author: SELYA, Circuit Judge.

text:
    OAHN NGUYEN CHUNG, individually and as administratrix of the Estate of Lisa Tam Chung, and Liem Chung, Plaintiffs, Appellants, Ollie Daily, Loren Daily and Patricia Daily, Plaintiffs, v. STUDENTCITY.COM, INC., Defendant, Appellee.
    No. 16-1765
    United States Court of Appeals, First Circuit.
    April 14, 2017

      Joseph P. Musacchio, with whom Anthony Tarricone and Kreindler and Kreindler LLP, Boston, MA, were on brief, for appellants.
    Rodney E. Gould, Framingham, MA, with whom Robert C. Mueller, Burke, VA, and Smith Duggan Buell & Rufo LLP were on brief, for appellee.
    Before HOWARD, Chief Judge, SELYA and LYNCH, Circuit Judges.
   SELYA, Circuit Judge.

District courts have authority to enter summary judgment on grounds not raised by the parties. That authority, though, is far from unbridled. Here, the district court — with the acquiescence of the parties- — limited pretrial discovery to specific issues. It later entered summary judgment on a completely different issue — an issue not briefed and on which discovery had not been allowed. Concluding, as we do, that the district court’s shift in focus exceeded its authority, we vacate the judgment and remand for further proceedings consistent with this opinion.

I. BACKGROUND

We rehearse the facts in the light most amenable to the parties opposing summary judgment (here, the plaintiffs). See Jones v. Secord, 684 F.3d 1, 3 (1st Cir. 2012). StudentCity.com, Inc. (StudentCity) is a Delaware corporation that maintains its principal place of business in Massachusetts. It sells vacation packages to students, including those traveling for spring break or to celebrate graduations.

In the fall of 2007, Lisa Tam Chung and Loren Daily were high-school seniors in Grand Prairie, Texas. A StudentCity representative contacted Loren to promote the firm’s wares and piqued her curiosity about booking a graduation trip. Once a critical mass of students had expressed interest about such a trip, the StudentCity representative held an informational meeting. The representative assured the assemblage (including several parents) that Stu-dentCity staff attend all events and that participating students would not be permitted to go anywhere unaccompanied. She also distributed promotional materials that stated in pertinent part:

• StudentCity will provide “[o]n site staff at all scheduled events — beginning to end.”
• StudentCity “staffs all scheduled events from beginning to end.”
• StudentCity maintains “the largest staff-torstudent ratio and our 24-hour staff is there to give you the peace of mind you need.”
• StudentCity staff will be present “to assure that everyone is having a great and responsible time.”

Loren’s parents met with the StudentCity representative and read the written materials. Lisa relayed StudentCity’s representations to her parents, who had limited English proficiency. With the blessing of both families, the girls purchased vacation packages for a June 2008 trip to Cancún, Mexico, adding an optional snorkeling excursion.

The snorkeling excursion took place on June 7, when the participants boarded the SS Sea Star, a catamaran owned and operated by Servicios Marítimos y Acua del Caribe SA de C.Y. (SMA). A StudentCity staff member transported Lisa and Loren to the Sea Star, a vessel approved to carry eighty passengers and three crew members for this kind of outing. On the day in question, however, it carried at least 120 StudentCity travelers and no fewer than 210 persons in total. No on-duty StudentCity representative was on board.

The snorkeling trip had a tragic ending: the Sea Star hit a coral reef and began to take on water, yet the crew provided no assistance to the passengers (indeed, some crew members deserted ship). Acting on their own, Lisa and Loren donned life preservers and tried to reach safety by grabbing a rope that extended between the Sea Star and a small private vessel. Their efforts failed and they were pulled under the water. Loren suffered serious injuries, but survived; Lisa was pronounced brain dead at a local hospital and died on June 10, 2008.

Following an investigation, the harbormaster concluded that the “concentration of passengers in the boat” caused a “considerable imbalance,” which most likely led to the Sea Star’s collision with the coral reef. Similarly, the Mexican government attributed the accident to the catamaran’s “imprudent overload” and the “negligent performance” of the captain.

A civil action ensued. Although this suit originally had a wider compass, the only claim that is still velivolant is the claim for Lisa’s wrongful death — a claim brought by her parents, Oahn Nguyen Chung (individually and in her capacity as administratrix of Lisa’s estate) and Liem Chung. As to this claim, StudentCity moved to dismiss or, in the alternative, for summary judgment. See Fed. R. Civ. P. 12(b)(6), 56(a). The district court denied the motion to dismiss, but reserved decision on summary judgment. See Chung v. StudentCity.com, Inc. (Chung I), No. 10-10943, 2013 WL 6528516, at *2 (D. Mass. Dec. 12, 2013). It reasoned that

[discovery has not yet begun in this matter.... Much of the factual information plaintiffs desire is in defendant’s control and can be turned over expeditiously. That information may affect the determination of whether defendant voluntarily undertook a duty to ensure the safety of trip participants, and whether defendant knew or should have known about [SMAJ’s dubious prior safety record, if indeed it exists.

Id.

After limited discovery — a circumstance to which we shortly shall return — the district court granted summary judgment in favor of StudentCity. With respect to one of the issues to which discovery had been allowéd, the court concluded that there was “no evidence to suggest that the steps StudentCity took in selecting its snorkeling excursion vendor were unreasonable under the circumstances.” With respect to the other issue, the court concluded that “StudentCity voluntarily assumed a duty to generally supervise tour participants during all StudentCity-organized/sched-uled events, including the June 7, 2008 snorkeling excursion.” Even so, the court ruled that the negligent supervision “claim fails on causation” because “Lisa’s death resulted not from inadequate supervision by StudentCity staff, but rather from the boat accident- caused by the overloading of the Sea Star and its negligent operation by [SMA].” This timely appeal followed.

II. ANALYSIS

We review a district court’s entry of summary judgment de novo. See Gomez v. Stop & Shop Supermkt. Co., 670 F.3d 395, 396 (1st Cir. 2012). In conducting •this appraisal, we take “all the facts in the light most flattering to the nonmoving party, resolving any evidentiary conflicts in that party’s favor, and drawing all reasonable inferences therefrom to his behoof.” Id. ‘We will affirm only if the record discloses no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of,law.” Tropigas de F.R., Inc. v. Certain Underwriters at Lloyd’s of London, 637 F.3d 53, 56 (1st Cir. 2011). An issue is genuine if a reasonable factfinder could resolve it in favor of either party. See id. An issue is material if it holds the potential to change the outcome of the suit. See id.

Jurisdiction in this case is predicated on diversity of citizenship and the existence of a controversy in the requisite amount. See 28 U.S.C. § 1332(a). In a diversity case, state law supplies the substantive rules of decision. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Geshke v. Crocs, Inc., 740 F.3d 74, 77 (1st Cir. 2014). The parties agree that, consistent with the choice-of-law provision in the customer agreement, Massachusetts law. controls here. We have said that “a federal court sitting in diversity is free, if it chooses, to forgo independent analysis and accept the parties’ agreement” as to which state law applies. Borden v. Paul Revere Life Ins. Co., 935 F.2d 370, 375 (1st Cir. 1991). Accordingly, we look to Massachusetts law.

Under Massachusetts law, wrongful death is a species of negligence, see Mass. Gen. Laws ch. 229, § 2 (imposing liability for damages against “[a] person who ... by his negligence causes the death of a person”), and as such demands proof of four elements: “that the defendant owed the plaintiff a duty of reasonable care, that the defendant breached this duty, that damage resulted, and that there was a causal relation between the breach of the duty and the damage,” Jupin v. Kask, 447 Mass. 141, 849 N.E.2d 829, 834-35 (2006).

The existence vel non of a duty presents “a question of law to be resolved by the judge.” Cottam v. CVS Pharmacy, 436 Mass. 316, 764 N.E.2d 814, 819 (2002). Massachusetts courts recognize that a duty may be voluntarily assumed and, if it is, “must be performed with due care.” Id. at 821 (quoting Mullins v. Pine Manor Coll., 389 Mass. 47, 449 N.E.2d 331, 336 (1983)). Causation, by contrast, generally presents a question of fact within “the special province of the jury.” Jupin, 849 N.E.2d at 835. It is thus apparent that duty and causation are separate and distinct elements of negligence and negligence-like actions.

Here, the plaintiffs’ principal argument is that the district court erred in premising its summary judgment decision on the perceived absence of causation — an issue that was neither argued by Stu-dentCity nor open to discovery. StudentCity demurs: it asserts that the issue of causation was squarely raised at summary judgment. The record, though, belies this assertion. We start there.

StudentCity posits that its motion papers made clear that neither it nor its agents were

part of the Sea Star’s crew, and had no responsibility for boarding passengers, determining where passengers were to be positioned, navigating the vessel, providing safety equipment on the vessel, controlling or limiting the number of passengers, or otherwise instructing the passengers or the StudentCity participants on the Sea Star’s rules and regulations.

In context, however, it is pellucid that these arguments were advanced not in connection with any issue of causation, but to support StudentCity’s lack-of-duty theory. Its summary judgment briefing does not in any way, shape, or form link these arguments to causation. Instead, the arguments- — to use StudentCity’s own term— related to its “responsibility,” and “responsibility” is synonymous with “duty.” See Responsibility, Oxford English Dictionary (3d ed. 2010), http://www.oed.com/view/ Entry/163862 (defining responsibility as “[t]he state or fact of being in charge of or of having a duty towards a person or thing”).

Nor is StudentCity’s assertion made more plausible by either of two additional statements in its summary judgment papers. It notes that, in its motion, it alleged that “[t]our operators such as StudentCity are simply not liable for the alleged negligence of third-party service suppliers, ... regardless of the theory advanced.” This broad statement is of no help to StudentCity, though,’ because it ignores the district court’s holding that, in this instance, Stu-dentCity voluntarily assumed a duty to supervise. Once assumed, that duty had to be performed with due care. See Cottam, 764 N.E.2d at 821.

StudentCity also points to a sentence in the memorandum accompanying its summary judgment motion, to the effect that “StudentCity owed no such duty [the breach of] which was the proximate cause of Lisa Tam Chung’s death.” This statement plainly went to duty, not causation, as a basis for summary judgment. Consequently, we conclude, without serious question, that StudentCity never raised causation as a ground for summary judgment.

Because causation was not placed in issue, we deem the district court’s decision to base its ruling on that ground to be “a species of sua sponte summary judgment.” Berkovitz v. Home Box Office, Inc., 89 F.3d 24, 28 (1st Cir. 1996). While a district court may in rare circumstances enter summary judgment on a ground not raised by any party, see Fed. R. Civ. P. 56(f)(2), that power should be exercised sparingly and “with great circumspection,” Stella v. Town of Tewksbury, 4 F.3d 53, 55 (1st Cir. 1993). The “spontaneous nature” of the district court’s action, though, does not affect our de novo standard of review. Berkovitz, 89 F.3d at 30; accord John G. Alden, Inc. of Mass. v. John G. Alden Ins. Agency of Fla., Inc., 389 F.3d 21, 24 (1st Cir. 2004).

When considering the boundaries of a district court’s authority to grant summary judgment sua sponte, we have regularly imposed two constraints: first, discovery must be “sufficiently advanced” to afford the parties “a reasonable opportunity to glean the material facts”; and second, the “targeted part/’ must have been given “notice and a chance to present its evidence on the essential elements of the claim or defense.” Berkovitz, 89 F.3d at 29; accord Block Island Fishing, Inc. v. Rogers, 844 F.3d 358, 363 (1st Cir. 2016); Wells Real Estate Inv. Trust II, Inc. v. Chardon/Hato Rey P’ship, S.E., 615 F.3d 45, 51 (1st Cir. 2010). These conditions afford important protections: access to discovery ensures that a litigant has an opportunity to learn the relevant facts, and notice that an issue is in play ensures that a litigant has an opportunity to put his best foot forward. Both safeguards are applicable where, as here, the district court grants summary judgment on a ground not previously raised. See Block Island Fishing, 844 F.3d at 363.

In applying these tenets, discovery is deemed to be sufficiently advanced once it has “proceeded to the point where the parties underst[an]d the material facts.” Sanchez v. Triple-S Mgmt., Corp., 492 F.3d 1, 7 (1st Cir. 2007) (quoting Penobscot Indian Nation v. Key Bank of Me., 112 F.3d 538, 562 (1st Cir. 1997)). This means, at a minimum, that there must be a reasonable opportunity to conduct discovery on a particular issue. Here, the plaintiffs were not given the chance to conduct any discovery at all on the causation issue. The district court’s order reserving decision on the summary judgment motion, fairly read, contemplated discovery on only two factual issues: the existence of a duty to supervise (that is “whether defendant voluntarily undertook a duty to ensure the safety of trip participants”) and whether StudentCity breached its duty to investigate SMA (that is, “whether defendant knew or should have known about [SMA] ’s dubious prior safety record”). Chung I, 2013 WL 6528516, at *2.

Subsequent proceedings and communications drove home the. circumscribed scope of the permitted discovery. When the parties expressed uncertainty about the reach of the court’s order, the plaintiffs sought to confirm (by an e-mail to the court clerk) “that the fact discovery deadline ... only relates to the facts related to the summary judgment issue of whether the defendant had a duty to protect the decedent and the deadline does not relate to all fact discovery on all issues in the event the motion for summary judgment is denied.” The clerk responded that discovery was so limited and that “if the motion is denied, I will set up another hearing for the parties to come in and talk to the Judge.” StudentCity’s counsel was copied on both parts of this e-mail exchange.

StudentCity’s own objections to the plaintiffs’ discovery requests support our conclusion that discovery was limited and excluded causation. In framing these objections, StudentCity insisted that discovery was limited to “whether [it] represented to Lisa Chung that it would be providing supervision- on the snorkeling excursion, the scope of that allegedly-assumed duty, whether that duty was breached, and whether StudentCity negligently selected [SMA].” Causation was not mentioned — a fact that undercuts Stu-dentCity’s assertion (at oral argument in this court) that the plaintiffs could have deposed its employees freely to seek information on the cause of Lisa’s death. That assertion is also undercut by the fact that, during discovery, StudentCity objected to providing “the name and contact information of all employees of [StudentCity] responsible for supervision and student safety on the date of the subject accident.”

Later, the district court, acting on a motion to compel, issued an order that confirmed the circumscribed nature of the permitted discovery:

In its previous order the court allowed the parties to conduct discovery limited to certain issues raised by defendant’s motion for summary judgment. They include (1) representations made to the plaintiffs, both, participants and their parents, concerning the safety of participants; (2) investigations defendant undertook of the entities engaged for particular activities and of any brokers or agents who assisted the selection of such entities; (3) defendant’s knowledge of the qualifications of the owners and crew of the vessel in issue; and (4) any other information that bears on defendant’s duty, if any, to ensure participants’ safety and how they performed that duty.

Chung v. StudentCity.com, Inc., No. 10-10943, 2014 WL 644439, at *1 (D. Mass. Feb. 19, 2014). The purport of this order was quite clear. And if any doubt lingered about the limited scope of the permitted discovery, that doubt was erased when the parties (after the discovery period ended) filed their supplemental briefing. Most telling was StudentCity’s supplemental brief, which declared:

the only issues are (1) whether Stu-dentCity negligently selected the -Sea Star and thus could be held liable to the plaintiffs on a negligent selection theory or (2) whether StudentCity voluntarily assumed a duty where one would not otherwise exist to ensure Lisa Chung’s safety on board the Sea Star.

The district court’s summary judgment order overlooks the restricted nature of the parties’ opportunity to develop the facts. It incorrectly states that “[discovery is now complete.” It makes no mention of the limitation theretofore imposed on discovery. The order, which turned on an issue not argued by the parties and as to which no discovery had been allowed, was beyond the district court’s authority. “When a court charts a procedural route, lawyers and litigants are entitled to rely on it.” Berkovitz, 89 F.3d at 30.

To compound the error, the plaintiffs had no notice that causation was an issue ripe for decision at this stage of the case. It is common ground that, as a precondition to the entry of summary judgment, the targeted party must be “on notice that she had to come forward with all of her evidence.” Celotex Corp. v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In this context, adequate notice has two components: “the summary judgment target is entitled to know both the grounds that the district court will consider and the point at which her obligation to bring forth evidence supporting the elements of her claim accrues.” Rogan v. Menino, 175 F.3d 75, 79 (1st Cir. 1999). Here, the plaintiffs were not seasonably apprised that the court would consider the causation issue, nor were they put on notice to adduce evidence supporting their view of that issue.

In Block Island Fishing, we suggested, albeit without deciding, that it may be necessary to show prejudice when seeking to vacate a sua sponte summary judgment. See 844 F.3d at 364 & n.1. Here, the plaintiffs have satisfied any such burden. For one thing, there is every reason to believe that discovery directed at causation would have shed light on whether Stu-dentCity’s acts or omissions contributed to Lisa’s death. For another thing, even on this underdeveloped record, the district court’s conclusion (that no reasonable jury could find that a breach of StudentCity’s voluntarily assumed duty to supervise caused Lisa’s death) is far from ironclad. The district court stated, without any elaboration, that “Lisa’s death resulted not from inadequate supervision by StudentCity staff, but rather from the boat accident caused by the overloading of the Sea Star and its negligent operation by [SMA].” As we explain below, the facts do not necessarily support that leap in logic.

The plaintiffs’ flagship claim is that Stu-dentCity’s failure to supervise the snorkeling excursion, in combination with the shipowner’s negligence, caused Lisa’s death. The district court’s reasoning seems to give insufficient weight to the venerable rule that more than one tortfeasor can be held responsible for a single incident. See Shantigar Found. v. Bear Mtn. Builders, 441 MassK 131, 804 N.E.2d 324, 332 (2004) (“Under our current system of joint and several liability, a plaintiff injured by more than one tortfeasor may sue any or all of them for her full damages.”).

On the meager record before us, numerous potential jury questions loom. For example, would an on-duty StudentCity representative, if on board at the commencement of the voyage, have thought that the boat was overcrowded and confronted its captain and crew? Would that representative have prevented the passengers from congregating on one side of the vessel, and thus avoided its tragic imbalance? Would StudentCity supervision have effected a more efficient emergency exit for Lisa, particularly in view of the fact that some Sea Star crew members deserted ship?

The answers to these (and other) questions of fact are not certain. What is certain, though, is that none of these questions was properly before the district court at summary judgment.

To say more would be to paint the lily. The record reflects that the district court granted summary judgment for StudentCity on an issue — causation—as to which no discovery had been allowed and no notice had been afforded. That was error, and manifestly not harmless. The summary judgment ruling, therefore, must be set aside.

III. CONCLUSION

We need go no further. For the reasons elucidated above, we vacate the judgment of the district court and remand for further proceedings consistent with this opinion.

Vacated and Remanded. Costs shall be taxed in favor of the plaintiffs.

      . StudentCity offered some evidence that the catamaran's maximum capacity was 250 passengers (though not for voyages to the coral reef). At the summary judgment stage, however, we are constrained to view disputed facts in the plaintiffs' favor. See Houlton Citizens’ Coal. v. Town of Houlton, 175 F.3d 178, 184 (1st Cir. 1999).

      . The remaining claims, including claims brought by and on behalf of Loren, were consigned to arbitration pursuant to the terms of StudentCity's standard customer agreement. See Chung v. StudentCity.com, Inc., No. 10-10943, 2013 WL 504757, at *4 (D. Mass. Feb. 12, 2013). That ruling has not been appealed.

      . This portion of the district court’s summary judgment ruling has not been challenged on appeal, and we treat the "negligent selection” claim as foreclosed.

      . Even though StudentCity proceeded to furnish this information, it restated its belief "that this request ... exceeds the scope of the Court’s ... order in that it is not limited- to whether StudentCity assumed a duty to supervise the June 7, 2008 snorkeling excursion.”

      . StudentCity argues that the phrase "how they performed that duty” imports some ambiguity into the order. Given the context, we do not think that a reasonably prudent lawyer would have believed that this oblique reference, without more, opened the door for unlimited discovery. Cf. Benitez-Garcia v. Gonzalez-Vega, 468 F.3d 1, 4 (1st Cir. 2006) (explaining that failure to honor discovery orders may expose attorneys to sanctions).

      . In this regard, we note that StudentCity admitted, through the deposition of its director of operations, see Fed. R. Civ. P. 30(b), that its employees should step in to quell "obvious” dangers. At an event not run by StudentCity, this might include alerting the managers of the gathering to the danger.


source: Caselaw Access Project

author: STAHL, Circuit Judge. KAYATTA, Circuit Judge,

license: Public Domain

text:
    David GOETHEL, XIII Northeast Fishery Sector, Inc., Plaintiffs, Appellants, v. U.S. DEPARTMENT OF COMMERCE; Wilbur Ross, in his official capacity as Secretary, U.S. Department of Commerce; Benjamin Friedman, in his official capacity as Acting Administrator, National Oceanic and Atmospheric Administration; National Oceanic and Atmospheric Administration; Samuel D. Rauch III, in his official capacity as Assistant Administrator for Fisheries (Acting) for the National Marine. Fisheries Service; National Marine Fisheries Service, Defendants, Appellees.
    No. 16-2103
    United States Court of Appeals, First Circuit.
    April 14, 2017

      Julie A. Smith, with whom Eric R. Bol-inder, Ryan P. Mulvey, Cause of Action Institute, and James C. Wheat, Pierre A. Chabot, and Wadleigh, Starr & Peters, P.L.L.C., Manchester, NH, were on brief for appellants.

      Thekla Hansen-Young, with whom John C. Cruden, Assistant Attorney General, Andrew C. Mergen, Robert Lundman, Alison C. Finnegan, Andrea Gelatt, Environment & Natural Resources Division, U.S. Department of Justice, and Mitch MacDonald, Gene Martin, National Oceanic and Atmospheric Administration, Office of General Counsel, Northeast Section, were on brief for appellees.
    Before KAYATTA, Circuit Judge, SOUTER, Associate Justice, and STAHL, Circuit Judge.

       Pursuant to Fed. R. App. P. 43(c)(2), the following substitutions have been made among the appellees: Wilbur Ross, U.S. Secretary of Commerce, for former Secretary Penny Pritzker; Benjamin Friedman, Acting Administrator, National Oceanic and Atmospheric Administration, for former Administrator Kathryn Sullivan; and Samuel D. Rauch III, Assistant Administrator for Fisheries (Acting) for the National Marine Fisheries Service, for former Assistant Administrator Eileen So-beck.

       Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation.

   STAHL, Circuit Judge.

This case arrives on the court’s deck from regulations promulgated by the National Marine Fisheries Service (NMFS), which require that on certain commercial fishing trips, fishermen must be accompanied on their vessels by at-sea monitors to ensure compliance with catch quotas, and that the industry must foot the bill for these unwelcome guests. David Goethel, a New Hampshire fisherman joined in these proceedings by a group of commercial fishermen subject to this “industry funding” requirement, brought suit in federal district court in New Hampshire, claiming that the industry funding requirement violates several pertinent statutes and is also unconstitutional.

The district court granted summary judgment in favor of the government, reasoning that Goethel’s suit was not filed within the applicable statute of limitations and that Goethel’s statutory and constitutional challenges would have failed even if timely. On appeal, Goethel renews the bulk of his constitutional and statutory arguments, and urges this court to find that his suit was not time-barred. Because we agree with the district court that Goethel’s suit was not timely, we AFFIRM the grant of summary judgment in favor of the government, and do not reach the question of whether the industry funding requirement contravenes the edicts of the relevant statutes or the Constitution.

I. Facts & Background

A. The Regulations

The Magnuson-Stevens Fishery Conservation and Management Act (MSA), 16 U.S.C. §§ 1801-1884, was passed by Congress in 1976 in “[r]espon[se] to depletion of the nation’s fish stocks due to overfishing.” Associated Fisheries of Me., Inc. v. Daley, 127 F.3d 104, 107 (1st Cir. 1997). The stated goals of the MSA were, inter alia, to “conserve and manage the fishery resources found off the coasts of the United States” and “to promote domestic commercial and recreational fishing under sound conservation and management principles.” 16 U.S.C. § 1801(b)(1),(3). The MSA tasked the Department of Commerce with regulating commercial fishing throughout the Exclusive Economic Zone of the United States, which extends 200 nautical miles from the seaward boundary of each coastal state. Id. § 1802(11); see also Pres. Proc. No. 5030, Exclusive Economic Zone of the United States, 48 Fed. Reg. 10,605 (Mar. 10, 1983) (defining the geographic scope of the Exclusive Economic Zone of the United States and the sovereign rights exercised therein under international law).

Pursuant to the MSA, eight regional Fishery Management Councils (FMCs) were established and charged with preparing, and, if circumstances warranted, amending, regional Fishery Management Plans (FMPs), which set certain standards for the fishing industry within the given FMC’s regional purview. The MSA was amended in 2007 to include a requirement that each FMP include “measures to ensure accountability” with respect to catch limits. See 16 U.S.C. § 1853(a)(15). In an effort to effectuate this requirement, the regional FMP at issue in this case, the Northeast Multispecies FMP, was amended by the New England Council (the relevant FMC) to include a requirement that commercial fishermen within the purview of the Northeast Multispecies FMP must, on occasion, be accompanied by at-sea monitors (ASMs) who would collect certain data related to the particular fishing trip and the vessel’s catch. See generally Northeast (NE) Multispecies Fishery, Amendment 16, 75 Fed. Reg. 18,262 (Apr. 9, 2010). The amendment that added this monitoring requirement was known as “Amendment 16,” and was published on April 9, 2010, following a period of public comment. Goethel was a council member at the time of the enactment of Amendment 16 and voted against the proposal.

The at-sea monitors are human employees of private, third-party contractors who accompany the fishermen on board their vessels during certain fishing trips, observe their activities to ensure compliance with fishing limits, and file reports upon their return to port. While catch quotas had previously been imposed, and overall catch hauls recorded upon a fisherman’s return to port, at-sea monitors were intended to verify the specific geographic areas in which a boat fished, and also to monitor fish discards at sea. See 75 Fed. Reg. at 18,342. While not every fishing journey is monitored, costs for the monitors when a particular fishing trip is selected for such monitoring are estimated at $700-$800 per trip. See Goethel v. Pritzker, No. 15-CV-497-JL, 2016 WL 4076831, at *1 (D.N.H. July 29, 2016). Application of the at-sea monitoring program depends on whether a particular fishmerman is a member of a “sector,” an association of “vessels that have voluntarily signed a contract and agree[d] to certain fishing restrictions,” most notably catch restrictions and management requirements compiled in a sector operations plan. See Lovgren v. Locke, 701 F.3d 5, 15-16 (1st Cir. 2012) (citing Northeast (NE) Multispecies Fishery, Amendment 13, 69 Fed. Reg. 22,906, 22,945 (Apr. 27, 2004)). The sector program is voluntary and those vessels that choose not to join a sector are still able to fish from the “common pool” allocation of fish under a separate program that tracks number of days spent at sea, rather than using catch limits, and that does not require at-sea monitoring. See generally 50 C.F.R. § 648.82 (discussing days-at-sea restrictions for members of the common pool). The relevant sectors in this case are comprised of those fishing for groundfish.

As is the case with many government regulations, Amendment 16 requires compliance without offering to pay or reimburse the regulated entity for the cost of compliance. To the contrary, Amendment 16 itself requires that the sector fishermen bear the costs of the at-sea monitors. See-Northeast (NE) Multispecies Fisheries, Amendment 16, 75 Fed. Reg. 18,262, 18,-342 (April 9, 2010) (“Beginning in fishing year 2010, a sector must develop, implement, and pay for, to the extent not funded by NMFS, an independent third-party dockside/roving and at-sea/electronic monitoring program that is satisfactory to, and approved by, NMFS...Notwithstand-ing this clear requirement, the government paid the ASM costs throughout the first several years of the program’s existence. See, e.g., Standardized Bycatch Reporting Methodology Omnibus Amendment, 80 Fed. Reg. 37,182, 37,185 (June 30, 2015) (“To date, we have been able to provide sufficient funding for the groundfish sector at-sea monitoring program such that industry did not have to pay for at-sea monitoring.”).

However, a 2011 ruling by the D.C. Circuit required NMFS to fund a separate reporting program, see Oceana v. Locke, 670 F.3d 1238 (D.C. Cir. 2011), which in turn depleted the funds that the agency had available for the at-sea monitoring program in the Northeast. Beginning in 2015, responding to funding shortfalls caused by the requirements of the D.C. Circuit ruling, NMFS took a series of steps to inform the sectors that it could no longer fund the at-sea monitoring costs, and the sectors themselves and their constituent fishermen would soon be on the hook for these costs, as envisioned by Amendment 16. Because of the importance of the various dates in 2015 for purposes of the statute of limitations, we explain the relevant communications between the agency and the regulated sectors below.

• March 9, 2015: NMFS published a Proposed Rule to approve seventeen sector operations plans for fishing years 2015 and 2016. While noting that the agency had been able to pay the costs of ASM coverage during the years 2012 to 2014, the agency explained that this would change: “Due to funding changes ... we expect that sector vessels will be responsible for paying at-sea costs associated with the ASM program before the end of the 2015 fishing year.” Proposed Rule, 2015 and 2016 Sector Operations Plans for Northeast Multispecies Fishery, 80 Fed. Reg. 12,380, 12,385 (Mar. 9, 2015).
• May 1, 2015: NMFS published a final rule that reiterated the same language from the March 9th proposed rule, namely, that the agency “expect[ed] that sector vessels will be responsible for paying the at-sea portion of costs associated with the sector ASM program before the end of the 2015 fishing year.” Final Rule, 2015 and 2016 Sector Operations Plans for Northeast Multispecies Fishery, 80 Fed. Reg. 25,143, 25,148 (May 1, 2015). The notice also added that “funding for our portion of ASM costs is expected to expire before the end of the 2015 fishing year” but “we have begun working on an implementation plan to help ensure a seamless transition when the industry assumes responsibility for at-sea costs in 2015.” Id. at 25,149.
• November 10, 2015: NOAA Northeast Fisheries Science Center announced that “federal funds in the major at-sea monitoring contracts for northeast groundfish sectors will be expended by December 31, 2015,” and that “[transition of monitor sea-day costs to industry will therefore be effective January 1, 2016.” This announcement was sent to the relevant sectors in an email, but was not published in the Federal Register. The email, titled “Update: Federal Funding for At-Sea Monitoring Ends December 31, 2015,” stated, in pertinent part:
Based on the data we have on actual fishing effort, we have determined that federal funds in the major at-sea monitoring contracts for northeast groundfish sectors will be expended by December 31, 2015. Transition of monitor sea-day costs to industry will therefore be effective January 1, 2016.

Although the November 10th email notification purported to establish a date certain when industry funding would kick in (January 1, 2016), the government was ultimately able to continue paying ASM costs through mid-February 2016. Additionally, on June 23, 2016, a NOAA email notification informed the Northeast Sector that the agency would fully fund the shore-based monitoring program and would “use remaining funds to offset some of industry’s costs of the groundfish at-sea monitoring program.”

B. The Parties

Plaintiff-appellant David Goethel is a New Hampshire-based commercial fishermen and sector member who is subject to the various provisions of the Northeast Multispecies FMP, including the industry funding requirement for the at-sea monitoring program. Plaintiff-appellant XIII Northeast Fishery Sector, Inc. (“Sector 13”), one of the approved groundfish sectors, is a corporation organized under Section 501(c)(5) of the U.S. Internal Revenue Code, and consists.of thirty-two fishermen and twenty active boats. The members of .Sector 13 are also subject to the Northeast Multispecies FMP, including the at-sea monitoring program. Goethel and Sector 13 presented evidence that the industry funding requirement for the at-sea monitoring program would impose draconian costs on the Sector and its members, including citing a NOAA report which concluded that “nearly 60% of the fleet could see' negative returns to owner when full 2015 ASM costs are factored in.” Plaintiffs-appellants are concerned that the industry funding requirement will essentially render the groundfish industry no longer viable from a commercial standpoint.

The defendants-appellees are the U.S. Department of Commerce, the NOAA, and the NMFS, as well as their respective directors in their official capacities.

C. The Lawsuit

Goethel filed his suit on December 9, 2015. As discussed in greater detail below, Goethel argues that because his complaint was filed within thirty days of the November 10th email notification, it was therefore timely under the MSA’s thirty-day statute of limitations. In his complaint and subsequent briefing to the district court, Goethel advanced a multitude of alleged statutory and constitutional violations, falling into one of three categories: an allegation that the industry funding requirement is unlawful, a challenge to the at-sea monitoring requirement in general, and a facial attack on the entire Magnuson-Stevens framework. We briefly describe these claims below.

First, Goethel alleged that the industry funding requirement was unlawful because the agency acted in excess of its statutory authority under the MSA and failed to follow proper procedures, resulting in agency action that was arbitrary, capricious, and an abuse of discretion, in violation of the requirements of the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A). In addition to alleging a violation of the APA, Goethel cast his net even further, alleging that the industry funding requirement was an improper tax in violation of the Appropriations Clause, U.S. Const, art. I, § 9, cl. 7, the Anti-Deficiency Act (ADA), 31 U.S.C. § 1341, and the Miscellaneous Receipts Act (MRS), 31 U.S.C. § 3302, and also constituted the imposition of improper user fees in violation of the Independent Offices Appropriations Act (IOAA), 31 U.S.C. § 9701. He also alleged that the industry funding requirement violated the interstate commerce clause, U.S. Const, art. I, § 8, cl. 3, by requiring that the fishermen enter the market for at-sea monitors and purchase those services. Finally, he alleged two procedural violations: that the agency failed to prepare a Regulatory Flexibility Analysis, as required by the Regulatory Flexibility Act (RFA), 5 U.S.C. §§ 601-612, and that it failed to assess the impact of its regulatory actions on the environment, as required by the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4370e. All of these arguments are preserved on appeal, with the exception of the alleged NEPA violation, which is not raised in Goethel’s opening brief.

Second, Goethel challenged the at-sea monitoring program itself (as distinct from the requirement that the sectors pay for it) on constitutional grounds. The sheer volume of constitutional claims that Goethel made initially suggests that he was, in a manner of speaking, on a fishing expedition. Specifically, he alleged that the at-sea monitoring requirement violates the First Amendment by “compelling fishermen to join sectors”; violates the Port Preference Clause by discriminating between the various States, leading fishing vessels to prefer one state’s port over another; and violates the Fourth Amendment’s prohibition on unreasonable searches and seizures. Not content to leave any part of the kitchen sink unused, Goethel also alleged that the at-sea monitoring program violates the Third Amendment’s prohibition on the quartering of soldiers during peacetime because fishermen were compelled to accommodate federally-mandated monitors on multi-day fishing voyages. Of these arguments, only the Fourth Amendment claim is preserved in this appeal.

Third, Goethel alleged that the entire MSA regulatory framework was unconstitutional. First, he alleged that the regional FMCs are improperly constituted, in violation of the Appointments Clause, U.S. Const, art. II, § 2, cl. 2, because members of the councils are “inferior officers” whose appointments could thus only be vested “in the President alone, in the Courts of Law, or in the Heads of Departments.” Goethel argues that because the governors of the various coastal states are involved in nominating individuals to the councils, and because state executive officials are not among the permissible entities in which Congress can vest the appointment power for inferior officers, the councils are constitutionally infirm and actions taken by those councils, including the Northeast Multispecies FMP, are void. Second, Goe-thel argues that the MSA conscripts state officers by requiring that they participate in the councils, in turn violating the Tenth Amendment anti-commandeering doctrine. See Printz v. United States, 521 U.S. 898, 935, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997) (“The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.”). The alleged violations of the Appointments Clause and the Tenth Amendment are preserved in this appeal.

D. The District Court Ruling

After the parties cross-moved for summary judgment, the district court, in an order dated July 29, 2016, rejected Goe-thel’s various challenges and granted summary judgment in favor of the government. First, the court found that the claims were not timely because “the plaintiffs [sic] 30-day window to challenge the industry funding component of ASM closed, at the latest, in June 2015, well before this suit was filed.” Goethel, 2016 WL 4076831, at *4. The district court rejected Goethel’s argument that the November 10th email notification was a separately reviewable “action” under the MSA, but also declined the government’s invitation to find that the statute of limitations began to run in 2012 when the regulations implementing Amendment 16 took effect, which would have meant Goethel’s claims were time-barred by a matter of years. See id. at *3-4.

Second, the court, after concluding that Goethel’s suit was time-barred, proceeded to analyze Goethel’s statutory and constitutional claims, and found that they would have failed on the merits even if his suit had been filed within the MSA’s thirty-day statute of limitations.

This timely appeal followed.

II. Analysis

The district court determined that Goethel’s complaint was barred by the MSA’s statute of limitations, a finding that we review de novo. See Santana-Castro v. Toledo-Dávila, 579 F.3d 109, 113 (1st Cir. 2009). The MSA includes provisions that govern judicial review. Specifically, parties may challenge “regulations promulgated by” NMFS, 16 U.S.C. § 1855(f)(1), and they may also seek review of “actions that are taken by the Secretary under regulations which implement a fishery management plan, including but not limited to actions that establish the date of closure of a fishery to commercial or recreational fishing,” id. § 1855(f)(2). Furthermore, as relevant (and ultimately dispositive) to this case, judicial review is only available if a complaint “is filed within 30 days after the dáte on which the regulations are promulgated or the action is published in the Federal Register, as applicable.” Id. § 1855(f)(1).

As an initial matter, we address an argument that Goethel spends much time advancing in both his opening and reply briefs: that he is entitled to pre-enforcement review under the APA, in lieu of violating the statute and then bringing his statutory and constitutional arguments as a defense to an enforcement action. The thirty-day statute of limitations embodied in the MSA, Goethel argues, does not apply to pre-enforcement review. Not so. Of course pre-enforcement review is available as a general matter under the MSA, but, as the district court noted below, “plaintiffs cite no authority which permits the court to waive the statute of limitations applicable to pre-enforcement review” of agency action under the MSA. Goethel, 2016 WL 4076831, at *4 n.4.

On appeal, Goethel renews this same argument, but fails to cite any authority for the proposition that the thirty-day statute of limitations in the MSA can be deep-sixed simply by the fact that the party seeking judicial review is making a pre-enforcement challenge to the statute in question. Indeed, the courts that have encountered this question appear to have uniformly concluded that the thirty-day statute of limitations cannot be sidestepped when a party is challenging a regulation promulgated pursuant to NMFS authority under the MSA. See, e.g., Turtle Island Restoration Network v. U.S. Dep’t of Commerce, 438 F.3d 937, 939 (9th Cir. 2006) (concluding that although the appellant’s claims were “framed ... in terms of violations of the APA [and environmental statutes],” they were “in actuality ... ehal-lenge[s] to the reopening of the [swordfish] Fishery” and thus subject to the MSA’s thirty-day statute of limitations); N.C. Fisheries Ass’n, Inc. v. Evans, 172 F.Supp.2d 792, 798-99 (E.D. Va. 2001) (holding that challenges to regulations arising from an FMP amendment must be filed within the thirty-day statute of limitations period from the promulgation of the amendment itself); F/V Robert Michael, Inc. v. Kantor, 961 F.Supp. 11, 15 (D. Me. 1997) (concluding that lobstermens’ challenge to the Department of Commerce’s denial of permits, on the grounds that such a denial violated the MSA, was time-barred because “[plaintiffs’ quarrel lies with the regulation itself’ and that regulation had been promulgated long before the plaintiffs sought review); Stinson Canning Co. v. Mosbacher, 731 F.Supp. 32, 34-35 (D. Me. 1990) (“Plainly, Congress intended pre-enforcement review since it provided that a petition for such review must be filed thirty days from promulgation.”). We agree with these cases and hold that Goe-thel’s pre-enforcement challenge only can proceed if it was filed within thirty days of the “action” in question as required by § 1855(f)(1).

Goethel’s case, therefore, hinges on whether the November 10th email is a separately reviewable “action” for purposes of the thirty-day statute of limitations, since any of the other pertinent dates — the 2010 promulgation of Amendment 16 which included by its own terms a requirement of industry funding, and the March 9th and May 1st, 2015, proposed and final rules announcing the expected exhaustion of government contributions to the at-sea monitoring program — -would fall well outside the thirty-day window. Goe-thel argues that it was on November 10th, for the first time, that the government established a “date certain” when industry funding would finally take effect, and therefore this date should be treated as the relevant “action.”

In support of this argument, he cites to Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997), where' the Supreme Court explained that agency actions are reviewable under Section 704 of the APA when they (1) “mark the ‘consummation’ of the agency’s decision-making process” and (2) are events “by which ‘rights or obligations have been determined,’ or from which ‘legal consequences will flow.’ ” Id. at 177-78, 117 S.Ct. 1154. Here, Goethel argues, the November 10th date was both the “consummation of the agency’s decision-making process” by setting a date on which money would no longer be expended by the agency, and also when “obligations” had been “determined,” namely who would pay the monitoring costs. Goethel also argued to the district court, and argues again on appeal, that prior to having a date certain on which industry funding actually would kick in, a potential suit would have been dismissed as unripe. See Goethel, 2016 WL 4076831, at *4 n.6 (rejecting Goethel’s ripeness argument as “necessarily speculative,” but also observing that it was “inconceivable that a suit filed within 30 days of the Rule’s publication in May 2016 [sic] would have been found unripe”).

We are not convinced by Goethel’s argument. First, the language of § 1855(f) itself requires that for judicial review to be available, a complaint must be “filed within 30 days after the date on which the regulations are promulgated or the action is published in the Federal Register, as applicable.” 16 U.S.C. § 1855(f)(1) (emphasis added). Goethel does not argue that the November 10th email is a stand-alone “regulation,” which, although not defined in the MSA, generally “refers to legally binding obligations placed upon a council and/or the agency which have the force and effect of law and, as such, are analogous to substantive rules issued by an administrative agency which are subject to APA review.” Tutein v. Daley, 43 F.Supp.2d 113, 121 (D. Mass. 1999) (citing Chrysler Corp. v. Brown, 441 U.S. 281, 301-302, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979)). Nor was the November 10th email published in the Federal Register.

Second, to the extent that the language of the statute allowing for review within thirty days of the time when “the action is published in the Federal Register, as applicable,” envisions a category of “actions” for which publication is not applicable, we disagree that the November 10th email would qualify. Agency “action” for purposes of administrative law generally “includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551(13). Goethel’s argument, that the email notification was the equivalent of an agency “order,” clearly fails, as the APA defines an order as resulting from agency adjudication, see id. § 551(7), and there is no suggestion that the November 10th email was the product of an agency adjudication. Rather, the email was one of several updates sent to regulated parties throughout 2015, a routine effort to keep the sectors abreast of developments pursuant to a final rule which had been published in May of 2015. In short, the November 10th notification does not have the significance that Goethel seeks to assign to it, and we conclude that it is not a separately renewable agency “action” for purposes of § 1855(f)(1).

We agree with the district court that the most recent “action” that could have plausibly been challenged was the May 2015 final rule, and for that reason we agree with the district court that the “plaintiffs [sic] 30-day window to challenge the industry funding component of ASM closed, at the latest, in June 2015, well before this suit was filed.” Goethel, 2016 WL 4076831, at *4. Therefore, the suit is time-barred.

III. Conclusion

Because we find that Goethel’s suit was not filed within the MSA’s thirty-day statute of limitations, we need go no further, and we take no position on the district court’s statutory and constitutional rulings. However, given NOAA’s own study which indicated that the groundfish sector could face serious difficulties as a result of the industry funding requirement, we note that this may be a situation where further clarification from Congress would be helpful for the regulated fisheries and the agency itself -as it balances the competing goals of conservation and the economic vitality of the fishery.

While the concurring opinion suggests that this is inappropriate, we note that it is not uncommon in this and other circuits to include language in opinions that flags potential issues for Congress to consider, should it choose to do so. See, e.g., Sony BMG Music Entm’t v. Tenenbaum, 660 F.3d 487, 490 (1st Cir. 2011) (commenting, in the context of a copyright infringement suit, that the case “raises concerns about application of the Copyright Act which Congress may wish to examine”); Slayton v. Am. Express Co., 604 F.3d 758, 772 (2d Cir. 2010) (noting, while not deciding the issue, that “Congress may wish to give further direction on how to resolve [a] tension” in the Private Securities Litigation Reform Act); Holender v. Mut. Indus. N. Inc., 527 F.3d 352, 357 (3d Cir. 2008) (observing, in a dispute over the scope of the Age Discrimination in Employment Act, that “Congress may wish to revisit this regulatory regime if it proves unworkable”); Elsenety v. Health Care Fin.Admin., 85 Fed.Appx. 405, 410 (6th Cir. 2003) (acknowledging that the statutory framework in question created a “harsh rule” and that “[a]t some point in the future, Congress may wish to reexamine” the statute); Cefalu v. Vill. of Elk Grove, 211 F.3d 416, 428 (7th Cir. 2000) (suggesting that certain in-trial evidence presentations are likely reimbursable under statute governing fees for exemplification, but noting that <f[g]iven the costs associated with some of these” practices, “this is an area that Congress may wish to revisit and supply further guidance”); see also United States v. Godin, 534 F.3d 51, 65 (1st Cir. 2008) (Lynch, J., concurring) (noting that “Congress may wish to clarify in new legislation the scope of the enhanced penalties” under an aggravated identity theft statute); Schafer v. Am. Cyanamid Co., 20 F.3d 1, 7 (1st Cir. 1994) (Stahl, J., concurring) (agreeing with the majority’s interpretation of the National Childhood Vaccine Injury Act, but “respectfully suggesting] that this is an issue which Congress may wish to revisit.”); Olson v. Gen. Dynamics Corp., 960 F.2d 1418, 1425 (9th Cir. 1991) (Reinhardt, J., concurring) (“The proliferation of ERISA [Employee Retirement Income Security Act] preemption cases, in my view, raises a question as to whether ERISA is having an effect that is substantially contrary to that intended by those who favored its adoption. This is a matter which Congress may wish to examine carefully.”); United States v. Collins, CR No. 03-51 S, 221 F.Supp.3d 249, 254 n.1, 2016 WL 6477031, at *3 n.1 (D.R.I. Nov. 2, 2016) (suggesting that “Congress may wish to consider amending the enumerated offenses clause of [the Armed Career Criminal Act] to include those crimes, such as murder, which previously were understood to fall squarely within the residual clause.”).

Because Goethel’s claim is untimely, however, we AFFIRM the grant of summary judgment in favor of the government.

KAYATTA, Circuit Judge,

concurring.

I join in the panel’s opinion with the exception of its call on Congress to provide further clarification. The nicely reasoned conclusion that the petition is untimely means that we lack jurisdiction to consider the merits of the appeal. See Norbird Fisheries, Inc. v. Nat’l Marine Fisheries Serv., 112 F.3d 414, 416 (9th Cir. 1997). My colleagues nevertheless call on Congress to provide “further clarification” not concerning the matter of our jurisdiction, but rather concerning “the industry funding requirement” in light of the “competing goals” at stake. To the extent my colleagues imply that the statute is unclear, or that the “competing goals” at stake trigger some sort of express statement preference in these circumstances, I respectfully disagree. The default norm, manifest without express statement in literally hundreds of regulations, is that the government does not reimburse regulated entities for the cost of complying with properly enacted regulations, at least short of a taking. If this statute needs clarification on this point, then so too do hundreds of others. Additionally, given that we have no jurisdiction to hear the merits of this appeal, nor any expertise on the policy trade-offs made by Congress in deciding how best to protect our fisheries from overfishing, and who should pay for that protection, I think it prudent to be more parsimonious with our advice. See Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution 5 (2005) (“The judge, compared to the legislator, lacks relevant expertise.”).

      . The Department of Commerce in turn delegated this role to the National Oceanic and Atmospheric Administration ("NOAA”), which regulates the fisheries through its sub-agency, the National Marine Fisheries Service (‘‘NMFS’'). For simplicity’s sake, these entities (all of which are named as defendants-appellees along with their respective chiefs in their official capacities) are referred to throughout tliis opinion as the "government.”

      . "Groundfish” is a generic term for various bottom-dwelling fish species including, most notably, cod, haddock, halibut, and flounder. Goethel, 2016 WL 4076831, at *2 n.4.

      . With some exceptions not relevant to the present case, the MSA generally incorporates the APA’s judicial review provisions. See 16 U.S.C. § 1855(f)(1)(B).

      . In relevant part, the ADA prohibits federal officers from "mak[ing] or authoriz[ing] an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation” and from "involv[ing] [the United States] in a contract or obligation for the payment of money before an appropriation is made unless authorized bylaw.” 31 U.S.C. § 1341(a)(l)(A)-(B).

      . This statute provides that "an official or agent of the Government receiving money for the Government from any source shall deposit the money in the Treasury as soon as practicable without deduction for any charge or claim.” 31 U.S.C. § 3302(b).

      . The IOAA permits an agency to "prescribe regulations establishing the charge for a service or thing of value provided by the agency,” 31 U.S.C. § 9701(b), in effect recouping fees from those who receive services provided by the agency.

      . This argument was abandoned by the plaintiffs during an early phase of the proceedings below, was not addressed by the district court in its opinion, and is not raised on appeal.

      . See U.S. Const, art. I, § 9, cl. 6 ("No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.”). Goethel likewise abandoned this argument prior to summary judgment, and does not raise it on appeal.

      . See U.S. Const. Amend. Ill ("No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”). The Third Amendment was a response to the Quartering Acts of 1765 and 1774, in which Parliament authorized British military commanders to requisition private homes as barracks, see Engblom v. Carey, 677 F.2d 957, 967 (2d Cir. 1982) (Kaufman, J., concurring in part and dissenting in part), and its application to private contractors engaged in on-board monitoring of the fishing industry is a dubious proposition to say the least. However, as with the Port Preference Clause and First Amendment claims, the plaintiffs conceded their Third Amendment argument before summary judgment, thus depriving this court of the rare opportunity to opine on the scope and application of the Third Amendment. See Goethel, 2016 WL 4076831, at *9 n.13 ("Earlier in this litigation, plaintiffs also argued that industry funding of ASM also violated the Third Amendment’s prohibition against quartering of soldiers. They no longer advance that claim.”).

      . In briefing and at oral argument, Goethel emphasized that insulating all non-published agency actions from review might create incentives for agencies to announce changes in particular regulatory programs that do shift certain legal obligations for regulated parties, and avoid legal challenges by refraining from publishing such decisions. While documents "having general applicability and legal effect” are generally "required to be filed for public inspection with the Office of the Federal Register and published in the Federal Register,” 1 C.F.R. § 5.2(c), we do share Goethel’s concern that a bright-line rule requiring publication in order for judicial review to be available under the MSA might preclude judicial review in cases where an unpublished action taken by an agency does, in fact, lead to a change in the legal position of regulated parties. Because we find that NOAA’s November 10th email had no such effect, we save for a later day whether, under certain circumstances, unpublished agency actions could still be subject to judicial review under the MSA.

      . While we need not reach this issue given that the November 10th email does not meet the basic requirements for reviewable agency “action,” we think, as a factual matter, that the sectors' obligation to pay was certainly consummated, at the latest, with publication of the May 2015 final rule. Therefore, Bennett v. Spear, which observed that for agency action to be "final,” it must "mark the 'consummation' of the agency’s decision-making process,” 520 U.S. at 178, 117 S.Ct. 1154 (internal citation omitted), is of no help to Goe-thel in this case because the November 10th email had no such effect.

      . Goethel and Sector 13 were subject to the applicable regulations at the time NMFS promulgated Amendment 16, and at the time that the government announced, in the May 2015 final rule, that the industry funding requirement would kick in at the beginning of the 2016 calendar year. Therefore, we need not consider what other rights, if any, a party who became subject to the regulations for the first time more than thirty days after the May 2015 final rule would have, nor do we take any position on how the MSA's thirty-day statute of limitations would apply to a claim by such a party.

      .Indeed, beginning in 1995 with the Long Range Plan for the Federal Courts, the Judicial Conference and Congress have collaborated on the Project to Provide Congress with Appellate Opinions Bearing on Technical Matters of Statutory Construction, and we have occasionally sent opinions to Congress that we believe may warrant additional clarification via legislation, precisely because, as . the' concurring opinion suggests, the judiciary lacks expertise on the policy trade-offs faced by Congress.


author: HOWARD, Chief Judge.

text:
    UNITED STATES of America, Appellee, v. Juan Ángel MORALES-ARROYO, Defendant, Appellant.
    No. 15-1185
    United States Court of Appeals, First Circuit.
    April 19, 2017

      Merritt Schnipper, Brattleboro, VT, on brief for appellant.
    Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, Mainon A Schwartz, Assistant United States Attorney, and Rosa Emilia Rodriguez-Vélez, United States Attorney, on brief for appellee.
    Before HOWARD, Chief Judge, THOMPSON and BARRON, Circuit Judges.
   HOWARD, Chief Judge.

Juan Ángel Morales-Arroyo challenges the reasonableness of a 132-month prison sentence imposed for unlawful possession of firearms in furtherance of a drug trafficking crime and for possession of crack cocaine with intent to distribute. He contends that the waiver-of-appeal provision in his plea agreement does not bar this appeal. After careful consideration, however, we conclude that it does and dismiss Morales’s appeal.

I.

Morales pleaded guilty, pursuant to a written plea agreement, to unlawful possession of three AK-47s in furtherance of a drug trafficking crime and possession of crack cocaine with intent to distribute in violation of 18 U.S.C. § 924(c)(1)(A) and 21 U.S.C. § 841(a)(1), respectively.

Of particular importance here, the plea agreement included a provision titled “Waiver of Appeal.” This provision stated that Morales “knowingly and voluntarily waives the right to appeal the judgment and sentence in this case, provided that [he] is sentenced in accordance with the terms and conditions set forth in the Sentence Recommendation provisions of this Plea Agreement.”

Under the plea agreement’s “Sentence Recommendation” section, the parties stipulated that, “[i]n consideration of the relevant factors enumerated in 18 U.S.C. § .3553(a),” Morales would recommend “a sentence of 96 months of imprisonment and the United States [would] recommend to the Court a sentence of 144 moths [sic] of imprisonment.”

The district court accepted Morales’s plea and sentenced him to 132 months in prison.

II.

As a threshold matter, we must determine whether the waiver-of-appeal provision is enforceable under the circumstances of this case. See United States v. Acosta-Roman, 549 F.3d 1, 3 (1st Cir. 2008). “[U]nder ordinary circumstances, a knowing, voluntary waiver of the right to appeal from a sentence, contained in a plea agreement, ought to be enforced.” United States v. Teeter, 257 F.3d 14, 23 (1st Cir. 2001).

Typically, in determining whether a waiver is valid, we look to confirm that the plea agreement contains a clear statement elucidating the waiver and delineating its scope, and we examine the plea hearing to ascertain whether the defendant was specifically questioned about his understanding of the waiver and adequately informed of its ramifications. United States v. Chandler, 534 F.3d 45, 49 (1st Cir. 2008). On the record before us, Morales’s waiver of appeal survives such scrutiny.

Morales, however, does not challenge the waiver provision’s validity but rather its scope: he asserts that, under its plain language, the waiver provision does not apply to this appeal. In the alternative, Morales argues that — even if the waiver provision is applicable — enforcing it “would work a miscarriage of justice.” We take these claims in turn.

A. Plain Language

We interpret plea agreements under basic contract principles and construe ambiguities in favor of allowing the appeal to proceed. United States v. Okoye, 731 F.3d 46, 49 (1st Cir. 2013). Mindful of this fact, Morales urges us to find the waiver-of-appeal provision ambiguous insofar as it refers to the “Sentence Recommendation provisions.” According to Morales, ambiguity stems from the use of the plural “provisions” because the plea agreement contains only one section titled “Sentence Recommendation.” In other words, Morales pins his hopes on the proposition that the waiver provision is ambiguous as to whether it excludes from its scope not only the judge’s failure to impose a sentence within the range proposed by the parties but also errors based on the sentencing court’s failure to comply with applicable “provisions” of the federal sentencing statutes.

Morales, however, is “conjuring up. an ambiguity where none legitimately exists.” United States v. Anderson, 921 F.2d 335, 338 (1st Cir. 1990); see also United States v. Betancourt-Pérez, 833 F.3d 18, 22-23 (1st Cir. 2016). He waived his right to appeal as long as he received a sentence between 96 and 144 months. As Morales’s sentence fell well within the range contemplated by the plea agreement, the waiver provision applies under its plain language.

B. Miscarriage of Justice

A waiver that is made knowingly and voluntarily is presumptively enforceable. However, “even if the waiver passes muster at [these] first two steps, an appellate court will not enforce it if doing so would work a miscarriage of justice.” United States v. Nguyen, 618 F.3d 72, 74 (1st Cir. 2010). The circumstances that could potentially justify such a refusal to enforce a waiver are “infinitely variable.” Teeter, 257 F.3d at 25 n.9. Relevant considerations, however,

include the character, clarity, and gravity of the claim of error, its impact on the defendant, any possible prejudice to the government that might accompany a refusal to honor the waiver, and the extent to which the defendant can fairly be said to have acquiesced in the result.

Nguyen, 618 F.3d at 75.

Only sparingly will we refuse to enforce an otherwise valid waiver of appeal under the miscarriage'of justice exception. See, e.g., United States v. Pratt, 533 F.3d 34, 37 (1st Cir. 2008); United States v. De-La-Cruz Castro, 299 F.3d 5, 13 (1st Cir. 2002). A defendant who, like Morales, seeks to appeal despite having knowingly and • voluntarily waived that right “must show more than reversible error.” Nguyen, 618 F.3d at 75. At a minimum, he must show “an increment of error more glaring.” Id.; cf. United States v. Wenger, 58 F.3d 280, 282 (7th Cir. 1995) (“Defendants who appeal from sentences following plea agreements always point to unanticipated and unwelcome developments.... To say that a waiver of appeal is effective if and only if the defendant lacks grounds for appeal is to say that waivers will not be honored.”).

The errors alleged by Morales cannot “vault the hurdle erected by the waiver.” United States v. Calderon-Pacheco, 564 F.3d 55, 59 (1st Cir. 2009); see also Satirion v. United States, 617 F.3d 27, 38 (1st Cir. 2010) (finding no miscarriage of justice despite the sentencing court’s miscalculation of the advisory guideline range where the sentence fell below the upper-limit sought by the government); United States v. Edelen, 539 F.3d 83, 87 (1st Cir. 2008). (finding claims that the sentencing court erred in applying official-victim sentencing enhancement and in failing to consider sentencing disparity between crack and powder cocaine did not constitute a miscarriage of justice); United States v. Corso, 549 F.3d 921, 931 (3d Cir. 2008) (finding no miscarriage of justice where district court made errors in applying number-of-victims and abuse-of-trust enhancements).

Indeed, “far from working a miscarriage of justice, [Morales’s] plea agreement conferred significant benefits on him.” Soti-rion, 617 F.3d at 38. In exchange for waiving his right to appeal, the government agreed to dismiss two other firearms-related counts. Morales cannot now renege on his bargain.

III.

For the foregoing reasons, Morales’s waiver is both valid and enforceable and, therefore, our consideration of this appeal on the merits is barred. The appeal is dismissed.

      . Morales objects to the procedural reasonableness of his sentence. He concedes that he raised no objection below and, therefore, review is for plain error. See United States v. Dávila-González, 595 F.3d 42, 47 (1st Cir. 2010). Essentially, Morales argues that the sentencing court did not adequately explain its upward variance and relied on factors already accounted for by the Guidelines. Upon review, we conclude that the district court did not commit plain error. Even when a non-Guidelines sentence is imposed, a sentencing court may rely on a factor already included in the calculation of the Guidelines sentencing range as long as the court “articulate[s] specifically the reasons that this particular defendant's situation is different from the ordinary situation covered by the guidelines calculation.” United States v. Zapete-Garcia, 447 F.3d 57, 60 (1st Cir. 2006); see also United States v. Fernández-Cabrera, 625 F.3d 48, 54 (1st Cir. 2010) (“Where the record permits a reviewing court to identify both a discrete aspect of an offender’s conduct and a connection between that behavior and the aims of sentencing, the sentence is sufficiently explained to pass muster under section 3553(c).”). The district court did so here.


text:
    UNITED STATES of America, Appellee, v. Wilfredo RODRÍGUEZ-ROSADO, a/k/a La Gorda, a/k/a Mogoyo, a/k/a Pitin, a/k/a Mogo, Defendant, Appellant.
    No. 15-1335
    United States Court of Appeals, First Circuit.
    April 19, 2017
    Vivianne M. Marrero, Assistant Federal Public Defender, Supervisor, Appeals Section, with whom Eric Alexander Vos, Federal Public Defender, and Leonardo M. Aldridge, Assistant Federal Public Defender, were on brief, for appellant.
    Mainon A. Schwartz, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.
    Before HOWARD, Chief Judge, LIPEZ and THOMPSON, Circuit Judges.
   HOWARD, Chief Judge.

Defendant-Appellant Wilfredo Rodrí-guez-Rosado appeals from the district court’s denial of his motion to reduce sentence pursuant to 18 U.S.C. § 3582(c)(2). Under the' unique circumstances of this case, we conclude that the prudent course is to remand for the district court to apply its own administrative directive.

I.

In May 2010, Rodriguez pled guilty to participating in a conspiracy to possess with intent to distribute between fifteen and fifty kilograms of cocaine. See 21 U.S.C. §§ 841(a)(1), 841(b)(l)(A)(ii), 846. Rodriguez, who was an American Airlines employee at the time, utilized commercial flights to transport large amounts of cocaine from Puerto Rico to the continental United States. Rodriguez’s plea agreement indicates that he was the “Leader” of the drug trafficking conspiracy, which continued for approximately ten years and involved more than 9,000 kilograms of cocaine. In October 2010, the district court, consistent with the parties’ joint recommendation, sentenced Rodriguez to 180 months’ imprisonment.

In November 2014, Rodriguez filed a motion to reduce his sentence, citing an April 2014 amendment to the sentencing guidelines (“Amendment 782”), which was given retroactive effect by the Sentencing Commission. Amendment 782 reduced the base offense level (“BOL”) for certain drug crimes by two levels, effective November 1, 2014. See U.S.S.G. App. C Supp., Amend. 782. At the time of his sentencing, Rodriguez’s guideline sentencing range (“GSR”) was based on the then-applicable BOL of thirty-four. Under Amendment 782, however, Rodriguez’s BOL would be thirty-two. See U.S.S.G. § 2Dl.l(c)(4) .(2016).

Amendment 782, as expected, generated thousands of sentence reduction motions. Indeed, in the District of Puerto Rico alone, more than 1,400 such motions were decided before the end of 2016. See U.S. Sentencing Comm’n, 2014 Drug Guidelines Amendment Retroactivity Data Report, Table 1 (Jan. 2017). On November 6, 2014, just five days after Amendment 782’s effective date, the Puerto Rico District Court issued an administrative directive (“AD 14-426”) outlining a procedure for handling the impending onslaught of motions. Under AD 14-426, all motions to reduce sentence based on Amendment 782 are automatically referred to a magistrate judge for “initial screening.” At this preliminary stage, the magistrate judge evaluates only the defendant’s potential eligibility for a sentence reduction. A defendant is not eligible if, for example, the relevant amendment does not apply to him or does not lower his GSR. See U.S.S.G. § lB1.10(a)(2). If the magistrate judge determines that a given defendant may be eligible, the government, defense counsel, and probation officer “shall meet to discuss the case” in an attempt to reach a stipulation. In the event that the participants are unable to agree, they are directed to file memoranda with the district court. The court is then tasked with resolving the issue. AD 14-426 expressly provides that it is not “intended to confer individual rights to litigants, nor limit the discretion of judicial officers.”

In the present case, on November 26, 2014, the district judge sua sponte denied Rodriguez’s motion before the magistrate judge had the opportunity to make an eligibility determination pursuant to AD 14-426. The court explained that Rodriguez “was the maximum leader of an elaborate drug trafficking organization that operated for many years packaging and transporting over 9000 kilos of cocaine.” About a month later, the magistrate judge, to whom the motion had automatically been referred under AD 14-426, issued a report and recommendation indicating that Rodriguez “may be eligible for a sentence reduction and therefore the matter is referred to a United States District Judge.” On December 30, 2014, the district court, in a brief text order, rejected the report, and recommendation, stating that Rodriguez’s motion “has been denied” and citing its own prior order. On appeal, Rodriguez challenges the district court orders denying his motion for sentence reduction, arguing, among other things, that the court failed to apply its own administrative directive.

II.

The parties first dispute whether Rodriguez has filed a timely notice of appeal. Under Fed. R. App. P. 4(b), such a notice must, absent an extension, be filed within fourteen days of the judgment or order being appealed. In his opening brief, Rodriguez cited a February 18, 2015 “Form for Selection of Counsel” (reflecting Rodriguez’s request to proceed pro se) to establish the timeliness of his appeal. As the government points out, however, that document was filed well over fourteen days after both of the relevant district court orders, entered on November 26 and December 30, 2014, respectively. The government moved for summary dismissal, but we reserved the issue of timeliness for the merits panel and directed the parties to address in their response and reply briefs whether any filings other than the February 18 form might have provided timely and sufficient notice.

As requested, the government preemptively argued in its brief that no other documents filed by Rodriguez were both timely under Rule 4 and specified “the judgment, order, or part thereof being appealed,” as required by Fed. R. App. P. 3(c)(1)(B). In so arguing, the government discussed a December 8, 2014 Form for Selection of Counsel. That document listed the applicable district court' docket number and requested that Hector L. Ramos-Vega be appointed to represent Rodriguez on appeal. At the time of this filing, however, Rodriguez had another appeal pending in this court (No. 14-1010) stemming from the same district court case. In that appeal, the details of which are not relevant here, Rodriguez had challenged the district court’s denial of his motion for post-convietion relief under 28 U.S.C. § 2255. As the government notes, other than listing the district court docket number, Rodriguez’s December 8 filing contained no information about the judgment or order being appealed. See Fed. R. App. P. 3(c)(1)(B). Accordingly, the clerk’s office docketed the form in Rodriguez’s then-pending § 2255 appeal. We construed the document as a motion for appointment of counsel in that § 2255 appeal and proceeded to deny the motion.

Ultimately, we need not decide whether the December 8 form satisfied Rule 3. Even assuming that it did not, Rodriguez subsequently clarified his intent to appeal the district court’s denial of his motion for sentence reduction in two pro se letters dated January 12 and January 19, 2015, respectively. The first of these documents was filed less than fourteen days after the district court’s December 30 order rejecting the magistrate judge’s report and recommendation. This ruling was an appealable final order. See United States v. Akinola, 985 F.2d 1105, 1108 (1st Cir. 1993). While not expressly styled as a notice of appeal, the January 12 letter “plainly evidence[d] [Rodriguez’s] intention to appeal” the denial of his motion to reduce sentence. Campiti v. Matesanz, 333 F.3d 317, 320 (1st Cir. 2003). Accordingly, the document satisfies the liberal construction of Rule 3 that we afford pro se litigants. See DeLong v. Dickhaut, 715 F.3d 382, 386 (1st Cir. 2013); Campiti, 333 F.3d at 320.

III.

In light of the unique circumstances presented by this appeal, remand to the district court for it to apply AD 14-426 is the prudent course. We have ordered similar remands in at least two prior decisions. See United States v. Ahrendt, 560 F.3d 69 (1st Cir. 2009); United States v. Godin, 522 F.3d 133 (1st Cir. 2008). Godin and Ahrendt involved challenges to the district court’s refusal to “group” certain prior offenses for purposes of calculating the GSR. When the defendants had been sentenced, the applicable guideline provided that prior offenses were to be counted separately unless they “(A) occurred on the same occasion, (B) were part of a single common scheme or plan, or (C) were consolidated for trial or sentencing.” Ahrendt, 560 F.3d at 78 (quoting U.S.S.G. § 4A1.2(a)(2) cmt. n.3 (2004)). In both cases, we concluded that the district court had correctly applied that guideline provision. While the appeals were pending, however, the Sentencing Commission adopted a non-retroactive amendment under which prior offenses were to be counted as one if “the sentences were imposed on the same day.” Id. at 79 (quoting U.S.S.G. § 4A1.2(a)(2)) (emphasis omitted). In both Godin and Ahrendt, the defendants’ prior offenses would have been grouped together under this amended provision. We recognized that, because the amendment was non-retroactive, “neither defendant was entitled ... to a remand because neither could show that an error occurred at sentencing.” Id. at 80. Notwithstanding the lack of error, we deemed it prudent to remand, id. to allow the sentencing judge the opportunity “to consider the Commission’s current thinking,” as reflected in the amendment, Godin, 522 F.3d at 136.

We think that the present appeal calls for a similar result. On November 6, 2014, facing the prospect of thousands of sentence reduction motions, the District of Puerto Rico wisely issued AD 14-426 to assure the orderly and consistent processing of those filings. Rodriguez moved to reduce his sentence less than two weeks later. Indeed, Rodriguez’s § 3582(c)(2) motion was the first decided by the district judge in this case. The court denied Rodriguez’s motion before allowing the newly adopted AD 14-426 process to play out. As described above, Rodriguez clearly indicated his intent to appeal that decision on January 12, 2015, thereby divesting the district court of jurisdiction. See United States v. George, 841 F.3d 55, 71 (1st Cir. 2016). Over the course of the approximately fifteen months after its initial denial of Rodriguez’s motion, the district court considered fourteen similar motions by Rodriguez’s co-defendants. Each of these motions, other than those filed by defendants who had been sentenced to the statutory minimum term and were therefore ineligible, were decided according to the process outlined in AD 14-426.

In these unique circumstances, the most prudent course is a remand to the district court to follow the AD 14-426 process. Such a remand will allow the court to b'enefit from the wealth of experience that it has gained adjudicating motions to reduce sentences pursuant to AD 14-426. This process was brand-new when the court ruled on Rodriguez’s motion. Remand will also foster confidence in the judicial system by ensuring that Rodriguez’s motion is handled similarly to those of his ten co-defendants who were potentially eligible for a sentence reduction. We note that the question of whether to grant a sentence reduction “is a matter [Congress] committed to the sentencing court’s sound discretion.” United States v. Zayas-Ortiz, 808 F.3d 520, 523 (1st Cir. 2015) (alteration in original) (citation omitted). Accordingly, we express no opinion as to the proper outcome on remand.

IV.

For the foregoing reasons, we VACATE the district court’s orders denying Rodriguez’s motion to reduce sentence and remand for further proceedings consistent with this opinion.

      . The Federal Public Defender Office subsequently entered its appearance on Rodriguez’s behalf.

      . While these letters were not received until later, under the so-called "prison mailbox” rule, the dates that the documents were “deposited in the institution's internal mail system” govern the timeliness analysis. Fed. R. App. P. 4(c)(1).

      . The government raises two additional arguments on the issue of timeliness. First, it contends that, because his opening brief cited only the February 18 form, Rodríguez has waived any reliance on the December 8 form or the subsequent clarifying letters. While we "[o]rdinarily” treat arguments raised for the first time in a reply brief as waived, "we may make an exception where justice so requires and where the opposing party would not be unfairly prejudiced by our considering the issue.” United States v. Fields, 823 F.3d 20, 32 n.8 (1st Cir. 2016) (citation and internal quotation marks omitted). In the present case, in compliance with our express order, the ■government fully briefed the timeliness of Rodriguez's appeal, including discussion of the December 8 form and January letters. Rodriguez did the same in his reply. In these circumstances, we perceive no possibility of prejudice and, accordingly, excuse any waiver by Rodriguez.
      The government also maintains that Rodriguez withdrew all relevant filings in a February 2015 document, filed in appeal No. 14-1010, purporting to withdraw “all previously motioned matters before this Court.” But the form and our subsequent judgment dismissing the appeal were expressly limited to appeal No. 14-1010. Accordingly, we decline to read Rodriguez’s pro se filing as encompassing the instant unrelated appeal.

      . In light of this conclusion, we need not consider the alternative grounds for remand advocated by Rodriguez.


author: TORRUELLA, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Carlos VÁZQUEZ, Defendant, Appellant.
    No. 15-1828
    United States Court of Appeals, First Circuit.
    April 20, 2017

      Andrew S. McCutcheon, Research and Writing Specialist, Eric Alexander Vos, Federal Public Defender, and' Vivianne M. Marrero-Torres, Assistant Federal Public Defender, Supervisor, Appeals Section, on brief for appellant.
    Juan Carlos Reyes-Ramos, Assistant United States Attorney, Rosa Emilia Rod-ríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, on brief for appellee.
    Before TORRUELLA, LIPEZ, and THOMPSON, Circuit Judges.
   TORRUELLA, Circuit Judge.

Defendant Carlos Vázquez appeals his sentence for possession of a firearm in furtherance of a drug-trafficking offense and possession with intent to distribute controlled substances. We affirm.

BACKGROUND

On October 31, 2014, local and federal agents searched the residence where Vázquez lived with his girlfriend and their two-year-old child; they also searched four vehicles belonging to him. The agents discovered cocaine, crack cocaine and marijuana, drug paraphernalia, two loaded assault rifles, a loaded pistol, and more than one hundred fifty rounds of ammunition. Some of the ammunition and “a large quantity of crack cocaine” were lying in plain view in the master bedroom, and marijuana, cocaine, and drug paraphernalia were lying on the dining room table.

Pursuant to a plea agreement, Vázquez pled guilty to violating 18 U.S.C. § 924(c)(1)(A)© (“Count 1”) and 21 U.S.C. §§ 841(a)(1) and (b)(l)(B)(iii) (“Count 5”). The parties recommended a sentence of sixty months’ imprisonment for Count 1, the statutory minimum. For Count 5, Vázquez recommended a sentence of thirty-seven months, and the Government recommended sixty months. The imprisonment terms were to run consecutively.

At sentencing, the district court calculated recommended sentences of sixty months for Count 1 and thirty-three to forty-one months for Count 5 under the United States Sentencing Guidelines (the “Guidelines”). The district court discussed Vázquez’s possession of three guns, including “two assault weapons,” “high-capacity” magazines, and various drugs and drug paraphernalia “inside his house where a one-and-a-half-to-two-year-old minor lived” and in his vehicles. It also “considered Mr. Vázquez’s upbringing” and the need for deterrence, “especially here in Puerto Rico, where ... there is just too much crime.” The district court recognized that murder rates had “gone down” substantially, which it attributed to “people like Mr. Vázquez [being] off the streets” and “the firearms initiative between the Department of Justice of Puerto Rico and the United States Attorney’s Office.”

Weighing the sentencing • factors set forth in 18 U.S.C. § 3558(a), the district court determined that a sixty-month sentence for Count 1 was “not an appropriate sentence” because even “one pistol, one revolver,” would get a sixty-month minimum sentence, but Vázquez had “two assault weapons, a pistol, [and] a tremendous amount of ammunition.” Thus, “sixty months [did] not reflect the seriousness of the offense,” “protect the public” from Vázquez, or promote deterrence.

The district court thérefore sentenced Vázquez to eighty-four months’ imprisonment for Count 1. However, it expressed “concern” about the Government’s above-Guidelines recommendation of sixty months’ imprisonment for Count 5. It therefore sentenced Vázquez within the Guidelines, although it considered “a sentence at the higher end” of the Guidelines range “appropriate” given “the amount of drugs” and the presence of “a toddler” and imposed a sentence of forty-one months for Count 5. The sentences were to be served consecutively, for a total of 125 months of imprisonment.

Vázquez timely appealed his sentence.

ANALYSIS

Vázquez argues that the district court committed procedural error by (1) rejecting Vázquez’s upbringing as a mitigating factor, (2) imposing an upward variance based primarily on deterrence, rather than case-specific factors, and (3) failing to address his disparity arguments. Vázquez also asserts that the sentence was substantively unreasonable. We review sentencing decisions for procedural and substantive reasonableness, employing a deferential abuse-of-discretion standard. See United States v. Arroyo-Maldonado, 791 F.3d 193, 197 (1st Cir. 2015).

A. Vázquez’s Sentence Was Not Procedurally Unreasonable

Vázquez’s arguments for why the district court committed procedural error rest on a misreading of its rationale. First, the district court did not “refuse! ] to consider his upbringing”; it specifically stated that it did so, but it considered the circumstances of Vázquez’s crime — particularly his possession of multiple weapons and the presence of a child near large quantities of drugs — more important.

Similarly, the district court did not base its sentence “primarily on deterrence” and crime in Puerto Rico. In fact, the district court was primarily concerned with the individual aspects of Vázquez’s crime. Its discussion of crime in Puerto Rico was just one of many factors it considered, and “the incidence of particular crimes in the relevant community appropriately informs and contextualizes the relevant need for deterrence.” Ortiz-Rodríguez, 789 F.3d at 19 (quoting United States v. Flores-Machicote, 706 F.3d 16, 23 (1st Cir. 2013)). In addition, we give “significant weight” to the district court’s statement that it considered the 18 U.S.C. § 3553(a) sentencing factors. United States v. Torres-Landrúa, 783 F.3d 58, 68 n.12 (1st Cir. 2015) (quoting United States v. Santiago-Rivera, 744 F.3d 229, 233 (1st Cir. 2014)).

Finally, the district court heard Vázquez’s disparity argument and the Government’s counterargument at the sentencing hearing, and it stated that it had “considered [Vázquez’s] sentencing memorandum,” which made the disparity argument in detail. The district court then explained various individualized factors that supported its sentence. “[A] court’s reasoning can often be inferred by comparing what was argued by the parties ... with what the judge did.” United States v. Turbides-Leonardo, 468 F.3d 34, 41 (1st Cir. 2006); see also United States v. Landrón-Class, 696 F.3d 62, 78 (1st Cir. 2012). Here, we can infer that the district court determined that the particular facts of this case made it dissimilar to the cases cited by Vázquez. It did not abuse its discretion in doing so.

B. Vázquez’s Sentence Was Not Substantively Unreasonable

“[T]he linchpin of a reasonable sentence is a plausible sentencing rationale and a defensible result.” United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008). “Because we have already found the district court’s sentencing rationale to rest within the range of acceptable discretion, ‘we limit our review to the question of whether the sentence, in light of the totality of the circumstances, resides within the expansive universe of reasonable sentences.’ ” United States v. Pedroza-Orengo, 817 F.3d 829, 837 (1st Cir. 2016) (quoting United States v. King, 741 F.3d 305, 308 (1st Cir. 2014)).

Vázquez’s sentence for Count 5 was within the Guidelines, his total sentence was only five months more than the 120 months requested by the Government pursuant to his plea agreement (which would have triggered an appeal waiver), and there are aggravating circumstances in this case. The sentence therefore “resides within the expansive universe of reasonable sentences.” Pedroza-Orengo, 817 F.3d at 837 (quoting King, 741 F.3d at 308); see also United States v. Pantojas-Cruz, 800 F.3d 54, 62-63 (1st Cir. 2015).

CONCLUSION

For the reasons stated, we affirm Vazquez’s sentence.

Affirmed.

      . The Government contends that Vázquez forfeited his arguments that the district court did not consider his upbringing, factors other than deterrence, or his sentencing disparity precedent. He did not. Vázquez addressed his upbringing, the need to consider factors other than deterrence, and sentencing disparity in both his sentencing memorandum and at the sentencing hearing, and he lodged a general objection after the district court's sentence. The district court therefore had notice of Vázquez’s arguments and his disagreement with the sentence, and that satisfies the purpose of the objection requirement. See United States v. Ortiz-Rodríguez, 789 F.3d 15, 18 (1st Cir. 2015) (finding no forfeiture where defendant “raised the same basic challenge to the reasonableness of the sentence [in the district court] that [he then made] on appeal”); United States v. Taylor, 54 F.3d 967, 972 (1st Cir. 1995) (explaining that the raise-or-waive rule allows district courts to correct errors and “prevents sandbagging”).

      . If, as Vázquez suggests, the district court had relied primarily on its unsupported finding that Puerto Rico's murder rate had fallen significantly between 2011 and 2014 "based on the firearms initiative” to justify its upward variance, he might have had a stronger argument. The district court did not do that here, however.