author: JERRY E. SMITH, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Juan ALAY, also known as Juan Alay-Mendez, Defendant-Appellant.
    No. 15-41125
    United States Court of Appeals, Fifth Circuit.
    FILED March 3, 2017

      Lauretta Drake Bahry, Assistant U.S. Attorney, Renata Ann Gowie, Assistant U.S. Attorney, Carmen Castillo Mitchell, Assistant U.S. Attorney, U.S. Attorney’s Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.
    Marjorie A. Meyers, Federal Public Defender, Michael Lance Herman, Assistant Federal Public Defender, H. Michael Soko-low, Assistant Federal Public Defender, Federal Public Defender’s Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.
    Juan Alay, Pro Se.
    Before SMITH, CLEMENT, and SOUTHWICK, Circuit Judges.
   JERRY E. SMITH, Circuit Judge:

Juan Alay was convicted of illegal reentry. The district court applied a crime-of-violence (“COV”) enhancement under the sentencing guidelines based on Alay’s conviction of rape in California. Alay appeals the sentence by challenging the enhancement, asserting that conviction under the California statute is possible with only a negligent mens rea, while application of a COV enhancement requires a more culpable mental state, thus rendering the COV enhancement impermissible under the categorical approach in Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). We affirm.

I.

Alay pleaded guilty of illegal reentry in violation of 8 U.S.C. § 1326. The presen-tence report (“PSR”) recommended a 16-level enhancement. Alay had been deported for a conviction of rape under California Penal Code § 261(a)(3). The probation officer deemed that to be a COV under U.S. Sentencing Guidelines (“U.S.S.G.”) § 2L1.2(b)(l)(A)(ii) and recommended the enhancement, because a person convicted of illegal reentry faces a 16-level enhancement if the crime for which he was deported was a COV.

The guidelines define a COV to be

murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses ..., statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.

Id. cmt. n.l(B)(iii). Further, the guidelines •’ define “forcible sex offense!]” as an of-" fense “where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced.” Id.

Section 261(a)(3) defines rape as “an act of sexual intercourse accomplished with a person not the spouse of the perpetrator ... [wjhere a person is prevented from resisting by intoxicating or anesthetic sub-.’ stance ... and this condition was known, or reasonably should have been known, by the accused.” Alay objected to the enhancement, stating that a conviction under Section 261(a)(3) does not qualify as a COV because it can be committed with a negligent belief that the victim could resist, making it broader than the definition of “forcible sex offense” within the notes to U.S.S.G. § 2L1.2. At sentencing, Alay repeated the objection, for substantially the same reasons. The district court overruled the objection and sentenced him to 41 months, a within-guidelines sentence. Without the COV enhancement, the guideline range would have been 15-21 months.

II.

Because Alay objected to the COV enhancement both when it first appeared in the PSR and at sentencing, he has preserved the objection, and we review his sentence de novo. United States v. Hernandez-Rodriguez, 788 F.3d 193, 195 (5th Cir. 2015). In addition, “[w]e review the district court’s characterization of a prior offense as a [COV] de novo.” United States v. Flores-Gallo, 625 F.3d 819, 821 (5th Cir. 2010) (per curiam).

We take a “categorical” approach in “determining whether a prior conviction qualifies as a [COV] under the Guidelines.” United States v. Rodriguez, 711 F.3d 541, 549 (5th Cir. 2013) (en banc). “Under the categorical approach, the analysis is grounded in the elements of the statute of conviction rather than a defendant’s specific conduct.” Id.

[O]ur application of [the] categorical approach to a prior state conviction proceeds in the following four steps: First, we identify the undefined offense category that triggers the federal sentencing enhancement. We then evaluate whether the meaning of that offense category is clear from the language of the enhancement at issue or its applicable commentary. If not, we proceed to step two, and determine whether that undefined offense category is an offense category defined at common law, or an offense category that is not defined at common law. Third, if the offense category is a non-common-law offense category, then we derive its “generic, contemporary meaning” from its common usage as stated in legal and other well-accepted dictionaries. Fourth, we look to the elements of the state statute of conviction and evaluate whether those elements comport with the generic meaning of the enumerated offense category.

Id. at 552-53 (internal footnotes omitted).

A necessary corollary is that there is no need to examine anything beyond the plain meaning of the guidelines if the offense category is defined in the guidelines. Commentaries to the guidelines, including the notes, are binding on us unless they are plainly inconsistent with the guidelines. United States v. Vargas-Duran, 356 F.3d 598, 602 (5th Cir. 2004) (en banc). If the defendant was convicted under a statute matching the offense as the generic offense defined in the guidelines, or if the statute of conviction was narrower than in the guidelines, a COV enhancement is appropriate.

For this COV enhancement to be appropriate, then, the elements of Alay’s conviction under Section 261(a)(3) must match the offense categories in Section 2L1.2(b)(l)(A)(ii) and its accompanying notes. Specifically, to uphold the sentence, we would need to conclude that the California conviction qualifies as a “forcible sex offense” under the guidelines. It does.

The- guidelines commentary defines a forcible sex offense to include any offense “where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced.” U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). On its face, that definition is clear enough that we can apply its plain meaning, as the first step of Rodriguez dictates. See Rodriguez, 711 F.3d at 552-53. Forcible sex offenses are what the guidelines say they are. See United States v. Herrera, 647 F.3d 172, 178 (5th Cir. 2011). Nothing in Rodriguez changes Herrera.

Having concluded that forcible sex offense is defined, all that remains is to examine whether the elements of conviction under Section 261(a)(3) match the definition of forcible sex offense under the guidelines. They do.

The guideline definition of forcible sex offense is broad and includes no requirement of mens rea. See U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). Specifically, the guidelines define a forcible sex offense as an offense “where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced.” Id. Notably absent from this definition is any mention of a required mental state; indeed, the plain meaning of the guidelines is that a forcible sex offense is any offense that fits the definition delineated above, regardless of mens rea.

A defendant is guilty of rape under Section 261(a)(3) only if “a person is prevented from resisting' by intoxicating or anesthetic substance.” The statute permits convictions only where consent was not given or where it was given but was invalid because of intoxication — in other words, where consent was “involuntary, incompetent, or coerced,” as under the guidelines. See U.S.S.G. § 2L1.2 cmt. n.l(B)(iii). The other requirements of Section 261(a)(3) — that the victim not be the perpetrator’s wife and that the perpetrator either knew, or should have known, that the victim could not resist — serve only to narrow the California offense beyond what the guidelines command. The elements match, and Alay’s conviction qualifies as a COV.

Alay presents three theories why we should vary from this approach; we reject them all. First, he references Leocal v. Ashcroft, 543 U.S. 1, 11, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), in which the Court construed the “crime of violence” definition in 18 U.S.C. § 16 to exclude crimes committed with a negligent mental state. But there is no necessary inconsistency between the Supreme Court’s saying that a COV cannot generally be committed with a negligent mens rea and having a specific definition of a specific type of COV that states that a particular COV can be committed with any sort of mental state. Moreover, the Court in Leocal gave no indication that it intended its definition of COV in 18 U.S.C. § 16 to be a general definition of COV within the entirety of the United States Code and sentencing guidelines. There is no obvious reason why a definition of COV in one statute should override a more specific definition in the' guidelines, and Alay does not offer us one.

Second, Alay asks us to consider United States v. Dominguez-Ochoa, 386 F.3d 639 (5th Cir. 2004), and United States v. Ocampo-Cruz, 561 Fed.Appx. 361 (5th Cir. 2014), in which we excluded crimes that have a mens rea of negligence from being considered COVs. This comparison fails because the terms being construed in those cases were undefined in the guidelines.

Dominguez-Ochoa dealt with manslaughter, and whether involuntary manslaughter counted as a COV, but there was no guideline definition of “manslaughter.” Dominguez-Ochoa, 386 F.3d at 643 (“As discussed, [the relevant portion of the Guidelines] does not define manslaughter (or involuntary-manslaughter).”). Because there was no definition, the panel looked to the generic, contemporary meaning of manslaughter to determine whether involuntary manslaughter qualified. Id. at 644-46.

Similarly, Ocampo-Cruz examined whether a North Carolina statute criminalizing assault with a deadly weapon inflicting, serious injury constituted aggravated assault for purposes of a COV enhancement. Ocampo-Cruz, 561 Fed.Appx. at 362. Again, “aggravated assault” went undefined in the guidelines, so the panel looked to the Model Penal Code to determine the generic, contemporary meaning. Id. If the guidelines did not define forcible sex offense, these cases would be relevant. But because they do, there is no reason to look to outside sources to undermine their plain meaning.

So too with Alay’s final contention — that we should look to the Model Penal Code’s definition of rape by intoxication. This runs into the same problem that the argument based on Dominguez-Ochoa and Ocampo-Cruz does — why, when the guidelines are so clear, should we gainsay- them? True enough, Section 213.1(l)(b) of the Model Penal Code requires that the defendant in a rape-by-intoxication case have administered the intoxicant to the victim. The guidelines, however, plainly do not require that — but only that “consent to the conduct [be] not given or ... not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced.” U.S.S.G. § 2L1.2 n.1(B)(iii). Where an offense is defined so clearly, Rodriguez man: dates that we follow the plain meaning as defined in the guidelines, precisely to avoid this sort of definitional morass. See Rodriguez, 711 F.3d at 552-53.

The judgment of sentence is AFFIRMED.

      . Neither party contests that Alay’s previous conviction was under this specific portion of the California Penal Code.

      . See, e.g., United States v. Santiesteban-Hernandez, 469 F.3d 376, 378 (5th Cir. 2006), abrogated on other grounds by Rodriguez, 711 F.3d at 554-55.

      . The parties also dispute whether Alay’s conviction could fit within the guidelines' catchall provision for other non-specific COVs: "any offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 2L1.2 cmt. n.l(B)(iii). Because the California conviction qualifies as a forcible sex offense, we do not address this second issue.


source: Caselaw Access Project

author: PATRICK E. HIGGINBOTHAM, Circuit Judge:

license: Public Domain

text:
    Rolando RUIZ, Petitioner-Appellant v. Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee
    No. 17-70006
    United States Court of Appeals, Fifth Circuit.
    FILED March 5, 2017

      Lee Benjamin Kovarsky, Esq., University of Maryland Law School, Baltimore, MD, Burke Morley Butler, Texas Defender Service, Houston, TX, for Petitioner-Appellant.
    George A. d’Hemecourt, Assistant Attorney General, Office of the Attorney General for the State of Texas, Austin, TX, for Respondent-Appellee.
    Before HIGGINBOTHAM, DENNIS, and ELROD, Circuit Judges.
   PATRICK E. HIGGINBOTHAM, Circuit Judge:

Rolando Ruiz murdered Theresa Rodriguez in 1992; he has been sentenced to death by lethal injection, and his execution is now set for March 7, 2017. At this late hour, Ruiz seeks a certificate of appealability to allow review of the rejection by the United States District Court of his most recent federal petition for a writ of habeas corpus. He contends that the district court erred by affording deference to the state court’s determination of federal law — specifically, by applying the deferential standard of the Antiterrorism and Effective Death Penalty Act. We conclude that, even under a de novo standard of review, no “jurist[ ] of reason could disagree with the district court’s resolution of his constitutional claims or ... conclude the issues presented are adequate to deserve encouragement to proceed further.” We deny his motion for a COÁ.

I.

We will not recount again the circumstances surrounding Ruiz’s crime, his conviction, and his subsequent actions for relief on direct and collateral review. Facing execution in nineteen days, Ruiz filed his third petition in the Texas state courts, arguing, among other grounds, that he was entitled to relief because of the allegedly unconstitutional combination of (1) a significant delay in time between the date of his conviction and the date of his execution and (2) the conditions of his confinement, including multiple prior last-minute stays and withdrawn execution dates he faced during that delay' — “a constitutional challenge against [the] carrying out of a death sentence on the grounds that the years on death row make the ultimate punishment cruel and unusual.” Five days before his scheduled execution, the Texas Court of Appeal “dismiss[ed] Ruiz’s ... application under Article 11.071, § 5” of the Texas Code of Criminal Procedure and withdrew its stay of execution.

After the Texas Court of Criminal Appeal’s dismissal, Ruiz waited three months before filing his petition for a writ of habe-as corpus in the United States District Court on February 10, 2017, less than a month before his newly set execution date of March 7, 2017. The district court dismissed that petition and denied COA. Ruiz now seeks a COA, a prerequisite to his right to appeal dismissal of his petition.

II.

Ruiz’s arguments focus upon the level of review his claims received in the district court. Given the present posture of the case, we can cut to the chase and assume arguendo that the state court’s rejection of Ruiz’s petition is due no deference and that we ought review his federal claims de novo. This, because under de novo review, we are persuaded that we cannot grant a COA. In deciding whether Ruiz has made the requisite “substantial showing of the denial of a constitutional right,” we engage in “a threshold inquiry into the underlying merits of the claims” without engaging in an ultimate merits analysis and “without full consideration of the factual or legal bases adduced in support of [Ruiz’s] claims.”

The required substantial showing of the denial of a constitutional right must have some footing in the law. And we are not aware of any court that has found an Eighth Amendment violation occasioned by years on death row while a prisoner pursues his direct and collateral appeals. Our own jurisprudence on the subject is well-known: “[t]here are compelling justifications for the delay between conviction and the execution of a death sentence.... [Prisoners who have] benefited from this careful and meticulous process cannot [later] complain that the expensive and laborious process of habeas corpus appeals which exists to protect [them] violate[s] other of [their] rights.” Ruiz has not directed us to a single case that has held otherwise. Under a de novo standard of review, Ruiz has failed to make the “substantial showing of the denial of a constitutional right” necessary for a COA to issue — claims of this nature have been rejected by every court that has heard them.

III.

Much of Ruiz’s petition discusses the conditions of confinement he has faced on death row. We do not resolve the ultimate merits of Ruiz’s claim; that road is forbidden to us on a motion for a COA. Nor do we address the conditions death row inmates, in Texas or elsewhere, face generally. The solitary confinement of prisoners has long been at issue in suits challenging prison conditions. To the extent that Ruiz’s conditions of confinement violate his right to due process or his substantive rights under the Eighth Amendment, Congress has created a specific throughway to the federal courts to redress such wrongs: a timely § 1988 suit.

Despite being a named plaintiff in a § 1983 method-of-execution suit challenging Texas’s lethal injection protocol filed last year, Ruiz voiced no concern regarding Texas’s death row conditions of confinement, this at a time that would have allowed him to develop his claims in the district court. Had he done so, we might be properly situated to determine the merit of such claims. Instead, he brings his grievance now, at the eleventh hour, when its development would again force a stay of execution. In response to systemic abuses by prisoners bringing dilatory claims, the federal courts — and this circuit in particular — have been forced to develop extensive jurisprudence resisting those requests for long-available claims presented, for the first time, on the eve of execution. Ruiz alleges he has been in solitary confinement for the majority of the time he has been on death row. To the extent he wished to challenge that confinement, he had ample opportunity to do so. In accordance with our earlier decisions regarding last-minute claims, we are disinclined to grant him equitable relief at this late hour.

IV.

Ruiz’s claims have been heard and, from top to bottom, found meritless. Working in the harness of statutory and settled common law rules, the federal and state courts have done handsprings to protect Ruiz’s procedural and substantive rights. This Court has- stayed his execution twice before to allow full consideration of his claims. His most recent claims do not warrant a third stay.

We are keenly aware of the admonitions of Buck v. Davis. Properly applied, they do not reset the balance of federalism struck by Congress and the settled constitutional commands attending capital punishment. We are equally sensitive to the compelling concerns expressed by several justices. They call on the power of courts that are no strangers to the conditions of confinement of death sentence prisoners. Eighth Amendment concerns, by definition, are seldom implicated by an otherwise valid life sentence of an adult. Rather, these expressions of concern respond to the conditions of confinement and the visit of uncertainty upon death penalty prisoners; a product in no small part of the shifting rules of engagement from a top-down, case-by-case effort to develop a coherent jurisprudence — this by the tandem work of state -and federal courts compelled by federalism.

One might suggest that the very developmental movement of this body of law, with the accent upon the Eighth Amendment’s sometimes-look to evolving standards, compels here the answer to the questions posed by an application for a COA — whether the petitioner has made a substantial showing of the denial of a constitutional right, even when faced, not by want of law, but a wall of cases uniformly rejecting the claim — a wall which only the High Court can breach in a case that reaches it while abiding the rules essential to the entire process. Inviting ventures by the lower federal courts is misaddressed. Given the statutory restraints upon the inferior federal courts, they are ill-equipped to afford solutions while remaining faithful to the directives for interactive readings of federal law by state and federal courts. Development of this body of law comes more naturally from the state courts, whose decisions are directly reviewable on • certiorari without the restraints the inferior federal courts face on habeas, and on whose shoulders fall the overwhelming share of the difficulties wrought by capital punishment. To the extent evolving standards are the reference, the ear of state courts may be closer to the people.

Make no mistake, the claim that uncertainties facing a death-sentenced petitioner are a violation of the Eighth Amendment challenge the very validity of capital punishment, the response to which is the province of the Supreme Court in its resolution of cases that make their way there without jumping the well-laid traces so necessary to our federalism. The path to the supreme court in capital cases need not always be— in the first instance — through the inferior federal courts.

⅜ ⅜ ⅜ ⅜

The motion for a COA is denied. The motion for a stay pending our consideration of a motion for a COA is denied as moot.

DENNIS, Circuit Judge, concurs in the decree denying a COA and a stay of proceedings.

      . Buck v. Davis, No. 15-8049, - U.S. -, -, 137 S.Ct. 759, 197 L.Ed.2d 1, 2017 WL 685534, at *11 (U.S. Feb. 22, 2017) (quoting Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)) (internal quotation marks omitted).

      . See Ruiz v. Quarterman, 460 F.3d 638 (5th Cir. 2006); Ruiz v. Quarterman, 504 F.3d 523 (5th Cir. 2007); Ruiz v. Stephens, 728 F.3d 416 (5th Cir. 2013); Ruiz v. Stephens, No. 11-70011, 849 F.3d 239, 2017 WL 694492 (5th Cir. Feb. 21, 2017).

      . Id. at *18

      . Id.

      . 28 U.S.C. § 2253(c)(1).

      . This, in part, because Ruiz avers that the Texas Court of Criminal Appeals misconstrued the claim he presented to them. That the Texas Court of Criminal Appeals determined that Ruiz's claim was not meaningfully distinct from other Lackey claims it had previously considered and rejected does not mean that court misunderstood his claim. Ruiz’s accent on his conditions of confinement is common to the Lackey claim; every court that has rejected it has done so against the backdrop of the conditions of confinement of death row prisoners.

      . The district court wrote that “whether this Court reviews Ruiz's Lackey claim under a de novo or AEDPA standard, it plainly appears he is not entitled to relief' without further elaboration.

      . 28 U.S.C. § 2253(c)(2).

      . Buck, - U.S. at - - -, 137 S.Ct. 759, 2017 WL 685534, at *11-12.

      . See Knight v. Florida, 528 U.S. 990, 120 S.Ct. 459, 461, 145 L.Ed.2d 370 (1999) (Thomas, J., concurring) (concurring in denial of certiorari in extended death-row confinement claims and, in response to Justice Stevens’s "invitation to state and lower courts to serve as 'laboratories’ in which the viability of this claim could receive further study,” arguing that courts "have resoundingly rejected the claim as meritless”); see also Stafford v. Ward, 59 F.3d 1025, 1028 (10th Cir. 1995) ("We conclude that Appellant has failed to show that executing him after fifteen years on death row, during which time he faced at least seven execution dates, would constitute cruel and unusual punishment.”); Johns v. Bowersox, 203 F.3d 538, 547 (8th Cir. 2000) (holding that, even if petitioner’s Lackey claim were not barred, "[a]bsent evidence that the delay was caused intentionally to prolong the defendants time on death row, we [have] held that it [does] not even begin to approach a constitutional violation”); Smith v. Mahoney, 611 F.3d 978, 998 (9th Cir. 2010) (holding, in the context of AEDPA review, that "the Supreme Court has never held that execution after a long tenure on death row is cruel and unusual punishment”).

        . White v. Johnson, 79 F.3d 432, 439 (5th Cir. 1996); accord Reed v. Quarterman, 504 F.3d 465, 488 (5th Cir. 2007); Carter v. Johnson, 131 F.3d 452, 466 (5th Cir. 1997); Lackey v. Johnson, 83 F.3d 116 (5th Cir. 1996).

      . 28 U.S.C. § 2253. See also Buck, -U.S. at -, 137 S.Ct. 759, 2017 WL 685534, at *11; Miller-El, 537 U.S. at 336, 123 S.Ct. 1029; Jackson v. Dretke, 450 F.3d 614, 616 (5th Cir. 2006).

      . Buck, - U.S. at -, 137 S.Ct. 759, 2017 WL 685534, at *12.

      . See, e.g., Davis v. Ayala, - U.S. -, 135 S.Ct. 2187, 2208-10, 192 L.Ed.2d 323 (2015) (Kennedy, J., concurring).

      . 42 U.S.C. § 1983 (2012).

      . See Wood v. Collier, 836 F.3d 534 (5th Cir. 2016).

      . See, e.g., Nelson v. Campbell, 541 U.S. 637, 650, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004) (“Given the state's significant interest in enforcing its criminal judgment, there is a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring a stay.”); Sepulvado v. Jindal, 729 F.3d 413, 420-21 (5th Cir. 2013) (vacating a stay where inmate hied last-minute challenge against a procedure he had known about for two years); Brown v. Livingston, 457 F.3d 390, 391 (5th Cir. 2006) (denying equitable relief where "[ajlthough [the prisoner’s] direct appeal has been final for seven years, he did not file the instant complaint until six days before his scheduled execution”); Reese v. Livingston, 453 F.3d 289, 291 (5th Cir. 2006) (denying stay of execution because “a plaintiff cannot wait until a stay must be granted to enable him to develop facts and take the case to trial — not when there is no satisfactory explanation for the delay”); White v. Johnson, 429 F.3d 572, 574 (5th Cir. 2005) (denying stay in dilatory § 1983 challenge to lethal injection protocol).


author: EDWARD C. PRADO, Circuit Judge:

text:
    GOLDEN NUGGET LAKE CHARLES, L.L.C., formerly known as Ameristar Casino Lake Charles, L.L.C., formerly known as Creative Casinos of Louisiana, L.L.C., Plaintiff-Appellee, v. W.G. YATES & SONS CONSTRUCTION COMPANY, Defendant-Appellant.
    No. 16-30496
    United States Court of Appeals, Fifth Circuit.
    FILED March 6, 2017

      Mark Wayne Frilot, Esq., Mandeville, LA, Edward Paul Meyerson, Donald James Nettles, Stephen K. Pudner, Esq., Birmingham, AL, Baker, Donelson, Bear-man, Caldwell & Berkowitz, P.C., for Plaintiff-Appellee.
    Howard Bruce Shreves, Esq., Daniel J. Caruso, Peter Sutherland Thriffiley, Jr., Attorney, Simon, Peragine, Smith & Red-fearn, L.L.P., New Orleans, LA, William Boyce Monk, Esq., Stockwell, Sievert, Vie-cellio, Clements & Shaddock, L.L.P., Lake Charles, LA, for Defendant-Appellant.
    Before JOLLY, SMITH, and PRADO, Circuit Judges.
   EDWARD C. PRADO, Circuit Judge:

This case arises out of a construction contract between Plaintiff-Appellee Golden Nugget Lake Charles, LLC (“Golden Nugget”) and Defendant-Appellant W.G. Yates & Sons Construction Company (‘Tates”). Yates appeals the district court’s order dismissing its claim for a statutory lien under the Louisiana Private Works Act (the “LPWA”). The LPWA grants general contractors a privilege — i.e., a lien — to secure payment for their work, but a contractor must preserve the lien by filing a statement of claim or privilege in a timely manner. The district court dismissed Yates’s claim to have its lien recognized because Yates did not file a lien statement within the time required by statute. However, we find that because Golden Nugget never filed a notice of substantial completion, Yates’s lien statement was timely filed. Accordingly, we REVERSE and REMAND the district court’s judgment dismissing with prejudice Yates’s claim for a statutory lien and find that Yates has a valid lien against Golden Nugget.

I. BACKGROUND

Golden Nugget is the owner of the Golden Nugget Lake Charles Hotel & Casino located in Lake Charles, Louisiana (the “Project”). In 2011, Yates entered into a contract with the original owner to construct the Project, which was to be a casino, hotel, and spa. In July 2012, the parties recorded a written notice of contract as well as payment and performance bonds in the property records of Calcasieu Parish, Louisiana. Golden Nugget purchased the ownership interest in the Project in 2013. On December 1, 2014, Yates and Golden Nugget signed a certificate of substantial completion, which meant that the Project was fit for occupancy. The .Project has been in use ever since. According to Golden Nugget, “Golden Nugget has paid nearly all amounts owed under the Contract, but [it] is withholding approximately $18.7 million to protect itself against estimated damages caused by Yates’[s] contractual and other breaches.”

On November 25, 2015, Golden Nugget filed a complaint in federal district court seeking damages and declaratory relief for breach of contract, breach of warranty, and negligence in connection with the Project. Yates filed a counterclaim on December 21, 2015, alleging that Golden Nugget is wrongfully refusing and delaying payment on the Project. In its counterclaim, Yates indicated that it would be “filing a statement of lien and privilege pursuant to [Louisiana Statutes § ] 9:4801 et. seq. to secure payment for the price of its work” and that it sought “recognition of that lien and privilege” by the district court. Two days later, Yates filed a lien statement in the mortgage records for Cal-casieu Parish. Golden Nugget filed a motion to partially dismiss the counterclaim on January 15, 2016. Specifically, Golden Nugget argued that'Yates had not filed the statement in time to preserve its lien under the LPWA. Under the district court’s interpretation of § 9:4822, the statement was untimely; therefore,’ the court “dismiss[ed] with prejudice Yates’ claim for a statutory lien.” At Golden Nugget’s request, Yates had the lien statement removed from the parish property records to prevent the lien from acting as a cloud on Golden Nugget’s title to the property. Yates filed a notice of appeal on April 29, 2016.

II. DISCUSSION

The district court had jurisdiction under 28 U.S.C. § 1332. This Court has appellate jurisdiction over the district court’s decision pursuant to 28 U.S.C. § 1291. We review a district court’s grant of a motion to dismiss de novo. Whitley v. BP, PLC, 838 F.3d 523, 526 (5th Cir. 2016).

The question in this case is one of statutory interpretation: whether the phrase “substantial completion of the work” in § 9:4822(B) refers to an event or a document. The LPWA “protects contractors, laborers, suppliers of material and others who contribute to construction projects by granting them a privilege on the immovable to secure the price of their work.” In re Whitaker Constr. Co., 439 F.3d 212, 216 (5th Cir. 2006). “The rights created by the [LPWA] extinguish after a period of time, the length of which is defined by statute and depends on a variety of factors.” Id. A contractor must assert its lien by filing a statement of claim or privilege — a lien statement — within a certain time frame. See La. Stat. Ann. § 9:4822. The time frame varies based on whether a notice of contract was filed by the parties and based on the type of lien claimant. See id. Because a notice' of contract was filed in this case and because Yates is a general contractor, the parties agree that § 9:4822(B) governs. That provision states:

A general contractor to whom a privilege is granted by R.S. 9:4801 of this Part, and whose privilege has been preserved in the manner provided by R.S. 9:4811, shall file a statement of his privilege within sixty days after the filing of the notice of termination or substantial completion of the work.

§ 9:4822(B) (emphasis added).

The parties dispute the meaning of “within sixty days after the filing of the notice of termination or substantial completion of the work.” The basic arguments are straightforward. Yates contends that this phrase requires an owner — here, Golden Nugget — to take affirmative action by filing either a notice of termination or a notice of substantial completion of the work in the local property records. Because Golden Nugget never filed such a document, Yates argues, “the time period for Yates to file its [lien statement] never started to run.” Consequently, the lien statement Yates filed on December 23, 2015, was timely.

Golden Nugget, by contrast, asserts that “substantial completion of the work” under subsection (B) refers to an event — “a state of a construction project and not ... a document to be recorded.” Under Golden Nugget’s interpretation, § 9:4822(B) “sets forth ... two alternative triggers applicable to general contractors”: when the owner files a notice of termination or when the work is substantially completed. Golden Nugget argues that because work on the project was substantially completed when the Project became occupied in December 2014, the sixty-day period during which Yates could have filed the lien.statement has long since expired.

Golden Nugget rests its argument on § 9:4822(H), which defines substantial completion as an event. That subsection specifies:

A work is substantially completed when:

(1) The last work is performed on, or materials are delivered to the site of the immovable or to that portion or area with respect to which a notice of partial termination is filed; or
(2) The owner accepts the improvement, possesses or occupies the immovable, or that portion or area of the immovable with respect to which a notice of partial termination is filed, although minor or inconsequential matters remain to be finished or minor defects or errors in the work are to be remedied.

§ 9:4822(H). Yates acknowledges that this subsection refers to an event but argues that it applies to several other provisions, notably § 9:4822(C) (sixty-day time period begins for § 9:4802 claimants when a notice of contract has not been filed); § 9:4822(D)(1) (sixty-day period begins for claimants under § 9:4801(5)); § 9:4822(D)(2) (seventy-day period begins for sellers of movables sold for residential purposes); and § 9:4822(E) (laying out certification requirements for a notice of termination).

Yates, on the other hand, contends that subsection (F), rather than (H), is determinative. Section 9:4822(F) states that “[a] notice of termination or substantial completion of the work may be filed from time to time with respect to a specified portion or area of work.” It further states that “the time for preserving privileges or claims as specified in Subsection A or C of this Section shall commence with the filing of the notice of termination or substantial completion.” § 9:4822(F) (emphasis added). As Yates points out, this subsection clearly refers to a notice of substantial completion as a document (“notice of ... substantial completion of the work may be filed”), and the language is nearly identical to the language at issue in subsection (B). In addition, the phrase “or substantial completion” was added to subsections (B) and (F) in the same amendment to the LPWA, indicating that legislators intended the phrase to have the same meaning in both subsections. See Acts 1988, No. 685, § 1, 1988 La. Sess. Law Serv. 685, 685 (West). Golden Nugget counters that because subsection (F) only applies to non-general contractors, it has “no bearing on what constitutes substantial completion under 4822(B) for general contractor claimants such as Yates.”

The text of the statute by itself is ambiguous. “To resolve textual ambiguity, we consult the interpretations given to the statute by Louisiana courts.” In re Whitaker, 439 F.3d at 224. Louisiana courts have not squarely addressed the question at hand — whether § 9:4822(B), which applies to general contractors, refers to “substantial completion” as a document or an event. However, several cases involving subcontractors lend support to Yates’s position that § 9:4822(B) requires an owner to file a notice to trigger the sixty-day period. In Whitaker, the Fifth Circuit considered a subcontractor’s claims concerning two separate construction projects, both of which involved recorded contracts. Id. at 214. On one project, a certificate of substantial completion was filed on September 17, 2001. Id. This Court found that the statutory period began on that date and had already expired — although the main issue with respect to the first project was whether the claim had been preserved under § 9:4813(E). Id. at 217, 220-21. The issue with respect to the second project, however, was whether, “when a notice of a contract has been filed but a notice of termination has not,” the statutory period for enforcing a lien ever began. Id. at 221. For the second project, “no official filing was made regarding completion, though other events occurred that suggest the project was completed” — including the issuance of a certificate of occupancy. Id. at 214. The Court ultimately determined that “when a notice of a contract has been filed but notice of termination is not, the time period for making claims is not triggered.” Id. at 226.

In making its decision in Whitaker, this Court relied on Bernard Lumber Co. v. Lake Forest Construction Co., 572 So.2d 178 (La. Ct. App. 1990). In Bernard Lumber, the Louisiana Court of Appeal stated that “the notice of contract/notice of termination procedure provides an owner with a method for cutting off the valid assertion of any potential claims or privileges.” Id. at 181. According to the court, an owner who neglects to take affirmative action “should be made to bear the consequences of his failure to file a notice of termination, not the claimant.” Id. Therefore, the court determined, § 9:4822(A) “places the onus on the owner to file a notice of termination when a notice of contract has been filed.” Id.

Similarly, in Byron Montz, Inc. v. Conco Construction, Inc., 824 So.2d 498 (La. Ct. App. 2002), a Louisiana court found that a subcontractor did not preserve its lien under the LPWA because it did not file its statement within the sixty-day period prescribed by § 9:4822(C). Id. at 499. In that case, both a notice of contract and a certificate of substantial completion were filed on March 14, 2000. Id. at 500. These filings were distinguishable from the event of substantial completion, which the court found to have occurred on January 8, 2000. Id. In stating that “[t]he time period for [the subcontractor] to timely file its statement of claim was thus sixty days from [the owner’s] filing of its notice of termination of the work on March 14, 2000,” id. at 503, the court appeared to conflate a notice of termination — which is one trigger for the statutory period in § 9:4822(C) — and a notice of substantial completion, the document the owner actually filed in this case, see § 9:4822(C); Clark Constr. Co. v. Warren, 760 So.2d 677, 681 (La. Ct. App. 2000) (noting that the LPWA “provides for filing claims or privileges within thirty or sixty days after the ‘filing of a notice of termination of the work’ ” and that “[h]ere, the notice of substantial completion was ... filed on August 17 [and] [t]hus, timeliness of the liens should be determined by reference to the filing date of August 17”).

We find these cases persuasive. As an initial matter, they clarify that notices of substantial completion are regularly filed in connection with construction projects, undermining Golden Nugget’s suggestion that § 9:4822(B) could only refer to an event. Courts also appear to treat these notices as functionally equivalent to notices of termination. See Byron Montz, 824 So.2d at 503; Clark Constr., 760 So.2d at 681. It is therefore logical to presume that § 9:4822(B) refers to two different notices an owner can file that fulfill the same purpose of triggering the statutory lien period. Additionally, given that the legislature added the phrase “or substantial completion” to § 9;4822(B) at the same time it added the identical phrase — clearly referencing a document — to § 9:4822(F), we can also presume that “substantial completion” has the same meaning in both subsections.

Next, these cases recognize that a lien claimant’s rights under § 9:4822 can be altered depending on whether the parties’ contract has been recorded. The LPWA provides different requirements for filing a lien statement based on whether a notice of contract has been filed. See § 9:4822. When a notice of contract has been filed, an owner must file a document to notify contractors that the time period to file a lien statement has begun. § 9:4822(A); Bernard Lumber, 572 So.2d at 181-82 (referring to the “notice of contract/notice of termination procedure,” which “clearly places the onus on the owner to file a notice of termination when a notice of contract has been filed”). By contrast, “substantial completion of the work” is an event when the contract is unrecorded. § 9:4822(C); see also Byron Montz, 824 So.2d at 503; § 9:4822(a) editors’ note to 1981 amendment (explaining that when “no notice of contract is filed an owner may still file a notice of termination”' but if no notice is filed, the filing period expires “60 days after the work is substantially completed or abandoned”). Because Yates and Golden Nugget recorded their contract, therefore preserving Yates’s privilege under § 9:4811 as required by § 9:4822(B), Golden Nugget was required to file a document to begin the statutory lien period.

Golden Nugget contends that “[a]s an equitable or policy matter, it would make more sense to require that a subcontractor receive more actual or constructive notice that a project has concluded before its lien clock starts” than a general contractor because “a general contractor is in direct privity with an owner and can be expected to know when a project has reached substantial completion.” But as Yates points out, when a contract has been recorded, § 9:4822(A) affords subcontractors thirty days to file a lien statement when a notice of termination is filed. By contrast, § 9:4822(B) gives general contractors sixty days under the same or at least similar circumstances. Golden Nugget acknowledges that under its interpretation, while Yates’s lien rights would be foreclosed, a ■subcontractor in the same position as Yates would still be able to file a lien statement because no notice of termination was ever filed and the statutory period never began to run. See § 9:4822(A). Golden Nugget provides no legal support for its argument that a general contractor should have a shorter period of time to file a lien statement or that the time period for a general contractor to file a lien statement begins to run at a different point than for a subcontractor.

Ultimately, this statute is predominantly about filing requirements. The LPWA places the burden on an owner to take affirmative action to cut off potential claims when a contract has been recorded, whether it is a general contractor or a subcontractor. The weight of Louisiana case law, in combination with the nearly identical language in subsections (B) and (F), suggest that the sixty-day period in § 9:4822(B) begins to run when either a notice of termination or a notice of substantial completion is filed. Because here the contract was recorded but no notice of termination or completion was ever filed, Yates has a valid lien and a right to file a lien statement.

III. CONCLUSION

Accordingly, the district court’s decision granting the motion to dismiss is REVERSED and REMANDED.

      . A "privilege” can also be called a "lien” or a "right to assert a lien.” See Michael H. Rubin, Ruminations on the Louisiana Private Works Act, 58 La. L. Rev. 569, 574 n.21 (1998) (explaining that "lien’) is technically the common law term for "privilege”). However, litigants and courts often refer to filing liens against property- — terminology which suggests that a claimant's lien is a document. See, e.g., Shaw Constructors v. ICF Kaiser Eng’rs, Inc., 395 F.3d 533, 536 (5th Cir. 2004) ("[T]he subcontractor filed claims and privileges or liens against the owner's property.... ”). We refer to the privilege granted by § 9:4801 of the LPWA as Yates’s “lien,” and its statement of privilege as a "lien statement” — the mechanism by which a lien is recorded. See La. Stat. Ann. § 9:4822; Rubin, supra, at 579 ("The Private Works Act provides the mechanism by which both liens are placed on the public records and by which they are enforced.”).

      . On August 18, 2016, Golden Nugget filed a motion to dismiss for lack of jurisdiction in this Court asserting that there is no longer a case or controversy between the parties due to Yates’s voluntary cancellation- of the lien from the property records. At oral argument, Golden Nugget conceded that Yates only had the record removed at Golden Nugget’s request. The parties agree that the cancellation benefited both of them; it prevented the possibility that either party might incur damages as a result of this dispute. The live controversy in this case is whether Yates still has a statutory right to assert its lien. Golden Nugget’s motion to dismiss is therefore denied.

      . The Louisiana cases that do address § 9:4822(B) are minimally useful; they provide inconsistent answers and none have explicitly considered the question presented by this case. Compare Triangle Pac. Corp. v. Nat'l Bldg. & Contracting Co., 652 So.2d 552, 556 (La. Ct. App. 1995) (determining whether a contractor had timely sued to enforce his lien and using the date a notice of substantial completion was filed as the trigger date), with Paul Hyde, Inc. v. Richard, 854 So.2d 1000, 1002 (La. Ct. App. 2003) (determining whether a lien was valid when it was filed before notice of termination or substantial completion, and using subsection (H) to define "substantial completion of the work”), and In re Tuscany Reserve, LLC, No. 09-11027, 2011 WL 831596 (Bankr. M.D. La. Mar. 3, 2011) (unpublished) (using the event of substantial completion as the trigger date, although a certificate of substantial completion was later filed).


text:
    Gerald CALDWELL, Plaintiff-Appellant, v. KHOU-TV; Gannett Company, Incorporated, Defendants-Appellees.
    No. 16-20408
    United States Court of Appeals, Fifth Circuit.
    FILED March 6, 2017

      Katherine L. Butler, Esq., Paul R. Harris, Butler & Harris, Houston, TX, for Plaintiff-Appellant.
    Linda C. Schoonmaker, Brian Ashley Wadsworth, Seyfarth Shaw, L.L.P., Houston, TX, for Defendants-Appellees.
    Before PRADO, HIGGINSON, and COSTA, Circuit Judges.
   EDWARD C. PRADO, Circuit Judge:

After being fired, Gerald Caldwell sued his employers, KHOU-TV and Gannett Company, Inc. (collectively, “the Defendants”), for violations of the Americans with Disabilities Act (“ADA”) and the Family Medical Leave Act (“FMLA”). The district court granted summary judgment in favor of the Defendants and Caldwell appealed. Because- we find that Caldwell raised a genuine issue of fact over whether the Defendants’ reasons for firing him were pretextual, we REVERSE and REMAND.

I. FACTUAL BACKGROUND

Gerald Caldwell originally began working as a video editor at KHOU-TV (“KHOU”) in 1995. Caldwell was disabled at the time he was hired by KHOU because he had suffered childhood bone cancer. Because of damage to his leg as a result of the cancer, Caldwell moved around with the assistance of crutches.

At KHOU a video editor’s work is split between two primary tasks: (1) editing scripts and (2) working in electronic digital recording (“EDR”). By late 2012, video editors began spending a much larger portion of their work time in EDR. Even though most editors were scheduled to work in EDR between two and three times a week, Caldwell was not. As Charlie But-era and Robert Kell, Caldwell’s direct supervisors, testified, they felt it would be difficult for Caldwell to move around the EDR room because it is “tight in spots” and they “didn’t want to put him in any health jeopardy because of all that.” In spite ' of this limitation, Caldwell would spend time in EDR when other editors went on break and testified that he took it upon himself to stay up-to-date on changes taking place in EDR.

In March or April 2014, Caldwell told his supervisor and the human resources manager that he would need to take leave for two upcoming surgeries. Caldwell initially did not have a date for his second surgery because it depended on the outcome of the first, but promised to provide a date as soon as he had one. At the time, both Caldwell’s supervisor and the human resources manager agreed to this arrangement. Caldwell was ultimately fired before this second surgery could take place.

Also in 2014, Gannett Company, Inc. (“Gannett”), KHOU’s parent company, mandated a reduction-in-force (“RIF”) and required KHOU to eliminate two editor positions. Philip Bruce, the news director, was charged with deciding who would be fired but was assisted by Kell, Caldwell’s supervisor at the time, and Art Murray. Bruce testified that Kell and Murray provided him with specific information about “day-to-day operation[s]” and asked for their suggestions about who to fire given how the video editing positions were “‘going to continue to evolve over the coming months and ... years.” Based on input from Kell and Murray, Bruce made the decision to fire Caldwell and another editor, Parrish Murphy. Before the decision was made, Murphy had been individually informed of his inadequate performance per KHOU policy and had been given the opportunity to improve; Caldwell was not given equivalent forewarning or opportunity to improve his performance.

In explaining the decision to terminate Caldwell, the Defendants initially stated that “Caldwell repeatedly made it very clear to his supervisors and his colleagues that ... he preferred not to work in EDR.” Later, Bruce likewise intimated that Caldwell was fired because he actively avoided taking on EDR work. In the Defendants’ motion for summary judgment, however, the Defendants stated that “[a]f-ter reviewing all of the video editors, Bruce, Kell, and Murray believed that [Caldwell] had not taken the initiative to spend as much time in EDR as other members of the edit staff.” And in spite of all this, Bruce also maintained that the decision to fire Caldwell had “[a]bsolutely nothing at all” to do with' Caldwell’s work ethic. Murphy, on the other hand, was fired because he not only had problems in EDR but also had been caught sleeping at work.

Caldwell filed suit against the Defendants on February 3, 2015, alleging violations of both the ADA and FMLA. The Defendants then filed a motion for summary judgment, which was granted by the district court on June 3, 2016. Caldwell timely appealed.

II. DISCUSSION

This Court “reviews a district court’s grant of summary judgment de novo, applying the same standards as the district court.” Griffin v. United Parcel Serv., Inc., 661 F.3d 216, 221 (5th Cir. 2011). Summary judgment is proper where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In reviewing a motion for summary judgment, factual inferences are viewed in the light most favorable to the nonmoving party. Smith v. Reg’l Transit Auth., 827 F.3d 412, 417 (5th Cir. 2016). “[T]he salutary function of summary judgment in the employment discrimination arena [is that] summary judgment allows patently meritless cases to be nipped in the bud.” Amburgey v. Corhart Refractories Corp., 936 F.2d 805, 814 (5th Cir. 1991) (quoting Thornbrough v. Columbus & Greenville R.R. Co., 760 F.2d 633, 645 n.19 (5th Cir. 1985), abrogated on other grounds by St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)).

A. The ADA Claim

Caldwell first argues that the district court erred in granting summary judgment on his ADA claim. The ADA makes it unlawful for an employer to “discriminate against a qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). To establish an ADA discrimination claim, a plaintiff may present “direct evidence that [he] was discriminated against because of [his] disability or alternatively proceed under the burden-shifting analysis first articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).” Rodriguez v. Eli Lilly & Co., 820 F.3d 759, 764 (5th Cir. 2016). Caldwell does not present any direct evidence of discrimination and must therefore proceed under the McDonnell Douglas burden-shifting framework.

Caldwell bears the initial burden under McDonnell Douglas to establish his prima facie case of discrimination. Id. at 765. To carry this burden, Caldwell must establish: (1) he has a disability, or was regarded as disabled; (2) he was qualified for the job; and (3) he was subject to an adverse employment decision on account of his disability. Id. “If he makes that showing, a presumption of discrimination arises, and the employer must ‘articulate a legitimate non-discriminatory reason for the adverse employment action.’ ” Cannon v. Jacobs Field Servs. N. Am., Inc., 813 F.3d 586, 590 (5th Cir. 2016) (quoting EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 615 (5th Cir. 2009)). The burden then shifts back to the plaintiff “to produce evidence from which a jury could conclude that the employer’s articulated reason is pretextual.” Id. “A plaintiff may show pretext either through evidence of disparate treatment or by showing that the employer’s proffered explanation is false or unworthy of credence.” Jackson v. Cal-W. Packaging Corp., 602 F.3d 374, 378-79 (5th Cir. 2010) (internal quotation marks omitted). “An explanation is false or unworthy of credence if it is not the real reason for the adverse employment action.” Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003).

The parties neither contest the district court’s determination that Caldwell established a prima facie case of discrimination, nor do they dispute the district court’s conclusion that the Defendants raised a legitimate nondiscriminatory reason for firing Caldwell — namely, an RIF. Instead, Caldwell argues that the district court erred by failing to find that Caldwell presented sufficient evidence of pretext. Caldwell argues that summary judgment should have been denied because there was evidence that the Defendants: (1) gave false explanations for firing Caldwell; (2) changed their explanations for firing him; (3) limited and segregated Caldwell in a way that adversely impacted his performance; and (4) did not give Caldwell the same opportunities as other employees. “In the context of a summary judgment proceeding, the question is not whether the plaintiff proves pretext, but rather whether the plaintiff raises a genuine issue of fact regarding pretext.” Thornbrough, 760 F.2d at 646. We hold that Caldwell has met this burden.

First, Caldwell argues that the Defendants’ explanations for firing him are unworthy of credence because they were inconsistent over time and erroneous. An employer’s inconsistent explanations for an employment decision “cast doubt” on the truthfulness of those explanations. Gee v. Principi, 289 F.3d 342, 347-48 (5th Cir. 2002); see also Burrell v. Dr. Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 412 n.11 (5th Cir. 2007) (“[A]n employer’s inconsistent explanations for its employment decisions at different times permit[ ] a jury to infer that the employer’s proffered reasons are pretextual.”). For example, in Burrell, an employer at different times offered different explanations for its decision to promote an employee over the plaintiff. 482 F.3d at 413. Before the EEOC, the employer stated that the plaintiff lacked “purchasing experience.” Id. But before the district court, the employer stated that the plaintiff lacked “bottling experience.” Id. And before this Court, the employer stated that that the plaintiff lacked “purchasing experience in the bottling industry.” Id. Considering this inconsistency in combination with evidence suggesting the plaintiff was better qualified than the employee ultimately promoted, this Court concluded that “a genuine issue of material fact remain[ed] regarding whether [the employer’s] hiring decision was based on” the nondiscriminatory reason advanced by the employer. Id.

Likewise, Caldwell has presented sufficient evidence to raise a question of material fact as to whether the Defendants’ RIF rationale and their attendant reasons for terminating him were mere pretext. The Defendants’ explanations have transformed over time; they first asserted that Caldwell shirked his responsibilities by refusing to do the EDR work he had been assigned and then later claimed that Caldwell did not take the initiative to seek out additional EDR work. In a letter to Caldwell’s counsel and later in response to a series of interrogatories, the Defendants first stated that their decision to fire Caldwell was a result of Caldwell’s refusal to work in EDR. Then, in a letter to the EEOC, the Defendants stated that Caldwell was terminated not because he was a “slacker” but rather because of his “inability and unwillingness to adapt to technological changes.” Finally, before the district court, the Defendants abandoned their pri- or explanations and instead argued that Caldwell had been fired because he “had not taken the initiative to spend as much time in EDR as other members of the edit staff’ and was thus not as proficient as other employees at performing EDR tasks. Contrary even to this, Philip Bruce, the news editor responsible for the ultimate decision to fire Caldwell, testified before the district court that terminating Caldwell had “[a]bsolutely nothing at all” to do with Caldwell’s work ethic. These statements evince inconsistency in the Defendants’ explanations for firing Caldwell and are thus probative of their truth.

Caldwell has also presented other evidence calling into question the veracity of his employer’s explanations. As explained above, the Defendants’ explanations for Caldwell’s dismissal have evolved from insubordination to a lack of initiative. As to Caldwell’s unwillingness to work in EDR, Caldwell testified that he never expressed such a preference. Similarly, Caldwell’s supervisors stated that they had no knowledge of Caldwell ever expressing a preference against working in EDR. There is also a question as to whether the Defendants’ lack-of-initiative explanation was truthful. Caldwell testified, and his supervisors confirmed, that it was ultimately the employer’s decision to limit Caldwell’s time working in EDR, not Caldwell’s. Bruce even testified that Caldwell’s work ethic was not an issue, and Caldwell stated that in spite of his limited EDR schedule, he tried to stay up-to-date on the latest trainings and information regarding EDR that the Defendants provided to other staff.

Caldwell also cites 42 U.S.C. § 12112(b)(1) to argue that the Defendants impermissibly limited and segregated Caldwell by not assigning him to as many EDR shifts as they assigned to other employees. The district court rejected Caldwell’s argument here because it concluded that this ADA prohibition on segregation had only previously been applied to cases of physical segregation. See Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 587-88, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999) (holding that the ADA’s “proscription of discrimination may require placement of persons with mental disabilities in [noniso-lated] community settings”); Frame v. City of Arlington, 657 F.3d 215, 231 (5th Cir. 2011) (concluding that altering sidewalks to make them inaccessible to those with physical disabilities violates the ADA). Because the only cases Caldwell cites involve physical segregation and there is no evidence that Caldwell was physically isolated from nondisabled employees, we agree with the district court that this argument is unpersuasive. See Olmstead, 527 U.S. at 587-88, 119 S.Ct. 2176; Frame, 657 F.3d at 231.

Finally, Caldwell contends that the Defendants did not give him the same opportunities as other employees because of his ■ disability. Specifically, Caldwell argues his case is similar to Vaughn v. Edel, 918 F.2d 517 (5th Cir. 1990). In Vaughn, an employer fired an African-American woman for substandard job performance. 918 F.2d at 520. Although the employer had counseled white employees when their work was sub-par and gave them an opportunity to improve, no such opportunity was given to the defendant. Id. at 522. Moreover, the defendant received a pay increase during the time when her performance was apparently lacking — an action which would have indicated to the defendant that her supervisors were satisfied with her work. Id. at 523. This Court noted that “[although [the defendant’s] race may not have directly motivated the ... decision to fire her, race did play a part” because the defendant would have been notified that her performance was deficient if she had been white and would “at least [have had] an option to improve, thereby reducing or removing the risk of being fired.” Id. at 522-23.

We agree with Caldwell that this case is analogous to Vaughn. Here, the district court found that Caldwell “was not scheduled .to work regular shifts in EDR because of his disability.” Further, the Defendants, like the employers in Vaughn, had a practice of consulting with employees who were performing their jobs inadequately. And as was the case with the. defendant in Vaughn, this policy was not applied to Caldwell — no one ever informed Caldwell that he should have been doing more work in EDR. Indeed, unlike other employees, Caldwell was actually prevented from doing EDR work by his employer, a limitation that was ultimately used as a basis for his termination. This differs from the Defendants’ treatment of the only other editor laid off .during the RIF who was not disabled. Unlike Caldwell, the other editor who was not performing adequately was informed of his deficiencies in a one-on-one meeting, providing that employee with notice and an opportunity to improve, both of which were withheld from Caldwell. Although Caldwell did not receive the sort of affirmative encouragement about his job performance as the defendant arguably received in Vaughn (i.e., an increase in pay), he had no apparent reason to believe that his lighter EDR schedule would be a reason for the Defendants to conclude his job performance was inadequate. After all, it was Caldwell’s direct supervisors who had not just sanctioned, but mandated, that he spend less time in EDR by not scheduling him to work there. Thus, we conclude that the district court erred in determining that this evidence of disparate treatment was insufficient to raise a material question of fact as to pretext.

Together, the evidence presented by Caldwell creates a genuine issue of material fact as to whether the Defendants’ explanations for firing Caldwell were pretex-tual. Cf. EEOC v. Exxon Shipping Co., 745 F.2d 967, 976 (5th Cir. 1984) (“[Pretext cannot be established by mere ‘conclusory statements’ of a plaintiff who feels he has been discriminated against.”); Amburgey, 936 F.2d at 814 (holding that summary judgment was warranted where the plaintiffs only evidence of pretext was “his own bald assertion that he ha[d] been discriminated against”). Further, this case does not present the sort of “rare instance” where the plaintiff has only presented “a weak issue of fact as to whether the employer’s reason was untrue.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); see also Laxton, 333 F.3d at 578. Nor is there “abundant and uncontro-verted independent evidence that no discrimination ha[s] occurred.” Reeves, 530 U.S. at 148, 120 S.Ct. 2097; see also Laxton, 333 F.3d at 578. Here, Caldwell has presented evidence other than his own assertions in support of his arguments which together raise a genuine issue of material fact as to whether the reasons the Defendants gave for terminating Caldwell were pretextual. Accordingly, we hold that the district court erred in granting summary judgment in favor of the Defendants on Caldwell’s ADA claim.

B. The FMLA Claim

Caldwell also argues that the district court erred by granting summary judgment in favor of the Defendants on his FMLA claim. “The FMLA requires a covered employer to allow an eligible employee up to twelve weeks of unpaid leave if the employee suffers from ‘a serious health condition that makes the employee unable to perform the functions of the position of such employee.’ ” Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757, 763 (5th Cir. 2001) (quoting 29 U.S.C. § 2612(a)(1)(D)), abrogated on other grounds by Wheat v. Fla. Par. Juvenile Justice Comm’n, 811 F.3d 702 (5th Cir. 2016). To ensure employees the right to take leave, the FMLA prohibits an employer from “interfere[ing] with, restraining], or denying] the exercise of or the attempt to exercise, any right” provided by the Act. 29 U.S.C. § 2615(a)(1). Here, Caldwell claims that the Defendants interfered with his right to FMLA leave by firing him “preemptively” only shortly after he had requested leave.

To establish a prima facie case of interference under the FMLA, a plaintiff must show: (1) he was an eligible employee; (2) his employer was subject to FMLA requirements; (3) he was entitled to leave; (4) he gave proper notice of his intention to take FMLA leave; and (5) his employer denied him the benefits to which he was entitled under the FMLA. Lanier v. Univ. of Tex. Sw. Med. Ctr., 527 Fed.Appx. 312, 316 (5th Cir. 2013) (unpublished) (citing Donald v. Sybra, Inc., 667 F.3d 757, 761 (6th Cir. 2012)). As with the ADA, however, even if the plaintiff makes out a prima facie case, he may not overcome a motion for summary judgment if the employer articulates a legitimate nondiscriminatory reason for the employment action at issue. Miller v. Metrocare Servs., 809 F.3d 827, 832 (5th Cir. 2016). To prevail in such a case, the plaintiff must raise an issue of material fact that the employer’s proffered reason was pretextual. Id.

First, Caldwell argues that the district court erred by granting summary judgment on his FMLA claim because the Defendants sought summary judgment only based on a retaliation theory, not an interference theory. Caldwell compares this to the district court acting sua sponte. But none of this warrants reversal. In actuality, the district court in this case was not acting sua sponte because the Defendants filed a motion for summary judgment. Even though the Defendants initially misidentified the theory on which Caldwell was proceeding, they argued only that Caldwell never actually requested FMLA leave and that there was no evidence of pretext. These arguments apply to both FMLA retaliation and interference claims. Compare Lanier, 527 Fed.Appx. at 316 (elements of an interference claim), with Bocalbos v. Nat’l W. Life Ins. Co., 162 F.3d 379, 383 (5th Cir. 1998) (elements of a retaliation claim); see also Miller, 809 F.3d at 831-32 (where a plaintiff brought both interference and retaliation claims under the FMLA, requiring the plaintiff to offer sufficient evidence that an employer’s articulated reason for firing him was “a pretext for discrimination” in support of those claims).

Moreover, the district court ultimately granted summary judgment in favor of the Defendants because it determined Caldwell had not raised a genuine issue of material fact as to pretext. Both arguments raised by the Defendants apply to interference and retaliation claims alike and the district court granted summary judgment based on those arguments. Therefore, even if this Court were to treat the district court’s action as one taken sua sponte, Caldwell undoubtedly received sufficient notice to make the district court’s judgment proper. See Love v. Nat’l Med. Enters., 230 F.3d 765, 770 (5th Cir. 2000) (“Although Rule 56 contemplates such a motion being filed, it is well-settled that a district court may grant summary judgment sua sponte, ‘so long as the losing party has ten days notice to come forward with all of its evidence’ in opposition.... ” (quoting Washington v. Resolution Trust Corp., 68 F.3d 935, 939 (5th Cir. 1995))).

Second, Caldwell argues that the district court erred in granting summary judgment because he raised a genuine issue of material fact as to pretext. Because the pretext arguments Caldwell raised with respect to the ADA apply equally to the FMLA, see Miller, 809 F.3d at 832, we hold that the district court erred in granting summary judgment on Caldwell’s FMLA claim.

III. CONCLUSION

For the foregoing reasons, we REVERSE the district court’s grant of summary judgment on both the ADA and FMLA claims and REMAND the case for further proceedings.

      . Butera initially made the decision to limit Caldwell’s EDR assignments, but Kell continued the practice after replacing Butera as Caldwell’s supervisor.

      . Gannett purchased KHOU as part of its acquisition of the Belo Corporation shortly before the events of this case.

      . The Defendants rehired Caldwell during the course of this litigation. Since being rehired, Caldwell has shown to be capable of performing EDR work and it now constitutes a significant majority of the work he does.

      . The district court applied a modified McDonnell Douglas test because this case arises from the employer's general reduction in its workforce. Under this modified test a plaintiff must show: “(1) he was discharged; (2) he was qualified for the position; (3) he was within the protected class at the time of discharge;” and (4) he was replaced by someone not in the protected class, or "otherwise discharged because of his [membership in the protected class].” Palasota v. Haggar Clothing Co., 342 F.3d 569, 576 (5th Cir. 2003) (quoting Bodenheimer v. PPG Indus., Inc. 5 F.3d 955, 957 (5th Cir. 1993)). As the district court recognized, this Court has used this modified test to analyze other forms of employment discrimination — primarily age discrimination — but we have never applied the modified version of the test in the ADA context. We need not determine which iteration of the McDonnell Douglas test is more appropriate here, as the parties do not dispute whether Caldwell met his initial burden by presenting a prima facie claim of discrimination.

      . The district court dismissed these inconsistencies, concluding that the evidence presented by Caldwell was insufficient because the statements were "not written by the decision-maker, Bruce.” As an initial matter, we note that there is at least some evidence that Bruce, the ultimate decision-maker in this case, gave contradictory explanations for his decision to fire Caldwell. Further, this Court has not adhered to a bright-line rule that only the decision-maker’s statements can be considered when determining whether a plaintiff has presented sufficient evidence of pretext based on inconsistent explanations for an employment decision. Indeed, we have explicitly considered inconsistent statements made by an employer and its representatives to the EEOC and to the court. See, e.g., Burrell, 482 F.3d at 412-13 & n.11 (stating simply that "an employer’s inconsistent explanations for its employment decisions at different times” are probative of whether those explanations are pretextual, and considering statements made by the employer's representatives before the EEOC, the district court, and the Fifth Circuit (emphasis added)).

      . Caldwell also raises two distinct pretext arguments on his FMLA claim, but these arguments fail. He first asserts that there is evidence of mendacity because the Defendants "claimed [Caldwell] did not seek leave,” even though there is evidence otherwise. Because the witness to which Caldwell refers only testified that she did not recall having discussions with Caldwell about taking FMLA leave, this does not suffice as evidence of untruthfulness. Caldwell also contends that he was treated less favorably than those who did not request FMLA leave. As the Defendants correctly point out, however, even though there is evidence that seven other editors did not lose their jobs, nothing in the record shows that those editors had not requested FMLA leave.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Florencio ROSALES-MIRELES, also known as Roberto Lozano-Alcauter, Defendant-Appellant.
    No. 16-50151
    United States Court of Appeals, Fifth Circuit.
    FILED March 6, 2017

      Joseph H. Gay, Jr., Assistant U.S. Attorney, Nikhil Bhagat, U.S. Attorney’s Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.
    Kristin L. Davidson, Assistant Federal Public Defender, Maureen Scott Franco, Federal Public Defender, Federal Public Defender’s Office, Western District of Texas, San Antonio, TX, for Defendant-Appellant.
    Before SMITH, CLEMENT, and SOUTHWICK, Circuit Judges.
   JERRY E. SMITH, Circuit Judge:

Florencio Rosales-Mireles appeals his sentence for illegal reentry. He contends that the district court erred by counting one of his prior convictions twice when calculating the sentencing-guideline range. He also maintains that the sentence is substantively unreasonable. Finding no reversible error, we affirm.

I.

Rosales-Mireles pleaded guilty of illegal reentry in violation of 8 U.S.C. § 1326(a) and (b)(2). When calculating the criminal-history score, the probation officer counted a 2009 Texas conviction of misdemeanor assault twice, assessing two criminal-history points each time it was counted. The total criminal-history score was calculated as 13, resulting in a criminal-history category of VI. Combined with Rosales-Mi-reles’s offense level of 21, that criminal-history category yielded a guideline range of 77-96 months.

Rosales-Mireles did not object to the double-counting but did request a downward departure to 41 months. The district court denied the departure and sentenced Rosales-Mireles to 78 months of imprisonment and a three-year term of supervised release. Rosales-Mireles did not object to the sentence after it was imposed.

II.

Rosales-Mireles assigns error to the double-counting. He concedes that he did not make that objection in district court, so we apply the plain-error standard. See United States v. Peltier, 505 F.3d 389, 391 (5th Cir. 2007). To establish plain error, Rosales-Mireles must show (1) an error; (2) that was clear or obvious; and (3) that affected his substantial rights. Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). “[I]f the above three prongs are satisfied, [we have] the discretion to remedy the error^ — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. (quotation marks and alterations omitted).

A.

The government concedes that the dou-' ble-counting is error, and we agree. The sentencing guidelines provide that two criminal-history points be added “for each prior sentence of imprisonment of at least sixty days.... ” U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 4A1.1 (emphasis added). By adding four points based on the same conviction, the court erred. Moreover, “the error is clear from the language of the Guidelines.” Thus, Rosales-Mireles satisfies the first two prongs.

B.

To satisfy the third prong, Rosales-Mireles must show “a reasonable probability that, but for the district court’s misapplication of the Guidelines, he would have received a lesser sentence.” “When a defendant is sentenced under an incorrect Guidelines range ... the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error.” Molina-Martinez, 136 S.Ct. at 1345. But “[t]he Government remains free to point to parts of the record — including relevant statements by the judge — to counter any ostensible showing of prejudice the defendant may make.” Id. at 1347 (quotation marks omitted and alteration adopted).

Had the district court not erred by double-counting Rosales-Mireles’s misdemeanor-assault conviction, the guideline range would have been 70-87 months instead of 77-96 months as recommended in the presentence report. Nonetheless, the government contends that the court would have sentenced Rosales-Mireles to the same term of imprisonment even if it had not erred by double-counting. The government notes that the district court stated that it “would have not sentenced [Rosales-Mireles] to anything less than the 78 months.”

But that statement, in context, does not go quite so far as saying that the court would have sentenced Rosales-Mireles to 78 months regardless of the guideline recommendation. The full statement is this: “I’ll let the record reflect that under the consideration 4A1.3, when I look at the elements, I would have not sentenced Mr. Rosales to anything less than the 78 months after he’s — his conduct in these cases and his conduct here today.”

The explanation was made in the context of denying a downward departure-under U.S.S.G. § 4A1.3. Moreover, the denial was based, in part, on Rosales-Mi-reles’s criminal history, and that history— because of the double-counting — erroneously included an extra conviction. Thus, we cannot say that the district court “explicitly and unequivocally indicate[d] that [it] would have imposed the same sentence ... irrespective of the Guidelines range.” Rosales-Mireles has met his burden, under the third prong, to show a reasonable probability that he would have been subject to a different sentence but for the error.

C.

Even though Rosales-Mireles has satisfied the first three prongs, we must decide whether to exercise our discretion to remedy the error. We do so only where “the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” “The fourth prong ... is not satisfied simply because the ‘plainly’ erroneous sentencing guideline range yields a longer sentence than the range that, on appeal, we perceive as correct.” United States v. Sarabia-Martinez, 779 F.3d 274, 278 (5th Cir. 2015). Rather, “[t]he types of errors that warrant reversal are ones that would shock the conscience of the common man, serve as a powerful indictment against our system of justice, or seriously call into question the competence or integrity of the district judge.” United States v. Segura, 747 F.3d 323, 331 (5th Cir. 2014) (quotation marks omitted).

We decline to exercise our discretion in this case. We sometimes exercise discretion to correct a plain error where the imposed sentence is “materially or substantially above the properly calculated range.” United States v. John, 597 F.3d 263, 289 (5th Cir. 2010). But we also have declined to use that discretion even where the discrepancy was huge. Where the difference between the imposed sentence and the properly calculated range is small, we generally decline to correct the error.

Here, there is no discrepancy between the sentence and the correctly calculated range. The court sentenced Rosales-Mi-reles to 78 months, which is in the middle of the proper range of 70-87 months. We cannot say that the error or resulting sentence would shock the conscience. Thus, we elect not to exercise our discretion.

III.

Rosales-Míreles contends that his sentence is substantively unreasonable because it is greater than necessary to effect the goals of 18 U.S.C. § 3553(a). Rosales-Mireles did not object to reasonableness in the district court, so we review only for plain error.

A within-guidelines sentence is entitled to a presumption of reasonableness, and “[t]he presumption is rebutted- only upon a showing that the sentence does not account for a factor that should receive significant weight, it gives significant weight to an irrelevant or improper factor, or it represents a clear error of judgment in balancing sentencing factors.” United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Rosales-Mireles’s 78-month sentence is within-guidelines, as it is within the overlap of the correct (70-87 months) and incorrect (77-96 months) ranges. It is therefore presumed reasonable. Id.

Rosales-Mireles has not rebutted the presumption. He maintains that the district court placed too much weight on his old, prior convictions. But the court considered that argument during sentencing and rejected it. The -court explicitly considered a number of the § 3553(a) factors, including the nature of the offense; Rosales-Mireles’s history and characteristics; and the need to protect the public, deter future criminal conduct, and promote respect for the law. In addition, the court noted that this was Rosales-Mireles’s second conviction for being in the United States illegally, that he had used multiple aliases to remain in the United States, and that he had a history of assault stretching from 2001 to 2015.

The district court was in the best position to evaluate Rosales-Mireles’s history and characteristics and the need for the sentence to further the objectives in § 3553(a). See Gall v. United States, 552 U.S. 38, 51-52, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Accordingly, the decision is entitled to deference. Id. Rosales-Mireles has not rebutted the presumption of reasonableness.

The judgment of sentence is AFFIRMED.

        . United States v. Espinoza, 677 F.3d 730, 736 (5th Cir. 2012). See also United States v. Blocker, 612 F.3d 413, 416 (5th Cir. 2010), abrogated on other grounds by Molina-Martinez v. United States, - U.S. -, 136 S.Ct. 1338, 194 L.Ed.2d 444 (2016) ("As our conclusion is reached by a straightforward application of the guidelines, the error was also plain.”).

      . United States v. Martinez-Rodriguez, 821 F.3d 659, 663-64 (5th Cir. 2016) (quoting United States v. Pratt, 728 F.3d 463, 481 (5th Cir. 2013) (citation omitted)).

      . United States v. Miller, 657 Fed.Appx. 265, 270 (5th Cir. 2016) (per curiam). See also United States v. Mudekunye, 646 F.3d 281, 290 (5th Cir. 2011) (per curiam).

      . United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc) (quoting Puckett, 556 U.S. at 135, 129 S.Ct. 1423 (alteration in original)).

      . See also United States v. Wooley, 740 F.3d 359, 369 (5th Cir. 2014) ("This circuit has repeatedly emphasized that even when we find that the first three factors have been established, this fourth factor is not automatically satisfied.”) (quotation marks omitted); United States v. Ellis, 564 F.3d 370, 378 (5th Cir. 2009) ("Not every error that increases a sentence need be corrected by a call upon plain error doctrine.”).

      . Accord United States v. Mendoza-Velasquez, 847 F.3d 209, 213 (5th Cir. 2017) (per curiam) (citing United States v. Scott, 821 F.3d 562, 571 (5th Cir. 2016)).

      . See, e.g., John, 597 F.3d at 285-86 (exercising discretion to correct a sentence 21 months outside the correct range); United States v. Hernandez, 690 F.3d 613, 621-22 (5th Cir. 2012) (exercising discretion to correct a sentence 12 months outside the correct range); Mudekunye, 646 F.3d at 290-91 (exercising discretion to correct a sentence 19 months outside the correct range).

      . In United States v. Wikkerink, 841 F.3d 327, 337 (5th Cir. 2016), we declined relief under the fourth prong despite that the "correct sentence according to the Guidelines would have been 180 months [but] the district court ultimately imposed a sentence of 360 months.”

      . See, e.g., United States v. Avalos-Martinez, 700 F.3d 148, 154 (5th Cir. 2012) (per cu-riam) (declining to exercise discretion where the imposed sentence exceeded the correct range by only one month); United States v. Emanuel-Fuentes, 639 Fed.Appx. 974, 977 (5th Cir. 2015) (per curiam) (same).

      . Rosales-Mireles notes that "[t]here is a circuit split as to whether a failure to object to the reasonableness of the sentence upon its imposition requires plain error review.” He acknowledges that his argument is foreclosed, see Peltier, 505 F.3d at 391-92, and he raises it only to preserve it for further review.