author: BRIGHT, Circuit Judge. GRUENDER, Circuit Judge,

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Iyaun D. BELL, Defendant-Appellant.
    No. 15-3506
    United States Court of Appeals, Eighth Circuit.
    Submitted: April 14, 2016
    Filed: October 28, 2016

      Scott F: Tilsen, Asst. Public Defender, Cape Girardeau, MO, argued, for appellant.
    John N. Koester, Jr., Asst. U.S. Atty., Cape Girardeau, MO, argued (Richard G. Callahan, U.S. Atty., St. Louis, MO, on the brief), for appellee. : .
    Before GRUENDER, BRIGHT, and KELLY, Circuit Judges.
   BRIGHT, Circuit Judge.

Iyaun Bell pleaded guilty to being a felon in possession of a firearm. Prior to sentencing, the district court calculated Bell’s advisory Guidelines range based in part on the conclusion that Bell had a prior conviction that qualified as a “crime of violence” under United States Sentencing Guidelines - Manual (U.S.S.G.) § 2K2.1(a)(4)(A), a calculation which increased the advisory .Guidelines range. After the district court sentenced Bell to thirty-seven months of imprisonment, Bell filed this appeal arguing his prior conviction does not qualify as a crime of violence. We reverse and remand for resentencing.

I

On March 14, 2015, an officer initiated a vehicle stop. The officer observed the driver throw an object out of the vehicle’s window. The officer went to the area where the object landed and located a firearm with eight rounds of ammunition. The driver fled: Police eventually apprehended the driver and identified him as Bell. •

A federal grand jury indicted Bell with one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Bell pleaded guilty. Prior to sentencing, a probation officer completed a Presentence Investigation Report (PSR). The PSR calculated a base-offense level of 20 after concluding Bell had a conviction under Missouri law for second-degree robbery that qualified as a “crime of violence.” See U.S.S.G. § 2K2.1(a)(4)(A) (providing for a base-offense level of 20 if “the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of ... a crime of violence”). Bell objected. The district court rejected Bell’s objection, adopted the PSR’s recommendation, and calculated Bell’s advisory Guidelines range at 37-46 months. The district court then sentenced Bell to thirty-seven months of imprisonment. This timely appeal followed.

II

A

Bell argues his prior conviction for second-degree robbery should not have been used to increase his base-offense level because it does not qualify as a crime of violence. “We review de novo a district court’s determination that an offense qualifies as a crime of violence under the Guidelines.” United States v. Harrison, 809 F.3d 420, 425 (8th Cir. 2015). Unless a statute is divisible, i.e., defines multiple offenses some of which would qualify as crimes of violence and some of which would not, we “focus on the generic elements of the offense and not on the specific facts underlying [the defendant’s] conviction.” United States v. Gordon, 557 F.3d 623, 625 (8th Cir. 2009); see also United States v. Ossana, 638 F.3d 895, 899-900 (8th Cir. 2011) (explaining the difference between the categorical approach applicable to indivisible statutes, and the modified categorical approach applicable to divisible statutes).

Section 2K2.1 incorporates the definition of “crime of violence” used in § 4B1.2(a). See U.S.S.G. § 2K2.1 cmt. n.l. Under the relevant provision of § 4B1.2(a), the phrase “crime of violence” means “any offense [that] ... has as an element the use, attempted use, or threatened use of physical force against the person of another.” In Missouri, “[a] person commits the crime of robbery in the second degree when he forcibly steals property.” Mo. Rev. Stat. § 569.030.1. The term “forcibly steals” is further defined in a separate statute providing in relevant part that “a person ’forcibly steals,’ and thereby commits robbery, when, in the course of stealing ... he uses or threatens the immediate use of physical force upon another person.” Mo. Rev. Stat. § 569.010a). Accordingly, Missouri courts have identified § 569.030.1 as setting forth a single indivisible crime containing two generic elements: “stealing and the use of actual or threatened force.” Maclin v. State, 184 S.W.3d 103, 109 (Mo. Ct. App. 2006); see also Hughes v. State, 204 S.W.3d 376, 381 (Mo. Ct. App. 2006).

At first blush, then, it appears as though Bell’s conviction would qualify as a crime of violence: a crime of violence has as an element the use, attempted use, or threatened use of physical force against another person, and an element of second-degree robbery in Missouri is the use or threat of “physical force upon another person.” Mo. Rev. Stat. § 569.010(1).

The amount of physical force required for a person to be convicted of second-degree robbery in Missouri does not, however, “necessarily” rise to the level of physical force required for a crime of violence under the Guidelines. See Ossana, 638 F.3d at 900 (explaining a conviction must “necessarily” involve the use, attempted use,' or threatened use of physical force to qualify as a crime of violence under the Guidelines). The Supreme Court has described this as a “demanding requirement.” Shepard v. United States, 544 U.S. 13, 24, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (plurality opinion).

According to the Supreme Court, “physical force” means “violent force—that is, force capable of causing physical pain or injury to another person.” Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). Thus, the “merest touch” is insufficient, but the “degree of force necessary to inflict pain—a slap in the face, for example” is sufficient to establish “physical force.” Id. at 143, 130 S.Ct. 1265. When determining whether Missouri’s second-degree robbery statute requires the level of violent force described in Johnson, we must consider not just the language of the state statute involved, but also the Missouri courts’ interpretation of the elements of second-degree robbery. See id. at 138, 130 S.Ct. 1265 (“We are .... bound by the [state] Supreme Court’s interpretation of state law, including its determination of the elements of [the state statute.]”); see also Western Heritage Ins. Co. v. Asphalt Wizards, 795 F.3d 832, 837 (8th Cir. 2015) (“[W]e follow the decisions of Missouri’s intermediate courts when they constitute the best evidence of Missouri law.”).

Moreover, when our focus is on the generic elements of the offense—as is the case here—rather than a specific defendant’s conduct, we must consider the lowest level of conduct that may support a conviction under the statute. See Moncrieffe v. Holder, - U.S. -, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013) (“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 [would qualify as a crime of violence].”) (quoting Johnson, 559 U.S. at 137, 130 S.Ct. 1265). Although the “theoretical possibility” that a state may apply its statute to conduct falling short of violent force is not enough to disqualify a conviction, a “realistic probability” will suffice. See id. at 1685 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007)).

A Missouri court upheld a conviction for second-degree robbery in at least one situation where a defendant’s conduct appears to have fallen short of using “force capable of causing physical pain or injury to another person.” Johnson, 559 U.S. at 140, 130 S.Ct. 1265. In State v. Lewis, the Missouri Court of Appeals sustained a conviction based on the victim’s testimony that the defendant “‘bumped’ her shoulder and ‘yanked’ her purse away from her[,]” while “another witness testified that [the defendant] ‘nudged’ [the victim],” and yet a “third witness testified that there was a ‘slight’ struggle” over the purse. 466 S.W.3d 629, 631 (Mo. Ct. App. 2015). Significantly, the victim- did not testify the slight struggle caused her any pain, or that she was injured by the incident. Id. Even more significantly, the court explained the line between the amount of force sufficient to sustain a conviction for second-degree robbery, and insufficient force: “In sum, where there was no physical contact, no struggle, and no injury, [Missouri] courts have found the evidence insufficient to support a [second-degree] robbery conviction. But where one or more of those circumstances is present, a jury reasonably could find a use of force.” Id. at 632 (internal citation omitted) (emphasis added).

In other words, in Missouri a defendant can be convicted of second-degree robbery when he has physical contact with a victim but does not necessarily cause physical pain or injury. Although this is not the same as concluding the force used by such a defendant is not “capable of causing physical pain or injury,” Johnson, 559 U.S. at 140, 130 S.Ct. 1265 (emphasis added), it does lead us to conclude there is at least a “reasonable probability” Missouri could apply its statute (or already has) to conduct falling short of violent force. Moncrieffe, 133 S.Ct. at 1685. However, a second-degree robbery under Missouri law does not necessarily require use of the type of violent force described by the Supreme Court in Johnson.

Our conclusion about Missouri’s second-degree robbery statute is consistent with the Fourth Circuit’s view of common law robbery under North Carolina law. See United States v. Gardner, 823 F.3d 793, 803-04 (4th Cir. 2016) (concluding that “the minimum conduct necessary to sustain a conviction for North' Carolina common law robbery does not” meet Johnson’s violent, force requirement, relying on state court decisions finding that “pushing the victim’s hand off of a carton of cigarettes” and “pushing] the shoulder of an electronics store clerk, causing.her to fall onto shelves while the defendant took possession of a television” involved sufficient force to sustain convictions).

Thus, statutes that criminalize conduct falling short of Johnson’s “violent force” do not qualify as crimes of violence under U.S.S.G. § 2K2.1(a)(4)(A). Missouri’s second-degree robbery statute is such a statute, because it does not necessarily require the use of violent force as one of its elements.

B

The government argues Bell’s prior conviction still qualifies as a crime of violence-even if it does not necessarily involve the level of violent force described in Johnson—because “robbery” is expressly enumerated as a “crime of violence” in the commentary to the Guideline’s career of-

fender provisions. See U.S.S.G. § 4B1.2 cmt. n.l (“For purposes of this guideline ... ‘Crime of violence’ includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling.”) (emphasis added); U.S.S.G. § 2K2.1 cmt. n.l (incorporating the meaning given to the term “crime of violence” in “Application Note 1 of the Commentary to § 4B1.2”); see also Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993) (explaining that the commentary to the Guidelines “is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that [G]uideline”).

But at the time of Bell’s sentencing—as well as when he committed his instant federal conviction—the Guideline itself did not list robbery as an enumerated offense. At that time, only four crimes were expressly enumerated in § 4B1.2 as crimes of violence: “burglary of a dwelling, arson, ... extortion, [or offenses] involving the] use of explosives.” U.S.S.G. § 4B1.2(a)(2) (effective November 1, 2014). The issue, then, is whether the government can rely solely upon the commentary when it expands upon the four offenses specifically enumerated in the Guideline itself. The answer is no.

In a post-Johnson decision, the First Circuit considered whether the inclusion of an offense in the commentary to § 4B1.2, standing alone, was enough to qualify an offense as a crime of violence. See United States v. Soto-Rivera, 811 F.3d 53 (1st Cir. 2016). Defendant Soto-Rivera argued his crime of possessing a machinegun did not qualify as a crime of violence under either the Guideline’s “force” clause (the same clause at issue here), or the Guideline’s “residual clause” (identical to the ACCA residual clause the Supreme Court declared unconstitutional in Johnson). The government conceded both points, but argued Soto-Rivera’s crime still counted as a crime of violence because it was included in the commentary to § 4B1.2. Id. at 58-59.

The First Circuit disagreed, holding that a Guideline’s commentary must be consistent with the Guideline itself. Id. at 60. The court explained the commentary’s inclusion of an offense may have been consistent with the Guideline when there was a residual clause in place to give the offense a “textual hook," id. at 60, but became inconsistent in the absence of the residual clause:

With § 4B1.2(a) stripped of its residual clause, the government’s position that we may rely on Application Note 1 to uphold Soto-Rivera’s designation as a Career Offender is hopeless_ [Possession [of a machinegun] is.clearly not one of those specifically-enumerated, crimes listed in U.S.S.G. § 4B1.2(a)(2). Thus, in the absence of the residual clause, there is nothing within § 4B1.2(a)’s text to serve as an anchor for Application Note l’s inclusion of possession of a machinegun within the definition of crime of violence.

Id.

Similarly, in this case, robbery was not one of the specifically-enumerated crimes listed in the version of § 4B1.2(a)(2) which applied to Bell. Prior to Johnson, the residual clause may have served as an anchor for the commentary’s inclusion of “robbery” as a crime of violence because it “otherwise involve[d] conduct that presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2) (effective November 1, 2014). Post-Johnson, however, § 4B1.2’s commentary, standing alone, cannot serve as an independent basis for a conviction to qualify as a crime of violence because “doing so would be inconsistent with the post-Johnson text of the Guideline itself.” Soto-Rivera, 811 F.3d at 60.

By its clear language, once shorn of the residual clause § 4B1.2(a) sets forth a limited universe of specific offenses that qualify as a “crime of violence.” There is simply no mechanism or textual hook in the Guideline that allows us to import offenses not specifically listed therein into § 4B1.2(a)’s definition of “crime of violence.” With no such path available to us, doing so would be inconsistent with the text of the Guideline.

Id. We agree with the First Circuit’s reasoning in Soto-Rivera, as have other courts. In United States v. Rollins, No. 13-1731, 836 F.3d 737, 2016 WL 4587028 (7th Cir. Aug. 29, 2016), the Seventh Circuit rejected the government’s argument that the commentary to § 4B1.2 independently supports the application of the Guideline’s career offender enhancements, concluding Soto-Rivera “has it exactly right.” Id. at 743, 2016 WL 4587028, at *5.

Under § 4B1.2(a), “crime of violence” means subpart 1 (the elements clause) and subpart 2 (the four specific crimes followed by the residual clause). If the application note’s list is not interpreting one of those two subparts—and it isn’t once the residual clause drops out—then it is in effect adding to the definition. And that’s necessarily inconsistent with the text of the guideline itself.

Id. at 742, 2016 WL 4587028, at *4; see also United States v. Brown, No. 1:15CR251-1, 2016 WL 4487759, at *2-3 (M.D. N.C. Aug. 25, 2016) (following the reasoning in Soto-Rivera and concluding “the inclusion of robbery in the commentary [to § 4B1.2] is now inconsistent with the Guidelines and that portion of the commentary should be disregarded”)* Bell’s prior conviction does not qualify as a crime of violence solely because “robbery” was included in the commentary to § 4B1.2, and we therefore reject the government’s argument to the contrary.

Ill

For the reasons set forth in this opinion, we reverse and remand for resentencing consistent with this opinion.

GRUENDER, Circuit Judge,

dissenting.

The question in this case is whether Bell’s second-degree robbery conviction qualifies as a crime of violence under United States Sentencing Guidelines Manual (“U.S.S.G.”) § 2K2.1(a)(4)(A) and § 4B1.2(a)(l). In my view, it does, as Missouri second-degree robbery necessarily requires the type of violent force described by the Supreme Court in Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). Because the court reaches a contrary conclusion, I respectfully dissent.

The court relies on dicta from a single case to conclude that Missouri second-degree robbery does not necessarily require force capable of causing physical pain or injury to another person. See State v. Lewis, 466 S.W.3d 629, 632 (Mo. Ct. App. 2015). The court latches on to two sentences in State v. Lewis: “In sum, where there was no physical contact, no struggle, and no injury, [Missouri] courts have found the evidence insufficient to support a [second-degree] robbery conviction. But where one or more of those circumstances is present, a jury reasonably could find a use of force.” Id. at 632 (citations omitted) (emphasis added). The court then focuses solely on how physical contact does not meet the force requirement in Johnson. See Johnson, 559 U.S. at 140, 130 S.Ct. 1265 (“[T]he phrase ‘physical force’ means ..." force capable of causing physical pain or injury to another person.”).

In focusing on this dicta, the court loses sight of the holding of Lems. See 466 S.W.3d at 631-33. For second-degree robbery to qualify as a crime of violence, the use or threatened use of force in the course of stealing property from a person must be, at a minimum, “capable” of causing pain or injury to that person. See Johnson, 559 U.S. at 140, 130 S.Ct. 1265. Lems does not hold otherwise. To the contrary, the Missouri Court of Appeals reaffirmed the longstanding definition of second-degree robbery as “enough force to prevent or overcome ... resistance,” 466 S.W.3d at 633, and upheld Lewis’s second-degree robbery conviction when he bumped the victim from behind, momentarily struggled with her, and then yanked the purse out of her hands, id. These actions are akin to “a slap in the face” and therefore meet the Johnson standard. Johnson, 559 U.S. at 143, 130 S.Ct. 1265.

Despite the court’s opposite interpretation, Lewis does riot deal primarily with physical contact but with actions that as a whole are “capable of causing physical pain or injury to another person.” Id. at 140, 130 S.Ct. 1265. The. dicta in Lems—uncon-nected from its facts—cannot overcome the consistent line of Missouri second-degree robbery cases requiring force capable of preventing or overcoming resistance. In fact, Lewis cites to these exact cases. See State v. Childs, 257 S.W.3d 655, 660 (Mo. Ct. App. 2008) (finding that a “tussle” satisfied the elements of a robbery because “tussling” means fighting, struggling, contending, wrestling, and scuffling); State v. Tivis, 884 S.W.2d 28, 30 (Mo. Ct. App. 1994) (concluding that “yanking” a purse off a victim’s shoulder is insufficient to prove second-degree robbery without a struggle or injury); State v. Butler, 719 S.W.2d 35, 37 (Mo. Ct. App. 1986) (upholding second-degree robbery where Butler grabbed a woman’s purse and injured her finger). Lewis does not provide a “realistic probability” that Missouri will apply its second-degree robbery statute to conduct falling short of violent force: See Moncrieffe v. Holder, - U.S. -, 133 S.Ct. 1678, 1685, 185 L.Ed.2d 727 (2013) (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007)). Because a “theoretical possibility” is not enough, the district court should be affirmed. See id.

Even if Lewis could be read to allow for a second-degree robbery conviction based on conduct falling short of violent force, our decision in United States v. Roblero-Ramirez requires' that we analyze state law at the time of the conviction. 716 F.3d 1122, 1127 (8th Cir. 2013). Doing so leads to the conclusion that Missouri second-degree' robbery qualifies as a crime of violence.

In Roblero-Ramirez, we reversed a sentencing enhancement for a crime of violence because Roblero-Ramirez’s 2006 Nebraska conviction for manslaughter required only unintentional conduct, while generic federal manslaughter required intentional or reckless conduct. 716 F.3d at 1126-27. However, to reach this conclusion, we relied on the fact that when Roblero-Ramirez was convicted of manslaughter in 2006, state law did not require proof of intent. Id. While the Nebraska Supreme Court later held that manslaughter required intent, “[that] interpretation was not Nebraska law when Roblero-Ramirez was convicted in 2006.” Id. at 1127. Thus, we reversed.

Roblero-Ramirez is important because Lewis, was decided in 2015, well after Bell’s conviction for second-degree robbery in 2001. As noted above, at the time of Bell’s 2001 conviction, Missouri second-degree robbery cases required force capable of preventing or overcoming resistance. See also Brown v. Schnuck Markets, Inc., 973 S.W.2d 530, 533 n.1 (Mo. Ct. App. 1998) (“Some purse snatchings involve sufficient force to constitute robbery in the second degree; in others, there is no violence.”) (quoting Brown v. Nat’l Super Markets, Inc., 731 S.W.2d 291, 294 (Mo. Ct. App. 1987)). In fact, Lewis is the only Missouri case to include language implying mere physical contact suffices for robbery in the second degree. See 466 S.W.3d at 632. Therefore, at the time of Bell’s conviction, there was no realistic probability that Missouri applied its second-degree robbery statute to conduct falling short- of violent force. Even if Lewis stood for the proposition the court suggests, we should affirm the district court based on Missouri law at the time of Bell’s conviction.

For the foregoing reasons, I respectfully dissent.

      . Section 569.010 further states the use or threat of immediate physical force must be for certain enumerated purposes: (a) to prevent or overcome resistance to the taking of property or the retention of property immediately after the taking; or (b) to compel the property’s owner or another person “to deliver up the property or to engage in other conduct which aids in commission of the theft.” The Missouri Supreme Court has characterized these enumerated purposes as "either defeating resistance to the theft or compelling the surrender of the property.” State v. Coleman, 463 S.W.3d 353, 354 (Mo. 2015) (en banc).

      . As to the second element requiring the use of actual or threatened force, Missouri’s approved model criminal jury instruction for robbery in the second degree further explains that the use or threat of force must be for one of the purposes enumerated in Section 569.010. See MAI-CR 3d 323.04.

      .Although Johnson described the meaning of “physical force” for purposes of determining a "violent felony” under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(i), the phrase has the identical meaning for purposes of determining a "crime of violence” under the Guidelines. See, e.g,, United States v. Boose, 739 F.3d 1185, 1187 n.1 (8th Cir. 2014).

      . Although Lewis was decided in 2015, the seven Missouri cases the court summarized before reaching its conclusion were decided between 1966 and 2010. See id. Contrary to the dissent’s suggestion otherwise, the result in Lewis does not represent a change in Missouri law, but an application of existing precedent.

      . To the extent our prior decisions in United States v. Hennecke, 590 F.3d 619 (8th Cir. 2010), and United States v. Green, 157 F.3d 617 (8th Cir. 1998), suggest that a second-degree robbery under Missouri law would qualify as a crime of violence under the Guidelines, they have no import here because they were decided prior to Johnson. See United States v. Anderson, 771 F.3d 1064, 1067 (8th Cir. 2014) (explaining we are not bound by a prior panel decision when it “is cast into doubt by an intervening Supreme Court decision”).

      . Subsequent to Johnson, the Sentencing Commission amended § 4B1.2, effective August 1, 2016. The Guideline itself now expressly enumerates “robbery” as a crime of violence, as well as a number of other, pf-fenses which were previously enumerated only in the commentary.

      . The government’s reliance upon United States v. Newton, 259 F.3d 964 (8th Cir. 2001), United States v. Brown, 550 F.3d 724 (8th Cir. 2008), and United States v. Sawyer, 588 F.3d 548 (8th Cir. 2009), is of no import because those cases were all decided prior to Johnson, when the residual clause still provided a textual hook for the commentary’s inclusion of offenses not otherwise enumerated in § 4B1.2.


source: Caselaw Access Project

author: GRUENDER, Circuit Judge.

license: Public Domain

text:
    WARNER BROS. ENTERTAINMENT, INC.; Warner Bros. Consumer Products, Inc.; Turner Entertainment Co., Plaintiffs-Appellees, v. X ONE X PRODUCTIONS, doing business as X One X Movie Archives, Inc.; A.V.E.L.A., Inc., doing business as Art & Vintage Entertainment Licensing Agency; Art-Nostalgia.com, Inc.; Leo Valencia, Defendants-Appellants.
    No. 15-3728
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 21, 2016
    Filed: November 1, 2016

      Frederick J. Sperling, Jin Yan, Schiff <& Hardin, Chicago, IL, Nick E. Williamson,, Bryan & Cave, Saint Louis, MO, for Plaintiffs-Appellees.
    Michael E. Bub, Paule & Camazine, Saint Louis, .MO, Christopher Keleher, The Keleher Appellate Law Group, Chicago, IL, for Defendants-Appellants.
    Before LOKEN, GRUENDER, and BENTON, Circuit Judgés.
   GRUENDER, Circuit Judge.

X One X Productions, A.V.E.L.A., Inc., Artr-Nostálgia.com, Inc., and Leo Valencia (collectively, “AVELA”) appeal a permanent injunction prohibiting them from licensing images from the films Gone with the Wind and The Wizard of Oz, as well as the animated short films featuring cat-and-mouse duo Tom and Jerry. The district court issued the permanent injunction after granting summary judgment in favor of Warner Bros. Entertainment, Inc., Warner Bros. Consumer Products, Inc., and Turner Entertainment Co. (collectively, “Warner”) on their claim that AVELA infringed their trademarks and engaged in unfair competition by licensing iconic pictures and phrases from the films. For the reasons discussed below, we affirm.

I. BACKGROUND

Warner holds registered copyrights in the films Gone with the Wind, The Wizard of Oz, and Tom and Jerry cartoons, and it has asserted both registered and common law trademarks in the images, characters, words, names, phrases, and symbols related to these films. AVELA obtained restored versions of movie posters and lobby cards for the films, and from these publicity materials it extracted images of famous characters, including Dorothy, Tin Man, Cowardly Lion, and Scarecrow from The Wizard of Oz, Scarlett O’Hara and Rhett Butler from Gone with the Wind, and Tom and Jerry. AVELA licenses these images for use oh a wide variety of consumer products, from shirts, lunch boxes, and playing cards to three-dimensional figurines, water globes, and action figures. Warner filed suit against AVELA in 2006, asserting copyright and trademark infringement claims under the Copyright Act, Lanham Act, and state law. The case is now in its second appeal before this court.

The first appeal concerned Warner’s copyright claims. On March 20, 2009, the district court granted Warner summary judgment on its copyright infringement claims and entered a permanent injunction prohibiting AVELA from using any of the publicity material images in any way except for exact duplication of publicity materials. in the public domain. AVELA appealed, and this court affirmed in part and reversed in part, upholding summary judgment and most of the injunction. Warner Bros. Entm’t, Inc. v. X One X Productions, et al., 644 F.3d 584, 604 (8th Cir. 2011). In that decision, we divided Appellants’ products into three categories: (1) products reproducing “one image from an item of publicity material as an identical two-dimensional image”; (2) products “that each juxtapose an image extracted from an item of publicity material with another image extracted from elsewhere in the publicity materials, or with a printed phrase from the book underlying the subject film, to create a new composite work”; and (3) products “that each extend an image extracted from an item of publicity material into three dimensions.” Warner Bros., 644 F.3d at 602-03. We determined that while products in category one did not constitute copyright infringement, products falling into categories two and three did constitute copyright infringement. Id. We vacated the permanent injunction with respect to products in the first category and remanded the case to the district court. Id. at 604.

On remand, Warner requested statutory damages for its copyright claims, requested attorneys’ fees, and moved for summary judgment on its trademark infringement and unfair competition claims. In its final order, the district court granted statutory damages under the Copyright Act in the amount of $10,000 per infringed copyright (257 copyrights for a total award of $2,570,000). The district court also granted summary judgment on both the trademark infringement and unfair competition claims, finding that Warner holds registered trademarks in words'and phrases from the films and common law trademarks in the film characters. It issued a permanent injunction prohibiting AVELA from licensing any images or phrases'from the films or cartoons, with the exception of exact reproductions of publicity-materials in the public domain. In a separate order, the district court granted Warner’s motion for attorneys’ fees but ordered supplemental briefing regarding the amount. The amount of attorneys’ fees remains undetermined. AVELA appeals the entry of the attorneys’ fees, statutory damages, summary judgment, and permanent injunction.

II. DISCUSSION

Although we do not have jurisdiction to hear the portion of the appeal relating to attorneys’ fees, we have jurisdiction under 28 U.S.C. § 1291 to hear the remainder of the appeal. Because the amount of attorneys’ fees remains unresolved, the order granting attorneys’ fees is not final. See Dieser v. Cont’l Cas. Co., 440 F.3d 920, 924 (8th Cir. 2006) (“Because the August 2004 order expressly left unresolved amounts of additional statutory penalties, pre-judgment interest and attorneys’ fees and costs, and the March 2005 order called for further submissions from the parties to determine the method of calculation ... these orders could not reasonably be believed to be final within the meaning of § 1291.”). However, under the Supreme Court’s “bright-line rule ... that a decision on the merits is a ‘final decision’ for purposes of § 1291 whether or not there remains for adjudication a request for attorneys’ fees attributable to the case,” Budinich v. Becton Dickinson & Co., 486 U.S. 196, 202-03, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988), we have jurisdiction to hear the remainder of the appeal. See Maristuen v. Nat’l States Ins. Co., 57 F.3d 673, 677-78 (8th Cir. 1995) (explaining that where a district court issues two separate judgments,. one of which leaves attorneys’ fees undetermined and one of which addresses the merits, Budinich controls and the court has jurisdiction over the merits appeal).

A. Statutory Damages

AVELA argues that the district court violated its Seventh Amendment right to a jury trial by awarding statutory damages under the Copyright Act. AVELA alternatively contends that the amount of statutory damages does not comport with due process.

1. Seventh Amendment

AVELA raises for the first time on appeal the claim that the district court’s failure to submit the question of damages to the jury violated the Seventh Amendment. We do not ordinarily “address issues that a party raises for the first time on appeal and .failed to raise in the district court.” Int’l Bhd. of Elec. Workers, Local Union No. 545 v. Hope Elec. Corp., 380 F.3d 1084, 1096 (8th Cir. 2004). Although AVELA made a jury demand in its answer, it did not request a jury in its memorandum in opposition to Warner’s damages request or otherwise object to the district court determining damages without a jury. Indeed, AVELA specifically suggested a damages amount to the district court in the event it granted Warner’s request. Moreover, AVELA’s motion to amend the judgment challenged the district court’s decision as controverting the evidence and as inconsistent with this court’s decision in the first appeal, not as violating the Seventh Amendment. Claiming that the amount of damages does not conform to statutory authority and a superior court’s instruction is wholly distinct from claiming that the district court inappropriately structured the underlying proceeding. As a result, AVELA’s Seventh Amendment claim is not properly before us, and we decline to consider it.

2. Due Process

AVELA alternatively argues that the $2,570,000 statutory damages award is disproportionate to the offense, insufficiently reasoned, and in violation of this court’s ruling in the previous appeal. AVELA fails to establish that this is the case.

We review damages awarded under the Copyright Act for clear error. Pfanenstiel Architects, Inc. v. Chouteau Petroleum Co., 978 F.2d 430, 432 (8th Cir. 1992). “The Supreme Court long ago declared that damages awarded pursuant to a statute violate due process only if they are ‘so severe and oppressive as to be wholly dis-proportioned to the offense and obviously unreasonable.’ ” Capitol Records, Inc. v. Thomas-Rasset, 692 F.3d 899, 907 (8th Cir. 2012) (quoting St. Louis, I. M. & S. Ry. Co. v. Williams, 251 U.S. 63, 67, 40 S.Ct. 71, 64 L.Ed. 139 (1919)).

The district court’s award of $10,000 per infringed work is not clearly erroneous. In Capitol Records, this court upheld a statutory damages award of $9,250 per infringed work (for a total of $222,000) as consistent with due process, emphasizing the intentionally discretionary nature of statutory damages. 692 F.3d at 907. Although “[t]he absolute amount of the award, not just the amount per violation, is relevant to whether the award is so severe and oppressive as to be wholly dis-proportioned to the offense and obviously unreasonable,” id. at 910 (quoting Williams, 251 U.S. at 67, 40 S.Ct. 71), the total award of $2.57 million in the present case is not obviously unreasonable. As the district court explained, “This case has had a tortured and laborious discovery history,” in which AVELA’s intransigence rendered' calculating actual damages impossible due to missing or inaccurate records. Importantly, the district court noted that over the many years of litigation (now a decade), AVELA did not cease the infringing activity at any time. That the district court therefore considered a substantial damages award necessary to deter future infringement and provide sufficient restitution to the copyright holder is not clearly erroneous. See F.W. Woolworth Co. v. Contemporary Arts, 344 U.S. 228, 232-33, 73 S.Ct. 222, 97 L.Ed. 276 (1952). Additionally, while the total award in this case far exceeds the total award in Capitol Records, the defendant in that case was an individual sharing music files on a peer-to-peer network. Capitol Records, 692 F.3d at 901. AVELA’s activities are far more extensive, and the amount awarded per-infringed work is well within the statutory range of $750 to $30,000. 17 U.S.C. § 504(c)(1). As a result, the award in this case is not obviously unreasonable.

Finally, the statutory damages award does-not contravene this court’s decision in the prior appeal. The distinctions we drew between categories of activities that do and do not constitute copyright infringement, see Warner Bros., 644 F.3d at 602-604, do not bear on how a court determines the appropriate amount of statutory damages for those activities that did constitute infringement. The Copyright Act structures awards of statutory damages on the basis of each copyrighted work infringed, not on the basis of each instance of infringement. See 17 U.S.C. § 504(c)(1) (“[T]he copyright owner may elect ... to recover ... an award of ..statutory damages -for all infringements involved in the action, with respect to any one work ... in a sum of not less than $750 or more than $30,000 as the court considers just.”). We affirmed in the prior appeal that AVELA infringed each of Warner’s copyrights in The Wizard of Oz, Gone With the Wind,, and Tom and Jerry cartoons in at least some respect. See Warner Bros., 644 F.3d at 602-04. Accordingly, the district court did not contravene this court’s decision by awarding damages on a per work basis.

B. Trademark Infringement and Unfair Competition

The court reviews the district court’s order granting summary judgment de novo. Seymour v. City of Des Moines, 519 F.3d 790, 795 (8th Cir. 2008); Omni Behavioral Health v. Miller, 285 F.3d 646, 650 (8th Cir. 2002). “Summary judgment is appropriate when the evidence viewed in the light most favorable to the nonmoving party presents no genuine issue of material fact and the moving party is entitled to judgment as a matter -of law.” Coates v. Powell, 639 F.3d 471, 475 (8th Cir. 2011).

1. Judicial Admission and Judicial Estoppel

AVELA argues that Warner made a judicial admission that it would not need to pursue its trademark and unfair competition claims if it prevailed on its copyright claims. AVELA also maintains that judicial estoppel applies to this statement. After the district court granted summary judgment on Warner’s copyright claims, Warner stated the following in its memorandum in support of its claim for damages and request for entry of final judgment:

If the grant of summary judgment on the copyright claim is appealed and subsequently affirmed by the appellate court, Plaintiffs will not need to pursue the other pending claims in the district court. A final judgment on the copyright claim in this case could prevent both this court and the appellate court from having to decide the remaining claims in Plaintiffs’ complaint.

This statement does not constitute a judicial admission. A judicial admission is a formal admission before a court that “acts as a substitute for evidence in that it does away with the need for evidence in regard to the subject matter of the judicial admission.” State Farm Mut. Auto. Ins. Co. v. Worthington, 405 F.2d 683, 686 (8th Cir. 1968). For that reason, “judicial admissions are binding for the.purpose of the case in which the admissions are made including appeals.” State Farm, 405 F.2d at 686. Warner’s .statement did not admit anything, much less anything of evidentia-ry value. Rather, it made a conditional prediction that if the district court rendered final judgment on its copyright claims and the Eighth Circuit affirmed that judgment, then' it could prevent the courts from having to consider the trademark claims because Warner would not need to pursue them to obtain the relief it wanted. This does not admit anything or add evidentiary • value. Accordingly, the doctrine of judicial admissions does not bar Warner’s trademark claims.

Likewise, judicial estoppel does not apply. Judicial estoppel “generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase.” New Hampshire v. Maine, 532 U.S. 742, 749, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001) (quoting Pegram v. Herdrich, 530 U.S. 211, 227 n.8, 120 S.Ct. 2143, 147 L.Ed.2d 164 (2000)). Judicial es-toppel is based on three factors. “First, a party’s later position must be ‘clearly inconsistent’ with its earlier position.” New Hampshire, 532 U.S. at 750, 121 S.Ct. 1808 (quoting United States v. Hook, 195 F.3d 299, 306 (7th Cir. 1999)). Second, the party must have persuaded the court to accept the earlier position, and the court would appear to have been misled if the party is allowed to make the contradictory argument. New Hampshire, 532 U.S. at 750, 121 S.Ct. 1808. Finally, “[a] third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.” Id. at 751, 121 S.Ct. 1808.

Warner’s statement does not fulfill these criteria. First, Warner’s present position is not clearly inconsistent with its prior statement. Since Warner did not receive all the relief it wanted under copyright law, see Warner, 644 F.3d at 604 (reversing in part), it is not acting inconsistently by pursuing the rest of the relief it wanted under trademark law. Second, Warner’s statement is not an argument it persuaded the district court to accept. The statement supplies a possible ancillary benefit of judgment in Warner’s favor and by the statement’s own terms depends on the actions-of a court other than the one to which the statement was made. The district court could hardly have relied upon such a statement; indeed, the lower court’s resulting order does not even mention it. Finally, Warner derives no unfair advantage and imparts no unfair detriment by pursuing its trademark claims. AVELA may not, like Warner’s trademark .claims, but allowing them .to proceed does nqt treat AVELA unfairly. On the contrary, dismissing ..Warner’s trademark claims based on the statement in question would treat Warner unfairly by forcing it to. adhere to a conditional prediction when the necessary condition did not occur. Accordingly, judicial estoppel does not apply.

2. Dastar Corp. v. Twentieth . Century Fox Film Corp.

AVELA next contends that Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 123 S.Ct. 2041, 156 L.Ed.2d 18 (2003), prevents Warner’s trademark claims. In Dastar, the Supreme Court addressed a claim for trademark infringement under § 43(a) of the Lanham Act, which creates liability for the use of, inter alia, “any false designation of origin.” Id. at 25, 30, 123 S.Ct. 2041 n.4 (quoting 15 U.S.C. § 1125(a)(1)). Fox owned the copyright in the television series “Crusade in Europe,” which was based on General Eisenhower’s book of the same name. Fox allowed the copyright to expire, but it later reacquired the television rights in Eisenhower’s book, including the exclusive right to distribute the television series on video. Dastar released a video set called “World War II Campaigns in Europe,” which incorporated the content of the Crusade television series with minimal modifications. Denying Fox’s trademark claims, the Supreme Court determined that the term “origin” as used in § 43(a) “refers to the producer of the tangible goods that are offered for sale, and not to the author of any idea, concept, or communication embodied in those goods.... To hold otherwise would be akin to finding that § 43(a) created a species of perpetual patent and copyright....” Dastar, 539 U.S. at 37, 123 S.Ct. 2041.

Warner’s asserted trademarks in the characters from the films and cartoons do not run afoul of Dastar. The district court found and AVELA did not dispute that Warner holds registered trademarks in iconic phrases and names from the films and has used the character images for trademark purposes on a host of consumer goods for many years. Images Of the film actors in character and signature phrases from the films are not communications, concepts, or ideas that the consumer goods embody as' Dastar defines these terms. Products marketed under AVELA’s licenses employ iconic film characters’ pictures to associate the products with Warner’s films, not to copy the film itself. Accordingly, these are trademark claims, not disguised copyright claims, and Dastar does not bar them.

3. Functionality and Fair. Use

AVELA further contends that Warner cannot maintain a viable trademark claim because either (1) the key elements of the trademark are functional, or (2) AVELA’s use of the trademarks constitutes fair use.: However, AVELA has waived these defenses.

Fed. R. Civ. P. 8(c) provides that a party must affirmatively plead affirmative defenses. While failure to plead an affirmative defense is not necessarily fatal in all circumstances, the affirmative de-fensé miist at least be raised’before the trial court. United States ex rel. Kraxberger v. Kansas City Power and Light Co., 756 F.3d 1075, 1082 (8th Cir. 2014) (explaining that “technical failure to comply with Rule 8(c) is not fatal” when the defense “is raised in the trial court in a manner that does not result in unfair surprise”) (quotations omitted) (emphasis added). Trademark fair use is an affirmative defense. 15 U.S.C. § 1115(b)(4); KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S. 111, 118, 125 S.Ct. 542, 160 L.Ed.2d 440 (2004). Likewise, functionality is an affirmative defense. 15 U.S.C. § 1115(b)(8). However, AVELA did not raise either functionality or trademark fair use at all in the trial court. While AVELA did assert copyright fair use as an affirmative defense, trademark fair use and copyright fair use are distinct defenses for distinct claims. These defenses derive from wholly separate statutory provisions, which are constructed differently and formulated specifically for each respective subject area. Compare 15 U.S.C. § 1115(b)(4) (trademark fair use under the Lanham Act) with 17 Ü.S.C. § 107 (copyright fair use under the Copyright Act). Neither functionality nor trademark fair use appear in any of AVELA’s pleadings or in its motion for summary judgment. Accordingly, AVELA has waived these defenses.

I. Likelihood of Confusion

AVELA also contends that summary judgment was erroneously granted because “the likelihood of confusion factors are quintessential jury questions.” On the contrary, district courts can and have decided likelihood of confusion by both bench trials and summary judgment. See, e.g., Kemp v. Bumble Bee Seafoods, Inc., 398 F.3d 1049, 1053-54 (8th Cir. 2005) (reviewing district court’s application of likelihood of confusion factors at bench trial for clear error); Davis v. Walt Disney Co., 430 F.3d 901, 902-03 (8th Cir. 2005) (reviewing district court’s determination of likelihood of confusion on summary judgment). Accordingly, the likelihood of confusion does not always require a jury trial:

Moreover, on the merits, the district court did not err by rendering summary judgment on the likelihood of confusion. Although this court reviews likelihood of confusion on summary judgment de novo, “[f]actual disputes regarding a single factor are insufficient to support the reversal of summary judgment unless they tilt the entire balance in favor of such a finding.” Davis, 430 F.3d at 903 (quoting Duluth News-Tribune v. Mesabi Publ’g Co., 84 F.3d 1093, 1096 (8th Cir. 1996)). Likelihood of confusion turns on six factors:

1) the strength of the plaintiffs mark; 2) the similarity between the plaintiffs and defendant’s marks; 3) the degree to which the allegedly infringing product competes with the plaintiffs goods; 4) the alleged infringer’s intent to confuse the public; 5) the degree of care reasonably expected of potential customers, and 6) evidence of actual confusion.

Davis, 430 F.3d at 903 (citing SquirtCo v. Seveur-Up Co., 628 F.2d 1086, 1091 (8th Cir. 1980)). AVELA challenges the strength of the marks and actual confusion. AVELA’s argument regarding strength of the marks is largely self-defeating, asserting that the film titles and images are descriptive because they “immediately alert the purchaser to the nature of the product, i.e., that it is from” Warner’s films. This aptly describes a strong trademark, immediately associating the product with Warner.' Additionally, “actual confusion is not essential to a finding of trademark infringement,” but it is a kind of proof a court may consider. Squirt-Co., 628 F.2d at 1091. Given the strength of the other factors the district court considered to weigh in favor of Warner, the lack of evidence of actual confusion does not even approach “tilt[ing] the entire balance in favor” of reversal. Davis, 430 F.3dat 903. As a result, the district court did not err by- rendering summary judgment.

5. Permanent Injunction

Next, AVELA contends that the permanent injunction violates Federal Rules of Civil Procedure 52(a)(2) and 65(d). AVELA raises this issue for the first time on appeal despite an extensive opportunity to raise the issue before the district court. The district court entered its original judgment on March 31, 2014. Warner filed a motion to amend the judgment, and in its June 2014 memorandum in opposition, AVELA proposed an alternative amended judgment that provided injunctive relief with the same generality as the district court’s final order in October 2015. Accordingly, AVELA not only was well-aware of the injunction’s generality for. over a year and failed to challenge it, but also would have agreed to a judgment with the same failings it now tries to challenge. Therefore, in accordance with International Brotherhood of Electrical Workers, 380 F.3d at 1096 (8th Cir. 2004), we will “not address issues that a party raises for the first time on appeal and failed to raise in the district court.” Id.

Alternatively, AVELA contends that Warner did not show success on the merits or a threat of irreparable harm. AVELA bases the former argument solely on its arguments on the merits of the trademark claims and the possibility that this court may agree with them. Since we addressed these arguments above and did not agree with them, Warner has shown success on the merits. AVELA’s argument on the threat of irreparable harm consists only of the undeveloped statement that no evidence shows a threat of irreparable harm. However, a finding that likelihood of confusion exists results in a presumption that a threat of irreparable harm exists. See Calvin Klein Cosmetics Corp. v. Lenox Laboratories, Inc., 815 F.2d 500, 505 (8th Cir. 1987); Black Hills Jewelry Mfg. Co. v. Gold Rush, Inc., 633 F.2d 746, 753-54 (8th Cir. 1980) (holding that a finding of “tendency to deceive”—synonymous with “likely to confuse” under 15 U.S.C. § 1125(a)— demonstrates irreparable harm). As a result, we reject AVELA’s arguments against the permanent injunction.

6. Consistency with Prior Appeal

Finally, AVELA argues that the district court acted inconsistently with this court’s ruling in the prior appeal by granting relief on the trademark and unfair competition claims without considering the category of products we deemed not to infringe Warner’s copyrights. This contention conflates copyright law with trademark law. Copyright law and trademark law are distinct from each other, as AVE-LA admits in its Dastar argument. As a result, an action that does not infringe a copyrights may still infringe a trademark. Therefore, whether the products in question infringed Warner’s copyrights has no bearing on whether the products infringe Warner’s trademarks. Even if they did, the final injunction made an exception for the reproduction of publicity materials in the public domain in their entirety and without alteration. Accordingly, the district court’s order is not inconsistent with our prior holding.

III. CONCLUSION

For the foregoing reasons, we affirm the district court’s grant of statutory damages, summary judgment, and permanent injunction.

      . The Honorable Henry E. Autrey, United States District Court for the Eastern District of Missouri.

      . Although AVELA contends that the district court erred by failing to cite comparable damages awards from other cases, nothing in the applicable precedent requires the district court .to justify its ruling in this manner. See, e.g., Capitol Records, 692 F.3d at 906-10 (analyzing whether an award of statutory damages comported with due process without considering awards in other cases).

      . The district court found that the marks are strong given the films’ popularity over sixty years, that AVELA engages in direct competition using identical marks, and that consumers cannot distinguish between Warner’s products and AVELA’s products by taldng reasonable care. AVELA has not raised anything else to dispute these findings.


author: ARNOLD, Circuit Judge.

text:
    Diane BOLDERSON, Plaintiff-Appellant, v. CITY OF WENTZVILLE, MISSOURI, Defendant-Appellee.
    No. 15-3846
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 20, 2016
    Filed: November 1, 2016

      Kevin J. Dolley, Mai% Joseph Obermeyer, LAW OFFICES OF KEVIN J. DOL-LEY, Saint Louis, MO, Ryan C. Mielcarek, MIELCAREK LAW FIRM, Brentwood, MO, for Plaintiff-Appellant.
    Matthew J. Gist, Remington B. Smith, ENSZ & JESTER, Kansas City, MO, for Defendant-Appellee.
    Before WOLLMAN, ARNOLD, and KELLY, Circuit Judges.
   ARNOLD, Circuit Judge.

This case involves an employment dispute between the City of Wentzville, Missouri, and its former building commissioner, Diane Bolderson. Bolderson’s employment proceeded without incident for about twelve years, but significant difficulties arose when she criticized changes to the city’s building code, requested an advisory opinion on the bidding process for purchasing computer equipment, and asked for an audit of the city’s procurement department. Difficulties came to a boil when Bolderson criticized the city’s handling of an aquatic-center project. She sent a memo voicing her concerns to the city administrator, the mayor, her immediate supervisor, and others. About two weeks later, Bold-erson forwarded a formal report to the mayor, city attorney, and others, accusing the city’s board of aldermen, the city administrator, and the city’s procurement director of fraud and acting with conflicts of interest. The city administrator fired her four days after she submitted the report. He gave Bolderson a list of reasons for her termination, which included her disparagement of city officials, criticism of the board’s decisions, insubordination by communicating directly with the may- or, baseless accusations of fraud, misuse of work time, and disruption of city operations.

Bolderson sued the city under 42 U.S.C. § 1983, alleging, as relevant here, that it fired her in retaliation for engaging in protected speech. The district court granted summary judgment to the city, holding that, though Bolderson spoke on a matter of public concern, she did so in her official capacity as building commissioner and not as a private citizen. See Garcetti v. Ceballos, 547 U.S. 410, 424, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). The district court also concluded that, even if Bolderson had spoken as a private citizen, her claims would have failed the Pickering balancing test. See Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cnty., Ill., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). The district court noted alternatively that the city would be able to demonstrate that it would have terminated Bold-erson anyway, even if she had not engaged in the allegedly protected speech. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). Bolderson appeals the district court’s decision to grant summary judgment to the city.

We can affirm the grant of summary judgment for any reason supported by the record, including a reason different from the one that the district court gave, Bishop v. Glazier, 723 F.3d 957, 961 (8th Cir. 2013), and we conclude that the present record simply cannot support a conclusion that the city is liable. A municipality cannot be held liable under § 1983 solely because it employs a tortfeasor, Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978): Liability for a constitutional violation will attach to a municipality only if the violation resulted from an official municipal policy, an unofficial custom, or a deliberately indifferent failure to train or supervise an official or employee. Atkinson v. City of Mountain View, Mo., 709 F.3d 1201, 1214 (8th Cir. 2013). Bolderson maintains that the city is liable because her harm stemmed from an official municipal policy or an unofficial municipal custom.

An action can constitute official municipal policy only if the decisionmaker in question possesses final authority to establish municipal policy with respect to the action ordered. Hess v. Ables, 714 F.3d 1048, 1054 (8th Cir. 2013). We look to applicable state and local law to determine where final policymaking authority rests. Davison v. City of Minneapolis, Minn., 490 F.3d 648, 662 n.9 (8th Cir. 2007). A single decision by a municipal authority can in some circumstances constitute official policy, see Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986), and Bolderson argues that the city administrator’s decision to fire her necessarily constituted official city policy because the city administrator is the highest-ranking official over employment matters under applicable state and local law.

We disagree. The applicable Wentzville ordinance shows unquestionably that the city administrator is not the final municipal authority for present purposes: The ordinance provides that “[t]he City Administrator shall be the chief administrative assistant to the Mayor, and shall have general superintending control of the administration and management of the government business, officers and employees of the City, subject to the direction and supervision of the Mayor.” Wentzville, Mo., Code § 120.180. That the city administrator is deemed an “administrative assistant to the Mayor” who acts “subject to the direction and supervision of the Mayor” shows that it is the mayor—not the city administrator—who has ultimate authority to hire and fire employees.

We note further that we have adopted the distinction between final policymakers and final ■ decisionmakers that a Supreme Court plurality drew in Pemb-aur. The fact that “a particular official— even a policymaking official—has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of that discretion.” Damson, 490 F.3d at 660. So possessing “discretion to hire and fire does not necessarily include responsibility for establishing related policy.” Id. Therefore, the city administrator’s power to hire and fire employees, assuming that power existed here, could not transform him into a policymaker. .

Bolderson also contends that the mayor’s delegation of authority to the city administrator to address Bolderson’s criticisms and the mayor’s alleged tacit approval of the city administrator’s decision to terminate her establishes municipal liability. We disagree again, because, as a plurality of the Supreme Court stated in City of St. Louis v. Praprotnik, 485 U.S. 112, 130, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988), “Simply going along with discretionary decisions made by one’s subordinates ... is not a delegation to them of the authority to make policy.” See also Williams v. Butler, 863 F.2d 1398, 1402 (8th Cir. 1988) (en banc). Bolderson therefore has not shown that the mayor’s delegation of authority or tacit approval of the city administrator’s decision was the moving force behind her termination. See Bd. of Cnty. Comm’rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). In fact, Bolderson says that the city administrator was the sole decisionmaker with regard to her termination. Without a showing that the may- or played a more active role in Bolderson’s termination, she cannot demonstrate that the city is liable; otherwise the city could be liable solely as an employer of an alleged tortfeasor. ■ ■

Bolderson further maintains that the mayor and city administrator each violated the city’s anti-fraud policy in the way that they handled her- report. We cannot see how officials’ deviation from established policy itself constitutes official municipal policy.- If it- did,- the concept of official municipal policy would be turned on its head.

We also reject Bolderson’s contention that an unofficial municipal custom led to a violation of her constitutional rights. To trigger municipal liability based on unofficial municipal custom, the custom must be so pervasive among non-policy-making employees of the municipality that it effectively has the force of law. Ware v. Jackson Cnty., Mo., 150 F.3d 873, 880 (8th Cir. 1998). The custom must be demonstrated by a continuing, widespread, and persistent pattern of unconstitutional misconduct. Id. An unconstitutional custom or usage cannot arise from a single act. McGautha v. Jackson Cnty., Mo., Collections Dep’t, 36 F.3d 53, 57 (8th Cir. 1994).

Bolderson maintains, finally, that her harm stemmed from an unofficial municipal “custom of discouraging reports of misconduct or corruption by city officials.” It is difficult to see exactly how Bolderson can rely on such a custom to support her claim, unless she is insinuating that the custom is proof that she was retaliated against for exercising her First Amendment rights. The inference she asks us to draw is weak at best. The fact that an employer does not like complaints is not much evidence that it fires people for making them. Bolderson’s evidence that there was such a policy, moreover, is similarly weak. She says that the city did not intend to investigate her complaint, but this single act could not show a continuing, widespread, and persistent pattern of unconstitutional misconduct. Bolderson tangentially refers to other evidence of the custom that she claims victimized her, but the materials cited reveal only unsubstantiated suspicions. Bolderson is obligated to meet proof with proof at the summary-judgment stage, Conseco Life Ins. Co. v. Williams, 620 F.3d 902, 909 (8th Cir. 2010), and the- material offered falls short of demonstrating a reasonable dispute about the presence of a continuing, widespread, and persistent pattern of unconstitutional misconduct that led to her termination. No reasonable jury could conclude otherwise. See Rohr v. Reliance Bank, 826 F.3d 1046, 1052 (8th Cir. 2016).

Affirmed..

      . The Honorable Carol E. Jackson, United States District Judge for the Eastern District of Missouri.


author: BENTON, Circuit Judge

text:
    Gary HUGHES; Arash Yarpezeshkan; David Mazgaj, Plaintiffs-Appellants Edward G. Robinson, Plaintiff James Louis Sparks; Jerry Northrup, .. Plaintiffs-Appellants Daniel Ray French, Plaintiff Jeffrey V. Stimpson; Roger L. Lee; Krisanne M. Duhaime; Gerald R. Duhaime; Susan M. Dumbaugh, Plaintiffs-Appellants v. CITY OF CEDAR RAPIDS, IOWA; Gatso USA, Inc.; Defendants-Appellees
    No. 15-2703
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 20, 2016
    Filed: November 2, 2016

      Counsel who presented argument on behalf of the appellant was Claire M. Diallo, of Princeton Junction, NJ. The following attorney(s) appeared on the appellant brief; James C. Larew, of Iowa City, IA.
    Counsel who presented argument on behalf of the appellee was Elizabeth Jacobi, of Cedar Rapids, IA. The following attorney(s) appeared on the appellee brief; Paul David Burns, of Iowa City, IA., Laura M, Hyer, of Cedar Rapids, IA.
    Before LOKEN, BEAM, and BENTON, Circuit Judges.
   BENTON, Circuit Judge

A group of drivers sued the City of Cedar Rapids and Gatso USA, Inc., arguing that the Automatic Traffic Enforcement (ATE) system violates federal and state law. The district court dismissed the drivers’ claims. Having jurisdiction under 28 U.S.C. § 1291, this court affirms in part, reverses in part, and remands.

I.

In 2011, the City, by ordinance, authorized an ATE system. Cedar Rapids, Iowa Mun. Code § 61.138. The City contracted with Gatso to install and operate the system. When a vehicle speeds or runs a red light, an ATE camera takes an image. Gatso then mails a Notice of Violation to the vehicle owner. The drivers sued in Iowa state court, arguing that the ATE system violates their right to procedural due process, their fundamental right, to travel, Iowa Code § 602.6101, and causes unjust enrichment for- the City and Gatso. They removed the case to federal court and moved to dismiss.

The district court dismissed for lack of Article III standing: Gary Hughes and David L. Mazgaj’s claims, and the procedural-due-process claims of Edward G. Robinson, James L. Sparks, Jeffrey L. Northrup, Arash C. Yarpezeshkan, Daniel R. French, and Jeffrey V. Stimpson. For the drivers with standing, the district court dismissed for failure to state a claim. On appeal, the drivers contend that the district court erred by dismissing their complaint and not remanding to state court those claims dismissed for lack of standing.

II.

According to the City and Gatso, drivers Hughes, Mazgaj, and Roger L. Lee lack Article III standing for their claims. This court reviews standing determinations de novo. Plymouth Cty., Iowa v. Merscorp, Inc., 774 F.3d 1155, 1158-59 (8th Cir. 2014).

Article III of the Constitution limits the jurisdiction of federal courts to cases and controversies. U.S. Const, art. Ill, § 2. To establish Article III standing, a plaintiff must show 1) an injury in fact, 2) a sufficient causal connection between the injury and the conduct complained of, and 3) a likelihood that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The party invoking federal jurisdiction has the burden to establish these elements. Id.

A.

The City and Gatso object to Hughes’s Article III standing, claiming he has no injury in fact. Hughes asserts a “fear that, as a Vehicle Owner regularly using the roads in Cedar Rapids, [he] may be subject to ... civil liability resulting from the operation of the City’s fixed or mobile ATE system’s cameras.” He has not received a Notice of Violation. A person threatened with law enforcement may challenge the law “under circumstances that render the threatened enforcement sufficiently imminent.” Susan B. Anthony List v. Driehaus, — U.S. -, 134 S.Ct. 2334, 2342, 189 L.Ed.2d 246 (2014). The person need not demonstrate it is “literally certain that the harms they identify will come about.” Clapper v. Amnesty Int’l USA, — U.S. -, 133 S.Ct. 1138, 1150 n.5, 185 L.Ed.2d 264 (2013). Standing may be based on a “substantial risk” of harm that prompts plaintiffs to “reasonably incur costs to mitigate or avoid that harm.” Id.

Hughes does not allege that he has incurred any costs to mitigate or avoid the threat of ATE enforcement, or that the threat of an ATE citation is sufficiently imminent. Hughes does not have standing.

B.

The City and Gatso claim Mazgaj has no injury in fact. His wife received the Notice of Violation, but Mazgaj was driving the car (which she owned). He asserts third-party standing on behalf of his wife. “[T]here may be circumstances where it is necessary to grant a third-party standing to assert the rights of another.” Kowalski v. Tesmer, 543 U.S. 125, 129-30, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004). For example, a plaintiff may show “a close relationship with the person who possesses the right” and “a hindrance to the possessor’s ability to protect [her] own interests.” Id. at 130, 125 S.Ct. 564.

Mazgaj fails to show a hindrance to his wife’s ability to protect her own interests. He does not have third-party standing. Mazgaj believes he need not assert third-party standing. But then his claim is just a “generally available grievance ... seeking relief that no more directly and tangibly benefits him than it does the public at large.” Hollingsworth v. Perry, - U.S. -, 133 S.Ct. 2652, 2662, 186 L.Ed.2d 768 (2013). Mazgaj does not state an Article III case or controversy.

C.

According to the City and Gatso, Lee’s claims are not ripe for adjudication. “[T]he ripeness inquiry requires the examination of both ‘the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.’ ” Pub. Water Supply Dist. No. 10 v. City of Peculiar, 345 F.3d 570, 572-73 (8th Cir. 2003), quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). Fitness depends on whether a case needs further factual development. Id. Hardship requires that the plaintiff “has sustained or is immediately in danger of sustaining some direct injury as the result of the challenged statute or official conduct.” Id. The plaintiff “must necessarily satisfy both prongs to at least a minimal degree.” Neb. Pub. Power Dist. v. MidAmerican Energy Co., 234 F.3d 1032, 1039 (8th Cir. 2000).

Lee satisfies both prongs. He was found guilty of violating the ordinance; no further factual development is necessary. Lee has the hardship of citation and the cost of litigation. Lee’s claims are ripe.

D.

Hughes and Mazgaj reason that if they lack Article III standing, the district court must remand their claims to state court. See 28 U.S.C. § 1447(c) (“If at .any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.”). The City and Gatso counter that the district court exercised supplemental jurisdiction and properly dismissed the claims for lack of Article III standing.

A court may not exercise supplemental jurisdiction over a claim if the claimant lacks Article III standing. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 351-52, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) (“What we have never done is ... permit a federal court to exercise supplemental jurisdiction over a claim that does not itself satisfy those elements of the Article III inquiry, such as constitutional standing....”). If a case is removed from state court, those claims lacking Article III standing shall be remanded. See Shaw v. Marriott Int’l, Inc., 605 F.3d 1039, 1044 (D.C. Cir. 2010) (remanding- some claims where after removal, some plaintiffs, but not all, lacked standing); Lee v. American Nat’l Ins. Co., 260 F.3d 997, 1006 (9th Cir. 2001) (same).

Wisconsin Department of Corrections v. Schacht, 524 U.S. 381, 118 S.Ct. 2047, 141 L.Ed.2d 364 (1998), is inapplicable here. There, plaintiff argued that if the “district court lacks subject matter jurisdiction over any claim, then every claim, i.e., the entire case, must be remanded to the state court.” Id. at 391, 118 S.Ct. 2047 (emphasis in original). The Court disagreed, holding that remand of an entire case was improper where the court had jurisdiction over some related claims. Id. Here, the drivers do not argue that every claim in the case should be remanded; they seek remand of only those claims that lack Article III standing.

The district court never had jurisdiction of Hughes and Mazgaj’s claims. See DaimlerChrysler, 547 U.S. at 351-52, 126 S.Ct. 1854. Their claims should be remanded to state court. See Wallace v. ConAgra Foods, Inc., 747 F.3d 1025, 1032 (8th Cir. 2014) (finding that where a state case is removed to federal court but lacks Article III standing, the proper remedy is remand to state court).

III.

A.

The district court found that drivers Robinson, Sparks, Northrup, Yarpezesh-kan, French, and Stimpson lack standing to bring a procedural-due-process claim, because they chose not to participate in the process they attack. The district court invoked Shavitz v. City of High Point, 270 F.Supp.2d 702, 711 (M.D.N.C. 2003): where the plaintiff has not “availed himself of the process Defendants have provided, Plaintiff has not suffered a concrete and particularized injury as a result of allegedly deficient process and therefore has no standing to challenge it.”

Unfortunately, Shavitz confuses the injury-in-fact requirement with the stating-a-valid-claim requirement. Determining the adequacy of the process is generally a merits question, even if a plaintiff does not use the process provided. See Cochran v. Illinois State Highway Auth., 828 F.3d 597, 600-01 (7th Cir. 2016) (addressing, at the merits stage, the argument “the hearing to which [plaintiff] was entitled, but did not request, would not have provided him with a meaningful opportunity to be heard.”). See also Sevin v. Parish of Jefferson, 632 F.Supp.2d 586, 599 (E.D. La 2008) (“[T]his Court would be remiss if it incorporated an assessment of the. adequacy, of ... adjudication procedures, or the plaintiffs failure to take advantage of those procedures, into its standing analysis.”). Otherwise, in order to have standing, a plaintiff would always have to show the inadequacy of the due process— the central claim.

The district court here addressed the substance of the due process argument as part of the standing analysis. The allegations that the procedure is inadequate— even if drivers shun it—sufficiently establishes an injury in fact for Article III standing.

These six drivers also satisfy the causation and redressability requirements. The drivers’ alleged injury is inadequate process directly traceable to the City and Gatso. If the court awards damages, their claims are redressed. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 174, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). Drivers Robinson, Sparks, Northrup, Yarpezeshkan, French, and Stimpson have standing to bring procedural-due-process claims.

B.

To demonstrate a procedural-due-proeess violation, the drivers .must show a deprivation of life, liberty, or property without sufficient process. Clark v. Kansas City Mo. Sch. Dist., 375 F.3d 698, 701 (8th Cir. 2004). To determine the kind of process due, courts balance three factors:

1) the nature and weight of the private interest affected by the challenged official action; 2) the risk of an erroneous deprivation of such interest as a result of the summary procedures used; and 3) the governmental function involved and state interests served by such procedures, as well as the administrative and fiscal burdens, if any, that would result from the substitute procedures sought.

Booker v. City of Saint Paul, 762 F.3d 730, 734 (8th Cir. 2014), citing Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). This court reviews de novo the grant of a motion to dismiss for failure to state a claim, taking all facts in the complaint as true. Sparkman Learning Ctr. v. Ark. Dept. of Human Servs., 775 F.3d 993, 997 (8th Cir. 2014).

The drivers’ claim fails at the second factor, “the risk'of an erroneous deprivation ... as a result of the summary procedures used.” Booker, 762 F.3d at 734. The drivers attack the administrative process as a “rubber stamp” and a “sham of a process.”- A court need not accept conclusory allegations. See Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (holding that a pleading is insufficient if it contains mere labels and conclusions or tenders naked assertions devoid of further factual enhancement). See also Hughes v. City of Cedar Rapids, 112 F.Supp.3d 817, 847-48 (N.D. Iowa. 2015) (noting the two ways, plus appeals, to challenge an ATE citation).

The drivers also allege that the process is inadequate because some cameras are not calibrated to Iowa Department of Transportation (IDOT) .standards. The drivers claim that the IDOT standards are “a standard applicable to their claims.” The drivers cite no authority that a state agency’s regulations are the standard for procedural due process. See Williams v. Nix, 1 F.3d 712 (8th Cir. 1993) (“It is clear, however, that, without more, the mere violation of a state law or rule does not constitute a federal due process violation.”). The district court correctly ruled that “the ATE Program may comply with procedural due process even if it is not compliant with IDOT regulations,” The drivers do not .state a violation of their procedural-due-process rights,.

IV.

The drivers next focus on substantive due process. “To establish a substantive due process -violation, [plaintiff] must demonstrate that a fundamental right was violated and that the conduct shocks the conscience.” Akins v. Epperly, 588 F.3d 1178, 1183 (8th Cir. 2009), citing Moran v. Clarke, 296 F.3d 638, 651 (8th Cir. 2002) (Bye, J., concurring).

A.

The right to travel is a fundamental right. United States v. Guest, 383 U.S. 745, 757, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966). It has three different components: 1) the right of a citizen of one state to enter and leave another state, 2) the' right -to be .a welcome visitor, not an unfriendly alien, when temporarily present in another state, and 3) for those travelers who become permanent residents, the right to be treated like. other citizens of that state. Saenz v. Roe, 526 U.S. 489, 500-01, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999). The first two components are at issue here.

1.

The first component protects the “right to go from one place to another.” Id. at 500, 119 S.Ct. 1518. If a statute does not burden entry into or exit from the state, then it does not directly impair the right to free interstate movement. Id. See Edwards v. California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119 (1941) (holding unconstitutional a state law making it illegal for a person to bring out-of-state, indigent persons into the state)., The right to travel does not prevent toll roads, speed limits, or travel-related taxes. See Matsuo v. United States, 586 F.3d 1180, 1183 (9th Cir. 2009) (“[N]ot everything that deters travel burdens the fundamental right to travel. States and the federal government would otherwise find it quite hard to tax airports, hotels, moving companies, or anything else involved - in interstate movement.”).

The drivers allege that the ATE system infringes their right to travel because it is a “speed trap” affecting the choices of interstate travelers. A state may enforce conventional traffic regulations— even if they deter travel—without violating the fundamental right to travel. See Lutz v. City of York, 899 F.2d 255, 270 n.41 (3d Cir. 1990).

2.

The Privileges and Immunities Clause is the basis for the second component of the right to travel, “bar[ring] discrimination against citizens of other States where there is no substantial reason for the discrimination beyond the mere fact that they are citizens of other States.” Saenz, 526 U.S. at 502, 119 S.Ct. 1518. “[A] purely intrastate restriction does not implicate the right of interstate travel, even if it is applied intentionally against travelers from other States, unless it is applied dis-criminatorily against them.” Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 277, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993) (emphasis in original). For the Clause to apply, the discriminatory treatment must burden out-of-state residents. United Bldg. & Constr. Trades Council v. Mayor & Council of Camden, 465 U.S. 208, 218, 104 S.Ct. 1020, 79 L.Ed.2d 249 (1984) (“As an initial matter, the court must decide whether the ordinance burdens one of those privileges and immunities protécted by the Clause.”).

The drivers fail to allege discriminatory enforcement against out-of-state drivers. They state that the ATE system issues more citations to out-of-state drivers than to in-state drivers. However, they do not allege that the ATE system issues citations discriminatorily based on whether a vehicle has in-state or out-of-state registration. See Bray, 506 U.S. at 277, 113 S.Ct. 753. The drivers note that the ATE system allows out-of-state residents to contest, by mail, a Notice of Violation. This convenience for non-residents does not burden the right to travel. See United Bldg., 465 U.S. at 218, 104 S.Ct. 1020. The drivers do not allege a violation of the right to travel under the Privileges' and Immunities Clause.

Thé drivers do try to state a violation of substantive due process, claiming that the challenged conduct shocks the conscience. See Akins, 588 F.3d at 1183. To the contrary, the City and Gats o’s acts are not “so disproportionate to the need presented, and ... so inspired by malice or sadism rather than a merely careless or unwise excess of zeal that it amounted to .brutal and inhumane abuse of official power literally shocking to the conscience.” Christiansen v. W. Branch Cmty. Sch. Dist., 674 F.3d 927, 937 (8th Cir. 2012). The City and Gatso’s actions do not otherwise offend judicial notions of fairness.

B.

The drivers posit an Equal Protection Clause violation of their fundamental right to travel. “[E]qual protection analysis requires strict scrutiny of a legislative classification only when the classification impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class.” Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976). The drivers admit that they are not members of a suspect class, and as discussed, the ordinance does not burden their fundamental right to travel. When no fundamental right or suspect class is at issue, a challenged law must pass the rational basis test. Reno v. Flores, 507 U.S. 292, 301, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993).

The drivers attack the rational basis of the ordinance. In rational basis review, “legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). “It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.” Williamson v. Lee Optical, 348 U.S. 483, 487-88, 75 S.Ct. 461, 99 L.Ed. 563, (1955).

The ordinance passes rational basis. The City could rationally conclude that the ATE system would reduce the number of people violating traffic laws. See Idris v. City of Chicago, 552 F.3d 564, 566 (7th Cir. 2009) (A “system that simultaneously raises money and improves compliance with traffic laws has much to recommend and it cannot be called unconstitutionally whimsical”); Hughes, 112 F.Supp.3d at 842^43 (rejecting an equal-protection challenge to distinctions based on licence-plate location and types of vehicles in the database). There is no Equal Protection Clause violation here.

C.

The drivers emphasize pending state-court litigation about the ATE system. In March 2015, IDOT ruled that some traffic cameras in the City should be removed. IDOT found that some cameras were “beyond the area of concern” or placed too close to a speed-reduction sign. Evaluation of Cedar Rapids Automated Traffic Enft Report, Iowa Dep’t of Transp., (2015) available at http://www.iowadot. gov/ATEReports/pdfs/Final% 20Cedar% 20Rapids% 20ATE% 20Response.pdf. The City’s appeal is still pending in Iowa state court. City of Muscatine v. Iowa Dep’t of Trans., 05771 CVCV049988 (Polk Cty. Dist. Ct. filed June 10, 2015).

According to the drivers, IDOT’s ruling shows that the ordinance does not have a rational basis. Even if the ordinance did violate IDOT regulations, a “violation of state law does not by itself constitute a violation of the Federal Constitution.” Nordlinger v. Hahn, 505 U.S. 1, 25, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992). The district court properly determined that the ordinance would survive rational basis even if it did violate IDOT rules.

The drivers allege that the violation of IDOT rules demonstrates a claim under the Iowa Constitution. Becaüse the City’s appeal of the IDOT’s ruling is still pending, this claim is not ripe. See Missourians for Fiscal Accountability v. Klahr, 830 F.3d 789 (8th Cir. 2016) (explaining that ripeness prevents “judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties”) (citation omitted). The status of the IDOT ruling is central to a claim based on it. The district court should dismiss without prejudice the drivers’ state-law claims based on the alleged violation of IDOT rules. See Idris, 552 F.3d at 567 (dismissing without prejudice plaintiffs’ state law claim that a Chicago ATE ordinance is in conflict with a state statute).

V.

The drivers believe the City and Gatso have been unjustly enriched. An unjust enrichment claim requires: “(1) defendant was enriched by the receipt of a benefit; (2) the enrichment was at the expense of the plaintiff; and (3) it is unjust to allow the defendant to retain the benefit under the circumstances.” State ex rel. Palmer v. Unisys Corp., 637 N.W.2d 142, 154-55 (Iowa 2001). The drivers think that Gatso was unjustly enriched by an unlawful delegation of police power from the City. The drivers’ only authority, Spurbeck v. Statton, 252 Iowa 279, 106 N.W.2d 660, 665-66 (1960), is inapposite because the statute there did' not improperly delegate police power. A municipality “can ... delegate its right to perform certain acts and duties necessary to transact and carry out its powers. These delegable acts typically involve functions that require little judgment or discretion,” Warren Cty. Bd. of Health v. Warren Cty. Bd. of Supervisors, 654 N.W.2d 910, 913-14 (Iowa 2002). Subject to later development of the law, the Iowa Supreme Court has allowed ATE systems to operate with private contractors,-thus implicitly rejecting the delegation challenge. See City of Sioux City v. Jacobsma, 862 N.W.2d 335, 337 (Iowa 2015) (allowing- Sioux City to operate an ATE system with a private contract). Cf. City of Davenport v. Seymour, 755 N.W.2d 533, 544 (Iowa 2008) (recognizing that “a number of statutory and constitutional questions have been raised to ATE ordinances that are not presented in this appeal,” including whether they “improperly delegate] government authority to a private vendor.”).

The drivers also argue that the ordinance violates Iowa Code § 602.6101, again as an improper delegation of police power, by making Gatso a court. Section 602.6101 establishes the jurisdiction of the Iowa District Court as “exclusive, general, and original jurisdiction of all actions ... except in eases where exclusive or concurrent jurisdiction is conferred upon some other court, tribunal, or administrative body.” The drivers’ argument fails for the same reason as their claim for unjust enrichment; there is no improper delegation (or in statutory terms, conferral) of power upon Gatso. See Jacobsma, 862 N.W.2d at 337. Cf. Seymour, 755 N.W.2d at 644.

VI.

The drivers object that the district court considered matters outside of the pleadings, effectively converting a motion to dismiss into a motion for summary judgment. Fed. R. Civ. P. 12(d) (“If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.”). District courts may consider “those materials that are necessarily embraced by the pleadings.” Schriener v. Quicken Loans, Inc., 774 F.3d 442, 444 (8th Cir. 2014). Those materials include “documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleadings.” Kushner v. Beverly Enters., Inc., 317 F.3d 820 (8th Cir. 2003). Courts may look outside the pleadings to determine jurisdiction. See Osborn v. United States, 918 F.2d 724, 728 n.4 (8th Cir. 1990).

The drivers list three items outside the pleadings: 1) checks and payment receipts for the drivers’ various citations, 2) a letter from a City police officer dismissing' Susan M. Dumbaugh’s citation, and 3) a certified statement from a City police captain verifying drivers’ citation documents. The drivers do not dispute that the first two items were used to resolve jurisdictional questions, which means that the district court could consider them. See Osborn, 918 F.2d at 728 n.4. As for the third item, the district court did not rely on the certified statement.

According to the drivers, the district court made some findings that rejected their allegations or failed to .draw all reasonable inferences in their favor. First, while the district court did find that the City (not Gatso) mails the Notices of Violation, the drivers do not articulate the materiality of this mistake. Cont’l Holdings, Inc. v. Crown Holdings Inc., 672 F.3d 567, 575 (8th Cir. 2012) (“A district court’s ruling should be reversed if the error affects the substantial rights of a party.”). Second, contrary to the drivers’ view, the district court properly found that the ordinance provides two ways to contest the Notice of Violation—a legal conclusion based on the plain text of the ordinance.

The judgment is affirmed in part and reversed in part. Hughes and Mazgaj’s claims are remanded for remand to state court. The drivers’ state law claims based on IDOT standards are remanded for dismissal without prejudice. The judgment is otherwise affirmed, and the case remanded.

      . The drivers assert they have a right to intrastate travel under the Iowa Constitution. They cite no Iowa law supporting this claim. Cf. Scheckel v. State, 838 N.W.2d 870, 2013 WL 4504919, *2 (Iowa Ct. App. 2013) (unpublished table opinion) (stating that “the right to travel does not give an individual the right to travel at their discretion with disregard to the traffic laws”); State v. Hartog, 440 N.W.2d 852, 856 (Iowa 1989) (holding mandatory seat belt law did not infringe upon a fundamental right); Veach v. Iowa Dep’t of Transp., 374 N.W.2d 248, 249 (Iowa 1985) (holding that a regulation denying work permits to individuals whose drivers' licenses had been suspended did not implicate a .fundamental right).

      . The drivers did not plead a violation of Iowa Code § 364.22.


author: PER CURIAM.

text:
    Hugues Michard MARTINE, also known as Martine Hughes, Petitioner v. Loretta E. LYNCH, Attorney General of United States, Respondent
    No. 15-3117
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 20, 2016
    Filed: November 2, 2016

      Counsel who represented the petitioner was Raymond Reza Bolourtchi of Ladue, MO.
    Counsel who represented the respondent was Carmel Aileen Morgan, USDOJ, OIL, Washington, DC.

      Before WOLLMAN, ARNOLD, and KELLY, Circuit Judges.
   PER CURIAM.

Hugues Martine was ordered deported in November 2014 following a criminal conviction. The Immigration Judge (IJ) found, and the Board of Immigration Appeals (BIÁ) affirmed, that Martine was not eligible for relief under the Convention Against .Torture (CAT). Martine filed the instant petition for review, arguing that the BIA erred by affirming the IJ, who applied an incorrect legal standard to his request for relief under the CAT. We dismiss Mar-tine’s petition for review.

I. Background

In 1993, when he was six or seven years old, Martine and his family fled Haiti and were admitted into the United States as refugees. Martine and his family were granted refugee status as a result of Haitian officials’ persecution of Martine’s father, who worked as a judge under President Aristide’s regime. The Aristide regime, which supported the Fanmi Lava-las party, was overthrown'in 1991, putting Martine’s family and others affiliated with the Fanmi Lavalas party in danger. Men broke into the Martine family’s home, attacking Martine’s mother arid - demanding the whereabouts of Martine’s father. After that incident, Martine’s family moved frequently to avoid danger, eventually arriving in the United States. Martine adjusted his status to Lawful Permanent Resident in 1994.

In May 2010, Martine fled from officers in his vehicle, eventually colliding with another vehicle and injuring its occupants. Police found 54 individual baggies containing what was later determined to be 8.68 grams of cocaine base in Martine’s car. A jury convicted Martine of, among other things, second degree drug trafficking. He was sentenced to a ten-year term of imprisonment on that offense. Immigration officials initiated removal proceedings upon Martine’s release from custody. Mar-tine applied for relief under the CAT in December 2014, and is therefore subject to the REAL ID Act of 2005.

II. Discussion

We lack “jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section ... 1227(a) (2) (A)(iii) ” of Title 8 of the' United States Code. 8 U.S.C. § 1252(a)(2)(C) (codifying the Immigration and Nationality Act (INA)). Under 8 U.S.C. § 1227(a)(2)(A)(iii), “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.” Here, Mar-tine was convicted of second degree drug trafficking, an aggravated felony for purposes of the INA. 8 U.S.C. § 1101(a)(43)(B) (“The term ‘aggravated felony means ... illicit trafficking in a controlled substance.... ”); Moncrieffe v. Holder, - U.S. -, 133 S.Ct. 1678, 1683, 185 L.Ed.2d 727 (2013) (defining “drug trafficking crime”. and noting that state offenses may qualify),

However, we are not precluded from hearing “constitutional claims or questions of law” timely raised in a petition for review. 8 U.S.C. § 1252(a)(2)(D). Martine asserts that the BIA erred in affirming the IJ because the IJ applied the wrong legal standard when it failed to grant Martine a presumption that he had a well-founded fear of future persecution based on past persecution. Martine claims that because he was originally admitted as a refugee—which necessarily required a showing of past persecution—he was entitled to the presumption of a well-founded fear of persecution upon his return to Haiti.

Martine conflates two distinct statutory provisions and their associated tests: establishing asylum eligibility, 8 C.F.R. § 1208.13(b)(1), and qualifying for CAT relief, 8 C.F.R. § 1208.16(c). An applicant for asylum “who has been found to have established ... past persecution shall also be presumed to have a well-founded fear of persecution on the basis of the original claim.” 8 C.F.R. § 1208.13(b)(1). However, Martine is not seeking asylum; his sole claim is for protection under the CAT, which requires an applicant to “establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). “Torture” is separately defined and is not synonymous with “persecution.” Compare 8 C.F.R. § 1208.18(a)(1) (defining torture in part as “any act by which -severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining ... a confession_”) with 8 U.S.C. § 1101(a)(42) (explaining that to qualify for asylum an applicant must- establish past or future persecution on account of membership in a protected group). A showing of past persecution does not establish a presumption under the law regarding the likelihood of future torture upon removal. Neither the BIA nor the IJ applied the wrong legal standard in Martine’s case.

Martine also argues that the IJ and BIA “erroneously concluded] that [his] ease mirrored those facts presented in Cherichel v. Holder, 591 F.3d 1002 (8th Cir. 2010),” and Matter of J-E-, 23 I. & N. Dec. 291 (BIA 2002). To the extent this argument is a “challenge to the agency’s factual determinations,” we lack jurisdiction. Lovan v. Holder, 574 F.3d 990, 998 (8th Cir. 2009) (citation omitted)' (“[Petitioner] asserts' that ‘undisputed facts’ compel a contrary finding ‘as a matter of law.’ This is nothing more than a challenge to the agency’s factual determinations, which are beyond our jurisdiction to review under 8 U.S.C. § 1252(a)(2)(D).”); see Gallimore v. Holder, 715 F.3d 687, 690 (8th Cir. 2013) (citing Brikova v. Holder, 699 F.3d 1005, 1008 (8th Cir. 2012)) (finding arguments regarding factual disputes and weighing evidence outside the court’s jurisdiction).

To the extent Martine argues that the IJ and the BIA improperly relied on these cases when considering his request for relief ünder the CAT, we disagree. To obtain CAT relief, Martine had to “establish that it is more likely than not that he [ ].would be tortured if removed to [Haiti].” 8 C.F.R. § 1208.16(c)(2). As noted above, and notwithstanding Martine’s assertion to the contrary, the fact of Mar-tine’s past persecution does not equate to a presumption of a likelihood ■ of future torture. Similarly, it does not eliminate Cheri-chel’s mandate that “a petitioner may not obtain relief under the CAT unless he can show that his-prospective torturer has the goal or intent of inflicting severe physical or mental suffering or pain upon him” for an enumerated purpose. 591 F.3d at 1013. When considering Martine’s CAT claim, the immigration courts were required to determine the likelihood that Martine would suffer future torture if removed to Haiti, and they did not err in citing or relying on relevant' case law, including Cherichel or Matter of J-E-.

The petition for review is dismissed.