author: SHEPHERD, Circuit Judge. MELLOY, Circuit Judge,

text:
    John L. YOUNG; Georgetta I. Young, Plaintiffs-Appellants v. MERCER COUNTY COMMISSION, A Missouri Political Subdivision; Clifford Shipley, individually, and his official capacity as Mercer County Commissioner; Zack Martin, individually, and in his official capacity as Mercer County Commissioner; Shane Grooms, individually, and in his official capacity as Mercer County Commissioner, Defendants-Appellees
    No. 16-1324
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 22, 2016
    Filed: February 27, 2017

      Counsel who presented argument on behalf of the appellants was Arthur Benson, of Kansas City, MO. In addition to Mr. Benton, the following attorney(s) appeared on the appellants’ brief; Jamie Kathryn Lansford, of Kansas City, MO.
    Counsel who presented argument on behalf of the appellees was Christopher Lee Heigele, of Kansas City, MO. In addition to Mr. Heigele, the following attorney(s) appeared on the appellees’ brief; Steven F. Coronado, of Kansas City, MO.
    Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.
   SHEPHERD, Circuit Judge.

John and Georgetta Young brought this action against Clifford Shipley, Shane Grooms, and Zach Martin individually and in their official capacities as Mercer County Commissioners, and the Mercer County Commission. The district court granted Defendants’ motion for summary judgment, finding that they were, protected by absolute legislative immunity and qualified immunity, and the Youngs appealed. For the reasons stated herein, we affirm.

I. Background

Viewed in the light most favorable to the Youngs as the non-moving parties, the facts relevant to this appeal are as follows. See Tolan v. Cotton, — U.S. -, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014). Mr. Young is the elected part-time prosecutor for Mercer County, Missouri, and he also operates a private law practice there. The Youngs own a home and an office building in Mercer County.

Mr. Young and the Commission entered into the “Prosecutor/County Lease Agreement” (the “Agreement”) covering the Youngs’ office building. Pursuant to the Agreement, the office building was designated as Mr. Young’s private law office and that of the prosecuting attorney. Additionally, the parties set forth the following terms in the Agreement: (1) the Commission was to provide one full-time secretary, a telephone, and office supplies; (2) Mr. Young was to pay for utilities, internet, and liability insurance for the building; and (3) the Commission was to pay Mr. Young $350.00 monthly “for rent ... to offset expenses being paid privately for said office.” J.A. 240.

On June 27, 2013, the Commission passed ordinance number 06272013 (the “911 Ordinance”), which mandated that ev,ery resident of the county be assigned a permanent 911 address. To facilitate location by emergency responders, the 911 Ordinance directed the Commission to place an address sign where each residential driveway meets the adjoining county or state road. The Youngs’ home sits on the corner of United States Highway 65 and a county road named Gaza Place. As a result of the 911 Ordinance, the Youngs’ address was changed in October 2013 from “Route 1, Box 34” to “20667 Gaza Place.” Shortly thereafter, the Youngs began contesting this change of address because, they argued, the Gaza Place address sent visitors to the side of their house and “a name such as Gaza that people are likely to associate with Middle Eastern conflict arguably is not popular.” Appellants’ Br. 6. Over the next several months, the Youngs repeatedly requested that the Commission change their address to reflect a location on Highway 65.

At some point during the Fall of 2013, Mr. Young began insinuating that he would take legal action to resolve the address dispute, and the Commission hired attorneys Matthew Aplington and Ivan Shraeder to look into the matter. As part of this representation, the Commission provided these attorneys with a copy of the Agreement, and Mr. Shraeder advised the Commission that the Agreement violated the Missouri Constitution. Specifically, he identified as problematic the Commission’s payment of public money to Mr. Young in the form of rent and Mr. Young’s use of the full-time prosecutorial secretary for work arising out of his private practice.

Thereafter, four events occurred that form the basis of the present suit. First, in December of 2013, the Commission denied Mr. Young’s proposed budget request for part-time secretarial assistance in 'the amount of $5000. Then, on March 31, 2014, the Commission terminated the Agreement and made available space in the county courthouse for the prosecutor’s office; suspended the $350.00 monthly rental payments; and wrote a letter to the state attorney general requesting further investigation into the arrangement called for in the Agreement. The latter three actions were all taken at the behest of Mr. Shrae-der.

On August 19, 2014, the Youngs brought this action, asserting a number of claims centered on their contention that the defendants took the above actions in retaliation for their address complaints. Taken from the operative complaint, those claims are as follows: Count 1 sought a declaratory judgment or injunction to prevent the Commission from assigning to the Youngs a Gaza Place address, to declare the 911 Ordinance invalid, and to prevent any further acts of retaliation. Count 2 requested damages from Shipley, Grooms, and Martin in their individual capacities under 42 U.S.C. § 1983 for retaliation in violation of the Youngs’ First Amendment rights. Finally, Count 3 asserted that the 911 Ordinance’s mandate that an address sign be placed on the Youngs’ property constituted a taking in violation of the Fifth Amendment.

The defendants moved to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure, and the district court issued an order granting this motion in part and denying it in part. Specifically, the court determined that the defendants had absolute legislative immunity for their actions in passing the 911 Ordinance and assigning to the Youngs the Gaza Place address, that the court would not invalidate the ordinance, and that the Youngs’ takings claim failed to the extent it sought recovery based on the particular address assignment. However, the court denied the motion insofar as it sought to dismiss the retaliation and takings claims. It found, based on the record as it existed at that time, that the defendants were not entitled to legislative immunity for the complained-of actions and that the takings claim could proceed based on the permanent address sign required by the ordinance.

After further discovery, the defendants filed a motion for summary judgment arguing that the retaliation claims \yere barred by legislative immunity and that the takings claim failed because the Commission was authorized by Missouri law to erect address signs. The district court granted this motion. Dismissing the takings claim, the court found that the placement of an address sign on the Youngs’ property was neither a per se nor a regulatory taking. The Youngs do not appeal this dismissal. As to the retaliation claim, the court held that all four of the above actions were protected by legislative immunity or, in the alternative, by qualified immunity. It is from this latter ruling that the Youngs seek review.

II. Discussion

We review de novo the district court’s grant of summary, judgment on the basis of immunity. See Gatlin ex. rel. Estate of Gatlin v. Green, 362 F.3d 1089, 1092 (8th Cir. 2004) (applying standard to qualified immunity); Redwood Vill. P’ship v. Graham, 26 F.3d 839, 840 (8th Cir. 1994) (applying standard to absolute immunity). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

At issue is whether the aforementioned actions are protected by either legislative or qualified immunity. At the outset, however, we must first identify the specific defendants from whom the Youngs seek damages. According to their brief, the Youngs have only appealed the dismissal of their “claim for damages resulting from retaliation in violation of the First Amendment.” Appellants’ Br. vii. In Count II of their Second Amended Complaint, the Youngs specifically claim “Defendants Shipley, Martin, and Grooms” are responsible for the complained-of retaliation. Pis.’ Second Am. Compl. ¶ 55, ECF No. 78. Notably absent from any of the Youngs’ pleadings in this matter is a claim that any specific Mercer County policy or practice was responsible for the alleged retaliation. As a result, the only defendants from whom the Youngs could conceivably recover money damages are these three Commissioners in their individual capacities. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (“Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort.”); Zepp v. Rehrmann, 79 F.3d 381, 385 (4th Cir. 1996). Therefore, the only claim on appeal is the Youngs’ claim for damages for retaliation against defendants Shipley, Martin, and Grooms in their individual capacities.

In short, the Youngs argue that the Commissioners’ actions were taken in retaliation for the Youngs exercising their First Amendment rights by complaining about the address assigned to their home under the 911 Ordinance. The Youngs contend that the actions singled them out rather than formulated broad public policy and that the actions were administrative, rather than legislative, in nature. As such, the Youngs argue that none of the actions fall within “the sphere of legitimate legislative activity,” see Bogan v. Scott-Harris, 523 U.S. 44, 54, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998) (quoting Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 95 L.Ed. 1019 (1951)) (internal quotation marks omitted), and are therefore not protected by absolute legislative immunity. Alternatively, the Youngs contend there are genuine disputes of material fact that preclude the district court’s grant of qualified immunity. We address legislative immunity first and then turn our attention to qualified immunity.

A. Legislative Immunity

After noting that state and regional legislators possessed absolute immunity for their legislative activities, the Supreme Court held in Bogan v. Seott-Harris that “local legislators are likewise absolutely immune from suit under § 1983 for their legislative activities.” 523 U.S. at 49, 118 S.Ct. 966. “Regardless of the level of government, the exercise of legislative discretion should not be inhibited by judicial interference or distorted by the fear of personal liability.” Id. at 52, 118 S.Ct. 966. This “immunity attaches to all actions taken ‘in the sphere of legitimate legislative activity.’ ” Id. at 54, 118 S.Ct. 966 (quoting Tenney, 341 U.S. at 376, 71 S.Ct. 783).

“When determining whether an act is legislative, the Supreme Court applies a functional test.” Leapheart v. Williamson, 705 F.3d 310, 313 (8th Cir. 2013). Under this test, “ ‘[wjhether an act is legislative turns on the nature of the act, rather than on the motive or intent of the official performing it.’ ” Id. (alteration in original) (quoting Bogan, 523 U.S. at 54, 118 S.Ct. 966). “A legislator’s potential or alleged motives are ‘wholly irrelevant to [the] determination of whether [a legislator is] entitled to legislative immunity.’ ” Id. at 313— 14 (alterations in original) (quoting State Emps. Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 90 (2d Cir. 2007)). Therefore, the primary question is “whether, stripped of all considerations of intent and motive, [the] actions were legislative.” Bogan, 523 U.S. at 55, 118 S.Ct. 966.

Certain actions — such as voting for an ordinance — are by their nature “quintessentially legislative.” Id. At the most basic level, “[l]egislation ... looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power.” Leapheart, 705 F.3d at 313 (second alteration in original) (quoting Prentis v. Atl. Coast Line Co., 211 U.S. 210, 226, 29 S.Ct. 67, 53 L.Ed. 150 (1908)) (internal quotation marks omitted). As a result, the parties agree that the Commissioners are entitled to legislative immunity for passing the 911 Ordinance.

The Youngs argue, however, that the Commissioners are not entitled to legislative immunity for denying Mr. Young’s budget request for part-time help. We disagree. An action that “reflectfe] a discretionary, policymaking decision implicating the budgetary priorities of the [county]” falls within the sphere of legislative activity. Bogan, 523 U.S. at 55-56, 118 S.Ct. 966. As do those governing “a field where legislators traditionally have power to act.” See id. at 56, 118 S.Ct. 966 (quoting Tenney, 341 U.S. at 379, 71 S.Ct. 783) (internal quotation marks omitted). Under Missouri law, “the county commission may revise, alter, increase or decrease the items contained in the budget and may eliminate any item or add new items.” Mo. Ann. Stat. § 50.610. Therefore, decisions about whether to approve or deny proposed budget items fall squarely within the discretion of the Commission as a legislative body, and we have little difficulty concluding that the Commissioners are entitled to legislative immunity for their action denying Mr. Young’s budget request for part-time assistance.

The Youngs next contend that the Commissioners are not entitled to legislative immunity for terminating the Agreement and ceasing the $350.00 monthly rent payments due thereunder. On this point, the Youngs argue this action cannot be budgetary because the Commissioners terminated the Agreement in March of 2014 and the budget for that year was finalized in December of 2013. Alternatively, the Youngs assert that the district court erroneously concluded the Commissioners’ decision would affect future Mercer County prosecutors. Finally, using language from several of the cases cited above, the Youngs contend that terminating the Agreement was not within the sphere of legislative activity because no legislation resulted from it and the action was not a-necessary step in the passage of legislation.

Although this is a closer question, we believe the district court correctly ruled the Commissioners are entitled to legislative immunity for their termination of the Agreement and cessation of rent payments. As we have noted, “the various activities of most [government] officials cannot be [easily or definitively] characterized as only administrative, legislative, or judicial.” Brown v. Griesenauer, 970 F.2d 431, 436 (8th Cir. 1992) (alterations in original) (quoting Haskell v. Wash. Twp., 864 F.2d 1266, 1277-78 (6th Cir. 1988)) (internal quotation marks omitted). Characterization difficulties become even more prominent at the regional level because of the differences between the duties of state and federal legislators and those at a purely local level.

Under section 49.510 of the Missouri Annotated Statutes, “[i]t shall be the duty of the county to provide offices or space where the officers of the county may properly carry on and perform the duties and functions of their respective offices.” Moreover, the funding for this matter shall be “paid out of the county treasury of said county at the time and in the manner that the county commission may direct.” Id. Thus, regardless of whether the decision to terminate the Agreement was budgetary or an independent act, the Commission is the legislative body tasked with housing and funding the county offices. When the Commission discovered the Agreement was possibly in violation of the state constitution, the Commissioners were entitled to take action to remedy the situation.

We reject the Youngs’ argument that the district court improperly considered the potential consequences of the action. See Bogan, 523 U.S. at 56, 118 S.Ct. 966 (in determining an activity to be legislative, noting that 'the activity “may have prospective implications that reach well beyond the particular occupant of the office”). Establishing office space in the courthouse for the county prosecutor would affect Young and future prosecutors alike. Moreover, the Youngs adopt far too narrow a reading of precedent in their argument that this cannot be a legislative action because no legislation resulted from it. Under Missouri law, the County Commission is tasked with completing a variety of duties to facilitate the operation of Mercer County. In this instance, the Commissioners met as a legislative body and voted on the appropriate course of action to deal with the possible illegality of a contract into which they had entered. See Mo. Ann. Stat. § 49.070 (requiring a quorum for the county commissions to conduct business). That course of action was legislative, regardless of whether it resulted in an ordinance.

We conclude that the district court correctly ruled that the Commissioners are entitled to legislative immunity for denying Mr. Young’s budget request, terminating the Agreement, and ceasing the $350.00 monthly rental payments.

B. Qualified Immunity

The district court properly found that the Commissioners are entitled to qualified immunity as to their request that the state attorney general review the legality of the Agreement. “The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). “[C]ourts may grant qualified immunity on the ground that a purported right was not ‘clearly established’ by prior case law, without resolving the often more difficult question whether the purported right exists at all.” Reichle v. Howards, 566 U.S. 658, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012) (citing Pearson, 555 U.S. at 227, 129 S.Ct. 808). “A clearly established right is one that is ‘sufficiently clear that every reasonable official would have understood that what he is doing violates that right.’ ” Mullenix v. Luna, — U.S. -, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (quoting Reichle, 132 S.Ct. at 2093).

The Youngs’ argument on this point focuses on their broad contention that “the right to criticize elected officials and seek redress of grievance[s] was clearly established well before the events giving rise to the Youngs’ retaliation claim.” Appellants’ Br. 41. The problem with this argument is the same one the Supreme Court confronted in Reichle where the respondent argued that “cases have settled the rule that, as a general matter[,] the First Amendment prohibits government officials from subjecting an individual to retaliatory actions for his speech.” 132 S.Ct. at 2093-94 (alteration in original) (internal quotation marks omitted). Here, as in Reichle, “the right allegedly violated must be established, not as a broad general proposition, but in a particularized sense so that the contours of the right are clear to a reasonable official.” Id. at 2094 (citations omitted) (internal quotation marks omitted). Therefore, the Youngs need to establish that on March 31, 2014, when the Commissioners wrote the letter to the state attorney general to request the investigation, they would have understood that the request violated the Youngs’ constitutional rights. See Mullenix, 136 S.Ct. at 308. However, no authority has been presented for the proposition that legislators, informed by independent counsel that an agreement may be legally unsound and advised by that counsel to ask the attorney general to investigate the matter, may not follow that advice. See Kincade v. City of Blue Springs, 64 F.3d 389, 399 (8th Cir. 1995) (“Reliance on the advice of counsel is a factor to be weighed in assessing whether a public official is entitled to qualified immunity.”). The district court correctly determined that the Commissioners were entitled to qualified immunity for this action. •

III.

For these reasons, we affirm the district court’s grant of summary judgment to the Commissioners.

MELLOY, Circuit Judge,

concurring.

I concur because the district court correctly granted summary judgment to the Commissioners. I write separately, however, because I believe the Commissioners’ actions of terminating the Agreement and ceasing the $350 monthly rent payments were not legislative. Rather, the Commissioners are entitled to qualified immunity, not legislative immunity, for these actions.

The majority holds that because the Commissioners acted pursuant to section 49.510 of the Missouri Annotated Statutes, the decision to terminate the Agreement was legislative. To determine whether the Commissioners’ decision was legislative, and thus entitled to legislative immunity, “the critical inquiry is in what capacity the [Commission was] acting at the time of the allegedly unconstitutional or unlawful conduct.” Brown v. Griesenauer, 970 F.2d 431, 436 (8th Cir. 1992). In Brown, this Court held that although state law authorized local legislators’ challenged action, the action was not truly legislative. Id. at 437. The. Court explained that the act challenged in that case, impeaching the mayor, was “not a ‘classic’ legislative function such as enacting ordinances or establishing municipal policy.” Id.

The majority explains that the Commissioners’ decision to terminate the Agreement and establish an office in the courthouse affected Young and future prosecutors alike. The Commissioners, however, did not terminate the Agreement because they decided that present and future prosecuting attorneys should have an office in the courthouse. The termination letter mentioned only that the Agreement was unconstitutional; it made no reference to future prosecuting attorneys or where they might hold their office. A decision that something is unconstitutional is “essentially judicial or adjudicatory in nature, even though the decision-making body ... [is] legislative. ‘A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist.’ ” Id. (quoting Prentis v. Atl. Coast Line Co., 211 U.S. 210, 226, 29 S.Ct. 67, 53 L.Ed. 150 (1908)). As a result, the decision to cease rent payments and terminate the Agreement was not legislative and, therefore, the Commissioners are not entitled to legislative immunity.

I would hold, instead, that the Commissioners are entitled to qualified immunity for ceasing rent payments and terminating the Agreement. As the majority states, Young has not established that when the Commissioners took these actions on March 31, 2014, “every reasonable official would have understood that” those actions violated the Youngs’ constitutional rights. See Mullenix v. Luna, — U.S. -, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (citation omitted). Similarly, as the majority notes regarding the Commissioners’ letter to the state attorney general, Young has not presented any authority for the proposition that the Commissioners’ could not rely on independent counsel, who informed the Commissioners that the Agreement was unconstitutional and advised them to terminate the Agreement. See Kincade v. City of Blue Springs, 64 F.3d 389, 399 (8th Cir. 1995). Thus, the Commissioners are entitled to qualified immunity for these actions.

      . The Honorable Dean Whipple, United States District Judge for the Western District of Missouri.

      . References to the “Commission” include the Mercer County Commission and the three named defendants in their official capacities. See Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (“[A]n official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.” (citing Brandon v. Holt, 469 U.S. 464, 471-72, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985))).

      . This same order granted the Youngs' motion for leave to file their second amended complaint with the claims outlined above. In that order, the court noted that granting leave to file the amended complaint would normally moot a pending motion to dismiss. However, because the parties agreed that the arguments controlled both the original and amended complaints, the court went on to address the defendants' motion to dismiss.

      . The district court limited its ruling on the qualified immunity issue to the Commission's actions in terminating the Agreement, suspending the $350.00 payments, and requesting the attorney general investigation.

      . Count II is the only claim for damages present in this action.

      . References to the "Commissioners” are to defendants Clifford Shipley, Zach Martin, and Shane Grooms in their individual capacities.

        . Although the Youngs’ counsel seemed to treat these two points separately during oral argument, the issues merit joint discussion because the location of the prosecutor's office and the rental payments were both called for by the Agreement. Therefore, when the Commission terminated the Agreement, there was no need to continue paying rent. Moreover, the Youngs only make a single reference to the rent payments in the context of legislative immunity; the rest of the argument is focused on the Commission’s termination of the Agreement.


source: Caselaw Access Project

author: SHEPHERD, Circuit Judge'.

license: Public Domain

text:
    Rita LAMOUREUX, as trustee of the Rita Lamoureux Trust, Plaintiff-Appellee v. MPSC, INC., also known as Meat Processing Service Corporation, Inc., Defendant Third Party Plaintiff-Appellant v. Rita Lamoureux, individually, Third Party Defendant-Appellee
    No. 16-1402
    United States Court of Appeals, Eighth Circuit.
    Submitted: November 17, 2016
    Filed: February 27, 2017

      Counsel who presented argument on behalf of the appellant was Eric John Mag-nuson, of Minneapolis, MN. The following attorney(s) appeared on the appellant brief Patrick J. Rooney, of Eden Prairie, MN.
    Counsel who presented argument on behalf of the appellee was Rolf Edward Gil-bertson, of Minneapolis, MN. The following attorney(s) appeared on the appellee brief; Rolf Edward Gilbertson, of Minneapolis, MN., Eric. E. Caugh, of Minneapolis, MN.
    Before BENTON and SHEPHERD, Circuit Judges, and EBINGER, District Judge.

      . The Honorable Rebecca Goodgame Ebinger, United States District Judge for the Southern District of Iowa, sitting by designation.

   SHEPHERD, Circuit Judge'.

MPSC, Inc. was a start-up company with an innovative idea — the patented “Rinse & Chill service” — but no capital. An angel investor, John Lamoureux, provided the necessary capital in exchange for a royalty fee every time the company used its patented service. The contract specified three events that would terminate the agreement but did not specify a termination date. MPSC now asks the courts to supply an at-will termination term. The district court declined to do so. We affirm.

I. Background

MPSC is a Minnesota corporation in the meat-processing business with its principal place of business in Wisconsin. In the 1980’s, MPSC developed a new meat-processing technique called Rinse & Chill. The technique improved the amount and quality of the meat removed from the animal. But the company had a problem familiar to many start-ups: lack of capital to fond their innovation. So MPSC solicited investors to provide the needed capital. John Lamoureux, a resident of Florida, responded.

The two parties entered into an Investment Agreement in 1987. The agreement called for Lamoureux to pay MPSC the amount of $150,000. In return, he received the “rights to $1.50 per animal processed by MPSC, up to a maximum of the first five hundred (500) animals per day, for 260 days per year, as long as this agreement remains in effect.” Paragraph five of the agreement discusses termination events-.

5. This agreement shall terminate upon the happening of any of the following events:
(a) The dissolution, bankruptcy, insolvency or receivership of MPSC;
(b) The demise of the legal holder(s) of this agreement under such circumstances that no survivor or survivors of the holder(s) can be located;
' (c) Written agreement of MPSC and the legal holder(s) of this agreement.

The agreement makes no mention of a termination date. It also states that “MPSC agrees there shall be no restriction to the transfer of rights granted by this agreement.”

Some 25 years later, MPSC determined that because the agreement did not contain a precise termination date, MPSC had the right to terminate the agreement at will after providing reasonable notice. By this time, John Lamoureux had passed away, survived by his wife, Rita. In the spring of 2013, MPSC’s president met with Rita and notified her of MPSC’s determination. MPSC ceased making payments shortly thereafter.

Rita subsequently filed a lawsuit alleging breach of contract in the United States District Court for the District of Minnesota. The district court had diversity jurisdiction under 28 U.S.C. § 1332. MPSC counterclaimed, and then each party moved for summary judgment. The district court granted summary judgment to Rita and against MPSC. The court first looked at the agreement’s text, which .expressed no termination date or time period for the payments to continue. Rather, the district court noted, the agreement spells out three types of events, any of which would terminate the agreement. The court- noted also that the agreement calls for payments to continue “as long as this agreement remains in effect.” Together the termination events and the “as long as” language created a clear duty for MPSC to continué payments until the occurrence of any. termination event, according to the district court. The court then considered Minnesota law- and found that no specified termination date is required when the obli-gor’s performance is conditioned on conduct within the obligor’s control. And since MPSC has total control over whether it processes meat, the district court held the agreement valid as written; MPSC could not terminate the investment agreement at will. MPSC now appeals.

II. Discussion

“Minnesota law governs this diversity action.” Friedberg v. Chubb & Son, Inc., 691 F.3d 948, 951 (8th Cir. 2012). We review a district court’s grant of summary judgment de novo. Kobus v. Coll. of St. Scholastica, Inc., 608 F.3d 1034, 1035 (8th Cir. 2010). Summary judgment is appropriate when there are no genuine issues of material fact and the moving party can demonstrate that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Both parties agree there are no genuine issues of material fact in this case. Only questions of law — Minnesota contract law — are disputed.

To properly interpret a written contract, we first examine the text of the contract to identify the parties’ intent. Dykes v. Sukup Mfg. Co., 781 N.W.2d 578, 582 (Minn. 2010). “Intent is ascertained, not by a process of dissection in which words or phrases are isolated from their context, but rather from a process of synthesis in which the words and phrases are given a meaning in accordance with the obvious purpose of the contract ... as a whole.” Motorsports Racing Plus, Inc. v. Arctic Cat Sales, Inc., 666 N.W.2d 320, 324 (Minn. 2003) (citation omitted). Unambiguous contract language will be given its plain meaning. Savela v. City of Duluth, 806 N.W.2d 793, 796-97 (Minn. 2011).

In this case, the Investment Agreement unambiguously calls for MPSC’s continued performance for as long as it processes meat, unless one of the termination events occurs. This is true for three key reasons.

First, the termination clause offers no specific end date or duration for MPSC’s contractual obligations. Rather, it lists three termination events. This suggests the parties intended for the express termination events to serve as the exclusive means of contract termination. See Weber v. Sentry Ins., 442 N.W.2d 164, 167 (Minn. Ct. App. 1989) (“The well-recognized rule of ‘expressio unius est exclusio alterius’ provides that the expression of specific things in a contract implies the exclusion of all not expressed.”). The types of events chosen to terminate the contract bolsters our conclusion. The first termination event was a very real possibility at the time the parties entered into the Investment Agreement. Many start-up companies fail financially before they have a chance to provide any kind of return to investors. The second termination event calls for the contract to end when no survivor(s) of the agreement’s legal holder can be found. This event appears to contemplate the benefits of the royalty payments passing from one generation to the next. The third termination event resembles a residual, catchall method of terminating the contract by written agreement between the parties. On the surface, this clause seems meaningless; any contract can be terminated by later written agreement. But if the parties intended for this list of events to serve as the exclusive means of contract termination, then the inclusion of a residual clause makes perfect sense.

Second, the contract as a whole evinces an intent for continued performance. The contract specifically states -that MPSC’s obligations continue “as long as this agreement remains in effect.” At first glance, this phrase looks to be pure tautology. But, when read together with the three termination events, it takes on real meaning. MPSC owes the rights holder “as long as” one of the three termination events has not occurred and MPSC still processes meat. A separate clause in the agreement disallowing any restriction on transfer offers further, evidence of intent for continued performance. The underlying premise of that clause is the same as that of the second termination event — an intent for the rights to the royalty payments to pass to the successors of the rights holder.

Third, continued performance fits with the purpose of the contract as a whole. See Motorsports Racing, 666 N.W.2d at 324. This is an investment agreement. The purpose of this kind of contract is clear: an offer of cash from an angel investor to get a start-up off the ground in exchange for a slice of the rewards should the start-up succeed. See Holdahl v. Bioergonomics, Inc., No. A12-1495, 2013 WL 401885, at *1 n.1 (Minn. Ct. App. Feb. 4, 2018) (discussing angel investors). A variety of financial arrangements can fulfill this purpose. A common form of investment agreement consists of the start-up granting the angel investor an equity stake in the company. See Darian M. Ibrahim, The (Not So) Puzzling Behavior of Angel Investors, 61 Vand. L. Rev. 1405, 1422 (2008). Here, we see an alternative investment agreement where the start-up retains all of its equity but instead offers a stream of royalty payments based on the product’s use. If John Lamoureux had taken an equity stake in the company, MPSC surely could not come back some 25 years later, after it had achieved great success, and erase Lamour-eux’s equity stake. Likewise, we see no reason to presume that a stream of royalty payments, paid out as part of an investment agreement, can be terminated except under the terms of that agreement.

For these reasons, we conclude that the express terms- of the Investment Agreement compel MPSC’s continued performance. MPSC can relieve itself of continued performance only if some principle of Minnesota contract law overrides the express terms of the contract.

MPSC argues that Minnesota contract law requires us to supply an at-will termination provision to the Investment Agreement because the agreement has no definite duration. See Minn. Deli Provisions, Inc. v. Boar’s Head Provisions Co., 606 F.3d 544, 549 (8th Cir. 2010). MPSC relies primarily on two Minnesota state cases to support its argument. In Hayes v. Northwood Panelboard Co., a letter sent by a plywood manufacturer to a logging company stated that the manufacturer would purchase wood “annually” from the logging company. 415 N.W.2d 687, 689 (Minn. Ct. App. 1987). When the manufacturer stopped purchasing wood, the logging company filed suit but lost at trial. Id. On appeal, the court held, “Because [the] letter is indefinite as to its durational terms, the trial court' properly ruled that any contract based on the letter was indefinite as a matter of law and could be terminated at will.” Id. at 691. In Rosenberg v. Heritage Renovations, LLC, a real-estate broker contracted with a developer to sell several hundred condominium units. 685 N.W.2d 320, 322 (Minn. 2004). The developer terminated the agreement before all units were sold. Id at 323. The broker sued, but the trial court held in favor of the developer. Id. at 323-24. On appeal, the Minnesota Supreme Court held, “Because there is no definite date in the contract or even an event from which one could reasonably determine a definite date, ... the district court could properly conclude that the lack of a specific termination date rendered the [contract] terminable at will.” Id at 326. Here, the Investment Agreement is terminable at will, MPSC contends, because the agreement is an indefinite contract — it lacks either an expressed or implied definite duration.

But we disagree; Minnesota law makes clear that a contract is not indefinite when a party’s performance is conditioned on conduct within that party’s control. See Minn. Deli, 606 F.3d at 549 (“Minnesota law does not, however, permit unilateral termination at will in cases where the contract provides that it will continue ‘so long as’ one party performs satisfactorily.”); Benson Co-op. Creamery Ass’n v. First Dist. Ass’n, 276 Minn. 520, 151 N.W.2d 422, 427 (1967) (holding that if the obligor’s performance was conditioned on the obligee remaining in the obligor’s association, then the obligor could not terminate the contract at will); Legred v. Smeal Pork Co., No. C902-619, 2002 WL 31819222, at *2 (Minn. Ct. App. Dec. 17, 2002) (holding that a contract between a pork company and its marketer was not of indefinite duration because performance was called for “as long as” the pork company kept a particular breed of hog in its herd). Here, MPSC must pay royalty fees “as long as” it processes meat (or until one of the termination events occurs). The choice to process meat, which triggers the contractual obligation to pay, rests entirely at MPSC’s discretion. Thus, under Minnesota law, the Investment Agreement is not indefinite; no at-will termination provision need be added by the courts.

Even the cases cited by MPSC fail to support its contention that this particular agreement is terminable at will. The jury in Hayes determined that no contract actually existed between the parties. 415 N.W.2d at 689. So no durational term— definite or indefinite — actually existed in that case. Rosenberg, on the other hand, involved an employment agreement. “Under Minnesota law, an employment agreement with no definite expiration date is presumed to be at will.” Rosenberg, 685 N.W.2d at 326. Employment contracts implicate the law’s aversion to involuntary servitude. See 25 Williston on Contracts § 67:102 (4th ed. 2002) (discussing the judiciary’s “repugnance” to involuntary servitude in employment contracts). So it makes sense for Minnesota courts to demand a definite expiration date in an employment contract. Yet a concern for invol-. untary servitude is not present here. After all, this is an Investment Agreement, not an employment contract.

MPSC’s last argument relies on a decision from the Fifth Circuit supplying an at-will termination provision to a contract with specified termination events but no termination date. In Trient Partners I Ltd. v. Blockbuster Entertainment Corp., a limited partnership (Trient) entered into a licensing agreement with Blockbuster to own and operate a number of Blockbuster stores in a given geographic area. 83 F.3d 704, 706 (5th Cir. 1996). The License Agreement stated that it would “continue indefinitely ... until terminated in accordance with the provisions hereof.” Id. at 709. The referenced provision contained four terminations events:

(1) defaults by either party that are not or cannot be cured within a specified number of days; (2) the death or incapacity of a natural person who is one of Trient’s partners, if Blockbuster does not consent to the transfer of the deceased partner’s interest; (3) the transfer dr change of control of Trient’s partnership without Blockbuster’s prior approval; and (4) the insolvency of either party.

Id. Analyzing the agreement, the Fifth Circuit found that the termination events did “not limit the duration of the License Agreement or make its duration determinable in any real or concrete way.” Id. The agreement was therefore terminable at will. Id.

Unfortunately for MPSC, the Fifth Circuit’s decision examines a factually distinguishable contract with inapplicable legal analysis. The agreement in Trient states that it will “continue indefinitely,” whereas the Investment Agreement here makes no such statement. Turning to the legal analysis, the Trient court analyzed a contract under Texas — not Minnesota — state law. Id. at 708. And precedent from our own circuit stands opposed to Trient’s principal holding. In Southern Wine & Spirits of Nevada v. Mountain Valley Spring Co., we held a contract had a definite duration when the contract stated that it would terminate upon the occurrence of a termination event, without any mention of a durational term. 646 F.3d 526, 532 (8th Cir. 2011) (applying Nevada law).

III. Conclusion

The clear intent of the Investment Agreement is for MPSC’s continued performance as long as it processes meat and none of the three termination events occur. We see no principle of Minnesota state law or general contract law that overrides the agreement’s intent. Thus we affirm the district court.

      . The Honorable John R. Tunheim, Chief Judge, United States District Court for the District of Minnesota.

      . This counterclaim involved an indemnity agreement between MPSC and Rita Lamour-eux. The district court held against MPSC on this claim, and MPSC did not appeal. So we do not discuss the indemnity agreement or any facts related to it.


author: WRIGHT, District Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee v. Dominic IRONS, Defendant-Appellant
    No. 16-1998
    United States Court of Appeals, Eighth Circuit.
    Submitted: December 16, 2016
    Filed: February 27, 2017

      Counsel who presented argument on behalf of the appellant was Brent Labovitz, of Saint Louis, MO.
    Counsel who presented argument on behalf of the appellee was Allison Hart Beh-rens, AUSA, of Saint Louis, MO.

      Before WOLLMAN and SMITH, Circuit Judges, and WRIGHT, District Judge.

      . The Honorable Wilhelmina M. Wright, United States District Judge for the District of Minnesota, sitting by designation.

   WRIGHT, District Judge.

Following his conviction of unlawful possession of a firearm, Dominic Irons appeals the district court’s imposition of a 15-year mandatory minimum sentence under the Armed Career Criminal Act (“ACCA”), 18 U.S.C.' § 924(e). The district court determined that, because Irons has at least three prior violent felony convictions, he is subject to a 15-year mandatory minimum sentence. Irons contends that the district court erred by (1) employing the modified categorical approach to determine whether his state conviction qualifies as a predicate violent offense, (2) concluding that his state conviction is a “violent felony” under the ACCA, and (3) classifying his state conviction as a “crime of violence” under the United States Federal Sentencing Guidelines (“Guidelines”). We affirm.

The underlying facts are undisputed. On January 8, 2016, Irons pleaded guilty to unlawful possession of a firearm, a violation of 18 U.S.C. § 922(g)(1). Following a presentence investigation, the district court determined that Irons had at least three prior violent-felony convictions and, therefore, is an Armed Career Criminal subject to an enhanced sentence under 18 U.S.C. § 924(e). Irons’s criminal history includes a 2001 conviction of unlawful discharge of a firearm, a 2003 conviction of unlawful use of a weapon and a 2012 conviction of violence against another inmate. Irons objected to the classification of his 2012 conviction as a “violent offense” under the ACCA and as a “crime of violence” under the Guidelines. At his sentencing hearing, Irons argued that neither imposing a mandatory minimum sentence under the ACCA nor increasing his offense level under the Guidelines was warranted because his 2012 conviction is not a predicate violent felony. After overruling Irons’s objections, the district court imposed a 180-month mandatory minimum sentence of imprisonment. Irons appeals.

I.

The ACCA mandates a minimum sentence of 15 years’ imprisonment for a person who violates 18 U.S.C. § 922(g) and “has three previous convictions ... for a violent felony or a serious drug offense.” 18 U.S.C. § 924(e)(1); Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 2282, 186 L.Ed.2d 438 (2013). The ACCA defines a “violent felony,” as relevant here, as any state or federal felony that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B); Descamps, 133 S.Ct. at 2282. Irons contends that because his 2012 conviction of committing violence against another inmate, in violation of Mo. Rev. Stat. § 217.385 (2000), is not a “violent felony” under the ACCA, the district court erred by imposing a 15-year mandatory minimum sentence. Irons challenges both the district court’s methodology in applying the ACCA and its legal conclusion that his conviction under Mo. Rev. Stat. § 217.385, subd. 1, is a “violent felony” under the ACCA and a “crime of violence” under the Guidelines. We review de novo a district court’s construction and application of both the ACCA and the Guidelines. United States v. Sykes, 844 F.3d 712, 715 (8th Cir. 2016); United States v. Harrison, 809 F.3d 420, 425 (8th Cir. 2015).

A.

We first address Irons’s challenge to the district court’s use of the modified categorical approach to determine whether his 2012 conviction of committing violence against another inmate, Mo. Rev. Stat. § 217.385, subd. 1, is a violent felony. Irons argues that the district court’s use of the modified categorical approach was neither necessary nor appropriate because neither party at his sentencing hearing disputed the statutory basis for his conviction.

The Supreme Court of the United States established the “categorical approach” as the analytical framework for courts to use when determining whether a defendant’s prior conviction qualifies as one of the ACCA’s enumerated predicate offenses. Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990); see also Descamps, 133 S.Ct. at 2283. The categorical approach requires courts to look only to the “elements ... of a defendant’s prior offenses, and not to the particular facts underlying those convictions.” Descamps, 133 S.Ct. at 2283 (internal quotation marks omitted); accord United States v. Soileau, 686 F.3d 861, 864 (8th Cir. 2012). When a statute comprises multiple, alternative versions of the offense to which a defendant pleaded guilty, the modified categorical approach is used to determine “which statutory phrase, contained within a statute listing several different crimes, coverfs] a prior conviction.” Descamps, 133 S.Ct. at 2285 (internal quotation marks omitted); accord United States v. Schaffer, 818 F.3d 796, 797 (8th Cir. 2016) (‘When a statute criminalizes both conduct that does and does not qualify as a violent felony, courts apply the modified categorical approach.”). To perform this analysis, courts scrutinize a restricted set of sources — namely, the plea agreement, if any, or the transcript of the guilty-plea colloquy — to assess which part of the statute forms the basis for the conviction. Descamps, 133 S.Ct. at 2284. The Descamps Court explained:

Applied in [this] way ... the modified approach merely helps implement the categorical approach when a defendant [is] convicted of violating a divisible statute. The modified approach thus acts not as an exception, but instead as a tool. It retains the categorical approach’s central feature: a focus on the elements, rather than the facts, of a crime. And it preserves the categorical approach’s basic method: comparing those elements with the generic offense’s. All the modified approach adds is a mechanism ... to identify, from among several alternatives, the crime of conviction so that the court can compare it to the generic offense.

Id. at 2285 (internal quotation marks omitted) (emphasis added).

Here, Irons pleaded guilty to violating Mo. Rev. Stat. § 217.385, which contains two subdivisions:

1. No offender shall knowingly commit violence to an employee of the department or to another offender housed in a department correctional center. Violation of this subsection shall be a class B felony.
2. No offender shall knowingly damage any building or other property owned or operated by the department. Violation of this subsection shall be a class C felony.

Mo. Rev. Stat. § 217.385 (2000). Because this statute contains two subdivisions prohibiting different felonious conduct, the district court needed to employ the modified categorical approach to “identify, from among several alternatives, the crime of conviction.” See Descamps, 133 S.Ct. at 2285. This methodology was necessary to determine whether Irons’s conviction under Mo. Rev. Stat. § 217.385, subd. 1, qualifies as a “violent felony” under the ACCA. See id. Using this approach, the district court concluded that Irons’s conviction implicated subdivision 1, which addresses violence against another inmate. The record supports this conclusion.

Irons argues that the district court’s decision to employ the modified categorical approach was unnecessary because neither party contested the statutory provision to which Irons pleaded guilty. But Irons cites no authority for the proposition that the district court must accept such a concession or that the use of the modified categorical approach, despite the parties’ agreement as to the nature of the offense, constitutes reversible error. The district court appropriately employed the modified categorical approach in these circumstances.

B.

Irons next argues that his 2012 conviction of “knowingly committing] violence to ... another offender housed in a department correctional center,” in violation of Mo. Rev. Stat. § 217.385, subd. 1, is not a prior conviction of a violent felony under the ACCA. Irons contends that Section 217.385, subdivision 1, is overinclusive because it “criminalize[s] conduct that fails to rise to [the] level of force capable of causing physical pain or injury.” For this reason, he argues, it fails to satisfy the ACCA’s definition of a “violent felony.”

To determine whether a state conviction is a “violent felony” under the ACCA, we apply the categorical approach to assess whether the elements of the crime of conviction satisfy the ACCA’s definition of a “violent felony.” Johnson v. United States, 559 U.S. 133, 138, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). The ACCA defines a “violent felony,” in relevant part as “any crime punishable by imprisonment for a term exceeding one year” that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B). A violent felony connotes “a substantial degree of force” or the use of “strong physical force.” Johnson, 559 U.S. at 140, 130 S.Ct. 1265. Although the term “physical force” is not defined by the ACCA, the Supreme Court defines “physical force” as “violent force ... capable of causing physical pain or injury to another person.” Id. (using Webster’s Dictionary, the Oxford English Dictionary and Black’s Law Dictionary as guideposts to define these terms).

Irons asserts that Section 217.385, subdivision 1, is overinclusive because de minimis force could support a conviction, and de minimis force is not a “violent felony” for ACCA purposes. When determining whether a state offense is a “violent felony” under the ACCA, we are bound by a state’s delineation of the elements. Id. at 138, 130 S.Ct. 1265. In State v. Mack, the Missouri Court of Appeals analyzed Mo. Rev. Stat. § 217.385, subd. 1, and its requirement that a defendant “commit[] violence.” 12 S.W.3d 349, 351-52 (Mo. Ct. App. 2000). The defendant in Mack was convicted of violating Mo. Rev. Stat. § 217.385, subd. 1, for spitting in the face of a correctional officer. Id. at 351. Although the statute requires the commission of “violence,” the Missouri Court of Appeals observed that the statute does not define that term. Id. After consulting multiple dictionaries, the Missouri Court of Appeals concluded that “violence,” as used in Section 217.385, subdivision 1, requires an “exertion of any physical force so as to injure or abuse.” Id. at 352 (quoting Webster’s Third New International Dictionary 2554 (1993)). The Missouri Court of Appeals reversed the defendant’s conviction for spitting in the face of a correctional officer because equating spitting with violence “stretches the definition of violence too far.” Id. In sum, the Missouri Court of Appeals expressly rejected a construction of Mo. Rev. Stat. § 217.385, subd. 1, that could support a conviction based on de minimis conduct. See Mack, 12 S.W.3d at 352-53.

Irons asserts that Mack “demonstrates that the State actively pursues criminal charges against individuals even for de minimis conduct.” But this argument is not germane to the task before us, which is one of statutory construction and application. Mack addresses and defines the elements of Mo. Rev. Stat. § 217.385, subd. 1, and we must compare those elements to the ACCA’s statutory definition of “violent felony.” See Johnson, 559 U.S. at 138, 130 S.Ct. 1265. The discretion exercised by the state prosecutor’s office in deciding whom to charge is not relevant to this legal analysis.

Moreover, in United States v. Dudley, we held that “the use or threatened use of physical force” is an inherent element of Mo. Rev. Stat. § 217.385, subd. 1, and thus a “crime of violence” under the Guidelines. 230 F.3d 1364, at *1 (8th Cir. 2000) (per curiam) (unpublished table opinion). Our holding in Dudley is equally applicable here when addressing whether a conviction under Mo. Rev. Stat. § 217.385, subd. 1, is a “violent felony” under the ACCA. See United States v. Williams, 537 F.3d 969, 971-72 (8th Cir. 2008) (explaining that the definition of “crime of violence” under the Guidelines is identical to the definition of “violent felony” under the ACCA). Irons argues that Descamps and Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016), implicitly overruled Dudley because the Dudley court improperly relied on the facts underlying the defendant’s conviction. But this argument mischaracterizes Dudley's analysis. Dudley did not analyze the facts underlying the conviction; rather the analysis in Dudley rejected the defendant’s assertion that the predicate offense conduct was not violent because the defendant intended to “merely shove[]” the victim. Dudley, 230 F.3d at *1. Irons’s attempts to distinguish Dudley are unavailing because we consider the elements of the prior offense, not the particular manner in which the offense was committed.

The same conclusion is compelled independent of Dudley, however. Both the ACCA and Mo. Rev. Stat. § 217.385, subd. 1, include the phrase “violence” without defining the term. To define “violence,” both the United States Supreme Court and the Missouri Court of Appeals relied on the same definitional sources and conducted a comparable analysis to determine the term’s plain meaning. See Johnson, 559 U.S. at 140, 130 S.Ct. 1265 (defining “violent” using Webster’s Dictionary, the Oxford English Dictionary and Black’s Law Dictionary); Mack, 12 S.W.3d at 352 (same). The predicate offense of committing violence against another inmate, in violation of Mo. Rev. Stat. § 217.385, subd. 1, therefore satisfies the definition of a violent felony under the ACCA. See 18 U.S.C. § 924(e)(2)(B); Johnson, 559 U.S. at 140-41, 130 S.Ct. 1265. Accordingly, a conviction under Mo. Rev. Stat. § 217.385, subd. 1, is a predicate violent felony under the ACCA.

C.

Irons also contends that his conviction under Mo. Rev. Stat. § 217.385, subd. 1, is not a “crime of violence” under the Guidelines. See U.S.S.G. § 4B1.2(a)(l). This Court has never recognized a distinction between the definition of a “violent felony” under the ACCA and a “crime of violence” under the Guidelines, however. See Bell, 840 F.3d at 965 n.3. And a basis for doing so is not presented here. Because a violation of Mo. Rev. Stat. § 217.385, subd. 1, is a predicate violent felony under the ACCA, it also is a “crime of violence” under the Guidelines.

III.

Accordingly, we affirm the sentence imposed by the district court.

      . The Honorable Rodney W. Sippel, United States District Judge for the Eastern District of Missouri.

      .Irons conceded that his 2001 and 2003 convictions involved violent felonies under the ACCA, and the parties do not dispute those classifications on appeal.

      . Irons implies that the district court improperly considered evidence that Irons struck another inmate in the face and head with a closed fist. See Descamps, 133 S.Ct. at 2288 (explaining that the modified categorical approach does not permit the sentencing court to examine the conduct underlying a defendant's previous offense). The record is unclear, however, as to what weight, if any, the district court gave the facts underlying Irons’s 2012 conviction. In any event, we apply de novo the modified categorical approach without reference to the underlying facts of Irons’s conviction. See Mathis v. United States, - U.S. -, 136 S.Ct. 2243, 2248, 195 L.Ed.2d 604 (2016).

      . Irons’s reliance on United States v. Bell, 840 F.3d 963 (8th Cir. 2016), is similarly misguided. Citing Bell, Irons argues that there is a "realistic probability” that Missouri may apply Section 217.385, subdivision 1, "to conduct falling short of violence.” But in Bell, we relied on a Missouri Court of Appeals decision that applied Missouri's second-degree robbery statute to conduct that fell short of the ACCA’s definition of violent conduct. See Bell, 840 F.3d at 966 (citing State v. Lewis, 466 S.W.3d 629 (Mo. Ct. App. 2015)). Here, the application of Mack leads to the opposite conclusion when analyzing Section 217.385, subdivision 1.

      . It is true that the Dudley court cited United States v. Wright, 957 F.2d 520, 521 (8th Cir. 1992), which endorsed examining the facts underlying a conviction if the offense could be committed without violence. Dudley, 230 F.3d at *1. But even if that proposition in Wright no longer stands, Dudley's determination that "the use or threatened use of physical force is an inherent element” of Mo. Rev. Stat. § 217.385, subd. 1, endures.


author: BENTON, Circuit Judge.

text:
    MINNESOTA MAJORITY, Plaintiff Minnesota Voters Alliance; Minnesota Northstar Tea Party Patriots; Election Integrity Watch; Susan Jeffers, individually and as an election judge; Dan McGrath; Andy Cilek, Plaintiffs-Appellants v. Joe MANSKY, in his official capacity as the Elections Manager for Ramsey County; Virginia Gelms, in her individual and official capacity as the Elections Manager for Hennepin County; Mike Freeman, in his official capacity as Hennepin County Attorney; John Choi, in his official capacity as Ramsey County Attorney; Steve Simon, in his official capacity as Secretary of State, Defendants-Appellees Minnesota Majority, Plaintiff Minnesota Voters Alliance; Minnesota Northstar Tea Party Patriots; Election Integrity Watch; Susan Jeffers, individually and as an election judge; Dan McGrath; Andy Cilek, Plaintiffs-Appellees v. Joe Mansky, in his official capacity as the Elections Manager for Ramsey County; Virginia Gelms, in her individual and official capacity as the Elections Manager for Hennepin County; Mike Freeman, in his official capacity as Hennepin County Attorney; John Choi, in his official capacity as Ramsey County Attorney, Defendants Steve Simon, in his official capacity as Secretary of State, Defendant-Appellant
    No. 15-1682, No. 15-1741
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 20, 2016
    Filed: February 28, 2017

      Counsel who presented argument on behalf of the appellants/cross-appellees and appeared on the brief was Erick G. Kaar-dal, of Minneapolis, MN.
    Counsel who presented argument on behalf of the appellee/cross-appellant Steve Simon and appellee Joe Mansky was Nathan J. Hartshorn, AAG, of Saint Paul, MN.
    Counsel who presented argument on behalf of appellees Mike Freeman, John Choi, and Virginia Gelms was Daniel Patrick Rogan, Sr. Assistant Hennepin County Attorney, of Minneapolis, MN.'
    The following attorney also appeared on the brief of appellees Virginia Gelms and Michael Freeman; Beth Ann Stack, Assistant Hennepin County Attorney, of Minneapolis, MN.
    The following attorney appeared on the brief of appellees Joe Mansky and John Choi; Robert B. Roche, Assistant Ramsey County Attorney, of Saint Paul, MN.
    The following attorney appeared on the brief of appellee/cross-appellant Steve Simon, Nathan J. Hartshorn, AAG, of Saint Paul, MN.
    Before RILEY, Chief Judge, LOKEN and BENTON, Circuit Judges.
   BENTON, Circuit Judge.

Several organizations and individuals sued the Minnesota Secretary of State and Ramsey and Hennepin county election officials, attacking a statute prohibiting the wearing of political insignia at a polling place. This court previously reversed dismissal of these groups’ as-applied First Amendment claim. Minnesota Majority v. Mansky, 708 F.3d 1051, 1059 (8th Cir. 2013). On remand, the district court granted summary judgment for the defendants. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

Minnesota Statute § 211B.11 prohibits wearing a “political badge, political button, or other political insignia ... at or about the polling place on primary or election day.” To help determine which materials were political, Minnesota election officials distributed an Election Day Policy with examples including: “Issue oriented' material designed to influence or impact voting” and “Material promoting a group with recognizable political views (such as the Tea Party, MoveOn.org, and so on).” Election judges were instructed to ask anyone wearing an item violating the Policy to remove or cover it. If a person refused, the election official should allow the person to vote, but record the person’s name and address for potential misdemeanor prosecution.

Minnesota Majority, Minnesota Voters Alliance, Minnesota Northstar Tea Party Patriots, and their association — Election Integrity Watch (“EIW”) — sued the Secretary of State and county election officials (“Minnesota”) to enjoin enforcement of the statute and declare it unconstitutional. EIW alleged it was invalid — both facially and as-applied — under the First Amendment and violated their Equal Protection rights due to selective enforcement. Individuals associated with EIW claimed their speech was chilled because they could not wear Tea Party logos and slogans at their polling places without fear of legal action.

The district court initially dismissed all claims. This court affirmed as to the Equal Protection and' facial First Amendment claims, but reversed and remanded the as-applied First Amendment claim. Minnesota Majority, 708 F.3d at 1059. After “givfing] the parties sufficient opportunity to create an acceptable record,” the district court granted summary judgment against EIW on the as-applied First Amendment claim.

II.

This court reviews de novo the grant of summary judgment. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th CIR. 2011) (en banc). Summary judgment is proper “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Id. Facts “must be viewed in the light most favorable to the nonmoving party,” but “ft]he nonmovant ‘must do more than simply show that there is some metaphysical doubt as to the material facts,’ and must come forward with ‘specific facts showing that there is a genuine issue for trial.’ ” Id. quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). There is no genuine issue if “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita, 475 U.S. at 587, 106 S.Ct. 1348.

A polling place is a nonpublic forum. Minnesota Majority, 708 F.3d at 1057. Restrictions on speech in a nonpublic forum are constitutionally valid if viewpoint neutral and “reasonable in light of the purpose which the forum at issue serves.” Id. at 1057, quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n., 460 U.S. 37, 49, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). A state “has a legitimate interest in ‘maintainfing] peace, order and decorum’ in the polling place” and “a compelling interest in ‘protecting voters from confusion and undue influence’ and ‘preserving the integrity of its election process.’ ” Id. first quoting Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966); then quoting Burson v. Freeman, 504 U.S. 191, 199, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992).

Here, the statute and Policy are viewpoint neutral and facially reasonable. Id. On remand, EIW needed to come forward with specific facts showing that banning Tea Party apparel in particular was not reasonable in light of the statute’s .purpose. See id. at 1057-59.

EIW argues the statute as applied to Tea Party apparel is not reasonable because the Tea Party is not a political party in Minnesota, does not endorse candidates or ballot issues, and its materials do not relate to anything on the ballot. EIW asserts that the apparel conveys only a philosophy, not an endorsement of particular candidates, ballot measures, or political parties.

EIW’s argument fails to address that the statute and Policy prohibit more than election-related apparel. The statute and Policy prohibit “political” apparel, defined as: “Material promoting a group with recognizable political views.”

Even if Tea Party apparel is not election-related, it is not unreasonable to prohibit it in a polling place. In order to ensure a neutral, influence-free polling place, all political material is banned. To demonstrate that the Tea Party is political, Minnesota provided polling data and media coverage supporting the public perception that the Tea Party is political. It also noted that as of July 2010, the Tea Party was a recognized caucus in the U.S. House of Representatives. EIW offers nothing to rebut this evidence that the Tea Party has recognizable political views. A nonmoving party “must come forward with ‘specific facts showing that there is a genuine issue for trial.’” Torgerson, 643 F.3d at 1042, quoting Matsushita, 475 U.S. at 586-87, 106 S.Ct. 1848. EIW has failed to demonstrate a genuine issue of material fact whether Tea Party apparel is political. Banning apparel with its name and logo is “reasonable because it is wholly consistent with the [statej’s legitimate .interest in preserving” polling place decorum and neutrality. See Perry, 460 U.S. at 50, 103 S.Ct. 948.

EIW also argues that individuals in Tea Party apparel were victims of selective enforcement (concluding this indicates that the “protectable interest is not so ‘compelling’ ”). As evidence of selective enforcement, some wearing Tea Party apparel stated that they were asked to remove or cover it — causing voting delays and some of their names and addresses to be recorded. However, others wearing “political” apparel — Sierra Club and Target logos and all red or blue — voted without incident. (EIW agrees that individuals in Tea Party apparel were not denied access to the polling place, and some voted without being asked to remove or cover their Tea Party apparel.)

This argument fails. EIW offers only speculation that voters in other political apparel escaped enforcement of the statute. EIW’s repeated assertions that there is “no evidence” of enforcement against non-Tea-Party political apparel and that “it is believed” the statute was not enforced except against Tea Party apparel is not “com[ing] forward with specific facts.” See Torgerson, 643 F.3d at 1042. EIW’s evidence shows no more than “metaphysical doubt,” which is not a genuine issue of material fact. See id.

Based on the evidence, no reasonable trier of fact could conclude that the statute and Policy as applied to EIW violated its First Amendment rights. The district court properly granted summary judgment.

⅝ ⅜ ⅝ ⅝ ⅜ ⅜ ⅜

The judgment is affirmed.

      . Given this disposition of appeal 15-1682, it is not necessary to address the Secretary of State's cross-appeal 15-1741, which is dismissed as moot. However, the district court's ruling on the Secretary's jurisdictional argu-merits should not be followed, as it characterizes this court’s silence as implicit rejection of those arguments. Minnesota Majority v. Mansky, 62 F.Supp.3d 870, 874-75 (D. Minn. 2014).


author: BEAM, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee v. Randy BELTRAMEA, Defendant-Appellant
    No. 16-1403
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 20, 2016
    Filed: February 28, 2017

      Counsel who presented argument on behalf of the appellant was Webb L. Wass-mer, of Marion, IA.
    Counsel who presented argument on behalf of the appellee was Jacob Alden Schunk, AUSA, of Cedar Rapids, IA.
    Before LOKEN, BEAM, and BENTON, Circuit Judges.
   BEAM, Circuit Judge.

In 2013, Randy Beltramea pled guilty to eight counts of a sixteen-count indictment, including: Counts 1 and 2, wire fraud in violation of 18 U.S.C. § 1343; Count 3, aggravated identity theft in violation of 18 U.S.C. § 1028(A)(a)(l); Count 4, money laundering in violation of 18 U.S.C. § 1957; Count 7, money laundering in violation of 18 U.S.C. § 1956(a)(l)(A)(ii) and (a)(l)(B)(i); Counts 8 and 12, false statement to a financial institution in violation of 18 U.S.C. § 1014; and Count 16, tax evasion in violation of 26 U.S.C. § 7201. United States v. Beltramea (Beltramea I), 785 F.3d 287, 288 (8th Cir. 2015). The district court sentenced Beltramea to a total term of imprisonment of 111 months and 5 years’ supervised release, and additionally ordered the forfeiture of real property pursuant to 18 U.S.C. §§ 981(a)(1)(C) and 982(a)(1), and 28 U.S.C. § 2461(c). Id. at 288-289. Beltramea appealed his sentence and we affirmed the sentence but remanded the forfeiture order for further proceedings. Id. at 291. Upon rehearing, the district court ordered forfeiture of the entirety of Beltramea’s Castlerock property (land comprising Parcels A and B of a proposed land development called “Cast-lerock Estates”) pursuant to 18 U.S.C. § 982(a)(1). On appeal for the second time, Beltramea challenges the district court’s order forfeiting the property in question. Because we hold that the evidence satisfies the requisite nexus between Beltramea’s money-laundering convictions and the entirety of the property at issue, we affirm.

I. BACKGROUND

A full recitation of the facts underlying the instant convictions and forfeiture proceeding is set out in Beltramea I, 785 F.3d at 287-89. Relevant here, we highlight the basis for the money-laundering charges (Counts 4 and 7) and the Castlerock property at issue. In the Second Superseding Indictment “Forfeiture Allegations,” the government sought forfeiture of six properties, four of which comprise “Castler-ock:” (1) the first tract was the developed portion of Parcel B, (2) the second tract was Outlot A of Parcel B, (3) the third tract was the undeveloped portion (26.33 acres) of Parcel B, and (4) the fourth tract was the undeveloped portion (40.620 acres) of Parcel A.

In Beltramea I, this court remanded the district court’s order forfeiting all of the property listed in the Second Superseding Indictment because the record lacked facts establishing a nexus between certain properties and the criminal offenses for which Beltramea was. convicted. Id. at 291. Indeed, at the time of Beltramea I, there had been no fact-finding on the forfeiture issue because the parties had proceeded with the forfeiture based upon Beltramea’s alleged consent to the preliminary forfeiture order. Id. In Beltramea I, Beltramea argued to this court that the government wholly failed to establish the required nexus between each listed property sought to be forfeited and a count of conviction and thus the forfeiture of all four tracts was improper. As to Counts 4 and 7, particularly, Beltramea argued that the very fact that the government originally identified two of the parcels in the forfeiture allegations as “undeveloped” necessarily meant that Abode Construction (the construction company that performed work at Castler-ock) could not have done work on those parcels and thus, at the very least, there was no nexus between the laundered money and payment to the construction company for work at Castlerock as to those tracts. Beltramea further claimed that because there was no distinction by the government, in the pleadings or otherwise at that point, as to the work performed on the two developed parcels, it was unlikely that Beltramea paid Abode for work performed on Outlot A of Parcel B as well. We reiterated that “[t]he district court had an independent duty to ensure that the required nexus exists” in these forfeiture actions. Because there was no record on the matter, we vacated and remanded the forfeiture order for further proceedings. Id.

On remand, addressing the forfeiture issue in an evidentiary hearing for the first time, the government abandoned its quest to seek forfeiture of the three other properties originally identified in the forfeiture allegations. Accordingly, the “forfeiture of Castlerock as it relatefd] to the money laundering offenses in Counts 4 and 7 [was] the sole remaining issue.” On that issue, the district court found that the “money laundering offenses underlying the government’s forfeiture allegations [arose] from [Beltramea’s] attempt to develop approximately eighty acres of land into a housing development called Castlerock.” Aided by a factual record created upon remand the district court reviewed the evidence submitted by the government in support of forfeiture of the entirety of Castlerock — all four tracts — and held that the government established the requisite nexus between Beltramea’s money-laundering convictions, Counts 4 and 7, and the entirety of Castlerock. Beltramea appeals.

II. DISCUSSION

“On appeal of a forfeiture order, we review the district court’s factual findings for clear error. Whether those facts establish that forfeiture is proper is a mixed question of law and fact that we review de novo.” United States v. Hull, 606 F.3d 524, 526-27 (8th Cir. 2010). Beltra-mea challenges the district court’s forfeiture of Castlerock on myriad grounds, including claims that the court exceeded the scope of the Eighth Circuit’s mandate, that there is an insufficient connection between the offenses of conviction and the entirety of Castlerock, that the district court erred in forfeiting the entirety of the property because the exact amount of the fraud proceeds used to benefit portions of the property are readily available, as well as various evidentiary challenges.

The property subject to forfeiture in this action and the forfeiture analysis itself are intertwined issues on these facts. Although the parties primarily focus on how much of Castlerock, or how many tracts or parcels that make up Castlerock, should be forfeited, the analysis under 18 U.S.C. § 982(a)(1), required to succeed in the forfeiture endeavor at the outset, is part and parcel of the query and drives our analysis today. According to § 982(a)(1), the court, in imposing a sentence on a person convicted of a federal money-laundering offense, “shall order that the person forfeit to the United States any property, real or personal, involved in such offense, or any property traceable to such property.” 18 U.S.C. § 982(a)(1) (emphasis added). Pursuant to Federal Rule of Criminal Procedure 82.2(b)(1)(A), “[i]f the government seeks forfeiture of specific property, the court must determine whether the government has established the requisite nexus between the property and the offense.” Id. (emphasis added). “The government must prove the elements of forfeiture under 18 U.S.C. § 982(a)(1) by a preponderance of the evidence.” Beltramea I, 785 F.3d at 290.

The district court held that the impetus for the fraud and money laundering at issue in the underlying charges was Bel-tramea’s desire to develop Castlerock; that Beltramea specifically reached out to his former investment clients in 2005 seeking funds to use on the Castlerock development. This finding was not clearly erroneous based on the facts presented. It is clear that the deception took place, and the money was laundered, for one purpose — to develop Castlerock — and that Castlerock was central to the entirety of Beltramea’s scheme. Beltramea fraudulently misrepresented to his former clients the purpose for which he intended to use their funds, telling the clients he would use the funds to purchase and operate a series of Subway restaurants.

As more fully set out in Beltramea I, based on Beltramea’s misrepresentations, two clients wrote checks in the amount of $50,000 and $75,000, respectively, both checks payable to “Angelwing Equity,” which was Beltramea’s real estate investment company. These two payments formed the bases for the money-laundering Counts 4 and 7. According to testimony, Beltramea deposited the $50,000 check in an Angelwing account and then “immediately wrote a $44,831.10 check to Abode Construction” to pay an invoice for work that Abode performed at Castlerock, spanning both Parcels A and B. This payment provided the basis for the money-laundering charge in Count 4. Count 7 related to Beltramea’s use of the $75,000 check. According to the district court’s findings, Bel-tramea deposited this money into an An-gelwing account. Following that deposit, Beltramea made two cash withdrawals and then closed the Angelwing account and opened a bank account in his mother’s name using the remaining funds ($65,-472.02 to be exact) from the $75,000 “investment.” Then, using funds from this newly created account, Beltramea made a $16,058 payment on a past-due consolidated loan with Community Savings Bank (CSB) and a $16,303.50 payment on a past-due invoice from Abode Construction for work done on both Parcels A and B of Castlerock.

The parties dispute whether this is an “involved in” or “traceable to” matter under § 982(a)(1). In its forfeiture order, the district court is not entirely clear as to which analysis controls, citing principles from both “involved in” and “traceable to” analyses in caselaw in arriving at its determination that the entirety of Castlerock was subject to forfeiture. Citing United States v. Myers, 21 F.3d 826, 831 (8th Cir. 1994) (relying on the “involved in” language of § 982(a)(1) and holding that when payments toward a real estate contract and improvements on property are made with laundered money, the property that benefitted from those payments is subject to forfeiture); United States v. Real Prop. & Premises, 657 F.Supp.2d 1060, 1069 (D. Minn. 2009) (interpreting the “traceable to” language in the civil forfeiture equivalent to § 982(a)(1), for purposes of a determination on a pending motion to dismiss, to leave “no serious dispute that, by spending allegedly tainted funds on renovations and property taxes for [the relevant property], the property is ’traceable to’ a money-laundering offense”). However, even if the district court conflated the § 982(a)(1) analysis, on these facts it is not surprising, as there is arguably support in our precedent for either an “involved in” or “traceable to” resolution given the factual and legal variations that precede today’s opinion.

On appeal, Beltramea argues that the government has waived any argumént that this is an “involved in” case. We disagree and find that, in fact, forfeiture is warranted in this case because Castlerock was utilized to facilitate the laundering offenses; that it was- “involved in” Counts 4 and 7. The government argued to the district court, and to this court on appeal, that the development of Castlerock was integral to Beltramea’s fraud scheme and the money-laundering charges, and thus on that basis Castlerock was property “involved in” the laundering for purposes of § 982(a)(1) forfeiture. The district court’s factual finding that at the outset Beltra-mea approached his former clients for money for the purpose of developing Cast-lerock supports this notion. On these unique facts, an “involved in” analysis under § 982(a)(1) is better suited. See Myers, 21 F.3d at 831 (holding that because the defendant used laundered money to make substantial payments on a real estate contract and improvements on the property at issue, the property was forfeitable because it “was clearly involved in the criminal activity” for purposes of § 982(a)(1)).

In United States v. Hawkey, 148 F.3d 920 (8th Cir. 1998), we explicated the difference between property “involved in” an offense and property “traceable to” such property. Id. at 927. “Property ‘involved in’ an offense include[s] the money or other property being laundered (the corpus), any commissions or fees paid to the launderer, and any property used to facilitate the laundering offense.” Id. (quoting United States v. Bornfield, 145 F.3d 1123, 1135 (10th Cir. 1998)). The facilitation of a laundering offense “occurs when the property makes the prohibited conduct ‘less difficult or more or less free from obstruction or hindrance.’ ” Id. at 928 (quoting United States v. Tencer, 107 F.3d 1120, 1134 (5th Cir. 1997)). Correlatively, “[property ‘ “traceable to” means property where the acquisition is attributable to the money laundering scheme rather than from money obtained from untainted sources.’ ” Id (quoting Bornfield, 145 F.3d at 1135). Here, Beltramea did not acquire Castlerock with the laundered money underlying Counts 4 and 7, thus rendering any “traceable to” analysis more attenuated, at best. See id. at 928 (explaining that when the acquisition of property is attributable to a transaction that violates 18 U.S.C. § 1956 or § 1957, then the entire property is subject to forfeiture as “traceable to” property). And, noted above, it is established that Beltramea committed these offenses for the purpose of developing Castlerock, thus the property was intricately “involved in” the offenses from the outset.

The district court held that the entirety of Castlerock was subject to forfeiture because Beltramea used laundered funds (1) to pay on the CSB loan, which was secured by the entire property, and (2) to make improvements upon both Parcels A and B. Because we can resolve this matter by establishing the requisite nexus between the entirety of Castlerock and payments made with laundered money toward improvements on Parcels A and B, we need not determine whether Beltra-mea’s interest-only payment on the loan suffices to establish a nexus supporting forfeiture of property under § 982(a)(1) (Count 7).

First, to discern the property subject to forfeiture on these facts, we note that at the forfeiture hearing the government argued that Castlerock was a single piece of property subject to forfeiture. As it presented its evidence, the government, through its witnesses, pointed out whether particular evidence was relevant as to Parcel A, Parcel B, or both parcels. And, in its forfeiture analysis, the district court accurately noted that the real property listed by the government in the forfeiture allegations included land comprising Parcel A and Parcel B of the proposed land development. The court then reviewed the evidence as it related to Parcels A and B and determined that because there was sufficient evidence connecting both parcels to the offenses of conviction, the entirety of Castlerock was forfeited. Looking at Cast-lerock as two parcels was the correct approach in this matter.

The definition of “property” in this, and similar, forfeiture statutes is discussed in United States v. Hull, wheréin the court was tasked with defining what constituted “property” under § 18 U.S.C. § 2258(a)(3), a criminal forfeiture statute applicable in the distribution of child pornography context. 606 F.3d 524, 528 (8th Cir. 2010). The court in Hull discussed the scope of § 2253(a)(3) by looking’ at caselaw analyzing § 982(a)(1) given “the absence of any material difference in language between [§ 2253(a)(3) and § 982(a)(1) ] on the meaning of ‘property.’ ” Id. In Hull, in a situation akin to the “involved in” analyses of § 982(a)(1), we established that “the natural source for defining property subject to forfeiture is the instrument creating the defendant’s interest in the property.” Id. (quoting United States v. Bieri, 21 F.3d 819, 824 (8th Cir. 1994)).

After determining that the instrument creating the defendant’s interest defines the “property” subject to forfeiture, the court additionally held that “[o]nce it is established that the ‘property’ subject to forfeiture consists of the entire [property], nothing in the statute allows the court to order forfeiture of less than this ‘property.’ ” Id. Further, this court has plainly held that “district courts do not have the authority to sub-divide property in order to create proportional forfeitures.” Id at 529 (quoting United States v. 318 S. Third St., 988 F.2d 822, 828 (8th Cir. 1993)). On these facts, Beltramea’s acquisition of, and the instruments creating his ownership interest in, Castlerock is thus the focus when determining what property is subject to forfeiture in this matter, and was the correct framework for the district court’s determination on remand. The fact that Beltramea had further subdivided the property for development is not determinative in the § 982(a)(1) analysis. See BF eri, 21 F.3d at 824 (holding that “[a]l-though the owner may view a single piece of property as separable tracts, the owner’s subjective characterization of the property cannot serve as the basis for determining what constitutes ‘property’ under [21 U.S.C. § ] 853[,]” it is the instrument creating the defendant’s interest that directs the inquiry).

Beltramea funded his initial purchase of Castlerock with a $270,000 loan from CSB in 2000, and later in 2004 received a line of credit from CSB in the amount of $500,000 to further fund Castlerock. Beltramea thus acquired Castlerock in two stages, obtaining Parcel A in 2000 and Parcel B in 2004. Those instruments were then consolidated in a 2009 refinancing secured by the entire property. Accordingly, Beltramea’s suggestion that the court should have subdivided Castlerock into the four tracts in its forfeiture analysis is without support in the statutory scheme and this circuit’s caselaw. Hull, 606 F.3d at 528. The tracts of land comprising the entirety of Castler-ock were set out in the forfeiture allegations, and nothing in § 982(a)(1) allows the court to order forfeiture of less than the “property.” Id. at 528-29.

In the final § 982(a)(1) analysis, looking at the nexus between Parcels A and B and the offenses of conviction, the record reflects that the government presented ample evidence that Parcels A and B were used to facilitate the violations charged in Counts 4 and 7. Most critically, an employee of Abode Construction testified about individual invoices paid by Beltramea that underlie each count. As to each, the representative identified work completed by Abode that was included on the invoice, testifying specifically whether that work was completed on Parcel A, Parcel B or both parcels. Based on this evidence, the district court did not clearly err in forfeiting the entirety of Castlerock, as it was “involved in” Beltramea’s offenses of conviction. Too, and most importantly, we reiterate that the development of Castlerock was central to the entirety of Beltramea’s scheme from the outset.

In sum, after conducting an evidentiary hearing in this matter, the district court concluded that the government had established the requisite nexus between the property and the offenses of conviction. Based on the factual findings discussed herein, we cannot say that the district court’s finding that there was the requisite nexus between Castlerock and the offenses of conviction was clearly erroneous. See United States v. Ways, 832 F.3d 887, 899 (8th Cir. 2016), cert. denied, 2017 WL 320816, — U.S.—, 137 S.Ct. 1125, 197 L.Ed.2d 224 (Feb. 21, 2017). Accordingly, the district court did not err in entering the order of forfeiture.

III. CONCLUSION

For the foregoing reasons, we affirm the judgment of the district court.

      . The Honorable Linda R. Reade, Chief Judge, United States District Court for the Northern District of Iowa.

      . We do find irony in the fact that upon remand and after an evidentiary hearing, Bel-tramea changed course entirely in his arguments regarding the four tracts. On appeal, Beltramea argues that the government only established that work was performed on the undeveloped portions of Parcels A and B, and thus only those two tracts could be subject to forfeiture. Additionally, at odds with his various ruminations on the matter is Beltramea’s alternative argument on appeal, addressed more fully in footnote 3, that the court in Beltramea I "expressly resolved” that there was no factual nexus between the undeveloped portions of Castlerock and the offenses of conviction and thus the law of the case doctrine requires dismissal of the forfeiture allegations pertaining to those parcels. The inconsonant nature of these arguments only highlights the critical role of the evidentiary hearing in these forfeiture' matters.

      . Beltramea argues that in Beltramea I, the Eighth Circuit "expressly resolved” that there was no factual nexus between the undeveloped portions of Castlerock and the offenses of conviction and thus the law of the case doctrine requires dismissal of the forfeiture allegations pertaining to those parcels. This argument is without merit. In Beltramea I, this court plainly held that the record "appeared” lacking in facts establishing the requisite nexus between a portion of the property in question and the offenses of conviction and thus remanded the forfeiture order for the district court to remedy the error. Beltramea I, 785 F.3d at 291. Indeed, there had been no evidentiary hearing at the time of Beltramea I. The stage was thus set for the district court to conduct an evidentiary hearing regarding the entirety of the property discussed in the forfeiture allegations.

      . The district court held, "[a]fter 2005, in his efforts to develop Castlerock, [Beltramea] contacted former investment clients to solicit funds for his use on the [Castlerock] project.”

      . Section 2253(a)(3) states that a person convicted of a child pornography offense under § 2252 “shall forfeit to the United States such person’s interest in any property, real or personal, used or intended to be used to commit or to promote the commission of such offense or any property traceable to such property.”

      . Beltramea additionally argues that the district court erred in admitting certain exhibits but concedes that he was likely not prejudiced by this error. He raises this claim only to preserve his right to argue that he was prejudiced if the government relied upon any <pf the challenged exhibits on appeal. Because the government did not address the exhibits, we do not address this final argument.