author: GRABER, Circuit Judge: GRABER, Circuit Judge, TASHIMA, Circuit Judge,

text:
    UNITED STATES of America, Plaintiff-Appellee, v. YIJUN ZHOU, Defendant-Appellant.
    No. 14-50288
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted April 6, 2016 Pasadena, California
    Filed September 27, 2016

      Jonathan D. Libby (argued), Deputy Federal Public Defender; Hilary L. Po-tashner, Federal Public Defender; Federal Public Defender’s Office, Los Angeles, California; for Defendant-Appellant.
    Jean-Claude Andre (argued), Assistant United States Attorneys; Robert E. Dug-dale, Chief, Criminal Division; United States Attorney’s Office, Los Angeles, California; for Plaintiff-Appellee.
    Before: A. WALLACE TASHIMA, BARRY G. SILVERMAN, and SUSAN P. GRABER, Circuit Judges.
   OPINION

GRABER, Circuit Judge:

Defendant Yijun Zhou used fraudulent credit cards at a Target store in Colorado arid at Nordstrom stores in California to buy items worth almost $150,000. The government indicted him on one count of unauthorized use of access devices. Defendant pleaded guilty to that count. At the plea colloquy, the government stated that it would prove the fraudulent Nordstrom charges at trial but did not mention the Target charges. At sentencing, the district court imposed restitution .under the Mandatory Victims Restitution Act of 1996 (“MVRA”), without objection, for both the Nordstrom charges and the Target charges. Defendant timely appeals, arguing for the first time on appeal that the district court improperly ordered restitution with respect to the Target charges. We hold that the district court did not plainly err in imposing restitution and, therefore, affirm.

FACTUAL AND PROCEDURAL HISTORY

Defendant was indicted on one count of unauthorized use of access devices, and aiding and abetting others to do so, in violation of 18 U.S.C. §§ 2(a) and 1029(a)(2). The indictment charged:

Beginning ... no earlier than on or about March 13, 2011, and continuing through on or about December 17, 2011, in Los Angeles and Orange Counties, within the Central District of California, and elsewhere, defendant Yijun Zhou, together with others ..., aiding and abetting one another, ... knowingly and with intent to defraud used unauthorized access devices, .., specifically, credit cards, ,.. and by such conduct ■ obtained things of value ... together totaling $1,000 or more.

After Defendant pleaded guilty without the benefit of a plea agreement, the government stated that it would prove at trial that Defendant used fraudulent credit cards to make purchases at Nordstrom stores in California. Defendant understood those allegations and agreed that they were true. He also answered “Yes” to the question: “Are you pleading guilty because you did the things charged in Count [One] of the indictment?” The court also advised Defendant, that the amount , of restitution could be as high as $160,000.

The probation office prepared a presen-tence report and' an accompanying letter recommending a Guidelines range* of 30 to 37 months, a sentence of 37 months’ imprisonment, and restitution of $146,725.02, payable in varying amounts to 30 identified victims. The restitution amount, and the identified victims, concerned two'different sets of events. About half of the restitution amount stemmed from Defendant’s fraudulent credit card purchases at Nordstrom stores in California. The remainder related to Defendant’s fraudulent credit card purchases at a Target store in Colorado. Both in their written memoranda and in their oral presentations at the sentencing hearing, the parties disputed the calculation of the Guidelines range and the appropriate term of imprisonment, but neither party challenged the award of restitution.

At sentencing, the district court ruled in Defendant’s favor on one of the disputed issues and ruled in the government’s favor on the other disputed issue. The court calculated the Guidelines range to be 24 to 30 months, and it imposed a sentence of 30 months’ imprisonment. The court also ordered Defendant to pay $146,725.02 in restitution, in accordance with the list created by the probation office, which included the victims of both the Nordstrom and Target purchases.

Defendant timely appeals, challenging only the restitution order. He argues that the district court erred by awarding restitution to persons who were not victims of the offense of conviction, because the offense of conviction covered only the Nord-strom charges and the MVRA authorizes restitution only to victims of the offense. Defendant acknowledges, as he must, that he did not raise that argument (or any argument concerning restitution) to the district court.

STANDARD OF REVIEW

Because Defendant did not raise the issue before the district court, we review for plain error. The ordinary rule in criminal cases—established by Federal Rule of Criminal Procedure 52(b) and by Supreme Court precedent—is that “plain error” review applies to arguments raised for the first time on appeal. See Fed. R. Crim. P. 52(b) (“A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.”); United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Time and again, we have reviewed challenges to restitution orders—made for the first time on appeal—for plain error. See, e.g., United States v. Rizk, 660 F.3d 1125, 1136 (9th Cir. 2011) (reviewing for plain error-a dispute about the propriety of restitution); United States v. Fu Sheng Kuo, 620 F.3d 1158, 1162 (9th Cir. 2010) (“[W]e review only for plain error when the defendant failed to object to the [restitution order] in the district court.”). Indeed, in United States v. Bright, 353 F.3d 1114, 1120 (9th Cir. 2004), the defendant raised the same argument that Defendant makes here—that “the amount of restitution imposed was excessive because the court was authorized to order restitution only for the counts of conviction”—and we held that the defendant “did not challenge the amount of the restitution order before the district court, so we review [the] claim for plain error.” See also United States v. Weinstein, 834 F.2d 1454, 1456 (9th Cir. 1988) (reviewing for “plain error” whether the restitution amount “exceeds the actual damages or loss occasioned by the offense of which [the defendant] was convicted”). As a three-judge panel", we must apply the same standard of review—plain error. See Miller v. Gammie, 335 F.3d 889, 899-900 (9th Cir. 2003) (en banc).

The government points to a subset of our cases where we have “decline[d] to consider” an argument that hinged on an unresolved factual issue. E.g., United States v. Napier, 463 F.3d 1040, 1045-46 (9th Cir. 2006). The better reading of those cases is not as an exception to the “plain error” standard, but as an application of the “plain error” standard. At a minimum, an error that hinges on a factual dispute is not “obvious” as required by the “plain error” standard. See, e.g., United States v. Scrivner, 114 F.3d 964, 968 (9th Cir. 1997) (“[F]actual disputes do not rise to the level of plain error.” (internal quotation marks omitted)). Accordingly, by the time we determine that an issue hinges on a factual dispute, we have concluded that any error is not “plain.” Whether we “decline[d] to consider” an argument that hinges on a factual dispute or simply hold that any error is not plain, the result—affirming the district court’s decision—is the same. We clarify that, if the government thinks that a newly raised issue hinges on an unresolved factual dispute, the proper heading for that argument is under the “plain error” standard. Although we occasionally used the “decline to consider” formulation in some older cases, that formulation is best understood as an application of the “plain error” standard.

For his part, Defendant points to cases that, he contends, applied “de novo” review and rejected the application of “plain error” review. Defendant’s argument fails at the outset. In the two cases cited by Defendant where we applied “de novo” review, United States v. Yeung, 672 F.3d 594 (9th Cir. 2012); United States v. Reed, 80 F.3d 1419 (9th Cir. 1996), the government did not request that we apply “plain error” review, so we had no occasion to consider the issue. Accordingly, those cases do not—and as three-judge decisions could not—overrule the earlier authority, such as Weinstein, requiring that we apply “plain error” review to non-jurisdictional arguments raised for the first time on appeal. Miller, 335 F.3d at 899-900.

In one line of cases, we have held that “we are not limited to [the plain-error] standard of review where the appeal presents a pure question of law and there is no prejudice to the opposing party,” United States v. Gonzalez-Aparicio, 663 F.3d 419, 426 (9th Cir. 2011). In those circumstances, “we possess the discretion to refrain from applying the default plain error standard of review.” Id. Here, Defendant’s argument requires that we apply the legal standard in the MVRA'to the particular factual details in the record— the indictment, the plea colloquy transcript, the presentence report, and the sentencing transcript. In these circumstances, the issue is best characterized as a “mixed, question of law and fact,” not a “pure question of law.” See, e.g., TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 450, 96 S.Ct., 2126, 48 L.Ed.2d 757 (1976) (describing a “mixed question of law and fact” as “the application of a legal standard to a particular set of facts”). To the extent that we have discretion to apply a different standard of review, we decline to exercise it here. Gonzalez-Aparicio, 663 F.3d at 426-27. We see no compelling reason to depart from our established case law applying “plain error” review to the same type of argument raised. by Defendant here.

MERITS

“Plain error is (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, we may then exercise our discretion to notice a forfeited error, but only if (4) the error seriously affects the, fairness, integrity, or public reputation of judicial proceedings.” United States v. Myers, 804 F.3d 1246, 1257 (9th Cir. 2015) (alterations and internal quotation marks omitted), cert. denied, — U.S. -, 136 S.Ct. 1393, 194 L.Ed.2d 372 (2016). Here, any error is not plain, so the second criterion is not satisfied.

Thé MVRA provides that, in cases involving certain crimes (including unauthorized use of access devices), “the court shall order ,.. that the defendant make restitution to the victim of the offense.” 18 U.S.C. § 3663A(a)(l). The statute defines the term “victim” as

a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered including, in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant’s criminal conduct in the course of the scheme, conspiracy, or pattern.

Id. § 3663A(a)(2).

This is not a “case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity.” Id. Title 18 U.S.C. § 1029(a)(2) provides that whoever “knowingly and with intent to defraud traffics in or uses one or more unauthorized access devices during any one-year period, and by such conduct obtains anything of value aggregating $1,000 or more during that period ... shall, if the offense affects interstate or foreign commerce, be punished.” That statute does not have “as an element a scheme, conspiracy, or pattern of criminal activity.” Id. § 3663A(a)(2); see United States v. Gordon, 480 F.3d 1205, 1211 (10th Cir. 2007) (holding that § 1029(a)(2) does not contain as an element a scheme, conspiracy, or pattern of criminal activity); accord United States v. Acosta, 303 F.3d 78, 87 (1st Cir. 2002); United States v. Blake, 81 F.3d 498, 506 (4th Cir. 1996). Accordingly, the only issue is whether the Target victims were persons “directly and proximately harmed as a result of the commission of’ Defendant’s crimes of conviction. 18 U.S.C. § 3663A(a)(2).

We have interpreted that statutory-text to mean that “a court may award restitution under the MVRA only for loss that flows directly from the specific conduct that is the basis of the offense of conviction. Thus, a court is authorized to order restitution for the offense of conviction and not for other related offenses of which the defendant was not convicted.” May, 706 F.3d at 1214 (citations, internal quotation marks, and footnote omitted). In addition, the statute requires the court to award restitution in full for each victim of the offense. 18 U.S.C. § 3664(f)(1)(A). The parties dispute whether it was plain error to order restitution to the victims of the Target charges.

Defendant correctly points out that, at the plea colloquy, the government asserted that it would prove (and Defendant admitted) factual allegations concerning Nordstrom only; the Target transactions were not mentioned. Defendant cogently contends that everyone implicitly understood that only the Nord-strom charges constituted the offense of conviction. But the government correctly points out that Defendant pleaded guilty to Count One of the indictment and that its text is broad enough to cover both the Nordstrom charges and the Target charges.

The count charged Defendant with fraudulent credit card use “in Los Ange-les and Orange Counties, within the Central District of California, and elsewhere,” (emphasis added), which includes Colorado, the site of the Target charges. Similarly, the count charged Defendant with fraudulent credit card use “no earlier than on or about March 13, 2011, and continuing through on or about December 17, 2011.” Although there is some evidence to the contrary, much evidence.in the record would support a finding that the Target charges occurred in July 2011. For example, the presentence report itemized the Target charges and noted that they occurred “in July 2011.” On plain-error review, the burden is on Defendant to demonstrate error. To the extent that the record .is unclear as to the date of the transactions, the fault rests with Defendant for failing to object before the district court in order to make a more complete record. Accordingly, we conclude that, for purposes of plain-error review, the Target charges occurred in July 2011—within the indictment period.

Defendant did not plead guilty only to the . Nordstrom allegations—he pleaded guilty to Count One of the indictment. “A guilty plea conclusively admits all factual allegations of the indictment....” United States v. Kubick, 205 F.3d 1117, 1129-30 (9th Cir. 1999) (internal quotation marks omitted). The fraudulent Target charges fit within the scope of that count, and Defendant does not contest that he actually engaged in criminal conduct at the Target store in Colorado that meets the terms of the indictment. Especially given “the MVRA’s broad remedial purpose,” United States v. Eyraud, 809 F.3d 462, 468 (9th Cir. 2015), Congress likely intended restitution to all victims within the scope of an admitted crime, even if the parties focused primarily on one set of victims at the plea colloquy.

The Fourth Circuit’s decision in United States v. Bailey, 975 F.2d 1028, 1033-34 (4th Cir. 1992), - supports that conclusion. In that case, the defendant pleaded guilty to a count in the indictment of defrauding investors of more than $15 million. Id. at 1033. The court rejected his argument on appeal that restitution was proper only with respect to investors specifically named in the indictment. Id.The court reasoned that his “offense was defined broadly in the indictment,” he pleaded guilty to the broadly defined charge and, accordingly, restitution was appropriate for all investors within the indictment, not just those investors named specifically. Id. The same reasoning applies here: Defendant pleaded guilty to Count One of the indictment, and restitution is therefore appropriate for all victims of that count. See also United States v. Jackson, 982 F.2d 1279, 1283-84 (9th Cir. 1992) (holding that restitution is appropriate for all victims of the count of conviction, even though other counts, involving the same victims and the same loss, were dismissed).

Moreover, the “factual basis” requirement for the plea colloquy does not mandate that the government list all facts constituting the crime; the government merely must demonstrate that “there is sufficient evidence to support the conclusion that the defendant is guilty.” United States v. Covian-Sandoval, 462 F.3d 1090, 1093 (9th Cir. 2006) (internal quotation marks omitted). The purpose of the “factual basis” requirement is simply “to ensure that the defendant is not mistaken about whether the conduct he admits to satisfies the elements' of the offense charged.” United States v. Mancinas-Flores, 588 F.3d 677, 682 (9th Cir.- 2009). Because the Nordstrom charges indisputably were sufficient to establish a factual basis for Defendant’s crime, the government was not required to mention the Target charges at the plea colloquy.

But we need not and do not decide definitively whether the district court erred, because any error was not plain. We agree with the First Circuit’s treatment of this issue in Acosta. In that case, the defendant pleaded guilty to a one-count indictment for credit-card fraud during a 10-month period, in violation of § 1029(a)(2), the same statute at issue here. Acosta, 303 F.3d at 81. Before accepting the plea, the distinct court had suppressed evidence of some of the fraudulent transactions. Id. At sentencing, the district court ordered the defendant to pay restitution to all victims, including victims of the suppressed transactions. Id. at 82. The defendant did not object. Id. On appeal, the First Circuit held that “there was no plain error in the district court’s use of the suppressed evidence to calculate restitution.” Id. at 90. For the same reasons, we conclude that any error here was not plain.

AFFIRMED.

GRABER, Circuit Judge,

concurring:

I concur in full in the majority’s opinion. I write separately to question the validity of our case law with respect to the standard of review applicable to arguments raised for the first time on appeal by criminal defendants.

A federal court of appeals normally will not correct a legal error made in criminal trial court proceedings unless the defendant first brought the error to the trial court’s attention. See United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). But Federal Rule of Criminal Procedure 52(b), creating an exception to the normal rule, says that “[a] plain error that affects substantial rights may be considered even though it was not brought to the [trial] court’s attention.”

Henderson v. United States, — U.S. -, 133 S.Ct. 1121, 1124, 185 L.Ed.2d 85 (2013) (brackets in original) (emphasis omitted). Except in unusual circumstances, that is all there is to it: we must review new, unpreserved arguments for plain error. See, e.g., Molina-Martinez v. United States, — U.S. -, 136 S.Ct. 1338, 1343, 194 L.Ed.2d 444 (2016) (“[Because the defendant failed to object to the miscalculation [of the Guidelines range], appellate review of the error is governed by Federal Rule of Criminal Procedure 62(b).”); United States v. Dominguez Benitez, 542 U.S. 74, 76, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004) (“Because the claim of [Federal Rule of Criminal Procedure 11] error was not preserved by timely objection, the plain-error standard of Rule 52(b) applies....”).

An exception applies when the new issue concerns “a nonwaivable limit on federal courts’ subject-matter jurisdiction.” Musacchio v. United States, — U.S. -, 136 S.Ct. 709, 716, 193 L.Ed.2d 639 (2016); see United States v. Doe, 366 F.3d 1069, 1075-76 (9th Cir. 2004) (en banc) (describing the limited nature of this exception). But when the relevant statute “does not impose a jurisdictional limit, the failure to raise it at or before trial means that it is reviewable on appeal—if at all—only for plain error.” Musacchio, 136 S.Ct. at 718 (citing Fed. R. Crim, P. 52(b)); see also United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (“Freed from the view that indictment omissions deprive a court of jurisdiction, we proceed to apply the plain-error test of Federal Rule of Criminal Procedure 52(b) to respondents’ forfeited claim.”).

The Supreme Court has noted the possibility that Rule 52(b) may not apply if “some other provision authorizes the error’s correction.” Olano, 507 U.S. at 732, 113 S.Ct. 1770. But the Court has rejected attempts to read exceptions into Rule 52(b)’s “plain error” standard. See United States v. Vonn, 535 U.S. 55,122 S.Ct. 1043, 152 L.Ed.2d 90 (2002) (holding that Rule 11 does not create an exception to plain-error review); Jones v. United States, 527 U.S. 373, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999) (holding that the Federal Death Penalty Act of 1994 did not create an exception to plain-error review).

The Supreme Court has left very little room—if any at all—for the judicial creation of exceptions to Rule 52(b). The Court has “cautioned against any unwarranted expansion of Rule 52(b).” Johnson v. United States, 520 U.S. 461, 466, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). “Even less appropriate than an unwarranted expansion of the Rule would be the creation out of whole cloth of an exception to it, an exception which we have no authority to make.” Id.-, see also Puckett v. United States, 556 U.S. 129, 135-36, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (noting this principle).

Our own case law generally accords with the principles noted above: we review run-of-the-mill new, unpreserved arguments for plain error. But one persistent line of our cases allows a judicially created exception: “we are not limited to [the plain-error] standard of review where the appeal presents a pure question of law and there is no prejudice to the opposing party.” United States v. Gonzalez-Aparicio, 663 F.3d 419, 426 (9th Cir. 2011); accord United States v. Torres, 828 F.3d 1113, 1123 (9th Cir. 2016); United States v. Joseph, 716 F.3d 1273, 1276 n.4 (9th Cir. 2013); United States v. Evans-Martinez, 611 F.3d 635, 642 (9th Cir. 2010); United States v. Saavedra-Velazquez, 578 F.3d 1103, 1106 (9th Cir. 2009); United States v. Flores-Montano, 424 F.3d 1044, 1047 (9th Cir. 2005) (per curiam); United States v. Si, 343 F.3d 1116, 1128 n.2 (9th Cir. 2003); United States v. Echavarria-Escobar, 270 F.3d 1265, 1267-68 (9th Cir. 2001); United States v. Maldonado, 215 F.3d 1046, 1051 n.5 (9th Cir. 2000); United States v. Petty, 80 F.3d 1384, 1387 (9th Cir. 1996); United States v. Robertson, 52 F.3d 789, 791 (9th Cir. 1995); United States v. Bruce, 976 F.2d 552, 554-55 (9th Cir. 1992); United States v. Flores-Payon, 942 F.2d 556, 558 (9th Cir. 1991); United States v. Patrin, 575 F.2d 708, 712 (9th Cir. 1978). Our “pure question of law” exception contradicts Rule 52(b) and the Supreme Court’s case law. Usually questions of law are not jurisdictional, and certainly questions of law are not necessarily jurisdictional, so the exception for jurisdictional questions almost never applies. In my view, no legal source authorizes the exception.

We first announced our “pure question of law” exception in a criminal appeal in our 1978 decision in Patrin, 575 F.2d at 712, and we have perpetuated the rule ever since by citing Patrin or one of its progeny. Here’s how Patrin announced the rule:

As a general rule, “a federal appellate court does not consider an issue not passed upon below.” Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976)....
Our circuit has apparently recognized a ... narrow exception to the general rule. When the issue conceded or neglected in the trial court is purely one of law and either does not affect or rely upon the factual record developed by the parties, cf Golden Gate Bridge & Highway Dist. v. United States, 125 F.2d 872, 875 (9th Cir. 1942) (whether a contract is ambiguous will be considered by court of appeals although appellee had conceded the ambiguity below), or the pertinent record has been fully developed, see United States v. Merrill, 211 F.2d 297, 302-03 & n.4 (9th Cir. 1954), the court of appeals may consent to consider it. The evident principle underlying this exception is that the party against whom the issue is raised must not be prejudiced by it. Thus, if he might have tried his case differently either by developing new facts in response to or advancing distinct legal arguments against the issue, it should not be permitted to be raised for the first time on appeal.

Patrin, 575 F.2d at 712 (citations and footnote omitted). All three of the cited cases are civil cases, in which Federal Rule of Criminal Procedure 52(b) has no application. Cf. Shinseki v. Sanders, 556 U.S. 396, 410-11, 129 S.Ct. 1696, 173 L.Ed.2d 532 (2009) (distinguishing the harmless error rule in civil and administrative cases from the harmless error standard in criminal cases). Similarly, Patrin’s explanation following the citations makes sense in civil appeals, but it has no merit in criminal appeals, where Rule 52(b)’s contrary prescription applies. Given the Supreme Court’s statement that we have “no authority to make” “an exception” to Rule 52(b), Johnson, 520 U.S. at 466, 117 S.Ct. 1544, our importation of a civil standard into the criminal context cannot withstand scrutiny. Our “pure question of law” exception is incorrect.

I have not uncovered a single sister circuit that applies our “pure question of law” exception in criminal appeals. To the contrary, our sister circuits routinely review pure questions of law for plain error. See, e.g., United States v. Fuertes, 805 F.3d 485, 497 (4th Cir. 2015) (holding that the defendant’s claim “is a purely legal one” and that “his claim may be reviewed only for plain error”); United States v. Angel, 355 F.3d 462, 469 (6th Cir. 2004) (holding that the defendant raises a “pure question of law” and that, because it “is being raised for the first time on appeal, we will apply the ‘plain error’ standard of review”). The Fifth Circuit’s experience is telling. For a time, that court applied a version of our “pure question of law” exception. E.g., United States v. Bullard, 13 F.3d 154, 156 n.5 (5th Cir. 1994) (per cu-riam). Sitting en banc, the court overruled Bullard and other similar cases, and the court described the “plain error” standards pursuant to Olano's teachings. United States v. Calverley, 37 F.3d 160, 163-64 (5th Cir. 1994) (en banc), overruled in other part by Johnson, 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718.

In sum, our line of the cases permitting an exception for “pure questions of law” is contrary to Rule 52(b), Supreme Court precedent, and the practice of our sister circuits. Here, the standard of review may dictate the outcome. We ought to reconsider our errant line of cases en banc, either now or in a future appropriate case.

TASHIMA, Circuit Judge,

dissenting:

The majority holds that the district court did not plainly err in ordering restitution for the Colorado Target charges because “the text [of Count One] is broad enough to cover both the Nordstrom charges and the Target charges.” Maj. Op. at 1013. Because I disagree with the majority’s strained reading of the indictment—especially in light of the rest of the record—I respectfully dissent.

As the majority notes, the district court “may award restitution ... only for loss that flows directly from ‘the specific conduct that is the basis of the offense of conviction.’” United States v. May, 706 F.3d 1209, 1214 (9th Cir. 2013) (quoting United States v. Gamma Tech Indus., Inc., 265 F.3d 917, 927 (9th Cir. 2001)). “Thus, a court is authorized to order restitution ‘for the offense of conviction and not for other related offenses of which the defendant was not convicted.’.” Id. (quoting United States v. Batson, 608 F.3d 630, 636 (9th Cir. 2010)).

The issue in this case is what “specific conduct” formed “the basis of the offense of conviction.” To ascertain Zhou’s offense of conviction, the Court must look to Count One of the indictment, the charge to which Zhou pleaded guilty. See United States v. Kubick, 205 F.3d 1117, 1129-30 (9th Cir. 1999).

An indictment must meet the following requirements:

An indictment must provide the defendant with a description of the charges against him sufficient to (1) enable him to prepare his defense; (2) ensure him that he is being prosecuted on the basis of facts presented to the grand jury; (3) enable him to plead double jeopardy against a later prosecution; and (4) inform the court of the facts alleged so that it can determine the sufficiency of the charge.

United States v. Livingston, 725 F.3d 1141, 1145 (9th Cir. 2013) (quoting United States v. Bohonus, 628 F.2d 1167, 1173 (9th Cir. 1980)).

To support its position that the indictment included the Colorado Target charges, the majority relies entirely on only two words: that Count One of the indictment alleges that the fraud occurred in the Central District of California “and elsewhere” (emphasis added). This bare assertion cannot bear the weight the majority asks it to carry. If -“and elsewhere” were a catch-all encompassing literally every location where Zhou might have committed credit card fraud during the specified time period, it would be entirely unclear what conduct was encompassed by the charge. An indictment that referred, not to, specific fraudulent conduct, but to fraudulent conduct anywhere in the United States, would not meet Livingston’s requirements because it would not sufficiently limit the facts the government could adduce at trial to prove the charge. Cf. United States v. Doss, 630 F.3d 1181, 1191 (9th Cir. 2011) (noting that the indictment sufficiently identified the time and place of the conduct underlying the offense of conviction to give the defendant “notice of what evidence might be presented at trial”).

Further, as the majority acknowledges, the record shows that both the government and the district court understood that the offense of conviction included only the California Nordstrom charges. For example, during the plea colloquy, the government stated that it would be prepared to prove the fraudulent Nordstrom charges at trial, but did not mention the Target charges. The purpose of the government’s showing as to the factual basis for the plea “is to ensure that the defendant is not mistaken about whether the conduct he admits to satisfies the elements of the offense charged.” United States v. Mancinas-Flores, 588 F.3d 677, 682 (9th Cir. 2009). This purpose cannot be satisfied if the court never asks the defendant to confirm that the government’s allegations regarding his conduct are correct. In this case, the district court asked Zhou whether “everything” the government said about his conduct and intent was true and correct; but the government’s proffer referred only to the Nordstrom charges. Because the court never asked Zhou about his Colorado conduct, the Rule 11(b)(1) colloquy is not susceptible to the reading necessary to support the majority’s position that Zhou admitted to that conduct.

Additionally, the Presentence Investigation Report explicitly differentiates between the Nordstrom charges and the Target charges: It refers to the Nordstrom charges as “the transactions charged in the instant offense,” while it characterizes the Target charges as conduct “relevant ... to the instant conviction” (emphasis added). The government argued that Zhou should pay restitution for this “relevant” conduct, in addition to the Nordstrom charges, and the district court agreed.

Indeed, the district court understood that it was ordering restitution not only for the offense of conviction, but for all relevant conduct as well. The district court explicitly acknowledged that “[t]he amount of restitution is not limited to the amounts alleged in the count to which [Zhou pleaded] guilty and will include losses arising from the count dismissed as well as all relevant conduct in connection with those counts” (emphasis added). The court accordingly advised Zhou that the amount of restitution could be as high as $160,000. The district court’s statement of the law, and the corresponding restitution calculation, directly contravene our case law, which holds that a district court is not authorized to order restitution for conduct that is merely related to the offense of conviction, but is not an element of the offense. See May, 706 F.3d at 1215.

Both the text of the indictment and the record—including the plea colloquy and the Presentence Investigation Report— show that the Colorado Target charges did not form the basis of the offense of conviction. The district court thus plainly erred in ordering restitution for the losses attributable to relevant conduct, rather than the offense of conviction. See id. I thus would vacate the restitution order and remand with directions that the district court limit its restitution order to only the Nordstrom California charges, ie., the losses attributable to the offense of conviction.

I respectfully dissent.

      . Defendant also cites United States v. May, 706 F.3d 1209 (9th Cir. 2013). That case is inapposite. We never stated the applicable standard of review, and we concluded that “the district court plainly erred in ordering restitution for [a company’s] expenses.” Id. at 1215 (emphasis added). In short, if anything, May supports the conclusion that “plain error” review applies here.

      . As the Supreme Court recently reiterated, de novo review—and not “plain error” review—applies to “a nonwaivable limit on federal courts' subject-matter jurisdiction.” Mu-sacchio v. United States, — U.S. -, 136 S.Ct. 709, 716, 193 L.Ed.2d 639 (2016); see United States v. Pocklington, 792 F.3d 1036, 1039-40 (9th Cir. 2015) (applying the rule); United States v. Doe, 366 F.3d 1069, 1075-76 (9th Cir. 2004) (en banc) (same). But that exception has no application here because the district court clearly had subject matter jurisdiction to sentence Defendant and to impose restitution; Defendant challenges only the extent of restitution. See Doe, 366 F.3d at 1076-77 (describing the limited nature of this exception to plain-error review).

      . The statute also authorizes restitution to "persons other than the victim of the offense,” if the parties so agree in a plea agreement. 18 U.S.C. § 3663A(a)(3). Because there was no plea agreement here, that provision does not apply.

      . Defendant does not argue—and cannot argue—that he was misled during the plea colloquy as to the potential amount of restitution. As previously noted, the district court advised Defendant that restitution could be as high as $160,000. Instead, Defendant argues that the restitution exceeded the court's statutory authority.

      . Arguably, the question here is a question of law, United States v. Reed, 80 F.3d 1419, 1421 n.3 (9th Cir. 1996), instead of a mixed question of law and fact.

      . The MVRA also authorizes restitution to "any person directly harmed by the defendant’s criminal conduct in the course of [a] scheme, conspiracy, or pattern,” 18 U.S.C. § 3663A(a)(2); see United States v. Thomsen, 2016 WL 4039711, at 12 (9th Cir. Jul. 28, 2016), but that broadened scheme-or-conspiracy exception doesn’t apply here. The majority adopts the interpretation’from the Tenth, First, and Fourth Circuits that 18 U.S.C. § 1029(a)(2) does not "involved as .an element a scheme, conspiracy, or pattern of criminal activity." See Maj. Op. at 1012.

      . "To the extent that we refer here to facts contained exclusively in the presentence report, we pro tanto lift the order sealing that document.” United States v. Pimentel-Lopez, 828 F.3d 1173, 1178 n.3 (9th Cir, 2016).

      . Because the issue under review here "is best characterized as a ‘mixed question of law and fact,' not a ‘pure question of law,’ ” Maj. Op. at 1012 (citation omitted), I fail to see the need for or utility of the concurrence's extended discussion of our standard of review, in a plain error context, of a pure question of law. Moreover, while the concurrence asserts that "[h]ere, the standard of review may dictate the outcome,” Concur. Op. at 1017, it doesn’t explain how that can be when the issue we are reviewing is a mixed question of law and fact, not a pure question of law.


source: Caselaw Access Project

author: BYBEE, Circuit Judge:

license: Public Domain

text:
    Edward Terran FURNACE, Plaintiff-Appellant, v. G. GIURBINO; K. Berkler; R. S. Marquez; E. W. Fischer; M. Valdez, Institutional Gang Investigator at Salinas Valley State Prison; R. L. Martinez, Lt., Institutional Gang Investigator at Salinas Valley State Prison, Defendants-Appellees.
    No. 13-17620
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted December 9, 2015, San Francisco, California
    Filed September 29, 2016

      Rajeev Muttreja (argued), Jones Day New York, New York; Glen Nager, Jones Day, Washington, D.C.; for Plaintiff-Appellant.
    Jose A Zelidon-Zepeda (argued), Deputy Attorney General; Thomas S. Patterson, Supervising Deputy Attorney General; Jonathan L. Wolff, Senior Assistant Attorney General; Kamala D. Harris, Attorney General; Office of the Attorney General, San Francisco, California; for Defendant-Appellee.
    Before: ALEX KOZINSKI, JAY S. BYBEE, and MORGAN CHRISTEN, Circuit Judges,
   OPINION

BYBEE, Circuit Judge:

Edward Furnace is a prisoner at Salinas Valley State Prison. Furnace alleges the Appellees wrongfully classified him as a gang member in retaliation for filing a § 1983 suit against the defendants’ colleagues. After Furnace filed a habeas petition, California courts rejected his claims on the ground that there was sufficient evidence to support the gang validation. Furnace then filed the present action under 42 U.S.C. § 1983 for violation of his Fourteenth Amendment rights, based on violation of the First Amendment and the Equal Protection Clause. The district court dismissed his suit on claim preclusion grounds. We affirm.

I. FACTS AND PROCEEDINGS .BELOW

In 2006 Furnace filed a § 1983 suit against eleven Salinas Valley Prison officials (none of whom is involved in this suit) for allegedly denying him visitation rights and other privileges. These defendants filed a motion to dismiss in '2008, which was denied. Furnace alleges that shortly after that, R.L. Martinez and M. Valdez, gang investigators at Salinas Valley, were “ordered to validate [Furnace] as a prison gang member to intimidate and retaliate against him” for filing the earlier suit. The decision to classify Furnace as a member of the Black Guerilla Family (BGF) was based on prison officials finding in Furnace’s cell the contact information of a validated BGF gang member as well as books, a CD, and a newspaper article relating to BGF.

Furnace filed an internal administrative appeal, claiming that the classification lacked evidence, was retaliatory, and was racially motivated. While the appeal was pending, K. Berkler, R.S. Marquez, and E.W. Fischer, also gang experts at Salinas Valley, again classified Furnace as a gang member. His internal administrative appeals were denied, and he was placed in the prison’s secured housing unit (SHU).

Furnace then filed a pro se habeas petition in California Superior Court. He named D. Adams (the prison warden), R.L. Martinez, Valdez, Berkler, R.S. Marquez, and Fischer as respondents (and others not involved in this appeal). He alleged that his gang classification and placement in secured housing lacked sufficient evidence, that it was done to “intimidate and retaliate against” Furnace for filing the earlier suit, and that it violated his federal constitutional rights to free speech, equal protection of the law, and due process. Furnace sought to be removed from secured housing and to have his record cleared of any allegation that he was gang affiliated.

The Superior Court denied Furnace’s petition on the ground that there was sufficient evidence to’ support the gang validation, without directly addressing whether the classification was retaliatory or racially discriminatory. Furnace filed another habeas petition in the California Court of Appeal, making the same allegations. The court denied his petition, holding, first, that there was sufficient evidence to support the validation and, second, that the validation did not violate his First Amendment rights. The court denied rehearing, and the California Supreme Court summarily denied review.

In February 2012, Furnace filed this § 1983 suit in federal district court. Furnace named as defendants Berkler, Marquez, Fischer, R.L.- Martinez, and Valdez, plus G. Giurbino (collectively, “Appellees”), who allegedly supervised the other Appel-lees. Furnace’s complaint alleged that.his classification was illegal and retaliatory in violation of his First Amendment rights, and a. violation, of his right to equal protection and due process under the Fourteenth Amendment. Furnace asked for declaratory relief, money damages, as well as in-junctive relief “to release him from the security housing unit” and to “expunge his prison file” of any allegation that he is associated with BGF.

The district court granted the Ap-pellees’ motion to dismiss on the ground that Furnace’s suit was barred by claim preclusion. The court concluded that “both the state action and the instant one arise out of the same incident and involve the same actors allegedly performing the same act of initiating gang validation procedures and ultimately validating [Furnace] as an active gang member without proper procer dural protections.” Because Furnace sought “to vindicate the same primary right in federal court as he [had] previously in state court,” his claim was precluded. Furnace timely appealed. On appeal, Ap-pellees ask us to assess a strike against Furnace under the Prison Litigation Reform Act for having filed a duplicative suit.

■ ■ II. ANALYSIS

This appeal raises two main issues. First, Furnace contends that the district court erred in dismissing his First Amendment and equal protection claims under California claim preclusion principles. Second, the Appellees ask .us to assess a “strike” against Furnace under the Prison Litigation Reform Act, We affirm the district court and decline to assess a strike against Furnace.

A. Claim Preclusion

Under'the Full Faith and Credit Statute, 28 UiS.C. § 1738, federal courts must give the same preclusive effect to state court judgments, including “reasoned” habeas judgments, as the rendering state court would. Gonzales v. Cal. Dep’t of Corr., 739 F.3d 1226, 1230-31 (9th Cir. 2014) (citing Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984)). Accordingly, California claim preclusion law governs whether, in light of his earlier state habeas petition, Furnace’s § 1983 claims may be brought in federal court.

In California, “[c]laim preclusion arises if a second suit involves: (1) the same cause of action .(2). between the same parties [or parties in privity with them] (3) after a final judgment on the merits in the first suit.” DKN Holdings LLC v. Faerber, 61 Cal.4th 813, 189 Cal.Rptr.3d 809, 352 P.3d 378, 386 (2015) (citing Mycogen Corp. v. Monsanto Co., 28 Cal.4th 888, 123 Cal.Rptr.2d 432, 51 P.3d 297, 301 (2002)). Furnace makes two arguments in response to the Defendants’ claim preclusion defense. First, he argues that the “primary rights” that were violated here are distinct from the primary right he sought to vindicate in his habeas action in California state courts. Second, he argues that the identity of the parties is different between the two suits. We address each argument in turn.

1. Primary Rights

California courts, unlike federal courts, do not determine whether two' suits involve the same cause of action by applying the “same transaction or occurrence” or “common nucleus of operative facts” test. Instead, California courts will hold that two suits involve the same cause of action when they involve the same “primary right.” Brodheim v. Cry, 584 F.3d 1262, 1268 (9th Cir. 2009). Under this theory “a ‘cause of action’ is comprised of a ‘primary right’ of the plaintiff, a corresponding ‘primary duty of the defendant, and a wrongful act by the defendant constituting a breach of that duty.” Mycogen, 123 Cal.Rptr.2d 432, 51 P.3d at 306. “The most salient characteristic of a primary right is that it is indivisible:.the violation of a. single primary right gives rise to but a single cause of action.” Id. Thus, in California, “if two actions involve the same injury to the plaintiff and the same wrong by the defendant then the same primary right is at stake even if in the second suit the plaintiff pleads different theories of recovery, seeks different forms of relief and/or "adds new facts supporting recovery.” San Diego Police Officers’ Ass’n v. San Diego City Emps. Ret. Sys., 568 F.3d 725, 734 (9th Cir. 2009) (quoting Éichman v. Fotomat Corp., 147 Cal.App.3d 1170, 197 Cal.Rptr. 612, 614 (1983)). “The critical focus of primary rights analysis is the harm. suffered.” Brodheim, 584 F.3d at 1268 (citations and internal quotation marks omitted). California’s primary rights theory can be complicated, and we have cautioned against wielding the “primary right brush ... too carelessly” and noted the possibility that “different primary rights may be violated by the same wrongful conduct” under certain circumstances. San Diego Police Officers’ Ass’n, 568 F.3d at 734 (internal quotation marks omitted). But in this case, we have circuit precedent on point that, requires us to affirm.

The facts of Gonzales v. California Department of Corrections will sound familiar. There, Gonzales was validated as a gang member and placed in the SHU. 739 F.3d at 1229. After exhausting his administrative remedies, and a series of state ha-beas- proceedings, he fíled a § 1983 suit alleging that “(1) the gang validation violated his rights to free speech and association under the First Amendment; (2) the validation regulations were applied in a racially discriminatory manner; (3) he was classified as a gang member as retaliation ...; [and] (4) his validation ,.. violated his due process rights.” Id. The district court dismissed the suit on claim preclusion grounds. Id. at 1230.

On appeal, Gonzales argued “that his retaliation, First Amendment, and Equal Protection claims [were] not precluded,” because those claims arose under “a distinct primary right,” from his earlier due process claim. Id. at 1233 (internal quotation marks omitted). Specifically, he argued that his earlier inadequate evidence/due process claim was “procedural” while his First Amendment and Equal Protection Clause arguments were “inherently substantive,” and he pointed to our decision in Brodheim as having recognized a procedural/substantive divide. Id. We noted that in Brodheim, the two harms— one substantive, one procedural—were distinct because “[t]hey were caused at different times, by different acts, and by different actors.” Id. (quoting Brodheim, 584 F.3d at 1268-69). By contrast, Gonzales was “challenging the same actions by the same group of officials at the same time that resulted in the same harm.” Id. at 1234. Accordingly, the procedural/substantive distinction for identifying a distinct primary right was of- no use, because whether a party alleges “a different remedy or asserts a different legal theory .., is irrelevant under California claim preclusion doctrine.” Id. Since Gonzales’s claims would be barred in California’s courts under California’s .claim preclusion doctrine, they were barred in federal courts under the Full Faith and Credit statute. Id. at 1230,

Gonzales requires that we affirm. Furnace challenges “the same actions by the same group of officials at the same time that resulted in the same harm.” Id. at 1234. In his state court action, Furnace raised a due process claim, challenging the evidentiary basis of his gang validation and SHU placement. He also claimed that the validation and SHU placement were retaliatory, racially motivated, and violated his First Amendment rights. And, like the plaintiff in Gonzales, Furnace attempts to argue that the primary right he sought to vindicate in the state proceedings is somehow distinct from the rights he now seeks to vindicate. But, as .the California Supreme Court has made clear, a plaintiffs primary right is the “right to be free from the particular injury suffered” and “must therefore be distinguished from the legal theory on which liability for that injury is premised.” Mycogen, 123 Cal.Rptr.2d 432, 61 P.3d at 306-07. At heart, Furnace has always complained about the same alleged injury: his gang validation and SHU placement. He has come up with numerous legal theories as to why it was unlawful—lack of evidence, retaliation, and racial discrimination—but it does not change the primary right he seeks to vindicate,1 and Gonzales makes that point clear. See Gonzales, 739 F.3d at 1233 (the plaintiffs “primary right was his protected liberty interest in remaining free from SHU placement” and the “harm suffered” was his “gang validation and indeterminate SHU detention”).

Furnace raises two principal arguments in an effort to get around our holding in Gonzales, First, he argues that a claim challenging the sufficiency of the gang evidence is qualitatively different from a claim that the gang classification was the result of retaliation for the exercise of First Amendment rights or was racially motivated in violation of the Equal Protection Clause. Second,- he argues that he may maintain this suit for damages because he could not have obtained damages in his prior habeas action. Furnace’s points are technically correct; but, in the context of California’s primary rights ‘doctrine, both are irrelevant.

First, we recognize that Furnace’s sufficiency-of-the-evidence claim, which he raised in his state habeas proceedings, and his retaliation and racial discrimination claims, which he raises here, are distinct claims. But they are both part and parcel of the same primary right—Furnace’s right not to be wrongfully placed in the SHU. They are alternative arguments for accomplishing the same result—his release from the SHU. The primary rights doctrine under California claim preclusion forecloses Furnace’s ability to.file separate suits challenging the same wrong.

Second, it is also true, but again irrelevant, that Furnace' could not have obtained damages through habeas. Habeas, by its very nature, is an action to challenge “the fact or length of custody” for which the remedy is release from custody, Wolff v. McDonnell, 418 U.S. 539, 554, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); it is not an action in damages, Preiser v. Rodriguez, 411 U.S. 475,. 494, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). We know of no reason, however, that Furnace could not have brought his § 1983 action instead of his state habeas action, see Shoemaker v. Harris, 214 Cal.App.4th 1210, 155 Cal.Rptr.3d 76, 84 (2013), or, even better, joined his habeas and § 1983 actions to seek alternative forms of relief, Cal. Penal Code § 1473(d) (“[The state habeas statute] shall not be construed ... as precluding the use of any other remedies.”). And therein lies the problem. Having lost his habeas case, Furnace has made a new run at the officials through § 1983. The U.S. Supreme Court has held, and the California courts have agreed, that § 1983 suits cannot be used to collaterally attack the validity of a conviction. Thus, “the ... principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments applies to § 1983 damages actions that necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement.” Heck v. Humphrey, 512 U.S. 477, 486, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994); see also Susag v. City of Lake Forest, 94 Cal.App.4th 1401, 115 Cal. Rptr.2d 269, 273 (2002) (“[The] requirement [that a plaintiff can pursue relief under § 1983 only after obtaining habeas relief] avoids a collateral attack on the conviction and relitigation of issues of probable cause and guilt, and protects the strong judicial policy against inconsistent resolutions.”). The Heck principle means that “a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus.” Heck, 512 U.S. at 486-87, 114 S.Ct. 2364.

Heck is not directly on point here, but the principle will help us focus in this case. Heck prohibits the use of § 1983 to attack the validity of a conviction, because a recovery in the damages action would necessarily imply that the conviction was wrongfully obtained. The judgment of conviction and the judgment for damages would be inconsistent, and there would be no means to reconcile the two. Like the Heck principle, one reason for California’s primary right doctrine is to avoid piecemeal litigation and the possibility of inconsistent judgments. See, e.g., People v. Bar-ragan, 32 Cal.4th 236, 9 Cal.Rptr.3d 76, 83 P.3d 480, 494 (2004) (“[T]he purposes of the res judicata doctrine include preventing inconsistent judgments which undermine the integrity of the judicial system .... ” (internal quotation marks and alterations omitted)). Furnace has already challenged his placement in the SHU in habeas and lost; he cannot now challenge his placement through § 1983 without collaterally attacking—and thereby rendering inconsistent—the judgment denying him habeas relief. If he were successful on his § 1983 claim against the officials who put him in the SHU, it would necessarily be inconsistent with the' judgment that he was not entitled to habeas relief.

For example, were he to prevail here, Furnace would be entitled to damages for the time he has been wrongfully placed in the SHU and, in fact, he might be entitled to damages on a continuing basis if he were left in the SHU. The Appellees would be in the untenable position that California courts have said he is lawfully housed in the SHU, while the federal courts would have concluded that he is unlawfully housed in the SHU. Following the California.judgment, the warden might have a duty by virtue of his office to keep him in the SHU, while after the federal judgment, the warden (and others) would be personally liable for damages if they keep him there. The two judgments would be irreconcilable. It is of no consequence that § 1983 is a different remedy from habeas; both are means of challenging the lawfulness of his plaeement. The primary rights doctrine prevents such inconsistent judgments by requiring a party to bring all of his claims— as many causes of action, or theories of recovery, or remedies as he has—in a single suit. See Mycogen, 123 Cal.Rptr.2d 432, 51 P.3d at 302 (“Res judicata precludes piecemeal litigation by splitting a single cause of action or relitigation of the same cause of action on a different legal theory or for different relief.” (emphasis added) (internal quotation marks omitted)); id., 123 Cal.Rptr.2d 432, 51 P.3d at 307 (“The primary right must also be distinguished from the remedy sought: The violation of one primary right constitutes a single cause of action, though it may entitle the injured party to many forms of relief, and the relief is not to be confounded with the cause of action, one not being determinative of the other.” (second emphasis added) (internal quotation marks omitted)); Eich-man, 197 CaLRptr. at 614 (“[I]f two actions involve the same injury to the plaintiff and the same wrong by the defendant then the same primary right is at stake even if in the second suit the plaintiff ... seeks different forms of relief....” (emphasis added)). The district court correctly held that in these circumstances, Furnace’s “retaliation, First Amendment, and Equal Protection claims” involved the same “primary right” at issue in the Furnace’s earlier state habeas proceeding. Gonzales, 739 F.3d at 1233-34.

We hold that the same primary right— Furnace’s right to be free from unlawful gang validation and placement in the SHU—was at issue in both suits.

2. Identity of Parties

As we suggested above, Furnace’s suit involves “challenging the same actions by the same group of officials at the same time that resulted in the same harm.” Id. at 1234 (emphasis added). Furnace asserts that the defendants in this suit are-different from the defendants in his state habeas suit. And Appellees counter that California claim preclusion only requires identity of the party against whom preclusion is sought. Neither party is entirely correct on these points, though we ultimately conclude that the requisite identity of parties is met.

Appellees rely solely on California issue preclusion case law to sustain the proposition that only the party against whom preclusion is sought need be the same in both suits. See, e.g., Lucido v. Superior Court, 51 Cal.3d 335, 272 Cal. Rptr. 767, 795 P.2d 1223, 1225 (1990). California’s claim preclusion case law—which has distinct requirements—prevents reliti-gation “between the same parties or parties in privity with them.” DKN Holdings, 189 Cal.Rptr.3d 809,352 P.3d at 386 (emphasis added) (internal quotation marks omitted). That said, we cannot agree with Furnace that “the defendants in this action were not defendants in Furnace’s state habeas proceeding.” At the time of his state habeas petition, he named the then-warden, D. Adams, “et al.” as respondents. He made numerous references to “prison officials” throughout the petition, and most importantly, he specifically named “R.L. Martinez,” “M. Valdez,” “Keri Berkler,” “R.S. Marquez,” and “Everett W. Fischer” as respondents.

Accordingly, because Furnace’s suit involves “(1) the same cause of action (2) between the same parties [or parties in privity with them] (3) after a final judgment on the merits in the first suit,” we affirm. DKN Holdings, 189 Cal.Rptr.3d 809, 352 P.3d at 386.

B. PLRA Strike

The Appellees ask us to assess a strike against Furnace under the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915(g). Under § 1915(g), a prisoner can lose the ability to file suits in forma pau-peris (IFP) if he “has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which-relief may be granted.” Appel-lees assert that since this suit “duplicates claims brought in an earlier action” it is “malicious” within the meaning of the PLRA. See Pittman v. Moore, 980 F.2d 994 (5th Cir. 1993). The Appellees therefore want us to deem the district court’s dismissal as Furnace’s first “strike.”

The question of whether Furnace’s dismissal in this case was frivolous, malicious, or dismissed for failure to state a claim is not germane at this point. Generally, “district courts do not issue these strikes one by one, in their orders of judgment,” because nothing in the PLRA requires them to do so. Andrews v. King, 398 F.3d 1113, 1119 n.8 (9th Cir. 2005) (internal quotation marks omitted). And by extension, nothing in the PLRA requires us to do so at this time. Typically it is not until a defendant “challenge^] a prisoner-plaintiffs IFF status,” id. at 1120, that a backwards-looking inquiry is done to assess whether “on 3 or more occasions,” the prisoner-plaintiffs suit was “dismissed on the grounds that it [wa]s frivolous, malicious, or fail[ed] to state a claim upon which relief may be granted,” 28 U.S.C. § 1915(g). Accordingly, we decline the Ap-pellees’ request to assess a strike.

III. CONCLUSION

The judgment is AFFIRMED.

      . We review de novo a dismissal on res judi-cata grounds, Manufactured Home Communities Inc. v. City of San Jose, 420 F.3d 1022, 1025 (9th Cir. 2005), as well as the district court’s interpretation of the Prison Litigation Reform Act, Andrews v. King, 398 F.3d 1113, 1118 (9th Cir. 2005).

      . Furnace claims that in Gonzales we said that the patties’ "dispute [was] in defining the primary duty,” Gonzales, 739 F.3d at 1233, and that he is disputing his primary right, not the Appellees’ duty. This argument is unavailing. Rights and duties are correlative—they do not exist independent of each other. The possession of a right necessarily implies the existence of a duty; conversely, to say that a party has a duty means that someone is possessed of a right. As California has explained, "a ‘cause of action’ is comprised of a ‘primary right’ of the plaintiff, a corresponding 'primary duty’ of the defendant, and a wrongful act by the defendant constituting a breach of that duty.” Myeogen, 123 Cal.Rptr.2d 432, 51 P.3d at 306 (emphasis added). Here, as in Gonzales, Furnace’s primary right is the right not to be unlawfully determined to be a gang member and placed in the SHU; and it "cor-respondes]” to the Appellees' duty not to unlawfully label an inmate a gang member and place-him in the SHU. ■ -

      . We offer no definitive opinion whether, under California law, Furnace could, in fact, have brought both an action in habeas and a § 1983 law in the same suit, nor do we offer any opinion whether Furnace could have decided to forego his habeas action and bring only a § 1983 suit. What we hold is that he cannot bring them seriatim.

      . We recognize that some California appellate cases lend support to Furnace's claim that the ability to be free from retaliation and/or discrimination might be a distinct primary right from the substantive outcome of an adverse administrative decision, see Agarwal v. Johnson, 25 Cal.3d 932, 160 Cal.Rptr. 141, 603 P.2d 58, 72 (1979) (holding that Title VII claim was distinct primary right from defamation and intentional infliction of emotional distress claims under state law); Henderson v. Newport-Mesa Unified Sch. Dist., 214 Cal. App.4th 478, 154 Cal.Rptr.3d 222, 226, 237-40 (2013) (claim that teacher was not properly given "first priority” in hiring under state statute arose under distinct primary right from discrimination claim); George v. Cal. Unemployment Ins. Appeals Bd., 179 Cal.App.4th 1475, 102 Cal.Rptr.3d 431, 438-41 (2009) (ALJ's retaliation claim arose under distinct primary right from wrongful suspension claim), and that some cases might suggest that the availability of differing remedies would counsel against the application of claim preclusion, see Shoemaker v. Harris, 214 Cal.App.4th 1210, 155 Cal.Rptr.3d 76, 84 & n.13; Branson v.- Sun-Diamond Growers of Cal, 24 CaI.App.4th 327, 29 Cal,Rptr.2d 314, 323 (1994); Roberts v. Redlich, 111 Cal.App.2d 566, 244 P.2d 933, 935 (1952). These decisions all arose in very different contexts, predate our decision in Gonzales, and do not, in any event, shake our confidence that Gonzales ■ was rightly decided.

      . The only current defendant not named was Giurbino, a party who was nonetheless in privity with the other officials due to his supervisory relationship in the prison system. DKN Holdings, 189 Cal.Rptr.3d 809, 352 P.3d at 389 (noting that privity is found where "separate defendants' interests” are "closely align[ed]” like "between a corporation and its employees, a general contractor and subcontractors, an association of securities dealers and member agents, and among alleged co-conspirators" (emphasis added) (citations omitted)).

      . Alternatively, the Appellees argue that Furnace failed to state a retaliation claim because his placement in the SHU was supported under the "some evidence” standard. See Superintendent v. Hill, 472 U.S. 445, 455, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985). Because we affirm the district court on claim preclusion grounds, we decline to address the Appellees' argument, as well as Furnace’s response, that a retaliation claim can survive a motion to dismiss in the face of "some evidence” supporting a SHU placement. See Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003); Hines v. Gomez, 108 F.3d 265, 269 (9th Cir. 1997).

      . We do note our skepticism, however, of labeling Furnace's suit “malicious” merely because of its repetitiveness. The fact that Furnace had a good faith argument that his claims were not barred by California claim preclusion weighs against finding Furnace’s suit “malicious” or “frivolous.”


author: THOMAS, Chief Judge:

text:
    IN RE COMPLAINT OF JUDICIAL MISCONDUCT
    No. 16-90121
    Judicial Council of the Ninth Circuit.
    Filed October 3, 2016
   ORDER

THOMAS, Chief Judge:

Complainant alleges that the district judge presiding over his criminal case has acted “without lawful authority” because the judge, upon being sworn in, gave a version of the judicial oath that preceded the standard language prescribed at 28 U.S.C. § 453, as amended by the Judicial Improvements Act of 1990. Both the district court and the Ninth Circuit Court of Appeals have previously rejected this or similar arguments raised by complainant.

To the extent complainant alleges that the judge improperly denied his motion to dismiss, based on a “deficient” oath, these allegations relate directly to the merits of the judge’s rulings and must be dismissed. See 28 U.S.C. § 352(b)(l)(A)(ii); In re Charge of Judicial Misconduct, 685 F.2d 1226, 1227 (9th Cir. Jud. Council 1982); Judicial-Conduct Rule 11(c)(1)(B).

- Moreover,- complainant cites no authority, stating that minor variations in the phrasing of the judicial oath may be grounds for disqualifying a judge, or could constitute misconduct. Because complainant fails to allege any conduct “prejudicial to the effective and expeditious administration of the business of the courts,” these charges are dismissed. See In re Complaint of Judicial Misconduct, 726 F.3d 1060, 1062 (9th Cir. Jud. Council 2013); Judicial-Conduct Rule 11(c)(1)(A).

DISMISSED.


text:
    IN RE COMPLAINT OF JUDICIAL MISCONDUCT
    Nos. 16-90117, 16-90118
    Judicial Council of the Ninth Circuit.
    Filed October 3, 2016
   ORDER

THOMAS, Chief Judge:

Complainant alleges that a district judge and a magistrate judge made various improper rulings in his civil case. These allegations relate directly the merits of the judges’ rulings and must be dismissed. See 28 U.S.C. § 352(b)(1)(A)(ii); In re Charge of Judicial Misconduct, 685 F.2d 1226, 1227 (9th Cir. 1982); Judicial-Conduct Rule 11(c)(1)(B).

Complainant alleges that the judges committed “Fraud Upon the Court” and favored the defendants. Adverse rulings are not proof of bias or fraud. In re Complaint of Judicial Misconduct, 583 F.3d 598 (9th Cir. 2009). Because complainant has not offered any evidence of misconduct, these charges must be dismissed. See 28 U.S.C. § 352(b)(l)(A)(iii); Judicial-Conduct Rule 11(c)(1)(D).

Complainant further alleges that, during a settlement conference, the magistrate judge encouraged him to settle the case, and after the conference the judge engaged in “ex parte” communications by calling to advise him that the defendants had received approval of the settlement by the company’s officials. A judge conducting settlement proceedings may meet with the parties separately, may encourage settlement, and may convey a party’s offer and acceptance to facilitate the settlement. Complainant has presented no objectively verifiable evidence of misconduct in this matter, and so the allegations must be dismissed. See 28 U.S.C. § 352(b)(l)(A)(iii); Judicial-Conduct Rule 11(c)(1)(D).

DISMISSED.


author: EBEL, Circuit Judge.

text:
    Brayan Alexis OSUNA-GUTIERREZ, a/k/a Jose Gomez, Petitioner, v. Jeh C. JOHNSON, Secretary of the Department of Homeland Security, Respondent.
    No. 14-9593
    United States Court of Appeals, Tenth Circuit.
    Filed September 22, 2016

      Matthew Lorn Hoppock, The Hoppoek Law Firm, LLC, Overland Park, Kansas, for Petitioner.

      Greg D. Mack, Senior Litigation Counsel, United States Department of Justice (Benjamin C. Mizer, Principal Deputy Assistant Attorney General, and Terri J. Sca-dron, Assistant Director, Civil Division, with him on the brief), United States Department of Justice, Washington, D.C., for Respondent, ■ ■
    Before BRISCOE, EBEL, and BACHARACH, Circuit Judges.
   EBEL, Circuit Judge.

SUMMARY

Brayan Alexis Osuna-Gutierrez argues his deportation was improper for two reasons: (1) the Department of Homeland Security’s (DHS) expedited removal process is illegal; and (2)' in any event, it' was improper for DHS to use th'e expedited removal process on Gutierrez because he pled guilty to a misdemeanor, not a felony. However, Gutierrez is wrong on both counts.

First, Congress specifically empowered the Attorney General to create expedited removal proceedings and properly transferred those powers to the Department of Homeland Security. The fact that an Immigration Judge (IJ) is not involved, in the expedited removal process does not make it illegal.

Second, Gutierrez is an illegal alien who pled guilty to an aggravated felony—the federal felony of possession with intent to distribute marijuana. Despite Gutierrez’s arguments that he actually pled guilty to a misdemeanor, there was clear, convincing, and unequivocal evidence in the administrative record to support DHS’s finding that Gutierrez pled guilty to an aggravated felony and thus was removable via the expedited removal process.

Therefore, we DENY Gutierrez’s petition for review.

BACKGROUND FACTS

Gutierrez was arrested in March 2014 in Kansas. He was a passenger in a rental vehicle on a cross-country trip. The police found approximately seven grams of marijuana belonging to Gutierrez that he had legally purchased in Colorado. Gutierrez had shared some of the marijuana with passengers in the car. The police also found approximately three kilograms of methamphetamine in the rear portion of the car. The federal government charged Gutierrez and his co-defendants with possession with intent to distribute methamphetamine. Gutierrez ultimately pled guilty to violating 21 U.S.C. § 841(a) and (b)(1)(D) for “Possession of Marijuana with Intent to Distribute.” (Admin. Rec. at 16.) The government dropped the methamphetamine charges. The district court sentenced him to time served, approximately seven months.

After leaving jail, Gutierrez was immediately transferred to immigration custody. The Department of Homeland Security (DHS) served Gutierrez with a Notice of Intent to Issue a Final Administrative Removal Order—the expedited removal process. During the expedited removal process, an officer within DHS concluded that Gutierrez was not a legal permanent resident, having come to this country from Mexico with his mother when he was one year old without being legally admitted. Further, Gutierrez had pled guilty to an aggravated felony. The DHS officer made the aggravated felony finding after reviewing the Judgment from Gutierrez’s criminal case. Gutierrez timely petitioned for review of his removal and was deported back to Mexico on November 7, 2014.

PROCEDURE AND JURISDICTION

Gutierrez is seeking review of a DHS Final Administrative Removal Order (FARO). The Tenth Circuit has jurisdiction to hear this appeal pursuant to 8 U.S.C. § 1252(a)(1). Aguilar-Aguilar v. Napolitano, 700 F.3d 1238, 1240 (10th Cir. 2012); 8 U.S.C. § 1228(b)(3). In examining the order of removal, we decide the issue “only on the administrative record on which the order of removal is based.” 8 U.S.C. § 1252(b)(4)(A).

Because Gutierrez was removed as an aggravated felon, under 8 U.S.C. § 1227(a)(2)(A)(iii), the Tenth Circuit’s jurisdiction is limited to legal and constitutional claims. The Tenth Circuit is the proper venue because DHS issued the FARO in Wichita, Kansas. 8 U.S.C. § 1252(b)(2).

STANDARD OF REVIEW

The Tenth Circuit reviews questions of law—including the Court’s jurisdiction, whether an offense is an aggravated felony, and constitutional- claims—de novo. Torres de la Cruz v. Maurer, 483 F.3d 1013, 1018-19 (10th Cir. 2007).

LEGAL DISCUSSION

I. DHS officers have the authority to hold expedited removal proceedings without an immigration judge present.

Gutierrez argues that his order of removal is invalid because only IJs have the power to order removal and the Attorney General’s (AG) regulation allowing for expedited removal without an IJ was ultra vires. As the following analysis will show, however, Congress specifically- empowered the AG to set up expedited removal and the statute supports the government’s position that the AG had the authority to authorize removal hearings without an IJ.

a. The statutory history shows that the Attorney General and Congress properly created and transferred the expedited removal process to DHS.

As part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Congress created 8 U.S.C. § -1228(a)(1), which provides that “[t]he Attorney General shall provide for the availability of special removal proceedings at certain Federal, State, and local correctional facilities for aliens [convicted of aggravated felonies or crimes involving moral turpitude].” Pursuant to this statutory grant, Janet Reno—then the AG— created 62 Fed. Reg. 10312-01 § 238.1 on February 26, 1997. 62 F.R. 10312-01. Section 238.1 is codified as 8 C.F.R. § 1238.1, which outlines the procedure for the expedited removal of immigrants convicted of aggravated felonies. Initially the agency tasked with expedited removal was the Immigration and Naturalization Service (INS). However, Congress abolished the INS in 2003 and transferred its powers, including “all functions performed under ... [t]he detention and removal program,” to DHS. 6 U.S.C. § 251. Thus, Congress gave power to the AG to create an expedited removal program, which the AG created within INS, and Congress later transferred that power to DHS. Therefore, DHS properly has authority to initiate expedited removal proceedings for aggravated felons.

b. The statutory text supports the government’s position that removal proceedings do not always require an IJ.

Gutierrez makes several arguments involving the text of the statute. Specifically, he claims that 8 U.S.C. §§ 1252(b)(2) and 1229a(a)(l) require that all removal proceedings occur before an IJ. While the statutes are not explicit about the lack of— or requirement of—IJs in the removal process, the statutes ultimately support the government’s position.

The venue portion of § 1252(b)(2) says that a removal order appeal “shall be filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings.” (emphasis added). Gutierrez points out that statutes are to be read in conjunction with each other and § 1252 (the only order-of-removal appeal statute) mentions only IJs and has no provision for orders entered by non-IJs. Thus, Gutierrez reasons, only IJs can enter removal orders.

However, Gutierrez ignores that Congress also created § 1228 which directs the AG to establish expedited removal regulations. Nothing in § 1228 requires that an IJ preside over the expedited removal process—in fact, the words “immigration judge” do not appear anywhere in § 1228. At the same time, § 1228 contains specific limits on the AG’s expedited removal procedure. Most relevant is § 1228(b)(4)(F), which requires that “the final order of removal is not adjudicated by the same person who issues the charges.” However, immigration judges do not issue removal charges. Thus, the language carries the unmistakable inference that Congress did not contemplate that only IJs would issue the removal orders. If Congress wanted to require an IJ to hear expedited removal proceedings, it would have noted as such in § 1228(b)(4)(F). Instead, Congress commanded only that someone other than the charging officer preside over expedited removal proceedings and did so in a way that implies that someone other than an IJ can hear the proceeding.

The Eighth Circuit, in Gonzalez v. Chertoff, 454 F.3d 813, 816 n.2 (8th Cir. 2006), noted that

§ 1252(b)(2) refers to the location in which “the immigration judge” completed the removal proceedings, while the expedited removal proceedings established by § 1228(b) do not involve an immigration judge. However, we read the cross-reference to § 1252(b) in the section establishing expedited proceedings as indicating that the same venue rule applies to removal proceedings presided over by any officer of DHS, not just by an immigration judge.

(footnote added). This is a far more plausible reading of the combined statutes than Gutierrez urges. His § 1229a(a)(l) argument is even less convincing.

In § 1229a(a)(l), the statute states that “[a]n immigration judge shall conduct proceedings for deciding the inadmissibility or deportability of an alien.” Gutierrez urges the Panel to find that this language forecloses anyone other than an IJ from ordering removal. However, § 1229a(a)(l) must be read in conjunction with § 1229a(a)(3), which states, “Nothing in this section shall affect proceedings conducted pursuant to section 1228 of this title” (§ 1228 being the expedited removal process). Thus, § 1229a(a)(l)’s requirement that an IJ order removal cannot limit the expedited removal process where DHS has proper authority to hold expedited removal processes in front of its officers.

II. DHS’s removal of Gutierrez was based on clear and convincing evidence and complied with Supreme Court law.

Gutierrez argues that his removal was improper because (1) the administrative record relied on by DHS did not contain clear and convincing evidence of his re-movability and (2) under Supreme Court precedent, the aggravated felony for which he was removed was actually a misdemeanor. As the following analysis will show, however, (1) DHS properly relied on Gutierrez’s guilty plea to a felony charge; and (2) even considering Moncrieffe v. Holder, — U.S. -, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013), the crime to which Gutierrez pled guilty was, in fact, a felony.

a. An overview of the Final Administrative Removal Order (FARO) Process

As noted above, 8 U.S.C. § 1228 and 8 C.F.R. § 1238.1 properly authorize DHS to initiate expedited removal proceedings and issue Final Administrative Removal Orders (FARO) without the involvement of an immigration judge. Under § 1228 and § 1238.1, DHS can initiate FARO proceedings when a person (1) is an alien; (2) was not lawfully admitted for permanent residence; (3) was convicted of an aggravated felony; and (4) is deportable under 8 U.S.C. § 1227(a)(2),(A)(iii) (“Any alien who is convicted of an aggravated felony at any time after admission is deportable.”). The parties both admit that (1) and (2) are met here, but argue over whether Gutierrez was actually convicted of an aggravated felony (which would satisfy prongs (3) and (4)).

Under 8 U.S.C. § 1101(a)(43)(B), the term “aggravated felony” includes “illicit trafficking in a controlled substance (as defined in section 8Q2 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18).” Section 924(c) states that a “drug trafficking crime” means “any felony punishable under the Controlled Substances Act” (which includes the statute at issue here, § 841). A crime is a felony if the “maximum term of imprisonment authorized” is “more than one year.” 18 U.S.C. § 3559(a) (emphasis added). Therefore, to be an aggravated felony under. § 1101(a)(43)(B), Gutierrez’s conviction must be for a federal drug trafficking felony—although he argues that he was actually guilty of only a misdemeanor.

In order to issue a FARO, the presiding DHS officer must find removability by “clear, convincing, and unequivocal evidence.” 8 C.F.R. § 1238.1. That clear, convincing, and unequivocal standard; whether DHS satisfied it; and whether Supreme Court law contradicts DHS’s findings form the remaining issues in this appeal.

b. The administrative record contained clear, convincing, and unequivocal evidence of Gutierrez’s removability.

Gutierrez argues that “there is nothing in .the administrative record to indicate that [the. district court judge] did not intend to treat the crime as a misdemeanor.” Aplt. Br. at 28. He further argues there was no evidence that his conviction was for a federal drug trafficking felony, thus his federal conviction was for a misdemeanor drug offense. And it is true that, while possession of less than fifty kilograms of marijuana with intent to distribute is a felony, distribution of a small amount of marijuana for no remuneration is a misdemeanor. See Moncrieffe, 133 S.Ct. at 1678. Gutierrez’s conduct, as he argues it, could fall under either category. However, while his conduct may have supported a lesser conviction, he pled guilty to a felony.

The only document relating to Gutierrez’s criminal conviction in the administrative record is the district court’s “Judgment in a Criminal Case.” Admin. Rec. at 16. That judgment by itself establishes that Gutierrez pled guilty to a felony for three reasons.

First, the judgment listed the crime of conviction as a violation of 21 U.S.C. § 841(a) and (b)(1)(D), and listed the offense as a “Class D Felony.” Admin. Rec. at 16. There is no mention of (b)(4), the misdemeanor provision. Several courts, including the Tenth Circuit, have noted that (b)(1)(D), the felony, is the “default” drug trafficking provision for marijuana because it is the subsection “which states a complete crime upon the fewest facts.” United States v. Outen, 286 F.3d 622, 637 (2d Cir. 2002) (emphasis in original); see United States v. Eddy, 523 F.3d 1268, 1271 (10th Cir. 2008) (agreeing with Outen and noting that (b)(1)(D) does not contain the element “remuneration,” while (b)(4) requires the extra element of “no remuneration”).

Second, the judgment indicated that the district court ordered a term of two years’ supervised release for Gutierrez. Admin. Rec. at 18. Gutierrez never challenged this term. Under 18 U.S.C. § 8583(b), if Gutierrez was sentenced to a misdemeanor, his maximum term of supervised release would have been one year.' But for a Class D felony, he could receive up to three years. 18 U.S.C. § 3583(b).

Finally, one of Gutierrez’s supervised release conditions was that he could not purchase or possess á firearm. Admin. Rec. at 18. Under U.S.S.G. § 5D1.3(d)(l), firearm restrictions for supervised release are only appropriate in two circumstances: (1) when the defendant used a gun to commit his crime (not at issue here); and (2) when the defendant was convicted of a felony. For these reasons, the district court’s judgment made it clear that Gutierrez pled guilty to a felony rather than a misdemeanor.

Gutierrez argues, to the contrary, that because he received only seven months’ imprisonment, the district court must have meant to punish him for a misdemeanor. However, a felony conviction does not require a penalty imposed of at least one year—a crime is a felony if the district court could impose more than a year imprisonment. 18 U.S.C. § 3559(a). Further, the other factors—the length of supervised release and the firearm restriction—are only applicable when the defendant is guilty of a felony. 18 U.S.C. § 3583(b); U.S.S.G. § 5D1.3(d)(l). Thus, there was enough evidence in the administrative record that DHS could find it was clear, convincing, and unequivocal that Gutierrez pled guilty to—and was sentenced for— committing a felony.

c. Under Moncrieffe, Gutierrez still pled guilty to a felony.

Gutierrez argues that Moncrieffe resolves this entire case because his conduct was similar to Moncrieffe’s. The Supreme Court ruled that Moncrieffe’s state felony conviction for possession with intent to distribute marijuana was not categorically punishable as a federal aggravated drug-trafficking felony because the state statute did not require a finding of remuneration. Moncrieffe, 133 S.Ct. at 1693-94. Unfortunately for Gutierrez, his case is not Mon-crieffe and it does not provide him relief.

In Moncrieffe, the defendant was removed after the Board of Immigration Appeals determined that his state law felony conviction was punishable under federal law as an aggravated felony. Id. at 1680. Moncrieffe was convicted of a felony under a Georgia statute for possession of marijuana with intent to distribute. Id. at 1683. In determining whether Moncrieffe’s conduct was punishable as a federal felony drug trafficking ■ offense, the Supreme Court looked at the analogous federal generic crime statute, 21 U.S.C. 841(b). The Supreme Court determined that the Georgia statute was not divisible and because the federal statute- calls for two different crimes in the alternative—one, a felony, for possession with intent to distribute less than fifty kilograms of marijuana (841(b)(1)(D)); the other, a misdemeanor, for possessing a small amount and distributing it for no remuneration (841(b)(4))— the categorical approach was the proper method for categorizing the state conviction, Id at 1686.

The Supreme Court noted that the “elements” of the crime were found in 841(b)(1)(D) and that 841(b)(4) was a “sentencing factor.” Id. at 1689. Because the Georgia statute did not require remuneration (there was a different Georgia statute for “selling” drugs), Moncrieffe could have been convicted under the federal felony or misdemeanor provision, thus his conviction did not “necessarily involve facts that correspond to an offense punishable as a felony under the CSA.” Id. at 1687 (quotations omitted). Therefore, the Supreme Court held that “[sjharing a small amount of marijuana for no remuneration” did not fit into the “everyday understanding of trafficking,” and “[i]f a noncitizen’s conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration or more than a small amount of marijuana, the conviction is not for an aggravated felony under the INA.” Id. at 1693-94: (internal quotation marks omitted). But the Supreme Court also noted that federal prosecutions are different and may be subject to a different process than it employed to analyze Moncrieffe’s state conviction. Id. at 1688-90. And as a federal prosecution, Gutierrez’s case is different fi'om Moncrieffe’s.

While Moncrieffe’s and Gutierrez’s criminal conduct were similar, their convictions were not—an ultimately fatal flaw to Gutierrez’s appeal. Gutierrez was not convicted, of a state crime to be compared to a federal generic crime on appeal. He knowingly pled guilty to a- federal felony. Therefore, DHS properly ordered him removed via the FARO process.

CONCLUSION

The AG properly delegated power to DHS and ICE to perform expedited removal proceedings without an IJ present. There was clear, convincing, and unequivocal evidence of Gutierrez’s removability in the administrative record. Therefore, we DENY Gutierrez’s petition for review.

      . Once an alien is ordered removed, filing the appeal "does not stay the removal of an alien pending the court’s decision on the petition, unless the court orders otherwise.” 8 U.S.C. § 1252(b)(3)(B). Nevertheless, we retain juris- ' diction to consider this petition for review, notwithstanding Gutierrez's removal.

      . There have been minimal changes to the regulation since it was originally promulgated. There are a few language changes and the regulation now accounts for asylum issues, which are not relevant to our case.

      . Gutierrez argues that "the detention and removal program” only refers to those powers enumerated in 8 U.S.C. § 1231, "Detention and removal of aliens ordered removed.” Aplt. R. Br. at 13.' But he does not support that argument—there is nothing to indicate that Congress intended "all functions performed under [the detention and removal program]” to refer only to "detention and removal of aliens ordered removed.”

      . Although neither party spends much time on the argument, § 1228 satisfies the first prong of the test announced in Chevron, U.S.A., Inc, v. NRDC, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), because “Congress has directly spoken to the precise question at issue.” (i.e., whether the AG had the authority to create expedited removal proceeding regulations). Because "the intent of Congress is clear, that is the end of the matter.” Id. Even if we were to hold that § 1228 is "silent or ambiguous" in regards to whether it requires that IJs oversee expedited removal, we would still hold that 8 C.F.R. § 1238 is "based on a permissible construction of the statute,” since nothing in § 1228 requires that an IJ be present. See Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778.

      . The "cross-reference” mentioned in Gonzalez is § 1228(c)(3)(A)(ii), "Except as provided in clause (iii), such appeal shall be considered consistent with the requirements described in section 1252 of this title.”

      . Gutierrez also cites to several cases in which the court says, "[IJmmigration judges alone have the authority to determine whether to deport an alien.” Aplt. Br. at 15, .citing United States v. Zamudio, 718 F.3d 989, 990 (7th Cir. 2013); United States v. Romeo, 122 F.3d 941, 943 (11th Cir. 1997). However, those cases were not about expedited removal. Rather, the appellate courts were chastising district courts that had imposed deportation and immigration consequences as part of a criminal conviction without also ordering supervised release—an action for which there is no authority and is not at issue in this case.

      . There is more to the FARO process, but none of it is relevant to this appeal (e.g., cannot apply for relief from removal, the process of the hearing itself, etc.).

      . • Under 8 U.S.C. § 1229a(c)(3)(B)(i), an "offi-cialrecord of judgment and conviction” constitutes satisfactory proof of a criminal conviction. Gutierrez takes issue that the DHS did not consider additional documents, but cites no authority for requiring DHS to do so—nor does he cite authority for his argument that it was DHS’s job to discern whether the 841(b)(1)(D) misdemeanor exception applied. Aplt. Br. at 24. Statutory law demands that we decide this petition "only on the administrative record on which the order of removal is based.” 8 • U.S.C. § 1252(b)(4)(A). In any event, even if we were to examine the additional documents Gutierrez submitted in his appendix, we would still find that he pled guilty to a felony. See Aple. App. at 3, 5, 16, 17.

      .Gutierrez argues that Outen holds, "the fact that the charge listed in the charging document describes the crime as a 'felony' is not relevant.” Aplt. Br. at 25. Outen does not hold that.

      . At oral argument, counsel for Gutierrez disingenuously argued that Gutierrez pled guilty to a misdemeanor because his base offense level was a four. But that was not correct. Gutierrez's base offense level was six. He then received a two-level reduction for acceptance of responsibility, lowering his total offense level to four. Aple. App. at 11.

      .Also, while Gutierrez could arguably have been convicted of (or sentenced to) the lesser § 841(b)(4) crime, “when an act violates more than one criminal statute, the Government may prosecutes [sic] under either so long as it does not discriminate' against any class of defendants.” United States v. Batchelder, 442 U.S. 114, 123-24, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979), Gutierrez has not argued .on appeal that his conviction was discriminatory.

      . Because we find that DHS properly removed Gutierrez based on the administrative record and his federal felony guilty plea, we do not need to apply the modified categorical approach to his conviction.

      . We grant petitioner’s motion to proceed in forma pauperis.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Miguel BUSTAMANTE-CONCHAS, Defendant-Appellant.
    No. 15-2025
    United States Court of Appeals, Tenth Circuit.
    FILED September 30, 2016
    Before TYMKOVICH, Chief Judge, ‘ KELLY, BRISCOE, LUCERO, HARTZ, GORSUCH, HOLMES, MATHESON, BACHARACH, PHILLIPS, McHUGH, and MORITZ, Circuit Judges.
   ORDER

This matter is before the court on appellant’s Petition for Rehearing En Banc. We also have a response from the United States. In addition, on September 9, 2016, the appellant filed an unopposed Motion for Leave to File Reply to Appellee’s Response to Appellant’s Petition for Rehearing En Banc.

Upon consideration, a poll was called and the request for en bane rehearing is GRANTED limited to the issues identified below. See 10th Cir. R. 35.6 (noting the effect of the grant of en banc rehearing is to vacate the judgment and restore the case on the docket). The parties shall file supplemental memorandum briefs addressing these issues:

1. Is the third or fourth prong of the plain error test satisfied when a defendant is not offered any chance to speak at his original sentencing hearing?
2. Should extraordinary circumstances serve as an exception to any answer above? If so, what should constitute extraordinary circumstances?
3. Should a defendant be required to proffer a proposed allocution statement to establish that an allocution error seriously affected the fairness, integrity, or public reputation of judicial proceedings?

The appellant’s supplemental brief shall be filed on or before Monday October 31, 2016. The United States’ supplemental brief shall be filed on or before Thursday December 1, 2016. The appellant may file an optional reply on or before Friday December 16, 2016. Within 2 business days of the electronic filing of each brief 20 hard copies must be received in the.office of the clerk. In addition, the primary briefs shall be limited to 20 pages in length in a 13 or 14 point font, and any reply shall be limited to 10 pages in length.

The appeal will be set for en banc hearing on Tuesday January 17, 2017 at the Byron White United States Courthouse in Denver.-The parties will be advised of the exact time and will receive additional information, regarding the hearing via separate communication. In light of the January hearing date requests for extension of time on the briefing are strongly discouraged.

Finally, the motion to file a reply in support of the petition for en banc rehearing is denied as unnecessary.