text:
    Timothy L. BLIXSETH, Appellant, v. YELLOWSTONE MOUNTAIN CLUB, LLC; Ad Hoc Group of Class B Unit Holders; CIP Sunrise Ridge Owner LLC; CIP Yellowstone Lending LLC; CrossHarbor Capital Partners, LLC; Marc S. Kirschner; Credit Suisse AG, Cayman Islands Branch; Yellowstone Club Liquidating Trust, Appellees.
    No. 12-35986
    United States Court of Appeals, Ninth Circuit.
    Filed April 18, 2017

      Michael J. Flynn, Boston, Massachusetts, pro se.
    Paul D. Moore, Duane Morris LLP, Boston, Massachusetts; Michael R. Las-towski, Duane Morris LLP, Wilmington, Delaware; Benjamin P. Hursh, Crowley Fleck PLLP, Missoula, Montana; for Ap-pellees CrossHarbor Capital Partners, LLC, and CIP Sunrise Ridge Owner LLC.
    James A. Patten, Patten Peterman Bek-kedahl & Green PLLC, Billings, Montana, for Appellee Yellowstone Mountain Club, LLC.
    Robert R. Bell, Mullin Hoard & Brown LLP, Amarillo, Texas, for Appellees Brian A. Glasser as Trustee, and Yellowstone Club Liquidating Trust.
    Before: ALEX KOZINSKI, RICHARD A. PAEZ, and MARSHA S. BERZON, Circuit Judges.
   ORDER

I

Background

We ordered Timothy L. Blixseth and his attorney Michael J. Flynn to pay appel-lees’ attorneys’ fees and costs in defending against this appeal under Federal Rule of Appellate Procedure 38, ordered Flynn to pay appellees’ attorneys’ fees and costs in defending against this appeal under 28 U.S.C. § 1927, and referred to the Appellate Commissioner pursuant to Ninth Circuit Rule 39-1.9 the determination of an appropriate amount of attorneys’ fees and costs. See Blixseth v. Yellowstone Mountain Club, LLC, 796 F.3d 1004, 1007-09 (9th Cir. 2015). We also ordered Blixseth and Flynn each to pay $500 in damages to the Clerk of Court as reimbursement for the costs incurred during this frivolous and bad-faith appeal. Id. at 1009. Blixseth and Flynn each have paid $500 to the Clerk, as required.

The Appellate Commissioner entered a second amended order and amended orders (Docket Entry Nos. 148, 149, 150) awarding attorneys’ fees and non-taxable costs as follows:

(1) $105,881.26 in favor of CrossHarbor Capital Partners, LLC and CIP Sunrise Ridge Owner LLC and jointly and severally against Blixseth and Flynn;

(2) $24,796.41 in favor of CrossHarbor Capital Partners, LLC and CIP Sunrise Ridge Owner LLC and against Flynn;

(3) $42,031.81 in favor of Brian A. Glas-ser, Trustee, and Yellowstone Club Liquidating Trust and jointly and severally against Blixseth and Flynn;

(4) $9,065.50 in favor of Brian A. Glas-ser, Trustee, and Yellowstone Club Liquidating Trust and against Flynn;

(5) $9,505.08 in favor of Yellowstone Mountain Club, LLC and CIP Yellowstone Lending LLC and jointly and severally against Blixseth and Flynn; and

(6) $712.50 in favor of Yellowstone Mountain Club, LLC and CIP Yellowstone Lending LLC and against Flynn.

Flynn filed a motion and an amended motion for reconsideration of the Appellate Commissioner’s second amended order and amended orders. We deny Flynn’s motion and amended motion for reconsideration (Docket Entry Nos. 151, 152). The Appellate Commissioner’s second amended order and amended orders awarding attorneys’ fees and non-taxable costs remain in effect.

The Appellate Commissioner correctly declined to award attorneys’ fees and nontaxable costs under Rule 38 against Blix-seth and Flynn for preparing appellees’ statements regarding Blixseth’s pro se response and Flynn’s response to the court’s order to show cause against Blixseth and Flynn (“fees-on-fees”), and correctly awarded fees and costs under § 1927 against Flynn for preparing the statements regarding Flynn’s response. We publish this order to address the availability of fees and costs for litigating sanctions under Rule 38 and § 1927.

II

Discussion

Flynn objected to appellees’ requests for attorneys’ fees for preparing joint statements regarding Blixseth’s pro se response and Flynn’s response to the court’s order to show cause. Flynn argued that the court may not include the expense of litigating the order to show cause in the attorney’s fees and non-taxable costs that the court ordered Blixseth and Flynn to pay as a sanction, citing Haeger v. Goodyear Tire & Rubber Co., 813 F.3d 1233, 1254 (9th Cir. 2016), cert. granted, — U.S. -, 137 S.Ct. 30, 195 L.Ed.2d 902 (2016), and In re S. Cal. Sunbelt Developers, Inc., 608 F.3d 456, 466 (9th Cir. 2010).

A. Sunbelt Distinguishes Fee-Shifting Provisions From Damages Provisions

In Sunbelt, thirteen creditors filed involuntary bankruptcy petitions against two alleged debtors. See Sunbelt, 608 F.3d at 460. After the petitions were dismissed, the alleged debtors filed motions against the creditors for attorneys’ fees, costs, and damages under 11 U.S.C. § 303(i) and against two individuals who exercised control over the creditors for sanctions under the court’s inherent power. Id. The bankruptcy court awarded fees and costs against the creditors under § 303(i), including the fees and costs incurred by the alleged debtors in litigating the post-dismissal motions. Id. at 461. Relying on its inherent power, the bankruptcy court also awarded sanctions against the controlling individuals, and held them jointly and severally liable for the alleged debtors’ attorneys’ fees and costs, including the fees and costs incurred in litigating the motions. Id. The creditors and the controlling individuals appealed. Id.

This court affirmed the judgments against the creditors, holding that the bankruptcy court properly awarded fees-on-fees because § 303(i) is a fee-shifting provision rather than a sanctions statute such as Rule 11. Id. at 460, 462. The court relied on Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., 498 U.S. 533, 553, 111 S.Ct. 922, 112 L.Ed.2d 1140 (1991), and Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 409, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990), in which the Supreme Court distinguished fee-shifting provisions, where eligibility turns on the merits or outcome of the litigation and costs are shifted for the litigation as a whole, from sanctions statutes like the former version of Rule 11, where eligibility for fees turned on whether a specific pleading was well-founded and costs are shifted only for a discrete portion of the litigation. See Sunbelt, 608 F.3d at 462.

In Sunbelt, the court noted that courts have uniformly held that time spent establishing the entitlement to and amount of the fee is compensable under federal fee-shifting provisions, and that it would be inconsistent with the policy of § 303(i) to dilute the fee award by refusing to compensate time spent establishing the rightful claim to a fee. Id. at 463. The court also observed that, with respect to fee-shifting statutes, a court should make only one determination of fee eligibility and the fee award should encompass all aspects of the civil action. Id. (citing Comm’r, INS v. Jean, 496 U.S. 154, 161-62, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990) (fee-shifting statutes favor treating a case as an inclusive whole, rather than as atomized line items; approving award of fees-on-fees under federal fee-shifting statute for preparing the fee application and for the ensuing efforts to support the application)).

B. Only Direct Costs May Be Awarded Pursuant To Certain Sanctions Provisions

Sunbelt held otherwise, however, with respect to sanctions under the court’s inherent power against the controlling individuals. As to those sanctions, Sunbelt determined that the bankruptcy court erred in holding the individuals liable for the debtors’ fees and costs incurred on the § 303(i) motions. See Sunbelt, 608 F.3d at 466. Only the direct costs of opposing an offending pleading or motion, and not fees-on-fees, may be included in an award under the court’s inherent power, we concluded, stating:

In Cooter & Gell ... the Supreme Court held that Federal Rule of Civil Procedure 11 did not authorize recovery of attorney’s fees incurred to defend an award of Rule 11 sanctions on appeal. Relying on language in the version of Rule 11 in effect at that time, the Court reasoned that Rule 11 sanctions were limited to “those expenses directly caused” by the improper filing, which did not include costs of appeal. Id. We extended that principle in Lockary v. Kayfetz, 974 F.2d 1166 (9th Cir. 1992). In Lockary, the district court imposed sanctions under its inherent power rather than Rule 11. Id. at 1170. The sanctions included not only the costs incurred by the defendants to oppose the plaintiffs’ improper filings, but also the “defendants’ cost of preparing and supporting their motion for sanctions.” Id. at 1177. The law firm appealed and, relying on Cooter & Gell, we reversed: Cooter & Gell suggests that the trial court should limit sanctions to the opposing party’s more “direct” costs, that is, the costs of opposing the offending pleading or motion. We thus find that the district court erred in including the defendants’ attorneys’ fees for preparing the motion for sanctions in the sanctions it imposed.

Id. at 1178.

Sunbelt, 608 F.3d at 466-67.

C. Rule 38 Is A Damage Provision Authorizing Award of “Just Damages”

Blixseth and Flynn were not sanctioned under the court’s inherent power, so Sunbelt is not directly applicable. Instead, we sanctioned Blixseth and Flynn under Rule 38 and sanctioned Flynn under § 1927. See Blixseth, 796 F.3d at 1007-09.

Under Rule 38, appellees’ fees and non-taxable costs for preparing the statements regarding Blixseth’s pro se response and Flynn’s response to the court’s order to show cause may not be awarded. See Lyddon v. Geothermal Props., Inc., 996 F.2d 212, 214 (9th Cir. 1993) (based on an analogy to the former, pre-amendment version of Rule 11, declining to award under Rule 38 fees associated with computation of sanctions or cross-appeal of denial of sanctions). The language of Rule 38 authorizes an award of “just damages” if a court determines that an appeal is frivolous. “Just damages” under Rule 38 may include attorneys’ fees incurred in defending against the frivolous issues or frivolous portions of an appeal. See Gaskell v. Weir, 10 F.3d 626, 629 (9th Cir. 1993); McConnell v. Critchlow, 661 F.2d 116, 118 (9th Cir. 1981); see also Sun-Tek Indus. v. Kennedy Sky-Lites, Inc., 865 F.2d 1254, 1255 (Fed. Cir. 1989) (unlike the award of attorneys’ fees under fee-shifting statutes, under Rule 38 “the only inquiry in determining the propriety of the amount of attorney fees to be paid as damages by an appellant who has filed a frivolous appeal is whether the appellee actually incurred the fees sought in defending against the appeal.”). But, absent specific language or indication to the contrary, see Schwartz-Tallard, 803 F.3d at 1099, a statute permitting an award of “damages” is not a fee-shifting statute, and does not permit an award of fees for obtaining the “damages.”

The award of fees and costs under Rule 38 thus must be limited to appellees’ direct fees and costs for defending against the frivolous appeal, and may not include the fees and costs incurred regarding the imposition of sanctions. See Cooter & Gell, 496 U.S. at 406-07, 110 S.Ct. 2447; Sunbelt, 608 F.3d at 466-67 & n.4; Lyddon, 996 F.2d at 214; Lockary, 974 F.2d at 1178; see also Haeger, 813 F.3d at 1242, 1254 (affirming award of attorneys’ fees and costs incurred after a misleading discovery response as a sanction under court’s inherent power to compensate party for losses sustained as a result of misconduct).

D. Section 1927 Is A Fee-Shifting Provision Allowing Award Of Fees-On-Fees

We conclude otherwise concerning fees-on-fees for sanctions imposed under § 1927. That section does not refer to “damages” as Rule 38 does. Instead, it provides that a court may include the excess “costs, expenses, and attorneys’ fees” that the party victimized by the sanctiona-ble conduct “incurred because of such conduct.” A different analysis therefore applies to the award under § 1927, against Flynn alone, of the fees incurred in preparing appellees’ statements regarding Flynn’s response to the order to show cause.

With regard to § 1927, we agree with the analysis set forth persuasively in Norelus v. Denny’s, Inc., 628 F.3d 1270, 1297-1302 (11th Cir. 2010). Like Norelus, we conclude that the costs of obtaining sanctions may be included in a sanctions award under § 1927.

Norelus emphasized that the plain language of § 1927 permits recovery of fees “incurred because of [the sanctionable] conduct,” and that were there no sanction-able conduct, there would have been no proceeding to impose sanctions, and no fees incurred in that proceeding. Id. at 1298. So the fees expended to obtain the sanctions award are, in the statute’s terms, “incurred because of [the sanctionable] conduct.” Id. The Norelus court further noted that excluding the costs of obtaining the sanctions award would not fully compensate the harmed party for the wrongful conduct it had suffered. Id. -, see also Haynes v. City & Cnty. of San Francisco, 688 F.3d 984, 987-88 (9th Cir. 2012) (the purpose of § 1927 is to compensate victims of attorney’s malfeasance).

The holding of Norelus is consistent with the analysis ordinarily applied in other cost- and fee-shifting situations to allow parties to recover the cost of establishing their right to and the amount of attorneys’ fees, or fees-on-fees. See Norelus, 628 F.3d at 1301; see also Jean, 496 U.S. at 161-62, 110 S.Ct. 2316; Sunbelt, 608 F.3d at 462-64 & n.4. In allowing awards of fees-on-fees, courts have relied on the language and purpose of the fee-shifting provision at issue, reasoning that not allowing fees-on-fees would undermine congressional policies governing attorneys’ fees awards. See Norelus, 628 F.3d at 1301.

Likewise, § 1927 may be characterized as a fee-shifting provision, despite its sanctions trigger. Id. (“[I]n other cost-and fee-shifting situations ... we have allowed parties to recover the cost of establishing their right to, and the amount of attorney’s fees.... The same reasoning supports the same rule in the present circumstances [in awarding fees under § 1927].”). Thus, § 1927 differs from the former version of Rule 11 discussed in Cooter & Gell, which authorized the award only of expenses incurred with regard to a discrete improper pleading, and therefore did not permit recovery of attorneys’ fees incurred to defend an award of Rule 11 sanctions on appeal. See Cooter & Gell, 496 U.S. at 406-07, 110 S.Ct. 2447; see also Sunbelt, 608 F.3d at 464 n.4 (rejecting contention that award of fees pursuant to a fee-shifting provision is controlled by Cooter & Gell). Section 1927 instead authorizes the award of excess costs, expenses, and attorneys’ fees for the litigation as a whole, reasonably incurred because of an attorney’s unreasonable and vexatious multiplication of the entire proceedings, including fees-on-fees. See Norelus, 628 F.3d at 1298. Like other fee-shifting provisions, and in contrast to the former version of Rule 11 discussed in Cooter & Gell, § 1927 may shift the entire financial burden of an action’s defense, including attorneys’ fees, if the entire course of proceedings was unwarranted and should not have been commenced or pursued. See Lewis v. Brown & Root, Inc., 711 F.2d 1287, 1291-92 (5th Cir. 1983), clarified on reconsideration, 722 F.2d 209, 210 (5th Cir. 1984); see also Jean, 496 U.S. at 161-62, 110 S.Ct. 2316; Sunbelt, 608 F.3d at 462-64 & n.4.

The reasoning of Norelus is consistent with Sunbelt and this court’s fees-on-fees case law. Accordingly, we follow Norelus in holding that § 1927 allows an award of attorneys’ fees incurred in obtaining a sanctions award. See Norelus, 628 F.3d at 1297-1302. Appellees’ attorneys’ fees and non-taxable costs incurred in preparing ap-pellees’ statements regarding Flynn’s responses to the order to show cause are awardable against Flynn under § 1927. Id.

HI

Conclusion

We deny Flynn’s motion and amended motion for reconsideration (Docket Entry Nos. 151, 152) of the Appellate Commissioner’s second amended order and amended orders (Docket Entry Nos. 148, 149, 150). The Appellate Commissioner’s second amended order and amended orders awarding attorneys’ fees and non-taxable costs remain in effect. Flynn’s requests in the motion and amended motion for reconsideration for recusal of this panel, appointment of a new panel, conversion of this matter to a criminal proceeding, transfer of the matter to the United States Attorney, and holding of the awards in abeyance are denied. Flynn’s suggestion for reconsideration en banc is rejected on behalf of the Court. See 9th Cir. Gen. Order 6.11.

No further filings by Blixseth or Flynn will be entertained in this closed appeal unless specifically requested by further order of the court.

      . Rule 38 provides: "If a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee.”
      Section 1927 provides: “Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct.”

      . Section 303(i) provides: "If the court dismisses a petition under this section other than on consent of all petitioners and the debtor, and if the debtor does not waive the right to judgment under this subsection, the court may grant judgment — (1) against the petitioners and in favor of the debtor for — (A) costs; or (B) a reasonable attorney’s fee; or (2) against any petitioner that filed the petition in bad faith, for — (A) any damages proximately caused by such filing; or (B) punitive damages.”

      . The Sunbelt court stated that its conclusion was consistent with Sternberg v. Johnston, 595 F.3d 937, 946, 948 (9th Cir. 2010), where the court held that a debtor was not entitled to attorneys’ fees incurred in pursuing a claim for damages for violation of the automatic stay under 11 U.S.C. § 362(k), because that provision permitted recovery of attorneys' fees as damages. Sunbelt stated that § 303(i), in contrast, is a fee-shifting provision that permits the recovery of attorneys’ fees as attorneys' fees, not as damages. Although an en banc panel of this court later overruled Stern-berg in In re Schwartz-Tallard, 803 F.3d 1095, 1097-1101 (9th Cir. 2015), reading § 362(k) as a fee-shifting provision rather than as a damages provision, that change in the law since Sunbelt has no significance here.

      . The former version of Rule 11 discussed in Cooter & Gell provides that, if a pleading is signed in violation of the Rule, the court shall impose upon the attorney or client "an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading ... in-eluding a reasonable attorney’s fee.” Cooter & Gell, 496 U.S. at 392, 110 S.Ct. 2447. The December 1, 1993, post -Cooter & Gell amendment to Rule 11 specifically allows a district court to include the expenses associated with sanctions proceedings. See Margolis v. Ryan, 140 F.3d 850, 854-55 (9th Cir. 1998).


source: Caselaw Access Project

author: SCHROEDER, Circuit Judge:

license: Public Domain

text:
    IN RE James Harry SALAMON; Jeanne Fixler Salamon, Debtors, Peter J. Mastan, Chapter 7 Trustee, Appellant, v. James Harry Salamon; Jeanne Fixler Salamon, Appellees.
    No. 15-60031
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted February 8, 2017 Pasadena, California
    Filed April 20, 2017

      John N. Tedford, IV (argued) and Aaron E. De Leest, Danning Gill Diamond & Kollitz LLP, Los Angeles, California, for Appellant.
    Michael R. Totaro (argued) and Maureen J. Shanahan, Totaro <& Shanahan, Pacific Palisades, California, for Appellees.
    Before: MARY M. SCHROEDER, ANDRE M. DAVIS, and MARY H. MURGUIA, Circuit Judges.

       The Honorable Andre M. Davis, United States Circuit Judge for the Fourth Circuit, sitting by designation.

   OPINION

SCHROEDER, Circuit Judge:

In this bankruptcy appeal we consider for the first time some of the key provisions of 11 U.S.C. § 1111(b) that apply to Chapter 11 proceedings. They provide that those who hold non-recourse liens on real property are granted recourse against the bankruptcy estate upon the filing of the bankruptcy petition. Those protected are creditors who have “a claim secured by a lien on property of the estate.” The issue before us is whether the creditor continues to have a right of recourse after there has been a non-judicial foreclosure, so that the property is no longer part of the estate and the liens have been extinguished. The Bankruptcy Appellate Panel (“BAP”) in a well-reasoned decision said no and we affirm. Mastan v. Salamon (In re Salamon), 528 B.R. 171, 175-78 (B.A.P. 9th Cir. 2015).

BACKGROUND

In April of 2009, Jeanne Salamon purchased a piece of real property located at 716 South Westlake Avenue, Los Angeles, California (“the Westlake Property”) from David Behrend. The Westlake Property was already subject to two liens. Rather than fund the purchase price at the time of closing, Salamon executed a wrap-around mortgage in the amount of $1,030,000 in favor of Behrend called the “All Inclusive Note Secured by a Deed of Trust” (the “All-Inclusive Note”) and funded the balance of the purchase price with a “Note Secured by Deed of Trust” (“the Note”) in the amount of $325,000 in favor of Beh-rend. Under the terms of these notes, Sa-lamon would make monthly payments to an entity designated by Behrend, and that entity would make monthly payments to the senior lienholders.

Behrend, the seller, filed a Chapter 11 bankruptcy petition on March 25, 2010, and on March 1, 2011, Peter Mastan, the appellant, became the Behrend estate’s Chapter 11 trustee; the proceeding was later converted into a Chapter 7 bankruptcy with Mastan remaining the trustee. On June 8, 2012, Salamon, the buyer, and her husband James, the appellees, also filed a Chapter 11 bankruptcy petition. On October 3, 2012, Mastan filed a timely proof of claim on behalf of the Behrend estate for the two liens secured by the Westlake Property. On October 19, 2012, the bankruptcy court approved a stipulation between the Salamons and the most senior lienholder that lifted the stay so the senior lienholder could foreclose on the Westlake Property.

The Westlake Property was sold at a foreclosure sale on March 13, 2013 for $1,275,500. The foreclosing trustee sent Mastan, as the trustee of the seller’s estate, a check for $150,560.60, representing the balance of the sale proceeds. This satisfied the whole of the All-Inclusive Note, but only part of the Note. On April 15, 2014, Mastan filed an amended proof of claim for the unsecured balance of the Note, $303,304.75. The Salamons filed a motion for an order disallowing the amended claim on the ground that there was no longer any property in the estate on which there could be a recourse lien. The bankruptcy court agreed and the BAP affirmed in a published opinion, holding that since Mastan no longer had liens on property of the estate, his non-recourse claim could not be transformed into a recourse claim under 11 U.S.C. § 1111(b). See In re Salamon, 528 B.R. at 176-77.

DISCUSSION

The only issue for us to decide is whether under 11 U.S.C. § 1111(b) Mastan could treat his claim based on a non-recourse lien as a recourse claim after the property in the estate had been sold. The text of that statute in relevant part states:

A claim secured by a lien on property of the estate shall be allowed or disallowed under section 502 of this title the same as if the holder of such claim had recourse against the debtor on account of such claim, whether or not such holder has such recourse unless:
(i) the class of which such claim is a part elects ... application of paragraph (2) of this subsection; or
(ii) such holder does not have such recourse and such property is sold under section 363 of this title or is to be sold under the plan.

11 U.S.C. § 1111(b)(1)(A).

Mastan argues that whether he has a claim secured by a lien on property of the estate must be determined by looking to the situation on the date the Salamon bankruptcy was filed. According to Mas-tan, this is because 11 U.S.C. § 502 states that a bankruptcy court “shall determine the amount of such claim in lawful currency of the United States as of the date of the filing of the petition.” 11 U.S.C. § 502(b). As the BAP correctly noted, the question is “whether that condition was satisfied because Mastan held such a lien on the date the Salamons’ petition was filed, even though the lien no longer existed when the allowance of Mastan’s claim was challenged.” In re Salamon, 528 B.R. at 176.

Mastan asks us to interpret the phrase “property of the estate” in § 1111(b)(1)(A) as a reference to the property that existed at the time of filing the petition, and fix his rights as of that date. But neither the terms of § 1111(b)(1)(A) nor § 502 support that result. Under § 502, what must be determined as of the date of the filing of the petition is the amount of the claim. As the BAP explained, there is no case law supporting Mastan’s interpretation of § 1111(b)(1)(A), and to the degree there is any case law, it is contrary to his position. The only other circuit to address this precise issue held there was no lien on property in the estate after a foreclosure. The foreclosure “extinguished the ‘claim secured by a lien’ necessary to invoke [section 1111(b) ].” Tampa Bay Assocs., Ltd. v. DRW Worthington, Ltd. (In re Tampa Bay Assocs., Ltd.), 864 F.2d 47, 51 (5th Cir. 1989).

It is true that the Fifth Circuit did not go into depth in explaining this conclusion because its primary holding was based on other grounds, which have since been undermined by an intervening Supreme Court decision. See Law v. Siegel, — U.S. -, 134 S.Ct. 1188, 1196-97, 188 L.Ed.2d 146 (2014) (clarifying that courts may not create non-statutory exceptions to the bankruptcy code). Other circuits, however, have emphasized the basic statutory condition that the existence of a hen on property in the estate is necessary to invoke § 1111(b). See In re B.R. Brookfield Commons No. 1 LLC, 735 F.3d 596, 598 (7th Cir. 2013) (“There is one prerequisite: the claim is secured by a lien on the property of the estate.”) (internal quotation omitted); 680 Fifth Ave. Assocs. v. Mutual Benefit Life Ins. Co. (In re 680 Fifth Ave. Assocs.), 29 F.3d 95, 98 (2d Cir. 1994) (“The only precondition to the statute’s application is a claim secured by a hen on property of the estate.”) (internal quotation and citation omitted).

The Supreme Court has made clear that courts are to apply the bankruptcy code as written so long as the “disposition required by the text is not absurd.” Lamie v. U.S. Tr., 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004). Courts are not allowed to construct extra statutory exceptions. See Law, 134 S.Ct. at 1196-97. The plain language of § 1111(b) mandates that it cannot apply if the hen does not exist. As Mastan concedes, the lien no longer existed when his claim was challenged. Thus, under its plain language, § 1111(b) has no applicability to his claim.

This result is sensible, not absurd. When interpreting a provision of the bankruptcy code, we look to its “context and ... place in the overall statutory scheme.” Danielson v. Flores (In re Flores), 735 F.3d 855, 859 (9th Cir. 2013) (en bane) (internal quotation and citation omitted). In a foreclosure sale, the debtor is not electing to sell the property, or retain it to benefit the estate. Rather, a creditor is electing to sell the property. The purpose of § 1111(b), however, is to “put[ ] the Chapter 11 debtor who wishes to retain collateral property in the same position as a person who purchased property ‘subject to’ a mortgage lien would face in the non-bankruptcy context.” 7 Alan N. Resnick & Henry J. Sommers, Collier on Bankruptcy, ¶ 1111.03[l][a] (16th Ed. 2013). The debtor cannot improve his position by filing for bankruptcy and retaining the property.

Here, the Salamons were not seeking to retain the collateral property. After they filed for bankruptcy, a creditor elected to sell it. Thus, in the context of the statutory scheme, it would make little sense to grant Mastan the creditor protections of § 1111(b), and the plain meaning of the statutory language is reinforced. Mastan is left with exactly what he bargained for in the non-bankruptcy context: a senior creditor foreclosed on the property, extinguishing Mastan’s junior liens and leaving Mas-tan without recourse to pursue deficiency judgments against the Salamons. If anything, allowing Mastan to assert a deficiency claim against the Salamons would afford him more rights in bankruptcy than he would otherwise have under state law. In re Costas, 555 F.3d 790, 797 (9th Cir. 2009) (holding that the bankruptcy code “largely respects substantive state law rights, neither granting a creditor new rights in the debtor s property nor taking any away”).

Under California law, the liens securing Mastan’s claim were extinguished as a necessary consequence of the judicial foreclosure sale. Thoryk v. San Diego Gas & Elec. Co., 225 Cal.App.4th 386, 399, 170 Cal.Rptr.3d 309 (2014). As the BAP noted, “Although Mastan’s original proof of claim may have asserted a claim secured by liens on property of the estate, as recognized in the amended proof of claim Mastan filed, those liens were eliminated as a matter of law as a result of the foreclosure.” In re Salamon, 528 B.R. at 178. Accordingly, we hold that § llll(b)’s requirement that a creditor hold a “claim secured by a lien on the property of the estate” means that if a creditor’s claim, for any reason, ceases to be secured by a lien on property of the estate, the creditor can no longer transform a non-recourse claim into a recourse claim.

Mastan argues that under this reading, part of § llll(b)’s language will be rendered meaningless. He points to an exception in § 1111(b), which disallows non-recourse claims when “property is sold under § 363 of this title.” Mastan asserts that if there is no recourse once the property is sold at a foreclosure sale, there is no reason to create an exception providing there is no recourse after a § 363 sale. Section 363 provides that “[t]he trustee, after notice and a hearing, may use, sell, or lease, other than in the ordinary course of business, property of the estate.” 11 U.S.C. § 363(b)(1). The § 363 sale exception is not meaningless. A § 363 sale is a sale by the trustee of property of the estate secured by an allowed claim. Unlike a non-judicial foreclosure sale, a § 363 sale does not necessarily extinguish liens, so bankruptcy courts are authorized to order that hens be extinguished. 11 U.S.C. § 363(f). Thus, the § 363 exception serves to prevent a creditor whose liens survive a § 363 sale from seeking recourse against both the purchaser and the debtor.

We also note that Mastan had an alternate means of protecting his rights, which he chose not to pursue. As a creditor of the Salamon’s bankruptcy estate, he could have objected to the relief from the automatic stay to permit the foreclosure sale if he was concerned the foreclosure sale would not adequately protect his rights. He made no such objection.

Since Mastan’s claim is no longer secured by any lien on property, he cannot claim the protections of § 1111(b). Under California law, he has no recourse for his claim, and thus, the bankruptcy court properly disallowed it.

AFFIRMED.


author: BACHARACH, Circuit Judge.

text:
    Clyde Allen RIFE, Plaintiff-Appellant, v. OKLAHOMA DEPARTMENT OF PUBLIC SAFETY; Joe Jefferson, State Trooper; Chad Dale; Jonathon Willis; McCurtain County Jail Trust, Defendants-Appellees.
    No. 16-7019
    United States Court of Appeals, Tenth Circuit.
    Filed April 12, 2017

      Daniel E. Smolen (Robert M. Blake-more, with him on the briefs), Smolen, Smolen & Roytman, PLLC, Tulsa, Oklahoma, for Plaintiff-Appellant.
    Stephen L. Geries (Ammon J. Brisolara, with him on the brief), Collins Zorn & Wagner, Oklahoma City, Oklahoma, for McCurtain County Jail Trust, Chad Dale, and Jonathon Willis, Defendants-Appel-lees.
    Devan A. Pederson, Assistant Attorney General, Oklahoma Attorney General’s Office, Oklahoma City, Oklahoma, for Oklahoma Department of Public Safety, and Joe Jefferson, Defendants-Appellees.
    Before LUCERO, McKAY, and BACHARACH, Circuit Judges.
   ORDER

This matter is before the court on appel-lees McCurtain County Jail Trust, Chad Dale and Jonathon Willis’s Petition for Rehearing En Banc, as well as the separate Petition for Rehearing and Petition for Rehearing En Banc filed by appellee Joe Jefferson. We also have the appellant’s response to those petitions.

Upon consideration, panel rehearing is granted in part and only to the extent of the changes made to the amended opinion attached to this order. In all other respects panel rehearing is denied by the original panel members.

The petitions, the response, as well as the amended opinion were also circulated to all the judges of the court who are in regular active service. As no judge on the original panel or the en banc court requested that a poll be called, the requests for en banc consideration are denied.

The Clerk is directed to file the attached amended opinion effective the date of this order.

BACHARACH, Circuit Judge.

This case began with the plaintiff, Mr. Clyde Rife, sitting on a motorcycle next to a road, unable to recall the date, the time, or even what he had been doing in a town he had just visited. When approached by a state trooper, Mr. Rife said that he was fine. Nonetheless, the trooper questioned Mr. Rife and concluded that he was intoxicated on pain medication and had been in a motorcycle accident. These conclusions led the trooper to arrest Mr. Rife for public intoxication. Authorities later learned that Mr. Rife had not been intoxicated; he had suffered a head injury in a motorcycle accident.

Mr. Rife ultimately sued the trooper and the Oklahoma Department of Public Safety, alleging in part that he had been wrongfully arrested. For this allegation, we ask: Did probable cause exist to arrest Mr. Rife? The district court said “yes,” and we agree.

The rest of the case involves what happened after the arrest. After the arrest, the trooper drove Mr. Rife to jail. Along the way, Mr. Rife groaned and complained of pain in his heart and chest. Upon arriving at the jail, Mr. Rife was put in a holding cell. The scene was observed by a cellmate, who said that Mr. Rife had repeatedly complained about pain. Nonetheless, Mr. Rife was not provided medical attention.

The lack of medical care led Mr. Rife to sue (1) the trooper, two jail officials, and the entity operating the jail for deliberate indifference to serious medical needs and (2) the Oklahoma Department of Public Safety for negligent failure to provide medical care. On these claims, we ask: Did the failure to provide medical attention constitute (1) deliberate indifference to Mr. Rife’s serious medical needs or (2) negligence? The district court thought no one could reasonably infer either deliberate indifference or negligence. We disagree, concluding that both could be reasonably inferred from the evidence.

These conclusions lead us to affirm in part, to reverse in part, and to remand for further proceedings.

I. Mr. Rife’s Claims

Mr. Rife sued the trooper (Joe Jefferson), the two jail officials (Jonathon Willis and Chad Dale), the entity operating the jail (McCurtain County Jail Trust), and the Oklahoma Department of Public Safety. With regard to the arrest, Mr. Rife makes two claims:

1. Trooper Jefferson is liable under § 1983 for arresting Mr. Rife without probable cause.
2. The Oklahoma Departmeht of Public Safety incurs vicarious liability for the wrongful arrest under the Oklahoma Governmental Tort Claims Act.

For the lack of medical attention after the arrest, Mr. Rife makes three claims:

1. Trooper Jefferson, Mr. Willis, and Mr. Dale are liable under 42 U.S.C. § 1983 for deliberate indifference to serious medical needs.
2. The jail trust is liable under § 1983 for the deliberate indifference of jail employees.
3. The Oklahoma Department of Public Safety is vicariously liable under the Oklahoma Governmental Tort Claims Act for Trooper Jefferson’s negligent failure to obtain medical attention.

During the lawsuit, Mr. Rife discovered that the jail trust had destroyed a videotape that showed him in the jail’s booking area. According to Mr. Rife, the destruction of the videotape warranted spoliation sanctions consisting of denial of the summary judgment motions brought by Mr. Willis, Mr. Dale, and the jail trust.

II.The District Court’s Rulings

The defendants moved for summary judgment, and the district court granted summary judgment to each defendant.

On the wrongful arrest claims, the district court granted summary judgment to Trooper Jefferson and the Oklahoma Department of Public Safety, concluding that probable cause existed for Mr. Rife’s arrest.

On the claims involving a failure to provide medical attention, the court granted summary judgment to all defendants, reasoning that the lack of medical attention had not resulted from deliberate indifference or negligence.

In addition, the district court declined to sanction the jail trust, Mr. Willis, and Mr. Dale for destruction of the videotape, reasoning that Mr. Rife had failed to follow the proper procedure for requesting a spoliation sanction.

III.Our Conclusions

We affirm the district court’s orders in part, reverse in .part, and remand for further proceedings.

On the wrongful arrest claims against Trooper Jefferson and the Oklahoma Department of Public Safety, we affirm, agreeing with the district court that probable cause existed for the arrest.

On the deliberate indifference claims, we reverse: A reasonable factfinder could find facts supporting the deliberate indifference claims against Trooper Jefferson, Mr. Willis, Mr. Dale, and the jail trust. Thus, we reverse and remand for the district court to determine (1) whether Mr. Rife’s rights were clearly established and (2) whether a reasonable factfinder could find a causal link between the jail trust’s policies or customs and a constitutional violation.

On the negligence claim against the Oklahoma Department of Public Safety, we reverse, concluding that a genuine dispute of material fact exists on the reasonableness of Trooper Jefferson’s failure to obtain medical attention.

In addition, we affirm the district court’s denial of spoliation sanctions, concluding that Mr. Rife forfeited his present argument and has failed to identify evidence of bad faith.

IV. Standard of Review

The district court concluded that the defendants were entitled to summary judgment. We review these conclusions de novo. Koch v. City of Del City, 660 F.3d 1228, 1237-38 (10th Cir. 2011). In applying de novo review, we consider the evidence in the light most favorable to Mr. Rife, resolving all factual disputes and drawing all reasonable inferences in his favor. Estate of Booker v. Gomez, 745 F.3d 405, 411 (10th Cir. 2014).

We apply not only this standard of review but also the substantive burdens on the underlying issues. One such issue is qualified immunity, which is raised by Trooper Jefferson, Mr. Willis, and Mr. Dale. The threshold burden falls on the plaintiff, who must demonstrate that a reasonable factfinder could find facts supporting the violation of a constitutional right that had been clearly established at the time of the violation. Id. If this burden is met, the defendant must show that (1) there are no genuine issues of material fact and (2) the defendant is entitled to judgment as a matter of law. Koch, 660 F.3d at 1238.

Y. The Wrongful Arrest Claim Against Trooper Jefferson

Invoking § 1983, Mr. Rife argues that Trooper ^Jefferson lacked probable cause, rendering the arrest a violation of the Fourth and Fourteenth Amendments. According to Mr. Rife, the district court disregarded evidence supporting this claim. Trooper Jefferson counters that

• he had probable cause,
• any possible factual mistake would have been objectively reasonable, and
• the underlying right was not clearly established.

The district court granted summary judgment to Trooper Jefferson, holding that he had probable cause to arrest Mr. Rife for public intoxication. We agree.

A. The Interaction Between Mr. Rife and Trooper Jefferson

Trooper Jefferson’s police car had a dashcam, which captured almost the entire interaction between Mr. Rife and Trooper Jefferson.

The dashcam begins with Trooper Jefferson checking on Mr. Rife, who was sitting on a motorcycle next to a road. Mr. Rife was confused with dried blood on his nose, and there were grass and grass stains on the motorcycle. Mr. Rife also had grass stains on his pants and shirt, indicating that he had been thrown from the motorcycle.

Trooper Jefferson asked if Mr. Rife was okay, and Mr. Rife replied that he was fine. But Mr. Rife could not identify the day, approximate the time of day, or remember his social security number. He knew that he had been in Idabel, Oklahoma, earlier that day but could not remember what he had been doing there. His speech was slurred.

The trooper suspected intoxication. Because the symptoms of head injuries and intoxication are similar, the trooper looked for signs of a head injury: unequal tracking of the pupils, unequal pupil size, and resting nystagmus. Mr. Rife did not exhibit these signs.

Trooper Jefferson then performed a horizontal gaze nystagmus test, which could reveal up to 6 clues of impairment. Trooper Jefferson’s training stated that if a person exhibits 4 out of the 6 clues, there is an 80 percent chance of intoxication. Mr. Rife exhibited all 6 clues.

To determine whether Mr. Rife was intoxicated, Trooper Jefferson conducted four additional tests. Mr. Rife failed these tests or was unable to complete them. Before one of the tests, Mr. Rife stated that he felt “floaty”; during another test, Mr. Rife lost his. balance.

These tests and observations led Trooper Jefferson to arrest Mr. Rife for public intoxication. Trooper Jefferson knew that Mr. Rife was not drunk but believed that he had taken too much pain medication. Many of Mr. Rife’s symptoms were consistent with intoxication from pain medication, including constricted pupils, lethargy, nystagmus, dizziness, and feeling “floaty.”

At the time of arrest, Trooper Jefferson also knew that Mr. Rife had been in a motorcycle accident. Mr. Rife had repeatedly denied being in a motorcycle accident, but Trooper Jefferson said that Mr. Rife had obviously been in an accident.

Though Trooper Jefferson knew that an accident had taken place, he did not believe that it had involved high speed or high impact. Trooper Jefferson reasoned that Mr. Rife did not have the type of visible injuries that would likely result from a high-speed or high-impact accident. For instance, Mr. Rife had no marks or scratches on his arms. Trooper Jefferson also noted that there was little damage to the motorcycle or saddlebags.

Trooper Jefferson drove Mr. Rife to jail. During the drive, Mr. Rife said that his chest hurt and groaned in pain. A few minutes later, Mr. Rife stated that his heart hurt and again groaned.

Trooper Jefferson acknowledges that at some point, Mr. Rife complained that he felt sick.

B. The District Court’s Alleged Discounting of Supporting Evidence

Mr. Rife argues that the district court improperly discounted four evidentiary items:

1. Trooper Jefferson reported that the arrest had been for public intoxication under Okla. Stat. tit. 37, § 537, but this statute involves intoxication from alcohol rather than medication.
2. Trooper Jefferson knew. that Mr. Rife was not under the influence of alcohol.
3. Trooper Jefferson knew that Mr. Rife had been in a motorcycle accident and that certain medical conditions could mimic the symptoms of intoxication. Although Trooper Jefferson ruled out a head injury, he did not rule out shock or other medical conditions.
4. Mr. Rife said that the only medication he had taken was for blood pressure.

None of this evidence precludes the existence of probable cause.

The first two evidentiary items are immaterial because probable cause need not be based on the statute mistakenly invoked by Trooper Jefferson. See Part V(D), below. Under Oklahoma law, Mr. Rife could be guilty of a crime if he had been publicly intoxicated on pain medication rather than alcohol. See Parts V(C)-(D), below.

The third evidentiary item is immaterial because probable cause does not require police officers to rule out all innocent explanations for a suspect’s behavior. See, e.g., Lingo v. City of Salem, 832 F.3d 953, 961 (9th Cir. 2016) (“It is decidedly not the officers’ burden to ‘rule out the possibility of innocent behavior’ in order to establish probable cause.” (quoting Ramirez v. City of Buena Park, 560 F.3d 1012, 1024 (9th Cir. 2009)); United States v. Reed, 220 F.3d 476, 478 (6th Cir. 2000) (“Officers are not required to rule out every possible explanation other than a suspect’s illegal conduct before making an arrest.”); United States v. Fama, 758 F.2d 834, 838 (2d Cir. 1985) (“The fact that an innocent explanation may be consistent with the facts alleged ... does not negate probable cause.”)).

The fourth evidentiary item is also immaterial. Though Mr. Rife stated that the only medication he had taken was for his blood pressure, Trooper Jefferson could rationally have thought that Mr. Rife had forgotten what medication he had taken or had been lying. After all, Mr. Rife had denied being in a motorcycle accident, but obviously had been in an accident and was unable to remember many common things such as what day it was or what he had been doing in Idabel.

In these circumstances, we reject Mr. Rife’s argument that the district court improperly discounted the four evidentiary items.

C. The Existence of Probable Cause

Notwithstanding these evidentiary items, probable cause existed to arrest Mr. Rife for public intoxication.

A warrantless arrest is permissible only if an officer has probable cause to believe that the arrestee committed a crime. Cortez v. McCauley, 478 F.3d 1108, 1115 (10th Cir. 2007) (en banc). “Probable cause to arrest exists only when the facts and circumstances within the officers’ knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.” Id. at 1116 (quoting United States v. Valenzuela, 365 F.3d 892, 896 (10th Cir. 2004)). The officer’s belief does not need to be certain or more likely true than false. United States v. Padilla, 819 F.2d 952, 962 (10th Cir. 1987).

In Oklahoma, the crime of public intoxication involves being intoxicated in a public place. Okla. Stat. tit. 37, §§ 8, 537(A)(8). Mr. Rife does not question whether he was in a public place. Instead, he denies any plausible reason to think he was intoxicated.

The “outward manifestations” of intoxication are “impaired mental judgment and physical responses.” Findlay v. City of Tulsa, 561 P.2d 980, 984 (Okla. Crim. App.1977). But these symptoms of intoxication “may also be symptomatic of other physical impairments.” Id. That was the case here, for Mr. Rife’s symptoms could reasonably suggest intoxication, a head injury, or other medical conditions.

The Seventh Circuit Court of Appeals addressed a similar situation in Hirsch v. Burke, where a diabetic individual experiencing insulin shock was arrested for public intoxication. 40 F.3d 900, 901 (7th Cir. 1994). Before the arrest, the individual had trouble balancing himself, seemed incoherent, smelled of alcohol, had bloodshot eyes, and was unable to state his name or date of birth. Id. at 903. Unbeknownst to the officer, the individual was experiencing diabetic symptoms that mimicked intoxication. Id. Based on these facts, the Seventh Circuit upheld the district court’s finding of probable cause. Id. at 903-04.

Similarly, in Qian v. Kautz, an individual with a pre-existing head injury was arrested for public intoxication. 168 F.3d 949, 951-52, 954 (7th Cir. 1999). The arresting police officer was unaware of the head injury, but was aware of five facts:

1. The individual had lost control of a car and crashed.
2. The individual was hunched over and having difficulty walking.
3. There were no signs that the individual had hit anything in the car’s interior during the accident.
4. The individual denied being injured and showed no physical signs of injury.
5. The individual’s speech seemed slurred.

Id. at 954. The Seventh Circuit held that these facts were sufficient to create probable cause, noting that “the overall setting easily support[ed] [the officer’s] decision to arrest [the individual].” Id.

Some of the factors supporting probable cause in Hirsch, are present here. Like the arrestee in Hirsch, Mr. Rife had trouble balancing himself and was unable to provide the police with basic information (such as the day or time).

There are also parallels between the facts in our case and those in Qian. Like the arrestee in Qian, Mr. Rife had been in an accident, was hunched over, denied being injured, and had slurred speech.

Additional evidence supports probable cause here that was not present in Hirsch or Qian. As explained above, Trooper Jefferson examined Mr. Rife to determine whether he had a head injury, checking for unequal tracking of the pupils, unequal pupil size, and resting nystagmus. Mr. Rife did not show any of these signs. After ruling out a head injury, Trooper Jefferson conducted other tests that suggested intoxication.

In these circumstances, an officer could reasonably conclude that Mr. Rife was intoxicated from medication.

D. Trooper Jefferson’s Reason for Making the Arrest

Mr. Rife suggests that probable cause did not exist because Trooper Jefferson had relied on the wrong statute. In a report, Trooper Jefferson stated that the arrest had been based on Okla. Stat. tit. 37, § 537. This law deals with intoxication from alcohol, not medication.

But Trooper Jefferson’s mistake does not foreclose probable cause because an arresting officer’s “subjective reason for making [an] arrest need not be the criminal offense as to which the known facts provide probable cause.” Devenpeck v. Alford, 543 U.S. 146, 153, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004).

Probable cause existed for violation of a separate statute: Okla. Stat. tit. 37, § 8. Under this statute, a crime is committed when the intoxication is caused by either alcohol or another intoxicating substance. Findlay v. City of Tulsa, 561 P.2d 980, 984-85 (Okla. Crim. App. 1977). Thus, probable cause existed even though Trooper Jefferson relied on the wrong statute.

VI. The Wrongful Arrest Claim Against the Oklahoma Department of Public Safety

Mr. Rife invokes the Oklahoma Governmental Tort Claims Act, claiming that the Oklahoma Department of Public Safety is vicariously liable for the wrongful arrest. On this claim, the district court granted summary judgment to the Oklahoma Department of Public Safety, holding that the existence of probable cause vitiated tort liability. We agree with the district court. Because the arrest was supported by probable cause, the Oklahoma Department of Public Safety could not incur liability for a ■wrongful arrest.

VII. The Deliberate Indifference Claim Against Trooper Jefferson

Mr. Rife brought a § 1983 claim against Trooper Jefferson, alleging deliberate indifference to serious medical needs. The district court granted summary judgment to Trooper Jefferson, concluding that he enjoyed qualified immunity because there was no evidence of a constitutional violation. This conclusion was erroneous, for Mr. Rife presented evidence that would reasonably allow factual findings supporting liability for deliberate indifference.

A.The Legal Framework for Deliberate Indifference Claims by Pretrial Detainees

The Fourteenth Amendment’s Due Process Clause entitles pretrial detainees to the same standard of medical care owed to convicted inmates under the Eighth Amendment. See Olsen v. Layton Hills Mall, 312 F.3d 1304, 1315 (10th Cir. 2002). Thus, the Fourteenth Amendment is violated if state officials are deliberately indifferent to a pretrial detainee’s serious medical needs. See, e.g., Martinez v. Beggs, 563 F.3d 1082, 1088-91 (10th Cir. 2009) (analyzing whether police officers were deliberately indifferent to the serious medical needs of a pretrial detainee).

The Supreme Court has established a two-pronged test for deliberate indifference claims. Under this test, a plaintiff must satisfy an objective prong and a subjective prong. Farmer v. Brennan, 511 U.S. 825, 834, 837-40, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). The objective prong concerns the severity of a plaintiffs need for medical care; the subjective prong concerns the defendant’s state of mind. Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). This appeal focuses largely on the subjective prong.

The subjective prong is satisfied only if the defendant knew of an excessive risk to the plaintiffs health or safety and disregarded that risk. Farmer, 511 U.S. at 837, 114 S.Ct. 1970. In deciding whether this prong is satisfied, the factfin-der may consider circumstantial evidence. Gonzales v. Martinez, 403 F.3d 1179, 1183 (10th Cir. 2005). For example, the existence of an obvious risk to health or safety may indicate awareness of the risk. See Farmer, 511 U.S. at 842, 114 S.Ct. 1970 (“[A] factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.”). But “the obviousness of a risk is not conclusive and a prison official may show that the obvious escaped him.” Id. at 843 n.8, 114 S.Ct. 1970.

B. Application of Standards Involving Medical Professionals

Our court applies specialized standards to deliberate indifference claims against medical professionals. See Self v. Crum, 439 F.3d 1227, 1231-33 (10th Cir. 2006) (discussing these standards). We have not applied these standards to deliberate indifference claims against laypersons such as police officers. Nonetheless, the district court analyzed whether Trooper Jefferson was deliberately indifferent under the standards for medical professionals. Mr. Rife takes a different approach, urging liability of Trooper Jefferson based on cases involving laypersons. This approach is correct because Trooper Jefferson was not a medical professional.

C. The District Court’s Discounting of Supporting Evidence

Mr. Rife contends that the district court improperly discounted four eviden-tiary items:

1. Mr. Rife said that his chest and heart hurt and made groaning noises.
2. Mr. Rife stated that he felt sick.
3. Trooper Jefferson saw dried blood on Mr. Rife’s nose.
4. An expert witness testified that someone on a motorcycle is more likely to be injured in an accident than someone in an automobile.

Trooper Jefferson denies any evidence that Mr. Rife complained of heart or chest pain or groaned in pain. We disagree. The dashcam recorded Mr. Rife’s complaints and groans. The district court should have considered this evidence, along with the complaint of feeling sick, the presence of dried blood on Mr. Rife’s nose, and the expert testimony that personal injury is more likely in motorcycle accidents than in automobile accidents.

D. Trooper Jefferson’s Conscious Disregard of a Substantial Health Risk

Trooper Jefferson argues that Mr. Rife failed to present sufficient evidence of a conscious disregard of a substantial health risk. We disagree.

Mr. Rife argues that his need for medical attention was obvious. This argument is supported by ten evidentiary items:

1. Trooper Jefferson knew that Mr. Rife had been involved in a motorcycle accident.
2. According to an expert witness, injury is more likely in a motorcycle accident than in an automobile accident.
3. Trooper Jefferson saw grass stains on Mr. Rife’s pants and on the back of his shirt. These stains indicated that Mr. Rife had been thrown from the motorcycle.
4. Mr. Rife did not know what day it was, what time it was, what his social security number was, or what he had done in Idabel.
5. There was dried blood on Mr. Rife’s nose.
6. Mr. Rife had constricted pupils, lethargy, nystagmus, and dizziness.
7. Mr. Rife said that he felt “floaty.”
8. Mr. Rife stated that he felt sick.
9. Mr. Rife complained that his chest hurt and he made groaning noises, suggesting that he was in pain.
10. Shortly thereafter, Mr. Rife complained that his heart hurt and again groaned.

These facts could lead a reasonable factfin-der to infer that Trooper Jefferson had recognized the need for medical attention. Nonetheless, Trooper Jefferson admittedly did not obtain medical attention for Mr. Rife.

Trooper Jefferson denies that a court could find deliberate indifference, pointing to six alleged facts:

1. Trooper Jefferson never saw Mr. Rife exhibit signs of pain or injury.
2. All of Mr. Rife’s symptoms were consistent with intoxication from pain medication.
3. Mr. Rife denied being in an accident.
4. When Trooper Jefferson approached Mr. Rife and asked how he was doing, Mr. Rife replied that he was fine.
5. Upon examination, Mr. Rife did not exhibit signs of a head injury.
6. The damage to the motorcycle was relatively minor.

The first alleged fact is inaccurate. For instance, the videotape shows Mr. Rife groaning and complaining that' his heart and chest hurt. In addition, Trooper Jefferson acknowledges that Mr. Rife complained of feeling sick. And throughout the episode, Mr. Rife had dried blood on his hose.

The second alleged fact is at least debatable, for the summary judgment record does not contain evidence of an inconsistency between Mr. Rife’s symptoms (such as pain in the chest or heart) and intoxication from pain medication. And even if the symptoms had been consistent with intoxication, the symptoms could also have suggested serious injury from the apparent motorcycle accident.

The other four alleged facts are insufficient to avoid a genuine dispute of material fact. Mr. Rife denied being in a motorcycle accident, but the trooper repeatedly stated that he knew that Mr. Rife had been in a motorcycle accident. Similarly, Mr. Rife may have initially claimed that he was fine, but he later complained of chest pain and heart pain, said that he felt sick, and remarked that he felt “floaty.” These statements, when combined with Mr. Rife’s other evidence, could adequately support liability for deliberate indifference even if Mr. Rife had not exhibited signs of a head injury or incurred major damage to his motorcycle.

Together, the evidence could reasonably support a finding that Trooper Jefferson knew of a substantial risk to Mr. Rife’s health and consciously disregarded that risk.

E. Whether the Underlying Right Was Clearly Established

In district court, Trooper Jefferson argued that Mr. Rife’s right to medical care had not been clearly established, but the district court did not rule on this argument. In this situation, “[t]he better practice ... is to leave the matter to the district court in the first instance.” Greystone Constr., Inc. v. Nat’l Fire & Marine Ins. Co., 661 F.3d 1272, 1290 (10th Cir. 2011) (quoting Apartment Inv. & Mgmt. Co. v. Nutmeg Ins. Co., 593 F.3d 1188, 1198 (10th Cir. 2010)). Thus, we remand to the district court for consideration of whether the underlying constitutional right was clearly established.

VIII. The Negligence Claim Against the Oklahoma Department of Public Safety

Mr. Rife again invokes the Oklahoma Governmental Tort Claims Act, alleging that the Oklahoma Department of Public Safety is vicariously liable for Trooper Jefferson’s negligent failure to obtain medical attention. The district court granted the Oklahoma Department of Public Safety’s motion for summary judgment, reasoning that Trooper Jefferson’s actions were reasonable as a matter of law.

On appeal, Mr. Rife argues that the district court improperly discounted evidence supporting the negligence claim. We agree and reverse the order granting summary judgment to the Oklahoma Department of Public Safety.

A. The District Court’s Discounting of Supporting Evidence

Mr. Rife contends that the district court improperly discounted evidence supporting the negligence claim, pointing to the same evidence that the district court improperly discounted for the deliberate indifference claim against Trooper Jefferson. See Part VII(C), above. We agree that the district court improperly discounted evidence supporting the negligence claim. This discounting of evidence constituted error because the district court had to view the evidence favorably to Mr. Rife. See Part IV, above.

B. The Reasonableness of Trooper Jefferson’s Failure to Obtain Medical Attention

The Oklahoma Department of Public Safety argues that Trooper Jefferson acted reasonably, relying on five of the alleged facts that Trooper Jefferson uses to defend against the deliberate indifference claim:

1. Mr. Rife had no visible injuries.
2. Mr. Rife did not complain of any injuries.
3. All of Mr. Rife’s symptoms were consistent with intoxication from pain medication.
4. Mr. Rife denied being in an accident.
5. Trooper Jefferson ruled out a head injury.

This argument fails. The first two alleged facts are inconsistent with some of the evidence. For example, the first is inaccurate because Mr. Rife had dried blood on his nose. The second is inaccurate because Mr. Rife complained of chest pain and heart pain and said that he felt sick.

The third alleged fact is questionable and immaterial. It is questionable because there is no summary judgment evidence stating that some of Mr. Rife’s symptoms (such as pain in one’s chest or heart) are consistent with intoxication from pain medication. This alleged fact is also immaterial: Regardless of whether Mr. Rife had been intoxicated, a factfinder could reasonably find that Trooper Jefferson had recognized a substantial risk to Mr. Rife’s health and consciously disregarded that risk.

The fourth and fifth alleged facts are also immaterial. Though Mr. Rife denied being in an accident and Trooper Jefferson ruled out a head injury, the trooper repeatedly said that he knew an accident had taken place.

In our view, the five alleged facts do not preclude a finding of negligence.

IX. The Deliberate Indifference Claim Against Mr. Willis and Mr. Dale

Mr. Rife alleges that Mr. Willis and Mr. Dale are liable under § 1983 for deliberate indifference to serious medical needs. Mr. Willis and Mr. Dale counter that they did not violate a constitutional right and that the underlying right was not clearly established.

The district court granted summary judgment to Mr. Willis and Mr. Dale based on qualified immunity, reasoning that there was no evidence of a constitutional violation. We disagree, concluding that the district court erred by (1) treating Mr. Willis and Mr. Dale like medical professionals and (2) misunderstanding a key piece of evidence — the declaration by Mr. Rife’s cellmate.

A. The Use of Standards Applicable to Medical Professionals

The district court analyzed whether Mr. Willis and Mr. Dale were deliberately indifferent under the standards for medical professionals. These standards do not apply because Mr. Willis and Mr. Dale were not medical professionals. See Part VII(B), above.

B. Mr. Rife’s Interaction with Mr. Willis and Mr. Dale

When Mr. Rife and Trooper Jefferson arrived at the jail, Trooper Jefferson told Mr. Willis and Mr. Dale that Mr. Rife had been arrested for public intoxication. But no one mentioned the motorcycle accident or said that Mr. Rife might have been injured.

Mr. Willis and Mr. Dale booked Mr. Rife into the jail. During the book-in, Mr. Rife was dazed, slurring his words and showing confusion about where he was or what he was doing.

As part of the book-in, Mr. Dale completed a medical questionnaire for Mr. Rife. According to this questionnaire, Mr. Rife did not show signs of trauma or illness that required immediate medical attention. Mr. Willis and Mr. Dale suspected that Mr. Rife was drunk, though Mr. Willis was not sure what substance Mr. Rife was on. Mr. Willis and Mr. Dale could not smell alcohol on Mr. Rife’s breath.

Suspecting intoxication, Mr. Willis decided to place Mr. Rife on medical observation, fearing that he might throw up in his sleep. This placement required jail personnel to check on Mr. Rife every fifteen minutes.

Mr. Willis and Mr. Dale moved Mr. Rife to the holding cell. Mr. Rife’s entry into the cell was observed by his new cellmate, Mr. Timothy May, who submitted a declaration recounting what he saw and heard: Mr. Rife moaned loudly, showed obvious pain, and repeatedly complained of stomach pain.

C. Mr. Rife’s Release and Collapse

The following morning, Mr. Rife was released. Upon release, Mr. Rife walked about 100 feet to a bail bondsman’s office. During the walk, Mr. Rife stated that he did not feel well.

When Mr. Rife reached the office, he sat in a chair. When he later tried to stand up, he passed out.

D. The District Court’s Consideration of the Cellmate’s Declaration

Mr. Rife contends that the district court improperly discounted the declaration of Mr. May. In Mr. Rife’s view, the declaration supports the existence of serious pain and the obvious need for medical attention upon entry into the holding cell.

The district court stated that Mr. May’s declaration is unclear about whether Mr. Rife had been in obvious pain when entering the holding cell. We disagree with this characterization, for Mr. May’s declaration states: “I woke up when Mr. Rife entered the holding cell because he was making loud moaning and groaning noises. He was obviously in pain. He kept saying that his stomach hurt and continued to make loud moaning and groaning noises.” Appellant’s App’x at 1650. This account unambiguously indicates that Mr. Rife was obviously in pain when he entered the holding cell. In our view, the district court misunderstood Mr. May’s declaration.

E. Conscious Disregard of a Substantial Risk to Mr. Rife’s Health

Mr. Willis and Mr. Dale argue that they did not consciously disregard a substantial risk to Mr. Rife’s health or safety. But a reasonable factfinder could reach a different conclusion.

According to Mr. May, Mr. Rife was repeatedly moaning in pain and complaining of stomach pain when entering the holding cell. This evidence could lead a reasonable factfinder to infer (1) an obvious need for medical attention and (2) Mr. Willis and Mr. Dale’s awareness of a substantial risk to Mr. Rife’s health.

Mr. Willis and Mr. Dale did not obtain medical attention for Mr. Rife. Thus, the factfinder could reasonably infer that Mr. Willis and Mr. Dale had disregarded the obvious risk to Mr. Rife.

According to Mr. Willis and Mr. Dale, Mr. Rife never complained of pain. But Mr. May states under oath that Mr. Rife entered the holding cell while making loud moaning and groaning noises, “obviously” suffering from pain, and repeatedly complaining of stomach pain. Id. Mr. Willis and Mr. Dale were present at the time.

Viewing Mr. May’s sworn account favorably to Mr. Rife, as we must, we consider the inferences that could reasonably be drawn. Mr. May stated that Mr. Rife was moaning loudly and kept complaining of stomach pain. Because Mr. Willis and Mr. Dale were present, the factfinder would reasonably infer that they heard the moaning and pain complaints. And if the need for medical attention appeared obvious to Mr. May, the factfinder could reasonably infer that the need for medical attention would also have been obvious to Mr. Willis and Mr. Dale. See Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (“[A] factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.”). After all, Mr. Willis and Mr. Dale had already decided to require “medical observation” of Mr. Rife even before he entered the holding cell. See Blackmore v. Kalamazoo County, 390 F.3d 890, 899 (6th Cir. 2004) (stating that the jailers’ placement of an inmate in an observation cell supported an inference of deliberate indifference to the inmate’s complaints of severe stomach pain).

Mr. Willis and Mr. Dale argue that at book-in, they did not see any injuries to Mr. Rife. But a factfinder could reasonably downplay the lack of visible injuries in light of Mr. Rife’s disorientation and moaning of pain when entering the holding cell.

Mr. Willis and Mr. Dale also note that (1) Mr. Rife did not ask for medical attention and (2) neither Mr. Rife nor Trooper Jefferson mentioned a motorcycle accident. Nevertheless, other evidence would allow a reasonable factfinder to infer that Mr. Willis and Mr. Dale had been aware of a substantial risk to Mr. Rife’s health.

Mr. Rife did not seek medical attention immediately after his release. Pointing to this fact, Mr. Willis and Mr. Dale contend that it would be unreasonable to expect them to recognize the need for medical attention when Mr. Rife did not recognize that need. For two reasons, we conclude that a factfinder could justifiably infer that Mr. Willis and Mr. Dale had recognized the need for medical attention even if Mr. Rife had not. First, Mr. Willis and Mr. Dale state that Mr. Rife was confused and apparently intoxicated when arriving at the jail. Second, even after Mr. Rife was released, he remained disoriented from a traumatic brain injury. Thus, a factfinder could reasonably infer that Mr. Willis and Mr. Dale had recognized the need for medical attention regardless of what Mr. Rife had thought.

F. Whether the Underlying Right Was Clearly Established

In district court, Mr. Rife argued that the underlying right was clearly established for purposes of qualified immunity. The district court did not reach this issue.

As noted above, “[t]he better practice on issues raised [below] but not ruled on by the district court is to leave the matter to the district court in the first instance.” Greystone Constr., Inc. v. Nat'l Fire & Marine Ins. Co., 661 F.3d 1272, 1290 (10th Cir. 2011) (quoting Apartment Inv. & Mgmt. Co. v. Nutmeg Ins. Co., 593 F.3d 1188, 1198 (10th Cir. 2010)); see also Part VII(E), above. As a result, we remand to the district court to determine in the first instance whether the underlying right was clearly established.

X. The Deliberate Indifference Claim Against the Jail Trust

Mr. Rife brings a § 1983 municipal liability claim against the jail trust. According to Mr. Rife, the jail trust’s policies and customs led the jail officials to act with deliberate indifference. The jail trust moved for summary judgment, making two arguments:

1. There was no underlying violation of Mr. Rife’s constitutional rights that could support a § 1983 claim against the jail trust.
2. Even if a jail employee had committed a constitutional violation, it had not resulted from the jail trust’s policy or custom.

The district court granted the jail trust’s motion for summary judgment, reasoning that there had not been an underlying constitutional violation.

We have already held that a reasonable factfinder could infer facts supporting a constitutional violation by Mr. Willis and Mr. Dale, who were employees of the jail trust acting in the course of employment. Thus, Mr. Rife has defeated the sole basis for the district court’s award of summary judgment to the jail trust.

Nonetheless, the jail trust urges affir-mance based on an alternate ground: the absence of substantial harm from the delay in medical attention. See Sealock v. Colorado, 218 F.3d 1205, 1210 (10th Cir. 2000). To support this argument, the jail trust points to medical testimony that the delay did not affect Mr. Rife’s medical care. But Mr. Rife rebutted that testimony with evidence of substantial pain while he waited for medical attention. Id. Thus, we cannot affirm based on the jail trust’s argument.

But the jail trust raises two other alternate grounds for affirmance: (1) the absence of causation and (2) the absence of a clearly established constitutional right. The district court did not rule on these arguments, and we remand for the district court to address these issues in the first instance. Greystone Constr., Inc. v. Nat’l Fire & Marine Ins. Co., 661 F.3d 1272, 1290 (10th Cir. 2011); see Part VII(E), above; see also Kramer v. Wasatch Cty. Sheriffs Office, 743 F.3d 726, 758 (10th Cir. 2014) (stating that the county could incur liability under § 1983 for a sergeant’s actions only if the county “had a custom, practice, or policy that encouraged or condoned the unconstitutional behavior”).

XI. The District Court’s Denial of Sanctions

Mr. Rife argues that there was a videotape of him in the booking area of the jail and that the jail trust intentionally destroyed the videotape. According to Mr. Rife, destruction of the videotape constitutes unlawful spoliation of evidence, justifying sanctions in the form of an adverse inference against the jail trust, Mr. Willis, and Mr. Dale.

In district court, Mr. Rife did not ask for an adverse inference. Thus, Mr. Rife has forfeited this argument. See Anderson v. Spirit Aerosystems Holdings, Inc., 827 F.3d 1229, 1238 (10th Cir. 2016). On appeal, we may consider forfeited arguments under the plain-error standard. Id. at 1239. But Mr. Rife has not asked us to apply this standard. Thus, we cannot reverse based on this argument. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130-31 (10th Cir. 2011) (stating that a failure to argue plain error on appeal “marks the end of the road for an argument for reversal” newly presented on appeal).

Even if Mr. Rife had not forfeited this argument, we could not grant the sanction he is seeking. For an adverse inference sanction, the aggrieved party must show bad faith. See Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136, 1149 (10th Cir. 2009) (“[I]f the aggrieved party seeks an adverse inference to remedy the. spoliation, it must also prove bad faith.”); Aramburu v. Boeing Co., 112 F.3d 1398, 1407 (10th Cir. 1997) (“[An] adverse inference must be predicated on the bad faith of the party destroying the records.”). But both here and in district court, Mr. Rife failed to identify any evidence of bad faith.

For these reasons, we uphold the district court’s denial of sanctions.

XII. Disposition

We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

      . The Oklahoma Department of Public Safety is a state agency. See Okla. Stat. tit. 47, § 2-101. Trooper Jefferson worked for the Oklahoma Highway Patrol, which is a division of the Oklahoma Department of Public Safety.

      . The Oklahoma Governmental Tort Claims Act is codified at Okla. Stat. tit. 51, § 151 et seq. This law provides the exclusive tort remedy in Oklahoma for injured plaintiffs to recover against state entities. Tuffy’s, Inc. v. City of Okla. City, 212 P.3d 1158, 1163 (Okla. 2009). Under this law, state entities can generally incur liability for torts. Id. This liability may be based on the acts of state employees. Id.

      . Mr. Rife also sued under the Oklahoma Constitution, but those claims are not involved in this appeal.

      . The defendants state that the plaintiff must show a violation of a clearly established constitutional right, not that a reasonable factfin-der could find facts supporting such a violation. The difference in framing would not affect our analysis.

      . Trooper Jefferson seems to acknowledge that the district court discounted the testimony that personal injury is more likely in motorcycle accidents than in automobile accidents. But he argues that "this abstract proposition is immaterial given the other evidence suggesting that Rife was not injured." Response Br. of the Oklahoma Department of Public Safety and Trooper Jefferson at 18. This argument fails. To the extent that there is conflicting evidence on the obviousness of the injury, we must view the evidence favorably to Mr. Rife. See Part IV, above.

      . Trooper Jefferson argues that "even assuming, arguendo, that Rife did, almost inaudibly, say that his chest or heart hurt, this would not be enough, given the totality of the other circumstances of this case, to show that Jefferson acted with deliberate indifference.” Response Br. of the Oklahoma Department of Public Safety and Trooper Jefferson at 33. This argument is flawed in two respects. First, Mr. Rife did not whisper these statements; a factfinder could reasonably infer that the statements were loud enough for Trooper Jefferson to hear. Second, other evidentiary items indicated a need for immediate medical attention. For both reasons, this argument fails.

      . If the declaration had been ambiguous, the district court should have resolved the ambiguity in Mr. Rife’s favor. See Part IV, above.

      . Mr. Willis and Mr. Dale argue that at most, Mr. May's declaration indicates awareness of a stomach ache. But a factfinder could reasonably infer that Mr. Willis and Mr. Dale knew that Mr. Rife was in considerable pain, for Mr. May stated that Mr. Rife had moaned and had repeatedly complained of stomach pain.

      . See Part IV, above.

      . Mr. Rife contends that he was mistreated throughout the night. We need not address whether this contention could affect the claims against Mr. Willis or Mr. Dale.

      . Municipal liability under § 1983 cannot be based on respondeat superior or vicarious liability. Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Rather, a plaintiff must establish that (1) a policy or custom of the municipality exists and (2) the policy or custom caused the constitutional violation. See Kramer v. Wasatch Cty. Sheriffs Office, 743 F.3d 726, 758 (10th Cir. 2014) ("As to institutional liability under § 1983, the County can only be liable for the actions of Sergeant Benson if it had a custom, practice, or policy that encouraged or condoned the unconstitutional behavior[ ]....”).

      . The district court concluded that Mr. Rife’s interactions with two unidentified jail officials could not create liability on the part of the jail trust. The district court seemed to hold that the jail trust could incur liability only if the jail officials could be identified. We need not determine whether this holding was correct because constitutional violations by Mr. Willis and Mr. Dale could support liability of the jail trust. Thus, we need not decide whether the jail trust could incur liability based on the misconduct of unidentified jail officials.

      . The jail trust, Mr. Willis, and Mr. Dale contend that the videotape did not show the booking process. Instead, they state that the videotape "showed Rife walk[ing] into the booking area and calling] the [bail] bondsman the next morning.” Response Br. of the Jail Trust, Mr. Willis, and Mr. Dale at 37.


author: TYMKOVICH, Chief Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Adaucto CHAVEZ-MEZA, Defendant-Appellant.
    No. 16-2062
    United States Court of Appeals, Tenth Circuit.
    FILED April 14, 2017

      Todd A. Coberly, Coberly & Martinez, LLLP, Santa Fe, New Mexico, for Appellant.
    James R.W. Braun, Assistant United States Attorney, and Damon P. Martinez, United States Attorney, Office of the United States Attorney, Albuquerque, New Mexico, for Appellee.
    Before TYMKOVICH, Chief Judge, SEYMOUR, and KELLY, Circuit Judges.
   TYMKOVICH, Chief Judge.

This case requires us to determine how much explanation a district court must provide when granting a sentence-reduction motion under 18 U.S.C. § 3582(c)(2) and choosing a sentence within the revised Sentencing Guidelines range.

Adaucto Chavez-Meza pleaded guilty to drug conspiracy charges in 2013. He originally received a prison sentence of 135 months, the Sentencing Guidelines minimum. In 2014, the Sentencing Commission amended the Guidelines to reduce the relevant offense levels. Chavez-Meza then sought and was granted a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). He requested the court reduce his sentence to 108 months, the minimum under the revised guidelines range, but the court only reduced his sentence to 114 months. In confirming the new sentence, the district court issued a form order stating it had “tak[en] into account the policy statement set forth at USSG § 1B1.10 and the sentencing factors set forth in 18 U.S.C. § 3553(a).” Chavez-Meza appeals his reduced sentence, claiming the district court erred by failing to adequately explain how it applied the § 3553(a) factors in imposing a 114-month sentence.

We AFFIRM the district court’s sentence-reduction order. Section 3&2(c)(2) does not require additional explanation when a district court imposes a guidelines sentence and affirmatively states that it considered the § 3553(a) factors in its decision.

I. Background

Chavez-Meza pleaded guilty to conspiracy and possession with intent to distribute methamphetamine. His guidelines range was 135-168 months. The government recommended a 135-month sentence at the low end of the range, which the sentencing court accepted. The court explained “the reason the guideline sentence is high in this case ... is because of the quantity, 1.75 kilograms of actual methamphetamine .... [0]ne of the other reasons that the penalty is severe in this ease[ ] is because of methamphetamine. It destroys ... individual lives, it destroys families, it can destroy communities.” App., Vol. IV at 15.

In 2015, after the Sentencing Commission amended the Guidelines and reduced the applicable guidelines for this type of crime, Chavez-Meza filed a pro se motion under 18 U.S.C. § 3582(c)(2), asking the district court to modify his sentence.

The district court appointed counsel to represent Chavez-Meza, and the government consented to a “stipulated agreement in petition for reduced sentence.” App., Vol. I at 40-41. In the petition they agreed that amendments to the guidelines range resulted in a lower 108- to 135-month sentencing range. Accordingly, Chavez-Meza filed a request for a 108-month sentence, at the low end of the revised range. The government did not offer guidance on a specific sentence.

There is no requirement that district courts hold a hearing in a § 3582(c)(2) sentence-reduction proceeding. United States v. Piper, 839 F.3d 1261, 1270 (10th Cir. 2016). Without doing so, then, the district court issued an order on a two-page standard form reducing Chavez-Meza’s sentence to 114 months. The form, an “AO-247,” is a document prepared by the Federal Judiciary’s Administrative Office. It requires the district court to state it has “tak[en] into account the policy statement set forth at USSG § 1B1.10 and the sentencing factors set forth in 18 U.S.C. § 3553(a), to the extent that they are applicable.” It also requires the court provide both the previous and amended total offense level, criminal history category, and guidelines range. The court must then check a box indicating where the sentence falls relative to the amended guidelines range. Apart from completing the form, the district court did not otherwise explain its decision to reduce the sentence to 114 months rather than the 108 months Chavez-Meza had requested.

II. Analysis

Chavez-Meza contends the district court erred by failing to adequately state reasons supporting its decision in the sentence-reduction order. He argues mere completion of an AO-247 makes it impossible to determine whether the district court complied with § 3582(c), which requires that courts consider the § 3553(a) sentencing factors. The government argues § 3582(c) does not require that courts state specific reasons for imposing a particular sentence, but only that courts consider the applicable § 3553(a) factors.

We review the scope of a district court’s authority in sentence reduction under 18 U.S.C. § 3582(c)(2) de novo. United States v. Verdin-Garcia, 824 F.3d 1218, 1221 (10th Cir. 2016). We review a district court’s decision to grant or deny a § 3582(c)(2) motion for an abuse of discretion. Id. An error of law is per se an abuse of discretion. Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996).

Section 3582(c)(2) authorizes a district court to reduce a sentence “based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” The statute provides that “the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” Id. (emphasis added).

We have explained in previous cases that the plain language of § 3582(c)(2) does not incorporate the explanatory requirement from § 3553(c):

The language of 18 U.S.C. § 3582(c)(2) is clear- — -it requires the court to consider the factors in 18 U.S.C. § 3553(a). It does not mention § 3553(c). This omission is significant because we have previously interpreted the meaning of both subsections, holding that § 3553(a) requires consideration, while § 3553(c) requires an explanation of the sentence. Congress incorporated only one of these distinct requirements into § 3582(c)(2)— the requirement to consider the § 3553(a) factors.

Verdin-Garda, 824 F.3d at 1221 (citing United States v. Ruiz-Terrazas, 477 F.3d 1196, 1201 (10th Cir. 2007)). Thus, the statute in referencing § 3553(a) imposes no particular requirement to provide the level of explanation § 3553(c) requires. Rather, “[sjection 3553(a) imposes on the district court a duty to ‘consider* ” a variety of important sentencing considerations. Ruiz-Terrazas, 477 F.3d at 1201. But it nowhere imposes on the court a duty to address those factors on the record; by contrast, § 3553(c) speaks expressly to the nature of the district court’s duty to explain itself on the record. It would be incongruous, we think, to read a duty of explanation into subsection (a) when the exact matter has already been considered and addressed by Congress in subsection (c).

We have also explained that the requirements imposed on a court at a sentence-reduction proceeding cannot be greater than those imposed at an original sentencing proceeding. Verdin-Garcia, 824 F.3d at 1221. This distinction reflects the different status of the two proceedings. Original sentencing proceedings invoke important constitutional rights, and § 3553(c) requires sentencing courts to explain and justify a particular sentence, both for procedural and substantive reasonableness. But no statute or case has established this requirement for sentence-reduction proceedings — which makes sense. Sentence-reduction proceedings merely represent “a congressional act of lenity intended to give prisoners the benefit of later enacted adjustments.” Dillon v. United States, 560 U.S. 817, 828, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010). Setting the procedural bar for sentence-reduction proceedings higher than for original sentencing proceedings would contravene this hierarchy. We cannot require more for sentence reduction, when § 3553(c) does not apply, than we require for original sentencing, when § 3553(c) does apply. The original sentencing procedures required by § 3553(c) must therefore supply the ceiling for sentence-reduction procedures.

So we begin by reviewing what § 3553(c) requires. We do so not because § 3553(c) applies to sentence reduction, but because the requirements for sentence reduction cannot exceed the requirements of § 3553(c). Congress’s decision not to incorporate § 3553(c) into the sentence-reduction provision dictates this approach. Our precedent on § 3553(c) does not tell us what sentence reduction requires, but it tells us the uppermost bound of what it can require.

And that precedent makes clear that original sentencing proceedings do not require extensive explanations for sentences within the guidelines range. “When imposing a sentence within the properly calculated Guidelines range, a- district court must provide, as Section 3553(c) indicates by its plain language, only a general statement noting the appropriate guideline range and how it was calculated.” United States v. Ruiz-Terrazas, 477 F.3d 1196, 1202 (10th Cir. 2007) (internal quotation marks omitted). A court’s “citation of the [presentence report’s] calculation method and recitation of the suggested imprisonment range amply fulfills]” this requirement. United States v. Algarate-Valencia, 550 F.3d 1238, 1244 (10th Cir. 2008) (quoting United States v. Cereceres-Zavala, 499 F.3d 1211, 1217 (10th Cir. 2007)). “Section 3553(a) imposes on the district court a duty to ‘consider’ a variety of important sentencing considerations. But it nowhere imposes on the court a duty to address those factors on the record.” Ruiz-Terrazas, 477 F.3d at 1201.

Read together, Verdin-Garcia and Ruiz-Terrazas thus establish that the same “general statement noting the appropriate guideline range and how it was calculated” in applying § '3553(a) also suffices in sentence-reduction proceedings. Ruiz-Terrazas confirms that level of explanation satisfies the requirements for sentencing proceedings, and Verdin-Gareia clarifies that it provides the ceiling for sentence-reduction proceedings. A contrary rule would go beyond what we have said § 3553(c) requires, thus imposing greater requirements for what both Congress and the Supreme Court have told us is a lesser proceeding — and one to which § 3553(c) does not even apply. We therefore hold that, absent any indication the court failed to consider the § 3553(a) factors, a district court completing form AO-247 need not explain choosing a particular guidelines-range sentence.

This makes sense given our review of sentencing decisions. We “traditionally presume, absent some indication in the record suggesting otherwise, that trial judges are presumed to know the law and apply it in making their decisions.” Ruiz-Terrazas, 477 F.3d at 1201 (alterations and quotation marks omitted). We “do not disturb decisions entrusted by statute or other rule of law to the discretion of a district court unless we have a definite and firm conviction that the lower court made a clear error of judgment or exceeded- the bounds of permissible choice in the circumstances.” Id. (quotation marks omitted).

Nothing indicates in this ease the district court failed to consider the § 3553(a) factors or otherwise abused its discretion. The first page of form AO-247, signed by the judge, indicates that he has “tak[en] into account the policy statement set forth at USSG § 1B1.10 and the sentencing factors set forth in 18 U.S.C. § 3553(a).” App., Vol. 1 at 42. The (sealed) second page of form AO-247 correctly indicates the amended guidelines range. And it is safe to infer from the court’s rejection of the low-end-of-the-range sentence that it carefully considered the materials (which included an incident of misconduct while in prison) presented to it by the parties.

The circuits are split on the degree of explanation necessary to satisfy § 3582. The First, Third, and Fourth Circuits, for example, have all held that no elaborate explanation is necessary in § 3582 sentence-reduction proceedings. See United States v. Zayas-Ortiz, 808 F.3d 520, 524 (1st Cir. 2015) (affirming unelaborated AO-247 order where “the record as a whole is sufficient for [the court of appeals] to infer the pertinent factors taken into account by the court below”); United States v. Brown, 497 FedAppx. 196, 198-99 (3d Cir. 2012) (unpublished) (affirming unelaborated AO-247 order where “[t]he record shows the District Court’s consideration of the relevant factors and the rationale for its § 3582(c)(2) ruling”); United States v. Smalls, 720 F.3d 193, 195-96 (4th Cir. 2013) (“[AJbsent a contrary indication, [the court of appeals] presume[s] a district court deciding a § 3582(c)(2) motion has considered the 18 U.S.C. § 3553(a) factors and other pertinent matters before it.” (internal quotation marks’ omitted)). On the other hand, several other circuits have found an explanatory requirement in this context. See United States v. Christie, 736 F.3d 191, 195 (2d Cir. 2013) (“[T]he lack of reasoning in the court’s order prevents [the court of appeals] from exercising meaningful appellate review.” (internal quotation marks omitted)); see also United States v. Howard, 644 F.3d 455, 461 (6th Cir. 2011); United States v. Marion, 590 F.3d 475, 478 (7th Cir. 2009); United States v. Burrell, 622 F.3d 961, 964 (8th Cir. 2010); United States v. Trujillo, 713 F.3d 1003, 1009 (9th Cir. 2013); United States v. Williams, 557 F.3d 1254, 1256-57 (11th Cir. 2009) (all same).

Chavez-Meza relies on these authorities and also points to two Tenth Circuit cases in arguing for a contrary result. In the first case, United States v. Dorrough, 84 F.3d 1309, 1311 (10th Cir. 1996), we stated in dicta that “[t]here is no requirement that the district court make specific findings regarding [the 18 U.S.C. § 3553(a) factors in sentence-reduction orders] as long as it states the reasons for its actions.” The other case, United States v. Nelson, 303 Fed.Appx. 641 (10th Cir. 2008), an unpublished decision that relies on Dorrough, remanded an AO-247 order that lacked any explanation, explaining “we lack a meaningful basis for reviewing the district court’s consideration of the relevant factors.” Id. at 646. But dicta and unpublished opinions do not bind panels of this court. See 10th Cir. R. 32.1(A) (“Unpublished decisions are not precedential, but may be cited for their persuasive value.”); Bates v. Dep’t of Corr., 81 F.3d 1008, 1011 (10th Cir. 1996) (“[A] panel of this [c]ourt ... is not bound by a prior panel’s dicta.”). We nonetheless are persuaded that § 3582 does not require more explanation than was provided here.

First, Dorrough and Nelson ultimately locate the source of the explanatory requirement in § 3553(c), but, as we explained in Verdin-Garcia, § 3582(c) plainly does not incorporate that requirement. See Verdin-Garcia, 824 F.3d at 1221 (“§ 3582(c)(2) ... does not mention § 3553(c).”). Although Nelson states that § 3582(c)(2) “require[s]” a district court “to state the reasons for its decision,” 303 Fed.Appx. at 646, § 3582(c)(2) only directs courts to consider the § 3553(a) factors. Nowhere does the language of § 3582(c)(2) include, reference, or incorporate the explanatory requirement of § 3553(c). Verdin-Garcia, 824 F.3d at 1221. Nelson’s statement that § 3582(c)(2) requires a statement of reasons is unpersuasive for that reason.

Second, Dorrough and Nelson are inconsistent with our cases on sentencing, which provide a ceiling for the requirements in sentence-reduction proceedings. If a sentencing court does not need to explain the reasons behind a within-guidelines sentence, the standard cannot be higher for sentence reduction. Following Nelson’s approach would create a more stringent standard for sentence-reduction proceedings than for original sentencing proceedings. Had Congress wished to include an explanatory requirement in the sentence-reduction provision, as they did in § 3553(c), they could have done so. But “courts must presume that a legislature says in a statute what it means and means in a statute what it says there.” Barnhart v. Sigmon Coal Co., 534 U.S. 438, 461-62, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002).

The rule of Nelson might be good practice for the district courts, and reviewing courts might benefit in some circumstances from additional explanation, but as we explained, neither the text of the statute nor our precedent require additional explanation. Even though district courts need not explain their decisions • in sentence-reduction orders, that does not mean that they should not do so. In Verdin-Garcia, we announced a “[g]eneral [p]olicy [supporting [explanation,” in light of “the need for a district court to create a meaningful basis for appellate review and to promote the perception of fairness.” 824 F.3d at 1222. As the First Circuit noted in a similar case, “[e]ven a single sentence incorporating the government’s or probation officer’s position might have spared this case a trip to the [court of appeals] and all the attendant effort and expense associated therewith.” Zayas-Ortiz, 808 F.3d at 525. But the standard of review is abuse of discretion, not best practice. In the absence of an explanatory requirement, we do not find that the district court abused its discretion.

III. Conclusion

We therefore AFFIRM the district court’s order reducing Chavez-Meza’s sentence to 114 months.

      . More is required at sentencing when the defendant requests a below-guidelines sentence. See United States v. Sanchez-Juarez, 446 F.3d 1109, 1117 (10th Cir. 2006) ("[Wlhere a defendant has raised a nonfrivo-lous argument that the § 3553(a) factors warrant a below-Guideline sentence and has expressly requested such a sentence, we must be able to discern from the record that the sentencing judge did not rest on the guidelines alone, but considered whether the guidelines sentence actually conforms, in the circumstances, to the statutory factors.” (internal quotation marks and alterations omitted)). But that situation is not raised on these facts. Courts can only reduce a sentence to a term less than the guidelines minimum if the sentencing court originally imposed a sentence below the guidelines range. USSG § IB 1.10(b)(2). We do not decide in this case what level of explanation is required when courts decide sentence-reduction motions involving sentences outside the guidelines range.

      . We do not address here whether a district court must justify rejecting a sentence-reduction motion. Some courts considering the issue have imposed higher explanatory standards for denying sentence-reduction motions than for granting one but with a longer sentence than the movant sought. See United States v. Brown, 497 Fed.Appx. 196, 198 (3d Cir. 2012) (unpublished); United States v. Evans, 587 F.3d 667, 674 (5th Cir. 2009).

      . Dorrough gets to § 3553(c) in two steps. As authority for its dictum, Dorrough cited United States v. Lee, 957 F.2d 770, 774-75 (10th Cir. 1992), a case about supervised release that cites § 3553(c) as authority for a similar dictum. Nelson cites Dorrough, so it too ultimately derives its holding from § 3553(c). Nelson, 303 Fed.Appx. at 645.