author: DIANA GRIBBON MOTZ, Circuit Judge:

text:
    Ronald BARTON; Neil Knox; Elijah P. Morris; Wayne Morris; John Tabor, on behalf of himself and all other persons similarly situated; United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union AFL-CIO/CLC, Plaintiffs-Appellants, v. CONSTELLIUM ROLLED PRODUCTS-RAVENSWOOD, LLC; Constellium Rolled Products-Ravenswood, LLC Employees Group Benefits Plan, Defendants-Appellees.
    No. 16-1103
    United States Court of Appeals, Fourth Circuit.
    Argued: January 24, 2017
    Decided: March 22, 2017

      ARGUED: Joseph P. Stuligross, UNITED STEEL WORKERS OF AMERICA, Pittsburgh, Pennsylvania, for Appellants. Christopher Alan Weals, MORGAN, LEWIS & BOCKIUS LLP, Washington, D.C., for Appellees. ON BRIEF: Pamina Ewing, McKean Evans, FEINSTEIN DOYLE PAYNE & KRAVEC, LLC, Pittsburgh, Pennsylvania, for Appellants. Charles C. Jackson, Chicago, Illinois, Sean K. McMahan, Abbey M. Glenn, MORGAN, LEWIS & BOCKIUS LLP, Washington, D.C., for Appellees.
    Before MOTZ, DUNCAN, and HARRIS, Circuit Judges.
   DIANA GRIBBON MOTZ, Circuit Judge:

A class of retirees and their union filed this action after their former employer unilaterally altered its retiree health benefits program. Because the governing collective bargaining agreement does not provide for vested retiree health benefits, we affirm the district court’s grant of summary judgment to the employer.

I.

A.

Constellium Rolled Products-Ravens-wood, LLC operates an aluminum plant in Ravenswood, West Virginia. The individual plaintiffs have retired from working in that plant. The United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industry & Service Workers International Union AFL-CIO/CLC (“the Union”) represented the retirees during their employment. As far back as 1988, the Union negotiated collective bargaining agreements (“CBAs”) with Constellium (or its predecessors) on the employees’ behalf.

Each individual class member retired during the operation of one of seven CBAs between the Union and one of Constelli-um’s predecessors. These included the 1988 CBA between the Union and Kaiser Aluminum & Chemical Corporation; the 1992 CBA between the Union and Ravens-wood Aluminum Corporation of West Virginia, Inc.; the 1994 CBA between the Union and Ravenswood Aluminum; the 1999 CBA between the Union and Century Aluminum Corporation; the 2002 CBA between the Union and Pechiney Rolled Products; the 2005 CBA between the Union and Alcan Rolled Products-Ravens-wood; and the 2010 CBA between the Union and Alcan. The 2010 CBA expired on July 15, 2012.

Article 15 of each CBA, which appears in substantially the same form across all seven, contained a provision for group health insurance benefits. The 2010 provision reads as. follows:

1. The group insurance benefits shall be set forth in booklets entitled Employees’ Group Insurance Program and Retired Employees’ Group Insurance Program, and such booklets are incorporated herein and made a part of the 2005 Labor Agreement by such reference.
2. It is understood that this agreement with respect to insurance benefits is an agreement on the basis of benefits and that the benefits shall become effective on July 15, 2010, except as otherwise provided in the applicable booklet, and further that such benefits shall remain in effect for the term of this 2010 Labor Agreement.

The “booklet[ ]” to which Article 15 refers, entitled “Retired Employees’ Group Insurance Program,” serves as the summary plan description (“SPD”) of the group health insurance benefits program for retirees. The first edition of the SPD was issued in 1985, with subsequent editions issued in 1990, 1992, 1995, and 2005. The 2005 SPD provides that, with limited exceptions, “[t]he benefits described in this summary are effective as of June 1, 2005,” the date of the start of the 2005 CBA, and that these benefits last “for the term of the Labor Agreement.” Substantively identical language appeared in the previous editions of the SPD.

B.

In addition to the various editions of Article 15 of the CBA and the SPD, the Union and Constellium’s predecessors agreed, in another set of documents, which the parties call “Cap Letters,” to further parameters governing retiree health benefits. In November 2002, one month before they signed the 2002 CBA, the Union and Pechiney reached agreement on how they would allocate health care spending for employees who retired on or after January 1, 2003. The parties agreed that Pechiney would annually contribute up to $32,068 for each pre-2003 retiree under the age of 65 and $3,912 for those pre-2003 retirees age 65 or over. The 2002 Cap Letter further provided that any costs above this cap “shall be allocated evenly to all participants in such group, as an annual individual contribution.” Additionally, the 2002 Cap Letter mandated that the parties negotiate any cap on health benefits as part of subsequent collective bargaining negotiations. Finally, this Cap Letter delayed implementation of the cost-sharing requirement for post-2002 retirees until January 1, 2006, after the 2002 CBA’s expiration date.

On August 2, 2005, roughly two months after the start of the 2005 CBA, the Union and Pechiney signed a second Cap Letter, which adjusted Pechineys contribution level for post-2002 retirees. The 2005 Cap Letter took effect on January 1, 2011, after the 2005 CBA’s expiration date. Finally, on July 15, 2010, the same day they signed the 2010 CBA, the Union and Alcan executed a third Cap Letter. This one kept the 2005 Cap Letter’s employer contribution limit, again only for post-2002, retirees. Unlike the previous two Cap Letters, which took effect after the implementation of their concurrently-negotiated CBAs, the 2010 Cap Letter took effect on January 1, 2011, over eighteen months before the expiration of the 2010 CBA.

C.

In July 2012, during negotiations over a new CBA, Constellium proposed amending Article 15 to extend the cap on its contributions to retiree health benefits to employees who retired before January 1, 2003 and to freeze its Medicare Part B premium reimbursement amount for all hourly retirees at $99.90. The Union, asserting that the retiree health benefits had vested, refused to bargain on this issue. Constellium sent the Union a written notice that it planned to make these changes beginning January 1, 2013. When that day came, Constellium did so.

In February 2013, the individuals who retired during one of the above-mentioned CBAs and the Union (collectively “the Retirees”) initiated this litigation against Constellium (and its pension plan). On March 3, 2014, the Retirees filed their First Amended Complaint, which contained both class and individual allegations. The class allegations were on behalf of two subclasses — pre-2003 retirees whom the extension of the contribution cap affected and hourly employees whom the Medicare premium contribution freeze affected — who alleged a violation of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. The individual plaintiffs brought an additional claim for violation of Section 502(a)(1) of the Employee Retirement Income Security Act, 29' U.S.C. § 1132(a)(1)(B) (“ERISA”). All of these claims rested on the contention that the retiree health benefits had vested.

Following discovery, the parties filed cross-motions for summary judgment. The district court granted Constellium’s motion and dismissed the case. Barton v. Constellium Rolled Prods.-Ravenswood, LLC, No. 2:13-cv-03127, 2016 WL 51262 (S.D. W. Va. Jan. 4, 2016). The Retirees subsequently noted this timely appeal.

We review de novo the district court’s grant of summary judgment. Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc). Summary judgment is proper only if, viewing the evidence in the light most favorable to the non-moving party, there are no genuine disputes of material fact and the moving party demonstrates the right to judgment as a matter of law. Id.

II.

The Retirees argue that the parties intended the Article 15 health benefits to vest, and so continue beyond the duration of the CBA. Accordingly, they contend, Constellium’s unilateral alteration of those benefits breached its obligations under the CBA.

A.

The Supreme Court has recently held courts must “interpret colléctive-bar-gaining agreements, including those establishing ERISA plans, according to ordinary principles of contract law, at least when those principles are not inconsistent with federal labor policy.” M&G Polymers USA LLC v. Tackett, — U.S. -, 135 S.Ct. 926, 933, 190 L.Ed.2d 809 (2015). Thus, in Tackett the Court instructed “[w]here the words of a contract in writing are clear and unambiguous, its meaning is to be ascertained in accordance with its plainly expressed intent.” Id. (quoting 11 R. Lord, Williston on Contracts § 30:6, at 108 (4th ed. 2012)).

Tackett involved review of a Sixth Circuit case that, in accord with prior circuit precedent, held for a class of plaintiff retirees. See 135 S.Ct. at 932. That prior circuit precedent, International Union, United Automobile, Aerospace, & Agricultural Implement Workers of America v. Yard-Man, Inc., 716 F.2d 1476 (1983), directed courts to apply a presumption that, barring unambiguous evidence to the contrary, parties intended for benefits in a collective bargaining agreement to vest. Id. at 935. In Tackett, the Supreme Court “reject[ed] the Yard-Man inferences as inconsistent with ordinary principles of contract law.” Id. at 937; see also id. at 935-37 (explaining Yard-Man’s incompatibility with general contract principles). It explained that Yard-Man clashed with “the traditional principle that ‘contractual obligations will cease, in the ordinary course, upon termination of the bargaining agreement.’” Id. at 937 (quoting Litton Fin. Printing Div., Litton Bus. Sys., Inc. v. NLRB, 501 U.S. 190, 207, 111 S.Ct. 2215, 115 L.Ed.2d 177 (1991)). Indeed, the Supreme Court in Tackett specifically mandated that “when a contract is silent as to the duration of retiree benefits, a court may not infer that the parties intended those benefits to vest for life.” Id.

Thus, we must interpret Article 15 using ordinary contract principles. And in doing so, we must recognize that these principles foreclose holding that the retiree health benefits have vested unless unambiguous evidence indicates that the parties intended that outcome.

B.

Article 15 of the CBA states that the retiree health benefits “shall remain in effect for the term of this ... Labor Agreement.” Article 15 also provides that the parameters of the retiree health benefits programs “shall be set forth in [the] booklet[ ] entitled ... Retired Employees’ Group Insurance Program.” That booklet, which serves as the SPD for these benefits, similarly states that these benefits would last “for the term of the Labor Agreement.” It is undisputed that the term of the 2010 CBA, the most recent one relevant, ended in 2012.

The plain language of the CBA and SPD clearly indicates that the retiree health benefits did not vest. First, Article 15 contains explicit durational language stating that the retiree health benefits continue “for the term of’ the governing CBA. Furthermore, the SPD echoes this language, reiterating the benefits continue “for the term of the” CBA.

The contrast between the durational language in the retiree health benefits SPDs and the more expansive language found in the pension benefits SPDs bolsters this conclusion. With respect to pension benefits, the SPDs have generally provided that “once pension payments commence they are payable monthly for the life of the participant,” and are “not subject to reduction.” The use of this unambiguous language in one section of an agreement indicates that the parties knew how to manifest their intent to vest certain benefits. The absence of such language in another section in the same agreement thus evidences an absence of such intent. See Trumball Invs. Ltd. I v. Wachovia Bank, N.A., 436 F.3d 443, 447-48 (4th Cir. 2006). The contrast between the retiree health benefits and pension plan SPD provisions demonstrates this point. See Dewhurst v. Century Aluminum Co., 649 F.3d 287, 289, 291-93 (4th Cir. 2011).

The Retirees cannot overcome the clear language of Article 15 of the CBA and the SPD. Given this language, the Retirees cannot demonstrate that their health benefits had vested.

III.

The Retirees resist this contention, asserting that it improperly reads a single phrase in isolation. See Quesenberry v. Volvo Trucks N. Am. Retiree Healthcare Benefit Plan, 651 F.3d 437, 440 (4th Cir. 2011). They assert that the Cap Letters and other provisions of the CBA evince an intent to vest the retiree health benefits. See id. (rejecting an employer’s argument that “one phrase in this particular collective bargaining agreement conclusively resolves” whether the benefits vested because other parts of CBA were incompatible with this conclusion).

A,

1.

We begin with the Cap Letters. The 2002 and 2005 Cap Letters set limits on employer contributions to commence after the expiration of the CBA under concurrent negotiation. The Retirees argue that this structure only makes sense if, notwithstanding the language in Article 15 of the CBA and the SPD, the parties intended for the retiree health benefits to continue beyond the termination of the CBA.

The Cap Letters themselves undermine the notion that the retiree health benefits vested, for the Cap Letters indicate that the parties can change the benefits. For example, the 2005 Cap Letter, by significantly reducing the employer contribution on behalf of post-20.02 retirees, effectively reduced the benefits for individuals who had already retired between 2003 and 2005 from what the 2002 Cap Letter had provided them. And the Cap Letters’ instruction that they are “a mandatory subject of collective bargaining in any subsequent contract negotiations” underscores that the Retirees’ health benefits are fluid and not set in stone.

Additionally, the 2010 Cap Letter memorializes the parties’ agreement to start capping retiree benefits before the expiration of the CBA that the parties were then negotiating. The Retirees would have us infer that the post-termination start dates of the 2002 and 2005 Cap Letters show an intention to continue the retiree health benefits after the termination of the CBA. But despite no substantive change to Article 15 in the 2002, 2005, and 2010 CBAs, the parties did not give the 2010 Cap Letter a start date after the termination of the 2010 CBA. This strongly suggests that the parties did not seek to manifest through the Cap Letters any latent intent to vest the retiree health benefits.

Given that Article 15 and the SPD maintain nearly identical durational language across all seven CBAs, we see no reason to treat employees who retired between 2003 and 2010 differently from the rest based on the Cap Letters. The Cap Letters both fall far short of Tackett’s requirement for a clear signal that parties intend for benefits to vest and fail to negate the unambiguous durational language in Article 15 and the SPD cutting against vesting. Accordingly, we cannot draw the inference the Retirees suggest.

2.

To buttress their contention about the Cap Letters, the Retirees rely on Quesenberry and Keffer v. H.K. Porter Co., 872 F.2d 60 (4th Cir. 1989). Both cases predate the Supreme Court’s 2015 directive in Tackett that “when a contract is silent as to the duration of retiree benefits, a court may not infer that the parties intended those benefits to vest for life.” 135 S.Ct. at 937. Moreover, the contracts in both cases differ markedly from the one at issue here.

In Keffer, we held that the retirement benefits in question vested, thus outlasting the CBA’s expiration, because the CBA provided that retirees’ benefits would terminate .when they became eligible for Medicare. 872 F.2d at 62-63. We concluded that this language illustrated the parties’ understanding that the retirees’ benefits would survive the CBA. Id. at 64. As we recognized in Dewhurst, “the collective bargaining agreement in Keffer differed materially from” Article 15 because “[i]n Keffer, retiree health benefits were explicitly linked not to termination of the agreement, but to a post-termination event, namely the date of the retiree’s eligibility for Medicare.” 649 F.3d at 292.

Quesenberry offers a stronger, although ultimately unpersuasive, argument for the Retirees. The CBA at issue there established a trust fund to cover cost overruns in retiree health benefits and obligated the employer to make a contribution to that trust fund on the day the CBA terminated. 651 F.3d at 438-39. That provision also set forth a mechanism to address cost overruns beyond what the trust fund could support; it allowed the employer to charge retirees for excess costs, but only after the parties negotiated over steps to reduce overall health costs. Id. at 439. Relying on the cost overrun provision, we held that the employer breached the CBA by terminating health benefits. Id. at 440-42. We explained that the cost overrun provision “makes no sense unless it operates as a limitation on [the employer’s] right to modify benefits beyond the term of the agreement.” Id. at 440. Because “the negotiated mechanism ... is meaningless if it does not extend past the expiration of the CBA,” we refused to read the coverage provision’s durational language as relieving the employer of its duty to comply, with the coát overrun provision. Id. at 441.

In contrast to Keffer, and unlike in Quesenberry, here we have very strong evidence that the retiree health benefits continue only as long as the CBA. First, the plain language of the CBA and SPD so provides. Second, the disjunction between the pension plan and the retired employees’ health benefits SPD provisions strongly indicates that the parties did not intend the latter to vest. Additionally, the Cap Letters do not have the same infeasibility problem as the trust fund in Quesenberry. The 2010 Cap Letter superseded the 2005 Cap Letter before the 2005 contribution provision came into effect and set the new implementation date to before the 2010 CBA expired. The most reasonable inference from the various effective dates is that the post-termination start dates of the 2002 and 2005 Cap Letters were precautionary cost-containment measures in the event the parties had not agreed to a new CBA before the expiration of the prior one, but wanted to avoid a sudden cancellation of the retirees’ health benefits. The flexibility to adjust the date and level-of the cap and the stop-gap role the Cap Letters potentially fill contrast strongly with Quesenberry, where adherence to the durational language would effectively nullify a meticulous, detailed, and prominent part of that CBA.

If the CBA did not have the durational language of Article 15,' the Cap Letters would certainly not eliminate an inference that the parties intended the benefits to continue past that CBA. But given Article 15’s actual robust durational language, the other textual provisions which cut against this inference, and Tackett’s call for clarity in providing for vesting, the Cap Letters do not show that the parties intended the benefits to vest.

B.

Nor do the Retirees’ arguments related to other provisions persuade us. The Retirees specifically point to language in the SPD regarding coverage for retirees’ dependents and pensioned surviving spouses and the reimbursement of Medicare Part B premiums. These provisions, they say, indicate that the retiree health benefits vested.

We start with the provision for dependent coverage. The CBA offered such coverage, and all SPDs provided, in nearly identical language, that such coverage “shall cancel on the date such person is no longer an eligible dependent as defined or upon your death, whichever comes first.” The Retirees argue that the decision to link the termination of the dependent coverage benefits to a retiree’s death evinces an intent for the retiree health benefits to vest.

Given the unequivocal durational language, we cannot agree. One can reconcile the dependent coverage provision with the durational language by reading the former to terminate benefits for a retiree’s dependents at the time of the retiree’s death, while the benefits for dependents of surviving retirees terminate at the end of the CBA. This reading seems the likelier manifestation. of the parties’ intent, both because it harmonizes the purportedly conflicting provisions and because the dependent coverage sections of the SPD contain nothing explicit about vesting.

The pensioned surviving spouses SPD provision similarly offers the Retirees little help. Each edition of the SPD made clear that the pensioned surviving spouse of a retiree is eligible to receive the benefits that would have gone to the retiree had he lived. This language simply defines a category of people eligible to receive benefits; it says nothing about the duration for which those benefits will last. This language cannot surmount the durational language of Article 15 and the SPD, especially when compared to the ironclad evidence of vesting that the language for the pension plan provides.

Finally, we also find unpersuasive the Retirees’ efforts to invoke Constellium’s agreement to reimburse Medicare Part B premiums as evidence that the parties intended the benefits to vest. The SPD provides that when a retiree or pensioned surviving spouse age 65 or older “enrolls in Medicare Part B, [Constellium] will reimburse such [individual] for the actual monthly cost for Medicare coverage ... for the duration of the Labor Agreement.” The emphasized clause, combined with language in the following paragraph that this benefit lasts only while the individual is on Medicare Part B and “is entitled to benefits under this Plan,” clearly shows a temporal limitation on this benefit, defeating the Retirees’ argument.

IV.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

      . The 2005 SPD adds an additional sentence to its description of the benefits, stating that "[n]o benefit described in this booklet is vested.” The Retirees contend that Constellium unilaterally promulgated this language, rendering it irrelevant in determining the mutual intent of the parties. Because we need not rely on this sentence in order to affirm, we do not address this argument.

      . The Retirees also argue that extrinsic evidence, including past conduct by Constellium and its predecessors, demonstrates that the parties intended the benefits to vest. Because, as explained above, we find that the language of the CBA and SPD unambiguously forecloses this interpretation, we do not address the extrinsic evidence. See Williston on Contracts § 55:23 (noting a "general agreement among most courts that parol evidence of the parties’ bargaining history may be used to explain or supplement the terms of the collective bargaining agreement, but may not be admitted to prove an agreement at variance with the normal or customary meaning of the words chosen by the parties to express their agreement”).

      . The Retirees also argue that in 1979, the parties replaced a six-month limitation on dependent coverage with a promise of lifetime benefits, and that this supports their interpretation of the CBA. Because they never raised this argument below, they have waived it. See Pornomo v. United States, 814 F.3d 681, 686 (4th Cir. 2016).


source: Caselaw Access Project

author: GREGORY, Chief Judge:

license: Public Domain

text:
    Ryricka Nikita CUSTIS, Plaintiff-Appellant, v. Keith DAVIS, Warden, Sussex I State Prison; S. Evans, Records Department Head at Sussex I State Prison; M. Woodruff, Medical Department Head at Sussex I State Prison; C.W. Lane, Lt. at Sussex I State Prison, Defendants-Appellees.
    No. 15-7533
    United States Court of Appeals, Fourth Circuit.
    Argued: December 6, 2016
    Decided: March 23, 2017

      ARGUED: Martha Francine Hutton, O’MELVENY & MYERS LLP, Washington, D.C., for Appellant. Matthew Robert McGuire, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees. ON BRIEF: Saul Cohen, O’MELVENY & MYERS LLP, Washington, D.C., for Appellant. Mark R. Herring, Attorney General of Virginia, Stuart A. Raphael, Solicitor General, Trevor S. Cox, Deputy Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees.
    Before GREGORY, Chief Judge, and TRAKLER and DIAZ, Circuit Judges.
   GREGORY, Chief Judge:

Ryricka Custis was an inmate at Sussex I State Prison. Because he is missing toes on his right foot, the Virginia Department of Corrections medical staff required that Custis be assigned to a bottom bunk in a bottom-tier cell. He originally received a compliant bunk assignment, but was later temporarily moved to an upper-tier cell. He fell and injured himself while ascending the stairs to his upper-tier cell.

Custis pursued his prison’s administrative grievance process, and then filed suit. The district court sua sponte dismissed Custis’s complaint on the ground that he failed to properly exhaust his administrative remedies. For the reasons below, we vacate the district court’s dismissal and remand for further proceedings.

I.

Because Custis appeals the district court’s dismissál for failure to properly exhaust his administrative .remedies, we first provide an overview of the prison’s grievance procedure, to the extent that it is explained in the record. We then review Custis’s own administrative grievance timeline.

A.

Prisons in Virginia must follow the Virginia Department of Corrections Offender Grievance Procedure, which provides a basic grievance process and timeline. The Offender Grievance Procedure also requires that each prison prepare an Implementation Memorandum. Unfortunately, the record does not include Sussex I’s Implementation Memorandum. As a result, we discuss only the procedures described in the statewide policy.

If an inmate wishes to submit a Regular Grievance, he must first submit an Informal Complaint. The prison’s staff must respond to the Informal Complaint within fifteen days of receipt.

If the prison’s response to the inmate’s Informal Complaint fails to resolve the issue, the inmate may submit a Regular Grievance. To be timely, a Regular Grievance must be submitted “within 30 calendar days from the date of occurrence/incident or discovery of the occurrence/incident,” except for certain circumstances outside the scope of this case. Operating Procedure 866.1(VI)(A)(1) (hereinafter “OP”). It is the inmate’s responsibility to submit an Informal Complaint early enough to ensure that the Informal Complaint will be resolved in time to submit a Grievance.

The Offender Grievance Procedures note that inmates may grieve only one issue per grievance form and must attach any documentation that was required dim-ing the inmate’s attempt at informal resolution. OP 866.1(VI)(A)(2)(a). According to the Virginia Department of Corrections grievance form, grievances can be rejected upon intake for reasons such as alleging a non-grievable issue, submitting a repetitive grievance, using vulgar or threatening language, or providing insufficient information. See J.A. 9.

If the submitted Regular Grievance fails to meet the criteria for acceptance, the grievance must be returned to the inmate “within two working days” from the date it was received. OP 866.1(VI)(B)(4). At that point, the inmate may appeal the denial by sending the rejected Regular Grievance “within five calendar days of receipt to the appropriate Regional Ombudsman.” OP 866.1(VI)(B)(5).

B.

Custis was moved to an upper-tier cell on August 18, 2014. On September 2, 2014, he fell while ascending the stairs to his cell, injuring his neck and back. He filed an Informal Complaint on September 11, 2014. On September 17, 2014, his Informal Complaint was denied; according to the prison’s response, the prison was repairing his cell as he requested, and his assignment was made “based on open compatible available beds with a bottom bunk.” J.A. 10.

Custis filed his Regular Grievance on September 18, 2014. The Sussex I State Prison Grievance Office received his Regular Grievance on September 25, 2014. It rejected the grievance that same day for insufficient information, and instructed Custis to submit within five days “the date when you were placed on the upper tier.” J.A. 9. Custis amended his Regular Grievance, and the Grievance Office received his amended Regular Grievance on October 1, 2014. It then denied his Regular Grievance on that same day because it was late. Because, according to the Grievance Office, Custis had been transferred to an upper-tier cell on August 18, 2014, he needed to submit his Regular Grievance by September 17, 2014.

Custis tried to appeal this decision to his Regional Ombudsman on October 1, 2014. He mailed the' appeal to the Richmond Ombudsmen Services Unit, which he alleges was the only address he found in the Offender Grievance Procedures, and which he contends was characterized as his Regional Ombudsman’s employer. Unfortunately, his Regional Ombudsman was at a different address — one that is not listed in the Offender Grievance Procedures. The Richmond Ombudsman Services Unit received his appeal on October 6, 2014, and returned it with a letter dated October 7, 2014, informing Custis of the correct mailing address for his Regional Ombudsman. Custis then re-mailed his appeal, which the Regional Ombudsman received on October 15, 2014. On October 20, 2014, the Regional Ombudsman rejected his appeal because it was untimely sent.

Custis then filed this lawsuit. The district court sua sponte ordered Custis to “submit documentation of administrative exhaustion,” and stated that Custis “may show exhaustion of administrative procedures by submitting copies of the grievances filed, of all levels of appeal, and of all responses to the grievances and appeals.” J.A. 16. Custis complied by submitting his prior grievances, rejections, and medical order. The district court then dismissed his claim for failure to exhaust administrative remedies because he failed to follow the prison’s grievance procedure timeline.

Custis timely appeals.

II.

We review de novo a district court’s dismissal for failure to exhaust available administrative remedies. See Talbot v. Lucy Corr Nursing Home, 118 F.3d 215, 218 (4th Cir. 1997) (stating that whether plaintiff properly exhausted all administrative remedies is a question of law reviewed de novo); E.L. ex rel. Lorsson v. Chapel Hill-Carrboro Bd. of Educ., 773 F.3d 509, 514 (4th Cir. 2014) (same). Custis raises two issues on appeal: (1) did the district court err when it sua sponte examined whether Custis administratively exhausted his claims; and if it did not err, (2)did the district court err when it found that Custis failed to exhaust his available administrative remedies. We hold that the district court improperly sua sponte examined Custis’s administrative exhaustion requirement. We therefore vacate the district court’s dismissal and remand for further proceedings.

A.

The Prison Litigation Reform Act (“PLRA”) modified inmates’ litigation procedures in order to stem the high volume of claims filed in federal court by inmates. Relevant here, inmates may file suits about prison conditions only if “administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).

But an inmate does not need to demonstrate exhaustion of administrative remedies in his complaint. Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007); see also Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008) (“[Ijnmates need not plead exhaustion, nor do they bear the burden of proving it.”). Instead, failure-to-exhaust is an affirmative defense that the defendant must raise. Jones, 549 U.S. at 216, 127 S.Ct. 910. Exceptions to this rule, which allow a court' to sua sponte dismiss a complaint for failure to exhaust administrative remedies, are rare. We examine two asserted exceptions.

1.

A court may sua sponte dismiss a complaint when the alleged facts in the complaint, taken as true, prove that the inmate failed to exhaust his administrative remedies. For example, if a complaint “show[s] that relief is barred by the applicable statute of limitations, the complaint is subject to dismissal for failure to state a claim; that does not make the statute of limitations any less an affirmative defense.” Jones, 549 U.S. at 215, 127 S.Ct. 910. But such instances are “rare case[s].” Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 682 (4th Cir. 2005).

Here, it was not apparent from the face of Custis’s complaint that he had failed to exhaust his administrative remedies. Custis alleged that he “attempted to exhaust [his] Administrative remedies,” that his grievance was dismissed as “untimely,” and that he “appealed that determination to the highest level available.” J.A. 14. Indeed, the district court itself recognized that Custis’s complaint, standing alone, did not make apparent whether Custis exhausted, or failed to exhaust, his administrative remedies; it ordered Custis to provide further documentation for its independent inquiry into Custis’s exhaustion of administrative remedies.

Custis’s allegation that he “attempted” to exhaust his administrative remedies does not necessarily imply that he attempted, but did not, exhaust his administrative remedies. It may equally imply that he attempted, but could not, exhaust his administrative remedies — and thus, that he exhausted all remedies that were available to him. See Ross v. Blake, — U.S. -, 136 S.Ct. 1850, 195 L.Ed.2d 117 (2016). This is especially true here, where Custis’s suit requires the court to review whether the procedures that the prison considered available were, in fact, available to him. Thus, Custis’s complaint did not present the rare, exceptional instance where administrative exhaustion was apparent on the complaint’s face.

2.

Appellees allege a second instance in which a court may sua sponte dismiss an inmate’s complaint for failure to exhaust administrative remedies: when the court has given the inmate an opportunity to address or respond to the alleged failure to exhaust. Appellee’s Br. 29-31. But it is not clear that this exception, created before Jones, remains good law. We hold now that this exception does not survive post-Jones.

Before Jones, this Court allowed district courts to sua sponte dismiss an inmate’s complaint where exhaustion was not apparent in his pleading, so long as the court gave the inmate “an opportunity to address the exhaustion question.” Anderson, 407 F.3d at 675. In Jones, the Supreme Court held that failure to exhaust is an affirmative defense, and that “inmates are not required to specially plead or demonstrate exhaustion in their complaint.” 549 U.S. at 216, 127 S.Ct. 910. In doing so, the Court rejected the argument that “Congress implicitly meant to transform exhaustion from an affirmative defense to a pleading requirement by the curiously indirect route of specifying that courts should screen PLRA complaints and dismiss those that fail to state a claim.” Id.

After Jones, this Court held that, where exhaustion is not apparent from an inmate’s pleading, “a complaint may be dismissed on exhaustion grounds so long as the inmate is first given an opportunity to address the issue.” Moore, 517 F.3d at 725 (4th Cir. 2008). Moore supported this holding with a citation to Anderson. But in Moore, the district court did not raise administrative exhaustion sua sponte; the defendants raised it as an affirmative defense. And this Court characterized Moore’s response to the defense as his “opportunity to respond.” Id. Thus, Moore narrowly addresses — and correctly upholds — courts’ ability to dismiss complaints for failure to exhaust administrative remedies when the defendants raise the issue as an affirmative defense and the inmate has had an opportunity to respond to the affirmative defense.

Appellees allege that Moore reaffirms Andérson’s holding: Courts, reviewing a complaint where failure-to-exhaust is not apparent on its face, may require the inmate to address exhaustion and then dismiss based on failure to exhaust. But permitting courts to sua sponte screen complaints and demand further documentation of exhaustion in such circumstances would frustrate the principles laid out in Jones and turn the affirmative defense into a pleading requirement. See, e.g., Byrd v. Stirling, 144 F.Supp.3d 803 (D.S.C. 2015) (dismissing complaint for failure to exhaust administrative remedies because complaint failed to affirmatively demonstrate exhaustion and district court gave inmate “opportunity” to respond by demanding documentation of exhaustion). Indeed, the district court’s actions here— requiring Custis, whose complaint was unclear, to demonstrate exhaustion, and considering this requirement an opportunity to address exhaustion — demonstrate the tension between Anderson and Jones. As a result, to the extent that Anderson allows courts to sua sponte dismiss complaints where exhaustion is unclear so long as an inmate receives only an opportunity to address the issue, it is irreconcilable with Jones and cannot survive.

3.

For these reasons, the district court erred when it sua sponte examined Cus-tis’s exhaustion of available administrative remedies. We vacate its dismissal and its finding that Custis failed to exhaust administrative remedies and remand for further proceedings.

B.

Because the record is incomplete and the inquiry premature, we do not decide whether Custis exhausted all of his available administrative remedies. We note our concern, however, as to whether Virginia’s procedure provided available remedies that Custis failed to exhaust. For example, it is unclear to us — and would likely be unclear to Custis — whether Custis had to submit his Regular Grievance within thirty days of his cell-transfer or his injury; the rules are silent on the point. Moreover, Custis’s appeal was rejected as untimely, in part because the rules required him to mail his appeal to an address nowhere to be found in the Offender Grievance Procedures. We hope that further fact-finding in the district court will shed light on this process.

VACATED AND REMANDED

       Appellees allege that this Court’s unpublished decisions support holding that Moore affirmed Anderson. But these decisions are nonbinding and — by and large — state instead that courts may sua sponte dismiss complaints if they demonstrate failure to exhaust on their face and if the inmate has an opportunity to respond. Compare, e.g., Corey v. Daniels, 626 Fed.Appx. 414 (4th Cir.2015) and Kilpatrick v. Hollifield, 592 Fed.Appx. 199 (4th Cir. 2015) (Mem.) with Bustillo v. Beeler, 495 Fed.Appx. 343 (4th Cir. 2012) (stating that district court may sua sponte dismiss complaint so long as inmate has opportunity to address exhaustion).


author: KING, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee Cross-Appellant v. Jermaine J. CHAPMAN, also known as Dump Truck, Charles Boyer, also known as Slim, Defendants-Appellants Jeffery D. Perry, Defendant-Appellant Cross-Appellee
    No. 15-30538
    United States Court of Appeals, Fifth Circuit.
    Filed March 10, 2017

      Mary Patricia Jones, Robert William Piedrahita, Esq., Assistant U.S. Attorneys, U.S. Attorney’s Office, Middle District of Louisiana, Baton Rouge, LA, for Plaintiff-Appellee Cross-Appellant.
    Christopher Albert Aberle, Mandeville, LA, David J. Rozas, Rozas & Rozas Law Firm, L.L.C., Baton Rouge, LA, for Jermaine J. Chapman, also known as Dump Truck.
    Joseph Kelsey Scott, III, Baton Rouge, LA, for Charles Boyer, also known as Slim.
    J. David Bourland, Baton Rouge, LA, Michael Sean Walsh, Lauren Kelsey Rivera, Taylor, Porter, Brooks & Phillips, L.L.P., Baton Rouge, LA, for Jeffery D. Perry.
    Before STEWART, Chief Judge, and KING and DENNIS, Circuit Judges.
   KING, Circuit Judge:

Defendants Jeffery Perry, Jermaine Chapman, and Charles Boyer appeal their convictions for various offenses related to their participation in a drug trafficking conspiracy. The Government cross-appeals Perry’s sentence as to his dual firearms convictions under 18 U.S.C. § 924(c), arguing that the district court erred in failing to apply the 25-year mandatory minimum sentence for second or subsequent § 924(c) convictions to one of Perry’s convictions. Finding error only on the latter issue, we AFFIRM in part and VACATE and REMAND in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Facts

This case centers on a cocaine and crack dealing organization operated by Defendant Jeffery Perry and based in Baton Rouge, Louisiana. Perry’s organization consisted of many operatives, including Defendants Jermaine Chapman (aka “Dump Truck”) and Charles Boyer (aka “Slim”), who assisted Perry by purchasing drug-making supplies, weighing and bagging the drugs, retrieving drugs from storage locations, interacting with customers who were buying drugs, and disposing of kilogram wrappers. Over the years, Perry used various houses, referred to as “click houses,” in South Baton Rouge, which were largely owned by his family, as distribution centers and headquarters for the organization. Chapman and Boyer at various times resided in the click houses, along with other operatives in Perry’s organization. Perry regularly used the kitchens of the click houses to cook crack. Customers who came to the click houses to purchase drugs sometimes used a gun as payment, and Perry stored some of the bartered guns in at least one of the click houses, 221 Evergreen Street. Perry had secret compartments for storing drugs installed over a doorway and under the kitchen sink of the Evergreen Street click house. Chapman knew about and used the secret compartments.

Perry and his associates had several encounters with the Baton Rouge Police Department (BRPD) and Drug Enforcement Administration (DEA) over the years, including selling drugs to DEA confidential informants. BRPD also conducted periodic surveillance and executed multiple search warrants at the click houses, in sum seizing crack, cocaine, drug paraphernalia, large quantities of cash, and guns. In addition to selling drugs, Perry and his operatives also engaged in robbery, carjacking, and unlawful possession of guns. In September 2011, after a multi-year investigation by the DEA and the BRPD, Perry and Chapman were arrested while driving from Houston to Baton Rouge in two separate vehicles with two kilograms of cocaine in Chapman’s vehicle. Boyer was later arrested in California and extradited to Louisiana for trial.

B. Trial

In July 2013, the grand jury returned a 19-count second superseding indictment against Perry, Chapman, Boyer, and five other associates. They were charged with conspiracy to distribute and possess with intent to distribute 280 grams or more of cocaine base and 5 kilograms or more of cocaine, in violation of 21 U.S.C. § 846(a)(1). Perry and Boyer were charged with carjacking and use of a firearm in commission thereof. Perry and Chapman were each also charged with other drug possession and distribution crimes, along with several gun-related crimes. In relevant part, Count 6 of the indictment charged Perry with knowingly discharging a firearm during and in relation to drug trafficking activity — namely, the drug conspiracy (charged in Count 1) and a carjacking incident (charged in Count 5), in violation of 18 U.S.C. § 924(c)(1)(A)(iii) and § 924(c)(2). And Count 10 of the indictment charged Perry and Chapman each with knowingly possessing a firearm in furtherance of drug trafficking activity— namely, the drug conspiracy (charged in Count 1) and possession with intent to distribute cocaine and 28 grams or more of cocaine base (charged in Count 9) — in violation of 18 U.S.C. § 924(c)(1)(A) and § 924(c)(2).

Prior to trial, Boyer moved to sever his trial from that of his co-defendants. Boyer noted that he was charged with only three counts of the indictment, was mentioned in only four of the 36 paragraphs supporting the conspiracy charge, and did not participate in the conspiracy for its duration because he moved to California and left the conspiracy in 2010, the year before the indictment was returned. Given his relatively minor role, Boyer argued that he would be unfairly prejudiced by being jointly tried alongside the other defendants. The district court denied the motion, noting the “well-recognized preference ... for joint trials of defendants who are indicted together.” The district court concluded that any possible prejudice to Boyer would be sufficiently mitigated' through jury instructions and the court’s continued monitoring of the case as it progressed to trial.

The trial commenced in September 2014. After five days of trial, the presiding district judge became ill, and Judge Shelly Dick replaced him as the judge presiding over the trial after certifying that she was familiar with the record. See Fed. R. Crim. P. 25(a)(2). After testimony from over 40 witnesses, including testimony from six co-‘ defendants who had pleaded guilty pursuant to plea agreements, and the introduction of voluminous amounts of evidence, the trial concluded on September 22, 2014. The district judge instructed the jury to separately consider each defendant and count, as well as the evidence as it pertained to each defendant and count. The judge also instructed the jury on Pinkerton liability, see Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), explaining: “A conspirator is responsible for offenses committed by other conspirators if the conspirator was a member of the conspiracy when the offense was committed, and if the offense was committed in furtherance of, or as a foreseeable consequence of, the conspiracy.” The jury returned its verdict on September 23. In relevant part, the jury found Perry, Chapman, and Boyer each guilty of conspiracy (Count 1), found Perry guilty of two firearms offenses (Counts 6 and 10, which both charged violations of 18 U.S.C. § 924(c)), and found Chapman guilty of one firearms- offense (Count 10). And Boyer was found not guilty of the other two counts with which he was charged, both related to carjacking.

C. Motions for New Trials

On October 7, Boyer moved for a post-trial judgment of acquittal or, in the alternative, a new trial. He argued that the evidence did not support his conviction for conspiracy and that he was unfairly prejudiced by being tried alongside his more culpable co-defendants. The district court denied the motion, concluding that substantial evidence supported Boyer’s conspiracy conviction and there were “no extraordinary circumstances” that would justify a new trial.

On March 10, 2015, Perry filed a “Motion for Evidentiary Hearing and New Trial.” Perry claimed that, after the trial concluded, he discovered new evidence related to one of the counts under which he was convicted — Count 10 — for possession of two firearms in furtherance of drug trafficking activity. This charge related to guns found in 2010 in the secret compartment under the kitchen sink of the Evergreen Street click house. In support of his motion, Perry attached an undated declaration by his counsel stating that a man arrested at the click house at the time the police discovered the guns, John West, had revealed to counsel that he owned the guns and stored them at the Evergreen click house “without ... Perry’s knowledge” and with the intent to sell them. Based on this allegedly new evidence, Perry requested an evidentiary hearing and a new trial. Chapman, who was also convicted on Count 10, successfully moved to adopt Perry’s motion as filed on his own behalf. The district court denied the joint motion without a hearing, concluding that the allegedly new evidence was not likely to result in either defendant’s acquittal on Count 10. The court found that, contrary to indicating Perry’s and Chapman’s innocence, this evidence “strongly supported] the notion that West was a co-conspirator ... [i]n which case, even if Perry and Chapman did not own the gun and were ignorant of its presence, they would still be criminally liable under the Pinkerton doctrine.”

D. Sentencing

Perry’s sentencing was held on August 19, 2015. At issue, in relevant part, were the sentences for his dual firearms convictions in violation of 18 U.S.C. § 924(c) — Count 6 (discharge of a firearm during and in relation to the drug conspiracy and a carjacking incident) and Count 10 (knowingly possessing a firearm in furtherance of the drug conspiracy and possession with intent to distribute). The pre-sentence report stated that the mandatory minimum terms for these convictions were ten and five years, respectively. The Government objected, arguing that Count 10 constituted a second conviction under 18 U.S.C. § 924(c) and therefore the mandatory minimum for Count 10 should be 25 years. See 18 U.S.C. § 924(c)(1)(C)(i) (“In the case of a second or subsequent conviction under [18 U.S.C. § 924], the person shall ... be sentenced to a term of imprisonment of not less than 25 years.... ”); Deal v. United States, 508 U.S. 129, 131-33, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993) (holding that § 924(c)’s enhanced penalty for a second or subsequent conviction applies when the defendant is convicted of multiple § 924(c) counts in a single proceeding). The probation officer agreed with these objections. The district court, however, declined to impose the 25-year mandatory minimum sentence on Count 10, instead imposing the five-year sentence originally recommended in the pre-sentence report (plus the ten-year sentence on Count 6). The court reasoned that it could not impose the 25-year mandatory minimum because it was unable to determine “which [§ 924(c)] conviction the jury concluded first because of the secrecy of the jury deliberations,” and thus the court did not know to which conviction, Count 6 or Count 10, the 25-year mandatory minimum should be applied. Perry was ultimately sentenced to life imprisonment plus 15 years. Chapman was sentenced to a 45-year term of imprisonment and Boyer to a 10-year term of imprisonment.

II. PERRY’S SENTENCE UNDER 18 U.S.C. § 924(c)

The Government cross-appeals the district court’s calculation of the mandatory minimum sentence on one of Perry’s two convictions under 18 U.S.C. § 924(c), arguing that the district court erred in failing to impose the 25-year mandatory minimum. We review the district court’s interpretation and application of § 924(c) de novo. United States v. Kaluza, 780 F.3d 647, 653 (5th Cir. 2015).

Perry was convicted of two counts under 18 U.S.C. § 924(c). Section 924(c) provides additional penalties for “any person who, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm.” 18 U.S.C. § 924(c)(1)(A). Ordinarily, the mandatory minimum sentence for a first conviction under § 924(c) is five years. Id. § 924(c)(1)(A)(i). The mandatory minimum for a “second or subsequent conviction” under § 924(c) is 25 years. Id. § 924(c)(1)(C)(i). The Supreme Court, in Deal v. United States, held that this 25-year mandatory minimum applies when a defendant is convicted of multiple § 924(c) counts in a single proceeding. 508 U.S. at 131-33, 113 S.Ct. 1993. It explained that “conviction” as used in § 924(c)(1) means “the finding of guilt by a judge or jury” rather than “the entry of a final judgment on that finding.” Id. at 131-32, 113 S.Ct. 1993. If “conviction” had this latter meaning, it would render the statute incoherent because a judgment of conviction necessarily includes an already imposed sentence, and an already imposed sentence cannot be enhanced. Id. at 132, 113 S.Ct. 1993. The Court further reasoned that “findings of guilt on several counts are necessarily arrived at successively in time,” and thus, the 25-year enhanced penalty could be applied to a second § 924(c) conviction within the same proceeding. Id. at 132-33 & n.1, 113 S.Ct. 1993.

At Perry’s sentencing, the district court recognized Deal’s, holding, but explained that Deal “did not address whether ... when there are two convictions in the same charging instrument!,] how the court is to consider which conviction came first and which conviction came second.” This issue was relevant for Perry’s sentencing because one of his § 924(c) convictions (Count 10) carried a mandatory minimum of five years since it was for mere possession of a firearm, while his other § 924(c) conviction (Count 6) carried a mandatory minimum of ten years since it was for discharge of a firearm. The district court explained that, due to the secrecy of jury deliberations, it had no way of determining which of the two convictions the jury arrived at first, and thus, it could not determine to which of these convictions the 25-year enhanced penalty should apply. Accordingly, the district court applied the rule of lenity and “decline[d]” to apply the enhanced penalty to either of Perry’s two. § 924(c) convictions.

The district court erred in declining to apply the 25-year enhanced penalty to Perry’s second conviction under § 924(c). Under Deal’s reasoning, Perry’s two convictions under § 924(c) necessarily included a first § 924(c) conviction and a second § 924(c) conviction. See Deal, 508 U.S. at 133 n.1, 113 S.Ct. 1993 (“[Findings of guilt on several counts are necessarily arrived at successively in time.”). It is true that § 924(c) is silent on how multiple convictions should be sequenced for sentencing purposes, and it is not possible for the court to know the sequence in which the jury reached the convictions.

To resolve this ambiguity, we employ a well-known interpretive tool: the rule of lenity. “The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them.” Kaluza, 780 F.3d at 669 (quoting United States v. Santos, 553 U.S. 507, 514, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008) (plurality opinion)). The application of the rule of lenity in this context is a matter of first impression for this court. But all of Our sister circuits that have considered this issue have held that the rule of lenity requires that the conviction with the lowest mandatory minimum sentence be considered the first conviction for the purposes of applying the 25-year enhanced penalty. See United States v. Pierce, 785 F.3d 832, 846-47 (2nd Cir. 2015); United States v. Washington, 714 F.3d 962, 970-71 (6th Cir. 2013); United States v. Major, 676 F.3d 803, 814-15 (9th Cir. 2012). In this way, the defendant’s aggregate statutory minimum sentence is- minimized and the rule of lenity is satisfied. We agree with this approach. Applied here, this means that Count 10 should be considered Perry’s first § 924(c) conviction (carrying five years) and Count 6 should be the second § 924(c) conviction (carrying 25 years due to the enhanced penalty), for a total statutory minimum sentence on the § 924(c) counts of 30 years.

In declining to apply the 25-year enhanced penalty, the district court stated that, lacking any precedent from this circuit, it was “persuaded by the analysis” from the Ninth Circuit in United States v. Major. But the Ninth Circuit in Major did not entirely decline to apply the 25-year enhanced penalty. To the contrary, the Ninth Circuit applied the enhanced penalty by concluding that, “when the district court does not have sufficient information to determine the order in which the jury made determinations of guilt during jury deliberations on multiple counts under section 924(c),” the rule of lenity required the district court to “order the convictions so that the mandatory minimum sentence is minimized.” Major, 676 F.3d at 815. In that case, the rule of lenity required that “one of the [§ 924(c)] brandishing counts, rather than a [§ 924(c)] discharging count ... be the first conviction” because the former carried a lower mandatory minimum sentence. Id. Thus, Major does not lend support to the district court’s decision not to apply the 25-year enhanced penalty at all. Rather, Major supports our conclusion that, for the purposes of the enhanced penalty, the § 924(c) count with the lowest mandatory minimum sentence should be considered the first conviction.

On appeal, Perry does not dispute that § 924(e)’s 25-year enhanced penalty should be interpreted and applied in this manner. Rather, he argues that the district court’s failure to impose the penalty is excused by the fact that, in light of Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), § 924(e)(3)(B)’s definition of “crime of violence” (“the risk of force definition”) is unconstitutionally vague, see 18 U.S.C. § 924(c)(1)(A) (providing enhanced penalties for anyone who, “in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm” (emphasis added)); id. § 924(c)(3)(B) (defining “crime of violence” as any felony “that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course' of committing the offense”). According to Perry, because this definition is “conceivably unconstitutional,” the district court did not err by failing to use it to enhance Perry’s sentence.

Perry’s argument is unavailing for several reasons. First, as Perry concedes, he has not challenged his § 924(c) convictions or sentences on appeal. Rather than use this vagueness argument as a basis for appealing his § 924(c) convictions, Perry raises it only in response to the Government’s cross-appeal of his § 924(c) sentences. Second, Perry’s argument regarding the vagueness of the risk of force definition is counter to United States v. Gonzalez-Longoria, in which we recently held that an identical definition of crime of violence in 18 U.S.C. § 16(b) was not unconstitutionally vague. 831 F.3d 670, 672 (5th Cir. 2016) (en banc). Third and finally, Perry’s § 924(c) convictions are not affected by any alleged infirmity in the risk of force definition of crime of violence because the convictions’ predicate offenses are not based on his having committed a crime of violence. Rather, they are based on his having committed drug trafficking crimes. See 18 U.S.C. § 924(c)(1)(A) (providing for increased penalties for “any person who, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm” (emphasis added)). Drug trafficking crimes are the predicate offenses for both of Perry’s § 924 counts: Count 10 charged possession of firearms in furtherance of drug trafficking crimes — namely, the drug conspiracy (charged in Count 1) and possession with intent to distribute cocaine and 28 grams or more of cocaine base (charged in Count 9). And Count 6 charged discharge of a firearm in furtherance of a drug trafficking crime — namely, the drug conspiracy (charged in Count 1). These drug trafficking crimes qualify as predicate offenses for the purposes of § 924(c)’s enhanced penalty without reference to the risk of force definition. See 18 U.S.C. § 924(c)(1)(A).

Accordingly, we conclude that the district court erred in declining to apply the 25-year mandatory minimum sentence required by § 924(c)(1)(C) to one of Perry’s § 924(c) convictions. We vacate Perry’s sentence with regard to these convictions and remand with instructions that the district court recalculate his sentence on Counts 6 and 10 as set forth above.

IIL SUFFICIENCY OF THE EVIDENCE

Perry and Boyer challenge the sufficiency of the evidence to support their convictions for conspiracy to distribute and possess with intent to distribute 280 grams or more of cocaine base and 5 kilograms or more of cocaine, in violation of 21 U.S.C. § 846. We review challenges to the sufficiency of the evidence de novo, applying the same standard as applied by the district court: could a rational jury find that all elements of the crime were proved beyond a reasonable doubt? United States v. Wise, 221 F.3d 140, 147, 154 (5th Cir. 2000). Though de novo, this review “is nevertheless ‘highly deferential to the verdict.’ ” United States v. Bowen, 818 F.3d 179, 186 (5th Cir. 2016) (per curiam) (quoting United States v. Beacham, 774 F.3d 267, 272 (5th Cir. 2014)). We “search the record for evidence ... supporting] the convictions beyond a reasonable doubt,” United States v. Mulderig, 120 F.3d 534, 546 (5th Cir. 1997), and review the evidence “in the light most favorable to the verdict, accepting all credibility choices and reasonable inferences made by the jury,” Wise, 221 F.3d at 147. In other words, “a defendant seeking reversal on the basis of insufficient evidence swims upstream.” Mulderig, 120 F.3d at 546.

To convict a defendant of conspiracy to possess and distribute drugs under 21 U.S.C. § 846, the Government “must prove beyond a reasonable doubt: 1) the existence of an agreement between two or more persons to violate narcotics laws, 2) knowledge of the conspiracy and intent to join it and 3) voluntary participation in the conspiracy.” United States v. White, 219 F.3d 442, 445 (5th Cir. 2000). The agreement between co-conspirators need not be express or explicit; tacit agreement is sufficient. United States v. Shoemaker, 746 F.3d 614, 623 (5th Cir. 2014). And the agreement can be proved “with only circumstantial evidence” or “inferred from concert of action.” Id. (quoting United States v. Virgen-Moreno, 265 F.3d 276, 284-85 (5th Cir. 2001)). “[M]ere presence at the scene or association with co-conspirators” is insufficient to support a conviction, but “they are factors that may be considered” in finding a conspiracy. United States v. Thomas, 690 F.3d 358, 366 (5th Cir. 2012). Further, a valid conviction can be based “on uncorroborated testimony of an accomplice or of someone making a plea bargain with the government, provided that the testimony is not incredible or otherwise insubstantial on its face.” Shoemaker, 746 F.3d at 623 (quoting United States v. Osum, 943 F.2d 1394, 1405 (5th Cir. 1991)). Testimony is not incredible as a matter of law “unless it pertains to matters ‘that the witness physically could not have observed or events that could not have occurred under the laws of nature.’ ” Id. (quoting Osum, 943 F.2d at 1405). We now turn to the sufficiency of the evidence supporting Perry’s and Boyer’s convictions.

A. Perry

Viewing the evidence in the light most favorable to the jury’s verdict, there was sufficient evidence to support Perry’s conspiracy conviction. Perry’s primary argument on appeal is that the Government’s evidence at trial “merely established a buyer-seller relationship between Perry and a number of buyers”; it did not establish that Perry entered into an agreement with others with the joint objective of possessing and distributing cocaine, as is required for a conspiracy conviction. In other words, Perry admits that he sold large quantities of drugs in individual transactions to individual buyers, but maintains that the evidence indicates that he did so alone, not in concert with others.

It is true that simple drug transactions between a buyer and seller alone do not amount to a drug conspiracy. United States v. Delgado, 672 F.3d 320, 333 (5th Cir. 2012) (en banc). And “[m]ere ... association alone ... [is] not sufficient to prove participation in a conspiracy.” United States v. Turner, 319 F.3d 716, 721 (5th Cir. 2003). But the Government’s evidence showed more than Perry simply engaging in individual drug sales and showed guilt by more than mere association; it showed him repeatedly working in concert with many others to possess and distribute crack and cocaine. Numerous witnesses testified that many individuals retrieved the drugs (from hiding spots and click houses) that Perry sold to customers and handled drug sales on Perry’s behalf when he was absent. And several co-conspirators testified that they and others accompanied Perry on trips to Houston to replenish their drug supply. Another co-conspirator admitted to committing two robberies in furtherance of Perry’s drug operation and also explained the supporting roles of other co-conspirators in the robberies. There was also testimony that Perry sold drugs on credit, which is “‘strong evidence’ of membership in a conspiracy because it indicates a strong level of trust and an ongoing, mutually dependent relationship.” Thomas, 690 F.3d at 366 (quoting United States v. Posada-Rios, 158 F.3d 832, 860 (5th Cir. 1998)). In addition to the testimony of alleged co-conspirators, undercover video of controlled buys, security video footage, dash cam footage, and police testimony were introduced into evidence, all of which demonstrated that Perry worked with others.

Perry counters that his relationships with his alleged co-conspirators “spanned different periods of time, ... involved different people, different prices, different locations, and different methods of payment and delivery.” But “[p]ersonnel changes do not defeat a finding of a single conspiracy.” United States v. DeLeon, 641 F.2d 330, 334 (5th Cir. 1981). Nor is it necessary “for all co-conspirators to know each other or to work together on every transaction.” Id. Based on the extensive evidence of “concert of action” amongst Perry and others, the jury could reasonably infer an agreement, as well as Perry’s knowledge, intent, and voluntary participation. United States v. Romans, 823 F.3d 299, 311 (5th Cir. 2016) (quoting United States v. Landry, 903 F.2d 334, 338 (5th Cir. 1990)).

Finally, Perry challenges the credibility of the witnesses who testified against him, noting that most of the witnesses against him were testifying for the Government pursuant to plea agreements. However, in a challenge to the sufficiency of the evidence, this argument is inappo-site. Rather, “the jury is the ultimate arbiter of the credibility of a witness,” and we accept all credibility determinations by the jury, with few exceptions that Perry does not allege apply here. Shoemaker, 746 F.3d at 623 (quoting Osum, 943 F.2d at 1405); Wise, 221 F.3d at 147. Further, the “uncorroborated testimony of an accomplice or of someone making a plea bargain with the government” can support a conviction. Shoemaker, 746 F.3d at 623 (quoting Osum, 943 F.2d at 1405).

We conclude that sufficient evidence supports Perry’s conspiracy conviction.

B. Boyer

Viewing the evidence in the light most favorable to the jury’s verdict, there was sufficient evidence to support Boyer’s conspiracy conviction. The jury heard testimony that Boyer lived at one of the click houses and was “always” there, retrieved and weighed drugs for Perry’s customers, conducted drug sales on Perry’s behalf when Perry was absent, stored guns in hidden locations in the click houses, pointed a gun at a man that Perry was robbing, and provided another associate of Perry’s with the gun used in a carjacking. This is more than sufficient evidence from which the jury could reasonably find that Boyer participated in the conspiracy.

Boyer seemingly concedes that he participated in the conspiracy (albeit merely in exchange for drugs) but argues that his participation was limited to a minor “errand boy” role. He claims that his duties were limited to cleaning crack residue from the kitchen, running occasional errands for Perry, and buying and selling drugs on his own. But co-conspirator liability is not limited to those who play a major role; rather liability can attach to those who play a “minor role” as long as they “knowingly participate[ ] in some, fashion in the larger objectives of the conspiracy.” United States v. Brown, 727 F.3d 329, 339 (5th Cir. 2013) (quoting United States v. Westbrook, 119 F.3d 1176, 1189 (5th Cir. 1997)); see also Salinas v. United States, 522 U.S. 52, 64, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997) (“[T]he supporters [of a conspiracy] are as guilty as the perpetrators.”); United States v. McKinney, 53 F.3d 664, 672 (5th Cir. 1995) (“A defendant need only have had a minor role in the conspiracy, once it is shown that he voluntarily agreed to participate.”). An individual “need not know all the details of the unlawful enterprise or ... the exact number or identity of all the co-conspirators” in order to be liable as a co-conspirator. Brown, 727 F.3d at 339 (quoting Westbrook, 119 F.3d at 1189). Nor does “[t]he fact that a conspirator is not present at, or does not participate in, all of the conspiratorial activities ... exonerate him.” United States v. Ashley, 555 F.2d 462, 467 (5th Cir. 1977). Accordingly, even assuming, arguendo, that Boyer played a relatively minor role in the conspiracy, he is not shielded from liability.

Boyer argues that he lacked the specific intent to participate in the conspiracy. To be liable as a co-conspirator, an individual must enter the agreement with the “specific intent that the underlying crime be committed.” Ocasio v. United States, — U.S. -, 136 S.Ct. 1423, 1429, 194 L.Ed.2d 520 (2016) (emphasis omitted) (quoting 2 K. O’Malley, J. Grenig & W. Lee, Federal Jury Practice and Instructions: Criminal § 31:03, p. 225 (6th ed. 2008)). But the Government need not prove an individual defendant’s subjective intent, United States v. Holmes, 406 F.3d 337, 353 (5th Cir. 2005); rather, the jury may objectively infer specific intent based on the fact that the defendant intends the probable consequences of his actions, United States v. Stoker, 706 F.3d 643, 646-47 (5th Cir. 2013). The underlying crimes at issue here are drug possession with intent to distribute and drug distribution. There was sufficient evidence to infer Boyer’s specific intent to possess and distribute drugs. Copious evidence was introduced that Boyer himself distributed drugs to buyers and that he took other actions in furtherance of the conspiracy, such as retrieving and weighing drugs for Perry’s buyers, and assisting Perry in robbing another drug dealer by pointing a gun at the dealer. There was sufficient evidence to allow the jury to find that Boyer possessed the requisite specific intent to further the drug conspiracy because such an outcome was the probable consequence of his actions. Finally, as with Perry’s challenge to the credibility of the witnesses against him, Boyer’s suggestion that the witnesses against him were not credible because of their plea agreements with the Government and prior drug use is not a relevant consideration in assessing the sufficiency of the evidence. United States v. Greenwood, 974 F.2d 1449, 1458 (5th Cir. 1992).

We conclude that sufficient evidence supports Boyer’s conspiracy conviction.

IV. MOTION TO SEVER

Boyer appeals the district court’s denial of his pretrial motion to sever his trial from that of his co-defendants. We review a denial of a motion to sever a trial under the “ ‘exceedingly deferential’ abuse of discretion standard.” United States v. Whitfield, 590 F.3d 325, 355 (5th Cir. 2009) (quoting United States v. Tarango, 396 F.3d 666, 673 (5th Cir. 2005)). Federal Rule of Criminal Procedure 14(a) provides that a court “may ... sever the defendants’ trials” if the joinder “appears to prejudice a defendant or the government.” But “Rule 14 does not require severance even if prejudice is shown; rather, it leaves the tailoring of the relief to be granted, if any, to the district court’s sound discretion.” Zafiro v. United States, 506 U.S. 534, 538-39, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). Giving limiting instructions to the jury is “generally ‘sufficient to prevent the threat of prejudice resulting from unsevered trials.’ ” Whitfield, 590 F.3d at 356. In short, the federal judicial system has a “preference ... for joint trials of defendants who are indicted together.” Zafiro, 506 U.S. at 537, 113 S.Ct. 933; see also United States v. Pofahl, 990 F.2d 1456, 1483 (5th Cir. 1993) (“The rule, rather than the exception, is that persons indicted together should be tried together, especially in conspiracy cases.”).

As a result, “[h]istorically, this court has been reluctant to vacate a conviction because the district court refused to sever a trial.” United States v. Owens, 683 F.3d 93, 98 (5th Cir. 2012) (quoting United States v. Lewis, 476 F.3d 369, 384 (5th Cir. 2007)). To warrant vacatur, the defendant must show “specific and compelling prejudice” resulting from the joint trial. Id. at 100 (quoting United States v. Erwin, 793 F.2d 656, 665-66 (5th Cir. 1986)). In other words, “[t]he defendant must ‘isolate events occurring in the course of the trial and then ... demonstrate that such events caused substantial prejudice.’ ” Id. at 98 (quoting Lewis, 476 F.3d at 384). “The defendant must also show that the district court’s instructions to the jury did not adequately protect him ... from any prejudice resulting from the joint trial.” Id. Merely alleging a “spillover effect” — whereby the jury imputes the defendant’s guilt based on evidence presented against his co-defendants — “is an insufficient predicate for a motion to sever.” United States v. Snarr, 704 F.3d 368, 397 (5th Cir. 2013) (quoting United States v. Bieganowski, 313 F.3d 264, 287 (5th Cir. 2002)).

We reject Boyer’s arguments on appeal because they are limited to alleging this general spillover effect; he fails to show the specific and compelling prejudice necessary to warrant vacatur. Owens, 683 F.3d at 100. Boyer merely complains that the sheer volume of evidence relating to his co-defendants, compared to the relatively small portion relating to him, confused the jurors and impeded their ability to parse out his guilt. He fails to “isolate” any specific prejudicial event at trial, let alone demonstrate that such an event caused him “substantial prejudice.” Id. (quoting Lewis, 476 F.3d at 384). We have held that “severance is required on the basis of disparity in the evidence only in the most extreme cases.” Id. at 100 (quoting United States v. Rocha, 916 F.2d 219, 229 (5th Cir. 1990)). And we have rejected a defendant’s appeal of the denial of a motion to sever when the defendant merely “ ‘complainfed] broadly of the volume of evidence, the disparity of evidence between defendants, and a generalized spillover effect,’ but ‘[did not] point[] to any specific prejudice resulting from [his] combined trial.’ ” United States v. Stalnaker, 571 F.3d 428, 435 (5th Cir. 2009) (first alteration in original) (quoting Lewis, 476 F.3d at 384).

Further undercutting Boyer’s argument is the fact that the district court instructed the jury to separately consider each defendant and count, as well as the evidence as it pertained to each defendant and count. We generally “presume” that juries “follow the instructions given to them by the district court.” Owens, 683 F.3d at 100. And here, the jury appears to have followed these instructions, as evidenced by the fact that, among other acquittals, they acquitted Boyer of the two carjacking-related charges against him, as well as the fourth co-defendant of the conspiracy charge. “That suggests that the jury did not blindly convict [the defendant] on spillover evidence but instead gave each defendant and each count separate consideration.” Stalnaker, 571 F.3d at 435. Accordingly, we conclude that the district court did not abuse its discretion in denying Boyer’s motion to sever because it merely alleged a spillover effect and any incidental prejudice was cured through jury instructions.

V. MOTIONS FOR A NEW TRIAL

Chapman and Boyer appeal the district court’s denial of their motions for a new trial. We review a district court’s denial of a motion for a new trial for abuse of discretion. United States v. Piazza, 647 F.3d 559, 564 (5th Cir. 2011). In reviewing the denial, we are “necessarily deferential to the [district] court because [we] ha[ve] only read the record and, unlike the [district] court, did not see the impact of witnesses on the jury or observe the demeanor of witnesses.” Id. at 565 (quoting United States v. Wall, 389 F.3d 457, 465 (5th Cir. 2004)). The district court’s refusal to hold an evidentiary hearing on a motion for a new trial is also reviewed for abuse of discretion. United States v. Mahmood, 820 F.3d 177, 190 (5th Cir. 2016).

Federal Rule of Criminal Procedure 33(a) permits the district court to grant a new trial on the motion of a defendant “if the interest of justice so requires.” A new trial is not required by the interest of justice “unless there would be a miscarriage of justice or.the weight of evidence preponderates against the verdict.” Wall, 389 F.3d at 466. A new trial may also be warranted based on newly discovered evidence, but such motions “are ‘disfavored and reviewed with great caution.’ ” Id. at 467 (quoting United States v. Erwin, 277 F.3d 727, 731 (5th Cir. 2001)). Ultimately, “the decision to grant or deny a motion for new trial based on the weight of the evidence is within the sound discretion of the trial court.” United States v. Robertson, 110 F.3d 1113, 1118 (5th Cir. 1997). We now consider whether the district court abused its discretion in denying Chapman’s and Boyer’s motions for a new trial.

A. Chapman

Chapman appeals the district court’s denial of a new trial only as to Count 10, under which he was convicted of possession of firearms in furtherance of drug trafficking activity. Count 10 was based on the guns found in the secret compartment in the Evergreen Street click house in July 2010, and the drug trafficking activity that these guns were allegedly in furtherance of was the drug conspiracy (Count 1) and possession with intent to distribute (Count 9). Chapman’s motion was based on the affidavit from Perry’s counsel stating that another individual, John West, had revealed to counsel that he owned the guns that served as the basis for Count 10, intended to sell them, and stored them at the Evergreen Street click house “without ... Perry’s knowledge.” Chapman argues that the district court abused its discretion in denying his motion for a new trial on the basis of this allegedly newly discovered evidence, and also abused its discretion in failing to hold an evidentiary hearing on his motion.

To obtain a new trial based on newly discovered evidence, the defendant must demonstrate: “(1) the evidence is newly discovered and was unknown to the defendant at the time of trial; (2) the failure to detect the evidence was not due to a lack of diligence by the defendant; (3) the evidence is not merely cumulative or impeaching; (4) the evidence is material; and (5) the evidence if introduced at a new trial would probably produce an acquittal.” Wall, 389 F.3d at 467. Failure to demonstrate any one of these five factors is fatal to the motion for a new trial. Id. The district court assumed without analysis that Chapman’s motion satisfied the first four elements but denied the motion because it concluded that the new evidence would not “probably”’ result in acquittal, the fifth element. Even if we disagree with the district court’s conclusion on the fifth element, we may affirm its denial “on any basis supported by the record.” United States v. Causey, 568 Fed.Appx. 269, 277 (5th Cir. 2014) (per curiam).

Chapman’s motion fails on at least four of the elements and thus did not warrant a new trial. First, Chapman did not allege that the evidence was new to him and unknown during the trial. He merely adopted Perry’s motion, which stated that Perry learned of the information after trial. And the allegedly new evidence itself does not state when West revealed the information to Perry’s counsel. The record is therefore silent on whether Chapman knew of this evidence at the time of trial. Second, even if he did not know about the evidence during trial, Chapman failed to show he could not have learned of it through due diligence. Neither Chapman’s motion nor Perry’s motion, which Chapman adopted, even alleged due diligence. And the record indicates that due diligence would likely have led to discovery of West’s testimony before trial. Chapman was given the police report on the search of the Evergreen Street click house that led to the discovery of the hidden guns in May 2013, well over a year before trial. The report identified West as being arrested at the scene and described his statements to police upon arrest. Thus Chapman was aware of West’s identity and significance to the gun possession charge well before trial, and due diligence likely would have revealed West’s alleged testimony before trial. Third, Chapman did not establish that the evidence was material. The allegedly new evidence was merely an unnotarized written declaration by Perry’s counsel restating what West had “revealed” to counsel. Such “representations from defense counsel repeating statements that [the witness with the purportedly new testimony] had made to counsel” are “inadmissible hearsay” and “a motion for new trial may not be based on inadmissible evidence.” Wall, 389 F.3d at 470-71. Accordingly, this hearsay evidence is not material because it is not admissible.

Finally, as the district court concluded, even if Chapmen met the first four elements, the new evidence, if it was introduced at trial, would not probably result in Chapman being acquitted on Count 10. Count 10 charged possession of a firearm in furtherance of the drug trafficking crimes charged in Count 1 (drug conspiracy) and Count 9 (possession with intent to distribute drugs). To show that possession of a firearm is in furtherance of a drug trafficking offense, the government must show that “it furthers, advances, or helps forward that offense.” United States v. Walker, 828 F.3d 352, 354 (5th Cir. 2016) (quoting United States v. Palmer, 456 F.3d 484, 489-90 (5th Cir. 2006)). Factors relevant in making this determination include:

[T]he type of drug activity that is being conducted, accessibility of the firearm, the type of weapon, whether the weapon was stolen, the status of the possession (legitimate or illegal), whether the gun is loaded, proximity to the drugs or drug profits, and the time and circumstances under which the gun is found.

Id. at 354-55 (quoting Palmer, 456 F.3d at 490).

There was ample evidence for the jury to find that the guns at issue — recovered from a secret compartment under the kitchen sink in the Evergreen Street click house — were possessed in furtherance of a drug conspiracy. There was testimony that the Evergreen Street house was frequently .used for selling and cooking drugs; the secret compartments were used for storing drugs; and 35 grams of cocaine and 77 grams of crack were recovered from the house at the same time the guns were seized, as were other drug paraphernalia. West’s statement that he owned the guns, stored them without Perry’s knowledge, and intended to sell them would have not disturbed this finding and Chapman’s corresponding liability. First, as the district court noted, the jury likely would not credit West’s testimony that Perry was unaware of West’s storage of the guns in the secret compartment. Second, even if the jury had credited West’s testimony, West does not assert that Chapman was unaware of West’s storage of the guns, only that Perry was. The jury likely would not have inferred from the fact that Perry was unaware of the guns that Chapman was also unaware. Indeed, the jury heard testimony that Chapman knew about and independently used the hidden compartment under the kitchen sink in the Evergreen Street click house in which the guns were found. And it heard testimony from another individual who spent time in the click house that he had previously seen one of the guns that was ultimately recovered from the secret compartment “around ... the neighborhood, probably at one of the click houses.”

Finally, as the district court noted, even if the jury had credited West’s testimony and applied it to Chapman, it implicates rather than exonerates Chapman because it shows that West was a member of the same conspiracy that Chapman was convicted of, and thus Chapman is liable for West’s possession of the guns via Pinkerton liability. See United States v. Pierce, 893 F.2d 669, 675-76 (5th Cir. 1990) (“Under the theory of Pinkerton, a conspirator can be found guilty of a substantive offense committed by a coconspirator and in furtherance of the conspiracy, so long as the conspirator’s acts are within the reasonably foreseeable scope of the conspiracy.”). Although Chapman argues that there would be insufficient evidence for the jury to conclude that West was a co-conspirator, the evidence shows more than West’s mere presence and close association with the conspiracy. As Chapman concedes, West’s statements that he hid the guns in a secret compartment known to very few in a click house full of drug dealing, drugs, and drug paraphernalia “reasonably raise the inference that West was aware of Perry’s activities and that Perry trusted West enough to grant him free access to the Evergreen Street [click] house.” This is sufficient to connect West to the conspiracy of which Chapman was a part. See United States v. Misher, 99 F.3d 664, 668 (5th Cir. 1996) (stating that an individual’s “presence and association with other members of the conspiracy, when supported by other evidence, may be used to support the finding of a conspiracy”). Therefore, even, if the jury believed that only West knew about the guns, they had ample evidence that West was a co-conspirator of Chapman’s. West’s testimony would not likely have resulted in Chapman’s acquittal. Giv-. en these shortcomings of Chapman’s motion for a new trial, the district court did not abuse its discretion in failing to hold an evidentiary hearing on Chapman’s motion. See United States v. Brewer, 60 F.3d 1142, 1145-46 (5th Cir. 1995) (holding defendant not entitled to'a hearing on his motion for a new trial where he “failed to prove that his ‘new evidence’ ... was in fact newly discovered and that its recent discovery was in no way attributable to a previous lack of diligence”).

B. Boyer

Boyer argues that the district court abused its discretion in denying his motion for a new trial. He asserts two reasons why his motion should have been granted: (1) the evidence did not support his conviction for conspiracy, and (2) he was unfairly prejudiced by being tried alongside his co-defendants. As to the first reason, we concluded above that sufficient evidence supported Boyer’s drug conspiracy conviction. For these same reasons, Boyer’s drug conspiracy conviction was not against the weight of the evidence, and thus the district court did not abuse its discretion in denying a new trial on that basis. And as to the second reason, unfair prejudice, this is merely a restatement of Boyer’s argument — addressed above — that he was entitled to a severance of his trial from that of his co-defendants. Boyer references no specific evidence or testimony that prejudiced him. Therefore, this argument is baseless for the reasons we discussed in affirming the denial of Boyer’s motion to sever.

VI. CONCLUSION

We VACATE Perry’s sentence and REMAND with instructions that the district court recalculate his sentence on Counts 6 and 10 in accordance with this opinion. Otherwise, we AFFIRM the judgment of the district court with respect to Perry, Chapman, and Boyer.

      . Seventeen of the counts charged Perry, Chapman, or Boyer, one of which was dismissed during the trial. Only one of the five other associates originally charged was tried; the other four reached plea agreements with the Government and, pursuant to those plea agreements, testified at trial for the Government.

      . After the Government rested, and again at the close of evidence, all defendants moved for judgment of acquittal, and the motions were denied each time.

      . The jury found the only other remaining co-defendant not guilty of conspiracy (Count 1), the only count with which he was charged.

      . If the firearm was brandished, the mandatory minimum is seven years; if it was discharged, the mandatory minimum is ten years. 18 U.S.C. § 924(c)(1)(A)(ii)-(iii).

      . Any sentence under § 924(c) must be consecutive to any other sentence a defendant receives. 18 U.S.C. § 924(c)(1)(D)(ii).

      . As opposed to Count 6 being considered the first conviction (carrying 10 years) and Count 10 the second (carrying 25 years), for a total statutory minimum sentence of 35 years.

      . Perry argues that a forthcoming Supreme Court decision may affect this holding. See Lynch v. Dimaya, - U.S. -, 137 S.Ct. 31, 195 L.Ed.2d 902 (2016) (granting certiorari on the question of whether § 16(b)'s definition of crime of violence, as incorporated in the Immigration and Nationality Act, is unconstitutionally vague); see also Dimaya v. Lynch, 803 F.3d 1110, 1120 (9th Cir. 2015). But we cannot deviate from our precedent based on “a mere 'hint' of how the [Supreme] Court might rule in the future.” United States v. Alcantar, 733 F.3d 143, 146 (5th Cir. 2013) (citing In re Tex. Grand Prairie Hotel Realty, L.L.C., 710 F.3d 324, 331 (5th Cir. 2013)). Rather, only an "unequivocal” intervening change in the law, id. "such as by statutory amendment, or the Supreme Court, or [the] en banc court” would permit us to decline to follow our precedent, Jacobs v. Nat'l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008). Accordingly, Perry’s arguments assailing the constitutionality of the risk of force definition are foreclosed by Gonzalez-Longoria.

      . Count 6 also charged discharge of a firearm in furtherance of a carjacking incident (charged in Count 5). The Government argues that carjacking qualifies as a crime of violence under the other definition of “crime of violence” in § 924(c) ("the force definition”), see 18 U.S.C. § 924(c)(3)(A) (defining "crime of violence” as any felony “that has as an element the use, attempted use, or threatened use of physical force against the person or property of another”), not the risk of force definition, which is the definition Perry challenges as unconstitutionally vague on appeal. But even were carjacking to fall under the risk of force definition, this would not affect Perry’s § 924(c) conviction under Count 6 because it also included the predicate offense of a drug trafficking crime, namely the drug conspiracy (Count 1). See United States v. Privette, 947 F.2d 1259, 1262 (5th Cir. 1991) (stating that "[a] conspiracy and its target crimes are separate offenses” for the purposes of § 924(c) and thus "could each support a separate § 924(c) conviction and sentence”).

      .Although Perry’s statement of the case states that "Perry appeals his conviction and sentence on all counts of the indictment,” his issue statement and arguments relate only to his conviction on the conspiracy count. While some of.the other counts are predicated on the conspiracy count, Perry does not identify which counts should fail if the conspiracy count were to fail. Because Perry has not addressed these other counts on appeal, he has waived any argument as to the sufficiency of the evidence on them. See Fed. R. App. P. 28(a)(8)(A); see also United States v. Reagan, 596 F.3d 251, 254-55 (5th Cir. 2010) (holding that appellant who merely "list[ed] ... points of error” without "further argument or explanation” had waived those issues for failure to brief).

      . Boyer also separately appeals the district court's denial of his motions for judgment of acquittal under Federal Rule of Criminal Procedure 29, filed both at the close of the Government’s case and at the conclusion of the trial. But a motion for judgment of acquittal under Rule 29 merely “challenges the sufficiency of the evidence to convict.” United States v. Hope, 487 F.3d 224, 227 (5th Cir. 2007) (quoting United States v. Lucio, 428 F.3d 519, 522 (5th Cir. 2005)); see also Fed. R. Crim. P. 29(a) (“After the government closes its evidence or after the close of all the evidence, the court on the defendant’s motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.”). And an appeal of the denial of a motion for judgment of acquittal is reviewed de novo, just as a challenge to the sufficiency of the evidence is. See United States v. Wise, 221 F.3d 140, 147, 154 (5th Cir. 2000). Accordingly, we treat Boyer's appeal of the motion for a judgment of acquittal as a challenge to the sufficiency of the evidence and do not separately address it.

      . Boyer seems to suggest that we should afford the district court’s denial of his motion less than the usual deference because Judge Dick did not observe the beginning of the trial. But he fails to identify any specific testimony or evidence that is relevant for his motion for a new trial and that Judge Dick may have been ill positioned to assess. Rather, he merely complains that Judge Dick only reviewed the "cold record.” Judge Dick started presiding over the trial after four days of testimony and presided over four more days of testimony, plus the verdict, post-verdict motions, and sentencing. When she commenced presiding, she certified that she was familiar with the record. See Fed. R. Crim. P. 25(a)(2). Indeed, there-was a delay in the trial to give Judge Dick time to "review testimony, exhibits, and motions in th[e] case.” We have recognized that after such a review of the record, a successor judge is "capable of assessing the credibility of witnesses and the evidence at trial.” United States v. Bourgeois, 950 F.2d 980, 988 (5th Cir 1992). And successor judges possess the "same discretion” as their predecessors, and can even overturn their predecessor's interlocutory orders. Stoffels ex rel. SBC Tel. Concession Plan v. SBC Commc’ns, Inc., 677 F.3d 720, 728 (5th Cir. 2012). Accordingly, we afford Judge Dick’s determination that Boyer’s verdict was not against the great weight of evidence the usual level of deference.