author: LOKEN, Circuit Judge.

text:
    OMEGAGENESIS CORPORATION, Plaintiff-Appellant v. MAYO FOUNDATION FOR MEDICAL EDUCATION AND RESEARCH, Defendant-Appellee
    No. 15-3346
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 20, 2016
    Filed: March 20, 2017

      Robert A. Gust, Gust Law Firm, Steven R. Little, SRL Law, Minneapolis, MN, for Plaintiff-Appellant.
    Peter Galindez, Jr., Mayo Clinic, Rochester, MN, Gregory E. Karpenko, Adam Roger Steinert, Fredrikson & Byron, Minneapolis, MN, for Defendant-Appellee.
    Before RILEY, Chief Judge, LOKEN and BENTON, Circuit Judges.

      . The Honorable William Jay Riley stepped down as Chief Judge of the United States Court of Appeals for the Eighth Circuit at the close of business on March 10, 2017. He has been succeeded by the Honorable Lavenski R. Smith.

   LOKEN, Circuit Judge.

OmegaGenesis Corporation (Ome.ga) filed this diversity action against Mayo Foundation for Medical Education and Research (Mayo), a Minnesota charitable corporation, asserting claims of fraud, negligent misrepresentation, breach of contract, and breach of the implied covenant of good faith and fair dealing. The lawsuit arises out of an Exclusive Patent License Agreement (the Agreement) in which Omega, a start-up company, agreed to pursue Mayo’s pending patent application, to develop and market licensed products “described by a pending claim” in that application, to grant Mayo ten percent of Omega stock, and to pay Mayo royalties of five percent of licensed product net sales. The patent application was abandoned after the U.S. Patent and Trademark Office denied an elected group of claims as anticipated by prior art. See 35 U.S.C. § 102(a)(1). Omega alleges that it suffered damages because it relied on Mayo’s pre-Agreement false representations that it developed the technology and on Mayo’s failure to disclose knowledge of prior art that made the technology unpat-entable. The district court dismissed all claims. OmegaGenesis Corp. v. Mayo Found. for Med. Educ. & Research, 132 F.Supp.3d 1119 (D. Minn. 2015). Omega appeals dismissal of its fraud and negligent misrepresentation claims. Reviewing the grant of a motion to dismiss de novo, we affirm. Quintero Cmty. Ass’n Inc. v. F.D.I.C., 792 F.3d 1002, 1008 (8th Cir. 2015).

I. Background.

We take background facts from the Omega Complaint, assuming the truth of its fact allegations, and from the Agreement and portions of the patent application file placed in the record without objection by a Declaration of Mayo’s attorney before the district court ruled on Mayo’s motion to dismiss. See Enervations, Inc. v. Minn. Min. & Mfg. Co., 380 F.3d 1066, 1069 (8th Cir. 2004); Vitek Sys., Inc. v. Abbott Labs., 675 F.2d 190, 192 n.4 (8th Cir. 1982); Fed. R. Evid. 201.

The September 2008 Agreement recited that Mayo wished to make intellectual property rights available “for the development and commercialization of products, methods and processes ... including nano rod technology,” and that Omega “represents itself as being knowledgeable in developing and commercializing nano rod technology.” The Agreement granted Omega an exclusive license to make, use, and sell the Licensed Products, and a nonexclusive license to use the Know-How to develop and sell the Licensed Products. The Agreement defined “Licensed Prod-.uet” to include “any product or process” described by a claim in the pending patent application, and defined “Know-How” as including technical data,' trade secrets, and supportive information “owned and controlled by Mayo ... to the extent it is reasonably related to [the patent application] as developed in the laboratory of Dr. Debabrata Mukhopadhyay or any person working under his direction or control.”

In Section 9.01(b) of the lengthy Agreement, Omega warranted that it had “independently evaluated the Patent Rights, Know-How, and Confidential Information ... [and] is entering into this Agreement on the basis of its own evaluation and not in reliance o[n] any representation by Mayo.... ” Section 9.03 stated that Mayo was providing the Know-How, confidential information, and patent rights “as is,” “with all faults,” and “with all defects,” and expressly disclaimed any implied warranties with respect to the “scope, validity or enforceability of the patent rights or Know-How,” or that any patent will issue based upon any pending patent application. Section 11.03 provided that the “terms and conditions of this Agreement, as well as all disputes arising under or relating, to this Agreement, shall be governed by Minnesota law, specifically excluding its choice-of-law principles.” An “Entire Agreement” provision, Section 11.08, stated that the Agreement superseded all prior discussions, proposals, promises, and understandings.

Omega’s Complaint alleged that its CEO had “substantial experiencé and contacts with medical technology and venture capital” and formed Omega in response to representations by Mayo that it “had developed and [was] in the process of patenting certain technology related to an-giogenesis, which is the creation of blood vessels.” After entering into the Agreement, the Complaint alleges, Omega held an “investor conference” on October 14, 2008 that raised $500,000, entitling Mayo to acquire Omega stock. At the conference, the claimed inventors, Dr. Mukho-padhyay and Dr. Chittaranjan Patra, “presented their claimed discovery and patents.” However, Mayo “refused to assist OmegaGenesis in prosecuting the patents.” “Ultimately, the patent was denied due to the existence of prior art.”

We set forth the factual allegations relating to Omega’s claims of fraud and negligent misrepresentation, the only claims at issue on appeal:

—In the Agreement, Mayo represented that it owned the technology that was the subject of the pending patent application, and that the Know-How had been “developed in the laboratory of Dr. Debabrata Mukhopadhyay or any person working under his direction or control.”

—“During the negotiations ... [Mayo] employees claimed to have spent substantial time developing the technology.” A February 20, 2008 email, stated that “the nanotechnology venture was the brainchild of Debabrata Mukhopadhyay.” In a March 4, 2008 email, Dr. Mukhopadhyay sent “highlights of our research work” and the patent application, which includes a representation that the claimed inventors do not know of prior art that would “change that conclusion.” At a June 2008 meeting, Mayo presented the discovery and patent filing, introduced lab staff “as the discoverers of the nanoparticle angiogenesis effect,” and introduced Patra as the “lead person.”

—Mayo refused to provide Omega inventors notebooks, test results, and other information Omega requested for its due diligence but assured Omega “of the legitimacy of the development of the technology”

—“The prior art revealed that the exact same ■ invention had already been developed at Bar, lian University in Israel.” Patra, a claimed inventor, “was a graduate assistant at the Bar Han University at the time of the development of the prior art.” Like Patra, “one of the graduate assistants working on the project at Bar lian was also a student from India. At a minimum, Patra had to have known of the Bar lian prior art.”

—“[T]he representations that [Mayo] had developed anything were untrue.” Mayo “either failed to actually do any work and just relied on the prior art or merely mimicked the prior work.” Mayo had not developed the technology and “knew or should have known that it could not be patented.” Mayo, “through at least one of its employees, knew about the prior art and invention.”

—Omega “reasonably relied” on Mayo’s representations.

Mayo moved to dismiss the Complaint, arguing that it failed to state a claim for fraud or negligent misrepresentation because justifiable reliance is an element of these claims, and the disclaimers in Sections 9.01(b) and 9.03(b) of the Agreement made Omega’s alleged reliance on statements by Mayo regarding patentability and development of the licensed technology unreasonable as a matter of law. The district court agreed. OmegaGenesis, 132 F.Supp.3d at 1125-26. This appeal followed.

II. Discussion.

To survive Mayo’s motion to dismiss for failure to state a claim, the Complaint must show that Omega “is entitled to relief,” Fed. R. Civ. P. 8(a)(2), by alleging “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). To state a plausible claim, the Complaint must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

Rule 9(b) imposes heightened pleading requirements for claims grounded in fraud: “In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.” Fed. R. Civ. P. 9(b). Rule 9(b) requires that a fraud claim “specify the time, place, and content of the defendant’s false representations, as well as the details of the defendant’s fraudulent acts.” Streambend Props. II, LLC v. Ivy Tower Mpls., LLC, 781 F.3d 1003, 1013 (8th Cir. 2015). Required facts include the “who, what, when, where and how surrounding the alleged fraud -... and what was obtained as a result.” Quintero, 792 F.3d at 1010. Although Rule 9(b) allows general allegations of knowledge and intent, “ ‘generally is a relative term. ... [Rule 9(b)] does not give [a pleader] license to evade the less rigid — though still operative—strictures of Rule 8.” Iqbal, 556 U.S. at 686-87, 129 S.Ct. 1937.

To prevail on a claim of fraud under Minnesota law, Omega must prove “both actual and reasonable reliance,” which is “ordinarily a fact question for the jury.” Hoyt Props., Inc. v. Prod. Res. Grp., 736 N.W.2d 313, 321 (Minn. 2007). The parties agree that reasonable reliance is also an element of a negligent misrepresentation claim under Minnesota and California law. The Complaint pleaded, generally, that Omega “reasonably relied” on Mayo’s alleged false representations that it independently developed the licensed technology. In general, a contracting party cannot reasonably rely on alleged misrepresentations that are “contrary to the express provisions of the written agreement,” Syverson v. FirePond, Inc., 383 F.3d 745, 750 (8th Cir. 2004). Mayo argued, and the district court agreed, that the disclaimers in Sections 9.01(b) and 9.03(b) of the Agreement preclude Omega from proving that it justifiably relied on Mayo’s alleged fraud. On appeal, Omega relies on the principle that a contract provision “negatives a claim of fraud” only where it “explicitly states a fact completely antithetical to the claimed misrepresentations”; absent such a specific contradiction, “general disclaimerfs]” such as Sections 9.01(b) and 9.03(b) are “ineffective to negate reliance.” Commercial Prop. Invs., Inc. v. Quality Inns Int’l, Inc., 938 F.2d 870, 875 (8th Cir. 1991) (quotations omitted). Here, Omega argues, the “underlying misrepresentation ... that Mayo independently developed the technology” is not directly contradicted by or antithetical to any provision of the Agreement. Mayo responds that Sections 9.01(b) and 9.03(b) are specific disclaimers relating to development and patentability of the licensed technology that refute Omega’s claim of reasonable reliance as a matter of law.

Whether Sections 9.01(b) and 9.03(b) of the Agreement specifically disclaim reliance necessarily turns on the fraud alleged. “A charge of fraud can be based only on a material representation. ... A representation is not material unless it prejudices the party or is germane to the fraud alleged.” Rien v. Cooper, 211 Minn. 517, 1 N.W.2d 847, 851 (1942). “Reliance in fraud cases is generally ' evaluated in the context of the aggrieved party’s intelligence, experience, and opportunity to investigate the facts at issue.” Valspar Refinish, Inc. v. Gaylord’s, Inc., 764 N.W.2d 359, 369 (Minn. 2009). When we compare the above-quoted allegations in the Complaint with the Agreement and the patent application documents that are part of the Rule 12 record on appeal, we conclude that Omega has failed to plead fraud and negligent misrepresentation with sufficient particularity to state a plausible claim of justifiable reliance. “[W]e may affirm the district court’s decision on any ground supported by the record.” Streambend, 781 F.3d at 1013 (quotation omitted).

The Agreement recited that Mayo wished to develop and commercialize “products, methods and processes ... including nano rod technology,” and that Omega is “knowledgeable in developing and commercializing nano rod technology.” The Agreement’s terms identified a specific patent application but did not describe its claims or the technology it encompassed. The Complaint alleged that Mayo was in the process of patenting “certain technology related to angiogenesis.” The only reference to angiogenesis in the Agreement was in Exhibit B, a summary of “experiments carried out from October 2005 to July 31, 2008, as described and reported by Mayo,” in which “europium hydroxide nanorods” were synthesized, and it was repeatedly observed that “europium hydroxide nanorods” stimulate “en-dothelial cell proliferation,” which is “one of the critical and basic steps in angiogen-esis.”

The Complaint does not allege which specific representations Omega relied on, why that reliance was reasonable, and what actions Omega took in reliance on specific representations. The broad allegations that Mayo “failed to actually-do any work and just relied on the prior art,” and “had not developed the technology,” are factually plausible only if the allegedly known but undisclosed prior art anticipated all of the work described in Exhibit B — a method for synthesizing europium hydroxide nanorods, and experiments in which those nanorods stimulated endothe-lial cell proliferation, one of the critical steps in angiogenesis.

After entering into the Agreement, Omega continued to pursue a patent. In July 2011, the Patent Office required the applicant to elect a single group of claims because the thirteen claims included in the application “do not relate to a single general inventive concept.” Claims 1-5 were “drawn to a method for making lanthanide hydroxide nanoparticles.” Claims 6-8 were “drawn to lanthanide hydroxide nanoparti-cles.” Claims 9-13 were “drawn to a method of promoting angiogenesis.” In October 2011, the applicant elected and amended claims 1-5 and withdrew claims 6-13 “without traverse.” The Complaint alleged that Mayo refused to assist in prosecuting the patent application, so the only plausible inference is that Omega made this election more than three years after entering into the Agreement. The filing described Amended Claim 1 as a “method for making lanthanide hydroxide nanoparticles, wherein said method comprises microwave heating a mixture of lanthanide nitrate and aqueous ammonium hydroxide.” In amended claims 2-4, the “lanthanide is europium,” and the “nanoparticles are europium hydroxide nanorods.”

In November 2011, the Patent Office mailed a non-final action rejecting claims 1-5 as anticipated by prior art. The Patent Office identified the prior art as entitled Synthesis of Europium Oxide Nanorods by Ultrasounds Irradiation, published in 2002 in Volume 106 of the Journal of . Physics and Chemistry, a publication of the American Chemical Society. The Examiner explained that the prior art “teaches reaction of europium nitrate pentahydrate and aqueous ammonia under microwave irradiation” to produce europium hydroxide na-noparticles. This prior art related only to a method of producing europium hydroxide nanoparticles. Though it referred to “much progress in the ... fabrication of nanoma-teriaís [and] in the potential applications of these materials in the wide variety of technologies,” it never mentioned angiogenesis. Thus, the rejection of claims 1-5 as anticipated by this prior art does not plausibly support the allegations that Mayo “had not developed the technology” related to an-giogenesis and “either failed to actually do any work and just relied on the prior art or merely mimicked the prior work.” The Complaint does not allege with particularity what Mayo mimicked, despite the listing of experiments carried out at Mayo in Exhibit B of the Agreement.

Significantly, the Agreement recited that Omega represented it was “knowledgeable in developing and commercializing nano rod technology.” Section 9.01(b) represented that Omega “independently evaluated the Patent Rights,” and the Complaint alleged that Omega’s CEO “had substantial experience and contacts with medical technology and venture capital.” The prior art could presumably have been uncovered with reasonable investigation, yet the Complaint failed to allege why Omega, a company “knowledgeable ... in developing and commercializing nano rod technology” that conducted its own due diligence, failed to find and evaluate the published prior art, instead reasonably relying on Mayo’s non-disclosure of this prior work in the field. See Midland Nat’l Bank v. Perranoski, 299 N.W.2d 404, 412 (Minn. 1980) (“fraud is proved with reference to the specific intelligence and experience of the aggrieved party rather than a reasonable-man standard”).

The record includes a June 2012 final action by the Patent Office declaring the application abandoned for lack of a reply to its non-final rejection of claims 1-5. This means that Omega first made the decision to withdraw claims 9-13 from consideration, the only claims relating to “a method of promoting angiogenesis,” and then decided not to pursue patenting of the withdrawn claims or to challenge the Examiner’s rejection of claims 1:5. Omega’s decision to abandon the application when five of thirteen claims were rejected does not make plausible its allegation that Mayo did no original work to develop any aspect of the thirteen claims.

The Complaint only generally pleads that Omega “reasonably relied.” It fails to allege the “who, what, when, where and how surrounding” this element of the alleged fraud. Without those Rule 9(b) specifics, the Complaint fails to allege, as Rule 8(a)(2) requires, fraud and negligent representation claims that are plausible on their face. The allegation that Mayo was aware of the prior art because Dr. Patra attended the university where it was developed, and “one of the graduate assistants working on the project at Bar lian was also a student from India,” is not plausible on its face. Omega does not allege facts suggesting how Dr. Patra accessed the know-how reflected in the published prior art, information that could presumably have been uncovered with reasonable investigation. And even if the Complaint raises an inference that Mayo had some knowledge of published prior work that the Patent Office might conclude is prior art, this does not make plausible the allegation that Mayo “knew or should have known” the invention was unpatentable; most patentable new inventions build on prior work. Cf. Exergen Corp. v. Wal-Mart Stores, Inc., 575 F.3d 1312, 1330-31 (Fed. Cir. 2009). And perhaps most importantly, knowledge of prior art for producing europium hydroxide na-norods does not even suggest that Mayo did no research and development on the withdrawn claims for “a method of promoting angiogenesis,” which apparently was Omega’s primary interest in securing the Agreement.

A complaint grounded in fraud does not “suffice if it tenders naked assertions devoid of further factual enhancement.” Quintero, 792 F.3d at 1009, quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Here, the lack of particularity makes Omega’s general allegation of reasonable reliance not plausible. It is inherently implausible that Mayo would incur the expense of a patent application based entirely on mimicking known prior art, and then enter into a licensing agreement in which Mayo’s success depended entirely upon Omega’s success, based upon fraudulent representations that it had independently developed the technology being licensed. The Agreement and the patent application file squarely contradict Omega’s general, con-elusory allegation of reasonable reliance. The district court properly dismissed these claims grounded in fraud for failure to state plausible claims of reasonable reliance. Like the district court, we need not resolve the parties’ disagreement as to whether Omega’s negligent misrepresentation claim is governed by Minnesota or California law. See OmegaGenesis Corp., 132 F.Supp.3d at 1125-26.

The judgment of the district court is affirmed.

      . The Honorable David S. Doty, United States District Judge for the District of Minnesota.


source: Caselaw Access Project

author: COLLOTON, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Steven A. HUDSON, Defendant-Appellant.
    No. 15-3744
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 19, 2016
    Filed: March 21, 2017
    Rehearing and Rehearing En Banc Denied May 16, 2017

      Larry H. Ferrell, U.S. Attorney’s Office, Cape Girardeau, MO, for Plaintiff-Appel-lee.
    Steven A. Hudson, Pro Se.
    Scott Tilsen, Assistant Federal Public Defender, Federal Public Defender’s Office, Cape Girardeau, MO, for Defendant-Appellant.
    Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.
   COLLOTON, Circuit Judge.

Steven Hudson pleaded guilty to unlawful possession of a firearm as a previously convicted felon, in violation of 18 U.S.C. § 922(g). The district court increased Hudson’s base offense level under USSG § 2K2.1(a)(4)(A) after finding that Hudson had sustained a prior conviction for a “crime of violence.” The court cited Hudson’s conviction for unlawful use of a firearm under Mo. Rev. Stat. § 571.030.1(4) and this court’s holding in United States v. Pulliam, 566 F.3d 784 (8th Cir. 2009), that a violation of the same Missouri statute is a “violent felony” for purposes of 18 U.S.C. § 924(e). Hudson appeals, arguing that Pulliam is no longer good law in light of intervening Supreme Court decisions. We conclude that Pulliam controls and therefore affirm.

The sentencing guidelines provide that when a person is sentenced for unlawful possession of a firearm, the base offense level is 20 if “the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense.” USSG § 2K2.1(a)(4)(A). Without a qualifying pri- or conviction, the base offense level is lower. The guidelines define “crime of violence” to include an offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” USSG § 4B1.2(a)(l). This text is described as the “force” clause of the definition.

Hudson was convicted in 2010 for unlawful use of a weapon under Mo. Rev. Stat. § 571.030.1(4). A person violates that subdivision if he knowingly “[e]xhibits, in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner.”

In Pulliam, we held that § 571.030.1(4) is a “violent felony” under the Armed Career Criminal Act (ACCA). Like the term “crime of violence” under the guidelines, the definition of “violent felony” under the statute includes an offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). Pulliam addressed a prior conviction under § 571.030.1(4) and said that “[i]t goes without saying that displaying an operational weapon before another in an angry or threatening manner qualifies as threatened use of physical force against another person.” 566 F.3d at 788. Accordingly, the conviction qualified as a violent felony.

Hudson does not contend, in evaluating his prior conviction, that there is any material difference between the “force” clauses in the respective definitions of “violent felony” under § 924(e) and “crime of violence” under the guidelines. He argues, however, that Pulliam has been superseded by recent Supreme Court decisions. He cites three principal authorities: Samuel Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), Curtis Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), and Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013).

In Samuel Johnson, the Court held that a portion of the definition of “violent felony” in the ACCA known as the “residual clause,” 18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague. 135 S.Ct. at 2563. That decision has no application here. Although the definition of “crime of violence” under the guidelines until recently included an identically-worded residual clause, the guidelines are not subject to constitutional vagueness challenges. Beckles v. United States, No. 15-8544, — U.S. -, 137 S.Ct. 886, 896-97, 197 L.Ed.2d 145, 2017 WL 855781, at *11 (U.S. Mar. 6, 2017). More to the point, Pulliam did not rely on the residual clause. Pulliam held that Mo. Rev. Stat. § 571.030.1(4) is a violent felony under the “force” clause of § 924(e)(2)(B)(i). Therefore, nothing in Samuel Johnson calls into question the reasoning of Pulliam.

Curtis Johnson did address the “force” clause of § 924(e), but it does not undermine Pulliam. Curtis Johnson held that slight unwanted touching of another person does not constitute “physical force” under the statute, because the statute requires the use, attempted.use, or threatened use of “violent force — that is, force capable of causing physical pain or injury to another person.” 559 U.S. at 140, 130 S.Ct. 1265 (emphasis in original). The Missouri statute under which Hudson was convicted requires exhibiting a weapon that is “readily capable of lethal use in an angry or threatening manner.” “Lethal” means “[cjapable of causing death,” Black’s Law Dictionary (10th ed. 2014), so threatening use of such a weapon necessarily involves a threatened use of -violent force, not merely an unwanted physical touching. Pulliam, therefore, is consistent with Curtis Johnson.

Hudson’s third offering, Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), addressed when a sentencing court may apply the so-called “modified categorical approach” to determine whether a prior offense is a violent felony under the ACCA. This approach allows courts, when confronted with state statutes that define multiple alternative offenses, to consult a limited class of judicial records to 'determine under which alternative the defendant was convicted. Id. at 2281. Mathis v. United States, — U.S. -, 136 S.Ct; 2243, 195 L.Ed.2d 604 (2016), clarified that the modified categorical approach applies only when a statute sets forth alternative elements that define multiple offenses, not when a statute articulates multiple means of committing a single offense. Id. at 2252-53.

Neither Descamps nor Mathis affects the vitality of Pulliam. Section 571.030.1 of the Missouri statutes enumerates multiple offenses pertaining to the unlawful use of a weapon. Yates v. State, 158 S.W.3d 798, 801-02 (Mo. Ct. App. 2005). Hudson was convicted under subdivision (4). That subdivision is phrased in the alternative, applying to exhibition of a weapon in an “angry or threatening manner.” Pulliam, however, reasoned that a violation of subdivision (4) categorically is a violent felony: “displaying an operational weapon before another in an angry or threatening manner qualifies as threatened, use of physical force against another person.” 566 F.3d at 788. Thus, assuming for the sake of analysis that subdivision (4) defines a single offense, Pulliam already concluded that both means of committing the offense (an angry display or a threatening display) involve the requisite threatened use of force. The Supreme Court’s refinement of the categorical analysis under § 924(e) therefore does not affect our circuit precedent in Pulliam.

Hudson also seems to suggest that Pulliam conflicts with United States v. Fields, 167 F.3d 1189 (8th Cir. 1999), and United States v. Jackson, 462 F.3d 899 (8th Cir. 2006), because thpse earlier decisions held that § 571.030.1(4) constitutes a “crime of violence” under the residual clause of the guidelines. Jackson, 462 F.3d at 901; Fields, 167 F.3d at 1191. The residual clause followed a list of several enumerated offenses and encompassed any offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” USSG § 4B1.2(a)(2) (2015). Fields and Jackson do not conflict with Pulliam-, they simply address a different issue. Under circuit precedent, Hudson’s prior conviction qualified as a crime of violence under both the force clause of USSG § 4B1.2(a)(1) (Pulliam) and the residual clause of § 4B1.2(a)(2) (.Fields and Jackson). The district court here relied on the force clause, and that decision was correct in light of Pulliam.

Hudson has not identified any developments in Missouri law after 2009 that undermine the court’s conclusion in Pulliam. Although this court in United States v. Dixon, 822 F.3d 464 (8th Cir. 2016), construed Missouri law to mean that the State need not prove that a weapon is “functional” to satisfy the elements of § 571.030.1(4), the weapon that is exhibited in an angry or threatening manner must be “readily capable of lethal use.” Id. at 466; cf. id. at 467 (Kelly, J., concurring). Thus, even if “functional” is deemed synonymous with “operational,” such that Pul-liam’s assumption about an offender displaying an “operational weapon” could be questioned in light of Dixon, see 566 F.3d at 788, the Pulliam court’s ultimate conclusion remains sound in light of the statutory elements: Displaying a weapon that is “readily capable of lethal use” before another in an angry or threatening manner qualifies as threatened use of physical force against another person.

The judgment of the district court is affirmed.

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


author: SHEPHERD, Circuit Judge.

text:
    Mandy LILES, Plaintiff-Appellant v. C.S. MCCROSSAN, INC.; C.S. McCrossan Construction, Inc., Defendants-Appellees
    No. 15-3801
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 19, 2016
    Filed: March 21, 2017

      George E. Antrim, III, George E. An-trim, III Law Office, Minneapolis, MN, for Plaintiff-Appellant.
    Grant T. Collins, Penelope Jane Phillips, Felhaber & Larson, Minneapolis, MN, for Defendants-Appellees.
    Before GRUENDER, BEAM, and SHEPHERD, Circuit Judges.
   SHEPHERD, Circuit Judge.

Mandy Liles brought this action against C.S. McCrossan, Inc. and C.S. McCrossan Construction, Inc. (collectively “CSM”) asserting a number of civil rights claims. The district court granted CSM’s motion for summary judgment and Liles appealed. We affirm.

I. Background

CSM is engaged in the construction business and specializes in providing highway and heavy general contracting to various levels of government transportation departments. CSM hired Liles in 2004 following her graduation from college. The first several years of her employment were generally positive, and she was promoted from her original role of project engineer to assistant project manager. During this time, she had a good relationship with Tom McCrossan, the owner of CSM. McCrossan took a personal interest in Liles’s career development by taking her to lunch meetings and attempting to introduce her to influential people in the construction industry. Her experience changed toward the end of 2009, however, when she turned down the romantic advances of fellow employee Tom Peterson, Jr. (“Junior”). According to Liles, after this event, Junior made a number of lewd comments to her in person' and via email. She reported this conduct to CSM, and the company reprimanded Junior. After that reprimand, Junior’s conduct ceased and Liles testified that she had no further communication with Junior after December of 2009.

Junior’s father, Tom Peterson, Sr. (“Senior”), is the Underground Division Manager at CSM, and he was known around CSM as someone who would hold grudges and make people’s “lives at work difficult for a long time.” Senior was apparently so enraged by the fact that Liles reported his son that Senior thereafter began calling her names such as “rotten” and “tuna fish.” Although he never said these things directly to her, Liles claims she heard Senior call her these names to other people between two and five times in a two-year period between 2010 and 2011. The final comment she alleges is that he told another employee to “put the screws to her” in late 2010 or early 2011. Liles- did not report these comments to anyone at CSM.

In 2010, Liles was assigned to work with a woman named Deb Petry on the Devil’s Triangle project in Brooklyn Park, Minnesota, on which CSM was contracted to construct bridges across a number of major throughways and a railroad line. Although Petry was certified as a. crane operator, she was employed by CSM as a crane oiler. At some point, Petry told Liles that Petry was not getting the training on the lattice boom crane that she was supposed to receive. After Liles reported the issue to both the foreman on the project and a CSM division manager, Petry was still not given training time on the crane. Liles then told McCrossan, and, shortly thereafter, Petry was given training on the crane.

In the fall of 2010, Liles accepted an offer to be an assistant project manager in charge of Project Controls on the Central Corridor Light Rail Transit (“CCLRT”) project. This project was a joint venture between CSM and Ames Construction with the ultimate goal of constructing a transit line between the cities of Minneapolis and St. Paul. Justin Gabrielson, an Ames employee, was assigned as the project manager. On the first day of the project, Gabriel-son remarked that “he had never worked with a female” assistant project manager, and he asked Liles if “she was going to cry on him.” Over the next few months, Ga-brielson made numerous comments about Liles being attractive and asked her on one occasion if she needed a hug. He would also stand in doorways with his arms stretched above his head in such a manner that his stomach was exposed and ask Liles if it aroused her. Liles testified that Gabrielson’s inappropriate behavior ceased in February of 2011, and that she reported some incidents of Gabrielson’s behavior to McCrossan the next month.

Around the time that Liles began work on the CCLRT project, Manny Walk became her direct supervisor at CSM. As with Senior, Walk had a reputation for being a difficult supervisor. Walk became involved in the CCLRT project at some point early in 2011, and he quickly noticed that Liles was having difficulties fulfilling many of her job duties. In March, Gabriel-son sent an email to Walk noting that Liles broke down in tears and that he felt she was “overwhelmed by the complexity of the job.” McCrossan made similar remarks by email to Walk around that same time. As a result, CSM transferred Liles into a position performing field work — a transfer Walk described on April 28, 2011, as “al-lowfing] Mandy the opportunity to gain field experience ... [because] [w]e have recognized that Mandy’s skill level is not yet at the position to assume all duties necessary for [the Project Controls role].” In an internal memorandum dated May 2, 2011, Walk described in detail a conversation he had with Liles the day after she was reassigned to the field. In response to a question from Liles during that meeting regarding why she had been removed from her original position, Walk “told her that it was mainly due to work product performance on the project and the inability to trust that she had the relevant skills needed ... to meet the demands of ... being Assistant PM.” Walk provided Liles with specific examples of deficient performance — including work being completed improperly or late and her failure to follow proper protocols on assignments — and Liles responded that this was the first she had heard about these issues. Walk further noted that he told Liles “that her success lies in her hands and this may be the last opportunity to move ahead in her role with [CSM].”

Liles’s performance deficiencies followed her into her new position in the field. On her “satisfactory”, performance review dated June 25, 2011, Walk wrote that no one calls Liles when they have problems, an issue he later described as being indicative of employees not trusting her ability to do her job. By email on November 8, 2011, Walk sent Liles a document titled “Performance Improvement Corrective Action” in which he stated that she was still failing to perform at an acceptable level with respect to many of the issues they had discussed in April and May. The document presented a Corrective Action Plan (“CAP”) that required Liles to complete a number of assignments designed to test her ability to perform. Liles signed the document, but she also attached an addendum in which she attempted to refute or explain every performance issue raised by the CAP. The parties dispute whether she properly completed the plan. CSM terminated Liles on January 24, 2012.

Liles filed a charge of discrimination with the Equal Employment Opportunity Commission, which dismissed the charge and issued a right-to-sue letter on February 13, 2014. Thereafter, Liles filed suit in the United States District Court for the District of Minnesota' alleging she experienced “Sex Harassment, Discrimination, [and] Retaliation” in violation of Title VII and “Sexual Harassment, Discrimination, [and] Reprisal” in violation of the Minnesota Human Rights Act (MHRA). After discovery, CSM moved for summary judgment on all six claims, and the district court granted this motion. The court first dismissed Liles’s gender discrimination claims by assuming that she could establish her prima facie case, but finding that she had failed to show that CSM’s proffered reason for her termination — her failure to sufficiently perform her work duties — was pretext. Next, the court dismissed the harassment claims, concluding that Liles had failed to establish either that the complained-of incidents altered a term or condition of her employment or that the harassment was committed on the basis of her gender. Finally, the court dismissed the retaliation and reprisal claims because the two instances of protected conduct that occurred were too remote in time from the adverse action to support the causation element.

II. Discussion

Because Liles appeals the district court’s grant of summary judgment to CSM, our review is de novo. Guimaraes v. Supervalu, Inc., 674 F.3d 962, 971 (8th Cir. 2012). After viewing the facts in the light most favorable to Liles as the non-moving party, we will affirm if “there is no genuine dispute as to any material fact and [CSM] is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In her notice of appeal, Liles challenges the district court’s grant of summary judgment on all six of her original claims. However, in her brief, Liles does not make distinct arguments with respect to her claims for sexual harassment and gender discrimination under the MHRA. At any rate, Minnesota generally follows the federal courts’ analysis on these two subsets of claims, see Hervey v. Cnty. of Koochiching, 527 F.3d 711, 719 (8th Cir. 2008), so our disposition of these claims under Title VII decides any MHRA claims preserved for our review.

We first address Liles’s claims of retaliation and reprisal before turning our attention to her claims of gender discrimination and hostile work environment.

A. Retaliation/Reprisal

Title VII forbids an employer from “dis-criminat[ing] against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in' any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). Likewise, the MHRA’s counterpart to § 2000e-3(a) prohibits an employer from “intentionally engaging] in any reprisal against any person because that person ... opposed a practice forbidden under this chapter or has filed a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.” Minn. Stat. Ann. § 363A.15(1).

A plaintiff may establish a retaliation or reprisal claim through direct or indirect evidence. See Musolf v. J.C. Penney Co., 773 F.3d 916, 918 (8th Cir. 2014). Where, as here, the plaintiff relies on indirect evidence, the McDonnell Douglas burden-shifting analysis applies. Id. Thus, Liles bears the burden of first establishing a prima facie case of retaliation by showing that “(1) she engaged in protected conduct; (2) a reasonable employee would have found the retaliatory action materially adverse; and (3) the materially adverse action was causally linked to the protected conduct.” Id. After she establishes her pri-ma facie case, the burden shifts to CSM “to articulate a legitimate, non-retaliatory reason for the adverse action.” Id. at 918-19. Finally, the burden shifts back to Liles to offer evidence that CSM’s proffered reason' is pretext for retaliation. Id at 919. This same framework applies to Liles’s MHRA reprisal claim. Id. (citing Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101-02 (Minn. 1999)).

In establishing her prima facie case, Liles relies primarily on two activities that she claims are protected. First, in .2010, Liles reported to Tom McCrossan and several other CSM supervisors that Petry was not being given the training time she needed on the lattice boom crane. Second, Liles reported Gabrielson’s inappropriate comments and actions to Tom McCrossan in March 2011. Next, Liles points to two adverse'employment actions: being placed on the CAP in November 2011 and being terminated in January 2012. Liles has therefore established the first two elements of her prima facie case.

Turning to the third element of the prima facie case, the Supreme Court’s decision in University of Texas Southwestern Medical Center v. Nassar, — U.S. -, 133 S.Ct. 2517, 2534, 186 L.Ed.2d 503 (2013), made clear that “[i]t is not enough that retaliation was a ‘substantial’ or ‘motivating’ factor in the employer’s decision.” Blomker v. Jewell, 831 F.3d 1051, 1059 (8th Cir. 2016) (quoting Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 90-91 (2d Cir. 2015)) (internal quotation marks omitted).. Rather, Title VII requires that “[retaliation must be the ‘but for’ cause of the adverse employment action.” Blomker, 831 F.3d at 1059 (quoting Jackman v. Fifth Judicial Dist. Dep’t of Corr. Servs., 728 F.3d 800, 804 (8th Cir. 2013)) (internal quotation marks omitted). On the other hand, “[t]he Minnesota courts have not addressed ... whether the Nassar but-for causation standard similarly applies for reprisal claims under the MHRA.” Musolf, 773 F.3d at 919. Although the Supreme Court of Minnesota has offered differing articulations of the causation element, the most recent is that causation can be proven “by evidence of circumstances that justify an inference of retaliatory motive, such as a showing that the employer has actual or imputed knowledge of the protected activity and the adverse employment action follows closely in time.” Dietrich v. Canadian Pac. Ltd., 536 N.W.2d 319, 327 (Minn. 1995) (quoting Hubbard v. U.P.I., Inc., 330 N.W.2d 428, 445 (Minn. 1983)) (internal quotation marks omitted).

Our Title VII precedent and Minnesota’s MHRA precedent dispose of Liles’s retaliation and reprisal claims. Her complaints regarding, the discrimination against Petry occurred at least fifteen months prior to Liles being placed on the CAP and at least seventeen months before her termination. Her complaints regarding Gabrielson’s inappropriate behavior occurred approximately eight months prior to Liles being placed on the CAP and approximately ten months before .her termination. We have found causation lacking in instances where far less time passed between the protected activity and the adverse employment action. See, e.g., Kipp v. Mo. Highway & Transp. Comm’n, 280 F.3d 893, 897 (8th Cir. 2002) (“[T]he interval of two months between the complaint and Ms. Kipp’s termination so dilutes any inference of causation that we are constrained to hold as a matter of law that the temporal connection could not justify a finding [of causation].”). Likewise, in Dietrich, the court determined that the MHRA causation standard was not satisfied when “several months” passed between the protected activity and the adverse action. 536 N.W.2d at 327.

With respect to the causation element, Liles asserts that Senior orchestrated a plan to have her placed on the CAP and ultimately fired out of spite. However, even accepting all of Liles’s testimony recounting Senior’s comments as true, only one of the comments could conceivably have anything to do with her gender. And Liles offers no evidence tying this comment to the adverse actions that occurred between ten and twelve months later. Cf. Guimaraes v. SuperValu, Inc., 674 F.3d 962, 972 (8th Cir. 2012) (dismissing retaliation claims in part because plaintiff could not correlate the employer’s failure to follow its personnel policies with evidence of retaliation). This lack of evidence ultimately dooms her claim because the remainder of the evidence in the record demonstrates two things: First, that Liles’s colleagues sporadically made abusive and harsh comments in an even-handed fashion regardless of the recipient’s gender. See Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (noting that Title VII standards will, if properly applied, filter out complaints alleging “sporadic use of abusive language, gender-related jokes, and occasional teasing” (internal quotation marks omitted)). And second, that she did, in fact, have a history of performance problems.

Liles seeks to bypass the fact that Senior and Walk were not decision-makers by advancing, in substance, a “cat’s paw” theory through which she attempts to transfer the alleged animus on the part of Senior and Walk to the ultimate decisionmaker — Tom McCrossan. See Staub v. Proctor Hosp., 562 U.S. 411, 415, 419, 131 S.Ct. 1186, 179 L.Ed.2d 144 (2011). In Dedmon v. Staley, 315 F.3d 948, 949-50 (8th Cir. 2003), we affirmed the district court’s refusal to provide a cat’s paw instruction because the plaintiff had failed to adduce sufficient evidence that the immediate supervisor “initiated, exercised, or even possessed any influence or leverage over” the ultimate decisionmaker. Further, we stated that “there [was] no evidence that [the supervisor] harbored any unlawful animus toward” the employee. Id. at 950. Here, Liles has produced evidence of comments by Senior that could infer discriminatory animus, and she has concluded that ‘Walk influenced Tom McCrossan’s decision to terminate Liles.” She has not, however, produced evidence that Senior had sufficient influence over McCrossan to cause him to fire her, nor has she produced evidence that Walk harbored a discriminatory animus. See Bennett v. Riceland Foods, Inc., 721 F.3d 546, 551 (8th Cir. 2013) (“In a cat’s paw case, an employer may be vicariously liable for an adverse employment action if one of its agents ... is motivated by discriminatory animus and intentionally and proximately causes the action.”).

Finally, Liles repeatedly criticizes the district court for “evaluating Plaintiffs claims of discriminatory and hostile acts as discrete acts rather than an ongoing series of discriminatory acts.” To that end, Liles cites National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 115, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), and a handful of other cases for the proposition that “[t]he ‘unlawful employment practice’ therefore cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own.” What Liles fails to acknowledge is that these comments apply to hostile work environment claims which are, by their very nature, “based on the cumulative effect of individual acts.” Id. In the retaliation context, however, “[discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each, incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable ‘unlawful employment practice.’” Id. at 114, 122 S.Ct. 2061.

As a result of the attenuated temporal proximity and the lack of evidence from which a jury could infer a discriminatory motive, Liles cannot establish the causation element of her prima facie case of retaliation and reprisal. The district court therefore correctly granted summary judgment to CSM on both claims.

B. Gender Discrimination

Liles also contends that the district court improperly granted summary judgment to CSM on her gender discrimination claim. Under federal law, an employer may not “discharge any individual, or otherwise ... discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s ... sex.” 42 U.S.C. § 2000e-2(a)(l). “The same analysis applies to both Title VII and MHRA claims.” Guimaraes v. Supervalu, Inc., 674 F.3d 962, 972 (8th Cir. 2012). As with her retaliation claims, the McDonnell Douglas framework applies because Liles has presented no direct evidence of discrimination. See id. at 973. The district court assumed that Liles could establish her prima facie case and dismissed the claim because Liles failed to show that CSM’s proffered nondiscriminatory reason — inferior job performance— was pretextual. We likewise assume she can establish her prima facie case of gender discrimination and solely determine whether Liles has shown sufficient evidence of pretext. See id at 975.

Liles may show that CSM’s reason for her termination was pretext for unlawful discrimination in a number of ways. In some instances, “[i]t is possible for strong evidence of a prima facie case to establish pretext.” Smith v. Allen Health Sys., Inc., 302 F.3d 827, 834 (8th Cir. 2002). She could point to “[e]vidence that similarly situated employees outside [her] class were treated differently,” but she has not done so. Lewis v. Heartland Inns of Am., 591 F.3d 1033, 1041 (8th Cir. 2010). She “may show that the employer’s explanation is unworthy of credence ... because it has no basis in fact.” Torgerson v. City of Rochester, 643 F.3d 1031, 1047 (8th Cir. 2011) (en banc) (alteration in original) (internal quotation marks omitted). Finally, she also “may show pretext by persuading the court that a [prohibited] reason more likely motivated the employer.” Id. (alteration in original) (internal quotation marks omitted). Liles’s arguments on this point blend these latter two methods.

As to whether CSM’s proffered reason had a legitimate basis in fact, “[t]he critical inquiry ... is not whether the employee actually engaged in the conduct for which he was terminated, but whether the employer in good faith believed that the employee was guilty of the conduct justifying discharge.” McCullough v. Univ. of Ark. for Med. Scis., 559 F.3d 855, 861-62 (8th Cir. 2009). Given CSM’s explanation for the termination that Liles was inadequately performing her duties, Liles misses the mark in arguing that she was, in fact, satisfactorily performing her duties because “[t]hat proof shows only that the employer’s belief was mistaken.” Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996, 1003 (8th Cir. 2012). Rather, “[t]o prove that the employer’s explanation was false,” Liles needs to show that CSM did not actually believe that- her performance was deficient. See id. This she has not done as she points to no evidence indicating that CSM’s belief that she was not adequately performing her duties was insincere.

Liles next attempts to parlay her assertion that her performance was adequate into an argument that, because she was placed on the CAP shortly after a “satisfactory” review, there must be a discriminatory motive behind that action. Although the ultimate question in a discrimination case is necessarily whether gender or some other prohibited factor was the motivating factor prompting an adverse employment action, see Wright v. St. Vincent Health Sys., 730 F.3d 732, 739 (8th Cir. 2013), the appropriate inquiry “[a]t the summary judgment stage ... is whether the plaintiff has sufficient evidence that unlawful discrimination was a motivating factor in the defendant’s adverse employment action,” McCullough, 559 F.3d at 860-61 (internal quotation marks omitted). “[Ejvidence of a strong employment history ... can be relevant when considering whether the record as a whole establishes a genuine issue of material fact.” Guimaraes, 674 F.3d at 975 (alteration in original) (internal quotation marks omitted). For example, Liles cites our decision in Turner v. Gonzales, 421 F.3d 688 (8th Cir. 2005), in support of her assertion that her favorable history of employment at CSM must mean that “putting Liles on the CAP was itself an adverse employment action based on unlawful gender discrimination.” But in that case, Turner “consistently earned performance ratings of ‘Superior’ or ‘Exceptional’ ” over a twenty-year tenure with the FBI. Turner, 421 F.3d at 692. Less than a month after Turner reported a number of actions she believed were discriminatory, her performance rating was downgraded from “Superi- or” to “Minimally Acceptable/Unacceptable.” Id. Therefore, given the sharp decline in her scores and the temporal proximity between that decline and her complaints, we held that this evidence supported an inference that the FBI’s proffered reason was pretextual. Id at 698. Here, by contrast, Liles has a history of “satisfactory” performance, and the evidence in the record shows that her supervisors and coworkers had on numerous occasions informed her of perceived deficiencies in her work. The district court thus properly dismissed Liles’s gender discrimination claims.

C. Sexual Harassment

Liles’s final contention on appeal is that the district court erred in dismissing her claim of a hostile work environment. “Title VII prohibits employers from discriminating based on sex with respect to compensation, terms, conditions, or privileges of employment. Discrimination based on sex that creates a hostile or abusive working environment violates Title VTI.” Jenkins v. Winter, 540 F.3d 742, 748 (8th Cir. 2008) (internal quotation marks omitted).

“Hostile work environment harassment occurs ‘[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’ ” Jackman v. Fifth Judicial Dist. Dep’t of Corr. Servs., 728 F.3d 800, 805 (8th Cir. 2013) (alteration in original) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). To establish her prima facie case, Liles “must prove: (1) she was a member of a protected group; (2) the occurrence of unwelcome harassment; (3) a causal nexus between the harassment and her membership in the protected group; (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment and failed to take prompt and effective remedial action.” Jenkins, 540 F.3d at 748. “The standard for demonstrating a hostile work environment under Title VII is ‘demanding,’ and ‘does not prohibit all verbal or physical harassment and it is not a general civility code for the American workplace.’ ” Jackman, 728 F.3d at 806 (quoting Wilkie v. Dep’t of Health & Human Servs., 638 F.3d 944, 953 (8th Cir. 2011)).

The district court’s analysis of this claim focused on elements three and four of the prima facie case. Even assuming that Liles satisfies the third element, we find that she has failed to show that the harassment affected a term, condition, or privilege of her employment at CSM. This element presents “a high threshold,” arid Liles must prove that the environment was “both subjectively and objectively offensive.” Sutherland v. Mo. Dep’t of Corr., 580 F.3d 748, 751 (8th Cir. 2009). Liles “must prove the conduct was extreme in nature and not merely rude or unpleasant.” Id. (internal quotation marks omitted). Our cases have consistently required much more severe and pervasive conduct than that alleged here. Anderson v. Family Dollar Stores of Ark., Inc., 579 F.3d 858, 862-64 (8th Cir. 2009) (affirming summary judgment in favor of the employer when the employee’s supervisor rubbed the employee’s shoulders weekly for a few months, called her “baby doll,” implied that the employee would advance faster if she got along with him, and called her from Florida to tell her she should be in bed with him); Nitsche v. CEO of Osage Valley Elec. Coop., 446 F.3d 841, 843-44, 846 (8th Cir. 2006) (affirming summary judgment in favor of an employer where, over 20 years, a coworker made a myriad of sexual comments to and about the plaintiff, stuck a shovel between the plaintiffs legs and rubbed him with it, authored a belittling and sexually suggestive poem about the plaintiff, showed the plaintiff a Playboy magazine and a pornographic movie, and put snakes and mice in the plaintiffs lunch box); Ottman v. City of Independence, 341 F.3d 751, 755, 760 (8th Cir. 2003) (reversing the denial of a summary judgment and “conclud[ing] the district court erred in finding a triable issue for the jury” where a coworker made sexist and belittling comments to, about, and around the plaintiff “on a weekly, if not daily, basis”). Liles bases her claim on a number of comments and actions of Junior, Senior, and Gabrielson. There is no doubt that these comments and actions were rude and unpleasant, but Liles fails to prove that they were so objectively and subjectively offensive that they altered the terms and conditions of her employment. See Sutherland, 580 F.3d at 751.

Instead of bolstering her prima facie showing, Liles’s course of action on appeal is to criticize a number of comments made by the district court. First, she claims the district court incorrectly characterized the complained-of events as “stray incidents” rather than “a series of separate acts that collectively constitute one unlawful employment practice.” This argument fails because the collective effect of all of the conduct at issue is not sufficiently severe to establish a cognizable claim. Liles then claims that only a jury can resolve “whether a reasonable woman in Liles’ place would also find the environment in which she worked to be hostile based on these three individuals’ actions.” Thus, in essence, she argues that the objective prong of whether there has been actionable harassment is a question of fact. In response to a similar argument in Sutherland, we noted that we have never held “that actionable harm must always be determined by a jury.” 580 F.3d at 751. Indeed,.the three cases discussed above— Anderson, Ottman, and Nitsche — all disposed of hostile work environment claims on motions for summary judgment. The district court properly granted summary judgment to CSM on Liles’s hostile work environment claim.

III. Conclusion

For the above reasons, we affirm the district court’s grant of summary judgment to CSM.

      . The Honorable Paul A. Magnuson, United States District Judge for the District of Minnesota.

      . Senior was a long-time CSM employee, but he was not in Liles’s chain of command.

      . Her task on this project was therefore confined to the maintenance role of oiling and greasing, rather than operating, the crane.

      . The parties dispute the number of comments made. Viewing the evidence in the light most favorable to Liles, we conclude that the following events occurred. Gabrielson would “often” comment about how he thought Liles "was very good looking,” and he made comments about her clothes such as "those jeans look nice” or "I like that shirt on you.” Liles also claims that on one occasion Gabrielson "crawled on the floor and lifted her pants so he could see her high heels.” Finally, Liles points to Gabrielson's action in December 2010 where she alleges he called a male Ames employee "a stupid f* * * * * * cowboy” in her presence.

      .The parties also dispute the extent to which Liles reported Gabrielson’s misconduct. In her brief, Liles claims to have "reported Ga-brielson's sexual harassment and inappropriate behavior right away, and repeatedly, to Tom McCrossan.” However, on the pages of her deposition that Liles cites in support of the above statement, Liles testified that she informed McCrossan about Gabrielson’s behavior during a discussion they had on March 17, 2011. Given her additional testimony that Gabrielson's behavior ceased in February of that year, it is unclear how CSM could have corrected the behavior as it was occurring if Liles had failed to report it until a month after it had stopped.

      . Liles clearly states that "[t]he district court erred by dismissing Plaintiff’s Title VII and MHRA claims for retaliation/reprisal,” and she cites authority from this circuit ahd Minnesota state courts in support of her arguments. On the other hand, Liles uses only the singular word "claim” in appealing her gender discrimination and sexual harassment claims, and she cites only federal precedent in those sections.

      . CSM does not dispute either of these activities’ status as "protected.” Therefore, for the purposes of this opinion, we assume without deciding that they are protected.

      . It is unclear when exactly in 2010 this event occurred. The district court noted that it happened "in late 2009 or early 2010,” and Liles succinctly claims in her brief that it occurred ”[i]n 2010.” But Liles then goes on to describe her start date on the CCLRT project as "the fall of 2010.” Viewing the facts in the light most favorable to Liles, we will assume that the latest date on which she could have complained about Petry’s lack of training on the crane was some point in the summer of 2010.

      . Liles herself provides the following examples. She observes that "the evidence show[s] that Sr. did not differentiate between men and women in the way he held grudges.” "After one incident,” Senior "refused [a male employee] work for two winters,” and he made another male employee’s "life hell” after a different disagreement. Likewise, Liles notes that "Walk had a general reputation as a difficult supervisor[ ] who could be mean as well as demanding.” Finally, in her deposition, she commented that Gabrielson had a similar reputation: the other CSM employees on the CCLRT project "said they didn’t like him” because "he was nitpicky,” and she observed Gabrielson "belittling]” a male assistant project manager.

      . This phrase "describes a situation in which a biased subordinate, who lacks decisionmaking power, uses the formal decisionmaker as a dupe in a deliberate scheme to trigger a discriminatory employment action.” Diaz v. Tyson Fresh Meats, Inc„ 643 F.3d 1149, 1151 (8th Cir. 2011) (internal quotation marks omitted).

      . Liles entirely fails to acknowledge the many instances — both before and after she was placed on the CAP — reflected in the record where her supervisors indicated their lack of satisfaction with her performance. Instead, she repeatedly recharacterizes her "satisfactory” performance review scores into "more than satisfactory work” evidencing an "exemplary employment with CSM” without providing evidentiary support for these comments. Indeed, at every instance reflected in the record where a supervisor criticized Liles’s work, her reply was, in effect, that she had no prior knowledge of the issue.

      . This is an unlikely conclusion given the evidence in the record. See supra note 9 and accompanying text.


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee v. Eric L. PRICE, Defendant-Appellant
    No. 16-1334
    United States Court of Appeals, Eighth Circuit.
    Submitted: November 14, 2016
    Filed: March 21, 2017

      Daniel Goldberg, Research and Writing Specialist, Office of the Fed. Public Defender, Kansas City, MO (Laine Cardarel-la, Fed. Public Defender, Robert G. Kuc-har, Asst. Fed. Public Defender, on the brief), for appellant.
    D. Michael Green, Asst. U.S. Atty., Kansas City, MO (Tammy Dickinson, U.S. Atty., on the brief), for appellee.
    Before RILEY, Chief Judge, SMITH and KELLY, Circuit Judges.

      . The Honorable William Jay Riley stepped down as Chief Judge of the United States Court of Appeals for the Eighth Circuit at the close of business on March 10, 2017. He has been succeeded by the Honorable Lavenski R. Smith.

   PER CURIAM.

Eric Price was sentenced to 110 months’ imprisonment after pleading guilty to possessing firearms as a felon. The district court calculated his base offense level as 24 because of two felony crime-of-violence convictions, and then it applied a four-level enhancement because Price possessed the guns in connection with a felony marijuana offense. Price appeals these enhancements. We affirm.

I. Crime of Violence

We review the crime-of-violence determination de novo. United States v. Harrison, 809 F.3d 420, 425 (8th Cir. 2015). Section § 2K2.1(a)(2) of the Guidelines directs a base offense level of 24 when a felon in possession has twice been convicted of a crime of violence. “Crime of violence” means an offense punishable by more than one year in prison that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 4B1.2(a)(1). “ ‘[Pjhysical force’ means violent force — that is, force capable of causing physical pain or injury to another person.” Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010).

Price argues that his 2011 attempted-aggravated-assault conviction under Kan. Stat. Ann. § 21-3410(a) (2007) (current version at Kan. Stat. Ann. § 21-5412(b)(1) (2011)) did not require proof that he used violent force against another. The statute defines aggravated assault as ordinary assault committed under special circumstances, such as with a deadly weapon. Kan. Stat. Ann. § 21-3410. A companion statute defined ordinary assault as “intentionally placing another person in reasonable apprehension of immediate bodily harm.” Kan. Stat. Ann. § 21-3408 (2007) (current version at Kan. Stat. Ann. § 21-5412(a) (2011)). Price contends that we recently held an indistinguishable Arkansas statute not to require violent force. See United States v. Jordan, 812 F.3d 1183, 1186 (8th Cir. 2016). The Arkansas statute, though, is distinguishable. It requires only that the defendant “ereate[ ] a substantial danger of death or serious physical injury.” Id. (quoting Ark. Code Ann. § 5—13—204(a)(1)). The Kansas statute, on the other hand, requires that the defendant make the victim reasonably fear immediate physical harm. We recently addressed a similar Minnesota statute requiring proof of an “act with intent to cause fear in another of immediate bodily harm or death.” United States v. Schaffer, 818 F.3d 796, 798 (8th Cir. 2016) (quoting Minn. Stat. § 609.2242, subd. 1(1)). The Minnesota statute, we concluded, requires violent force. Id. at 798. The Kansas aggravated-assault statute likewise requires violent force.

Price contends that the government did not raise this force-clause argument below and should be unable to do so now. The government, however, is not seeking review of the district court’s decision. Its appellate arguments are not essential to our review. We may affirm the district court judgment for any reason the record supports. United States v. Berger, 553 F.3d 1107, 1109 (8th Cir. 2009). Over Price’s objection, the district court accepted the presentence report’s findings and conclusions, which determined “that both [prior convictions] fall under the ‘force’ clause of § 4B1.2(a)(1).” In sum, the record supports the district court’s conclusion that Price’s prior convictions fall under the force clause of § 4B1.2(a).

Price also argues that Kansas law defines “attempt” more broadly than does the common law. Price did not present this argument to the district court. “To preserve an error for appellate review, an objection must be timely and must ‘clearly stat[e] the grounds for the objection.’ Errors not properly preserved are reviewed only for plain error.... ” United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005) (en bane) (alteration in original) (citation omitted) (quoting United States v. Williams, 994 F.2d 1287, 1294 (8th Cir. 1993)). The government notes that, under pur cases, if a completed crime is a crime of violence, then an attempt to commit it “automatically qualifies ... under the binding commentary to § 4B1.2.” United States v. Sawyer, 588 F.3d 548, 556 (8th Cir. 2009), abrogated in part by United States v. Eason, 829 F.3d 633, 641 (8th Cir. 2016); see also United States v. Brown, 550 F.3d 724, 728 (8th Cir. 2008) (Guidelines consider an aiding-and-abetting conviction to be a conviction for the underlying offense). In light of this caselaw, Price’s asserted error is not plain. See United States v. Anderson, 783 F.3d 727, 741 (8th Cir. 2015).

II. Marijuana Offense.

We review a possession-in-connection-with-another-felony enhancement for clear error. United States v. Bates, 614 F.3d 490, 493 (8th Cir. 2010). Section § 2K2.1(b)(6)(B) of the Guidelines calls for a four-level enhancement when the defendant “[u]sed or possessed any firearm ... in connection with another felony offense.”

The district court found that Price’s guns were linked to more than 600 grams of marijuana found in the trunk of the car that he occupied. The evidence at sentencing established that on June 13, 2014, a white Chevy Malibu backed into a residential driveway. Price got out of the front passenger seat and went into the house. Then someone opened the garage door from the inside, and a backseat passenger got out of the car. The car’s trunk opened, and Price and the other passenger made three or four trips carrying things from the trunk to the garage. The other passenger closed the trunk and got back into the car. Price closed the garage and also got back into the car and left. Police soon stopped the car and arrested Price. More than 600 grams of marijuana was found in the trunk — all of it was in heat-sealed or Ziploc baggies. Some of it was found inside a. pillow case and some in white grocery bags. Four guns were also found in the car, including a loaded MAC-10-style gun and a Beretta pistol in the trunk. Price pleaded guilty to knowingly possessing these guns.

Price argues that the evidence does not support a finding that he constructively possessed the marijuana. We disagree. Price knew about and exercised dominion or control over the marijuana. See United States v. Scofield, 433 F.3d 580, 586 (8th Cir. 2006) (constructive possession arises from knowledge and control or dominion). The only material difference between the guns in the trunk, which Price admits knowingly possessing, and the marijuana in the trunk, which he denies knowingly possessing, is that the marijuana was not in plain sight but was packaged. The trained narcotics officer, though, testified that the marijuana was in plain smell:

Q. All right. So if — if someone was just sort of looking there or casually observing the trunk, you wouldn’t notice that marijuana until you moved some stuff around; right?
A. Well, you could smell it.

Price transferred items from the car trunk to the house. He knowingly possessed the guns in the trunk. And the marijuana odor in the trunk was obvious. This is sufficient circumstantial evidence to establish by a preponderance that Price possessed the guns in connection with a marijuana felony. This case is therefore unlike Scofield, in which the government failed to prove constructive possession beyond a reasonable doubt because it “presented no evidence that [the defendant] knew the drugs were stored in the garage.” 433 F.3d at 586. The possession evidence is not overwhelming, but it is sufficient.

III. Conclusion

Accordingly, we affirm.

      . The Honorable David Gregory Kays, Chief Judge, United States District Court for the Western District of Missouri.


text:
    Michael ALVARADO-ARENAS, Petitioner, v. Jefferson B. SESSIONS, III, Attorney General of the United States, Respondent.
    No. 15-2987
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 20, 2016
    Filed: March 22, 2017

      Counsel who presented argument on behalf of the petitioner and appeared on the brief was Robert Aaron Perkins, of Culver City, CA.
    Counsel who presented argument on behalf of the respondent and appeared on the brief was Katherine Ann Smith, O.I.L., of Washington, DC.
    Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.

      . Attorney General Sessions is automatically substituted for his predecessor under Federal Rule of Appellate Procedure 43(c)(2).

   COLLOTON, Circuit Judge.

Michael Alvarado-Arenas, a citizen of Mexico, was ordered removed in absentia when he failed to appear for a removal hearing in an immigration court. He moved to reopen the hearing, but an immigration judge denied the motion, and the Board of Immigration Appeals affirmed after finding no exceptional circumstances that justified the alien’s failure to appear. We conclude that the Board did not abuse its discretion, so we deny Alvarado-Arenas’s petition for review.

Alvarado-Arenas was admitted to the United States in 2006 on a nonimmigrant K-l visa that he obtained based on his engagement to marry a U.S. citizen. The couple married that year, and Alvarado-Arenas was granted conditional permanent resident status in 2008. After Alvarado-Arenas and his wife failed to appear at an interview on his application to remove the conditions on his status, the Department of Homeland Security terminated his conditional permanent resident status.

In August 2012, the Department filed a Notice to Appear charging that Alvarado-Arenas was removable under 8 U.S.C. § 1227(a)(l)(D)(i) because his conditional resident status was terminated. Alvarado-Arenas’s counsel appeared by telephone at an initial removal hearing in November 2012. At that time, the immigration judge granted Alvarado-Arenas a continuance of the removal proceedings based on a new Form 1-751 (a petition to remove conditions on residence) that Alvarado-Arenas had filed a few weeks earlier.

The new Form 1-751 listed Alvarado-Arenas’s “address” as 2917 Davenport Avenue, Davenport, Iowa. The form also provided separate boxes for Alvarado-Arenas to list a “mailing address,” and the word “SAME” was printed there. A question on the form asking whether Alvarado-Arenas had lived at any other address since becoming a permanent resident was answered in the negative. Alvarado-Arenas’s counsel signed the names of Alvarado-Arenas and his wife at the bottom of the Form 1-751, attesting to the form’s truthfulness under penalty of perjury. Counsel also declared that he prepared the petition at the request of his client, and that it was based on all information of which counsel had knowledge.

Neither Alvarado-Arenas nor his counsel appeared for the continued removal hearing in August 2013. The immigration judge found that Alvarado-Arenas abandoned his application for relief and ordered him removed to Mexico in absentia under 8 U.S.C. § 1229a(b)(5)(A). On February 3, 2014, Alvarado-Arenas moved to reopen the in absentia removal proceedings under 8 U.S.C. § 1229a(b)(5)(C), arguing that the immigration court did not have jurisdiction to enter a removal order because he was outside the United States during the removal proceedings. Alvarado-Arenas later supplemented his motion with an affidavit from his wife stating that he had traveled to Mexico in November 2009 for a family medical emergency and remained there ever since.

An immigration judge denied the motion to reopen, and the Board affirmed. Reopening is permitted if the alien’s failure to appear was due to “exceptional circumstances,” see 8 U.S.C. § 1229a(b)(5)(C)(i), but the Board agreed with the immigration judge that Alvarado-Arenas failed to establish such circumstances. The Board also rejected Alvarado-Arenas’s contention that he was not present in the United States when the government filed the Notice to Appear. The Board cited statements on the Form 1-751 that Alvarado-Arenas’s address was in Davenport, Iowa, and counsel’s oral confirmation at the November 2012 hearing that Alvarado-Arenas still lived in Davenport. The Board found that the wife’s “self-serving affidavit” was insufficient to establish that Alvarado-Arenas was outside the country when the removal proceedings began.

On appeal to this court, Alvarado-Arenas argues that the Board abused its discretion in refusing to reopen the removal proceeding. By statute, an order removing an alien in absentia for failure to appear may be rescinded only upon a motion to reopen that shows either that (1) the alien’s failure to appear was because of exceptional circumstances or (2) the alien did not receive proper notice of the hearing or was in federal or state custody and his failure to appear was through no fault of his own. 8 U.S.C. § 1229a(b)(5)(C). Exceptional circumstances “refers to exceptional circumstances (such as battery or extreme cruelty to the alien or any child or parent of the alien, serious illness of the alien, or serious illness or.death of the spouse, child, or parent of the alien, but not including less compelling circumstances) beyond the control of the alien.” Id. § 1229a(e)(l).

In his brief on appeal, Alvarado-Arenas does not develop an argument that his failure to appear was because of exceptional circumstances within the meaning of the statute. He has never disputed that he received proper notice of the removal hearing and has never alleged that he was in federal or state custody. The Board thus did not abuse its discretion in concluding that Alvarado-Arenas failed to satisfy either of the two statutory bases for rescission of the removal order.

Alvarado-Arenas does renew his contention that he was outside the United States when the Department filed the Notice to Appear in his removal proceeding. He argues that the immigration court therefore lacked jurisdiction to order his removal. Alvarado-Arenas does not explain, however, why his whereabouts when the Notice was filed would authorize the Board to reopen the removal proceedings and rescind the removal order. As noted, the statute provides for rescission of an in absentia removal order,in only two circumstances. Insofar as the immigration judge and the Board considered whether to reopen the proceedings sua sponte based on Alvarado-Arenas’s claim that he was in Mexico throughout the proceedings, see 8 C.F.R. §§ 1003.23(b)(1), 1003.2(a), we lack jurisdiction to review the agency’s discretionary decision. Tamenut v. Mukasey, 521 F.3d 1000, 1004-05 (8th Cir. 2008) (en banc) (per curiam).

Assuming for the sake of analysis, however, that Alvarado-Arenas’s alleged absence from the country could be an “exceptional circumstance” under § 1229a(b)(5)(C)(i), or that the agency otherwise had reviewable discretion to reopen the proceedings on the grounds alleged, we conclude that there was no abuse of discretion. The Board reasonably concluded that Alvarado-Arenas was in the United States when the Department filed the Notice to Appear to initiate the removal proceedings in August 2012. The Form I-751 filed by Alvarado-Arenas’s counsel in November 2012 said that it was filed at the request of Alvarado-Arenas and listed his “address” and “mailing address” in Davenport, Iowa. The form also stated that Alvarado-Arenas had not “resided” at any address other than the Davenport address since he became a permanent resident. These averments supported a finding that Alvarado-Arenas was present in the United States when the removal proceedings commenced. The Board also reasonably gave weight to the fact that Alvarado-Arenas’s counsel verified the accuracy of the Davenport address at a hearing in November 2012 and made no objection to the immigration court’s jurisdiction at that time. Alvarado-Arenas’s wife had an obvious bias that justified the 'Board’s discounting the credibility of her affidavit, and Alvarado-Arenas’s effort to characterize the Davenport location merely as a “legal residence” at which he was never present after 2009 was doubtful enough that the Board reasonably could reject it in favor of a more natural reading of the Form 1-751.

For these reasons, the petition for review is denied. Alvarado-Arenas’s motion to supplement the record, filed on the day hefore oral argument in this court, is denied as untimely and beyond the scope of the administrative record. See 8 U.S.C. § 1252(b)(4)(A); Berte v. Ashcroft, 396 F.3d 993, 997 (8th Cir. 2005).


author: WOLLMAN, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellant v. Michael L. EVANS, Defendant-Appellee
    No. 16-1485
    United States Court of Appeals, Eighth Circuit.
    Submitted: November 18, 2016
    Filed: March 23, 2017

      Justin G. Davids, Asst. U.S. Atty., Kansas City, MO (Tammy Dickinson, U.S. Atty., on the brief), for appellant.
    Rebecca L. Kurz, Research and Writing Specialist, Office of the Fed. Public Defender, Kansas City, MO (Laine Cardarel-la, Fed. Public Defender, William J. Raymond, Asst. Fed. Public Defender, on the brief), for appellee.
    Before RILEY, Chief Judge, WOLLMAN and KELLY, Circuit Judges.

      . The Honorable William Jay Riley stepped down as Chief Judge of the United States Court of Appeals for the Eighth Circuit at the close of business on March 10, 2017. He has been succeeded by the Honorable Lavenski R. Smith.

   WOLLMAN, Circuit Judge.

Officers discovered a firearm in Michael L. Evans’s possession during a search of his person incident to arrest for an unrelated crime. Evans thereafter was charged with one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). The government appeals from the district court’s order granting Evans’s motion to suppress evidence based on a lack of probable cause to arrest him. We affirm.

I.

On the afternoon of December 28, 2014, a woman contacted the Kansas City, Missouri, police department and reported that she had been raped the previous night and early that morning. She informed the police that she was waiting in a vehicle near the apartment building where the rape occurred, that she had hidden the condom that her attacker used in a trash can inside the apartment building, and that she intended to go into the building and retrieve it. The police dispatcher instructed the victim to remain in her vehicle until officers arrived.

In a subsequent call, the victim reported that her attacker had just exited a bus and was now sitting at a bus stop near her location. She stated that she recognized the man as her attacker because he had approximately the same height, build, and skin tone, and he was wearing the same red Adidas shoes. At various points during this call, however, she expressed some uncertainty regarding the identification:

I’m pretty sure that’s him. I mean how many other dudes around here walk on the same God damn shoes.... I’m pretty sure, I mean how many people in the same area gonna have the same shoes on? ... I’m pretty sure that’s him.... [W]hat if it’s not him but I’m pretty sure it is though.

She also stated:

If they could just pull up over there and talk to him first I mean I didn’t really see his face but I can tell you he has a scar on his belly button and has tattoos on his hands and his neck but I don’t know what they were I could barely see the bottom of ’em. But he has a scar above his belly button.

When Kansas City police officers Kellen Story and Jacqulynn Hobbs arrived, they made contact with the man who was waiting for the bus and placed him in handcuffs. They frisked him but did not discover anything significant. The man identified himself as Michael Evans and denied any involvement when informed that he was being investigated for a rape.

Officer Hobbs then went across the street to speak with the victim, who reported that she had met the attacker online on December 27, 2014, and that she thereafter had met him in person to “hang out.” The victim became upset, however, when Hobbs asked for further detail regarding how the two had met. According to the victim, the attacker identified himself to her as Octavio or Oetovi, and he was waiting for her inside the front door of the apartment building when she arrived. He said that the two could not go to his apartment because he was married, so they went to a stairwell where he frequently went to smoke. The attacker told her to partially undress so he would know she was not a police officer. After the victim complied with that request, the attacker raped her. The victim said that she could not see the attacker’s face because ■ he forced her to turn away from him, but she observed a scar above his navel approximately an inch or two long. She also stated that although the attacker had tattoos on his neck and possibly on his hands, she was unable to see them clearly because the lighting was poor and the attacker’s hands were covered by clothing. The victim reported that she had retained the used condom and hidden it in a trash can before leaving the building. Although the attacker had taken her phone and deleted earlier text messages and evidence of calls between the two, he later sent her a text message saying, “You’re so sexy,” to which she responded, “Thank you,” and another text message asking, “You okay?” to which she responded, “I’m okay.” She showed these text messages to Officer Hobbs. The victim also indicated that she had intended to approach Evans and examine his abdomen for the scar.

Sergeant James Swoboda arrived on the scene while Hobbs was interviewing the victim. Swoboda spoke with Evans, who denied any involvement in a rape and stated that he was merely waiting for a bus. Swoboda then spoke with the victim and Hobbs. The victim told Sergeant Swoboda that the attacker had a scar above his navel, which was similar to a surgery scar but without signs of stitches. The victim speculated that the attacker may have at one time been stabbed.

Swoboda then asked Evans if he had a scar on his abdomen. Evans replied that he did not. He denied that he had ever been stabbed, but allowed Swoboda to examine his abdomen. According to Swobo-da, he observed a vertical scar on Evans’s abdomen, without stitch marks, approximately six inches in length and extending from slightly above his navel to his groin area. Evans told Swoboda that the marking was a healed spider bite, but Swoboda did not believe him. Officer Story also examined Evans’s abdomen and testified that the scar looked like an incision. It is undisputed that Evans has no tattoos on his hands or neck.

Sergeant Swoboda instructed Officers Story and Hobbs to place Evans under arrest for rape. Evans asked several times that the victim examine him and see that he was not her attacker. At no point did the officers bring the victim closer to Evans for such an inspection. During a search incident to arrest, the officers discovered a Lorcin .380 handgun in Evans’s left jacket pocket.

Officers also found two keys in Evans’s pocket. Swoboda did not check to see whether the keys would unlock the front door to the apartment building, believing that that information would be irrelevant. He did not ask the manager of the apartment building if she recognized Evans, because the attacker could have gained entry to the building without living there. Swoboda did not ask the manager if a man named Octavio or Oetovi lived in the building, because the suspect might not have 'used his real name and, as mentioned, might not have lived in the building. Swob-oda did not instruct the officers to examine Evans for tattoos, because the victim had not seen the tattoos clearly. Swoboda also believed that what the victim perceived as tattoos could have been stamps required to enter clubs in the nearby entertainment district, temporary tattoos, or reminder notes that Evans had written on his hands. The officers did not call the phone number the victim believed was her attacker’s to see if Evans’s phone would ring.

Swoboda testified regarding his probable cause determination as follows:

There [were] a number of facts when all put together led me to that decision. The first was that the victim of the rape had pointed him out and identified him as the suspect. The second fact that she was able to describe a scar that he had on his stomach from across the street which nobody could see. The third factor was when we asked about the scar, he lied to us and said he did not have a scar. The fourth fact was that he was still in the vicinity of the crime, relatively a few hours after when it was supposed to have occurred. And she was— and the physical description she had originally given us matched the suspect, including one of the items he was wearing which really stood out, according to the victim, was his red Adidas shoes.... And then the last and final item was the used condom that she said she had put in the waste can to preserve as evidence that we found at the scene.

Swoboda had also heard about a similar rape that had occurred two days earlier at the same location, causing him to be concerned about a possible serial rapist.

The district court concluded that the officers lacked probable cause to arrest Evans, notwithstanding the fact that Evans had the same height, build, and skin tone and was wearing the same type of shoes as the attacker. The court found that the mark below Evans’s navel, which Sergeant Swoboda described as a scar, was a slight skin discoloration and that the small mark above his navel might be several hair follicles instead of a scar. The court reasoned that if the victim had been unable to observe the attacker’s neck tattoo because of poor lighting conditions, it was unlikely that she could have observed this skin discoloration. The court thus found that Evans did not possess the identifying characteristics the victim had described, namely, the one-to-two-inch scar above his navel and tattoos on his hands and neck. The court concluded that Evans’s presence near the scene twelve hours after the rape was an insufficient indication that he was the attacker, especially in light of the fact that Evans had exited a bus in the area and was waiting for a transfer. The court concluded that the officers’ failure to have the victim examine Evans’s abdomen, even though both the victim and Evans discussed this course of action, or to check whether Evans had a cell phone matching the number that had sent text messages to the victim after the attack, also militated against a finding of probable cause.

The district court also found that the officers’ concerns about the victim’s credibility indicated a lack of probable cause. The court noted that the victim refused to tell officers how she had met the attacker and became upset when asked about those circumstances, that the victim stated that she. could not see the attacker’s face despite meeting him in the building’s lobby and riding the elevator with him, and that the victim hid the condom instead of fleeing the building immediately.

II.

“When 'reviewing a district court’s suppression determination, we review the court’s factual findings for clear error and its legal conclusions de novo.” United States v. Quintero, 648 F.3d 660, 665 (8th Cir. 2011). We affirm unless the district court’s conclusion “is unsupported by substantial evidence, based on an erroneous interpretation of applicable law, or, based on the entire record, it is clear a mistake was made.” United States v. Aguilar, 743 F.3d 1144, 1146-47 (8th Cir. 2014) (quoting United States v. Vanover, 630 F.3d 1108, 1114 (8th Cir. 2011)). “A war-rantless arrest, by law enforcement is reasonable where there is probable cause to believe that someone has committed or is committing a crime.” United States v. Winarske, 715 F.3d 1063, 1066 (8th Cir. 2013). “Probable cause exists when the totality of circumstances demonstrates that a prudent person would believe that the arres-tee has committed or was committing a crime.” Kuehl v. Burtis, 173 F.3d 646, 650 (8th Cir. 1999). Probable cause is determined according to the totality of the circumstances, and thus an officer may not “disregard plainly exculpatory evidence, even if substantial inculpatory evidence (standing by itself) suggests that probable cause exists.” Id “[Officers have a duty to conduct a reasonably thorough investigation prior to arresting a suspect, at least in the absence of exigent circumstances and so long as ‘law enforcement would not [be] unduly hampered ... if the agents ... wait[ ] to obtain more facts before seeking to arrest.’ ” Id. (alterations in original) (quoting United States v. Woolbright, 831 F.2d 1390, 1394 (8th Cir. 1987)). “An officer need not conduct a ‘mini-trial’ before making an arrest, but probable cause does not exist when a ‘minimal further investigation’ would have exonerated the suspect.” Id. (citations omitted) (quoting Bigford v. Taylor, 834 F.2d 1213, 1219 (5th Cir. 1988)).

We first reject the government’s contention that the district court took an improper “divide and conquer” approach to its probable cause analysis instead of considering the totality of the circumstances. The court stated that it had considered the totality of the circumstances, and its thorough analysis of the inculpatory and exculpatory evidence confirms the truth of that assertion.

We conclude that the district court did not err in finding that the officers lacked probable cause to arrest Evans for rape. The victim did not provide a positive identification of Evans sufficient to establish probable cause. Cf. Wilson v. Russo, 212 F.3d 781, 791-92 (3d Cir. 2000) (holding that victim’s identification of robber from a photographic array established probable cause despite substantial exculpatory evidence); Clay v. Conlee, 815 F.2d 1164, 1168-69 (8th Cir. 1987) (holding that-victim’s identification of her attacker established probable cause where she had known the person she identified for fifteen years and stated she was “absolutely positive” he was her attacker). That Evans matched .the victim’s description of her attacker’s height, build, and shoes may have provided some evidence to support a finding of probable cause to arrest. See Olinger v. Larson, 134 F.3d 1362, 1366 (8th Cir. 1998) (holding that probable cause was established where officers observed physical similarities between arrestee and robber in surveillance tape, and both wore a white hat); United States ex rel. Hollman v. Rundle, 461 F.2d 758, 759 & n.1 (3d Cir. 1972).(per curiam) (holding that probable cause was established where defendant was found at the scene of the crime one night after it occurred, and perfectly fit a description of the suspect’s “race, height, weight, color of hair, type of hair styling, as well as the precise color of clothing”). But Evans’s presence near the location of the rape twelve hours later, while waiting for a bus transfer, did not by itself incriminate him, and his response to police questioning was not of an incriminatory or suspicion-raising nature. Cf. Olinger, 134 F.3d at 1366 (arrestee acted suspiciously by leaving house and driving away without comment despite loud altercation between police and his family members nearby).

The fact that Evans did not have a scar on his abdomen or tattoos on his hands and neck constituted significant exculpatory evidence. These were the essentially defining features of the victim’s identification of her attacker, and thus the subsequently developed discrepancies were so significant that, unlike in the cases the government cites, they constituted a significant obstacle to a finding of probable cause. Cf. Pasiewicz v. Lake Cty. Forest Pres. Dist., 270 F.3d 520, 522-25 (7th Cir. 2001) (holding that probable cause existed where arrestee “bore a fair resemblance” to description of suspect, and a witness discovered arrestee’s identity after believing she saw him a second time); Brodnicki v. City of Omaha, 75 F.3d 1261, 1265 (8th Cir. 1996) (holding that probable cause existed despite inconsistencies between ar-restee and the nine-year-old witness’s description of the suspect’s height, weight, hair color, facial hair, and shirt color).

Moreover, the officers did not ask the victim to examine Evans’s abdomen for the scar she described. Although the government argues that the officers could reasonably choose not to ask the victim to examine Evans because she was afraid of him or because he might have tried to intimidate her, we note that the victim herself suggested this course of action. Further, as recounted above, the officers did not closely examine Evans’s hands and neck for tattoos, did not check whether Evans had a phone matching the number believed by the victim to be her attacker’s, did not check whether Evans’s keys would open the door to the apartment building where the rape occurred, and did not ask the manager of the apartment building whether anyone named Octavio or Octovi lived there. Although Sergeant Swoboda reasoned that these inquiries would not necessarily have exonerated Evans, they might have substantially influenced the probable cause determination, and to have conducted these inquiries would not have unduly hampered the performance of the officers’ duties.

We affirm the district court’s suppression of the firearm evidence on the ground that the officers lacked probable cause to arrest Evans. We express no opinion on the question whether a rape in fact occurred.

The order granting the motion to suppress is affirmed.

      . The Honorable Roseann A. Ketchmark, United States District Judge for the Western District of Missouri, adopting the report and recommendation of the Honorable Sarah W. Hays, United States Magistrate Judge for the Western District of Missouri.

      . Swoboda retrieved the used condom from the apartment building at some point during the investigation.