text:
    Michael MERCIER, Petitioner v. UNITED STATES DEPARTMENT OF LABOR, Administrative Review Board, Respondent Union Pacific Railroad Company, Intervenor
    No. 15-3369
    United States Court of Appeals, Eighth Circuit.
    Submitted: November 15, 2016
    Filed: March 2, 2017
    Rehearing and Rehearing En Banc Denied May 8, 2017

      Counsel who presented argument on behalf of the petitioner was Richard Allen Williams, Jr., of Saint Paul, MN. The following attorney(s) appeared on the petitioner brief; Megan Spriggs of Saint Paul, MN.
    Counsel who presented argument on behalf of the respondent was David Louis Edeli, of San Francisco, CA.
    Counsel who presented argument on behalf of the intervenor was Rebecca B. Gregory, of Omaha, NE. The following attorney appeared on the intervenor brief; Ryan D Wilkins, of Omaha, NE.
    Before COLLOTON, BEAM, and GRUENDER, Circuit Judges.
   BEAM, Circuit Judge.

Michael Mercier petitions for review of the final decision and order of the Department of Labor’s Administrative Review Board (ARB), which affirmed the Department of Labor’s Administrative Law Judge (ALJ), in Mercier’s Federal Rail Safety Act (FRSA) retaliatory termination action. We deny the petition, for review and affirm the ARB’s final decision and order.

I. BACKGROUND

The following facts were developed at the three-day hearing in front of the ALJ. Mercier worked for Union Pacific Railroad (UP) in Valley Park, Minnesota, for a number of years. Mercier was an engineer, trainer, and union representative, and in the course of representing employees for the union during disciplinary hearings, and at other various work times, Mercier pointed out a number of perceived safety violations throughout his employment at UP. Mercier believes this ongoing practice of reporting safety violations brought him within the ire of management, and he alleges that he was unfairly disciplined on a number of occasions. Some of these disciplinary actions were overturned when reviewed by a neutral board at a later time. Mercier’s superintendent testified that Mercier did indeed report on a number of safety violations but that UP generally responded to Mercier’s safety reports in an effort to keep the workplace safe. The superintendent also noted that Mercier had, on occasion, been recognized and rewarded for his safety reporting.

In June 2007, Mercier exchanged a series of text messages with coworker Michael Thomas. Mercier alleges the substance of the texts was regarding the rumor- that Thomas was involved in an extramarital affair with a female coworker, Deana Symons. Symons, on the other hand, alleged that shortly after she was hired as a student conductor in March 2007, Mercier began speaking to coworkers about her and insinuated that she was having sexual relations with several coworkers. Thomas showed Symons the texts he had received from Mercier. While the exact content of the texts is not in the record, both Thomas and Sym-ons testified that the essence of the messages was that Mercier asked who was “doing the student” and offered to buy that person some “sex powder.” Symons contacted Mercier directly to tell him that she considered his conduct to be harassing, and that he should stop. Shortly thereafter, in early July 2007, Symons also reported the text-messaging incident to the Equal Employment Office (EEO) hotline. Mercier contends he was merely trying to ward off the. workplace strife that might ensue due to the alleged extramarital affair between -Thomas and Symons. The UP EEO manager, Melissa Schop, investigated and confirmed the existence of the offensive text messages.

UP subsequently charged Mercier with an EEO violation and removed him from service, which was effectively a suspension, pending the outcome of an investigation and EEO hearing. During his suspension, Mercier went to Symons’s home and took photos of Thomas visiting her house. Thomas and Symons both testified that Thomas was there to help Symons prepare for the upcoming EEO hearing. Symons testified that Mercier’s “drive by” left her feeling scared and frightened, and she was unsure how Mercier had discovered where she lived.

Before the EEO hearing could take place, Mercier’s union representative and Mercier’s superintendent struck a deal allowing Mercier to return to work as long as he signed a “waiver” agreement. The conditions of this agreement were that Mercier admitted violating the EEO policy, and agreed that if he had any future EEO violations, he would waive a hearing and be immediately terminated. Mercier was also required to take an EEO class, write Symons an apology, and refrain from discussing the underlying EEO incident while at work or in any way retaliating against her or Thomas. Thus, after a thirty-day unpaid suspension and meeting the preconditions, Mercier returned to work in August 2007.

Symons expressed displeasure upon finding out that Mercier would return to work. Symons objected to Mercier’s “apology” which she felt was not sincere, as the apology did not express acceptance of responsibility, but instead only expressed remorse at being caught. The leader of Mer-cier’s EEO training session also told Schop that Mercier’s attitude and statements at EEO training were a concern. In mid-October, Mercier told another UP employee that Thomas had showed him (Mercier) a pair of Symons’s underwear and Mercier commented on the size and color of the underwear. This employee asked Thomas if this was true, and Thomas denied having shown Symons’s underwear to Mercier or anyone else. This employee ultimately reported the incident to Schop. Also in October, Symons reported to Schop that yet another coworker told her Mercier was complaining that Symons had falsely accused Mercier of harassment. Schop contacted this coworker via telephone, and the coworker confirmed what Symons had told Schop. During the month of October 2007, Symons madé phone calls and sent emails to Schop detailing her strong concern with Mercier’s actions in the workplace, and her growing fears of him. Thomas reported to Schop that Mercier had been calling him a rat, and noted a derogatory message posted to the union website which obliquely referenced the summer EEO incident wherein Mercier was suspended.

Schop testified that while investigating whether a violation of Mercier’s waiver agreement had occurred, she became increasingly concerned about Symons’s anger and frustration with UP over the handling of the situation. Schop stated that her number one concern was that the work environment was free of discrimination and retaliation for both Symons and Thomas. Also, Schop feared that Symons would ultimately hire a lawyer and file suit against UP if it did not take prompt effective action to remedy known harassment. Because the actions UP had previously taken against Mercier did not seem to work, and because she believed Mercier had violated the waiver agreement, in late October, Schop determined that UP needed to terminate Mercier’s employment.

On November 5, 2007, UP officially terminated Mercier for violating the waiver agreement. Mercier contested the dismissal through the union procedures, and a collective bargaining agreement (CBA) arbitration was scheduled about the matter. Although UP’s counsel was concerned about the strength of UP’s arbitration case, counsel testified that there' were three reasons why UP defended the arbitration (rather than simply returning Mer-cier to work): it believed Mercier committed retaliation in violation of the waiver agreement; it wanted to support female workers like Symons; and it was concerned Symons herself would file an EEO charge against the company if Mercier continued on the job. Ultimately, the arbitrator ruled in favor of Mercier, who returned to work, after all of the arbitration proceedings and appeals, on April 1, 2010.

On March 27, 2008, before his eventual reinstatement, Mercier filed the current FRSA complaint with Occupational Safety and Health Administration (OSHA), alleging that his termination for violating the waiver agreement was really a pretext for retaliation against him for the numerous times he reported safety issues. OSHA dismissed the complaint, finding that a preponderance of the evidence indicated that Mercier’s protected activity was not a contributing factor in the incident. Mercier appealed this ruling and requested a hearing in front of an ALJ. UP moved for summary decision because some of the protected activity at issue in this case occurred before the latest (August 3, 2007) amendments to the FRSA, and thus UP argued that Mercier was barred from pursuing both the FRSA complaint and the CBA labor arbitration, and due to lack of jurisdiction. The ALJ denied this motion, finding that since termination occurred after August 3, 2007, there was jurisdiction over the action, and because of the amendments, Mercier was not required to elect between remedies. Further, because of FRSA’s 180-day statute of limitations, 49 U.S.C. § 20109(d)(2)(A)(ii), Mercier could only challenge his termination (and not any of the earlier discipline) because he filed his petition in March 2008. The 180-day period extended back only to September 2007. However, the ALJ specifically found that while most of the protected acts of safety violation reporting occurred prior to the 180-day time frame, these acts of safety reporting were relevant and admissible because the acts provided a complete picture of the relationship between UP and Mercier and whether Mercier was discriminated against due to his protected activity.

The ALJ conducted a three-day trial on the merits of Mercier’s retaliation claim, and thereafter issued a 28-page decision finding that Mercier failed to prove that his protected activities were a contributing factor in his termination. Mercier sought review before the ARB, which affirmed the ALJ’s decision. Mercier appeals, arguing that the ALJ wrongly excluded evidence outside of the 180-day statute of limitations, admitted hearsay evidence, and erroneously applied the contributing-factor test.

II. DISCUSSION

Our review of the ARB decision is governed by the Administrative Procedure Act (APA). See 5 U.S.C. § 706(2) (APA standard of review); 49 U.S.C. § 20109(d)(4) (FRSA provision linking judicial review to the APA standards). Under this deferential standard, we must affirm the ARB’s decision unless it is unsupported by substantial evidence or is “arbitrary, capricious, an abuse of discretion, or otherwise contrary to law.” Maverick Transp., LLC v. U.S. Dep’t of Labor, 739 F.3d 1149, 1153 (8th Cir. 2014). We cannot substitute our judgment for the agency’s and in considering the entire record, must affirm if substantial evidence supports the decision. Id. “Substantial evidence is less than a preponderance, but enough that a reasonable mind would find it adequate to support the ALJ’s decision.” Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir. 2006). In reviewing the record, we consider evidence that both supports and detracts from the ALJ’s decision, but will uphold the decision “if it is supported by substantial evidence on the record as a whole even if more than one conclusion could be drawn from the evidence.” Id. We give “great deference” to the ALJ’s credibility determinations, and review an ALJ’s evidentiary rulings under an abuse-of-discretion standard. Wright Elec., Inc. v. NLRB, 200 F.3d 1162, 1166, 1168 (8th Cir. 2000).

The FRSA protects railroad employees from discharge or other discrimination in retaliation for, in relevant part, reporting hazardous safety conditions or refusing to work when confronted by a hazardous safety condition. See 49 U.S.C. 20109(b)(1); Kuduk v. BNSF Ry. Co., 768 F.3d 786, 787 (8th Cir. 2014). Under the FRSA whistleblower rubric, a plaintiff must demonstrate, by a preponderance of the evidence, that (1) he engaged in a protected activity; (2) the railroad employer knew or suspected that he engaged in a protected activity; (3) he suffered an adverse action; and (4) the protected activity was a contributing factor in the adverse action. See 29 C.F.R. 1982.104(e)(2); Kuduk, 768 F.3d at 789. A contributing factor is one which, alone or in combination with other factors, has affected the outcome of the employer’s decision. Kuduk, 768 F.3d at 791. If the plaintiff makes this showing, the burden shifts to the employer to show by clear and convincing evidence that it would have taken the same adverse action absent the protected activity. Id. at 789. The ALJ found that Mercier did not make a prima facie case in the first instance, and therefore did not shift the burden to UP to show by clear and convincing evidence that it would have terminated Mercier’s employment absent the protected activity.

A. Statute of Limitations

The FRSA provides that actions “shall be commenced not later than 180 days after the date on which the alleged violation” occurred. 49 U.S.C. § 20109(d)(2)(A)(ii). Because Mercier filed his complaint with OSHA on March 27, 2008, the ALJ correctly found that any adverse employment action that occurred prior to September 29, 2007, would not be actionable due to the operation of the statute of limitations. It is beyond dispute that the adverse employment action complained of here, Mercier’s termination in November 2007, occurred after the operative cutoff date. On the other hand, Mercier’s initial suspension in July 2007 falls outside of the reach of the statute and is not independently actionable. The ALJ nonetheless noted that Mercier’s protected activity leading up to the July 2007 suspension, which ultimately led to his termination, was certainly relevant because it “provides a complete picture of the relationship between [Mercier] and [UP] and whether [Mercier] was discriminated against because of his protected activity.” The ALJ thus correctly applied the background evidence rule enunciated by the Supreme Court in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (holding that employee can use prior acts as background evidence for a timely claim even when those same acts are time-barred).

Undeterred, Mercier vehemently contends that the ALJ failed to consider evidence that occurred prior to September 29, 2007. Despite Mercier’s repeated arguments to the contrary, we find that the ALJ correctly applied the principles of Morgan by considering all of the relevant actions that occurred prior to, and after, September 2007 in evaluating this case. In the prehearing order addressing the admissibility of time-barred acts, the ALJ appropriately held that even though untimely instances of alleged retaliatory conduct were not actionable, they were nonetheless relevant. Indeed, the ALJ findings tell the entire story of what happened in this case; almost all of the facts detailed in the ALJ’s order occurred before September 2007. Only after the ALJ thoroughly discussed Mercier’s extensive safety reporting history, and the history surrounding Mercier’s first interaction with Sym-ons, the text messages to Thomas, and the July suspension and reinstatement, did the ALJ discuss post-September 29, 2007, conduct and the only cognizable employment action — Mercier’s firing in November 2007. Thus, we find that the ALJ appropriately and adequately considered all of the relevant evidence in this case, regardless of when it occurred.

B. Hearsay Evidence

Mercier next argues that the ALJ improperly relied upon hearsay testimony, referring primarily to Symons’s and Schop’s testimony that a coworker related that Mercier continued to speak ill of Symons and Thomas even while subject to the waiver agreement. Over- Mercier’s objection, the ALJ found that Symons’s and Schop’s testimony was not offered for the truth of the matter asserted, but for the effect the information had on Schop’s decision to terminate Mercier. Mercier complains that Symons and Schop related double hearsay that was contradicted by direct evidence, because the coworker Symons referred to also testified at the hearing in front of the ALJ. At the outset, we disagree with Mercier’s characterization that the alleged hearsay evidence was contradicted by the coworker’s direct evidence. This coworker testified that while training, he rode with Mercier and heard about the original June-July EEO incident. A time later, he rode with Symons and again heard about the EEO incident. His recollection of either conversation can be described as sketchy at best, and his testimony covers eight pages in a transcript that filled nearly 600. Further, any statement Mercier initially made to the coworker is not hearsay because it is an admission by a party opponent. 29 C.F.R. § 18.801(d)(2)(i).

Nonetheless, the primary reason we reject this particular argument is because Schop’s and Symons’s testimony about what the coworker said was not offered to prove the truth of the matters asserted, but instead, to show the effect of the coworker’s assertions on Schop. See Simpson v. Beaver Dam Cmty. Hosps., Inc., 780 F.3d 784, 796 (7th Cir. 2015) (holding that a negative reference from an anonymous staff member was not considered for its truth in employment discrimination case, but instead was offered for its effect on the employment decision-makers). As we will discuss below, this incident was part of a culmination of incidents which induced Schop to believe, rightly or wrongly, that Mercier had violated the waiver agreement. Schop testified that the coworker originally confirmed Symons’s version of the events, and this confirmation, in addition to other factors, led Schop to believe that Mercier had violated the waiver agreement and needed to be fired. The fact that the coworker testified at the hearing and did not tell the same story does not diminish the significance of Schop hearing about the incident in October 2007. Accordingly, we reject Mercier’s argument that hearsay evidence at the hearing undermines the ALJ’s ultimate conclusions.

C. Contributing Factor

Mercier next argues that the ALJ misapplied the contributing-factor test, arguing that the ALJ required him to prove that the termination would not have occurred absent the safety reporting. In making this argument, Mercier points to the following statement in the ALJ’s decision: “[Mercier] argues this termination was pretextual, that is, he was fired because of his protected activity not because he violated [UP’s] EEO policy.” But this quote is not the ALJ’s statement of the legal standard; it is the ALJ’s summary of Mercier’s arguments. Instead, in the “Governing Law” section of the decision, the ALJ correctly notes that retaliation must be “a” contributing factor, and again in coming to its conclusion, the ALJ found that Mercier did not show retaliation was “a” contributing factor.

Nor does the ALJ’s analysis otherwise indicate that it held Mercier to the wrong standard of causation. In making the contributing-factor argument, Mercier again resorts to the argument that the ALJ wrongly refused to consider actions outside of the statute of limitations time frame. As noted above, we reject Mercier’s arguments in this regard. Further, substantial evidence in the record supports the ALJ’s determination that Mercier could not make out a prima facie case because he did not show that his protected activities were a contributing factor in his termination. In deciding this, we pay particular attention to the procedural posture of this case, on review of a final decision of the ARB, reviewing for substantial evidence the ALJ’s decision after a three-day hearing.

The ALJ relied heavily upon Schop’s testimony regarding Symons’s increasingly distressed communications with the EEO department in October, following Mercier’s return to work in August. Schop testified that her concern over Symons’s communications, coupled with the reports about Mercier’s comments to the coworker about Symons’s accusations, and the underwear comments, convinced her that Mercier had violated the waiver agreement and that she needed to terminate him based upon that violation. As earlier noted, Schop was concerned about a corresponding lawsuit from Symons. The ALJ repeatedly cited Schop’s testimony about her reasons for terminating Mercier, which amounted to a credibility finding which we give “great deference.” Wright, 200 F.3d at 1166.

The fact that Mercier was eventually cleared by the CBA arbitration process and has returned to work at UP has no bearing on whether the November 2007 termination was in retaliation for reporting safety violations. See Kuduk, 768 F.3d at 792 (concluding, at the summary judgment stage, that “[i]n the absence of evidence connecting his protected activity to the discharge, Kuduk is not entitled to FRSA anti-retaliation relief even if BNSF inaccurately concluded that he committed” a safety violation). Rather, the issue is whether substantial evidence supports the ALJ’s conclusion that Schop terminated Mercier based upon her conclusion, accurate or not, that he violated the waiver agreement and that his safety reporting was not a contributing factor in that decision. Substantial evidence supports the ALJ’s conclusion that Schop did indeed determine that Mercier’s conduct violated the waiver agreement without considering any safety reporting issues. Mercier’s arguments in favor of retaliation focus on an alleged pattern of retaliatory conduct meant to get rid of him as an employee. This assertion is belied, however, by the deal that was struck shortly after the June 2007 suspension wherein Mercier was allowed to return to work without the EEO hearing. The ALJ made a finding in this regard, stating that the superintendent’s “willingness to reinstate” Mercier just a few months earlier was “inconsistent with [Mercier’s] argument that [UP] was using the EEO policy as a pretext to get rid of him.” We find that the ALJ’s determination that Mercier’s protected acts were not “a” contributing factor in his termination is, indeed, supported by substantial evidence.

In addition, although the ALJ did not make a specific finding in this regard, Mercier likely also could not meet the second prong of the prima facie case-the knowledge prong. Schop testified that she did not know about Mercier’s safety reporting, and she made the decision to terminate without the superintendent’s input. The superintendent likewise testified that it was the EEO department that made the decision to fire Mercier. The safety department’s knowledge is not imputed to the EEO department; there must be some evidence connecting the two. See id. at 791-92 (noting that the incident which got the employee fired “was completely unrelated to” his FRSA reporting). Here there was no such connecting evidence, and indeed, the ALJ did make a finding that it was Schop’s, and not the superintendent’s, decision to terminate Mercier. Substantial evidence supports this finding, and thus, Mercier also cannot establish that the decision-maker for his termination had the requisite knowledge of his safety reporting. See id. at 790-91 (holding that an FRSA violation was an intentional tort requiring discriminatory animus, and cannot be committed unwittingly).

III. CONCLUSION

We deny the petition for review- and affirm the ARB’s final decision and order.

      . In 2007, Congress amended the FRSA to include additional categories of protected conduct; changed the election-of-remedies language to state that an employee cannot seek protection under both the whistleblower section and another section for the same discriminatory conduct; and also as relevant here, specified that nothing in the FRSA preempts or diminishes the rights of employees and that the rights provided by the FRSA cannot be waived. 49 U.S.C. § 20109. Thus, § 20109 permitted Mercier to pursue his whistleblower claim concurrently with the CBA grievance.

      . While the federal Rules of Evidence do not apply in administrative hearings, administra-, tive regulations promulgated by the Secretary of Labor set forth regulations on the admission of hearsay evidence similar to those in the federal rules. See 29 C.F.R. §§ 18.801-18.806.

      . Indeed, the ALJ denied UP’s motion for summary affirmance, instead finding there were material facts needing to be resolved regarding whether Mercier's protected activity was a contributing factor in his termination.


source: Caselaw Access Project

author: LOKEN, Circuit Judge. COLLOTON, Circuit Judge,

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee v. Ricky Isiah SHERWOOD, Defendant-Appellant
    No. 15-2902
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 21, 2016
    Filed: March 6, 2017

      Counsel who presented argument on behalf of the appellant was Andrew H. Mohring, AFPD, of Minneapolis, MN. The following attorney(s) appeared on the appellant’s reply brief; Robert Meyers, AFPD, of Minneapolis, MN.
    Counsel who presented argument on behalf of the appellee was Michael L. Cheever, AUSA, of Minneapolis, MN.
    Before LOKEN; SMITH, and COLLOTON, Circuit Judges.
   LOKEN, Circuit Judge.

Ricky Sherwood sexually assaulted a fellow high school student on the Kadena Air Base in Okinawa, Japan, where the families of Sherwood and the victim resided. Sherwood was- indicted in the District of Minnesota, which had jurisdiction under the Military Extraterritorial Jurisdiction Act, 18 U.S.C. §§ 3261 et seq, and pleaded guilty to sexual abuse in violation of 18 U.S.C. §§ 2242(2), 2246(2)(A); and 3261(a)(1). At sentencing, the district court varied downward from Sherwood’s advisory guidelines range and sentenced him to 60 months in prison followed by the minimum supervised release term of five years. See 18 U.S.C. § 3583(k). Sherwood appeals two special conditions of supervised release that require him to provide any personal financial information the Probation Office requests and to obtain Probation Office approval before incurring new credit charges or opening additional lines of credit. Reviewing these special conditions for abuse of discretion, we reverse.

I. Background.

On the afternoon of the assault, Sherwood invited the victim and other classmates to his home and provided everyone with alcohol. At some point, Sherwood and the victim went upstairs and began having sex. After the victim became so intoxicated she could not refuse to participate, Sherwood continued their sexual activity for more than one hour, filming what was now an assault. The videos show Sherwood laughing as he continued the assault with a victim who was unable to hold herself in a seated position or to speak clearly. After Sherwood left to work his shift as a base lifeguard, his friends carried the victim from the house and left her on a public park bench, where a school counselor found her wearing Sherwood’s clothes and still severely intoxicated.

After Sherwood pleaded guilty, the parties submitted extensive pre-sentencing position papers. The government argued that Sherwood video-recorded his sexual assault and should therefore be sentenced within the guidelines range resulting from a cross reference to enhancements for producing child pornography. Sherwood argued the child pornography guidelines should not apply to his offense, and he should receive a downward variance to 24 months in prison because of his youth, his status as a first offender, and the fact that his guardians' — a maternal aunt and uncle — had relocated to Minnesota to assist Sherwood’s rehabilitation. The Presen-tence Investigation Report and the government did not address whether special conditions of supervised release should be imposed, and the district court gave no advance notice of what conditions would be considered. Sherwood’s uncle, a psychologist, and the victim’s parents testified or spoke at the lengthy sentencing hearing.

At the end of the hearing, the district court described Sherwood’s crime as “absolutely horrible,” “disgusting,” and “infuriating,” but granted a substantial downward variance because “I don’t see this as a child pornography case.” The court explained that it was imposing a “serious sentence” of 60 months in federal custody, in part because, prior to Sherwood pleading guilty, the court had revoked his pretrial release to a halfway house after he refused to complete job-search duties and attend school, committed numerous infractions of halfway house rules and policies, and attempted to dispose of synthetic marijuana for a fellow resident. The court noted that Sherwood’s violations at the halfway house revealed that he was still a “stupid kid doing stupid kid stuff instead of ... trying to rehabilitate and get what I think is a very severe alcohol issue under control.”

The district court also imposed a five-year term of supervised release, subject to applicable mandatory and standard conditions and eleven special conditions of supervised release. See U.S.S.G. § 5D1.3. At issue on appeal are the last two special conditions appearing in the court’s written judgment:

j. The defendant shall provide the probation officer access to any requested financial information, including credit reports, credit card bills, bank statements, and telephone bills,
k. The defendant shall be prohibited from incurring new credit charges or opening additional lines of credit without approval of the probation officer.

After the court read the supervised release conditions, defense counsel stated: ‘Tour Honor, I would ask that the Court note an objection to the supervision conditions, particularly the financial ones that you ordered.” The court responded, “All right. I think under the circumstances those are appropriate.... Those will be in place until I think Mr. Sherwood gets himself established as an adult.”

II. Discussion.

“Sentencing judges have discretion to impose special conditions of supervised release so long as the conditions are reasonably related to the sentencing factors enumerated in 18 U.S.C. § 3553(a), involve no greater deprivation of liberty than is reasonably necessary, and are consistent with the Sentencing Commission’s pertinent policy statements.” United States v. Cooper, 171 F.3d 582, 585 (8th Cir. 1999). A special condition must be reasonably related to “the nature and circumstances of the offense of conviction, the defendant’s history and characteristics, the deterrence of criminal conduct, the protection of the public from further crimes of the defendant, and the defendant’s educational, vocational, medical, or other correctional needs.” United States v. Deatherage, 682 F.3d 755, 758 (8th Cir. 2012) (quotation omitted); see 18 U.S.C. § 3583(d). A special condition need not be related to all these factors; “instead, the factors are weighed independently.” United States v. Hart, 829 F.3d 606, 609 (8th Cir. 2016). On appeal, Sherwood argues the challenged financial conditions are totally unrelated to his offense of conviction and have no reasonable relation to any of the applicable § 3553(a) factors.

A. The government argues that we should review Sherwood’s challenge to the financial conditions for plain error. “When a defendant properly objects at sentencing, we review special conditions for abuse of discretion.” Deatherage, 682 F.3d at 757; see Fed. R. Crim. P. 51(b). Though Sherwood objected at sentencing, the government argues his objection was improper because it did not specifically identify the challenged financial restrictions and describe the grounds for his objection, like the general objection in United States v. Simons, 614 F.3d 475, 479 (8th Cir. 2010). We disagree.

The district court gave Sherwood no notice that it was considering financial conditions of supervised release that are unrelated to his sexual misconduct offense. Advance notice of supervised release conditions “fits into the category of recommended ‘best practice’ rather than mandatory requirement.” United States v. Kappes, 782 F.3d 828, 842 (7th Cir. 2015). Thus, lack of notice will not excuse a defendant’s total failure to object to special conditions at sentencing. See United States v. Ristine, 335 F.3d 692, 694 (8th Cir. 2003). But lack of notice of an unexpected condition “may make it difficult for the defendant to mount an effective challenge to it.” United States v. Bryant, 754 F.3d 443, 444 (7th Cir. 2014). Therefore, as we did in reviewing a nearly identical objection to financial conditions in Hart, 829 F.3d at 608 & n.3, we reject the government’s plain error contention and will review the special conditions at issue for abuse of discretion. See also United States v. Camp, 410 F.3d 1042, 1044-45 (8th Cir. 2005).

B. Sections 5D1.3(d)(2) and (3) of the advisory guidelines directly address the issue of whether the financial restrictions at issue are appropriate special conditions of supervised release:

(d) The following “special” conditions of supervised release are recommended in the circumstances described and, in addition, may otherwise be appropriate in particular cases:
⅜ ⅜ ⅜ ⅜ ¾:
(2) DEBT OBLIGATIONS
If an installment schedule of payment of restitution or a fine is imposed — a condition prohibiting the defendant from incurring new credit charges or opening additional lines of credit without approval of the probation officer unless the defendant is in compliance with the payment schedule.
(3) ACCESS TO FINANCIAL INFORMATION
If the court imposes an order of restitution, forfeiture, or notice to victims, or orders the defendant to pay a fine — a condition requiring the defendant to provide the probation officer access to any requested financial information.

We have affirmed sentences imposing these financial conditions in a number of cases. In United States v. Behler, 187 F.3d 772, 780 (8th Cir. 1999), we upheld imposing the § 5D1.3(d)(3) condition on a defendant convicted of drug trafficking because “money and greed were at the heart of Behler’s drug distribution offenses and ... monitoring Behler’s financial situation would aid in detecting any return to his former lifestyle.” In United States v. Ervasti, 201 F.3d 1029, 1046-47 (8th Cir. 2000), we concluded that the special condition in § 5D1.3(d)(2) was reasonable for a defendant convicted of fraud and tax offenses who was ordered to pay $5.7 million in restitution. In United States v. Weiss, 328 F.3d 414, 417-18 (8th Cir. 2003), we upheld imposing that condition on a defendant convicted of burglary and assault because he was ordered to pay $3,740 in restitution but had “a documented history of unemployment and ... no assets.” In Camp, 410 F.3d at 1046, we upheld imposing the § 5D1.3(d)(3) condition on a defendant convicted of a firearm offense who had a history of not paying child support; we explained this condition “is not a prohibition on behavior, but rather a monitoring device that is to be used by the probation office to complement the conditions that he follow state court child support orders and remain employed.” In Hart, 829 F.3d at 609, we upheld imposing both financial conditions on a defendant convicted of assaulting a family member because that offense and a prior offense “related to money,” defendant owed a debt arising out of a prior offense, and a special condition ordered him to contribute to the cost of mandated drug treatment. These decisions reflect the basic principle that the district court has discretion “to tailor a condition to the needs of a particular case, consistent with § 5D1.3(b).” Ervasti, 201 F.3d at 1046.

C. Unlike the imposition of financial conditions in the above cases, the district court summarily imposed two financial conditions in this case, with no explanation and no advance notice, contrary to this court’s well-established precedent:

When crafting a special condition of supervised release, the district court must make an individualized inquiry into the facts and circumstances underlying a case and make sufficient findings on the record so as to ensure that the special condition satisfies the statutory requirements. The district court may not impose a special condition on all those found guilty of a particular offense.

United States v. Wiedower, 634 F.3d 490, 493 (8th Cir. 2011) (citations and quotations omitted).

First, the financial conditions were totally unrelated to Sherwood’s offense of conviction and the circumstances surrounding that offense. Money, greed, and debt simply had nothing to do with his horrific crime. Without question, a district court has discretion to impose a special condition not related to the offense of conviction, but the record must reflect ah individualized inquiry establishing that the condition does not restrict defendant’s liberty “more than is reasonably necessary to fulfill the sentencing goals.” Camp, 410 F.3d at 1046.

Second, the Guidelines specifically recommend these two financial conditions when a sentence includes other provisions that are not part of Sherwood’s sentence— the defendant is not in compliance with a court-ordered installment schedule for paying restitution or a fine, § 5D1.3(d)(2); or the court has imposed an order of restitution, forfeiture, notice to victims, or a fine, § 5D1.3(d)(3). As Section 5D1.3(d) makes clear, the district court had discretion to impose tailored financial conditions that were appropriate to this case. But the operative provisions in special conditions j. and k. were inappropriately taken verbatim from the guideline provisions:

—Condition k. prohibits Sherwood from incurring new credit charges and opening additional lines of credit, when the record established that he has probably never had a credit card or a line of credit. Obviously, there was no attempt to tailor the condition to the needs of this case. Moreover, condition k. is a dramatically overbroad restriction on Sherwood’s ability to lead a normal life. Read literally, it prohibits him from using a credit card, perhaps even his uncle’s credit card, to buy an ice cream cone, without a probation officer’s prior approval.
—Condition j. requires Sherwood to provide “any requested financial information,” a hopelessly vague and over-broad term when no context is provided. See United States v. Thompson, 777 F.3d 368, 379-80 (7th Cir. 2015).

The inclusion of vague and inappropriate language borrowed from the Guidelines out of context and by rote does not reflect the individualized inquiry we require.

Third, the absence of advance notice that an unexpected special condition will be considered is particularly relevant “if the defendant could have offered something pertinent at sentencing.” United States v. Scott, 316 F.3d 733, 734 (7th Cir. 2003). Here, the sentencing record contained no information on the extent of Sherwood’s prior financial experience. The district court simply assumed he had none and in effect assigned the probation officer to be Sherwood’s financial guardian during supervised release. Yet Sherwood’s uncle, his legal guardian, testified at the sentencing hearing. Had the issue been disclosed to counsel in advance, the uncle could have been questioned about the extent of Sherwood’s prior financial experience, including his handling of any prior financial obligations, and the uncle’s plans, if any, to guide Sherwood to appropriate financial responsibility during his period of supervised release. The record then would have been sufficient to ensure that any financial conditions imposed were reasonably related to sentencing and involved no greater deprivation of liberty than is reasonably necessary.

Fourth, the district court’s only explanation for imposing special conditions j. and k. was that they “are appropriate [and] will be in place until I think Mr. Sherwood gets himself established as an adult.” This explanation would apply to all juvenile federal offenders who lack financial experience and are placed on supervised release. While it is no doubt appropriate for a district court to consider the defendant’s youth and immaturity in crafting special conditions of supervised release, to do so in this categorical manner violates the rule that any such inquiry “must take place on an individualized basis; a court may not impose a special condition on all those found guilty of a particular offense.” United States v. Davis, 452 F.3d 991, 995 (8th Cir. 2006).

For the foregoing reasons, we conclude the district court abused its discretion in imposing supervised release special conditions j. and k. We modify the judgment to delete those conditions. As so modified, the judgment of the district court is affirmed.

COLLOTON, Circuit Judge,

dissenting.

This court has upheld the imposition of the disputed special conditions of supervised release over ■ the same objections raised by the court in this case. I therefore conclude that the district court did not abuse its discretion in fashioning special conditions for Ricky Sherwood and would affirm the judgment.

The court sets forth three leading objections to the financial conditions imposed by the district court — (1) the conditions were unrelated to the offense of conviction, (2) the conditions did not accompany an order of restitution, forfeiture, or fine, or noncompliance with a court-ordered installment schedule, see USSG § 5D1.3(d)(2), (3), and (3) the district court did not provide advance notice that it would impose the conditions. In United States v. Camp, 410 F.3d 1042 (8th Cir. 2005), however, we upheld the same conditions after acknowledging that they were' imposed without notice, id. at 1044, where the defendant was not ordered to pay restitution or a fine, id. at 1046, and where the conditions were not reasonably related to the offense of conviction (in that case, unlawful possession of a firearm). Id. These factors did not establish an abuse of discretion, because a special condition need not be related to all of the statutory factors in 18 U.S.C. § 3583(d), financial conditions may be imposed in appropriate situations despite the absence of a fine or restitution order (Camp owed child support payments), and no advance notice is required so long as the defendant may object at the hearing. Sherwood had notice of the financial conditions before the sentencing hearing concluded, but he never requested an opportunity to augment the record with information about his supposed financial responsibility.

Sherwood committed a heinous sex offense as an eighteen-year-old high schooler and pleaded for a sentence that emphasized rehabilitation rather than retribution and incarceration. The district court imposed a term of imprisonment below the advisory guideline range and included special conditions of release that were designed to facilitate rehabilitation. The record showed no experience of the defendant in managing finances: Sherwood was a dependent of his aunt and uncle, with no assets or liabilities and no history of filing an independent tax return. PSR ¶ 74. The district court reasonably determined that conditions to monitor Sherwood’s financial situation complemented the condition that he contribute to the costs of substance abuse treatment. Concerns about potential overbreadth or hypothetical restrictions on purchasing ice cream cones do not justify striking the conditions, given the district court’s “abundant opportunity to amend or ameliorate any unreasonable adverse impact” during the term of Sherwood’s supervised release. United States v. Hart, 829 F.3d 606, 610 (8th Cir. 2016); see United States v. Deatherage, 682 F.3d 755, 765 (8th Cir. 2012).

The court worries that the financial conditions were imposed in a “categorical manner” rather than on an “individualized basis.” At some point, however, “there must be a limit to the need for an individualized inquiry, because certain characteristics may justify corresponding conditions for virtually all offenders with such characteristics.” United States v. Springston, 650 F.3d 1153, 1156 (8th Cir. 2011), vacated on other grounds, 566 U.S. 931, 132 S.Ct. 1905, 182 L.Ed.2d 766 (2012). We are left after this decision with a rule that these financial conditions are permissible for child-support deadbeats convicted of gun crimes, see Camp, 410 F.3d at 1046, but not for alcohol-fueled teenage sexual abusers with no financial experience who must contribute to the costs of substance abuse treatment. Seeing no reason to distinguish between these categories of defendants, I would affirm the judgment.


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee v. Velnita Jolette HAIRY CHIN, Defendant-Appellant
    No. 16-1091
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 17, 2016
    Filed: March 6, 2017

      Counsel who represented the appellant was Randall B. Turner, AFPD, of Pierre, SD.
    Counsel who represented the appellee was Kirk W. Albertson, AUSA, of Pierre, SD.
    Before LOKEN, SMITH, and COLLOTON, Circuit Judges.
   PER CURIAM.

Velnita Hairy Chin, a member of the Standing Rock Sioux Tribe and resident of the Tribe’s reservation, pleaded guilty to one count of child abuse, in violation of 18 U.S.C. .§ 1153(a) and S.D. Codified Laws § 26-10-1. The United States Probation Office recommended in Hairy Chin’s pre-sentence investigation report (PSR) that she receive a total offense level of six and a criminal history category II, providing her with a sentencing range of one to seven months’ imprisonment. Hairy Chin thereafter objected to the PSR’s recommended two-level increase for the victim’s bodily injury pursuant to U.S.S.G. § 2A2.3(b)(l)(A).

At the sentencing hearing, the government requested an upward departure from the suggested sentencing range recommended in the PSR in light of (1) the extreme conduct precipitating the charge, (2) the dismissed and uncharged conduct, and (3) Hairy Chin’s understated criminal history. The district court, after reviewing the circumstances of Hairy Chin’s case, granted the government’s request. The court assigned Hairy Chin a total offense level of 12 and a category VI criminal history, resulting in a Guidelines range of 30 to 37 months’ imprisonment. Notably, the district court sentenced her to 37, months’ imprisonment, which was the high end of the applicable Guidelines range. In doing so, the court did not explicitly rule on Hairy Chin’s objection to the PSR’s recommended two-level increase for the victim’s bodily injury'. Hairy Chin appeals her sentence, asserting that the district court erred by failing to rule on her objection. She also argues that the district court abused its discretion by imposing an unreasonable sentence. We disagree and affirm the judgment of the district court.

I. Background

On the evening of June 23, 2015, the Bureau of Indian Affairs (BIA) received a complaint about unsupervised children playing outside Hairy Chin’s home. When the BIA officer arrived at the residence, he discovered seven unattended children under the age of 12, including a crying infant strapped into a car seat. In the basement, the officer found Hairy Chin unconscious and apparently inebriated. After identifying Hairy Chin as the responsible adult, the officer arrested her for child neglect. Emergency medical technicians arrived and transported the infant to the hospital because of his inconsolable crying. When asked about the child, Hairy Chin admitted to dropping the baby the previous day but asserted that the child was fine. At the hospital, the infant was diagnosed with abrasions on his legs from the extensive time in the car seat, bruising on his right leg and right buttock, diaper rash, air in his lungs from continual crying, and an ear infection. Child Protection Services (CPS) removed all seven children from the residence and placed them in alternative homes.

Hairy Chin has a lengthy criminal history. Her state and federal convictions include theft, damage to property, and child endangerment. In addition, Hairy Chin has accumulated more than 40 convictions in the Standing Rock Tribal Court. These convictions, although not counted in her PSR criminal history, include multiple counts of disorderly conduct, eight counts of child neglect, driving while under the influence, possession of drugs, criminal contempt, and aggravated 'assault. In 2012, Hairy Chin pleaded guilty to federal child-abuse charges. The facts of the 2012 incident mirror the current case remarkably. Hairy Chin brought her four-month-old daughter to the hospital because of a seizure. Medical professionals determined that the infant suffered from several head injuries and a severe infection. The multiple head injuries were at different stages of healing, indicating a pattern of being dropped or mishandled. Hairy Chin served one year of imprisonment as a result. The present offense occurred just six months after she completed supervised release. Despite her criminal record, CPS placed four of Hairy Chin’s grandchildren in her care — all under the age of five. She was also the primary caregiver for three of her own minor children.

At sentencing, the government introduced testimony from the BIA officer sent to Hairy Chin’s home and photographic evidence of the injuries sustained by the infant confined in the car seat. The CPS worker in charge of the four grandchildren also took the stand. The CPS worker admitted that she failed to perform a background check on Hairy Chin and failed to perform a home inspection before placing the four grandchildren in her care. In response to this testimony, the district court interjected, “If this is the way that the child protection agency is being run, children are at great risk [at the Standing Rock Sioux Reservation].” After hearing arguments from defense counsel, the district court discussed Hairy Chin’s criminal history at length:

And so this is an outrageous history of one crime after another and, more importantly, one crime after another of abusing children, including a conviction in this Court.
⅜ * *
Clearly, an upward departure is proper here.
* * *
We have all of these multiple counts of conviction for which the defendant did not receive a criminal history point, and I’ve gone through all of those convictions. This is an outrageous case, very frankly.

The district court determined that the number and seriousness of Hairy Chin’s past criminal convictions placed her into a criminal history category VI pursuant to U.S.S.G. § 4A1.3. The court adopted the PSR’s offense-level calculation of six, which included the two-level increase under U.S.S.G. § 2A2.3(b)(l)(A) for the bodily injury sustained by the infant, and increased that level to 12 pursuant to U.S.S.G. 5K2.21 for the six dismissed counts of child abuse regarding the other six children in Hairy Chin’s custody on the night of her arrest. The court determined Hairy Chin’s Guidelines range to be 30 to 37 months’ imprisonment and sentenced her to 37 months.

II. Discussion

“We review a sentence ‘in two parts: first, we review for significant procedural error, such as an improper calculation of the advisory sentencing guidelines range; and second, absent significant procedural error, we review for substantive reasonableness.” United States v. Fischer, 551 F.3d 751, 754 (8th Cir. 2008). Hairy Chin argues that the district court procedurally erred and that her sentence is substantively unreasonable. We will examine both of these contentions in turn.

A. Procedural Error

A significant procedural error can occur if the district court fails to consider the sentencing factors in 18 U.S.C. § 3553(a), selects a sentence based on clearly erroneous facts, or fails to adequately explain its chosen sentence. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). “In reviewing a sentence for procedural error, we review the district ’ court’s factual findings for clear error and its application of the guidelines de novo.” United States v. Barker, 556 F.3d 682, 689 (8th Cir. 2009). We will find clear error only if the review produces “the definite and firm conviction that a mistake has been committed.” United States v. Adetiloye, 716 F.3d 1030, 1036 (8th Cir. 2013) (quoting United States v. Lalley, 257 F.3d 751, 758 (8th Cir. 2001)). “Compliance with rules of criminal procedure is reviewed de novo.” United States v. Theimer, 557 F.3d 576, 577 (8th Cir. 2009).

Hairy Chin argues that the district court committed reversible error by failing to rule on her objection to the PSR’s recommended two-level increase for the victim’s bodily injury pursuant to U.S.S.G. § 2A2.3(b)(l)(A). The district court ruled against the PSR objections generally. The court did not make a specific finding on whether the injury sustained by the infant in Hairy Chin’s care met the definition of “bodily injury” under U.S.S.G. § 1B1.1. Hairy Chin asserts that this oversight fell below the standard set out by Federal Rule of Criminal Procedure 32(i)(3)(B), which requires a sentencing court to rule on any disputed PSR objection. She points to United States v. Fetlow, 21 F.3d 243 (8th Cir. 1994), for the proposition that a blanket overruling of all objections to the PSR violates Rule 32. “Where the findings of the sentencing court render the appellate court unable to determine the legal basis upon which they were made, a remand for further findings is warranted.” Id. at 248. In Fetlow, the government presented no evidence at the sentencing hearing in response to the defendant’s three objections to his PSR calculation, and it was unclear if the district court relied exclusively on the allegations reported in the PSR. See id. at 248-49. We remanded the case to the sentencing court because upon review, we could not determine if the sentencing court based its ruling upon evidence with “sufficient indicia of reliability.” Id. at 249.

Hairy Chin presents a different case entirely. She disputes the legal conclusion of what constitutes bodily injury under § 1B1.1, not whether the district court relied on reliable evidence in making its finding. To establish the facts relating to the two-level increase, the sentencing court heard testimony from the BIA officer who saw the infant, and the court viewed photographic evidence of the infant’s injuries. “If the sentencing court elects to make a finding, the government must produce evidence sufficient to convince the court by a preponderance of the evidence that the fact in question exists.” Id. at 249-50. Unlike Fetlow, none of the factual allegations in this case are disputed. Although the district court did not make a specific ruling on the PSR objection, the record reflects sufficient reliable evidence for the district court to make a well-informed decision about whether Hairy Chin’s conduct warranted a two-level increase pursuant to U.S.S.G. § 2A2.3(b)(l)(A). The district court was able to and did make this determination on the record before it. The absence of a specific ruling on Hairy Chin’s objection is not by itself a significant procedural error because the record reflects sufficient evidence for the district court’s findings to receive meaningful appellate review.

B. Substantive Reasonableness

When reviewing a sentence for its substantive reasonableness, we apply an abuse-of-discretion standard. Gall, 552 U.S. at 51, 128 S.Ct. 586. “A district court abuses its discretion when it (1) fails to consider a relevant factor that should have received significant weight; (2) gives significant weight to an improper or irrelevant factor; or (3) considers only the appropriate factors but in weighing those factors commits a clear error of judgment.” United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (quotation omitted). This review is “narrow and deferential.” Id. at 464 (quoting United States v. Gardellini, 545 F.3d 1089, 1090 (D.C. Cir. 2008)).

Hairy Chin argues that the district court improperly weighed the significance of her 40 tribal convictions in elevating her criminal history category. She asserts that because the district court did not enhance her criminal history category for the tribal convictions when it sentenced her in 2012, the court should be consistent and ignore them once again. When sentencing Hairy Chin in the 2012 case, however, the district court sentenced her to only 12 months because of uncertainty about her personal responsibility for the victim-child’s multiple head injuries — not because the previous tribal convictions lacked relevance. The district court did not abuse its discretion by deciding to count Hairy Chin’s tribal convictions in reaching its sentence.

She also argues that the court should have weighed her good behavior since the 2012 conviction in her favor with a lighter sentence. The facts, however, belie this argument. Once released from custody in 2013, Hairy Chin spent nine months of supervised released pregnant with the child that she later injured. When this child reached six months old, Hairy Chin was arrested once again for abusing an infant in her care. The court had ample basis for discounting her alleged mitigating good behavior, especially considering Hairy Chin’s virtual repeat offense to the 2012 conviction.

Additionally, Hairy Chin argues that the district court gave improper weight to the bad acts of CPS and the Standing Rock Tribal Court. She argues that the district court, angered by these third parties’ inaction, unfairly assessed the seriousness of her actions. She points to numerous expressions of frustration by the district court when discussing the failings of CPS and the seemingly ineffective sentencing efforts of the tribal court. To be sure, the record does reflect numerous negative remarks by the district court toward various officials, but the record also reflects the court’s relevant disappointment with the behavior of Hairy Chin. Nothing in the sentencing transcript indicates that the district court gave significant weight to the actions of CPS or third parties in determining Hairy Chin’s final sentence. Rather, the transcript demonstrates an individualized assessment of Hairy Chin’s history and the circumstances surrounding the conviction.

The district court properly weighed the circumstances of the case and the past history of Hairy Chin’s criminal child neglect to make “precisely the kind of defendant-specific determinations that are within the special competence of sentencing courts.” Feemster, 572 F.3d at 464 (quoting Gardellini, 545 F.3d at 1095). The district court did not abuse its discretion; Hairy Chin’s final sentence is not substantively unreasonable.

III. Conclusion

Accordingly, we affirm the judgment of the district court.

      . The Honorable Charles B. Kornmann, United States District Judge for the District of South Dakota.

      . The district court stated: “The presentence report speaks for itself in that regard. So that — the objections are overruled, in any event.”


text:
    UNITED STATES of America, Plaintiff-Appellee v. Jamayal M. MANNINGS, also known as Mal, also known as Slim, Defendant-Appellant
    No. 16-1492
    United States Court of Appeals, Eighth Circuit.
    Submitted: November 14, 2016
    Filed: March 6, 2017

      Heather R. Landon, Landon Law, LLC, Olathe, KS, for appellant.
    Patrick C. Edwards, Asst. U.S. Atty., Kansas City, MO (Tammy Dickinson, U.S. Atty., on the brief), for appellee.
    Before RILEY, Chief Judge, SMITH and KELLY, Circuit Judges.
   PER CURIAM.

Jamayal Mannings appeals his sentence, challenging the district court’s findings regarding drug quantity and two Sentencing Guidelines enhancements, as well as the reasonableness of the sentence. Having jurisdiction under 28 U.S.C. § 1291, we affirm.

I.

On February 25, 2013, a federal grand jury for the Western District of Missouri returned a superseding indictment against Mánnings and seven other defendants. Mannings was charged with seven counts related to the distribution of cocaine base (crack cocaine) and powder cocaine in the St. Joseph, Missouri, area from January 1, 2009 to February 20, 2013. Mannings initially pleaded guilty to one count of conspiracy to distribute crack cocaine and powder cocaine pursuant to a binding written plea agreement executed under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. In the agreement, the parties stipulated that Mannings’ base offense level was not less than 38. The agreement prescribed a sentence of 300 months’ imprisonment, with 5 years of supervised release to follow. A presentence investigation report (PSR) was prepared that calculated Mannings’ sentencing guideline range as 360 months to life.

After receiving the PSR, Mannings moved to withdraw his guilty plea. He was allowed to withdraw his plea on July 9, 2014, and trial was reset for January 12, 2015. On January 8, 2015, however, Man-nings pleaded guilty to one count of conspiracy to distribute a mixture or substance containing crack cocaine in an amount of 280 grams or more, and powder cocaine in an amount of 5 kilograms or more. Although there was no written plea agreement, the government agreed to dismiss the remaining six counts against Mannings and to move to withdraw an Information to Establish Prior Conviction that had been filed on March 4, 2013. An amended PSR was prepared, which recommended a drug quantity that resulted in a base offense level 36, and assessed a two-level enhancement because a firearm “was possessed” and a three-level enhancement for Mannings’ aggravating role in the offense. After a three-level reduction for acceptance of responsibility, Mannings’ total offense level was 38. At a criminal history category III, the recommended sentencing guideline range was 292-365 months. Man-nings objected to the drug quantity calculation and both enhancements.

At the sentencing hearing held on December 3, 2015, the government presented two witnesses — a cooperating co-conspirator, Andre Turner, and Special Agent (SA) Dimechi Herring from the Bureau of Alcohol, Tobacco, Firearms, and Explosives. Taking the matter under advisement, the court continued the sentencing hearing to February 9, 2016, so it could review the transcript of testimony. At the February 9 hearing, the court overruled Mannings’ objections and sentenced him to 292 months imprisonment, followed by a five-year term of supervised release.

II.

The government bears the burden of proving by a preponderance of the evidence the facts that support drug quantity and sentencing enhancements. See United States v. Gamboa, 701 F.3d 265, 267 (8th Cir. 2012) (role enhancement); United States v. Muniz Ochoa, 643 F.3d 1153, 1156 (8th Cir. 2011) (enhancement for possession of firearm); United States v. Payton, 636 F.3d 1027, 1046 (8th Cir. 2011) (drug quantity). “We review the district court’s application of the Guidelines to the facts de novo; its factual findings for clear error; and the ultimate sentence for reasonableness.” United States v. Hatcher, 501 F.3d 931, 933 (8th Cir. 2007).

Mannings first challenges the district court’s calculation of drug quantity, alleging the government’s evidence was unreliable and uncorroborated. The government’s first witness, Andre Turner, testified to his own firsthand knowledge of Mannings’ drug trafficking activity in the St.. Joseph area. He saw Mannings sell crack cocaine to customers and knew how much Mannings charged. Turner testified that he also purchased crack cocaine from Mannings, which Turner would “break [ ] down and distribute” to others. Turner saw Mannings “cook” powder cocaine into “ounces” of crack cocaine on a regular basis, and described where and how Man-nings did the cooks. Turner’s testimony was corroborated by SA Herring, the case agent. SA Herring testified about surveillance operations targeting Mannings and undercover buys of crack cocaine from Mannings. SA Herring also testified about interviews with other cooperating witnesses whose statements were consistent with Turner’s testimony about Mannings’ drug trafficking activity.

Mannings notes this testimony was not corroborated by evidence such as audio or video recordings, fingerprint or DNA analysis, or polygraphs of informants. But a court may “consider uncorroborated hearsay evidence so long as the evidence has sufficient indicia of reliability to support its accuracy and the defendant is given a chance to rebut or explain it.” United States v. Garcia, 774 F.3d 472, 475-76 (8th Cir. 2014) (per curiam). Here, the district court considered the testimony of both a co-conspirator and an investigating officer. See United States v. Walker, 688 F.3d 416, 421 (8th Cir. 2012) (“A sentencing court may determine drug quantity based on the testimony of a co-conspirator alone.” (quoting United States v. Sarabia-Martinez, 276 F.3d 447, 450 (8th Cir. 2002))). Nevertheless, Mannings argues that neither witness was credible: Turner because he testified in the hope of reducing his own sentence; and SA Herring because his testimony was based on statements from individuals who had a motive to fabricate information. However, Man-nings cross-examined both witnesses on these purported weaknesses at sentencing and argued the point to the district court. We afford district courts wide latitude in choosing what information to consider in determining drug quantity, and “the sentencing court’s assessment of the credibility of witnesses is nearly unreviewable.” United States v. Mickelson, 378 F.3d 810, 822 (8th Cir. 2004) (quoting United States v. Dierling, 131 F.3d 722, 736 (8th Cir. 1997)). The district court did not err in relying on the testimony presented to determine the total drug quantity for purposes of establishing Mannings’ base offense level.

Next, Mannings asserts the district court erred in imposing a two-level enhancement for possession of a firearm. See USSG § 2Dl.l(b)(l) (“If a dangerous weapon (including a firearm) was possessed, increase by 2 levels.”). Mannings points out he was not found in possession of a firearm when he was arrested. But it is not necessary that a defendant be seen with or using a firearm for this enhancement to apply. United States v. Anderson, 618 F.3d 873, 880 (8th Cir. 2010). Nor is the government required to prove ownership of a firearm or the premises on which it is found for a § 2D1.1(b)(1) enhancement to apply. Id. SA Herring testified that two firearms, along with a bulletproof vest, loose ammunition, and approximately 37 grams of crack cocaine, were found in a car Mannings had been seen driving during the course of surveillance — a car registered to the mother of Mannings’ children. Turner testified that Mannings carried a gun when he was “out in traffic or doing [drug trafficking] business,” and that Man-nings had been involved in shootouts with other drug traffickers during the relevant time period. Here, the evidence supported the district court’s finding that a firearm “was possessed” at one or more times during the drug conspiracy, and the district court did not err in imposing the enhancement.

Mannings next challenges the enhancement for his role in the offense. Section 3Bl.l(b) of the Sentencing Guidelines provides a three-level enhancement “[i]f the defendant was a manager or supervisor ... and the criminal activity involved five or more participants.” Mannings argues there was not sufficient evidence to support this enhancement, focusing on the phrase “manager or supervisor.” We have “defined the terms ‘manager’ and ‘supervisor’ quite liberally,” holding that “[a] defendant' can be subject to this enhancement for having managed or supervised only one other participant in the criminal conspiracy.” United States v. Valencia, 829 F.3d 1007, 1012 (8th Cir. 2016) (quoting United States v. Lopez, 431 F.3d 313, 318 (8th Cir. 2005)). “The key factors in determining management or supervisory authority are control over participants and organization of the criminal activity.” Id. (quoting United States v. Pena, 67 F.3d 153, 156-57 (8th Cir. 1995)).

According to the amended PSR, Mannings and at least four other co-conspirators possessed, transported, and distributed powder and crack cocaine in the St. Joseph area. It alleged that between January 1, 2009, and February 20, 2013, Mannings obtained powder and crack cocaine from co-conspirator Larry Brooks in Kansas City, and that Mannings also instructed several of his other co-conspirators to pick up cocaine from Brooks for him. Mannings did not object to these allegations. “[Ujnless a defendant objects to a specific factual allegation contained in the PSR, the court may accept that fact as true for sentencing purposes.” United States v. Humphrey, 753 F.3d 813, 818 (8th Cir. 2014) (alteration in original) (quoting United States v. Arrieta-Buendia, 372 F.3d 953, 955 (8th Cir. 2004)). As a result, the district court was permitted to rely on these facts. See id. (An objection “not to the facts themselves but to the PSR’s recommendation based on those facts” does not prevent the district court from relying on those facts, (quoting United States v. Moser, 168 F.3d 1130, 1132 (8th Cir. 1999))). SA Herring corroborated this information, testifying that Mannings sent someone who was working as a confidential informant to Kansas City to get powder cocaine from Brooks on at least eight occasions. In addition, according to Turner, Mannings was “the leader” of the conspirators listed in the indictment, and “if you wanted drugs in the St. Joseph area,” you went to Mannings. Finally, both Turner and SA Herring testified that Man-nings “cooked” powder cocaine into crack cocaine and sold or fronted it to others, who in turn sold it to their customers. See United States v. Gaines, 639 F.3d 423, 428 (8th Cir. 2011) (relevant factors when considering a role enhancement include whether defendant manufactured the drug or distributed it for redistribution, the nature and scope of the criminal activity, and the nature of the defendant’s participation in the offense). The district court did not err in imposing an enhancement for Man-nings’ role in the offense of conviction.

Finally, Mannings argues the district court erred, both procedurally and substantively, when imposing the sentence. He asserts the district court erred procedurally by failing to adequately explain its chosen sentence. See Gall v. United States, 552 U.S. 38, 50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Because Mannings did not object to the court’s explanation at sentencing, we review this claim for plain error. United States v. Chavarria-Ortiz, 828 F.3d 668, 671 (8th Cir. 2016) (explaining that “[o]ur cases routinely have conducted plain-error review of claims that a district court failed adequately to explain a chosen sentence”). To prevail under plain-error review, Mannings must demonstrate “that a more detailed explanation would have resulted in a lighter sentence.” Id.

“A district court need not quote verbatim all of the factors listed in § 3553(a).” United States v. Shores, 700 F.3d 366, 376 (8th Cir. 2012). “The record must make clear that the court considered the [statutory factors] in sentencing,” United States v. Jones, 756 F.3d 1121, 1122 (8th Cir. 2014) (per curiam), but a district court can generally demonstrate it did so by referring to some of those factors at sentencing, Shores, 700 F.3d at 376. In this case, the district court continued the sentencing hearing in order to more carefully consider the evidence and arguments presented by the parties. At the formal sentencing, the court discussed Mannings’ criminal conduct, the dangerous nature of drug trafficking, the need to protect the public from further crimes, and the need for deterrence. The district court provided sufficient reasoning to explain the sentence imposed, and we find no error, plain or otherwise. See Jones, 756 F.3d at 1122 (when the district court imposes a guidelines sentence, a lengthy explanation is often unnecessary).

Mannings asserts that his sentence is substantively unreasonable because the statutory mandatory minimum sentence of ten years was sufficient to meet the goals of § 3553(a). In determining whether a sentence is reasonable, we review the district court’s decision for an abuse of discretion. Hatcher, 501 F.3d at 933. “A sentencing court abuses its discretion if it fails to consider a relevant factor that should have received significant weight, gives significant weight to an improper or irrelevant factor, or considers only the appropriate factors but commits a clear error of judgment in weighing those factors.” Id. (quoting United States v. Watson, 480 F.3d 1175, 1177 (8th Cir. 2007)). Mannings offers no argument that the district court failed to consider a relevant factor, or improperly considered or weighed any relevant or irrelevant factor. Instead, Mannings simply asserts it was “clear err[or]” to impose a sentence longer than ten years; but we note that the sentence imposed was at the bottom of the guideline range. A sentence imposed within the advisory guideline range is generally presumed reasonable. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). Under these circumstances, we cannot conclude the district court imposed a substantively unreasonable sentence.

III.

For the foregoing reasons, we affirm Mannings’ sentence.

      . The Honorable Fernando J. Gaitan, Jr., United States District Judge for the Western District of Missouri.

      . A Rule 11(c)(1)(C) plea agreement binds not only the government and the defendant, but also the court if the court accepts the agreement. United States v. Scurlark, 560 F.3d 839, 841-42 (8th Cir. 2009).

      . Mannings does not contest any particular quantity of drugs included in the calculation, relying instead on an assertion that the evidence as a whole was generally unreliable.

      . Mannings objected to the allegation that these activities involved “large quantities” of cocaine, but not to the underlying activities themselves.


author: KELLY, Circuit Judge.

text:
    Ismael DOMINGUEZ-HERRERA; Lidia Cristina Hernandez-Martinez, Petitioners v. Jefferson B. SESSIONS, III, Attorney General of the United States, Respondent
    No. 15-3457
    United States Court of Appeals, Eighth Circuit.
    Submitted: November 17, 2016
    Filed: March 7, 2017

      Counsel who presented argument on behalf of the petitioner and appeared on the brief was Matthew Lorn Hoppock, of Overland Park, KS.
    Counsel who presented argument on behalf of the respondent and appeared on the brief was Sabatino F. Leo, O.I.L., of Washington, DC.
    Before RILEY, Chief Judge, WOLLMAN and KELLY’ Circuit Judges.

      . Jefferson B. Sessions, III, is automatically substituted pursuant to Federal Rule of Appel-nte Procedure 43(c)(2).

   KELLY, Circuit Judge.

Petitioners Lidia Cristina Hernandez-Martinez and Ismael Dominguez-Herrera, a married couple, appeal the denial of their consolidated applications for cancellation of removal under section 240A(b) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1229b(b)(l). Because the petitioners have failed to meet their burden under the REAL ID Act to establish their eligibility for cancellation of removal, we deny their petition. See 8 U.S.C. § 1229a(c)(4).

I. Background

Hernandez-Martinez and Dominguez-Herrera are non-permanent residents of the United States. On February 17, 2011, the Department of Homeland Security served Hernandez-Martinez with a Notice to Appear, charging her with deportability under section 237(a)(1)(B) of the INA, 8 U.S.C. § 1227(a)(1)(B), on the grounds that she was an alien who had remained in the country longer than permitted. On April 26, 2012, she submitted a written pleading admitting to the factual allegations of the Notice to Appear and conceding removability. On August 9, 2011, the Department of Homeland Security served Dominguez-Herrera with a Notice to Appear, charging him with inadmissibility under section 212(a)(6)(A)(i) of the INA, 8 U.S.C. § 1182(a)(6)(A), on the grounds that he was an alien present in the country without being admitted or paroled. He admitted the factual allegations of the Notice to Appear, and an immigration judge (IJ) found that he was subject to removal on September 8, 2011.

Both petitioners applied for cancellation of removal under section 240A(b) of the INA, 8 U.S.C. § 1229b(b)(l), which provides, “The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or de-portable from the United States if the alien” meets certain conditions. One condition is that the alien has not been convicted of an offense under 8 U.S.C. § 1227(a)(2). The IJ concluded, and the BIA affirmed, that both petitioners had committed an offense described in 8 U.S.C. § 1227(a)(2)(A)(i): “a crime involving moral turpitude ... for which a sentence of one year or longer may be imposed.” Specifically, the IJ concluded that Hernandez-Martinez had been convicted of theft in the municipal court of Hutchinson, Kansas, and Dominguez-Herrera had been convicted of theft in the municipal court of Great Bend, Kansas. Both Hutchinson and Great Bend have adopted the Kansas Uniform Public Offense Code (UPOC). The IJ concluded that each petitioner was convicted of theft under UPOC § 6.1. The relevant version of UPOC § 6.1 provides, in part:

Theft is any of the following acts done with the intent to deprive the owner permanently of the possession, use or benefit of the owner’s property:
(a) Obtaining or exerting unauthorized control over property;
(b) Obtaining by deception control over property;
(c) Obtaining by threat control over property; or
(d) Obtaining control over stolen property knowing the property to have been stolen by another.

In determining that each petitioner was convicted of theft under UPOC § 6.1, the IJ relied on various municipal court documents. With respect to Hernandez-Martinez, the record includes: a complaint charging Hernandez-Martinez with violating UPOC § 6.1(a); a form titled Waiver of Right to Counsel and Trial, which states that Hernandez-Martinez was charged with theft under the UPOC; and a court docket sheet indicating that Hernandez-Martinez pleaded guilty to a violation of UPOC § 6.1(a). With respect to Dominguez-Herrera, the only document in the record is an Abstract of Conviction, which states Dominguez-Herrera was convicted of “theft” in violation of “21-3701.” Kan. Stat. Ann. § 21-3701 (recodified effective July 1, 2011 at § 21-5801) is a state criminal statute that is nearly identical to UPOC § 6.1.

Thus, the IJ concluded the petitioners were not eligible for cancellation of removal, and ordered the petitioners to be removed. The Board of Immigration Appeals (BIA) affirmed, and the petitioners filed the present petition for review.

II. Discussion

The petitioners appeal the BIA’s conclusions on three grounds: (1) that the municipal judgments against them are not criminal convictions; (2) that the offenses were not crimes involving moral turpitude; and (3) that the maximum penalty possible for each offense was less than a year.

Under 8 U.S.C. § 1252(a)(2)(B)®, “no court shall have jurisdiction to review” the denial of cancellation of removal under § 1229b. “Even so, this court has jurisdiction of ‘constitutional claims or questions of law raised upon a petition for review.’ ” Solis v. Holder, 647 F.3d 831, 832 (8th Cir. 2011) (quoting 8 U.S.C. § 1252(a)(2)(D)). Thus, we have jurisdiction “to review the nondiscretionary determinations underlying a denial of an application for cancellation of removal, such as the ‘predicate legal question whether the [BIA] properly applied the law to the facts in determining an individual's eligibility to be considered for the relief.’ ” Id. (alteration in original) (quoting Solano-Chicas v. Gonzales, 440 F.3d 1050, 1055 (8th Cir. 2006)).

“We review questions of law de novo and accord substantial deference to the BIA’s interpretation of immigration law and agency regulations.” Bernal-Rendon v. Gonzales, 419 F.3d 877, 880 (8th Cir. 2005). “Congress has not defined the phrase ‘crime involving moral turpitude,’ and the meaning of that phrase was left ‘to future administrative and judicial interpretation.’ ” Chanmouny v. Ashcroft, 376 F.3d 810, 811 (8th Cir. 2004) (quoting Franklin v. INS, 72 F.3d 571, 572 (8th Cir. 1995)). Thus, we generally accord Chevron deference to the BIA’s interpretation of the phrase, and will “uphold its construction as long as it is reasonable.” Id.; see Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). However, Chevron deference applies only to “agency action that ‘carries the force of law.’ ” Godinez-Arroyo v. Mukasey, 540 F.3d 848, 850 (8th Cir. 2008) (alteration omitted) (quoting United States v. Mead Corp., 533 U.S. 218, 221, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001)). We have previously acknowledged that an unpublished BIA opinion, like the one in this case, “may lack the force of law and Chevron deference may be inappropriate.” Id. But even if Chevron deference would not be appropriate, an unpublished BIA opinion would be entitled to “a lesser form of deference” under Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944). Id. Under Skidmore, an agency’s non-binding opinion is accorded weight “depending] upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade.” Skidmore, 323 U.S. at 140, 65 S.Ct. 161. We need not decide whether Chevron or Skidmore deference is appropriate in this case, because even applying the lesser Skidmore deference, we affirm the BIA’s decision. See Godinez-Arroyo, 540 F.3d at 851.

A. Criminal conviction

The petitioners first argue that the municipal judgments against them were for infractions, not criminal convictions. Congress has defined “conviction” to mean “a formal judgment of guilt of the alien entered by a court.” 8 U.S.C. § 1101(a)(48)(A). The BIA has interpreted “a formal judgment of guilt of the alien” to refer to a judgment of guilt in a criminal proceeding. See In re Eslamizar, 23 I. & N. Dec. 684, 687 (B.I.A. 2004). A criminal proceeding, the BIA has explained, is “a trial or other proceeding whose purpose is to determine whether the accused committed a crime and which provides the constitutional safeguards normally attendant upon a criminal adjudication.” Id In determining whether a judgment is a criminal conviction, the BIA considers several factors, including how the relevant state classifies the judgment and whether each element of the offense must be proven beyond a reasonable doubt. See id. at 687-88.

In Matter of Cuellar-Gomez, the BIA applied the Eslamizar test to a Wichita, Kansas, municipal judgment for the offense of possession of marijuana, and found that it was a criminal conviction. 25 I. & N. Dec. 850, 853 (B.I.A. 2012). The BIA relied primarily on three circumstances: that Kansas state law gives municipal court judges the “authority to enter judgments of guilt in marijuana possession cases, and to impose fines or order the incarceration of defendants against whom judgments of guilt are entered”; that Kansas state law requires that the prosecution must prove every element of the charge beyond a reasonable doubt for a municipal judgment to be entered; and that Kansas state courts consider a municipal judgment to be a conviction for purposes of calculating a defendant’s criminal history when sentencing the defendant for a subsequent state crime. Id. at 853.

In this ease, the IJ concluded that the Great Bend and Hutchinson municipal judgments were not distinguishable from the Wichita judgment in Cuellar-Gomez. However, the petitioners contend they have identified various circumstances that were not considered in Cuellar-Gomez and that demonstrate the municipal judgments at hand are not criminal convictions under the Eslamizar test. The petitioners additionally argue that the BIA erred in determining that Dominguez-Herrera’s judgment was for a misdemeanor and not an infraction.

First, the petitioners argue that Kansas does not consider municipal offenses to be crimes. In support of this argument, they point to a 2002 opinion by the Kansas Attorney General that takes the position that municipal courts need not comply with Kansas’ Uniform Mandatory Disposition of Detainers Act. Kan. Office of Att’y Gen., Opinion Letter No. 2002-48 (Oct. 18, 2002), 2002 WL 31878428. In part, the opinion relies on the Attorney General’s conclusion that the Detainers Act applies only to complaints defining “a crime.” Id. at *2. The term “crime,” as used in the Kansas Criminal Code, refers to crimes defined by state law, not municipal law. Id. (citing Kan. Office of Att’y Gen., Opinion Letter No. 1997-31 (Mar. 27, 1997), 1997 WL 156519). In the petitioners’ view, this analysis demonstrates that Kansas does not consider municipal offenses to be criminal in nature. But a more reasonable reading of the opinion is that the Detainers Act does not apply to municipal offenses because the legislature intended the Detainers Act to have a limited scope, not because municipal offenses can never be criminal. This interpretation is reinforced by the opinion’s note that its conclusions are “limited to the application of the Detainers Act,” and that “a municipal court may still have to grapple with speedy trial issues under the Sixth Amendment to the United States Constitution.” Id. at *3.

Moreover, Kansas courts consistently treat municipal - judgments under the UPOC as criminal convictions. See, e.g., City of Prairie Vill. v. Hogan, 253 Kan. 423, 855 P.2d 949, 952 (1993) (referring to the enforcement of a UPOC ordinance as a “prosecution” and a “criminal action” and determining whether the evidence supported a finding of guilt beyond a reasonable doubt); City of Lindsborg v. Hulse, 236 P.3d 573, *2 (Kan. Ct. App. 2010) (unpublished table' decision) (referring to the violation of a municipal -ordinance defined under the UPOC as a “crime” and applying the rule of lenity to the interpretation of the ordinance). Thus, the petitioners’ argument that Kansas does not consider municipal judgments to be criminal convictions is unavailing.

Second, the petitioners observe that when the BIA concluded that the municipal judgments at issue were criminal convictions, it relied on Kan. Stat. Ann. § 21-6810, which provides that a municipal judgment can be used to enhance a defendant’s sentence for a subsequent state criminal conviction. The petitioners contend that this reliance was erroneous, because juvenile adjudications, which are not considered “criminal convictions” in Kansas, State v. LaMunyon, 259 Kan. 54, 911 P.2d 151, 155 (1996), can also be used to enhance a defendant’s sentence. See Kan. Stat. Ann. § 21-6810(a). Thus, the petitioners argue, “the fact that [municipal judgments] can be used to enhance a later sentence is not determinative.” We agree that, by itself, this fact might be insufficient to establish that a municipal offense is criminal. However, a fact need not be determinative to be relevant. Here, § 21-6810 represents the Kansas legislature’s judgment that municipal violations can be comparable to state criminal convictions. The BIA did not err in relying on this circumstance, together with others, in determining that the municipal judgments against the petitioners were criminal convictions.

Next, the petitioners point out that in Kansas, the right to appeal an order revoking probation is available to those convicted under state law, but not under municipal law. Because the right to appeal is a touchstone of criminal prosecutions, they argue, the municipal judgments at issue here were therefore not criminal. But “[p]robation revocation ... is not a stage of a criminal prosecution.” Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Although some due process protections apply in a probation revocation proceeding, they are not coextensive with those that apply in the underlying criminal proceeding. See id. In fact, even someone convicted of a Kansas state crime may not appeal a probation revocation in all circumstances. See State v. Legero, 278 Kan. 109, 91 P.3d 1216, 1218 (2004) (holding that there is no right to appeal to district court when a magistrate judge revokes a defendant’s probation for a state criminal conviction). Thus, the lack .of an appeals process for probation revocations has little bearing on the question of whether the underlying conviction was criminal.

Finally, the petitioners argue that the judgment against Dominguez-Herrera is not a criminal conviction because on the Abstract of Conviction, a box labeled “infraction” was marked. Because an infraction is punishable only by the imposition of a fine, Kan. Stat. Ann. § 8-2118, the petitioners argue that Dominguez-Herrera’s offense was therefore not criminal. The BIA rejected this argument, concluding that the marking of the box labeled “infraction” was a “scrivener’s error,” and that, in fact, Dominguez-Herrera was convicted of a criminal offense. We agree. It is true that the Abstract of Conviction does not refer explicitly to UPOC § 6.1. But it does state that Dominguez-Herrera was convicted of “theft” in violation of “21-3701” in Great Bend Municipal Court. The most reasonable interpretation of the document is that Dominguez-Herrera was convicted of theft under the municipal analogue to Kan. Stat. Ann. § 21-3701: UPOC § 6.1. Moreover, it was Dominguez-Herrera’s burden to establish his eligibility for cancellation of removal, see 8 U.S.C. § 1229a(c)(4), and he offered no evidence or testimony supporting a different interpretation of the document. Theft under UPOC § 6.1 is a Class A violation, the maximum sentence for which is “a definite term of confinement ... which shall be fixed by the court and shall not exceed one year.” UPOC § 12.1(a)(1). Thus, the judgment against Dominguez-Herrera is for a criminal offense, not an infraction.

B. Crimes involving moral turpitude

Next, the petitioners argue that the crimes they were convicted of did not involve moral turpitude. The BIA has interpreted the phrase “moral turpitude” to mean “conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to ■ society in general.” Chanmouny, 376 F.3d at 811-12 (quoting In re Ajami, 22 I. & N. Dec. 949, 950 (B.I.A. 1999)). “It is well settled that theft or larceny offenses involve moral turpitude.” In re Jurado-Delgado, 24 I. & N. Dec. 29, 33 (B.I.A. 2006) (citing In re De La Nues, 18 I. & N. Dec. 140, 145 (B.I.A. 1981); In re Westman, 17 I. & N. Dec. 50, 51 (B.I.A. 1979)). However, “[o]rdinarily, a conviction for theft is considered to involve moral turpitude only when a permanent taking is intended.” In re Grazley, 14 I. & N. Dec. 330, 333 (B.I.A. 1973).

To determine whether a particular conviction is for a crime involving moral turpitude, we first examine the statute itself. See Chanmouny, 376 F.3d at 812. “If the statute defines a crime in which moral turpitude necessarily inheres, then the conviction is for a crime involving moral turpitude for immigration purposes, and our analysis ends.” Id. (quoting In re Ajami, 22 I. & N. Dec. at 950). But “if the statute contains some offenses which involve moral turpitude and others which do not, it is to be treated as a ‘divisible’ statute, and we look to the record of conviction, meaning the indictment, plea, verdict, and sentence, to determine the offense of which the respondent was convicted.” Id. (quoting In re Ajami, 22 I. & N. Dec. at 950).

The BIA concluded that UPOC § 6.1 defines a crime in which moral turpitude necessarily inheres because it applies only when a permanent taking was intended. This interpretation is supported by the text of UPOC § 6.1, which limits its definition of “theft” to acts done “with the intent to deprive the owner permanently of the possession, use or benefit of the owner’s property.” The petitioners, on the other hand, argue that UPOC § 6.1 applies to temporary takings as well as permanent takings, because the finder of fact may sometimes presume intent to permanently deprive. UPOC § 6.2 provides a list of factual circumstances that constitute “pri-ma facie evidence of intent to permanently deprive the owner or lessor of property of the possession, use or benefit thereof.” For example, it is prima facie evidence of intent to permanently deprive if the defendant fails to return rented personal property for more than ten days after the due date and more than seven days after being notified to return the property. UPOC § 6.2(a)(2).

The petitioners’ argument rests on the theory that the presumptions listed in UPOC § 6.2 effectively allow a defendant to be convicted under UPOC § 6.1 even if the government does not prove intent to permanently deprive beyond a reasonable doubt. It is true that in some circumstances, a statutory presumption can unconstitutionally “undermine the factfin-der’s responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt.” Cty. Court of Ulster Cty. v. Allen, 442 U.S. 140, 156, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979). However, where a statutory presumption “leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof, it affects ⅝ the application of the ‘beyond a reasonable doubt’ standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference.” Id. at 157, 99 S.Ct. 2213. We conclude that UPOC § 6.2 allows a factfinder to accept or reject the suggested inferences, and that the inferences have a rational connection to the ultimate question of whether a defendant acted with intent to permanently deprive. See State v. Smith, 223 Kan. 192, 573 P.2d 985, 989 (1977) (finding that presumptions nearly identical to those listed in UPOC § 6.2 did not unconstitutionally infringe on the reasonable-doubt standard). Accordingly, intent to permanently deprive is an element of UPOC § 6.1 that must be proven beyond a reasonable doubt.

The petitioners also point out that UPOC § 6.1 criminalizes conduct that includes relatively trivial misdeeds, such as failing to return a library book, see UPOC § 6.2(b). We recognize that UPOC § 6.1 encompasses acts that do not seem particularly “base, vile, or depraved,” as those words are commonly used. However, Chevron requires us to defer to the BIA’s numerous published opinions interpreting “crime involving moral turpitude” to include thefts where a permanent taking was intended. See Franklin, 72 F.3d at 572 (“Having consistently adhered to its view ... for nearly twenty years, the BIA’s interpretation is entitled to deference.”). Thus, the judgments against the petitioners were crimes involving moral turpitude.

C. Maximum penalty

Finally, the petitioners argue that the BIA erred in determining that the offenses the petitioners were convicted of were punishable by a year or more in prison. With respect to Hernandez-Martinez, the petitioners note that her Waiver of Right to Counsel and Trial form indicates she was charged with a “Class A Misdemeanor, maximum penalties of up to 1 year in jail and a $2,500 fine.” The petitioners argue that this does not include a penalty of one year, because when the Kansas state legislature intends to include the maximum amount of time in a range, it uses the phrase “up to and including.” But it is the text of the UPOC, not the Waiver of Right to Counsel and Trial form, that sets the maximum punishment for a violation of UPOC § 6.1. UPOC § 6.1 provides that theft of property worth less than $1,000 is a Class A violation. For a Class A violation, the UPOC authorizes a municipal court to impose “a definite term of confinement in the city or county jail which shall be fixed by the court and shall not exceed one year.” UPOC § 12.1(a)(1). Accordingly, Hernandez-Martinez was convicted of an offense punishable by a year in prison. With respect to Dominguez-Herrera, the petitioners reiterate their argument that his conviction was an infraction, for which no term of incarceration could be imposed. As explained above, the BIA did not err in determining that Dominguez-Herrera was convicted of violating UPOC § 6.1. Thus, like Hernandez-Martinez, Dominguez-Herrera was convicted of an offense punishable by a year in prison.

III. Conclusion

We deny the petition.

      . The petitioners also suggest that relying on Cuellar-Gomez would be erroneous because in Castillo v. Attorney General, 729 F.3d 296 (3d Cir. 2013), the Third Circuit found it to be inconsistent with the BIA's other decisions. In Castillo, the BIA had determined that the petitioner’s conviction was criminal solely because the petitioner was found guilty beyond a reasonable doubt. Id. at 305. The Third Circuit granted the petition, concluding that the BIA’s decision arbitrarily departed from Cuellar-Gomez and other precedential BIA decisions applying Eslamizar, and was therefore not entitled to deference. Id. at 309-10. Thus, Castillo does not undermine the legitimacy of Cuellar-Gomez.