author: ROVNER, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Alan CISNEROS, Defendant-Appellant.
    No. 16-1300
    United States Court of Appeals, Seventh Circuit.
    Argued November 8, 2016
    Decided January 25, 2017

      Andrianna D. Kastanek, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.
    Andrea Elizabeth Gambino, Attorney, Gambino & Associates, Chicago, IL, for Defendant-Appellant.
    Before WOOD, Chief Judge, and POSNER and ROVNER, Circuit Judges.
   ROVNER, Circuit Judge.

On June 23, 2015, Alan Cisneros pled guilty to possession with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 846. The facts as developed at the plea hearing and during sentencing reveal that Cisneros was a high-ranking member of the Latin Kings and was involved in a large-scale drug trafficking operation in Summit, Illinois. In the 10-month period between approximately August 2011 and May 2012, Cisne-ros admits that he was responsible for the purchase or sale of between 3.5 and 5 kilograms of cocaine, but he disputes the government’s calculation—accepted by the district court—that the amount exceeded 5 kilograms. The district court determined that the Sentencing Guidelines range applicable to Cisneros was 188-235 months, and sentenced him to 188 months’ imprisonment, a supervised release term of four years, a special assessment of $100, and repayment to the government of $34,600 in “buy money” provided to Cisneros during the course of his offense.

Cisneros now appeals his sentence on three grounds. First, he argues that the district court, in calculating the applicable discretionary Sentencing Guidelines range, improperly imposed a two-level enhancement for obstruction of justice. In addition, Cisneros argues that the district court should have granted him a three-level reduction for acceptance of responsibility. Finally, he contends that the district court erred in determining that his offense involved more than 5 kilograms of cocaine.

The district court applied the enhancement for obstruction of justice based on Cisneros’ attempts to flee to Mexico to evade authorities. Cisneros was initially apprehended on May 7, 2012, as he was in the process of a drug transaction at a laundromat. Federal agents observed Cisneros approach a van driven by his wife in the laundromat parking lot and retrieve something from that van which he placed in his waistband. As he walked toward the laundromat, the agents drove into the lot. Seeing them, Cisneros fled into the side door of the laundromat. As he was running through the laundromat, agents observed him throw a small package down on the floor, which was subsequently determined to contain 58 grams of cocaine. The agents were able to apprehend Cisneros before he reached the laundromat’s front door, and placed him under arrest. The agents also retrieved an additional 216 grams of cocaine from the van.

The agents then transported Cisneros to a local police department, at which point he acknowledged that the cocaine belonged to him and indicated an interest in cooperating. They released him at that time. The next day they contacted him and asked him to meet them at a specific location in Bedford Park. He did so, and voluntarily got into a vehicle with the agents, who drove him to a local office of the Bureau of Alcohol, Tobacco, Firearms, and Explosives. Only then did he learn for the first time that the investigation was a federal one, and that it had involved months of wiretaps and surveillance. The agents asked him to cooperate in the investigation, and Cisneros requested time to.consider the option and expressed concerns for his safety. The day after Cisneros was released from the agents’ custody, the agents learned that he had booked a flight to Mexico. They responded immediately and apprehended him on the jetway at O’Hare Airport as he was boarding the flight to Mexico. Cisneros had with him a suitcase containing three new t-shirts that he had just purchased that day on the way to the airport, as well as approximately $2500 in cash, much of which had been returned to him by the agents. He had purchased a one-way ticket, and was traveling on his Mexican passport.

Relying on that effort to flee to Mexico, the district court imposed a two-level enhancement for obstruction of justice. We review the district court’s obstruction finding-for clear error, giving deference to that court’s application of the Guidelines to the facts. United States v. Arceo, 535 F.3d 679, 687 (7th Cir. 2008); United States v. Porter, 145 F.3d 897, 902 (7th Cir. 1998).

Section 3C1.1 of the Sentencing Guidelines provides for a two-level enhancement if a defendant “willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense.” Application Note 5 of that provision includes a non-exhaustive list of the types of conduct that “ordinarily” will not warrant that obstruction enhancement, and included in that list is “avoiding or fleeing from arrest.” In interpreting that provision, however, we have clarified that some efforts to evade authorities through flight can nevertheless warrant the enhancement. The ultimate question remains whether the defendant’s conduct evidences a willful intent to obstruct justice. Porter, 145 F.3d at 903. Accordingly, we have distinguished between “panicked, instinctive flight,” generally in the immediate aftermath of the crime, and “calculated evasion” constituting a deliberate attempt to frustrate or impede an ongoing criminal investigation. See United States v. Schwanke, 694 F.3d 894, 897 (7th Cir. 2012); United States v. Gonzalez, 608 F.3d 1001, 1006-07 (7th Cir. 2010); Arceo, 535 F.3d at 687. Thus, although flight from officers at the time of arrest may not constitute obstruction, we have upheld the obstruction finding in many cases in which the defendant has evaded authorities by traveling to distant locations and assuming a new identity, or traveling- to a foreign country where the authorities will have significant difficulty in finding and apprehending the defendant. See Schwanke, 694 F.3d at 895 (defendant fled to the Philippines and stayed for four years); Arceo, 535 F.3d at 687 (defendant fled to Mexico for several years and then relocated to Pennsylvania under an assumed name); Porter, 145 F.3d at 902 (defendant traveled from Indiana to Tennessee and used a false name, including a false birth certificate and social security card, and altered his hair color).

More recently, in United States v. Nduribe, 703 F.3d 1049 (7th Cir. 2013), we further clarified the distinction between flight that supports the enhancement and that which does not. The Nduribe court clarified that the distinction does not rest on the state of mind—“panicked or instinctual” versus “calculated.” Id. at 1052. Although our cases recited that language, the holdings in fact turned on whether the defendant’s conduct impeded the administration of justice. Id. Therefore, the proper question in applying that enhancement to efforts to flee are whether the flight is “likely to burden a criminal investigation or prosecution significantly—likely to make the investigation or prosecution significantly more costly or less effective than it would otherwise have been.” Id. at 1053. We further recognized in Nduribe that the phrase in § 3C1.1, “or attempted to obstruct or impede,” allows imposition of the enhancement whether or not the defendant was successful in the effort. Id. at 1053; see also Porter, 145 F.3d at 904. Where the defendant’s efforts were foiled and therefore constituted only an attempt, the standard is met “if, had it succeeded, it would have had those consequences.” Nduribe, 703 F.3d at 1053.

In this case, we have examples of both efforts at flight that support application of the enhancement, and flight that does not. When Cisneros first spotted the agents near the laundromat, he fled through the side door and ran through the laundromat towards its front door in an effort to escape. That is the type of conduct that, in earlier cases, we would have labeled “panicked, instinctive flight,” but which we now more precisely would describe as the type of conduct that is not likely to significantly burden the investigation or prosecution. The flight was predictably intercepted almost immediately, and even if he had evaded capture at that initial point, there is no reason to believe that his freedom would have been anything but short-lived. In contrast, his effort to flee to Mexico was highly likely to significantly burden the investigation or prosecution. Cisneros asserts that he had no intention of remaining in Mexico, that he was simply seeking some time to clear his mind and weigh his options, and intended to return. The district court certainly was not required to credit that version, and in this case the objective evidence belies his claim.

Cisneros booked only a one-way ticket, thus negating his claim that he planned to return in short order. Furthermore, he fled in a manner that appeared to be designed to evade notice. Having been made aware that the agents had been monitoring his phone and his home as part of the investigation, Cisneros did not pack clothes from home, but merely purchased a few t-shirts on the way to the airport and attempted to depart quickly. Other than those t-shirts, he filled the suitcase with $2500 in cash, which would allow him to travel within Mexico without easily being traced. In addition, the pre-sentence report establishes that Cisneros was an illegal alien in the United States, a fact that was acknowledged in discussions at the plea hearing and sentencing, and which was evidenced by his possession of a Mexican passport. Given that status, Cisneros would not even have had the right to return to the United States. Moreover, although any flight to another country may have the potential for significant interference with an investigation, the attempted flight in this case presented a much more profound level of interference. By fleeing to Mexico as a Mexican national, Cisneros could have placed himself entirely outside the reach of the American authorities. The extradition treaty between the United States and Mexico allows each country to exercise its discretion over the extradition requests of its nationals. See United States v. Munoz, 718 F.3d 726, 728 n.1 (7th Cir. 2013). Therefore, the attempted flight in this case, similar to the flights to other countries in Schwanke, Arceo, and Ndu-ribe, was likely to significantly burden the criminal investigation or prosecution if successful, Because the obstruction enhancement applies to attempted obstruction, not merely successful obstruction, the interception of Cisneros at the airport does not render the enhancement inapplicable. Here, given his status as a Mexican citizen and his actions in purchasing a one-way ticket and bringing large amounts of cash, the likely impact of his flight, if successful, is clear. The district court did not clearly err in determining that his attempt to evade law enforcement by fleeing to Mexico warranted the enhancement for obstruction of justice.

Based on that determination, we also conclude that the district court did not err in refusing to grant a three-level reduction for acceptance of responsibility. Cisneros’ argument for the three-level reduction is based in part on his contention that he did not obstruct justice, but as we have already rejected that assertion, he has an uphill battle in seeking a reduction for acceptance of responsibility. That is because “[a] defendant who obstructs justice may receive credit for accepting responsibility only in ‘extraordinary cases.’ ” U.S.S.G. § 3E1.1, Application Note 4; United States v. Pons, 795 F.3d 745, 747 (7th Cir. 2015); Gonzalez, 608 F.3d at 1008. Cisneros has failed to demonstrate that his actions present such an extraordinary circumstance. He alleges only the type of eventual cooperation with the government and assertions of remorse that are common in cases before us. The district court did not clearly err in determining that Cisneros’ sentence would not be reduced based on acceptance of responsibility.

Finally, Cisneros argues that the district court erred in determining that his offense involved more than 5 kilograms of cocaine. A criminal defendant has a “due process right to be sentenced on the basis of accurate information.” United States v. Bozovich, 782 F.3d 814, 817 (7th Cir. 2015); Benr-Yisrayl v. Buss, 540 F.3d 542, 554 (7th Cir. 2008). Sentencing determinations must be made based on reliable evidence, but courts may make reasonable though imprecise estimates based on the information that has indicia of reliability. Bozovich, 782 F.3d at 817-18. Furthermore, a preponderance of the evidence is all that is required for a factual finding of drug quantity under the Sentencing Guidelines. Id. at 818. We review the district court’s determination of drug quantity only for clear error. Id.

Cisneros agreed with the cocaine amounts attributed to the vast majority of the transactions, identifying only three errors. First, Cisneros argues that the district court improperly determined that a transaction referenced 12 ounces of cocaine as opposed to 12 grams of cocaine. Second, Cisneros asserted that the district court double-counted 500 grams of cocaine. He contends that the purchase of 500 grams of cocaine on February 7 and the sale of 500 grams of cocaine on February 9 involved the same cocaine, and therefore the court erred in counting that as 1000 grams rather than 500 grams of cocaine. Finally, he argues that the court erred in including attempted but not completed transactions.

As an initial matter, the government argues that we need not address Cisneros’ challenges, because even if we subtract 500 grams from the February transactions, and subtract the difference between the 12 ounces and 12 grams, the drug quantity is still over 5 kilograms. The government acknowledges that Cisneros had also challenged in the district court the inclusion of “attempted” but not “completed” transactions, but asserts that Cisneros waived that claim in this appeal.

Cisneros does not address that claim of waiver in his reply brief. Instead, he merely asserts that his challenge to the drug quantity includes a challenge to the inclusion of 1500 grams that were part of transactions that were attempted but not completed. That argument, however, was referenced in only a cursory manner in Cisneros’ opening brief to this court, in contrast to its presentation to the district court. In the district court, Cisneros argued that the district court should not have included in the drug quantity the “attempted” transactions on May 2 & 3, 2012, that involved 1000 grams and on May 6, 2012, that involved 500 grams of cocaine. Cisneros conceded in the district court that under U.S.S.G. § 2D1.1, Application Note 5, completed sales and attempts to sell can be aggregated to determine the scale of the offense for offenses involving both a substantive drug offense and an attempt, but he nevertheless encouraged the district court to disregard such amount. That application note also provides that where the offense involves an agreement to sell, the agreed-upon quantity can be used to determine the offense level, but that such amounts must be excluded if the defendant establishes that he did not intend to provide or purchase—or was not reasonably capable of providing or purchasing—the agreed-upon quantity. U.S.S.G. § 2D1.1, Application Note 5. Cisneros did not contend that he fell within that exception.

On appeal to this court, however, Cisneros in his opening brief neither identifies the specific transactions constituting the “attempts,” nor does he cite any of the relevant law. We have repeatedly and consistently held that “perfunctory and undeveloped arguments, and arguments that are unsupported by pertinent authority, are waived.” United States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991); United States v. Alden, 527 F.3d 653, 664 (7th Cir. 2008). Cisneros failed to develop either the factual or the legal basis for his claim in this appeal. For instance, in his opening brief, Cisneros never identifies the amount of drugs improperly attributed to him by the district court based on attempted as opposed to completed transactions, or the dates of those challenged transactions. The sole reference to the quantities and dates appears in an unrelated paragraph seeking to establish that Cisneros dealt in gram quantities as opposed to ounces, in which Cisneros states:

On three days in May 2012 there [sic] conversations about transactions that never occurred in which amounts between 500 and 1000 grams were discussed. These amounts were used by the District Court to inflate the drug quantity, even though the evidence clearly showed that no transaction in these amounts occurred on the days in question.

Appellant’s Brief at 26. That is the sole detailed reference to the “attempted” transactions that Cisneros purportedly challenges. We would need to reference the district court arguments to identify the exact dates and quantities. Moreover, in contrast to his argument in the district court, Cisneros does not reference the Guidelines provision, nor does he identify any caselaw regarding the propriety of relying on attempted transactions. The sole case cite is to a case holding that drug quantity calculation can include purchases, sales, or amounts used, but that decision was not presented with—and therefore did not address—the question here, which is the treatment of attempted transactions. In addition, Cisneros makes no effort to establish, as provided by the application note, that the amounts must be excluded because he did not intend to provide or purchase, or was not reasonably capable of providing or purchasing, the agreed-upon quantity. From the government brief, it appears that at least some of those “attempted” transactions were not completed because of intervention by law enforcement, and Cisneros presents no argument as to why that should absolve him of responsibility for that drug quantity, but we cannot be certain as to the circumstances of those attempts because Cisneros provides no discussion of the transactions involved. Because he has provided only a perfunctory and undeveloped argument as to both the law and the underlying facts, this claim is waived.

That leaves only the challenge to the 12 ounces and the 500 grams, but even if Cisneros succeeded on both those claims, he would not fall below the five kilogram threshold and the Guidelines range would be the same. Accordingly, we need not address those claims.

The decision of the district court is AFFIRMED.

      . The briefs provide divergent amounts as to the cash Cisneros possessed when apprehended at the airport, generally ranging from more than $2043 to $2500. Cisneros’ brief states the amount was $2500, and that is the amount we will use.


source: Caselaw Access Project

author: RILEY, Chief Judge.

license: Public Domain

text:
    Justin GUENTHER, Special Administrator, ESTATE OF Semmie John GUENTHER, Plaintiff-Appellant v. GRIFFIN CONSTRUCTION COMPANY, INC., Defendant-Appellee Equal Employment Opportunity Commission, Amicus on Behalf of Appellant
    No. 16-1760
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 21, 2016
    Filed: January 19, 2017

      Mason Boling, Jenna R. Fogleman, George McAllaster Rozzell, Keith & Miller, Rogers, AR, for Plaintiff-Appellant.
    Matthew Scott Jackson, Samantha Lef-lar, Kutak & Rock, Fayetteville, AR, for Defendant-Appellee.
    Paul D. Ramshaw, Equal Employment Opportunity Commission, Office of General Counsel, Washington, DC, for Amicus on Behalf of Appellant(s) Equal Employment Opportunity Commission.

      Before RILEY, Chief Judge, MURPHY and SMITH, Circuit Judges.
   RILEY, Chief Judge.

This appeal asks whether a claim for compensatory damages brought under the Americans with Disabilities Act (ADA),.42 U.S.C. §§ 12101, et seq., survives or abates upon the death of the aggrieved party. Semmie John Guenther, Jr., filed an administrative charge with the Equal Employment Opportunity Commission (EEOC), alleging his former employer, Griffin Construction Company, Inc., discriminated against him on the basis of his disability. Guenther passed away while his charge was still pending, so the special administrator of his estate filed suit on his behalf when he peeeived the EEOC right-to-sue letter. Tlje district court dismissed the action, concluding federal common law called for application of the Arkansas survival statute, see Ark. Code Ann. § 16-62-101(a)(1), and finding Guenther’s claim had abated. Guenther’s estate appeals, and having jurisdiction under 28 U.S.C. § 1291, we reverse.

I. BACKGROUND

Guenther began working for Griffin Construction in 2008, and he oversaw construction projects across Arkansas and Texas for four years. In the spring of 2012, he was diagnosed with prostate cancer. Guenther requested and received roughly three weeks’ leave from work to receive treatment, and he returned to work when it appeared the treatment was successful. In 2013, Guenther learned the cancer had spread throughout his body. He notified Griffin Construction he would need to take another three weeks’ leave to undergo radiation therapy. Instead, Griffin Construction fired Guenther and told him he could reapply for any openings in the future if he wished. Despite alleged promises to the contrary, Griffin Construction also immediately cancelled Guenther’s insurance policies.

Guenther filed a timely charge of discrimination with the EEOC. He died before the administrative process was complete. In May of 2015—roughly 22 months after Guenther was fired, 20 months after he filed his charge, and 12 months after he passed away—the EEOC issued its right-to-sue letter, having found reasonable cause. Justin Guenther, special administrator of Guenther’s estate, filed suit under Title I of the ADA, 42 U.S.C. §§ 12111, et seq., and the Arkansas Civil Rights- Act, Ark. Code Ann. §§ 16-123-101, et seq. Griffin Construction filed its answer and then moved to dismiss the action, contending the claims did not survive Guenther’s death. The district court adopted the Arkansas tort survival statute as the federal rule of decision, agreed that Guenther’s ADA claim abated at his death, and entered judgment for Griffin Construction on the pleadings. See Fed. R. Civ. P. 12(c). We reverse.

II. DISCUSSION

Whether a complaint states a cause of action is a question of law we review on appeal de novo. See Minch Family LLLP v. Buffalo-Red River Watershed Dist., 628 F.3d 960, 965 (8th Cir. 2010). We assume all well-pleaded factual allegations are true, draw all reasonable inferences in favor of the non-movant, and affirm dismissal under Rule 12(c) only if the movant is entitled to judgment as a matter of law. See id. Under normal circumstances the facts as alleged here would state a plausible claim under the ADA. However, Guen-ther, the would-be plaintiff, died before he could file suit. The determinative issue at this stage becomes whether the ADA claim for compensatory damages survived Guen-ther’s death.

Whether a federal claim survives is a question of federal law. See Carlson v. Green, 446 U.S. 14, 23, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). Congress could have supplied the answer by explicitly instructing courts on how to resolve situations like this one. It did not. The ADA is silent on the claim-survival issue, and “[t]here is no general survival statute for federal-question cases.” 7C Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1954. Nor does 42 U.S.C. § 1988(a)—which directs courts to fill gaps in certain federal actions with state law when state law is not “inconsistent” with federal law—apply to the ADA. Therefore the question of survival “is governed by federal common law when, as here, there is no expression of contrary intent” from Congress. Smith v. Dep’t of Human Servs., 876 F.2d 832, 834 (10th Cir. 1989).

“The more difficult task, to which we turn, is giving content to this federal rule.” United States v. Kimbell Foods, Inc., 440 U.S. 715, 727, 99 S.Ct. 1448, 59 L.Ed.2d 711 (1979) (emphasis added). Sometimes it is best to incorporate state law, while other times a uniform rule is warranted. Compare Gaona v. Town & Country Credit, 324 F.3d 1050, 1056 (8th Cir. 2003) (applying a state statute of limitations to the ADA), with Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 448-50, 123 S.Ct. 1673, 155 L.Ed.2d 615 (2003) (creating a uniform definition of “employee” for the ADA). Whether to adopt state law or create á uniform federal rule “is a matter of judicial policy ‘dependent upon a variety of considerations always relevant to the nature of the specific governmental interests and to the effects upon them of applying state law.’” Kimbell Foods, Inc., 440 U.S. at 728, 99 S.Ct. 1448 (quoting United States v. Standard Oil Co. of Cal., 332 U.S. 301, 310, 67 S.Ct. 1604, 91 L.Ed. 2067 (1947)). Contrary to the district court’s opinion, we are convinced the relevant considerations weigh in favor of a uniform rule of survivability.

First, state law should not be incorporated where doing so would “ ‘frustrate specific objectives of the federal programs.’ ” Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 98, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991) (quoting Kimbell Foods, Inc., 440 U.S. at 728, 99 S.Ct. 1448). “[F]ederal courts must be ever vigilant to insure that application of state law poses ‘no significant threat to any identifiable federal policy or interest.’ ” Burks v. Lasker, 441 U.S. 471, 479, 99 S.Ct. 1831, 60 L.Ed.2d 404 (1979) (quoting Wallis v. Pan Am. Petroleum Corp., 384 U.S. 63, 68, 86 S.Ct. 1301, 16 L.Ed.2d 369 (1966)).

So what did Congress say? Congress declared its interest in passing the ADA was to “provide a clear and comprehensive national mandate” with “clear, strong, consistent, [and] enforceable standards” to address the “serious and pervasive social problem” of disability-based discrimination on a case-by-case basis. 42 U.S.C. § 12101(a)(2), (b)(l)-(2) (emphasis added); see Clackamas, 538 U.S. at 446 & n.6, 123 S.Ct. 1673 (considering broad application of the ADA’s protections “consistent with the statutory purpose of ridding the Nation of discrimination”).

Griffin Construction contends that allowing Guenther’s claim to abate under Arkansas law does not frustrate this national mandate. In making this contention it relies primarily on the Supreme Court’s holding in Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978), and our decision in Parkerson v. Carrouth, 782 F.2d 1449 (8th Cir. 1986). These cases stand for the proposition that ‘“[a] state statute cannot be considered “inconsistent” with federal law merely because the statute causes the plaintiff to lose the litigation.’” Id. at 1453 (quoting Robertson, 436 U.S. at 593, 98 S.Ct. 1991). But cf. Carlson, 446 U.S. at 25, 100 S.Ct. 1468 (“A uniform rule that claims such as respondent’s survive the decedent’s death is essential if we are not to ‘frustrate in [an] important way the achievement’ of the goals of Bivens actions.” (alteration in original) (quoting UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 702, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966))).

We are not persuaded by this analogy. Robertson and Parkerson involved § 1983 actions as to which Congress had expressed its preference for state law via § 1988(a). See Parkerson, 782 F.2d at 1453 (“ ‘[Section] 1988 quite clearly instructs us to refer to state statutes.’ ” (quoting Robertson, 436 U.S. at 593, 98 S.Ct. 1991)); see also Carlson, 446 U.S. at 24 n.11, 100 S.Ct. 1468 (“Section 1988 .does not in terms apply to Bivens actions, and there are cogent reasons not to apply it to such actions even by analogy.”). Congress has given no such indication in the ADA, and thus our analytical starting point is different.

■ Furthermore, Robertson was a “narrow’-’ holding “limited to situations” where allowing a claim to abate under state law would have “no independent adverse effect on the policies underlying § 1983,” namely compensation and deterrence. Robertson, 436 NS. at 594, 98 S.Ct. 1991. The Supreme Court concluded the state statute in that case posed no threat to deterrence because most claims would survive under it and “even an official aware of the intricacies of [state] survivorship law would hardly be influenced in his behavior by its provisions.” Id. at 592, 98 S.Ct. 1991. We broadened this rationale somewhat in Par-kerson because the state statute was less hospitable than was the case in Robertson, although we emphasized our belief there was still no threat to deterrence because § 1983 wrongdoers “have no means of knowing then- victim will die during the pendency of the victim’s action.” Parkerson, 782 F.2d at 1455.

We agree with Guenther’s estate that abatement of compensatory ADA claims poses “a special threat to enforcement.” This is because the very nature of the ADA makes it more likely the aggrieved party will die before the case is complete given the health issue which brings him or her under the statute’s protection. These are not “farfetched assumptions”—as was the case in Robertson, 436 U.S. at 592-93 n.10, 98 S.Ct. 1991—because ADA claims specifically involve disabled plaintiffs alleging they were discriminated against because of their disability. Congress passed the ADA to eradicate discrimination against disabled persons, some of whom may be targeted precisely because of their poor health. A state law allowing claims to abate when the aggrieved party dies impedes this broad remedial purpose.

State law is also unsuited to fill a gap in federal law “when the scheme in question evidences a distinct need for nationwide legal standards.” Kamen, 500 U.S. at 98, 111 S.Ct. 1711. The district court found no such distinct need notwithstanding the fact “[t]here are, of course, certain uniformity interests implicit in all federal laws.” To be sure, the interest in uniformity is particularly strong in cases where the rights, obligations, and liabilities of the United States or its officers are implicated. See, e.g., Carlson, 446 U.S. at 24, 100 S.Ct. 1468 (“ ‘The liability of federal agents for violations of constitutional rights should not depend upon where the violation occurred.’” (quoting Green v. Carlson, 581 F.2d 669, 675 (7th Cir. 1978), aff'd, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15)); Clearfield Tr. Co. v. United States, 318 U.S. 363, 367, 318 U.S. 744, 367, 63 S.Ct. 573, 87 L.Ed. 838 (1943) (establishing a uniform rule in a dispute over commercial paper—a check—issued by the federal government because “application of state law ... would subject the rights and duties of the United States to exceptional uncertainty”).

It cannot be said uniformity is irrelevant when filling interstices in federal anti-discrimination law. The ADA embodies Congress’s attempt to create a “comprehensive national mandate” where “the Federal Government plays a central role” in enforcing “consistent” standards. 42 U.S.C. § 12101(b)(1), (3). The Supreme Court saw fit to create a uniform definition for “employee” status under the ADA in Clacka-mas, 538 U.S. at 448-51, 123 S.Ct. 1673. Cf. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 754-55, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) (concluding “a uniform and predictable standard must be established as a matter of federal law” to define “agency” for purposes of Title YII); Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 740, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989) (“Establishment of a federal rule of agency, rather than reliance on state agency law, is particularly appropriate here given the [Copyright] Act’s express objective of creating national, uniform copyright law”). Our court has also displaced state law in the name of uniformity. See United States v. Big D Enters., Inc., 184 F.3d 924, 932 (8th Cir. 1999) (“When a federal statute provides a remedy, the scope of the remedy is interpreted in accordance with federal law.... The application of state law to the assessment of punitive damages under the [Fair Housing Act] would yield inconsistent results between the states and thwart the evenhanded application of the FHA’s anti-discrimination provisions.”).

We agree with the district court that the ADA’s federal character, taken alone, is not enough to prove the need for a uniform rule. To hold otherwise would mean state law should never serve as the rule of decision for federal actions. Griffin Construction, however, suggests applying state law here provides the uniformity of process this consideration is intended to effect. To accept mere uniformity of process—without giving any attention to uniformity of results—could make uniformity virtually irrelevant. We do not consider it trivial that Guenther’s claim would have survived in many states. See, e.g., Iowa Code § 611.20. In settling somewhere between these two extremes, we find Congress’s call for a “national mandate” with “consistent” standards and the desire to effect the “evenhanded application” of the ADA’s anti-discrimination provisions both weigh in favor of a uniform federal rule.

Griffin Construction suggests incorporating state law would not frustrate the ADA’s underlying policies or disrupt uniformity because, by analogy, we incorporate state statutes of limitation for ADA claims. See Gaona, 324 F.3d at 1056. This is comparing apples to oranges. Whatever surface appeal the analogy may have— both are procedural rules which may bar otherwise-valid claims—does not withstand closer scrutiny. Although statutes of limitations require action within a certain time, they will not entirely bar a diligent plaintiff. A survivorship statute, on the other hand, may be an absolute barrier to a plaintiff (and his or her estate) who does everything he or she can to assert his or her rights. In the timely filing situation there is an element of control by the plaintiff. In the survivorship case there is not.

In addition, the backdrop against which Congress remained silent is different for time limitations and survivorship. See generally Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 108, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991) (“[W]here a common-law principle is well established ... the courts may take it as given that Congress has legislated with an expectation that the principle will apply.”). The general practice of supplying state limitations periods to federal laws has been followed for many years, see Hoosier Cardinal Corp., 383 U.S. at 703-04, 86 S.Ct. 1107, whereas federal courts have historically applied a well-established uniform rule to address survivorship, see Schreiber v. Sharpless, 110 U.S. 76, 80, 3 S.Ct. 423, 28 L.Ed. 65 (1884); Smith, 876 F.2d at 834-35. Guen-ther’s estate is correct that “even the general rule regarding statutes of limitations may give way to federal policy.” See Del-Costello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 161, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983) (“[I]t may be inappropriate to conclude that Congress would choose to adopt state rules at odds with the purpose or operation of federal substantive law.”).

Lastly, we think the district court overemphasized the relevance of the state-law presumption detailed in Kamen to the issue here. Kamen was a shareholder derivative action where the Court addressed whether to displace state corporate law and create a universal-demand requirement for the Investment Company Act of 1940—that is, whether to create a uniform federal rule that would disallow shareholders from bypassing corporate directors and bringing a suit in the corporation’s name even if first going to the directors would be futile. See Kamen, 500 U.S. at 95-97, 111 S.Ct. 1711. The Supreme Court noted “[t]he presumption that state law should be incorporated into federal common law is particularly strong in areas in which private parties have entered legal relationships with the expectation that their rights and obligations would be governed by state-law standards.” Id. at 98, 111 S.Ct. 1711. The Court found corporation law to be such an area since it came within the purview of the state-law presumption previously established in Burks, given that corporations “ ‘are creatures of state law ... and it is state law which is the font of corporate directors’ powers.’ ” Id. at 98-99, 111 S.Ct. 1711 (omission in Kamen) (quoting Burks, 441 U.S. at 478, 99 S.Ct. 1831). The Supreme Court deemed it improper to “ ‘fashion an entire body of federal corporate law out of whole cloth’ ” because doing so would have “clearly upset the balance that [states] have struck between the power of the individual shareholder and the power of the directors.” Id. at 99, 103, 111 S.Ct. 1711 (quoting Burks, 441 U.S. at 480, 99 S.Ct. 1831). With the ADA, it is federal law, not state law, that is the dominant font of anti-discrimination law. A uniform rule would not require fashioning an entire body of law out of whole cloth. And allowing claims to survive would not upset the employer-employee balance struck by state laws, because federal law, and many state laws, already prohibit discrimination.

For all of these reasons, we hold federal common law does not incorporate state law to determine whether an ADA claim for compensatory damages survives or abates upon the death of the aggrieved party. We join other courts that have allowed the individual’s estate to bring and maintain a suit for compensatory damages under the ADA in place of the aggrieved party. We intimate no view as to whether a claim for punitive damages would survive, particularly in light of the traditional federal common law rule that penal claims—as distinct from remedial claims—abate on death. See, e.g., Kettner, 570 F.Supp.2d at 1133-34 (holding punitive damages abate). Nor do we opine whether a claim under any other federal scheme warrants a uniform rule of survivorship.

III. CONCLUSION

Guenther’s AlDA claim for compensatory damages survived his death. Griffin Construction is not entitled to judgment on the pleadings. The district court’s decision is reversed, and because the estate’s state claim was dismissed based on the district court’s finding as to the federal claim, we remand both claims to the district court for further proceedings.

      . The district court declined to exercise its supplemental jurisdiction over the state law claim without deciding whether it had abated as well. See 28 U.S.C. § 1367(c)(3).

      . The district court grouped the alleged damages sought into three categories: "(i) loss of employment compensation; (ii) loss of reputation and self-esteem; and (iii) mental anguish and emotional distress.” The estate makes no claim on appeal for punitive damages under the ADA and conceded in the district court the non-recovery of punitive damages.

      . A number of courts have nonetheless looked to § 1988(a) to address the survivability of ADA claims. See Kettner v. Compass Grp. USA, Inc., 570 F.Supp.2d 1121, 1131 (D. Minn. 2008) (collecting cases). But the district court correctly "rejected] the notion that § 1988(a) applies to the ADA” given § 1988(a)'s expressly limited application to actions brought under "titles 13, 24, and 70 of the Revised Statutes.” See 42 U.S.C. § 1988(a). None of these enumerated provisions include the ADA, and Griffin Construction does not propose the provision should apply on appeal, so we will not belabor the issue. See, e.g,, Kettner, 570 F.Supp.2d at 1126-32 (providing well-reasoned analysis as to why § 1988(a) does not apply to modem employment-discrimination schemes like the ADA).

      .The district court found this consideration inapplicable given its belief “there is no federal ‘program’ at issue in this case.” But the Supreme Court’s decision in Kamen v. Kemper Financial Services, Inc., 500 U.S. 90, 108, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991), relied upon by the district court, treated "program” and “legislation” as synonymous, and we believe the district court's analysis was too narrow in this regard.

      . We assume without deciding that Guen-ther’s claim would not survive under Arkansas' survival statute, though the parties dispute this point.

      . The Court made this difference clear in Robertson: "[S]urvivorship rules in areas where the courts are free to develop federal common law—without first referring to state law and finding an inconsistency—can have no bearing on our decision here.” Robertson, 436 U.S. at 594 n.11, 98 S.Ct. 1991 (emphasis added); see also Kettner, 570 F.Supp.2d at 1130.

      . Robertson involved the Louisiana survival statute, which allowed § 1983 claims to abate only if the aggrieved party was not survived by a spouse, child, parent, or sibling. See Robertson, 436 U.S. at 591, 98 S.Ct. 1991. The Court was confident few deceased victims’ claims would actually abate, which minimized any impact on § 1983's purposes. See id. at 591-92, 98 S.Ct. 1991. That is not the case here. Under the district court’s interpretation of the Arkansas statute, survival of ADA claims would be the rare exception rather than the general rule.

      . This possibility is made more likely considering the path to trial for an ADA claim is often measured in years, not months. A plaintiff must first exhaust the administrative process. See 42 U.S.C. §§ 2000e-5(e)(l), 12117(a). Guenther’s exhaustion process took almost two years. Adding to this concern is the possibility that defendants may prolong litigation with the potential that the claim will abate. We believe this would be contrary to the overall purpose of the ADA. See id. § 12101.

      . The Court cited commercial law, property law, and family law as examples of other areas traditionally "governed by state-law standards.” Kamen, 500 U.S. at 98, 111 S.Ct. 1711.

      . Before this case, every district court to address the issue within our circuit had reached this same conclusion. See generally A.H. v. St. Louis County, No. 4:14-CV-2069, 2015 WL 4426234, at *4 (E.D. Mo. July 17, 2015); Estate of Stoick ex rel. Spry v. McCorvey, No. 10-1030, 2011 WL 3419939, at *2-3 (D. Minn. July 29, 2011); Kettner, 570 F.Supp.2d at 1134; Hanson v. Atl. Research Corp., No. 4:02CV00301, 2003 WL 430484, at *4 (E.D. Ark. Feb. 14, 2003).


author: WOLLMAN, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Christopher D. BRACKETT, Defendant-Appellant.
    No. 15-2694
    United States Court of Appeals, Eighth Circuit.
    Submitted: May 19, 2016
    Filed: January 20, 2017

      Michael P. Norris, Lecia E. Wright, Assistant U.S. Attorneys, U.S. Attorney’s Office, Omaha, NE, for Plaintiff-Appellee.
    Jeremy Christopher Jorgenson, Jorgen-son & Reed, Omaha, NE, for Defendant-Appellant.
    Christopher D. Brackett, Pro Se.
    Before WOLLMAN, LOKEN, and BENTON, Circuit Judges.
   WOLLMAN, Circuit Judge.

A federal grand jury returned a superseding indictment charging Christopher D. Brackett with transporting, producing, and attempting to produce child pornography and with possessing one or more computer files and other matter containing child pornography, all after having been previously convicted of a state-law offense involving the sexual abuse of a minor. 18 U.S.C. §§ 2252A(a)(l) & (b), 2251(a), 2252(a)(4)(B). The district court denied Brackett’s motion to suppress evidence seized from his residence pursuant to a search warrant, as well as his later motion for an evidentiary hearing to challenge allegedly false statements included in the search-warrant affidavit. A jury convicted Brackett of the charged offenses, and the district court sentenced him to 360 months of imprisonment and 240 months of supervised release. Brackett appeals, arguing that the court erred in denying his motion to suppress and his motion for an eviden-tiary hearing. We affirm.

On September 17, 2013, Detective Roy Howell of the Bellevue, Nebraska, Police Department applied for a warrant to search Brackett’s residence. The warrant application included a seven-page affidavit in which Howell set forth the following facts. Earlier that day, Howell, a member of the Cyber Crimes Task Force, had spoken with Investigator Michael Gunias of the Cuyahoga County, Ohio, prosecutor’s office. Gunias told Howell that R.H., a sixteen-year-old girl who lived in Ohio, had reported that Christopher Allen Brackett, a dark-haired white male standing 5'11" to 6 tall and weighing 150 to 185 pounds, had twice traveled to Ohio from his home in Nebraska to meet her; that she and Brack-ett had engaged in sexual intercourse at a hotel on both occasions; and that Brackett had taken nude photographs of her with his cell phone. '

R.H. and Brackett had begun communicating in May 2013 while playing an online video game, had eventually exchanged cell phone numbers, and had then begun communicating through text messages and calls on their respective cell phones. Brackett told R.H. that his name was Christopher Allen Brackett; that he lived in Omaha, Nebraska; that he was thirty-six years old; that he owned a truck and a Jeep; and that he had a younger brother. In late June 2013, Brackett drove to Ohio to meet R.H. in person. Brackett arrived to pick RiH. up in a black Jeep SUV with Nebraska license plates and drove her to a local hotel, where he had rented a room. The two stayed at the hotel for one night and engaged in sexual intercourse.

R.H. attempted to end her relationship with Brackett in July 2013, but changed her mind after Brackett threatened and pleaded with her. Fearful of Brackett’s reaction if she refused, R.H. agreed to another visit from Brackett. In August 2013, Brackett again drove from Nebraska to Ohio to meet R.H., this time driving a yellow Chevy Cavalier with tinted windows and racing stripes. Brackett drove R.H. to the same hotel, where Brackett had reserved a room for three nights. Brackett and R.H. stayed at the hotel together for two nights and again engaged in sexual intercourse. Brackett used his cell phone to take nude photographs of R.H. After two days -at the hotel, Brackett drove R.H. back to her parents’ house. Sometime later, Brackett told R.H. that he had transferred, the photographs from his cell phone to a flash drive.

R.H. again attempted to end her relationship with Brackett. In response, Brackett threatened to erase her parents’ social security numbers, to have warrants issued for her parents’ arrest, and to send nude photographs of her to her parents and her high school. Eventually, Brackett posted a series of nine advertisements on Craigslist in the Ohio area where R.H. lived. Each of these advertisements implied that R.H. was available for sexual activity and included her name,'cell phone number, address, and photograph. R.H. received several calls and texts on her cell phone in response to these advertisements.

Gunias obtained a photograph of Brack-ett from the Nebraska Sex Offender Registry, and R.H. confirmed that the Christopher Brackett in the photograph was the individual who was the subject of her report. Brackett sent multiple text messages to R.H.’s phone" after R.H. had surrendered it to Gunias. Gunias informed Howell of this activity and provided him with Brackett’s cell phone number.

Detective Howell then took steps to corroborate the information he had obtained from Gunias. Howell first searched Brack-ett’s name in the Nebraska Criminal Justice Information System, which revealed that Brackett had previously used the “Christopher Allen Brackett” alias he had provided to R.H. Howell also identified á Bellevue, Nebraska, address from Brack-ett’s state driver’s license and determined that Brackett’s cell phone number was registered to an individual at that address and that a black 2002 Jeep Grand Cherokee was registered to Brackett at that address. Howell learned that Brackett was required to register as a sex offender because of a 2002 Iowa conviction for possessing a videotape that he made of a 15-year-old girl performing a sex act on him. Howell also discovered that Brackett had been convicted in February 2012 for failing to register as a sex offender in Nebraska, but that he now listed the Bellevue address as his current residence in the Nebraska Sex Offender Registry. Howell confirmed that Brackett had a younger brother, and he also learned that a different female ■ victim had reported that Brackett had posted false Craigslist advertisements in her name that were similar to those Brackett had made in R.H.’s name.

Detective Howell included the affidavit in his application for a warrant to search Brackett’s residence and vehicles for “any type of digital media,” including computers, cell phones, and USB and external storage devices, that could contain “[images of the child pornography of the victim who is 16 years old.” The affidavit set forth in detail Howell’s training and experience in child-pornography investigations, and then provided comprehensive background information on the use of computers and mobile devices like cell phones to produce child pornography, and the use of removable or online storage devices and services to possess child pornography. It twice stated Howell’s belief that the facts set forth in the affidavit established probable cause to believe that a search of Brackett’s residence for digital media would result in “evidence showing violation(s) of Nebraska State Statute[ ] 28-813.01 Sexually Explicit Conduct.”

Based on Howell’s September 17 affidavit, a Nebraska state judge issued a search warrant, which Howell and other Bellevue police officers executed later that evening. The officers seized from Brackett’s residence his cell phone, laptop computer, and desktop computer. A forensic examination of these devices uncovered sexually explicit images of R.H. on the laptop and desktop computers; the cell phone had been “wiped” and returned to factory settings. When Brackett was arrested by Bellevue police officers on October 7, 2013, he was in possession of a different cell phone, which Howell also seized and later examined. That examination led to the recovery of the text messages between Brackett and R.H., as well as additional sexually explicit images of R.H.

The matter was eventually-referred to federal authorities, and Brackett was indicted by a federal grand jury on the three offenses set forth above. Brackett filed a motion to suppress the evidence seized during the search of his residence, arguing that the affidavit in support of the warrant was insufficient to establish probable cause to believe that there would be illegal contraband discovered at his residence. Following a hearing, the magistrate judge recommended that the motion be denied because under applicable federal constitutional standards the “affidavit contained probable cause that images of child pornography of R.H. on digital media storage devices would be found at” Brackett’s residence. The magistrate judge further reasoned that even if the affidavit was insufficient, the officers’ reliance on the search warrant was objectively reasonable such that the Leon good-faith exception applied. See United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). As earlier stated, the district court adopted the magistrate judge’s recommendations and denied the motion to suppress, following which the case proceeded to trial.

During, and again at the close of, the government’s case-in-chief, Brackett moved for a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). He alleged that it had become apparent from their testimony that R.H., Investigator Gunias, and Detective Howell had not actually seen the photographs Brackett allegedly had taken of R.H., and thus they could not be sure that any such photographs existed or that they constituted prohibited images. Brackett further alleged that this testimony revealed that because R.H. had not admitted to Gunias that she had sent nude photographs of herself to Brackett until after the search warrant was executed, Howell’s reference to any such photographs in his affidavit was a fabrication. Thus, Brackett argued, Howell’s affidavit omitted a material fact and included a deliberate false statement, each of which was sufficient to defeat probable cause for issuance of the warrant. The district court denied the motion for a Franks hearing.

“We review the denial of a motion to suppress de novo but review underlying factual determinations for clear error, giving due weight to the inferences of the district eourt and law enforcement officials.” United States v. Hager, 710 F.3d 830, 835 (8th Cir. 2013) (quoting United States v. Nichols, 574 F.3d 633, 636 (8th Cir. 2009)). We will affirm “unless the district court’s decision ‘is unsupported by substantial evidence, based on an erroneous interpretation of applicable law, or, based on the entire record, it is clear a mistake was made.’ ” Id. (quoting United States v. Hastings, 685 F.3d 724, 727 (8th Cir. 2012)).

Brackett first argues that Howell’s affidavit was insufficient to establish probable cause under the standards announced by the Nebraska Supreme Court in State v. Nuss, 279 Neb. 648, 781 N.W.2d 60, 67-68 (2010). Relying on the Fourth Amendment to the U.S. Constitution, the Nebraska Supreme Court held in Nuss that, “to establish probable cause to search for evidence of [state-law] crimes involving visual depiction of sexually explicit conduct involving minors,” a supporting affidavit must include either copies of the images themselves or “a detailed verbal description of the conduct depicted in [those] images.” Id, at 67. Brackett argues that Nuss is controlling with respect to the validity of the affidavit, because Detective Howell was a state police officer applying for a state search warrant in a state court to search for evidence of a state crime. Because Howell’s affidavit did not include the photographs of R.H. and only described them as “child pornography” or “nude” photographs, the affidavit was insufficient to establish probable cause.

We conclude that the facts set forth in the affidavit in this case are readily distinguishable from those that the Nebraska Supreme Court found insufficient to establish probable cause in Nuss. First, the warrant in Brackett’s case relied upon a different (although. related) Nebraska statute, § 28-813.01, which renders unlawful the knowing possession of “any visual depiction of sexually explicit conduct ... which has a child ... as one of its participants or portrayed observers.” The affidavit then specifically referred to “sexually explicit conduct,” the critical statutory recital absent in Nuss, by recounting, as set forth earlier, R.H.’s description of how Brackett had engaged in sexual intercourse with her on two separate occasions, during which he had taken nude photographs of her. Finally, and perhaps most important to our analysis, Nebraska statute § 28-1463.02(5) defines sexually explicit conduct to include “Real or simulated intercourse,” which is precisely the conduct that R.H. described, and the lack of which vitiated the affidavit in Nuss. 781 N.W.2d at 68. Given the additional information contained in Detective Howell’s affidavit, we conclude that the Nebraska Supreme Court would have no difficulty in upholding the validity of the warrant under the analysis set forth in Nuss.

A supporting affidavit establishes probable cause to issue a search warrant if it “sets forth sufficient facts to establish that there is a fair probability that contraband or evidence of criminal activity will be found in the particular place to be searched.” United States v. Snyder, 511 F.3d 813, 817 (8th Cir. 2008); see also United States v. Berkus, 428 F.2d 1148, 1152 (8th Cir. 1970) (noting that “the Fourth Amendment contains no prescription as to the form or manner in which probable cause must be shown”). “Whether probable cause to issue a search warrant has been established is determined by considering the totality of the circumstances, and resolution of the question by an issuing judge ‘should be paid great deference by reviewing courts.’” United States v. Brewer, 588 F.3d 1165, 1170 (8th Cir. 2009) (quoting United States v. Hansel, 524 F.3d 841, 845 (8th Cir. 2008)). Not only may an issuing judge “draw reasonable inferences from the totality of the circumstances in determining whether probable cause exists to issue a warrant, we have also recognized that law enforcement officers may make reasonable inferences in preparing affidavits in support of a warrant.” United States v. Thompson, 210 F.3d 855, 860 (8th Cir. 2000) (citations omitted). We will not disturb a court’s finding of probable cause “unless there was no substantial basis for that finding.” United States v. Montgomery, 527 F.3d 682, 686 (8th Cir. 2008). Because the warrant in this case sought evidence of a violation of Nebraska Revised Statute § 28-813.01, we must determine whether, in the totality of the circumstances, the affidavit established probable cause that evidence of such a violation would be found at Brackett’s residence. Section 28-813.01 prohibits the knowing possession of “any visual depiction of sexually explicit conduct” involving a minor. “Sexually explicit conduct” is defined to include “erotic nudity,” which “means the display of the human ... female genitals or pubic area [or] breasts” for “sexual gratification or sexual stimulation.” Neb. Rev. Stat. § 28-1463.02.

We agree with the district court that the information set forth in the affidavit in this case established probable cause to believe that Brackett’s residence would contain evidence of the prohibited images of R.H. The affidavit was based on information provided to police officers by R.H., the sixteen-year-old victim, who identified herself to officers and voluntarily provided a detailed statement regarding her interactions with Brackett—including that Brack-ett had driven from Nebraska to Ohio on two occasions, that she and Brackett had engaged in sexual intercourse on both occasions, that Brackett had taken several nude photographs of her with his cell phone, and that she had sent an additional forty to fifty nude photographs of herself to Brackett’s cell phone. The affidavit indicated that Howell had corroborated much of R.H.’s report, confirming the information she provided about Brackett’s name, age, cell phone number, vehicles, and younger brother. The affidavit also stated that R.H. had identified Brackett from a photograph obtained from the Nebraska Sex Offender Registry. The affidavit explained the specific circumstances leading to Brackett’s status as a registered sex offender. The affidavit also described Brackett’s posting of a Craigslist advertisement in R.H.’s area that included her photograph, cell phone number, and address and explained that police had received a report from another female victim complaining of similar conduct by Brack-ett. The affidavit further identified the criminal activity at issue, citing the Nebraska statute Brackett had allegedly violated. Given the sexual relationship between Brackett and R.H., his status as a registered sex offender, and the details of the crime resulting in that status, the issuing judge could reasonably infer that the “child pornography” or “nude photographs” of R.H. described in the affidavit were prohibited images of sexually explicit conduct involving a minor. See, e.g., United States v. Allen, 297 F.3d 790, 794 (8th Cir. 2002) (noting that we consider all of the facts set forth in an affidavit “for their cumulative meaning”); see also Brewer, 588 F.3d at 1170-71 (citing state-law definition of “child pornography” and applying federal Fourth Amendment standards to determine whether the affidavit set forth sufficient detail to provide probable cause that evidence of a state-law violation would be recovered if the warrant issued).

Considering the totality of the circumstances in this case, the information set forth in Howell’s affidavit was sufficient to establish a fair probability that prohibited images of R.H. would be found in Brack-ett’s residence and thus enable the issuing judge to determine that probable cause existed to issue the warrant to search Brackett’s residence. See Thompson, 210 F.3d at 860 (noting that both issuing judges and affiant officers “may draw reasonable inferences from the totality of the circumstances in determining whether probable cause exists”). Accordingly, we affirm the district court’s denial of Brack-ett’s motion to suppress.

For Brackett to succeed on his mid-trial motion for a Franks hearing, he was required to make “a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit” and that the allegedly false statement was necessary to the finding of probable cause. Franks, 438 U.S. at 155-56, 98 S.Ct. 2674. This substantiality requirement is “not lightly met,” and it requires a defendant to offer specific allegations of deliberate falsehood along with supporting affidavits or similarly reliable statements. Id. at 171-72, 98 S.Ct. 2674; see United States v. Williams, 477 F.3d 554, 558 (8th Cir. 2007). We review the denial of a motion for a Franks hearing for abuse of discretion. United States v. Gonzalez, 781 F.3d 422, 430 (8th Cir.), cert. denied, — U.S.-, 136 S.Ct. 139, 193 L.Ed.2d 105 (2015).

Brackett argues that the trial testimony of R.H., Gunias, and Howell contradicted the information set forth in Howell’s affidavit and established that Howell had included facts therein that he could not have known until several days after the warrant was executed. His argument fails, for it is based upon supposition and isolated testimonial statements taken out of context, and so we conclude that the district court did not abuse its discretion by denying the motion.

The judgment is affirmed.

      . The Honorable Lyle E. Strom, United States District Judge for the District of Nebraska, adopting the Findings and Recommendation of the Honorable Thomas D. Thalken, United States Magistrate Judge for the District of Nebraska.


author: LOKEN, Circuit Judge.

text:
    DIVERSIFIED INGREDIENTS, INC., Plaintiff-Appellant v. Joseph W. TESTA, Ohio State Tax Commissioner, Defendant-Appellee
    No. 16-2791
    United States Court of Appeals, Eighth Circuit.
    Submitted: January 12, 2017
    Filed: January 23, 2017

      Counsel who represented the appellant was Daniel Doyle, of Saint Louis, MO., Kevin Fritz, of Saint Louis, MO., Sonette T. Magnus of Saint Louis, MO.
    • Counsel who represented the appellee was Daniel Warner Fausey, AAG, of Columbus, OH.
    Before LOKEN, BEAM,, and BENTON, Circuit Judges.
   LOKEN, Circuit Judge.

In a preliminary proposed audit, the Ohio Department of Taxation assessed Diversified Ingredients, Inc. (“Diversified”), a Missouri corporation, as owing $561,448.00 in unpaid tax, penalties, and interest under Ohio’s Commercial Activity Tax (“CAT”). Diversified commenced this action in the Eastern District of Missouri against Joseph W. Testa, the Ohio State Tax Commissioner, seeking a declaratory judgment that the Interstate Income Act, 15 U.S.C. § 381, deprives Ohio of jurisdiction to assess and collect the. CAT on Diversified’s sales of goods manufactured and shipped from outside Ohio to locations in Ohio, and an order enjoining the State Tax Commissioner from asserting that jurisdiction. Diversified appeals the district court order dismissing the action as barred by the Tax Injunction Act, 28 U.S.C. § 1341, and by long-standing principles of comity, that “restraint ] federal courts from entertaining claims for relief that risk disrupting state tax administration.” Levin v. Commerce Energy, Inc., 560 U.S. 413, 424, 130 S.Ct. 2323, 176 L.Ed.2d 1131 (2010). Reviewing the dismissal for lack of subject matter jurisdiction de novo, we affirm. See Dakota, Minn., & E.R.R. v. Schieffer, 711 F.3d 878, 880 (8th Cir. 2013).

The Ohio CAT is an annual tax on “the privilege of doing business in this state.” See Ohio Rev. Code § 5751.02(A); Beaver Excavating Co. v. Testa, 134 Ohio St.3d 565, 983 N.E.2d 1317, 1324 (2012). The CAT is imposed on “gross receipts sitused to this state,” § 5751.01(G). Gross receipts are sitused to Ohio “if the property is received in this state by the purchaser,” § 5751.033(e). Subject to exclusions, ‘“gross receipts’ means the total amount realized by a person, without deduction for the cost of goods sold or other expenses incurred, that contributes to the production of gross income,” § 5751.01(F). The exclusions include “[a]ny receipts for which the tax imposed by this chapter is prohibited by the constitution or laws of the United States or the constitution of this state,” § 5751.01(F)(2)(H).

Diversified sells commodities such as pet food ingredients to customers located outside of Ohio and uses for-hire motor carriers to ship these commodities to destinations directed by the customer. The contracts are negotiated and executed outside Ohio. Diversified has no employees located in Ohio and is not registered to do business in Ohio, At issue are Diversified’s sales to customers who direct the delivery of Diversified products to manufacturing plants in Ohio. Although the Interstate Income Act (“HA”) limits state taxation of “net income,” 15 U.S.C. § 381, and the CAT is imposed on a corporation’s gross receipts, Diversified claims that the IIA divests Ohio of jurisdiction to assess the CAT against Diversified’s out-of-state

996

846 FEDERAL REPORTER, 3d SERIES

sales that are delivered to its customers in Ohio.

[1 ]Reacting to Supreme Court decisions that rejected constitutional challenges to the imposition of state income taxes on the income of out-of-state corporations, Congress passed the IIA to establish a minimum standard for imposing net income taxes based on solicitation of interstate sales. See Wis. Dept, of Revenue v. William Wrigley, Jr., Co., 505 U.S. 214, 220-23, 112 S.Ct. 2447, 120 L.Ed.2d 174 (1992). Specifically, 15 U.S.C. § 381 provides in relevant part:

No State, or political subdivision thereof, shall have power to impose ... a net income tax on the income derived within such State by any person from interstate commerce if the only business activities within such State by or on behalf of such person during such taxable year are either, or both, of the following:

(1) the solicitation of orders by such person, or his representative, in such State for sales of tangible personal property, which orders are sent outside the State for approval or rejection, and, if approved, are filled by shipment or delivery from a point outside the State; and

(2) the solicitation of orders by such person, or his representative, in such State in the name of or for the benefit of a prospective customer of such person, if orders by such customer to such person to enable such customer to fill orders resulting from such solicitation are orders described in paragraph (1).

The district court declined to rule on whether the IIA strips Ohio of authority to impose the CAT based on the Diversified transactions at issue. Instead, the court held that the Tax Injunction Act (“TIA”) deprived it of subject matter jurisdiction to entertain this action. Diversified Ingredi-

ents, Inc, v. Testa, 2016 WL 2932160 (E.D. Mo. May 19, 2016). We agree.

[2] The TIA provides: “The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” 28 U.S.C. § 1341. Congress enacted the TIA to “transfer jurisdiction ... to the state courts” to grant injunctive relief that could interfere with the State’s power to assess, levy, and collect taxes. Rosewell v. LaSalle Nat. Bank, 450 U.S. 503, 515 n.19, 101 S.Ct. 1221, 67 L.Ed.2d 464 (1981); see Tully v. Griffin, Inc., 429 U.S. 68, 73, 97 S.Ct. 219, 50 L.Ed.2d 227 (1976). As originally enacted, the statute provided that “no district court shall have jurisdiction of any suit to enjoin, suspend, or restrain.... ” Act of Aug. 21, 1937, 50 Stat. 738, codified at 28 U.S.C. § 41(1) (1940 ed.). Though the explicit reference to jurisdiction was removed in the 1948 United States Code revisions, the Supreme Court has continued to refer to the TIA as limiting subject matter jurisdiction. See Direct Marketing

Ass’n v. Brohl, — U.S. -, 135 S.Ct.

1124, 1133-34, 191 L.Ed.2d 97 (2015); Lew in, 560 U.S. at 429 n.10 & 433, 130 S.Ct. 2323 (Thomas, J., concurring); Ark, v. Farm Credit Servs. of Central Ark., 520 U.S. 821, 825-26, 117 S.Ct. 1776, 138 L.Ed.2d 34 (1997); Cal, v. Grace Brethren Church, 457 U.S. 393, 408, 102 S.Ct. 2498, 73 L.Ed.2d 93 (1982) (TIA strips district courts of jurisdiction to award declaratory relief). Thus, the district court properly decided this issue of law in ruling on Tes-ta’s Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction.

[3] Diversified’s primary contention is that the district court erred in failing to determine whether the IIA bars Ohio from imposing the CAT on Diversified’s out-of-state sales because federal courts have

exclusive jurisdiction to interpret and enforce the IIA’s “federally conferred tax immunity.” It is true that the TIA has been held not to preclude the grant of federal equitable relief to a party suing under a federal statute that conferred original or exclusive jurisdiction on the federal courts. See Moe v. Confederated Salish & Kootenai Tribes of Flathead Reservation, 425 U.S. 463, 472, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976) (Indian tribe suing under 28 U.S.C. § 1362); City Vending of Muskogee, Inc. v. Okla. Tax Comm’n, 898 F.2d 122, 123 (10th Cir. 1990) (Bankruptcy Code exception to the TIA); Se. Fa. Transp. Auth. v. Pa. Pub. Utility Comm’n, 802 F.Supp. 1273, 1281-85 (E.D. Pa. 1992) (construing 45 U.S.C. §§ 546b and 581(c)(5) exception); Firestone Tire & Rubber Co. v. Bodle, 645 F.Supp. 305, 310-11 (N.D. Ohio 1986) (ERISA exception).

The IIA does not explicitly provide for exclusive federal jurisdiction, and numerous appellate state court - decisions have applied the IIA to specific state tax cases. See, e.g., Gillette Co. v. Dep’t of Treasury, 198 MichApp. 303, 497 N.W.2d 595, 597-99 (1993). These decisions confirm that the “deeply rooted presumption in favor of concurrent state court jurisdiction” applies to the IIA. Tafflin v. Levitt, 493 U.S. 455, 459, 110 S.Ct. 792, 107 L.Ed.2d 887 (1990); see Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 478, 101 S.Ct. 2870, 69 L.Ed.2d 784 (1981). As the Supreme Court decision affirming a state court decision in Wrigley illustrates, the IIA divests state legislatures of the power to impose net income taxes on certain out-of-state transactions, but it does not divest state courts of jurisdiction to decide whether the IIA bars a particular state tax assessment, levy, or collection. Of course, this is a question of federal law that may ultimately be reviewed by the United States Supreme Court.

The TIA applies to a suit in federal court seeking to enjoin assessment, levy or collection of a state tax “where a plain, speedy and efficient remedy may be had in the courts of such State.” 28 U.S.C. § 1341. Diversified argues that the Ohio CAT does not provide a “plain” state court remedy because the statute expressly provides that the CAT is “not subject to” the IIA. Ohio Rev. Code § 5751.02(A). The contention is without merit. This TIA exception is procedural. It addresses only whether state law provides a remedy that permits a taxpayer to challenge the state tax at issue in state court. See Rosewell, 450 U.S. at 514-17, 101 S.Ct. 1221. Here, the Ohio Revenue Code provides taxpayers an appeal of right to an Ohio appellate court which will “hear and decide” a claim that a state tax has been invalidly assessed or collected. Id. at 517, 101 S.Ct. 1221; see Ohio Rev. Code § 5717.04. This obviously includes authority to decide that imposing the CAT on Diversified’s out-of-state transactions violates the IIA, regardless of the Ohio Legislature’s contrary intention. Cf. Beaver Excavating, 983 N.E.2d at 1324.

The district court further concluded that it should abstain from entertaining this lawsuit under comity principles. In Levin, 560 U.S. at 417, 130 S.Ct. 2323, the Supreme Court noted that the long-standing doctrine restraining federal court relief that risks disrupting state tax administration is “[m]ore embracive than the TIA.” Thus, our decision that the TIA effectively transferred jurisdiction over Diversified’s equitable claims to the Ohio state courts is not at odds with comity principles applied in Levin and earlier cases. However, as we agree with the district court that the TIA deprived that court of subject matter jurisdiction over Diversified’s claim, we decline to consider whether dismissal was also appropriate under prudential comity principles.

The judgment of the district court is affirmed.

      . The Honorable Ronnie L. White, United States District Judge for the Eastern District of Missouri.


author: BENTON, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee v. Ricky FUNKE, Defendant-Appellant
    No. 16-1218
    United States Court of Appeals, Eighth Circuit.
    Submitted: November 14, 2016
    Filed: January 24, 2017

      Mark Tremmel, Assistant U.S. Attorney, U.S. ATTORNEY’S OFFICE, Northern District of Iowa, Cedar Rapids, IA, for Plaintiff-Appellee.
    Ricky Funke, Pro Se.
    John D. Jacobsen, JACOBSEN & JOHNSON, Cedar Rapids, IA, for Defendant-Appellant.
    Before MURPHY, BENTON, and SHEPHERD, Circuit Judges.
   BENTON, Circuit Judge.

Ricky J. Funke pled guilty to one count of possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). The district court sentenced him to 135 months’ imprisonment and ordered $3,500 in restitution. He appeals the sentence and restitution. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

Funke possessed over 600 images and videos of child pornography, including depictions of child rape and bondage. Among these were 21 videos from the “Vicky series,” depicting her sexual abuse at the age of 10 and 11. Some of the images and videos had been on his computer since 2001.

Funke’s guideline range was 135 to 168 months. At sentencing, he moved for a downward variance. The district court denied it, sentencing him to 135 months’ imprisonment. Vicky requested $27,500 in restitution and attorney’s fees. On the government’s recommendation, the court ordered $3,500 restitution to Vicky.

I.

Funke argues the district court erred in sentencing him to 135 months, the bottom of the guidelines range. He asserts the court gave insufficient weight to his military service, lack of criminal record, and long-term employment.

This court reviews the substantive reasonableness of a sentence for abuse of discretion. United States v. Harlan, 815 F.3d 1100, 1107 (8th Cir. 2016).

An abuse of discretion occurs when: 1) a court fails to consider a relevant factor that should have received significant weight; 2) a court gives significant weight to an improper or irrelevant factor; or 3) a court considers only the appropriate factors but in weighing them commits a clear error of judgment.

United States v. Farmer, 647 F.3d 1175, 1179 (8th Cir. 2011). Where “a sentence imposed is within the advisory guideline range, [this court] typically accord[s] it a presumption of reasonableness.” United States v. Scales, 735 F.3d 1048, 1052 (8th Cir. 2013), quoting United States v. Deegan, 605 F.3d 625, 634 (8th Cir. 2010). “It is the defendant’s burden to rebut the presumption and to show that the sentence should have been lower.” United States v. Goodale, 738 F.3d 917, 926 (8th Cir. 2013), citing United States v. Peck, 496 F.3d 885, 891 (8th Cir. 2007).

Funke has not rebutted the presumption. After argument from both parties, the district court stated it had “carefully considered each and every factor under 18 United States Code § 3553(a).” The court considered Funke’s military service, lack of criminal record, and long-term employment, but determined that the length of his criminal conduct and the large number of images did not warrant a downward variance. The district court did not abuse its discretion in sentencing at the bottom of the guidelines range. See United States v. Feemster, 572 F.3d 455, 464 (8th Cir. 2009) (en banc) (“[I]t will be the unusual case when we reverse a district court sentence—whether within, above, or below the applicable Guidelines range—as substantively unreasonable,”) (quotation omitted).

II.

Funke contests the restitution. First, he contends the district court should not have included future costs in “costs incurred” by Vicky. Second, he challenges the amount of the award. “An award of restitution is reviewed for abuse of discretion, and district court interpretations of the Mandatory Victims Restitution Act (MVRA) are reviewed de novo.” United States v. Evans, 802 F.3d 942, 950 (8th Cir. 2015), quoting United States v. Allison, 772 F.3d 554, 556 (8th Cir. 2014).

A.

Restitution shall be awarded for the “full amount of the victim’s losses,” defined as “any costs incurred by the victim for”:

(A) medical services relating to physical, psychiatric, or psychological care;
(B) physical and occupational therapy or rehabilitation;
(C) necessary transportation, temporary housing, and child care expenses;
(D) lost income;
(E) attorneys’ fees, as well as other costs incurred; and
(F) any other losses suffered by the victim as a proximate result of the offense.

18 U.S.C. § 2259(b)(3).

Funke argues “costs incurred” do not include future costs. Five circuits hold that future losses are compensable under section 2259. See United States v. Rogers, 758 F.3d 37, 39 (1st Cir. 2014) (affirming restitution based on “an estimate of Vicky’s future therapy costs, occasioned by defendant’s conduct”); United States v. Pearson, 570 F.3d 480, 486 (2nd Cir. 2009) (holding that costs incurred “may include restitution for estimated future medical expenses”); United States v. Danser, 270 F.3d 451, 455 (7th Cir. 2001) (holding that future counseling expenses are compensa-ble under section 2559); United States v. Julian, 242 F.3d 1245, 1246-48 (10th Cir. 2001) (same); United States v. Laney, 189 F.3d 954, 966-67 (9th Cir. 1999) (same). As the Seventh Circuit explained:

We do not believe that Congress sought to create such a cumbersome procedure for victims to receive restitution. In enacting section 2259, it is clear that Congress intended to provide victims of sexual abuse with expansive relief for “the full amount of ... [their] losses” suffered as a result of abuse, § 2259(b)(3)(B) (emphasis added). Congress chose unambiguously to use unqualified language in prescribing full restitution for victims. Indeed, in the legislative history of the contested statute, Congress cites the United States Supreme Court’s landmark decision in New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). In that case, the Court discussed, at great length, the devastating and long term effects that the sexual exploitation of children can have both upon the victims of that abuse and greater society. Id. In light of Congress’s intent to make whole those victims of sexual exploitation, we find that section 2259 allows for restitu-tionary damages for the future costs of therapy.

Danser, 270 F.3d at 455. Persuaded by the reasoning of the other circuits, the district court properly awarded restitution based on future losses.

B.

Funke challenges the district court’s proximate cause determination. In Paroline v. United States, the Supreme Court considered a similar argument, holding:

In this special context, where it can be shown both that a defendant possessed a victim’s images and that a victim has outstanding losses caused by the continuing traffic in those images but where it is impossible to trace a particular amount of those losses to the individual defendant by recourse to a more traditional causal inquiry, a court applying § 2259 should order restitution in an amount that comports with the defendant’s relative role in the causal process that underlies the victim’s general losses.

Paroline, — U.S. -, 134 S.Ct. 1710, 1727, 188 L.Ed.2d 714 (2014). Determining the proper amount of restitution “cannot be a precise mathematical inquiry and involves the use of discretion and sound judgment.” Id. at 1728. The Court listed factors to consider:

the number of past criminal defendants found to have contributed to the victim’s general losses; reasonable predictions of the number of future offenders likely to be caught and convicted for crimes contributing to the victim’s general losses; any available and reasonably reliable estimate of the broader number of offenders involved (most of whom will, of course, never be caught or convicted); whether the defendant reproduced or distributed images of the victim; whether the defendant had any connection to the initial production of the images; how many images of the victim the defendant possessed; and other facts relevant to the defendant’s relative causal role.

Id.

The district court properly applied the Paroline factors, considering Funke’s “possession of a large number of files involving [Vicky] and his role in distributing files to others over the BitTorrent program.” The court did not abuse its discretion in awarding $3,500 in restitution. See United States v. Evans, 802 F.3d 942, 949-50 (8th Cir. 2015) (finding no abuse of discretion in $3,250 restitution to Vicky where the defendant possessed “20 videos and a handful of images” of her); United States v. Beckmann, 786 F.3d 672, 682 (8th Cir. 2015) (finding no abuse of discretion in $3,000 restitution to Vicky where the defendant possessed 14 videos and two images of her).

⅝ ¾* ⅜ ⅜ ⅝

The judgment is affirmed.

      . The Honorable Linda R. Reade, Chief Judge, United States District Court for the Northern District of Iowa.