author: WALLACE, Senior Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Tina-Marie FINAZZO, Defendant-Appellant.
    No. 15-10272
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted October 18, 2016, Honolulu, Hawaii
    Filed November 10, 2016

      Craig W. Jerome (argued) and Salina Kanai Althof, Assistant Federal Public Defenders; Peter C. Wolff, Jr., Federal Public Defender; Hawaii Federal Public Defender, Honolulu, Hawaii; for Defendant-Appellant.
    Thomas Muehleck (argued), Assistant United States Attorney; Florence T. Naka-kuni, United States Attorney; United States Attorney’s Office, Honolulu, Hawaii; for Plaintiff-Appellee.
    Before: J. CLIFFORD WALLACE, JEROME FARRIS, and PAUL J. WATFORD, Circuit Judges.
   OPINION

WALLACE, Senior Circuit Judge:

Appellant Tina-Marie Finazzo appeals from’ the district court’s judgment, challenging its order granting in part and denying in part her motion for a sentence reduction. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

I.

We review sentence reductions under 18 U.S.C. § 3582(c)(2) for abuse of discretion. United States v. Dunn, 728 F.3d 1151, 1155 (9th Cir. 2013). “A district court may abuse its discretion if it does not apply ■ the correct law or if it rests its decision on a clearly erroneous finding of material fact.” Id. quoting United States v. Lightfoot, 626 F.3d 1092, 1094 (9th Cir. 2010).

II.

Finazzo pleaded guilty in 2011 to one count of conspiracy to distribute and to possess with intent to distribute fifty grams or more of methamphetamine. Her United States Sentencing Guidelines (Guidelines) range was 210 to 262 months’ imprisonment, but the probation office recommended a downward variance to 172 months. The government assented to this recommendation with the caveat that it was not making a motion for a downward departure under Guidelines § 5K1.1. At sentencing, the district court adopted the recommendation and imposed a 172-month sentence, based in part on Finazzo’s “early and extensive cooperation with law enforcement.”

The United States Sentencing Commission (Commission) subsequently lowered the sentencing range for Finazzo’s crime. Commission Guidelines Manual, app. C, amend. 782 (2014). Finazzo then moved the district court to reduce her sentence pursuant to 18 U.S.C. § 3582(c)(2), which permits such reductions when the Commission has lowered the applicable Guidelines range after sentencing. The court granted that motion in part, reducing Finazzo’s sentence to 168 months—the bottom of the amended Guidelines range. But it denied Finazzo’s request for a downward variance comparable to what she had received as part of her original sentence because the initial variance was not based on her “substantial assistance.” Finazzo appeals.

III.

When granting a sentence reduction under 18 U.S.C. § 3582(c)(2), a court cannot reduce the sentence to a term “that is less than the minimum of the amended [Gjuide-line[s] range.” Guidelines § lB1.10(b)(2)(A). There is an exception to this rule for a defendant who originally received a below-Guidelines sentence as the result of “a government motion to reflect the defendant’s substantial assistance to authorities.” Id. § lB1.10(b)(2)(B). In such a case, “a reduction comparably less than the amended [G]uideline[s] range ... may be appropriate.” Id.

Finazzo argues, as she did in the district court, that the government made such a motion at her sentencing, and she is therefore entitled to a more significant reduction. She acknowledges that the government never filed a written motion; nevertheless, she contends that it made an oral “motion” by adopting the probation office’s recommended sentence and not objecting when the court attributed the request for a lower sentence to the government.

We have defined a motion as “[a] written or oral application requesting a court to make a specified ruling or order.” SEC v. McCarthy, 322 F.3d 650, 657 (9th Cir. 2003) (alteration in original), quoting Black’s Law Dictionary 1031 (7th ed. 1999). Assuming arguendo that this- definition applies in the Guidelines context, the government’s statement that .it “ha[d] no problem” with the probation office’s recommendation cannot fairly be called a motion. This acquiescence was not a request or even a suggestion that the court -impose a particular sentence. The government merely refrained from objecting or offering its own recommendation. A motion requires an affirmative act. of solicitation, and this passive conduct does not qualify. We therefore hold that the government’s conduct in this case did not amount to a motion.

The commentary to section lB1.10(b)(2)(B) buttresses this conclusion. According to Application Note 3, three provisions authorize a motion reflecting a defendant’s substantial assistance: Guidelines § 5K1.1, 18 U.S.C. § 3553(e), and Federal Rule of Criminal Procedure 35(b). Guidelines § 1B1.10 cmt. n.3. The Guidelines thus contemplate that such a motion will, in some manner, be tied to one of these provisions. That did not happen here. In fact, the government stated explicitly that it was not making a motion under Guidelines § 5K1.1. Consequently, it would undermine the Guidelines’ expectations to call the government’s conduct in this case a motion.

Finazzo also argues that the canon of constitutional avoidance and the rule of lenity compel us to interpret section lB1.10(b)(2)(B) as being triggered by a government motion under 18 U.S.C. § 3553(a). To the extent that this argument encompasses the question of whether the government made a motion at all, neither the rule of lenity nor the canon of constitutional avoidance applies. Both rules require that the statute at issue be ambiguous, and this statute is not ambiguous. See Almendarez-Torres v. United States, 523 U.S. 224, 237-38, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (canon of constitutional avoidance); United States v. Bendtzen, 542 F.3d 722, 727-28 (9th Cir. 2008) (rule of lenity). Accordingly, we affirm the district court’s ruling.

AFFIRMED.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. James MCCANDLESS, AKA Mackie, Defendant-Appellant.
    No. 16-15411
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted October 20, 2016, Honolulu, Hawaii
    Filed November 10, 2016

      Marion Percell (argued), Assistant United States Attorney; Florence T. Nakakuni, United States Attorney; United States Attorney’s Office, Honolulu, Hawaii; for Plaintiff-Appellant.
    Peter C. Wolff, Jr. (argued), Federal Public Defender; Alexander Silvert, First Assistant Federal Public Defender; Hawaii Federal Public Defender, Honolulu, Hawaii; for Defendant-Appellee.

      Before: J. CLIFFORD WALLACE, JEROME FARRIS, and PAUL J. WATFORD, Circuit Judges.
   OPINION

PER CURIAM:

James McCandless is a federal prisoner who seeks bail pending a decision by the district court on his petition for a writ of habeas corpus under 28 U.S.C. § 2255. He is serving a 145-month sentence for a drug-related conspiracy conviction, with a projected release date of August 8, 2020. He contends that he should be released on bail because if he prevails on his habeas petition, he will likely receive a reduced sentence of only 71 months, a period of confinement he has already served.

McCandless’ habeas petition relies on the Supreme Court’s decision in Johnson v. United States, — U.S.-, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), which held that the Armed Career Criminal Act’s residual clause is unconstitutionally, vague and therefore may not serve as the basis for a sentence enhancement under the Act. Id. at 2557. McCandless was not sentenced under the Armed Career Criminal Act. However, he contends that his sentence is unconstitutional under Johnson because his advisory Sentencing Guidelines range was enhanced under the similar residual clause of the Guidelines’ career-offender provision.

That provision increases a defendant’s advisory sentencing range if, as relevant here, the defendant has two or more prior convictions for a “crime of violence.” U.S.S.G. § 4B1.1. Before its recent amendment, the residual clause of that term’s definition, like the Armed Career Criminal Act’s residual clause, referred to any offense punishable by more than one year of imprisonment that “involves conduct that presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a) (2011). McCandless alleges that the district court enhanced his advisory sentencing range based in part on its determination that one of his prior convictions fell within the scope of this clause. He contends that if Johnson applies to the Guidelines’ career-offender provision, and if that holding is applied retroactively to cases on collateral review, then he will be entitled to be resentenced under an advisory sentencing range calculated without the career-offender enhancement.

The district court has stayed a decision on the merits of McCandless’ habeas petition in anticipation of a decision by the Supreme Court this Term in Beckles v. United States, — U.S. -, 136 S.Ct. 2510, 195 L.Ed.2d 838 (cert. granted June 27, 2016). In Bedeles, the Court is expected to decide whether Johnson applies to sentences imposed under the residual clause of the Guidelines’ career-offender provision and, if so, whether that rule applies retroactively to cases on collateral review. In other words, the Supreme Court’s decision in Bedeles will likely resolve—one way or the other—the merits of the claim raised in McCandless’ habeas petition. However, the Court may not render a decision in Bedeles for at least several more months.

McCandless moved for bail pending resolution of his habeas petition even before the Supreme Court granted review in Bedeles. The district court denied his motion, and McCandless appeals from that order.

Our precedent holds that a district court’s order denying bail pending resolution of a habeas petition is not a final decision subject to review under 28 U.S.C. § 1291 and is not otherwise appealable under the collateral order doctrine. Land v. Deeds, 878 F.2d 318, 318 (9th Cir. 1989) (per curiam). Nor is the order subject to interlocutory review under 28 U.S.C. § 1292(b) because a bail determination cannot materially advance the ultimate termination of the litigation. We must therefore construe this appeal as a petition for a writ of mandamus challenging the district court’s refusal to grant McCandless’ motion for bail. See Land, 878 F.2d at 318.

A writ of mandamus may issue in cases involving “exceptional circumstances amounting to a judicial usurpation of power.” Bauman v. United States District Court, 557 F.2d 650, 654 (9th Cir. 1977) (internal quotation marks omitted). To be entitled to mandamus relief, a' petitioner must show at a minimum that the district court’s order was clearly erroneous as a matter of law. United States v. Guerrero, 693 F.3d 990, 999 (9th Cir. 2012). We must therefore decide whether the district court committed clear error' in denying McCahdless’ request for bail.

McCandless cannot demonstrate clear legal error. We* have not- yet decided whether district courts have the authority to grant bail pending resolution of a habe-as petition, and we need not resolve that question today. See In re Roe, 257 F.3d 1077, 1080 (9th Cir. 2001) (per curiam). If district courts have that authority, we have indicated that it is reserved for “extraordinary cases involving special circumstances or a high probability of success.” Land, 878 F.2d at 318; see Roe, 257 F.3d at 1080. McCandless has not shown either a high probability of success on the merits of his habeas petition or special circumstances that would warrant his release on bail.

To demonstrate a high probability of success, McCandless must establish that the Supreme Court is likely to hold in Beckles that Johnson invalidates the residual clause of the' Sentencing Guidelines’ career-offender provision and that such a rule applies retroactively to cases on collateral review. There are substantial arguments on both sides of the case, and it is far from clear how the Supreme Court will rule. That alone precludes us from holding that McCandless has shown a high probability of success.

Nor has McCandless shown that this case involves special circumstances. He contends that if Beckles is resolved in his favor and he is forced to remain incarcerated while waiting for that decision to issue, he will in the interim have over-served his lawful sentence. But if Beckles is resolved in his favor, McCandless would not necessarily be entitled to “immediate release,” as his motion for bail asserts. He would instead be entitled to be resen-tenced under an advisory sentencing range calculated without the career-offender enhancement. The Supreme Court will likely decide Beckles at the latest by June 2017, at which point McCandless will have served approximately 108 months. To establish that he will have over-served his lawful sentence if he remains incarcerated while awaiting the outcome in Beckles, McCandless must show that he will likely receive a sentence of less than 108 months in the event that Beckles is resolved in his favor.

McCandless has not made that showing, even if we credit for the sake of argument his description of the sentencing parameters involved. If McCandless is resen-tenced without the- career-offender enhancement, his advisory Sentencing Guidelines range will be 130 to 162 months, the low end of which is obviously above 108 months. „ But McCandless contends that he would be eligible for a departure below that range, and indeed that he would be eligible for a departure below the mandatory minimum sentence of 120 months. (At his initial sentencing, the government filed a motion pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1 to reward McCandless for his substantial assistance.) McCandless points out that the district court originally departed downward to a sentence of 145 months from an advisory sentencing range of 262 to 327 months, a 45% departure from the low end of that range. If the district court were to grant a comparable downward departure from the low end of a revised advisory sentencing range of 130 to 162 months, McCandless asserts, he would receive a sentence of just 71 months, well below the amount of time he has already served.

McCandless’ contention that he would receive a post-Beckles sentence of less than 108 months is entirely speculative. A defendant’s advisory Sentencing Guidelines range is only one of several factors that the court must consider in evaluating what sentence to impose. See 18 U.S.C. § 3553(a). So even with a revised advisory sentencing range of 130 to 162 months, there is no way of predicting whether the district court would grant a downward departure below that range or by how much. In that respect, it is worth noting that the district court had the authority at the original sentencing hearing to depart below the mandatory minimum sentence of 120 months but determined not to do so.

For these-' reasons, McCandless has not shown that he has a high probability of success on the merits of his habeas petition or that he will likely end up over-serving his constitutionally permissible sentence if he is denied bail. Because McCandless cannot show that the district court clearly erred as a matter of law in denying his motion for bail, mandamus relief is unwarranted, For this reason we need not consider the other Bauman factors to decide this petition.

McCandless’ motion to construe his appeal in the alternative as a petition for a writ of mandamus is GRANTED, and his petition is DENIED.

      . We are aware that a lopsided circuit split exists on this issue. At least six circuits have held, contrary to Land, that an order denying bail pending resolution of a habeas petition is appealable under the collateral order doctrine; only the First Circuit shares our view (albeit with some ambivalence) that such orders are not appealable. See Dotson v. Clark, 900 F.2d 77, 77-78 (6th Cir. 1990) (describing the circuit split). Nonetheless, as a three-judge panel, we remain bound by Land’s holding on this point.


author: FARRIS, Senior Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. WEI LIN, Defendant-Appellant.
    No. 15-10152
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted October 18, 2016 Honolulu, Hawaii
    Filed November 14, 2016

      Bruce Berline (argued), Saipan, Commonwealth of the Northern Mariana Islands, for Defendant-Appellant.
    Garth R. Backe (argued), Assistant United States Attorney; Alicia A.G. Lim-tiaco, United States Attorney; United States Attorney’s Office, Saipan, Commonwealth of the Northern Mariana Islands; for Plaintiff-Appellee.

      Before: J. CLIFFORD .WALLACE, JEROME FARRIS, and PAUL J. WATFORD, Circuit Judges.
   OPINION

FARRIS, Senior Circuit Judge:

Defendant Wei Lin was charged with conspiracy to commit sex trafficking, in violation of 18 U.S.C. § 1594(c), and several counts of sex trafficking, in violation of 18 U.S.C. § 1591(a). Lin pled guilty to the conspiracy count, which carried no mandatory minimum. See 18 U.S.C. § 1594(c). In exchange, the substantive sex trafficking offenses, which carried fifteen-year mandatory mínimums, were dismissed. See 15 U.S.C. § 1591(b)(1). After the district court made it clear that the base offense level for Lin’s crime would be 34, Lin moved to withdraw his guilty plea, based on his attorney’s erroneous advice that his base offense level would be 14. The district court denied Lin’s motion, and sentenced Lin to 235 months in prison. Lin now appeals, and argues that: (1) the district court erred in determining his base offense level; (2) if the district court correctly determined his base offense level, then the court erred in denying his motion to withdraw his guilty plea; and (3) the district court imposed a substantively unreasonable sentence. We have jurisdiction pursuant to 28 U.S.C. §§ 1291, 1294 and 48 U.S.C. §§ 1821, 1824. We hold that the district court erred in calculating Lin’s base offense level, and we reverse, vacate Lin’s sentence, and remand for re-sentencing.

We review the district court’s interpretation of the sentencing guidelines de novo. United States v. Rivera, 527 F.3d 891, 908 (9th Cir. 2008).

The base offense level for a conspiracy to commit sex trafficking is the same as the base offense level for the underlying substantive sex trafficking crime. See U.S.S.G. § 2Xl.l(a). The base offense level for sex trafficking is 34 “if the offense of conviction is 18 U.S.C. § 1591(b)(1).” U.S.S.G. § 2Gl.l(a)(l). Otherwise, the base offense level is 14. U.S.S.G. § 2Gl.l(a)(2).

18 U.S.C. § 1591(b)(1) is not a separate offense. See United States v. Todd, 627 F.3d 329, 334 (9th Cir. 2009). 18 U.S.C. § 1591(a) describes the offense of sex trafficking, and § 1591(b) describes the different penalties applicable to convictions under § 1591(a). Id. 18 U.S.C. § 1591(b)(1) imposes a fifteen-year mandatory minimum if the offense involved minors under the age of fourteen, or force, threats of force, fraud or coercion. Lin’s underlying substantive sex trafficking offense involved fraud or coercion, but the mandatory minimum in 18 U.S.C. § 1591(b)(1) does not apply to conspiracy to commit sex trafficking, see 18 U.S.C. § 1594(c), so Lin was not subject to the fifteen-year mandatory minimum.

According to Lin’s plea agreement and judgment, Lin was convicted of violating 18 U.S.C. § 1594(c). The substantive offense underlying his conspiracy conviction was 18 U.S.C. § 1591(a). The plea agreement and judgment do not mention 18 U.S.C. § 1591(b)(1). Nevertheless-, the district court found that, for purposes of determining his base offense level, Lin’s underlying offense of conviction was 18 U.S.C. § 1591(b)(1), because the conduct involved in the underlying substantive offense would have been punished under § 1591(b)(1) if Lin had been convicted of the substantive offense. We disagree.

The most straightforward interpretation of U.S.S.G. § 2Gl.l(a)(l) is that a base offense level of 34 applies only when the defendant is actually convicted of an offense subject to the punishment provided in 18 U.S.C. § 1591(b)(1). However; the district court rejected this interpretation of U.S.S.G. § 2Gl.l(a)(l). The district court reasoned that because 18 U.S.C. § 1591(b)(1) is not a separate offense, no one can ever be convicted of violating 18 U.S.C. § 1591(b)(1). See Todd, 627 F.3d at 334. In order for U.S.S.G. § 2Gl.l(a)(l) to have any meaning, then, it must require something other than a conviction for violating 18 U.S.C. § 1591(b)(1).

The district court then found that Lin’s “offense of conviction” should be determined by looking at his offense conduct. Since Lin’s underlying substantive offense was a violation of 18 U.S.C. § 1591(a) by means of fraud or coercion, and since § 1591(b)(1) .punishes . violations of § 1591(a) that are committed by means of fraud or coercion, the district court concluded, that Lin’s offense of conviction was 18 U.S.C. § 1591(b)(1).

The district court stated that this interpretation was consistent with the definition of “offense of conviction” found in U.S.S.G. § IB 1.2(a). But U.S.S.G. § lB1.2(a) does not give a general definition-for the term “offense of conviction” to be applied throughout the guidelines. Instead, it merely instructs courts on what “offense of conviction” means when “[d]e-termin[ing] the offense guideline section ... applicable to the offense of conviction.” U.S.S.G. § lB1.2(a). In this context, a conduct-based definition makes perfect sense. Offense guideline sections are not named with reference to specific statutes, although Appendix A to the Sentencing Guidelines provides an index matching certain statutes to their corresponding guideline sections. When trying to determine which guideline sections apply to which crimes, a court must naturally look at the offense conduct of the crime. For example, in determining which offense guideline applies to a 18 U.S.C. § 1591(a) conviction, a court must necessarily look at the offense conduct involved, because there is no offense guideline named “18 U.S.C. § 1591(a).”

However, the situation at hand is much different. Here, a simple matching exercise can be done to determine if the offense of conviction is 18 U,S.C. § 1591(b)(1)—sim-ply by looking at the judgment. This is not a situation where we must translate from state statutes to federal statutes, or from plain English names of crimes to federal statutes. We are translating from federal statutes to federal statutes. It seems tortured to say that, when we know what federal statutes the defendant was convicted of, and we are asked to determine if the defendant’s offense of conviction was a specific federal statute, we should break those statutes down into their offense conduct and then compare that. conduct, as opposed to simply comparing the federal statutes that we have on both sides of the equation.

With regards to the argument that 18 U.S.C. § 1591(b)(1) describes a punishment, and not an offense, there is a much simpler answer than the one given by the district court. To determine if 18 U.S.C. § 1591(b)(1) is the offense of conviction, courts should simply ask if the defendant was convicted of an offense subject to the punishment provided in 18 U.S.C. § 1591(b)(1)—that is, was the defendant subject to the statute’s fifteen-year mandatory minimum sentence. This solution is not only simple, and as close to a literal reading of U.S.S.G. § 2Gl.l(a)(l) as possible without rendering the guideline meaningless, it is also most likely what the Sentencing Commission intended-.

First, it is unlikely that the Sentencing Commission intended an offense conduct comparison, because the Sentencing Commission knew how to require such a comparison explicitly, and did not do so. For example, later in the same guideline section, U.S.S.G. § 2Gl.l(c)(l) directs courts to apply another guideline “[i]f the offense involved conduct described in 18 U.S.C. § 2241(a) ...” If the Sentencing Commission wanted § 2Gl.l(a)(l) to apply whenever the defendant’s offense involved conduct described in 18 U.S.C. § 1591(b)(1), the Commission would have used the same language in § 2Gl.l(a)(l) as it used in § 2Gl.l(c)(l). The Commission’s choice not to use that language indicates that it was not their intention to require an offense conduct comparison.

Second, the Commission likely intended § 2Gl.l(a)(l) to apply only when the defendant received a fifteen-year mandatory minimum sentence, because the higher base offense level in § 2Gl.l(a)(l) was created in direct response to Congress’s creation of the fifteen-year mandatory minimum. See United States Sentencing Commission, Amendments to the Sentencing Guidelines 27 (2007) available at http://www.ussc.gov/Legal/Amendments/OfficiáUText/20070501-Amendments.pdf (“[T]he Adam Walsh Act added a new mandatory minimum ... of 15 years under 18 U.S.C. § 1591(b)(1) ... In response, the amendment provides a new base offense level of 34 ... if the offense of conviction is 18 U.S.C. § 1591(b)(1), but retains a base offense level of 14 for all other offenses.”). The Commission therefore likely did not want the higher base offense level to apply when the defendant was not subject to § 1591(b)(l)’s fifteen-year mandatory minimum.

In sum, common sense, the plain language of the guidelines, and the Sentencing Commission’s commentary, all show that U.S.S.G. § 2Gl.l(a)(l) only applies to defendants who are subject to a fifteen-year mandatory minimum sentence under 18 U.S.C. § 1591(b)(1). Since Lin was not subject to 18 U.S.C. § 1591(b)(1)’s mandatory minimum, the .district court erred in applying § 2Gl.l(a)(l) to Lin. This error was not harmless. See United States v. Munoz-Camarena, 631 F.3d 1028, 1030-31 (9th Cir. 2011). We therefore reverse the district court’s base offense level determination, vacate Lin’s sentence, and remand for resentencing.

REVERSED, VACATED, and REMANDED.

      . This decision makes Lin's, guilty plea withdrawal argument moot, since Lin only wanted to withdraw his guilty plea because his base offense level .was sei at 34. We need not reach Lin’s substantive unreasonableness argument, since we vacate his sentence based on the base offense level error.


author: McHUGH, Circuit Judge.

text:
    SOLIDFX, LLC, Plaintiff-Appellee/Cross-Appellant, v. JEPPESEN SANDERSON, INC., Defendant-Appellant/Cross-Appellee.
    Nos. 15-1079 and 15-1097
    United States Court of Appeals, Tenth Circuit.
    Filed October 31, 2016

      Craig S. Primis, P.C. (John C. O’Quinn, Michael A. Glick, Jason M. Wilcox, and Jennifer M. Bandy, with him on the briefs), Kirkland & Ellis LLP, Washington, District of Columbia, for Defendant-Appellant.
    Shannon Wells Stevenson (Kenzo Ka-wanabe, Benjamin B. Strawn, and Emily L. Wasserman with her on the briefs), Davis Graham & Stubbs LDP, Denver, Colorado, for Plaintiff-Appellee.
    Before KELLY, McKAY, and McHUGH, Circuit Judges.
   McHUGH, Circuit Judge.

This case involves a dispute between SOLIDFX, LLC, a software development company, and Jeppesen Sanderson, Inc., a subsidiary of Boeing that develops aviation terminal charts. SOLIDFX sued Jeppesen, asserting antitrust, breach-of-contract, and tort claims. The district court granted partial summary judgment on the antitrust claims, but the remaining claims proceeded to trial. The jury found in favor of SOL-IDFX and awarded damages in excess of $43 million,

Jeppesen now appeals, challenging only the district court’s ruling that SOLIDFX could recover lost profits on its contract claims. SOLIDFX cross-appeals the district court’s summary judgment order in favor of Jeppesen on the antitrust claims. Exercising jurisdiction pursuant to 28 U.S.C. § 1291,.we reverse and vacate the jury’s award of lost profits, but we affirm the partial summary judgment on SOL-IDFX’s antitrust claims.

I. BACKGROUND

A. Factual History

Jeppesen creates terminal charts, which provide pilots with the information necessary to navigate and land at a specific airport. Jeppesen gathers information from over 220 countries, creates its charts, updates them periodically, and then sells the charts and updates to customers. Jep-pesen holds copyrights for portions of its charts, which use a proprietary format, including unique symbology, colors, fonts, and layout. Historically, pilots used paper terminal charts, but demand has risen for electronic alternatives to the bulkier hard-copy versions.

In November 2008, Jeppesen contacted SOLIDFX to discuss options for making Jeppesen’s. terminal charts available for electronic viewing. SOLIDFX suggested using an e-reader device known as the iRex and demonstrated a prototype to Jep-pesen. The parties then began negotiating a License and Cooperation Agreément (“License Agreement”) under which Jep-pesen would waive-its. standard licensing fee and grant SOLIDFX access to Jeppesen Integration Toolkits, which are proprietary products that facilitate the integration of Jeppesen’s terminal charts into third-party systems. In exchange, SOLIDFX would create a “data management reader solution that works in conjunction with an e-book viewer, as modified to access, utilize and display Jeppesen Data.”

In July 2009, before the License Agreement had been finalized, Jeppesen began providing toolkits to SOLIDFX and SOL-IDFX began selling iRex devices “embedded with [SOLIDFX’s] software and preloaded with Jeppesen’s' charts!” The parties then finalized and executed the License Agreement on December 31, 2009.

In January 2010, Apple, Inc. announced the first version of its iPad product. Shortly after the announcement, SOLIDFX registered with Apple as á software application (app) developer and requested the necessary toolkit from Jeppesen to develop an iPad app. Jeppesen did not provide the toolkit; Rather, in May 2010, Jeppesen- announced it had created its own iPad app, which it offered to its customers- at no additional cost beyond their terminal chart subscription fee.

B. Procedural History

Upon learning Jeppesen had developed its own iPad app, SOLIDFX sued Jeppesen for antitrust violations, breach of contract, and various torts-. The district court granted summary judgment for Jeppesen on the antitrust claims but denied summary judgment on the remaining claims. In particular, the district court rejected Jeppesen’s argument that the License Agreement precluded the recovery of lost profits. The court instead concluded the agreement was ambiguous as to whether all lost profits were barred and indicated it would be up to the jury to decide what types of damages the parties intended to exclude.

During trial, both parties moved for a legal determination on the recoverability of lost profits under the License Agreement. The district court reconsidered its prior ruling and concluded the License Agreement excluded only lost profits that also qualified as consequential damages. As a result, it held that lost profits falling within the definition of direct damages could be recovered. The district court further determined that lost profits from two of SOL-IDFX’s apps qualified as direct damages, while lost profits from two other apps were properly classified as consequential damages.

After an eight-day trial, the jury found for SOLIDFX on all claims and awarded it $43,096,003 in damages. The award included $20,922,500 in lost profits from SOL-IDFX’s projected iPad app sales during the initial term of the contract; $21,385,500 for lost business value assuming the parties would have allowed the License Agreement to renew for an additional five years; $615,000 for lost profits attributable to Jeppesen’s refusal to provide a toolkit for. tailored terminal charts for the iRex device; $1 for breach of the duty of good faith and fair dealing; $173,000 for fraudulent misrepresentation; $1 for fraudulent concealment; and $1 for intentional interference with business relations.

Jeppesen now appeals but challenges only the district court’s ruling permitting SOLIDFX to recover lost profits. SOL-IDFX has filed a cross-appeal in which it contends the district court erred in granting summary judgment in favor of Jeppesen on the antitrust claims. We conclude the License Agreement unambiguously precludes the recovery of lost profits, irrespective of whether they are direct or consequential damages. But we also determine that, even if the agreement could be read to allow the recovery of direct lost profits, the lost profits awarded by the jury here are consequential damages and therefore not recoverable. Because we hold that SOLIDFX was contractually precluded from recovering the amounts awarded for lost profits, we do not reach the question of whether SOLIDFX proved those lost profits with reasonable certainty, nor do we address the admissibility of expert testimony offered by SOLIDFX to establish the amount of its lost profits. Finally, we agree with the district court that Jep-pesen was entitled to summary judgment on SOLIDFX’s antitrust claims.

II. DISCUSSION

Jeppesen asserts several bases to reverse and vacate the portions of the jury’s award that include lost profits. First, Jeppesen argues the district court incorrectly interpreted the License Agreement, to allow recovery of any lost profits. This involves “[t]he proper construction of a contract,” which “is a question of law we review de novo.” Penncro Assocs., Inc. v. Sprint Spectrum, L.P., 499 F.3d 1151, 1155 (10th Cir. 2007). Second, Jeppesen contends that even if the district court was correct that the License Agreement permitted the recovery of direct lost profits, the lost profits awarded by the jury here are consequential damages. The proper classification of the damages as direct or consequential is a question of law we review de novo. See Int’l Tech. Instruments, Inc. v. Eng’g Measurements Co., 678 P.2d 558, 561 (Colo. App. 1983), superseded by statute on other grounds as recognized in Colo. Dep’t of Soc. Servs. v. Bethesda Care Ctr., Inc., 867 P.2d 4 (Colo. App. 1993). In its cross-appeal, SOLIDFX challenges the district court’s grant of partial summary judgment on its antitrust claims, which is a decision we also review de novo. Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990).

A. Lost Profits

The parties disagree' on whether the License Agreement prohibits entirely the recovery of lost profits. Under Colorado law, “[w]e must construe the terms of the agreement in a manner that allows each party to receive the benefit of the bargain, and the scope of the agreement must faithfully reflect the reasonable expectations of the parties.” Allen v. Pacheco, 71 P.3d 375, 378 (Colo. 2003). We begin first by examining the plain language of the contract. Id. In doing so, “[w]e will enforce the agreement as written unless there is an ambiguity in the' language; courts should neither rewrite the agreement nor limit its effect by a strained construction.” Id.

1. Plain Language of the License Agreement

The relevant contractual language reads as follows:

8.2EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES: EXCEPT TO THE EXTENT OF THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 9, NEITHER PARTY WILL HAVE ANY OBLIGATION OR LIABILITY WHATSOEVER, WHETHER ARISING IN CONTRACT (INCLUDING WARRANTY), TORT (WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF EITHER PARTY), STRICT LIABILITY OR OTHERWISE,
8.2.1 FOR LOSS OF USE, REVENUE OR PROFIT; OR
8.2.2 FOR ANY OTHER INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES WITH RESPECT TO THE JEPPESEN DATA, THE JIT, AND OTHER PRODUCTS AND SERVICES PROVIDED HEREUNDER; AND
8.2.3 ANY NONCONFORMANCE OR DEFECT IN THE JEP-PESEN DATA, THE JIT, OR OTHER THINGS PROVIDED UNDER THIS AGREEMENT.

Section 8.2 begins with the heading “EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES,” which plainly indicates that the section will identify the damages the parties agreed to exclude from the available remedies for breach, including consequential damages, and other types of damages.

Next, Section 8.2 broadly proclaims that neither party will be liable to any extent whatsoever for the categories of damages then identified in three separately numbered paragraphs. First, in Subsection 8.2.1, the parties agreed to exclude damages “FOR LOSS OF USE, REVENUE, OR PROFIT.” Together, Section 8.2 and Subsection 8.2.1 provide, “[N]EITHER PARTY WILL HAVE ANY OBLIGATION OR LIABILITY WHATSOEVER, ... FOR LOSS OF USE, REVENUE, OR PROFIT.” Read plainly, this language imposes an unqualified bar that prohibits either party from recovering lost profits from the other.

According to SOLIDFX, however, Subsection 8.2.1 cannot be read as a freestanding provision. Instead, SOLIDFX contends that Subsections 8.2.1 and 8.2.2 “are clearly linked to each other by the words ‘or for any other,’ ” and “[t]his syntax makes clear that the damages listed in 8.2.1 are not stand-alone categories of damages, but are merely examples that fall within the larger categories listed in 8.2.2, such as indirect or consequential damages.” That is, SOLIDFX reads Subsection 8.2.2 as qualifying the damages prohibited by the list in Subsection 8.2.1. Although we agree that the subsections share an introductory paragraph and are related in purpose, we do not agree that Subsection 8.2.2 qualifies Subsection 8.2.1.

SOLIDFX’s interpretation ignores the structure of Section 8.2, including the use of semicolons, separate paragraph numbers, and indentation, which evidence the intent to treat Subsection 8.2,1 as a separate category of damages from those in Subsections 8.2.2 or 8.2.3. The phrase “FOR ANY OTHER” appears in Subsection 8.2.2 and does not purport to limit the effect of Subsection 8.2.1 either expressly or by reference.

Rather, the subsections of Section 8.2 provide three different types of excluded damages. First, the parties agreed to exclude damages for loss of use, revenue, or profit, and did so without express limitation. Second, in Subsection 8.2.2, the parties listed additional'categories of excluded damages: “ANY OTHER INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES WITH RESPECT TO THE JEPPESEN DATA, THE JIT, AND OTHER PRODUCTS AND SERVICES HEREUNDER.” Thus, Subsection 8.2.2 indicates . that damages other than those that were previously excluded in Subsection 8.2.1 for loss of use,.revenue, or profit are here excluded, and the specific categories now excluded are indirect, incidental, consequential, special, exemplary, punitive, or other damages. But unlike Subsection 8.2.1’s comprehensive bar to the recovery of lost profits, the damages identified in Subsection 8.2.2 are only excluded “WITH RESPECT TO THE JEP-PESEN DATA, JIT, AND OTHER PRODUCTS AND SERVICES PROVIDED” under the License Agreement. Finally, in Subsection 8.2.3, the parties barred the recovery of damages for “ANY NON-CONFORMANCE OR DEFECT IN THE JEPPESEN DATA, THE JIT, OR OTHER THINGS PROVIDED UNDER THIS AGREEMENT,” Again, this subsection plainly excludes a separate category of damages than those identified in Subsections 8.2.1 and 8.2.2.

Within Section 8.2, where the parties intended to limit the effect of a subsection’s exclusion of identified damages, that limitation is stated in the subsection itself. For example, in Subsection 8,2.2, the parties limited the exclusion to the listed damages but only “WITH RESPECT TO” the products and services provided in the License Agreement. And rather than assume that same restriction would carry over into the separately-numbered Subsection 8.2.3, the parties explicitly reiterated the same limitation on the exclusion of defect and nonconformance damages, “IN THE JEP-PESEN DATA, THE JIT, OR OTHER THINGS PROVIDED UNDER THIS AGREEMENT.” The insertion of this limitation separately in both Subsections 8.2.2 and 8.2,3 belies SOLIDFX’s argument that the separately-numbered sections modify one another.

Similarly, when the parties intended to refer to consequential damages, they did so expressly. As previously noted, the underlined phrase at the beginning of Section 8.2 announces the intent to exclude “consequential and other damages.” Likewise, Subsection 8.2.2 plainly excludes indirect, incidental, and .consequential damages. But the parties did not use the term “consequential” to modify or limit the exclusion of lost profits in Subsection 8.2.1 or to limit the exclusion of defect or nonconformity damages in Subsection 8.2.3. This omission indicates the intent to' bar all lost profit damages without limitation, and to exclude all damages for defect or nonconformity in things provided under the License Agreement. “When a contract uses different language in proximate and similar provisions, we commonly understand the provisions to illuminate one another and assume that the parties’ use of different language was intended to convey different meanings.” Penncro Assocs., Inc. v. Sprint Spectrum, L.P., 499 F.3d 1151, 1156-57 (10th Cir. 2007). Here, the absence of the word “consequential” from Subsections 8.2.1 and 8.2.3, while using it in Section 8.2 and Subsection 8.2.2, evidences the intent to bar both direct and consequential lost profits and direct and consequential damages for defect or nonconformity.

SOLIDFX argues, however, that our decision in Penncro mandates a reading of Subsection 8.2.1'that limits the exclusion to consequential lost profits. To the contrary, Penncro supports our conclusion that Subsection 8.2.1 precludes the recovery of all lost profit damages whether direct or consequential in nature. There, the relevant provision “forb[ade] the recovery of ‘consequential damages,’ specifying that they ‘include, but are not limited to, lost profits, lost revenues and lost business opportunities,’” Id. at 1155-56., The district court held that use of the term “consequential damages” followed by a list of examples “forb[ade] only ‘consequential’ or ‘indirect’ damages” and did “nothing to rule out of bounds lost profits suffered as a direct consequence of [the defendant’s] breach,” Id. On appeal, the defendant challenged that ruling, arguing the contract language prohibited the recovery of all lost profits. Id. We disagreed and explained that the provision’s “syntax alone propels us in this direction.” Id. at 1156. Specifically, we concluded that the “more general term” used in the contract—consequential damages— “iiiform[ed] the subsequently listed examples,” and thereby limited the excluded lost profit damages to those that also fall within the general category of consequential damages. Id. In reaching that conclusion, we distinguished cases involving contracts wheré “lost profits were not ... placed in an illustrative list of 'the sorts of consequential damages excluded; instead, they were singled out as a separate and distinct category of forbidden damages.” Id. at 1157. And we cited such cases as examples of “how parties easily can manifest an intent to preclude lost ’ profits' of any stripe.” Id. at 1157-58 & n.8 (citing Imaging Sys. Int’l, Inc. v. Magnetic Resonance Plus, Inc., 227 Ga.App. 641, 490 S.E.2d 124, 127 (1997) (lost profits set off from consequential damages by disjunctive “or”)). Because the parties in Penncro listed lost profits as an example of a type of consequential damages, we held the contract excluded only consequential lost profits. Id. at 1162.

Here, the License Agreement models the syntax and structure we recognized in Penncro as excluding lost profits of any stripe. Section 8.2 does not generally exclude consequential damages and then include lost profits as an example of such consequential damages. Rather, Subsection 8.2.1simply and without limitation states that “NEITHER PARTY WILL HAVE ANY OBLIGATION OR LIABILITY WHATSOEVER ... FOR LOSS OF ... PROFIT.” In addition, Subsection 8.2.1 ends with a semicolon followed by the disjunctive “or,” after which Subsection 8.2.2 lists other distinct types of damages foreclosed by the contract, including consequential damages. When interpreting similar language—two clauses separated by a semicolon and “or”—the Supreme Court and Colorado courts have held the clauses should be read separately. See, e.g., United States v. Republic Steel Corp., 362 U.S. 482, 486, 80 S.Ct. 884, 4 L.Ed.2d 903 (1960) (provisions found to be separate and distinct where separated by a semicolon); People v. Valenzuela, 216 P.3d 588, 591 (Colo. 2009) (clauses “offset by the word ‘or’ and semicolons” defined “separate ways in which an individual can violate that category, and therefore commit the offense”); People v. Boling, 261 P.3d 503, 506 (Colo. App. 2011) (“Each provision is different and is separated from the others by a semicolon and the disjunctive word ‘or,’ which is ordinarily assumed to demarcate different categories.”). We reach the same conclusion here.

Rather than interpreting the “any other” language in Subsection 8.2.2 as a limitation on Subsection 8.2.1, the language is more appropriately read as indicating that, if there are any indirect, incidental, consequential, special, exemplary, or punitive damages not already excluded by Subsection 8.2.1, they are now excluded by Subsection 8.2.2, at least to the extent they are “with respect to” the services and products provided under the License Agreement. This interpretation gives meaning to the structure of Section 8.2 and to use of the term “consequential” in Section 8.2 and Subsection 8.2.2 but not in Subsections 8.2.1and 8.2.3.

The district court reached a contrary result primarily due to its concern that the Licensing Agreement “does not contemplate that [Jeppesen] is paying [SOL-IDFX] any money for its services in developing the ‘System’. Thus, the only benefit to [SOLIDFX] in entering into the Agreement is the profits which [it] could receive for sale of its ‘Systems’.” Similarly, SOL-IDFX maintains that enforcing Subsection 8.2.1as written would defeat the purpose of the Licensing Agreement by eliminating the ability for a party to be made whole.

But it is not the business of the courts to draft a better contract for the parties than they did for themselves. See Allstate Ins. Co. v. Huizar, 52 P.3d 816, 820 (Colo. 2002) (“[C]lear and unambiguous provisions cannot simply be rewritten by the courts”); Kansas City Life Ins. Co. v. Pettit, 99 Colo. 268, 61 P.2d 1027, 1028 (1936) (“It is elementary that neither this court nor any other court can make a new contract in lieu of the one originally entered into by the parties themselves.”). “The intent of the parties to a contract is to be determined primarily from the language of the instrument itself.” Ad Two, Inc. v. City & Cty. of Denver ex rel. Manager of Aviation, 9 P.3d 373, 376 (Colo. 2000). As discussed, Subsection 8.2.1 unambiguously establishes the parties’ intent to preclude recovery by either party of any lost profits.

Furthermore, “[a]s a general rule, courts will uphold an exculpatory provision in a contract between two established and sophisticated business entities that have negotiated their agreement at arm’s length.” Rhino Fund, LLLP v. Hutchins, 215 P.3d 1186, 1191 (Colo. App. 2008); see also CompuSpa, Inc. v. Int’l Bus. Machs. Corp., 228 F.Supp.2d 613, 626-27 (D. Md. 2002) (“[T]here is no public policy against enforcement of limited liability clauses for abandonment of a contractual obligation, even if deliberate.”). Even if the relevant contract provision “may severely if not completely restrict [a party’s] ability to recover for [the relevant] breach of contract, parties are free to agree to such provisions.” Imaging Sys., 490 S.E.2d at 127. Indeed, parties to a contract “must be able to confidently allocate risks and costs during their bargaining without fear that unanticipated liability may arise in the future, effectively negating the parties’ efforts to build these cost considerations into the contract.” Vanderbeek v. Vernon Corp., 50 P.3d 866, 871 (Colo. 2002).

Both SOLIDFX and Jeppesen agreed they would bear the risk of their own lost profits and forego other damages as identified in Section 8.2. And, in the License Agreement itself, they explained the reason for their decision to limit the damages available in the event of breach:

8.4 Effect of Limitation. The parties acknowledge that the limitations set forth in this Section are integral to the amount of fees specified within this Agreement, and recognize that were Jeppesen to assume any further liability beyond that set forth herein, such fees could be substantially higher.

In other words, SOLIDFX expressly waived its ability to recover several types of damages, including lost profits, and waived the warranties listed in Section 8.1. But for these waivers, Jeppesen would not have waived the license fee to access its proprietary toolkits. The inclusion of this acknowledgment further supports the reading of Section 8.2.1 as meaning exactly what it says: “NEITHER PARTY WILL HAVE ANY OBLIGATION OR LIABILITY WHATSOEVER ... FOR LOSS OF USE, REVENUE OR PROFIT.” Even if an agreement to limit only consequential lost profits would have been a better deal for SOLIDFX, it is not the bargain it made.

And this interpretation does not leave SOLIDFX without a remedy as it contends. SOLIDFX and Jeppesen both contractually waived the right to recover lost profits in Subsection 8.2.1; the damages listed in Subsection 8.2.2 with respect to the products and services provided under the License Agreement; and the defect and nonconformance damages described in Subsection 8.2.3. But they did not exclude reliance damages—damages incurred when products or services promised under the License Agreement were not provided. Such damages “includ[e] expenditures made in preparation for performance or in performance, less any loss that the party in breach can prove with reasonable certainty the injured party would have suffered had the contract been performed.” Restatement (Second) of Contracts § 349; see also Bunch v. Signal Oil & Gas Co., 505 P.2d 41, 43 (Colo. App. 1972) (“The fact that plaintiff failed to prove his damages concerning loss of profits will not prevent his recovery for actual expenditures made in reasonable reliance on the performance of the contract or made because of the breach of the contract.”).

Here, SOLIDFX originally claimed $173,000 in “wasted costs,” which SOL-IDFX’s expert explained were not lost profits but were “monies that were spent by SOLIDFX because Jeppesen did not adhere to the terms of the contract.” Although SOLIDFX’s expert included wasted costs in her original damage calculations, SOLIDFX omitted them from the damages it sought at trial. Essentially, SOLIDFX made the tactical decision to drop its claim for the type of damages available under the License Agreement in the hope of recovering the much greater sums it claimed as lost profits. But SOL-IDX was bound by the terms of the License Agreement, including the exclusion of any lost profit damages. And because it did not offer the evidence of “wasted costs” to the jury, SOLIDFX has not made a record of the damages recoverable under the License Agreement.

In summary, the Licensing Agreement unambiguously precludes either party from recovering lost profits. This reading is consistent with the structure, punctuation, and plain language of Section 8.2. Although Section 8.2 greatly limits the available damages either party can recover in the event of breach, it is not the courts’ role to create or enforce a different contract than the one the parties negotiated. We must enforce the unambiguous exclusion of lost profits contained in Subsection 8.2.1. Accordingly, the verdict must be vacated to the extent it includes lost profits of any stripe.

2. Consequential Versus Direct Damages

Even if we agreed with the district court that the License Agreement excludes only consequential lost profits, we would still vacate the verdict because the lost profits alleged by SOLIDFX are consequential damages as a matter of law. To place our analysis in context, we begin with a discussion of the distinction between consequential and direct damages. We then explain why the evidence here falls within the definition of consequential damages.

Colorado follows the general rule that allows the recovery of foreseeable damages for breach of contract. See Vanderbeek, 50 P.3d at 871. This, in turn, includes damages for losses that “may fairly and reasonably be eonsidéred ... arising naturally, i.e., áccording to the usual course of things, from [the] breach of contract itself.” Core-Mark Midcontinent, Inc. v. Sonitrol Corp., 370 P,3d 353, 360 (Colo. App. 2016) (alterations in original) (quoting Hadley v. Baxendale, 9 Exch. 345, 156 Eng. Rep. 145 (1854)). The damages flowing directly from the breach ai’e commonly referred to as general, or direct, damages. Id. The second category of damages available for breach of contract includes special, or consequential, damages. Id. Such consequential damages compensate for loss “reasonably ... supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it,” but not flowing directly from the breach. Id. (quoting Hadley, 9 Exch, at 354); see also Vanderbeek, 50 P.3d at 870-71 (approving the Hadley measure of damages for breach of contract).

We have explained the difference between direct and consequential damages in the context of lost profits:

Direct damages refer to those which the party lost from the contract itself—in other words, the benefit of the bargain—while consequential damages refer to economic harm beyond the immediate scope of the. contract. Lost profits, under appropriate circumstances,- can be recoverable as a component of either (and both) direct and consequential damages. Thus, for .example, if a services contract is breached and the plaintiff anticipated a profit under the contract, those profits would be recoverable as a component of direct, benefit of the bargain damages. If the same breach had the knock-on effect of causing the plaintiff to close its doors, precluding it from performing other work for which it had contracted and from which it expected to make a profit, those lost profits might be recovered as “consequential” to the breach.

Penncro, 499 F.3d at 1156 (emphasis added). Thus, while it is true that lost profits often fall within the larger category of consequential damages, lost profits that flow directly from the breach of the contract itself are properly characterized as direct damages.

The Colorado Supreme Court has not expressly defined when lost profits qualify as consequential damages. Although it has referred to specific lost profits as consequential damages, see, e.g., W. Cities Broad., Inc. v. Schueller, 849 P.2d 44, 49 (Colo. 1993) (“At trial, [the plaintiff] sought consequential damages, including lost profits, but did hot seek out-of-pocket expenses.”); Colo. Nat’l Bank of Denver v. Friedman, 846 P.2d 159, 174 (Colo. 1993) (affirming an award of “consequential damages for lost profits”), these cases did not raise the issue of whether the lost profits were correctly characterized as direct or consequential damages. We are convinced, however, that should that issue be placed squarely before it, the Colorado Supreme Court would recognize that lost profits can be either direct or consequential damages. And we are also confident that it would distinguish between these types of lost profits based on its ordinary rule that direct damages flow directly from the breach of the contract with the breaching party, while consequential lost profits flow from losses beyond the scope of that contract.

Applying these principles,,the First Circuit recently addressed the proper classification of lost prpfits under facts similar to those at issue here. In Atlantech Inc. v. American Panel Corp., Atlantech, a dealer in aircraft LCD displays, sued its primary product suppliers for breach of contract. 743 F.3d 287, 293 (1st Cir. 2014). Atlantech was also parly to a separate contract under which it was the exclusive vendor of LCD . panels to UIMDB, a company that integrated- Atlantech’s LCD displays into aircraft instrument panels. Atlantech and its suppliers engaged in a series of disputes that resulted in the suppliers refusing to provide displays, and Atlantech sued them for breach of contract. After a jury awarded Atlantech over $1 million in damages, the defendants appealed.

One of the issues considered by the First Circuit was whether the district court had erred in upholding the jury’s damage award—which was based on lost profits—in light of the contract’s express exclusion of “consequential, incidental, indirect, special or punitive damages,” including “lost profits.” Id. at 289. Applying Georgia law, the appellate court first explained that lost profits can qualify as .either direct or consequential damages:

(1) lost profits which are direct damages and represent the benefit of the bargain (such as a general contractor suing for the remainder of the contract price less his saved expenses), and (2) lost profits which are indirect or consequential damages such as what the user of the MRI would lose if the machine were not working and he was unable to perform diagnostic services for several patients.

Id. at 293 (quoting Imaging Sys., 490 S.E.2d at 127).

The court in Atlantech then examined the evidence of lost profits, which consisted of proof of “past sales to UIMDB as well as evidence of UIMDB’s intent to buy certain quantities in the future.” Id. at 293. It concluded Atlantech’s lost profits qualified as consequential damages because they were not “necessarily inherent in the contract”—i.e., they were contingent “on future deals with a business that [was] not a party to the [contract]; and ... on anticipated prices and demand that [were] not determined by the contract itself.” Id. at 294; see also Tractebel Energy Mktg., Inc. v. AEP Power Mktg., Inc., 487 F.3d 89, 109 (2d Cir. 2007) (“Lost profits are consequential damages when, as a result of the breach, the non-breaching party suffers loss of profits on collateral business arrangements .... By contrast, when the non-breaching party seeks only to recover money that the breaching party agreed to pay under the contract, the damages sought are general damages.”); Airlink Commc’ns, Inc. v. Owl Wireless, LLC, No. 3:10 CV 2296, 2011 WL 4376123, at *3 (N.D. Ohio Sept. 20, 2011) (unpublished) (holding lost profits were barred as consequential damages because they “were contingent upon third-party agreements” and not directly tied to the relevant contract). Accordingly, the First Circuit vacated the jury award.

As in Atlantech, SOLIDFX has failed to present any evidence of direct lost profits. SOLIDFX did not present evidence of profits expected from the License Agreement itself; SOLIDFX instead calculated its lost profits using hypothetical future sales to third parties of the apps it hoped to develop under the License Agreement. These damages were foreseeable and, absent the exclusions in Section 8.2, would be recoverable for breach of the License Agreement. But they do not flow directly from breach of that agreement and are therefore consequential damages.

SOLIDFX disagrees, relying on unpre-cedential decisions from jurisdictions other than Colorado, and argues that similar types of lost profits have been treated as direct, rather than consequential damages. But the cases cited by SOLIDFX are readily distinguishable. For example, in Claredi Corp. v. SeeBeyond Technology Corp., the district court concluded that despite the waiver of consequential lost profits, the plaintiff could “present evidence to the jury of sales ... [the plaintiff] would have made if [the defendant] had not breached its duty to make appropriate sales efforts under the Agreement.” No. 4:04CV1304 RWS, 2010 WL 1267946, at *6 (E.D. Mo. Mar. 26, 2010) (unpublished); see also Biovail Pharm., Inc. v. Eli Lilly & Co., No. 5:01-CV-352-BO(3), 2003 WL 26901513, at *3 (E.D.N.C. Feb. 28, 2003) (unpublished) (explaining that lost profits -may be either direct or consequential damages depending on the nature of the contract and holding that where a supplier breached the contract to supply goods for resale, the lost profits were direct damages); Biotronik A.G. v. Conor Medsystems Ireland, Ltd., 22 N.Y.3d 799, 806, 988 N.Y.S.2d 627, 11 N.E.3d 676 (2014) (explaining lost profits may be direct if naturally flowing from the contract or from an existing resale contract or may be consequential if stemming from anticipated collateral agreements). These cases either lend support to our conclusion that the lost profits here are consequential damages or are simply not on point.

In summary, direct lost profits are profits that would have been generated from the agreement between the contracting parties, while consequential lost profits depend on a separate agreement with a non-party. SOLIDFX does not dispute that its profits from projected. app sales would have come entirely from anticipated contracts with unidentified third, parties; SOL-IDFX did not anticipate any profits from Jeppesen directly. Consequently, SOL-IDFX’s lost profits are consequential, not direct, damages. ■

B. Antitrust Claims

In its cross-appeal, SOLIDFX challenges the dismissal of its antitrust claims for monopolization and attempted monopolization under § 2 of the Sherman Act. But it limits its argument to a single allegation of anticompetitive conduct: Jeppesen’s refusal to deal.

Section 2 prohibits monopolization or attempted monopolization of “any part of the trade or commerce among the several States, or with foreign nations.” 15 U.S.C. § 2. “Illegal monopolization under § 2 of the Sherman Act has two distinct elements: ‘(1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superi- or product, business acumen, or historic accident.’ ” Rural Tel. Serv. Co. v. Feist Publ’ns, Inc., 957 F.2d 765, 767 (10th Cir. 1992) (citation omitted). At summary judgment, the district court assumed for purposes of its analysis that SOLIDFX had established Jeppesen’s monopoly power in the relevant market. It therefore addressed only the second element, which requires proof of “use of monopoly power ‘to foreclose competition, to gain a competitive advantage, or to destroy a competitor.’ ” Eastman Kodak Co. v. Image Tech. Servs., Inc. (Kodak I), 504 U.S. 451, 482-83, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992) (citation omitted).

“A refusal to deal may be one of the mechanisms by which a monopolist maintains its power.” See Feist Publ’ns, 957 F.2d at 768. To determine whether a refusal to deal violates § 2, “we apply a two-part test. First, we look at the effects of the monopolist’s conduct. Second, we look at its motivation.” Id. Although a business acting unilaterally “as a general matter ... can refuse to deal with its competitors, ... such a right is not absolute; it exists only if there are legitimate competitive reasons for the refusal.” Kodak I, 504 U.S. at 483 n.32, 112 S.Ct. 2072.

The district court again skipped to the second element and determined Jeppesen had a legitimate business justification for its refusal to provide SOLIDFX with the necessary terminal charts and toolkits to develop an iPad app. Specifically, the district court concluded Jeppesen “was properly exercising its right to refuse to license its copyrighted work.”

Both the First and Federal Circuits have held that the assertion of intellectual property rights is a presumptively rational business justification for a unilateral refusal to deal. In Data General Corp. v. Grumman Systems Support Corp., the First Circuit “[held] that while exclusionary conduct can include a monopolist’s unilateral refusal to license a copyright, an author’s desire to exclude others from use of its copyrighted- work is a presumptively valid business justification for any immediate harm to consumers.” 36 F.3d 1147, 1187 (1st Cir. 1994), abrogated on other grounds as recognized in Reed Elsevier, Inc. v. Muchnick, 659 U.S. 154, 130 S.Ct. 1237, 176 L.Ed.2d 18 (2010). The court in Data General clarified, however, that the presumption was rebuttable. Id. at 1187 n.64.

The Federal Circuit reached a similar conclusion in In re Independent Service Organizations Antitrust Litigation {Xerox), where it applied Tenth Circuit law but found we “ha[d] not addressed in any published opinion the extent to which the unilateral refusal to sell or license copyrighted expression can form the basis of a violation of the Sherman Act.” 203 F.3d 1322, 1328 (Fed. Cir. 2000). The Federal Circuit therefore attempted to decide how we would resolve the issue and turned to precedent from other circuits to inform its analysis. Id. In particular, the court recognized and agreed with Data General and cited a case in which the Fourth Circuit rejected the plaintiffs illegal tying claim based solely on the defendant’s unilateral decision to license copyrighted software to some third parties but not others. Id: (citing Serv. & Training, Inc. v. Data Gen. Corp., 963 F.2d 680, 686 (4th Cir. 1992)).

The Federal Circuit acknowledged that the Ninth Circuit had “adopted a modified version” of the Data General standard by “extending] the possible means of rebutting the presumption to include evidence that the defense and exploitation of the copyright grant was merely a pretextual business justification to mask anticompeti-tive conduct.” Id. at 1329 (citing Image Tech. Servs., Inc. v. Eastman Kodak Co. (Kodak II), 125 F.3d 1195, 1219 (9th Cir. 1997)). But the Federal Circuit rejected this approach and instead applied Data General as being “more consistent with both the antitrust and the copyright laws and ... the standard that would most likely be followed by the Tenth Circuit.” Id. The court declined to examine the defendant’s “subjective motivation in .asserting its right to exclude under the copyright laws for pretext, in the absence of any evidence that the copyrights were obtained by unlawful means or were used to gain monopoly power beyond the statutory copyright granted by Congress.” Id. And without such evidence, the defendant’s refusal to license copyrighted materials did not support a § ,2 claim. Id.

We agree with the approach taken by the courts in Xerox and Data General, particularly because these decisions are consistent with our existing precedent. For instance, in Novell, Inc. v. Microsoft Corp., Novell sought to impose § 2 liability based on Microsoft’s refusal to deal. 731 F.3d 1064, 1074 (10th Cir. 2013). Novell alleged Microsoft shared its internal protocols, in an effort to incentivize Novell to write software for Windows 95, but Microsoft then changed course by refusing to grant further access to its protocols. Id. We held “that Microsoft’s conduct d[id] not qualify as anticompetitive behavior within the meaning of section 2,” id. at 1080, because “[njormally, this sort of unilateral behavior—choosing whom to deal with and on what terms—is protected by the antitrust laws. Even a monopolist generally has no duty to share (or continue to share) its intellectual or physical property with a rival,” id. at 1074; see also Four Corners Nephrology Assocs., P.C. v. Mercy Med. Ctr. of Durango, 582 F.3d 1216, 1223-24 (10th Cir. 2009) (concluding clinic was not required to share its facilities with a competitor); Christy Sports, LLC v. Deer Valley Resort Co., Ltd., 555 F.3d 1188, 1196 (10th Cir. 2009) (“[Antitrust will not force a resort developer to share its internal profit-making opportunities with competitors.”).

To establish an unlawful refusal to deal by Jeppesen, SOLIDFX relies on Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 105 S.Ct. 2847, 86 L.Ed.2d 467 (1985). In Aspen, the Court recognized the right of a business to refuse to deal but clarified the right is not unqualified. Id. at 601, 105 S.Ct. 2847. There, the defendant ceased participation in a cooperative joint venture and refused to deal with its previous partner even if compensated for doing so. Under such circumstances,, the Court found sufficient evidence that the defendant had no valid business justification for its refusal to deal. Id. at 608-11, 105 S.Ct. 2847.

The Court has since explained that Aspen “is at or near the outer boundary of § 2 liability.” Verizon Commc’ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 409, 124 S.Ct. 872, 157 L.Ed.2d 823 (2004). The “limited exception” applies only where the plaintiff can establish the parties had “a preexisting voluntary and presumably ' profitable course of dealing,” and “the monopolist’s discontinuation of the preexisting course of dealing must *suggest[] a willingness to forsake short-term profits to achieve an anti-competitive end.’ ” Novell, 731 F.3d at 1074, 1075 (alteration in original) (quoting Trinko, 540 U.S. at 407, 124 S.Ct. 872). In other words, the decision “must be irrational but for its anticompetitive effect.” Mat 1075.

SOLIDFX did not present evidence to meet this standard. When SOL-IDFX requested access to the relevant toolkits to create an iPad app, Jeppesen refused, asserting its copyrights and its desire to maintain the exclusivity of those rights. This invocation of intellectual property rights was a presumptively rational business justification. See Xerox, 203 F.3d at 1328-29; Data Gen., 36 F.3d at 1187. And SOLIDFX did not present any rebuttal evidence to prove Jeppesen acted solely with an anticompetitive motivation. Even though Jeppesen refused to grant access to the toolkit to create an iPad app and the jury concluded Jeppesen breached the License Agreement by its refusal, Jeppesen did not have an independent antitrust duty to share its intellectual property with SOLIDFX, See Novell, 731 F.3d at 1074. Thus, the district court correctly concluded Jeppesen was not hable for antitrust damages because it had established a valid business justification for its refusal to deal.

III. CONCLUSION

For the above reasons, we reverse the district court’s interpretation of Section 8.2 and hold that lost profits are not recoverable under the Licensing Agreement. Even if the License Agreement precluded only consequential lost profits, SOLIDFX’s damages fall within that exclusion. We accordingly vacate the portions of the jury’s verdict that awarded $20,922,500 in lost profits from SOLIDFX’s projected iPad app sales during the initial term of the contract; $21,385,500 for lost business value based bn anticipated lost profits after the initial contract term; and $615,000 for lost profits for tailored terminal charts for the iRex device. We also affirm the grant of partial summary judgment on SOL-IDFX’s antitrust claims.

      . SOLIDEX’s FXView HD app would have displayed basic terminal charts on the iPad, and its FXView Enterprise app would have done the same while also providing document management and audit capabilities. Because these apps would have utilized Jeppesen’s charts, the district court concluded lost profits from these apps were direct damages. By contrast, SOLIDFX’s FX Maintain and FX . Mobile apps did not use Jeppesen’s charts at all. EX Maintain was an app for aviation mechanics, flight attendants, and other non-pilots in the industry. And FX Mobile was a document management app for non-aviation businesses. The district court concluded lost profits from these apps were "classic examples of consequential damages.”

      . The district court vacated the portion of the jury's verdict awarding damages for fraudulent misrepresentation. SOLIDFX does not appeal that ruling.

      . As a preliminary issue, SOLIDFX requests that we summarily affirm on all issues because Jeppesen failed to provide a complete appendix. Although ”[a]n appellant who provides an inadequate record does so at his peril,” Dikeman v. Nat’l Educators, Inc., 81 F.3d 949, 955 (10th Cir. 1996), the appendices in this case allow for full review of the issues on appeal. To the extent Jeppesen’s initial appendix may have been lacking, SOL-IDFX filed a sizeable supplemental appendix, as did Jeppesen. These supplements complied with our local rules, which permit supplementation if a party finds omissions in the appendix. 10th Cir. R. 30.2(A)(1). In addition, SOLIDFX has not identified specific deficiencies in the appendices that create "an effective barrier to informed, substantive appellate review.” Morrison Knudsen Corp. v. Fireman's Fund Ins. Co., 175 F.3d 1221, 1238 (10th Cir. 1999). Accordingly, we conclude the appendices are sufficient and proceed to the merits.

      . The parties agree Colorado law applies in this case.

      . Section 8.1 contains a broad disclaimer of any express or implied warranties other than those expressly contained in the License Agreement.

      . This includes damages awarded for lost business value because the district court concluded that “calculations for lost business value [were] essentially equivalent to [the] estimate of [SOLIDEX's] future lost profits." Although SOLIDEX's expert "testified that lost business value encompasses a businesses] goodwill and other intangibles, she made no attempt to quantify anything other than future expected revenues.” Indeed, on cross-examination, SOLIDFX's expert agreed that in projecting lost business value, she was "monetizing] the future profits of SOL-IDFX.” Because SOLIDFX’s lost business value equates to lost profits, this portion of the jury award is also vacated.

      . SOLIDFX also relies on FTC v. Actavis, — U.S. -, 133 S.Ct. 2223, 186 L.Ed.2d 343 (2013), as authority to the contrary. But this reliance is misplaced because Actavis was a § 1 case involving potentially collusive behavior among competitors. Id. at 2227. It did not address the rationality of a defendant's stated business justification for purposes of a § 2 unilateral refusal-to-deal claim.


author: BACHARACH, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Ashley Larae TIDZUMP, Defendant-Appellant.
    No. 16-8021
    United States Court of Appeals, Tenth Circuit.
    Filed November 9, 2016
    Submitted on the briefs.

    Josh Lee, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Office of the Federal Public Defender, Denver, Colorado, for Defendant-Appellant.
    Timothy W. Gist, Assistant United States Attorney (Christopher A. Crofts, United States Attorney, with him on the brief), District of Wyoming, Lander, Wyoming, for Plaintiff-Appellee.
    Before LUCERO, McKAY, and BACHARACH, Circuit Judges.

       Oral argument would not materially aid our consideration of the appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). Thus, we have decided the appeal based on the briefs.

   BACHARACH, Circuit Judge.

This appeal grows out of Tapia v. United States, 564 US. 319, 131 S.Ct. 2382, 180 L.Ed.2d 357 (2011). There, the U.S. Supreme Court held that a federal district court cannot impose or lengthen a prison term to promote rehabilitation. 564 U.S. at 332, 131 S.Ct. 2382.

Tapia was implicated when Ms. Ashley Tidzump was convicted of assault and requested an 18-month prison term, admitting an addiction to opiates and a need for treatment. But Ms. Tidzump would ordinarily qualify for the prison’s drug treatment program only if she were to begin treatment with at least two years remaining on her sentence. See BOP Program Statement No. P5330.ll § 2.5.1(b)(d) (Mar. 16, 2009) (stating that admission into the residential drug-abuse treatment program (RDAP) ordinarily requires an inmate to have at least 24 months remaining on the sentence). So, the district court imposed a prison sentence of 31 months. Though the sentence dipped below the guideline range, the sentence was long enough to allow Ms. Tidzump to become eligible for the prison’s drug treatment program.

Ms. Tidzump appeals the sentence, calling on us to decide whether the district court’s explanation for the sentence was permissible under Tapia. We conclude that the sentence was impermissible because the district court expressly lengthened the sentence for the purpose of promoting rehabilitation. We reverse.

I. Standard of Review

Ms. Tidzump did not object to the sentence in district court. As a result, we engage in limited review, deciding only whether the sentence constitutes plain error. United States v. Mendiola, 696 F.3d 1033, 1036 (10th Cir. 2012). In reviewing for plain error, we will reverse only if the district court erred in a way that is plain or obvious, prejudicing Ms. Tidzump’s substantial rights and seriously affecting the fairness, integrity, or public reputation of the judicial proceedings. Id.

II. The district court erred in a way that is plain or obvious.

In our view, the district court erred in a plain or obvious manner. In reaching this conclusion, we recognize that the district court decided the sentence with a laudable purpose (facilitating rehabilitation) and proceeded without the benefit of adversarial argument. Nonetheless, the Tapia Court clearly and unequivocally prohibited district courts from imposing or lengthening a sentence for the purpose of promoting rehabilitation. Tapia v. United States, 564 U.S. 319, 332, 131 S.Ct. 2382, 180 L.Ed.2d 357 (2011); see United States v. Mendiola, 696 F.3d 1033, 1036 n.2 (10th Cir. 2012) (“Tapia’s holding was clear and unequivocal.”).

The government argues that until now, there has been no precedent on whether Tapia prevents “a discretionary downward variance to account for treatment.” Appel-lee’s Resp. Br. at 20. This argument would not support affirmance here. The issue does not involve prevention of a downward variance, for the district court did vary downward by selecting a 31-month sentence. Though a downward variance was permissible, the district court could not reduce the downward variance for the purpose of promoting rehabilitation.

The court did precisely that. Though Ms. Tidzump requested an 18-month sentence, the district court stated that it preferred not to require any prison time. R., vol. 3 at 56. Ultimately, however, the court varied downward to 31 months, declining to go down any further for the stated purpose of allowing Ms. Tidzump to qualify for treatment in the RDAP. The district court expressed its thinking in two statements:

1. “I’m not sending her 18 months to warehousé her, because she won’t get into the program.”
2. “I [will] go down to 31 months. I think that’s the—probably the bottom number I can get to and get her into the RDAP program.”

Id. at 57.

The government interprets these comments ' differently, noting that the court expressed uncertainty over whether the 31-month sentence would be the shortest prison term to qualify Ms; Tidzump for the RDAP:

In looking at all thé facts and circumstances in this case, a sentence of 33 months, what is sufficient but not greater than necessary considering the objectives? I go down to 31 months. I think that’s the—;probably the bottom number I can get to and get her into the RDAP program. Maybe not.

Id. (emphasis added). Seizing on the comment at the end, “Maybe not,” the government argues that (1) a 31-month term would have been too short to allow entry into the RDAP and (2) surely the district court knew that:

[T]he Defendant had served almost 4 months (119 days) in custody as of the date of sentencing, and thus a 31 month sentence was in effect a 27 month sentence. If the court was truly fashioning a sentence to ensure the Defendant would be eligible for RDAP ... it would have imposed a longer sentence—and not varied downward from the advisory guideline—so as to offset this time already spent in custody. The court would also have known it would take upward of several months for the Defendant to be designated and transported to her eventual BOP placement, shaving even more time from her sentence.

Appellee’s Resp. Br. at 19 (citation omitted).

The government’s argument does little to create uncertainty over the district court’s intent. Indeed, the argument serves only to confirm that a 31-month sentence would probably constitute the shortest prison term that would allow entry into the RDAP.

What did the court mean when it added “Maybe not”? Presumably, the court meant that no one could know for sure what would be the shortest prison sentence to qualify Ms. Tidzump for the RDAP.

As indicated above, the BOP ordinarily allows entry into the RDAP only if at least 24 months remain on a sentence. See p. 845, above. As the government implies, Ms. Tidzump would get credit for the period of roughly four months in pretrial detention. 18 U.S.C. § 3585(b)(1) (2012); see Appellee’s Resp. Br. at 19 (stating that “a 31 month sentence was in effect a 27 month sentence” because of the period of almost four months in pretrial detention). Thus, Ms. Tidzump’s four months in pretrial detention would not count toward her eligibility for the RDAP.

The same is true of the time that Ms. Tidzump spent awaiting a BOP placement. Appellee’s Resp. Br. at 19. The government states that this. period could take “upward of several months.” Id.

According to the government’s math, Ms. Tidzump could not enter the RDAP until she had already sewed almost four months in pretrial detention and “upward of several months” waiting for her “eventual BOP placement.” M By then, roughly 24 months would have remained on her sentence, precisely the minimum ordinarily allowed under the BOP guidelines.

But the court could not know for sure

• how long it would take for Ms. Tid-zump to be placed at a BOP facility or
• how quickly she could get into an RDAP.

Thus, the district court acknowledged some uncertainty, stating “Maybe not,” when remarking that 31 months was “probably” the shortest prison sentence to allow Ms. Tidzump to “get ... into the RDAP.” R., vol. 3 at 57.

The court expressly acknowledged that it sentenced Ms. Tidzump to 31 months because that was likely the minimum to allow entry into the RDAP. We do not know with certainty how the court arrived at 31 months. But the government’s argument reflects a reasonable explanation: Ms. Tidzump could not enter the program until spending roughly 4 months in pretrial detention and . upward of 3 months in awaiting a BOP placement. At that point, Ms. Tidzump would have roughly 24 months remaining on her sentence, precisely the minimum for entry into the RDAP, Coincidence? We think not.

‡ ⅜ ⅜

In sentencing Ms. Tidzump, the court expressly relied on Ms. Tidzump’s need for drug treatment. This approach, however, is clearly and unequivocally foreclosed by Tapia. As a result, we conclude that the district court erred in a way that was plain or obvious.

III. The error affected Ms. Tidzump’s substantial rights.

An obvious error, however, is not enough to require. reversal. In addition, Ms. Tidzump must show an effect on her substantial rights. See Section I, above. This burden is met if compliance with Ta-pia would likely have led to a shorter sentence. United States v. Cordery, 656 F.3d 1103, 1108 (10th Cir. 2011).

Ms. Tidzump has made the required showing: the district court stated that it preferred not to give any prison time and decided against an 18-month sentence because it would have prevented residential drug treatment. In these circumstances, “it is reasonable to assume that, had the district court ‘not focused on a particular drug treatment program within a federal institution,’ it likely would have imposed a lesser sentence.” United States v. Mendiola, 696 F.3d 1033, 1042 (10th Cir. 2012) (citation omitted). Thus, we conclude that the error affected Ms. Tidzump’s substantial rights. Id.; see also United States v. Cordery, 656 F.3d 1103, 1108 (10th Cir. 2011) (holding that a Tapia error affected the defendant’s substantial rights because the district court’s emphasis on “RDAP eligibility suggests a reasonable probability that the sentence would have been lower without this consideration”).

IV. The error seriously affected the fairness, integrity, and public reputation of the judicial proceedings.

Finally, Ms. Tidzump must show that the error seriously affected the fairness, integrity, and public reputation of the judicial proceedings. See Section I, above. We conclude that Ms. Tidzump satisfied this burden.

On this element, we consider whether compliance with Tapia would likely have led to a significantly shorter sentence. United States v. Cordery, 656 F.3d 1103, 1108 (10th Cir. 2011). That likelihood exists here. Defense counsel asked for an 18-month sentence, and the district court stated that it preferred not to require any prison time. Instead, the court imposed a prison term of 31 months. That prison term exceeded Ms. Tidzump’s request by-over 40%, which was significant. As a result, we conclude that the Tapia error seriously affected the fairness, integrity, and public reputation of the judicial proceedings. See id. at 1105, 1108 (holding that a Tapia error seriously affected the fairness, integrity, and reputation of the judicial proceedings when the sentence exceeded the bottom of the guidelines by five months).

V. Disposition

We reverse and remand for resentenc-ing in a manner consistent with Tapia.

      . We may take judicial notice of the BOP’s program statement. See Davila v. Gladden, 777 F.3d 1198, 1207 n.3 (11th Cir. 2015) (taking judicial notice of a BOP program statement); United States v. Thornton, 511 F.3d 1221, 1229 n.5 (9th Cir. 2008) (same).