author: WYNN, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Desmond Ra’Keesh WHITE, Defendant-Appellant.
    No. 15-4096
    United States Court of Appeals, Fourth Circuit.
    Argued: March 24, 2016
    Decided: September 9, 2016

      ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. Jennifer Rada Herrald, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee. ON BRIEF: Christian M. Ca-pece, Federal Public Defender, Lex A. Coleman, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. R. Booth Goodwin II, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.
    Before AGEE and WYNN, Circuit Judges, and Thomas D. SCHROEDER, United States District Judge for the Middle District of North Carolina, sitting by designation.
   Affirmed in part, vacated in part, and remanded by published opinion. Judge Wynn wrote the opinion, in which Judge Agee and Judge Schroeder joined.

WYNN, Circuit Judge:

Defendant Desmond Ra’Keesh WTiite pled guilty to possession of a firearm by a felon, in violation of 18 U.S:C. § 922(g)(1). The district court sentenced Defendant under the Armed Career Criminal Act (“ACCA”), imposing the mandatory minimum sentence of 180 months’ imprisonment. 18 U.S.C. § 924(e).

On appeal, Defendant challenges the district court’s denial of his motion to suppress firearm evidence, an issue preserved for appeal by conditional plea. Defendant also challenges the enhancement of his sentence under the ACCA, Defendant argues that, in light of Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), a case decided during the pendency of this appeal, the district court erred in finding that his prior West Virginia burglary convictions constitute qualifying predicate crimes for purposes of the ACCA.

For the reasons that follow, we affirm the district court’s denial of the suppression motion but find that, because of an intervening change in law following sentencing, the district court erroneously sentenced Defendant under the ACCA. We therefore affirm Defendant’s conviction, vacate Defendant’s sentence, and remand for resentencing.

I.

On July 9, 2013, Corporal Justin Doughty (“Corporal Doughty”) of the Charleston Police Department was on patrol in a marked police cruiser in Charleston, West Virginia when he observed a car veer out of its lane. Corporal Doughty initiated a traffic stop to ascertain whether the driver was impaired. Erica Teunis was driving the car. Defendant was in the front passenger seat, and another male, referred to only as “Bone,” was seated in the rear.

When he approached the driver’s window, Corporal Doughty smelled an odor of burned marijuana emanating from the car. After obtaining Ms. Teunis’s driver’s license, Corporal Doughty asked Ms. Teunis to exit the car in order to speak with her outside the presence of the two passengers. Based on his observation of and conversation with Ms. Teunis, Corporal Doughty concluded that she was not intoxicated or otherwise impaired. While assessing whether Ms. Teunis was impaired, Corporal Doughty also inquired about the odor of marijuana. Ms. Teunis responded that she did not smoke marijuana but did not know about the other two passengers in the car.

After speaking with Ms. Teunis, Corporal Doughty requested that Defendant exit the car and then asked Defendant about the marijuana odor. Defendant denied having anything illegal in the vehicle. Corporal Doughty then placed Defendant in his police cruiser, otherwise unrestrained, and returned to the car to speak with Bone. While speaking with Bone, Corporal Doughty observed a firearm tucked in a piece of plastic molding on the side of the passenger seat where Defendant had been sitting. At that time, Corporal Doughty returned to his cruiser, placed Defendant in handcuffs, and radioed for backup.

When backup officers arrived, Corporal Doughty returned to the car and removed the firearm. After being read his Miranda rights, Defendant admitted to Corporal Doughty, that the firearm belonged to him.

During the stop, Corporal Doughty also called for an officer to conduct a canine sniff to investigate the marijuana odor. The canine alerted at the passenger door and the car’s center console, but it is unclear from the record if the search revealed a detectable amount of marijuana.

Defendant was indicted in the United States District Court for the Southern District of West Virginia for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Defendant moved to suppress the firearm evidence obtained from the traffic stop. Following a hearing, the district court denied the motion. The district court found that reasonable suspicion supported the initial stop based upon Corporal Doughty’s observation of Ms. Teunis’s car veering out of its lane. United States v. White, No. 2:13-CR-00224, 2014 WL 4629385, at *4 (S.D.W. Va. Sept. 15, 2014). The court also concluded that the odor of marijuana provided Corporal Doughty with reasonable suspicion to extend the traffic stop and, ultimately, probable cause to search the passenger compartment of the car, where the firearm was recovered. Id. at *6.

Defendant subsequently entered into a conditional plea agreement with the government, in which he agreed to plead guilty to being a felon in possession of a firearm. Pursuant to the plea agreement, Defendant preserved his right to appeal the denial of the suppression motion. Defendant entered his guilty plea on October 1, 2014.

In the presentence report, the probation officer classified Defendant as an armed career criminal under the ACCA, based on a prior West Virginia state robbery conviction and three prior West Virginia state burglary convictions. At sentencing, Defendant did not object to the ACCA designation. Finding Defendant subject to the ACCA sentence enhancement, the district court sentenced Defendant to the mandatory minimum term of fifteen years’ imprisonment. See 18 U.S.C. § 924(e)(1). Absent the enhancement, Defendant would have faced a maximum sentence of ten years. 18 U.S.C. § 924(a)(2).

II.

A.

We first consider Defendant’s argument that the district court erred in refusing to suppress the firearm evidence obtained during the traffic stop. In particular, Defendant claims that the evidence was obtained only after Corporal Doughty unconstitutionally prolonged the stop. Regarding this challenge, we review the district court’s factual findings for clear error and its legal conclusions de novo. United States v. Perkins, 363 F.3d 317, 320 (4th Cir. 2004).

When a police officer stops a car and detains its occupants, the traffic stop amounts to a “seizure” within the meaning of the Fourth Amendment. Brendlin v. California, 551 U.S. 249, 255, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007); Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Therefore, to pass constitutional muster, the stop must “not be ‘unreasonable’ under the circumstances.” Whren, 517 U.S. at 810, 116 S.Ct. 1769.

We employ the two-prong standard articulated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), to assess the constitutionality of a traffic stop. United States v. Vaughan, 700 F.3d 705, 709 (4th Cir. 2012). First, we examine whether the officer had a constitutionally adequate basis for initiating the traffic stop. United States v. Rusher, 966 F.2d 868, 875 (4th Cir. 1992). Second, we examine whether the officer’s subsequent actions were “ ‘sufficiently limited in scope and duration.’ ” United States v. Guijon-Ortiz, 660 F.3d 757, 764 (4th Cir. 2011) (quoting Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion)).

As to the first prong, reasonable suspicion or probable cause to believe that a traffic violation has occurred provides law enforcement officers with a constitutionally adequate basis to initiate a traffic stop. Whren, 517 U.S. at 810, 116 S.Ct. 1769; United States v. Kellam, 568 F.3d 125, 136 (4th Cir. 2009) (“[I]f an officer has probable cause or a reasonable suspicion to stop a vehicle, there is no intrusion upon the Fourth Amendment.” (quoting United States v. Hassan El, 5 F.3d 726, 730 (4th Cir. 1993))).

Under the second prong, the scope of the traffic stop must not exceed the “least intrusive means reasonably available to verify or dispel the' officer’s suspicion in a short period of time.” Guijon-Ortiz, 660 F.3d at 764 (quoting Royer, 460 U.S. at 500, 103 S.Ct. 1319). Further, the duration of the stop must be reasonable in light of its purpose. See id.; see also Illinois v. Caballes, 543 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005) (noting that a traffic stop may “become unlawful if it is prolonged beyond the time .reasonably required to complete [its] mission”). In the context of a stop for a traffic violation, the officer may “request[] a driver’s license and vehicle registration, run[ ] a computer check, and issu[e] a ticket.” Guijon-Ortiz, 660 F.3d at 764-65 (quoting United States v. Digiovanni, 650 F.3d 498, 507 (4th Cir. 2011)). The officer must limit the duration of the stop to the length of time reasonably necessary to “issue the driver a citation and determine that the driver is entitled to operate his vehicle.” United States v. Branch, 537 F.3d 328, 337 (4th Cir. 2008). “[W]hen [the] tasks tied to the traffic infraction are — or reasonably should have been — completed,” however, the officer’s “[a]uthority for the seizure ... ends.” Rodriguez v. United States, — U.S. —, 135 S.Ct. 1609, 1614, 191 L.Ed.2d 492 (2015).

To prolong the stop beyond the scope of the traffic violation, the officer must obtain the driver’s consent or possess reasonable suspicion of criminal activity. United States v. Williams, 808 F.3d 238, 245-46 (4th Cir. 2015); Vaughan, 700 F.3d at 710. “In order to demonstrate reasonable suspicion, a police officer must offer ‘specific and articulable facts’ that demonstrate at least ‘a minimal level of objective justification’ for the belief that criminal activity is afoot.” Branch, 537 F.3d at 337 (quoting Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000)).

Defendant does not challenge the initial basis for the traffic stop; it is undisputed that Corporal Doughty observed Ms. Teunis’s vehicle veer out of its lane prior to the stop. See W. Va. Code § 17C-7-9(a)(1) (“A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.”). Rather, Defendant challenges the stop’s duration. Specifically, Defendant argues that once Corporal Doughty determined that Ms. Teunis was not intoxicated or otherwise impaired, the stop should have ended. Defendant’s argument is without merit.

This Court has “repeatedly held that the odor of marijuana alone can provide probable cause to believe that marijuana is present in a particular place.” United States v. Humphries, 372 F.3d 653, 658 (4th Cir. 2004). Therefore, “when marijuana is believed to be present in an automobile based on the odor emanating therefrom, we have found probable cause to search the automobile.” Id.; see also, e.g., United States v. Lewis, 606 F.3d 193, 198 (4th Cir. 2010) (finding probable cause justifying a vehicle search when an officer “smelled the odor of marijuana emanating from the vehicle”); United States v. Carter, 300 F.3d 415, 422 (4th Cir. 2002) (holding that an officer “clearly had probable cause to search the passenger compartment of [the] vehicle without a warrant, based on the burning marijuana he smelled as he approached the car”).

Corporal Doughty smelled the odor of burned marijuana when he first approached the car — before he had an opportunity to investigate the potential traffic infraction that initially justified the stop. At that point, Corporal Doughty had reasonable suspicion to extend the traffic stop for a period of time sufficient to investigate the marijuana odor. Humphries, 372 F.3d at 658; see also Wardlow, 528 U.S. at 123, 120 S.Ct. 673 (“[Reasonable suspicion is a less demanding standard than probable cause.” (internal quotation marks omitted)). Accordingly, the district court did not' err in holding that the odor of burned marijuana provided Officer Doughty with reasonable suspicion to extend the stop.

Defendant also challenges the district court’s decision to credit Corporal Doughty’s testimony that he smelled burned marijuana. We accord a district court’s findings based on assessments of witness credibility the “highest degree of appellate deference.” United States v. Thompson, 554 F.3d 450, 452 (4th Cir. 2009) (quotation omitted). Accordingly, we will overturn a district court’s credibility finding only if the witness’ testimony is “so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it” or if the testimony is contradicted by objective evidence. Anderson v. City of Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). At the suppression hearing, Corporal Doughty testified unequivocally that he smelled burned marijuana. Further, his subsequent actions — inquiring with the car’s occupants concerning marijuana and requesting a canine sniff — corroborate his statement. The district court properly exercised its discretion in crediting Corporal Doughty’s testimony.

Accordingly, the district court did not err when it denied Defendant’s motion to suppress. We therefore affirm Defendant’s conviction.

B.

We next consider Defendant’s challenge to his sentence under the ACCA. The ACCA prescribes a fifteen-year mandatory minimum sentence when a defendant is convicted of being a felon in possession of a firearm and has three or more prior convictions that qualify as “violent felonies].” 18 U.S.C. §. 924(e)(1). The ACCA defines “violent felony” to mean a felony that

'(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another ....

Id, § 924(e)(2)(B).

The final clause of the above definition— which references conduct “presenting] a serious potential risk of physical injury to another” — has become known as the ACCA’s “residual clause.” Johnson, 135 S.Ct. at 2556. In Johnson, a case decided during the pendency of this appeal, the Supreme Court held that the residual clause is unconstitutionally vague and therefore violates due process. Id. at 2557. However, the Court’s holding “d[id] not call into question ... the remainder of the [ACCA’s] definition of a violent felony.” Id. at 2563.

Shortly after Johnson, Defendant filed supplemental briefing challenging his sentence. Defendant argues that, although his burglary convictions under W. Va. Code § 61-3-ll(a) met the definition of a “violent felony” under the residual clause at the time of his sentencing, they can no longer qualify as such in light of that clause’s invalidation in Johnson. The government counters that Defendant has abandoned this sentencing claim because he did not raise the issue in his opening brief. The government also contends that, regardless of the constitutionality of the residual clause, the West Virginia burglary convictions qualify as ACCA predicate crimes because burglary is an offense specifically enumerated in the ACCA’s “violent felony” definition. See 18 U.S.C. § 924(e)(2)(B)(ii).

1.

As a preliminary matter, we address the government’s argument that Defendant has abandoned the opportunity to appeal his sentence because Defendant raised the issue for the first time in supplemental briefing, rather than in his opening brief. Typically, we consider “contentions not raised in the argument section of the opening brief [to be] abandoned.” United States v. Al-Hamdi, 356 F.3d 564, 571 n.8 (4th Cir. 2004); see also Fed R. App. P. 28(a)(8)(A); Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999). However, this Court may, in its discretion, deviate from this rule in appropriate circumstances. See A Helping Hand, LLC v. Baltimore Cty., 515 F.3d 356, 369 (4th Cir. 2008) (explaining that the Court may exercise its discretion to consider an abandoned argument if “a miscarriage of justice would otherwise result” (internal quotation marks omitted))'.

Although we have not squarely addressed whether an intervening case presents such a circumstance, our unpublished decisions indicate that we have routinely allowed — and even requested — supplemental briefing on new arguments or claims when an intervening court decision upends precedent relevant to an appeal. See, e.g., United States v. Billups, No. 14-4959, 2016 WL 3254700, at *1 n.1 (4th Cir. June 14, 2016) (considering a challenge to an ACCA sentence that was first raised in supplemental briefing after Johnson); United States v. Starkie, 615 Fed.Appx. 132, 133 (4th Cir. 2015) (granting a petition for panel rehearing and directing the parties to submit supplemental briefing “addressing whether, in light of Johnson, the district court committed reversible error by classifying [the defendant] as an armed career criminal under the ACCA”); United States v. Musleh, 106 Fed.Appx. 850, 857 n.4 (4th Cir. 2004) (noting the Court’s sua sponte order for supplemental briefing after Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004)). Our sister circuits do the same. See, e.g., United States v. Durham, 795 F.3d 1329, 1330-31 (11th Cir. 2015); Joseph v. United States, — U.S. -, 135 S.Ct. 705, 706, 190 L.Ed.2d 461 (2014) (Kagan, J., respecting the denial of cert.) (collecting cases).

Additionally, common sense dictates that an appellant can only “abandon” an argument that was actually available to him. See Joseph, 135 S.Ct. at 706 (“When a new claim is based on an intervening Supreme Court decision ... the failure to raise the claim in an opening brief reflects not a lack of diligence, but merely a want of clairvoyance.”). We therefore hold that when an intervening decision of this Court or the Supreme Court affects precedent relevant to a case pending on direct appeal, an appellant may timely raise a new argument, case theory, or claim based on that decision while his appeal is pending without triggering the abandonment rule.

That is exactly what happened in this case. At the time Defendant filed his opening brief — regardless of whether his West Virginia burglary convictions constitute “burglary” for purposes of Section 924(e)(2)(B)(ii) — it would have been futile for him to argue that those convictions did not qualify as ACCA violent felonies because they fell under the residual clause. In United States v. Davis, 689 F.3d 349 (4th Cir. 2012), we held that the similar West Virginia crime of attempted breaking and entering qualified as such under the residual clause because the crime posed the possibility of a “face-to-face confrontation between the burglar and a third party.” Id. at 358 (quotation omitted). This rationale would have applied equally to burglary under W. Va. Code § 61-3-ll(a). Moreover, at the time of Defendant’s opening brief, it was settled law that the residual clause was not unconstitutionally vague. James v. United States, 550 U.S. 192, 210 n.6, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007); see also Sykes v. United States, 564 U.S. 1, 15-16, 131 S.Ct, 2267, 180 L.Ed.2d 60 (2011). When the Supreme Court decided Johnson, it expressly overruled this precedent. 135 S.Ct. at 2563. Shortly thereafter, Defendant sought this Court’s leave to file supplemental briefing and challenge his sentence under the ACCA. We therefore conclude that Defendant has properly raised his ACCA claim.

2.

Turning to the merits, the question before us is whether Defendant’s West Virginia burglary convictions can still meet the definition of an ACCA violent felony, despite the Supreme Court’s invalidation of the residual clause. Specifically, we consider whether Defendant’s convictions for burglary under W. Va. Code § 61-3-ll(a) qualify as “burglary” within the meaning of the ACCA. See 18 U.S.C. § 924(é)(2)(B)(ii).

Because Defendant did not challenge his ACCA designation before the district court, we review for plain error. Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Under the plain error standard, Defendant must show that (1) there was an error; (2) the error is plain; and (3) the error affects substantial rights. Molina-Martinez v. United States, — U.S. -, 136 S.Ct. 1338, 1343, 194 L.Ed.2d 444 (2016); Plano, 507 U.S. at 732, 113 S.Ct. 1770. We may then exercise our discretion to correct the error if it “ ‘seriously affects the fairness, integrity or public reputation of judicial proceedings.’ ” Molina-Martinez, 136 S.Ct. at 1343 (quoting Plano, 507 U.S. at 736, 113 S.Ct. 1770).

To determine whether a prior conviction qualifies as an ACCA enumerated offense, courts employ what is known as “the categorical approach.” Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 2283, 186 L.Ed.2d 438 (2013). Under this approach, the court “focus[es] solely on whether the elements of the crime of conviction sufficiently match the elements of [the listed] generic [crime], while ignoring the particular facts of the case.” Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 2248, 195 L.Ed.2d 604 (2016). An offense’s federal generic definition may differ from the offense’s state-law definition. Thus, in applying the categorical approach, a state conviction will qualify as an enumerated offense, and thus a predicate crime under the ACCA, only if the elements of the state-law crime of conviction “are the same as, or narrower than, those of the [ACCA-enumerated] generic offense,” regardless of whether the defendant actually committed the offense in its generic form. Id.; Descamps, 133 S.Ct. at 2283.

Regarding the elements of the generic offense at issue in this case, the Supreme Court has defined generic burglary as the “unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” Taylor v. United States, 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Defendant contends that the West Virginia burglary statute sweeps more broadly than generic burglary because it covers enclosures other than “building[s] or ... structure^].” We agree.

Generic burglary’s “building or other structure” element does not encompass every enclosure. For example, in Shepard v. United States, 544 U.S. 13, 15-16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), the Supreme Court stated that the generic offense refers to burglary “committed in a building or enclosed space ... not in a boat or motor vehicle.” Similarly, the Supreme Court recently found an Iowa burglary statute to encompass conduct outside the bounds of generic burglary because the statute specified that the crime could occur in a “land, water, or air vehicle.” Mathis, 136 S.Ct. at 2250 (quoting Iowa Code § 702.12 (2013)); see also Taylor, 495 U.S. at 599, 110 S.Ct. 2143 (describing a state burglary offense that prohibited breaking and entering “any booth or tent, or any boat or vessel, or railroad car” as nongeneric burglary (quoting Mo. Rev. Stat. § 560.070 (1969) (repealed))).

The burglary statute relevant here, W. Va. Code § 61-3-ll(a), provides:

If any person shall, in the nighttime, break and enter, or enter without breaking, or shall, in the daytime, break and enter, the 'dwelling house, or an outhouse adjoining thereto or occupied therewith, of another, with intent to commit a crime therein, he shall be deemed guilty of burglary.

W. Va. Code § 61-3-ll(a) (emphasis add^ ed). Section 61 — 3—11(c) provides a non-exhaustive list of those enclosures that can constitute a “dwelling house,” providing that

[t]he term “dwelling house,” ... shall include, but not be limited to, a mobile home, house trailer, modular home, factory-built home or self-propelled motor home, used as a dwelling regularly or only from time to time, or any other nonmotive vehicle primarily designed for human habitation and occupancy and used as a dwelling regularly or only from time to time.

Id. § 61-3-ll(c). Significantly, the statutory definition includes “vehicle[s].” Id. Indeed, the statute identifies a “self-propelled motor home,” a vehicle regulated by West Virginia’s Motor Vehicle Administration statutes, as an example of a “dwelling house.” Id.; see id. § 17A. — 1—1(11) (defining a “[m]otor home” as a “vehicle”). Thus, in criminalizing burglary of a dwelling house, the West Virginia burglary statute encompasses conduct that is excluded from the definition of generic burglary.

The government nonetheless argues that the term dwelling house “substantially corresponds” with generic burglary’s building or structure element because the term refers to enclosures used as residences. Ap-pellee’s Supp. Br. at 8-9. Our decision in United States v. Henriquez, 757 F.3d 144 (4th Cir. 2014), forecloses this argument.

In Henriquez, we considered whether Maryland first degree burglary, which requires the breaking and entering of a “dwelling of another,” constitutes generic burglary under the categorical approach. 757 F.3d at 148, 151. Although the Maryland statute at issue “d[id] not define the term ‘dwelling,’ ” we found that Maryland state courts had construed the term- to mean “a place where a person resides and sleeps.” Id. at 148-49. Taking note of the fact that a Maryland court “ha[d] already deemed a recreational vehicle a dwelling” and that the dwelling definition adopted by Maryland courts “easily could cover” other enclosures that the “United States Supreme Court has clearly excluded ... from the definition of generic burglary,” such as “houseboatfs],” we concluded that Maryland’s first degree burglary statute encompassed conduct outside the scope of generic burglary, and thus the statute did not qualify as ACCA “burglary” under the categorical approach. Id. at 149-50,

The rationale from Henriquez governs this case. Like the Maryland definition of dwelling, the West Virginia burglary statute’s reference to a dwelling house “easily could cover” enclosures that are excluded from the generic definition of burglary, such as vehicles. Id. at 149. Indeed, the statutory definition of the term includes vehicles explicitly. W. Va. Code § 61-3-11(c). And, just as it was immaterial in Henriquez that Maryland’s definition of “dwelling” would only capture an enclosure “where a person resides or sleeps,” id. the fact that the West Virginia definition of “dwelling house” refers to enclosures used as residences or dwellings “regularly or ... from time to time,” W. Va. Code § 61-3 — 11(c), does not change the result here. Because W. Va. Code § 61-3-ll(a) criminalizes burglary of a “dwelling house”' — a term that reaches enclosures excluded from generic burglary’s building or structure element — Defendant’s prior burglary convictions do not qualify as the ACCA enumerated offense of “burglary” under the categorical approach.

Accordingly, we conclude that Defendant’s prior West Virginia burglary convictions do not meet the ACCA definition of a “violent felony,” and the district court thus erred in enhancing Defendant’s sentence under the ACCA.

Having determined that there was an error, we address whether the other requirements of the plain error standard are met. The second requirement of the plain error standard is that the error must be “plain,” i.e., “clear or obvious.” Molina-Martinez, 136 S.Ct. at 1343. In this regard, “[a]n error is plain ‘if the settled law of the Supreme Court or this circuit establishes that an error has occurred.’ ” United States v. Carthorne, 726 F.3d 503, 516 (4th Cir. 2013) (quoting United States v. Maxwell, 285 F.3d 336, 342 (4th Cir. 2002)). Moreover, regardless of “whether a legal question was settled or unsettled at the time of trial, ‘it is enough that an error be “plain” at the time of appellate consideration.’ ” Henderson v. United States, — U.S. -, 133 S.Ct. 1121, 1130, 185 L.Ed.2d 85 (2013) (quoting Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)).

Controlling precedent establishes that the error at issue in this appeal is plain. After Johnson, Defendant’s prior convictions cannot qualify as ACCA violent felonies under the residual clause. Further, in light of this circuit’s decision in Henriquez, W. Va. Code § 61-3-11(a) “is not reasonably susceptible to an interpretation” that it falls within the generic definition of burglary under the categorical approach. Maxwell, 285 F.3d at 342. We therefore conclude that the second requirement of the plain error standard is satisfied.

To satisfy the third plain error requirement the error must affect substantial rights. In the sentencing context, an error affects substantial rights if there is “a reasonable probability that,” but for the error, “the district court would have imposed a different sentence.” Molina-Martinez, 136 S.Ct. at 1349. Without the ACCA enhancement, the statutory maximum sentence for Defendant’s felon in possession of a firearm conviction is ten years. 18 U.S.C. § 924(a)(2). Thus, the sentencing error affected Defendant’s substantial rights by compelling a five-year increase in his term of incarceration. See United States v. Boykin, 669 F.3d 467, 472 (4th Cir. 2012) (finding that an erroneous ACCA designation affected the defendant’s substantial rights); Maxwell, 285 F.3d at 342-43 (finding a sentence in excess of the statutory maximum to affect defendant’s substantial rights).

Finally, we may exercise our discretion to correct an error that “ ‘seriously affects the fairness, integrity or public reputation of judicial proceedings.’ ” Molina-Martinez, 136 S.Ct. at 1343 (quoting Piano, 507 U.S. at 736, 113 S.Ct. 1770). Here, “[tjhere would clearly be a ‘miscarriage of justice’ were we to allow ... a severe sentence enhancement to be applied inconsistently with the law.” Boykin, 669 F.3d at 472. We therefore exercise our discretion to grant Defendant relief.

III.

For the foregoing reasons, we affirm Defendant’s conviction, vacate Defendant’s sentence, and remand for resentencing.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

      . Because Defendant appeals the denial of a motion to suppress, we recount the factual background in the light most favorable to the government, the prevailing party below. See United States v. Uzenski, 434 F.3d 690, 704 (4th Cir. 2006).

      . Although the presentence investigation report does not specify the subsection of West Virginia’s burglary statute under which Defendant was convicted, the sentence Defendant received corresponds to W. Va. Code § 61-3-11(a). Likewise, the parties' briefing indicates Defendant was convicted under that subsection.

      . A modification of the categorical approach — aptly named the "modified categorical approach" — may be used when the underlying state crime is "divisible” such that it "consists of 'multiple, alternative elements’ creating 'several different crimes,' some of which would match the generic federal offense and others that would not.” Omargharib v. Holder, 775 F.3d 192, 197-98 (4th Cir. 2014) (quoting Descamps, 133 S.Ct. at 2284-85). Under the modified categorical approach, a sentencing court looks to so-called Shepard documents, such as the indictment, jury instructions, or plea agreement, to ascertain which of the alternative elements encompass the defendant’s crime of conviction. Mathis, 136 S.Ct. at 2249 (citing Shepard, 544 U.S. at 26, 125 S.Ct. 1254). The court then compares the elements of the crime of conviction with those of the generic offense. Descamps, 133 S.Ct. at 2281.
      During oral argument, the question was raised as to whether W. Va. Code § 61 — 3— 11(a) is divisible because it states alternative locational elements. See W. Va. Code § 61 — 3— 11(a) (criminalizing entry into a "dwelling house, or an outhouse” (emphasis added)). Neither party briefed this issue, and the district court did not address it below. Moreover, there are no Shepard documents in the record pertinent to Defendant’s West Virginia burglary convictions. We therefore need not and do not reach the question of divisibility to resolve this appeal. See United States v. McLeod, 808 F.3d 972, 977 (4th Cir. 2015) (holding that a conviction under a divisible statute could not qualify as ACCA "burglary” pursuant to the modified categorical approach when there were no Shepard documents "to show that the crime of conviction was generic burglary”). Nor do we express any view as to whether W. Va. Code § 61-3-11(a) satisfies the other elements of generic burglary — such as the “unlawful or unprivileged entry” element — under the categorical or modified categorical approaches.

      . Prior decisions from this circuit finding West Virginia state burglary convictions to qualify as ACCA burglary do not undercut this conclusion. See United States v. Lewis, 75 Fed.Appx. 164, 166 (4th Cir. 2003); United States v. Blankenship, No. 92-5354, 1993 WL 40857, at *1 (4th Cir. Feb. 18, 1993). These unpublished decisions not only predate Henri-quez, but also the Supreme Court’s decision in Descamps, which clarified the proper application of the categorical and modified categorical approaches. See 133 S.Ct. at 2283-86.


source: Caselaw Access Project

author: Carl E. Stewart, Chief Judge:

license: Public Domain

text:
    In the MATTER OF: Jerry W. SCARBROUGH, Debtor. Jerry W. Scarbrough, Appellant, v. Helen Purser; Joann M. Purser; Sue E. Purser; Gary W. Purser, Jr.; Elizabeth Tipton, Appellees.
    No. 15-51045
    United States Court of Appeals, Fifth Circuit.
    September 1, 2016

      Stephen W. Sather, Barron & Newbur-ger, P.C., Austin, TX, for Appellant.
    Daryl Lane Moore, Houston, TX, Joshua John White, Haley & Olson, P.C., Waco, TX, for Appellees.
    Before STEWART, Chief Judge, and CLEMENT and HAYNES, Circuit Judges.
   Carl E. Stewart, Chief Judge:

Debtor-Appellant Jerry W. Scarbrough (“Scarbrough”) appeals the district court’s order affirming a bankruptcy court judgment that declared nondischargeable a Texas state court judgment against him. This case involves several familial disputes stemming from an employment lawsuit, an alleged extramarital affair, the death of the family patriarch, and secret recordings. We AFFIRM.

I.

Beginning in 2010, Scarbrough represented Melissa Deaton (“Deaton”) in a Texas state court proceeding brought by a third party against Plaintiffs-Appellees Helen Purser, JoAnn Purser, Sue Purser, Gary Purser, Jr. and Elizabeth Tipton (collectively, the “Appellees”). During the course of this representation, Appellees joined Scarbrough as a third-party defendant with Deaton and another party, Denise Steele (“Steele”). Appellees alleged that Deaton and Steele were attempting to secure financial gain from Gary Purser as his health declined. During trial, Appellees requested all discoverable evidence or known witness statements relating to the state court litigation. Scarbrough prepared responses to Appellees initial discovery requests, stating that Deaton did not possess any recorded statements involving the parties in the lawsuit. Months later, however, Deaton provided Scarbrough with “Secret Recordings” that Scarbrough had duplicated by Shawn Richeson (“Richeson”). Scarbrough failed to disclose the “Secret Recordings” to the court or Appellees but instead gave the recordings back to Dea-ton. The recordings contained information alleging that Deaton and Steele sought to take advantage of Gary Purser financially. Appellees had not become aware of the Secret Recordings and had not retained possession of them until Richeson produced the recordings to a friend of the Purser family. The state court sanctioned Scarbrough for his intentional withholding of the recordings among other conduct. Scarbrough’s conduct is alleged as follows.

Between 2010 and 2011, Scarbrough conspired with Deaton to file a police report alleging that JoAnn Purser called Deaton and threatened to kill her; Scarb-rough filed a motion to appoint a guardian ad litem for Gary Purser; and reported to the Texas Department of Adult Protective Services that Appellees were committing elder abuse against Gary Purser. Following Gary Purser’s death in 2011, Scarb-rough attempted to obtain an autopsy report and reported to the funeral home, local justices of the peace, two local police departments and the Texas Rangers that Appellees likely killed Gary Purser by overdosing him on prescription drugs. Also in 2011, Scarbrough uploaded a video on YouTube of multiple altercations that occurred amongst Appellees, Deaton, and other nonparties to this suit where profanity and physical altercations transpired. Scarbrough superimposed text across the video images specifically implicating JoAnn Purser, who was then running for a position with the Killeen school board. The , text included the phrases “VOTED OUT” and “JoAnn Purser, running for Killeen school board.”

Appellees obtained several orders in Texas state court against Scarbrough for fraud, civil conspiracy, and defamation. Scarbrough filed for Chapter 7 Bankruptcy in June 2012. On September 10, 2012, while the underlying suit was ongoing, Ap-pellees brought an adversary proceeding in bankruptcy court seeking a nondis-chargeability determination against Scarb-rough for multiple debts stemming from the state court judgment under 11 U.S.C. 523(a)(2), (4) and (6). Specifically, Appel-lees sought nondischargeability for, inter alia, debts (1) for money and property obtained by false pretenses, a false representation, or actual fraud and (2) due to Scarbrough causing willful and malicious injury to Appellees. Appellees filed an Amended Complaint on November 19, 2012. Scarbrough filed a motion to dismiss Appellees’ Amended Complaint on November 21, 2012, for failure to state a claim.

After granting partial summary judgment and conducting a nine-day trial on the merits, the bankruptcy court concluded that (1) the judgments against Scarbrough for defamation and for fraud were each nondisehargeable under the willful and malicious injury discharge exception in § 523(a)(6); (2) the judgment against Scarbrough for fraud due to Scarbrough’s failure to disclose, and fraud by misrepresentation, was nondisehargeable under the “false pretenses, false representation, or actual fraud” discharge exception in § 523(a)(2)(A); and (3) Scarbrough’s privilege and First Amendment assertions as affirmative defenses were collaterally es-topped, as they were “actually litigated” in state court. Scarbrough appealed the bankruptcy court decision. The district court affirmed and Scarbrough now appeals to this Court.

II.

Scarbrough does not argue that the bankruptcy court misunderstood or misapplied governing bankruptcy law, but that the court erred in granting summary judgment and clearly erred in several of its factual findings. We review the decision of the district court by applying the same standard to the bankruptcy court’s findings of fact and conclusions of law that the district court did, reviewing findings of fact for clear error and conclusions of law de novo. See In re Acosta, 406 F.3d 367, 372 (5th Cir. 2005); In re Gamble, 143 F.3d 223, 225 (5th Cir. 1998). A finding of fact is clearly erroneous only if “on the entire evidence, the court is left with the definite and firm conviction that a mistake has been committed.” In re Dennis, 330 F.3d 696, 701 (5th Cir. 2003). We review a partial grant of summary judgment de novo and apply the same standards used by the district court. In re Criswell, 102 F.3d 1411, 1414 (5th Cir. 1997).

III.

A.

Scarbrough first argues that Ap-pellees’ late-filed Amended Complaint addressing sanction orders was time-barred. A creditor seeking to have a debt deemed nondisehargeable must assert the claim in a timely manner. See In re Dunlap, 217 F.3d 311, 314 (5th Cir. 2000); see also In re Meyer, 120 F.3d 66, 68 (7th Cir. 1997). The deadline for filing a dischargeability complaint is inflexible. Id. (stating that Bankruptcy Rule 4007(c) imposes a firm 60-day deadline (after the first creditors’ meeting) for creditors to request a nondischarge-ability determination for debts under §§ 532(a)(2) and (a)(6)). Notwithstanding, a party’s amended complaint may determine dischargeability if “the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out ... in the original pleading.” Fed. R. Civ. P. 15(c)(1); Fed. R. Bank. P. 7015.

Scarbrough complains that the bankruptcy court erred when it permitted Appellees to file an amended complaint after the expiration of the 60-day filing period set forth in Bankruptcy Rule 4007(c). Scarbrough argues that Appellees’ original complaint did not assert claims for nondischargeability of sanction debts as specified in the Amended Complaint, and that the Amended Complaint did not relate back to the original complaint. We disagree.

The relation back doctrine is critical here because it determines whether Appel-lees’ Amended Complaint must be dismissed as futile. See Baker v. Carter, No. 4:12-CV-478, 2013 WL 1196106, at *7 (E.D. Tex. Mar. 22, 2013). If so, Appellees have no claim for nondischargeability of the sanction debt. We construe Appellees’ original complaint to assert that Debtor “alone or in concert with others, obtained monies through false pretenses, a false representation or actual fraud; committed fraud and defalcation while acting in a fiduciary capacity, and committed a willful and malicious injury.” Appellees attached and incorporated by reference their state court pleading. While Appellees’ initial complaint did not mention the sanctions orders, the conduct that Appellees identify in the Amended Complaint directly emanates from the conduct for which the court sanctioned Scarbrough and from the conduct specified in Appellees state court pleading: (1) Scarbrough engaged in conduct that was defamation per se, including accusing Appellees of murder; (2) Scarb-rough failed to disclose recordings that proved Appellees’ allegations; and (3) Scarbrough made numerous false representations to the court and third parties pertaining to Appellees.

The Amended Complaint did not allege new grounds for finding Scarbrough’s debt nondischargeable, but merely added specific facts consistent with the nondis-chargeability claim advanced in their origi- • nal complaint. See In re Schwager, 121 F.3d 177, 186 (5th Cir. 1997) (finding no abuse of discretion where an amended complaint made more specific that which had already been alleged because the amendments related back to the original complaint); see also Baker, 2013 WL 1196106, at *8 (“This standard is measured not by ‘the caption given a particular cause of action, but ... the underlying facts upon which the cause of action is based.’ ”) (quoting Cardiovascular Surgery of Alexandria, LLC v. Kerry, No. CIV.A. 10-1003, 2011 WL 672244, at *3 (W.D. La. Feb. 17, 2011)). The bankruptcy court held, and we agree, that Appellees raised the issue of sanctions based on allegations of fraud and causing willful and malicious injury. Scarbrough had ample notice of these claims because Appellees pleaded §§ 523(a)(2) and (a)(6) as a basis for non-dischargeability. Accordingly, Scarb-rough’s sanctionable state court conduct relates back to the conduct alleged in the original complaint.

B.

Scarbrough next argues that the district court erred in granting partial summary judgment on the issue of sanction orders based on collateral estoppel. This argument lacks merit. The sanction debt in the judgment, which incorporates the sanction orders, meets the requirements of nondischargeability under § 523(a)(6) for committing willful and malicious injury.

Under the Bankruptcy Code, a debtor may not be discharged from any debt “for willful and malicious injury by the debtor to another entity or to the • property of another entity.” 11 U.S.C. § 523(a)(6). Here, the state court signed sanction orders for conduct ranging from “intentional concealment and deception” regarding the existence of audio recordings and willful violation of various court orders to Scarb-rough’s willful filing of frivolous motions to harass Appellees. We find this conduct sufficient to have met 523(a)(6)’s standard. See In re Keaty, 397 F.3d 264, 273 (5th Cir. 2005); see also, In re Dahlstrom, 129 B.R. 240, 246 (Bankr. D. Utah 1991) (“[A]ll debts that arise from willful and malicious acts are nondischargeable.”). The state court likewise held Scarbrough in civil and criminal contempt for engaging in discovery abuse that was “active[ly] deceptive].” In re Williams, 337 F.3d 504, 512 (5th Cir. 2003) (“Failure to obey a court order constitutes willful and malicious conduct....”).

Scarbrough contends that, even if Ap-pellees show that he intentionally committed an act that harmed Appellees, Appel-lees fail to establish that this harm was intended. See Kawaauhau v. Geiger, 523 U.S. 57, 61-62, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). The willful and malicious injury that occurred here is evidenced by both (1) an objective substantial certainty of harm and (2) a subjective motive to cause harm. In re Davenport, 353 B.R. 150, 202 (Bankr. S.D. Tex. 2006). The record reflects that Scarbrough intentionally concealed evidence when failing to disclose the Secret Recordings to the court after multiple discovery requests were made, willfully violated various court orders, and filed frivolous motions before the court; Scarbrough’s “scorched earth” strategy impacted the litigation strategy of Appel-lees. The record reflects clear and specific findings as to Scarbrough’s state of mind. We find no error in the lower court’s determination.

IV.

A.

Scarbrough next contends that the bankruptcy court erred in granting partial summary judgment on Appellees’ claims under § 523(a)(2) for fraud. Again, we disagree.

First, Scarbrough invokes error in the court’s collateral estoppel finding, which bars re-litigation of any ultimate issue of fact actually litigated and essential to the judgment. See In re Gober, 100 F.3d 1195, 1201 (5th Cir. 1996). Prior to the U.S. Supreme Court’s ruling in Husky Int’l Elecs., Inc. v. Ritz, — U.S. -, 136 S.Ct. 1581, 194 L.Ed.2d 655 (2016), this Circuit required that a finding of fraud under § 523(a)(2) show: (1) that the debtor made a representation; (2) that the debtor knew the representation was false; (3) that the representation was made with the intent to deceive the creditor; (4) that the creditor actually and justifiably relied on the representation; and (5) that the creditor sustained a loss as a proximate result of its reliance. In re Acosta, 406 F.3d at 372. The bankruptcy court granted partial summary judgment for Appellees on the fraud elements that the state court jury found and thereafter conducted a bench trial rendering judgment on the issues the state court jury had not considered— fraudulent intent and justifiable reliánce. Scarbrough asserts that once the bankruptcy court concluded that the two factual issues not considered by the jury had to be tried, all factual issues related to the fraud claim must be re-tried. Not so. The bankruptcy court explicitly did not re-litigate the essential elements of the fraud claim found by the jury. See In re Gober, 100 F.3d at 1201. It solely addressed issues not yet decided. See In re Schwager, 121 F.3d at 184. Scarbrough provides no legal support for an argument to the contrary.

Next, Scarbrough contends that the jury’s findings do not meet § 523(a)’s requirements because the jury was not required to find “that anyone received a benefit.” This argument also fails. A creditor is not required to show that the debtor received a direct benefit as a prerequisite for a determination that a fraud debt is nondischargeable. See In re M.M. Winkler Assocs., 239 F.3d 746, 748, 750-52 (5th Cir. 2001).

B.

Scarbrough next argues that the bankruptcy court erred in finding the fraud judgment to be nondischargeable under §§ 523(a)(6) for willful and malicious conduct, and (a)(2) for fraud by false representations. We do not rehash Scarb-rough’s willful and malicious conduct, as the same acts were applicable to Scarb-rough’s nondischargeability finding for the state court sanctions. However, we add that by making groundless, fraudulent, and harassing claims in the state court action in an attempt to demand three million dollars payment, Scarbrough, along with his co-defendants in the state court proceedings, engaged in willful and malicious conduct. See In re Shcolnik, 670 F.3d 624, 626, 629 (5th Cir. 2012) (concluding on summary judgment, but without deciding whether debtor’s actions fell under § 523(a)(6), that the attempt to obtain one million dollars by threatening exposure of alleged illegal activity intended to cause injury through harassment and baseless litigation); In re Bain, 436 B.R. 918, 924 (Bankr. S.D. Tex. 2010).

We also conclude that Appellees met their burden under § 523(a)(2)(A). Ap-pellees’ fraud claim is rooted in Scarb-rough’s intentional failure to disclose the Secret Recordings and falsehoods disclosed about Appellees. Appellees justifiably relied on Scarbrough’s conduct in the underlying lawsuit, which resulted in Scarbrough’s co-conspirators obtaining money and jewelry through the fraud. In re Acosta, 406 F.3d. at 372 (“[A] debt will not be discharged in bankruptcy if it is ‘for money, property, [or] services,’ ... [if] it was ‘obtained by false pretenses, a false representation, or actual fraud.’ ” (quoting 11 U.S.C. § 523(a)(2)(A))). •

Scarbrough contends that because he did not receive money directly from Appellees, prong five of the fraud inquiry has not been met.. “We ... reject debtor’s implication that a debt is nondischargeable under section 523(a)(2)(A) only when the creditor proves that the debtor directly and personally received every dollar lost by the creditor.” In re Bain, 436 B.R. at 922 (quoting In re Brady, 101 F.3d 1165, 1172 (6th Cir.1996)). A debt may be non-dischargeable under § 523(a)(2)(A) even if the debtor obtained only an indirect benefit as a result of the fraud. In re M.M. Winkler Assocs., 239 F.3d at 750 (“[E]ven an indirect benefit is sufficient.”). Helen Purser testified that both money and jewelry were given to third parties as a result of Scarbrough and his co-defendants’ conduct, and the bankruptcy court gave great weight to Helen Purser’s testimony. In re Acosta, 406 F.3d at 372 (“When the bankruptcy court bases its findings on credibility determinations, this Court gives ‘due regard’ to the opportunity of the bankruptcy court to judge the credibility of the witnesses firsthand.” (quoting In re Webb, 954 F.2d 1102, 1104 (5th Cir. 1992))). The bankruptcy court observed Helen Purser and other witnesses, and is “in a far superior position to gauge [Scarbrough’s] credibility than this Court is in by merely reading the transcripts.” Id. Finding no clear error in the court’s ruling and that the bankruptcy court’s account of the evidence is plausible in light of the record viewed as a whole, we will not reverse.

V.

Scarbrough next argues that the bankruptcy court erred in finding the defamation judgment nondischargeable under § 523(a)(6) for willful and malicious conduct. The bankruptcy court affirmed the state court’s finding that Scarbrough engaged in defamation and defamation per se. “Defamation is a false statement about a person, published to a third party, without legal excuse, which damages the person’s reputation.” Fiber Sys. Int’l Inc. v. Roehrs, 470 F.3d 1150, 1161 (5th Cir. 2006) (citation omitted). In cases of defamation per se, the statements at issue are so obviously hurtful that they require no proof of injury to be actionable. Id.

Several incidents lead this court to affirm the lower court’s judgment. Among them was Scarbrough’s (1) false reporting to Adult Protective Services; (2) posting a video of a personal family conflict on YouTube in an attempt to hinder JoAnn Purser’s bid for a school board seat; and (3) conspiring to make false statements and reports that JoAnn Purser threatened to kill others and that Appellees consumed illegal drugs. See, e.g., French v. French, 385 S.W.3d 61, 72 (Tex. App.—Waco 2012, pet. denied) (“A statement that falsely charges a person with the commission of a crime is defamatory per se.” (citing Leyendecker & Assocs., Inc. v. Wechter, 683 S.W.2d 369, 374 (Tex. 1984))). We find no error in the lower court’s ruling.

■VI.

Scarbrough contends that the bankruptcy court’s application of collateral estoppel to the jury’s damages findings for both fraud and defamation were improper. He argues that because Appellees’ claims for fraud and defamation were based on multiple acts committed by Scarbrough, the bankruptcy court’s finding that collateral estoppel applies to the jury’s determination of damages is in error. We disagree. Scarbrough highlights that Appellees alleged that he engaged in fraud by, inter alia, (1) making false and embarrassing demands and allegations related to the state court action and (2) making harassing claims in the state court action in order to coerce a multi-million dollar settlement. Appellees’ defamation claim stemmed from Scarbrough, inter alia, (1) conspiring to make false statements that JoAnn Purser was threatening to kill Deaton; (2) false statements and reports that Appellees consumed illegal drugs; and (3) posting slanderous videos about JoAnn Purser online. We have held that “[where] the judgment of the court of first instance was based on a determination of two issues, either of which standing independently would be sufficient to support the result, and the appellate court upholds both of these determinations as sufficient, and accordingly affirms the judgment, the judgment is conclusive as to both determinations.” In re Horton, 85 F.3d 625, at *4 (5th Cir. 1996). Here, the jury’s findings of damages for defamation and fraud, each “independently sufficient to support the judgment,” are binding and “preclude [re-litigation] in a subsequent case which involves only one of the independently sufficient grounds.” Id. We find no error with the lower court’s ruling.

VII.

Finally, Scarbrough argues that the court erred in finding his First Amendment and privilege affirmative defenses were precluded by collateral estop-pel. We reiterate the bankruptcy court’s finding. Under Texas law, “collateral es-toppel bars re-litigation of any ultimate issue of fact actually litigated and essential to the judgment in a prior suit.” In re Schwager, 121 F.3d at 181 (quotations omitted). To be “actually litigated,” the issue must have been “raised, contested by the parties, submitted for determination by the court, and determined.” Keaty, 397 F.3d at 272. Each of the aforementioned issues were raised and decided below. Scarbrough’s claims are dismissed as mer-itless. •

VIII.

For the reasons stated herein, we AFFIRM.

      . As this Court recognized in In re Ritz, No. 14-20526, 2016 WL 4253552, at *3 n.3 (5th Cir. Aug. 10, 2016), "[t]o the extent that In re Acosta, ... and other prior Fifth Circuit cases required that a debtor make a representation in order for a debt to be nondischargeable under § 523(a)(2)(A), those cases are effectively overruled by the Supreme Court's decision in [Husky Int’l Elecs., Inc. v. Ritz, - U.S. -, 136 S.Ct. 1581, 1586, 194 L.Ed.2d 655 (2016)].”


author: GREGG COSTA, Circuit Judge:

text:
    ENERGY COAL S.P.A., Plaintiff-Appellant v. CITGO PETROLEUM CORPORATION, Defendant-Appellee
    No. 15-30863
    United States Court of Appeals, Fifth Circuit.
    September 1, 2016

      Machale Andrew Miller, Uiaura Hands, Ira Matthew Williamson, Miller & Williamson, L.L.C., New Orleans, LA, for Energy Coal SPA, Plaintiff-Appellant.
    Nathan P. Eimer, Esq., Lisa S. Meyer, Eimer Stahl, L.L.P., Chicago, IL, Patrick Donovan Gallaugher, Jr., Richard E. Gerard, Jr., Esq., Robert E. Landry, Scofield, Gerard, Pohorelsky, Gallaugher & Landry, Lake Charles, LA, for CITGO Petroleum Corporation, Defendant-Appellee.
    Before WIENER, CLEMENT, and COSTA, Circuit Judges.
   GREGG COSTA, Circuit Judge:

An Italian energy company contracted to provide various services in Venezuela for a subsidiary of the state-owned oil company Petróleos de Venezuela, which is called PDVSA. After it allegedly did not receive the $186 million owed under the contracts, the Italian company filed suit in Louisiana. Why did the Italian company' file suit in a forum located many thousands of miles away from both where it is headquartered and where it performed the contracts? To try and take advantage of the single business enterprise theory under which Louisiana courts have allowed companies in certain circumstances to be held liable for the acts of their affiliates. The entity named as a defendant was PDVSA’s American affiliate, CITGO.

The plaintiffs case thus hinged on applying Louisiana law. But the district court held that the law of the state where CIT-GO is incorporated, Delaware, governs this attempt to disregard the corporate form. We agree with its analysis of this controlling choice-of-law question.

I.

Energy Coal is an Italian company, based in Genoa. Its principal business is buying and selling fuel grade petroleum coke, which is a byproduct of oil refining.

Petróleo is a wholly-owned subsidiary of PDVSA. Both Petróleo and PDVSA were formed under Venezuelan law and are based in Caracas.

Energy Coal and Petróleo entered into a number of contracts that provided that Energy Coal would perform certain work and services in Venezuela relating to the construction and renovation of PDYSA facilities and the sale and transportation of petroleum coke.- The contracts included a provision providing that any disputes would be resolved under Venezuelan law in a Venezuelan forum.

After Petróleo allegedly failed to pay for these services, Energy Coal filed suit in Louisiana state court seeking over $186 million in damages. Instead of naming Pe-tróleo as the defendant, Energy Coal sued a nonparty to the contracts: CITGO Petroleum Corporation, a Delaware corporation with its headquarters in Houston. CITGO also operates a refinery in Lake Charles, Louisiana. CITGO, like Petróleo, is a wholly-owned subsidiary of PDVSA. Energy Coal alleged that this relationship allows CITGO to be sued for Petróleo’s actions under Louisiana’s single business enterprise doctrine, which is a “theory for imposing liability where two or more business entities act as one.” Brown v. ANA Ins. Grp., 994 So.2d 1265, 1272 (La. 2008).

CITGO removed the suit to federal court on the basis of diversity jurisdiction. It then filed a motion to dismiss, arguing that Delaware law determined if CITGO could be held liable for Petróleo’s actions. The district court agreed that Delaware law governed and thus dismissed CITGO because Energy Coal did not allege any of the exceptional circumstances (like fraud, public wrong, or contravention of law) in which Delaware will disregard the corporate form.

II.

We review choice-of-law questions de novo. Adams v. Unione Mediterranea Di Sicurta, 220 F.3d 659, 674 (5th Cir. 2000). Choice-of-law decisions can be resolved, at the motion to dismiss stage when factual development is not necessary to resolve the inquiry. See Fortune v. Taylor Fortune Grp., LLC, 620 Fed.Appx. 246, 247-48 (5th Cir. 2015).

In diversity cases, the law of the forum state governs that inquiry. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Louisiana provides the following guidance:

Except as otherwise provided in this Book, an issue in a case having contacts with other states is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.
That state is determined by evaluating the strength and pertinence of the relevant policies of all involved states in the light of: (1) the relationship of each state to the parties and the dispute; and (2) the policies and needs of the interstate and international systems, including the policies of upholding the justified expectations of parties and of minimizing the adverse consequences that might follow from subjecting a party to the law of-more than one state.

La. Civ. Code Ann. art. 3515.

The analysis is thus issue-based so that the law of one state may govern one issue in the case and the law of a different state may govern another. That is what the district court held here. It concluded that Venezuelan law would govern the merits of the contract dispute in light of the choice-of-law clause in the contract between Energy Coal and Petróleo. CIT-GO is not a signatory to that agreement, however, so the law that governs its liability for Petróleo’s breach is determined by the Code’s general choice-of-law inquiry. NorAm Drilling Co. v. E & PCo Int’l, LLC, 131 So.3d 926, 929-30 (La. App. 2 Cir. 2013) (conducting choice-of-law inquiry even though contract contained choice-of-law provision because defendant was not a party to the contract).

That inquiry requires us to first identify the state policies implicated in this conflict. We consider not only the policies underpinning the single business enterprise theory and alter-ego theories in Louisiana and Delaware, but those states’ more general policies concerning disregard of the corporate form. La. Civ. Code Ann. art. 3515 cmt. c (explaining that courts should consider not only “policies embodied in the particular rules of law claimed to be applicable,” but also the “more general policies” of each state).

The single business enterprise theory was first articulated by the Louisiana First Circuit Court of Appeals in the early 1990s in response to the well-publicized failure of a large insurance company with multiple affiliated sister companies. Green v. Champion Ins. Co., 577 So.2d 249, 251-53, 257-58 (La. App. 1 Cir. 1991). The court allowed the liquidator of the failed insurance company to reach its sister company’s assets on the ground that separate corporate existences could be disregarded when “corporations represent precisely the same single interest” or “a single corporation has been fragmented into branches that are separately incorporated and are managed by a dominant or parent entity, or have interlocking directorates.” Id. at 257. In the years following Green, the First Circuit took a more expansive view of the theory, particularly in cases of wholly-owned subsidiaries, in which it held that “[i]f one corporation is wholly under the control of another, the fact that it is a separate entity does not relieve the latter from liability.” Hamilton v. AAI Ventures, LLC, 768 So.2d 298, 302 (La. App. 1 Cir. 2000).

The Supreme Court of Louisiana has never adopted the single business enterprise theory. See Brown, 994 So.2d at 1272 n.13 (declining to address validity of the single business enterprise doctrine because all parties stipulated it applied). Some have read its emphasis on the separate legal identities of parent and subsidiary corporations as inconsistent with the doctrine. Bujol v. Entergy Servs., Inc., 922 So.2d 1113, 1127 (La. 2004) (“The law has long been clear that a corporation is a legal entity distinct from its shareholders and the shareholders of a corporation ... shall not be personally liable for any debt or liability of the corporation. The same principle applies where one corporation wholly owns another.” (citations omitted)), adhered to on reh’g, (La. 2006); see also 8 Glenn G. Morris, & Wendell H. Holmes, Louisiana Civil Law Treatise (Business Organizations) § 32.15 (2016) (“The reasoning in [.Bujol] is inconsistent with the approach being taken in [single business enterprise] cases by some lower courts. Those courts appear to believe that veil piercing between affiliated corporations poses a different, less serious departure from the principles of corporation law than does similar piercing to a human shareholder. The Louisiana Supreme Court has indicated that the controlling principles are similar in both settings .... ” (footnote omitted)).

This has contributed to a hodgepodge of views about the doctrine in lower Louisiana courts. In re Gulf Fleet Holdings, Inc., 491 B.R. 747, 786 (Bankr. W.D. La. 2013) (“[C]ourts outside of Louisiana’s First Circuit have applied the single business enterprise doctrine in varying forms, although some commentators have criticized the broad scope of the doctrine and some courts have attempted to tether the doctrine to more traditional veil-piercing doctrines.”). The Second Circuit, for example, has retreated from its once expansive view of the theory and now characterizes it as requiring a showing similar to what piercing the corporate veil requires. Compare Town of Haynesville, Inc. v. Entergy Corp., 956 So.2d 192, 197 (La. App. 2 Cir. 2007) (analyzing the single business enterprise theory as a form of piercing), with Town of Haynesville, Inc. v. Entergy Corp., 840 So.2d 597, 606-07 (La. App. 2 Cir. 2003) (affirming denial of summary judgment when single business enterprise theory was used to increase the amount of one company’s contractual liability because of the separate contracts of a sister corporation); see Morris & Holmes, supra, at § 32.15 (calling the 2003 Haynesville decision an “unprecedented use of the [single business enterprise] theory”). Likewise, Louisiana’s Fourth Circuit has described it as an “equitable doctrine, similar to the piercing of the corporate veil.” Hopkins v. Howard, 930 So.2d 999, 1008 (La. App. 4 Cir. 2006). So too has Louisiana’s Fifth Circuit. Peyton Place, Condo. Assocs., Inc. v. Guastella, 18 So.3d 132, 149 (La. App. 5 Cir 2009). We have similarly described the single business enterprise theory as a “veil piercing theory ... implemented to disregard the concept of corporate separateness when a juridical person is used to ‘defeat public convenience, justify wrong, protect fraud, or defend crime.’ ” In re Ark-La-Tex Timber Co., 482 F.3d 319, 335 (5th Cir. 2007) (quoting Smith v. Cotton’s Fleet Serv., Inc., 500 So.2d 759, 762 (La. 1987)). This makes sense as .both piercing the corporate veil and the single business entity doctrine disregard the corporate form in order to hold either shareholders in the former situation and affiliated companies in the latter liable for the debts of that corporation. Brock M. Degeyter, Corporate and Business Law, 52 LA. B.J. 115, 116 (2004).

Delaware has more steadfast policies on whether a corporation can be liable for its affiliate’s conduct. It “respects corporate formalities, absent a basis for veil-piercing, recognizing that the wealth-generating potential of corporate and other limited liability entities would be stymied if it did otherwise.” Alliance Data Sys. Corp. v. Blackstone Capital Partners V L.P., 963 A.2d 746, 769 (Del. Ch. 2009) (“This allows parents to engage in risky endeavors precisely because the parents can cabin the amount of risk they are undertaking by using distinct entities to carry out certain activities.”). These general policies can give way in cases of alter-ego liability in which one corporation is acting as an instrumentality, or alter ego, of its parent. Allied Capital Corp. v. GC-Sun Holdings, L.P., 910 A.2d 1020, 1044 n.62 (Del. Ch. 2006). But Delaware courts only disregard the corporate form in the “exceptional case” where there is fraud or injustice through the misuse of the corporate form. MicroStrategy Inc. v. Acacia Research Corp., 2010 WL 5550455, at *11 (Del. Ch. Dec. 30, 2010); Case Fin., Inc. v. Alden, 2009 WL 2581873, at *4 (Del. Ch. Aug. 21, 2009).

Having identified the relevant policies, the next step is to evaluate the “strength and pertinence” of these policies by looking at each parties’ relationship with the state and the factual or legal connection to the events giving rise to the dispute. La. Crv. Code Ann. art. 3515 & cmt. c (“A legislative policy that is strongly espoused by the enacting state for intra-state cases may in fact be attenuated in a particular multistate case that has only minimal contacts with that state. Similarly, the same policy may prove to be far less pertinent if the case has sufficient contacts with that state, but not contacts of the type that would actually implicate that policy.”).

Neither Delaware nor Louisiana has significant connections to the events giving rise to this case. The contracts were not negotiated or performed in those states (or anywhere in this country). Energy Coal points out that it purchases $40-$50 million of petcoke in Louisiana each year, but does not allege that any of that petcoke has'a connection to this dispute. It also cites CITGO’s operation of a refinery in Louisiana, which requires it to possess-a certificate of authority to do business in the state, but again does not allege any direct connection between that refinery and this dispute.

Delaware’s connection is that it is where CITGO incorporated. That single tie is an important one. In a previous assessment of Louisiana choice-of-law decisions, we concluded that “the law of the state of incorporation applies in determining whether it is appropriate to pierce the corporate veil.” Patin v. Thoroughbred Power Boats, Inc., 294 F.3d 640, 646-47 (5th Cir. 2002) (citing Quickick, Inc. v. Quickick Int’l, 304 So.2d 402, 406 (La. App. 1st Cir. 1974) (agreeing with “the district court’s determination that the Louisiana State Supreme Court would most likely conclude the law of the state of incorporation governs the determination when to pierce a corporate veil”). Louisiana courts look to the state of incorporation not just when deciding issues involving piercing, which as noted above is a close relative of the single business enterprise theory, but also when deciding more general questions of corporate structure. Id. at 647; see, e.g., S.F. Estates, S.A. v. Westfeldt Bros., 1998 WL 12243, at *4 (E.D. La. Jan. 13, 1998) (holding that the substantive law of a company’s state of incorporation should be used to determine the viability of its corporate structure); Powerup of Se. La. Inc. v. Powerup U.S.A., Inc., 1994 WL 543631, at *3 (E.D. La. Oct. 5, 1994) (same); cf. Lone Star Indus., Inc. v. Redwine, 757 F.2d 1544, 1548 n.3 (5th Cir. 1985) (determining that the Supreme Court of Louisiana would apply the law of the state of incorporation to determine the viability of a corporation after dissolution).

One court has applied this principle that “Louisiana courts and courts applying Louisiana law apply the law of the place of incorporation to determine fundamental issues of corporate structure” in a single business enterprise case. NorAm Drilling Co., 131 So.3d at 930 (citing Quickick, 304 So.2d at 406). In NorAm, a Texas plaintiff tried to hold a company liable for its affiliate’s breach of a contract to drill a methane well in Louisiana. Id. at 927. Even though the Louisiana contacts were stronger in that case than here because it was where the contract was to be performed, the court still applied Texas law which does not recognize the single business enterprise theory. Id. at 930. Although NorAm involved the choice-of-law statute governing conventional obligations, it recognized that the specific conflict articles are derived from the general principles of article 3515 and went on to conclude under that general provision that “Texas law would be the most seriously impaired” if its law were not applied because it “has a strong interest in litigation deciding corporate structure of companies formed and existing under Texas law.” Id. at 929-30.

That conclusion, to which we must defer under Erie on this question of state law, applies with equal if not greater force with respect to Delaware’s interest here. Applying Louisiana law to hold a Delaware corporation responsible for its foreign affiliate’s alleged breach of a contract in Venezuela would substantially undermine the high bar Delaware sets for disregarding corporate separateness. It would also be at odds with the expectations of the parties. Given the provision in its contract providing that Venezuelan law would govern any disputes, Energy Coal had no reasonable expectation that it could seek recourse under the laws of Louisiana. La. Civ. Code AnN. art. 3515 cmt. c (“All other factors being equal, the parties should not be subjected to the law of a state that they had no reason to anticipate would be applied to their case.”). Energy Coal argues that CITGO’s obtaining a certificate of authority to do business in Louisiana should have put it on notice that it could be subjected to single business enterprise liability. But see NorAm Drilling Co., 131 So.3d at 930 (rejecting application of Louisiana law even though defendant was authorized to do business in state). That would mean any corporation conducting business in Louisiana could be liable in the state’s courts for the conduct of an affiliate occurring anywhere in the world. No case law supports that astonishingly broad principle and the district court correctly recognized it could lead to rampant forum shopping, something the Louisiana choice-of-law principles aim to prevent. La. Civ. Code Ann. art. 3515 cmt. c.

We thus agree with the district court that Delaware law governs whether CIT-GO can be held liable for its affiliate’s breach. As Energy Coal acknowledges that it cannot disregard the corporate form under Delaware law, the judgment is AFFIRMED.

      . CITGO did not challenge personal jurisdiction, even though Louisiana is neither its principal place of business nor its state of incorporation. Daimler AG v. Bauman, - U.S. -, 134 S.Ct. 746, 760, 187 L.Ed.2d 624 (2014) (noting that although those locations are not the exclusive sources of general jurisdiction, they are the "paradigm all-purpose forums”).

      . This article considers many of the same factors listed in § 6 of the Restatement (Second) of Conflicts (1971).

      . Framing the doctrine as a way to determine whether a corporation was an alter ego or instrumentality of a corporation, the Green • court listed eighteen nonexhaustive factors to be used in this determination:
      corporations with identity or substantial identity of ownership, that is, ownership of sufficient stock to give actual working control; common directors or officers; unified administrative control of corporations whose business functions are similar or supplementary; directors and officers- of one corporation act independently in the interest of that corporation; corporation financing another corporation; inadequate capitalization ("thin incorporation”); corporation causing the incorporation of another affiliated corporation; corporation paying the salaries and other expenses or losses of another corporation; receiving no business other than that given to it by its affiliated corporations; corporation using the property of another corporation as its own; noncompliance with corporate formalities; common employees; services rendered by the employees of one corporation on behalf of another corporation; common offices; centralized accounting; undocumented transfers of funds between corporations; unclear allocation of profits and losses between corporations; and excessive fragmentation of a single enterprise into separate corporations.

        Id. at 257-58.

      '. Although not alleged in its complaint, Energy Coal contends on appeal that CITGO’s Louisiana refinery was ensured a source of petroleum coke from one of the Venezuelan plants that was a focus of a contract and that this shows a Louisiana connection. But Energy Coal acknowledges that it withdrew a motion to amend the complaint that would have added these allegations. We thus cannot consider the new allegations. See Roebuck v. Dothan Sec., Inc., 515 Fed.Appx. 275, 280 (5th Cir. 2013) ("[T]he complaint may not be amended by the briefs in opposition to a motion to dismiss.”) (internal quotations and citations omitted). Even if we could, this attenuated connection between the performance of the contract and Louisiana would not change our conclusion that the state of incorporation governs whether CITGO can be held liable for its affiliate’s breach. See NorAm Drilling Co., 131 So.3d at 930 (applying Texas law even though contract was to be performed in Louisiana).


author: EDITH BROWN CLEMENT, Circuit Judge: JAMES L. DENNIS, Circuit Judge,

text:
    UNITED STATES of America, Plaintiff-Appellee v. Juan CASTILLO-RIVERA, Defendant Appellant
    No. 15-10615
    United States Court of Appeals, Fifth Circuit.
    Filed September 2, 2016
    Brian W. Portugal, James Wesley Hendrix, Leigha Amy Simonton, Assistant U.S. Attorneys, U.S. Attorney’s Office, Northern District of Texas, Dallas, TX, for Plaintiff-Appellee.
    Brandon Elliott Beck, Federal Public Defender’s Office, Northern District of Texas, Lubbock, TX, Jerry Van Beard, Esq., Assistant Federal Public Defender, John MacIntyre Nicholson, Kevin Joel Page, Federal Public Defender’s Office, Northern District of Texas, Dallas, TX, for Defendant-Appellant.
    Before HIGGINBOTHAM, DENNIS, and CLEMENT, Circuit Judges.
   EDITH BROWN CLEMENT, Circuit Judge:

Juan Castillo-Rivera, convicted of illegal reentry under 8 U.S.C. § 1326, appeals his sentence. The question presented is whether Texas Penal Code §46:04 prohibiting possession of a firearm by a felon qualifies as an aggravated felony under 8 U.S.C. § 1101(a)(43). Under our precedent, it does. Therefore, we affirm.

In Nieto Hernandez v. Holder, we squarely held that “TPC § 46.04(a) fits within 8 U.S.C. § 1101(a)(43)(E)(ii)’s definition of ‘aggravated felony.’ ” Castillo-Rivera urges that this holding does not foreclose his overbreadth arguments because they were not considered in Nieto Hernandez. We rejected an identical position in United States v. Herrold. In Herrold, the question under review was whether a Texas statute qualified as generic “burglary” for purposes of the Armed Career Criminal Act. Although we had already concluded in United States v. Silva that the statute qualified as generic burglary, the defendant insisted that this holding did not foreclose a novel argument that the Silva panel “never considered.” We disagreed, explaining that the failure of the Silva panel to “consider the argument that Herrold now advance[d] d[id] not make the holding any less binding.” The same reasoning applies here. We are bound by the holding in Nieto Hernandez, and Castillo-Rivera’s new arguments provide no basis to depart from precedent. The judgment and sentence are AFFIRMED.

JAMES L. DENNIS, Circuit Judge,

concurring:

Were we not bound by our holding in Nieto Hernandez v. Holder, 592 F.3d 681 (5th Cir. 2009), I would hold that a Texas conviction for being a felon in possession of a firearm under Texas Penal Code (TPC) § 46.04(a) is not an aggravated felony under 8 U.S.C. § 1101(a)(43)(E)(ii). In my view, an offense under TPC § 46.04(a) is not “described in” 18 U.S.C. § 922(g)(1) because the plain language of the state statute makes clear that it criminalizes some conduct that the federal statute does not.

Specifically, it is beyond dispute that, unlike the federal statute, TPC § 46.04(a) criminalizes the possession of a firearm by persons who have been convicted of certain offenses that are not punishable by a term of imprisonment exceeding one year. Compare 18 U.S.C. § 922(g)(1) (making it unlawful for any person “who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year•” to possess a firearm (emphasis added)), with TPC § 46.04(f) (defining the term “felony” for purposes of § 46.04 as an offense that: “(1) is designated by a law of this state as a felony; (2) contains all the elements of an offense designated by a law of this state as a felony; or (3) is punishable by confinement for one year or more in a penitentiary” (emphasis added)). A defendant’s showing that the plain language of a state statute clearly criminalizes conduct that is outside the scope of the relevant federal or generic offense is sufficient to establish that that the state offense is broader. See United States v. Ortiz-Gomez, 562 F.3d 683, 685-87 (5th Cir. 2009) (holding that a Pennsylvania “terroristic-threats” offense was not a “crime of violence” based on the language of the statute); United States v. Cruz-Rodriguez, 625 F.3d 274, 276 (5th Cir. 2010) (holding similarly with respect to a California offense without relying on any state decision on point).

I would also reject the Government’s contention that TPC § 46.04(f) is divisible. It is the Government’s burden to prove that a prior conviction qualifies for a sentencing enhancement. See United States v. Constante, 544 F.3d 584, 587 (5th Cir. 2008). Yet the Government makes only a bare assertion that § 46.04(f) is divisible because it “sets out one or more elements of the offense in the alternative,” without making any showing that a jury must unanimously agree that a particular alternative under this section was proven beyond reasonable doubt. The Government therefore has not satisfied its burden to establish that the state statute is divisible. See Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 2249, 2256, 195 L.Ed.2d 604 (2016) (holding that statutes are divisible only if they include alternative “elements,” which a jury must find beyond a reasonable doubt, rather than alternative “means” of satisfying a single element). Thus, were I writing on a clean slate, I would hold that § 46.04(a) is not an aggravated felony and therefore that the district court erred in applying a sixteen-level enhancement in sentencing the appellant.

Our slate is not clean, however. I agree with the majority that Nieto Hernandez controls the outcome of this case and mandates that we affirm the district court’s sentence under our court’s rule of orderliness. See United States v. Herrold, 813 F.3d 595 (5th Cir. 2016) (holding that a published opinion’s holding is binding even if the panel failed to consider a relevant argument); Cent. Pines Land Co. v. United States, 274 F.3d 881, 893 (5th Cir. 2001) (“It is well-established in this circuit that one panel of this Court may not overrule another.”). But I do not think that this should be the end of the matter. In my view, the combination of Nieto Hernandez and Herrold leads to a result that is plainly wrong. While I do not fault the Nieto Hernandez panel for failing to consider arguments that the parties in that ease never made, we should not allow its decision to answer such an important sentencing question by default and foreclose the valid challenge raised by the appellant in this case. I therefore urge our court to reconsider and correct Nieto Hernandez's erroneous holding en banc.

      . 592 F.3d 681, 686 (5th Cir. 2009). Under § 1101(a)(43)(E)(ii), an aggravated felony includes an offense described in 18 U.S.C. § 922(g)(1), the federal statute prohibiting possession of a firearm by a felon.

      . Castillo-Rivera argues that Texas Penal Code § 46.04 is substantively broader than 18 U.S.C. § 922(g)(1) because Texas's definition of a felony offense differs from the U.S. Code, and because Texas's definition of a firearm differs from the U.S. Code.

      . 813 F.3d 595 (5th Cir. 2016).

      . 957 F.2d 157 (5th Cir. 1992).

      . Herrold., 813 F.3d at 598-99; see also Sykes v. Tex. Air Corp., 834 F.2d 488, 492 (5th Cir. 1987) ("The fact that in [the prior decision] no litigant made and no judge considered the ■ fancy argument advanced in this case does not authorize us to disregard our Court’s strong rule that we cannot overrule the prior decision.”).

      . Castillo-Rivera also argues on appeal that Texas Penal Code § 46.04 cannot be described in 18 U.S.C. § 922(g)(1) because the federal statute contains a unique interstate commerce element. This argument is now foreclosed by the Supreme Court’s decision in Torres v. Lynch, - U.S. -, 136 S.Ct. 1619, 1634, 194 L.Ed.2d 737 (2016).

      . I also note that the federal statute contains several exclusions that the state statute does not. 18 U.S.C. §921(a)(20) provides, inter alia:
      The term "crime punishable by imprisonment for á term exceeding one year” does not include (A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or (B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.
      TPC § 46.04 contains no such limitations.

      . In Nieto Hernandez, an alien petitioned for review of the Board of Immigration Appeals’s (BIA) decision that he was not eligible for cancellation of removal due to a prior conviction for an aggravated felony. 592 F.3d at 683. In his petition, Nieto Hernandez asserted that his conviction under TPC § 46.04(a) was not an aggravated felony as "described in” 18 U.S.C. § 922(g)(1) because, unlike § 922(g)(1), the state statute did not contain an interstate commerce element. Nieto Hernandez, 592 F.3d at 683.'A panel of this court rejected this argument and denied the petition solely on that basis. See id. at 684. ("We hold that state felon-in-possession offenses ... need not have an interstate commerce element in order for the offense to be an offense 'described in’ 18 U.S.C. § 922(g)(1). Accordingly, we deny Nieto's petition for review.”). Based on this analysis, the court concluded that "Nieto's offense under TPC § 46.04(a) fits within 8 U.S.C. § 1101(a)(43)(E)(ii)'s definition of 'aggravated felony,’ ” citing the petitioner's concession that the only difference between the state and federal offenses was the interstate commerce element.-Nieto Hernandez, 592 F.3d at 686 & n.6.