author: WIENER, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee v. Euneisha HEARNS, Defendant-Appellant
    No. 16-40222
    United States Court of Appeals, Fifth Circuit.
    Filed January 9, 2017

      James Inman Pearce, Trial Attorney, U.S. Department of Justice, Criminal Division, Washington, DC, James Andrew Williams, Esq., U.S. Attorney’s Office, Plano, TX, for Plaintiff-Appellee.
    John Andrew Kuchera, Waco, TX, Starling Marshall McCallum, Law Office of Marshall McCallum, Dallas, TX, for Defendant-Appellant.
    Before WIENER, CLEMENT, and HIGGINSON, Circuit Judges.
   WIENER, Circuit Judge:

Defendant-Appellant Euneisha Hearns was convicted of one count of conspiracy to commit bank fraud. The district court attributed to Hearns loss amounts from nine additional transactions that allegedly occurred within the same scheme to defraud mortgage lenders when calculating her advisory range under the Sentencing Guidelines. The court concluded that her advisory Guidelines range was 46 to 57 months in prison and sentenced her to 46 months imprisonment followed by 5 years supervised release. The district court also held Hearns jointly and severally liable with her co-conspirators for restitution totaling $180,235.45 and ordered her to pay a special assessment of $100. We affirm Hearns’s conviction, vacate her sentence, and remand for resentencing.

I. Facts and PRoceedings

Hearns was a mortgage loan officer who was charged in a one-count amended second superseding indictment (“the indictment”) with conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1349. As part of the conspiracy, Hearns made materially false statements on prospective buyers’ loan applications to help them obtain loans for which they did not qualify. In June 2008, a co-conspirator referred a prospective buyer who was interested in purchasing property at 4006 Brownstone Ct., Dallas, Texas (“the Brownstone Property”) to Hearns to obtain a mortgage loan. Despite knowing that the buyer did not have enough money to make a down payment on the Brownstone Property and likely would not qualify for the loan, Hearns prepared and submitted a loan application with materially false statements on his behalf. As a result, Countrywide Bank, FSB (“Countrywide”) provided the buyer with a loan to purchase the Brownstone Property. The buyer purchased the Brownstone Property, but he ultimately defaulted on the loan and the bank foreclosed on the property.

The indictment charged Hearns with conspiring to knowingly execute a scheme to defraud Countrywide “[fjrom [o]n or about June 11, 2008, ... through on or about July 1, 2008.” At the conclusion of a four-day trial, the jury convicted Hearns of one count of bank-fraud conspiracy. The presentence report (“PSR”) prepared after trial attributed to the conspiracy a total loss of $865,940.18, which included $180,235.45 for the Brownstone Property plus loss amounts related to nine other properties. Based on the total loss amount, Hearns’s base offense level was 21, pursuant to United States Sentencing Guidelines (“USSG”) § 2B1.1 and § 2X1.1. Her offense level was increased by two levels for “abus[ing] a position of public or private trust,” pursuant to USSG § 3B1.3, for a total offense level of 23. With Hearns’s criminal history category of I, her sentencing range was 46 to 57 months,

Hearns objected to the PSR, contending that the loss figure should have been limited to $180,235.45 for the Brownstone Property, which would have reduced her base offense level from 21 to 17. The district court overruled Hearns’s objection at the sentencing hearing and ruled that the total loss of $865,940.18 was attributable to the conspiracy and was foreseeable by Hearns. She was sentenced to 46 months imprisonment followed by 5 years supervised release. The district court also held Hearns jointly and severally liable with her co-conspirators for restitution totaling $180,235.45 and ordered her to pay a special assessment of $100. Hearns timely appealed.

II. Analysis

Hearns asserts on appeal that (1) her conviction violated the Ex Post Facto Clause of the U.S. Constitution, (2) the court constructively amended the indictment by not requiring the jury to find that the defrauded institution was a “mortgage lending business,” and (3) the court incorrectly determined the amount of loss for which Hearns was responsible.

A. Ex Post Facto Challenge

Hearns argues that her conviction violates the Ex Post Facto Clause of the U.S. Constitution because Countrywide was not a “financial institution” as statutorily defined at the time of her offense conduct, so “the conduct for which she was convicted was not a crime at the time she engaged in the conduct.” Because Hearns did not raise this argument in the district court, we review it for plain error. “Plain error exists if (1) there is an error, (2) the error is plain, ... (3) the error affect[s] substantial rights and (4) the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.”

The Constitution provides that “[n]o ... ex post facto [l]aw shall be passed.” A law violates this clause “if it (1) punishes as a crime an act previously committed which was not a crime when done; (2) makes more burdensome the punishment for a crime after it has been committed; or (3) deprives a defendant of any defense available according to the law at the time the charged act was committed.”

The indictment charged Hearns with conspiracy to commit bank fraud against Countrywide from June 11, 2008, through July 1, 2008. In 2008, 18 U.S.C. § 1344 made it a crime to “knowingly execute[ ], or attempt[ ] to execute, a scheme or artifice ... (1) to defraud a financial institution; or (2) to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promises.” “It is the financial institution itself ... that is the victim of the fraud the statute proscribes.” Title 18 of the United States Code provided nine definitions of “financial institution” in 2008. Hearns insists that the government relied on a tenth definition of “financial institution” — “a mortgage lending business” — that was not added until 2009.

The government responds on appeal that it used the definition of “financial institution” found in 18 U.S.C. § 20(1) at the time of Hearns’s charged conduct: “an insured depository institution (as defined in section 3(c)(2) of the Federal Deposit Insurance Act).” Section 3(c)(2) of the Federal Deposit Insurance Act defined “insured depository institution” as “any bank or savings association the deposits of which are insured by the [Federal Deposit Insurance] Corporation.”

Although the indictment identified Countrywide as “a residential mortgage lender,” it also defined Countrywide as “a financial institution” whose “deposits were insured by the Federal Deposit Insurance Company,” thus satisfying the definition of “financial institution” at the time of the offense conduct. At trial, the government presented evidence to show that Countrywide satisfied this definition. Hearns did not present evidence to the contrary or otherwise challenge that Countrywide was insured by the Federal Deposit Insurance Company at trial or at sentencing.

At the close of the evidence, the distinct court instructed the jury that the government could establish bank fraud under 18 U.S.C. § 1344 in either one of two ways: (1) to hold Hearns guilty of bank-fraud conspiracy under § 1344(1), the jury must find, among other factors, that “Countrywide, FSB, was a wholly-owned subsidiary of Bank of America, a financial institution”; (2) to hold Hearns guilty of bank-fraud conspiracy under § 1344(2), the jury must find that “Countrywide Bank, FSB, was a wholly-owned subsidiary of Bank of America, a financial institution insured by the Federal Deposit Insurance Corporation.” The district court never instructed the jury that it had to find that Countrywide was a “mortgage lending business” pursuant to the definition of “financial institution” added in 2009.

Hearns fails to show that the definition of “financial institution” added in 2009 was applied retroactively, and the record demonstrates that the government and the district court used the term “financial institution” as it was defined in 2008. Hearns thus fails to demonstrate any ex post facto error in her conviction.

B. Constructive Amendment of the Indictment

Hearns claims that the district court constructively amended the indictment by failing to instruct the jury that it must find that Countrywide was a “mortgage lending business.” “[A]n action of either the judge or prosecutor [that] allows the jury to convict the defendant upon a factual basis that effectively modifies an essential element of the offense charged constitutes an improper constructive amendment and is grounds for reversal.”

The indictment charged Hearns with conspiracy to commit bank fraud against Countrywide and defined it as “a financial institution” whose “deposits were insured by the Federal Deposit Insurance Company.” As discussed above, the government was relying on one of the nine definitions of “financial institution” set forth in 18 U.S.C. § 20 in 2008 — namely, “an insured depository institution.” “Residential mortgage lender” was not a statutory definition of “financial institution” at the time of Heams’s offense conduct. The district court did not err when it did not instruct the jury that it must find that Countrywide is a “residential mortgage lender.”

C. Loss Amount

Hearns contends that the district court erred procedurally in determining that the loss amount for which she was responsible totaled $865,940.18, thereby miscalculating her Sentencing Guidelines advisory range. We agree.

1. Standard of Review

We review factual findings related to a district court’s loss calculations under the Sentencing Guidelines for clear error and that court’s calculation methodology de novo. A relevant-conduct deter-ruination is a finding of fact. “A sentence will be upheld unless it was imposed in violation of law, was an incorrect application of the sentencing guidelines, or is outside the range of the applicable sentencing guideline.” “Failure to object to either the PSR or the district court’s sentence,” however, “results in review for plain error.”

The parties dispute whether Hearns preserved this challenge. “There is ‘[n]o bright-line rule ... for determining whether a matter was raised below.’” “[I]f a party wishes to preserve an argument for appeal, the party must press and not merely intimate the argument during the proceedings before the district court. An argument must be raised to such a degree that the district court has an opportunity to rule on it.” “The raising party must present the issue so that it places the opposing party and the court on notice that a new issue is being raised.”

Hearns objected to the PSR, claiming that the probation officer “provided contradictory information with regard to the total loss amount deemed attributable to his client ($865,940.18) and the amount of restitution owed by his client.” Hearns argued that the loss figure should have been limited to the loss associated with the Brownstone Property, or $180,235.45, which would have reduced her base offense level from 21 to 17. At the sentencing hearing, Hearns’s attorney addressed her objection: “We would ask that the base level be reduced to 17. We would base that on the fact that Ms. Hearns was convicted for the charge on the 4006 Brownstone property. The loss amount was approximately $180,000. We would ask that that be used as the amount to determine the calculation.”

The probation officer responded to Hearns’s objection to the PSR, noting that the total loss amount was the result of relevant conduct and thus was appropriately used to calculate Hearns’s offense level pursuant to USSG § lB1.3(a)(l)(B). At the sentencing hearing, in response to Hearns’s objection, the Assistant United States Attorney stated that the fraud related to the nine additional properties was “relevant conduct and ... part of the same course of conduct,” language found in § 1B1.3. The district court overruled Heams’s objection, concluding that the total loss amount “ha[d] to do with the amount attributable to ... [the] conspiracy.” The district court did not use the term “relevant conduct,” but it noted that the nine other transactions were “foreseeable” to Hearns as part of the conspiracy, a factor considered in a relevant-conduct determination under § lB1.3(a)(l)(B)(iii). The court also adopted the factual findings and Guidelines applications contained in the PSR, which relied on § lB1.3(a)(l)(B) when attributing the loss amounts for the nine other properties to Hearns and her co-conspirators. The probation officer’s response to Hearns’s objection to the PSR and the exchange at the sentencing hearing reflect that both the government and the district court understood Heams’s challenge to address whether the alleged fraud related to the nine additional properties qualified as relevant conduct under the Guidelines.

Hearns’s challenge to the PSR, which was addressed at the sentencing hearing, was therefore sufficient to put the government and the district court on notice that Hearns was raising a relevant-conduct challenge and “to permit the district court to rule on [her objection].” We review Hearns’s challenge for clear error.

2. Whether the District Court Clearly Erred

“The sentencing judge is in a unique position to assess the evidence and estimate the loss based upon that evidence.” “A district court may ... exercise wide evidentiary latitude at sentencing and may look to the whole conspiracy to determine whether the acts of others were reasonably foreseeable.” But the district court “must still make specific findings as to the scope of that conspiracy.” “These findings need not be expressly made, but the meaning of the [district] court’s findings must be clear.” “We will not upset these findings unless they are implausible in light of the record as a whole.”

The loss amount “need not be determined with precision,” but “to satisfy th[e] clear error test all that is necessary is that the finding be plausible in light of the record as a whole.” “Before a court may attribute losses to a defendant’s fraudulent conduct, there must be some factual basis for the conclusion that those losses were the result of fraud.” We generally consider the PSR “reliable evidence for sentencing purposes.” “In making its factual findings for sentencing, a district court may adopt the findings of the PSR without additional inquiry if those facts have an evidentiary basis with sufficient indicia of reliability and the defendant does not present rebuttal evidence or otherwise demonstrate that the information is materially unreliable.” The defendant has the burden of showing that the information in the PSR is materially unreliable. “If the factual recitation [in the PSR] lacks sufficient indicia of reliability, then it is error for the district court to consider it at sentencing — regardless of whether the defendant objects or offers rebuttal evidence.”

The district court adopted the factual findings and undisputed Guideline applications contained in the PSR and concluded that “the information contained in the presentence report has sufficient indi-cia of reliability to support its probable accuracy.” The PSR relied on USSG § lB1.3(a)(l)(B) to consider the loss amounts related to the nine additional properties in calculating Hearns’s base offense level. Under § lB1.3(a)(l)(B), “a defendant can be hable for conduct that is (1) within the scope of the jointly undertaken criminal activity, (2) in furtherance of that criminal activity, and (3) reasonably foreseeable in connection with that criminal activity.”

The PSR explained as follows: “The Government has identified 10 properties [including the Brownstone Property] that involved fraud in the mortgage loan process. Government records reflect that with respect to these properties, ... Hearns [and her co-conspirators] were all involved in the scheme to defraud.” The PSR otherwise provided no information or evidence to support the loss amounts or Hearns’s involvement in the other transactions. The government presented evidence with respect to three of these properties at trial, but the remaining six properties were not mentioned either at trial or at sentencing. Nothing in the record reflects when the six remaining transactions occurred, whether criminal activity was associated with the transactions, or whether Hearns was involved in them. The facts contained in the PSR regarding these six properties lack an evidentiary basis with sufficient indicia of reliability. “Although a PSR may be considered as evidence by the court when making sentencing determinations, bare assertions made therein are not evidence standing alone.”

On this record, the district court clearly erred when it relied on the PSR to include the loss amounts from the six properties in its calculation of Hearns’s base offense level. We therefore vacate Hearns’s sentence and remand for resentencing. Of course, on remand, the district court might reach the same conclusion regarding relevant conduct and the loss amount that it did initially and re-enter the same sentence.

III. ConclusioN

We affirm Hearns’s conviction, vacate her sentence, and remand to the district court for resentencing consistent with this opinion.

      . All references to the Sentencing Guidelines are to the 2015 edition.

      . U.S. Sentencing Guidelines Manual ch. 5, pt. A (U.S. Sentencing Comm’n 2015).

      . U.S. Sentencing Guidelines Manual § 2B1.1(a)(1), (b)(1)(F) (U.S. Sentencing Comm’n 2015). With the two-level increase under USSG § 3B1.3, Hearns’s total offense level would have been 19, and her sentencing range would have been 30 to 37 months. U.S. Sentencing Guidelines Manual ch. 5, pt. A (U.S. Sentencing Comm’n 2015).

      . United States v. Hickman, 331 F.3d 439, 445 (5th Cir. 2003).

      . United States v. Gordon, 838 F.3d 597, 604 (5th Cir. 2016) (alterations in original) (quoting United States v, Garcia-Carrillo, 749 F.3d 376, 378 (5th Cir. 2014) (per curiam)).

      . U.S. Const, art. I, § 9, cl. 3.

      . Hickman, 331 F.3d at 445.

      . 18 U.S.C. § 1344 (West 2008). The text of 18 U.S.C. § 1344 has not changed since 2008.

      . United States v. Saks, 964 F.2d 1514, 1518 (5th Cir. 1992).

      . 18 U.S.C. § 20 (West 2008).

      . See United States v. Grasso, 724 F.3d 1077, 1089 n.13 (9th Cir. 2013) ("In 2009, Congress amended 18 U.S.C. § 20(1), which supplies the definition of ‘financial institution’ for § 1344, to cover 'mortgage lending businesses' .... This amendment applies prospectively...." (citation omitted)); 18 U.S.C. § 20(10) (West 2010).

      . 12 U.S.C. § 1813(c)(2) (West 2008).

      . See 18 U.S.C. § 20(1) (West 2008) (defining "financial institution" as "an insured depository institution (as defined by section 3(c)(2) of the Federal Deposit Insurance Act)”).

      . The vice president and business support manager of Bank of America, which later acquired Countrywide, testified as follows:
      Q: [In June of 2008], was Countrywide Bank, FSB, a federally insured financial institution?
      A: Yes.
      Q: Their accounts were insured by the [Federal Deposit Insurance Corporation]; is that correct?
      A: Yes.

      . Curiously, the reference to Bank of America also appears in both the government’s and Hearns’s proposed jury instructions. As the government concedes, however, the record reflects that Bank of America did not acquire Countrywide until after Hearns completed her offense conduct.
      Also, the government's proposed jury instructions contained the definition of “financial institution” found in 18 U.S.C. § 20(1) in 2008: "an institution that is insured by the Federal Deposit Insurance Corporation.” Although the government included this definition in the context of proposed instructions regarding a later-dismissed money-laundering count under 18 U.S.C. § 1956, the same definitions of "financial institution,” found in 18 U.S.C. § 20, applied to both the money-laundering count under 18 U.S.C. § 1956 and the bank-fraud conspiracy count under 18 U.S.C. §§ 1344, 1349. See 18 U.S.C. § 20 (West 2008) (defining the term "financial institution” "[a]s used in this title”). The district court, however, did not include this definition in its instructions to the jury.

      . See Ortiz v. Quarterman, 504 F.3d 492, 499 (5th Cir. 2007) ("Under the Ex Post Facto Clause, [the appellant] must prove that the law, retroactively applied to him, caused him some disadvantage.”).

      . United States v. Cooper, 714 F.3d 873, 878 (5th Cir. 2013) (alterations in original) (internal quotation marks omitted).

      . United States v. Minor, 831 F.3d 601, 607 (5th Cir. 2016); see United States v. Ocana, 204 F.3d 585, 588 (5th Cir. 2000).

      . United. States v. Ekanem, 555 F.3d 172, 175 (5th Cir. 2009).

      . Ocana, 204 F.3d at 588.

      . Id. see United States v, Garcia-Perez, 779 F.3d 278, 281 (5th Cir. 2015) ("When a defendant objects to his sentence on grounds different from those raised on appeal, we review the new arguments raised on appeal for plain error only.” (quoting United States v. MedinaAnicacio, 325 F.3d 638, 643 (5th Cir. 2003))).

      . United States v. Brown, 561 F.3d 420, 435 n.12 (5th Cir. 2009) (alterations in original) (quoting Castillo v. Cameron Cty., 238 F.3d 339, 355 n.21 (5th Cir. 2001)).

      . Dallas Gas Partners, L.P. v. Prospect Energy Corp., 733 F,3d 148, 157 (5th Cir. 2013) (quoting Keelan v. Majesco Software, Inc., 407 F.3d 332, 340 (5th Cir. 2005)); see also Garcia-Perez, 779 F.3d at 282 (“The 'objection must be sufficiently specific to alert the district court to the nature of the alleged error and to provide an opportunity for correction.’ ” (quoting United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009))).

      . Kelly v. Foti, 77 F.3d 819, 823 (5th Cir. 1996) (quoting Portis v. First Nat’l Bank, 34 F.3d 325, 331 (5th Cir. 1994)).

      . Heams's base offense level would be 7, pursuant to USSG § 2B 1.1 (a)(1), plus an additional 10 levels for a loss greater than $150,000, pursuant to USSG § 2B1.1(b)(1)(F), as opposed to a 14-level increase for a loss greater than $550,000 pursuant to § 2B1.1(b)(1)(H).

      . See Ocana, 204 F.3d at 589 (finding that, "[w]hile [the defendant] did not specifically cite to the USSG section which the PSR applied,” she made "a general objection that notified the court of her disagreement” and thus "sufficiently raised the issues which she now appeals”).

      . See In re Liljeberg Enters., Inc., 304 F.3d 410, 427 n.29 (5th Cir. 2002) (noting that an argument is preserved "if the argument on the issue before the district court was sufficient to permit the district court to rule on it”); see also Ocana, 204 F.3d at 589 ("The purpose of requiring defendants to make timely objections to the PSR and actual sentence is ‘founded upon considerations of fairness to the court and to the parties and of the public interest in bringing litigation to an end after fair opportunity has been afforded to present all issues of law and fact.’ ” (quoting United States v. Ruiz, 43 F.3d 985, 988 (5th Cir. 1995))).

      . United States v. Cooks, 589 F.3d 173, 185 (5th Cir. 2009) (quoting United States v. Holbrook, 499 F.3d 466, 468 (5th Cir. 2007)).

      . United States v, Mateo Garza, 541 F.3d 290, 293 (5th Cir. 2008).

      . Id.

      . United States v. Hammond, 201 F.3d 346, 351 (5th Cir. 1999).

      . Mateo Garza, 541 F.3d at 293.

      . United States v. Reasor, 541 F.3d 366, 369 (5th Cir. 2008) (internal quotation marks omitted).

      . United States v. Bemegger, 661 F.3d 232, 242 (5th Cir. 2011) (per curiam) (quoting United States v. Randall, 157 F,3d 328, 331 (5th Cir. 1998)).

      . Reasor, 541 F.3d at 369 (internal quotation marks omitted).

      . United States v. Ford, 558 F.3d 371, 377 (5th Cir. 2009) (per curiam) (quoting United States v. Valles, 484 F.3d 745, 759 (5th Cir. 2007)).

      . Id.

      . United States v. Zuniga, 720 F.3d 587, 591 (5th Cir. 2013) (per curiam) (alteration in original) (quoting United States v. Harris, 702 F.3d 226, 231 (5th Cir. 2012)); see also United States v. Windless, 719 F.3d 415, 420 (5th Cir. 2013); United States v. McGee, 559 Fed.Appx. 323, 327 n.17 (5th Cir.) (per curiam), cert. denied, — U.S. -, 135 S.Ct. 130, 190 L.Ed.2d 99 (2014).

      . United States v. Gonzales, 841 F.3d 339, 359 (5th Cir. 2016) (internal quotation marks omitted) (quoting U.S. Sentencing Guidelines Manual § 1B1.3(a)(1)(B) (U.S. Sentencing Comm’n 2015)). Specifically, § 1B1.3(a)(1) provides as follows:
      Unless otherwise specified, (i) the base offense level where the guideline specifies more than one base offense level, (ii) specific offense characteristics and (iii) cross references in Chapter Two, and (iv) adjustments in Chapter Three, shall be determined on the basis of the following:
      (A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and
      (B) in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all acts and omissions of others that were—
      (i) within the scope of the jointly undertaken criminal activity,
      (ii) in furtherance of that criminal activity, and
      (iii) reasonably foreseeable in connection with that criminal activity;
      that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense!.]

      . These six properties are 1610 Jensen Ct., Denton, Texas; 611 Oriole Blvd. #2401, Dun-canville, Texas; 611 Oriole Blvd. #2402, Duncanville, Texas; 611 Oriole Blvd. #2403, Duncanville, Texas; 611 Oriole Blvd. #2404, Duncanville, Texas; and a duplex at 1464 and 1466 Brook Meadow Circle, Lancaster, Texas.

      . We also note that § 1B1.3(a)(1) requires that the relevant conduct "occur[ ] during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense,” and we have explained that this provision can temporally limit the application of § IB 1.3(a)(1). See, e.g., United States v. Barraza, 655 F.3d 375, 385 (5th Cir. 2011) ("[Sjeparate acts or conduct that did not occur during the commission of the presently charged offense may not be relevant conduct [under § 1B1.3(a)(1)].”); United States v. Fowler, 216 F.3d 459, 461-62 (5th Cir. 2000) (finding that the defendant’s receipt of “other sadistic images” did not constitute relevant conduct under § lB1.3(a)(l) because, while ”[t]he electronic mailing of the image that was the basis of the count of conviction occurred at a discrete moment,” the defendant's “receipt of the other, sadistic images did not occur 'during the commission of the offense of conviction' ” and because “there was no proof that the sadistic images were part of preparing for the offense of conviction or avoiding detection of the crime”). Neither the PSR nor the district court explained whether these transactions occurred during the commission of the offense of conviction — here, "[flrom [o]n or about June 11, 2008, ... through on or about July 1, 2008”— in preparation for the offense of conviction, or in the course of attempting to avoid detection or responsibility for that offense.
      By contrast, § IB 1.3(a)(2) does not contain the same temporal limitation as Subsection (a)(1). Subsection (a)(2) applies to "all acts and omissions described in [Subsection (a)(1)] that were part of the same course of conduct or common scheme or plan as the offense of conviction.” Thus, conduct undertaken in the commission of separate conspiracies to defraud various victims at different times would qualify as relevant under (a)(2) as long as the separate conspiracies were part of the same course of conduct, common scheme, or plan as the offense of conviction. See, e.g., United States v. Hinojosa, 484 F.3d 337, 341-42 (5th Cir. 2007); United States v. Payne, 226 F.3d 792, 796 (7th Cir. 2000). Notably, in oral argument, the government commendably conceded that this legal error— that is, the district court's application of Subsection (a)(1) rather than (a)(2) — -would control.

      . Bemegger, 661 F.3d at 242 (internal quotation marks omitted); see Zuniga, 720 F.3d at 591 ("[B]ald, conclusionary statements in a PSR are not sufficiently reliable.” (internal quotation marks omitted)).

      . See United States v. Locke, 643 F.3d 235, 246 (7th Cir. 2011) ("[W]e acknowledge that the district court might find — based upon sufficient evidence presented during resentenc-ing — the conduct in the unconvicted counts relevant to [the defendant’s] sentencing. It could then state its findings with specificity and, presumably, enter the same sentence we vacate today.”); see also United States v. Mar

        molejo, 139 F.3d 528, 530-31 (5th Cir. 1998) (holding that “[t]he only issues on remand properly before the district court are those issues arising out of the correction of the sentence ordered by this court" and clarifying that the district court on remand may "gather[ ] relevant facts and evidence on the specific and particular issues heard by the appeals court and remanded for resentencing”).
      If on remand the district court concludes that any defrauding allegedly related to these six properties does not constitute relevant conduct, the total loss amount would be $418,802.79, and Hearns’s base offense level would be 19, pursuant to USSG § 2B1.1(a)(1) and (b)(1)(G). With the two-level increase under § 3B1.3, Hearns’s total offense level would be 21, and her sentencing range would be 37 to 46 months. U.S. Sentencing Guidelines Manual ch. 5, pt. A (U.S. Sentencing Comm’n 2015).


source: Caselaw Access Project

author: GREGG COSTA, Circuit Judge:

license: Public Domain

text:
    ULTRAFLO CORPORATION, Plaintiff-Appellant v. PELICAN TANK PARTS, INCORPORATED; Thomas Joseph Mueller; Pelican Worldwide, Incorporated, Defendants-Appellees.
    No. 15-20084
    United States Court of Appeals, Fifth Circuit.
    Filed January 11, 2017

      Travis Scott Crabtree, Gray Reed & McGraw, P.C., Houston, TX, for Plaintiff-Appellant.
    John Karl Buche, Buche & Associates, P.C., La Jolla, CA, for Defendants-Appel-lees.
    Before STEWART, Chief Judge, and OWEN and COSTA, Circuit Judges.
   GREGG COSTA, Circuit Judge:

This appeal requires us to again consider the preemptive force of the Copyright Act. Plaintiff Ultraflo Corporation asserts an unfair competition by misappropriation claim under Texas law alleging that a competitor stole its drawings showing how to design valves and then used them to make duplicate valves. We have previously held that copyright preempts this Texas cause of action when the intellectual property at issue is within the subject matter of copyright. Alcatel USA, Inc. v. DGI Techs., Inc., 166 F.3d 772, 785-89 (5th Cir. 1999). Ultraflo contends that its claim escapes preemption because its valve design, when separated from the drawing itself, is afforded no protection under the Copyright Act. Because copyright preemption prohibits state interference with Congress’s decision not to grant copyright protection just as much as it protects a decision to provide protection, the district court correctly found that the state claim is preempted.

I.

Ultraflo manufactures butterfly valves used in the transportation industry. With the help of its employee Thomas Mueller, Ultraflo redesigned its Model 390 butterfly-valve. The new design was recorded in drawings that specify the valve’s features and measurements.

Mueller ultimately left Ultraflo to work at Pelican — a competing valve manufacturer. Soon after, Pelican entered the market with a valve that Ultraflo contends was strikingly similar to its own.

Believing that Pelican hired Mueller to gain access to its design drawings and other intellectual property, Ultraflo sued Pelican and Mueller (jointly referred to as Pelican) in state court for conversion, civil conspiracy, unfair competition by misappropriation, and misappropriation of trade secrets. Pelican sought to remove the case to federal court, arguing that the state claims were preempted by the Copyright Act, but removal was untimely. Back in state court, Pelican won a motion to dismiss, which argued that the court lacked jurisdiction as the subject matter of the suit was subject to the copyright laws, because Ultraflo failed to respond.’

Before the state suit was dismissed, Mueller registered valve drawings with the U.S. Copyright Office and filed a complaint in federal court, seeking declaratory relief that the drawings (1) were copyrightable subject matter, (2) belonged to Mueller, and (3) were not “works for hire” under the Copyright Act. Mueller then voluntarily dismissed his suit in an attempt to encourage settlement.

After the settlement failed to materialize, Ultraflo filed this federal action. It again asserted the state tort claims and also sought a declaratory judgment that Mueller was using a copyright that did not belong to him. The district court sua sponte questioned whether Ultraflo’s state claims were preempted by the Copyright Act. It ordered Ultraflo to file a second amended complaint “avoiding allegations of state law claims that are clearly preempted by federal law.”

That pleading reasserts all of Ultraflo’s state claims and notes that they arise from Pelican’s “use of Ultraflo’s [design] drawings to make actual valves.” For example, it alleges that the “unauthorized activities by Mueller in retaining Ultraflo’s confidential drawings [and] the subsequent use of them by Pelican ... to make competitive valves, constitutes misappropriation of Ul-traflo’s valuable trade secrets.” It further contends that Defendants engaged in unfair competition by misappropriating its “butterfly valves, valve features, and components.”

Pelican subsequently filed a motion to dismiss on preemption grounds. The district court agreed that all but Ultraflo’s trade secret claim were preempted by the copyright laws.

In response, Ultraflo filed a third amended complaint that removed the preempted state claims and added a claim of copyright infringement. Pelican filed yet another motion to dismiss, seeking dismissal of the new copyright claim. The district court denied the motion because Ultraflo alleged “that Defendants infringed the drawings, not by taking the physical drawings, but by taking their intangible intellectual property, using it to make their own drawings and butterfly valve, and thereby infringing on Ultraflo’s exclusive rights to reproduce its copyrighted work and to prepare derivative products based on the copyrighted work.”

The case proceeded to trial on the copyright and trade secret claims, both of which the jury rejected. After trial, Ultraf-lo moved under Rule 50(b) for judgment as a matter of law, or, alternatively, a new trial, on the ground that the unfair competition claim was not preempted. Finding that this was not the proper procedural vehicle to seek reconsideration of the pretrial dismissal of the unfair competition claim, the court treated the motion as one asserted under Rule 59. It declined to change its earlier ruling finding preemption.

II.

Ultraflo’s appeal does not challenge the jury’s rejection of its copyright and trade secret claims. It seeks only reversal of the pretrial dismissal of the unfair competition by misappropriation claim on preemption grounds.

Pelican asserts that Ultraflo waived its right to challenge the pretrial preemption ruling by not raising the issue during trial in a number of ways. According to Pelican, Ultraflo needed to request a jury charge on the dismissed state law claims, introduce an offer of proof to show the evidence that supported them, and seek entry of judgment as a matter of law on the state claims under Rule 50(a) before the case was submitted to the jury.

The delay and expense resulting from such futile measures is not required to preserve appellate review of a pretrial dismissal. The final judgment rule prevented Ultraflo from appealing the Rule 12 dismissal until now. See Dig. Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994) (explaining that the rule provides that “a party is entitled to a single appeal, to be deferred until final judgment has been entered”). Indeed, Ultraflo followed the proper procedure by omitting the dismissed claims from its third amended complaint. Lincoln Gen. Ins. Co. v. U.S. Auto Ins. Servs., Inc., 787 F.3d 716, 724 (5th Cir. 2015) (noting that requiring the repleading of claims dismissed with prejudice would be at odds with judicial efficiency and might be sanctionable). As those state claims were no longer part of the live pleading in the case, Ultraflo could not have taken any of the actions with respect to them during trial that Pelican urges. But it is still allowed to appeal a dismissal with prejudice of claims asserted in its earlier pleadings. Id. (explaining that when a pretrial dismissal of a claim is “on the merits or with prejudice, the plaintiff may appeal that ruling without needing to include the claim in a later amended complaint”).

III.

We thus may consider the merits of Ultraflo’s appeal: whether its unfair competition by misappropriation claim is preempted by the Copyright Act. We review this question de novo. GlobeRanger Corp. v. Software AG United States of Am., Inc., 691 F.3d 702, 705 (5th Cir. 2012).

Section 301 of the Copyright Act preempts state law claims that fall within the general scope of federal copyright law. Alcatel, 166 F.3d at 785. It provides that:

all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103 ... are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.

17 U.S.C. § 301(a). This text is the source of the two-part test we use to determine if the Copyright Act preempts a state law cause of action. Alcatel, 166 F.3d at 785-86. Courts first ask whether the intellectual property at issue is within the subject matter of copyright. Id. If it is, then a state law claim is preempted if it protects rights in that property that are equivalent to any of the exclusive rights within the general scope of copyright. Id.

A.

The subject matter inquiry requires us to determine what intellectual property Ul-traflo is seeking to protect. The design drawings themselves are undoubtedly within the scope of copyright protection; they were the basis for the copyright infringement claim Ultraflo took to trial. But the unfair competition claim is not based on Pelican’s copying the drawings. Ultraflo instead alleges that Pelican used the drawings to make replica valves. Because the valve design — the work in which Ultraflo asserts a right — is what was allegedly misappropriated, Ultraflo argues that its claim does not seek protection for a work protected by the copyright laws.

Ultraflo is correct that its valve design is not protected under the Copyright Act: it is either a useful article or an idea. Were the question simply whether the work in which Ultraflo asserts a right is protected under the Copyright Act, its argument would carry the day.

The preemption statute, however, sweeps more broadly. It preempts state protection of works that fall within the subject matter (that is, the scope) of copyright, regardless whether the works are actually afforded protection under the Copyright Act. Spear Mktg., Inc. v. BancorpSouth Bank, 791 F.3d 586, 596-97 (5th Cir. 2015). “[S]cope and protection are not synonyms.” Id. at 596 (quoting U.S. ex rel. Berge v. Bd. of Trs. of the Univ. of Ala., 104 F.3d 1453,1463 (4th Cir. 1997)). As the Fourth Circuit put it, “the shadow actually cast by the Act’s preemption is notably broader than the wing of its protection.” U.S. ex rel. Berge, 104 F.3d at 1463.

This distinction led us to hold in Spear Marketing that state claims based on ideas fixed in a tangible medium of expression fall within the subject matter of copyright even though copyright law does not protect the mere ideas. 791 F.3d at 597. The parties disputed whether copyright preemption extended to state claims protecting the noncopyrightable material— ideas — contained in copyrightable works— a software program. Id. at 594. In finding that it did, we noted that to allow states to protect fixed ideas would intrude upon Congress’s exclusion in section 102(b) of ideas from federal copyright protection. Id. at 596 (citing 5 Melville B. Nimmeh & David NimmeR, Nimmer on Copyright § 19D.03[A][2][b]).

The result should be no different for the valve design that Congress also chose to exclude from copyright protection. Indeed, the exclusion of useful articles from copyright protection is a corollary of the idea-expression dichotomy that Spear Marketing rejected as a basis for the dividing line of when copyright preemption applies. See Mazer v. Stein, 347 U.S. 201, 217, 74 S.Ct. 460, 98 L.Ed. 630 (1954); Durham Indus, v. Tomy Corp., 630 F.2d 905, 913 (2d Cir. 1980) (“Just as copyright protection extends to expression but not ideas, copyright protection extends only to the artistic aspects, but not the mechanical or utilitarian features, of a protected work.”). Congress’s exercise of its power under the Copyright Clause to not provide protection for the embodiment of ideas in useful articles is entitled to preemptive force. Allowing state law to protect such works would undermine the “deliberate exclusion” of such subject matter from the federal copyright scheme. Spear Mktg., 791 F.3d at 596.

B.

That the valve design is within the subject matter of copyright does not, on its own, mean that the state claim is preempted. As mentioned at the outset, the state law must also seek to protect rights equivalent to those “within the general scope of copyright.” 17 U.S.C. § 301. This is determined by the “extra elements” test, which looks at whether “one or more qualitatively different elements are required to constitute the state-created cause of action being asserted.” Alcatel, 166 F.3d at 787. If so, the state law protects rights different than those that the Copyright Act protects and there is no preemption. Id.

We have previously held that Texas’s unfair competition by misappropriation cause of action does not afford protection materially different from federal copyright law. Id. at 787-89. In doing so, we rejected Alcatel’s attempt to satisfy the extra elements test by pointing to the state tort’s elements of sweat equity and use against a competitor. Id. With respect to the former, we concluded “the time, labor, skill, and money expended by the author in creating the work are necessarily contemplated in [ ] copyright,” which requires independent creation. Id. at 789. As to the latter, we held that reproduction or derí-vate use of a copyright by a competitor would suffice to show copyright infringement. Id.

Ultraflo attempts to get around Alcatel by focusing on the special copyright status of drawings depicting useful articles. Although the Copyright Act provides the owner of such a drawing the exclusive right to reproduce the drawing itself, it does not grant the exclusive right to use the drawing to make the useful article depicted. See 17 U.S.C. § 113(b) (“This title does not afford, to the owner of copyright in a work that portrays a useful article as such, any greater or lesser rights with respect to the making, distribution, or display of the useful article so portrayed than those afforded to such works under the law....”); 1 Nimmer, supra, § 2A.12. At first blush, it thus appears that Ultraf-lo’s unfair competition by misappropriation claim protects a right that federal copyright does not: exclusive use of the copyrightable design drawings to make the depicted valves.

Again, however, the preemption inquiry operates on a more general level. The question is not whether state law provides a right identical to federal copyright law, but whether state law provides a right akin to those “within the general scope of copyright as specified by section 106.” 17 U.S.C. § 301 (emphasis added). Among the exclusive rights generally provided to copyright holders in section 106 is the right to make derivative use of copyrighted works. 17 U.S.C. § 106. State claims protecting against such use by another thus are preempted by Section 301. See Alcatel, 166 F.3d at 789 (holding that plaintiffs unfair competition by misappropriation claim was preempted by the Copyright Act when plaintiff alleged defendant stole its software, used it to make microprocessors, and then distributed the microprocessors in competition with plaintiff); M-I LLC v. Stelly, 733 F.Supp.2d 759, 784-85 (S.D. Tex. 2010) (holding that plaintiffs unfair competition by misappropriation claim, alleging defendant used, without permission, plaintiffs tool design drawings to make a competing product, did not supply a qualitatively different element and thus was preempted). Indeed, section 113(b), by carving out use of technical drawings to make useful articles from copyright protection, recognizes that such derivative use may otherwise be protected by the copyright laws.

Similar to what we saw with the subject matter inquiry, the “equivalent rights” inquiry thus looks not at the rights Congress actually provided but at the type of rights it has the power to confer. Withholding a particular right is part of the balance Congress struck between the need for copyright incentives and the value in public access to ideas. See H.R. Rep. No. 94-1476, at 105 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5720 (explaining that Congress, through section 113(b), reaffirmed the longstanding idea-expression dichotomy, which provides that ideas contained in copyrighted works are free to the public unless otherwise protected by patent law). Section 113(b), as a particular application of the idea-expression dichotomy, also plays a role in demarcating the boundary between copyright and patent law. Id,.-, see generally Baker v. Selden, 101 U.S. 99, 11 Otto 99, 25 L.Ed. 841 (1879). To allow state law protection in this area that Congress excluded from the ambit of copyright thus would run afoul of the “ ‘familiar doctrine’ that the federal policy ‘may not be set at naught, or its benefits denied’ by the state law.” Sears, Roebuck & Co. v. Stiffel Company, 376 U.S. 225, 228, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964) (quoting Sola Elec. Co. v. Jefferson Elec. Co., 317 U.S. 173, 176, 63 S.Ct. 172, 87 L.Ed. 165 (1942)).

* * *

The district court correctly held that the Copyright Act preempted Ultraflo’s unfair competition claim. The judgment is AFFIRMED.

      . The court’s ruling on the trade secret claim accords with our subsequent decision in GlobeRanger Corp. v. Software AG United States of Am., Inc., which held that a claim under Texas trade secret law is not preempted. 836 F.3d 477, 486-88 (5th Cir. 2016).

      . Confusion may have arisen from Ultraflo filing a post-trial Rule 50(b) motion for judgment on the pleadings raising the preemption issue. The district court correctly noted that this was not a proper motion to challenge the pretrial dismissal of claims. As discussed infra, however, that is not because the same motion should have been asserted during trial. There was no need to do anything during or after trial to preserve appellate review of the Rule 12 dismissal.

      . Section 102 of the Copyright Act provides that "[w]orks of authorship include ... pictorial, graphic, and sculptural works.” 17 U.S.C. § 102. Section 101 defines "pictorial, graphic, and sculptural works” to include "technical drawings.” 17 U.S.C. § 101. And design drawings are considered copyrightable technical drawings. See Taquino v. Teledyne Monarch Rubber, 893 F.2d 1488, 1501 (5th Cir. 1990) (treating engineering drawings as copyrightable); M-I LLC v. Stelly, 733 F.Supp.2d 759, 782 (S.D. Tex. 2010) (treating tool design drawings as copyrightable).

      . A useful article is "an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” 17 U.S.C. § 101. Seetion 101 further states that "the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work [that is, copyrightable] only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” Id. Neither party disputes that the Model 390 butterfly valve design includes only utilitarian features and thus is not subject to copyright protection.

      ."In no case does copyright protection for an original work of authorship extend to any idea [or] concept ... regardless of the form in which it is described, explained, illustrated, or embodied in such work.” 17 U.S.C, § 102(b).

      . A copyright treatise reaches the same conclusion in considering the preemption question for another type of subject matter that is excluded from copyright protection: typeface. Howard B. Abrams, The Law of Copyright § 6:22 (2016) (concluding that if "Congress deliberately made certain classes of subject matter ineligible for federal copyright protection, as was clearly the case for typeface designs, then ... the state law is preempted”).

      . The elements of Texas’s unfair competition by misappropriation are: (1) the creation by a plaintiff of a product through extensive time, labor, skill, and money; (2) the use of that product by defendant in competition with plaintiff; and (3) commercial damage to the plaintiff. U.S. Sporting Prods., Inc. v. Johnny Stewart Game Calls, Inc., 865 S,W.2d 214, 218 (Tex. App. — Waco 1993, writ denied).

      . Ultraflo also contends that unfair competition by misappropriation is qualitatively different because it requires intent to engage in dishonest conduct. That a state law requires scienter as a condition to liability, however, does not save the state law from preemption. See R.W. Beck, Inc. v. E3 Consulting, LLC, 577 F.3d 1133, 1148-49 (10th Cir. 2009) (holding that the addition of a scienter element did not render defendant’s unfair competition claim qualitatively different from copyright infringement).


author: EDWARD C. PRADO, Circuit Judge:

text:
    Brandy HAMILTON; Alexandria Randle, Plaintiffs—Appellees, v. Aaron KINDRED, Defendant—Appellant.
    No. 16-40611 Summary Calendar
    United States Court of Appeals, Fifth Circuit.
    January 12, 2017

      Allie R. Booker, Booker Law Firm, Joseph Kelly Plumbar, Law Office of Joseph K. Plumbar, Houston, TX, for Plaintiffs-Appellees.
    Christopher Robert Garza, Assistant District Attorney, Jesse Mark Blakley, Jr., District Attorney’s Office for the County of Brazoria, Angleton, TX, for Defendant-Appellant.
    Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
   EDWARD C. PRADO, Circuit Judge:

Brazoria County Sheriffs Office Deputy Aaron Kindred appeals the district court’s denial of qualified immunity in this case involving the roadside body cavity searches of two women during a traffic stop. This case arises from an investigatory traffic stop in 2012. Three officers were involved in the incident. The two Department of Public Safety (“DPS”) officers, Nathaniel Turner and Amanda Bui, have reached settlement agreements with Plaintiffs Brandy Hamilton and Alexandria Randle. The question presented by this case is whether the third officer at the scene, Deputy Kindred, is liable under 42 U.S.C. § 1983 as a bystander for not intervening to prevent the body cavity searches. Because material issues of fact remain, we do not have appellate jurisdiction over this interlocutory appeal. Accordingly, we DISMISS.

I. BACKGROUND

A. Factual Background

On Memorial Day weekend in 2012, Hamilton and Randle were pulled over by DPS Officer Turner for speeding. Turner smelled marijuana and asked the women to exit the vehicle. Hamilton was wearing a bikini bathing suit, and Randle was similarly dressed. Turner did not allow the women to cover themselves before exiting the vehicle. He used his radio to request help from local law enforcement and a female officer to conduct a search of the women. On the radio, Turner stated that the car smelled like marijuana and that one of the women “had the zipper open on her pants, or Daisy Duke shorts, whatever they are.” Turner handcuffed and separated the women before ordering Hamilton to sit in the front passenger seat of his patrol car. He then conducted a search of the vehicle. When Kindred arrived, Turner asked him to identify the drivers of several other cars that had arrived near the scene. When Bui arrived, she parked next to Turner’s patrol car. When he had completed the vehicle search, Turner informed Bui and Kindred that he had finished the search but wanted Bui to search the women. Bui asked the men if they had any gloves, and Turner gave her the gloves he had used to search the vehicle.

At that point, Kindred asked Turner, “Do you want me to make this easier and go in the back?” Turner agreed that Kindred should stand behind the car. Kindred stood behind Turner’s patrol car and can be seen in that position in the video. Turner told Hamilton: “[Bui] is going to search you, I ain’t going to do that .,. cause I ain’t getting up close and personal with your women areas.” Turner and Kindred stood together behind the car while Bui performed the body cavity search. During the search, Turner told Kindred: “I don’t know if she stuck something in her crotch or this one did.”

After the search, Turner asked Bui if Hamilton had “[n]othing on her,” and then requested she search Randle because “she is the one who had the zipper open.” Hamilton immediately asked, “Do you know how violated I feel?” and said she felt so embarrassed. Turner replied that if they “hadn’t had weed in the car they wouldn’t be in this situation.” Randle, who had been standing by Hamilton’s car, was escorted to Bui’s patrol car. Kindred was still standing behind Turner’s vehicle. When Bui performed the body cavity search on Ran-dle, Randle began to scream: “That is so fucked up! I am so done!” Hamilton yelled at her a couple times to “calm down” and “be quiet.” Randle sounded as if she was crying when she again said, “Man, this is so fucked up!” After the searches were complete, Hamilton stated to Turner that “it was going to the extreme” to have someone “put their fingers up your stuff.” In their complaint, Hamilton and Randle describe Bui’s ■ actions as “forcibly searching] in their vaginas and anus[es] against protest,” and explain that the search was “physically and emotionally painful.”

B. Procedural Background

Hamilton and Randle filed their complaint on June 27, 2013, asserting § 1983 claims against the officers involved and their employers. They alleged that the invasive cavity searches violated their Fourth Amendment rights to be free from unreasonable searches and seizures. Kindred moved for summary judgment, arguing that he was entitled to qualified immunity because at the time of the incident, bystander liability was not clearly established in the Fifth Circuit in cases not involving excessive force. The district court denied Kindred’s motion for summary judgment on April 28, 2016. The district court found that the Plaintiffs had asserted an excessive force claim and that it was clearly established that bystander liability would apply. Additionally, the district court held that there was a “serious dispute as to material facts” in the case regarding the objective reasonableness of Kindred’s actions. Kindred timely appealed.

II. DISCUSSION

We have jurisdiction to review a district court’s denial of qualified immunity “only to the extent that the appeal concerns the purely legal question whether the defendants are entitled to qualified immunity on the facts that the district court found sufficiently supported in the summary judgment record,” Kinney v. Weaver, 367 F.3d 337, 347 (5th Cir. 2004) (en banc). “[W]e lack the power to review the district court’s decision that a genuine factual dispute exists” and “instead consider only whether the district court erred in assessing the legal significance of conduct that the district court deemed sufficiently supported.” Id. at 348. We review the district court’s conclusion de novo. Id. at 349.

A. Excessive Force

Kindred first argues that the district court erred in allowing the Plaintiffs to go forward on an excessive force theory of liability. He argues that the Plaintiffs never pleaded excessive force. In qualified immunity cases, plaintiffs must “rest their complaint on more than conclusions alone and plead their case with precision and factual specificity.” Nunez v. Simms, 341 F.3d 385, 388 (5th Cir. 2003). “To bring a § 1983 excessive force claim under the Fourth Amendment, a plaintiff must first show that she was seized.” Flores v. Palacios, 381 F.3d 391, 396 (5th Cir. 2004). The plaintiff must then “show that she suffered (1) an injury that (2) resulted directly and only from the use of force that was excessive to the need and that (3) the force used was objectively unreasonable.” Id. We agree with the district court that Hamilton and Randle alleged facts in their complaint that meet this standard. The pleadings clearly stated that both Hamilton and Ran-dle were seized during the course of the traffic stop when they were handcuffed and placed in patrol cars. They alleged that they were detained for over thirty minutes and were subjected to invasive body cavity searches during that time in violation of the Fourth Amendment. The Plaintiffs asserted that there were no warrants or exigent circumstances allowing the searches. Furthermore, the Plaintiffs alleged injuries resulting directly from the cavity searches that took place during the detention.

Additionally, Kindred argues that excessive force does not apply to the facts of this case because “[e]xcessive force is a seizure, not a search.” This argument is meritless. The Plaintiffs were clearly seized when they were placed in handcuffs and escorted to the patrol cars. Furthermore, excessive force applies because Hamilton and Randle have alleged that they were subjected to a use of force — the insertion of Bui’s fingers into their vaginas and anuses — during the course of an investigatory stop. The Supreme Court has recognized that excessive force is unconstitutional during such a seizure. Graham v. Connor, 490 U.S. 386, 388, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (holding that the Fourth Amendment protects against the use of excessive force during an “arrest, investigatory stop, or other ‘seizure’ of [the] person”). Likewise, “Fifth Circuit precedent [has] plainly established [that] ... [a] strip or body cavity search raises serious Fourth Amendment concerns.” Roe v. Tex. Dep’t of Protective & Regulatory Servs., 299 F.3d 395, 409 (5th Cir. 2002). See also Martin v. City of San Antonio, No. SA-05-CA-0020, 2006 WL 2062283, at *5 (W.D. Tex. 2006) (cataloguing case law and finding no reasonable officer would have found a roadside body cavity search reasonable even if they “reasonably suspected that Plaintiff was concealing contraband in a body cavity” if “there were no exigent circumstances requiring the search to be conducted on the public roadside rather than at a medical facility”). Plaintiffs have alleged facts showing they were subjected to an unreasonable use of force excessive to its need. Therefore, the district court did not err in determining that excessive force was a viable theory in this case,

Finally, Kindred contends that even if excessive force applies, the Plaintiffs abandoned it as a theory of liability. In support, Kindred points to statements the Plaintiffs made that suggest they were not asserting an excessive force claim. In particular, in their response to Kindred’s motion for summary judgment, the Plaintiffs stated that “ ‘excessive force’ is not an element of ‘bystander liability’ but a cause of action, and the Defendants cannot choose which causes of action for Plaintiffs to plead in a suit against Defendant.” Additionally, when the Plaintiffs submitted proposed jury instructions, those instructions explicitly stated that “excessive force does not apply in this case.”

Judge Hanks held a lengthy hearing on this issue on February 9, 2016. At that time, “counsel for Hamilton and Randle unequivocally stated that they [had] not abandoned their bystander liability claim under an excessive force theory.” Kindred argued that the Plaintiffs’ vague arguments “show an obvious intent to remove excessive force from this case,” but he was unable to point to an exact document in the record evidencing waiver. After reviewing the pleadings and motions and hearing argument from the parties, the district court noted that the pleadings exhibited a lengthy and “rather confusing debate ... as to whether excessive force is an essential element of a bystander liability claim or a separate cause of action, whether bystander liability can be based on theories other than excessive force, and whether Hamilton and Randle have a claim for ‘direct’ liability.” But the district court concluded that the excessive force claim had not been waived.

After reviewing the record, we agree with the district court’s determination. While the Plaintiffs never used the words “excessive force” in their complaint and were less than clear during the proceedings about exactly which theories they were advancing, the district court did not err in finding that excessive force had not been waived. Throughout the case, Plaintiffs have clearly argued that they were subject to an unreasonable search and seizure in violation of the Fourth Amendment, and have alleged facts that support a claim for excessive force.

B. Bystander Liability

Kindred argues that the district court erred in denying summary judgment because even if bystander liability applied in this case, there is no genuine issue of material fact as to the elements of bystander liability. In Whitley v. Hanna, 726 F.3d 631 (5th Cir. 2013), this Court stated that “an officer may be liable under § 1983 under a theory of bystander liability where the officer ‘(1) knows that a fellow officer is violating an individual’s constitutional rights; (2) has a reasonable opportunity to prevent the harm; and (3) chooses not to act.’” Id. at 646 (quoting Randall v. Prince George’s Cty., 302 F.3d 188, 204 (4th Cir. 2002)). At the time of the incident, it was clearly established in the Fifth Circuit that an officer could be liable as a bystander in a case involving excessive force if he knew a constitutional violation was taking place and had a reasonable opportunity to prevent the harm. See Hale v. Townley, 45 F.3d 914, 918 (5th Cir. 1995). And “[officials can still be on notice that their conduct violates established law even in novel factual circumstances.” Roe, 299 F.3d at 409 (quoting Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)).

The district court found that “there [was] a serious dispute as to the material facts” regarding each element of bystander liability. We lack jurisdiction to review the district court’s determination that a genuine factual dispute exists. Kinney, 367 F.3d at 347-48. Because we find that excessive force applies in this case and disputes of material fact remain, Kindred s appeal is DISMISSED.


author: HAYNES, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee v. Dwayne D. MORGAN, Defendant-Appellant
    No. 15-30420
    United States Court of Appeals, Fifth Circuit.
    January 12, 2017

      Mary Patricia Jones, Alan A. Stevens, Assistant U.S. Attorneys, U.S. Attorney’s Office, Middle District of Louisiana, Baton Rouge, LA, for Plaintiff-Appellee.
    Dwayne D. Morgan, Pro Se.
    Before HIGGINBOTHAM, JONES, and HAYNES, Circuit Judges.
   HAYNES, Circuit Judge:

Defendant Dwayne D. Morgan (“Morgan”) challenged his sentence by filing a motion under 28 U.S.C. § 2255. The district court denied the challenge. Because the motion was not timely filed, we AFFIRM.

I. Background

Morgan pleaded guilty, pursuant to a written plea agreement, to felony possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Morgan was sentenced in 2010 pursuant to the Armed Career Criminal Act (“ACCA”) to fifteen years in prison because at least three of his four prior convictions for purse snatching, aggravated battery, second degree battery, and second degree robbery qualified as “violent felonies.” 18 U.S.C. § 924(e). Judgment was entered on April 22, 2010. Morgan did not appeal his conviction or sentence. Therefore, his conviction became final on May 6, 2010.

On June 20, 2013, the Supreme Court decided Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). Less than a year later, on April 28, 2014, Morgan filed the instant § 2255 motion, arguing that the Supreme Court’s recent decisions, including Descamps, rendered one or more of his underlying predicate felony offenses ineligible for consideration as a violent felony under the ACCA. The district court dismissed Morgan’s § 2255 motion as time barred because Descamps was not retroactively applicable to cases on collateral review. The district court granted a Certificate of Appealability (“COA”) on the issue of whether Descamps applies retroactively to cases on collateral review. Morgan filed a timely appeal from the district court’s order.

II. Standard of Review

“We review the district court’s factual findings relating to a § 2255 motion for clear error and its conclusions of law de novo.” United States v. Olvera, 775 F.3d 726, 728-29 (5th Cir. 2015) (quoting United States v. Redd, 562 F.3d 309, 311 (5th Cir. 2009)).

III. Discussion

Prisoners generally must file a § 2255 motion within one year of the date the judgment of conviction becomes final. 28 U.S.C. § 2255(f)(1). Morgan effectively admits that he did not do so but argues that his motion is nonetheless timely because it was filed within one year of the Supreme Court’s decision in Descamps. He contends that the date Descamps was issued restarted his filing clock as “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” § 2255(f)(3). We hold that Descamps did not restart the clock because, even though Morgan filed his motion within a year of Descamps, the right Morgan asserts was not newly recognized by Descamps.

In Descamps, the Supreme Court held that “sentencing courts may not apply the modified categorical approach when the crime of which the defendant was convicted has a single, indivisible set of elements.” 133 S.Ct. at 2282. In other words, a district court at sentencing may only review certain materials when determining whether a prior conviction qualifies as an ACCA predicate if the predicate statute is divisible, i.e., if it lists potential offense elements in the alternative. Id. at 2282-86. Importantly, in explaining its holding, the Court stated that prior “caselaw explaining the categorical approach and its ‘modified’ counterpart all but resolve[d] th[e] case.” Id. at 2283. After explaining four of its precedents, the Court observed that limiting application of the modified categorical approach to divisible statutes was “the only way” it had “ever allowed” courts to use the categorical approach. Id. at 2283-85 (citing Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010); Nijhawan v. Holder, 557 U.S. 29, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009); Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143,109 L.Ed.2d 607 (1990)).

Neither this court nor the Supreme Court has addressed whether the Supreme Court recognized a new right in Descamps under § 2255(f)(3). Examining a different subsection of the same section, § 2255(h)(2), we concluded that “[n]othing in Descamps indicates that its holding announced a new rule that was constitutionally based.” In re Jackson, 776 F.3d 292, 296 (5th Cir. 2015); see also Ezell v. United States, 778 F.3d 762, 766 (9th Cir.) (holding that “[t]he Supreme Court did not announce a new rule in Descamps” while evaluating a motion under § 2255(h)), cert. denied, — U.S. —, 136 S.Ct. 256, 193 L.Ed.2d 212 (2015). However, Jackson explicitly declined to address eases involving petitioners bringing an initial habeas motion under § 2255(f)(3) and, therefore, does not answer the question presented. 776 F.3d at 296 n.5.

Other circuits that have reached this issue when evaluating an initial habeas motion under § 2255 have uniformly held that Descamps did not announce a new rule. See Mays v. United States, 817 F.3d 728, 734 (11th Cir. 2016) (“Descamps did not announce a new rule.”); Headbird v. United States, 813 F.3d 1092, 1097 (8th Cir. 2016) (“Descamps ... did not establish a new rule.”); see also United States v. Davis, 751 F.3d 769, 775 (6th Cir. 2014) (noting on direct appeal that “[t]he Supreme Court in Descamps explained that it was not announcing a new rule, but was simply reaffirming the Taylor/Shepard approach, which some courts had misconstrued”).

We agree with our sister courts that Descamps did not establish a new rule. A new rule is one that “breaks new ground or imposes a new obligation on the States or the Federal Government.” Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Stated differently, “[a] rule is ‘new’ under Teague unless it was so ‘dictated by precedent existing at the time the defendant’s conviction became final.’ ” United States v. Amer, 681 F.3d 211, 213 (5th Cir. 2012) (quoting Teague, 489 U.S. at 301, 109 S.Ct. 1060). Dictated by precedent means that “no other interpretation was reasonable.” Lambrix v. Singletary, 520 U.S. 518, 538, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997). For example, a rule that applies a general principle to a new set of facts typically does not constitute a new rule. Chaidez v. United States, — U.S. —, 133 S.Ct. 1103, 1107, 185 L.Ed.2d 149 (2013). In determining whether a rule is new, we look to: “(1) whether the decision announcing the rule at issue purported to rely on ‘controlling precedent’; (2) whether there was a ‘difference of opinion on the part of .,. lower courts that had considered the question’; and (3) whether the Justices expressed an ‘array of views.’ ” Amer, 681 F.3d at 213 (citations omitted).

At the time of Descamps, there appears to have been a difference of opinion between four courts of appeals as to whether the modified categorical approach applied only to divisible statutes. Descamps, 133 S.Ct. at 2283 n.1. Additionally, Justice Alito dissented from the Descamps majority, essentially agreeing with the Ninth Circuit’s interpretation of the law. See id. at 2286 n.3. However, “the standard for determining when a case establishes a new rule is ‘objective,’ and the mere existence of conflicting authority does not necessarily mean a rule is new.” Wright v. West, 505 U.S. 277, 304, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (O’Connor, J., concurring) (quoting Stringer v. Black, 503 U.S. 222, 237, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992)). Furthermore, the “mere existence of a dissent [does not] suffice[] to show that the rule is new.” Beard v. Banks, 542 U.S. 406, 416, 124 S.Ct. 2504, 159 L.Ed.2d 494 (2004); cf. Amer, 681 F.3d at 213 (holding that the “array of views expressed by the Justices,” along with the fact that a case “departed markedly from the legal landscape” was sufficient to show that a case was new within the meaning of Teague (citations omitted)).

We agree with the Eighth Circuit that we “must rely principally on the rationale articulated by the Court in its decision.” Headbird, 813 F.3d at 1097. As explained above, Descamps clearly relies on existing precedent. The Court explicitly says so and spends nearly the whole opinion explaining that viewpoint. 133 S.Ct. at 2283-93. This clarity outweighs any apparent disagreement among the circuits and the justices. We conclude, therefore, that Morgan’s § 2255 motion challenging his sentence is not timely.

AFFIRMED. Motion to appoint counsel DENIED.

      . A judgment of conviction becomes final when the conviction is affirmed on direct review or when the time for perfecting an appeal expires. Clay v. United States, 537 U.S. 522, 527, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003). Since no appeal was taken, Morgan’s conviction became final fourteen days after judgment was entered. Fed. R. App. P. 4(b).

      . The subsection addressed in Jackson ((h)(2)) requires a "new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable” whereas the subsection addressed here focuses on "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.”

      . Several unpublished cases have come to the same conclusion: King v. United States, 610 Fed.Appx. 825, 828 (11th Cir.) ("As for Des-camps, it is not a new rule. It merely applied prior precedent to reaffirm that courts may not use the modified categorical approach to determine whether convictions under indivisible statutes are predicate ACCA violent felonies.”), cert. denied, — U.S. —, 136 S.Ct. 349, 193 L.Ed.2d 253 (2015); United States v. Hopson, 589 Fed.Appx. 417 (10th Cir, 2015) ("Descamps did not recognize a new right, but rather applied existing doctrine.”).

      . Compare United States v. Descamps, 466 Fed.Appx. 563, 565 (9th Cir. 2012) (applying the modified categorical approach to § 459), rev'd, — U.S. -, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) and United States v. Arm-stead, 467 F.3d 943, 947-50 (6th Cir. 2006) (applying that approach to a similar, indivisible statute), abrogated by Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), with United States v. Beardsley, 691 F.3d 252, 268-74 (2d Cir. 2012) (holding that the modified categorical approach applies only to divisible statutes), and United States v. Giggey, 551 F.3d 27, 40 (1st Cir. 2008) (en banc) (same).