author: STAHL, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Sherad THERRIEN, Defendant, Appellant.
    No. 16-1103
    United States Court of Appeals, First Circuit.
    January 27, 2017

      Larry J. Ritchie, Bristol, RI, for appellant.
    Julie M. Karaba, Attorney, United States Department of Justice, Washington, DC, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.
    Before LYNCH, STAHL, and BARRON, Circuit Judges.
   STAHL, Circuit Judge.

A jury convicted appellant Sherad Ther-rien on five counts of drug trafficking and one count of being a felon in possession of a firearm and ammunition. Therrien admits that he committed these offenses. However, on appeal he disputes the appropriateness of his convictions and resulting sentence based on events occurring before, during, and after his trial. Specifically, Therrien contends that (1) federal authorities engaged in outrageous misconduct during their investigation of him and withheld exculpatory evidence before trial, thus violating his due process rights; (2) the jury discovered and considered extraneous, unadmitted evidence during its deliberations, thereby violating his right to a fair trial; and (3) the district court misapplied the United States Sentencing Guidelines when it refused to decrease his offense level during sentencing, claiming he should have at least been sentenced within a range of 51 to 63 months rather than 63 to 78 months. After careful consideration, we reject Therrien’s various claims of error and affirm his conviction and sentence.

I. Facts & Background

On June 19, 2014, a federal grand jury sitting in the District of Massachusetts issued an indictment charging Therrien with five counts of distribution of cocaine or cocaine base in violation of 21 U.S.C. § 841(a) and one count of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). Before trial, Therrien filed a motion to dismiss the indictment, arguing that outrageous government misconduct by federal authorities and other violations of his due process rights mandated such a result. The district court denied that motion. United States v. Therrien, 89 F.Supp.3d 216 (D. Mass. 2015). Following that denial and after a six-day trial, a jury convicted Therrien on all counts. The trial judge then sentenced Therrien to a prison term of 72 months, followed by three years of supervised release, and ordered him to pay a $600.00 special assessment. On appeal, Therrien makes three arguments aimed at either negating these convictions or amending his sentence. We recite the relevant facts to each argument below.

A. Outrageous Government Misconduct Claims

The crux of Therrien’s appeal centers on his relationship with Officer Jessica Athas, a former member of the Hampden County Sheriffs Department. Therrien met Athas while he was incarcerated at the Hampden County House of Correction (“Hampden”), where she was a member of the Gang Intelligence Unit.

In his original motion to dismiss, the facts of which he largely reiterates on appeal, Therrien alleged that he and Athas developed a close relationship, with Athas ensuring that Therrien received favorable treatment compared to other inmates incarcerated at Hampden. He also claimed that after he was released from prison on February 15, 2013, Athas gave her phone number to him. Therrien asserted that the pair then engaged in intimate phone and text message conversations. This courtship of sorts also allegedly led to in-person meetings, gift exchanges, and a sexual relationship.

Therrien also claimed that Athas eventually asked him to sell drugs and a gun to Perez. Athas purportedly told Therrien these transactions would “help her career,” and in exchange allegedly agreed to help him get a driver’s license and a job. At trial, Athas articulated a different view of their relationship,, claiming that she had tried to “cultivate” both Therrien and Perez as informants. Athas admitted to communicating with both men after their release and after she had been assigned to a joint state-federal task force with the Drug Enforcement Agency (“DEA”) in November 2013. Perez, unbeknownst to Therrien, also began cooperating with the Federal Bureau of Investigation (“FBI”) around this time as well. In this capacity, he told the FBI, who later informed the task force, that he believed Therrien would sell him drugs and/or a gun.

To this end, Therrien claimed that Athas asked him to sell drugs to Perez on six to eight different occasions, either by phone or in person. He testified that he initially resisted, but relented once Athas assured him that he would not get in trouble. Thereafter, on four different occasions between September 4, 2013 and March 28, 2014, Therrien sold narcotics, and in one instance a 9-millimeter handgun, to Perez. Law enforcement captured all four of these transactions on audio and video recordings. Athas was present in a “backup” or “subsidiary” role for at least the first two deals.

Though Athas had disclosed some of her meetings, phone conversations, and text messages with Therrien to her supervisors, none of them knew the full extent of her and Therrien’s personal relationship. In fact, once Therrien’s allegations came to light, the task force launched an investigation which revealed that Athas had not been entirely truthful with respect to other of the pair’s communications. For that reason, the Government decided not to call her as a witness at trial. The investigation also led to her demotion and, ultimately, her resignation.

Before trial, Therrien filed a motion to dismiss his indictment based on the federal government’s “outrageous misconduct,” claiming that Athas had “used sex and ‘feminine wiles’ to induce him to sell drugs.” Therrien, 89 F.Supp.3d at 218. He also claimed that the federal government had failed to provide him with materially exculpatory evidence as required under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which failure in his view was similarly “outrageous.” Therrien again focused on Athas, arguing that she “withh[eld] the nature of [their] relationship” from the prosecutor, who in turn did not disclose the evidence to him or his lawyer. See Therrien, 89 F.Supp.3d at 219. The district court denied the motion without an evidentiary hearing, holding that even if it accepted all of Therrien’s factual allegations as true, the allegations did “not rise to the level of egregiousness the law requires for dismissal of an indictment.” Id. at 218.

B. Jury Taint Claim

As part of his defense, Therrien put his personal cell phone into evidence, which was present in the jury room during their deliberations. Shortly after deliberations began, the jury foreperson sent a note to the district judge which read “[w]e (one juror) turned on [Therrien’s] cell phone and read some text messages before realizing it might be wrong. Is that okay?” The judge quickly decided that he needed to “find out” whether the messages were relevant to the case. He summoned the entire jury back to open court and warned them to not read any more messages on the phone. He then dismissed the jury but kept the jury foreperson for further questioning about the incident. The foreperson explained that a juror had turned on a cell phone accompanying other evidence to see whether it was the same phone that Ther-rien had used to send text messages to Athas. He also noted that the juror who turned on the phone had seen a single text message, one .between Therrien and Athas, and that he believed a transcript of the text had already been admitted into evidence.

The next day, the judge had the juror who turned on the phone brought into open court for individual questioning. The juror explained that after turning on the phone, she and one other juror had seen the text message. She then immediately had turned the phone off. Summoning all the jurors a second time, the judge again warned them not to turn on the phone. The judge then sent the jury back for further deliberations, but this time the juror who had turned on the phone stayed behind. The juror stated that she believed the text message she had seen was not already in evidence because it referred to a drug — “Molly”—that had not been discussed at trial. After hearing this, the judge once again told the juror to disregard the text message.

Therrien moved for a mistrial, arguing that the trial judge should have polled each juror individually since it was clear that more than one juror either saw or discussed the text message. Therrien’s motion also contained a list of questions for the court to ask the jury regarding how it used the phone, but did not request a curative instruction. The judge denied the motion, noting that Therrien had offered the phone into evidence without limitation and that he “believe[d] the jury w[ould] follow [his] instruction not to further inquire into it,” and gave no further instruction regarding the phone. Soon after, the jury found Therrien guilty on all charges.

C. Sentencing

At sentencing, the district court settled on a United States Sentencing Guidelines (“U.S.S.G.”) range of 63 to 78 months. The court arrived at that range after assigning Therrien a Base Offense Level (“BOL”) of 20 and then adding another fqur levels since Therrien “transferred a firearm with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense.” See U.S.S.G. § 2K2.1(b)(6)(B). Therrien sought a two-level reduction, arguing that he had accepted responsibility by admitting he made the charged sales. See id. § 3El.l(a). The district court rebuffed Therrien, sentenced him to a prison term of 72 months followed by three years of supervised release, and imposed a $600.00 special assessment.

II. Discussion

We deal with, and reject, each of Ther-rien’s claims of error in turn.

A. Outrageous Government Misconduct Claims

When reviewing a trial court’s denial of a motion to dismiss an indictment, this court reviews “legal questions de novo, any factual findings for clear error, and the court’s ‘ultimate ruling’ for abuse of discretion.” United States v. Parigian, 824 F.3d 5, 9 (1st Cir. 2016) (quoting United States v. Doe, 741 F.3d 217, 226 (1st Cir. 2013)). The district court did not make any express factual findings, and found Ther-rien’s claim to be deficient even if all his factual allegations were true. Therrien, 89 F.Supp.3d at 218. We do as well.

A defendant’s claim of outrageous government misconduct faces a demanding standard, permitting the dismissal of criminal charges “only in those very rare instances when the government’s misconduct is so appalling and egregious as to violate due process by ‘shocking ... the universal sense of justice.’ ” United States v. Luisi, 482 F.3d 43, 59 (1st Cir. 2007) (quoting United States v. Russell, 411 U.S. 423, 432, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973)). We review these claims holistically, evaluating the “totality of the relevant circumstances” while recognizing that “outrageousness, by its nature, requires an ad hoc determination” that cannot “usefully be broken down into a series of discrete components.” United States v. Santana, 6 F.3d 1, 6-7 (1st Cir. 1993) (emphasis in original). Though the defense is theoretically viable, see United States v. Twigg, 588 F.2d 373, 380-81 (3d Cir. 1978), it is nonetheless reserved “for only the most egregious circumstances” and should not be “invoked each time the government acts deceptively or participates in a crime that it is investigating,” United States v. Sneed, 34 F.3d 1570, 1577 (10th Cir. 1994) (quoting United States v. Mosley, 965 F.2d 906, 910 (10th Cir. 1992)).

Therrien points to three categories of cases where the defendant alleged a due process violation based on outrageous government misconduct, and he claims that his case presents aspects of each type. Though almost no court evaluating cases in any of these categories has found dismissal appropriate, Therrien continues to suggest that his case presents a unique confluence of misconduct warranting the doctrine’s application. We think not.

First, Therrien cites cases where charges of outrageous misconduct centered on the over-involvement of government agents in the commission of a crime. See, e.g., Luisi, 482 F.3d at 59; Santana, 6 F.3d at 5. These cases hold little persuasive weight here since Athas merely encouraged Therrien to sell illicit goods and did not “engineer[]” or “direct[] the criminal enterprise from start to finish.” See Sneed, 34 F.3d at 1577. Though Athas knew of Perez’s status as an FBI informant and personally spoke with both Perez and Therrien before and after the sales took place, she did not supply Therrien with the drugs or firearm, did not specify the precise terms of the transactions, and was not physically present when they took place. See Twigg, 588 F.2d at 380-81 (outrageous misconduct barred conviction where a government agent set up a drug lab, supplied the key ingredient to make the drugs, purchased almost all of the other supplies, “was completely in charge” of the operation, and “furnished all of the laboratory expertise”). Indeed, Therrien’s own active involvement in the crime undermines his argument: he acquired the drugs and firearm on his own and, importantly, only communicated with Athas twice over the seven-month span when the sales took place. See Luisi, 482 F.3d at 59 (noting that “an outrageousness claim might be defeated if a defendant has been ‘too active himself ”) (quoting United States v. Bradley, 820 F.2d 3, 7 (1st Cir. 1987)); United States v. Nunez, 146 F.3d 36, 38-39 (1st Cir. 1998) (denying an outrageous misconduct claim despite the government informant requesting pipe bombs from the defendant, government agents escorting the defendant to buy the raw materials for the bombs, and the government supplying the money used to buy the bombs).

Second, Therrien points to cases addressing sexual relations between defendants and government agents. We have not previously addressed whether, when, or to what extent a sexual relationship could form the basis of a successful outrageous misconduct claim. The courts of appeals that have considered this sort of claim in similar contexts, however, note that it would succeed only if the government “consciously set out to use sex as a weapon in its investigatory arsenal” or at least “aequiesce[d] in such conduct for its ■ own purposes upon learning that such a relationship existed.” United States v. Cuervelo, 949 F.2d 559, 567 (2d Cir. 1991); accord United States v. Dyess, 478 F.3d 224, 235 (4th Cir. 2007) (adopting Cuervelo standard); United States v. Nolan-Cooper, 155 F.3d 221, 233 (3d Cir. 1998) (rejecting outrageous misconduct claim where only one incident of sexual intercourse occurred between a law enforcement officer and the defendant which “was not necessarily intertwined with [the defendant’s] offense conduct”); United States v. Simpson, 813 F.2d 1462, 1466 (9th Cir. 1987) (noting that “the deceptive creation and/or exploitation of an intimate relationship,” on its own, does not constitute outrageous government misconduct).

Here, besides Therrien’s own testimony, there was no evidence that federal authorities directed Athas, a state law enforcement officer, to start a sexual relationship with Therrien. None of Athas’s supervisors knew about the extent of her personal relationship with Therrien, the alleged sexual relationship was of a limited duration, and it is unclear whether Athas’s motive for entering into any such relationship was for “investigatory” reasons. In other words, Therrien never alleged that the FBI or any other investigative agency encouraged, or even “acquiesce[d]” to, his and Athas’s relationship. See Cuervelo, 949 F.2d at 567. Consequently, we cannot conclude that Athas’s alleged conduct was attributable to the federal government. See Simpson, 813 F.2d at 1467 (concluding that an informant’s “initial decision to establish a deceptive sexual and emotional relationship” could not “be used to characterize the government’s conduct” as outrageous (emphasis in original)).

Third, Therrien directs us to another set of cases involving certain defendants’ allegations that government agents physically or psychologically abused them. See, e.g., Santana, 6 F.3d at 4. Therrien specifically argues that Athas’s age, position of authority at Hampden, and repeated assurances that he would not get in trouble for selling illicit items to Perez constituted such abuse. Nevertheless, we do not see how this dynamic implicates due process concerns since “feelings of ‘betrayal’ are not the sort of injuries that constitute a violation of a defendant’s rights under the Due Process Clause.” See United States v. Chin, 934 F.2d 393, 399 n.4 (2d Cir. 1991); see also Simpson, 813 F.2d at 1466 (concluding that the Due Process Clause “does not protect [an individual] from voluntarily reposing his trust in one who turns out to be unworthy of it”).

Therrien’s argument next ventures toward a different type of outrageous government misconduct, claiming that Athas, and therefore the federal government, violated his due process rights after failing to disclose the true extent of her relationship with Therrien to the prosecution and, in turn, to him. See Brady, 373 U.S. at 87, 83 S.Ct. 1194 (“[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”). The district court, however, correctly dismissed this argument out of hand:

To constitute a Brady violation, the material evidence at issue “must have been either willfully or inadvertently suppressed by the government.” United States v. Alverio-Melendez, 640 F.3d 412, 424 (1st Cir. 2011). It is well established that “[i]n general, ‘evidence is not suppressed if the defendant either knew, or should have known of the essential facts permitting him to take advantage of any exculpatory evidence.’ ” Ellsworth v. Warden, 333 F.3d 1, 6 (1st Cir. 2003) (quoting United States v. LeRoy, 687 F.2d 610, 618 (2d Cir. 1982), cert. denied, 459 U.S. 1174, [103 S.Ct. 823, 74 L.Ed.2d 1019] (1983)). Therrien, of course, had actual knowledge of the nature of his relationship with Athas. Because he knew of the essential facts permitting him to take advantage of the exculpatory information, there is no suppressed evidence regarding the relationship that the government was obligated to disclose.

Therrien, 89 F.Supp.3d at 218.

Finally, Therrien argues for the first time on appeal that Athas’s disposal of her work cell phone, which he claims contained exculpatory text messages between him and Athas, also constituted a due process violation. See Youngblood, 488 U.S. at 58, 109 S.Ct. 333 (holding that the government commits a due process violation when,' in bad faith, it destroys “potentially useful evidence”). The argument, however, lacks merit.

Even assuming that Therrien has not forfeited the claim and that Athas destroyed her phone in bad faith, a dubious conclusion based on the record, Therrien remained a party to the text message conversations between himself and Athas. At best, it remains unclear whether these text messages actually had any exculpatory value. At trial, Therrien introduced extensive evidence concerning his relationship with Athas, including her testimony, his own testimony, and text messages from his own cell phone. He has not, however, shown on appeal how the text messages on Athas’s phone would differ from this considerable pool of existing evidence. See United States v. Sepulveda, 15 F.3d 1161, 1195 (1st Cir. 1993) (noting the government’s destruction of “potentially exculpatory evidence” may not violate Brady or Young-blood if the evidence can be “replicated through other sources”).

Considering everything raised by Ther-rien, the totality of these circumstances does not present the rare case where any government misconduct was sufficiently blatant, outrageous, or egregious to warrant the dismissal of his indictment.

B. Jury Taint Claim

Therrien next maintains that the trial court did not adequately inquire into the existence and extent of any prejudice he suffered after at least two jurors viewed a text- message on his phone. The trial court abused its discretion, he continues, by denying Therrien’s motion for a mistrial without conducting such an inquiry. We disagree.

Where “a colorable claim of jury taint surfaces during jury deliberations, the trial court has a duty to investigate the allegation promptly.” United States v. Bradshaw, 281 F.3d 278, 289 (1st Cir. 2002). In thesé circumstances, the trial court is tasked with determining whether a taint-producing event actually ' occurred and, if so, the extent or pervasiveness of the resulting prejudice. See United States v. Boylan, 898 F.2d 230, 258 (1st Cir. 1990). If the trial court finds both a taint-producing event and a significant potential for prejudice, it must then consider possible measures to alleviate that prejudice. Bradshaw, 281 F.3d at 289. If the potential for prejudice remains too high even after the trial court’s best efforts, then the court must grant any resulting motion for a mistrial. Id.

Granting a defendant’s request for a mistrial is “a last resort, only to be implemented if the [jury] taint is ineradicable.” Sepulveda, 15 F.3d at 1184. When reviewing the denial of a mistrial request, we therefore “consider the totality of the circumstances to determine whether the defendant has demonstrated the kind of clear prejudice that would render the court’s denial of his motion for a mistrial a manifest abuse of discretion.” United States v. Trinidad-Acosta, 773 F.3d 298, 306 (1st Cir. 2014) (quoting United States v. Dunbar, 553 F.3d 48, 58 (1st Cir. 2009)). The trial court enjoys similar discretion regarding how it conducts its inquiry into claims of jury taint. See United States v. Yeje-Cabrera, 430 F.3d 1, 11 (1st Cir. 2005).

We discern no abuse here. Therrien primarily attacks the trial court’s procedural choices, arguing that it should have (a) polled the entire jury to determine who saw the text message and assess the degree of any resultant prejudice, or (b) issued a curative instruction or discharged the juror who viewed the text message. Nonetheless, these procedures are usually reserved for far graver and pervasive claims of jury taint. Here, the trial court, after learning about the incident, isolated both the foreperson and the juror who turned on the cell phone, questioned each of them about what they had seen on the cell phone and who else had seen it, and then repeatedly told the jury to disregard the texts and not turn the cell phone on again. Given the circumstances, we are reassured that the trial court’s inquiry and repeated warnings effectively ascertained the extent, and degree of any prejudice suffered by Therrien, mitigated the effects of that prejudice, and was “appropriate and reasonable.” See United States v. Balsam, 203 F.3d 72, 86 (1st Cir. 2000); see also United States v. Arias-Montoya, 967 F.2d 708, 714 (1st Cir. 1992) (concluding it was “highly probable” that the erroneous admission of a defendant’s prior conviction “did not contribute to the verdict against him” and that the trial court “properly cautioned the jury as to the limited weight to be given the prior conviction”) (emphasis in original).

C. Sentencing

Therrien’s final argument, that he is entitled to a reduction in his sentence because he “clearly demonstrate^] acceptance of responsibility for his offense,” see U.S.S.G. § 3El.l(a), also lacks merit. Therrien bears the burden of proving his entitlement to an acceptance-of-responsibility credit, and “the sentencing court’s determination to withhold the reduction will be overturned only if it is clearly erroneous.” United States v. Franky-Ortiz, 230 F.3d 405, 408 (1st Cir. 2000) (quoting United States v. Ocasio-Rivera, 991 F.2d 1, 4 (1st Cir. 1993)); see also United States v. Marino, 833 F.3d 1, 8 (1st Cir. 2016) (stating that clear error “means the judge got things ‘wrong with the force of a 5 week old, unrefrigerated, dead fish’ ”) (quoting In re O’Donnell, 728 F.3d 41, 46 (1st Cir. 2013)).

Therrien rightly points out that § 3El.l’s commentary suggests that these determinations “will be based primarily upon pre-trial statements and conduct.” U.S.S.G. § 3E1.1 cmt. n.2. Similarly, the commentary recognizes that in some “rare situations” a defendant may stand trial and still receive an acceptance of responsibility reduction. Id. But while it is “remotely conceivable ... that a defendant who goes to trial with an entrapment defense might still be entitled to such a reduction,” Therrien’s “decision to defend himself at trial through a weak claim of entrapment in no way places him in this narrow theoretical category.” See United States v. Turner, 501 F.3d 59, 74 (1st Cir. 2007); see also United States v. Sánchez-Berríos, 424 F.3d 65, 79 (1st Cir. 2005); United States v. Capleton, 350 F.3d 231, 245 (1st Cir. 2003).

Therrien argues that our previous decisions involved traditional entrapment claims and that his “entrapment by estop-pel” defense somehow warrants a different outcome. This latter defense, however, only requires that the defendant admit “that he had been told by a government official that his behavior was legal and that he reasonably relied on that advice.” United States v. Bunnell, 280 F.3d 46, 49 (1st Cir. 2002). Though it may acknowledge that a defendant committed an unlawful act, the defense still renounces any notion of personal responsibility for those acts and redirects it to law enforcement. See United States v. Mikutowicz, 365 F.3d 65, 76-77 (1st Cir. 2004) (holding that acceptance of responsibility reduction was improper where the defendant contested the willfulness of his conduct, an “essential factual element[ ] of guilt” (quoting U.S.S.G. § 3E1.1 cmt. n. 2)). For these reasons, we conclude that the district court did not commit any error, let alone clear error, in denying Therrien a sentencing reduction for acceptance of responsibility.

III. Conclusion

Therrien’s conviction and his resulting sentence are AFFIRMED.

      . As part of this unit, Officer Athas was tasked with identifying each inmate's gang affiliation.

      . Therrien claimed that Athas made sure he had light supervisory details while he was in Hampden serving another sentence, and later helped secure his move to another jail.

      .Athas, who Therrien called as a witness at trial, denied Therrien's allegation that the pair had a sexual relationship.

      . For the first time on appeal, Therrien puts forward a claim that Athas’s disposal of her work cell phone constituted a due process violation under Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), which states that the government commits a due process violation when, in bad faith, it destroys potentially exculpatory evidence. Therrien argues that the cell phone contained exculpatory text messages which would have aided his defense.

      . At trial, Therrien’s put forth an entrapment by estoppel defense. Specifically, Therrien claimed that he had reasonably relied on Athas’s assurances that he would not be held responsible for selling drugs, a firearm, and ammunition to Perez.

      . For purposes of this opinion, we assume that Therrien’s allegations accurately describe the nature and extent of his and Athas’s relationship.

      . In his brief, Therrien cites to and relies on multi-factor tests used in other circuits to evaluate outrageous misconduct claims. However, we have noted that this court’s holistic approach to outrageous-misconduct claims differs from other courts’ analyses, which use these multi-factor tests. United States v. Rivera-Garcia, 527 Fed.Appx. 11, 15 n.2 (1st Cir. 2013).

      . For this reason, we need not and do not decide whether an indictment may be dismissed based on outrageous government misconduct in the absence of prejudice. See United States v. Guzman, 282 F.3d 56, 59 (1st Cir. 2002) (recognizing that a showing of prejudice is "of some moment” and noting that the alleged misconduct at issue "did not compromise [the defendant’s] defense or prejudice his case”).

      . We express no opinion regarding whether a Brady violation, on its own, may in some cases meet the outrageous government misconduct standard.

      . Athas, for her part, testified that she handed the phone in to the Hampden Sheriff's Department for decommissioning after it stopped working in late 2014, and that Hamp-den’s informal policy was such that Athas had to turn the phone in for disposal anyway once the DEA, as opposed to the Sheriff’s Department, became responsible for paying her phone bill around the same time.

      . See United States v. Lara-Ramirez, 519 F.3d 76, 86 (1st Cir. 2008) (concluding that the trial court abused its discretion by granting a motion for a mistrial where, after learning that some members of the jury may have been consulting a Bible not entered into evidence during deliberations, the judge did not ascertain whether any specific portions of the Bible had actually been read, referred to, or discussed by the jurors); Bradshaw, 281 F.3d at 282, 290-92 (affirming as appropriate, after an unredacted copy of an indictment charging the defendant with three severed counts involving “serious malefactions” found its way into the jury room, the trial court’s individual voir dire of each juror, its dismissal of one juror, and its issuance of a curative instruction); United States v. Gaston-Brito, 64 F.3d 11, 13 (1st Cir. 1995) (stating the trial court abused- its discretion after it denied a mistrial motion without conducting any investigation into whether a non-witness had made an impermissible hand gesture or whether the jury had seen it); see also Jackson v. United States, 97 A.3d 80, 82-83 (D.C. 2014) (endorsing, after the entire jury had perused emails, texts, call logs, and contact lists on a cell phone not admitted into evidence, the trial court’s denial of a mistrial since the judge had assembled and questioned the entire jury three times to assess existence, extent, and prejudicial effects of the taint-producing event).

      . Because we conclude that the trial court’s procedures were appropriate and reasonable, we need not address the Government’s threshold argument that the incident was not clearly prejudicial.

      . Therrien suggests that the district court also erred by not stating why it declined to apply the acceptance-of-responsibility credit. The answer to this question, however, is clear from the record: at the sentencing hearing, the district court pointed out that the “theory of [Therrien's] case” was inconsistent with "what the jury [had] found.” See United States v. Stella, 591 F.3d 23, 28 (1st Cir. 2009) (stating that the district court did not need to go into detail regarding why it imposed a sentencing enhancement because "the reason [was] evident from the record”).


source: Caselaw Access Project

license: Public Domain

text:
    Ms. M., individually and as parent and legal guardian of O.M., a minor, Plaintiff, Appellee, v. FALMOUTH SCHOOL DEPARTMENT, Defendant, Appellant.
    No. 16-1877
    United States Court of Appeals, First Circuit.
    January 27, 2017

      Eric R. Herían, with whom Michael Buescher and Drummond Woodsum & MacMahon, Portland, ME, were on brief, for appellants.
    Richard L. O’Meara, with whom Rachel W. Sears and Murray, Plumb & Murray, Portland, ME, were on brief, for appellees.
    Before LYNCH, STAHL, and BARRON, Circuit Judges.
   STAHL, Circuit Judge.

This case concerns a claim that the Fal-mouth School Department (“Falmouth” or “School Department”) did not provide one of its students, O.M., with a “free appropriate public education” (“FAPE”) as guaranteed under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. The complaint centers on O.M.’s individualized education program (“IEP”), which constitutes the “primary- vehicle” for a school’s delivery of a FAPE under the IDEA. Lessard v. Wilton Lyndeborough Coop. Sch. Dist., 518 F.3d 18, 23 (1st Cir. 2008). O.M.’s mother, Ms. M., asserts that her daughter’s IEP specified that Falmouth would instruct O.M. using the Specialized Program Individualizing Reading Excellence (“SPIRE”) system during her third-grade year. She insists that this system constituted a key provision of O.M.’s IEP and, because Fai-mouth did not provide O.M. with SPIRE instruction, the School Department therefore violated her daughter’s right to a FAPE. Falmouth, for its part, counters that O.M.’s IEP does not mention SPIRE and that any references to it were relegated to ancillary documents which should not be read into the IEP or made a part of the IEP.

After an administrative hearing and a magistrate judge’s review of that hearing, the district court agreed with Ms. M. and entered judgment in her favor. However, after careful review we reach a contrary conclusion and find that O.M.’s IEP did not mandate that Falmouth use SPIRE, meaning the School Department neither breached the IEP’s terms nor denied O.M. a FAPE by foregoing such instruction. Accordingly, we reverse.

I. Facts & Background

O.M., a now twelve-year-old girl diagnosed with Down syndrome and Attention Deficit Hyperactivity Disorder, lives with her mother, Ms. M., in Falmouth, Maine. She began attending Falmouth Elementary School as a first grader in 2011 where, as a student with multiple intellectual disabilities, she was eligible for a FAPE, i.e., special education and related services structured in compliance with the IDEA that are provided free of charge. Ms. M. now challenges Falmouth’s delivery of these services during O.M.’s third-grade year (2013-2014).

A. Statutory Framework

To provide an IDEA-eligible child with a FAPE, a school district must first create an IEP for the child and then follow its dictates. See D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 34 (1st Cir. 2012). The IEP is a “written statement for each child with a disability that is developed, reviewed, and revised” in accordance with the IDEA. 20 U.S.C. § 1414(d)(l)(A)(i). IEPs are subject to both substantive and procedural requirements, which “can flow from either federal or state law (at least to the extent that the latter is not incompatible with the former).” Lessard, 518 F.3d at 23.

For example, on the substantive front, an IEP must be “individually designed” to suit the needs of a particular child, Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 201, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982), and must include, “at a bare minimum, the child’s present level of educational attainment, the short- and long-term goals for his or her education, objective criteria with which to measure progress toward those goals, and-the specific services to be offered,” Lessard, 518 F.3d at 23 (citing 20 U.S.C. § 1414(d)(1)(A), and Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1086 (1st Cir. 1993)). On the procedural front, the IDEA gives, among other things, parents of qualifying children a right to be a part of the IEP “team,” or the group of individuals charged with formulating a child’s particular IEP. 20 U.S.C. § 1414(d)(1)(B). Other members of the IEP team can include the child’s regular special education teachers, a local education agency representative, other individuals with relevant experience, and, if appropriate, the child him or herself. Id.

Another procedural requirement, the so-called “Written Prior Notice” provision, lies at the heart of this case. That provision directs local educational agencies to issue a Written Prior Notice to the parents of an IDEA-eligible child whenever they “proposef ]” or “refuse[ ]” to initiate or change how they deliver that child’s FAPE, including when they change that child’s IEP. 20 U.S.C. § 1415(b)(3). As relevant here, these notices must include “a description of the action proposed or refused by the agency” and “an explanation of why the agency proposes or refuses to take the action.” Id. § 1415(c)(1).

B. Origins of the Current Dispute

O.M. began her third-grade year at Fal-mouth Elementary School in September 2013. At that time, O.M.’s IEP team set about designing a new IEP that would take effect after her then-current IEP expired in October 2013. Ms. M., who had often expressed to Falmouth her concerns with O.M.’s literacy instruction at the school, initially requested that the IEP team hold a meeting to discuss her daughter’s reading development in depth. Fal-mouth hosted the meeting on October 3, 2013, after which it issued a Written Prior Notice to Ms. M. indicating that the School Department proposed “the introduction of a structured reading program to [O.M.]’s IEP.” Ms. M. nonetheless reiterated her dissatisfaction with O.M.’s literacy instruction in later emails, demanding to know whether her current reading programs were based on scientific research, if her teachers held the requisite instructional qualifications in those programs, and how Falmouth proposed to measure her progress in them. See 20 U.S.C. § 1414(d)(l)(A)(iv) (noting that IEP services must be based on, to the extent practicable, “peer-reviewed research”); 34 C.F.R. § 300.320(a)(4) (stating the same).

The IEP team met again on October 31, 2013, at which time Falmouth proposed that O.M. be taught using a specific structured reading program called SPIRE. In the Written Prior Notice generated after that meeting and sent to Ms. M. on November 5, 2013, Falmouth similarly stated that it “proposed” (emphasis ours) to provide O.M. with sixty minutes of daily SPIRE instruction. That same day, however, Falmouth received a copy of a special education due process hearing request filed by Ms. M. with the Maine Department of Education. 20 U.S.C. § 1415(b)(6) (giving child’s parents a right to bring a complaint to the state’s educational agency regarding any matter relating to the child’s IEP or a school’s provision of a FAPE). The hearing request maintained, in part, that O.M.’s current reading program was inappropriate under the IDEA. Ms. M. also wrote a letter, dated November 14, 2013, to Falmouth Special Education co-directors Polly Cowell and Gene Kucinkas identifying “several errors” in the November 5th Written Prior Notice and stating that she had “learned that the SPIRE program [was] not an evidenced based program, which ma[de] it inappropriate since it [wasj not researched based.” To emphasize the point, she also noted that she was “NOT in agreement with the proposal to use [SPIRE] for [O.M.].”

In response, Mr. Kucinkas proposed that Falmouth would retain Dr. Christopher Kaufman, a psychologist, to evaluate O.M.’s cognitive and academic abilities and offer suggestions for the IEP team to consider. Two days later, Falmouth sent O.M.’s new IEP, developed after the October 31 meeting, to Ms. M. The IEP did not identify or discuss the SPIRE system, and instead stated that Falmouth would provide O.M. with eight hours and forty-five minutes of “Specially Designed Instruction” in “Literacy & Math” per week.

Mr. Kucinkas and Ms. M. eventually met in person on December 13, 2013, when they agreed that Falmouth would provide O.M. with certain educational and evaluative services. Along with several other promises not relevant here, Falmouth agreed to have Drs. Kaufman and Gretchen Jefferson fully evaluate O.M.’s educational program. Mr. Kucinkas memorialized this agreement in a letter dated that same day. The letter, however, did not mention the SPIRE system. Apparently satisfied that her demands had been met, Ms. M. • then voluntarily dismissed her hearing request with prejudice on December 17, 2013.

Despite her previous reservations and communications with Mr. Kucinkas, Ms. M. apparently, and mistakenly, assumed that Falmouth was providing her daughter with SPIRE instruction. Falmouth, however, had abandoned its consideration of SPIRE after receiving Ms. M.’s November 14th letter objecting to its use. Ms. M. testified that she did not realize that Fal-mouth had made this decision until March 28, 2014, when O.M.’s IEP team met to discuss the results of Dr. Kaufman’s and Dr. Jefferson’s evaluations on March 28, 2014.

On April 17, 2014, Ms. M. told Falmouth that O.M. would start attending private tutoring sessions with an instructor trained in another structured reading system called the Lindamood Phoneme Sequencing (“LiPS”) program, a step taken in accordance with Dr. Kaufman’s evaluation. On May 1, 2014, Falmouth reconvened the IEP team to again discuss O.M.’s reading issues. At the meeting, Fal-mouth declined Ms. M.’s request that it provide O.M. with LiPS instruction and again agreed to provide O.M. with SPIRE instruction, but not until the start of her fourth grade year in September 2014.

C. Procedural History

Ms. M. filed another due process hearing request on June 13, 2014 in which, among many other concerns and contentions, she chastised Falmouth for not providing her daughter with SPIRE instruction. Falmouth’s failures, she continued, amounted to an IDEA violation because Falmouth had denied O.M. a FAPE.

The administrative officer who first heard Ms. M.’s complaints assumed that the contents of the October 31st Written Prior Notice were part of O.M.’s IEP, determined that the IEP called for SPIRE instruction, and that Falmouth had thus violated the IEP by not providing her with such instruction. He also determined, however, that this failure constituted a procedural violation that had not harmed O.M. in any educational sense. Consequently, the officer denied Ms. M.’s claim and ruled that Falmouth had provided O.M. with a FAPE. A magistrate judge, after Ms. M.’s submission of the case for review in federal court, issued a report and recommended decision that essentially upheld this ruling.

Following Ms. M.’s objection to the magistrate judge’s report and recommendation, the case proceeded to the district court. Notably, Falmouth did not file an objection to any part of the magistrate judge’s report, including its conclusion that SPIRE formed a part of O.M.’s IEP. After its de novo review of the case, the court entered an order agreeing with the hearing officer’s and magistrate judge’s findings that Falmouth’s SPIRE proposal should be read into O.M.’s IEP, noting that Ms. M.’s objection to providing SPIRE did not justify its failure to provide it as part of the IEP. The court disagreed, however, with their ultimate determinations that this failure constituted a procedural, and not a substantive, violation of her IEP and the IDEA. The court went on to conclude that the violation was material in nature and entered judgment for Ms. M. totaling $4,111.25, reflecting the cost of the LiPS tutoring sessions from May 5, 2014 to August 30, 2014.

II. Discussion

Falmouth’s principal argument on appeal is that the SPIRE reading system was never a part of O.M.’s IEP because the IEP team only mentioned its use in the Written Prior Notice generated after the October 31st meeting, a document which proposed, but did not promise, that the School Department would provide specific educational programs to O.M. We agree, and therefore conclude that Fal-mouth complied with the terms of O.M.’s IEP and committed no IDEA violation.

A. Waiver under the Federal Magistrates Act

To start, Ms. M. argues that Fal-mouth waived its argument that O.M.’s IEP did not call for SPIRE instruction after it did not object to the magistrate judge’s recommended finding to the contrary. The relevant section of the Federal Magistrates Act states that:

Within fourteen days after being served with a copy [of the proposed findings and recommendations of the United States Magistrate Judge], any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.

28 U.S.C. § 636(b)(1). “Absent objection ... [a] district court has a right to assume that [the affected party] agree[s] to the magistrate’s recommendation.” Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir. 1985), cert. denied, 474 U.S. 1021, 106 S.Ct. 571, 88 L.Ed.2d 556 (1985). To that effect, “only those issues fairly raised by the objections to the magistrate’s report are subject to review in the district court and those not preserved by such objection are precluded on appeal.” Keating v. Sec’y of Health & Human Servs., 848 F.2d 271, 275 (1st Cir. 1988).

According to Ms. M., Falmouth had notice that its failure to object to this aspect of the magistrate judge’s recommended decision would result in such waiver since the decision contained a “notice” summarizing these rules and principles. Relying in part on our decision in School Union No. 37 v. United National Insurance Co., 617 F.3d 554 (1st Cir. 2010), Ms. M. argues that Falmouth made a “strategic decision” to forego any challenge to the IEP’s content at the district court level and that we should restrict our review for clear error, despite the fact that Falmouth won under the magistrate judge’s reasoning but then lost after the district court’s de novo review of the entire case. We disagree.

In School Union No. 37, a school sued its insurer after the insurer refused to indemnify it for costs incurred while successfully defending an IDEA case. Id. at 558. Both parties filed cross-motions for summary judgment, after which a magistrate judge recommended that summary judgment be granted in the insurer’s favor. Id. The magistrate judge concluded that although the underlying IDEA litigation involved a “Wrongful Act” triggering the school’s insurance policy, the insurer properly denied the claim because the policy excluded coverage for claims “seeking [relief] other than money damages,” which included claims for reimbursement under the IDEA. Id (alteration in original). The school timely objected to the magistrate’s recommendations, but the insurer did not. Id. Soon after, the district court adopted the magistrate’s recommendation in full and granted the insurer’s motion for summary judgment. Id. On appeal, the insurers again defended against the school’s claims by arguing that there had been no “Wrongful Act.” Rh- at 563. However, we “deem[ed the] argument forfeited and decline[d] to address it” because the insurer did not object to that aspect of the magistrate’s recommendation. Id. at 564.

Despite Ms. M.’s best efforts to convince us otherwise, hers is a different case presenting different factual circumstances which warrant a different result. Falmouth successfully defended against Ms. M.’s claims before the hearing officer and the magistrate judge, and therefore had no immediate reason to appeal. The record also indicates that once Ms. M. appealed the magistrate judge’s recommendation, Falmouth did “fairly raise” the issue when it notified the district court, albeit in response to Ms. M.’s own objections, that it challenged “the Magistrate’s Recommended finding ... that the failure to provide SPIRE was an IDEA violation.” The district court, as evidenced by its “de novo determination of all matters adjudicated by the Recommended Decision,” knew of this challenge as well since it expressly agreed with the magistrate judge that O.M.’s IEP “specified the] use of the SPIRE literacy program.” Ms. M. v. Falmouth Sch. Dep’t, No. 2:15-CV-16-DBH, 2016 WL 3072250, at *1 (D. Me. May 31, 2016).

This conclusion also makes sense when Falmouth’s arguments are compared with those of insurer in School Union No. 37. In that case, the insurer tried to bar the school’s recovery by raising a discrete challenge to a conceptually separate provision of the indemnification policy despite not objecting to the magistrate judge’s previous rejection of that challenge. Sch. Union No. 37, 617 F.3d at 564. By contrast, it is far more difficult for us to evaluate Ms. M.’s principal claim, that her daughter did not receive a FAPE, without examining the scope and content of O.M.’s IEP.

Our reasoning is also consistent with the Federal Magistrate Act’s general purpose, which “is to relieve courts of unnecessary work.” Borden v. Sec’y of Health & Human Servs., 836 F.2d 4, 6 (1st Cir. 1987) (quoting Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir. 1980)). Though the Act’s waiver rule usually furthers that purpose by narrowing the number of issues between parties before a case gets to the district court, the rationale for applying the rule on appeal “dissipatefe]” once the district court, as it did in this case, considers and reviews the purportedly waived argument. Patterson v. Mintzes, 717 F.2d 284, 286 (6th Cir. 1983).

We also recognize that a strict application of the waiver rule in cases like this one would lead to rather harsh results for appellants. Unlike in School Union No. 37, where the district court adopted every aspect of the magistrate judge’s recommendation, the district court in this case only adopted part of the magistrate’s recommendation and disagreed with its end conclusion. Given this drastic change in outcome, the prudence of applying the waiver rule “dissipates” at an even more rapid rate. See McCarthy v. Manson, 714 F.2d 234, 237 n.2 (2d Cir. 1983) (“If the magistrate’s decision is rejected or substantially modified, the parties may object to all or part of that judgment and hence preserve specific issues for appeal.”).

For these reasons, we conclude that Fal-mouth “fairly raised” its argument disputing SPIRE’s presence in O.M.’s IEP for the district court’s consideration and has not waived its arguments to that effect on appeal.

B. The IEP’s Content

Turning to the merits, we must decide whether O.M.’s IEP specifically called for SPIRE instruction. Ms. M. characterizes this as a question of fact, and claims the district court’s affirmative answer to this question is therefore subject to clear error review. However, the district court ultimately determined that SPIRE was in the IEP only after it considered two predicate questions of law — whether the term “Specially Designed Instruction” is ambiguous and, assuming the term is ambiguous, whether a fact finder may resort to extrinsic evidence to resolve that ambiguity. Accordingly, we review both of these questions de novo. Doe v. Cape Elizabeth Sch. Dist., 832 F.3d 69, 76 (1st Cir. 2016).

Tackling these questions in order, we first note the IDEA requires that each qualifying child’s IEP contain a “statement of the special education and related services and supplementary aids and services, based on peer-reviewed research to the extent practicable, to be provided to the child.” 20 U.S.C. § 1414(d)(l)(A)(i)(IV). Though the “statement” in O.M.’s particular IEP, which indicated that she would receive “Specially Designed Instruction” in reading and math, appears vague in the abstract, its precise meaning is made clear when viewed alongside complementary sections of the IDEA, Maine-specific rules and regulations carrying out the state’s IDEA obligations, and other sources of regulatory guidance. See Auer v. Robbins, 519 U.S. 452, 462, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) (explaining that courts may look to the agency’s interpretation of its own regulations when interpreting a statute and its implementing regulations).

For instance, rules within the Maine Unified Special Education Regulations (“MUSER”) expressly categorize “Specially Designed Instruction” as a distinct type of special education service, noting that it refers to “instruction provided to children ... by an appropriately qualified special education professional or an appropriately authorized and supervised educational technician consistent with a child’s IEP.” Me. Code R. 05-071, Ch. 101 § X.2(A)(2). At the same time, the IDEA does not require schools to include specific instructional methods in an IEP. See 20 U.S.C. § 1414(d)(l)(A)(ii)(I) (stating that the IDEA shall not be construed to require “that additional information be included in a child’s IEP beyond what is explicitly required in this section”). While it is the U.S. Department of Education’s “longstanding position” to allow IEP teams to address specific instructional methods in IEPs, there is no requirement that they do so. See 71 Fed. Reg. 46,540, 46,665 (Aug. 14, 2006) (“There is nothing in the Act that requires an IEP to include specific instructional methodologies. Therefore, consistent with [the IDEA], we cannot interpret ... the Act to require that all elements of a program provided to a child be included in an IEP.”). Thus, the exclusion of any particular reading methodology in O.M.’s IEP appears deliberate and suggests that the IEP team intended to give Falmouth Elementary School officials a degree of flexibility when implementing- O.M.’s educational program, subject to Section X.2(A)(2)’s constraints.

Construing the term in this way is also consistent with the inherent design of the IDEA. The statute, for instance, refers to the IEP as the agreement embodied by the final, formal written document and not, as Ms. M.’s argument implies, any tentative agreement reached by the IEP team. 20 U.S.C. § 1414(d)(l)(A)(i) (stating that “[t]he term ... TEP’ means a written statement” (emphasis added)); 34 C.F.R. § 300.324(a)(4)(i) (stating that any change or modification to a child’s IEP should be made via a “written document” (emphasis added)).

The IEP document differs, for instance, from the Written Prior Notice, which the statute identifies as “a description of the action[s] proposed ... by the [school and educational agency].” 20 U.S.C. § 1415(c)(1)(A). As opposed to the IEP, which is meant to present “a clear record of what placements and educational services were offered,” C.G. ex rel. A.S. v. Five Town Cnty. Sch. Dist., 513 F.3d 279, 285 (1st Cir. 2008), the Written Prior Notice serves to protect parents’ rights under the IDEA by enabling them to contribute to the IEP development process and to later make informed decisions regarding whether to challenge an educational agency’s discretionary choices in a later due process hearing, see, e.g., M.B. ex rel. Berns v. Hamilton Se. Schs., 668 F.3d 851, 861 (7th Cir. 2011); J.W. ex rel. J.E.W. v. Fresno Unified Sch. Dist., 626 F.3d 431, 459 (9th Cir. 2010).

After viewing the IEP and Written Pri- or Notice requirements in tandem, it is evident that the IDEA envisions the IEP as an agreed-to general framework of a child’s educational program that provides schools with a certain degree of flexibility in accomplishing the outlined objectives, while a Written Prior Notice is meant to spell out more specific, but not binding, proposals for implementing that framework.

We do not mean to suggest that a fact finder cannot or should not resort to extrinsic evidence to determine the meaning of an IEP term that is actually ambiguous. However, we need not now identify what makes an IEP term ambiguous or whether a fact finder should look to extrinsic evidence when encountering such an ambiguity. Rather, we simply hold that in light of the statutory and regulatory background relevant to this case, the meaning of the term “Specially Designed Instruction” is clear enough such that our interpretive task does not require us to resort to other extrinsic evidence.

III. Conclusion

Since we hold that O.M.’s IEP did not specify that she was to receive SPIRE instruction during her third-grade year, and because Ms. M. does not contend that Falmouth violated her daughter’s IEP in any other way, it necessarily follows that Falmouth did not breach the IEP’s terms and thus did not violate O.M.’s right to a FAPE. Accordingly, we REVERSE the district court’s determination that Fal-mouth violated O.M.’s IEP and VACATE the accompanying damages award. Each party shall bear its own costs.

      . SPIRE is a teacher directed, systematic, multisensory, synthetic phonics literacy instructional program developed by Orton-Gill-ingham.

      . See 20 U.S.C. § 1401(9) (defining the term "free appropriate education”); 20 U.S.C. § 1412(a)(1)(A) (stating that “[a] free appropriate public education is available to all children with disabilities residing in [a] State between the ages of 3 and 21, inclusive”); 34 C.F.R. § 300.8(a)(1) (defining "[c]hild with a disability” as including a child with "multiple disabilities” and "who, by reason thereof, needs special education and related services”); 34 C.F.R. § 300.8(c)(7) (defining "multiple disabilities” as "concomitant impairments ... the combination of which causes such severe educational needs that they cannot be accommodated in special education programs solely for one of the impairments”).

      . A state receiving federal funding under the IDEA must offer a FAPE to every disabled child within its jurisdiction. See 20 U.S.C. § 1412(a). Here, it is uncontested that Maine is such a state and that O.M. was entitled to a FAPE during her third-grade year at Fal-mouth Elementary School.

      . The document notes that Falmouth sent the IEP to Ms. M. on November 20, 2013, but also states that its effective start date was November 4, 2013.

      . The magistrate judge and district judge agreed that Ms. M. waived all her claims under the IDEA which arose between September 1, 2013 and December 17, 2013. Ms. M. does not dispute these determinations on appeal.

      .Dr. Kaufman nonetheless observed in his evaluation that "nothing done by [O.M.’s literacy instructor] ... would be either inappropriate or significantly inconsistent with the types of reading practice that’s done for students who have reading disorders, regardless of the nature of their disability condition.”

      . See also Me. Code R. 05-071, Ch. 101 § VI.2.I (noting that if the IEP team cannot reach a consensus on the IEP's terms, the local school department "must provide the parents with a prior written notice of the school’s proposals or refusals, or both, regarding their child’s educational program, and the parents have the right to seek resolution of any disagreements by initiating an impartial due process hearing or a State complaint investigation”).

      . For example, it is unnecessary for us to determine what role Ms. M.’s November 14th letter, which noted her objections to the SPIRE program, should play in our analysis.

      . In light of our finding that the IEP is not ambiguous, the Second Circuit’s recent decision in A.M. v. New York City Dep't of Educ., 845 F.3d 523 (2d Cir.2017) is irrelevant to our analysis.

      . Section 1415 of Title 20 allows prevailing defendants in IDEA cases to recover fees from the parent or the attorney of a parent in certain rare circumstances. For instance, a prevailing school district may recover attorney’s fees against the parent’s attorney where the complaint is "frivolous, unreasonable, or without foundation.” 20 ■ U.S.C. § 1415(i)(3)(B)(i)(II). Attorney's fees may also be awarded against a parent or their attorney "if the parent's complaint or subsequent cause of action was presented for any improper purpose.” Id § 1415(i)(3)(B)(i)(III). Fal-mouth has not asked that we invoke these provisions. In the absence of any argument to that effect, we therefore decline to apply them to this case.


author: LYNCH, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Aurelio J. LLANOS-FALERO, Defendant, Appellant.
    No. 15-1070
    United States Court of Appeals, First Circuit.
    January 30, 2017

      José R. Olmo-Rodríguez, San Juan, PR, on brief for appellant.
    Mainon A. Schwartz, Assistant United . States Attorney, Mariana E. Bauzá-Al-monte, Assistant United States Attorney, Chief, Appellate Division, and Rosa Emilia Rodríguez-Vélez, United States Attorney, on brief for appellee.
    Before HOWARD, Chief Judge, TORRUELLA and LYNCH, Circuit Judges.
   LYNCH, Circuit Judge.

The district court sentenced Aurelio Llanos-Falero to 137 months of imprisonment after he pled guilty to bank robbery, see 18 U.S.C. §§ 2113(a), 2113(d), and 2, and to brandishing a firearm during and in relation to a crime of violence, see id. §§ 924(c)(1)(A)(ii), and 2. The district court ordered that this sentence run consecutively with Llanos-Falero’s sentences for Puerto Rico law convictions for domestic assault and illegal possession of a subma-chine gun. Llanos-Falero appeals the district court’s sentence, arguing that the sentencing judge failed to make the proper inquiry into the effects of Llanos-Falero’s medication on his competence to enter a plea, that the sentencing judge failed to warn Llanos-Falero before accepting his plea that his federal sentence might be imposed consecutively with his Puerto Rico sentences, and that the consecutively imposed federal sentence is unreasonable. We affirm the sentence.

I.

In June 2011, while serving a four-year probation sentence for a robbery, Llanos-Falero conspired with at least two associates to rob a Banco Santander de Puerto Rico branch in Cabo Rojo, Puerto Rico. As admitted in his plea agreement, he “selected the branch, conducted surveillance on the bank, planned the method of the robbery, including the use and carrying of a firearm in the presence of customers and employees, as well as the entry and egress points to and from the bank.”

On June 24, 2011, an associate of Llanos-Falero drew police away from the vicinity of the bank with a bogus 911 call while Llanos-Falero drove two other associates to the bank. The two associates entered the bank, one of them took out a loaded 12-gauge shotgun, and they ordered those inside the bank to the floor. They stole approximately $38,813 of deposits insured by the Federal Deposit Insurance Corporation. Because one of the bank employees was able to activate the bank’s silent alarm, the two associates were arrested about' ten minutes after the start of the robbery. Initially, they did not disclose Llanos-Falero’s participation in the robbery. As a result, Llanos-Falero was not arrested at that time in connection with the robbery.

After the robbery and before being charged with federal crimes for his participation in it, Llanos-Falero committed a number of other offenses. In October 2012, he was sentenced by a Puerto Rico court to 1 year and 9 months of imprisonment for two counts of domestic violence. In 2013, he pled guilty to charges stemming from illegal possession of a submachine gun in 2012 and was sentenced by a Puerto Rico court to a further 7 years of incarceration.

Llanos-Falero was indicted for federal crimes related to the bank robbery in April 2014, while serving his Puerto Rico law sentences. The indictment charged three counts: an aiding and abetting violation of armed robbery, see 18 U.S.C. §§ 2113(a), 2113(d), and 2 (Count One); an aiding and abetting violation of brandishing a firearm during and in relation to a crime of violence, see id. §§ 924(c)(l)(A)(ii), and 2 (Count Two); and being a felon in knowing possession of a firearm in interstate commerce, see id. §§ 922(g)(1), 924(a)(2) (Count Three).

Pursuant to a plea agreement, Llanos-Falero pled guilty to the first two counts on July 3, 2014. The parties recommended, “[ajfter due consideration of the relevant factors enumerated in 18 U.S.C. § 3553(a),” an adjusted advisory Sentencing Guidelines offense level of 22 for Count One, and did not stipulate as to criminal history category. A Pre-Sentence Investigation Report, prepared for Llanos-Fale-ro’s sentencing, concluded that Llanos-Falero had 11 criminal history points and a criminal history category of V. The plea agreement recommended “a sentence of 72 months as to Count One and 60 months for Count Two to be served consecutively for a total sentence of 132 months, or 11 years of imprisonment.” The plea agreement further stated that “[t]he parties jointly recommend[ed], as to Count One, that this federal sentence be imposed to run concurrently with defendant’s Commonwealth of Puerto Rico sentence currently being served.”

Through the plea agreement, Llanos-Falero “knowingly and voluntarily waive[d] the right to appeal the judgment and sentence in [his federal] case, provided that [he was] sentenced in accordance with the terms and conditions set forth in the Sentence Recommendation provision of [the] Plea Agreement.” He further acknowledged that he was “aware that his sentence [wa]s within the sound discretion of the judge and of the advisory nature of the Guidelines”; that “the [district court] [wa]s not a party to this Plea and Forfeiture Agreement and thus [wa]s not bound by this agreement or the sentencing calculations and recommendations contained”; that “the [district court] ha[d] jurisdiction and authority to impose any sentence within the statutory maximum set for the offense to which [he] [wa]s pleading guilty”; that “the [district court] m[ight] accept or reject the Plea and Forfeiture Agreement”; and that “[s]hould the Court impose a sentence up to the maximum established by statute, [he] c[ould not], for that reason alone, withdraw his guilty plea, and w[ould] remain bound to fulfill all of the obligations under this Plea and Forfeiture Agreement.”

On July 3, 2014, the district court held a change-of-plea hearing. In the course of the hearing, the sentencing judge asked if Llanos-Falero had been recently treated for a mental illness. Llanos-Falero responded that he had been treated for bipolar disorder and stress. In response to the sentencing judge’s questions, Llanos-Fale-ro also said that he had been prescribed “Elavil, Vistaril, and another” medication, that he continued to take those medications twice a day, and that he had taken them the morning of the hearing. When asked “Do you feel okay today?” by the-sentencing judge, immediately after that colloquy, Llanos-Falero responded “Yes, I do, sir.” The sentencing judge asked next “Can you make a voluntary and knowing plea?” to which Llanos-Falero replied ‘Tes, I can, sir.”

In response to further questioning, Llanos-Falero said that he had been treated for addiction to marijuana and Percocet, but had stopped treatment around two and a half months before the hearing, and that he had last used marijuana or Percocet approximately two years prior. He confirmed that he was taking no other medications besides the ones he had already mentioned and that he had not consumed alcohol in the past 24 hours. When asked “what is it that you want to do today here in court?” Llanos-Falero responded “I want to plead guilty.” The sentencing judge asked Llanos-Falero’s counsel if he had any doubts as to Llanos-Falero’s “competence to plead at this time,” to which counsel responded “No, your hon- or.” The sentencing judge concluded that “[b]ased on his answers to my questions and his appropriate demeanor, I find ... Aurelio Llanos-Falero to be competent to enter his plea of guilty.”

The sentencing judge also asked if Llanos-Falero’s counsel had “fully explained] the plea agreement” to Llanos-Falero and whether counsel was satisfied as to Llanos-Falero’s understanding of the plea agreement, and counsel responded that he had explained the plea agreement and that he was satisfied as to Llanos-Falero’s understanding of it. The sentencing judge asked Llanos-Falero repeatedly whether he understood that the judge could enter a sentence “that is either more severe or less severe than any sentence you may anticipate, or even the sentence being recommended in the plea agreement, except that, as to Count Two, I cannot sentence you for anything less than [60] months.” Llanos-Falero responded that he did understand. The sentencing judge concluded:

It’s the finding of the Court in the case of the United States versus Aurelio Llanos-Falero that Mr. Llanos is fully competent and capable of entering an informed plea, that he is aware of the nature of the charges and the consequences of the plea, and that his plea of guilty is a knowing and voluntary one, supported by an independent basis in fact containing each of the essential elements of the offense.
Mr. Llanos’ plea is, therefore, accepted, and he is now adjudged guilty of that offense.

After submission of the Pre-Sentence Investigation Report, the court delivered Llanos-Falero’s sentence on December 2, 2014. The sentencing judge noted that “[t]he parties had agreed on a sentence of 72 months as to Count One and 60 months as to Count Two, for a total of 132 months of imprisonment, which f[ell] below the [G]uideline[s] range reflected in the [P]re-[SJentence [Investigation [RJeport.” The court concluded that “an appropriate sentence [wa]s at the lower end of the [G]uideline[s] range for Count One, plus 60 months for Count Two.” The court sentenced Llanos-Falero to “a term of 77 months as to Count One and 60 months as to Count Two, to be served consecutive to each other, for a total of 137 months.” The sentencing judge further ordered' that “[t]he total amount of imprisonment w[ould] run consecutively to any prior criminal conviction imposed by [Puerto Rico].” The court also sentenced Llanos-Falero to two concurrent five-year terms of supervised release. When the court asked Llanos-Falero’s counsel whether he had anything to add, counsel stated: “Mr. Llanos is being sentenced to a little more than four years [more] than his co-Defendants, [at least one of whom] also planned the robbery with him.... In addition, he [would] not be standing before this Court if he had not admitted [his guilt] because that was the main evidence.” When the sentencing judge observed “This is something that you agreed to,” counsel replied “I am just asking for a concurrency with Count One with the [Puerto Rico] charges.” The court denied the request. This appeal followed.

II.

Llanos-Falero raises three issues on appeal. He argues that the district court violated Rule 11 of the Federal Rules of Criminal Procedure by failing to inquire sufficiently into the effect of Llanos-Falero’s medication on his capacity to make an intelligent and voluntary plea. See Fed. R. Crim. P. 11. He further argues that the sentencing court committed a Rule 11 violation by failing to “warn[] or advise[] [him] that it had discretion to impose the sentence to run concurrently or consecutively.” Finally, he argues that the sentence imposed is unreasonable because of its difference in duration from the sentence proposed in the plea agreement and the district court’s failure to take into account Llanos-Falero’s admission of guilt and the effect of depression on his actions. All three claims fail. We address them in turn.

The parties agree that we should review Llanos-Falero’s claim as to the district court’s failure to inquire sufficiently into his medications under a plain error standard. Under this standard, Llanos-Fa-lero must show “(1) that an error occurred (2) which was clear or obvious and which not only (8) affected the defendant’s substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings.” United States v. Padilla, 415 F.3d 211, 218 (1st Cir. 2005) (en banc) (quoting United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)). He cannot meet this rigorous standard. First, Llanos-Falero makes little “attempt to meet the four-part test” for plain error, and his sparse briefing risks waiver of the issue. United States v. Pabon, 819 F.3d 26, 33 (1st Cir. 2016); see also United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). But even if the claim were properly presented, it would fail.

Llanos-Falero relies on United States v. Parra-Ibañez, 936 F.2d 588 (1st Cir. 1991). In that case, during a change-of-plea hearing, the district court discovered through questioning that the defendant had been under treatment for a “mental or emotional condition” and had taken Ativan, Halcion, and Restoril within 24 hours of the hearing. Id. at 591. There, “[t]he [district] court did not undertake to explore whether any of the medications identified by [the defendant] affected his ability to enter a voluntary and intelligent plea,” kL although “at other points in the hearing, [the district court did] inquire as to [the defendant’s] general ability to comprehend the proceedings,” including asking the defendant’s counsel and the prosecution whether they had any doubts as to the defendant’s competence to plead, id. at 591-92. Earlier, the court had held a competency hearing and determined on the basis of psychiatric testimony that although the defendant “had undergone psychiatric treatment and had a history of drug abuse,” he was competent to plead guilty. Id at 591.

We held that although the appellant had made no objection, M. at 593, the district court had been “obligated by Rule 11 to ask further questions,” such as “what dosages [of medication the defendant] had ingested and what effects, if any, such medications might be likely to have on [the defendant’s] clear-headedness,” id. at 596. We have clarified since that the reversible error in Parra-Ibañez concerned the failure to make any further inquiry whatsoever. See United States v. Kenney, 756 F.3d 36, 46-47 (1st Cir. 2014); Cody v. United States, 249 F.3d 47, 53 (1st Cir. 2001) (emphasizing that the sentencing judge in Parra-Ibañez “failed to follow up with any question whatsoever about whether the defendant’s medication affected his competence to plead”); Miranda-González v. United States, 181 F.3d 164, 166 (1st Cir. 1999) (“The absolute failure to investigate further once apprised of the recent ingestion of drugs doomed the plea entered by the defendant! ] in Parra-Ibañez.... ”).

Here, the district court’s colloquy with Llanos-Falero was enough to satisfy Parra-Ibafiez. The district court, upon learning that Llanos-Falero was under medication taken twice daily and that he had taken dosages that morning, immediately asked “Do you feel okay today?” to which Llanos-Falero answered “Yes, I do, sir”; and “Can you make a voluntary and knowing plea?” to which Llanos-Falero responded ‘Tes, I can, sir.” The colloquy reads naturally as an inquiry into whether the medications Llanos-Falero had taken before the hearing impaired his ability to plead. In addition, after receiving assurances from Llanos-Falero’s attorney that the attorney had no doubts as to Llanos-Falero’s competence to plead, the sentencing judge concluded that Llanos-Falero was competent “[b]ased on his answers to my question and his appropriate demean- or.”

We have held that similar questions, combined with explicit findings as to the defendant’s demeanor, meet the standards of Rule 11. See United States v. Morrisette, 429 F.3d 318, 322-23 (1st Cir. 2005); see also United States v. Rodríguez-León, 402 F.3d 17, 25 n.8 (1st Cir. 2005) (refusing to “second-guess” district court’s judgment based on defendant’s demeanor). Indeed, it is difficult to imagine plain error where, as here, the district court, upon learning that the defendant had taken medication, immediately (1) asked the defendant if he was all right and received a response that he was; (2) received further assurances from defendant’s counsel — ironically, the same attorney who now raises this issue on appeal — as to the defendant’s competence to plead; and then (3) articulated a conclusion that the defendant was competent based on those responses and the defendant’s demeanor during the colloquy. The colloquy here clearly' met Rule ll’s requirements.

The parties also agree that Llanos-Falero’s claim that the district court violated Rule 11 by not sufficiently informing him of the consequences of his pleading guilty is subject to plain error review. Specifically, Llanos-Falero contends that “[t]he failure of the district court to warn, or advise, Llanos-Falero that it had discretion to impose the sentence to run concurrently or consecutively denied him the opportunity to make a knowing and voluntary plea of guilt.” As with his first claim, Llanos-Falero’s failure to elaborate clearly how this purported lapse by the district court meets the four-part test for plain error risks waiver. See Pabon, 819 F.3d at 33. Regardless, the claim fails.

Rule 11 requires the sentencing court to “advise the defendant that the defendant has no right to withdraw the plea if the court does not follow the recommendation or request.” Fed. R. Crim. P. 11(c)(3)(B). The district court made that advisement and Llanos-Falero said that he understood it. Moreover, Llanos-Falero’s plea agreement also explained that concept and required Llanos-Falero to acknowledge that even if the district court sentenced him to the statutory máximums'for Counts One and Two (twenty-five years and life imprisonment, respectively), he could not withdraw a guilty plea “for that reason alone.” Given the information in the plea agreement and the disclaimers made by the district court at the change of plea hearing, both of which Llanos-Falero acknowledged, Llanos-Falero cannot show “a reasonable probability that, but for [the error claimed], the result ... would have been different.” Padilla, 415 F.3d at 221 (first alteration in original) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 82, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)).

Finally, Llanos-Falero challenges the sentence imposed on the grounds that it is unreasonably longer than the sentence proposed by the plea agreement and that it did not take into account Llanos-Fale-ro’s admission of guilt or his assertion that he was severely depressed when he participated in the robbery. The parties dispute the applicable standard of review, but we need not decide that issue, because Llanos-Falero’s claim fails even under abuse of discretion review, which is the most appellant-friendly standard that could apply- '

The district court permissibly exercised its discretion when it ordered Llanos-Falero’s federal sentence to run consecutively with his Puerto Rico sentences, resulting in a sentence eight years longer than the one proposed in the plea agreement. Both the Guidelines and our case law recognize that a sentencing judge generally has the discretion to impose a new sentence consecutively with a previous undischarged sentence. See U.S.S.G. § 5G1.3(d); United States v. Carrasco-de-Jesús, 589 F.3d 22, 27 (1st Cir. 2009).

The district court imposed a sentence “at the lower end of the [G]uideline[s] range for Count One, plus [the mandatory minimum of] 60 months for Count Two,” to be served consecutively with Llanos-Falero’s Puerto Rico sentences. There is no evidence in the record that Llanos-Falero's Puerto Rico convictions for possession of a submachine gun and for domestic violence have any relation tp his federal convictions related to the bank robbery, nor does Llanos-Falero suggest any connection. At the final sentencing hearing, the district court gave a lengthy recitation of the details of the offenses, the findings in the Pre-Sentence Investigation Report, and the rationale behind the Guidelines calculation for Llanos-Fa-lero’s sentence, and concluded that the Guidelines calculation in the Pre-Sen-tence Investigation Report “satisfactorily refleet[ed] the components of Mr. Llanos’ offense by considering its nature and circumstances,” an inquiry that plainly fulfilled its obligation to consider the factors enumerated in 18 U.S.C. § 3553(a). The district court’s decision to impose the sentence consecutively with Llanos-Fale-ro’s Puerto Rico sentences was arrived at through the proper procedure, was entirely reasonable, and was clearly not an abuse of discretion.

Llanos-Falero’s argument that the district court committed reversible error because it “did not take into account the fact that if [he] had not admitted [to] the crime, he would have never been convicted and the fact that the crime was [the] result of aberrant behavior caused by a severe depression” is meritless. As with his other arguments, this claim is conclusory and underdeveloped: Llanos-Falero gives no explanation as to why and how these factors would have affected the district court’s calculus. And the record undercuts the claim. Llanos-Falero made a partial confession shortly after being indicted, and he agreed in his plea agreement that the government could obtain a conviction “by physical and documentary evidence, including, but not limited to testimony, photographs, videos, documents, toll records, statements, and other physical evidence.”

In any. event, “these potentially mitigating factors were before the district court at sentencing,” and “[t]here is not the slightest reason to think that the district court overlooked them.” United States v. Cortés-Medina, 819 F.3d 566, 570-71 (1st Cir. 2016). The sentence imposed was well within the Guidelines range and deserves “a presumption of reasonableness.” Id. at 572 (quoting Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)). In these circumstances,. Llanos-Falero “must adduce fairly powerful mitigating reasons and persuade us that the district court was unreasonable in balancing pros and cons.” Id. (quoting United States v. Clogston, 662 F.3d 588, 593 (1st Cir. 2011)). He has not satisfied this burden.

HL

We affirm the district court’s sentence.

      . It is unclear how or when authorities became aware of Llanos-Falero’s role in the robbery. Llanos-Falero did admit his involvement one day after he was indicted.

      . The government argues that we could dismiss this appeal because Llanos-Falero "fails to explain why this appeal should be entertained, given the existence of a waiver-of-appeal clause in the plea agreement he signed.” The government does concede, however, that if Llanos-Falero had addressed the issue, he could have made a reasonable argument that the waiver clause is inapplicable, because it was contingent on his being sentenced in accordance with the plea agreement, and the sentence imposed departed from that recommendation. Llanos-Falero argues in turn that he did not address the appellate waiver clause "because it is patently inapplicable” in light of the sentence imposed, and so he had no obligation to discuss it. We need not resolve this dispute. Because the issues Llanos-Falero raises on appeal all fail, we bypass the appellate-waiver issue and proceed to the merits.

      . The fact that the district court did not inquire as to the identity of the third medication does not change our result:
      "[TJhere is certainly no settled rule that a hearing cannot proceed unless precise names and quantities of drugs have been identified.” United States v. Savinon-Acosta, 232 F.3d 265, 269 (1st Cir. 2000); see also Kenney, 756 F.3d at 47 (same).