author: PERRY, District Judge.

text:
    PHARMACEUTICAL CARE MANAGEMENT ASSOCIATION, Plaintiff-Appellant v. Nick GERHART, In his official capacity as Insurance Commissioner of the State of Iowa; Thomas J. Miller, In his official capacity as Attorney General of the State of Iowa, Defendants-Appellees National Community Pharmacists Association; Iowa Pharmacy Association, Amici on Behalf of Appellees
    No. 15-3292
    United States Court of Appeals, Eighth Circuit.
    Submitted: June 14, 2016
    Filed: January 11, 2017
    Corrected: January 12, 2017
    Rehearing and Rehearing En Banc Denied February 16, 2017

      Counsel who presented argument on behalf of the appellant was M. Miller Baker, of Washington, DC. The following attorneys also appeared on the appellant brief; Jason Michael Casini, of Des Moines, IA., Charles Robert Quigg, of Washington, DC., Mark Jacob Altsehul, of Chicago, IL.
    Counsel who presented argument on behalf of the appellee and appeared on the brief was Jordan Esbrook, AAG, of Des Moines, IA.
    The following attorneys appeared on the amicus brief in support of appellees; Robert Thomas Smith, of Washington, DC., Howard R. Rubin, of Washington, DC., Gary W. Howell, of Chicago, IL., Daniel Lipton, of Washington, DC.
    Before MURPHY and SHEPHERD, Circuit Judges, and PERRY

      , District Judge.

       Judge Colloton did not participate in the consideration or decision of this matter.

      . The Honorable Catherine D. Perry, United States District Judge for the Eastern District of Missouri, sitting by designation.

   PERRY, District Judge.

This case involves the question of whether the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001, et seq., expressly preempts section 510B.8 of the Iowa Code. The district court determined that it did not and dismissed Pharmaceutical Care Management Association’s (PCMA’s) complaint seeking a declaration of preemption. We reverse and remand with direction that judgment be entered for PCMA.

Iowa Code § 510B.8 regulates how pharmacy benefits managers (PBMs) establish generic drug pricing, and requires that certain disclosures on their drug pricing methodology be made to their network pharmacies as well as to Iowa’s insurance commissioner. Shortly after the statute went into effect, PCMA brought this action against Iowa’s insurance commissioner and its attorney general (collectively, “the State”), seeking a declaration that the statute places restrictions and requirements on PBMs that impermissibly reference or are connected with ERISA plans, thus making the statute expressly preempted by ERISA. PCMA further sought a declaration that the statute violates the dormant Commerce Clause of the United States Constitution.

The district court granted the State’s motions to dismiss these claims under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, and PCMA appeals. We review de novo the district court’s grant of a Rule 12(b)(6) motion to dismiss, accepting the facts alleged in the complaint as true. Gorog v. Best Buy Co., 760 F.3d 787, 792 (8th Cir. 2014); Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996). We also review de novo the question of whether ERISA preempts a State law, given that it is a matter of federal law involving statutory interpretation. See Shea v. Esensten, 208 F.3d 712, 717 (8th Cir. 2000).

I.

PCMA is a national trade association representing PBMs. PBMs are third-party plan administrators who manage and administer prescription drug benefits on behalf of health plans subject to ERISA, as well as for non-ERISA plans.

The retail pharmacies in a PBM’s network fill prescriptions of health plan participants with drugs the pharmacies purchase from wholesalers or manufacturers. When a plan participant fills a prescription at a pharmacy, the pharmacy checks with the PBM to determine coverage and obtain copayment information. After the pharmacy fills the prescription, the PBM reimburses the pharmacy at a contractually-agreed rate, minus the copay collected by the pharmacy from the plan participant. The PBM then separately bills the health plan at the rate negotiated between the PBM and the health plan.

Contracts between PBMs and their network pharmacies contain agreements about the maximum amount that the PBM will reimburse a pharmacy for generic drugs. To determine this maximum amount, PBMs use what is called a “maximum allowable cost” (MAC) methodology. Each PBM uses its own methodology and develops its own price list for generic drugs. PCMA claims that the reimbursement limits established by the PBMs through their MAC price lists motivate pharmacies to seek and purchase generic drugs at the lowest available prices, which ultimately results in a cost-effective benefit to health plans.

In early 2014, the Iowa General Assembly passed an “Act Relating to the Regulation of Pharmacy Benefits Managers.” The Act was signed into law on March 14, 2014, and became effective July 1, 2014. The Act added a new section to Chapter 510B of the Iowa Code, namely section 510B.8, which provides as follows:

1. The commissioner may require a pharmacy benefits manager to submit information to the commissioner related to the pharmacy benefits manager’s pricing methodology for maximum reimbursement amount.
2. For purposes of the disclosure of pricing methodology, maximum reimbursement amounts shall be implemented as follows:
a. Established for multiple-source prescription drugs prescribed after the expiration of any generic exclusivity period.
b. Established for any prescription drug with at least two or more A-rated therapeutically equivalent, multiple-source prescription drugs with a significant cost difference.
c. Determined using comparable prescription drug prices obtained from multiple nationally recognized comprehensive data sources including wholesalers, prescription drug file vendors, and pharmaceutical manufacturers for prescription drugs that are nationally available and available for purchase locally by multiple pharmacies in the state.
3. For those prescription drugs to which maximum reimbursement amount pricing applies, a pharmacy benefits manager shall include in a contract with a pharmacy information regarding which of the national compendia is used to obtain pricing data used in the calculation of the maximum reimbursement amount pricing and shall provide a process to allow a pharmacy to comment on, contest, or appeal the maximum reimbursement amount rates or maximum reimbursement amount list. The right to comment on, contest, or appeal the maximum reimbursement amount rates or maximum reimbursement amount list shall be limited in duration and allow for retroactive payment in the event that it is determined that maximum reimbursement amount pricing has been applied incorrectly.

Iowa Code § 510B.8. In short, Subsection 1 requires PBMs to provide information regarding their pricing methodologies to Iowa’s insurance commissioner at the commissioner’s request; Subsection 2 limits the types of drugs to which a PBM can apply MAC pricing and limits the sources from which a PBM may obtain pricing information; and Subsection 3 requires PBMs to provide information regarding their pricing methodologies in their contracts with pharmacies and to provide procedures by which pharmacies can comment on and appeal MAC price lists or rates, with potential retroactive payment to pharmacies for incorrect pricing.

Two months after § 510B.8 went into effect, appellant PCMA brought this declaratory judgment action seeking, inter alia, a declaration that the statute is expressly preempted by ERISA. The State moved to dismiss PCMA’s claim of express preemption under Fed. R. Civ. P. 12(b)(6), arguing that the claim failed to state a claim upon which relief can be granted. The district court granted the motion after concluding that, while the statute “does regulate an area of ERISA concern by regulating PBMs” in the manner prescribed, it does not unduly restrict the administration of any ERISA plan, require a particular price or pricing methodology for drugs, or mandate the provision of any benefits. Because PBMs continue to have “sufficient choice and control,” the district court found the statute not to have an impermissible connection with ERISA.

The district court also found the statute not to impermissibly reference ERISA, concluding that the existence of ERISA plans is not essential to the law’s operation and, further, that the statute does not act “immediately and exclusively” on ERISA plans. The district court further found that, while the definitions portion of the statute makes a specific and express reference to ERISA, the reference is too far removed from § 510B.8 to find that § 510B.8 itself references ERISA.

II.

ERISA preempts “any and all State laws insofar as they may now or hereafter relate to any employee benefit plant.]” 29 U.S.G. § 1144(a). A State law “ ‘relates to’ an ERISA plan and is preempted if it has ‘a connection with or a reference to such a plan.’ ” Express Scripts, Inc. v. Wenzel, 262 F.3d 829, 833 (8th Cir. 2001) (quoting New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 656, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995)). A State law need not act directly on an ERISA plan in order to be preempted. Id. (citing Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 139, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990)). Where a State law indirectly forces a plan administrator to make a particular decision or take a particular action, the law may be held to “relate to” employee benefit plans. Id. (citing Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739, 105 S.Ct. 2380, 85 L.Ed.2d 728 (1985)).

A State law has an impermissible “reference to” ERISA plans where it “acts immediately and exclusively upon ERISA plans ... or where the existence of ERISA plans is essential to the law’s operation[.]” Gobeille v. Liberty Mut. Ins. Co., — U.S. —, 136 S.Ct. 936, 943, 194 L.Ed.2d 20 (2016) (internal citation and quotation marks omitted). A State law has an impermissible “connection with” ERISA plans where it “governs ... a central matter of plan administration” or “interferes with nationally uniform plan administration.” Id. (internal citation and quotation marks omitted). ERISA expressly preempts the law if it either refers to or has an impermissible connection with ERISA. Section 510B.8 does both.

A.

A State law has a prohibited “reference to” ERISA or ERISA plans when that law (1) imposes requirements by reference to ERISA-covered programs, (2) specifically exempts ERISA plans from an otherwise generally applicable statute, or (3) premises a cause of action on the existence of an ERISA plan. Prudential Ins. Co. of Am. v. Nat’l Park Med. Ctr., Inc., 154 F.3d 812, 822 (8th Cir. 1998) (quoting California Div. of Labor Standards Enf. v. Dillingham Constr., N.A., Inc., 519 U.S. 316, 324-25, 117 S.Ct. 832, 136 L.Ed.2d 791 (1997)).

The parties do not dispute that § 510B.8 regulates the manner by which PBMs manage and administer prescription drug benefits by overseeing their MAC pricing methodologies, limiting the drugs subject to MAC pricing, and dictating the manner by which PBMs contract with pharmacies regarding MAC pricing. Although § 510B.8 does not appear on its face to impermissibly refer to ERISA when read alone, we may not look only at an isolated provision of a statute to construe its meaning. Gustafson v. Alloyd Co., 513 U.S. 561, 568, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995) (citing Philbrook v. Glodgett, 421 U.S. 707, 713, 95 S.Ct. 1893, 44 L.Ed.2d 525 (1975); Kokoszka v. Belford, 417 U.S. 642, 650, 94 S.Ct. 2431, 41 L.Ed.2d 374 (1974)). Instead, we must construe a statute “ ‘so that effect is given to all of its provisions, so that no part will be inoperative or superfluous, void or insignificant....’” Corley v. United States, 556 U.S. 303, 314, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009) (quoting Hibbs v. Winn, 542 U.S. 88, 101, 124 S.Ct. 2276, 159 L.Ed.2d 172 (2004)). Terms should be construed to have consistent meaning throughout a statute. Gustafson, 513 U.S. at 568, 115 S.Ct. 1061.

Iowa Code § 510B.1 contains definitions for terms “as used in” Chapter 510B, which necessarily includes § 510B.8. A “pharmacy benefits manager” is defined as “a person who performs pharmacy benefits management services,” § 510B.1(9), which, by definition, is “the administration or management of prescription drug benefits provided by a covered entity under the terms and conditions of the contract between the pharmacy benefits manager and the covered entity.” Iowa Code § 510B.1(8). A “pharmacy benefits manager” includes persons “acting on behalf of a pharmacy benefits manager in a contractual or employment relationship in the performance of pharmacy benefits management services for a covered entity.” Iowa Code § 510B.1(9). “Covered entity” is defined as:

a nonprofit hospital or medical services corporation, health insurer, health benefit plan, or health maintenance organization; a health program administered by a department or the state in the capacity of provider of health coverage; or an employer, labor union, or other group of persons organized in the state that provides health coverage.

Iowa Code § 510B.1(2).

Section 510B.1 also contains specific exclusions from what is considered a “covered entity” for purposes of Chapter 510B:

“Covered entity” does not include a self-funded health coverage plan that is exempt from state regulation pursuant to the federal Employee Retirement Income Security Act of 1974 (ERISA), as codified at 29 U.S.C. § 1001, et seq.; a plan issued for health coverage for federal employees; or a health plan that provides coverage only for accidental injury, specified disease, hospital indemnity, Medical supplemental, disability income, or long-term care, or other limited benefit health insurance policy or contract.

Iowa Code § 510B.1(2). Accordingly, when Chapter 510B’s defined terms are considered in toto, it is apparent that § 510B.8 applies to only those PBMs who administer or manage benefits provided by a “covered entity,” which, by definition, specifically excludes certain plans under ERISA. Because by its express terms, the statute cannot reach PBMs who manage benefits for certain exempted ERISA plans, § 510B.8 specifically exempts certain ERISA plans from its otherwise general application. If the effect of a State law is to exclude some employee benefits plans from its coverage, that law has a prohibit7 ed reference to ERISA and is preempted under 29 U.S.C. § 1144(a). Prudential Ins. Co. of Am., 154 F.3d at 823-24 (quoting Ingersoll-Rand, 498 U.S. at 140, 111 S.Ct. 478).

In addition to this express reference to ERISA, the Iowa law also makes implicit reference to ERISA through regulation of PBMs who administer benefits for “covered entities,” which, by definition, include health benefit plans and employers, labor unions, or other groups “that provide[] health coverage.” These entities are necessarily subject to ERISA regulation. Prudential Ins. Co. of Am., 154 F.3d at 824-25; 29 U.S.C. §§ 1002(1), 1003(a). Because benefits affected by § 510B.8 are provided by ERISA-covered programs, the requirements imposed for the management and administration of these benefits necessarily affects ERISA plans. “Thus, it cannot be said that the [Iowa law] ‘functions irrespective of ... the existence of an ERISA plan.’” Prudential Ins. Co. of Am., 154 F.3d at 825 (quoting Dillingham, 519 U.S. at 328, 117 S.Ct. 832).

Section 510B.8 applies to only those PBMs who administer prescription drug-benefits for plans subject to ERISA regulation, and specifically exempts certain ERISA plans from its application. Because of this impermissible reference to ERISA or ERISA plans, Iowa Code § 510B.8 is preempted under 29 U.S.C. § 1144(a).

B.

Where a State law is preempted because it has a prohibited “reference to” ERISA or ERISA plans, we need not reach the question of whether it is also preempted under the “connection with” prong of the analysis. Prudential Ins. Co. of Am., 154 F.3d at 825. Nevertheless, our review of § 510B.8 shows it to have a prohibited connection with ERISA.

A State law “has an impermissible ‘connection with’ ERISA plans” when it “ ‘governs ... a central matter of plan administration’ or ‘interferes with nationally uniform plan administration.’ ” Gobeille, 136 S.Ct. at 943 (quoting Egelhoff v. Egelhoff, 532 U.S. 141, 148, 121 S.Ct. 1322, 149 L.Ed.2d 264 (2001)) (omission in Gobeille). Obligations undertaken with plan administration include “determining the eligibility of claimants, calculating benefit levels, making disbursements, monitoring the availability of funds for benefit payments; and keeping appropriate records in order to comply with applicable reporting requirements.” Fort Halifax Packing Co., Inc. v. Coyne, 482 U.S. 1, 9, 107 S.Ct. 2211, 96 L.Ed.2d 1 (1987).

The most efficient way to meet these responsibilities is to establish a uniform administrative scheme, which provides a set of standard procedures to guide processing of claims and disbursement of benefits. Such a system is difficult to achieve, however, if a benefit plan is subject to differing regulatory requirements of differing States. A plan would be required to keep certain records in some States but not in others; to make certain benefits available in some States but not in others; to process claims in a certain way in some States but not in others; and to comply with certain fiduciary standards in some States but not in others.

Id. Where a State’s law creates the prospect that a plan’s administrative scheme will be subject to conflicting requirements, ERISA’s preemption provision is enforced. Id. at 10, 107 S.Ct. 2211. “Preemption ensures that the administrative practices of a benefit plan will be governed by only a single set of regulations.” Id. at 11, 107 S.Ct. 2211. These oversight systems and other standard procedures “are intended to be uniform.” Gobeille, 136 S.Ct. at 944 (citing Travelers, 514 U.S. at 656, 115 S.Ct. 1671).

PCMA argues that, contrary to ERISA’s intent to maintain a uniform scheme of plan administration, all facets of § 510B.8 interfere with the structure and administration of ERISA plans in Iowa and require administrative processes unique to that State. The State and its amici argue that the statute regulates interactions between PBMs and pharmacies only and does not involve ERISA plans or their beneficiaries. This argument is foreclosed by our discussion above. They further argue that the mere possibility that the statute may indirectly increase costs to health plans is an insufficient basis for preemption. Economic cost to a plan, however, is not the only measure of a law’s connection with ERISA. See Gobeille, 136 S.Ct. at 945. “[Reporting, disclosure, and recordkeeping are central to, and an essential part of, the uniform system of plan administration contemplated by ERISA.... [I]n fact, ... these requirements are integral aspects of ERISA.” Id. Direct regulation of these fundamental aspects of ERISA necessitates preemption. Id. at 946.

Here, Iowa’s law compels PBMs as third-party administrators to report to the commissioner and to network pharmacies their methodology for establishing reimbursement amounts paid to pharmacies for providing certain generic drugs to plan participants. Requiring reports and disclosures to a State official and to private enterprise about the economic bases for a plan’s provision of prescription drug benefits in that State intrudes upon a matter central to plan administration and interferes with nationally uniform plan administration. See Gobeille, 136 S.Ct. at 945. Iowa’s law also restricts the class of drugs to which these third-party administrators may establish maximum reimbursement amounts and limits the sources from which they may obtain pricing information, implicating another area central to plan administration — that is, the calculation of prescription benefit levels and making disbursements for these benefits. See Coyne, 482 U.S. at 9, 107 S.Ct. 2211. Finally, the law requires these third-party administrators to include in their contracts with network pharmacies provisions that allow pharmacies to contest and appeal reimbursement rates and to “allow for retroactive payment in the event that it is determined” that the reimbursement rates were applied incorrectly. Not only does this provision restrict an administrator’s control in the calculation of drug benefits, it also removes their ability to conclusively determine final drug benefit payments and monitor funds. In addition, while Iowa’s insurance commissioner presumably has the duty to determine whether reimbursement rates are applied “incorrectly,” see Iowa Code § 510B.3(1), there is nothing in the statute identifying the yardstick against which any measure of “correctness” is made — further exacerbating the administrator’s lack of control over the calculation and disbursement of benefits.

ERISA’s central design “is to provide a single uniform national scheme for the administration of ERISA plans without interference from the laws of the several States[.]” Gobeille, 136 S.Ct. at 947. Section 510B.8 imposes mandates and restrictions on a PBM’s relationship with Iowa and its pharmacies that run counter to ERISA’s intent of making plan oversight and procedures uniform. “Requiring ERISA administrators to master the relevant laws of 50 States and to contend with litigation would undermine the congressional goal of minimizing the administrative and financial burden[s] on plan administrators — burdens ultimately borne by the beneficiaries.” Gobeille, 136 S.Ct. at 944 (internal quotation marks and citations omitted) (alteration in Gobeille).

Because the duties and restrictions imposed by § 510B.8 on PBMs in their role as third-party administrators for ERISA plans are inconsistent with ERISA’s central design, ERISA’s express preemption clause requires invalidation of the statute as applied to PBMs in their administration and management of prescription drug benefits for ERISA plans. Gobeille, 136 S.Ct. at 947. We therefore reverse the district court’s finding that the statute is not expressly preempted under ERISA.

III.

We may reverse any judgment or order of a district court lawfully before us for review and “remand the cause and direct the entry of such appropriate judgment ... as may be just under the circumstances.” 28 U.S.C. § 2106. Directing the entry of judgment is appropriate where no relevant factual dispute exists, the record on the issue is sufficiently developed, and the parties had a fair opportunity to dispute and develop the issue before the district court. Union Elec. v. Southwestern Bell Tel. L.P., 378 F.3d 781, 786 (8th Cir. 2004); Fabric v. Provident Life & Accident Ins. Co., 115 F.3d 908, 915 (11th Cir. 1997) (cited approvingly in Union Elec., 378 F.3d at 786). This is so even in circumstances where a party did not move for entry of judgment in the district court. Fabric, 115 F.3d at 914-15 (and cases cited therein).

' [21] Here, although there was no development of a factual record in the district court, the issue of express preemption in this case involves pure statutory interpretation with no factual matters to be considered other than the text of the statute itself. There simply is no factual record to be developed. Further, the parties had a fair opportunity to dispute and develop the issue before the district court, and they fully developed the issue on appeal. Indeed, the issue of whether to direct the entry of judgment has itself been developed before us in this appeal. Given all of these considerations, there is no prejudice to the State by our directing the district court to enter judgment on PCMA’s claim of express preemption, which we find to be appropriate and just under the circumstances.

IV.

For the foregoing reasons, the judgment of the district court is reversed and the case is remanded for entry of judgment in favor of PCMA on the issue of express preemption. In view of our holding, we do not reach the dormant Commerce Clause issue raised by PCMA in this appeal.

      . The district court also dismissed PCMA’s due process and conflict preemption claims, as well as its Takings claims under the United States and Iowa constitutions, and the clerk entered judgment on the case in favor of the State. PCMA does not appeal the district court’s dismissal of these other claims.

      . "The commissioner shall enforce the provisions of this chapter.”


source: Caselaw Access Project

author: WOLLMAN, Circuit Judge.

license: Public Domain

text:
    SCHNUCK MARKETS, INC., Plaintiff-Appellee v. FIRST DATA MERCHANT SERVICES CORP.; Citicorp Payment Services, Inc., Defendants-Appellants
    No. 15-3804
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 21, 2016
    Filed: January 13, 2017

      Counsel who presented argument on behalf of the appellant was Gregory Silbert, of New York, NY. The following attorney(s) appeared on the appellant brief; Lucy T. Unger, of Saint Louis, MO., Lisa Larkin, of Saint Louis, MO., Edward Soto, of Miami, FL., Jonathan Polkes, of New York, NY.
    Counsel who presented argument on behalf of the appellee was Daniel R. Warren, of Cleveland, OH. The following attorney® appeared on the appellee brief; Kevin F. Hormuth, of Saint Louis, MO., David Paul Niemeier, of Saint Louis, MO., Craig A Hoffman, of Cincinnati, OH.
    Before WOLLMAN, ARNOLD, and KELLY, Circuit Judges.
   WOLLMAN, Circuit Judge.

Grocery store chain Schnuck Markets, Inc. (Schnucks) sued its credit card processor, First Data Merchant Services Corporation (First Data), and the acquiring bank for its credit transactions, Citicorp Payment Services, Inc. (Citicorp). Schnucks alleges that First Data and Citi-corp (collectively, Defendants) withheld more money from Schnucks following a data breach at Schnucks than their contract allowed. Schnucks brought declarato-' ry judgment and breach of contract claims, and Defendants brought a declaratory judgment counterclaim. Both parties moved for judgment on the pleadings. Defendants appeal from the district court’s order denying their motion for judgment on the pleadings and granting Schnucks’s motion for judgment on the pleadings. Defendants also appeal from the district court’s order denying their motion for reconsideration, or in the alternative for leave to amend their pleadings. We affirm.

I.

First Data served as Schnucks’s credit card processor. Citicorp served as its acquiring bank. When a merchant such as Schnucks makes a credit card transaction, the acquiring bank pays the merchant and is reimbursed by the bank that issued the credit card (the issuing bank). The acquiring bank sponsors the merchant into credit card association networks, in this case Visa and MasterCard (the Associations), and vouches for the merchant’s compliance with the Associations’ rules. The Associations’ rules provide that the Associations may issue fines against the acquiring bank in the event of a cardholder data breach and assess against the acquiring bank the costs of monitoring or cancelling at-risk cards and the amount of fraudulent charges on the at-risk cards.

The contract between the parties consists of a Master Services Agreement (MSA) between Schnucks and First Data and a Bankcard Addendum executed by Schnucks, First Data, and Citicorp. The Bankcard Addendum incorporates First Data’s Operating Procedures, and the Bankcard Addendum and First Data’s Operating Procedures incorporate the rules and regulations of the Associations. The contract imposes upon Schnucks a broad duty to indemnify Defendants for Sehnucks’s breach of contract. Under § 4.9 of First Data’s Operating Procedures, a determination by the Associations that Schnucks is responsible for a data breach requires Schnucks to pay Defendants for “Data Compromise Losses,” defined as “all related expenses, claims, assessments, fines, losses, costs, and penalties and Issuer reimbursements” that the Associations impose on Defendants.

Under § 5.4 of the MSA, however, Schnucks’s liability is limited to $500,000, with certain exceptions:

Limitation of Liability. Notwithstanding anything in this MSA and any addenda to the contrary, Customer [Schnucks], FDMS [First Data] and its affiliates’ cumulative liability ... for all losses, claims, suits, controversies, breaches, or damages for any cause whatsoever (including, but not limited to, those arising out of or related to this MSA and any addenda) and regardless of the form of action or legal theory shall not exceed $500,000. Notwithstanding the foregoing, [Schnucks], [First Data] and its affiliates’ cumulative liability for its breach under Section 25 (Data Security) shall not exceed $3,000,000.... This Section 5.4 limitation of liability shall not apply to [Schnucks’s] liability for chargebacks, servicers’ fees, third party fees, and fees, fines or penalities [sic] by the Association or any other card or debit card, provided under this MSA or any addenda.

Section 13.3 of the Bankcard Addendum defines “third party fees” as “all fees and charges ... without limitation, of any Credit Card Association, Network, card-issuing organization, telecommunications provider, federal, state, or local governmental authority (each a ‘Third Party’) including, without limitation any switch fee, issuer[] reimbursement fee, adjustment fee, interchange fee, assessment fee or access fee[ ] (collectively, [‘] Third Party Fees’).” The contract also permits Defendants to retain in a reserve account funds that Schnucks owes them.

In March 2013, a cyber-attack against Schnucks compromised cardholder data. MasterCard assessed a case-management fee against Citicorp, as well as costs to reimburse issuing banks for card monitoring and replacement and for fraudulent charges. Citicorp projected the total amount of Visa’s assessment based on MasterCard’s assessment. Based on these assessments and projections, First Data established a reserve account, and Defendants have withheld more than $500,000 from Schnucks’s credit transactions.

Schnucks’s breach of contract and declaratory judgment action alleges that the limitation of liability provision establishes a $500,000 cap on its liability for the assessments against Citicorp. Defendants’ counterclaim seeks a declaration that the limitation of liability provision does not apply to fees charged by the Associations as a result of a cyber-attack, or fees, fines, or penalties charged by the Associations for a merchant’s non-compliance with Payment Card Industry Data Security Standards. Defendants moved for judgment on the pleadings. Schnucks filed a cross-motion for partial judgment on the pleadings, seeking judgment on Schnucks’s and Defendants’ declaratory judgment claims but not on Schnucks’s breach of contract claim.

The district court granted Schnucks’s motion and denied Defendants’ motion, holding that the assessments for issuing banks’ losses were not “third party fees” or “fees, fines or penalties,” and thus did not fall within the exception to limitation of liability set forth in the last sentence of § 5.4 of the MSA. The court reasoned that Defendants would have used the term “Data Compromise Losses” (or similar language) in § 5.4 had they intended to exclude these losses from the limitation of liability. The court explained that the plain meaning of the term “fee” is a payment for a service, not reimbursement for another’s losses; furthermore, the court noted that the portions of the contract concerning fees do not mention reimbursement for data compromise events and that the portions concerning data compromise events do not refer to fees. The court ruled that the terms “fine” and “penalty” describe sums imposed as a punishment and do not include within their purview data compromise losses. The court concluded that it would be unreasonable to impose liability on Schnucks for all of Defendants’ losses, for to do so would render the limitation of liability provision meaningless.

The court also determined that the parties had not raised as an issue the Bankcard Addendum’s § 25 $3,000,000 limit regarding breaches of data-security standards. Accordingly, the district court entered a declaratory judgment that Schnucks’s liability for the issuing banks’ losses is capped at $500,000, and that Defendants must return the funds that they retained in excess of $500,000, plus the amount of the Visa fine and MasterCard case management fee. Defendants moved for reconsideration, or in the alternative for leave to amend their pleadings, arguing in part that the district court had erred in holding that Defendants had failed to raise the issue of the $3,000,000 limitation of liability. As stated earlier, Defendants now appeal from the grant of Schnucks’s motion for judgment on the pleadings and the denial of their motion for reconsideration or leave to amend.

II.

A. Jurisdiction

We have jurisdiction over final decisions of the district courts.' 28 U.S.C. § 1291. Schnucks’s breach of contract claim is still pending before the district court and has been stayed during this appeal, but the district court certified its order granting Schnucks’s motion for judgment on the pleadings as a final judgment under Federal Rule of Civil Procedure 54(b). We conclude that it did not abuse its discretion in ruling that the order was final and that there was no just reason for delay. See Jones v. W. Plains Bank & Tr. Co., 813 F.3d 700, 703 (8th Cir. 2015) (‘We review a district court’s decision to grant Rule 54(b) certification for abuse of discretion.”).

Defendants’ motion for certification requested certification of the January 15 order regarding judgment on the pleadings, not the July 31 order denying their motion for reconsideration or leave to amend. Although the district court’s judgment granting certification mentions only the January 15 order, its memorandum and order preceding the judgment stated: “Defendants now move for certification of the Court’s January 15, 2015 Order ... allowing them to file an interlocutory appeal of both the January 15 and July 31, 2015 Orders in the Eighth Circuit.” D. Ct. Order of Nov. 6, 2015, at 2. Defendants’ notice of appeal states that they appeal from both orders. We conclude that the district court intended to certify both the January 15 order and the July 31 order and that we thus have jurisdiction to review both orders.

B. Judgment on the Pleadings

“We review de novo the district court’s entry of judgment on the pleadings.” Waldron v. Boeing Co., 388 F.3d 591, 593 (8th Cir. 2004). A motion for judgment on the pleadings should be granted when, accepting all facts pled by the nonmoving party as true and drawing all reasonable inferences from the facts in favor of the nonmoving party, the movant has clearly established that no material issue of fact remains and that the movant is entitled to judgment as a matter of law. Id. We apply Missouri substantive law in light of the parties’ agreement that the MSA provides that Missouri law shall govern the MSA and any addenda.

At the outset, we reject Defendants’ argument that the limitation of liability does not apply to Schnucks’s indemnity obligation for assessments against Defendants by the Associations. Defendants forfeited this argument because they did not raise it in the district court, but it would fail even if it had been preserved. Under § 5.4 of the MSA, the limitation of liability applies to “all losses, claims, suits, controversies, breaches, or damages for any cause whatsoever (including, but not limited to, those arising out of or related to this MSA and any addenda) and regardless of the form of action or legal theory.” The assessments in this case not only fit within this broad provision, but would also qualify as “arising out of or related to this MSA and any addenda,” because Sehnucks’s indemnity obligation to Defendants for the assessments arises from the contract.

Defendants argue that the MSA does not limit Schnuck’s liability for the assessments for issuing banks’ losses. As recounted above, § 4.9 of First Data’s Operating Procedures requires Sehnucks to indemnify Defendants for “Data Compromise Losses.” Section 5.4 of the MSA limits Schnucks’s liability to $500,000, but carves out liability for “third party fees” and “fees, fines or penalties” imposed by the Associations. Defendants argue that the assessments for issuing banks’ losses fall within one or both of these carve-outs.

“The interpretation of a contract, including, whether it is ambiguous, is a question of law.” Adbar Co., L.C. v. PCAA Mo., LLC, No. 4:06-CV-1689, 2008 WL 68858, at *4 (E.D. Mo. Jan. 4, 2008) (citing Helterbrand v. Five Star Mobile Home Sales, Inc., 48 S.W.3d 649, 658 (Mo. Ct. App. 2001)). “When a contract uses plain and unequivocal language, it must be enforced as written.” Deal v. Consumer Programs, Inc., 470 F.3d 1225, 1230 (8th Cir. 2006) (quoting Lake Cable, Inc. v. Trittler, 914 S.W.2d 431, 436 (Mo. Ct. App. 1996)). “To determine whether a contract is ambiguous, we consider the instrument as a whole, giving the words contained therein their ordinary meaning. A contract is not ambiguous merely because the parties dispute its meaning.” Id. (citations omitted). Because the contract at issue is unambiguous, it must be enforced as written.

Defendants argue that the term “third party fees” includes the issuing banks’ losses because § 13.3 of the Bankcard Addendum expansively defines “third party fees” as “all fees and charges ... without limitation” imposed by a third party. Defendants contend that the assessments for issuer losses are thus carved out of Schnucks’s limitation of liability. The Missouri Court of Appeals has defined the term “fee” as “a sum paid or charged for a service.” Strader v. Progressive Ins., 230 S.W.3d 621, 625 (Mo. Ct. App. 2007). Defendants argue that the terms “fees and charges” may be defined more broadly as an amount of money that must be paid. Reading the contract as a whole, however, it is apparent that the parties intended the narrower definition. Section 13 of the Bankcard Addendum refers to “fees for Services.” The list of specific fees and charges in § 13.3 — “any switch fee, issuer[ ] reimbursement fee, adjustment fee, interchange fee, assessment fee or access fee” — militates in favor of construing “fees and charges” as payments for services. The assessments imposed by the Associations here do not qualify as payments for services, because they are imposed to compensate issuing banks for losses they sustained as a result of a data breach, not as compensation for performing services. Moreover, the assessments do not fall within the enumerated fees and charges set forth in § 13.3 of the Bankcard Addendum, including “issuer reimbursement fees.” Accordingly, the assessments are not carved out from Schnucks’s limitation of liability as “third party fees.”

Defendants also argue that the assessments for issuer losses are carved out from the limitation of liability because they constitute “fees, fines or penalties” imposed by the Associations. We disagree. Having already concluded that the assessments for issuer losses are not “fees,” we conclude that they also do not qualify as “fines or penalties.” “The ordinary meaning of a ‘fine’ or ‘penalty’ is not compensation or reparation for an injury; rather, it is a sum imposed as punishment.” Farmland Indus., Inc. v. Republic Ins. Co., 941 S.W.2d 505, 511 (Mo. 1997) (en banc). The assessments for issuer losses are more accurately defined as “compensation or reparation for an injury” and not as “a sum imposed as punishment.” In addition to the plain meaning of the terms “fines” and “penalties,” the Associations’ rules also indicate that the assessments for issuer losses are not “fines” or “penalties.” The rales allow the Associations to impose fines for violations of data-security standards, but describe their programs to compensate issuing banks for data compromise event losses as methods of reimbursement, not fines or penalties. Thus, in reading the contract as a whole and in light of the plain meaning of the terms “fine” and “penalty,” the district court did not err in holding that the assessments for issuing banks’ losses do not constitute “fines or penalties.”

Even if the text of the carve-outs in § 5.4 of the MSA did not decide the matter, the use of broader language elsewhere in the contract would indicate that the carve-outs should be read narrowly. For example, as set forth in § 4.9 of First Data’s Operating Procedures, Schnucks must indemnify Defendants for “Data Compromise Losses,” which includes “all related expenses, claims, assessments, fines, losses, costs, and penalties and Issuer reimbursements.” Similarly, § 5.4 of the MSA limits liability “for all losses, claims, suits, controversies, breaches, or damages for any cause whatsoever.” Had the parties intended to include reimbursements to issuing banks within the carve-outs from Schnucks’s limitation of liability, they would have used more expansive language than simply “fees, fines or penalties.”

Defendants argue that the contract is ambiguous because Schnucks’s interpretation leads to the commercially unreasonable result of requiring Defendants to act as Schnucks’s insurer. The parties disagree whether a commercially unreasonable result renders a contract ambiguous or whether commercial unreasonableness becomes relevant only after the court determines that the contract is ambiguous. We need not decide this question, because the underlying business arrangement, which represents Defendants’ choice to vouch for Schnucks’s compliance with data-security standards, is not rendered commercially unreasonable merely because the limitation on Schnucks’s liability is broader than Defendants now wish it to be.

We further hold that the district court did not misapply the standard for judgment on the pleadings in concluding that Defendants had not raised the issue of the separate $3,000,000 limitation of liability. Defendants’ briefing on the cross-motions for judgment on the pleadings did not argue that the $3,000,000 limitation of liability for breach of § 25 of the Bankcard Addendum applied. In any event, § 25 of the Bankcard Addendum concerns “fines” for violations of data security standards and, as discussed above, the assessments in question were not “fines.”

C. Reconsideration or Leave to Amend Pleadings

We review for abuse of discretion a district court’s decision on a motion for reconsideration or leave to amend under Rule 54(b). See K.C. 1986 Ltd. P’ship v. Reade Mfg., 472 F.3d 1009, 1017 (8th Cir. 2007). A party that moves for leave to amend after the deadline in a scheduling order has passed must show good cause under Rule 16(b), the primary measure of which is the movant’s diligence in attempting to comply with the scheduling order. Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 716 (8th Cir. 2008). District courts “have considerable discretion to deny a post-judgment motion for leave to amend because such motions are' disfavored.” United States ex rel. Roop v. Hypoguard USA, Inc., 559 F.3d 818, 824 (8th Cir. 2009).

We conclude that the district court did not abuse its discretion in denying Defendants’ motion for reconsideration or leave to amend, which essentially restated their assertions of error regarding judgment on the pleadings. Further, Defendants have not shown good cause for leave to amend. Defendants argue that “the need to amend was only brought to light by the District Court’s conclusion that, notwithstanding the allegations in Defendants’ Answer and Counterclaim, Defendants ‘did not allege that Schnueks • was either negligent or PCI DSS non-compliant.’ ” Appellants’ Br. 47. As ■ the district court stated, “Defendants are responsible for pleading their case without the Court’s assistance.” D. Ct. Order of July 31, 2015, at 9.

III.

Neither carve-out from the limitation of liability applies to the assessments that the Associations imposed on Defendants. The district court did not misapply the standard for judgment on the pleadings and did not abuse its discretion in denying Defendants’ motion for reconsideration or leave to amend.

The judgment is affirmed.

      . The Honorable John A. Ross, United States District Judge for the Eastern District of Missouri.

      . Defendants argue that the Associations’ rules are not incorporated into the agreement, or that only the rules applicable to the relationship between the parties are incorporated. We disagree. Although § 4 of the Bankcard Addendum merely requires Schnucks to comply with "all applicable Association Rules,” § 25 requires Schnucks to “follow the Operating Procedures and comply with Association Rules as they may each be amended from time to time.” And § A of First Data’s Operating Procedures states that Schnucks "should consult the Card Organization Rules for complete information and to ensure full compliance with them.” Moreover, ¶ 17 of Schnucks's Complaint alleged that “[t]he operating regulations of Visa and MasterCard are expressly incorporated by reference as part of the Agreement,” which Defendants admitted in ¶ 17 of their Answer. The Associations’ rules are thus incorporated into the agreement, even to the extent that they do not directly govern the relationship between Schnucks and Defendants.

      . Defendants argue that the district court erroneously adopted the parties' agreement that the contract was unambiguous, rather than making this determination for itself. See Shaw Hofstra & Assocs. v. Ladco Dev., Inc., 673 F.3d 819, 826 (8th Cir. 2012) (holding that Missouri law requires that "the court must first determine as a matter of law whether a contract is ambiguous”). We disagree. The district court determined that the plain language of the contract decided the questions presented in this case, which to us indicates that the court had determined for itself that the contract was unambiguous and had not relied solely on the parties' agreement to that effect.

      . The district court noted that the term “issuer reimbursement fees” appears in MasterCard's rules, but only in the limited context of an excessive chargeback. Defendants argue that the district court “cherry picked” from MasterCard’s rules in considering the use of the term “issuer reimbursement fees” and did not look at Visa’s rules. Defendants do not point to any use of this term in Visa's rules, however, and we have found none.


author: LOKEN, Circuit Judge.

text:
    Raul DE LA ROSA, Plaintiff-Appellee v. Trooper Mark WHITE, Defendant-Appellant
    No. 15-3399
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 25, 2016
    Filed: March 27, 2017

      Counsel who presented argument on behalf of the appellant and appeared on the brief was David A. Lopez, AAG, of Lincoln, NE.
    Counsel who presented argument on behalf of the appellee and appeared on the brief was Katie M. Martens, of Lincoln, NE.
    Before RILEY, Chief Judge, BEAM and LOKEN, Circuit Judges.

      . The Honorable William Jay Riley stepped down as Chief Judge of the United States Court of Appeals for the Eighth Circuit at the close of business on March 10, 2017. He has been succeeded by the Honorable Lavenski R. Smith.

   LOKEN, Circuit Judge.

In March 2012, Nebraska state trooper Mark White stopped a Ford Ranger pickup truck on Interstate 80 in Seward County, Nebraska for following another vehicle too closely. See Neb. Rev. Stat. § 60-6, 140(1). After the driver, Raul De La Rosa, provided his Arizona license, Trooper White issued a warning and completed the traffic stop in less than fifteen minutes. However, when De La Rosa refused to consent to a search of the pickup, Trooper White called for a drug detection dog and detained De La Rosa for fifty minutes before the dog arrived from Omaha. The dog alerted to De La Rosa’s vehicle; an interior search uncovered a small amount of marijuana and three concealed firearms. De La Rosa was arrested and charged in state court with carrying concealed firearms. The charges were dismissed after the state trial court granted De La Rosa’s motion to suppress the firearms.

De La Rosa then filed this 42 U.S.C. § 1983 damage action in state court, alleging that Trooper White unconstitutionally initiated a traffic stop and questioned, detained, and arrested De La Rosa without reasonable suspicion or probable cause. White removed the case to the United States District Court for the District of Nebraska and now appeals the district court’s denial of his motion for summary judgment based on qualified immunity. “An interlocutory order denying qualified immunity is immediately appeal-able to the extent that it turns on an issue of law.” Aaron v. Shelley, 624 F.3d 882, 883 (8th Cir. 2010) (quotations omitted). Reviewing the denial of qualified immunity de novo, we reverse. See New v. Denver, 787 F.3d 895, 899 (8th Cir. 2015) (standard of review).

I.

A. Qualified immunity shields government officials from civil damage liability for discretionary action that “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Qualified immunity is an immunity from suit, not a mere defense to liability. The Supreme Court has “stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quotation omitted). To avoid pretrial dismissal, a plaintiff must present facts showing the violation of a constitutional right that was clearly established at the time of the defendant’s act. Id. at 232-33, 236, 129 S.Ct. 808.

B. The Fourth Amendment prohibits unreasonable searches and seizures. A traffic stop is constitutionally reasonable “where the police have probable cause to believe that a traffic violation has occurred.” Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). A traffic stop may include inquiries incident to determining whether to issue a citation, and limited unrelated inquiries such as checking to determine if the vehicle occupants are wanted for prior offenses. See Rodriguez v. United States, — U.S. —, 135 S.Ct. 1609, 1614-15, 191 L.Ed.2d 492 (2015). However, extending the detention beyond the time needed to complete the traffic-ticketing process is unlawful unless additional investigation, such as a dog sniff of the vehicle’s exterior, is warranted by the officer’s reasonable suspicion that other criminal activity may be afoot. See Rodriguez, 135 S.Ct. at 1616; United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). In this case, the district court granted Trooper White summary judgment “to the extent that De La Rosa is claiming a constitutional violation based on the initial stop.” De La Rosa does not challenge that ruling on appeal. Thus, the only issue before us is whether Trooper White is entitled to qualified immunity from the claim that he lacked reasonable suspicion warranting a fifty-minute extension of the traffic stop while he summoned a drag dog that alerted to De La Rosa’s pickup.

C. Reasonable suspicion is a fact-specific determination: a reviewing court must “look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (quotations omitted). Reasonable suspicion requires that the officer possess at least “some minimal level of objective justification.” Sokolow, 490 U.S. at 7, 109 S.Ct. 1581 (quotation omitted). Thus, courts must not uphold “virtually random seizures” based on “circumstances [that] describe a very large category of presumably innocent travelers.” Reid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980). But in making determinations of probable cause and reasonable suspicion, “the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts.” Sokolow, 490 U.S. at 10, 109 S.Ct. 1581 (quotation omitted).

II.

In this case, after initiating the traffic stop, Trooper White observed a spare tire in the bed of the pickup truck, obtained De La Rosa’s Arizona driver’s license, and asked De La Rosa about his travels and employment. De La Rosa said he was traveling from Phoenix, Arizona to visit family or friends in Peoria, Illinois. Though unemployed, De La Rosa said he performed “odd jobs” in Arizona to finance the trip. Trooper White asked if De La Rosa had “been in trouble in the past with drags, guns, or anything else.” De La Rosa said no. Lincoln Dispatch advised that De La Rosa had a criminal history for destruction of property in 2005. Questioned further, De La Rosa explained that the charges were dropped, an explanation confirmed in the report dispatched to White’s computer. Trooper White issued a warning ticket, returned De La Rosa’s documentation, and told him that he was “free to go.” As De La Rosa exited the patrol car, White asked whether he had drags or anything in the vehicle that shouldn’t be there. De La Rosa said no. White asked for consent to search the vehicle; De La Rosa refused. White then told De La Rosa he was calling a drag detection canine unit to conduct an exterior sniff of the vehicle.

In denying Trooper White qualified immunity, the district court considered the uncontroverted facts in White’s statement of undisputed material facts, supplemented by facts in De La Rosa’s affidavit and exhibits that provided “little additional substance.” The court properly recognized that an officer needs reasonable suspicion to detain the motorist after completing a traffic stop, an inquiry based on the totality of the circumstances known to the officer at the time. The court then identified the following facts as the basis for Trooper White’s suspicion of criminal activity:

De La Rosa allegedly lied about having a criminal history because he said he had not “been in trouble with guns, drags, or anything else” but he had been charged, in 2005, with destruction of property.
De La Rosa said he was going from Phoenix to visit friends in Illinois; according to White, Arizona is a source state for contraband and Illinois is a destination site.
De La Rosa had a spare tire in the bed of his pickup truck, which White found “interesting” because it was not in a storage area under the bed of the truck, and sometimes contraband is transported in a spare tire.
De La Rosa stated that he was unemployed and had earned money for his trip by working odd jobs, which to White “sounded like a cover story.”
De La Rosa’s demeanor was “extremely laid back and relaxed,” to the point that Trooper White felt like De La Rosa was being deceptive or “stand offish.” According to White, people that he contacts are usually conversational during the stop, but De La Rosa was “closed off’ and non-conversational.

After carefully assessing each of these factors at length, the court concluded that “the circumstances identified here, whether viewed individually or in combination, do not generate reasonable suspicion for De La Rosa’s continued detention.” The court denied Trooper White qualified immunity because two Eighth Circuit decisions, United States v. Jones, 269 F.3d 919 (8th Cir. 2001) and United States v. Beck, 140 F.3d 1129 (8th Cir. 1998), while not “factually identical,” are “sufficiently on point to have placed that constitutional question ‘beyond debate’ for purposes of qualified immunity.” Focusing exclusively on whether Trooper White violated clearly established law in concluding that he had reasonable suspicion to detain De La Rosa until the drug dog arrived, we disagree.

III.

To be clearly established for qualified immunity purposes, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). “A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right. We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate. Put simply, qualified immunity protects all but the plainly incompetent or those who knowingly violate the law.” Mullenix v. Luna, — U.S. -, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (citations and quotations omitted). Absent a case that is controlling authority in our jurisdiction, we look for “a robust consensus of cases of persuasive authority.” Ashcroft v. al-Kidd, 563 U.S. 731, 742, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (quotation omitted).

In the Fourth Amendment context, the Supreme Court has “recognized that it is inevitable that law enforcement officials will in some cases reasonably but mistakenly conclude that probable cause is present, and [has] indicated that in such cases those officials ... should not be held personally hable.” Anderson, 483 U.S. at 641, 107 S.Ct. 3034. Some years later, the Court further explained: “Officers can have reasonable, but mistaken, beliefs as to the facts establishing the existence of probable cause or exigent circumstances .... Yet, even if a court were to hold that the officer violated the Fourth Amendment by conducting an unreasonable, warrantless search, Anderson still operates to grant officers immunity for reasonable mistakes as to the legality of their actions.” Saucier v. Katz, 533 U.S. 194, 206, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). The same analysis applies when, as in this case, the Fourth Amendment issue is whether an officer had reasonable suspicion justifying a warrantless investigative detention, rather than probable cause to arrest or search. Thus, Trooper White is entitled to qualified immunity if a reasonable officer could have believed that he had a reasonable suspicion; in other words, if he had arguable reasonable suspicion. See New, 787 F.3d at 899 (applying “arguable probable cause” standard in qualified immunity case); Jackson v. Sauls, 206 F.3d 1156, 1166 (11th Cir. 2000).

In this case, we find no controlling Eighth Circuit authority placing the question beyond debate, nor a “robust consensus of eases of persuasive authority.” More recent Eighth Circuit decisions have distinguished Jones and Beck, the cases on which the district court primarily relied, in finding no Fourth Amendment violations, let alone violations of clearly established Fourth Amendment law. See United States v. Riley, 684 F.3d 758, 764 (8th Cir.), cert. denied, — U.S. —, 133 S.Ct. 800, 184 L.Ed.2d 591 (2012) (distinguishing Jones and Beck); United States v. Fuse, 391 F.3d 924, 929-30 (8th Cir. 2004), cert. denied, 544 U.S. 990, 125 S.Ct. 1879, 161 L.Ed.2d 752 (2005) (distinguishing Beck). Rather than “a robust consensus of cases of persuasive authority” favoring the district court’s resolution of this difficult issue, our prior cases have found reasonable suspicion upholding the extension of traffic stops by officers relying on similar facts:

—In Riley, 684 F.3d at 764, we concluded that a Missouri trooper acquired reasonable suspicion to extend a traffic stop pending arrival of a drug dog based on the traveler’s undue nervousness, “difficulty in answering basic questions about his itinerary,” and “failure to be forthright about his criminal history relating to drugs.”

—In United States v. Lyons, 486 F.3d 367, 372 (8th Cir. 2007), we concluded that “an experienced [Nebraska trooper] trained in highway drag interdiction” ae-quired reasonable suspicion to summon a drug dog when she learned, during the traffic stop, of the traveler’s “unusual travel itinerary” between Phoenix and Chicago, the traveler gave “contradictory descriptions of the friends that he had just visited,” and the van contained a large amount of luggage for a short trip.

—In Fuse, 391 F.3d at 929, we concluded that a Kansas trooper acquired reasonable suspicion to summon a drag dog from a number of factors including the driver’s “unusual explanation for traveling to Kansas City,” and the travelers’ “continued, unusual nervousness” even after being told only a warning citation would be issued. See also United States v. Lebrun, 261 F.3d 731, 733-34 (8th Cir. 2001).

—In November 2009, after completing a traffic stop on 1-80, an experienced Nebraska trooper detained the traveler an additional twenty minutes to summon a drug dog. Though the dog alerted, no criminal charges were filed, and the motorist filed a 42 U.S.C. § 1983 damage action against the trooper and others. On March 9, 2012, the day after Trooper White stopped De La Rosa, a District of Nebraska district judge granted the trooper qualified immunity from the Fourth Amendment claim of extended detention, concluding the trooper had reasonable suspicion for further detention based on the officer’s training and experience, the motorist’s vague responses about his travel that “did not make sense,” and the officer’s perception that the motorist appeared “uncomfortable, stand-offish and would not maintain eye contact.” Barton v. Heineman, 2012 WL 786347, at *6 (D. Neb. March 9, 2012), summarily aff'd, No. 13-2010 (8th Cir. Aug. 22, 2013). Inexplicably, White cited this prior decision on appeal but not to the district court. While Barton is not controlling authority, its timing and substantial factual similarity are strong evidence that, at the time Trooper White made the decision to extend his detention of De La Rosa, “existing precedent [did not] place[ ] the ... constitutional question beyond debate.” Mullenix, 136 S.Ct. at 308 (quotation omitted).

In the district court, Trooper White pointed to objective, particular facts and explained why these facts led him to conclude he had reasonable suspicion to briefly extend De La Rosa’s detention to determine if a drug dog would alert to the exterior of a pickup truck traveling from Arizona to Illinois on Interstate 80. To be sure, on the merits, the existence of reasonable suspicion was a close question, because the facts on which Trooper White relied, taken together, did not raise as strong a suspicion of interstate drug trafficking as in prior cases such as Riley and Lebrun. But White relied on facts presenting substantial similarities with prior cases in which reasonable suspicion of drug trafficking was found and extension of a traffic stop was upheld.

In recent years, the Supreme Court has repeatedly reversed decisions denying qualified immunity where lower courts “misunderstood the ‘clearly established’ analysis.” White v. Pauly, — U.S. —, 137 S.Ct. 548, 552, 196 L.Ed.2d 463 (2017). To avoid qualified immunity, De La Rosa must show a “a robust consensus of cases of persuasive authority.” Here, there is no consensus to be found in the prior decisions that have resolved a fact-intensive Fourth Amendment issue under a governing standard that requires judges to “allow[] officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.” Arvizu, 534 U.S. at 273, 122 S.Ct. 744 (quotation omitted). Trooper White is therefore entitled to qualified immunity from De La Rosa’s damage claims.

The Memorandum and Order of the district court dated September 18, 2015, is reversed in part. The case is remanded with directions to enter summary judgment dismissing all claims against Trooper Mark White.

      . Trooper White averred that he did not notice that part of the report during the traffic stop. De La Rosa asserts that claim is "hard to believe and unsupported in the record” but does not argue this is a genuine issue of disputed material fact.

      . "[W]e have often held that nervousness and other ‘subjective perceptions’ are valid factors supporting reasonable suspicion.” United States v. Bloomfield, 40 F.3d 910, 919 n.10 (8th Cir. 1994) (en banc), cert. denied, 514 U.S. 1113, 115 S.Ct. 1970, 131 L.Ed.2d 859 (1995).


author: KELLY, Circuit Judge. ARNOLD, Circuit Judge, WOLLMAN, Circuit Judge,

text:
    UNITED STATES of America, Plaintiff-Appellee v. Gilberto Ray RAMOS, Defendant-Appellant
    No. 16-1306
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 19, 2016
    Filed: March 27, 2017

      Counsel who represented the appellant was Sammi Wilmoth of Fayetteville, AR.
    Counsel who represented the appellee was David A. Harris, AUSA, of Fort Smith, AR.
    Before WOLLMAN, ARNOLD, and KELLY, Circuit Judges.
   KELLY, Circuit Judge.

Gilberto Ray Ramos was convicted after trial of multiple drug offenses, as well as the offense of being a felon in possession of a firearm. He appeals those convictions, arguing that they were supported by insufficient evidence, that the district court erred in admitting an exhibit that included an Arkansas Parole Board Waiver of Revocation Hearing form he signed, and that his sentence is substantively unreasonable. We affirm in part and reverse in part.

I. Background

Law enforcement first became interested in Ramos during a wiretap investigation of another individual, Abraham Duran. One of the wiretap monitors, Gary Gregory, testified that he had monitored and translated three calls between Duran and another individual with a telephone number ending in 0679. During one of the calls, Duran asked the individual if he needed “more.” During another call, Duran told the individual to call him so Duran could “take [him] the other part.” Duran was eventually arrested for and convicted of distribution of methamphetamine, and, pursuant to a plea agreement, cooperated with law enforcement officers in their investigation.

Duran testified at trial that Ramos was the individual he had been speaking to in the three intercepted calls. Duran testified that the calls related to his agreement with Ramos to distribute methamphetamine. According to Duran, he supplied Ramos with methamphetamine at Ramos’ residence at the Brookhaven Apartments in Springdale, Arkansas. Duran also testified about a text message that law enforcement had retrieved from his phone. According to Duran, in the text message, Ramos was offering to sell him a .40 caliber firearm.

Detective Preston Oswalt testified that he arranged for a confidential informant, Armando Gonzales, to make controlled purchases of methamphetamine from Ramos. Based on information provided by Gonzales, Oswalt located an apartment that he believed was Ramos’ at the Brook-haven Apartments. According to Oswalt, Springdale water records listed Ramos as the occupant of the apartment. Gonzales made controlled purchases of methamphetamine at the apartment on three occasions. Each time, Gonzales purchased one gram of methamphetamine for $100. After the first purchase, Oswalt showed Gonzales a known photograph of Ramos, and Gonzales confirmed that Ramos had been the one to sell him the methamphetamine. Gonzales also testified at trial. According to Gonzales, he offered to work with the police in order to reduce his punishment for drug possession charges. Gonzales also identified Ramos in court as the man who sold him the methamphetamine.

Oswalt testified that on December 5, 2014, he and other police officers executed a search warrant at the apartment. Before they executed the warrant, officers saw a man and a woman approach the apartment and knock on the door. Another woman, later identified as Jasmyn Schmid, answered the door. Oswalt testified that in his understanding, Schmid was living at the apartment at the time. Schmid and the other two individuals left the residence together in a vehicle. Officers stopped the vehicle, and questioned and searched Schmid. They found a marijuana pipe, a methamphetamine pipe, a digital scale, and user amounts of marijuana and methamphetamine, and arrested her for drug possession. Then, officers searched the apartment. In the kitchen, they found a ledger, digital scale, baggies, and cash, as well as approximately two ounces of methamphetamine in Kool-Aid containers in the freezer. In one of the two bedrooms, they found a .45 caliber pistol under the mattress, next to a pink vibrator. The bedroom closet contained men’s and women’s clothing. The other bedroom’s closet also contained men’s clothing. On February 19, 2015, law enforcement located Ramos at his mother’s residence and arrested him. The officers searched the residence, and found a water bill for the Brookhaven apartment in Ramos’ name.

At the time he was arrested, Ramos was on parole for an Arkansas criminal conviction. Ramos’ parole officer Taylor Sevier testified at trial that he notified Ramos on February 28, 2015, that he was seeking to revoke Ramos’ release. He provided Ramos with a form titled Notice of Parole Violation Action (Notice Form), which listed the alleged violations.

Sevier testified that he informed Ramos he had a right to a revocation hearing. Instead, on March 10, 2015, Ramos signed a form titled Arkansas Parole Board Waiver of Revocation Hearing (Waiver Form), in which he waived his right to a hearing and admitted to the alleged violations. The Waiver Form states, in part, “I admit that I have violated the following condition(s) of release as alleged[.]” Underneath, boxes labeled “#4 Laws” and “#5 Weapons” are marked. At the bottom of the form are the dated signatures of Ramos, Sevier, and a hearing judge. The Notice Form previously provided to Ramos includes more detail regarding his alleged violation of the “#4 Laws” release condition:

#4 Laws: Count 1) Over the last four months Ramos committed the offense of Possession of a Controlled Substance with Purpose Schedule II (Methamphetamine). Count 2) Over the last four months Ramos committed the offense of Simultaneous Possession of Drugs and Firearms. Count 3) Over the last four months Ramos committed the offense of Possession of Drug Paraphernalia. Count 4) Over the last four months Ramos committed the offense of Possession of a Controlled Substance Schedule VI. Count 5) Over the last four months Ramos committed the offense of Possession of a Controlled Substance Schedule II (Acetaminophen/Hydrocodone). Count 6) Over the last four months Ramos committed the offense of Delivery of a Controlled Substance Schedule II (Methamphetamine). Count 7) Over the last four months Ramos committed the offense of Delivery of a Controlled Substance Schedule II (Methamphetamine). Count 8) Over the last four months Ramos committed the offense of Delivery of a Controlled Substance Schedule II (Methamphetamine). Count 9) Over the last four months Ramos committed the offense of Theft by Receiving. Count 10) Over the last four months Ramos committed the offense of Possession of a Firearm by Certain Person.

The government offered the Waiver Form and Notice Form into evidence as a single exhibit, Exhibit 37. Ramos objected under Rule 403 of the Federal Rules of Evidence. The district court overruled the objection, and admitted the exhibit.

The jury ultimately convicted Ramos of one count of conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846; three counts of distribution of methamphetamine, in violation of 21 U.S.C. § 841(a)(1); one count of possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1); and one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The jury acquitted Ramos of one count of knowingly possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). The district court sentenced Ramos to 148 months for each of the drug offenses, and 120 months for the offense of being a felon in possession of a firearm, to run concurrently. Ramos timely appealed.

II. Discussion

Ramos appeals on the grounds that there was insufficient evidence to support his convictions, that the district court erred in admitting Exhibit'37, and that his sentence was substantively unreasonable.

A. Sufficiency of the Evidence

First, Ramos argues there was insufficient evidence to support his convictions. Ramos did not move for judgment of acquittal at the close of the government’s case — a failure that would ordinarily necessitate plain-error review. United States v. Calhoun, 721 F.3d 596, 600 (8th Cir. 2013). Here, however, the district court sua sponte considered the sufficiency of the evidence at the close of the evidence as if Ramos had moved for a judgment of acquittal, and ruled that it would deny such a motion. A basic reason for requiring litigants to preserve issues for appeal is to give the district court an opportunity to prevent or correct mistakes in the first instance. United States v. Simms, 757 F.3d 728, 733-34 (8th Cir. 2014). Here, the district court had that opportunity and took it when it considered the question as if Ramos had raised it. Even if Ramos technically forfeited, or even waived, his right to move for a judgment of acquittal, he did not forfeit or waive his right to appeal from the trial court’s sua sponte order holding that the evidence was sufficient to sustain a guilty verdict. At least one other circuit has, in a similar situation, reviewed the record de novo rather than for plain error. See United States v. Wolff, 370 Fed.Appx. 888, 891-92, 891 n.1 (10th Cir. 2010) (unpublished). Accordingly, we will “review the sufficiency of the evidence to sustain a conviction de novo, viewing the evidence in the light most favorable to the jury’s verdict and reversing the verdict only if no reasonable jury could have found the defendant guilty beyond a reasonable doubt.” United States v. Ways, 832 F.3d 887, 894 (8th Cir. 2016).

1. Drug convictions

Initially, Ramos argues there was insufficient evidence to support his convictions for distribution of methamphetamine, possession with intent to distribute methamphetamine, and conspiracy to distribute methamphetamine. He contends that Duran’s testimony was insufficient to establish a conspiracy, that insufficient evidence connects him to the apartment where the methamphetamine was found, and that Gonzales’ testimony was inconsistent and unreliable.

To prove that a defendant distributed methamphetamine in violation of 21 U.S.C. § 841(a)(1), the government is required to prove that the defendant distributed the methamphetamine, and that he knew it was a controlled substance at the time of distribution. See United States v. Hernandez, 569 F.3d 893, 896 (8th Cir. 2009). To establish that a defendant possessed methamphetamine with the intent to distribute it under 21 U.S.C. § 841(a)(1), “the government must prove that the defendant (1) knowingly possessed the methamphetamine; and (2) had intent to distribute it.” United States v. Trejo, 831 F.3d 1090, 1094 (8th Cir. 2016). And “[t]o establish that a defendant conspired to distribute drugs under 21 U.S.C. § 846, the government must prove: (1) that there was a conspiracy, i.e., an agreement to distribute the drugs; (2) that the defendant knew of the conspiracy; and (3) that the defendant intentionally joined the conspiracy.” United States v. Jiminez, 487 F.3d 1140, 1146 (8th Cir. 2007) (quoting United States v. Espino, 317 F.3d 788, 792 (8th Cir. 2003)).

First, Ramos argues that there was insufficient evidence to support his conviction for conspiracy to distribute methamphetamine, because the only evidence connecting him to the purported conspiracy was Duran’s testimony. According to Ramos, Duran’s testimony was insufficient for this purpose because it was conclusory and uncorroborated, and because Duran was promised a reduced sentence in exchange for testifying. But accomplice testimony need not be corroborated to support a conviction. See United States v. Fuller, 557 F.3d 859, 863 (8th Cir. 2009). Unless the testimony is implausible on its face, which Duran’s testimony was not, we defer to the jury’s determination of whether an accomplice is credible. Id.

Next, Ramos argues that there was insufficient evidence that he possessed or distributed methamphetamine. He contends that the government failed to prove he resided in the apartment where the methamphetamine was found, and that, in fact, Schmid was the person residing at the apartment. He points out that officers did not see him entering or leaving the apartment before executing the search warrant, and that Oswalt was unable to see who was selling methamphetamine to Gonzales during the controlled purchases. However, other evidence indicated that Ramos lived at the apartment: Water records listed him as the resident, Duran testified that Ramos lived there, Gonzales identified Ramos as the person who sold him methamphetamine at that apartment, and Sevier testified that Ramos gave him the address of the apartment as his residence. Given the evidence presented, we cannot say no reasonable jury could find that Ramos possessed and distributed methamphetamine.

Finally, Ramos argues that Gonzales’ testimony was unreliable, because Gonzales testified that the first time he made a controlled purchase from Ramos, Ramos was already at the apartment when he arrived. This was inconsistent with Os-walt’s testimony that the man who sold methamphetamine to Gonzales that day met him at the apartment on a motorcycle. When cross-examined, Gonzales testified that he might be remembering events incorrectly, and admitted that it was possible he did not remember who he bought drugs from that day. But it is within the province of the jury to resolve conflicting testimony and make credibility determinations, and we will not disturb those findings on appeal. United States v. Coleman, 525 F.3d 665, 666 (8th Cir. 2008). In sum, we conclude that Ramos’ drug convictions were supported by sufficient evidence, and the district court did not err by not entering a judgment of acquittal.

2. Felon in possession of a firearm conviction

Ramos additionally argues that there was insufficient evidence to support his conviction for being a felon in possession of a firearm, because the gun was found under a mattress next to a pink vibrator, and there was women’s clothing in the closet of the bedroom where it was found. Furthermore, Ramos notes, although Duran testified that Ramos tried to sell him a .40 caliber gun, the gun found in the bedroom was a .45 caliber, and neither Oswalt nor Duran ever saw Ramos with a firearm.

A conviction for being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1) may be .based on constructive possession. United States v. Boykin, 986 F.2d 270, 274 (8th Cir. 1993). “[Constructive possession requires both knowledge that the contraband is present and dominion over the premises where the contraband is located.” Ways, 832 F.3d at 897. Some of our cases have concluded that dominion oyer the premises can be sufficient by itself to prove constructive possession, because dominion may “give[ ] rise to a strong inference of knowledge.” United States v. Dooley, 580 F.3d 682, 686 (8th Cir. 2009) (explaining why some cases appear to elide the distinction between knowledge and dominion). But such an inference is not warranted under the facts of every case. See id. (“[T]his inference may be rebutted if other evidence contradicts it.”). Thus, mere dominion is not always sufficient to establish constructive possession. See, e.g., Ways, 832 F.3d at 897-88; United States v. Smith, 508 F.3d 861, 867 (8th Cir. 2007); United States v. Pace, 922 F.2d 451, 453 (8th Cir. 1990).

One context where mere dominion is insufficient to show that the defendant knowingly possessed a gun is in cases involving joint occupancy. We have explained that “when there is joint occupancy of a residence, dominion over the premises by itself is insufficient to establish constructive possession.” United States v. Wright, 739 F.3d 1160, 1168 (8th Cir. 2014). Rather, the government must provide additional evidence of a link between the contraband and the defendant. Id. Otherwise, a father could be imprisoned for marijuana that his son has hidden in the house, or a wife could be jailed for her husband’s secret cache of illegal guns. See id. at 1174 (Riley, C.J., concurring).

Here, because Ramos jointly occupied the apartment with Schmid, the government was required to provide some evidence linking him to the gun beyond his dominion over the apartment. The government points to evidence that the officers found some men’s clothes in the closet in the bedroom where the gun was found. But they also found women’s clothes in that closet and men’s clothes in the other bedroom’s closet. Further, the gun was found under the mattress next to a pink vibrator. It is unclear whether Ramos, though he lived at the apartment, exercised any control over the bedroom where the gun was found. On this evidence, it is more than possible that Ramos was convicted because Schmid had a weapon that Ramos did not know about. A reasonable jury could not conclude beyond a reasonable doubt to the contrary.

We acknowledge the government presented evidence that Ramos tried to sell a different gun to Duran and admitted in the Waiver Form that he violated a condition of parole involving “Weapons.” But neither of these facts ties Ramos to the particular gun that he was charged with possessing. Although this evidence may demonstrate that Ramos had access to a gun, as the government argues, it does not mean that he had access to this gun or that he even knew about it. And though the firearm likely belonged to either Ramos or Schmid or both, “a conscientious mind would have to have entertained a reasonable doubt” about whether Ramos constructively possessed it. See United States v. Hall, 999 F.2d 1298, 1299 (8th Cir. 1993). Because insufficient evidence supported Ramos’ conviction for being a felon in possession of a firearm, we reverse the judgment as to that conviction.

B. Admission of Exhibit 37

Ramos also argues that the district court abused its discretion in overruling his Rule 403 objection and admitting Exhibit 37 into evidence. Ramos argues that the exhibit was more prejudicial than probative because he may not have been aware that his admissions on the Waiver Form could be used against him in a federal prosecution, because he signed the form •without benefit of counsel, because he was not under oath when he signed the form, because he signed the form to avoid the risk of receiving a longer revocation, and because a parolee is entitled only to limited due process rights at a parole revocation hearing.

Evidence may be excluded under Rule 403 of the Federal Rules of Evidence “if its probative value is substantially outweighed by a danger of ... unfair prejudice, confusing the issues, [or] misleading the jury.” Fed. R. Evid. 403. “Evidence is not unfairly prejudicial because it tends to prove guilt, but because it tends to encourage the jury to find guilt from improper reasoning. Whether there was unfair prejudice depends on whether there was an ‘undue tendency to suggest decision on an improper basis.’ ” United States v. Looking Cloud, 419 F.3d 781, 785 (8th Cir. 2005) (quoting United States v. Sills, 120 F.3d 917, 920 (8th Cir. 1997)). A district court’s decision to admit evidence is reviewed for abuse of discretion. United States v. Farrington, 499 F.3d 854, 859 (8th Cir. 2007). For a Rule 403 challenge, “great deference is given [to] the district court’s balancing of the probative value and prejudicial impact of the evidence.” Id. (alteration in original) (quoting United States v. Ruiz, 412 F.3d 871, 881 (8th Cir. 2005)). Recognizing the deference owed the district court in resolving evidentiary-issues such as this one, we nevertheless conclude that Exhibit 37 was improperly admitted.

To begin with, we note that although a defendant’s admissions are usually considered highly probative, the probative value of the admissions here is diminished because of the context in which they were made. First, because Ramos made the admissions during parole revocation proceedings, he was not entitled to “the full panoply of rights applicable to a criminal trial.” Morrissey v. Brewer, 408 U.S. 471, 499, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Thus, as Sevier testified, Ramos did not have an attorney present, and was not under oath, when he signed the Waiver Form. Additionally, the requirements of Rule 11 of the Federal Rules of Criminal Procedure— which are intended to ensure that a plea is knowing and voluntary — do not apply to a parolee’s admissions to parole violations. United States v. Rapert, 813 F.2d 182, 185 (8th Cir. 1987). Furthermore, Sevier testified that signing the Waiver Form automatically revoked Ramos’ release for six months. According to Sevier, if Ramos had chosen to attend a revocation hearing instead of signing the Waiver Form, the hearing examiner could have revoked his release for up to a year. And if Ramos had chosen to proceed to a revocation hearing, the alleged violations would have had to be proven by only a preponderance of the evidence, Ark. Code Ann. § 16-93-705(a)(6), the rules of evidence would not have strictly applied, Lemons v. Arkansas, 310 Ark. 381, 836 S.W.2d 861, 863 (1992), the Fourth Amendment exclusionary rule would not have strictly applied, Dabney v. Arkansas, 278 Ark. 375, 646 S.W.2d 4, 5 (1983), his right to cross-examine and confront adverse witnesses could have been limited by the hearing examiner, Ark. Code Ann. § 16-93-705(d)(l), and he would have had no right to a jury, see Ark. Code Ann. § 16-93-705(a)(6). Under these circumstances, there was a substantial likelihood that Ramos could have chosen not to contest the alleged violations, and waived his right to a hearing, for a number of reasons other than factual guilt, thus limiting Exhibit 37’s probative value.

Even more important in this case, however, is that any probative value the exhibit had was substantially outweighed by the risk of unfair prejudice to Ramos. First, the Waiver Form bears an official seal, legal terminology, and multiple signatures, including the signature of a hearing judge. These features lend the Waiver Form “the imprimatur of the judicial system and indi-cia of official reliability,” creating a strong possibility that the jury would give it more weight than it deserved. United States v. McCallum, 584 F.3d 471, 476 (2d Cir. 2009) (discussing the prejudicial impact of evidence of prior convictions under the Rule 403 balancing test); cf. Carter v. Burch, 34 F.3d 257, 265 (4th Cir. 1994) (concluding that a judge’s findings in a different proceeding should be excluded under Rule 403 because it is likely a jury would “placet ] undue weight on such evidence”). Additionally, the conduct Ramos admitted to is not necessarily the same as the conduct that forms the basis for the present federal charges. On the Waiver Form, Ramos admitted generally to violating “#4 Laws” and “#5 Weapons.” But the Notice Form alleged ten separate parole violations, some of which have potential relevance to the federal charges, and some of which appear unrelated. It is not clear exactly which of the alleged violations Ramos was admitting to: It could have been one, some or all of them. See United States v. Hines, No. 1:12-cr-204-JAW, 2013 WL 1668232, at *7 (D. Me. Apr. 17, 2013). Thus, not only was the jury likely to give Exhibit 37 undue weight, allowing it into evidence was also likely to confuse the issues and mislead the jury into basing its decision on an irrelevant, or even nonexistent, admission.

We must now consider whether the error in admitting Exhibit 37 requires reversal. We will not reverse an erroneous evidentiary ruling if the error was harmless. United States v. McPike, 512 F.3d 1052, 1055 (8th Cir. 2008). “An evidentiary error is harmless when, ‘after reviewing the entire record, we determine that the substantial rights of the defendant were unaffected, and that the error did not influence or had only a slight influence on the verdict.’ ” Id. (quoting United States v. Lewis, 483 F.3d 871, 875 (8th Cir. 2007)). Because we have already determined that Ramos’ firearm conviction was not supported by sufficient evidence (even with Exhibit 37) we consider only whether the admission of Exhibit 37 was harmless error as to Ramos’ drug convictions.

The government’s evidence here included Duran’s testimony that he agreed to provide Ramos with methamphetamine to distribute; Gonzales’ testimony that he bought methamphetamine from Ramos, whom he identified by photograph after making the first purchase, as well as in court; and Oswalt’s testimony that methamphetamine was found in Ramos’ apartment. Their testimony was corroborated by the telephone calls intercepted on the wiretap; water records that listed Ramos as a resident of the apartment; and the fact that, consistent with Gonzales’ account of events, the methamphetamine was found in Kool-Aid containers. In light of this overwhelming evidence, we conclude that the erroneous admission of Exhibit 37 was harmless with respect to Ramos’ drug convictions.

C. Sentencing

Finally, Ramos challenges his sentence on the grounds that it is substantively unreasonable because it is greater than necessary to serve the purposes of punishment outlined in 18 U.S.C. § 3553(a). However, it is unnecessary to reach this issue, because we find that Ramos’ drug convictions should be remanded for resentencing. “Where we reverse one of several of a defendant’s criminal convictions, we remand for resentencing if ‘we are uncertain whether [the district court] would have imposed the same or somewhat lesser sentences for the remaining convictions as it did originally.’” United States v. Thompson, 690 F.3d 977, 996 (8th Cir. 2012) (alteration in original) (quoting United States v. Schwartz, 924 F.2d 410, 426 (2d Cir. 1991)).

Here, the district court applied a two-level enhancement to its calculation of Ramos’ offense level for his drug convictions on the grounds that he possessed a dangerous weapon, pursuant to United States Sentencing Guidelines § 2Dl.l(b)(l). Because we have reversed Ramos’ conviction for being a felon in possession of a firearm, it is uncertain whether the district court would impose the same sentence for the drug convictions as it did originally. See United States v. Burrage, 747 F.3d 995, 998 (8th Cir. 2014). Accordingly, we will remand Ramos’ drug convictions to the district court for resentencing.

III. Conclusion

As to Ramos’ conviction for being a felon in possession of a firearm, the judgment of the district court is reversed and remanded with directions to enter a judgment of acquittal. Ramos’ remaining convictions are remanded to the district court for re-sentencing on the existing record.

ARNOLD, Circuit Judge,

concurring.

I concur in the result in this case. I would not reach the question of whether the district court erred in admitting Ramos’s admission because I agree that any error in doing so was harmless. The conclusion that there was error is therefore dictum. See United States v. Monaco, 735 F.2d 1173, 1178 (9th Cir. 1984) (Duniway, J., concurring and dissenting); Pierre N. Leval, Judging Under the Constitution: Dicta About Dicta, 81 N.Y.U. L. Rev. 1249, 1268 (2006).

WOLLMAN, Circuit Judge,

concurring and dissenting.

I concur in the holding that the evidence was sufficient to support Ramos’ conviction on the drug charges.

I dissent from the reversal of Ramos’ conviction on the felon in possession charge. In contrast to the situation in United States v. Dooley, Ramos does not challenge the adequacy or accuracy of the district court’s instructions regarding the elements of knowing possession of the firearm. He does not, and indeed could not, argue that he had no possessory interest in the premises at which the gun was found, and so we are not presented with the specter of possible inadvertent possession, as in Dooley. Nor need we concern ourselves with fathers being imprisoned for the marijuana hidden by their wayward sons, nor with wives being jailed for their husbands’ secret caches of illegal guns, the worst-case scenarios suggested by the concurring opinion in United States v. Wright.

True enough, the .40 caliber gun that Ramos offered to sell to his drug supplier was not the .45 caliber gun found at his apartment, but that offer, when coupled with what I consider to be the properly admitted evidence of his parole revocation waiver admissions concerning firearms possession, cuts mightily against the argument that he did not knowingly possess the .45 caliber gun. Unlike the situation in United States v. Hall, I disagree with the conclusion that there was no evidence from which a reasonable mind could find guilt beyond a reasonable doubt on the weapons charge. While acknowledging the factual differences that existed in United States v. Butler, 594 F.3d 955 (8th Cir. 2010), I would follow the holding in that case and affirm the conviction on the weapons charge.

      . Taylor Sevier's name was Taylor Pennington at the time of the parole revocation proceedings.

      . As explained in Part B, the Waiver Form was improperly admitted. However, we consider both properly admitted evidence and improperly admitted evidence in determining whether sufficient evidence supports a conviction. Lockhart v. Nelson, 488 U.S. 33, 41, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988).