author: STEPHEN A. HIGGINSON, Circuit "Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee v. Taylor Alan MILLS, Defendant-Appellant
    No. 16-40258
    United States Court of Appeals, Fifth Circuit.
    Filed December 8, 2016

      John Richard Berry, Assistant U.S. Attorney, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney’s Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.
    Travis Wiley Berry, I, Esq., Attorney, Corpus Christi, TX, Margaret Loraine Schmucker, Cedar Park, TX, for Defen-danf-Appellant.
    Before WIENER, CLEMENT, and HIGGINSON, Circuit Judges.

      . Notably, there are exceptions to tills general rule. For example, prior deferred adjudications for certain offenses are counted as'“convictions” for the purpose of enhancing sentences of repeat and habitual offenders, even if the defendant successfully completed the community supervision term. This includes defendants with a previous deferred adjudication for Indecency with a Child under Texas . Penal Code § 21,11. See Tex. Penal Code §§ 12.42(c)(2), (g) (West 2013); Nolan v. State, 102 S.W,3d 231, 239-41 (Tex. App, 2003); see also Tex. Code Crim. Proc. art. 42.12, § 5(c)(1) (successfully completed deferred adjudication admissible at punishment phase of subsequent conviction).

   STEPHEN A. HIGGINSON, Circuit "Judge:

Taylor Aan Mills pleaded guilty pursuant to a plea agreement to coercion or enticement of a minor in violation of 18 U.S.C. § 2422(b),and was sentenced to a 300-month term of imprisonment to be followed by a life term of supervised release. Mills appeals his sentence, claiming that the district court should not have considered his prior Texas deferred adjudication for the purpose of enhancing- his sentence and, in the alternative, that his 300-month sentence violates the Eighth Amendment. We affirm.

I.

On September 12, 2015, an undercover detective with- the Corpus Christi Police Department posted an ad on the website Craigslist entitled “Family Fun Taboo.” The ad read: “mother of two, young, hit me up if you want to hook up and have some family fun.” Using the alias “Aan Pepsi,” Mills responded and began communicating with the detective, who represented to Mills that she was a mother of two children ages 11 and 14.

At Mills’s request, the detective sent him photographs of the two children, which were actually age-regressed photographs of two Corpus Christi police officers. In return, Mills sent the detective explicit photographs of himself and asked the detective to show the photographs to the two children. He also described various sex acts he intended to engage in with the children. The conversations culminated in Mills agreeing to meet the detective at a designated hotel to engage in sexual activity with the children. When Mills arrived at the pre-arranged meeting place, he was arrested. Mills admitted to the police that he had come to the hotel with the intent to have sex with the two children, whom he believed to be 11 and 14 years old. At the time of his arrest, Mills was in possession of a condom and other sex paraphernalia.

Mills pleaded guilty pursuant to a plea agreement to using a facility and means of interstate and foreign commerce — i.e., a telephone and a computer connected to the internet — to knowingly attempt to persuade, induce, entice, and coerce a minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b). In calculating Mills’s advisory Sentencing Guidelines range for inclusion in his Pre-sentence Report, the probation office determined that Mills was a repeat and dangerous sex offender pursuant to U.S.S.G. §• 4B1.5(a), because he had committed his- instant offense subsequent to sustaining a prior sex offense conviction.

This determination was based on Mills’s 2013 guilty plea in Texas state court to two counts of Online Solicitation of a Minor and one count of Indecency with a Child, in violation' of Texas Penal Code §§ 33.021 and 21.11. In 2012, Mills began communicating with a 16-year-old high school student on Facebook, including sending her sexually-explicit messages. Mills additionally picked up the victim from her school on at least one occasion and, according to the victim, exposed himself to her while she was in his vehicle. For .this offense, Mills received what Texas law refers to as a “deferred adjudication.” After receiving and entering Mills’s guilty plea and making a finding that the evidence substantiated Mills’s guilt, the Texas court imposed ten years of confinement, but probated it to ten years of community supervision, subject to a number of conditions. At the time, of sentencing for his instant federal offense, Mills was still under his Texas deferred adjudication probation term.

As a result of the § 4BI.5(a) repeat offender enhancement, Mills’s criminal history was automatically raised to level V. Combined with a total offense level of 35, this produced an advisory Sentencing Guidelines range of 262 to 327 months of imprisonment. The enhancement did not increase the statutory maximum punishment for Mills’s offense, which was life imprisonment. See 18 U.S.C. § 2422(b). The district court sentenced Mills within-guidelines to 300 months of imprisonment and a life term of supervised release.

Mills raises two issues on appeal: (1) whether the district court erred in determining that he qualified for the § 4B1.5(a) enhancement; and (2) whether his 300-month sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment. Mills raised both issues below, thus preserving them for review.

II.

A sentence is enhanced under § 4B1.5(a) when “the defendant committed the instant offense of conviction subsequent to sustaining at least one sex offense conviction.” U.S.S.G. § 4B1.5(a) (emphasis added). Mills argues that his Texas deferred adjudication for Online Solicitation of a Minor and Indecency with a Child is not a prior “conviction” within the meaning of § 4B1.5(a). Section 4B1.5 does not expressly define the term “conviction,” and neither party has identified any cases addressing the question of whether a deferred adjudication qualifies as a “sex offense conviction” for the purposes of the § 4B1.5(a) enhancement.

Whether the Sentencing Guidelines apply to a prior conviction is a question of federal law, which we review de novo. United States v. Vasquez, 298 F.3d 354, 356, 358 (5th Cir. 2002); United States v. Valdez-Valdez, 143 F.3d 196, 197-98 (5th Cir. 1998); United States v. Cisneros, 112 F.3d 1272, 1280 (5th Cir. 1997). State law can “be looked to ‘for informational purposes, but we are not bound by its treatment of a ... conviction when we apply the federal sentence-enhancement provisions.’” Cisneros, 112 F.3d at 1280 (quoting United States v. Morales, 854 F.2d 65, 68 (5th Cir. 1988)); see also Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 111-12, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983) (“Whether one has been ‘convicted’ within the language of the gun control statutes is necessarily ... a question of federal, not state, law, despite the fact that the predicate offense and its- punishment are defined by the law - of the State.”). “This makes for desirable national uniformity unaffected by varying state laws, procedures, and definitions of ‘conviction.’” Dickerson, 460. U.S. at 112, 103 S.Ct. 986.

Under Texas law, a court may, upon receiving a guilty plea, “defer adjudication” in the case instead of entering a formal finding or judgment of guilt. This procedure is described in the Texas Code of Criminal Procedure:

[W]hen in the judge’s opinion the best interest of society and the defendant will be served, the judge may, after receiving a plea of guilty ..., hearing the evidence, and finding that it substantiates the defendant’s guilt, defer further proceedings without entering an adjudication of guilt, and place the defendant on community supervision.

Tex. Code Crim. Proc. art. 42.12, § 5(a) (West 2006). If the defendant violates a condition of community supervision, the court may then proceed to adjudicate guilt and assess a punishment. Id. at art. 42.12, § 6(b). If, however, the defendant successfully completes the community supervision term, the case, for most legal purposes, “disappears.” Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004) (quoting Ex parte Hernandez, 705 S.W.2d 700, 702 (Tex. Crim. App. 1986)). “In those circumstances, the proceedings are dismissed, the defendant is discharged, and the defendant is deemed not to have a conviction for many purposes” under Texas law. Id.

Mills concedes that this court has' consistently treated Texas deferred adjudications as “convictions” under the Sentencing Guidelines. However, as Mills correctly points out, the sentencing provisions examined in many of our prior cases provide specific interpretive clues by either expressly defining the term “conviction” or by referencing commentary indicating that deferred adjudications qualify as convictions. Therefore, we agree with Mills that, although instructive, these prior holdings do not fully resolve the meaning of “conviction” as used in § 4B 1.5(a). See DeLeon v. City of Corpus Christi, 488 F.3d 649, 652 (5th Cir. 2007); Cisneros, 112 F.3d at 1281.

Because § 4B1.5 does not expressly define “conviction,” Mills urges us to depart from our prior understanding of the term and hold that, as used in § 4B1.5, “conviction” excludes deferred adjudications such as his. Mills argues that because the term is capable of multiple meanings, this court must apply the rule of lenity and give him the benefit of the reading that results in a shorter sentence. However, the rule of lenity is only applied where “ ‘[a]fter seizing] every thing from which aid can be derived,’ the Court is ‘left with an ambiguous statute.’ ” Smith v. United States, 508 U.S. 223, 239, 113 S.Ct. 2050, 124 L.Ed,2d 138 (1993) (alterations in original) (quoting United States v. Bass, 404 U.S. 336, 347, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971)).

Mills relies on the Supreme Court’s decision in Deal v. United States, 508 U.S. 129, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993), for the proposition that the term “conviction” “has long been understood” to be “ambiguous.” In fact, the Court in that case came to the opposite conclusion, rejecting a defendant’s similar suggestion that “conviction,” left undefined, was ambiguous as used in 18 U.S.C. § 924(c)(1), which provides a sentencing enhancement for prior convictions of crimes of violence. Id. at 131-32, 113 S.Ct. 1993 (“[0]f course susceptibility [to multiple] meanings does not render the word ‘conviction,’ whenever it is used, ambiguous.”). 'While acknowledging that “conviction,” according to the dictionary, could have multiple meanings, the Court noted that the defendant had overlooked the “fundamental principle’ of statutory construction (and, indeed, of language itself) that the meaning of á word cannot be determined in isolation, but must be drawn from the context in which it is used.” Id. at 132, 113 S.Ct. 1993.

Indeed, this court has previously held that a deferred adjudication qualifies as a conviction in a federal sentencing context substantially similar to this one, and there too the term was not expressly defined. In Cisneros, the court concluded that a Texas deferred adjudication counted as a “prior conviction” for purposes of 21 U.S.C. § 841(b)(1)(A), which provides a sentencing enhancement if the instant offense occurs “after two or more prior convictions for a felony drug offense have become final.” 112 F.3d at 1280; see also United States v. Fazande, 487 F.3d 307, 308 (5th Cir. 2007). The court in Cisneros- held that a deferred adjudication constituted a conviction, because “after receiving [the defendant’s] guilty plea and hearing the evidence, the [Texas] state trial court had to find that' the evidence substantiated [the defendant’s] guilt in order to defer proceedings without entering an adjudication of guilt.” Id. at 1282. The court’s holding followed naturally from the Supreme Court’s determination in Dickerson that an Iowa court’s, “deferred” entry of judgment following a defendant’s guilty plea counted as a conviction for purposes of 18 U.S.C. § 922(g), which relates to firearms offenses. 460 U.S. at 113, 103 S.Ct. 986 (concluding that, for the purpose of the federal gun control statute, “we equate a plea of guilty and its notation by the state court, followed by a sentence of probation, with being ‘convicted’”). Regardless of Texas’s unique procedural circumstances, for defendants placed on probation as a result of deferred adjudication but who have not yet successfully completed that term, we note that the Supreme Court in Dickerson stated, “It is ... plain that one cannot be placed on probation if the court does not deem him to be guilty of a crime.” Id. at 113-14, 103 S.Ct. 986.

The court in Cisneros additionally highlighted the Government’s argument that counting deferred adjudications as “convictions” under the statute “would promote the policy that defendants who obtain the advantage of a rehabilitative sentence but nevertheless continue to commit crimes should not receive further leniency.” Cisneros, 112 F.3d at 1281. The commentary to § 4B1.5 suggests the same rationale applies here. The background in § 4B1.5 notes that Congress “directed the Commission to ensure lengthy incarceration for offenders who engage in a pattern of activity involving the sexual abuse or exploitation of minors.” U.S.S.G. § 4B1.5 cmt. background. Excluding an offense — for which a defendant has pleaded guilty and a judge has found that the evidence substantiates the defendant’s guilt — merely because the defendant received the more lenient state order of deferred adjudication probation rather than imprisonment would appear to undermine the purpose of the enhancement. The commentary additionally notes that § 4B1.5 is intended to apply “to offenders whose instant offense of conviction is a sex offense committed against a minor and who present a continuing danger to the public.” Id. Mills’s urged understanding of the term “conviction” would seem particularly adverse to this purpose in situations such as his, where a defendant quickly recommits while still under a criminal justice order for a prior sex offense. See United States v. Daniels, 588 F.3d 835, 837 (5th Cir. 2009) (“[A] recidivist offender ... may not doubly benefit from the fortune of a lenient disposition in the Texas courts.... ”).

Our understanding of deferred adjudication in the context of § 4B1.5 further accords with our treatment of deferred adjudication as the functional equivalent of a final conviction in various other contexts. For example, this court has determined that Texas «deferred adjudications qualify as “final judgments” for the purpose of triggering the federal habeas limitations period. See Caldwell v. Dretke, 429 F.3d 521, 530 (5th Cir. 2005); see also DeLeon, 488 F.3d at 653-54 (holding that a Texas deferred adjudication was the “functional equivalent” of a conviction for purposes of dismissal of a 42 U.S.C. § 1983 action). Similarly, under Texas law, deferred adjudications are immediately appealable upon entry of the initial order, triggering the 30-day limitations period for filing a notice of appeal. See Vasquez, 298 F.3d at 358-59. In fact, a defendant subject to a deferred adjudication may only appeal issues related to the original plea .proceedings — including sufficiency of the evidence — when the deferred adjudication is originally imposed, not upon revocation. See Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999). These state appeals proceed “in the same manner as if guilt had been determined.” Ramirez v. State, 36 S.W.3d 660, 662 (Tex. App. 2001, pet. ref’d).

Accordingly, we hold that the district court did not err in applying the Guidelines enhancement under § 4B1.5 based on Mills’s prior deferred adjudication.

III.

In the alternative, Mills contends that his 300-month sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment. Because Mills raised this claim in the district court, he preserved the issue .for appellate review. See United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009) (“To preserve error, an objection must be sufficiently specific to alert the district court to the nature of the alleged error and to provide an opportunity for correction.”). Therefore, this court reviews the constitutional issue de novo. United States v. Lawrence, 727 F.3d 386, 396 (5th Cir. 2013).

The Eighth Amendment “preclude[s] a sentence that is greatly disproportionate to the offense, because such sentences are cruel and unusual.” McGruder v. Puckett, 954 F.2d 313, 315 (5th Cir. 1992) (internal quotation marks and citation omitted); see also Lockyer v. Andrade, 538 U.S. 63, 73, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). When subjecting a sentence to Eighth Amendment scrutiny, this court first “makes a threshold comparison of the gravity of the offense against the severity of the sentence.” United States v. Thomas, 627 F.3d 146, 160 (5th Cir. 2010). “Only if [the court] determine[s] that the sentence is ‘grossly disproportionate to the offense’ will [it] compare [the defendant’s] sentence to sentences for similar crimes in this and other jurisdictions.” Id. This court’s “review of Eighth Amendment challenges is narrow.” United States v. Hebert, 813 F.3d 551, 565 (5th Cir. 2015) (internal quotation marks and citation omitted). “The appellate court is not to substitute its judgment for that of the legislature nor of the sentencing court as to the appropriateness of a particular sentence; it should decide only if the sentence is within the constitutional limitations.... ” United States v. Cardenas-Alvarez, 987 F.2d 1129, 1134 (5th Cir. 1993). “As a result, ... successful Eighth Amendment challenges to prison-term lengths will be rare.” Hebert, 813 F.3d at 566 (internal quotation marks and citation omitted); United States v. Looney, 532 F.3d 392, 396 (5th Cir. 2008).

Rummel v. Estelle, 445 U.S. 263, 265-67, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), “establishes a benchmark for claims of disproportionate punishment under the Eighth Amendment.” United States v. Forester, 557 Fed.Appx. 380, 381 (5th Cir. 2014) (per curiam) (quoting United States v. Gonzales, 121 F.3d 928, 943 (5th Cir. 1997), overruled cm other grounds by United States v. O’Brien, 560 U.S. 218, 130 S.Ct. 2169, 176 L.Ed.2d 979 (2010)). In that case, the defendant, who had three prior non-violent felony offenses, was given a life sentence under a Texas recidivist statute for the felony offense of obtaining $120.75 under false pretenses. Rummel, 445 U.S. at 284-85, 100 S.Ct. 1133. “Noting that the line-drawing function inherent in the determination of punishment is a matter within the discretion of the legislature,” the Supreme Court upheld the life sentence, finding that it was not so grossly disproportionate as to offend the Eighth Amendment. Gonzales, 121 F.3d at 943; Rummel, 445 U.S. at 285, 100 S.Ct. 1133.

When compared to the Rummel benchmark, Mills’s sentence is not grossly disproportionate to his offense. In fact, Mills’s offense is more serious, and his punishment less severe, than the defendant’s in Rummel. As the district court observed, Mills sought out an opportunity and took substantial steps to entice and coerce two children, whom he believed to be 11 and 14 years old, to engage in sexual activity. Further, Mills’s ' sentence reflected' not only “the seriousness of his most recent offense ... as it stands alone,” but also his prior criminal conduct. McGruder, 954 F.2d at 316 (noting that a defendant’s life sentence imposed for auto burglary reflected not only the seriousness of that crime, but also took into account the defendant’s prior criminal conduct pursuant to a habitual offender statute). This prior conduct involved engaging in sexually-explicit conversations online with a 16-year-old girl, picking her up after school, and, according to the victim, exposing himself to her. The sentencing appropriately took into account Mills’s past pattern of behavior, as sentencing enhancement statutes have long done. Id. at 316 n.3 (“Sentencing enhancement statutes have long reflected past offenses.”).

Moreover, Mills, who faced a mandatory minimum of ten years and a statutory maximum sentence of life imprisonment, received a sentence 'within the advisory Guidelines range. 18 U.S.C. § 2422(b). This court has previously held that the Guidelines are a “convincing objective indicator of proportionality.” Cardenas-Alvarez, 987 F.2d at 1134; United States v. Woods, 576 Fed.Appx. 309, 309-10 (5th Cir. 2014) (per curiam).

Finally, we note that this court has previously upheld- sentences, like Mills’s, where the gravity of the defendant’s offense was greater and the sentence less severe than the sentence in Rummel. See Looney, 532 F.3d at 395-97 (upholding a 548-month sentence for a 53-year old woman with no prior criminal convictions for controlled substance and firearms offenses); Forester, 557 Fed.Appx. at 381 (“[W]e are unpersuaded that [the defendant’s] sentence of 81 months for a fraud crime with a maximum penalty of ten years was ‘grossly disproportionate.’ ”).

Given our holdings in these cases and the Supreme Court’s determination that the life sentence in Rummel was not grossly disproportionate to that defendant’s petty and nonviolent crimes, Mills has not shown that his 300-month sentence is unconstitutionally disproportionate to his conviction for coercion or enticement of a minor. Because Mills’s sentence is not grossly disproportionate to his offense, we need not compare his sentence to sentences given for similar crimes in this and other jurisdictions. See Thomas, 627 F.3d at 160. Accordingly, we conclude that Mills’s sentence did not run afoul of the Eighth Amendment’s prohibition against cruel arid unusual punishment.

IV.

For the aforementioned reasons, we AFFIRM the sentence imposed by the district court.

      .- .See, e.g„ United States v. Washington, 480 F,3d 309, 318 (5th Cir. 2007) (holding a deferred adjudication is a prior conviction for purposes of § 4B1.1); United States v. Ramirez, 367 F.3d 274, 277 (5th Cir. 2004) (holding a deferred adjudication probation is ■ a prior conviction for purposes of § 2L1.2); Valdez-Valdez, 143 F.3d at 200 (holding that a deferred adjudication counts as a prior sentence for the purposes of calculating a defendant’s criminal history score under §§'4A1,1 and 4A1.2); United States v. Stauder, 73 F,3d 56, 56-57 (5th Cir, 1996) (noting that § 2K2.1 refers to criminal history Guidelines provisions, which state a deferred adjudication is used to calculate a defendant's criminal history); see also United States v, Joslin, 487 Fed. Appx. 139, 144 & n,3 (5th Cir, 2012) (per curiam) (finding no plain error where district court held defendant’s deferred adjudication counted as a prior conviction for purposes of subsequent federal sentencing • under the Armed Career Criminal Act, 18 U.S.C. § 924(e)); United States v, Guerrero, 460 Fed. Appx, 424, 425-26 (5th Cir. 2012) (per cu-riam) (same under § 4A1.2(f) and comment n.10),

        .See, e.g., Stauder, 73 F.3d at 56-57 (noting that § 2K2.1 incorporates the definition of “conviction” used in § 4A1.1, which directs that criminal history computations should count a "diversionary disposition resulting from a finding or admission of guilt”); United States v. Joshua, 305 F,3d 352, 353 (5th Cir. 2002) (noting that § 4b 1.1 incorporates the definition of "prior felony conviction” used in § 4B1.2, which, in turn, includes commentary stating: “ ‘Prior felony conviction' means a prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year, regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed," (emphasis added)).

      . As noted in Logan v. United States, 552 U.S. 23, 128 S.Ct. 475, 169 L.Ed.2d 432 (2007), Dickerson was later superseded by statute, when Congress amended the statute at issue to expressly exclude convictions which have been "expunged, or set aside or for which a person has been pardoned or has had civil rights restored.” 18 U.S.C. § 921(a)(20).

      . The Eighth Circuit came to a similar conclusion in United States v. Leach, 491 F.3d 858, 867 (8th Cir. 2007), which held that the term "conviction” as used in § 4B1.5 unambiguously applied to a defendant who had pleaded guilty to — but had not yet been sentenced for — a state sex offense at the time he committed his instant offense of conviction. The Eighth Circuit concluded that, although no final judgment of conviction had yet been entered on the state sex offense when he committed his instant federal offense, reading the term "conviction” to exclude such an offense "does nothing to effectuate the stated intent of the enhancement.” Id. at 867.


source: Caselaw Access Project

author: ROGERS, Circuit Judge.

license: Public Domain

text:
    Mario Luis González PLIEGO, Petitioner-Appellee, v. Amanda Leigh HAYES, Respondent-Appellant.
    No. 15-5895
    United States Court of Appeals, Sixth Circuit.
    Argued: September 14, 2016
    Decided and Filed: December 5, 2016

      ARGUED: Laurel King-Davis, Kentucky Legal Aid, Madisonville, Kentucky, for Appellant. Rebecca K. McKelvey, Stites & Harbison PLLC, Nashville, Tennessee, for Appellee. ON BRIEF: Laurel King-Davis, Kentucky Legal Aid, Madison-ville, Kentucky, for Appellant. Rebecca K. McKelvey, Brenton H. Lankford, Stites & Harbison PLLC, Nashville, Tennessee, for Appellee.
    Before: ROGERS, SUTTON, and COOK, Circuit Judges.
   OPINION

ROGERS, Circuit Judge.

The Hague Abduction Convention, which is implemented by statute in the United States,. requires the return of abducted children to the state (i.e,, nation) of habitual residence, so that the courts of that state may resolve custody issues. This case involves an exception that applies when there is clear and convincing evidence that there is a “grave risk” that the child’s return would “place the child in an intolerable situation.” The mother is American and the father is Spanjsh, but the state of habitual residence is Turkey, where the father is assigned as a Spanish diplomat. The mother has twice removed the child to the United States, and twice been ordered by the district court below to return the child to Turkey. The mother now appeals the second return order, arguing that there is grave risk of an “intolerable situation” because the father’s diplomatic status undermines the ability of the Turkish courts to properly adjudicate, custody. While .the “intolerable situation” exception does extend to situations where custody cannot be practically or legally, adjudicated in the state of habitual residence, that is not the case here because — as found by the district court — the waiver by the Spanish government of the father’s diplomatic immunity sufficiently permits the Turkish courts to adjudicate custody. The . district court accordingly properly ordered the return of the child,

I.

Respondent Amanda Hayes is a U.S. citizen who grew up in Kentucky. Petitioner Mario Pliego is a Spanish diplomat, whose service requires him to move-from country to country every few years. Hayes and Pliego married in 2009 and had their only child in 2011. In 2012, the family moved to Turkey, where Pliego served in the Spanish embassy in Ankara.

At some point after the birth of their child, Hayes’s and Pliego’s marriage began to deteriorate. In April 2014, Hayes took the child from Turkey to Kentucky and informed Pliego she would not return. In response, in August 2014, Pliego filed his first petition for the child’s return under the International Child Abduction Remedies Act, 22 U.S.C. §§ 9001-9011 (2012) (“ICARA”), which implements the Convention on the Civil Aspects of International Child Abduction, Oct. 10, 1980, 1343 U.N.T.S, 89; 19 I.L.M. 1501 (the “Hague Abduction Convention” or the “Convention”). Pliego filed his petition in the United States District Court for. the Western District of Kentucky. As required under ICARA and the Hague Abduction Convention, the court first determined the child’s country of habitual residence, which in this case was Turkey. Pliego v. Hayes, 86 F.Supp.3d 678, 696-97 (W.D. Ky. 2015) (“Pliego I”). The court acknowledged that none of the family members were Turkish, but nevertheless reasoned that the child had spent most of his young life there. Id. Next,, the court held that the removal' of the child from Turkey violated Pliego’s joint custody rights under the laws of that country. Id. at 697-98. The court held that Pliego had therefore established a prima facie case that the child should be returned to .Turkey, shifting the burden to Hayes to present her affirmative defenses. Id.

Hayes invoked Article 13(b) of the Hague Abduction Convention, which creates an affirmative defense to a prima facie case for a child’s return if “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Hague Abduction Convention art. 13(b). Hayes alleged that Pliego had abused the child, exposing him to “physical or psychological harm.”-In particular, she alleged that Pliego used to yell at, pinch, and grab the child, leaving bruises, and also that Pliego had “force-fed” the child by continuing to put food in his mouth after he was full, causing him to vomit. Hayes alleged that Pliego had abused'her as well. In particular, she alleged that Pliego had, on various occasions, flown into a rage and squeezed, grabbed, or pushed her, leaving bruises; that Pliego had verbally abused and threatened her in front the child; and that he had raped her on multiple occasions. Pliego denied the allegations. The court carefully considered Hayes's allegations and noted that it found both Pliego and Hayes to be credible witnesses, and therefore reasoned that “the truth lies somewhere in the middle.” Pliego I, 86 F.Supp.3d at 701. Accordingly, without passing judgment on whether the abuse had occurred, the court held that the evidence of the “physical or psychological harm” was not “clear and convincing,” as would be required to prevent the child’s return. Id. at 702-03 (applying 22 U.S.C. § 9003(e)(2) (2012)). Therefore, the court held that Hayes could not overcome Plie-go’s prima facie case that the child had been wrongfully removed. Id. The court ordered that the child be returned to Turkey. Id. at 703. There was no appeal.

Within a few days of the court’s order in January 2015, Pliego and the child returned to Turkey. Hayes returned to Turkey separately. Hayes petitioned one Turkish court for an exit ban on the child, which was granted. She petitioned another Turkish court for temporary custody, which was also granted. On February 19, with the temporary custody order in hand, Hayes went to Pliego’s home with several Turkish police officers and took the child.

Pliego then filed a motion in Turkish court to dismiss Hayes’s temporary custody order. As noted above, Pliego is a Spanish diplomat. He therefore asserted in Turkish court that he enjoyed diplomatic immunity, such that a Turkish court could not adjudicate the custody of his child. See Vienna Convention on Diplomatic Relations art. 31, Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95. In support of this petition, the Turkish Ministry of Foreign Affairs, the Turkish Ministry of Justice, and the Ankara Prosecutor sent letters to the Turkish court suggesting that the court respect Pliego’s immunity. The Turkish court granted Pliego’s request, dismissing the temporary custody order that had been in Hayes’s favor.

Pliego then tried to get the child back. In March 2015, Pliego and Turkish police officers arrived at the address that Hayes had given the Turkish courts. However, both Hayes and the child had disappeared. Hayes had learned that her temporary custody order had been dismissed and had taken the child to a “safe house” established to protect victims of domestic violence. By moving from safe house to safe house, Hayes and the child were able to evade detection by Turkish police. After a month or so of such travel, Hayes left Turkey by boat, which allowed her to circumvent the exit ban on the child. She traveled by boat from Turkey to Albania, and then flew to the United States in early April.

In June 2015, Pliego filed his second petition in the same U.S. district court for the return of the child under ICARA. Pending its decision, the court granted Pliego temporary custody of the child within Kentucky or Tennessee, and Pliego took the child to live with him in Nashville, Tennessee, during the litigation. Pliego also took steps for his diplomatic immunity to be waived, which would be necessary for Turkish courts to adjudicate the child’s permanent custody if his second ICARA petition was successful and the child was returned to Turkey. Accordingly, in May and July of 2015, the Spanish Embassy sent diplomatic notes to Turkish authorities waiving Pliego’s immunity of jurisdiction and execution with regard to the custody case. However, these notes emphasized that this waiver applied only to the custody dispute for Pliego’s son, and not to any other civil or criminal matters connected to it.

During the child’s stay with Pliego in Nashville, Hayes was allowed visits in public places. During one of these visits, Hayes noticed markings on the child’s body, which she believed to be bruises. She photographed these bruises, showed them to the child’s doctor, and later submitted the photographs to the district court. The doctor could not conclude whether the bruises were evidence of abuse, but nevertheless alerted child services. Pliego and his mother, who was also staying in Nashville, later testified that the “bruises” wei*e actually mosquito bites the child had received while playing with Pliego in the backyard of their rented home.

At the beginning of the litigation for Pliego’s second petition, the parties stipulated that Turkey was the child’s country of habitual residence and that Hayes had violated Pliego’s custody rights by removing him from Turkey, establishing a prima facie case that the child should be returned unless' Hayes could make out an affirmative defense under Article 13(b) of the Hague Abduction Convention. Pliego v. Hayes, No. 5:15-CV-00146, 2015 WL 4464173, at *7 (W.D. Ky. July 21, 2015) (“Pliego IF). Furthermore, in making out her affirmátive defense, Hayes largely forwent a re-argument that the child faced a “grave risk [of] physical or psychological harm,” one of the prongs of Article 13(b). Instead, she focused on the other prong of Article 13(b), arguing primarily that the child faced an “intolerable situation” because Turkish courts could not properly adjudicate the custody dispute or protect the child from abuse due to Pliego’s diplomatic status.

The district court, however, found Hayes’s argument unpersuasive. First, the court held that the alleged bruises were simply not enough to show abuse, finding credible Pliego’s and his mother’s testimony that the “bruises” were actually mosquito bites. Pliego II, 2015 WL 4464173, at *8. Second, the court found that Pliego’s immunity had been successfully waived, such that' the custody dispute could go forward. Id. at *10. The court recognized that Pliego still retained his diplomatic immunity for non-custody matters, as well as his diplomatic inviolability, but reasoned that this was not enough to prevent adjudication of the central custody dispute. Id. Third, the court found that Hayes had produced “scant evidence” of Pliego’s “undue influence” with Turkish authorities. Id. The court found that custody litigation could therefore proceed in Turkey and held that Hayes had failed to make out a defense under Article 13(b) of the Convention. Id. The court announced its opinion verbally at the end of the last evidentiary hearing, and then issued a written opinion detailing its reasoning a few days later. Id. at *11. As required under ICARA’s fee-shifting provisions, 22 U.S.C. § 9007(b)(3) (2012), the court held in a separate order that Pliego was entitled to an award of $100,471.18 in attorneys’ fees and costs. Hayes appealed.

II. Mootness

As an initial matter, this court must satisfy itself that this case is not moot, such that it may consider Hayes’s appeal. By appealing Pliego II, Hayes is asking in effect for a “re-return” order instructing that the child be brought back from Turkey to the United States. Such a re-return order may be difficult to enforce, but this alone does not render an ICARA case moot, Chafin v. Chafin, — U.S. —, 133 S.Ct. 1017, 1023-26, 185 L.Ed,2d 1 (2013). Furthermore, the essential facts have not changed since Hayes’s appeal of Pliego II. The child is still in Turkey. An exit ban still prevents either parent from taking him outside of that country. Pliego has been reassigned to the Spanish Embassy in Ukraine, but remains on secondment at his country’s embassy in Ankara, such that he continues to enjoy diplomatic immunity in Turkey. Finally, Turkish courts are still adjudicating the underlying custody dispute. Accordingly, this case is not moot, and we have jurisdiction to decide the appeal.

III. Intolerable Situation

The posture of this case leaves us with essentially one merits issue: whether the child faces an “intolerable situation” under Article 13(b) of the Hague Abduction Convention. In Pliego I, Hayes argued that the child faced a “grave risk [of].;. physical or psychological harm,” the first prong under Article 13(b). However, she does not rely on this treaty language in her appeal in this case. Furthermore, she does not challenge the district court’s determinations- that Turkey is the.child’s country of habitual residence and that the child was removed from Turkey in violation of Pliego’s custody rights. Her remaining argument is that the child faces an “intolerable situation” upon his return to Turkey, the second prong under Article 13(b), because Turkish courts are unable to properly adjudicate the custody dispute or protect the child in the event of abuse. To support this argument on appeal, Hayes points to Pliego’s diplomatic immunity, his alleged “undue influence” with Turkish courts, and his alleged prior abuse.

In short, even though a showing that Turkish courts could not' properly adjudicate custody in this case could amount to an intolerable situation, the district court did not clearly err as a matter of fact in finding that Turkish courts could adjudicate custody.

A.

This case would be an easy one if we could simply'hold that Hayes’s inability-to-adjudicate argument was irrelevant to the “intolerable situation” prong of Article 13(b). Pliego arguably contends as much. He asserts that Hayes has cited no precedent in support of her interpretation of an “intolerable situation.” Furthermore, the few cases that do discuss an “intolerable situation” focus on “sexual[] abuse” and the “civil stability” of the child’s country of habitual residence, rather than the ability of foreign courts to adjudicate the dispute. See Friedrich v. Friedrich, 78 F.3d 1060, 1068 (6th Cir. 1996) (quoting State Department Public Notice 957, 51 Fed. Reg. 10,494, 10,510 (March 26, 1986)); Mendez-Lynch v. Mendez-Lynch, 220 F.Supp.2d 1347, 1364-65 (M.D. Fla. 2002). Pliego therefore appears to be asking us to dismiss Hayes’s argument as an unwarranted “extension of the law.”

The treaty phrase “intolerable situation,” however, can encompass situations where the courts of the state of habitual residence are practically or legally unable to adjudicate custody. This conclusion is supported by the text of the Hague Abduction Convention, the object and purpose of the Convention, and the subsequent practice of the parties to the Convention. Text, object and purpose, and subsequent practice are .all set forth as the primary means of treaty interpretation in the Vienna Convention on the Law of Treaties art. 31, May 23, 1969, 1155 U.N.T.S. 331, 8 I.L.M. 679 (“VCLT”). Our sister circuits have applied the VCLT as an articulation of the customary international law of treaty interpretation, even though the United States is not a party to the treaty itself. See Mora v. New York, 524 F.3d 183, 196 n.19 (2d Cir. 2008); Aquamar, S.A. v. Del Monte Fresh Produce N.A., Inc., 179 F.3d 1279, 1296 n.40 (11th Cir. 1999); Kreimerman v. Casa Veerkamp, S.A. de C.V., 22 F.3d 634, 638 n.9 (5th Cir. 1994). Furthermore, the Supreme Court has relied on similar tools when interpreting other provisions of the Hague Abduction Convention, which is incorporated into U.S. law under ICARA. 22 U.S.C. § 9003(d) (2012). For example, in Lozano v. Montoya Alvarez, the Court considered the text of the relevant provision of the Convention, the contracting parties’ “intent,” and how the courts of other contracting parties had applied the relevant provision. — U.S. —, 134 S.Ct. 1224, 1229, 1232-33, 188 L.Ed.2d 200 (2014). Similarly, in Abbott v. Abbott, the Court considered the text of the Convention, its “objects and purposes,” and “the views of other contracting states” in order to interpret another provision of the Convention. 560 U.S. 1, 10, 16, 20, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010).

The text of Article 13(b) supports the interpretation that an “intolerable situation” can encompass situations where one parent seeks to return a child to a country where courts are unable to adjudicate custody. The customary rules of treaty interpretation begin with, the “ordinary meaning to be given to the terms of the treaty.” VCLT art. 31. Similarly, under U.S. domestic law, “[t]he interpretation of a treaty, like the interpretation of a statute, begins with its text.” Abbott, 560 U.S. at 10, 130 S.Ct. 1983 (quoting Medellín v. Texas, 552 U.S. 491, 506, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008)). The ordinary meaning of “expose the child to physical or psychological harm or otherwise place the child in an intolerable situation” suggests that an “intolerable situation” must be different from “physical or psychological harm,” but nevertheless serious. First, “otherwise” means “in a different way or manner,” “in different circumstances,” or “in other respects.” Webster’s Third New International Dictionary 1598 (2002). Therefore, an “intolerable situation” must be different in way or manner from physical or psychological harm. Second, “tolerable” means “capable of being borne or endured,” or “meeting some minimum standard of acceptability.” Id, at 2405. “Intolerable” means “not tolerable.” Id. at 1185. Therefore, whatever an “intolerable situation” means within the context of the Hague Abduction Convention, it must mean something serious: either it cannot be borne or endured, or it fails some minimum standard of acceptability.

The Convention’s object and purpose also support an interpretation of an “intolerable situation” that includes the inability of the state of habitual residence to adjudicate custody. The terms of a treaty must be considered “in their context and in the light of [the treaty’s] object and purpose.” YCLT art. 31. Similarly, in Abbott, the Supreme Court considered the “objects and purposes” of the Hague Abduction Convention,and concluded that “[t]he Convention is based on the principle that the best interests of the child are well served when decisions regarding custody rights are made in the country of habitual residence.” Abbott, 560 U.S. at 20, 130 S.Ct. 1983. Viewing the terms “otherwise ... intolerable situation” in light of the Supreme Court’s interpretation of the purpose of the treaty, such, an “intolerable situation” can be said to exist when the courts of the child’s country of habitual residence are unable to make decisions regarding custody rights. To conclude otherwise would defeat the Convention’s object and purpose, because custody could not be adjudicated at all.

The practice of other state parties to the Convention further supports interpreting an “intolerable situation” to encompass the inability of a state of habitual residence to adjudicate custody. See VCLT art. 31(3)(b). The Supreme Court has correspondingly considered foreign courts’ interpretations of the relevant provisions of the Hague Abduction Convention. See Lozano, 134 S.Ct. at 1233; Abbott, 560 U.S. at 16-17, 130 S.Ct. 1983.

First, the courts of many Contracting Parties consider an “intolerable situation” to be distinct from “physical or psychological harm.” Family courts, in Australia, Canada, Hong Kong, and New Zealand read Article 13(b) disjunctively, treating an “intolerable situation” as a separate defense from a “grave risk ... of physical or psychological harm.” See Gsponer v. Johnstone, 12 Family Law Reports 755, (Family Court of Australia 1988); Jabbaz v. Mouammar, 226 Dominion Law Reports 4th 494, paras. 22-23 (Court of Appeal for Ontario, Canada, 2003); LPQ v. LYW, [2014] Hong Kong Court of First Instance 2324, paras. 44—56; Damiano v. Damiano, [1993] New Zealand Family Law Reports 548 (Family Court). This practice confirms this court’s interpretation of the ordinary language of Article 13(b) that “physical and psychological harm” and “intolerable situation” are two different things.

Second, the courts of many Contracting Parties have also held that such an “intolerable situation” exists when the courts of the country of habitual residence are unable to adjudicate the custody dispute properly, for whatever reason. For example, a Scottish court held that two children faced both a grave risk of harm and an intolerable situation when there was medical evidence of abuse, yet French authorities appeared “incapable or unwilling” to protect the children. Q., Petitioner, [2001] Scots Law Times 243, paras. 65-67 (Scottish Court of Session, Outer House). In particular, multiple medical and psychological professionals examined one of the children and reported signs of physical and sexual abuse, including bruises on the child’s legs, physical evidence of penetration, and the child’s testimony of inappropriate touching. Id. at paras. 16, 22, 60. Nevertheless, French prosecutors refused to extend a temporary custody order that would allow the children to escape return to their abusive father, id. at' paras. 30-35, and French courts appeared unable or unwilling to intervene in a timely manner, id. at paras. 38-40. Similarly, Australian courts consider whether one parent is able to get a visa for the country to which the child was sought to be returned. See Director-General, Department of Families, Youth and Community Care of Queensland v. Hobbs Julie, paras. 94-101, (unreported, Family Court of Australia, Lindenmayer, J., 24 Sept. 1999). If a parent is entirely legally barred from representing his or her and the child’s interest in the subsequent litigation, Australian courts may decline to return the child. State Central Authority of Victoria v. Ardito, (unreported, Family Court of Australia, Joske, J., 29 Oct. 1997). In addition, at least one Canadian court has denied a child’s return in part because the father was legally barred from leaving the country to which the child was brought, such that the father was entirely precluded from participating in custody proceedings abroad. Chan v. Chow, 199 Dominion Law Reports 4th 478, paras. 59, 65-66 (Court of Appeals for British Columbia, Canada, 2001).

Also, when courts of other Contracting Parties have ordered' the return of a child, they have often made clear that they did so only on the assumption that courts- in the country of habitation could adjudicate custody and protect him or her. See KG v. CB & others, 2012 (4) South African Law Reports 136, para. 54 (Supreme Court of Appeal); D. I., Petitioner, [1999] Family Law Reports 126, para. 97-08 (Scottish Court of Session, Outer House); Laing v. Central Authority, (1996) 21 Family Law Reports 24 (Family Court of Australia). All of these cases confirm that the inability of the courts of the child’s country of habitual residence to properly adjudicate custody may amount to an “intolerable situation.”

B.

Hayes, however, has failed to establish an “intolerable situation” under the facts of this ease. Review of the facts in this context is for clear error. Simcox v. Simcox, 511 F.3d 594, 601 (6th Cir. 2007). None of the district court’s findings of fact are clearly erroneous'. Furthermore, these findings of fact clearly establish that Turkish courts can properly adjudicate the underlying custody dispute and protect the child.

First, the district court found that Pliego’s immunity has been waived to the extent necessary for the custody dispute. Pliego II, 2015 WL 4464173, at *10. This finding is not clearly erroneous. The district court relied on its finding on the Spanish diplomatic note from July 2015, by which the Spanish government waived Pliego’s immunity of jurisdiction and execution for the custody dispute in both relevant Turkish courts, and also relied on the expert testimony that this would be sufficient for the case to go forward. Id. at *10. The court acknowledged that Pliego continued to enjoy immunity and inviolability for other, related matters — for example; Pliego remains immune from a hypothetical prosecution for domestic violence. Id. However, the district court found that Turkish courts could still adjudicate the central custody ease. Id. Thus, any defects in Turkish courts’ ability to adjudicate fall far short of what is required for an “intolerable situation.” In contrast, in Australian courts, an “intolerable situation” has been said to exist only when one party was entirely precluded from participating in the custody dispute. E.g., Director-General, Department of Families, Youth and Community Care of Queensland v. Hobbs Julie, paras. 94-101 (unreported, Family Court of Australia, Lindenmayer J., 24 Sept. 1999); State Central Authority of Victoria v. Ardito (unreported, Family Court of Australia, Joske J, 29 Oct. 1997). Here, Hayes is free to litigate custody to the full extent necessary in Turkish courts, notwithstanding her inability to bring a criminal complaint against Pliego for domestic abuse.

Second, the district court found that there was “scant evidence” that Turkish courts were corrupt or, unduly influenced. Pliego II, 2015 WL 4464173, at *10. This finding is also not clearly erroneous. For evidence of the alleged corruption or undue influence, Hayes points to the letters that the Turkish Ministry of Justice, Ministry of Foreign Affairs, and Ankara Prosecutor sent to Turkish courts suggesting that Pliego’s diplomatic immunity be respected. However, the Turkish government’s actions'here are remarkably similar to. how the U.S. State Department suggests immunity should apply on behalf of foreign diplomats in U.S. courts. See, e.g., Sabbithi v. Al Saleh, 605 F.Supp.2d 122, 126 (D.D.C. 2009);. Gonzalez Paredes v. Vila, 479 F.Supp.2d 187, 192 (D.D.C. 2007). In other words, these letters are not evidence of corruption or undue influence, but simply evidence of how diplomatic immunity is enforced in domestic courts.

Third, the district court found that Hayes’s allegations of abuse were not enough to prevent the child’s return. Hayes, and the district court disagree as to the' proper way to analyze these allegations. The district court considered these allegations under the “physical or psychological harm” prong. Pliego II, 2015 WL 4464173, at *8. However, in Pliego II, Hayes generally did not argue that these allegations posed a “grave risk” of exposure.to “physical or psychological harm.” Instead, she argued that an “intolerable situation” arises from a combination of the alleged abuse and Pliego’s immunity and inviolability. In effect, Hayes contends that Pliego might abuse the child and Turkish authorities would be unable to intervene, creating an “intolerable situation.”

Even if the district court considered Hayes’s argument under the wrong prong, her argument must fail. In Pliego II, the only evidence of abuse was the bruises on the child’s body that Hayes discovered and photographed. Pliego II, 2015 WL 4464173, at *8. However, the district court found credible Pliego’s and his mother’s testimony that these “bruises” were in fact mosquito bites and not evidence of abuse at all. Id. This finding is not clearly erroneous. In addition, the district court found that Pliego’s immunity had been waived with regard to custody, and that Pliego had “indicated his intentions and willingness to litigate the custody issue in Turkey, and to comply with all orders of the Turkish courts.” Id. at *10. As noted above, these findings are not clearly erroneous either. Therefore, even if there is any abuse, Turkish courts now have jurisdiction over Pliego with regard to custody, and could therefore respond to any abuse by issuing a custody order in Hayes’s favor. Accordingly, no “intolerable situation” arises from a combination of abuse and immunity,

Hayes urges this court to consider the allegations of abuse from Pliego I as part of “a broad review of the past history of domestic violence.” To the extent that the allegations from Pliego I are not barred by collateral estoppel, Hayes still cannot establish that Pliego might abuse the child and Turkish authorities would not be able to intervene. In Pliego I, the district court considered both sides’ testimony regarding the abuse and found both Pliego and Hayes to be “credible witnesses,” which led the district court “to believe that the truth lies somewhere in the middle,” Pliego I, 86 F,Supp.3d at 701. This finding is not clearly erroneous and could not be overturned, even if it were properly on appeal. Furthermore, as noted above, the waiver of Pliego’s immunity means that Turkish courts can grant custody to Hayes in the event of abuse. Therefore, even if this court were to consider the facts from Pliego I, the district court did not clearly err in declining to determine that Turkish courts’ limited jurisdiction over Pliego can combine to create an “intolerable situation.”

Hayes made two more arguments before the district court that she mentions in her statement of the case on appeal. First, Hayes claims that even if Pliego has properly waived his diplomatic immunity, he has not waived his diplomatic inviolability, a separate privilege he enjoys under international law. See Vienna Convention on Diplomatic Relations arts. 22, 29, 30, Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95. According to Hayes, Pliego’s continuing immunity could prevent Turkish police from, for example, entering his residence to enforce a custody order. Second, Hayes claims that, at the time of Pliego II, she had no visa to return to Turkey, no money to pursue litigation in Turkey, and risked arrest upon her return to Turkey for violating the exit ban on the child. Pliego II, 2015 WL 4464173, at *10. Although Hayes alludes to these two arguments in her briefs statement of the case, she does not make them in her arguments section. She does not mention her difficulties in litigating custody in her arguments section at all. She mentions Pliego’s continuing diplomatic inviolability only in passing, without explaining how it would prevent custody adjudication or protection of the child. Hayes has thus forfeited these arguments on appeal, and this court need not consider them.

Finally, Hayes argues that, in determining whether the child faced an “intolerable situation,” the district court failed to weigh and consider certain evidence, consider all of the evidence together, make appropriate findings of fact separate from conclusions of law, and properly set forth its reasoning in a written opinion. In particular, Hayes claims that the district court-did not sufficiently analyze the issue of undue influence, the alleged conflicts in expert testimony on diplomatic immunity, and her allegations of abuse from Pliego I. She cites a.Third Circuit case for the proposition that a district court opinion should be overturned for failing to consider evidence or considering it in a compartmentalized way. In re Adan, 437 F.3d 381; 396 (3d Cir. 2006). She also cites a Seventh Circuit case for the proposition that a district court opinion should be. overturned for failing to make separate findings of fact and conclusions of law. Khan v. Fatima, 680 F.3d 781, 785-86 (7th Cir. 2012) (applying Fed. R. Civ. P. 52(c)).

These arguments lack merit. The district court issued a lengthy written opinion that carefully set forth all of the relevant evidence, and then made factual findings based on that evidence. These factual findings are not clearly erroneous, as established above. The district court’s opinion also specifically considers Pliego’s undue influence and the alleged conflicts in expert testimony in drawing its factual and legal conclusions. There is no indication that, the district court. did not properly analyze .this evidence.

The district court’s careful and lengthy written opinion also renders inapposite the cases cited by Hayes. In Adan, the district court issued a one-sentence written order granting a. father’s petition of return, which was supported only by “some oral comments regarding the credibility of the witnesses and their testimony in the course of [its] decision.” 437 F.3d at 387. Furthermore, the district court in Adan ignored or rationalized substantial evidence of abuse, including -a pubic hair found in the child’s vagina, as well as the child’s testimony that the father had put his tongue in her mouth, bathed with her; and “put[ ] something hot in her butt.” 437 F.3d at 396-99. This contrasts starkly with the district court’s lengthy written opinion in this case; which supported the court’s previous verbal order and carefully considered all of the evidence. In Khan, the district court issued a two-page order with no relevant findings of fact and the simple conclusion that the mother had failed to meet her burden of proof. 680 F.3d at 785-86. This also contrasts starkly with the district court’s opinion in this case, which carefully sets out the relevant facts and law and considers these facts and law in great detail.

Hayes has accordingly not established that the child faces a grave risk of an “intolerable situation,” and we need not consider Pliego’s alternative arguments that Hayes’s “intolerable situation” defense is barred by res judicata or collateral estoppel.

IV., Pliego’s Fees Incurred on Appeal

Finally, Pliego requests an award of attorneys’ fees, lawsuit expenses, and costs incurring during this appeal. Pliego’s request is based on the fee-shifting provisions of the Hague Abduction Convention and ICARA. Article 26 of the Hague Abduction Convention provides that “[ujpon ordering the return of a child ... the judicial or administrative authorities may, where appropriate, direct the person who removed or retained the child, ... to pay necessary expenses incurred by or on behalf of the applicant.” Hague Abduction Convention art. 26. The ICARA provision implementing this language provides that “[a]ny court ordering the return of the child pursuant to an action brought under [ICARA] shall order the respondent to pay necessary expenses incurred by or on behalf of' the petitioner.” 22 U.S.C. § 9007(b)(3) (2012).

According to the plain meaning of both the Convention and ICARA, these provisions apply only to courts “ordering the return of the child.” Thus, this provision does not apply to this court — which is not a court ordering the return of the child, but rather a court affirming another court’s order to return the child. This interpretation is supported by the decisions of sister circuits that have addressed the issue. Hollis v. O’Driscoll, 739 F.3d 108, 113 (2d Cir. 2014); West v. Dobrev, 735 F.3d 921, 933 n.9 (10th Cir. 2013).

However, we do not reach the issue of whether the district court that ordered the child’s return in Pliego II may, upon separate motion, award fees incurred on this appeal.

V.

For the foregoing reasons, we AFFIRM the judgment of the district court.

      . Available at https://assets.hcch.net/incadat/ fullcase/0255.htm (‘‘[Counsel for the respondent] submitted that the three categories were to be read disjunctively and in particular the physical or psychological harm referred to in (i) or (ii) above was in no way qualified by the term 'otherwise ... in an intolerable situation', although he conceded that it was necessary to establish a 'grave risk' of any one of those events.... This accords with the views of the  [prior precedent by the Australian Court of Appeals.]”).

      . Available at http://www.incadat.com/index, cfm?act=search.detail& cid=757& lng= 1& sl=2.

      . Available at http://www.hklii.hk/eng/hk/ cases/hkcfi/2014/2324.html.

      . Available at https://assets.hcch.net/incadat/ fullcase/0091.htm ("The factual position in Canada and the ability of law to control and monitor are also clearly relevant to the second leg, that the children would otherwise be placed in 'an intolerable situation'. It should be noted that quite deliberately the requirement of the making out of this condition as set out in § 13(l)(c)(ii) is disjunctive from the first requirement.”).

      . Available at https://assets.hcch.net/incadal/ fullcase/0294.htm.

      . Available at http://www.incadat.com/index. cfm?act=search,detail& cid=283& lng= 1.

      . Available at http://www.canlii.org/en/bc/ bcca/doc/2001/2001bcca276/2001bcca276. html.

      . Available at http://www.justice.gov.za/sca/ judgments/sca_2012/sca2012-017.pdf.

      . Available at https://assets.hcch.net/incadat/ fullcase/0228.htm ("It would be inconceivable that the judicial system of the State of Georgia in the United States would not be able to protect the child from any significant risk of physical and/or psychological harm arising from the implementation of this court’s order. In addition, as indeed the trial judge found, the evidence was that the court in the State of Georgia haying Jurisdiction in disputes relating to children applies the principle that the best interests of the child are the paramount consideration.”).

      . Available at https://assets.hcch.net/incadat/ fullcase/0294.htm.

      . Available at http://www.incadat.com/index. cfm?act=search,detail& cid=283& lng=l.


author: SUTTON, Circuit Judge.

text:
    Dale Roger SINGLETON; Claude Randall Singleton; Bruce Wayne Singleton, Plaintiffs-Appellees, v. COMMONWEALTH OF KENTUCKY, et al., Defendants, Marchetta Carmicle, individual capacity, Defendant-Appellant.
    No. 16-5596
    United States Court of Appeals, Sixth Circuit.
    Decided and Filed: December 6, 2016

      COUNSEL, ON BRIEF: David Brent Irvin, CABINET FOR HEALTH AND FAMILY SERVICES, Frankfort, Kentucky, for Appellant. Robert C. “Coley” Stilz, III, Kimberly J. O’Donnell, KIN-KEAD & STILZ, PLLC, Lexington, Kentucky, for Appellees.
    Before: MOORE, SUTTON, and WHITE, Circuit Judges.
   OPINION

SUTTON, Circuit Judge.

This dispute concerns a conflict between a provision of the Medicaid statute and a corresponding Kentucky state regulation. In 2006, in an effort to tighten loopholes in the Medicaid Act that .had allowed individuals, to transfer assets below fair market value in order to qualify for Medicaid coverage, Congress amended the language of 42 U.S.C. § 1396p(c)(l)(F)(i). A corresponding Kentucky regulation, promulgated just four months later, mistakenly included the pre-amendment language of the provision.

Marchetta Carmicle, the Branch Manager for Eligibility Policy for the' Kentucky Department of Medicaid Services, realized that Kentucky law could not contradict the federal Medicaid statute and thus enforced the corrected federal statute, not the uncorrected state regulation. Arguing that Kentucky was authorized by Congress to adopt a less restrictive alternative, the Singletons sued Carmicle and the state agency, 'Claiming a right to relief under the state regulation. Because the federal Medicaid law preempts the contrary state regulation, we reverse the district court’s denial of Carmicle’s motion to dismiss the claims against her under Civil Rule 12(b)(6)..

Medicare does not cover “custodial care,” such as the services provided in nursing homes. 42 U.S.C. § 1395y(a)(9). Medicaid does. Id. § 1396d(a)(4)(A). By statutory design, an individual who needs custodial care must spend down any assets that exceed the Medicaid eligibility threshold before the government will pick up the tab. The spouse of an institutionalized individual is also required to chip in, but only up to a point. Congress does not consider the healthy spouse’s income to be available to the institutionalized spouse, id. § 1396r-5(b)(1), and the healthy spouse may exclude a portion of the couple’s assets, capped by statute, from consideration when determining Medicaid eligibility, see Hughes v. McCarthy, 734 F.3d 473, 475-76 (6th Cir. 2013).

To prevent people from evading these requirements by, say, giving their assets away to their children, the Medicaid statute requires each State to “look back” at an institutionalized individual’s financial history to see if he- or his spouse has disposed of any assets for less than fair market value in the past three years. In the event a couple makes any such dispositions, the State must strip the patient of Medicaid eligibility to a proportionate extent. See 42 U.S.C. § 1396p(c)(1).

The statute nevertheless permits individuals and married couples to dispose of their assets by purchasing a specific type of annuity. Section 1396p(c)(1)(F) says that “the purchase of an annuity shall be treated as the disposal of an asset for less than fair market value unless [] the State is named as the remainder beneficiary in the first position for at least the total amount of medical assistance paid on behalf of the institutionalized individual.” By purchasing an annuity structured in this way, a healthy spouse may convert assets that would be counted against the institutionalized spouse’s Medicaid eligibility into an uncountable- stream of income to the healthy spouse. If the healthy spouse passes away before the full value of the annuity is paid out, however, the State receives the remainder, up to the full value of the care provided to the institutionalized spouse. ,

In drafting (and passing) this provision, Congress initially made a mistake. As first enacted, § 1396p(c)(l)(F) allowed the State to recover only “the total amount of medical assistance paid on behalf of the annuitant,” Pub. L. No. 109-171, 120 Stat. 4, 63 (2006) (emphasis added). That amount‘is typically zero for married couples, because a healthy spouse will take out an annuity in her own name so that the income is not attributed to the institutionalized spouse. Just ten months later, as a result, Congress retroactively amended the provision to change “the annuitant” to “the institutionalized individual.” Pub. L. No. 109-432, 120 Stat. 2922, 2998 (2006).

In March 2007, four months after this amendment fixed the drafting problem, the Kentucky Department of Medicaid Services promulgated an annuity regulation that reflected the pre-amendment version of § 1396p(c)(1)(F). 907 Ky. Admin. Regs. 1:650 § 2(8)(b)(l) (2007). That regulation sat on the books for over seven years until the Department .finally replaced “annuitant” with “institutionalized individual” in April 2014. 907 Ky. Admin. Regs. 20:030 § l(9)(d)(l) (2014). The Department, however, never enforced the regulation as written. In her capacity as the Branch Manager for Eligibility Policy of the Department, Carmiele took the position that the state agency would strip eligibility only if the couple took out an annuity that did not comply with the federal rule.

In September 2009, Mary and Claude Singleton sought Medicaid benefits to.support Claude’s full-time residence in a nursing home. They engaged an elder care law firm to advise them on purchasing an annuity in order to gain eligibility. Mary allegedly wanted to name the State as a beneficiary for the value of care provided to her, rather than Claude, as the Kentucky regulation seemed to permit. But Mary’s lawyers informed her that the Department was enforcing the federal annuity rule, prompting her to purchase a $220,000 annuity that complied with the federal requirement. (The Singletons do not claim that Mary relied on the text of the Kentucky regulation to her detriment.)

Claude obtained Medicaid eligibility after the purchase of the annuity, and the Department paid $98,729.01 in medical expenses on his behalf before his death. Mary passed away in February 2014, leaving $118,238.41 in the annuity. Because the annuity was structured in accordance with the federal rule, the Department.was entitled to reclaim the full amount it paid for Claude’s care, with $19,509.40 left over for the secondary beneficiaries.

The Singleton children, acting as. co-administrators of their mother’s estate, filed a § 1983 action against the Secretary of the Kentucky Cabinet of Health and Human Services, seeking an injunction and a declaratory judgment that the State has no right to the funds remaining in the annuity and that the funds remain the property of the Singletons. They also filed a damages action under § 1983 and state law against Carmiele, whom they accuse of adopting an annuity policy that violates Kentucky and federal law. Carmiele filed a motion to dismiss the complaint under Civil Rule 12(b)(6), claiming that the Kentucky annuity regulation was void and that the claim against her should be dismissed on the basis of qualified immunity. The district eourt determined that qualified immunity should be addressed at summary judgment after both parties had an opportunity for discovery. In response, Carmi-ele, but not the state agency, filed this interlocutory appeal.

The crux of the Singletons’ case is that Carmiele illegally ignored the Kentucky annuity regulation, wrongfully depriving Mary’s estate of $98,729.01. But Carmiele complied with the law, the federal law that is. Federal law preempted the state regulation by requiring, all state plans to treat annuities in accordance with § 1396p(c)(l)(F), eliminating any viable claim against Carmiele, whether under federal or state law.

The Medicaid statute says that “[a] State plan for medical assistance must ... comply with the provisions of section 1396p of this title with respect to ... transfers, of assets.-...” 42 U.S.C. § 1396a(a), (a)(18) (emphasis added). Section 1396p(c)(l)(A) says that- “the State plan must provide that if an institutionalized individual or the spouse of such an individual ... disposes of assets .for less than fair market value on or after the look-back date ... the individual, is ineligible for: medical assistance for [custodial care]” for a period proportionate to the size of the transfer. (Emphasis added). And when Mary Singleton purchased her annuity in September -2009, § 1396p(c)(l)(F) stated that “the purchase of an annuity shall be treated as the disposal of an asset for less than fair market value unless [ ] the State is named as the remainder beneficiary .., for at least the total amount of medical assistance paid on behalf of the institutionalized individual.” (Emphasis added); see Hughes, 734 F.3d at 476; see also Ark. Dep’t. of Health & Human Servs. v. Ahlborn, 547 U.S. 268, 283, 126 S.Ct. 1752, 164 L.Ed.2d 459 (2006).

These provisions left Carmicle no discretion to treat annuities differently under staté law. Once it becomes clear that federal law controls the point, all of the Singletons’ claims — whether that the State improperly seized their money under the Fourth Amendment, took it without compensation under the Fifth Amendment, or deprived them of property under the Fourteenth Amendment — evaporate.

The Singletons respond that the Medicaid statute gave the Commonwealth the discretion to be more generous in its treatment of annuities and the general spend-down rules. In support, they point to § 1396a(r)(2)(A), which provides that the “methodology to be employed in determining income and resource eligibility ... may be less restrictive [than the eligibility rules for Social Security],” and which (in their view) gave Kentucky license to craft its own, more generous annuity rules. But this general grant of. discretion permits States only to adopt “less restrictive” methodologies that make “additional individuals ... eligible for medical assistance” and ensure that “no individuals who are otherwise eligible are made ineligible for such assistance.” 42 U.S.C. § 1396a(r)(2). The regulation at issue here did not serve to extend care to more individuals. Rather, it required Medicaid claimants to set up the beneficiary provisions of their annuities in one manner rather than another. And the beneficiary provision the State required ran contrary to the Medicaid Act’s highly reticulated provisions requiring participating-States to treat annuities in a particular way, which were intended to close the loophole that the State reopened.

“[W]here state and federal law directly conflict, state law must give way.” Wos v. E.M.A. ex rel. Johnson, — U.S. —, 133 S.Ct. 1391, 1398, 185 L.Ed.2d 471 (2013) (quotation omitted). The Kentucky annuity regulation departed from the Medicaid statute’s clear instructions. To respect the federal law requires preemption of the state regulation. Carmicle thus was correct that federal law required her to impose a look-back penalty on couples who structured them annuities to avoid paying the State back for the cost of care.

Because the state regulation was void and because Carmicle’s policy was compelled by federal law, she did not violate any of the Singletons’ rights. The state regulation did not create a property' interest that was taken in violation of the Fourth, Fifth, or Fourteenth Amendments, and there was no violation of the federal or state Medicaid státutes. Even if all of the factual allegations in the Singletons’ complaint are accurate, they accordingly are not entitled to any relief against Carmicle, and their claims against her must be dismissed. See Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

It is true, as the district court correctly pointed out, that it is often perilous to resolve a Rule 12(b)(6) motion on qualified immunity grounds given the fact development often needed to decide whether the state official violated clearly established federal law. See Wesley v. Campbell, 779 F.3d 421, 433 (6th Cir. 2015); Evans-Marshall v. Bd. of Educ. of Tipp City Exempted Vill. Sch. Dist., 428 F.3d 223, 234-35 (6th Cir. 2005) (Sutton, J., concurring); Jacobs v. City of Chicago, 215 F.3d 758, 775 (7th Cir. 2000) (Easterbrook, J., concurring). But in this instance our decision has less to do with traditional qualified immunity disputes — especially the clearly established prong of the qualified immunity inquiry — and more to do with the Supremacy Clause. Because federal law preempted the Kentucky annuity regulation, the Singletons’ complaint does not identify any cognizable legal violation by Carmicle, much less a'violation of a clearly established federal right of which a reasonable person should have known. See Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).

For these reasons, we reverse and remand to the district court for proceedings consistent with this opinion.