author: SILER, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Christopher Todd RITCHEY, Defendant-Appellant.
    No. 15-2460
    United States Court of Appeals, Sixth Circuit.
    Argued: July 26, 2016
    Decided and Filed: October 26, 2016

      ARGUED: Paul L. Nelson, Office of the Federal Public Defender, Grand Rapids, Michigan, for Appellant. Justin M. Pre-sant, United States Attorney’s Office, Grand Rapids, Michigan, for Appellee. ON BRIEF: Paul L. Nelson, Office of the Federal Public Defender, Grand Rapids, Michigan, for Appellant. Justin M. Presant, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appel-lee.
    Before: SILER, GIBBONS, and KETHLEDGE, Circuit Judges.
   OPINION

SILER, Circuit Judge.

Christopher Ritchey appeals his sentence of fifteen years in prison pursuant to the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), based on several prior convictions of a Michigan breaking and entering statute, Mich. Comp. Laws § 750.110. This appeal requires us to address the Supreme Court’s recent decision in Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). Specifically, we must determine whether, in light of Mathis, a conviction under § 750.110 can qualify as a predicate “violent felony” under ACCA. Because the statute’s terms are broader than generic burglary, and it is not divisible under Mathis, we VACATE Ritchey’s sentence and REMAND for resentencing without an ACCA enhancement.

I.

While he was on parole under the supervision of the Michigan Department of Corrections in 2015, a complaint was filed against Ritchey, alleging that he threatened to kill another individual. A parole officer visited Ritchey’s home and found a handgun therein.

Ritchey was indicted for being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e), and for possessing a stolen firearm, in violation of 18 U.S.C. § 922(j). He pleaded guilty to being a felon in possession of a firearm in exchange for the Government’s dismissal of the stolen firearm charge.

The presentence report (“PSR”) identified at least six prior convictions Ritchey had for breaking and entering a building with the intent to commit a felony or larceny therein, a felony under Michigan law. See Mich. Comp. Laws § 750.110. According to the PSR, each of these convictions qualified . as a “violent felony” under ACCA. .

The PSR calculated Ritchey’s base offense level at • 14 under ■ USSG § 2K2.1(a)(6)(A). After a 2-level stolen-firearm enhancement under § 2K2.1(b)(4)(A), Ritchey’s adjusted offense level was 16. Because the PSR identified Ritchey as an armed career criminal under ACCA, however, it substituted 33 for the adjusted offense level pursuant to § 4B1.4. Applying a three-level reduction for acceptance of responsibility, the PSR calculated Ritchey’s total- offense level as 30. The PSR also assigned Ritchey a subtotal criminal history score of 17 based on his prior convictions and applied a 2-póint adjustment under § 4Al.l(d) because Rit-chey committed the offense of conviction while under a criminal justice sentence. Accordingly, Ritchey’s total criminal history score was 19, placing him in Criminal History Category VI. Applying the ACCA-specific provisions of § 4B1.4(c), Ritchey still fell within Criminal History Category VI.

Based on an offense level of 33 and Criminal History Category VI, Ritchey’s Guidelines sentencing range was 168 to 210 months of imprisonment. ACCA, however, contains a mandatory minimum sen-tenee of 15 years, so the Guidelines range became 180 to 210 months under § 5Gl.l(c)(2).

Ritchey objected to the application of ACCA. According to him, the prior breaking and entering convictions did not qualify as “violent felonies” because § 750.110 does not fit the definition of a “generic burglary” under Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), and Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). The United States argued that, while § 750.110 is broader than a “generic burglary,” the statute is divisible. Therefore, according to the Government, the sentencing court should use Shepard documents to determine whether Ritchey committed a generic burglary under the modified categorical approach. The Government provided felony informations for Ritchey’s prior § 750.110 offenses to demonstrate that he “broke into and entered a building pr structure: a barn, a garage, or a store.”

The district court found, that “the Michigan statute arguably includes some things that would qualify as generic burglary and arguably some things that don’t,” such as breaking and entering a tent. Applying the modified categorical approach, the court concluded that

from the documents that the [Gjovernment has attached to its brief, there are definitely at least three, probably more than three, as many as six separate breaking and enterings ■... of a building with intent. And the building is described specifically in one case as a store and in a number of other cases as a garage of one form or another. All of which ... would qualify as a structure, as a building within .the Supreme

Court’s generic definition of a burglary. Ultimately, the court sentenced Ritchey to the mandatory minimum under ACCA: fifteen years or 180 months.

II.

At the outset, Ritchey and the Government disagree on the appropriate standard of review. Ritchey maintains that de novo review should apply to the district court’s determination that his § 750.110 offenses qualified as ACCA predicates. See United States v. Mitchell, 743 F.3d 1054, 1058 (6th Cir.), cert. denied, — U.S. -, 135 S.Ct. 158, 190 L.Ed.2d 115 (2014). The United States, on the other hand, suggests that the district court’s application of ACCA should be reviewed for plain error because “Ritchey has waived the issue of the sufficiency of the Government’s proofs regarding his prior convictions.” We need not resolve this dispute because reversal is warranted even under plain-error review.

To satisfy plain-error review, there must be “(1) error that (2) was plain, (3) affected [the defendant’s] substantial rights, and (4) seriously affected the fairness, integrity, or public reputation of the judicial proceedings.” United States v. Church, 823 F.3d 351, 362 (6th Cir. 2016) (quoting United States v. Ushery, 785 F.3d 210, 218 (6th Cir. 2015)). Whether an error was “plain” is determined based on the state of the law “at the time of appellate consideration” rather than at the time of the district court’s decision. Henderson v. United Sides, — 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)); see also United States v. Henry, 797 F.3d 371, 375 (6th Cir. 2015).

III.

Under ACCA,* a defendant who violates 18 U.S.C. § 922(g) is subject to a fifteen-year mandatory minimum sentence if he “has three previous convictions by any court” for “a crime punishable by imprisonment for a term exceeding one year” and those convictions constituted “violent felon[ies] or ... serious drug offense[s], or both, committed on occasions different from one another.” 18 U.S.C. §§ 924(e)(1), 922(g)(1). ACCA defines a “violent felony” as

any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, 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. .

18 U.S.C. § 924(e)(2)(B). At issue in .-this case is whether Ritchey’s prior convictions for violating § 750.110 constitute “burglaries]” such that they qualify as predicate convictions for ACCA purposes. See 18 U.S.C. § 924(e)(2)(B).

A.

Whether a crime constitutes- a “burglary” does not solely “depend on the definition adopted by the State of conviction.” Taylor v. United States, 495 U.S. 575, 590, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Nor, however, are predicate offenses limited to those falling within the common-law definition of “burglary”—“a breaking and entering of a dwelling at night, with intent to commit a felony.” Id. at 592-94, 110 S.Ct. 2143. Rather, the Supreme Court adopted “the generic, contemporary meaning of burglary,” which includes “the following elements: an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit, a crime.” Id. at 598, 110 S.Ct. 2143 (citing Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 8.13(a), (c), (e) (1986)).

The Court indicated' that a statute that encompasses vehicles, vending machines, tents, boats, railroad cars, or other places that are not “buildings,” criminalizes ’conduct broader than the generic meaning of burglary. Id. at 599, 110 S.Ct. 2143. In relevant part, § 750.110 states that

[a] person who breaks and enters, with intent to commit a felony or a larceny therein, a tent, hotel, office, store, shop, Warehouse, barn, granary, factory or other building, structure, boat, ship, shipping container, or railroad car is guilty of a felony punishable by imprisonment for not more than 10 years.

Mich. Comp. Laws § 750.110(1). The parties agree that this. statute encompasses conduct beyond generic burglary.

But the fact that a statute is broader than generic burglary is not the end of the inquiry. The Court has adopted a modified categorical approach in determining whether a prior conviction qualified as a burglary under ACCA, “generally re-quirting] the trial court to look only to the fact of conviction and the statutory definition of the prior offense,” Id. at 602, 110 S.Ct. 2143; see also Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 2283-84, 186 L.Ed.2d 438 (2013). Sentencing courts are permitted “to go beyond the mere fact of conviction in a narrow range of cases where a jury was actually required to find all of the elements of generic burglary.” Taylor, 495 U.S. at 602, 110 S.Ct. 2143. Thus, when a statute encompasses circumstances broader than generic burglary, the district court may look to “the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was. confirmed by the defendant, or to some comparable record of this information”—commonly referred to as Shepard documents—to determine whether the defendant “necessarily admitted elements of the generic offense.” Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); see also Taylor, 495 U.S. at 602, 110 S.Ct. 2143. However, this approach only applies “when a defendant was convicted of violating a divisible statute,” i.e., “a statute [that] lists multiple, alternative elements, and so effectively creates ‘several different ... crimes,’ ” at least one of which is a generic burglary. Descamps, 133 S.Ct. at 2285 (quoting Nijhawan v. Holder, 557 U.S. 29, 41, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009)).

Applying these principles, this court has determined that convictions under a prior, similar version of § 750.110 qualified as “burglary” for ACCA purposes. United States v. Fish, 928 F.2d 185, 188 (6th Cir. 1991). This court has also found that while the current version of § 750.110 is broader than generic burglary, sentencing courts may apply the modified-categorical approach and look to Shepard documents to determine whether the defendant committed a generic burglary. United States v. Sanders, 635 Fed.Appx. 286, 289 (6th Cir. 2016). Generally, a prior published decision binds a later panel of this court unless it is overturned by the Supreme Court or overruled en banc, but departure is also warranted if “an inconsistent [ruling] of the United States Supreme Court requires modification of the decision.” Susan B. Anthony List v. Driehaus, 814 F.3d 466, 471 (6th Cir. 2016) (quoting Rutherford v. Columbia Gas, 575 F.3d 616, 619 (6th Cir. 2009)). Sanders is not a published decision, but even if it were, it has been vacated for reconsideration in light of Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). Sanders v. United States, — U.S. -, 136 S.Ct. 2542, 2542-43, 195 L.Ed.2d 866 (2016) (mem.). Likewise, Fish has been abrogated to the extent its analysis is at odds with Mathis.

B.

In Mathis, the Supreme Court granted certiorari to consider “whether ACCA’s general rule—that a defendant’s crime of conviction can count as a predicate only if its elements match those of a generic offense—gives way when a statute happens to list various means by which a defendant can satisfy an element.” 136 S.Ct. at 2251. At issue was Iowa’s burglary statute, which makes it criminal for a person to make an unlawful or unprivileged entry into “any building, structure, appurtenances to buildings and structures, land, water or air vehicle, or similar place” with the intent to commit a felony, assault, or theft. Iowa Code §§ 702.12, 713.1. The Eighth Circuit found that sentencing courts may look to Shepard documents to determine whether a defendant was previously convicted of a generic burglary when the underlying statute includes “a disjunctive list” of places that it is criminal to break and enter. United States v. Mathis, 786 F.3d 1068, 1075 (8th Cir. 2015). Examining the charging documents, the court determined that the defendant’s Iowa burglary conviction qualified as an ACCA predicate. Id. The Sixth Circuit later adopted the same principle. United States v. Osier, 796 F.3d 597, 603 (6th Cir. 2015) (quoting Mathis, 786 F.3d at 1075).

The Supreme Court disagreed with this analysis, reversed the Eighth Circuit, and specifically abrogated this court’s decision in Ozier. Mathis, 136 S.Ct. at 2251 & n.l. It noted that the Iowa Supreme Court has interpreted the state’s burglary statute to list alternative methods of committing a single crime. Id. at 2250 (citing State v. Rooney, 862 N.W.2d 367, 376 (Iowa 2015); State v. Duncan, 312 N.W.2d 519, 523 (Iowa 1981)). But “a state crime cannot qualify as an ACCA predicate if its elements are broader than those of a listed generic offense.” Id. at 2251 (citing Taylor, 495 U.S. at 602, 110 S.Ct. 2143). Therefore, the Court held a conviction under the statute cannot serve as an ACCA predicate because the elements of Iowa’s burglary statute “cover a greater swath of conduct than the elements” of generic burglary. Id.

In reaching this conclusion, the Court noted that, under generally established principles, “the ‘underlying brute facts or means’ of commission” are irrelevant for purposes of ACCA. Id. “[E]ven if his conduct fits within the generic offense, the mismatch of elements saves the defendant from an ACCA sentence.” Id. Thus, the Court clarified that sentencing courts should engage in “an elements-only inquiry”; “[a]ll that counts under [ACCA] ,.. are ‘the elements of the statute of conviction.’ ” Id. at 2251-52 (quoting Taylor, 495 U.S. at 601, 110 S.Ct. 2143). This is true even if the “sentencing judge knows (or can easily discover) that the defendant carried out a ‘real’ burglary.” Id. at 2251.

The Court gave three basic justifications for limiting the ACCA inquiry to elements, rather than treating as divisible a non-generic burglary statute that lists alternative means for satisfying a particular element. First, it determined that ACCA’s text favors this result. Id. at 2252. Second, “a construction of ACCA allowing a sentencing judge to go any further would raise serious Sixth Amendment concerns” because “only a jury, and not a judge, may find facts that increase a maximum penalty, except for the simple fact of a prior conviction.” Id. (citing Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). And third, “an elements-focus avoids unfairness to defendants,” given that “[statements of ‘non-elemental fact’ in the records of prior convictions are prone to error precisely, because their proof is unnecessary.” Id. at 2253 (citing Descamps, 133 S.Ct. at 2288-89). Because such facts are immaterial to the conviction, defendants have no incentive to contest them during the state court proceedings and indeed may be barred from doing so. See id. Accordingly, the Eighth Circuit “erred in applying the modified categorical approach to determine the means by which Mathis committed his pri- or crimes.” Id.

In addition, the Court laid out a procedure for sentencing courts to follow in determining whether a conviction under a state burglary statute qualifies as a predicate offense under ACCA. When presented with a conviction under “an alternatively phrased statute,” the sentencing court must first “determine whether its listed items are elements or means.” Id. at 2256. If the items are elements, the court must then “review the record materials to discover which of the enumerated alternatives played a part in the defendant’s prior conviction, and then compare that element (along with all others) to those of the generic crime.” Id. If, on the other hand, they are means rather than elements, the ACCA inquiry is over—“the court has no call to decide which of the statutory alternatives was at issue in the earlier prosecution.” Id.

In determining whether statutory alternatives constitute elements or means, the Court clarified that sentencing courts should look first to state law, including judicial interpretations of the criminal statute by state courts. See id. Alternatively, the statute itself may provide the answer. A statute might explicitly “identify which things must be charged (and so are elements) and which need not be (and so are means),” Id. Moreover, “[i]f statutory alternatives carry different punishments, then under Apprendi they must be elements.” Id. On the other hand, “if a statutory list is drafted to offer ‘illustrative examples,’ then it includes only a crime’s means of commission.” Id. (citing United States v. Howard, 742 F.3d 1334, 1348 (11th Cir. 2014); United States v. Cabrera-Umanzor, 728 F.3d. 347, 353 (4th Cir. 2013)).

State law can be expected to provide a clear answer to the elements— means dilemma in many cases, but, if it does not, a sentencing court may briefly look to the record of the prior conviction. See id. at 2256-57. Sentencing courts encountering this situation may take a “ ‘peek at the [record] documents’ ... for ‘the sole and limited purpose of determining whether [the listed items are] element[s] of the offense.’” Id. (first, third, and fourth alterations in original) (quoting Rendon v. Holder, 782 F.3d 466, 473-474 (9th Cir. 2015) (Kozinski, J., dissenting from denial of reh’g en banc)). “[Ijndict-ments, jury instructions, plea colloquies and plea agreements will often ‘reflect the crime’s elements’ and so can reveal ... whether a statutory list is of elements or means.” Id. at 2257 n.7 (quoting Descamps, 133 S.Ct. at 2285 n.2). If the charging documents “reiterat[e] all the terms of [the] law,” then “each alternative is only a possible means of commission, not an element that the prosecutor must prove to a jury beyond a reasonable doubt.” Id. at 2257. The same is true “if those documents use a single umbrella term like ‘premises.’ ” Id. On the other hand, the record could indicate that the statute contains a list of distinct elements “by referencing one alternative term to the exclusion of all others.” Id. Only if the record indicates that the listed items are elements, not alternative means, may the sentencing courts examine the Shepard documents to determine whether the crime the defendant was convicted of constituted a generic burglary. See id. The Court cautioned, however, that “such record materials will not in every case speak plainly, and if they do not, a sentencing judge will not be able to satisfy ‘Taylor*s demand for certainty’ when determining whether a defendant was convicted of a generic offense.” Id. (quoting Shepard, 544 U.S. at 21, 125 S.Ct. 1254).

C.

As previously mentioned, we recently determined that a conviction under § 750.110 could serve as an ACCA predicate, Sanders, 635 Fed.Appx. at 288-89, but the Supreme Court summarily vacated the decision and remanded for reconsideration in light of Mathis, Sanders, 136 S.Ct. at 2542-43. While not dispositive, this suggests that the various places listed in § 750.110 may' be alternative means of committing a single breaking-and-entering offense rather than separate elements of distinct crimes. Following Mathis’s framework does not counsel a different result. As discussed above, the parties agree that § 750.110—which criminalizes breaking and entering into “a tent, hotel, office, store, shop, warehouse, barn, granary, factory or other building, structure, boat, ship, shipping container, or railroad car”— is broader than a generic burglary statute. Thus, the .only remaining question is whether this list constitutes a set of elements- or a description cif different means of committing a crime.

We turn first to state law, as directed by Mathis, Candidly, the United States admits that the Michigan Court of Appeals has labeled the statutory alternatives in § 750.110 as “examples,” People v. Walters, 456, 186 Mich.App. 452, 465 N.W.2d 29, 31 (1990) (per curiam), which cuts against finding that they are, in fact, elements. In defining the elements of breaking and entering, Michigan courts have also treated violations of § 750.110 as a single crime regardless of the particular place broken into. See People v. Cornell, 466 Mich. 335, 646 N.W.2d 127, 141 (2002) (“The elements of breaking and entering with intent to commit larceny are: (1) the defendant broke into a building, (2) the defendant entered the building, and (3) at the time of the breaking and entering, the defendant intended to commit a larceny therein.”); People v. Toole, 227 Mich.App. 656, 576 N.W.2d 441, 443 (1998) (same); People v. Adams, 202 Mich.App. 385, 509 N.W.2d 530, 532 (1993) (“Breaking and entering requires a showing that (1) the defendant broke into ■ a building, (2) the defendant entered the building, and (3) at the time of the breaking and entering, the defendant intended to commit a larceny or felony therein.”).

The Government maintains that, to the contrary, Michigan courts’ use of the word “building” shows that the elements of the offense “include the place broken into.” While this argument has some appeal, it does not hold up to close scrutiny, “Building” is used in this context as a generic term encompassing all the places identified in § 750.110. As illustration, the Michigan Court of Appeals has repeatedly used the word “building” in listing § 750.110’s elements when the facts made clear that the defendant had broken and entered a particular place listed in the statute, such as a barn, office, store, shop, or warehouse. See, e.g,, People v. Baker, No. 301705, 2012 WL 639336, at *1 (Mich. Ct. App. Feb. 28, 2012) (per curiam); People v. Jenkins, No. 295456, 2011 WL 476477, at *1-2 (Mich. Ct. App. Feb. 10, 2011) (per curiam); People v. Jasper, No. 294496, 2011 WL 222241, at *1, *4 (Mich. Ct. App. Jan. 25, 2011); People v. Wynn, No. 287996, 2010 WL 293066, at *1 (Mich. Ct. App. Jan. 26, 2010) (per curiam); People v. Willis, No. 294788, 2010 WL 5129666, at *1 (Mich. Ct. App. Dec. 16, 2010) (per curiam). Thus, Michigan courts appear to treat § 750.110’s statutory alternatives as means rather than elements.

Michigan’s pattern jury instructions do not provide support for the Government’s position either. The United States argues that “[t]he instruction has a footnote that allows the [trial] court to substitute the different places broken into—i.e., to change the elements.” This is true, but it does not tell the whole story. The text of the model instruction for § 750.110 uses the generic term “building” to refer to all the statutory alternatives. Michigan Model Criminal Jury Instructions § 25.1. The footnote referenced by the Government reads, in full, “[alternatively, specify [the] type of building as found in MCL 750.110: structure/boat/ship/shipping container/railroad car/tent/hotel/office/store/shop/warehouse/barn/granary/factory.” Id. § 25.1 n.l. This language cuts against treating the statutory alternatives as elements. The instructions do not mandate that the trial court identify the particular place at issue. In addition, they indicate that § 750.110’s list is comprised of “type[s] of building[s]” that qualify under the statute—not separate elements of distinct crimes. Id. Therefore, the instructions are in line with the understanding of Michigan courts.

Michigan law therefore indicates that § 750.110’s list of locations is a list of means, not elements. Under Mathis, this might be sufficient to resolve the matter. See 136 S.Ct. at 2256.

Nonetheless, examining the text of § 750.110 does not lead to a different result. The United States contends that the statute’s text “does not resolve” the elements—means dilemma “because [it] does not associate different penalties with the different places broken into.” To be sure, if the statute provided a different penalty for breaking into, say, a hotel than it did for breaking into a boat, the case would be much easier: Apprendi would dictate that the statutory alternatives be treated as elements. See Mathis, 136 S.Ct. at 2256. But an alternatively phrased statute that provides “non-exhaustive examples” also tends to indicate that the listed items are means, not elements. Howard, 742 F.3d at 1348; see also Mathis, 136 S.Ct. at 2256 (citing Howard with approval). The Michigan statute does just this, criminalizing breaking and entering into “a tent, hotel, office, store, shop, warehouse, barn, granary, factory or other building, structure, boat, ship, shipping container, or railroad car.” Mich. Comp. Laws § 750.110 (emphasis added).

Perhaps the statute could be read as providing specific examples of a building while treating buildings, structures, boats, ships, shipping containers, and railroad cars each as separate elements. Even accepting this reading, however, § 750.110 appears to include “tent[s]” within the definition of “building,” and breaking and entering a tent does not constitute a generic burglary. See Taylor, 495 U.S. at 599, 110 S.Ct. 2143; United States v. Dantzler, 771 F.3d 137, 142 (2d Cir. 2014); United States v. Cooper, 302 F.3d 592, 594-95 (6th Cir. 2002). Under any plausible reading, the statute would still be overbroad and indivisible under Mathis.

As a result, we need not consider Rit-chey’s charging documents. See Mathis, 136 S.Ct. at 2256-57. Even if we did, though, the result would be no different. The Government correctly points out that the charging documents “each specif[y] the particular building broken into.” This may be true, but it does not resolve the matter. The factual bases for the convictions are unimportant; the court should only look to the charging documents at this stage for the singular purpose of determining whether the statutory alternatives are elements or means. Mathis, 136 S.Ct. at 2256-57. Unless the alternatives are elements, the court cannot consider the charging documents further. Id.

Here, the charging documents indeed identify the locations Ritchey broke and entered as a “garage,” a “barn,” or a “store.” On first glance, this may appear to suggest that each location listed in § 750.110 constitutes a separate element. But other portions of the charging documents weigh in favor of treating the items as means. One of the specific places listed in the charging documents—a “garage”— is not identified in the statute at all. Therefore, it is implausible that this language identifies a particular statutory alternative, much less treats it as an element. In addition, each relevant offense is captioned “Breaking & Entering—A Building with Intent.” In context, as discussed above, the term “building” is a placeholder that encompasses a broad swath of locations, at least one of which—a tent—is not within the generic definition of burglary. Finally, one of the charging documents indicates that Ritchey “did break and enter [a] BARN/GARAGE.” This phrasing strongly undercuts the Government’s claim that Michigan prosecutors are unable to “eharg[e] places in the alternative” when pursuing violations of § 750.110. The fact that Michigan prosecutors charged Rit-chey with breaking and entering a place that was either a barn or a garage tends to indicate that the statutory alternatives are means rather than elements.

At bottom, record materials will resolve the elements—means dilemma only when they “speak plainly” so as to “satisfy ‘Taylor’s demand for certainty’ ” that the “defendant was convicted of a generic offense.” Mathis, 136 S.Ct. at 2257 (quoting Shepard, 544 U.S. at 21, 125 S.Ct. 1254). Because the documents in this case are, at the very most, inconclusive on this score, they cannot form the basis of § 750.100’s divisibility.

D.

Only one conclusion is possible under Mathis: a conviction under § 750.110 cannot serve as a predicate offense under ACCA. Although the district court did not have the benefit of Mathis at the time of sentencing, this court looks to the law as it currently exists in evaluating plain error. See Henderson, 133 S.Ct. at 1130. Therefore, the first two prongs of plain error review have been met: the district court’s decision to count Ritchey’s breaking and entering convictions as ACCA predicates was clearly in error under Mathis.

Under the third prong, the error must have affected Ritchey’s “substantial rights.” Church, 823 F.3d at 362 (quoting Ushery, 785 F.3d at 218). In the sentencing context, this typically occurs when the defendant’s term of imprisonment “would have been shorter absent th[e] ... error.” United States v. Cabrera, 811 F.3d 801, 812 (6th Cir. 2016); see also United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (noting that, for a defendant’s substantial rights to be affected, he must normally show that the error “affected the outcome of the district court proceedings”). Here, the PSR indicates that, without the ACCA enhancement, Rit-chey would likely have had a total offense level of 13 and fallen within Criminal History Category VI, which carries a recommended Guidelines range of 33 to 41 months’ imprisonment—well below the 180 months he ultimately received. Because this miscalculation of Ritchey’s Guidelines range “almost certainly increased the length of [his] sentence,” it also “negatively impacts ... the integrity of the judicial proceeding,” and the fourth prong has been met. United States v. Batista, 415 Fed.Appx. 601, 607 (6th Cir. 2011); see also United States v. McCloud, 730 F.3d 600, 603 (6th Cir. 2013) (“[A] district court’s incorrect calculation of the applicable Guidelines range typically amounts to plain error.”).

The Government argues that Ritchey sentence should stand because he agreed that his prior convictions were ACCA predicates in the district court. But, regardless of whether he conceded this point, Ritchey could not have waived or intentionally relinquished an argument based on Mathis because the case was decided after his sentencing. See United States v. McBride, 826 F.3d 293, 295 (6th Cir. 2016).

For these reasons, we VACATE Rit-chey’s sentence and REMAND the case for resentencing consistent with this decision and Mathis.

      . Three of Ritchey's § 750.110 convictions occurred before 2008 and thus were governed by a prior version of the statute. The only change the Michigan legislature made to § 750.110 in 2008 was to include shipping containers within the statute’s purview. See 2008 Mich. Pub. Acts 10. Because the pre-2008 version of the statute included, among other things, tents, boats, and railroad cars, it also encompassed conduct broader than generic burglary. See Taylor, 495 U.S. at 590, 110 S.Ct. 2143.

      . One permissible interpretation of thesé cases is that § 750.110 defines two separate crimes: breaking and entering with intent to commit larceny and breaking and entering with intent to commit a felony. Even accepting this as true,' though, this distinction does not concern the places listed in the statute— some of which fall outside the generic definition of burglary. Therefore, this wrinkle in Michigan law is immaterial.

      . The Government also points to People v. Ferguson, 208 Mich.App. 508, 528 N.W.2d 825, 826 (1995), to "lend[] some support to the idea that Michigan law dictates jurors agree upon a theory to convict a defendant of [breaking and entering].’ But Ferguson is in-apposite because it considered the portion of § 750.110 dealing with the defendant’s intent to commit a felony or larceny in the place broken into and entered—not the location aspect of the statute. See Ferguson, 528 N.W.2d at 826. Moreover, the court in Ferguson did not conclude that the state was required to proceed on a single theory as to the felony at issue because each felony would constitute a different element and thus a different crime. Rather, it concluded that unanimity was required because, to be guilty of violating § 750.110, a defendant must have had specific intent to commit .some “particular felony.” Id. Accordingly, the criminal information must identify the particular felony because the charging documents “must be specific enough to allow a defendant to prepare a defense.” Id, (citing People v. Westerberg, 274 Mich. 647, 265 N.W. 489, 490 (1936)).

      . The Government argues that the court should look to Michigan's pattern jury instructions for § 750.110 as part of the ‘‘peek” into Shepard documents authorized by Mathis for the limited purpose of resolving whether the alternatively listed items are elements or means. But because Ritchie pleaded guilty to the relevant offenses, the pattern instructions are not part of the record of his conviction. Therefore, the instructions should likely be considered as a potential source of Michigan law before looking to the Shepard documents in the case. See Descamps, 133 S.Ct. at 2291 & n.5.


source: Caselaw Access Project

author: JULIA SMITH GIBBONS, Circuit Judge.

license: Public Domain

text:
    KELLOGG COMPANY, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner, Bakery, Confectionery, Tobacco Workers and Grain Millers International Union, AFL-CIO; Bakery, Confectionery, Tobacco Workers and Grain Millers Local Union 252-G, Intervenors.
    Nos. 15-2031/2183
    United States Court of Appeals, Sixth Circuit.
    Argued: June 16, 2016
    Decided and Filed: October 26, 2016

      ARGUED: David M. Buday, Miller Johnson, Grand Rapids, Michigan, for Petitioner/Cross-Respondent. Joel A. Heller, National Labor Relations Board, Washington, D.C., for Respondent/Cross-Petitioner. ON BRIEF: David M. Buday, Keith E. Eastland, Miller Johnson, Grand Rapids, Michigan, for Petitioner/Cross-Respondent. Joel A. Heller, Kira Dellinger Vol, National Labor Relations Board, Washington, D.C., for Respondent/Cross-Petitioner. Jeffrey R. Freund, Devki K. Virk, Bredhoff & Kaiser, P.L.L.C., Washington, D.C., for Intervenors.
    Before: SILER, BATCHELDER, and GIBBONS, Circuit Judges.
   AMENDED OPINION

JULIA SMITH GIBBONS, Circuit Judge.

The Kellogg Company (Kellogg) and the Bakery, Confectionery, Tobacco Workers and Grain Millers Local Union 252-G (the Union) began negotiations for a successor to their Memphis Agreement, a local collective bargaining agreement (CBA) that was to expire soon. Negotiations failed when the Union refused to negotiate with respect to any of Kellogg’s proposed revisions. Kellogg responded by locking out approximately 200 bargaining-unit employees. The National Labor Relations Board (the Board) found that Kellogg’s proposal effectively modified the terms of the unexpired Master Agreement, and therefore constituted an unlawful midterm modification in violation of the National Labor Relations Act (NLRA). Because we conclude that the proposal did not modify the express terms of the Master Agreement and because Milwaukee Spring, 268 N.L.R.B. 601 (1984), disclaims the “effective modification” theory imposed by the Board in this case, we grant the petition for review, grant enforcement and affirm the Board’s decision with respect to the information-request finding, and vacate the rest of the Board’s decision.

I.

The relationship between Kellogg and the Union is governed by two separate agreements: the Master Agreement and the supplemental Memphis Agreement. The Master Agreement was effective from September 30, 2012 through October 3, 2015 while the Memphis Agreement was in effect from October 22, 2010 until October 20, 2013. Prior to entering into the Master Agreement, Kellogg entered into “supplemental agreements” with the local union at each plant. The Master Agreement applies to four of Kellogg’s plants, including the Memphis, Tennessee plant while the Memphis Agreement is specific to the Memphis location. The Master Agreement explicitly covers “only those matters specifically included [t]herein.” Master Agreement 1, CA6 R. 23. It further provides that unless the parties agree, issues covered in the Master Agreement will not be subject to negotiation “in an effort to secure changes in or to secure a new Supplemental Agreement” and issues covered in the supplemental agreements will not be subject to negotiation “in an effort to secure changes in or a new version of [the Master] Agreement.” Id. at 2.

The Master Agreement grants regular employees various benefits such as severance pay, paid holidays, insurance benefits, and participation in a stock purchase and dividend reinvestment plan. The Master Agreement does not distinguish between regular and non-regular employees except for one reference in the Wage Appendix, which governs “[a]ll matters pertaining to hourly wages,” id. at 33, and establishes a rate of $6.00 per hour less than “job rate ... for all work performed by non-regular employees, such as temporary and casual employees.” Id. at 66-67 (emphasis added). This is the only reference to non-regular employees or casual employees in the Master Agreement.

The Memphis Agreement, however, distinguishes between regular and casual employees. Section 107 of the Memphis Agreement defines the purpose of the “casual program” as “providing] regular employees with relief from extended work schedules through the use of Casual employees.” Memphis Agreement 8, CA6 R. 23. Except in limited circumstances, casual employees under the Memphis Agreement would only be “used after overtime has been offered to regular employees” and generally could not be used when regular employees were on layoff. Id. at 8-9. The number of casual employees was also capped at 30% of the total number of regular employees. And though casual employees were offered some “fringe benefits” such as lunch, breaks, and other benefits provided in the Master Agreement’s Wage Appendix, they were otherwise not subject to the terms and conditions of the Master Agreement or- Memphis Agreement.

On September 17, 2013, Kellogg and the Union began negotiations for a successor to the Memphis Agreement. The negotiations came to a standstill over Kellogg’s proposed modifications to the casual-program. Under Kellogg’s proposal, the casual program would no longer serve simply to provide scheduling relief to regular employees, but would “include any employees hired by Kellogg to perform production or any other bargaining unit work covered by” the Memphis Agreement, Kellogg’s Last/Best Offer 4, CA6 R. 23. Moreover, casual employees would no longer “be limited in the scope of their work, duties, tasks, hours, or in any other terms or conditions of employment” and could “be employed on. an indefinite basis,” giving Kellogg unrestricted “rights to hire, use, manage, or direct Casual employees.” Id. Casual employees would also be granted new rights, such as seniority rights, access to a grievance procedure, participation in the job bidding process, and priority in the event that Kellogg established an alternative crewing schedule. The Union steadfastly refused to negotiate with Kellogg concerning these proposals. For instance, when Kellogg’s representative pressed the Union for alternative solutions to its proposals, the Union representative replied, “No—I don’t have to do that. I know you are really nice but I don’t mind telling you no every time.” 2013 Memphis Suppl. Negotiations 23, Sept. 17, 2013, CA6 R. 23. Insisting that Kellogg was attempting to bargain for amendments to the Master Agreement, rather than the Memphis Agreement, the Union representative finally concluded negotiations stating, “we are done negotiating, we are done ... done forever.” 2013 Memphis Suppl. Negotiations 1, Oct. 15, ,2013, CA6 R. 23.

After the parties reached impasse, Kellogg sent the Union its “Last/Best Offer” dated October 16,2013, threatening to lock out all Memphis bargaining unit employees effective October 22, 2013, if the Union declined to accept its offer by 7:00 a.m. on that date. When the Union did not respond, Kellogg locked out approximately 200 of its bargaining-unit employees.

The Union filed a complaint on March 27, 2014, and the ALJ held a trial on the alleged unfair labor practice charges, The ALJ noted that the Master Agreement covers little about casual employees, but that supplemental agreements “have determined the scope and operation of the casual employee program at the[ ] respective plants.” .Decision 23, CA6 R. 23, Therefore, the ALJ concluded that Kellogg’s proposals did not contravene the terms of the Master Agreement, but rather spoke to the provisions of the Memphis Agreement, so the proposals were not midterm modifications of the Master Agreement, but rather mandatory subjects of bargaining. He further determined that a bona fide impasse was reached between the parties due to the Union’s failure to negotiate the proposals, so Kellogg was entitled to impose a lockout.

The Board reversed the ALJ’s decision. It concluded that the ALJ “misperceived the impact” of Kellogg’s proposals, which was to permit Kellogg “to cease- hiring all regular employees in the future and replace them with lower paid ‘casual’ employees.” Decision and Order 5, CA6 R. 23 (emphasis added). Kellogg repeatedly sought analogous modifications to regular employees’ wages and benefits during the 2005, 2009, and 2012 negotiations of the Master Agreement, but the parties never accepted these changes. In essence, the Board determined, Kellogg “sought to retain all of the traditional attributes of regular employees that benefit it the most ... while instituting across-the-board cuts to the wages and benefits that were bargained for newly hired regular employees in the Master Agreement.” Id. The proposal would modify the definition of casuals to encompass basically any new hire. Thus, the Board opined, while the Master Agreement made clear that the parties intended that the “core work force of permanent full-time employees” receive the benefits negotiated for regular employees,- Kellogg’s proposals “effectively alter the Master Agreement’s wage rates and benefits for newly hired regular employees.” Id. at 5-6 (emphasis added). The Board noted that a proposal to modify the Master Agreement mid-term is non-mandatory, and thus cannot be insisted upon as a condition for reaching an agreement for mandatory subjects, It further observed that a lockout is permissible only if undertaken in support of a legitimate bargaining position. As a result, the Board concluded, Kellogg’s attempt to compel acceptance of a mid-term modification of the Master Agreement by threatening to lockout, then locking out its employees violated Sections 8(a)(1), (3), and (5) of the NLRA.

Kellogg petitioned this court for review and the Board filed a cross-application for enforcement of its order.

II.

We review for substantial evidence the Board’s factual determinations and its application of law to facts. NLRB v. Galicks, Inc., 671 F.3d 602, 607 (6th Cir. 2012). This standard will be met “if a reasonable mind might accept the evidence as ‘adequate to support a conclusion.’” NLRB v. Int’l Bhd. of Elec. Workers, 514 F.3d 646, 649 (6th Cir. 2008) (quoting Vanguard Fire & Supply Co. v. NLRB, 468 F.3d 952, 957 (6th Cir. 2006)). We review the Board’s interpretation of contract terms de novo. NLRB v. Local 334 Laborers Int’l Union of N.A., 481 F.3d 875, 879 (6th Cir. 2007). Though we also review de novo the Board’s legal conclusions that are unrelated to the NLRA, Montague v. NLRB, 698 F.3d 307, 314 (6th Cir. 2012), we must defer to the Board’s reasonable interpretations of the NLRA, giving respect to the Board’s judgment as long as it is “reasonably defensible,” Int’l Bhd. of Elec. Workers, 514 F.3d at 650 (quoting Vanguard, 468 F.3d at 957). We need not agree that the Board’s construction is the “best way” to read the NLRA, but rather leave it to the Board to' balance “conflicting legitimate interests in pursuit of the national policy of promoting labor peace through strengthened collective bargaining.” Montague, 698 F.3d at 314 (citation omitted) (internal quotation marks omitted); accord Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 201-02, 111 S.Ct. 2215, 115 L.Ed.2d 177 (1991). However, this court must not stand back and “rubber-stamp” Board decisions that controvert the NLRA; instead it must- carefully scrutinize accusations that the Board failed to abide by precedent. Vokas Provision Co. v. NLRB, 796 F.2d 864, 869 (6th Cir. 1986) (citation omitted). This principle notwithstanding, the Board may depart from its precedent if its departure is explained and “explicitly and rationally justified.” Kindred Nursing Ctrs. v. NLRB, 727 F.3d 552, 560 (6th Cir. 2013) (citation omitted); accord Atchison, Topeka & Santa Fe Ry. Co. v. Wichita Bd. of Trade, 412 U.S. 800, 808, 93 S.Ct. 2367, 37 L.Ed.2d 350 (1973) (“Whatever the ground for the departure from prior norms, however, it must be clearly set forth so that the reviewing court may understand the basis of the agency’s action and so may judge the consistency of that- action with the agency’s mandate.”) If the basis for the departure is adequately explained, the standard of review is whether the Board decision was “arbitrary and capricious.” Kindred Nursing, 727 F.3d at 560.

III.

Section 8(d) of the NLRA imposes a mutual obligation on both employers and unions to “confer in good faith with respect to wages, hours, and other terms and conditions of employment.” 29 U.S.C. § 158(d). However, no such duty exists if “any modification of the terms and conditions contained in a contract for a fixed period ... is to become effective before such terms and conditions can be reopened under the provisions of the contract.” Id. Thus, a modification pertaining to a provision in a contract that has yet to expire, a mid-term modification, is not one about which the parties have a duty to bargain. See id.; NLRB v. Wooster Div. of Borg-Warner Corp., 356 U.S. 342, 349, 78 S.Ct. 718, 2 L.Ed.2d 823 (1958); Smurfit-Stone Container Enters., 357 N.L.R.B. 1732, 1733 (2011) (“But absent a reopener provision covering the proposal, under Section 8(d) of the Act the other party is under no obligation to consent to the [midterm] modification or even to discuss it.”). Insistence on such a subject of bargaining violates the NLRA. Smurfit-Stone Container Enters., 357 N.L.R.B at 1733. Prohibiting forced bargaining on mid-term modifications furthers the NLRA’s policy of reducing “industrial strife” and helps maintain stability in the terms and conditions of employment agreed upon by the parties. Chesapeake Plywood, Inc., 294 N.L.R.B 201, 201 (1989). A party’s insistence on a mid-term modification to the point of impasse—the “point at which the parties have exhausted the prospects of concluding an agreement and further discussions would be fruitless,” Pleasantview Nursing Home, Inc. v. NLRB, 351 F.3d 747, 761-62 (6th Cir. 2003) (citation omitted)—violates the NLRA. Smurfit-Stone Container Enters., 357 N.L.R.B at 1733. So does locking out employees for refusing to negotiate a mid-term modification. See Horsehead Res. Dev. Co. v. NLRB, 154 F.3d 328, 344 (6th Cir. 1998) (“A lockout can ... be unlawful if it is implemented out of hostility to the process of collective bargaining.” (citing Am. Ship Bldg. Co. v. NLRB, 380 U.S. 300, 309, 85 S.Ct. 955, 13 L.Ed.2d 855 (1965))); Rangaire Acquisition Corp., 309 N.L.R.B 1043, 1050 (1992) (concluding that the NLRA prohibits a lockout to “coerce [employees] into consenting to reopening and agreeing to modify the terms and conditions of the existing collective-bargaining contract”).

A.

Kellogg contends that the Board reached its conclusion by “inferring a contractual work guarantee for regular employees that simply does not exist.” Pet’r Br. 3, CA6 R. 22, This, it argues, is contrary to the language of the Master Agreement, which expressly prohibits the use of implied terms, and further “includes no express guarantees or ‘core work force’ terms governing the allocation of work between casual and regular employees.” Id. at 3^4, 18-21. The only provision in the Master Agreement pertaining to casual employees, Kellogg asserts, is unaffected by its proposal.

The Board responds that Kellogg’s proposal “would modify the unexpired Master Agreement’s [express] provisions regarding wages, benefits, overtime, and premium pay” and would further “erase the Master Agreement’s distinction between ‘regular’ and ‘non-regular’/‘casual’ employees.” Resp’t Br. 16, 27, CA6 R. 27. It asserts that because the Master Agreement did not define “casual employees,” the definition carries its ordinary meaning, which is “short term, temporary, sporadic employees.” Id. at 25 & n.7.

We interpret a CBA as a contract, looking first to its plain language “for clear manifestations of the parties’ intent.” Moore v. Menasha Corp., 690 F.3d 444, 451 (6th Cir. 2012). To the extent we find the plain language ambiguous, we may look outside of the document to determine the parties’ intent by examining “relevant extrinsic evidence, such as a past practice of the parties in regard to the effectuation or implementation of the contract provision in question, or the bargaining history of the provision itself.” Mining Specialists, Inc., 314 N.L.R.B. 268, 268-69 (1994); accord Moore, 690 F.3d at 451.

The Master Agreement covers “only those matters specifically included [tjhere-in.” Master Agreement 1, CA6 R. 23. The only reference to casual employees specifically included therein pertains to the wage rate for casual employees and the Board does not contest that Kellogg’s proposal does not affect this provision. The Master Agreement has no “system” of regular and casual employees. See Resp’t Br. 21, CA6 R. 27. It is the Memphis Agreement, regarding which both parties were required to negotiate, that defines casual employees and sets forth the terms of the casual program. As the Master Agreement does not distinguish between regular and casual employees aside from the limited purpose of wages, the Board is incorrect that the proposal erases the Master Agreement’s distinction between the two, as there is no such distinction to erase. The provisions pertaining to regular employees in the Master Agreement are untouched by the proposal.

The Board also makes much of the definition of casual employees, but casual employees were never defined in the Master Agreement. The definition was included in the Memphis Agreement’s description of the casual program. Likewise, though the Board complains that under the proposal, Kellogg could hire new casual employees while regular employees were in layoff, the obligation imposed on Kellogg not to do so is one placed on it by the Memphis Agreement, not the Master Agreement.

In looking to the plain, unambiguous language of the Master Agreement and the proposal, the latter simply does not modify the former so we need not look outside of the text of either writing. Thus, the success of the Board’s argument turns on the viability of its effective modification theory.

B.

Kellogg next argues that the Board’s decision conflicts with its precedent in Milwaukee Spring. According to Kellogg, Milwaukee Spring stands for the proposition that, in determining whether there has been a modification, the Board must identify a specific term contained in the contract and is not permitted to find “an implied work preservation term ‘based on wage and benefits or recognition provisions’ in an unexpired contract.” Pet’r Br. 4, 31-32, CA6 R. 22. Thus, it concludes, there can be no effective modification under Section 8(d).

While the Board concedes that the Master Agreement does not guarantee regular employees any “minimum hours of work, overtime, or particular schedules,” it contends that the proposal not to hire any regular employees would effectively terminate any provisions for newly hired regular employees. Resp’t Br. 26-27, CA6 R. 27. The Board also insists that Milwaukee Spring “simply held that no term in the parties’ single contract had been modified, effectively or otherwise,” but that subsequent cases approved of an effective modification theory. Id. at 30.

To resolve this issue, we first turn to Milwaukee Spring. We note, though, that the Board did not mention or discuss Milwaukee Spring in its decision.

The employer in Milwaukee Spring asked the union to forgo a scheduled wage increase or, alternatively, to relocate the union’s operations to a nonunionized facility so that the employer could obtain relief from the comparatively higher labor costs at the unionized Milwaukee Spring facility. 268 N.L.R.B. at 601. Though the union rejected these proposals, the employer nevertheless relocated work to the nonu-nionized facility. Id. Applying the principles underlying Section 8, the Board concluded that “before the Board may hold that Respondent violated Section 8(d), the Board first must identify a specific term ‘contained in’ the contract that the Company’s decision to relocate modified.” Id. at 602. No such provision was contained in the contract. Id. Though the union argued that because the relocation decision was motivated by a desire for ■ lower labor costs, it modified the contract’s “wage and benefits provisions,” the Board rejected this argument. Id. It concluded that if the parties had wanted to draft a provision requiring that work remain at the Milwaukee Spring facility, they could have, but did. not. Id. The Board concluded that it was not its role “to create an implied work-preservation clause in every American labor agreement based on wage and benefits or recognition provisions,” and “expressly decline[d] to do so.” Id. To hold otherwise, the Board observed, would “add[] to the collective-bargaining agreement terms not agreed to by the parties and foreclose[] the exercise of rational economic discussion and decision-making which ultimately accrue to the benefit of all parties.” Id. at 603.

Subsequent decisions likewise require that the Board find a specific term in the contract that is modified by the proposal and prohibit the Board from implying a work preservation term based on “wage and benefits provisions” in an agreement. See, e.g., FMC Gorp, 290 N.L.R.B. 483, 484-85 (1988) (relying on Milwaukee Spring in concluding that “there [was] no evidence that the parties’ contract contained a provision which restricted or otherwise preserved the performance of the [bargaining-unit] work to the [unionized] facility,” so the employer did not engage in an unlawful mid-term modification); Ad-Art, Inc., 290 N.L.R.B. 590, 607-08 (1988) (concluding that Milwaukee Spring was inapplicable because the contract at issue “contained express provisions prohibiting the reassignment or transfer of work without the Unions’ consent”). For instance, in Suburban Transit Corp., the employer transferred work from one set of employees, employed by Transit, to another, employed by Trails, despite the union’s rejection of the proposal. 276 N.L.R.B. 15, 18 (1985). Prior to the Board’s decision in Milwaukee Spring, the ALJ concluded that the employer violated the NLRA because it “attempted to accomplish indirectly what it could not legally do directly— the modification of the terms of the Transit employees’ existing contract.” Id. However, on remand for reconsideration in light of Milwaukee Spring, the ALJ issued a supplemental decision, which the Board adopted. Id. at 15. On remand, the union argued that its case was distinguishable from Milwaukee Spring because the contract contained a “work-preservation clause,” which purportedly preserved the work they had historically done and guaranteed 90 full-time Transit employees would be maintained. Id. at 24. Yet, the ALJ concluded that this provision was “nothing more than [the employer’s] ‘intention’ to maintain a minimum of 90 drivers,” which did not guarantee Transit drivers “the right to perform any specific type of work.” Id. The ALJ also rejected the union’s argument that the provision that “[p]art time drivers will be used only when there is an insufficient number of full time drivers to cover all of the available work,” constituted an “‘express guarantee’ .... that the full-time Transit employees would be ensured of work prior to the employment of part-time (Trails) drivers.” Id. at 25.

Many of the cases relied on by the Board on áppeal include an express term that was directly, not effectively, modified by the employer’s proposal, and thus are inapplicable to the Board’s effective modification theory. E.g., St. Vincent Hosp., 320 N.L.R.B. 42, 42-45 (1995) (concluding that the employer violated the NLRA by making a mid-term modification concerning a healthcare plan that was “contained in” the CBA after the parties, by “mutual consent” orally added the healthcare plan to the CBA); E.G. & G. Rocky Flats, Inc., 314 N.L.R.B. 489, 493, 497 (1994) (concluding that the employer violated the NLRA by temporarily suspending a training program that was added by agreement of the parties to the CBA); Link Corp., 288 N.L.R.B. No. 132, 1988 WL 213934, at *2 (1988) (“[T]he Respondent unilaterally modified the terms of article XXXIII of the agreement by ceasing to make required premium payments and thereby effectively terminating all employee group insurance benefits set forth in that article.” (emphasis added)); Martin Marietta Energy Sys., 283 NLRB 173, 174-75 (1987) (concluding that the employer unlawfully modified the CBA mid-term by adding a new health insurance plan because, although the employees were free to continue in “the negotiated medical insurance plan,” the CBA provided that there could be “no ‘additions, waivers, deletions, changes or amendments (to the contract) ... except by mutual consent in writing” (alteration in original)); C & S Indus., Inc., 158 N.L.R.B. 454, 458-59 (1966) (concluding that the employer committed an unlawful mid-term modification in initiating a wage incentive system where there was a term" in the contract prohibiting' any change in the method of payment).

The remaining cases cited by the Board are likewise inapposite. The Union, in its intervenor’s brief, points to Don Lee Distributor, Inc. v. NLRB, 145 F.3d 834, 843-44 (6th Cir. 1998), where this court held that there were no “magic words” distinguishing between an unlawful bargaining pact or innocent coordination, but looked to the “totality of the circumstances” to “determine whether the signatories truly” were independent, or whether they “effective[ly]” had veto power. Intervenor Br. 38-39, CA6 R. 29. But Don Lee did not deal with the issue presented here of whether the terms of a party’s proposal modified the terms of an unexpired CBA. Rather, -¡the inquiry in Don Lee was whether the employers refused to bargain separately by creating an unlawful ■ mul-tiemployer bargaining relationship, which necessarily required an inquiry into the employers’ conduct. 145 F.3d at 842-43. Likewise, in Stroehmann Bakeries, Inc., the Board held that when the employer prohibited regular drivers from selling certain products, it acted contrary to the CBA, which guaranteed all regular drivers a set commission for deliveries of all bakery products. 287 N.L.R.B. 17, 19 (1987). In that case, the employer established a new route, at a lower pay than under the CBA, for deliveries only of cakes. Id. However, the CBA established a base pay rate for “all” drivers and a rate for “Mom-mission on all sales.” Id. It also required “drivers to receive full pay and commission on all bakery products delivered in his territory” and required “[a]ll bakery products sold ..'. [to] be delivered' by a regular wholesale sales driver and paid for in accordance with the [aforementioned] wage scale.” Id. “A more thorough and conscientious effort to set the compensation,” the Board concluded “can hardly be imagined by the mind of man.” Id. Such a conscientious effort was lacking in the Master Agreement.

In sum, the cases relied upon by the Board on appeal do nothing to rebut the principles articulated in Milwaukee Spring. Turning to the facts of this case, the Board’s position is inconsistent with these principles for several reasons. For one, as discussed above, there is no specific term in the Master Agreement modified by Kellogg’s proposal - Moreover, Milwaukee Spring and the cases interpreting it disclaim any effective modification theory. A comparison of the facts of this case to Suburban Transit illustrates the inapplicar bility of the Board’s theory. As the ALJ found to be the case in Suburban Transit, the Union argued Kellogg “attempted to accomplish indirectly what it could not legally do directly—the modification of the terms of the” unexpired Master Agreement. See 276 N.L.R.B. at 18. But in Suburban Transit, the employer’s actions were not in violation of the NLRA. This was true even though that CBA had a term requiring part-time drivers to be used only when there was an insufficient number of full-time drivers—a term like that contained, in the expired Memphis Agreement, but not in the unexpired Master Agreement—and a term stating the employer’s intention to maintain a set number of full-time drivers—a term neither contained in the Memphis Agreement nor in the Master Agreement. See id. at 24. Surely, if, as in Suburban Transit and Milwaukee Spring, an employer can reassign work away from a class of employees, it can decline to hire a class of employees in the future while maintaining the benefits available to those presently employed.

It may be true, as the Board contends, that these principles allow Kellogg to use “creative semantics” to negotiate for terms in the Memphis Agreement that the Union declined to accept in the negotiations for the Master Agreement. Yet, as illustrated by Board precedent, this is acceptable. It is for the Board, not this court, to balance “conflicting legitimate interests in pursuit of the national policy of promoting labor peace through strengthened collective bargaining.” Montague, 698 F.3d at 314 (citation omitted) (internal quotation marks omitted). If the Union wanted to provide for a “core work force of permanent full-time employees,” see Decision and Order 5, CA 6 R. 23, to work at Kellogg and provide them with a set amount of work, the Union could have bargained for terms to that effect in the Master Agreement, but it did not. To the contrary, it refused to bargain. Because Kellogg’s proposal is not a mid-term modification of the Master Agreement, Kellogg’s insistence upon its terms to the point of impasse, and subsequent lockout, did not violate the NLRA. Though the Board in this case concluded to the contrary, it did so without citation to any of its prior precedents, let alone Milwaukee Spring. Thus, although the Board argues here that Milwaukee Spring was distinguishable and gave no explanation of why Milwaukee Spring did not apply, Milwaukee Spring obviously did apply, and the Board was required to consider and explain its departure from that precedent.

Although we defer to the Board’s interpretations of the NLRA if “reasonably defensible,” Int’l Bhd. of Elec. Workers, 514 F.3d at 650, it is this court’s duty not to merely “rubber-stamp” the Board’s conclusion, but to carefully scrutinize whether it abided by its own precedent, Vokas, 796 F.2d at 869. Here, the Board did not abide by its precedent or explain its failure to do so.

C.

As to the Board’s finding that Kellogg violated Section 8(a)(5) and (1) of the NLRA by refusing to provide its employees’ union with specific information requests, Kellogg has not briefed or argued in opposition to enforcement. When a party “fails to challenge a portion of the Board’s findings on appeal,” the Board “is entitled to summary enforcement as to the uncontested portions of its Decision and Order.” Vanguard Fire & Supply Co. v. NLRB, 468 F.3d 952, 956 (6th Cir. 2006). Kellogg’s actions on appeal have left the finding of a Section 8(a) violation uncontested. We therefore grant enforcement of the Board’s petition and affirm its decision as to the information-request violations.

IV.

For the aforementioned reasons, we grant the petition for review, grant enforcement and affirm the Board’s decision with respect to the information-request finding, and vacate the remainder of the Board’s decision.

      . Neither party disputes that impasse was reached.

      . The provision stated:
      Suburban shall have the right to hire part time drivers.
      It is the Company's intention to maintain at least the current level of 90 full time drivers, provided that the current level of business continues. The Company further intends to enlarge the full time work force.

        Part time drivers will be used only when there is an insufficient, number of full time drivers to cover all of the available work. In all cases the full time drivers shall have their choice between line and charter work provided that there are part time drivers available to cover all open line work. In all cases full time drivers shall have their choice of the biggest paying pieces of work. The Company will also attempt to satisfy full time regular run operators in the assignment of extra work, providing sufficient operators are available to cover all open work.
      The limit of work available to full time drivers will be governed only by the "hours of service” regulations of the Department of Transportation, and not by the availability of part time drivers.
      Id.-(emphasis added).


author: ROGERS, Circuit Judge.

text:
    Sean CONWAY, Plaintiff-Appellant, v. PORTFOLIO RECOVERY ASSOCIATES, LLC, Defendant-Appellee.
    No. 15-5925
    United States Court of Appeals, ' Sixth Circuit.
    Decided and Filed: October 27, 2016

      ON BRIEF: Kenneth J. Henry, Louisville, Kentucky, James H. Lawson, LAWSON AT LAW, PLLC, Louisville, Kentucky, for ’ Appellant.’ Joseph N. Tucker, DINSMORE & SHOHL LLP, Louisville, Kentucky, for Appellee.
    Before: MERRITT, BATCHELDER, and ROGERS, Circuit Judges.
   OPINION

ROGERS, Circuit Judge.

After Sean Conway filed a putative class action suit against Portfolio Recovery Associates, LLC (“PRA”) under the Fair Debt Collection Practices Act, and survived a 12(b)(6) motion to dismiss, PRA offered Conway judgment in his favor. Conway decided against the offer, and shortly after it expired, PRA once again moved to dismiss, this time arguing that, as PRA had offered Conway all the relief he sought, there was no longer a live case or controversy before the court. Heeding the then-governing precedent of this court, the district court dismissed the case for lack of subject matter jurisdiction and entered judgment in Conway’s favor, over his objections. Conway now appeals. Because the intervening Supreme Court decision-in Campbell-Ewald Co. v. Gomez, — U.S. -, 136 S.Ct. 663, 193 L.Ed.2d 571 (2016), squarely resolves the central issue of this appeal, and because we have jurisdiction to say so, the district court’s dismissal and judgment must be set aside.

The Supreme Court has now made clear that an unaccepted offer of settlement or judgment, like the one PRA made to Conway, generally does not moot a case, even if the offer would fully satisfy the plaintiffs demands for relief. Campbell-Ewald, 136 S.Ct. at 672. Although this holding would thus appear to resolve the main issue of this appeal and require us to vacate and remand, as we have already done in similar circumstances, see Mey v. North Am. Bancard, LLC, 2016 U.S. App. LEXIS 12618 (6th Cir. Jul. 6, 2016), PRA nevertheless argues that Campbellr-Ewald does not decide this case, because here, unlike in Campbell-Etvald, the district court in dismissing the case simultaneously entered an enforceable final judgment against Conway granting him all the relief he wanted. But as the district court explained at the time, it entered that judgment only because it believed this court’s decision in O’Brien v. Ed Donnelly Enters., 575 F.3d 567 (6th Cir. 2009), required it to do so. We have since clarified, -however, that “Campbell-Ewald is inconsistent with our decision in O’Brien,” and that, under Campbell-Ewald, a judgment en tered in favor of a plaintiff who has rejected an offer of judgment—like the one at issue here—would be in error. Mey, 2016 U.S. App. LEXIS-12618, at *7. Regardless, then, of whether PRA “threw in the towel” by urging judgment in Conway’s! favor, PRA cannot now rely on that erroneous judgment to moot Conway’s case. Campbell-Ewald accordingly controls the issue in this appeal, and revives the Article III controversy between Conway and PRA that our decision in O’Brien wrongly extinguished.

Despite Campbell-Ewald’& clear command in this case, PRA nevertheless argues that this court lacks the jurisdiction to review it, because the district court’s final judgment for Conway has already given him all the individual relief he sought. This argument, however; is equally unavailing. Under 28 U.S.C. § 1291 this court generally may exercise jurisdiction over the final decisions of the district courts, see Mohawk Indus. v. Carpenter, 558 U.S. 100, 106, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009), and PRA rightly does not quarrel with the conclusion that the district court’s decision to dismiss was indeed final. Instead, PRA argues that the judgment entered in Conway’s favor ended his personal stake in the litigation, a stake necessary for this court to retain its jurisdiction, Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 333-34, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980). But as this court recently explained in Mey, a case also reset by Campbell-Ewald, a “judgment that should never have been entered” does not snuff out a plaintiffs stake in the underlying litigation. Mey, 2016 U.S. App. LEXIS 12618, at *10. On the contrary, “an appeal remains alive if the effects ... of [a district court’s order] can be undone,” Al-Dabagh v. Case Western Reserve Univ., 777 F.3d 355, 359 (6th Cir. 2015), as they could be here by our vacating and remanding as we did in Mey. Conway therefore retains the same stake he had in this case before it was erroneously cut short by the district court, and this court may now correct that error in light of Campbell-Ewald.

Finally, as Conway’s suit was erroneously dismissed, there is no need for this court to address the merits of his motion for class certification. After granting PRA’s motion to dismiss for lack of subject matter jurisdiction, the district court dismissed the remainder of the then-pending motions as moot, including Conway’s motion for class certification. However, just as in May, 2016 U.S. App. LEXIS 12618, at *11, now that Campbell-Ewald has made clear that the district court’s entry of judgment was in error, it is equally clear that its dismissal of Conway’s class claim on mootness grounds was also mistaken. Thus the appropriate course here, the same that this court took in Mey, see id. at *11-12, is to give Conway the opportunity to litigate his class claim in the district court.

We therefore vacate the district court’s judgment dismissing for lack of jurisdiction and concurrently entering a money judgment. The case is remanded.

      . Nor, for that matter, do we need to address the hypothetical left open by Campbell-Ewald, see 136 S.Ct. at 672, because PRA concedes that its unaccepted tender to Conway did not fully satisfy his individual claim for relief in any case.


author: KANNE, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. C. Gregory TURNER, Defendant-Appellant
    No. 15-1175
    United States Court of Appeals, Seventh Circuit.
    Argued October 26, 2015
    Decided September 9, 2016

      Barry Jonas, Assistant U.S. Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.
    James D. Tunick, Attorney, Law Offices of James D. Tunick, Chicago, IL, for Defendant-Appellant.
    Before KANNE, ROVNER, and SYKES, Circuit Judges.
   Supplemental Classified Opinion

KANNE, Circuit Judge.

As noted in the general unclassified opinion in this case. Defendant Gregory Turner was convicted of willfully conspiring, with Prince Asiel Ben Israel, to provide services for Zimbabwean Specially Designated Nationals (“SDNs”), a group of government officials and related individuals deemed to be blocking the democratic processes or institutions of Zimbabwe. Both Turner and Ben Israel are U.S. persons.

This is the supplemental classified opinion addressing Turner’s claims, on appeal that the government’s investigation violated the Foreign Intelligence Surveillance Act (“FISA”) and that the obtained or derived evidence should have been suppressed. Having reviewed the unclassified and classified record, we find that the order of the district court denying suppression of the FISA evidence and its eviden-tiary fruits was proper.

I. Background

Using the same approach as with the unclassified opinion, we begin with a brief synopsis of the relevant legal framework for Turner’s claims under FISA. Then, we summarize the FISA collections against Turner and the pertinent procedural history.

A. FISA Legal Framework

In 1978, Congress enacted FISA, Pub. L. 95-511, to establish procedures for electronic surveillance, physical searches, and other methods of information collection for foreign intelligence purposes. 50 U.S.C. § -1801 et seq. The statute has been amended several times, most recently in 2008, Pub. L. 110-261.

FISA authorizes electronic surveillance and physical searches either with or without a court order. Turner’s case only concerns FISA authorization -with a court order, also known as a FISA warrant. §§ 1805,1824.

FISA established the Foreign Intelligence Surveillance ' Court (“FISC”) to grant or deny government applications for a FISA warrant. § 1803,1822. The statute also established the Foreign Intelligence Surveillance Court of Review (“FISCR”) to review FTSC denials of government applications for a FISA:warrant. Id.

In order for the FISC to issue an order, it must find that the government met certain requirements, including establishing probable cause, certification, and proposed minimization procedures.' §§ 1804(a), 1805(a), 1823(a), 1824(a). The FISC must find that the government demonstrated “probable cause” that the target “is a foreign power or an agent of a foreign power” and that each of the targeted facilities or properties is being used by a foreign power or an agent of a foreign power. §§ 1804(a)(3), 1805(a)(2), 1823(a)(3), 1824(a)(2). The FISC also must find that the government provided “written certification” from a high-level executive branch official that a “significant purpose” of the proposed surveillance or search “is to obtain foreign intelligence information.” §§ 1804(a)(6), 1805(a)(4), 1823(a)(6), 1824(a)(4). Finally, the FISC must find that the government’s proposed “minimization procedures” are reasonably designed “to minimize the acquisition and retention, and prohibit the dissemination of nonpub-licly available information concerning un-consenting United States persons,” as well as provide additional protections relating to information and communications involving U.S. persons. §§ 1801(h), 1804(a)(4), 1805(a)(3), 1821(4), 1823(a)(4), 1824(a)(3). If the FISC approves the application, the government must adhere to these proposed “minimization procedures.”

If the FISA judge makes the necessary findings, he or she then issues an order authorizing’the electronic surveillance or physical search. §§ 1805(a), 1824(a). The FISC order must contain specific information on the target, relevant location, type of information sought means, duration, coverage, and applicable minimization procedures. §§ 1805(e)-(d), 1824(c)—(d).

The government may also use information obtained from or derived from a FISC order for criminal proceedings if it obtains advance authorization from the Attorney General and provides notice to the court and to each “aggrieved person” against whom the information is to be used. §§ 1806(b)—(d), 1825(c)-(e).

In response, the aggrieved person may move to discover the materials relating to the surveillance and search, “only where such disclosure is necessary to make an accurate determination of the legality of’ the surveillance or search. §§ 1806(f), 1825(g). The aggrieved person may also move to suppress evidence obtained or derived from the surveillance or search if “the information was unlawfully acquired” or if it “was not made in conformity with an order of authorization or approval.” §§ 1806(e), 1825(f). If the aggrieved person files a motion to discover or suppress, and if the Attorney General certifies that “disclosure of any adversary hearing would harm the national security of the United States,” then the district court must “review in camera and ex parte,” the .FISA materials and rule on the motion. §§ 1806(f)—(g), 1825(g)-(h).

B. FISA Collections

On [redacted], the FISC found probable cause to believe that [redacted], [redacted] U.S. persons, were agents of [redacted] a foreign power. The FISC authorized electronic surveillance of [redacted]

The FISC’s initial authorization was for a period of [redacted] After an additional ápplieation by the government the FISC subsequently re-authorized the [redacted] of the same facilities for an additional period of approximately [redacted] Together these two orders covered the time period from [redacted]

At trial the government-introduced evidence obtained or derived from the [redacted]

■ C.' Procedural History

On August 20, 2013, the government provided notice to Turner that it “intends to offer into evidence, or otherwise use or disclose in any proceedings in this matter,” information obtained or derived from [redacted] conducted under FISA, pursuant to §§ 1806(c), 1825(d).

A week later, on August 27, 2013, a grand jury returned an indictment against Turner, charging the following: (1) Count One alleged conspiring to act in the United States as an agent of a foreign government without prior notification to the Attorney General, in violation of 18 U.S.C. §§ 371, 951(a); (2) Count Two alleged acting in the United States as an agent of a foreign government without prior notification to the Attorney General, in violation: of 18 U.S.C. § 951(a); and (3) Count Three alleged willfully conspiring to provide services on behalf of, or for the benefit of, Zimbabwean SDNs, in violation of the IEEPA, 50 U.S.C. § 1705(c), and 31 C.F.R. §§ 541.201, 541.204, and 541.405.

On' February 27, 2014, Turner filed a motion for disclosure :of FISA materials and a motion to suppress evidence obtained or derived from FISA. The government responded to these motions with a classified brief and sealed appendix submitted -ex pa/rte to the district court and a redacted, unclassified version served to Turner. Additionally, the government filed a “Declaration and Claim of Privilege” by the Attorney General that declared, “it would harm the national security of the United States to disclose or hold an adversarial hearing with regards to the FISA Materials,” pursuant to §§ 1806(f), 1825(g).

On July 25, 2014, the district court, in a thorough and well-reasoned opinion, denied Turner’s motion for disclosure and his motion to suppress. The district court began by concluding that the [redacted] were “lawfully authorized,” because the government presented sufficient evidence to the FISC to support a finding of probable cause that [redacted] was the “agent of a foreign power.” The court then determined that the lawfully authorized FISA warrants targeting [redacted] were executed “in conformity with an order or authorization or approval” because the government had properly minimized its collections.

Turner’s trial began on September 29, 2014. Ultimately, the jury acquitted Turner of Counts One and Two but convicted him of Count Three. The district court sentenced Turner to 15 months’ imprisonment and one year of supervised release. Judgment was entered against Turner on January 21, 2015. Turner’s appeal followed.

II. Analysis

On appeal, Turner claims that ‘the government’s investigation violated FISA and that the obtained or derived evidence should have been suppressed. First, Turner argues that the FISC erred in finding that the government met its probable cause and certification requirements. Second, Turner contends that after receiving the lawful FISC order, the government did not properly minimize its collections under FISA. Third, Turner contends that the FISA investigation violated his protected rights under the First Amendment.

A. FISC Order

This court reviews de novo the district court’s ruling on the propriety of the FISC’s order. United States v. Dumeisi, 424 F.3d 566, 578 (7th Cir. 2005). In other words, in reviewing the adequacy of a FISA application, this court conducts the same review as the FISC. In re Grand Jury Proc. of Special Apr. 2002 Grand Jury, 347 F.3d 197, 204 (7th Cir. 2003).

After reviewing the classified record, we hold that the FISC properly found that the government’s application met the requirements of probable cause and certification under FISA.

1. Probable Cause

This court reviews the probable cause determination of the FISC de novo, Dumeisi, 424 F.3d at 578-79, although we note that some of our sister courts have applied a more deferential standard of review, e.g., United States v. Abu-Jihaad, 630 F.3d 102, 130 (2d Cir. 2010). (“the established standard of judicial review applicable to FISA warrants is deferential”).

According to FISA, the FISC must find that the government demonstrated probable cause that the target “is a foreign power or an agent of a foreign power” and that each of the targeted facilities or properties is being used by a foreign power or an agent of a foreign power, §§ 1804(a)(3), 1805(a)(2), 1823(a)(3), 1824(a)(2). We apply this statutory standard but acknowledge that some of our sister courts have sought to distinguish between probable cause under FISA and probable cause under a “typical criminal case.” E.g., United States v. El-Mezain, 664 F.3d 467, 564 (5th Cir. 2011) (“[FISA’s] probable cause standard is different from the standard in the typical criminal case because, rather than focusing on probable cause to believe that a person has committed a crime, the FISA standard focuses on the status of the target as a foreign power or an agent of a foreign power.”). Even if there is a distinction between the two standards, it does not affect our analysis.

In the present case, the FISA applications by the government supported the FISC’s probable cause finding that [redacted]

[redacted]

[redacted]

Additionally, the FISA applicatipns supported the FISC findings of probable cause for the proposed [redacted] The FISA'applications included evidence showing that [redacted]

Accordingly the FISC properly found that the government demonstrated “probable cause” that [redacted] was the “agent of a foreign power” and that the [redacted] were “being used or about to be used” by [redacted]

Turner contends that “FISA appears to require the communications subject to surveillance of a United States person must relate directly to activities involving international terrorism as defined in FISA.” (Appellant Br. 38.) Turner misstates the law. FISA is not limited to activities involving international terrorism. FISA authorizes surveillance and searches based on probable cause that the target is an “agent of a foreign power,” which relates to “any person” engaged in certain activities (or knowingly aids and abets a person so engaged) on behalf of a foreign power, including “clandestine intelligence gathering activities” and “entering] the United States under a false or fraudulent identity ... or, while in the United States ... assumpng] a false or fraudulent identity.” §§ 1801(b)(2), 1821(1). These activities are listed in addition to “international terrorism.” Id.

Turner also argues that if the sole purpose of the FISA warrant was to gather evidence for a criminal prosecution, “the intercept was improper.” (Appellant Br. 38.)

Turner’s argument is meritless. FISA, as amended in 2008, “eliminated any justification for the FISA court to balance the relative weight the government places on criminal prosecution as compared to other counterintelligence responses.” In re Sealed Case, 310 F.3d 717, 735 (FISA Ct. Rev. 2002). In other words, while the government must “have a measurable foreign intelligence purpose, other than just criminal prosecution” the amended FISA statute “does not oblige the government to demonstrate to the FISA court that its primary purpose in conducting electronic surveillance is not criminal prosecution.” Id. at 735-36 (alteration in original).

Here, as discussed, the FISA applications by the government supported the FISC’s probable causé finding that [redacted] was an “agent of a foreign power” because [redacted] This clearly demonstrated “a measurable foreign intelligence purpose” and thus, Turner’s argument fails.

Finally, Turner claims that the “FISA applications may contain intentional or reckless material falsehoods.” (Appellant Br. 39.) In reviewing the unclassified and classified record we have made “a meaningful effort to confirm the accuracy of the [FISA] application.” United States v. Daoud, 755 F.3d 479, 494-95 (7th Cir. 2014) (Rovner, J., concurring) (characterizing this review as serving “the same interest’ ... that a Franks motion serves”). This review assures us that the FISA applications did not contain intentional or reckless material falsehoods.

2. Certification

Turner also challenges the FISC’s finding that the government properly certified that a “significant purpose of’ the’ proposed surveillance or search “is to obtain foreign intelligence information.” §§ 1804(a)(6), 1806(a)(4), 1823(a)(6), 1824(a)(4).

FISA expressly provides that, for surveillance or searches targeting U.S. persons, the FISC must ensure only that the government’s certifications are “not clearly erroneous.” §§ 1806(a)(4), 1824(a)(4),

In reviewing the adequacy of the FISA application, this court. conducts the same review as the FISC, and our role “is not to second-guess the executive branch official’s certification.” In re Grand Jury Proc., 347 F.3d at 204.

In this case, after reviewing the classified record, we find that the government’s requisite certifications were proper. The government presented the FISC with sufficient evidence that [redacted], the government’s • certifications were not “clearly erroneous.”

A. Minimization

Under FISA, after receiving lawful FISC orders, the government must employ “minimization procedures,” proposed in its application, that are reasonably designed “to minimize the acquisition and retention, and prohibit the dissemination of nonpublicly available information concerning unconsenting United States persons,” as well as provide additional protections relating to information and communications involving U.S. persons. §§ 1801(h), 1804(a)(4), 1806(a)(3), 1821(4), 1823(a)(4), 1824(a)(3).

The Attorney General has .adopted Standard Minimization Procedures (“SMPs”); which are maintained on file with the FISC and incorporated by reference- into every FISA application and order. These SMPs permit [redacted], with review to take place after the initial acquisition of the information. .

In Turner’s case, after receiving lawful FISC orders, the government properly minimized the FISA information it collected in accordance with the SMPs. The classified record shows that before executing the FISC order the FBI verified the facilities subject to the approved [redacted] and that, subsequently, the collections were conducted during the approved times using the least physical intrusion necessary. The classified record also indicates that only authorized and trained FBI personnel reviewed translated, analyzed, and used the collected FISA information, and they did so with the purpose of determining whéther the information reasonably appeared to meet the retention standard. Furthermore, it appears that any information assessed to meet the retention standard was further investigated, analyzed, and disseminated in accordance with the SMPs. Finally, the classified record provides - particular and concrete evidence that only a percentage of the FISA collection met the SMP standard for retention and dissemination.

This is sufficient to demonstrate that the government properíy minimized the information collected pursuant to its FISC order.

B. First Amendment

Turner also claims that the FISA investigation violated his “protected First Amendment activity related to his belief in the wisdom and humanity in lifting economic sanctions against the .Republic of Zimbabwe.” (Appellant Br. 38.)

FISA provides “that no United- States person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the first amendment of the Constitution of the United States.” 50 U.S.C. §§ 1805(a)(2)(A), 1824(a)(2)(A).

Turner’s claim is meritless. In the present case, as discussed, the classified records show that the government established probable cause that [redacted] was agent of a foreign power, completely independent of any protected First Amendment activity. See Dumeisi, 424 F.3d at 578-79 (rejecting a First Amendment claim against FISA evidence by a publisher of an Arabic language newspaper because “the government provided probable cause that [the defendant] was an agent of a foreign power. entirely independent of any of his journalistic activities.”).

III. Conclusion

For the foregoing reasons, the order of the district court denying suppression of the FISA evidence and its evidentiary fruits was proper.

      . [redacted] FISA contains separate but largely parallel, provisions governing electronic surveillance, 50 U'S.C. §§ 1801-1512, and physical searches. §§ 1821-1829.

      . On appeal, Turner does not challenge the district court's denial of his motion to disclose the FISA materials. Therefore, this claim is waived, and we do'not address it. See United States v. Dabney, 498 F.3d 455, 460 (7th Cir. 2007) ("Because the argument was not raised or developed in the opening brief, it is waived.”).