won’t help him. Get out of my way.” She continued climbing into the driver’s seat, then placed the suicide note she had retrieved from the apartment in between the truck seats and put the keys in the ignition while reaching out with her left arm to close the driver’s-side door. Simultaneously, Deputy Volpe reached the driver’s side of the truck and used her body to block the door from closing. She then attempted to pull Ames from the truck cab. Ames grabbed the steering wheel tightly with her right hand and Deputy Volpe employed a hair hold to distract Ames and loosen her grip so the officer could remove Ames from the truck. Deputy Volpe took Ames down to the ground into a prone handcuffing position. According to the County’s police practices expert, a hair hold is a low-level distraction and minor pain compliance technique that is at the lower end of takedown options in relative level of force. Essentially, Deputy Volpe grasped Ames’s hair close to her scalp, causing Ames to release the steering wheel and reach up towards her scalp, whereupon Deputy Volpe was able to pull Ames out of the cab of the truck and down to the ground.

Ames landed on the ground with her right arm pinned under her body. Deputy Volpe held onto Ames’s hair with one hand and pushed her knee into Ames’s back while she handcuffed Ames’s left arm. She ordered Ames to provide her right arm for cuffing and, according to Ames, slammed Ames’s head into the ground three times as Ames tried to explain that her arm was pinned and that she suffered from a back injury. Deputy Volpe was then able to pull Ames’s right arm behind her back, handcuff her, and radio that she had her pinned on the ground. In all, 97 seconds elapsed between Sergeant Johannes’s instruction that Deputy Volpe keep Ames from leaving the scene and Deputy Volpe’s report that she had Ames subdued on the ground. The first backup unit did not arrive on the scene until a little under a minute after Deputy Volpe had subdued Ames.

The aid crew rushed to assist Briganti as soon as Deputy Volpe removed Ames from the truck. They first moved Briganti from the truck into the aid car and then drove approximately 100 yards down the street for initial assessment because they were concerned about the potential for further confrontations. Based on their assessment of the severity of Briganti’s condition and the shallowness of his breathing, the aid crew called for a nearby advanced life support medic unit to transport Briganti to the hospital in case airway support was required en route to keep him alive.

Deputy Christopher Sawtelle, the first backup officer to reach the scene, arrived shortly after the aid crew had begun to treat Briganti. Deputy Sawtelle observed Ames handcuffed on the ground near the open driver’s-side door of the truck. He got out of his vehicle and approached Deputy Volpe to, ask whether she needed assistance securing the scene. Deputy Volpe moved Ames to the back seat of her patrol car. Deputy Sawtelle did not speak with the aid crew treating Briganti, but understood from Deputy Volpe’s radio transmissions and information he received on the scene that Briganti had been in the truck and that the suicide note was in the truck. As a result, Deputy Sawtelle believed the truck was a possible overdose scene and he searched the cab, glove compartment, and truck bed, assisted by Deputy Daniel Christian. Deputy Sawtelle found a loaded gun in the glove compartment (legally registered to Ames) as well as bottles of prescription drugs, at least one of which was prescribed to Briganti. He also retrieved the suicide note. Deputy Sawtelle did not specifically recall communicating the note and the medications he found to the medical personnel on the scene, but swears it would have been his standard practice to communicate any relevant information to the treating EMTs and paramedics, including the nature of medications or relevant portions of a suicide note.

Briganti was transported in the advanced life support unit to the emergency room at Evergreen Hospital Medical Center, located some distance away. Ames was released from her handcuffs and gave a statement to Sergeant Johannes, who had by then arrived at the scene. A photograph of Ames taken by Sergeant Johannes at the time of her statement shows abrasions on Ames’s right palm. Ames reported to Sergeant Johannes that she was experiencing pain in her right palm, her wrist, her right knee, and her rib cage. Ames then followed Briganti to the hospital to have her injuries checked. Briganti survived his overdose and no charges were filed against Ames or Briganti.

II

Ames brought a number of claims against King County and Deputies Volpe, Sawtelle, and Christian under 42 U.S.C. § 1983. Ames alleged that Deputy Volpe violated her Fourth Amendment rights by arresting her without probable cause, conducting an unreasonable seizure, using excessive force during the arrest, and conducting an unlawful search of her truck. Ames asserted that Deputy Volpe violated her First Amendment rights by retaliating against her after she refused entry to Deputy Volpe. Finally, Ames alleged that King County acted with deliberate indifference to her rights by failing to adequately train its deputies, and brought pendant state law claims of assault, battery, false arrest, and false imprisonment against Deputy Volpe and King County (under a responde-at superior theory).

On summary judgment, the district court granted qualified immunity to Deputy Volpe on all but the excessive force claim (and the related state law assault and battery claims), denied qualified immunity to Deputies Sawtelle and Christian on the unlawful search claim, and dismissed the deliberate indifference claim against King County. Specifically, the district court ruled that it could not resolve as a matter of law whether the amount of force used during Ames’s arrest and the scope of the search of her truck were reasonable. The court also dismissed the state law false arrest and false imprisonment claims against Deputy Volpe and the remaining state law claims against King County.

Deputies Volpe, Sawtelle, and Christian timely appealed the district court’s denial of qualified immunity on the excessive force and unlawful search claims. The district court stayed the case pending resolution of the deputies’ appeal now before us. We have jurisdiction under 28 U.S.C. § 1291. We reverse.

Ill

We review a denial of qualified immunity de novo, viewing the facts and drawing reasonable inferences in the light most favorable to the party opposing summary judgment. Wilkinson, 610 F.3d at 550 (citing Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007)). Where the district court has determined the parties’ evidence presents genuine issues of material fact, such determinations are not reviéwable on interlocutory appeal. See Lee v. Gregory, 363 F.3d 931, 932 (9th Cir. 2004). However, we may adjudicate “legal” interlocutory appeals; that is, we may properly review a denial of qualified immunity where a defendant argues—as the deputies argue here—that the facts,- even when considered in the light .most favorable to the plaintiff, show no .violation of a constitutional right, or no violation of a right that is clearly established in law. See A.K.H. v. City of Tustin, 837 F.3d 1005, 1010 (9th. Cir. 2016) (“A defendant who appeals a denial of qualified immunity on the ground that his conduct did not violate the Fourth Amendment and, in any event, did not violate clearly established law has raised legal issues that may be properly heard in an interlocutory appeal.” (internal quotation marks and alterations omitted) (quoting Plumhoff v. Rickard, — U.S. -, 134 S.Ct. 2012, 2019, 188 L.Ed.2d 1056 (2014))).

IV

“In determining whether an officer is entitled to qualified immunity, we consider (1) whether there has been a violation of a constitutional right; and (2) whether that right was clearly established at the time of the officer’s alleged misconduct.” Lal v. California, 746 F.3d 1112, 1116 (9th Cir. 2014) (citing Pearson v, Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). We may exercise discretion in deciding which of the two prongs to address first. Id.

“A clearly established right is one that is ‘sufficiently clear that every reasonable official would have understood that what he is doing violates that right.’ ” Mullenix v. Luna, — U.S.-, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (per cu-riam) (quoting Reichle v. Howards, 566 U.S. 658, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012)). “We do not require a case to be directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.” Id. (internal quotation marks omitted) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011)). The “clearly established” inquiry, however, “ ‘must be undertaken in light of the specific context of the case, not as a broad general proposition,’ ” and factual specificity is “especially important in the Fourth Amendment context.” Id. (quoting Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (per curiam)). “Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments,” and “protects ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Stanton v. Sims, — U.S.-, 134 S.Ct. 3, 5, 187 L.Ed.2d 341 (2013) (quoting Ashcroft, 563 U.S. at 743, 131 S.Ct. 2074).

With these principles in mind, we review whether Deputies Volpe, Sawtelle, and Christian are entitled to qualified immunity in this case. We conclude that they are.

A

Use of force is a seizure that is subject to the Fourth Amendment’s reasonableness requirement. Wilkinson, 610 F.3d at 550. Under the Fourth Amendment, officers may use only such force as is “objectively reasonable” under the circumstances. Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Accordingly, we must determine, in light of the particular facts and circumstances Deputy Volpe faced at the scene of Briganti’s apparent suicide attempt, whether the actions she took in subduing Ames were objectively reasonable. See Scott, 550 U.S. at 381, 127 S.Ct. 1769. We make this determination “from the perspective of a reasonable officer on the scene” and not “with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396, 109 S.Ct. 1865. Additionally, we recognize “that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Id. at 396-97, 109 S.Ct. 1865. “Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment.” Id. at 396, 109 S.Ct. 1865 (internal quotation marks and citation omitted).

In order to determine whether a use of force was objectively reasonable, courts balance “the nature and quality of the intrusion on the individual’s Fourth Amendment interests” against the “countervailing government interests at stake.” Id.-, see also Scott, 550 U.S. at 383, 127 S.Ct. 1769. Proper application of the test “requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396, 109 S.Ct. 1865. The second of these so-called Graham factors—whether there is an immediate threat to the safety of the arresting officer or others—is the most important. See Smith v. City of Hemet, 394 F.3d 689, 702 (9th Cir. 2005) (en banc).

For purposes of our analysis, we accept Ames’s description of Deputy Volpe’s use of force. Wilkinson, 610 F.3d at 550. Accordingly, we must determine whether, in preventing Ames from obstructing efforts to save Briganti, it was objectively reasonable for Deputy Volpe to execute three head slams and use her knee to pin Ames to the ground. Applying the Graham factors to the particular facts and circumstances of this case, we conclude that Deputy Volpe’s use of force was objectively reasonable.

The government interest in subduing Ames here was substantial. The first Graham factor speaks of the “severity of the crime at issue,” but we think the district court applied this factor too narrowly when it focused on Ames’s misdemeanor obstruction of Deputy Volpe rather than the nature of the ongoing emergency exacerbated by Ames’s resistance. Deputy Volpe was acting in her community care-taking capacity, “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute,” when she responded to the 911 call for help. Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973); see also United States v. Staf ford, 416 F.3d 1068, 1073 (9th Cir. 2005) (explaining that the “emergency doctrine is based on and justified by the fact that, in addition to their role as criminal investigators and law enforcers, the police also function as community caretakers”). Thus, we believe the better analytical approach here under the first Graham factor should be to focus our inquiry not on Ames’s misdemeanor crime of obstruction but instead on the serious—indeed, life-threatening—situation that was unfolding at the time. Ames was prolonging a dire medical emergency through her disregard of Deputy Volpe’s lawful commands, and her actions risked severe consequences. Because the gravity of Deputy Volpe’s community caretaking responsibilities under these circumstances must be factored into the analysis, we conclude that the first Graham factor weighs in Deputy Volpe’s favor.

The second—and most important—Graham factor examines whether Ames presented an immediate danger to Deputy Volpe or others. On this record, we have no difficulty in concluding that she did. In Deputy Volpe’s words, as Ames and the Ebys loaded Briganti into Ames’s truck, Deputy Volpe “continued to be highly concerned for Mr. Briganti’s immediate survival” because he “appeared completely unconscious” and “needed immediate help.” Deputy Volpe, still waiting for backup, and acting on instructions from her patrol supervisor to prevent Ames and Briganti from leaving so that the aid crew could commence treating Briganti at the scene, faced a rapidly escalating situation. After Deputy Volpe blocked Ames’s truck with her vehicle, commanded Ames to stop, and declined to move her vehicle, Ames yelled at the Deputy to “Move your f-ing vehicle” and “Get out of my way” as she started to put her keys in the ignition and reached to close the truck door.

■ Ames admitted she was “panicked,” and testified that she “got angry” when Deputy Volpe told her she could not leave with Briganti. Deputy Volpe was concerned that Ames would further delay Briganti’s access to urgently needed medical care. In light of these circumstances, a reasonable officer on the scene could conclude, as Deputy Volpe did here, that Ames presented an immediate danger. As a result, the second Graham factor weighs in favor of Deputy Volpe.

The third Graham factor also favors Deputy Volpe because undisputed evidence in the record demonstrates Aúnes was actively interfering with Briganti’s medical treatment, physically resisting arrest, and attempting to evade Deputy Volpe by flight. Ames admits Deputy Volpe told her it was unlawful to leave with Briganti and that Ames responded by yelling obscenities and indicating her intent to drive away with him. Ames also testified she grabbed the steering wheel with her right hand when Deputy Volpe began pulling her out of the truck. Finally, Ames described being unable to give Deputy Volpe. her right arm to be cuffed despite Deputy Volpe’s repeated requests. Even if this was because Ames’s arm was pinned beneath her body, from Deputy Volpe’s perspective it reasonably appeared that Ames was still refusing to comply with her requests as part of her ongoing resistance to the officer’s commands. On these facts, the use of force to effect her arrest may have been mistaken, but was not unreasonable.

On balance, we conclude the government interests at stake—here, Brigan-ti’s urgent need for life-saving emergency medical care and the need to protect the first responders and other motorists from potential harm—outweighed any intrusion on Ames’s Fourth Amendment rights. We think Deputy Volpe’s use of force in this case was reasonable in response to the totality of the circumstances. She needed to make a split-second decision during rapidly evolving circumstances to disable Ames. Deputy Volpe did not know whether Ames had access to a weapon in the truck. Ames refused Deputy Volpe’s commands, resisted being pulled from her truck, and (whether or not by choice) was not submitting to being handcuffed. Even were we to conclude Deputy Volpe was mistaken in the judgments she made as to the amount of force required, as a matter of law her actions did not rise to the level of plain incompetence or a knowing violation of clearly established law regarding police actions in response to this serious medical emergency. See Stanton, 134 S.Ct. at 5, 7. Accordingly, Deputy Volpe is entitled to qualified immunity from Ames’s excessive force claim.

B

Deputies Sawtelle and Christian are also entitled to qualified immunity from Ames’s unlawful search claim under the “emergency doctrine.” We previously have recognized that officers acting in their community caretaking capacities and responding to a perceived emergency may conduct certain searches without a warrant or probable cause. See Stafford, 416 F.3d at 1073-74. To determine whether the emergency exception applies to a particular warrantless search, we examine whether: “(1) considering the totality of the circumstances, law enforcement had an objectively reasonable basis for concluding that there was an immediate need to protect others or themselves from serious harm; and (2) the search’s scope and manner were reasonable to meet the need.” United States v. Snipe, 515 F.3d 947, 952 (9th Cir. 2008). Here, the deputies’ search of Ames’s truck falls within the emergency exception.

Deputy Sawtelle had an objectively reasonable basis for concluding Ames’s truck needed to be searched in order to protect Briganti from serious harm—in this instance, the life-threatening harm Briganti faced as a result of his drug overdose. When Deputy Sawtelle arrived on the scene in response to Deputy Volpe’s request for backup, he understood the truck to be a possible overdose scene based on the fact that Briganti had been in the pickup prior to Deputy Sawtelle’s arrival and his knowledge of the presence of the suicide note inside the truck. Deputy Saw-telle explained that it is common practice for officers responding to an attempted suicide call involving a drug overdose to search locations associated with the suicide victim in order to find out what drugs were used in the suicide attempt. The County’s expert further explained: “When a patient has ingested an unknown drug or combination of drugs the need to identify toxins and other potential health hazards is a top priority and is very time sensitive.” We agree with the district court that, given what Deputy Sawtelle knew when he first arrived at the scene, he had an objectively reasonable basis for concluding there was an immediate need to search the truck to find the medications Briganti took in his overdose.

We part ways with the district court on the question whether the scope of the truck search was reasonable to meet the need Deputy Sawtelle identified. We conclude it was reasonable for Deputy Saw-telle to search the glove compartment of the truck, given that the specific purpose of the search was to assist in Briganti’s medical care by finding any medications or drugs he had taken, and that medications and drugs easily can be stored in a glove compartment. Significantly, Deputy Saw-telle stated that he was not “investigating a crime, nor operating to gather evidence of a crime” when he conducted his search of the truck, nor did the search lead to any charges against either Ames or Briganti. Moreover, although Deputy Sawtelle has no specific memory of informing the aid crew of the prescription medications and suicide note he found in the truck, he testified it was his standard practice to do so.

Ames has put forward no evidence to contradict Deputy Sawtelle’s testimony, nor to suggest he was searching her truck for any purpose other than to assist the emergency care for Briganti’s suicide attempt. Instead, Ames claims that if Deputy Sawtelle were really motivated by such a purpose, he would have searched Brigan-ti’s apartment as well. This argument—in essence, that the deputies’ search was unreasonably narrow in scope—is insufficient to defeat summary judgment because it is not evidence that creates a genuine dispute of material fact. The deputies’ search of the truck in furtherance of their duties to assist in resolving an active medical emergency, including the search of the glove compartment, did not violate the Fourth Amendment.

V

Deputy Volpe’s use of force while discharging her community caretaking function was objectively reasonable in light of the unfolding emergency with which she was faced. As the lone law enforcement officer on the scene, responsible for assuring the safety of Briganti, Ames, the first responders, and other motorists, Deputy Volpe needed to act quickly to disable the clearly panicked mother from leaving with her gravely ill son and enable the aid crew immediately to treat Briganti. The level of force Deputy Volpe employed to remove Ames from the truck and apply handcuffs did not rise to the level of a constitutional violation under these circumstances. Likewise, Deputies Sawtelle and Christian did not violate Ames’s Fourth Amendment rights when they searched her truck in an attempt to find the medications Briganti had ingested in his overdose. The deputies’ actions were reasonable under the emergency doctrine and they are entitled to qualified immunity from suit.

That portion of the district court’s order denying qualified immunity on Ames’s excessive force and unlawful search claims is REVERSED and the case is REMANDED to the district court for entry of an order of dismissal.

Each party shall bear its own costs.

      . Where the details are disputed, we rely on Ames's account as the non-moving party for purposes of our review. See Wilkinson v. Torres, 610 F.3d 546, 550 (9th Cir. 2010).

      ,During her subsequent deposition, Ames described her injuries as: "My head, my right wrist, my palms were bleeding, my right knee, .., [m]y left side of my ribcage, all the way over into my back. My neck.”

      . Deputies Sawtelle and Christian also were named in the unlawful search claim,

      . Ames did not oppose the dismissal of this claim.

      . The record demonstrates Deputy Christian assisted in the search of the truck at Deputy Sawtelle’s direction, and does not indicate Deputy Sawtelle instigated the search in response to a request by Deputy Volpe. Accordingly, the relevant inquiry is whether Deputy Sawtelle had an objectively reasonable basis to conclude the truck needed to be searched for evidence of what Briganti had ingested.


source: Caselaw Access Project

author: KLEINFELD, Senior Circuit Judge:

license: Public Domain

text:
    Raul BARAJAS-ROMERO, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
    No. 13-70520
    United States Court of Appeals, Ninth Circuit.
    Submitted April 7, 2014
    Withdrawn from Submission August 19, 2014
    Resubmitted July 30, 2015 San Francisco, California
    Filed January 18, 2017

      Katherine Cheng (argued), Certified Law Student, UCLA School of Law, Los Angeles, California; Michael W. Reynolds (argued), and Carlos M. Lazatin, O’Melve-ny & Myers LLP, Los Angeles, California; for Petitioner.
    Tim Ramnitz (argued), Attorney; Shelley R. Goad, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
    Before: ANDREW J. KLEINFELD, JACQUELINE H. NGUYEN, and PAUL J. WATFORD, Circuit Judges.
   OPINION

KLEINFELD, Senior Circuit Judge:

We address the “principal reason” standard for withholding of removal, and also the acquiescence and relocation standards for Convention Against Torture relief. At issue is why Raul Barajas-Romero was tortured and whether he can be returned to Mexico without likely being tortured again.

I. Facts.

Barajas-Romero came to the United States legally from Mexico as a little boy. He grew up in San Pedro, California. His mother, brothers, children, and grandchildren are American citizens, but he never became naturalized, and he remains a citizen of Mexico. Barajas-Romero was deported in 1998 because of convictions for felony methamphetamine possession and receiving stolen property.

After he was removed from the United States in 1998, Barajas-Romero got a house in Santa Clara, a village in the State of Michoacan, where he had relatives. Two years after he moved to the village, men attacked him and demanded his gold watch and everything in his pockets. He refused to hand them over, so the men hit him on the head, kicked him in the face, and threw him off a bridge. The assault left him with a broken nose, broken teeth, and a wound on his head requiring more than a dozen stitches and leaving a two- or three-inch scar. The men identified themselves by announcing: “Hey, puto, no one messes with the Familia Michoacana.” Barajas-Romero’s political opinion did not come up in this first attack, just the Familia Mi-choacana drug cartel’s pride in its power.

Barajas-Romero reported the assault to the police when he got out of the hospital. He told them La Familia Michoacana were the attackers. The police did nothing. His cousin was kidnaped by La Familia the following year. A couple of years after that, his next door neighbor, who had built a grand house, was murdered when he refused to pay extortion.

In 2006, Barajas-Romero was doing construction work on his house in Santa Clara when the incidents directly giving rise to this case occurred. Four off-duty local police officers arrived at his home. Barajas-Romero recognized them because he got off the bus daily at the police station stop, saw them frequently, and had frequently seen them following him. When he opened the door, the policemen forced him inside, locked the door behind them, and asked him for his money. Barajas-Romero said he had none, but they did not believe him, especially because they saw all the building materials he had purchased for his home.

The foui’ policemen then locked Barajas-Romero in his own bathroom for two days while they deliberated about what to do with him. On the third day they took him out, told him to call his family for money, and began burning him with cigarettes. His leg was permanently scarred, and he later showed the twenty or so scars to the Immigration Judge. Barajas-Romero called his mother, who was in the United States, but she said she had no money she could send. The four policemen thought he could get money if they were more persuasive, so one of them began hitting him all over his body with the blunt side of a machete blade. Barajas-Romero begged them to stop and said his mother was going to try to get money from his brothers.

However, Barajas-Romero did not merely beg. He also made a remark that annoyed the four policemen and could be construed as expressing or manifesting an anti-corruption political opinion. Barajas-Romero testified that he “got a little bold and told them even if I had the money I wouldn’t give it to you guys because you guys are getting paid for the job, I don’t pay no corrupt cops, nothing.”

The torture became much worse after Barajas-Romero’s “corrupt cops” remark. The four policemen threw him back in the bathroom, but this time they did not just leave him there. They lifted his pants and put two scorpions on his legs. Both scorpions stung. Barajas-Romero became feverish, swollen, and had trouble breathing.

While the policemen tortured him with scorpions, they also rubbed a dried corncob back and forth on his forehead to make him bleed and cause a permanent scar. They told him that if he told anyone what happened, they would put a bullet through his permanent scar. When Bara-jas-Romero begged for mercy, the policemen responded by threatening to cut his head off with a machete and slashed his leg, causing a deep laceration. Then they locked him in the bathroom again. Barajas-Romero could not move and passed out from pain, fever, and difficulty breathing.

The next morning the four policemen were gone, and Barajas-Romero stumbled out of his house. His neighbors tried to help him. A police officer arrived and asked what happened, and Barajas-Rome-ro told him that his colleagues had done this. The police officer stopped preparing his report, stopped talking to Barajas-Romero, and dropped him off him at the local clinic without saying a word. The police never asked Barajas-Romero to come in to identify the officers who had attacked him or for any other information regarding their identities. The local clinic where he had been dropped off refused to treat him once they learned that his torturers were police officers. A second medical facility likewise refused to treat him out of fear. Fortunately, a third hospital, one about an hour away from Santa Clara, did treat his injuries. He was hospitalized for two weeks. Approximately a month after his release, Barajas-Romero fled Mexico for the United States because he felt that he could not trust the police anywhere in Mexico, and the mark on his forehead would be, as his torturers had told him, where a bullet would go if he returned.

Barajas-Romero reentered the United States with a false passport and was eventually caught in 2010. Barajas-Romero was charged, convicted, and imprisoned for illegal reentry, and then turned over to Immigration and Customs Enforcement (“ICE”). ICE commenced proceedings to reinstate his prior deportation order. These proceedings are the subject of the petition before us. Barajas-Romero was found statutorily eligible for withholding of removal and Convention Against Torture relief.

At his hearing before the Immigration Judge in 2012, Barajas-Romero provided medical evidence to support his claims. As one example, when Barajas-Romero’s lawyer showed the Immigration Judge Bara-jas-Romero’s leg, she said “may the record reflect ... close to 20 cigarette burns or more on respondent’s left leg.” Government counsel conceded that he saw perhaps 15 circular scars of some sort. Bara-jas-Romero’s counsel then pointed to an exhibit, a physician’s report saying that the scars were “typical purposeful cigarette burns ... resemb[ling] the cigarette burns caused by torture.” Similarly, a physician’s report also confirmed a 12 centimeter (4 3/4 inches) scar on his leg consistent with a deep laceration, with consequential damage to the veins and chronic swelling of the leg. Barajas-Romero remains on medication for his physical injuries, and for the post-traumatic stress disorder caused by his torture. The Immigration Judge found Barajas-Romero to be credible, and none of the horrendous facts concerning Barajas-Romero’s torture are in question. The issues in this case have to do with Barajas-Romero’s right to remain in the United States because of his torture, not whether torture occurred.

The Immigration Judge denied Barajas-Romero’s withholding of removal claim on the ground that the persecution “was solely an effort to extort money by rogue police officers and not because of an expressed or implied [or imputed] political opinion” and the threat came “solely from the off-duty, rogue officers themselves and not the government.” He noted that Mexico has laws against torture and corruption, and thousands of police officers have been dismissed for violating them. As for the Convention Against Torture claim, the Immigration Judge determined that Barajas-Romero had the ability to find someplace “acceptable to his standards” of safety to live in Mexico.

The BIA agreed. While the BIA did not disagree that Barajas-Romero’s testimony was credible, the BIA held that Barajas-Romero’s withholding of removal claim failed because he failed to prove that the harm he suffered “was fueled by any political motives, even though ... [Barajas-Romero] expressed to his attackers that he was against police corruption. Rather, the attacks were designed to extort money.” As for the Convention Against Torture claim, the BIA held that Barajas-Romero did not show “that any particular officer’s actions or acquiescence would not be that of a rogue official.” The BIA also held that “the country is aggressively targeting corrupt government elements” and that Bara-jas-Romero “could relocate out of the area.”

Barajas-Romero petitions for review. First, he argues that the BIA applied an erroneous standard to his withholding claim. Second, he argues that the BIA failed to consider the Mexican government’s lack of success in its war on gangs, and corruption and the nationwide danger facing him if he returned to Mexico.

II. Analysis

A. Withholding of removal.

The Attorney General must, in general, withhold removal of an alien if the alien’s life or freedom would be threatened “because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” Barajas-Romero argues that his life and freedom would be threatened, at least in part, because of his anti-corruption political opinion. There is ample evidence in the record that the local police and the local drug cartel targeted him without knowing anything about his political opinion, merely because they thought they could get money from him. There is also ample evidence that the police escalated their torture considerably, from confinement, beatings, and cigarette burns, to scorpions, slashing with a machete, and permanent conspicuous facial disfigurement, after he voiced his opposition to police corruption. The parties dispute the extent to which political opinion must be the basis for the threat for the threat to be “because” of the political opinion.

For purposes of asylum or withholding of removal, it is not enough that a person comes from a wretched place, where life will most probably be far worse than if he remains in the United States. For asylum, a person generally needs to face persecution in his home country “on account of race, religion, nationality, membership in a particular social group, or political opinion.” The person seeking asylum has the burden of proving not only the prospective persecution, but also that it would be “on account of’ one of the five listed reasons. A person seeking withholding of removal must prove not only that his life or freedom will be threatened in his home country, but also that the threat is “because of’ one of the five listed reasons. The list of reasons for which relief may be granted is identical for both asylum and withholding of removal.

The words “on account of’ and “because of’ address the persecutor’s motive for persecuting the victim. For example, if the persecutor has no idea what the victim’s political opinion is and does not care what it is, then even if the victim does reasonably fear persecution, it would not be “on account of’ the victim’s political opinion. But what if the persecutor does have some idea of the victim’s political opinion and feels quite hostile to that opinion, but also has other reasons for persecuting the victim? People, including persecutors, often have mixed motives. When is the persecution, motivated only in part by hostility to the victim’s political opinion, “because of’ or “on account of’ that opinion?

We adopted the Second Circuit’s position in our 1999 en banc decision in Borja v I.N.S., holding that persecution “on account of’ political opinion did not mean persecution solely for that reason. The victim in that case sought asylum because Communist guerrillas in the Philippines had pointed a gun at her and threatened to kill her when she said she was pro-government, but were also upset that she could not pay the increased amount of monthly protection money they demanded. They persecuted her partly because she was pro-government and partly just for the money. We held that persecution was “on account of’ political opinion if it was so motivated “at least in part.”

Our “at least in part” standard is no longer the law with regard to asylum applicants. Congress amended the statute, so that for asylum, the victim’s political opinion has to be “one central reason.” When we decided Borja, the statute did not indicate the appropriate burden of proof for establishing that persecution was “because of’ (or “on account of’) a protected ground. However, the asylum statute now states:

the applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.

But Congress did not similarly amend the withholding of removal statute, and Barajas-Romero seeks withholding of removal, not asylum. The withholding statute just says “a” reason, not “at least one central reason:”

In determining whether an alien has demonstrated that the alien’s life or freedom would be threatened for a reason described in subparagraph (A) [race, religion, political opinion, etc.], the trier of fact shall determine whether the alien has sustained the alien’s burden of proof, and shall make credibility determinations, in the manner described in clauses (ii) and (iii) of section 1158(b)(1)(B) of this title.

Congress’s decision to adopt the “one central reason” standard for asylum but not withholding of removal claims appears to have been the product of a deliberate choice, rather than a mere drafting oversight. When Congress amended the withholding of removal statute to clarify the applicable burden of proof, it cross-referenced clauses (ii) and (iii) of the asylum statute’s burden-of-proof provision, but not clause (i). Clause (i) is the provision that imposed the “one central reason” standard for asylum claims. Congress’s express incorporation of two of the three asylum burden-of-proof provisions into the withholding of removal statute, but not the provision including the “one central reason” language, indicates that Congress did not intend for the “one central reason” standard to apply to withholding of removal claims. See Kucana v. Holder, 558 U.S. 233, 249, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010) (“Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”).

The government argues that “one central reason” and “a reason” mean the same thing. Barajas-Romero argues that the different words used in each statute mean different things. We agree with Barajas-Romero. The phrase “a reason” includes weaker motives than “one central reason.”

A person may have “a reason” to do something that is not his “central” reason or even “one central reason.” Ordinary English usage, and the ordinary canon of statutory construction reflecting “the same common-sense premise that when people say one thing, they do not mean something else” indicate that we should attribute some operative meaning to the congressional decision to use the phrase “at least one central reason” in one statute but not the other. Sometimes omission of a phrase implies a negative pregnant, and sometimes it does not. Considering how controversial the reason for persecution has been in the immigration law community, the express congressional narrowing of one statute but not the other to “one central reason” cannot reasonably be read so to narrow both.

The BIA in this case followed its own precedent in Matter of C-T-L-. C-T-L-held that the “one central reason” test for asylum applies to withholding, even though the withholding statute says merely “a reason.” The BIA came to this conclusion because: (1) the withholding statute is silent on whether the “one central reason” standard applies, (2) the general intent of the REAL ID Act was to correct what Congress saw as an anomaly created by Borja v. I.N.S. and Briones v. I.N.S. in mixed motive cases, and (3) before the REAL ID Act the Immigration and Naturalization Service (“INS”) applied the same standard to asylum and withholding. This analysis starts with a false premise that Congress was “silent.” It was not. It explicitly said “at least one central reason” for asylum, and “a reason,” an expressly different standard, for withholding.

The government argues that we should accept the BIA’s view in C-T-L- because we assumed in Zetino v. Holder that the “one central reason” standard applies to withholding as well as asylum claims. Zeti-no does not so hold. The alien in that case sought asylum and withholding, but submitted no evidence that the feared persecution had anything to do with actual or imputed political opinion. His evidence was that masked gunmen murdered his family members to steal his grandfather’s land and that his home country, El Salvador, was infested with violent gangs. We drew no distinction between the “one central reason” phrase in the asylum statute and the “a reason” phrase in the withholding statute, because there was no nexus at all between the feared persecution and political opinion.

We hold that “a reason” is a less demanding standard than “one central reason.” The statutory language is unambiguously different, with different meanings, so there is no ambiguity justifying deference to the administrative agency’s contrary view. The different language should not be treated as though it means the same thing. The withholding statute differs from the asylum statute in various ways, not just this one, so there is no reason to assume that Congress meant for them to be the same in this respect. The withholding statute requires applicants to prove that it is more likely than not they will be persecuted, while the asylum statute requires only a “well-founded fear” of persecution, so the lighter standard for the strength of the nexus is offset by the more demanding standard of proof in the withholding statute. Since in withholding the petitioner must show a probability, not just a well-founded fear, of persecution, Congress may have diluted the nexus requirement in order to afford more protection against mistaken deportations where a protected ground played into that likelihood.

That is not the end of the withholding issue, though. The government argues that the police kidnaped and tortured Barajas-Romero to extort money, so his voicing of a political opinion on the third day of his kidnaping and torture could not mean that the torture was because of or on account of his previously unknown and irrelevant (to the persecutors) anti-corruption opinion. The evidence, though, is not unambiguous. The torture became much worse after Ba-rajas-Romero voiced his anti-corruption opinion. Because the BIA accepted the government’s view under the wrong standard, we remand to the BIA to decide the case under the correct standard: “a reason” rather than “one central reason.”

B. Convention Against Torture.

Congress provided that “it shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing that the person would be in danger of being subjected to torture.” It directed that the appropriate agencies should adopt regulations to implement the provisions of the Convention Against Torture (“CAT”). The implementing regulations are at 8 C.F.R. §§ 208.16-.18.

For CAT relief, the alien must prove that it is “more likely than not that he or she would be tortured if removed to the proposed country.” The torturers’ motivations need not relate to the five protected classifications for asylum or withholding of removal, so Barajas-Rome-ro can establish entitlement to relief under CAT even if he cannot establish motivation related to his political opinion. What matters is the probability of future torture, which under circuit law includes killing, carried out or knowingly acquiesced in by a public official. All evidence relevant to the probability of future torture must be considered, including past torture and country conditions.

Neither the BIA, the Immigration Judge, nor the government’s brief, puts at issue whether Barajas-Romero’s ordeal amounted to torture. The issue is that to be entitled to CAT relief, the torture must be “inflicted by or at the instigation of or with the consent or acquiescence of a pub-lie official or other person acting in an official capacity.” “Acquiescence of a public official requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity.”

The BIA rejected Barajas-Romero’s claim on the grounds that the police who tortured him were “rogue officials” and he had not proved that he could not avoid the threat by relocating. Here is the entire portion of the opinion explaining rejection of the claim:

We find no clear error in the Immigration Judge’s finding that there are insufficient facts in this case to support the legal determination that Mexican officials, acting under “color of law,” will more likely than not torture the applicant (or acquiesce in his torture) if he returns to Mexico. The facts here are simply inadequate to show such pervasive corruption that any particular officer’s actions or acquiescence would not be that of a rogue official (I.J. at 6-7). As noted by the Immigration Judge, the Mexican government’s laws and enforcement policies make it clear that the country is aggressively targeting corrupt government elements. The Immigration Judge also observed that the respondent could relocate out of the area where the 2006 attack occurred (I.J. at 7). Accordingly, the applicant has not met his burden of demonstrating eligibility for protection under the CAT.

The portions of the Immigration Judge’s opinion to which the BIA refers say, regarding the “rogue official” issue, that although drug cartel violence and police corruption do exist in Mexico, the national government aggressively seeks to eliminate them:

Here there is evidence in the country report of both drug cartel violence and police corruption. As mentioned, police corruption has been identified and targeted by Mexican authorities. There are laws on the books and verifiable efforts to root out corruption in government. Still, rogue elements do operate; however, the Mexican government’s laws and enforcement policies make it clear the country is aggressive against such groups. The evidence does not establish that it is more likely than not if the Respondent was returned to Mexico he would suffer torture at the hands of the government or persons acting in an official capacity or aiding or acquiescing in his torture by others. Wakkary v. Holder, 558 F.3d 1049 (9th Cir. 2009).

Regarding relocation, the Immigration Judge says that both California and Mexico have dangerous communities, and Bara-jas-Romero could relocate to “any region where he feels safe” and that is “populated by individuals, businesses, and employers acceptable to his standards”:

Respondent has painted the entire country of Mexico as a potential threat to him from a 2006 incident. The Court is not persuaded that is the case. Respondent has the ability to locate in any region where he feels safe or where he has access to authorities should he be threatened or attacked. Whether in California or Mexico, each region has communities that are both dangerous and secure. The key for Respondent would be to locate in an area populated by individuals, businesses and employers acceptable to his standards.

The statute and regulations do not establish a “rogue official” exception to CAT relief. The regulations say that torture, for purposes of relief, has to be “at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” The four policemen were “public officials,” even though they were local police and state or federal authorities might not similarly acquiesce. Since the officers were apparently off-duty when they tortured Barajas-Romero, they were evidently not acting “in an official capacity,” but the regulation does not require that the public official be carrying out his official duties, so long as he is the actor or knowingly acquiesces in the acts. The regulation uses the word “or” between the phrases “inflicted by ... a public official” and “acting in an official capacity.” The word “or” can only mean that either one suffices, so the torture need not be both by a public official and also that the official is acting in his official capacity. An “and” construction would require that the conjunction be “and.” The record leaves no room for doubt that the four policemen were public officials who themselves inflicted the torture.

CAT relief is forward-looking, requiring the applicant prove that it is more likely than not that he would be tortured if he were removed to the proposed country,not that he was tortured in the past. The alien must prove not only that torture will more likely than not occur, but also that there is sufficient state action involved in the torture. Public officials acquiesce in torture if they: “(1) have awareness of the activity (or consciously close their eyes to the fact it is going on); and (2) breach then-legal responsibility to intervene to prevent the activity because they are unable or unwilling to oppose it.” CAT relief is unavailable, despite a likelihood of torture, without evidence that the police are unwilling or unable to oppose the crime, not just that they are unable to solve it, as when the torturers cannot be identified. Police ineffectiveness is not enough to establish an entitlement to relief, “absent evidence of corruption or other inability or unwillingness to oppose criminal organizations.” State involvement may be established, though, where “police officials were corrupt, and worked on behalf of criminals or gangsters.”

The BIA’s “rogue official” rationale is inconsistent with circuit law. The BIA held that the danger Barajas-Romero faced from the drug cartel and corrupt police did not establish government involvement because Mexican law, and national policy to root out the corruption, established the absence of official acquiescence. But we held in Madrigal v. Holder that “if public officials at the state and local level in Mexico would acquiesce in any torture [petitioner] is likely to suffer, this satisfies CAT’s requirement that a public official acquiesce in the torture, even if the federal government in Mexico would not similarly acquiesce.” The four police who tortured Barajas-Romero and told him he would be killed if he returned to Mexico were themselves government officials. As we held in Madrigal, the “efficacy of the government’s efforts to stop the drug cartels’ violence,” not just the willingness of the national government to do so, must be examined. Here, the BIA focused only on the national government’s efforts and not their efficacy, which was mistaken under Madrigal.

The other part of the BIA’s rationale was that Barajas-Romero could relocate “to any region where he feels safe or has access to the authorities” in some “area populated by individuals, businesses and employers acceptable to his standards.” The BIA did not articulate what standard of proof it applied when considering relocation, nor why it rejected Barajas-Romero’s evidence to the contrary. The policemen had marked his forehead with a permanent scar to make him recognizable, and they told him that “that is where the bullet would be” if he was seen anywhere in Mexico or if he reported the incident, which he did. The State Department Human Rights Report on Mexico, while recognizing the national government’s efforts to eliminate corruption and police entanglement with drug cartels, said that “corruption remained a problem at all levels of government,” and some “public officials continued to perpetrate ... some criminal acts with impunity.” The State Department cited with approval reports that “police, especially at the state and local level, were involved in kidnapping, extortion, and in providing protection for, or acting directly on behalf of, organized crime and drug traffickers.” The State Department mentioned a member of Mexico’s national congress, at large as a fugitive, who according to prosecutors was in charge of providing institutional protection to La Familia, the drug cartel who, along with the police, acted against Barajas-Romero.

We recently held in Maldonado v. Lynch that, although a petitioner bears the ultimate burden to prove he would be tortured if returned to his country, the petitioner does not bear the burden under 8 C.F.R. § 1208.16(c)(3) to show that it is impossible to avoid torture by internally relocating within a country. In doing so en banc, we overruled our earlier line of authority which had established that the petitioner bore the burden of proving that he would be unable to live safely elsewhere in the country. We held that “[t]he regulations governing CAT deferral, unlike the asylum regulation, do not call for any burden shifting.” The regulation, rather than imposing a burden of proof, says that all evidence bearing on the likelihood of future torture should be “considered,” including but not limited to past torture, possibility of safe relocation, country evidence of flagrant human rights violations, and other evidence regarding country conditions.

The BIA ruled in this case before Maldonado came down, so it doubtless applied what was then the applicable law, that Barajas-Romero had the burden of proving that he could not safely relocate. The State Department country report says that the national government in Mexico is trying to eliminate widespread police corruption and police cooperation with drug cartels, but it is very much an ongoing effort rather than a completed reform. Past evidence of torture is uncontradicted and substantial. There was not much evidence presented on relocation beyond Barajas-Romero’s testimony that the police who tortured him told him that if he returned to Mexico, not just the village of Santa Clara, a bullet would go where they had scarred his forehead, and the State Department country report, which does not identify a safe place for individuals who have become targets of drug cartels and the police.

Because the BIA did not evaluate relocation under the no-burden-shifting standard, and applied the incorrect standard in assessing Barajas-Romero’s withholding claim, we remand pursuant to INS v. Ven-tura so that the BIA may conduct such proceedings as may be appropriate to evaluate the factors for CAT relief under the standard we set out in Maldonado and review Barajas-Romero’s withholding

claim under the proper legal standard of “a reason.”

PETITION GRANTED.

      . 8U.S.C. § 1326.

      . 8 U.S.C. § 1231(b)(3)(A):
      (A) In general
      Notwithstanding paragraphs (1) and (2), the Attorney General may not remove an alien to a country if the Attorney General decides that the alien's life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.

      .8 U.S.C. § 1101(a)(42):
      The term "refugee” means (A) any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, or (B) in such special circumstances as the President after appropriate consultation (as defined in section 1157(e) of this title) may specify, any person who is within the country of such person’s nationality or, in the case of a person having no nationality, within the country in which such person is habitually residing, and who is persecuted or who has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. The term "refugee” does not include any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion. For purposes of determinations under this chapter, a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.

      . 8 U.S.C. § 1158(b)(B)(l); 8 U.S.C. § 1101(a)(42).

      . 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 208.16(b).

      . I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); Navas v. I.N.S., 217 F.3d 646, 656-57 (9th Cir. 2000).

      . Borja v. I.N.S., 175 F.3d 732, 735 (9th Cir. 1999).

      . Id. at 734-35.

      . Id. at 737.

      . Id. at 735-36.

      . Antiterrorism and Effective Death Penalty Act of 1996, PL 104-132, April 24, 1996, 110 Stat 1214; Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005, PL 109-13, May 11, 2005, 119 Stat 231; 8 U.S.C. § 1231(3)(A).

      . 8 U.S.C. § 1158 (1996) (current version at 8 U.S.C. § 1158 (2009)).

      . 8 U.S.C. § 1158(b)(l)(B)(i) (emphasis added).

      . 8 U.S.C. § 1231(b)(3)(C) (emphasis added). Clauses (ii) and (iii) discussed in the quote refer to the credibility rules for asylum applicants located directly after the subsection requiring "one central reason." 8 U.S.C. § 115 8(b)(1)—(iii).

      . 8 U.S.C. § 1231(b)(3)(C).

      . Kucana, 558 U.S. at 249, 130 S.Ct. 827 (2010).

      . 2A Sutherland Statutory Construction § 47:23 (7th ed.).

      . Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1313 (9th Cir. 1992).

      . Matter of C-T-L-, 25 I. & N. Dec. 341 (2010).

      . Id. at 344.

      . Borja, 175 F.3d 732.

      . Briones v. I.N.S., 175 F.3d 727 (9th Cir. 1999).

      . C-T-L-, 25 I. & N. Dec. at 344-48.

      . Zetino v. Holder, 622 F.3d 1007 (9th Cir. 2010).

      . Zetino, 622 F.3d at 1015-16.

      . Id. at 1010.

      . Id. at 1016.

      . Cf. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

      . See Kucana, 558 U.S. at 249, 130 S.Ct. 827.

      . 8 C.F.R. § 208.16.

      . Under 8 U.S.C. § 1158(a), an applicant “is eligible for asylum if he is a 'refugee,' i.e., if he is unable or unwilling to return to his home country 'because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.' " Lim v. I.N.S., 224 F.3d 929, 934 (9th Cir. 2000) (quoting 8 U.S.C. § 1101(a)(42)(A)).

      .Foreign Affairs Reform and Restructuring Act of 1998 ("FARRA''), Pub.L. No. 105-277, Div. G, Title XXII, § 2242, 112 Stat. 2681-822 (1998) (codified as a note to 8 U.S.C. § 1231 (1999)).

      . Id.:

      (b) Regulations.—Not later than 120 days after the date of enactment of this Act [Oct. 21, 1998], the heads of the appropriate agencies shall prescribe regulations to implement the obligations of the United States under Article 3 of the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment, subject to any reservations, understandings, declarations, and provisos contained in the United States Senate resolution of ratification of the Convention.

      . 8 C.F.R. § 208.16(c)(2).

      . The five protected classifications for asylum are "race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(42); 8 U.S.C. § 1231(3)(A).

      . Cole v. Holder, 659 F.3d 762, 771 (9th Cir. 2011).

      . Id.

      . 8 C.F.R. § 208.16:
      (3) In assessing whether it is more likely than not that an applicant would be tortured in the proposed country of removal, all evidence relevant to the possibility of future torture shall be considered, including, but not limited to:
      (i) Evidence of past torture inflicted upon the applicant;
      (ii) Evidence that the applicant could relocate to a part of the country of removal where he or she is not likely to be tortured;
      (iii) Evidence of gross, flagrant or mass violations of human rights within the country of removal, where applicable; and
      (iv) Other relevant information regarding conditions in the country of removal.

      . 8 C.F.R. § 208.18(a)(1).

      . 8 C.F.R. § 208.18(a)(7).

      . 8 C.F.R. § 208.18(a)(1).

      . Madrigal v. Holder, 716 F.3d 499, 510 (9th Cir. 2013).

      . Garcia-Milian v. Holder, 755 F.3d 1026, 1033 (9th Cir. 2014).

      . Id. at 1034.

      . Id.

      . Id.

      . Id. at 1035.

      . Madrigal, 716 F.3d at 510.

      . Id. at 509

      . Id.

      . Maldonado v. Lynch, 786 F.3d 1155, 1163 (9th Cir. 2015) (en banc).

      . Id.

      . 8 C.F.R. § 1208.16:
      (3) In assessing whether it is more likely than not that an applicant would be tortured in the proposed country of removal, all evidence relevant to the possibility of future torture shall be considered, including, but not limited to:
      (i)Evidence of past torture inflicted upon the applicant;
      (ii) Evidence that the applicant could relocate to a part of the country of removal where he or she is not likely to be tortured;
      (iii) Evidence of gross, flagrant or mass violations of human rights within the country of removal, where applicable; and
      (iv) Other relevant information regarding conditions in the country of removal.

      . I.N.S. v. Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).


author: WILLIAMS, Senior Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. James Antonio JONES, also known as Tonio, Appellant.
    No. 15-3063 Consolidated with 15-3064
    United States Court of Appeals, District of Columbia Circuit.
    Argued October 21, 2016
    Decided January 24, 2017

      Tony Axam Jr., Assistant Federal Public Defender, argued the cause for appellant. With him on the briefs was A.J. Kramer, Federal Public Defender.
    Nicholas P. Coleman, Assistant U.S. Attorney, argued the cause for appellee. With him on the briefs were Elizabeth Trosman, Chrisellen R. Kolb, William B. Wiegand, and John Dominguez, Assistant U.S. Attorneys.
    Before: KAVANAUGH and WILKINS, Circuit Judges, and WILLIAMS, Senior Circuit Judge.
   WILLIAMS, Senior Circuit Judge:

Appellants Melvin Butler and James Antonio Jones are each serving lengthy prison sentences for drug offenses. Based on a recent retroactive amendment to the United States Sentencing Guidelines, they sought reductions of those sentences under 18 U.S.C. § 3582(c)(2). Although the district court agreed that it could reduce their sentences, it declined to do so after considering the relevant factors listed in 18 U.S.C. § 3553(a). United States v. Butler, 130 F.Supp.3d 317 (D.D.C. 2015).

Appellants challenge those denials as substantively unreasonable. Before reaching the merits, we must consider our statutory basis to hear these appeals and whether that authority extends to reviewing the reasonableness of the district court’s decisions. Since we find that 28 U.S.C. § 1291 permits such review, we consider the underlying denials and, finding them to be reasonable, we affirm.

Section 3582 of Title 18 sets out the statutory background for the district court proceedings that we review. While it starts with the general proposition that a court may not modify a term of imprisonment “once it has been imposed,” it goes on to create exceptions, notably § 3582(c)(2). Where a defendant has been sentenced to a term “based on a sentencing range that has subsequently been lowered by the Sentencing Commission ..., the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) ... if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” Id. § 3582(c)(2); see U.S.S.G. § lB1.10(a) (policy statement on reductions); see also Dillon v. United States, 560 U.S. 817, 826-27, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010) (further explaining the framework).

Along with several others, appellants were convicted in 1989 of conspiracy to distribute large amounts of cocaine. After post-tidal motions and appeals (the details of which are not relevant here), the district court determined that, based on the quantity of drugs and various enhancements, the then-mandatory Sentencing Guidelines provided a range of 324 to 405 months for both Butler and Jones. The district court then imposed sentences at or near the top of that range—405 months for Butler and 393 months for Jones. According to the Bureau of Prisons, Butler is scheduled to be released on October 14, 2017 and Jones on February 23, 2018.

Roughly twenty years later, the Sentencing Commission adopted amendments that authorized retroactive reduction of the sentences for most drug offenses. Unlike prior amendments that targeted specific substances, Amendment 782 worked an across-the-board reduction in the offense levels for most drug crimes. And in Amendment 788 the Commission provided for courts to apply the reduction retroactively after determining that offense levels had previously been set unnecessarily high and “that a reduction would be an appropriate step toward alleviating the overcapacity of the federal prisons.” U.S.S.G. Supp. to App’x C, Amend. 788 at 86. But the Commission built a one-year delay into its retroactivity amendment (until November 1, 2015), “to give courts adequate time to obtain and review the information necessary to make an individualized determination ... of whether a sentence reduction is appropriate” based on the § 3553(a) factors. Id. at 87; see also U.S.S.G. § lB1.10(e)(l).

Appellants filed unopposed motions invoking Amendment 782 to reduce their sentences to time served as of November 1, 2015. The district couit agreed that appellants were each eligible for a reduction under Amendment 782, which reduced their sentencing ranges to 262 to 327 months. Butler, 130 F.Supp.3d at 321. (Although by that point appellants had each served more than 327 months, the terms of Amendment 788 limited their maximum benefit to release on its November 1, 2015 start date.) Despite appellants’ eligibility for reductions, the district court considered defendants’ motions in light of the § 3553(a) factors and held that any reductions were unwarranted. See id. Accordingly it denied the sentence-reduction motions. We address this reasoning in detail when we reach the merits.

Until now we haven’t seriously considered our authority to review § 3582(c)(2) sentence reductions, or denials of such reductions, either pursuant to our broad authority to review any final order of the district courts, 28 U.S.C. § 1291, or the more specific power in 18 U.S.C. § 3742(a)(1), which we have read as allowing us “to review any sentence for reasonableness,” United States v. Dorcely, 454 F.3d 366, 373-74 & n.4 (D.C. Cir. 2006) (relying on United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)). Our prior decisions either silently assumed jurisdiction, e.g., United States v. Lafayette, 585 F.3d 435 (D.C. Cir. 2009), or merely stated without analysis that it existed, e.g., United States v. Kennedy, 722 F.3d 439, 442 (D.C. Cir. 2013) (jurisdiction under § 1291); United States v. Cook, 594 F.3d 883, 885 (D.C. Cir. 2010) (jurisdiction under both § 1291 and § 3742). Of course, those cursory and unexamined statements of jurisdiction “have no precedential effect.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 91, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); see Lewis v. Casey, 518 U.S. 343, 352 n.2, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). But as the Sixth Circuit has found in United States v. Bowers, 615 F.3d 715 (6th Cir. 2010), that it could not hear a nearly identical appeal under either 28 U.S.C. § 1291 or 18 U.S.C. § 3742, we thought it necessary to grapple with the issue more explicitly and ordered supplemental briefing.

Denials of sentence reductions are unquestionably “final decisions of [a] district court[]” because they close the criminal cases once again. 28 U.S.C. § 1291; see Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S.Ct. 1494, 103 L.Ed.2d 879 (1989) (decision is final when it leaves nothing further to be done). So § 1291 obviously looks promising. But a would-be appellant cannot use that broad grant of jurisdiction to circumvent statutory restrictions on sentencing appeals in § 3742. In re Sealed Case, 449 F.3d 118, 121 (D.C. Cir. 2006). Thus the presence of § 3742 might pose an obstacle if an appeal under that section were available and if its provisions barred review for reasonableness, as Bowers held, 615 F.3d at 723-28. Indeed, the government invokes our pre-Booker decision in United States v. Hazel, 928 F.2d 420, 422-25 (D.C. Cir. 1991), which read § 3742 to bar such review. Section 3742(a) allows a defendant to appeal on ground of “violation of law,” “incorrect application of the sentencing guidelines,” or any upward departure from the Guideline range, and Hazel read those specifics to have a negative implication, precluding appeals claiming only unreasonableness. We look at the situation first in light of our circuit law, which in fact now allows review for reasonableness in § 3742 appeals. This completely moots the theory that use of § 1291 would undercut § 3742’s limitations. We will then briefly consider the situation independent of the “undercutting” theory.

While Hazel would be binding in the absence of Booker, that case radically changed the landscape by eliminating the Guidelines’ mandatory character. With a sentencing judge’s departure from a specified “range” no longer subject to the special requirements of 18 U.S.C. § 3553(b)(1), any negative implications from the specific provisions of § 3742(a) or (b) made little sense, and Booker tidied the situation up by declaring that the Sentencing Reform Act “implicitly” provided for review for reasonableness. 543 U.S. at 260-62, 125 S.Ct. 738. See also Rita v. United States, 551 U.S. 338, 341, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) (“The federal courts of appeals review federal sentences and set aside those they find ‘unreasonable.’ ”). Congruent with if not absolutely compelled by Booker, we have made it clear that § 3742 allows us to review “any sentence” for reasonableness, “whether within the Guidelines range or not.” Dorcely, 454 F.3d at 374 (emphasis added); see also United States v. Olivares, 473 F.3d 1224, 1231 (D.C. Cir. 2006). Thus § 3742 presents no problem for review under § 1291.

Of course the proposition that an appellant can’t avoid restrictions under a path of review designed for his case by proceeding along a more general avenue of review presupposes that the path avoided was actually available. In fact we have serious doubt as to whether a statute specifically directed at appeals of sentences (§ 3742) also extends to those challenging the denial of a § 3582(c)(2) reduction. Section 3742 provides for appeals “of an otherwise final sentence.” But “a district court proceeding under § 3582(c)(2) does not impose a new sentence in the usual sense.” Dillon, 560 U.S. at 827, 130 S.Ct. 2683. Indeed, reasoning that an order modifying a sentence “is not, properly speaking, a sentence,” at least one circuit has held that § 3742 is inapplicable to any appeal from a sentence-reduction decision, thus leaving free rein for § 1291. United States v. McAndrews, 12 F.3d 273, 277 (1st Cir. 1993) (Rule 35(b) reduction). But see, e.g., United States v. McDowell, 117 F.3d 974, 977 & n.3 (7th Cir. 1997) (reasoning that a granted reduction results in a new, modified sentence and so falls within § 3742). Particularly since here the district court’s denials of appellants’ sentence-reduction motions resulted only in final orders—not new sentences by any definition—it appears that at least the most obvious reading of § 3742 renders it inapplicable. Cf. United States v. Washington, 759 F.3d 1175, 1180 (10th Cir. 2014) (finding jurisdiction under § 1291 albeit based on different reasons); United States v. Colson, 573 F.3d 915, 916 (9th Cir. 2009) (reaching the same conclusion but providing little in the way of reasoning).

In any event, the availability of appeal under § 3742 need not detain us, given the absence of any obstacle to review for reasonableness under § 1291.

Thus we reach the merits, and start with a review of the evidence on which the appellants were convicted. The two were key members of a drug ring that brought massive amounts of Colombian cocaine into the District over the course of the 1980s. Led by Rayful Edmond III, the group sold the bulk of that cocaine in an open-air drug market in Northeast D.C. known as “the Strip.” See United States v. Edmond, 52 F.3d 1080, 1084-86 (D.C. Cir. 1995). Because Butler supplied the organization with the Colombian cocaine that fueled its growth, he occupied a position at the very top of the organization (essentially equal to Edmond himself). Once the drugs arrived in the District, Jones (along with a few others) managed their distribution—overseeing day-to-day drug dealing on the Strip and supervising the “lieutenants” (who supplied street-level dealers and collected the proceeds of their sales). As one of the gang’s “enforcers,” Jones “use[d] force ... to keep rival drug distributors from” dealing in their territory and “to ensure that no one interfered with the daily operation ... on the ‘Strip.’ ” Pre-Sentence Report ¶ 33 (Feb. 13, 1990). After a lengthy jury trial, eleven members of the gang (including Butler and Jones) were convicted of conspiracy to distribute cocaine. The trial judge calculated a range of 324 to 405 months under the Guidelines and sentenced Butler at the very top and Jones just below (393 months). (It is unclear why Jones’s sentence was lower.) As we noted at the start, the reduced range applicable under Amendment 782 was 262 to 327 months.

In considering the appellants’ motions for relief under § 3862(c)(2), the district court, as directed by that section, looked'to the “factors set forth in section 3653(a)” of Title 18. See Butler, 130 F.Supp.3d at 321— 26. These require consideration of both the particular defendant and the public interest. Specifically, the district court must consider “the nature and circumstances of the offense and the history and characteristics of the defendant,” as well as “the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, [] to provide just punishment ... [and] adequate deterrence to criminal conduct, [and] to protect the public from further crimes of the defendant.” 18 U.S.C. § 3553(a)(l)-(2). Section 3653(a) also requires the district court to consider the “sentencing range” established by the Guidelines, “the need to avoid unwarranted sentencing disparities,” and, where relevant, “the need to provide restitution to any victims of the offense.” Id. § 3553(a)(4), (6), (7).

The district court attached great weight to the fact that “[e]ach defendant was a key player in one of the largest drug conspiracies in the history of this city.” Butler, 130 F.Supp.3d at 321-22 (citing § 3553(a)(l)-(2)(A)). It stressed the consequences of their activities—how the Edmond gang “enabled drug use and addiction on a scale that up until that point was unprecedented and largely unimaginable in this city” and caused harm “across our city [that] is immeasurable and in many cases irreversible.” Id. at 322. Although acknowledging that appellants each had a “model disciplinary record” and had availed themselves of mentoring and educational opportunities while in prison, the court concluded that such factors “do not outweigh the other, more commanding considerations,” presumably the serious nature of their crimes. Id. at 323-24. Based on those findings, the district court denied the sentence-reduction motions, giving no relief.

Appellants claim that the denials of their sentence-reduction motions were substantively unreasonable for three reasons. First, they argue that because the newly-amended Guidelines already accounted for the nature and seriousness of their offenses (through the weight of the drugs involved and the various role-related enhancements imposed), the district court couldn’t double-count those factors in denying their requested reductions. Particularly since the initial sentencing court concluded that these crimes fitted within the Guidelines (rather than requiring upward departures), appellants argue that it is unreasonable for the district court to now find that the same crimes are too serious for sentences within Amendment 782’s newly-reduced range.

Indeed one might reasonably think that the district court’s role under such a downshift in the Guidelines range would be simply to pick the spot in the new range corresponding to the spot chosen in the old one. But even apart from § 3582(c)(2)’s direction to newly apply the § 3553(a) factors, Amendment 788 clearly ruled out any' such automatic shift by making November 1, 2015 the earliest date for a release accelerated by Amendment 782, in order to allow district courts to make “individualized determination^] ... of whether [ ] sentence reduction^] [are] appropriate.” U.S.S.G. Supp. to App’x C, Amend. 788 at 87. Section 3582(c)(2)’s directive to consider the § 3553(a) factors is in any event enough, and explains why we and other circuits have never adopted the view that a district court contemplating such a reduction motion is either required to apply the simple “downshift” notion or even to offer any special reasons refusing to do so—so long as the court properly applies § 3553(a). See Lafayette, 585 F.3d at 439; see also United States v. Jones, 836 F.3d 896, 899 (8th Cir. 2016); United States v. Dunn, 728 F.3d 1151, 1159-60 (9th Cir. 2013); United States v. Osborn, 679 F.3d 1193, 1196 (10th Cir. 2012). Just as in an ordinary initial sentencing, the Guidelines provide the “starting point and the initial benchmark” but are “not the only consideration.” Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).

Here the court considered the § 3553(a) factors at length (including the nature and seriousness of the offenses) and decided that nothing less than the original sentences would be enough. See Butler, 130 F.Supp.3d at 321-324. In contrast to run-of-the-mill drug gangs, Edmond’s “organization regularly procured and distributed hundreds of kilos of cocaine and cocaine base” and “enabled drug use and addiction on a scale that up until that point was unprecedented and largely unimaginable in this city.” Id. at 322. Based on the appellants’ critical roles in that “unprecedented” drug ring, the court found that these crimes required stiffer sentences than the amended guidelines provided and justified the risk of potential disparities. Id. at 322-24. While we (or another district court) might have reached a different conclusion were the decisions ours to make, we cannot say that the court acted unreasonably. See Gall, 552 U.S. at 51, 128 S.Ct. 586; see also United States v. Gardellini, 545 F.3d 1089, 1093 (D.C. Cir. 2008).

Second, appellants argue that the district court ignored the Sentencing Commission’s own findings that middle-aged offenders who served lengthy sentences (as appellants have) pose little risk of recidivism and that the sentence reductions enabled by Amendment 782 would not increase the risk of recidivism. See Appellants’ Br. at 25-26 (citing United States Sentencing Commission, Recidivism Among Offenders Receiving Retroactive Sentence Reductions: The 2007 Crack Cocaine Amendment (May 2014) and United States Sentencing Commission, Measuring Recidivism: The Criminal History Computation of the Federal Sentencing Guidelines (May 2004)). As appellants would have it, those studies in combination show there should be little concern over them recidivism. But statistics can only speak to the likely results for the average offender, whereas under § 3553(a) the district court must “consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.” Koon v. United States, 518 U.S. 81, 113, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). Although appellants are now in their fifties, the district court concluded that they pose a significant threat to the community because they “were critical to the design and execution of a dominant, enduring, and citywide drug operation” and accordingly “possess the skills, knowledge, and proven resolve necessary to procure and distribute illegal drugs on a massive scale.” Butler, 130 F.Supp.3d at 323. Again, we can’t say that the district court’s concerns were so baseless as to constitute reversible error.

Finally, appellants argue that the district court ran afoul of Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983), by resting its denials of their reductions in part on their failure to make financial restitution to the victims of their drug gang. Of course, it would be highly questionable if the district court kept appellants in jail solely because they genuinely couldn’t afford to pay restitution—and possibly unconstitutional. See United States v. Burgum, 633 F.3d 810, 815 (9th Cir. 2011) (“[T]he Constitution prohibits imposition of a longer prison term based on the defendant’s poverty... United States v. Plate, 839 F.3d 950, 956 (11th Cir. 2016). But appellants’ argument completely mischaracterizes what the district court did here. It made no reference whatever to financial repayments but instead considered the “immeasurable and in many cases irreversible” harm done to the community at large. Butler, 130 F.Supp.3d at 322. Although the court made a linguistic misstep by framing its discussion of the harms that appellants’ activities inflicted on the local population, wrongs concededly uncorrected, as a failure to provide restitution, id. at 322-23, it is plain from the context that it meant only to stress the magnitude of those hams, clearly part of the “seriousness of the offense” mentioned by § 3553(a). Just as in United States v. Rangel, 697 F.3d 795, 804 (9th Cir. 2012), the district court here used an inapt label for its consideration of victim impact, and here as there it is no reason for reversal.

Accordingly, the judgment of the district court is

Affirmed.