author: DUNCAN, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Darren HILL, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Lloyd Dodwell, Defendant-Appellant.
    No. 15-4212, No. 15-4223
    United States Court of Appeals, Fourth Circuit.
    Argued: January 24, 2017
    Decided: February 23, 2017

      ARGUED: Paul Frederick Herzog, PAUL F. HERZOG, PA, Fayetteville, North Carolina; Randolph Marshall Lee, Charlotte, North Carolina, for Appellants. Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: Jill Westmoreland Rose, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
    Before MOTZ, DUNCAN, and HARRIS, Circuit Judges.
   DUNCAN, Circuit Judge:

Defendants-Appellants Darren Hill (“Hill”) and Lloyd Dodwell (“Dodwell”) (collectively, “Defendants”) appeal the district court’s denial of their motions to suppress. For the reasons that follow, we affirm.

I.

A.

This appeal arises out of a traffic stop executed by Henderson County, North Carolina Sheriffs Deputy David McMur-ray (“Deputy McMurray”). On May 2, 2012, Deputy McMurray was patrolling Interstate 26 in Henderson County when he observed two vehicles traveling without the appropriate distance between them. Deputy McMurray activated his blue lights and pulled over the second vehicle, a Chevrolet Equinox SUV (“SUV”), for following too closely.

Deputy McMurray approached the stopped SUV from the passenger’s side. Dodwell was in the driver’s seat and Hill was in the passenger’s seat. After Deputy McMurray explained the stop, Dodwell admitted to following too closely. Deputy McMurray asked Dodwell to exit the SUV and accompany him to his patrol car so he could issue a warning ticket. Deputy McMurray also asked Hill for a form of identification, but Hill responded that he did not have any with him. Deputy McMurray frisked Dodwell for weapons and escorted him to the patrol car. Hill remained in the SUV.

Deputy McMurray instructed Dodwell to take a seat in the front of the patrol car. In the patrol car, Deputy McMurray began the process of entering the ticket information and verifying Dodwell’s documentation. As he input information and waited for results, Deputy McMurray engaged Dodwell in conversation. Some of Deputy McMurray’s questions pertained to the stop and others ranged far afield, covering such topics as Dodwell’s travel plans and recent activities. During this roughly nine-minute conversation, Deputy McMur-ray became suspicious of a number of Dod-well’s answers. Dodwell acknowledged that he had previously been arrested for drugs and that he did not own the SUV — it belonged to either Hill’s girlfriend or sister.

Deputy McMurray tried to run a records check on Hill, but needed additional information. After explaining his departure to Dodwell, Deputy McMurray went to the SUV to ask Hill his birthdate, obtain the SUV’s vehicle identification number to complete his paperwork, and return the vehicle registration to Hill. Approximately fourteen minutes had elapsed from the initiation of the traffic stop.

Deputy McMurray spoke with Hill for two minutes, during which time Hill made several statements that conflicted with statements Dodwell had made earlier. When Deputy McMurray returned to his car, he entered more data for the ticket and continued to speak with Dodwell. During the approximately two minutes required to print the warning ticket, Dodwell made statements conflicting with information Hill had just provided. As he later testified, Deputy McMurray became concerned that criminal activity was afoot because of (1) the ambiguity surrounding ownership of the vehicle, (2) the contradictory answers given by Hill and Dodwell, (3) both Defendants’ evasive and nervous behavior, and (4) the fact that Defendants were traveling from Atlanta — “the largest source of narcotics on the east coast,” J.A. 101 — in a type of vehicle commonly used for drug trafficking.

Deputy McMurray gave Dodwell his license and warning ticket about seventeen minutes after initiating the stop. “Before Dodwell opened the patrol car door to leave, Deputy McMurray asked Dodwell, ‘do you mind talking to me for just a minute?’ ” J.A. 143-44; Gov’t Exhibit Five (“GX5”) at 00:17:56. Dodwell agreed, and Deputy McMurray further questioned him about the inconsistencies between his and Hill’s stories. Deputy McMurray also asked Dodwell if there was cocaine or “weed” in the car, to which Dodwell replied there was not. J.A. 103.

Deputy McMurray exited the car and obtained Hill’s consent to engage in further conversation. Deputy McMurray asked Hill for consent to search the car, • and Hill directed Deputy McMurray to ask Dodwell for permission. Returning to his patrol car, Deputy McMurray alerted Dod-well to another inconsistency between Dodwell’s and Hill’s stories, and then asked for consent to search the car: “Now look, hear me out? Okay? I’d like to search the car. Will you give me permission to search it? He’s [Hill] already said he ain’t got no control over the car? That it’s up to you.” GX5 at 00:24:55-00:25:10; J.A. 104. Dodwell refused, restating that the vehicle was not his.

Deputy McMurray then notified Dodwell that he was going to call for another deputy so he could run his drug-detection dog Kira around the SUV. Deputy McMurray explained to Dodwell that he would search the vehicle if Kira alerted, but would not search if the dog did not alert. Dodwell replied that this was fine with him. Deputy McMurray radioed for backup and asked for consent to move the SUV to a safer location, which Dodwell refused.

When backup arrived, thirty-three minutes and seven seconds had elapsed since the initiation of the traffic stop. Deputy McMurray then asked Hill to exit the SUV and frisked Hill. After moving Hill away from the SUV, Deputy McMurray der ployed Kira to sniff around the SUV. “On three occasions, while Deputy McMurray and Kira were circling the SUV, Kira pulled Deputy McMurray in the direction of Hill’s path that led away from the SUV.” J.A. 144. “At the time, Deputy McMurray did not recognize that Kira was alerting to Hill.” J.A. 106.

Kira also alerted to the SUV’s passenger door on multiple trips around the SUV. On the third trip, Kira jumped through the open passenger door window, which Deputy McMurray interpreted as an alert to the odor of narcotics. Deputy McMurray then put Kira back in the patrol car and began searching the vehicle. The search revealed over $30,000 of bundled United States currency, which Deputy McMurray believed to be drug proceeds.

After discovering the money, Deputy McMurray handcuffed Defendants before continuing the search. “At various times during the search of the SUV, Dodwell and Hill were placed in Deputy McMurray’s patrol car, sometimes together sometime[s] individually, as law enforcement officers continued searching the SUV.” J.A. 144. During the search, another officer on the scene read Defendants their Miranda rights and each Defendant consented to questioning. The rest of the search revealed no contraband in the SUV, so Deputy McMurray released Defendants.

Ten days later, while reviewing the recording of the stop, Deputy McMurray saw that a handcuffed Hill had deposited a bag behind the patrol car’s driver seat. Deputy McMurray investigated and discovered a plastic bag containing cocaine hydrochloride.

B.

A grand jury indicted Defendants for possession with intent to distribute at least 500 grams of cocaine in violation of 21 U.S.C. § 841(a)(1). Both Defendants filed a motion to suppress, which the magistrate joined for hearing. After the hearing, the magistrate recommended that the district court deny Defendants’ motions to suppress. Defendants generally objected to the magistrate’s memorandum and recommendation (“M&R”) on the grounds that the traffic stop violated the Fourth Amendment. The district court accepted the M&R, and denied Defendants’ motions to suppress in full. The district court explained that (1) Deputy McMur-ray did not unreasonably extend the traffic stop prior to issuing the ticket, and (2) Deputy McMurray’s post-ticket extension found justification in both reasonable suspicion and Defendants’ consent. The district court also noted that neither Defendant objected to the M&R’s conclusions concerning post-ticket events. Both Defendants pleaded guilty to one count of possession with intent to distribute, conditioned on their right to appeal the denial of their motions to suppress.

II.

On appeal, drawing on precedent decided since the stop —Rodriguez v. United States, — U.S. -, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015), and United States v. Williams, 808 F.3d 238 (4th Cir. 2015)— Defendants argue that Deputy McMurray impermissibly extended the traffic stop both before and after issuing a warning ticket. The government counters that any de minimis pre-ticket delay was allowed under governing precedent at the time of the stop; and Defendants waived their right to challenge the reasonableness of the post-ticket extension by failing to sufficiently object on that ground below. Alternatively, the government maintains that Defendants’ consent and Deputy McMur-ray’s reasonable suspicion justified the post-ticket extension.

“In considering the appeal of a denial of a motion to suppress, we review the district court’s legal conclusions de novo and its factual findings for clear error.” United States v. Slocumb, 804 F.3d 677, 681 (4th Cir. 2015). “We further construe the evidence in the light most favorable to the government — the prevailing party below.” Id. For the reasons that follow, we affirm.

A.

The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV. A-routine traffic stop becomes an unreasonable seizure when law enforcement impermissibly exceeds the stop’s scope or duration. Illinois v. Caballes, 543 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005); United States v. Rusher, 966 F.2d 868, 875 (4th Cir. 1992). Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny delimit the permissible scope and duration of a routine traffic stop. Rusher, 966 F.2d at 875.

When a traffic stop strays outside the boundaries of its permissible scope or duration, the Fourth Amendment’s exclusionary rule normally prevents the government from using evidence obtained therefrom against the victim of the illegal seizure. See Davis v. United States, 564 U.S. 229, 231-32, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011). The exclusionary rule, however, is subject to certain exceptions. Id. at 236-38, 131 S.Ct. 2419.

The good-faith doctrine, which protects law enforcement action taken “in objectively reasonable reliance on binding appellate precedent” at the time of the search or seizure, see id. at 232, 131 S.Ct. 2419, applies here. The exclusionary rule serves the purposes of the Fourth Amendment by deterring police misconduct. Id. at 236-37, 131 S.Ct. 2419. The good-faith doctrine recognizes that suppressing evidence obtained from a search or seizure previously sanctioned by precedent would “do nothing to deter police misconduct ... [and] would come at a high cost to both the truth and public safety.” Id. at 232, 131 S.Ct. 2419.

Yet that is what Defendants seek here. They ask that we analyze Deputy McMurray’s conduct in 2012 under the standards set out in Rodriguez and Williams, arguing that he violated their Fourth Amendment rights by asking off-topic questions before writing a ticket. When Deputy McMurray executed this traffic stop in 2012, however, this court’s binding precedent held that questioning or other activity unrelated to the initial purposes of the stop only rendered the stop unreasonable if the officer “failed to diligently pursue the purposes of the stop.” United States v. Digiovanni, 650 F.3d 498, 509 (4th Cir. 2011).

In Digiovanni and similar cases decided prior to Rodriguez, we explained that de minimis delay in issuing a ticket warranted suppression only when an officer did not begin, or completely abandoned, actions related to the cited purpose of the stop in favor of embarking on another “sustained course of investigation ... that constituted the bulk” of the stop. Id.; see also United States v. Green, 740 F.3d 275, 280 (4th Cir. 2014). For example, in Digiovanni, before even beginning the process of writing a ticket or verifying the defendant’s information, the officer tried to get the defendant to open the trunk, questioned him extensively about the presence of drugs in the car, and radioed for backup — all without having any basis for reasonable suspicion that criminal activity was afoot. Digiovanni, 650 F.3d at 509-10, 513. This court concluded that “[t]he record, in particular the video, makes clear that at just about every turn [the officer] was conducting a drug investigation instead of a traffic infraction investigation.” Id. at 510.

Here, by contrast, the - record demonstrates that Deputy McMurray continued to pursue activities related to the initial stop and continued issuing the warning ticket throughout the pre-ticket process. Although Deputy McMurray asked off-topic questions during this time, he did so while diligently attempting to (1) issue a warning ticket, (2) validate lawful possession of the car, (3) identify Defendants and run a record check for outstanding warrants (after Dodwell informed Deputy McMurray of prior arrests and convictions), and (4) dispel suspicion that criminal activity was afoot after Defendants gave conflicting accounts about their travels. See United States v. Vaughan, 700 F.3d 705, 710-12 (4th Cir. 2012); United States v. Soriano-Jarquin, 492 F.3d 495, 499-501 (4th Cir. 2007).

Under Digiovanni and other pre-Rodriguez cases, that Deputy McMurray may have been able to end the stop more quickly would not be dispositive. Determining reasonableness involved more than computing the average time it took to perform each required traffic-stop activity and cross-cheeking this value against a chart. See United States v. Branch, 537 F.3d 328, 336 (4th Cir. 2008). We had previously upheld similar stops as reasonable where, despite multitasking, the officer continued to pursue the initial purpose for conducting the stop. See United States v. Mason, 628 F.3d 123, 131-32 (4th Cir. 2010). Assessing whether an officer unreasonably prolonged a stop involves “highly fact-specific inquiries.” United States v. Guijon-Ortiz, 660 F.3d 757, 764 (4th Cir. 2011). Construing the evidence in the light most favorable to the government, as we must, we conclude that the district court did not err in finding that, under existing precedent, any pre-ticket delay did not warrant suppression.

B.

We also conclude that Defendants waived their challenge to any post-ticket extension by failing to specifically object on those grounds before the district court. See United States v. Midgette, 478 F.3d 616, 621-22 (4th Cir. 2007). This court’s independent examination of Defendants’ objections below confirms the district court’s finding that “[n]either Defendant objected] to the Magistrate Judge’s legal analysis contained in the M&R concerning the events following the conclusion of the traffic stop,” that is, after Deputy McMur-ray issued the ticket. J.A. 155-56. If a defendant does not object to one of a magistrate’s findings or recommendations “with sufficient specificity so as reasonably to alert the district court of the true ground for the objection” then that objection is waived on appeal. Midgette, 478 F.3d at 622; see also 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

III.

We affirm today on the narrow ground that the stop did not offend our Fourth Amendment jurisprudence at the time it occurred. Similarly, we need not examine possible justifications for any post-ticket .delay of the stop because Defendants waived their right to challenge that delay by failing to specifically object before the district court. For the reasons stated above, we affirm the district court’s denial of Defendants’ motions to suppress.

AFFIRMED

      . Prior to his employment with Henderson County, Deputy McMurray served nine years as a canine handler with the North Carolina Highway Patrol.

      . Deputy McMurray's unmarked patrol car was outfitted with a system that begins recording the interior of the car (audio/video) and the events transpiring in front of the car (video only) when an officer activates his blue lights. Deputy McMurray was also wearing a body microphone, which records audio when Deputy McMurray is outside of the patrol car.

      . In Williams, this court applied Rodriguez to a stop that occurred prior to 2015. 808 F.3d at 241, 245. In Williams, however, the government conceded its de-minimis-delay argument on appeal and did not argue the good-faith exception. Id. at 245. In addition, Williams dealt with delay occurring after the officer issued a ticket, id. at 253, whereas here we discuss only de minimis delay occurring before issuance of a ticket. In light of our application of Davis, we have no occasion here to consider whether the rule of Rodriguez and Williams applies to pre-ticket delay.


source: Caselaw Access Project

author: TRAXLER, Circuit Judge:

license: Public Domain

text:
    Thomas HEYER, Plaintiff-Appellant, and Robert Paul Boyd, Plaintiff, v. UNITED STATES BUREAU OF PRISONS; Thomas R. Kane, in his official capacity as Acting Director of the United States Bureau of Prisons; Ike Eichenlaub, in his official capacity as Regional Director of the United States Bureau of Prisons Mid-Atlantic Region; Warden Sara M. Revell; Warden Tracy W. Johns; Jefferson B. Sessions, III, Attorney General, Defendants-Appellees. National Association of the Deaf, Amicus Supporting Appellant.
    No. 15-6826
    United States Court of Appeals, Fourth Circuit.
    Argued: October 26, 2016
    Decided: February 23, 2017

      ARGUED: Ian S. Hoffman, ARNOLD & PORTER LLP, Washington, D.C., for Appellant. Robert J. Dodson, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellees. ON BRIEF: Deborah Golden, Elliot Mine-berg, WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS & URBAN AFFAIRS, Washington, D.C.; David B. Bergman, ARNOLD & PORTER LLP, Washington, D.C., for Appellant. John Stuart Bruce, Acting United States Attorney, Jennifer P. May-Parker, Jennifer D. Dannels, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellees. Marc Charmatz, Howard A. Rosenblum, Debra Patkin, NATIONAL ASSOCIATION OF THE DEAF, Silver Spring, Maryland, for Ami-cus Curiae.
    Before MOTZ, TRAXLER, and FLOYD, Circuit Judges.
   TRAXLER, Circuit Judge:

Appellant Thomas Heyer has been deaf since birth. His native language is American Sign Language (“ASL”), and he communicates primarily though ASL. Heyer is presently confined as a sexually dangerous person, see Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587, at the federal correctional institution in Butner, North Carolina. Heyer brought this action against the United States Bureau of Prisons and other defendants (collectively, “BOP”), raising various claims related to BOP’s failure to provide ASL- interpreters for medical appointments and other important interactions, its refusal to provide Heyer with access to a videophone, and its failure to otherwise accommodate his deafness. The district court granted summary judgment in favor of BOP, and Heyer appeals. As we will explain, we affirm the district court’s dismissal of Count III, as Heyer does not challenge that ruling on appeal, but we vacate the remainder of the district court’s order and remand for further proceedings.

I.

A.

Heyer was previously convicted of possessing child pornography. In 2007, Heyer violated the terms of his supervised release and served the resulting eighteen-month sentence at Butner. Shortly before that sentence expired in December 2008, the government filed a petition seeking to detain Heyer under the Adam Walsh Act. Heyer has remained in civil custody at Butner since that filing. The district court held a hearing on the government’s petition in May 2012 and ordered Heyer detained as a sexually dangerous person. We affirmed that order on appeal. See United States v. Heyer, 740 F.3d 284 (4th Cir. 2014).

Under the terms of the Adam Walsh Act, Heyer will remain in civil custody until such time as the government determines that his “condition is such that he is no longer sexually dangerous to others, or will not be sexually dangerous to others if released under a prescribed regimen of medical, psychiatric, or psychological care or treatment.” 18 U.S.C. § 4248(e). When making this determination, BOP’s mental health professionals may consider, among other things, evidence “[e]stablished through interviewing and testing of the person”; evidence “[o]f the person’s denial of or inability to appreciate the wrongfulness, harmfulness, or likely consequences of engaging or attempting to engage in sexually violent conduct or child molestation”; and evidence “[fjndicating successful completion of, or failure to successfully complete, a sex offender treatment program.” 28 C.F.R. § 549.95.

Adam Walsh detainees at Butner are expected to participate in the “Commitment and Treatment Program” (“CT Program”). designed for Adam Walsh detainees. J.A. 305. The CT Program includes mental health treatment in group and individual settings, daily meetings, and other “contextual activities” that “maximize the opportunities for therapeutic gain.” J.A. 536. Heyer began participating in the CT Program in July 2012.

B.

As noted, Heyer has been deaf, since birth and communicates primarily through ASL. Heyer cannot read lips and has no ability to understand speech. Heyer, who has an eighth-grade education, has extremely limited proficiency in English. The lexicon and syntax structure of English and ASL are entirely different, and Heyer cannot communicate effectively in written English.

Since arriving at Butner in December 2008, Heyer has made multiple requests for ASL interpreters. BOP officials refused to provide qualified interpreters for any purpose until late 2012, more than a year after this case was commenced.

Heyer has high blood pressure and cholesterol, and he has had multiple seizures during his time at Butner. From 2008 until December 2012, however, BOP refused to provide Heyer with ASL interpreters for scheduled medical appointments or during medical emergencies. Because no ASL interpreter was present at medical appointments, Heyer has had difficulty understanding the instructions for taking and refilling his prescription medications. For example, in February 2011, Heyer went without his blood pressure medication because he did not understand the doctor’s refill instructions. In November 2011, Hey-er suffered a seizure while in his cell. Alerted to the problem by Heyer’s cellmate, the officer on duty concluded that Heyer “looked fine,” J.A. 36, and did not seek medical attention for Heyer. Heyer finally saw a doctor more than a month after the seizure, but no interpreter was provided for him.

In 2010, prison officials assigned another inmate to act as Heyer’s “inmate companion person” to help Heyer communicate with others. Although the inmate companion does not know ASL, BOP required Heyer to rely on him during medical interactions.

As to the CT Program designed for Adam Walsh detainees, BOP officials concluded that Heyer’s inmate compánion would be “inadequate” to facilitate Heyer’s participation. J.A. 1117. BOP nonetheless did not provide Heyer with ASL interpreters for the CT Program until September 2012; even then, interpreters were provided for only some portions of the Program.

In December 2012 — eighteen months after the initiation of this action — BOP announced that it would provide ASL interpreters for Heyer’s scheduled medical appointments. Through October 2013, however, Heyer had at least nine medical interactions (whether scheduled appointments or emergencies) where no interpreter was provided, including at least two scheduled appointments. See J.A. 495, 1285.

At some point after the commencement of this action, BOP entered into a contract with a provider of video remote interpreting (“VRI”) services, which provides Internet-based 24-hour, on-demand access to qualified ASL interpreters, for use in cases of medical emergencies or other urgent interpreting needs. In an affidavit dated August 21, 2014, a BOP official stated that VRI services would be available to Heyer “in the very near future,” assuming the provider and interpreters could meet BOP’s background-check requirements. J.A. 301.

C.

Heyer communicates with the outside world through email and through the use of a “TTY” device, which contains a keyboard and permits written messages to be sent between TTY devices over a telephone line. TTY does not permit real-time conversations, and each conversation over a TTY device takes significantly longer than signed or spoken conversations. Effective communication over a TTY device requires proficiency in written English, which Heyer lacks. There are only two TTY devices at Butner, both of which are in locked staff offices. Heyer thus can use the TTY device only with the assistance of a- staff person, and only a few staff members are trained on its use. Staff members frequently deny Heyer access to the TTY during the day, and, because of staffing issues, he has essentially no ability to use it at night or on the weekends. Inmates who are not deaf have free use of the telephone at Butner and do not need to seek staff permission.

TTY is' old technology that is fast becoming obsolete. Over the last decade, many deaf people have migrated from TTY devices to videophones. Because a TTY device is required on both ends of the call, the abandonment of TTY technology means there are fewer and fewer people with whom Heyer can communicate.

A videophone works much like a telephone does for a hearing person. As explained in the record, a videophone is a telephone operated through a computer or stand-alone device which has a camera and screen for visual, real-time communication. If users bn both ends of the conversation have a videophone, they can communicate directly and visually using ASL. If one user does not have a videophone, the deaf person can use the videophone to access Video Relay Service (‘VRS”). With VRS, the deaf person communicates visually with an operator, using ASL, and the operator interprets the conversation orally to the non-deaf party through a telephone.

Heyer’s deafness has caused him other problems while at Butner. For example, Heyer does not attend religious services because he cannot understand or participate without an interpreter. Heyer cannot understand announcements made over the prison’s public address system. He cannot access goods sold through the commissary, because the goods are handed through a mirrored window by a person with whom Heyer cannot interact. Heyer attends a GED preparation class, but his participation is very limited because no interpreter is provided. Heyer has missed or been late for scheduled activities because BOP has refused to provide him with a vibrating watch or vibrating bed device. Other inmates have had to alert Heyer to fee alarms because he cannot hear the alarm sounding through the prison. In March 2014 — almost three years after the commencement of this action — BOP installed an emergency flashing light in his cell. However, the flashing strobe light is very similar to the periodic flashing of staff flashlights, which makes it difficult for Heyer to determine whether there is an emergency.

II.

In 2011, Heyer brought this action against BOP. In the complaint, Heyer asserted that BOP violated the Rehabilitation Act of 1973 by failing to provide ASL translators and otherwise accommodate his disability. Heyer also asserted multiple violations of his Fifth Amendment rights, including claims based on BOP’s failure to provide ASL interpreters for medical appointments and to permit him to participate in the CT Program and communicate with the mental health officials responsible for determining the duration of his civil commitment. Heyer also alleged violations of his First Amendment rights based on BOP’s failure to provide access to a videophone and its restrictions on access to the TTY device (Count VIII). Finally, Heyer alleged violations of his rights under the First Amendment and the Religious Freedom Restoration Act of 1993 (“RFRA”), based on BOP’s failure to provide ASL interpreters so Heyer can participate in religious services.

The district court dismissed the Rehabilitation Act claim (Count I) for failure to exhaust administrative remedies, and it dismissed Heyer’s Fifth Amendment right-to-privacy claim (Count V) for failure to state a claim. See Heyer v. United States Bureau of Prisons, 2013 WL 943406, at *3 (E.D.N.C. Mar. 11, 2013) (unpublished). The court thereafter granted summary judgment in favor of BOP on the remaining claims. The court dismissed one claim for lack of standing, rejected some claims on the merits, and rejected others as moot, based on BOP’s post-litigation decision to begin providing ASL interpreters for certain purposes. See Heyer v. United States Bureau of Prisons, 2015 WL 1470877 (E.D.N.C. Mar. 31, 2015) (unpublished). Heyer now appeals the district court’s 2015 summary judgment ruling; he does not appeal the district court’s 2013 dismissal of Counts I and V of his complaint.

‘We review a district court’s decision to grant summary judgment de novo, applying the same legal standards as the district court, and viewing all facts and reasonable inferences therefrom in the light most favorable to the nonmoving party.” T-Mobile Ne., LLC v. City Council of Newport News, 674 F.3d 380, 384-85 (4th Cir. 2012) (internal quotation marks omitted). 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).

III.

We begin with Heyer’s claims that BOP’s failure to provide ASL interpreters for medical interactions amounts to deliberate indifference to Heyer’s medical needs. The deliberate-indifference standard comes from the Supreme Court’s Eighth-Amendment jurisprudence applicable to prisoners convicted of a crime. “[T]he Eighth Amendment’s prohibition against ‘cruel and unusual punishments’ [extends] to-the treatment of prisoners by prison officials,” Hill v. Crum, 727 F.3d 312, 317 (4th Cir. 2013), and “forbids the unnecessary and wanton infliction of pain,” id. (internal quotation marks omitted). As the Supreme Court has explained, “deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (citation and internal quotation marks omitted).

Although Heyer is a civil detainee rather than a convicted prisoner, Heyer nonetheless frames his argument in Eighth-Amendment terms, arguing that he is entitled under the Fifth Amendment to at least the same protection prisoners receive under the Eighth Amendment. According to Heyer, the failure to provide interpreters amounts to deliberate indifference to his medical needs and thus violates his Fifth Amendment rights. As we will explain, we agree with Heyer that his evidence is sufficient to support a finding of deliberate indifference and that the district court therefore erred by granting summary judgment in favor of BOP on these claims.

The deliberate-indifference standard has two components. The plaintiff must show that he had serious medical needs, which is an objective inquiry, and that the defendant acted with deliberate indifference to those needs, which is a subjective inquiry. See Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008).

A.

In our view, Heyer’s evidence is more than sufficient to show the existence of serious medical needs. A “serious medical need” is “one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.” Id. at 241 (internal quotation marks omitted).

As we understand his claims, Hey-er does not contend that his deafness, in and of itself, is a serious medical need that requires treatment. Instead, he contends that BOP’s failure to provide ASL interpreters for his medical interactions has led to constitutionally inadequate treatment for serious medical needs that have arisen during his confinement. We agree.

As discussed above, Heyer has suffered multiple seizures during his confinement, and we have little difficulty concluding that seizures are sufficiently serious to require medical treatment. See Shreve v. Franklin Cty., 743 F.3d 126, 135 (6th Cir. 2014) (explaining that seizure suffered by inmate amounted to “a serious medical need to which indifference would likely have been a constitutional violation in itself’); cf. Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999) (no evidence of objectively serious medical need in case where detainee was not “hav[ing] trouble breathing ... [,] was not bleeding, was not vomiting or choking, and was not having a seizure”). And while suffering these serious medical problems, Heyer was completely unable to communicate with medical staff. Heyer’s evidence establishes, for purposes of these proceedings, that he can only communicate through ASL. He cannot read lips, has no ability to understand speech, and cannot communicate effectively in written English. Thus, without an ASL interpreter, Heyer was unable to explain what happened or describe his symptoms to the medical staff, and he was unable to understand any questions or instructions from the medical staff. Even a lay person could easily recognize the need for a patient with a serious medical condition to be able to communicate with-medical staff, so a proper diagnosis can be made, and for the patient to understand the medical staffs instructions, so the medical condition can be properly treated.

BOP does not argue that seizures are not serious, nor does it contend that the ability to communicate with medical providers is unimportant to treatment. Instead, BOP, mirroring the district court’s analysis, argues that Heyer cannot show a serious medical need because there is no evidence that Heyer suffered any “adverse medical condition as a result of not being provided interpreters during his medical encounters.” Brief of Appellee at 44.

We disagree. BOP’s argument demands more of Heyer than the case law requires. An actionable deliberate-indifference claim does not require proof that the plaintiff suffered an actual injury. Instead, it is enough that the defendant’s actions exposed the plaintiff to a “substantial risk of serious harm.” Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (emphasis added); see also Rish v. Johnson, 131 F.3d 1092, 1096 (4th Cir. 1997) (deliberate-indifference standard requires prisoner to “produce evidence of a serious or significant physical or emotional injury resulting from the challenged conditions, or demonstrate a substantial risk of such serious harm resulting from the prisoner’s unwilling exposure to the challenged conditions” (citation omitted; emphasis added)); Ball v. LeBlanc, 792 F.3d 584, 593 (5th Cir. 2015) (“To prove unconstitutional prison conditions, inmates need not show that death or serious injury has already occurred. They need only show that there is a substantial risk of serious harm.” (citation and internal quotation marks omitted)).

In our view, the facts outlined above are sufficient to show that the absence of ASL interpreters during medical interactions exposed Heyer to a substantial risk of serious harm. Heyer’s evidence is thus sufficient, at this stage of the proceedings, to satisfy the objective component of the deliberate-indifference inquiry.

B.

We turn now to the subjective component of the inquiry — whether BOP acted with deliberate indifference.

“Deliberate indifference is more than mere negligence, but less than acts or omissions done for the very purpose of causing harm or with knowledge that harm will result.” Scinto v. Stansberry, 841 F.3d 219, 225 (4th Cir. 2016) (internal quotation marks and alterations omitted). A prison official acts with deliberate indifference if he “knows of and disregards an excessive risk to [the inmate’s] health or safety.” Farmer, 511 U.S. at 837, 114 S.Ct. 1970. “Put differently, the plaintiff must show that the official was aware of facts from which the inference could be drawn that a substantial risk of serious harm existed and drew that inference.” Scinto, 841 F.3d at 225 (internal quotation marks and alterations omitted).

The district court rejected Hey-er’s medical-care claims on the first prong of the standard, and the court therefore did not address whether Heyer’s evidence was sufficient to establish deliberate indifference. BOP argues, however, that Hey-er’s evidence is insufficient. In BOP’s view, Heyer presented no evidence showing that BOP officials “knew that by not providing Heyer an interpreter during his medical evaluations, ... he was unable to communicate with medical staff to the extent there existed a substantial risk of serious harm to his health.” Brief of Appellee at 51. BOP notes that it provided Heyer with an inmate interpreter to facilitate Heyer’s communication, and it contends there is no evidence showing it knew that communicating through the inmate companion was insufficient. Again, we disagree.

BOP has been aware of Heyer’s deafness since he arrived at Butner in 2008, and the record establishes that Heyer made multiple requests for ASL interpreters and repeatedly informed prison officials of his inability to understand. Indeed, the fact that BOP assigned Heyer an inmate companion is itself some evidence that BOP knew that Heyer could not effectively communicate on his own.

Contrary to BOP’s argument, the decision to provide Heyer with the inmate companion does not insulate it from a finding of deliberate indifference. As we have made clear, the mere fact that prison officials provide some treatment does not mean they have provided “constitutionally adequate treatment.” De’lonta v. Johnson, 708 F.3d 520, 526 (4th Cir. 2013). While “a prisoner does not enjoy a constitutional right to the treatment of his or her choice, the treatment a prison facility does provide must nevertheless be adequate to address the prisoner’s serious medical need.” Id. (footnote omitted).

In our view, Heyer’s summary-judgment evidence is more than sufficient to support a finding that BOP knew that communication through the inmate companion was inadequate. As noted above, the inmate companion assigned to Heyer did not know ASL. The inappropriateness of using an interpreter who did not speak Heyer’s language is obvious, and that very obviousness could support a factfinder’s conclusion that BOP knew the inmate companion was inadequate. See Farmer, 511 U.S. at 842, 114 S.Ct. 1970 (“Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.1’ (citation omitted; emphasis added)).

Moreover, Heyer’s evidence shows that BOP officials did in fact know that the communication through the inmate companion was inadequate. Dr. Andres Hernandez, BOP’s psychologist in charge of Heyer’s treatment, refused to permit the use of the inmate companion “in the formal provision of [CT Program] treatment services.” J.A. 1276. As Dr. Hernandez explained in his deposition, he found the inmate companion to be “inadequate to conduct treatment,” J.A. 1117, and believed qualified interpreters were “imperative” to “insure that there was accurate, reliable understanding,” so as to “maintain the adequacy of treatment, the effectiveness of treatment.” J.A. 1117; see also J.A. 1128 (Hernandez “cannot meaningfully communicate with Mr. Heyer without interpreters”); J.A. 1294 (affidavit of another psychologist involved in Heyer’s treatment stating that “the use of qualified ASL interpreters is necessary in general for Hey-er to progress through the [CT Program]”).

This evidence shows BOP’s knowledge of all the factual premises underpinning Heyer’s deliberate-indifference claim: BOP knew that Heyer was deaf and. needed ASL interpreters to communicate; BOP knew that “accurate” and “reliable” communication was necessary for Heyer’s treatment to be effective; and BOP knew that the inmate companion was “inadequate” to ensure understanding. While Dr. Hernandez may have been speaking specifically to Heyer’s psychiatric treatment, his views about the inadequacy of the inmate companion are equally applicable to the treatment of his physical health issues. From this evidence, a factfinder could reasonably conclude that BOP was deliberately indifferent, as it knew that its failure to provide ASL interpreters during Heyer’s medical interactions created a substantial risk of serious harm to his health. See Farmer, 511 U.S. at 837, 114 S.Ct. 1970 (A prison official acts with deliberate indifference if he “knows of and disregards an excessive risk to inmate health or safety.”); Scinto, 841 F.3d at 226 (explaining that “a prison official’s failure to respond to an inmate’s known medical needs raises an inference of deliberate indifference to those needs” (internal quotation marks and alterations omitted)).

C.

Accordingly, for the reasons outlined above, we conclude that Heyer’s evidence, when accepted as true, is sufficient to satisfy the objective and subjective components of the deliberate-indifference inquiry. The district court therefore erred by granting summary judgment in favor of BOP on Heyer’s claim that BOP failed to provide him with constitutionally adequate medical care.

IV.

We turn now to Heyer’s First Amendment claims. Heyer contends that, despite his confinement, he retains a First Amendment right to communicate with those outside the prison. And given the evidence establishing his inability to communicate in written English, Heyer argues that BOP’s failure to provide him with access to a videophone improperly restricts his First Amendment rights under the four-factor analysis set out by the Supreme Court in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). In the alternative, Heyer argües that, even if BOP’s reliance on the TTY device were adequate, BOP has failed to provide reasonable access to the TTY device.

A.

Courts have generally concluded that the First Amendment rights retained by convicted prisoners include the right to communicate with others beyond the prison walls. See, e.g., Yang v. Missouri Dep’t of Corr., 883 F.3d 890, 894 (8th Cir. 2016) (The rights retained by a convicted prisoner “include the right to communicate with persons outside the prison walls, subject to regulation that protects legitimate governmental interests.”); Pope v. Hightower, 101 F.3d 1382, 1385 (11th Cir. 1996) (concluding that convicted prisoners retain a “First Amendment right to communicate with family and friends”); Washington v. Reno, 35 F.3d 1093, 1100 (6th Cir. 1994) (recognizing that “persons incarcerated in penal institutions retain their First Amendment rights to communicate with family and friends”); Morgan v. LaVallee, 526 F.2d 221, 225 (2d Cir. 1975) (“A prison inmate’s rights to communicate with family and friends are essentially First Amendment rights subject to § 1983 protection.... ”). As a civil detainee rather than a convicted prisoner, Heyer’s First Amendment rights are at least as broad as those retained by convicted prisoners.

BOP does not dispute that Heyer retains rights under the First Amendment that are implicated by the challenged policies. Indeed, it explicitly agrees that “[t]he First Amendment protects an inmate’s right to communicate with family and friends.” Brief of Appellee at 15. Instead, BOP contends that its refusal to provide Heyer with his communication method of choice — a videophone — did not infringe his First Amendment rights, such that there is no occasion to apply the Turner factors. BOP alternatively argues that if application of the Turner factors is required in this case, its refusal to provide a videophone is nonetheless proper.

B.

In Turner v. Safley, the Supreme Court concluded that a prison policy or regulation that “impinges on inmates’ constitutional rights ... is valid if it is reasonably related to legitimate penological interests,” 482 U.S. at 89, 107 S.Ct. 2254, and the Court identified four factors to consider when determining the reasonableness of the policy, id. at 89-91, 107 S.Ct. 2254. Accordingly, as BOP argues, consideration of the Turner reasonableness factors is required only if the prison policy “impinges” on Heyer’s First Amendment rights.

BOP contends that the record shows that Heyer can communicate with those outside the prison through use of the TTY device, and that Heyer’s First Amendment rights are therefore satisfied by the access BOP provides to the TTY. BOP thus argues that its TTY policy does not impinge on Heyer’s First Amendment rights, and that Heyer’s demand for a better way to communicate is not a viable constitutional claim. We disagree.

BOP’s argument that Heyer can effectively communicate through the TTY device is based on a highly selective reading of the record. As previously discussed, the TTY device utilizes a keyboard and permits the transmission of written messages between TTY users; effective communication over a TTY device therefore requires proficiency in written English. Heyer’s evidence, however, establishes that he has extremely limited proficiency in English and cannot communicate effectively in ■written English. While BOP points to evidence suggesting that Heyer might sometimes, under certain circumstances, be able to communicate effectively through writing, that evidence is not entitled to the dispositive effect that BOP assigns to it. The procedural posture, of this case requires us to view the evidence in the light most favorable to Heyer, which means that we must accept as true the evidence showing that Heyer cannot communicate effectively through written English and therefore cannot communicate effectively through the TTY device. And because the evidence establishes that Heyer cannot communicate effectively through the only means that BOP makes available to him, we cannot accept BOP’s assertion that its TTY-only policy does not impinge on Hey-er’s First Amendment right to communicate with those outside the prison.

C.

Given our conclusion that BOP’s policy impinges on Heyer’s First Amendment rights, we must determine whether that policy “is reasonably related to legitimate penological interests,” as required by Turner. 482 U.S. at 89, 107 S.Ct. 2254. As explained in Turner, the reasonableness of the policy depends on (1) whether a “valid, rational connection [exists] between the prison regulation and the legitimate governmental interest put forward to justify it,” (2) whether “alternative means of exercising the right [exist] that remain open to prison inmates,” (3) what “impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally,” and (4) whether there was an “absence of ready alternatives” to the regulation in question. Id. at 89-90, 107 S.Ct. 2254 (internal quotation marks omitted).

1.

We first consider whether there is a “valid, rational connection between the prison regulation and the legitimate gov■ernmental interest put forward to justify it.” Id. at 89, 107 S.Ct. 2254 (internal quotation marks omitted). “[A] regulation cannot be sustained where the logical connection between the regulation and the asserted goal is so remote as to render the policy arbitrary or'irrational.” Id. at 89-90, 107 S.Ct. 2254.

BOP contends that its TTY-only policy furthers its legitimate interest in maintaining prison security. According to BOP, videophones create security issues not presented by the TTY system, such as the possibility of a video recording of the conversation being posted on the Internet. In addition, BOP contends that

[w]ith video communications, it is more difficult to prevent sexually illicit acts from occurring, or controlling who or what the inmate can see on the other end of the video monitor (ie., children or prior victims). Such calls would likely require attentive and continuous live monitoring, and even if staff did observe sexually inappropriate conduct over the video monitor, the act may be committed before the staff member has an opportunity to terminate the call (e.g., indecent exposure to child).

Brief of Appellee at 21-22 (citation omitted).

BOP also argues that it has a legitimate interest in monitoring all inmate communication and that its TTY-only policy is rationally related to that interest. BOP currently monitors inmate telephone calls through the secure BOP Inmate Telephone System, and BOP contends that the system cannot accommodate a videophone “without the development and funding of a separate and secure Information Technology infrastructure.” Brief of Appellee at 21.

There is no doubt that BOP has a legitimate interest in maintaining the security of its facilities and in protecting the public from further criminal acts by inmates and detainees. Nonetheless, there are reasons that a factfinder might question the legitimacy of the particular security risks asserted in this case.

As to BOP’s insistence that videophone conversations must go through its secure Inmate Telephone System, we note that the TTY system currently in place operates on an unsecured line in a private staff office. Given BOP’s current willingness to let Heyer place TTY calls through an unsecured line unconnected to the Inmate Telephone System, a factfinder could question BOP’s sudden insistence that videophone calls be part of the System.

And while BOP argues that maintaining the security of videophone conversations would require “attentive and continuous live monitoring,” Brief of Appellee at 21, the current TTY system already requires continuous staff monitoring. The TTY device is in a private office with a computer and other staff equipment, and a prison official is always present during Heyer’s use of the TTY device. Because the monitoring of a videophone conversation would be no more demanding of staff time than the monitoring of the TTY conversations that is already being done, the factfinder could question whether a videophone system would in fact present the difficulties asserted by BOP.

Nonetheless, we recognize that a videophone conversation presents certain risks not present with TTY conversations, such as the possibility of a video of the conversation being posted on the Internet or the possibility that an inmate might expose himself to the person on the other end of the conversation. A ban on videophones prevents these situations from occurring, and thus the ban bears at least some connection to BOP’s legitimate interest in maintaining security and protecting the public. As we will explain, however, questions of fact arise under the other Turner factors as to the reasonableness of BOP’s videophone ban. See Jehovah v. Clarke, 798 F.3d 169, 178-79 (4th Cir. 2015) (reversing grant of summary judgment under Turner even though challenged policy bore some connection to the penological interests asserted by the defendants).

2.

The second Turner factor requires us to consider whether Heyer has alternate means of exercising the constitutional right. “Where other avenues remain available for the exercise of the asserted right, courts should be particularly conscious of the measure of judicial deference owed to corrections officials in gauging the validity of the regulation.” Turner, 482 U.S. at 90, 107 S.Ct. 2254 (citation, internal quotation marks, and alteration omitted). BOP contends that alternate means of communicating with those outside Butner are available to Heyer — specifically, TTY, email, written letters, and in-person visits. Because other means of communication remain available to Heyer, BOP contends the ban on videophones is reasonable. We disagree.

With the exception of in-person visitation, all of the alternate means of communication identified by BOP involve the use of written English. As we have already explained, however, the record contains evidence establishing that Heyer’s proficiency with English is severely limited and that he cannot effectively communicate in written English. Although Heyer presumably would be able to communicate through ASL with those who visit him at Butner, the availability of in-person visitation is of little help in emergencies or other situations where there is a need for immediate contact. Accordingly, we believe that Heyer’s evidence, which must be accepted as true, would permit a factfinder to conclude that no other effective means of communication are available to Heyer.

3.

The third factor we must consider under Turner is the effect that “accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.” Id. at 90, 107 S.Ct. 2254. “When accommodation of an asserted right will have a significant ‘ripple effect’ on fellow inmates or on prison staff, courts should be particularly deferential to the informed discretion of corrections officials.” Id.

BOP contends the effect of accommodating Heyer’s request would be significant. BOP claims it would be required to “develop and fund a separate and secure IT infrastructure in order to monitor and record each videophone call on an agency-wide basis,” Brief of Appellee at 24 (emphasis added), and that it would cost nearly $2 million to install videophones at all of its 119 institutions. Moreover, monitoring the substance of a videophone conversation would require the services of an ASL interpreter, which further increases the costs to BOP.

Again, however, Heyer’s evidence precludes us from concluding that the effect of accommodating Heyer’s needs would be so great that the videophone ban is reasonable as a matter of law. As previously noted, the TTY device currently used by Heyer operates through an unsecured telephone line that is not part of the Inmate Telephone System, and BOP is apparently satisfied that the risks associated with the use of unsecured line are manageable. This evidence thus creates questions of fact about BOP’s assertion that a videophone would require creation of a new, secure IT infrastructure.

BOP also insists that any accommodation should be implemented on what would be a very expensive, system-wide basis. However, nothing in the record indicates why a system-wide solution would be required, and Heyer’s evidence shows that a videophone ■ could be installed in Butner (presumably using the same unsecured line used by the TTY device) at de minimis expense to the government. And while the videophone conversations would require live monitoring by prison staff, that should not be a significant additional burden, as prison staff already monitor Hey-er’s TTY calls.

In light of this evidence, a factfinder could conclude that accommodating Hey-er’s needs would have minimal effect on guards or other inmates or on the prison’s allocation of resources, thus raising questions about the reasonableness of the videophone ban.

4.

Finally, Turner requires us to consider whether there are “ready alternatives” to the challenged policy. Turner, 482 U.S. at 90, 107 S.Ct. 2254. As the Court explained, “the existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an exaggerated response to prison concerns.” Id. (internal quotation marks omitted). Although the Court cautioned lower courts not to treat this factor as the equivalent of the “least restrictive alternative test,” the Court held that “if an inmate claimant can point to an alternative that fully accommodates the prisoner’s rights at de minimis cost to valid penological interests, a court may consider that as evidence that the regulation does not satisfy the reasonable relationship standard.” Id. at 90-91, 107 S.Ct. 2254 (internal quotation marks omitted). In this case, there is significant evidence of ready alternatives to BOP’s ban on videophones.

As Heyer notes, the regular inmate telephone system presents security risks — for example, inmates can use the phone to direct or commit crimes, and the call recipient can record and post the call on the Internet. Those risks, however, have not driven BOP to ban telephones; instead, it handles individual problems as they arise, suspending usage rights for offending inmates and taking other appropriate action. Nothing in the record suggests that the security risks posed by videophones are so qualitatively different that they can only be managed by banning videophones. Indeed, the record shows that many of the security risks associated with a videophone could be minimized by simply setting it up in a secure office, as the TTY device is. Access to the videophone could be restricted to deaf inmates, and any abuses of the system could be handled on a case-by-case basis, as they are with the inmate phone system.

Moreover, Heyer’s evidence establishes that videophones are in many ways more secure than TTY devices. The TTY device requires the user to have physical access to the equipment, while the equipment for a videophone system — which is little more than a camera connected to a desktop computer — can be set up in a way that the detainee has no access to it. Basic software packages permit videophones to be password-protected to prohibit unauthorized access; TTY devices are not password-protected. Moreover, videophone conversations can be digitally recorded, encrypted, and stored electronically. By contrast, the record of TTY conversations is printed out by the device itself, thus making it possible for an inmate to grab the print-out and destroy the record of his conversation.

Given Heyer’s evidence of the minimal cost of a videophone and the ease with which security concerns could be mitigated, we believe that a factfinder could reasonably conclude that BOP’s refusal to provide a videophone is an exaggerated response to the perceived security concerns. The district court therefore erred by granting summary judgment to BOP on Heyer’s First Amendment videophone claim. See Jehovah, 798 F.3d at 179 (reversing grant of summary judgment because jury could find prisoner’s proposed alternatives to be so “obvious and easy” as to show that total ban on wine was an “exaggerated response” (internal quotation marks omitted)).

D.

Independent of his videophone claim, Heyer also claims that BOP violated his First Amendment rights by unreasonably-restricting his access to the TTY device. The district court summarily rejected that claim, concluding that Heyer had proved “at most isolated instances of being unable to use the TTY immediately upon [his] request.” J.A. 145. We agree with Heyer that the record precludes a grant of summary judgment on this claim.

Heyer filed a verified complaint, which is the “the equivalent of an opposing affidavit for summary judgment purposes.” World Fuel Servs. Trading, DMCC v. Hebei Prince Shipping Co., 783 F.3d 507, 516 (4th Cir. 2015) (internal quotation marks omitted). In his complaint, he states that access to the TTY is “regularly restricted or denied,” J.A. 40, and that prison staff “consistently den[ies him] access altogether without justification,” J.A. 41. If the few trained staff members “are away for training or on vacation,” Heyer is “unable to access the TTY at all.” J.A. 41. In his deposition, Heyer confirmed the difficulties in getting access to the TTY, with it sometimes taking days before access is granted, and staff sometimes failing to follow up on the request at all. Heyer also testified that he has never been able to use the TTY on nights or weekends.

While we do not suggest that the Constitution requires deaf inmates to have precisely the same access to TTY devices other inmates have to telephones, we believe that this evidence, accepted as true, shows a sufficiently serious interference with Heyer’s rights to communicate beyond Butner’s walls to support a First Amendment claim. Cf. Washington, 35 F.3d at 1100 (“[A] prisoner’s right to telephone access is subject to rational limitations in the face of legitimate security interests of the penal institution.” (internal quotation marks omitted)).

As to the Turner factors, we believe questions of fact preclude the grant of summary judgment. Heyer alleges in his complaint that access to the TTY was often denied without justification, and a factfin-der could certainly conclude that arbitrary interference with a detainee’s exercise of his constitutional rights is not “reasonably related” to any “legitimate penological interests.” Turner, 482 U.S. at 89, 107 S.Ct. 2254; cf. Benzel v. Grammer, 869 F.2d 1105, 1108 (8th Cir. 1989) (“Although-in some instances prison inmates may have a right to use the telephone for communication with relatives and friends, prison officials may restrict that right in a reasonable manner....”). Moreover, the record establishes the availability of ready alternatives to BOP’s current inconsistent and inadequate approach to access, including the largely cost-free option of training more staff members on the use of the TTY, so as to give Heyer more access to the TTY on nights and weekends. Because there are questions of fact on issues relevant to the application of the Turner factors, we conclude that the district court erred by granting summary judgment against Heyer’s claim that he was unreasonably denied access to the TTY device.

V.

The district court rejected Heyer’s remaining claims by focusing on, at least in part, BOP’s post-litigation conduct and assertions that it would provide the relief Heyer was seeking. See J.A. 137 (rejecting Fifth Amendment claim (Count II) based on failure to provide ASL interpreters for the mental health treatment provided through the CT Program because BOP stated that it would provide interpreter services for future individual therapy sessions); J.A. 143-44 (dismissing Fifth Amendment claim (Count VII) based on BOP’s failure to provide visual alarms and other items necessary to alert Heyer to emergencies because BOP’s post-litigation safety improvements were sufficient); J.A. 145-46 (dismissing as moot Heyer’s RFRA and First Amendment claims (Counts IX and X) based on BOP’s failure to provide interpreters for religious services because BOP stated that it would begin providing interpreters for religious services on request). Heyer argues on appeal that the district court erred by relying on BOP’s voluntary, post-litigation actions to reject his claims. We agree.

A.

The district court dismissed Counts IX and X as moot based on BOP’s stated intent to provide the requested relief in the future. The court explained that BOP’s voluntary cessation of the challenged action mooted the claims because BOP “unequivocally statefc] that [Heyer] will be provided, upon request, with a qualified interpreter for religious ceremonies and programs,” such that “there is no reasonable expectation that the alleged violation will recur and [BOP’s] solution will completely and irrevocably eradicate any burden the lack of interpreters formerly placed on [Heyer’s] exercise of religion.” J.A. 146 (internal quotation marks omitted).

“It is well established that a defendant’s voluntary cessation of a challenged practice moots an action only if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Wall v. Wade, 741 F.3d 492, 497 (4th Cir. 2014) (internal quotation marks omitted). “[W]hen a defendant retains the authority and capacity to repeat an alleged harm, a plaintiff’s claims should not be dismissed as moot.” Id. BOP bears the “heavy burden” of showing that “the challenged conduct cannot reasonably be expected to start up again.” Id. (internal quotation marks omitted). “[B]ald assertions of a defendant — whether governmental or private — that it will not resume a challenged policy fail to satisfy any burden of showing that a claim is moot.” Id. at 498.

When dismissing these, counts, the district court relied on BOP’s assurance of interpreters contained in a 2014 affidavit from a BOP chaplain which states that “BOP will provide ... inmates with a qualified interpreter ... if necessary for effective communication during religious ceremonies or programs.” J.A. 343. BOP contends this assurance is sufficient to support the district court’s ruling because BOP has “no policy or practice ... that prevents deaf inmates from receiving interpreters for the purpose of attending religious programming.” Brief of Appellee at 60. Thus, in BOP’s view, the chaplain’s assurance that interpreters would be provided is simply a “recommit[ment] to a preexisting practice of providing interpreters.” Id. at 61. We disagree.

Regardless of whether BOP has previously provided interpreters for other deaf inmates, the record here establishes (for summary-judgment purposes) that BOP has not provided Heyer with interpreters for religious services. See J.A. 403, 408. Accordingly, given our standard of review and BOP’s burden of proof, the chaplain’s affidavit cannot be viewed as a statement of current policy, but must instead be understood as a mid-litigation change of course. Viewed through that lens, the chaplain’s statement does not support the district court’s decision to dismiss these claims as moot. Even if we ignore the equivocation inherent in the promise to provide interpreters “if necessary,” the statement amounts to little more than a “bald assertion[]” of future compliance, which is insufficient to meet BOP’s burden. Wall, 741 F.3d at 498.

Moreover, as previously discussed, BOP in 2012 announced that it would provide ASL interpreters for Heyer’s scheduled medical appointments. Since that time, however, Heyer has had at least two scheduled medical appointments where no interpreter was provided. Because the record establishes that BOP has already failed to live up to its promises regarding the provision of ASL interpreters, the record does not require us to conclude that “the challenged conduct cannot reasonably be expected to start up again.” Id. at 497 (internal quotation marks omitted). Under these circumstances, the district court erred by concluding that BOP’s assertion that it would begin providing interpreters rendered Counts IX and X moot.

B.

In Count VII, Heyer challenged BOP’s failure to provide visual alarms and other items, such as pagers, vibrating beds, or vibrating watches, necessary to alert Heyer to emergencies. After noting in its factual summary that BOP in 2014 (almost three years after the commencement of this action) had installed a strobe light in the cell to which Heyer was assigned, see J.A. 128, the district court granted summary judgment against the claim because Heyer was “seeking] more safety measures than those [BOP has] implemented rather than arguing that [BOP has] failed to provide [him] with any safety measures at all.” J.A. 143.

Although BOP did recently install a strobe light in Heyer’s cell, the mere fact that BOP has taken some action does not mean that the action is constitutionally sufficient. See, e.g., De’lonta, 708 F.3d at 526. Indeed, Heyer presented evidence showing that the strobe light was inadequate to alert him to emergencies, see J.A. 496, but the district court nonetheless appears to have assumed that the strobe light was an adequate response to Heyer’s safety needs. Moreover, BOP cannot guarantee that Heyer will always be assigned to one of the four cells where the strobe lights were installed, and Heyer has presented evidence challenging the adequacy of the prison’s other existing mechanisms for ensuring Heyer’s awareness of emergencies. Under these circumstances, the district court erred by granting summary judgment in favor of BOP on Count VII.

C.

In Count II, Heyer asserted a Fifth Amendment claim based on BOP’s failure to provide ASL interpreters for the mental-health treatment provided through the CT Program. The district court assumed that Heyer had a protected liberty interest in receiving the treatment. The court nonetheless granted summary judgment against the claim, observing that BOP had agreed to provide ASL interpreters for Heyer’s participation in most aspects of the CT Program and concluding that the denial of interpreters for the first few months after Heyer began participating in the CT Program did not amount to a cognizable constitutional injury. See J.A. 137.

Even if we accept the district court’s conclusion that BOP’s initial failure to provide interpreters is not significant enough, on its own, to establish a constitutional violation, Heyer’s claim is not concerned with seeking damages for past constitutional wrongs. Instead, Heyer seeks a court ruling that, because the length of his confinement is dependent in large part on BOP’s assessment of his mental health, BOP is constitutionally obliged to provide interpreters for all aspects of the mental-health treatment it offers to Adam Walsh detainees, and he also seeks an injunction ordering BOP to provide the necessary interpreters. BOP’s post-litigation decision to provide interpreters for some aspects of Heyer’s treatment clearly provides no basis for rejecting Heyer’s claim on the merits. Accordingly, we conclude that the district court erred by granting summary judgment in favor of BOP on Count II.

VI.

To summarize, we conclude that Heyer has presented sufficient evidence to preclude summary judgment in favor of BOP on Heyer’s medical-treatment claims (Counts IV and VI), safe-environment claim (Count VII), and videophone- and TTY-related First Amendment claims (Count VIII). We therefore vacate the district court’s order granting summary judgment in favor of BOP as to those claims, and we remand those claims for trial.

As to Counts II, IX, and X, we conclude that the district court erred by giving dis-positive effect to BOP’s post-litigation assurances that it would provide the ASL interpreters Heyer requested. We therefore vacate the district court’s order granting summary judgment in favor of BOP on Count II and dismissing Counts IX and X as moot. On remand, the district court may re-evaluate the merits of these claims in light of the evidence presented by the parties, but the court may not give disposi-tive effect to BOP’s assurances that qualified interpreters will be provided.

Finally, because Heyer does not challenge it on appeal, we affirm the district court’s dismissal of Count III.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

      . Robert Boyd, another Adam Walsh detainee, was originally a plaintiff in this action. His appeal was dismissed after it was discovered that he was not deaf.

      . Because this is an appeal from the grant of summary judgment, we recount the facts and the reasonable inferences to be drawn therefrom in the light most favorable to Heyer, the non-moving party. See Raub v. Campbell, 785 F.3d 876, 878 (4th Cir. 2015).

      . When tested by Heyer’s expert, the inmate companion could not even provide a “ratable sample of ASL,” meaning that he could not provide "at least several minutes” of ASL use during a 20-minute proficiency assessment. J.A. 372.

      . In Count III of the complaint, Heyer challenged BOP’s failure to provide ASL interpreters for disciplinary proceedings. Because Heyer had never been subject to disciplinary proceedings at Butner, the district court in its 2015 order dismissed the claim, concluding that Heyer lacked standing to pursue it. Heyer does not challenge that dismissal on appeal.

      . See, e.g., Youngberg v. Romeo, 457 U.S. 307, 322, 102 S.Ct. 2452, 73 L.Ed.2d 28, (1982) (Civil detainees "are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.”); Ingraham v. Wright, 430 U.S. 651, 671 n.40, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977) ("[T]he State does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law."); Bell v. McAdory, 820 F.3d 880, 882 (7th Cir. 2016) ("States must treat detainees at least as well as prisoners, and often they must treat detainees better — precisely because detainees (whether civil or pretrial criminal) have not been convicted and therefore must not be punished.”).

      . In cases involving involuntarily committed psychiatric patients, claims of inadequate medical care are governed by the “professional judgment” standard rather than the deliberate indifference standard. See Youngberg, 457 U.S. at 323, 102 S.Ct. 2452; Patten v. Nichols, 274 F.3d 829, 838 (4th Cir. 2001). Because we agree with Heyer that his evidence is sufficient to support a finding of deliberate indifference, we need not flesh out the differences between the two standards or determine whether the professional-judgment standard should also be applied to civil detainees who are confined alongside convicted criminals in a correctional facility rather than in a psychiatric hospital. See Brown v. Harris, 240 F.3d 383, 388 (4th Cir. 2001) (concluding that deliberate-indifference standard applies to medical-care claims involving pre-trial detainees).

      . See Expert Report, J.A. 350 (“Heyer ... cannot communicate effectively in written English.”); id., J.A. 372 (Heyer's "proficiency in English (speech, lip-reading and reading and writing) is severely limited); id., J.A. 355 ("American Sign Language is structurally different from English,” and its "lexicon and syntactic structure [are] quite unlike that of spoken English”); Heyer Deposition, J.A. 267 ("I will write a note and, usually the person that’s reading it does not understand what I’ve written because I write in ASL and their language is English.”); id. ("My sentences are not in English, so they do not understand what I’m saying.”).

      . For example, Heyer's expert suggested that written communication might possibly be effective for Heyer if it involved "short routine, frequently repeated written communications.” J.A. 378. In addition, Heyer testified in his deposition that his brother could understand his emails. J.A. 296.

      . The Supreme Court in Turner v. Safley was considering whether a prison policy improperly restricted the First Amendment rights of a convicted prisoner rather than a civil detainee. See 482 U.S. 78, 81-84, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). Some courts have made modifications to the Turner factors to reflect the differences between convicted prisoners and detainees. See, e.g., Brown v. Phillips, 801 F.3d 849, 853 (7th Cir. 2015) (concluding that in case involving civil detainee, Turner requires that challenged policy "must be rationally connected to the state's interests — here, security and the rehabilitation and treatment of sexually violent persons”). Because Heyer does not suggest that any such adjustments shoüld be made in this case and we conclude that his claims are viable under the Turner factors as originally formulated, we need not decide whether adjustments should generally be made in cases involving civil detainees.

      . Heyer's evidence indicates that BOP could obtain the necessary equipment and software for "no cost or modest cost.” J.A. 663. Even under BOP’s estimate, establishing a standalone videophone system at Butner would cost no more than $2500.

      . In an affidavit filed with BOP’s summary-judgment materials, the manager of the prison unit where Heyer is assigned stated that Heyer would remain in one of the four cells “[ajbsent any exigent circumstances.” J.A. 216. Burner's warden, however, stated in his deposition that regular rotation of inmates to different cells is a "good correctional practice” that he would not rule out implementing in the future. J.A. 707.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee v. Brandon Gabriel MONTIEL-CORTES, also known as Brandon Gabriel Garcia-Co, also known as Brandon Gabriel Garcia-Cortez, Defendant-Appellant
    No. 16-50074
    United States Court of Appeals, Fifth Circuit.
    FILED January 30, 2017
    REVISED February 1, 2017

      Joseph H. Gay, Jr., Elizabeth Beren-guer, Assistant U.S. Attorneys, U.S. Attorney’s Office, San Antonio, TX, for Plaintiff-Appellee.
    Kristin L. Davidson, Assistant Federal Public Defender, Maureen Scott Franco, Federal Public Defender, Federal Public Defender’s Office, San Antonio, TX, for Defendant-Appellant.
    Before DAVIS, DENNIS, and SOUTHWICK, Circuit Judges.
   PER CURIAM:

Brandon Gabriel Montiel-Cortes pleaded guilty to illegal reentry following deportation. At sentencing, the district court concluded that his 2013 Nevada conviction for robbery constituted a “crime of violence” within the meaning of United States Sentencing Guidelines § 2L1.2(b)(l)(A) (2015), thus triggering a 16-level increase to his offense level. Applying the enhancement over Montiel-Cortes’s objection, the district court sentenced him to 57 months in prison and three years of nonreporting supervised release. Montiel timely appealed. We affirm.

I.

After Montiel-Cortes pleaded guilty without a plea agreement to illegal reentry following deportation, his presen-tence investigation report (“PSR”) determined that his total offense level was 21, which included, inter alia, a 16-level increase for his 2013 Nevada conviction for robbery, in violation of Nev. Rev. Stat. Ann. § 200.380. The PSR included other state court documents relating to Montiel-Cortes’s Nevada conviction, including the charging document, his Alford plea, and the judgment of conviction.

The PSR concluded that Montiel-Cortes’s Nevada robbery conviction qualified as a “crime of violence” under U.S.S.G. § 2L1.2(b)(l)(A) (2015), which imposed a 16-level enhancement if the “defendant previously was deported, or unlawfully remained in the United States, after” a felony conviction for a crime of violence. The Application Notes defined “crime of violence” as either (1) any of the enumerated offenses, including robbery or extortion, or (2) “any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.” The PSR further determined that Montiel-Cortes’s criminal history category was IV and that his advisory guidelines range of imprisonment was 57 to 71 months.

Montiel-Cortes objected to the 16-level enhancement, arguing that the Nevada robbery offense was not a crime of violence because it encompassed conduct broader than the generic, contemporary definition of robbery. He argued that the Nevada offense, in contrast to generic robbery, did not require immediacy or a specific use of force. He also argued that the Supreme Court’s grant of a writ certiorari in Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016), discussed below, might have some impact on his case.

The district court overruled Montiel-Cortes’s objection, holding that his Nevada robbery conviction was necessarily a crime of violence — specifically, the generic crime of robbery — under the modified categorical approach, also discussed below. The court sentenced him to 57 months in prison and three years of nonreporting supervised release. He timely appealed.

II.

This appeal turns on whether the district court correctly interpreted the sentencing guidelines when it determined, under the modified categorical approach, that Montiel-Cortes’s 2013 Nevada robbery conviction necessarily constituted the generic crime of robbery. We review the district court’s interpretation of the sentencing guidelines de novo.

At the outset, we agree with the parties that, under Mathis, the district court erred by applying the modified categorical framework and instead should have applied the categorical approach. We recently summarized these two approaches in United States v. Howell, 838 F.3d 489, 494 (5th Cir. 2016) as follows:

In determining if a prior conviction is for an offense enumerated or defined in a Guidelines provision, we generally apply the categorical approach and look to the elements of the offense enumerated or defined by the Guideline section and compare those elements to the elements of the prior offense for which the defendant was convicted. We do not consider the actual conduct of the defendant in committing the offense. If the offense is an enumerated offense, such as burglary, we first determine the elements contained in the generic, contemporary meaning of that offense.
In one of several decisions on the subject, the Supreme Court explained the application of the categorical approach in Descamps v. United States [— U.S. -, 133 S.Ct. 2276, 2283, 186 L.Ed.2d 438 (2013) ]. The Supreme Court also explained in Descamps, as it had in prior opinions, that when a statute defines more than one crime, and not all of them constitute an enumerated generic offense, courts employ the “modified categorical approach” to “determine which crime formed the basis of the defendant’s conviction.” Courts may consult certain records pertaining to the prior offense to ascertain if the conviction rested on the generic or defined crime or instead was an over-inclusive offense that could not support a sentence enhancement. But, if the statute of conviction is not divisible, “[t]he modified [categorical] approach ... has no role to play.”

In Mathis, the Supreme Court provided further guidance on how to determine whether a statute is divisible:

Though Mathis dealt with the ACCA [Armed Career Criminal Act], rather than the Guidelines, the methodology of determining whether a statute is divisible and therefore whether the modified categorical approach may be employed, is the same, unless the Guidelines were to specify otherwise. The Supreme Court explained that if a statute sets forth only various means of committing the offense, it is not divisible, but if the statute sets forth more than one offense by including alternative elements of each offense, then the statute is divisible. The test to distinguish means from elements is whether a jury must agree.

In this case, both Montiel-Cortes and the Government agree that Nev. Rev. Stat. Ann. § 200.380 sets out alternative means of committing the crime of robbery, rather than alternative elements. Thus, under Mathis, Nev. Rev. Stat. Ann. § 200.380 is indivisible, and the district court erred by applying the modified categorical approach. More particularly, the district court erred by examining the state court documents to determine how, precisely, Montiel-Cortes violated Nev. Rev. Stat. Ann. § 200.380.

Instead, under Mathis, we must determine whether Nev. Rev. Stat. Ann. § 200.380, as an indivisible whole, categorically qualifies as a crime of violence such that any conduct criminalized by the Nevada robbery statute necessarily qualified as a crime of violence under U.S.S.G. § 2L1.2(b)(l)(A) (2015). If there is any conduct that would violate Nev. Rev. Stat. Ann. § 200.380 but would not qualify as a crime of violence under U.S.S.G. § 2L1.2(b)(l)(A), then the Nevada statute cannot support the Guidelines enhancement under the categorical approach.

III.

Given the above, we must determine whether conduct that violates Nev. Rev. Stat. Ann. § 200.380 necessarily qualifies as a “crime of violence,” as defined in the Application Notes to U.S.S.G. § 2L1.2(b)(l)(A)(ii) as follows: (1) any of the enumerated offenses, including robbery and extortion, or (2) “any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.”

A. The Enumerated Offense of Robbery

The parties primarily argue about whether the Nevada robbery statute proscribes conduct that falls within the generic, contemporary meaning of robbery. Under the categorical framework, we compare the elements of the Nevada statute with the generic definition to determine whether conduct proscribed by the statute is broader than the generic definition. Here, Montiel-Cortes argues that the Nevada statute is broader than the generic, contemporary meaning of robbery.

The Fifth Circuit has recognized that the generic, contemporary definition of robbery encompassed by the guidelines corresponds to the definition found in a majority of states’ criminal codes and draws on the Model Penal Code, treatises, and other trusted authorities. We have held that “robbery may be thought of as aggravated larceny, containing at least the elements of misappropriation of property under circumstances involving [immediate] danger to the person.” The immediate danger element “makes robbery deserving of greater punishment than that provided for larceny and extortion.”

Montiel-Cortes was convicted under Nev. Rev. Stat. Ann. § 200.380, which provided in full:

1. Robbery is the unlawful taking of personal property from the person of another, or in the person’s presence, against his or her will, by means of force or violence or fear of injury, immediate or future, to his or her person or property, or the person or property of a member of his or her family, or of anyone in his or her company at the time of the robbery. A taking is by means of force or fear if force or fear is used to:
(a) Obtain or retain possession of the property;
(b) Prevent or overcome resistance to the taking; or
(c) Facilitate escape.
The degree of force used is immaterial if it is used to compel acquiescence to the taking of or escaping with the property. A taking constitutes robbery whenever it appears that, although the taking was fully completed without the knowledge of the person from whom taken, such knowledge was prevented by the use of force or fear.
2. A person who commits robbery is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 15 years.

Montiel-Cortes argues that the Nevada statute described the offense more broadly than the generic definition. Under the Nevada statute, he argues, the phrase “force or violence or fear of injury, immediate or future” does not necessarily require immediate danger because a threat involving the future by definition cannot be “immediate.” The government argues that the immediacy element is inherently satisfied because the force or putting in fear must occur contemporaneously with the taking.

Neither the Supreme- Court nor this court has considered whether, under the categorical approach, Nevada robbery constitutes the enumerated offense of robbery for purposes of the 16-level enhancement. Nevertheless, our decisions addressing other state robbery statutes shows that this court has rejected arguments similar to the Government’s and generally requires that danger to the victim be “immediate” to constitute a generic robbery.

For example, in United States v. Alvarado-Rodriguez, 269 Fed.Appx. 427 (5th Cir. 2008), this court held that a California robbery statute, Cal. Penal Code § 211, fell within the generic definition of robbery where it defined robbery as “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” The “fear” mentioned in the statute was defined as either (1) “fear of an unlawful injury to the person or property of the person robbed, or of any relative of his or member of his family” or (2) “fear of an immediate and unlawful injury to the person or property of anyone in the company of the person robbed at the time of the robbery.”

The defendant argued that Cal. Penal Code § 211 was broader than the generic definition of robbery because the California statute criminalized threats to property in addition to threats to persons. We rejected that argument, finding that it misconstrued the essential language of Cal. Penal Code § 211 “defining robbery as a crime committed: (1) directly against the victim or in his presence; and (2) against his will.” The Court also noted that “the California robbery statute involves the misappropriation of property under circumstances involving danger to the person” and that the danger to the person “is inherent in the criminal act.” Therefore, “even when the statute is violated by placing the victim in fear of injury to property, the property has been misappropriated in circumstances “involving [immediate] danger to the person.” Thus, we held that Cal. Penal Code § 211 falls within the generic definition of robbery.

In sum, although generic robbery may be broad enough to encompass a fear concerning injury to property in addition to personal injury, the danger must still be “immediate.” Because the Nevada statute covered not just immediate danger but also future dangey, we conclude that it was broader than the generic, contemporary definition of robbery. In fact, as Montiel-Cortes points out, California courts distinguish Nevada robbery because it permits fear of a future injury.

B. The Enumerated Offense of Extortion

That does not end our inquiry, however. The categorical framework requires us to determine whether the least culpable conduct would qualify as a “crime of violence” under the guidelines, not just a single one of the enumerated offenses. We must determine whether the least culpable conduct (involving future danger), which does not qualify as the enumerated “crime of violence” of robbery, nevertheless still qualifies as another “crime of violence.” We conclude that such conduct qualifies as generic extortion.

The generic, contemporary definition of extortion is “obtaining something of value from another with his consent induced by the wrongful use of force, fear, or threats.” Montiel-Cortes argues that the Nevada statute required that the taking be against the victim’s will, whereas the generic definition of extortion requires the victim’s consent. We disagree. The Nevada statute provided:

1. Robbery is the unlawful taking of personal property from the person of another, or in the person’s presence, against his or her will, by means of force or violence or fear of injury, immediate or future, to his or her person or property, or the person or property of a member of his or her family, or of anyone in his or her company at the time of the robbery. A taking is by means of force or fear if force or fear is used to:
(a) Obtain or retain possession of the property;
(b) Prevent or overcome resistance to the taking; or
(c) Facilitate escape.
The degree of force used is immaterial if it is used to compel acquiescence to the taking of or escaping with the property. A taking constitutes robbery whenever it appears that, although the taking was fully completed without the knowledge of the person from whom taken, such knowledge was prevented by the use of force or fear.

Although the statute uses the phrase “against his or her will,” implying a lack of consent, it also emphasizes that the force be “used to compel acquiescence to the taking of or escaping with the property.” In other words, there is consent only in the narrowest sense, but that consent is only given because of a threat. In a more general sense, the consent is against the victim’s will. Indeed, the Ninth Circuit has noted that “the ‘with consent’ element of generic extortion is not inconsistent with the ‘against the will’ element of a Cal. Penal Code § 211 conviction for a taking involving threats to property,” quoting from a treatise in support:

It is sometimes said that robbery differs from statutory extortion in those states which require property acquisition in that in the former the taking of property must be “against the will” of the victim, while in the latter the taking must be “with the consent” of the victim, induced by the other’s unlawful threat; but, in spite of the different expressions, there is no difference here, for both crimes equally require that the defendant’s threats induce the victim to give up his property, something which he would not otherwise have done.

We agree and therefore conclude there is no meaningful distinction between the Nevada statute’s formulation and the generic, contemporary definition of extortion, at least with respect to a Nevada robbery involving a future danger.

IV. Conclusion.

In sum, we conclude that a conviction under the Nevada robbery statute, Nev. Rev. Stat. Ann. § 200.380, necessarily is a crime of violence under the categorical framework. Any Nevada robbery involving an immediate danger would satisfy the generic, contemporary definition of robbery, while any Nevada robbery involving a future danger would satisfy the generic, contemporary definition of extortion. We therefore agree with the Ninth Circuit’s statement, in United States v. Harris, 572 F.3d 1065 (9th Cir. 2009) (per curiam), that “any conduct under Nev. Rev. Stat. § 200.380 that did not satisfy the generic definition of robbery ... would satisfy the generic definition of extortion.” Montiel-Cortes has pointed to no conduct proscribed by the Nevada statute that did not also qualify as a crime of violence under the guidelines. Thus, we conclude that Montiel-Cortes’s conviction for Nevada robbery, in violation of Nev. Rev. Stat. Ann. § 200.380, constituted a crime of violence under the guidelines, triggering the 16-level enhancement.

Although we find' the district court erred in how it arrived at the sentence, we conclude the sentence was correct and should be affirmed.

AFFIRMED.

      . See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). An Alford plea is one in which the defendant maintains his innocence but agrees to plead guilty. Id. at 37, 91 S.Ct. 160 (stating that a trial court may accept a plea of guilty "containing a protestation of innocence when ... a defendant intelligently concludes that his interests require entry of a guilty plea and the record before the judge contains strong evidence of actual guilt”).

      . U.S.S.G. § 2L1.2(b)(l)(A)(ii) (2015).

      . U.S.S.G. § 2L1.2, cmt. n.l(B)(iii) (2015). The Application Note stated in full:
      "Crime of violence” means any of the following offenses under federal, state, or local law: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced), statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.

        Id.

        . United States v. Calderon-Pena, 383 F.3d 254, 256 (5th Cir. 2004) (en banc) (citing United States v. Medina-Anicacio, 325 F.3d 638, 643 (5th Cir. 2003)).

      . 838 F.3d at 494-95 (footnotes omitted).

      . Id. at 497 (footnotes omitted).

      . See, e.g., Moncrieffe v. Holder, - U.S. -, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013):
      By "generic,” we mean the offenses must be viewed in the abstract, to see whether the state statute shares the nature of the federal offense that serves as a point of comparison. Accordingly, a state offense is a categorical match with a generic federal offense only if a conviction of the state offense " 'necessarily' involved ... facts equating to [the] generic [federal offense].” Whether the noncitizen’s actual conduct involved such facts “is quite irrelevant.”
      Because we examine what the state conviction necessarily involved, not the facts underlying the case, we must presume that the conviction "rested upon [nothing] more than the least of th[e] acts” criminalized, and then determine whether even those acts are encompassed by the generic federal offense.

        Id. (citations omitted, alteration in original).

      . U.S.S.G. § 2L1.2, cmt. n.l(B)(iii) (2015).

      . See Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990); United States v. Calderon-Pena, 383 F.3d 254, 257 (5th Cir. 2004) (en banc).

      . United States v. Tellez-Martinez, 517 F.3d 813, 815 (5th Cir. 2008) (citing United States v. Santiesteban-Hernandez, 469 F.3d 376, 379 (5th Cir. 2006), abrogated on other grounds by United States v. Rodriguez, 711 F.3d 541, 547-63 (5th Cir. 2013) (en banc)).

      . Id. (quoting Santiesteban-Hernandez, 469 F.3d at 380).

      . Id. (quoting Santiesteban-Hernandez, 469 F.3d at 380).

      . Nev. Rev. Stat. Ann. § 200.380 (2013).

      . Cal. Penal Code § 211.

      . Cal. Penal Code § 212.

      . Alvarado-Rodriguez, 269 Fed.Appx. at 429.

      . Id.; see also United States v. Tellez-Martinez, 517 F.3d 813, 815 (5th Cir. 2008) (per curiam) (holding that Cal. Penal Code § 211 does fall within the generic definition of robbery).

      . Id.

      . Id. (quoting Santiesteban-Hernandez, 469 F.3d at 380).

      . Id.

        . See People v. McGee, 38 Cal.4th 682, 42 Cal.Rptr.3d 899, 133 P.3d 1054, 1057 (2007), abrogated on other grounds by Descamps, 133 S.Ct. at 2276 (noting that Nevada robbery, on its face, did not qualify as a serious felony in California because, unlike California robbery, Nevada permits "a taking accomplished by fear of future injury”).

      . Scheidler v. Nat’l Org. for Women, Inc., 537 U.S. 393, 409-10, 123 S.Ct. 1057, 154 L.Ed.2d 991 (2003) (internal quotation marks omitted).

      . Nev. Rev. Stat. Ann. § 200.380 (emphasis added).

      . United States v. Becerril-Lopez, 541 F.3d 881, 892 n.9 (9th Cir. 2008).

      . Id. (quoting 3 W. LaFave, Substantive Criminal Law § 20.4(b) (2d ed. 2003) (footnote omitted)).

      . Id. at 1066. While the Ninth Circuit was considering whether the Nevada statute fell under the generic definition for an enumerated crime of violence under a different sentencing guideline, the two guidelines in large part include the same offenses and the guideline at issue in our case is even more expansive. Compare U.S.S.G. § 4B 1.2(a)(2) (specifying that "crime of violence” for career offenders includes "murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. 5845(a) or explosive material as defined in 18 U.S.C. 841(c)"), with U.S.S.G. § 2L1.2, cmt. l(B)(iii) (specifying that a "crime of violence" for illegal reentry purposes includes "any of the following offenses under federal, state, or local law: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, . incompetent, or coerced), statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling”).