text:
    UNITED STATES of America, Plaintiff-Appellant, v. Tosh TOUSSAINT, Defendant-Appellee.
    No. 15-30748
    United States Court of Appeals, Fifth Circuit.
    Filed September 22, 2016

      Kevin G. Boitmann, Diane Hollenshead Copes, Esq,, Duane A. Evans, Myles Drew Ranier, Jeffrey Keith Sandman, Julious Collin Sims, Esq., Assistant U,S. Attorneys, U.S. Attorney’s Office, Eastern District of Louisiana, New Orleans, LA, for Plaintiff-Appellant.
    Robert Stephen Tóale, Esq., Gretna, LA, for Defendant-Appellee.
    Before KING, SMITH, and COSTA, Circuit Judges.

         Carolyn Dineen King, Circuit Judge, concurs in the judgment only.

   JERRY E. SMITH, Circuit Judge:

The United States appeals an order suppressing evidence seized in a traffic stop. Although the government maintained that the exigent-circumstances exception to the Fourth Amendment’s warrant requirement validated the stop, the district court held that the exigency had dissipated by the time the officers made the stop. We reverse and remand.

I.

By wiretap, an FBI agent heard Robert Williams, the suspected leader of the “Harvey Hustlers,” a drug-trafficking organization, give permission to an associate to kill a person identified only as “Tye” or “Todd,” who was said to be in the Kennedy Heights neighborhood of Avondale, Louisiana, driving around in a silver Infiniti coupe. The agent immediately got in touch with Detective William Roniger of the Jefferson Parish Sheriffs Office, who was a member of the task force investigating the Harvey Hustlers. Roniger contacted the sheriffs division that had responsibility for that area of Avondale and met several of its officers, including Deputy Jean Cadet, at a gas station. There they discussed how to find the threatened individual and how to keep themselves safe in a potentially lethal situation.

Roniger and the other officers proceeded to Kennedy Heights and searched for silver Infinitis. As they were leaving the area, they encountered one, and Cadet proceeded to “pace” it. Cadet concluded the ear was going over 35 miles per hour in a 20-mile zone and pulled it over.

Tosh Toussaint was the occupant. Cadet told him to exit the vehicle holding his license, registration, and insurance information, but Toussaint got out without those items and quickly fled on foot. Roni-ger chased him down, arrested him and gave Miranda warnings, and searched him incident to arrest, finding a 9mm pistol and a bag with rocks of crack cocaine. Toussaint tried to flee and was caught again. By that time, about forty-five minutes had elapsed between the initial threat overheard on wiretap and the stop of Toussaint’s car. They brought Toussaint to the sheriffs investigations bureau and interviewed him; only then did they inform him of the potential threat on his life.

II.

The government charged Toussaint with three crimes relating to the items recovered in the search incident to arrest. Toussaint moved to suppress the fruits of the traffic stop (the drugs and the gun), as well as the statements he made to police once they brought him to the investigations bureau. The government contested the motion on two grounds: (1) that the stop was legal under the exigent-circumstances exception because of the threat on Toussaint’s life, and (2) that the speeding violation provided the officers with enough reasonable suspicion to make the stop.

The district court granted the motion to suppress on both grounds. United States v. Toussaint, 117 F.Supp.3d 822 (E.D. La. 2015). It found exigent circumstances when the call was first intercepted but none when the officers encountered Toussaint forty-five minutes later. Additionally, it found that Roniger and his fellow officers’ response to the threat was unreasonable, criticizing their lack of urgency and questioning whether they actually believed Toussaint was in need of emergency help.

III.

A.

A ruling on a motion to suppress is reviewed de novo, though the factual findings made en route to that decision are reviewed for clear error. United States v. Gonzalez, 328 F.3d 755, 758 (5th Cir. 2003) (citations omitted). This evidence is viewed in the light most favorable to the prevailing party—here, Toussaint. Id. Generally, a district court’s determination of the existence vel non of exigent circumstances is a factual finding examined for clear error. See, e.g., United States v. Troop, 514 F.3d 405, 409 (5th Cir. 2008). But when influenced by an incorrect view of the law or an incorrect application of the correct legal test, a factual determination is reviewed de novo. United States v. Mask, 330 F.3d 330, 335 (5th Cir. 2003). Because the court did operate under just such an errant influence, we examine this entire matter de novo.

To decide whether the court erred in suppressing the evidence, we confront the res nova issue of whether officers can justify any stop of a vehicle (as distinguished from the search of a home) under the exigent-circumstances exception. We then examine whether that exception can justify this particular stop.'Answering both questions in the affirmative, we reverse the order of suppression.

B.

The Fourth Amendment prohibits only searches that are unreasonable. Although “searches and seizures inside a home without a warrant are presumptively unreasonable,” officers can respond without a warrant where exigent circumstances justify it. One recognized exigent circumstance is “the need to assist persons who are seriously injured or threatened with such injury.” Stuart, 547 U.S. at 403, 126 S.Ct. 1943. That is the “emergency aid” exception to the warrant requirement. Under Stuart and its progeny, officers can enter areas to help persons even though they could not otherwise be legally present without a warrant. Id. In this regard, the police serve a “community caretaking function[ ]” to ensure the safety of citizens.

The vast majority of thesé cases address warrantless entries into homes. No federal court of appeals has yet approved (nor has any rejected) the extension of this doctrine to a vehicular stop, But there is no logical difficulty with- extending the exception to those particular situations. Federal courts have decided similarly in cases dealing with vehicles that had already stopped. Additionally, there is little reason to think that officers should be permitted to enter a home to help someone, as the Court allowed in Stuart, but would somehow be foreclosed by the Fourth Amendment from stopping a car where, as one example, the . officers had received a warning that the driver was armed .and intended to kill himself upon reaching a certain destination.

The Fourth Amendment’s ■ central concern is warrantless entry into homes; so stops of persons outside the home' are “considerably less intrusive.” Additionally, a person’s privacy interest in his'or-her vehicle is less substantial than is the interest in one’s house. Forcing officers to ignore other evidence when they stop vehicles to' render - emergency aid would “not meet the needs of law enforcement or the demands of public safety.” Fisher, 558 U.S. at 49, 130 S.Ct. 546. “[T]he ultimate touchstone of the Fourth Amendment is ‘reasonableness,’” Stuart, 547 U.S. at 403, 126 S.Ct. 1943, and the benevolent act of trying to notify a driver that his life is in danger epitomizes reasonableness. Because, in proper circumstances, the emergency-aid exception to the Fourth Amendment’s warrant requirement can be used to justify a traffic stop, we turn to whether it can be used to justify this particular stop.

C.

. Under existing case law, “[a]n action is ‘reasonable’ under the Fourth Amendment, regardless of the individual officer’s state of mind, ‘as long as the circumstances, viewed objectively, justify [the] action.’” “The officer’s subjective motivation is irrelevant.” Thus, in evaluating whether an. exigency actually existed, courts must examine whether there was an objectively reasonable basis for such a belief, divorced from the officer’s conduct. And “[w]hen reasonable minds may disagree, we “will not second guess the judgment of experienced law enforcement officers concerning the risks of a particular situation.’ ”

“Because it is essentially a factual determination, there is no set formula for determining when exigent circumstances may [exist].” United States v. Jones, 237 F.3d 716, 720 (6th Cir. 2001). Nevertheless, a .court “should consider the appearance of the scene of the search in the circumstances presented as it would appear to reasonable. and prudent men standing in the shoes of the officers.” In addition to determining whether there was an objectively reasonable basis for identifying an emergency, courts must decide whether the officer who engaged in conduct without a warrant acted reasonably. The existence of an emergency cannot, by itself, immunize the conduct of the officer from scrutiny.

1.

The objective facts—that is, those divorced from the officers’ response to the threat on Toussaint’s life—are straightforward. FBI agents overheard a threat. A suspected felon gave an associate permission to kill -the defendant, and no one— including the district court—contested that that threat was credible. After intercepting the threat, officers searched for the potential victim, found him, and informed him of it—all within forty-five minutes of the first indication that his life was in danger.

From those objective facts, the district court concluded that the exigency had dissipated by the time the officers pulled Toussaint over, citing the forty-five minutes between threat and arrest, the lack of gunfire or signs of distress in the neighborhood, and the absence of anyone menacing Toussaint’s vehicle when officers discovered it. But the main thrust of the district court’s theory is not that there was no objectively reasonable basis for concluding an emergency existed, but rather that the officers’ subjective actions indicate they did not think one existed. That was error.

In both Stuart and Fisher, the Court emphasized that the intentions and beliefs of ‘the officers do not inform whether there was an emergency, yet it is obvious from the district court’s opinion that it was especially concerned with (1) Roni-ger’s decision to confer with his fellow officers before combing the neighborhood for Toussaint and (2) Cadet’s decision to pace the car instead of pulling it over immediately. The-district court ignored the directives that the actions of officers when they confront an exigency matter only insofar as they indicate whether there was an objectively reasonable basis for believing an emergency existed and that officers’ subjective motivations are never relevant. A district court not only must examine the actions of the officers but also must consider whether an objectively reasonable person might have acted differently from how the officers responded. This case is a hornbook example of precisely that distinction, which the district court should have recognized.

Again we look to the objective facts. Police officers receive what all agree is a credible threat against a specific individual, who is located within a specific area of the city and is driving a particularly-described vehicle. Then 45 minutes pass without incident. But no one could conclude from just those facts that was no objectively reasonable basis for thinking an emergency persisted. A period of 45 minutes is far less time than it may take to pull off a hit. And that there was no gunfire or any suspicious cars following Toussaint is not any sort of proof that the hit had been canceled; to the contrary, it is more than objectively reasonable to conclude that,Williams’s associate had not yet conducted the hit.

Those two uncontroversial propositions provide more than enough support to conclude that there was an “objectively reasonable basis” for believing the emergency had not ended. See Stuart, 547 U.S. at 406, 126 S.Ct. 1943. Because the emergency had not dissolved after .45 minutes, we examine whether the officers’ actions in responding to it were reasonable.

2.

The district court mainly objected to two actions the officers took before stopping Toussaint. First, it concluded that the officers should not have met at a gas station to plan how they would find Toussaint while protecting themselves. Second, it theorized that Cadet should not have “paced” his vehicle before pulling Tous-saint over. But that also was legal error.

“Our purpose is not to examine each act in isolation and inquire whether the officers could have acted differently.” United States v. Blount, 123 F.3d 831, 838 (5th Cir. 1997) (en banc). We view those decisions—made by police on the ground, with comparatively minimal time to deliberate—with “20/20 hindsight”; it is not our job to “second-guess[ ] officers’ actions” in these situations. Rice, 770 F.3d at 1132. Given those warnings, the officers’ actions, taken as a whole, were a reasonable response to the emergency.

The suppression order is REVERSED, and this matter is REMANDED for proceedings as needed.

      . The officers saw several silver Infinitis, all parked and unoccupied, before encountering the one they eventually pulled over.

      . "Pacing” is a process by which a police officer attempts to match the speed of a vehicle the officer suspects of speeding; if the officer has to increase his or her speed above the speed limit, the vehicle is pulled over. We upheld the denial of suppression of evidence found after a stop that resulted from pacing in, e.g., United States v. Castro, 166 F.3d 728, 731, 733 (5th Cir. 1999) (en banc) (per curiam).

      . When the officers pulled Toussaint over, they did not know for certain that he was the person who had been threatened. Only after he was arrested did he give Roniger his name, and it was then that Roniger confirmed that they had arrested “Tye"/"Todd.”

      .Possession with intent to distribute a quantity of a mixture or a substance containing a detectable amount of cocaine base ("crack”) in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), possession of a firearm in furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A), and possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

      . The district court found that "there was no objectively reasonable basis for them to find that Toussaint was speeding.” Toussaint, 117 F.Supp.3d at 849 n.288. The government does not appeal that finding.

      . Brigham City, Utah v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (quoting Groh v. Ramirez, 540 U.S. 551, 559, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004)).

      . Mincey v. Arizona, 437 U.S. 385, 393-94, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978),

      . United States v. Rideau, 969 F.2d 1572, 1574 (5th Cir. 1992) (en banc) (quoting Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973)).

        .See, e.g., Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam) (warrantless entry into a house acceptable where officers could observe occupant bleeding and throwing objects); Stuart, 547 U.S. at 406, 126 S.Ct. 1943 (warrantless entry acceptable to break up a fight observed through a window); Rice v. ReliaStar Life Ins. Co., 770 F.3d 1122 (5th Cir. 2014) (no Fourth Amendment violation where officers entered house in attempt to prevent suicide); United States v. de Jesus-Batres, 410 F.3d 154 (5th Cir. 2005) (holding that officers acted within the bounds of the Fourth Amendment when they conducted a 'warrantless search of a garage to check for any injured aliens).

      . State courts have permitted police officers to justify vehicular stops based on the emergency-aid exception. See State v. Dunn, 131 Ohio St.3d 325, 964 N.E.2d 1037, 1042 (2012); State v. Stapa, 46 So.3d 264, 266 (La. App. 2 Cir. 2010).

      . See, e.g., United States v. Collins, 321 F.3d 691, 694-95 (8th Cir. 2003) (permitting officer to lean into parked car because he had reasonable belief that persons were injured); United States v. Kelly, 267 F.Supp.2d 5, 9 (D.D.C. 2003) (no Fourth Amendment violation where officers entered car to treat visible crash victim).

      . This was the case in Dunn, 964 N.E.2d at 1042.

      . E.g., Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).

        . Illinois v, McArthur, 531 U.S. 32, 36, 121 S.Ct. 447, 148 L.Ed.2d 333 (2001).

      . See, e.g., Arizona v. Gant, 556 U.S. 332, 345, 129 S.Ct 1710, 173 L.Ed.2d 485 (2009) (citing New York v. Class, 475 U.S. 106, 112—13, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986)).

      . Stuart, 547 U.S. at 404, 126 S.Ct. 1943 (quoting Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978) (emphasis in internal quotation added)).

      . Id.) see also Fisher, 558 U.S. at 49, 130 S.Ct. 546 ("[T]he test ... is not what the [officer] believed, but whether there was 'an objectively reasonable basis for believing’ that medical assistance was needed, or persons were in danger” (quoting Stuart, 547 U.S. at 406, 126 S.Ct. 1943)); Rideau, 969 F.2d at 1574 ("In assessing the reasonableness of an officer's actions, it is imperative that the facts be judged against an objective standard.... The officer’s state of mind, or his stated justification ..is not the focus of our inquiry.” (citation and internal quotation marks omitted)).

      . United States v. Mata, 397 Fed.Appx. 39, 39-40 (5th Cir. 2010) (quoting United States v. Menchacha-Castruita, 587 F.3d 283, 290 (5th Cir. 2009)).

      . United States v. Rodea, 102 F.3d 1401, 1405 (5th Cir. 1996) (internal quotation marks omitted). Accord Rideau, 969 F.2d at 1574 ("We must attempt to put ourselves in the shoes of a reasonable police officer as he ■ or she approaches a given situation and assesses the likelihood of danger.... ’’).

      . See Rice v. ReliaStar Life Ins. Co., 770 F.3d 1122, 1132 (5th Cir. 2014); see also Stuart, 547 U.S. at 403-05, 126 S.Ct. 1943.

      . This is the legal error that infected the district court's factual determinations to which we referred supra Part I.A. Because of that error, we review both legal conclusions and factual - determinations de novo. Mask, 330 F.3d at 335. .

      . See Fisher, 558 U.S. at 49, 130 S.Ct. 546 ("[T]he test ... is not what the [police officer] believed, but whether there was ‘an objectively reasonable basis for believing’ that medical assistance was needed, or persons were in danger.” (quoting Stuart, 547 U.S. at 406, 126 S.Ct. 1943)); Stuart, 547 U.S. at 505, 126 S.Ct. 1943 (noting that "it does not matter” whether the intent of the officers was to make arrests or to respond to an emergency).

      . The government cites at least one example of a hit intercepted on wiretap that took longer than 45 minutes to occur. Such an example is apposite but unnecessary. It stands to reason that planned hits intercepted over wiretap—indeed, planned killings generally—do not expire after 45 minutes. Toussaint,has not pointed to any precedent from this circuit or elsewhere suggesting that emergencies disappear altogether after 45 minutes. Inasmuch as precedent points in any direction, it shows that exigencies can persist longer than that. See de Jesus-Batres, 410 F.3d at 159 ("[T]he delay of approximately 45 minutes before the officers entered the garage does not by itself preclude a finding of ■ exigent circumstances.”).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    State of TEXAS, Plaintiff-Appellant, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION; Jenny R. Yang, in her official capacity as Chair of the Equal Employment Opportunity Commission; Loretta Lynch, U.S. Attorney General, Defendants-Appellees.
    No. 14-10949
    United States Court of Appeals, Fifth Circuit.
    FILED September 23, 2016
    Scott A. Keller, Prerak Shah, Office of the Attorney General, Alex Potapov, Office of the Solicitor General, Austin, TX, for Plaintiff-Appellant.
    Stephanie Robin Marcus, Justin Michael Sandberg, U.S. Department of Justice, Washington, DC, for Defendants-Appel-lees.
    Before JOLLY, HIGGINBOTHAM, and DAVIS, Circuit Judges.
   PER CURIAM:

As we noted in our opinion, Texas v. EEOC, 827 F.3d 372, 382-83 (5th Cir. 2016), shortly before the opinion’s issuance the Supreme Court decided U.S. Army Corps of Eng’rs v. Hawkes Co., — U.S. -, 136 S.Ct. 1807, 195 L.Ed.2d 77 (2016), which held in the context of the Clean Water Act that a jurisdictional determination (“JD”) is a final agency action that is subject to judicial review under the Administrative Procedure Act, 5 U.S.C. § 704. Hawkes, 136 S.Ct. at 1816.

In Belle Co., L.L.C. v. U.S. Army Corps of Eng’rs, 761 F.3d 383 (5th'Cir. 2014), also cited in our opinion, our court had held that the JD in that case was not a final decision. Belle Co. petitioned for certiorari, which the Supreme Court granted. In the light of its opinion in Hawkes, the Court vacated the judgment and remanded Belle Co. to our court. — U.S. -, 136 S.Ct. 2427, 195 L.Ed.2d 776 (2016) (mem.). The panel then remanded the case to the district court for further proceedings consistent with the Supreme Court’s decision in Hawkes. Belle Co., L.L.C. v. U.S. Army Corps of Eng’rs, No. 13-30262, — Fed.Appx. -, -, 2016 WL 4073301, at *1 (5th Cir. July 29, 2016).

Both Belle Co. and the instant case relate closely to the issue that the Supreme Court decided in Hawkes. Given this similarity, and given that the district court has not had the opportunity to apply Hawkes to the facts of this case, we conclude that the importance of the issue and the interest of uniformity of our precedent require that we, like the Belle Co. panel, remand this case for further consideration in thé light of Hawkes. We recognize that Haivkes may or may not affect other issues raised in this appeal, and we leave it to the district court in the first instance to reconsider this case, and its opinion, in its entirety and to address the implications of Hawkes for this case.

Accordingly, we WITHDRAW our prior opinion, VACATE the district court’s judgment dismissing the complaint, and REMAND this case to the district court for such further proceedings as, in its discretion, are required.

PETITION GRANTED; OPINION WITHDRAWN; JUDGMENT VACATED, AND CASE REMANDED.


author: E. GRADY JOLLY, Circuit Judge:

text:
    DRESSER-RAND COMPANY, Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.
    No. 15-60474
    United States Court of Appeals, Fifth Circuit.
    FILED September 23, 2016

      Jeremy Daniel Kernodle, Haynes & Boone, L.L.P., Arthur -Tracy Carter, Littler Mendelson, P.C., Dallas, ■ TX, Alfred John Harper, III, Littler Mendelson, P.C., Houston, TX, for Petitioner-Cross Respondent.
    Linda Dreeben, Esq., Julie Brock Broi-do, Jeffrey William' Burritt, Esq., Micah Prieb Stoltzfus Jost, Gregory Paul Lauro, National Labor Relations Board, Washington, DC, Rhonda P. Ley, National Labor Relations Board, Buffalo, NY, for Respondent-Cross Petitioner.
    Before JOLLY, CLEMENT, and OWEN, Circuit Judges. ,
   E. GRADY JOLLY, Circuit Judge:

In 2007, Dresser-Rand and CWA Local 313 sought to negotiate the renewal of the union-members’ employment contract but could not reach agreement. After a four-month strike, the parties had still not agreed on a contract. The union called , off the strike and agreed to return to work without a contract. At that point, however, Dresser-Rand locked out the union employees. After a week, Dresser-Rand reversed course and allowed the union members to return to work.

The National Labor Relations Board held that the lockout violated the National Labor Relations Act. On appeal, the parties agree that whether the lockout violated the Act is determined by Dresser-Rand’s motivation for the lockout: “if the lockout was motivated by antiunion animus, it was illegal; if the lockout was not motivated by antiunion animus, it was permissible. The NLRB found that the lockout was motivated by antiunion animus based on actions that Dresser-Rand took after the lockout ended.

Dresser-Rand petitions for review of the NLRB order, arguing that 1) its post-lockout conduct was lawful; 2) even if the post-lockout conduct was not lawful, this conduct was not, itself, motivated by animus; and 3) even if the later conduct was motivated by animus, it does not show that the lockout was also motivated by animus.

We hold that much of the later conduct did not violate the Act and the conduct that did violate the Act was not motivated by animus. Accordingly, these violations do not establish that the lockout was motivated by antiunion animus. We therefore grant in part and deny in part Dresser-Rand’s petition to deny enforcement of the NLRB order; correspondingly, we deny in part and grant in part the NLRB’s cross-application for enforcement.

I.

Dresser-Rand, a company headquartered in Texas, operates multiple factories across the country. One of those factories, in Painted Post, New York, employs a workforce comprised of members in the Industrial Division of the Communications Workers of America, Local 313 Union who are covered under a collective-bargaining agreement. In 2007, the then-current collective bargaining agreement was scheduled to expire. Anticipating this expiration, the parties began early meetings in April. The early talks did not produce an agreement, so the parties began regular negotiations in July. By August 4, the negotiations had still produced no agreement and the collective-bargaining agreement expired. The union called for a strike and, initially, all members of the union participated in the strike. This strike would ultimately last for over four months.

During the strike, Dresser-Rand attempted to continue production. To do so, it initially hired temporary replacements and, later, hired permanent replacements. About a month into the strike, thirteen of the strikers made an unconditional offer to return to work. They crossed the picket lines and resumed work; we, like the parties, refer to these employees as the “crossovers.” Dresser-Rand and the union continued to bargain during, the strike, meeting three times.

On November 19, the union called off the strike and made an unconditional offer to return to work. On November 23, Dresser-Rand rejected this offer and instituted a lockout, an employer negotiating tactic to pressure unions into a contract by withholding work until agreement is reached. During this lockout, Dresser-Rand continued to operate with a small workforce consisting primarily of permanent replacements hired during the strike. All employees who had participated in the strike were precluded from working at Dresser-Rand during the lockout. On advice of counsel, Dresser-Rand also locked out the crossovers, along with the other strikers, because it believed that failing to lockout the crossovers would violate labor law. When it did so, Dresser-Rand informed the departing crossovers that they would be hired back as soon as it could legally do so. In the meantime, Dresser-Rand informed the union that it would end the lockout if the union agreed to Dresser-Rand’s bargaining demands.

Six days into the lockout, Dresser-Rand changed course and agreed to lift the lockout. Dresser-Rand announced this decision on Thursday, November 29. Shortly after this announcement, the union told Dresser-Rand that the union would tell members to show up for work on Friday at 7:00 AM. Dresser-Rand replied that 7:00 would not work and that Dresser-Rand needed to assess its manpower needs. The parties spoke on the phone, and discussed negotiating a recall procedure. Without waiting for this negotiation, however, Dresser-Rand informed the crossovers that they could return to work.

Dresser-Rand attempted to negotiate with the union over a process for returning strikers to work, but the union was mostly non-responsive. Specifically, late Friday-afternoon, Dresser-Rand informed the union that it would recall striking employees' based on seniority and job performance; Dresser-Rand also proposed that it contact employees based on this list beginning on Sunday. The union representative responded briefly via email, saying that he was traveling but would have access to email; he neither agreed nor objected to Dresser-Rand’s recall proposal or time-line. On Sunday, Dresser-Rand sent the union the names of non-crossover strikers, listed in the order Dresser-Rand proposed to recall them. Without hearing either agreement or disagreement from the union,. Dresser-Rand began recalling employees that same day.

One employee, Kelvin Brown, was not on the recall list. Dresser-Rand determined that Brown had engaged in picket-line misconduct and thus decided not to recall him, effectively firing him.

After the recall was implemented, Dresser-Rand unilaterally changed its policy regarding paid lunch breaks for weekend overtime work. Dresser-Rand previously had a longstanding policy of providing paid twenty-minute lunch breaks to any employees working weekend overtime shifts -Of at least seven hours. This policy was not memorialized in any contract. After the recall, Dresser-Rand ended this policy. It did not discuss this change with the union.

In late April 2008, a recalled employee was áttending a department meeting. This employee, Marion Cook, stated that “there were too many salaried workers and too many scabs for it to be safe to work.” Dresser-Rand subsequently suspended Cook without pay for “violating common decency or morality on company property” based on his use of the word “scab.”

In August and September, Dresser-Rand recalled the last of the striking employees (those lowest on the recall list). Dresser-Rand informed twenty-three of these employees that they had lost their accrued paid vacation because they had not worked at least 900 hours in the preceding twelve months. (These employees had been striking, locked out, or waiting on the recall list for that period.)

The employees worked without a contract until 2009, when they finally reached an agreement.

Subsequently, the union filed various unfair labor practice charges against Dresser-Rand which were tried before an administrative law judge in a nine-day trial in 2009. The ALJ determined that Dresser-Rand illegally locked out employees, illegally recalled employees after the lockout, illegally disciplined two strikers after the lockout, and illegally effectuated new employment terms after the strike. In 2012, the NLRB affirmed this determination. That affirmance was invalidated by NLRB v. Noel Canning, — U.S. -, 134 S.Ct. 2550, 189 L.Ed.2d 538 (2014), and remanded to the NLRB. In 2015, a divided panel of the NLRB affirmed again. Dresser-Rand filed a petition for review in our court, requesting that we deny enforcement of the NLRB order; the NLRB filed a cross-application seeking to enforce the order. The union intervened on behalf of the NLRB.

II.

We uphold the NLRB’s factual findings “if [they are] supported by substantial evidence on the record considered as a whole.” Mobil Expl. & Producing U.S., Inc. v. NLRB, 200 F.3d 230, 237 (5th Cir. 1999). “Motive is a factual matter” in NLRB proceedings and- thus is subject to appellate review as a factual finding. NLRB v. Mini-Togs, Inc., 980 F.2d 1027, 1032 (5th Cir. 1993). Legal questions, such as questions of contractual interpretation, are reviewed de novo. Strand Theatre of Shreveport Corp. v. NLRB, 493 F.3d 515, 518 (5th Cir. 2007).

m.

The NLRB argues that Dresser-Rand violated Sections 8(a)(3) and 8(a)(1) of the National Labor Relations Act in multiple ways. We address each argument in turn.

A. The preferential recall of crossovers.

It is an unfair labor practice for an employer “by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.” 29 U.S.C. § 158(a)(3). The NLRB argues that Dresser-Rand violated this section by first recalling crossovers before recalling full-term strikers, thereby allegedly retaliating against full-term strikers for their union activity.

The Supreme Court has addressed a similar stratagem: in TWA, the Court held that an employer, who had hired crossovers during a strike, was not required to dismiss those crossovers when the strike ended and more senior employees returned to work; instead, the employer could permissibly leave those crossovers in place, effectively granting them preference above all full-term strikers. Trans World Airlines, Inc. v. Indep. Fed’n of Flight Attendants, 489 U.S. 426, 109 S.Ct. 1225, 103 L.Ed.2d 456 (1989) (“TWA”). Thus, if Dresser-Rand had not instituted a lockout, TWA would clearly govern and Dresser-Rand could permissibly have retained the crossovers in preference to the full-term strikers.

Here, however, Dresser-Rand did lockout employees, including the crossovers. According to the NLRB, that difference is decisive. The NLRB argues that, once the crossovers were locked out, the positions they had filled during the strike were vacant and thus Dresser-Rand had a duty to fill those positions without providing preference to the crossovers. In support of this position, the NLRB cites Peerless Pump Co., 345 NLRB 371 (2005). In Peerless Pump, the Board held that the company could not grant recall preference to employees who had agreed to crossover but had not yet returned to work. Id. at 376.

Dresser-Rand, on the other hand, cites to NLRB v. Delta-Macon Brick & Tile Co., 943 F.2d 567 (5th Cir. 1991). Delta Macon held that:

when the company temporarily lays off a permanent striker replacement ... [this temporary layoff does not, create a vacancy that must be made available to strikers] so long as the laid-off, permanent striker replacement has a reasonable expectancy that he will be recalled by the company following the layoff. This is so because an employer may promise permanent striker replacements that if they are' subsequently laid off the layoff will not create vacancies that the employer'must fill by recalling the strikers whom the replacement workers had replaced and who by definition will have greater seniority, having been hired earlier. When laid-off, permanent striker replacements have an objectively reasonable■ expectancy of recall, the employer may recall them ahead of the unreinstated strikers.

Id. at 572 (citations and quotations omitted) (emphasis added). Dresser-Rand further argues that the crossovers had a “reasonable expectancy of recall” because Dresser-Rand told them that they would be recalled immediately after the lockout ended.

Accordingly, we must decide whether locking-out crossovers created a -job vacancy (which then must be filled by returning strikers) or whether it constituted a temporary layoff from the job (in which case the crossovers would have priority over the returning strikers). We hold that, on the facts of this case, the crossovers were more similar to temporarily-laid-off replacement workers. Here, the crossovers occupied a job position (as crossovers) for a period of months before they were locked out for only a few days. Moreover, the crossovers were told, before being locked out, that they would resume their then-current positions as soon as the lockout. ended. Thus, recalling them first simply allowed them to return to the position they had been permanently performing. We therefore hold that substantial evidence does not support the NLRB’s conclusion that Dresser-Rand violated labor law by recalling the crossovers before recalling the current strikers. In short, the jobs occupied by crossovers were- not vacant positions to •. be filled by returning strikers.

B. Unilateral recall procedure.

The Board next argues that Dresser-Rand violated labor law by implementing a recall procedure without properly collaborating with the union about the details of that procedure. It is fundamental that employers are generally required “to bargain collectively with the representatives of [their] employees.” 29 U.S.C. § 158(a)(5). A union may waive the right to bargain but will not “be held to have waived bargaining over a change that is presented to it as a fait accompli.” Gulf States Mfg., Inc. v. NLRB, 704 F.2d 1390, 1397 (5th Cir. 1983). The NLRB argues that Dresser-Rand did not bargain with the union but instead presented the union with a fait accompli method of recalling employees and then implemented that method without input from the union. According to the Board, Dresser-Rand did this despite knowing that the union would prefer a different recall procedure.

■ Dresser-Rand responds that it attempted to contact the union over a several-day period and that the union’s failure to respond to Dresser-Rand’s suggestions could reasonably be interpreted as agreement to the procedure—especially when the union knew that time was of the essence.

We do not believe that the Board’s conclusion is supported by substantial evidence. Instead, the record is plain that time was of the essence as Dresser-Rand began, the recall. It made its intentions clear to the union representatives, and kept the union informed at each step. The parties had agreed that recall negotiations would go on through their lawyers. The union agreed that the recall should begin as soon as possible and stated its position that the workers be recalled by seniority. The union had ample opportunity to make another counterproposal after it received notice of Dresser-Rand’s proposal. In sum, the evidence does not reasonably suggest that Dresser-Rand failed to bargain or that it stated its terms as a fait accompli. Under the well-understood, urgent circumstances, the union had a reasonable, albeit brief, opportunity to bargain and suggest counter-terms, but it failed to. do so. See N.L.R.B. v. Pinkston-Hollar Const. Servs., Inc., 954 F.2d 306, 310 (5th Cir. 1992) (“[W]hen an employer notifies a union of proposed changes in terms and conditions of employment, it is incumbent upon the union to act with due diligence in requesting bargaining. Any less diligence amounts to a waiver by the bargaining representative- of its right to bargain.”) (citations omitted); Nabors Trailers, Inc. v. N.L.R.B., 910 F.2d 268, 273 (5th Cir. 1990) (“[T]here is no violation of the [NLRA], even in the absence of an impasse, if the employer notifies the union that it intends to -institute the change and gives the union the opportunity to respond to that notice.”).

We therefore hold that substantial evidence does not support the NLRB’s conclusion that Dresser-Rand refused to bargain with the union over the recall procedure.

C. Failing to recall Brown based on the picket-line incident.

The NLRB argues that Dresser-Rand violated labor law by failing to recall Kelvin Brown. The parties agree that Dresser-Rand could not permissibly refuse to recall Brown unless he had engaged in serious misconduct sufficient to justify dismissing him. See, e.g., Newport News Shipbuilding & Dry Dock Co. v. N.L.R.B., 738 F.2d 1404, 1408 (4th Cir. 1984) (“An employer who refuses or delays the reinstatement of strikers who. have engaged in a protected strike violates § 8(a)(3) and (1) of the Act unless he can show ‘legitimate and substantial business justifications’ for his actions. A showing that an employee engaged in serious strike misconduct constitutes such justification.”) (citations and quotations omitted). They disagree, however, about the seriousness of Brown’s misconduct.

Dresser-Rand discharged Brown after police arrested him for disorderly conduct and after a police officer stated that Brown “pretended like he got hit by the [van bringing in workers].” The fact that an arrest was made does always not establish, as a matter of law, that discharge was proper. See Newport News, 738 F.2d at 1411 (4th Cir. 1984) (analyzing the propriety of discharging an employee on the merits, even though the employee had been charged by the police). Nonetheless, police involvement does provide some evidence that the misconduct was serious. According to Dresser-Rand, this misconduct was severe enough to justify discharging Brown because it put Brown and others in danger.

The Board responds, however, that Brown’s conduct did not result in harm to anyone, did not injure anyone, and seems not to have delayed any employees significantly. Thus, according to the NLRB, Brown’s misconduct was minor enough that he could not have been permissibly discharged.

While we must accept the Board’s factual findings so long as they are supported by substantial evidence, “[t]he Board’s decision on whether or not strike misconduct is serious enough to deny reinstatement is a legal conclusion that we, of course, are free to accept or reject.” Newport News, 738 F.2d at 1408. See also, e.g., N.L.R.B. v. E-Systems, Inc., 642 F.2d 118, 122 (5th Cir. 1981) (finding that “substantial evidence” supported the Board’s factual determinations but rejecting the Board’s “legal appraisal of the incident”). Further, other circuits have drawn the “serious misconduct” line at “conduct that is-intended to threaten or intimidate 'nonstrikers.” Newport News, 738 F.2d at 1408 (citations and quotations omitted). Accord, e.g., N.L.R.B. v. W.C. McQuaide, Inc., 552 F.2d 519, 528 (3d Cir. 1977) (“The test is whether the misconduct is such that, under the circumstances existing, it may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act.”); Richmond Recording Corp. v. N.L.R.B., 836 F.2d 289, 295 (7th Cir. 1987) (“Strike misconduct, becomes serious -if. it reasonably tends to coerce or intimidate.”).

Brown placed his body in front of a van bringing in non-strikers and pretended that he was hit by the van. His conduct was clearly meant to intimidate or coerce the non-strikers in the van. And it was egregious enough to compel police involvement. Although it is hot clear from the record whether the van was moving at the exact moment that Brown moved in front of the van, the van was attempting to move through a dense crowd of picketers. Brown’s conduct could have injured himself and caused substantial disruption. In short, Brown’s misconduct was “sufficiently serious to disqualify him for employment,” E-Systems, Inc., 642 F.2d at 121, and consequently, Dresser-Rand did not violate the NLRA by refusing to recall Brown.

D. Denying strikers their accrued vacation benefits

Before the strike, the 2004 collective-bargaining agreement established that any employee who worked at least 900 hours in a calendar year “shall at the end of such year be entitled, irrespective of any subsequent occurrence, to a minimum vacation with pay in the following calendar year.” Restated: An employee is entitled to no vacation-in the first year of his employment; if in his first year he works at least 900 hours, he is then entitled to vacation in his second year; similarly, he is entitled to paid vacation in his third year only if he worked 900 hours in his second.

Dresser-Rand concluded that this language meant that vacation pay for striking employees (who' struck in August, 2007) did not vest under this agreement, because these employees did not reach the end of 2007 under that agreement. Instead, in November 2008—at the end of thé strike— they were governed by the implemented agreement, which entitled them to paid vacation only if they wórked 900 hours in the previous twelve months. Thus, Dresser-Rand concluded that those employees who, between the strike, the lockout, and waiting on the recall list, were out of work for more than twelve months were not entitled to paid vacation in 2009 because they had not worked 900 hours in the preceding year, 2008—they had been striking, locked out, or awaiting recall for much of that year. This argument is a plausible reading of the 2004 agreement and of the implemented agreement; • indeed, if we were interpreting those agreements on a blank slate, we might read it similarly.

According to the Board, we are not interpreting this provision de novo. Instead, the Board argues, we must interpret the 2004 agreement with reference to a previous arbitration that resolved the meaning of the same contractual language. This arbitration had concluded that, if “an employee ... worked the requisite number of hours to be eligible for vacation in [one] calendar year[,] [then] upon recall -in a subsequent calendar year [that- employee will] be immediately eligible to take vacation.” In other words, if an employee was eligible for paid vacation in the year a strike began, then he would be immediately eligible for paid vacation when recalled—even if he had not worked the required number of hours in the calendar year preceding his recall. Under this interpretation, the recalled strikers should have immediately been eligible for the vacation they accrued under the 2004 agreement when they returned. The Board notes that “it is the arbiter’s construction [of the agreement] which was bargained for [and thus] ... an arbiter’s award does not merely help explain the parties’ agreement; ‘the arbitrator’s interpretation is the parties’ agreement.’ ” (quoting Penn. Am. Water Co., 359 NLRB No. 142 (2013)) (citation omitted) (emphasis added). Thus, according to the Board, Dresser-Rand erred in denying the accrued vacation.

Dresser-Rand, however, argues that this “thirty-year-old arbitration agreement ... [is] simply inapposite” because it “did not address the facts here [] where the existing agreement was replaced by new terms.” We agree. The new implemented agreement went into effect before the end of the year. Thus, the 2004 agreement was no longer in effect and the fact that the vacation time was frozen under that agreement is irrelevant. Accordingly, we hold that Dresser-Rand did not commit an unfair labor practice in this respect.

E. Changing the paid-lunch-break policy without bargaining

Finally, Dresser-Rand argues that it did not violate labor law when- it changed its policy of providing paid lunch breaks for weekend shifts of over seven hours. The parties agree that paid lunch breaks were not required under the terms of the 2004 agreement and were not required under the implemented .agreement. The Board argues, however, that Dresser-Rand was bound by past practice and could not unilaterally change that practice—even if that practice was not mandated by the agreement. To support this claim, the Board cites Bonnell/Tredegar Indus., Inv. v. NLRB, 46 F.3d 339, 344 (4th Cir. 1995). But Bonnell does not support this claim. Instead, .Bonnell says only that

collective bargaining agreements may include implied as well as express terms. An employer’s established past practice can become an implied term of a collective bargaining agreement. [Parties’ collective agreement includes both the specific terms set forth in the written agreement and any well established practices that constitute a ‘course -of dealing’ between the carrier and employees. Past practices rise to the level of an implied agreement when they have ripened into an established and recognized custom between the parties.

Id. (citations and quotations omitted). This holding does not establish, as the Board argues, that a “course of dealings” can persist from one agreement to the next. Moreover, in Bonnell, the employer followed a longstanding custom in the first year governed by an agreement, and then changed that policy the following year—a year governed by the same agreement. Dresser-Rand convincingly argues that “[wjhatever past practice had been grafted onto [the 2004 agreement] ended when the 2004 agreement expired and was replaced by the implemented terms.”

This argument is especially strong given the months-long strike, the intensive bargaining over a new contact and, ultimately, a new contract with no reference supporting the practice. The justification for treating past practice as an implied term of an agreement is that parties can come to rely on a practice and can reasonably expect that practice to continue over time. When, however, the relationship between the parties is disrupted by a lengthy strike and a new, hard-fought contract, the parties cannot reasonably expect all gratuitous practices to pick up as though there had been no interruption. Here, the union had little to no reliance interest in unwritten customs that had built up around the old contract—and thus these prior customs were not silently adopted as a part of the new contract regime. This conclusion is further bolstered by the changes in Dresser-Rand’s practices regarding weekend work more generally. Accordingly, we hold that Dresser-Rarid’s treatment of lunch breaks did not violate the NLRA.

F. The lockout

Finally, we consider, whether the lockout itself was illegal. The NLRB concedes, as it must, that lockouts can be legal. Indeed, lockouts are an important negotiation tool for employers, and the Supreme Court has explicitly reaffirmed the importance of protecting their viability. NLRB v. Brown, 380 U.S. 278, 284, 85 act 980, 13 L.Ed.2d 839 (1965). As both parties agree, this lockout was impermissible only if it was motivated by antiunion animus, instead of the desire to negotiate.

The NLRB has argued in this appeal that it can show animus by pointing to post-lockout conduct motivated by animus. As discussed above, however, substantial evidence does not support the finding that the post-lockout conduct was motivated by animus and the Board has not offered any further evidence to show that the lockout was motivated by'animus.'Accordingly, we hold that substantial evidence does not support a finding that the lockout was in violation of the National Labor Relations Act.

IV.

In conclusion, we hold that the following NLRB findings were. not supported by substantial evidence: the finding that the lockout was illegal, the finding that Dresser-Rand’s treatment of crossovers was illegal, the finding that Dresser-Rand illegally failed to negotiate a recall procedure, the finding that Dresser-Rand illegally failed to recall Brown, the finding that Dresser-Rand’s modification of the lunch-break policy was illegal, and the finding that Dresser-Rand’s treatment of vacation time was illegal. Accordingly, the Board’s order is denied enforcement in those respects. Dresser-Rand does not challenge the NLRB finding that Cook was improperly suspended. Thus, the Board’s order is due to be enforced in that respect.

Accordingly, Dresser-Rand’s petition is GRANTED IN PART and DENIED IN PART and the NLRB’s cross-application is correspondingly DENIED IN PART and GRANTED IN PART, as stated in the preceding paragraph.

      . ■ Dresser-Rand believes that Local 15, Int’l Bhd. Elec. Workers v. NLRB ("Midwest Generation"), 429 F.3d 651, 661 (7th Cir. 2005) established that employers must lockout every employee who participated in a strike, even crossovers. The Board argues that the law in this area is "unsettled,” and thereby concedes, at a minimum, that Dresser-Rand would have risked violating labor law if it had not locked out the crossovers.

      . The alleged misconduct had occurred back in September, before the lockout. Near the picket line, a collision occurred between two vans carrying crossovers and replacement workers. A Dresser-Rand security guard stated that Brown had, at some point, "jumped onto the front of the van or pretended like he got hit.” As a result of this incident, Brown was arrested for and convicted of disorderly conduct. Dresser-Rand investigated the incident but did not interview Brown before deciding to omit his name from the recall list,

      . Because the union and the NLRB advance similar arguments, we do not distinguish between them except where necessary.

      . Dresser-Rand’s petition does not challenge the NLRB’s finding that Dresser-Rand violated labor law by suspending Cook for saying "scab.” We therefore do not address this issue.

      . TWA was decided under a different statutory scheme but the parties agree that it is controlling precedent here. See Encino Tarzana Reg. Med. Ctr., 332 NLRB 914 (2000).

      . We expressly decline to address the scenario of a substantially longer lockout, where recalling crossovers might appear to be more of an (impermissible) reward for crossing over and less of a practice of keeping current employees in positions they had recently occupied.


text:
    IN RE: Andreco LOTT, Movant.
    No. 16-10866
    United States Court of Appeals, Fifth Circuit.
    FILED September 26, 2016
    Andreco Lott, Forrest City, AR, Pro Se.
    Before SMITH, ELROD, and HAYNES, Circuit Judges.
   PER CURIAM:

A jury convicted Andreco Lott, federal prisoner # 27068-177, of one count of conspiring to- commit bank robbery, two counts of bank robbery and aiding and abetting, two counts of conspiring to obstruct interstate commerce by robbery and aiding and abetting, and four counts of using and carrying a firearm during a crime of violence and aiding and abetting. He now moves for authorization to file a successive 28 U.S.C. § 2255 motion challenging his convictions under 18 U.S.C. § 924(c) for using and carrying a firearm during a crime of violence and aiding and abetting as well as his convictions for bank robbery and conspiring to obstruct interstate commerce by robbery and aiding and abetting. See 28 U.S.C. §§ 2244(b)(3)(C), 2255(h); Reyes-Requena v. United States, 243 F.3d 893, 897-99 (5th Cir. 2001). Invoking Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), Lott argues that these convictions ai-e invalid. He also argues that his firearms and bank robbery convictions are invalid in light of the Supreme Court’s recent decisions in Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016), and McDonnell v. United States, — U.S. -, 136 S.Ct. 2355, 195 L.Ed.2d 639 (2016).

Lott has not made the requisite showing. We have held that Johnson does not provide a basis for authorizing a successive § 2255 motion challenging a conviction under § 924(c). See In re Fields, 826 F.3d 785, 786-87 (5th Cir. 2016). Moreover, the bank robbery and conspiracy to obstruct interstate commerce by robbery statutes that Lott was convicted under do not contain language similar to the provision that the Supreme Court found unconstitutionally vague in Johnson, compare Johnson, 135 S.Ct. at 2555-57, with 18 U.S.C. § 2113(a) (bank robbery), and 18 U.S.C. § 1951 (conspiracy to obstruct interstate commerce by robbery), and so Johnson has no bearing on them. Finally, Lott has failed to make a prima facie showing that Mathis and McDonnell set forth new rules of constitutional law that have been made retroactive to cases on collateral review. See § 2255(h)(2); § 2244(b)(3)(C); Reyes-Requena, 243 F.3d at 897-99.

Accordingly, IT IS ORDERED that Lott’s motion for authorization is DENIED. IT IS FURTHER ORDERED that Lott’s motion to hold his case in abeyance in light of the Supreme Court’s grant of certiorari in Beckles v. United States, — U.S. -, 136 S.Ct. 2510, 195 L.Ed.2d 838 (2016), is DENIED.


author: EDITH BROWN CLEMENT, Circuit Judge:

text:
    Ralph WHITLEY, Individually and on behalf of others similarly situated; Frankie Ramirez; David M. Humphries; Charis Moule; Edward F. Mineman; Syed Arshadullah; Jerry T. Mcguire; Maureen S. Riely; Thomas P. Soesman, Plaintiffs-Appellees v. BP, P.L.C.; Anthony Hayward; The Savings Plan Investment Oversight Committee; Richard J. Dorazil; Corey Correnti; Marvin Damsma; James Dupree; Patrick Gower; Jeanne M. Johns; Patricia H. Miller; Stephen J. Riney; Brian D. Smith; Lord John Browne; Stephanie C. Moore; BP Corporation North America, Incorporated; BP America, Incorporated; Lamar Mckay; Gregory T. Williamson; Neil Shaw; Thomas L. Taylor; BP Corporation North America, Incorporated’s Board of Directors; Robert A. Malone, Defendants-Appellants
    No. 15-20282
    United States Court of Appeals, Fifth Circuit.
    Filed September 26, 2016

      Ronald Scott Kravitz, Esq., Shepherd, Finkelman, Miller & Shah, L.L.P., San Francisco, CA, Thomas R. Ajamie,. John Withers Clay, Ajamie, L.L.P., Houston, TX, Stephen J. Fearon, Jr., Squitieri & Fearon, L.L.P., New York, NY, Lori G. Feldman, Esq., Arvind Khurana, Esq., Milberg, L.L.P., New York, NY, Thomas James McKenna, Esq., Gainey McKenna & Egleston, New York, NY, for Plaintiff-Appellee.
    Paul J. Ondrasik, Jr., Morgan D. Hodg-son, Eric Serrón, Steptoe & Johnson, L.L.P., Washington, DC, for Defendant-Appellant.
    H. Douglas Hinson, Esq., Emily Seymour Costin, Alston & Bird, L.L.P., Washington, DC, for’Amicus Curiae American Benefits Council.
    Eirik James Cheverud, Thomas Tso, Esq., U.S. Department of Labor, Office of the Solicitor, Washington, DC, for Amicus Curiae Secretary of Labor.
    David Lisitza, Senior Litigation Counsel, U.S. Securities & Exchange Commission, Washington, DC, Eirik James Cheverud, U.S. Department of Labor, Office of the Solicitor, Washington, DC, for Amicus Curiae Securities and Exchange Commission.
    Mary Ellen E. Signorille, Senior Attorney, AARP Foundation Litigation, Washington, DC, for Amicus Curiae American Association of Retired Persons, National Employment Lawyers Association.
    Before WIENER, CLEMENT, and ■ COSTA, Circuit Judges.
   EDITH BROWN CLEMENT, Circuit Judge:

In this stock-drop suit, the question on appeal is whether the district court erred in holding that the plaintiff stockholders’ amended complaint stated a plausible claim under the pleading standards of Fifth Third Bancorp v, Dudenhoeffer, — U.S. -, 134 S.Ct. 2459, 189 L.Ed.2d 457 (2014). Because we conclude that it did, we reverse and remand.

I.

BP, p.l.c. (“BP”) is a multinational oil and gas company headquartered in London, England. BP offered its employees .a choice of investment and savings plans (the “Plans”) regulated by ERISA, 29 U.S.C. §§ 1001-1461. The Plans included the BP Stock Fund—an employee stock ownership plan (“ESOP”) comprised primarily of BP stock—as an investment option.

On April 20, 2010, the BP-leased Deep-water Horizon offshore drilling rig exploded, causing a massive oil spill in the Gulf of Mexico and a subsequent decline in BP’s stock price. The BP Stock Fund lost significant value, and the affected investors filed suit on June 24, 2010, alleging that the plan fiduciaries: (1) breached their duties of prudence and loyalty by allowing the Plans to acquire and hold overvalued BP stock; (2) breached their duty to provide adequate investment information to plan participants; and (3) breached their duty to monitor those responsible for managing the BP Stock Fund.

The district court determined that the fiduciaries’ investments in company stock were entitled to a “presumption of prudence” under Kirschbaum v. Reliant Energy, Inc., 526 F.3d 243, 255 (5th Cir. 2008) (applying Moench v. Robertson, 62 F.3d 553 (3d Cir. 1995), abrogated by Fifth Third, — U.S. -, 134 S.Ct. 2459). The district court held that the plaintiffs (hereafter “stockholders”) had failed to overcome the Moench presumption and dismissed their claims under Federal Rule of Civil Procedure 12(b)(6). The stockholders appealed, and while their appeal was pending in this court, the Supreme Court issued Fifth Third, holding that there was no such “presumption of prudence” under ERISA. 134 S.Ct. at 2467. Instead, the Court held that “[t]o state a claim for breach of the duty of prudence on the basis of inside information, a plaintiff must plausibly allege an alternative action that the defendant could have taken that would have been consistent with' the securities laws and that’ a prudent fiduciary in the same circumstances would not have viewed as more likely to harm the fund than to help it.” Id. at 2472. This court then vacated the district court’s judgment arid remanded for reconsideration in light of Fifth Third: Whitley v. BP, P.L.C., 575 Fed.Appx. 341, 343 (5th Cir. 2014).

On remand, the stockholders moved to file an aimended complaint alleging, as per Fifth Third, that the defendant fiduciaries possessed unfavorable inside information about BP and that they could have taken various alternative actions that would not have done more harm than good to the BP Stock Fund. The district court held that: (1) the stockholders had plausibly alleged that the defendants had inside information; and (2) the stockholders had plausibly alleged two alternative actions that the defendants could have taken that met the Fifth Third standard: freezing, limiting, or restricting company stock purchases; and disclosing unfavorable information to the public. The district court granted the motion to amend with respect to pleading these alternative actions. It then certified the defendants’ motion for interlocutory appeal.

II.

Under 28 U.S.C. § 1292(b), this court has “appellate jurisdiction over the order certified to the court of appeals,” and “review is not limited to the controlling question’ of law formulated by the district court in its certification order.” Hines v. Alldredge, 783 F.3d 197, 200 (5th Cir. 2015). This court reviews “de novo a district court’s grant or denial of a Rule 12(b)(6) motion to dismiss.” Id. at 200-01 (quoting True v. Robles, 571 F.3d 412, 417 (5th Cir. 2009)). Here, because the district court’s grant of leave to amend was the functional equivalent of a denial of a Rule 12(b)(6) motion to dismiss, and was based on a question of law, this court reviews the district court’s order de novo.

III.

ERISA, 29 U.S.C. §§ 1001-1461, protects participants in voluntarily established, private sector retirement plans. It does this “by establishing standards of conduct, responsibility, and obligation for fiduciaries of employee benefit plans.” 29 U.S.C. § 1001(b). It “provides that an employer who sponsors an employee plan may also serve as a fiduciary of that plan,” and it “imposes on the employer-fiduciary and on those who manage the plan strict statutory duties, including loyalty, prudence, and diversification.” Kirschbawm, 526 F.3d at 248.

Here, the BP Stock Fund was an ESOP. “The term ‘employee stock ownership plan’ means an individual account plan ... which is designed to invest primarily in qualifying employer securities....” 29 U.S.C. § 1107(d)(6)(A). When the share price of an employer’s stock decreases, the value of an employee-held ESOP account decreases as well. When the share price of an employer’s stock decreases significantly, the affected employees often sue to recover their losses on their investments in employer stock. Such actions are commonly known as “stock-drop” suits.

Courts have recognized a tension between a fiduciary’s duty to prudently manage investments under ERISA and Congress’s allowance of funds composed primarily of employer stock. In Moench, the Third Circuit framed the question as follows: “To what extent may fiduciaries of [ESOPs] be held liable under [ERISA] for investing solely in employer common stock, when both Congress and the terms of the ESOP provide that the primary purpose of the plan is to invest in the employer’s securities[?]” 62 F.3d at 556. There, the plaintiffs sued after their employer, a bank, collapsed, wiping out their ESOP investments. After a lengthy discussion of the history and purpose of ERISA and ESOP funds, the Third Circuit ultimately held that “an ESOP fiduciary who invests the assets in employer stock is entitled to a presumption that it acted consistently with ERISA by virtue of that decision.” Id. at 571. This presumption was later adopted by several other circuits, including this one in Kirschbaum, 526 F.3d at 255.

The Moench presumption was rejected by the Supreme Court in Fifth Third. — U.S.-, 134 S.Ct. 2459. There, the defendants included a large financial services firm and the plaintiffs were ESOP participants. The firm’s stock price plummeted seventy-four percent during the great recession. The plaintiffs sued, alleging that “the fiduciaries knew or should have known that Fifth Third’s stock was overvalued and excessively risky” based on both public information and nonpublic, i.e., inside, information. Id. at 2464. The district court held that the defendants were entitled to a “presumption that their decision to remain invested in Fifth Third stock was reasonable,” Dudenhoeffer v. Fifth Third Bancorp, 757 F.Supp.2d 753, 758 (S.D. Ohio 2010), and cited Moench. The district court held that the plaintiffs had failed to allege sufficient facts to overcome the presumption and dismissed the complaint under Rule 12(b)(6). The Sixth Circuit reversed. Dudenhoefer v. Fifth Third Bancorp, 692 F.3d 410, 424 (6th Cir. 2012). The Sixth Circuit did not reject the application of the presumption; rather, it held that the presumption concerns questions of fact that do not apply at the pleading stage. Id. at 418-19.

The Supreme Court noted that “[i]n applying a ‘presumption of prudence’ that favors ESOP fiduciaries’ purchasing or holding of employer stock, the lower courts have sought to reconcile congressional directives that are in some tension with each other.” 134 S.Ct, at. 2465. “On the one hand, ERISA itself subjects pension plan fiduciaries to a duty of prudence,” while “[o]n the other hand, Congress recognizes that ESOPs are ‘designed to invest primarily in’ the stock of the participants’ employer, § 1107(d)(6)(A), meaning that they are not prudently diversified.” Id. After reviewing the “pertinent provisions of ERISA,” the Court held that “the law does not create a special presumption favoring ESOP fiduciaries” and that “the same standard of prudence applies to all ERISA fiduciaries, including ESOP fiduciaries, except that an ESOP fiduciary is under no duty to diversify the E SOP’s holdings.” Id. at 2467.

The Court nonetheless recognized the plaintiffs’ “legitimate” concern “that subjecting ESOP fiduciaries to a duty of prudence without the protection of a special presumption will lead to conflicts with the legal prohibition on insider trading” because “ESOP fiduciaries often are company insiders and because suits against insider fiduciaries irequently allege ... that the fiduciaries were imprudent in failing to act on inside information they had about the value- of the employer’s stock.” Id. at 2469. The Court disagreed that the presumption of prudence applied by the lower courts was “an appropriate way to weed out meritless lawsuits” and stated that such a task could “be better accomplished through careful, context-sensitive scrutiny of a complaint’s allegations.” Id. at 2470.

Turning to pleading standards, the Court stated that “where a stock is publicly traded, allegations that a fiduciary should have recognized from publicly available information alone that the market was over- or undervaluing the stock are implausible hs a general rule, at least in the absence of special circumstances.” Id. at 2471. The Court then stated:'

To state a claim for breach of the duty of prudence on the basis of inside information, a plaintiff must plausibly allege an alternative action that the defendant could have taken that would have been consistent with the securities laws and that a prudent fiduciary in the same circumstances would not have viewed as more likely to harm the fund than to help it.

Id. at 2472. The Court vacated and remanded, “leaving] it to the courts below to apply the foregoing to the complaint in this case in the first instance.” Id. at 2473.

The Ninth Circuit soon took on the challenge of interpreting the Supreme Court’s Fifth Third pleading standards in Harris v. Amgen, Inc., 788 F.3d 916 (9th Cir. 2015). Harris—like this case—was an employee stock-drop action that was filed before Fifth Third. In Harris, the plaintiffs alleged that Amgen, a pharmaceutical company, concealed unfavorable information about a drug, and that when the unfavorable information came to light, Amgen’s share price declined significantly. The plaintiffs claimed “that fiduciaries of Am-gen’s stock-ownership plans knew or should have known that the ■ stock was overvalued based on inside information, and should have either removed the Am-gen stock as an investment option or revealed to the general public” the unfavorable inside information. Id. at 924 (Kozinski, J., dissenting from denial of rehearing en banc). The Ninth Circuit decided that the allegations in the plaintiffs’ complaint— despite being written before Fifth Third— were- sufficient because it was “plausible” that the “defendants could remove the Fund from the list of investment options without causing undue harm to plan participants.” Id. at 938. The court further held that the Supi-emeCourt had “articulated certain standards - for ERISA liability in Fifth Third” but that the Ninth Circuit had “already assumed those standards” in an earlier opinion. Id. at 940,

The Supreme Court reversed. Amgen Inc. v. Harris, — U.S. -, 136 S.Ct. 758, 193 L.Ed.2d 696 (2016). The Court clarified that the complaint itself must plausibly allege “that a prudent fiduciary in the same position ‘could not have concluded’ that the alternative action ‘would do more harm than good.’” Id. at 760 (quoting Fifth Third, 134 S.Ct. at 2463). The Court clarified that a court cannot simply presume that the plaintiffs proposed alternatives would satisfy the Fifth Third standards; rather, “the facts and allegations supporting that proposition should appear in the stockholders’ complaint.” Id. Noting that the plaintiffs were the “masters of them complaint,” the Court left it to the district court to determine whether the Amgen plaintiffs could amend their complaint to satisfy the standards of Fifth Third. Id.

In light of these decisions, the district court here erred when it altered the language of Fifth Third to reach its holding. In Fifth Third, the Supreme Court stated that the plaintiffs proposed alternative must be one that “a prudent fiduciary in the same circumstances would not have viewed as more likely to harm the fund than to help it." 134, S.Ct. at 2472 (emphasis added). But here the district court stated that it could not determine, “on the basis of the pleadings alone, that no prudent fiduciary would have concluded that [the alternatives] would do more good than harm,” (second emphasis added). These statements are not equivalent. Under the Supreme Court’s formulation, the plaintiff bears the significant burden of proposing ah alternative course of action so clearly beneficial that a prudent fiduciary could not conclude that it would be more likely to harm the fund than tó help it.

Here, the stockholders have failed to do so. Indeed, in certifying this* case for interlocutory appeal the district court recognized that if defendants have correctly read Dudenhoeffer to require “plaintiffs to plausibly allege that no prudent fiduciary could have concluded that the proposed alternative action would do more harm than good”—and Amgen has since confirmed that is the standard—then the plaintiffs claim should be dismissed. In their amended complaint, the stockholders state that their proposed alternatives “(a) could have been done without violating the securities laws or any other laws; (b) should have been done to fulfill Defendants’ fiduciary obligations under ERISA; and (c) would not have been more likely to harm the BP Stock Fund than to help it.” Aside from these concldsory statements, the stockholders do not specifically allege, for each proposed alternative, that a prudent fiduciary could not have concluded that the alternative would do more harm than good, nor do they offer facts that would support such an allegation. This runs counter to the Supreme Court’s directive that “the facts and allegations supporting” an, alternative action that could satisfy Fifth Third’s, standards “should appear in the stockholders’ complaint.” 136 S.Ct. at 760. See also Rinehart v. Lehman Bros. Holdings Inc., 817 F.3d 66, 68 (2d Cir. 2016) (affirming a dismissal under 12(b)(6) because the plaintiffs’ complaint did not “plausibly plead facts and allegations showing that a prudent fiduciary during the class period ‘would not have viewed [disclosure of material nonpublic information regarding Lehman or ceasing to buy Lehman stock] as more likely to harm the fund than to help it’ ” (quoting Amgen, 136 S.Ct. at 759) (alteration in original)).

The amended complaint states that BP’s stock was overvalued prior to the Deepwa-ter Horizon explosion due to “numerous undisclosed safety breaches” known only to insiders. In other words, the stockholders theorize that BP stock was overpriced because BP had a greater risk exposure to potential accidents than was known to the market.. Based on this fact alone, it does not seem reasonable to say that a prudent fiduciary at that time could not have concluded that (1) disclosure of such information to the public or (2) freezing trades of BP stock—both of which would likely lower the stock price—would do more harm than good. In fact, it seems that a prudent fiduciary could very easily conclude that such actions would do more harm than good.

Accordingly, we find that the stockholders’ amended complaint is insufficient, and the district court erred in granting the stockholders’ motion to amend.

IV.

For the foregoing reasons, the judgment of the district court is REVERSED, and the case is REMANDED for further proceedings.


author: RHESA HAWKINS BARKSDALE, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee4 v. Ivan SUCHOWOLSKI, Defendant-Appellant
    No. 15-20409
    United States Court of Appeals, Fifth Circuit.
    Filed September 26, 2016

      John A. Reed, Renata Ann Gowie, Assistant U.S. Attorneys, U.S. Attorney’s Office, Houston, TX, for Plaintiff-Appellee.
    John Dennis Hester, Dan Lamar Cog-dell, Esq., Cogdell Law Firm, P.L.L.C., Houston, TX, for Defendant-Appellant.
    Before JOLLY, BARKSDALE, and SOUTHWICK, Circuit Judges.
   RHESA HAWKINS BARKSDALE, Circuit Judge:

After almost a quarter-century’s unlawful receipt of social-security benefits in the guise of a person who died in 1990, Ivan Suchowolski pleaded guilty to theft of government property, in violation of 18 U.S.C. § 641, and was sentenced, inter alia, to 18 months’ imprisonment. At issue is whether, in calculating the offense level for use in computing the advisory Sentencing Guidelines range, the district court erred in applying Guideline § 2Bl.l(b)(ll)(C)(i): a two-level enhancement for using an unauthorized means of identification to obtain another means of identification. AFr FIRMED.

I.

In the 1980s, Ruth Stolzenback, a former caregiver to defendant’s mother, gave him permission to assist with Stolzenback’s financial affairs while she was in a nursing home. To this end, Suchowolski was authorized to access a joint bank account with Stolzenback to pay her bills. During this time, Stolzenback received Social Security Administration (SSA) retirement benefits; Suchowolski provided his address on her SSA account to receive paper checks and deposit them in the joint account.

Stolzenback died in 1990. Suchowolski claims he attempted to notify the SSA of her death; nonetheless, he continued to receive checks from the SSA payable to Stolzenback and deposit them in the joint account for his personal use.

In 2008, the SSA began requiring direct deposit of benefits payments, ending the practice of mailing paper checks. As a result, and in order to continue receiving the payments, Suchowolski forged Stolzen-back’s name on a signature card and used her social-security number to open a joint checking account at a credit union under his and Stolzenback’s names. The SSA payments were directly deposited into this account from 2008 to 2011, when the credit union closed. Therefore, again forging Stolzenback’s name on a signature card and using her social-security number, Su-chowolski opened a joint checking account at a bank to continue receiving the payments.

Suchowolski continued to receive SSA payments unlawfully until 2014, when they were terminated, following the SSA’s investigating Stolzenback’s SSA account through a review program for individuals who had not used Medicare benefits for three years. In doing so, the SSA discovered Stolzenback’s death certificate and confronted Suchowolski. After pleading guilty, he was convicted in 2015.

Suchowolski received $220,662 in SSA benefits after Stolzenback’s death. The SSA recovered $34,000 from the bank account, resulting in a loss of $186,662. The presentence investigation report (PSR) recommended, inter alia, the two-level enhancement at issue: use of an unauthorized means of identification to obtain another means of identification. As the PSR explained, Suchowolski used Stolzenback’s name and social-security number to create additional means of identification, through the credit union and bank accounts. The court applied the two-level enhancement oyer objections by both Suchowolski and the Government.

II.

Suchowolski continues to challenge the enhancement. On the other hand, and despite its ■ objections in district court, the Government urges the enhancement was proper.

Although post -Booker, the Guidelines are advisory only, and a properly preserved objection to an ultimate sentence is reviewed for reasonableness under an abuse-of-discretion standard, the district court must still properly calculate the advisory Guidelines-sentencing range for use in deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 48-51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). In that respect, for issues preserved in district court, its application of the Guidelines is reviewed de novcr, its factual findings, only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). But, issues not raised in distinct court are reviewed only for plain error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012).

Resolution of this appeal rests on interpreting Guideline § 2B1.1. “[T]he plain language of the [Guideline controls when it (1) is not' ambiguous and (2) produces a result that is not absurd”. United States v. Baker, 742 F.3d 618, 622 (5th Cir. 2014). The Guideline at issue imposes the two-level enhancement for “the unauthorized transfer or use of any means of identification unlawfully to produce or obtain any other means of identification”. U.S.S.G. § 2Bl.l(b)(ll)(C)(i). In that regard, the commentary provides:

“Means of identification” has the meaning given that term in 18 U.S.C. § 1028(d)(7), except that such means of identification shall be of an actual (i.e., not fictitious) individual, other than the defendant or a person for whose conduct the defendant is accountable under § 1B1.3....

U.S.S.G. § 2B1.1 cmt. n.l. The language in the commentary is the main focus of the parties’ dispute.

A.

For contending the court applied the Guideline improperly, Suchowolski presents five issues: (1) the 2008 and 2011 accounts were not “unauthorized”; (2) a “means of identification” does not include signature cards or checking accounts; (3) an “actual individual” must be alive; (4) the enhancement was intended only for fraudulently-obtained loans; and (5) the rule of lenity precludes the enhancement. In response, the Government, inter alia, insists he presented only the first and fourth issues in district court, and that, accordingly, plain-error review governs the other three.

It is well-established that our court, not the parties, determines the appropriate standard of review. E.g., United States v. Vontsteen, 950 F.2d 1086, 1091 (5th Cir. 1992) (en banc). As Suchowolski concedes, he did not preserve the rule-of-lenity issue in district court; he did preserve the issues for whether: the 2008 and 2011 accounts were not “unauthorized”; and the enhancement was intended for different forms of identity theft. The standard of review for the two remaining issues need not be determined' because, assuming arguendo they were preserved, his claims still fail. See United States v. Kay, 513 F.3d 432, 452 n.86 (5th Cir. 2007).

B.

1.

Suchowolski concedes opening the 2008 and 2011 accounts was unlawful, but notes “unauthorized use” is an additional element for the enhancement. According'to him, Stolzenback’s authorization, prior to her death in 1990, for him to access their joint bank account places his conduct outside the scope of the enhancement. The Government responds that any authorization given prior to Stolzenback’s death could not extend to using her name and social-security number to create joint accounts in 2008 and 2011. Further, it asserts a person cannot authorize engaging in illegal conduct.

At oral argument here, Suchowolski suggested it was “presumed” he was authorized to use the original joint bank account with Stolzenback, but conceded he could not find—nor can we—anything in the record affirmatively demonstrating that, during her lifetime, she gave him authorization to create a joint bank account with her. Both common sense and the record make clear Suchowolski created the fraudulent accounts in 2008 and 2011 without Stolzenback’s authorization: for starters, she had been dead nearly 20 years before he opened the first one.

2.

Suchowolski claims his conduct did not fit the language of the Guideline because the signature cards on which he forged Stolzenback’s name, as well as the two resulting accounts, are not included in-the non-exhaustive list of items in 18 U.S.C. § 1028(d)(7) covered by the definition of “means of identification”. The Government responds: the cards are irrelevant; and the use of Stolzenback’s name and social-security number to generate fraudulent account routing numbers was sufficient to qualify under the definition.

As Suchowolski notes, the non-exhaustive list in the statute does not include signature cards or bank accounts. But, it includes names, social-security numbers, and routing codes as “means of identification”. See § 1028(d)(7)(A) and (C). Sucho-wolski’s conduct fell within the ambit of Guideline §§ 2Bl.l(b)(ll)(C)(i) and 2B1.1 cmt. n.l.

3.

To claim the enhancement does not apply because Stolzenback, after her death, was not covered under the term “actual individual”, Suchowolski relies on various dictionary definitions, in order to assert a person must be alive to be an “actual individual” for purposes of the Guideline. The Government counters that the plain meaning of “actual individual” must be understood in the light of the commentary’s limitation in the modifying parenthetical immediately following “actual”: “i.e., not fictitious”.

As the eleventh circuit ruled in United States v. Philidor, “[b]ecause ‘i.e.’ is an abbreviation for ‘that is,’ the plain meaning of the language used by Congress was that [‘not' fictitious’] was the exclusive definition for ‘actual’ 717 F.3d 883, 886 (11th Cir. 2013). “Accordingly, the plain meaning of the phrase ‘actual’ does not distinguish between living and deceased persons.” Id.

4.

In maintaining the enhancement does not apply because, it. was meant only for when “an individual’s identity is used to extend credit or obtain a loan”, Suchowol-ski points to the two examples provided in §2B1.1 cmt. n.l0(C)(ii): obtaining a loan with identification information from stolen mail; and obtaining a credit card with identification information from a stolen driver’s license. His actions, according to him, were “more akin to forging a signature to cash a stolen check ... [which] is specifically articulated as conduct that does not warrant the enhancement”. (Emphasis in original.)

As the Government demonstrates, however, our court has affirmed application of the Guideline outside the context of credit fraud, and applied the enhancement under circumstances factually analogous to those at hand. See United States v. Davis, 324 Fed.Appx. 395, 395 (5th Cir. 2009) (unpublished); United States v. Geeslin, 236 Fed.Appx. 885, 886 (5th Cir. 2007) (unpublished).

5.

Finally, Suehowolski maintains the rule of lenity precludes the enhancement’s application. But, as noted, he concedes he did not rely on this rule in district court. As also noted, issues raised for the first time on appeal are reviewed only for plain error. E.g., Broussard, 669 F.3d at 546. Under that standard, defendant must show a forfeited plain (clear or obvious) error that affected his substantial rights. Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). If he does so, we have the discretion to correct the error, but should do so only if it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings”. Id.

“[T]he rule of lenity only applies if, after considering the text, structure, history, and purpose, there remains a grievous ambiguity or uncertainty in the statute, such that the [c]ourt must simply guess as to what Congress intended”. United States v. Castleman, — U.S. -, 134 S.Ct. 1405, 1416, 188 L.Ed.2d 426 (2014). A novel fact pattern alone does not invoke the rule of lenity. United States v. Shabani, 513 U.S. 10, 17, 115 S.Ct. 382, 130 L.Ed.2d 225 (1994). Although other courts interpreting § 2B1.1 have found it to be “awkwardly written”, United States v. Hawes, 523 F.3d 245, 249 (3d Cir. 2008); United States v. Melendrez, 389 F.3d 829, 832 (9th Cir. 2004), they have applied the enhancement, Hawes, 523 F.3d at 249; Melendrez, 389 F.3d at 832. Further, the above discussion demonstrates the enhancement does apply in this factual context. In any event, Suehowolski has not shown the requisite clear or obvious error.

III.

For the foregoing reasons, the judgment is AFFIRMED.