author: BRISCOE, Circuit Judge.

text:
    Keighton BUDDER, Petitioner-Appellant, v. Mike ADDISON, Warden, Respondent-Appellee.
    No. 16-6088
    United States Court of Appeals, Tenth Circuit.
    Filed March 21, 2017

      Bryan A. Stevenson, Equal Justice Initiative, Montgomery, Alabama (Jennae R. Swiergula and James M. Hubbard, Equal Justice Initiative, Montgomery, Alabama; Perry W. Hudson, Hudson Law Office, Oklahoma City, Oklahoma, with him on the briefs), for Petitioner-Appellant.
    Mithun Mansinghani, Deputy Solicitor General (E. Scott Pruitt, Attorney General of Oklahoma; Diane L. Slayton, Assistant Attorney General, with him on the briefs), Oklahoma City, Oklahoma, for Respondent-Appellee.
    Before BRISCOE, MATHESON, and PHILLIPS, Circuit Judges.
   BRISCOE, Circuit Judge.

Keighton Budder was convicted by an Oklahoma jury of several violent nonhomi-cide crimes committed when he was sixteen years old. After sentence modification on direct appeal, he received three life sentences and an additional sentence of twenty years, all to run consecutively. He will not be eligible for parole under Oklahoma law until he has served 131.75 years in prison. Budder filed a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254, contending, as he did on direct appeal, that his sentence violates the Eighth Amendment. In support, he cites Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), which held that sentencing juvenile offenders who have not committed homicide crimes to life in prison without a meaningful opportunity for release is unconstitutional. The district court denied Budder’s petition, and he appeals. We reverse and remand with instructions to grant Budder’s petition.

I

In the early morning hours of August 11, 2009, when he was sixteen years old, Budder stabbed a seventeen-year-old girl approximately seventeen times and raped her multiple times. On April 1, 2010, an Oklahoma state jury convicted Budder of two counts of first degree rape, one count of assault and battery with a deadly weapon, and one count of forcible oral sodomy. The jury recommended punishment of life without parole for each of the rape charges, life with parole for the assault charge, and twenty years’ imprisonment for the forcible sodomy charge. On May 4, 2010, the state trial court sentenced accordingly and ordered the sentences to run consecutively.

Less than two weeks later, the Supreme Court decided Graham, which held that “the Eighth Amendment prohibits a state from imposing a life without parole sentence on a juvenile nonhomicide offender.” Id. at 75, 130 S.Ct. 2011. Budder filed a direct appeal with the Oklahoma Court of Criminal Appeals (OCCA) and argued that, under Graham, his sentence was unconstitutional and must be modified. On October 24, 2011, the OCCA modified Budder’s two life without parole sentences to life with the possibility of parole, but again ordered all of his sentences (three life sentences and a twenty-year sentence) to run consecutively. Aplt. App. at 238-39.

Under Oklahoma law, a prisoner must serve 85% of his sentence before he will be eligible for parole. See Okla. Stat. tit. 21, § 13.1. For purposes of parole, a life sentence is calculated as 45 years. Anderson v. State, 2006 OK CR 6, ¶ 24, 130 P.3d 273, 282-283 (Okla. 2006). Thus, Budder’s sentences are considered to total 155 years, and he must serve 131.75 years before he will be eligible for parole.

Budder requested rehearing before the OCCA, again relying on Graham, and asked that his sentences be modified to run concurrently rather than consecutively in order to provide him with a potential of parole in his lifetime. The OCCA denied this petition on November 29, 2011. Aplt. App. at 246-47.

Budder timely filed his petition for habe-as relief in federal district court on February 20, 2013. See 28 U.S.C. § 2244(d)(1)(A); Lawrence v. Florida, 549 U.S. 327, 333, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007). The magistrate judge issued a Report and Recommendation concluding that Graham controlled and Budder should be resentenced. The district court declined to adopt that recommendation and denied Budder’s petition, but granted a certificate of appealability.

II

As a habeas court tasked with review of the OCCA’s ruling, our review is circumscribed by § 2254(d) of the Antiter-rorism and Effective Death Penalty Act of 1996 (AEDPA). See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 92, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). “AED-PA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court.” Burt v. Titlow, - U.S. -, 134 S.Ct. 10, 16, 187 L.Ed.2d 348 (2013). We may reverse the state court’s judgment only if the court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law” or “was based on an unreasonable determination of the facts in light of the evidence presented.” 28 U.S.C. § 2254(d). This high burden is placed on state habeas petitioners because “habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice systems,’ not a substitute for ordinary error correction through appeal.” Harrington, 562 U.S. at 102-03, 131 S.Ct. 770 (quoting Jackson v. Virginia, 443 U.S. 307, 332, n.5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment)). The Court has also cautioned, however, that “ ‘[e]ven in the context of federal habeas, deference does not imply abandonment or abdication of judicial review,’ and ‘does not by definition preclude relief.’” Brumfield v. Cain, - U.S. -, 135 S.Ct. 2269, 2277, 192 L.Ed.2d 356 (2015) (quoting Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)).

Each of AEDPA’s three prongs — contrary to clearly established federal law, unreasonable application of clearly established federal law, and unreasonable determination of the facts — presents an independent inquiry. 28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 404-05, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (holding that the “contrary to” and “unreasonable application” clauses have independent meaning). Bud-der argues that the OCCA’s decision regarding his sentence is contrary to clearly established federal law, citing that portion of § 2254(d)(1), so we focus on this prong of AEDPA.

Review under § 2254(d)(1) is a two-step process. See Yarborough v. Alvarado, 541 U.S. 652, 660-63, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004). The first step is to determine the “relevant clearly established law.” Id. at 660, 124 S.Ct. 2140 (“We begin by determining the relevant clearly established law.”). As used in the context of AEDPA, “[c]learly established Federal law” means only Supreme Court holdings, not the Court’s dicta. Id. Federal courts must “look for ‘the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.’” Id. at 661, 124 S.Ct. 2140 (quoting Lockyer v. Andrade, 538 U.S. 63, 71, 72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003)). Thus, at this stage of the inquiry, we look only to Supreme Court decisions that existed at the time the state court rendered its decision, not at later opinions or opinions from lower courts.

After the relevant clearly established law has been determined, the second step is to examine the state court’s judgment to determine whether it was either “contrary to, or involved an unreasonable application of’ that clearly established law. 28 U.S.C. § 2254(d)(1); see also Carey v. Musladin, 549 U.S. 70, 74-77, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006) (outlining the relevant Supreme Court precedent in Part II.A and then considering the state court’s application of that precedent in Part H.B.); Yarborough, 541 U.S. at 663, 124 S.Ct. 2140 (“We turn now to the case before us and ask if the state-court adjudication of the claim ‘involved an unreasonable application’ of clearly established law....”); Williams, 529 U.S. at 390-98, 120 S.Ct. 1495 (discussing, in Part III, the precedent set in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and then, in Part IV, concluding that the state court’s decision was both contrary to and involved an unreasonable application of that precedent). A state court decision is “contrary to” clearly established federal law “if the state court applies a rule that contradicts the governing law set forth” in Supreme Court eases or “if the state court confronts a set of facts that are materially indistinguishable from” a Supreme Court case “and nevertheless arrives at a result different from [that] precedent.” Williams, 529 U.S. at 405, 120 S.Ct. 1495; Holland v. Allbaugh, 824 F.3d 1222, 1227 (10th Cir. 2016). We must decide in the first instance what governing law has been set forth. Only after we have done so may we determine whether a state court’s decision conflicts with that governing law. If we conclude at this second step that, in light of the clearly established federal law, the state court’s judgment “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement,” then we may grant the petitioner’s request for habeas relief. See Harrington, 562 U.S. at 103, 131 S.Ct. 770.

Ill

First, we must determine what law was clearly established at the time of the OCCA’s decision. Specifically, we must look for the governing legal principle set forth in Graham. At the age of sixteen, Terrance Jamar Graham was charged as an adult for armed burglary with assault or battery, which is a first-degree felony under Florida law and carries a maximum penalty of life imprisonment. Graham, 560 U.S. at 53, 130 S.Ct. 2011. He was also charged with attempted armed robbery, which is a second-degree felony under Florida law and carries a maximum penalty of fifteen years’ imprisonment. Id. at 53-54, 130 S.Ct. 2011. Graham pleaded guilty to both charges. Id. at 54, 130 S.Ct. 2011. The state trial court withheld adjudication of guilt and sentenced Graham to concurrent three-year terms of probation,’ including twelve months in the county jail. Id. Graham was released in June 2004. Id. Less than six months later, he was arrested for a series of -crimes: participating in two home invasion robberies during which an accomplice was shot; leading police on a high speed chase while evading arrest; and possessing three handguns. Id. at 54-55, 130 S.Ct. 2011. When questioned, Graham admitted to participation in an additional “two to three” robberies. Id. at 55, 130 S.Ct. 2011. At the time of this arrest, Graham was thirty-four days shy of his eighteenth birthday. Id. As a result of violating the terms of his probation, Graham was found guilty on the original two charges and sentenced to the maximum term allowed on each — life imprisonment for armed burglary, and fifteen years for attempted armed robbery. Id. at 57, 130 S.Ct. 2011. At the time, the state of Florida had no mechanism for parole. Id.

Graham appealed his sentence and raised what the Court described as “a categorical challenge to a term-of-years sentence.” Id. at 61, 130 S.Ct. 2011. Thus, the Court did not apply a proportionality analysis to the circumstances of Graham’s particular case. Instead, the Court addressed whether life without parole sentences were categorically disproportionate and thus invalid under the Eighth Amendment when applied to juvenile nonhomicide offenders. See id (“This case implicates a particular type of sentence as it applies to an entire class of offenders who have committed a range of crimes.” (emphasis added)); id. (“[T]he appropriate analysis is the one used in cases that involved the categorical approach.”). The Court then announced a categorical rule:

The Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide. A state need not guarantee the offender eventual release, but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term.

Id. at 82, 130 S.Ct. 2011; see also id. at 75, 130 S.Ct. 2011 (explaining the necessity of a categorical rule). Thus, the Court’s holding applies, not just to the factual circumstances of Graham’s case, but to all juvenile offenders who did not commit homicide, and it prohibits, not just. the exact sentence Graham received, but all sentences that would deny such offenders a realistic opportunity to obtain release.

Although we reach this conclusion, as we must, by looking only to the Supreme Court’s language in Graham, we cannot help but point out that the concurring and dissenting opinions in Graham, as well as the Court’s subsequent decisions in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Montgomery v. Louisiana, - U.S. -, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), support what is obvious from the text of the majority’s opinion in Graham — the Court in Graham announced a categorical rule, not a fact-specific holding.

Chief Justice Roberts wrote separately in Graham because, although he agreed with the majority that “Graham’s sentence of life without parole violate[d] the Eighth Amendment,” he reached that conclusion by “[ajpplying the ‘narrow proportionality’ framework to the particular facts of th[at] case.” Graham, 560 U.S. at 91, 130 S.Ct. 2011 (Roberts, C.J., concurring in the judgment). “Unlike the majority,” Chief Justice Roberts “s[aw] no need to invent a new constitutional rule.” Id. He wrote that the majority “err[edj” “in using [Graham’s] case as a vehicle for unsettling [the Court’s] established jurisprudence and fashioning a categorical rule applicable to far different cases.” Id. at 96, 130 S.Ct. 2011 (emphasis added). Thus, it is clear that Chief Justice Roberts recognized the majority opinion as a categorical holding that reached beyond the facts of Graham’s individual circumstances. Similarly, Justice Alito joined Justice Thomas’s dissenting opinion but also wrote separately to emphasize that Graham did not raise “an as-applied claim in his petition for certiorari or in his merits briefs before [the Supreme] Court. Instead, [Graham] argued for only a categorical rule banning the imposition of life without parole on any juvenile convicted of a nonhomicide offense.” Id. at 124-25, 130 S.Ct. 2011 (Alito, J., dissenting) (emphasis in original). .By this statement, the dissent highlights the question answered by the Graham majority: Does the Eighth Amendment categorically bar life without parole sentences for all juvenile offenders who did not' commit homicide? According to the Court, it does.

Further, the Court in both Miller and Montgomery characterized the holding in Graham as categorical. Montgomery, 136 S.Ct. at 732 (stating that Graham fell within the line of Supreme Court “precedent holding certain punishments disproportionate when applied to juveniles” and that Graham “held that the Eighth Amendment bars life without parole for juvenile nonho-micide offenders”); id. at 734 (Scalia, J., dissenting) (referring to Graham as an example of a categorical holding); id. (stating that Graham “bar[red] a punishment for all juvenile offenders”); Miller, 132 S.Ct. at 2463-64 (listing Graham as belonging to a set of cases that have “adopted categorical bans on sentencing practices based on mismatches between the culpability of a class of offenders and the severity of a penalty”); id. at 2465 (referring to Graham’s “categorical bar” with respect to life-without-parole sentences imposed on a juvenile for nonhomicide offenses); id. at 2466 n.6 (stating that Graham established “a flat ban” for nonhomicide offenses); id. at 2471 (referring to Graham as an example of a decision that “categprically bar[red] a penalty for a class of offenders or type of crime”); id. at 2476 (Breyer, J., concurring) (stating that “Graham dictates a clear rule: The only juveniles who may constitutionally be sentenced to life without parole are those convicted of homicide offenses who ‘kill or intend to kill’ ” (quoting Graham, 560 U.S. at 69, 130 S.Ct. 2011)); id. at 2480-81 (Roberts, C.J., dissenting) (stating that Graham “bar[red] life without parole for juvenile nonhomicide offenders”); id. at 2483 (Thomas, J., dissenting) (stating that the Court in Graham “concludefd] that the Constitution prohibits a life-without-parole sentence for a nonhomicide offender who was under the age of 18 at the time of his offense”); id. at 2489-90 (Alito, J., dissenting) (stating that the Court “held in Graham that a trial judge with discretionary sentencing authority may not impose a sentence of life without parole on a minor who has committed a nonhomicide offense”).

When the Court announces that a rule applies to an entire category of offenders, factual distinctions within that category are no longer “material.” Thus, when the Court announces a categorical holding, it clearly establishes the law applicable within the defined contours of that category. Federal courts must determine only whether a case falls within the categorical holding announced by the Supreme Court. If it does, the law is clearly established, and the Supreme Court’s rule must be applied.

The Graham Court defined its holding with respect to three criteria: (1) the “sentencing practice”; (2) “the nature of the offense”; and (3) “the characteristics of the offender.” See Graham, 560 U.S. at 60-61, 130 S.Ct. 2011; id. at 61, 130 S.Ct. 2011 (“[A] sentencing practice itself is in question. This case implicates a particular type of sentence as it applies to an entire class of offenders who have committed a range of crimes.”); id. at 68-69, 130 S.Ct. 2011 (considering “the status of the offenders” and then “the nature of the offenses to which this harsh penalty might apply”); id. at 74, 130 S.Ct. 2011 (holding that (1) “for a juvenile offender•” (2) “who did not commit homicide” (3) “the Eighth Amendment forbids the sentence of life without parole.” (emphasis added)). We examine each of these criteria in turn. We conclude, first, that the “sentencing practice” considered by the Court includes any sentence that would deny the offender a realistic opportunity for release in the offender’s lifetime; second, that the Court’s analysis regarding “the nature of the offense” applies to all nonhomicide offenses, regardless of the number or severity of those offenses; and, third, that the Court’s analysis regarding “the characteristics of the offender” applies to any offender who was under the age of eighteen at the time of his or her offense.

A. The Sentencing Practice

The Court in Graham considered all “sentences that deny convicts the possibility of parole.” Id. at 70, 130 S.Ct. 2011. The Court repeatedly referred to these sentences as “life without parole sentences,” see, e.g., id. at 62, 130 S.Ct. 2011, but a sentencing court need not use that specific label for a sentence to fall within the category considered by the Court. In fact, it is important to note that Graham himself was not sentenced to “life without parole”; he was sentenced to “life.” Id. at 57, 130 S.Ct. 2011. It was only because the State of Florida had abolished its parole system that Graham would have no opportunity to obtain release. Id. The Court in Graham focused, not on the label attached to the sentence, but on the irrevocability of the punishment. Id. (“[T]his sentence means denial of hope.”); id.. (“[T]he sentence alters the offender’s life by a forfeiture that is irrevocable. It deprives the convict of the most basic liberties without giving hope of restoration.”); id. at 74, 130 S.Ct. 2011 (“By denying the defendant the right to reenter the community, the State makes an irrevocable judgment about that person’s value and place in society.”). In this context, there is no material distinction between a sentence for a term of years so lengthy that it “effectively denies the offender any material opportunity for parole” and one that will imprison him for “life” without the opportunity for parole— both are equally irrevocable. Id. at 113 n.11, 130 S.Ct. 2011 (Thomas, J., dissenting) (“It is difficult to argue that a judge or jury imposing such a long sentence— which effectively denies the offender any material opportunity for parole — would express moral outrage at a life-without-parole sentence.”); see also Moore, 725 F.3d at 1191 (“Moore’s sentence of 254 years is materially indistinguishable from a life sentence without parole because Moore will not be eligible for parole within his lifetime.”).

Despite Oklahoma’s arguments to the contrary, we cannot read the Court’s categorical rule as excluding juvenile offenders who will be imprisoned for life with no hope of release for nonhomicide crimes merely because the state does not label this punishment as “life without parole.” The Constitution’s protections do not depend upon a legislature’s semantic classifications. Limiting the Court’s holding by this linguistic distinction would allow states to subvert the requirements of the Constitution by merely sentencing their offenders to terms of 100 years instead of “life.” The Constitution’s protections are not so malleable.

More importantly, the Court did not just hold that it violated the Eighth Amendment to sentence a juvenile nonhomicide offender to life without parole; it held that, when a state imposes a sentence of life on a juvenile nonhomicide offender, it must provide that offender with a “meaningful opportunity to obtain release.” Id. at 75, 130 S.Ct. 2011; see also id. (“[The Eighth Amendment] does prohibit States from making the judgment at the outset that those offenders never will be fit to reenter society.”). Further, the Court explained that its categorical holding was necessary because it would “give[ ] all juvenile non-homicide offenders a chance to demonstrate maturity and reform.” Graham, 560 U.S. at 79, 130 S.Ct. 2011 (emphasis added). If the rule announced in Graham is to provide all juvenile offenders such an opportunity, it must be read to apply to all sentences that are of such length that they would remove any possibility of eventual release. Thus, we conclude, the sentencing practice that was the Court’s focus in Graham was any sentence that denies a juvenile nonhomicide offender a realistic opportunity to obtain release in his or her lifetime, whether or not that sentence bears the specific label “life without parole.”

B. The Nature of the Offense

The Court in Graham considered all juvenile offenders who had not committed homicide, regardless of the number or severity of nonhomicide crimes committed. The Court defined the nature of the offense in this way because it drew a “moral” distinction between homicide and non-homicide crimes — a difference in kind. See Graham, 560 U.S. at 69, 130 S.Ct. 2011. According to the Court, “[tjhere is a line ‘between homicide and other' serious violent offenses against the individual.’ Serious nonhomicide crimes ‘may be devastating in their harm ... but ‘in terms of moral depravity and of the injury to the person and to the public,’ ... they cannot be compared to murder in their ‘severity and irrevocability.’ ” Id. (alteration in original) (quoting Kennedy v. Louisiana, 554 U.S. 407, 438, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008)). “Although an offense like robbery or rape is ‘a serious crime deserving serious punishment,’ those crimes differ from homicide crimes in a moral sense.” Id. (quoting Enmund v. Florida, 458 U.S. 782, 797, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982)). Therefore, “defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms of punishment than are murderers.” Id.

At no point did the Court draw any distinctions with regard to the severity or number of nonhomicide crimes a defendant had committed or indicate that anything short of homicide would rise to the level of moral culpability that could justify a sentence of life without parole for a juvenile offender. Again, we decline Oklahoma’s invitation to invent distinctions that were not drawn by the Court. To the contrary, the Court specifically referred to offenders with multiple crimes and multiple charges, including Budder himself, as offenders who, as juveniles, regardless of their non-homicide crimes, were not sufficiently culpable to deserve a sentence of life without the opportunity for parole. See, e.g., id. at 64, 130 S.Ct. 2011 (citing a news article about Budder’s sentence); id. at 76-77, 130 S.Ct. 2011 (referring to an offender’s “past encounters with the law” and the “second and third chances” he had been given); id. at 79, 130 S.Ct. 2011 (referring to Graham’s multiple “bad acts,” “crimes,” and “mistakes”).

Again, we must emphasize that states may not circumvent the strictures of the Constitution merely by altering the way they structure their charges or sentences. Just as they may not sentence juvenile nonhomicide offenders to 100 years instead of “life,” they may not take a single offense and slice it into multiple sub- offenses in order to avoid Graham’s rule that juvenile offenders who do not commit homicide may not be sentenced to life without the possibility of parole. When the Court compared the severity of the crime with the severity of the punishment, in light of the characteristics of the offender, it did not look to the state’s definitions or the exact charges brought. It looked to whether the offender was a juvenile, whether the offender killed or intended to kill the victim, and whether the sentence would deny the offender any realistic opportunity to obtain release. The Court specifically concluded that, not only was a categorical rule appropriate, it was “necessary,” id. at 75, 130 S.Ct. 2011, because a case specific approach “would allow courts to account for factual differences between cases and to impose life without parole sentences for particularly heinous crimes,” id. at 77, 130 S.Ct. 2011. The Court found this approach to pose too great a risk that some juveniles would receive life without parole sentences “despite insufficient culpability.” Id. at 78, 130 S.Ct. 2011 (quoting Roper, 543 U.S. at 572-73, 125 S.Ct. 1183). The Court was not convinced “that courts taking a case-by-case proportionality approach could with sufficient accuracy distinguish the few incorrigible juvenile offenders from the many that have the capacity for change.” Id. at 77, 130 S.Ct. 2011. Not only did the Court draw the line at homicide, it structured a categorical rule specifically to prevent the possibility that a sentencing judge would ever impose a sentence of life without the possibility of parole on a juvenile who did not commit homicide. The Eight Amendment prohibits such a sentence, regardless of the severity of nonhomicide crimes a juvenile has committed.

C. The Characteristics of the Offender

The Court in Graham considered the unique characteristics of offenders who committed their crimes before reaching the age of eighteen. The Court had previously established in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), “that because juveniles have lessened culpability they are less deserving of the. most severe punishments.” Graham, 560 U.S. at 68, 130 S.Ct. 2011 (quoting Roper, 543 U.S. at 569, 125 S.Ct. 1183). The Court stated that it had no “reason to reconsider the Court’s observations in Roper about the nature of juveniles” and “developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds.” Id. The Court addressed these differences at length in its discussion of whether “the culpability of the offenders at issue,” “in light of their crimes and characteristics,” was proportionate to “the severity of the punishment in question.” Id. at 67, 130 S.Ct. 2011. Throughout this part of the opinion, the Court’s analysis relied upon the age of the offender as the distinguishing characteristic.

First, the Court noted that, “[a]s compared to adults, juveniles have a ‘lack of maturity and an underdeveloped sense of responsibility’; they are ‘more vulnerable or susceptible to negative influences and outside pressures, including peer pressure’; and their characters are ‘not as well formed.’ ” Id. at 68, 130 S.Ct. 2011 (quoting Roper, 543 U.S. at 569, 125 S.Ct. 1183). “Accordingly, -‘juvenile offenders cannot with reliability be classified among the worst offenders.’ ” Id. (quoting Roper, 543 U.S. at 569, 125 S.Ct. 1183). Further, “[j]u-veniles are more capable of change than are adults, and their actions are less likely to be evidence of ‘irretrievably depraved character’ than are the actions of adults.” Id. (quoting Roper, 543 U.S. at 570, 125 S.Ct. 1183).

Second, the Court noted that “life without parole is ‘the second most severe penalty permitted by law.’ ” Id. at 69, 130 S.Ct. 2011 (quoting Harmelin, 501 U.S. at 1001, 111 S.Ct. 2680). But not only is it a severe penalty for all who receive it, it “is an especially harsh punishment for a juvenile” because “[a] 16-year-old and a 75-year-old each sentenced to life without parole receive the same punishment in name only.” Id. at 70, 130 S.Ct. 2011. “[A] juvenile offender -will on average serve more years and a greater percentage of his life in prison than an adult offender.” Id.

Third, the Court concluded that none of the recognized goals of penal sanctions— retribution, deterrence, incapacitation, and rehabilitation — justified the sentence of “life without parole for juvenile nonhomicide offenders.” Id. at 71, 130 S.Ct. 2011. In this discussion, the Court noted that retribution was not proportional, given the reduced culpability of juveniles, id. that juveniles’ lack of maturity prevented a justification of deterrence, id. at 72, 130 S.Ct. 2011, and that incapacitation was inadequate to justify the punishment because “incorrigibility is inconsistent with youth,” id. at 72-73, 130 S.Ct. 2011 (quoting Workman v. Commonwealth, 429 S.W.2d 374, 378 (Ky. 1968)). All three of these conclusions are dependent upon the age of the offender.

Therefore, we conclude that the Court’s categorical rule in Graham covered all offenders who committed their crimes before the age of eighteen and who did not kill, intend to kill, or foresee that life would be taken. It compared the culpability of these offenders to the severity of the sentence, in this case any sentence that would deprive the offender of a realistic opportunity for release in his or her lifetime. The Court concluded that such sentences were categorically unconstitutional when applied to these juvenile offenders. Id. at 75, 130 S.Ct. 2011. Although “[a] State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomi-cide crime,” it must provide “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id.

IV

We come, then, to the ultimate question presented here: Does Budder’s case fall within Graham’s categorical holding? We say again, in the words of the Supreme Court:

The Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not- commit homicide. A state need not guarantee the offender eventual release, but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term.

Id. at 82, 130 S.Ct. 2011. Like Graham, Budder committed his crimes as a juvenile. Like Graham, Budder did not commit homicide. Like. Graham, Budder received a life sentence — in fact, even more harshly, he received three consecutive life sentences. And, like Graham, Budder’s sentence does not provide him a realistic opportunity for release; he would be required to serve 131.75 years in prison before he would be eligible for parole. No fairminded jurist could disagree with these conclusions. In fact, Oklahoma does not even contest them. Thus, under the categorical rule clearly established in Graham, Bud-der’s sentence violates the Eighth Amendment. The OCCA’s judgment was contrary to this clearly established Supreme Court precedent. Accordingly, we reverse and remand with instructions to grant Bud-der’s petition for writ of habeas corpus, to vacate Budder’s sentence, and to direct the State of Oklahoma to resentence Budder within a reasonable period.

      . AEDPA § 2254(d) provides in full:
      An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
      28 U.S.C. § 2254(d).

      . Budder also argues that the OCCA’s decision was an unreasonable application of clearly established federal law. A state court decision “involves an unreasonable application of” clearly established Supreme Court precedent when it unreasonably applies the law to the facts of a particular prisoner's case. Williams, 529 U.S. at 409, 120 S.Ct. 1495; Holland v. Allbaugh, 824 F.3d 1222, 1227-28 (10th Cir. 2016). Thus, the “unreasonable application of” prong of-§ 2254(d)(1) is a better fit for cases involving application of general legal principles to fact-specific inquiries. See, e.g., Carey v. Musladin, 549 U.S. 70, 77, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006) (noting that "lower courts have diverged widely in their treatment of defendants' spectator-conduct claims” and concluding that "[g]iven the lack of holdings from this Court regarding the potentially prejudicial effect of spectators' courtroom conduct of the kind involved here, it cannot be said that the state court ‘unreaso-nabl[y] appli[ed] clearly established Federal law’ ” (quoting 28 U.S.C. § 2254(d)(1))).
      By contrast, a state court decision can be "contrary to” Supreme Court precedent only if a prior "case[] confront[s] 'the specific question presented.’ ” Woods v. Donald, - U.S. -, 135 S.Ct. 1372, 1377, 191 L.Ed.2d 464 (2015) (quoting Lopez v. Smith, -U.S. -, 135 S.Ct. 1, 4, 190 L.Ed.2d 1 (2014)). A categorical holding answers "the specific question presented” for all cases within the category, so a state court decision that fails to follow a categorical rule is “contrary to" established law, not an "unreasonable application of” it. The other circuit courts to address the meaning of Graham to cases on habeas review have also considered the question under the "contrary to” prong of AEDPA. See Moore v. Biter, 725 F.3d 1184 (9th Cir. 2013) (“[T]he state court’s decision was contrary to the clearly established Federal law set forth in Graham.”); Bunch v. Smith, 685 F.3d 546, 551 (6th Cir. 2012) ("[W]e cannot say that Bunch's sentence was contrary to clearly established federal law.”).

      . “The concept of proportionality is central to the Eighth Amendment. Embodied in the Constitution’s ban on cruel and unusual punishments is the 'precept of justice that punishment for crime should be graduated and proportioned to [the] offense.'" Graham, 560 U.S. at 59, 130 S.Ct. 2011 (alteration in original) (quoting Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 793 (1910)). The Eighth Amendment " ‘does not require strict proportionality between crime and sentence’ but rather 'forbids only extreme sentences that are “grossly disproportionate” to the crime.’ ” Id. at 59-60, 130 S.Ct. 2011 (quoting Harmelin v. Michigan, 501 U.S. 957, 997, 1000-01, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring in part and concurring in judgment.)).
      Prior to Graham, challenges to term-of-years sentences (meaning non-death penalty sentences) were reviewed according to the proportionality analysis, and categorical analysis was reserved for cases involving the death penalty. Id. at 60-61, 130 S.Ct. 2011. Thus, Graham presented a new issue for the Court under its Eighth Amendment jurisprudence. Id. at 61, 130 S.Ct. 2011 (“The present case involves an issue the Court has not considered previously: a categorical challenge to a term-of-years sentence.”).

      . We recognize that the circuit courts do not agree as to what the Court held in Graham Compare Moore v. Biter, 725 F.3d 1184, 1186 (9th Cir. 2013) (holding that, in Graham, "the United States Supreme Court clearly established that the Eighth Amendment prohibits the punishment of life without parole for juvenile nonhomicide offenders" (emphasis added)), with Bunch v. Smith, 685 F.3d 546, 550 (6th Cir. 2012) (holding that Graham "did not clearly establish that consecutive, fixed-term sentences for juveniles who commit multiple nonhomicide offenses are unconstitutional when they amount to the practical equivalent of life without parole”).
      First, we must note that both of these cases involved lengthy fixed-term sentences imposed by state courts. See Moore, 725 F.3d at 1187 (sentence of 254 years); Bunch, 685 F.3d at 547 (sentence of 89 years). Budder, on the other hand, was not sentenced to a lengthy fixed-term, he was sentenced to “life,” just as was the defendant in Graham. Thus, these cases regarding lengthy fixed-term sentences addressed an alleged factual distinction that is not relevant in Budder's case. We conclude that Graham addressed any sentence that would deny a juvenile non-homicide offender a realistic opportunity to obtain release, regardless of the label a state places on that sentence. But, even if a material distinction could be drawn between lengthy fixed-terms and "life,” that distinction would not apply here.
      Second, we note that, given the two-step framework for habeas review, we owe no deference to other courts' decisions regarding what law the Supreme Court clearly established in Graham. We look to our sister circuits' decisions only for their persuasive value. In other words, AEDPA requires that the law be clearly established by the Supreme Court. It must be the Court’s holding, not dicta. It must be on point, not a general principle to be extended from another context. But it need not be the case that no other court has ever misinterpreted or failed to follow that clearly established law in order for it to remain "clearly established law.”

      . This conclusion is consistent with Supreme Court holdings that imply categorical rules would have a broader reach than holdings which merely apply principles to facts. See Howes v. Fields, 565 U.S. 499, 505, 132 S.Ct. 1181, 182 L.Ed.2d 17 (2012) (holding that the court of appeals erred in concluding that the law was clearly established by a categorical rule when the Supreme Court had “repeatedly declined to adopt any categorical rule with respect to [the issue],” thereby implying that a categorical rule, if announced, would be clearly established law for all defendants who fell under the rule’s purview); Thaler v. Haynes, 559 U.S. 43, 49, 130 S.Ct. 1171, 175 L.Ed.2d 1003 (2010) (same).

      . Cf. Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519, 132 S.Ct. 2566, 2594-95, 183 L.Ed.2d 450 (2012) (taking a "functional approach” to decide whether a provision labeled a “penalty” was constitutional as a tax, because the label chosen by Congress does not "control whether an exaction is within Congress's constitutional power to tax”); Freytag v. Commissioner, 501 U.S. 868, 881, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991) (concluding that "a special trial judge is an 'inferi- or Officer' whose appointment must conform to the Appointments Clause” because "the degree of authority exercised by the special trial judges [was] so 'significant' that it was inconsistent with the classifications of lesser functionaries’ or employees”); Bernal v. Fainter, 467 U.S. 216, 223-24, 104 S.Ct. 2312, 81 L.Ed.2d 175 (1984) (holding that, in the context of an equal protection claim, the question of whether “notaries public fall within that category of officials who perform functions that ‘go to the heart of representative government,’ " does not depend upon the state’s designation of notaries because the "Court has always looked to the actual function of the position as the dispositive factor” (quoting Sugarman v. Dougall, 413 U.S. 634, 647, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973))); Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 285, 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977) (noting that courts should not "attach[ ] constitutional significance to a semantic difference”); Ry. Express Agency v. Virginia, 358 U.S. 434, 441, 79 S.Ct. 411, 3 L.Ed.2d 450 (1959) (noting that a legislature may not "effect a validation of a tax, otherwise unconstitutional, by merely changing its descriptive words”).

      . At that time, the OCCA had not yet modified Budder’s two 'life-without-parole” sentences to “life” sentences. This distinction, however, does not detract from the fact that the Court, although aware of Budder’s multiple charges and corresponding multiple sentences, considered him as part of the category addressed in Graham.

      . The OCCA’s opinion provides little to no analysis to guide our understanding of how it read and applied the Supreme Court’s rule from Graham. In the absence of an explanation from the state court, we consider the arguments that might have supported its decision. See Harrington, 562 U.S. at 102, 131 S.Ct. 770 ("Under § 2254(d), a habeas court must determine what arguments or theories supported or, as here, could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theo-ríes are inconsistent with the holding -in a prior decision of this Court.”). In this case, we do not know whether the OCCA applied the wrong rule by reading Graham too narrowly, or if it identified the correct rule, but applied it to materially indistinguishable facts and yet reached a contrary conclusion. See Williams, 529 U.S. at 405, 120 S.Ct. 1495. In either case, we conclude that the OCCA’s judgment was contrary to the Court's holding in Graham, which requires that Budder’s sentence be vacated.


source: Caselaw Access Project

author: ROSENBAUM, Circuit Judge:

license: Public Domain

text:
    Julian ALMANZA, Individually, and on behalf of all others similarly situated, Alejandro Davison, Individually, and on behalf of all others similarly situated, Nicolas Arroyo, Individually, and on behalf of all others similarly situated, Aida Perez, Individually, and on behalf of all others similarly situated, Ana Escobar, Individually, and on behalf of all others similarly situated, Miguel Orozco, Individually, and on behalf of all others similarly situated, Plaintiffs-Appellants, v. UNITED AIRLINES, INC., a corporation, Delta Air Lines, Inc., American Airlines, Inc., a corporation, Aerovias de Mexico, S.A. de C.V., a corporation, Concesionaria Vuela Compania de Aviacion, S.A.P.I. de C.V., ABC Aerolineas, S.A. de C.V., a corporation, U.S. Airways, Inc., Defendants-Appellees.
    No. 16-11048
    United States Court of Appeals, Eleventh Circuit.
    (March 13, 2017 )

      Matthew J.M. Prebeg, Stephen W. Abbott, Brent Taylor Caldwell, Christopher M. Faucett, Prebeg Faucett & Abbott, PLLC, Steven J. Kherkher, Sean H. McCarthy, Williams Kherkher Hart & Boundas, LLP, Houston, TX, Eric F. Citron, Goldstein & Russell, P.C., Bethesda, MD, Andrew Jack Kochanowski, Sarah Lindsay Rickard, Sommers Schwartz, PC, Southfield, MI, Lauren E.H. Meadows, Patrick T. O’Connor, Benjamin Mason Perkins, Oliver Maner, LLP, Savannah, GA, for Plaintiffs-Appellants.
    Sondra Hemeryck, Jacob Kahn, Ronald S. Safer, Riley Safer Holmes & Cancila LLP, Chicago, IL, Mark David Johnson, Gilbert Harrell Sumerford & Martin, PC, Brunswick, GA, for United Airlines, Inc.
    Frank M. Lowrey, IV, John E. Floyd, Manoj S. Varghese, Bondurant Mixson & Elmore, LLP, Scott Grubman, Chilivis Cochran Larkins & Bever, LLP, Atlanta, GA, for Delta Air Lines, Inc.
    James B. Durham, Hall Booth Smith, PC, Brunswick, GA, Sadik Harry Huseny, Daniel Murray Wall, Latham & Watkins, LLP, San Francisco, CA, for American Airlines, Inc.
    J. Gordon Cooney, Jr., Morgan Lewis & Bockius, LLP, Philadelphia, PA, Lucas T. Elliot, Alexandra Lyndra Farias, Morgan Lewis & Bockius, LLP, Houston, TX, Brian Ercole, Morgan Lewis & Bockius, LLP, Miami, FL, Richard K. Hines, Nelson Mullins Riley & Scarborough, LLP, Atlanta, GA, for Aerovías de Mexico, S.A. de C.V.
    Brian H. Polovoy, Stuart J. Baskin, Joanna Shally, Shearman & Sterling, LLP, New York, NY, John E. Bumgartner, Brown Readdick Bumgartner Carter Strickland & Watkins, LLP, Brunswick, GA, for Concesionaria Vuela Compañía de Aviación, S.A.P.I. de C.V.
    M. Roy Goldberg, Steptoe & Johnson, LLP, Washington, DC, James F. Moseley, Joni Alexis Poitier, Charles M. Trippe, Moseley Prichard Parrish Knight & Jones, Jacksonville, FL, for ABC Aerolíneas, S.A. de C.V.
    Daniel Murray Wall, Sadik Harry Huse-ny, Latham & Watkins, LLP, San Francisco, CA, James B. Durham, Hall Booth Smith, PC, Brunswick, GA, for U.S. Airways, Inc.
    Before WILLIAM PRYOR and ROSENBAUM, Circuit Judges, and UNGARO, District Judge.

       Honorable Ursula Ungaro, United States District Judge for the Southern District of Florida, sitting by designation.

   ROSENBAUM, Circuit Judge:

Some find travel taxing. Plaintiffs in this case are among them, but not for the usual reasons. Plaintiffs are Mexican nationals who, in flying with the Defendant airlines to and from the United States and Mexico, were charged, as part of their airfare, a tourism tax purportedly required under Mexican law, even though Defendants knew that, under Mexican law, Plaintiffs were actually exempt from the tax. Defendants kept those improperly collected “taxes” for themselves instead of remitting them to Mexico (to which they were not owed) or back to Plaintiffs (who technically could have utilized an obscure reimbursement procedure to get their money back, if only they knew about it).

Plaintiffs claim Defendants defrauded them, but because of the unique contours of federal aviation law, Plaintiffs assert that they are left with no hopeful route to relief other than the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-68. Those who successfully navigate RICO’s complexities are compensated with treble damages and attorney’s fees, among other remedies. In this case, though, the district court dismissed Plaintiffs’ RICO claims on the pleadings. Because Plaintiffs failed to plead a RICO enterprise, we affirm the district court’s dismissal.

I.

A.

Before we embark on our journey through Plaintiffs’ RICO allegations, some background knowledge is necessary. Defendants are international air-transportation companies that transport passengers to and from the United States and Mexico. To facilitate their business in Mexico, Defendants all became, at one point or another, members of the Mexican legal entity Cámara Nacional de Aerotransportes (“CANAERO”). Members of CANAERO use CANAERO as a means of coordinating Mexico-related airline matters with each other and with Mexican authorities. Towards this end, “[e]ach of the Defendants regularly participates in meetings with each other and various Mexican authorities under the aegis of CANAERO.”

Mexico imposes a tax (the “Mexico Tourism Tax” or “Tax”) on certain travelers who arrive in Mexico on flights that originated outside of Mexico. Among those legally exempt from the Tax are Mexican nationals and children under the age of two. Because Defendants transport passengers to and from Mexico and the United States,'Defendants’ businesses are affected by the Tax.

To facilitate collecting the Tax, Mexico, Defendants, other non-party airlines, and CANAERO itself entered into an agreement (which we refer to as the “Contract”) so that the parties could, among other things, implement procedures allowing the airlines to collect the tax from the passengers who owed it. Plaintiffs believe their Complaint to be the first instance in which the Contract was made public, and they allege that CANAERO and Defendants had actively tried to keep the Contract secret.

The Contract expressly designated so-called “Exempt Travelers,” from whom the CANAERO member airlines could not collect the Mexico Tourism Tax. These Exempt Travelers are “citizens of Mexico, children under the age of two, and foreigners with resident status in Mexico.” Defendants were not authorized to and agreed not to collect the Mexico Tourism Tax from them. Plaintiffs and the class they hope to represent are Exempt Travelers.

Through the Contract, Defendants agreed to procedures by which they would remit to Mexico the Mexico Tourism Tax that they collected from passengers who owed it. For example, one of these procedures required Defendants to fill out and submit to Mexico manifest forms showing the number of passengers per flight to whom the tax applied.

But according to Plaintiffs, Defendants did not simply collect the Tax from only the passengers who legally owed it; rather, Defendants collected the tax from all passengers, including Exempt Travelers. In fact, Plaintiffs complain that Defendants took them for a ride, representing to the Exempt Travelers that they were required to pay the Tax, even though Defendants knew that not to be true. Plaintiffs allege that Defendants accomplished this by not including the Tax on the “face of the tickets,” instead “bur[ying it] in the details of the costs and fees of each ticket” as a line item and then not advising Exempt Travelers that they were entitled to a refund. The amount of the Tax varied, but it was usually between $20.00 and $25.00. Plaintiffs allege that this ticketing practice was an illegal, multi-year, multi-million dollar scheme.

In Plaintiffs’ view, not only did this practice defraud customers, but it also violated the Contract: Defendants were obligated to have in place procedures to identify Exempt Travelers so that only non-exempt passengers would be taxed, and Defendants also agreed to provide refunds to any passengers who were improperly taxed. Plaintiffs further claim that, despite possessing adequate information to ensure no passenger would be improperly taxed (ie., having passengers’ passport numbers and nationalities), Defendants . “([i]) charged Exempt Travelers the Mexico Tourism Tax, (ii) concealed from Exempt Travelers that they were not subject to the Mexico Tourism Tax, (iii) failed to offset ticket prices charged for such Exempt Travelers, and (iv) failed to refund the tax.” On top of that, Plaintiffs contend that Defendants retained the improperly assessed taxes and reinvested the proceeds into their respective operations.

Finally, Plaintiffs complain that Defendants engaged in tactics to obfuscate their alleged scheme. According to Plaintiffs, their injuries were difficult to discover because (1) separate and apart from the Contract, Defendants had an agreement among themselves, whether express or implied, to create and perpetrate their fraudulent tax-collection practices as a collective scheme, and (2) Defendants in fact carried out this illicit side agreement over many years.

B.

Plaintiffs filed their Complaint in March 2015. They bring their claims under RICO, which provides a private right of action for treble damages to “[a]ny person injured in his business or property by reason of a violation of section 1962 of this chapter.” 18 U.S.C. § 1964(c). Section 1962, in turn, lists four types of RICO violations. See id. § 1962. Plaintiffs assert they have suffered violations of three of these provisions: § 1962(c), which proscribes participating in the conduct of the affairs of an enterprise engaged in interstate commerce, through a pattern of racketeering activity (Count One); § 1962(a), which prohibits investing income gained from a pattern of racketeering activity into such an enterprise (Count Two); and § 1962(d), which renders conspiracy to violate § 1962(a), (b), or (c) a crime (Count Three). The predicate acts making up the pattern of racketeering activity for these claims are violations of the federal mail and wire-fraud statutes, 18 U.S.C. §§ 1341, 1343.

Defendants filed motions to dismiss the complaint for failure to state claims under RICO, among other reasons. The district court heard oral argument on the motions, after which the court invited the parties to submit supplemental briefing. In the supplemental briefing, Plaintiffs requested leave to amend and filed a proposed amended complaint, adding details about Defendants’ relationships with CANAE-RO. The new allegations pled in that proposed amended complaint are discussed below as necessary.

Ultimately, the district court granted the motions to dismiss, denied Plaintiffs leave to amend on the basis that the proposed amended complaint was futile, and dismissed the case with prejudice. The court determined that Plaintiffs failed to plead the existence of a RICO “enterprise” or a “pattern of racketeering activity.” Because the court also found that the additional allegations in the proposed amended complaint did not remedy the deficiencies, it dismissed the case with prejudice.

II.

A district court’s dismissal of a complaint with prejudice for failure to state a claim is subject to a de novo standard of review. See Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1288 (11th Cir. 2010). We must accept the factual allegations in the complaint as true and construe them in the light most favorable to the plaintiff, see Strickland, 772 F.3d at 882, but the allegations must nevertheless state a claim for relief that is plausible — and not merely possible — on its face, see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Under this standard, “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.

III.

Plaintiffs bring their claims under RICO’s private cause of action, 18 U.S.C. § 1964(c). To state a claim for relief under § 1964(c), a plaintiff must plead facts establishing three elements: (1) a violation of 18 U.S.C. § 1962; (2) injury to business or property; and (3) causation. See Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991).

As we have noted, § 1962, in turn, outlaws various kinds of racketeering conduct: subsection (a) prohibits investing income gained from a pattern of racketeering activity into an enterprise engaged in interstate commerce; subsection (b) forbids using a pattern of racketeering activity to acquire or maintain any interest in or control over such an enterprise; and subsection (c) proscribes participating in the conduct of the affairs of such an enterprise through a pattern of racketeering activity. See Pelletier v. Zweifel, 921 F.2d 1465, 1495-96 (11th Cir. 1991), abrogated on other grounds by Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 128 S.Ct. 2131, 170 L.Ed.2d 1012 (2008). Subsection (d) criminalizes conspiring to violate subsections (a), (b), or (c). See Pelletier, 921 F.2d at 1496.

Plaintiffs sought relief under subsections (a), (c), and (d). Each of these subsections requires'Plaintiffs to have alleged the existence of an “enterprise”— subsections (a) and (c) require this explicitly, see 18 U.S.C. § 1962(a), (c), and subsection (d) requires it implicitly by virtue of incorporating the elements of subsection (c). See United States v. Starrett, 55 F.3d 1525, 1543 (11th Cir. 1995). Though Plaintiffs make a strong effort to sufficiently allege the existence of an “enterprise,” they ultimately fail.

A.

RICO defines an “enterprise” as “any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4). In the simple case, the enterprise is an “individual, partnership, corporation, association, or other legal entity.” Id. The more challenging case occurs when the enterprise is alleged to be a “union or group of individuals associated in fact although not a legal entity.” Id. Plaintiffs rely on this more challenging “association in fact” form to defend all three of their claims.

An associated-in-fact enterprise is “a group of persons associated together for a common purpose of engaging in a course of conduct.” United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981). While “the very con cept of an association in fact is expansive,” the Supreme Court has nevertheless found that an association-in-fact enterprise must have three “structural features”: (1) a “purpose,” (2) “relationships among those associated with the enterprise,” and (3) “longevity sufficient to permit these associates to pursue the enterprise’s purpose.” Boyle v. United States, 556 U.S. 938, 944, 946, 129 S.Ct. 2237, 173 L.Ed.2d 1265 (2009). As a result, an associated-in-fact enterprise can be either “formal or informal,” as long as the enterprise’s “various associates function as a continuing unit.” Turkette, 452 U.S. at 583, 101 S.Ct. 2524; see also United States v. Goldin Indus., Inc., 219 F.3d 1271, 1275 (11th Cir. 2000) (explaining that how “loose or informal” an enterprise is makes no difference, as long as the enterprise “furnishes a vehicle” for the racketeering activity).

B.

Turning to the complaint, Plaintiffs’ enterprise theory is that, through an illicit agreement, Defendants formed an enterprise among themselves to commit their racketeering. There is no question that Plaintiffs adequately plead two of the three minimum structural requirements for an associated-in-fact enterprise: a “purpose” and “longevity sufficient to permit the[ ] associates to pursue the enterprise’s purpose.” Boyle, 556 U.S. at 946, 129 S.Ct. 2237. What the parties really dispute is whether Plaintiffs adequately plead “relationships among those associated with the enterprise.” Id. If this association-in-fact enterprise does not have sufficient relationships among Defendants as associates, it lacks the structure needed to be legally cognizable.

Proving sufficient relationships for an associated-in-fact enterprise is not a particularly demanding task, but the endeavor can be elusive. For example, an associated-in-fact enterprise “need not have a hierarchical structure or a ‘chain of command,’ ” and its “decisions may be made on an ad hoc basis and by any number of methods — by majority vote, consensus, a show of strength, etc.” Boyle, 556 U.S. at 948, 129 S.Ct. 2237. The enterprise does not have to give its members fixed roles, nor does it need to have “a name, regular meetings, dues, established rules and regulations, disciplinary procedures, or induction or initiation ceremonies.” Id. Nevertheless, “the group must function as a continuing unit.” Id.

To show that Defendants acted as a continuing unit, and not merely independently, Plaintiffs conclusorily allege that Defendants entered into an agreement, either express or tacit, to collect the Mexico Tourism Tax from Exempt Travelers, and that this alleged agreement “is itself an association in fact.”- But since Defendants do not allege facts showing that this alleged agreement actually exists, their allegations simply recite a legal conclusion— the existence of an agreement. So they are inadequate for pleading purposes. See Twombly, 550 U.S. at 564, 127 S.Ct. 1955 (“Although in form a few stray statements speak directly of agreement, on fair reading these are merely legal conclusions .... ” (footnote omitted)).

Plaintiffs surely recognize this because their real argument is that the Court should infer an agreement — and thus an enterprise — from the parallel conduct of Defendants. And Plaintiffs have indeed alleged parallel conduct: according to the complaint, each Defendant represented to the Exempt Travelers that they were required to pay the Tax and concealed from them that they were exempt; each charged them the Tax; each did not offset ticket prices for the Exempt Travelers; and each failed to refund the Tax.

But parallel conduct alone cannot support a plausible inference of an agreement. In Twombly, the Supreme Court rejected as inadequate the eonclusory allegation of a conspiratorial agreement, despite the fact that the allegation was coupled with allegations of parallel conduct. Parallel conduct, the Court explained, can just as easily indicate “independent action” as it can collusion. See Twombly, 550 U.S. at 556-57, 127 S.Ct. 1955. To cross the line from a possible to a plausible existence of an agreement, plaintiffs must allege a “further circumstance pointing toward a meeting of the minds.” Id. at 557, 127 S.Ct. 1955. Without that “further factual enhancement,” “an account of a defendant’s commercial efforts stays in neutral territory.” Id.

In American Dental, we determined that, even though Twombly was an antitrust case, Twombly’s pleading rule for agreements applied in the RICO context. See 605 F.3d at 1291. There, the plaintiffs alleged that each of the defendant-insurers processed x-ray billing codes in the same fraudulent manner and that, given this parallel conduct, the defendants were part of a RICO conspiracy. See id. at 1292-93. We held that the plaintiffs failed to plead a conspiratorial agreement because they did not allege specifically how the defendants agreed to employ the allegedly fraudulent billing procedures as part of a scheme. See id. In other words, the plaintiffs had to assert allegations explaining how exactly the defendants went about entering into an agreement with each other. It wasn’t enough that the defendants all ended up doing the same fraudulent thing. That’s precisely the problem that burdens Plaintiffs here.

And it’s not just unknowingly parallel conduct that fails to pass the plausibility threshold. Tioombly’s rule extends to consciously parallel conduct as well. Conscious parallelism occurs when competitors engage in similar behavior and are aware of each other’s behavior. As a result of this awareness, competitors also know that what one competitor can do depends on what the others do — this, in turn, creates interdependence.

In Twombly, the Supreme Court found conscious parallelism and interdependence insufficient to pass the plausibility thresh-' old, see 550 U.S. at 553-54, 127 S.Ct. 1955, and we, too, have recognized this principle, see Jacobs v. Tempur-Pedic Int’l, Inc., 626 F.3d 1327, 1342-43 (11th Cir. 2010); see also In re Text Messaging Antitrust Litig., 782 F.3d 867, 875 (7th Cir. 2015) (citing the airline industry, and in particular its ticket-pricing practices, as an example of a “concentrated market [in which competitors] watch each other like hawks”), cert. denied, Aircraft Check Servs. Co. v. Verizon Wireless, - U.S. -, 136 S.Ct. 524, 193 L.Ed.2d 398 (2015). Although parallel conduct and interdependence are consistent with collusion, they are “just as much in line with a wide swath of rational and competitive business strategy unilaterally prompted by common perceptions of the market.” Twombly, 550 U.S. at 554, 127 S.Ct. 1955.

Plaintiffs argue that they have alleged not simply consciously parallel conduct, but rather consciously parallel conduct plus multiple “further factual enhancement[s].” Id. at 557, 127 S.Ct. 1955. We now turn to those purported “further factual enhancements]” to discern whether any makes the alleged agreement plausible by Twombly and Iqbal standards.

1. Unlawful Conduct

For a first factual enhancement, Plaintiffs posit that, while the Court in Twom-bly held that lawful parallel conduct alone cannot give rise to an inference of collusion, the Court said nothing about what inferences may arise when unlawful parallel conduct has occurred. So in Plaintiffs’ view, if Defendants have engaged in parallel conduct that is unlawful, the unlawfulness of the parallel conduct provides the further factual enhancement needed to support a plausible inference of an agreement.

To be more specific, though, Plaintiffs do not propose that the unlawful predicate acts making up the pattern of racketeering activity can serve double duty as the unlawful parallel conduct constituting the further factual enhancement — this would amount to bootstrapping of separate elements of the RICO cause of action. Instead, Plaintiffs theorize that if Defendants have engaged in unlawful parallel conduct in addition to the predicate acts underlying the pattern of racketeering activity, that additional unlawful parallel conduct allows us to infer a plausible agreement. So since Defendants all breached the Contract with Mexico, and Defendants’ breaches were unlawful, Plaintiffs urge, those breaches serve as a further factual enhancement to make the existence of an agreement plausible.

As an initial matter, Plaintiffs take the Twombly Court’s use of the term “lawful” out of context. In Twombly, the Court alternated between the terms “lawful” and “independent” because, in the context of that case, the terms were synonymous: if economic conduct is independent (meaning not collusive), it is lawful under § 1 of the Sherman Act. So the Court in Twombly was not commenting on the legality of the parallel conduct outside of the antitrust context when it employed the term “lawful.”

Second, Plaintiffs’ allegations of unlawful parallel conduct, at least under the facts of this case, are still just allegations of parallel conduct. Plaintiffs contend that, before any Defendants could commit the predicate acts of tricking customers into paying a tax they didn’t owe, Defendants first had to enter into and then secretly breach the Contract, for the Contract gave them the power to collect the Tax in the first place. Because, in Plaintiffs’ view, this conduct involved two unlawful acts — breaching the Contract and defrauding Exempt Travelers out of the monies purportedly collected for the Tax — Plaintiffs argue that the conduct provides the further factual enhancement needed to make the enterprise plausible.

But even if all Defendants breached the Contract, those breaches were parallel conduct just as much as the fraudulent ticketing practices were parallel conduct. The fact that each Defendant engaged in the same two-step sequence in committing fraud does not suggest a meeting of the minds any more than it suggests independent action, particularly because in order to keep the allegedly inappropriately collected tax, each Defendant necessarily first had to enter the Contract empowering it to collect the tax.

Plaintiffs’ theory does nothing more than characterize one single type of unlawful conduct — here, the fraudulent collection of the Tax — as two discrete unlawful acts by breaking it down into its component parts so that each component part can be reframed as a separate, unlawful parallel act. In fact, that is exactly how Plaintiffs argue this issue. Later in their brief, they assert as additional factual enhancements the allegations that Defendants breached the contracts in the same way, defrauded Plaintiffs and the class in the same way, provided information regarding the Tax to the Mexican government in the same way, and chose not to give improperly collected taxes to Mexico.

We have already found this tactic unavailing. In American Dental, a group of dentists alleged that dental insurance companies, by engaging in fraudulent claim-processing practices, had been withholding portions of reimbursements lawfully owed to the dentists for dental services rendered under managed-care plans. See 605 F.3d at 1286 & n.1. The dentists claimed that the insurance companies were liable under RICO for violating §§ 1962(c) and (d). See id. at 1287.

Applying Twombly, we held that the dentists failed to adequately plead a conspiratorial agreement under § 1962(d) because at most, they alleged that the insurance companies had engaged in parallel conduct. See id. at 1293-96. This was so even though the dentists had averred multiple discrete acts of allegedly parallel conduct. See id. at 1294. In particular, we noted that “the collective development and use of automated processes to manipulate [Current Dental Terminology] codes, ie. downeoding and bundling; the use of the same claims procedures, including the data that dentists are required to provide in submitting claims, the forms on which dentists must submit their data, and the coding that dentists use to submit their data; and Defendants’ participation in trade associations and private, jointly owned partnerships and corporations” do not show a meeting of the minds. Id.

Indeed, we found that, as in Twombly, there was an “ ‘obvious alternative explanation’ for each of the collective actions alleged that suggested] lawful, independent conduct.” Id. (citation omitted). Here, Plaintiffs’ “unlawful parallel conduct” theory fails for the same reason. And although Defendants’ alleged breaches of the Contract with Mexico may have been “unlawful” in the sense that they violated • an agreed-upon contract (and we do not condone such activity), we cannot say they were economically irrational so as to explain away parallel conduct — which brings us to Plaintiffs’ next argument.

2. Non-Competitive Conduct

Plaintiffs argue that the parallel conduct in Twombly did not support a plausible inference of an agreement because the conduct was “pro-competitive,” whereas here, Defendants’ conduct was allegedly “non-competitive” and therefore suggestive of collusion. Specifically, Plaintiffs aver that, by charging the Mexico Tourism Tax, Defendants could not have been pursuing any reasonable economic goal, for the only economically rational course of action was to either (a) not charge the Tax and thereby “undercut” the other airlines, or (b) report the other Defendants to the proper authorities. Defendants respond that it seems just as, if not more, likely that the economically rational move for any airline was to charge the Tax and thereby increase profits.

And there lies the heart of the problem: Plaintiffs have not explained why their economic model should be accepted as plausible. On a Rule 12(b)(6) motion to dismiss, the Court does not accept as true unwarranted deductions of fact. See Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1248 (11th Cir. 2005). In our Circuit, this general principle has special force when it comes to economic theories: the rule is that “a conclusory market model that is stated at a very high order of abstraction” cannot plausibly suggest an injury for purposes of RICO. Simpson v. Sanderson Farms, Inc., 744 F.3d 702, 705 (11th Cir. 2014).

And if it cannot plausibly suggest an injury, it cannot plausibly suggest an agreement, either. We already found as much in American Dental when we declined the plaintiffs’ invitation to infer that a conspiratorial agreement existed based on the plaintiffs’ unsubstantiated hypothesis that the defendants could not have accomplished their fraudulent schemes individually without having colluded with each other. See 605 F.3d at 1294 (citing Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1268 (11th Cir. 2009), abrogated on other grounds by Mohamad v. Palestinian Auth., 566 U.S. 449, 132 S.Ct. 1702, 182 L.Ed.2d 720 (2012); Twombly, 550 U.S. at 566, 127 S.Ct. 1955).

3. CANAERO

Plaintiffs cite Defendants’ memberships in CANAERO and the activities they conducted in connection with CA-NAERO as further factual enhancements making the existence of an agreement plausible. Of course, alone, membership in a trade organization like CANAERO does not make Defendants part of an enterprise. In American Dental, we held that mere participation in trade organizations does not render plausible the existence of a conspiratorial agreement. See 605 F.3d at 1295.

So Plaintiffs also assert that Defendants used CANAERO to further their fraudulent scheme. They base their theory on their allegations that Defendants all responded in the same way to three separate individuals who were either associated with CANAERO or interacted with it.

In this respect, the proposed amended complaint avers that CANAERO was both the entity with which and, in a figurative sense, the place at which, Defendants had substantive discussions about collecting the Mexico Tourism Tax. The allegations, construed in the light most favorable to Plaintiffs, show that before negotiations on the Contract began, certain Defendants met with Gabriel Ortega Alcocer (referred to in the briefing as “Alcocer”), the Managing Director of CANAERO, on numerous occasions to discuss the Tax. During the discussions, Defendants acknowledged that it would be in their collective best interest to be able to collect the Tax from passengers. Then, through the course of the negotiations leading up to the Contract, certain Defendants, Alcocer, and the Mexican government came to the mutual understanding that the Contract prohibited Defendants from assessing the Tax against Exempt Travelers.

After the Contract was executed, however, Alcocer had to discuss tax collection with the Defendants, both in regular group meetings and in private conversations, because he feared that Defendants were collecting the Tax from Exempt Travelers in disregard of the Contract. Through these meetings and discussions, Defendants learned what the other Defendants were doing with respect to the Tax and also found out that Alcocer had been asking all of them why they were improperly collecting the Tax. But despite Alcocer’s various inquiries regarding improper collection of the Tax, not one of the Defendants ever gave him a response.

Elizabeth Hernandez Saldivar (referred to in the briefing as “Hernandez”), an official of the National Institute of Migration (abbreviated “INM”) — the Mexican agency that collects the Tax — confronted Defendants about the same problem, but they refused to respond to her as well, even though Hernandez was able to find out from non-party airline Mesa Airways that both Mesa and Defendants were indeed charging all passengers the Tax, including Exempt Travelers.

A third individual, Maria Guadalupe Cecilia Romero Castillo (referred to in the briefing as “Romero”), the Commissioner of the INM from 2006 until 2010, confronted Defendants on multiple occasions, beginning in 2007. To her, however, Defendants allegedly not only admitted they were improperly collecting the tax, but they also promised to stop collecting it from Exempt Travelers. Yet they did not honor their alleged promises; instead, they continued their improper practices, and every year, Romero confronted them anew and received the same empty promises in response.

Plaintiffs argue that both the repeated silences in response to Alcocer and Hernandez and the repeated confessions to Romero are not simply instances of conscious parallel conduct but are instead instances of collusive conduct. In support, Plaintiffs point out that Defendants were in the same room on multiple occasions and that they each did the same thing in response to the same stimulus.

But that does not establish an agreement; rather, it shows nothing more than parallel conduct. Viewing the situation through the Twombly lens, it makes no difference whether Defendants have engaged in parallel conduct in the same room as each other or in the same economic market as each other, since it was economically rational for each Defendant to remain silent when confronted with its own wrongdoing — especially when, year after year, Defendants kept getting away with what they were doing.

Perhaps recognizing this vulnerability, Plaintiffs suggest another way of looking at their allegations regarding Defendants’ responses to Alcocer, Hernandez, and Romero. For conspiracy, a plaintiff can prove “an agreement on an overall objective” by using “circumstantial evidence showing that each defendant must necessarily have known that others were also conspiring to participate in the same enterprise through a pattern of racketeering activity.” Starrett, 55 F.3d at 1544 (internal quotation marks and citation omitted). Extrapolating conspiracy theory to the concept of an enterprise, Plaintiffs posit that an association-in-fact enterprise can “arise organically over time” in the same way that a conspiratorial agreement can.

But this argument does not appreciate the distinct structural elements of a RICO associated-in-fact enterprise and how that type of enterprise contrasts with a RICO conspiracy. It may be true that, just as “an agreement on an overall objective” can arise organically in the conspiracy context, associates of an associated-in-fact enterprise could organically reach an understanding of the “purpose” of the enterprise. An associated-in-fact enterprise, however, must have more to its structure than just a common purpose in accordance with which the associates act — relationships between the associates of the enterprise must exist as well. See Boyle, 556 U.S. at 946, 129 S.Ct. 2237.

As we have noted, Plaintiffs 'aver that Defendants’ alleged illicit side agreement formed the necessary relationships between them. But that brings us back to the problem that Plaintiffs have not alleged facts showing that an agreement among Defendants ever existed. The fact that Defendants acted in parallel simply does not show that they had relationships among each other with respect to the actual carrying out of what they were each doing individually. Though the concepts of conspiracy and enterprise certainly overlap, the concepts are distinct, and here, the complaint and proposed amended complaint lack allegations establishing the necessary relationships among Defendants.

k. The Contract

Next, Plaintiffs point to the Contract as a further factual enhancement that Plaintiffs believe makes their allegation of an agreement plausible. They first argue that, because each Defendant used the Contract to advance the fraudulent scheme, the Contract evidences Defendants’ illicit side agreement. But the terms of the Contract say nothing about an illicit enterprise or a fraudulent scheme. Nor do the terms provide a basis for Defendants to keep the improperly collected tax. Rather, the Contract shows only that Defendants had an agreement with CANAERO based on the Contract’s terms. In other words, the Contract in no way evidences a meeting of the minds beyond the meeting of the minds expressed in the Contract’s terms, which in and of themselves had nothing to do with the alleged enterprise.

Plaintiffs also make much of the fact that Defendants did not publicly disclose the Contract. But this is hardly suspect under Twombly, it is entirely rational for a business to keep the existence of a contract private. Consequently, the fact that not one Defendant disclosed the Contract is just another allegation of merely parallel conduct.

In sum, none of Plaintiffs’ “further factual enhancement[s]” — even in conjunction with Plaintiffs’ allegations of parallel conduct — suggests the plausible existence of an agreement that would create the necessary structure for a RICO enterprise. In the absence of any allegation plausibly suggesting a meeting of the minds, we must assume that the parallel conduct exhibited by Defendants is just as consistent with independent action (including independent action by actors who are conscious of what the other actors are doing) as it is with an agreement to commit a racketeering scheme. See Twombly, 550 U.S. at 554, 127 S.Ct. 1955 (“The inadequacy of showing parallel conduct or interdependence, without more, mirrors the ambiguity of the behavior: consistent with conspiracy, but just as much in line with a wide swath of rational and competitive business strategy unilaterally prompted by common perceptions of the market.” (citation omitted)). In other words, while it is possible that Defendants agreed to commit a racketeering scheme, it is also possible that all Defendants independently decided it was financially worth it to breach the terms of the Contract, assess the Mexico Tourism Tax against Exempt Travelers, and keep the proceeds for themselves unless a passenger properly requested a refund of what he or she improperly paid. Under Twom-bly and Iqbal, however, only plausible— and not merely possible — claims survive a Rule 12(b)(6) motion to dismiss.

In short, Plaintiffs conclusorily allege the existence of an agreement, whether express or tacit. But they offer no allegations suggesting the existence of an express agreement. And while the allegations in support of a tacit agreement are somewhat more developed, they do not paint a plausible picture of an agreement, let alone an enterprise. The district court therefore properly dismissed Plaintiffs’ claims with prejudice. And the proposed amended complaint did not dictate a different outcome.

IV.

Plaintiffs argue that the district court erred in denying their request for leave to amend. The district court denied their request because the proposed amended complaint was futile. Although we review for abuse of discretion a district court’s denial of leave to amend, we review de novo a district court’s finding that a proposed amendment would be futile. See Coventry First, LLC v. McCarty, 605 F.3d 865, 869 (11th Cir. 2010).

As we have described, the proposed amended complaint was indeed futile. Plaintiffs point out that, in this Circuit, a plaintiff usually is allowed at least one chance to amend before a case is dismissed with prejudice. Here, Plaintiffs took advantage of one chance to amend by filing the futile proposed amended complaint.

So Plaintiffs assert that, although they filed the amended complaint after oral argument and with the help of the comments the district court made during oral argument, Plaintiffs never had a chance to propose an amendment after the court issued its order of dismissal. As a result, Plaintiffs argue, they did “not know in advance of the district court’s order ... the particular reasons the district court would provide concerning its decision on the motions to dismiss.”

Nothing requires that a plaintiffs presumptive one chance to amend be given after an order of dismissal has been entered, as opposed to before any such order. And in any case, even if a post-dismissal opportunity were required, here, after the district court entered its order of dismissal, Plaintiffs did not request leave to amend to address the concerns in the order, even though Plaintiffs could have done so under Rule 59(e) or Rule 60(b)(6). See United States ex rel. Atkins v. McInteer, 470 F.3d 1350, 1361 n.22 (11th Cir. 2006). Nor was the district court in its order of dismissal under an obligation to sua sponte give Plaintiffs leave to file a second amended complaint. See Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002) (en banc).

Perhaps Plaintiffs could argue their way out of futility if, on appeal, they explained how they could cure the faults in the proposed amended complaint. See DiMaio v. Democratic Nat’l Comm., 520 F.3d 1299, 1303 (11th Cir. 2008) (“Nor has DiMaio indicated, even on appeal to this Court, what precisely his amended complaint would reveal”). But Plaintiffs’ briefing and oral argument did not indicate how they could better plead an enterprise, so we cannot find error in the district court’s dismissal with prejudice on that basis.

Finally, Plaintiffs attempt to save their case by invoking Southern District of Georgia Local Rule 9.1, which provides that, if a RICO claim fails to “specifically state each alleged violation,” then, “upon motion duly made by any party to the proceeding, such pleading shall be dismissed without prejudice by the Court.” But Local Rule 9.1 does not say that a pleading shall be dismissed without prejudice if the RICO claim fails to state a claim for any reason — the Rule applies only if the RICO claim fails to “specifically state each alleged violation.” Here, Plaintiffs’ RICO claims were dismissed for many reasons, including reasons having nothing to do with a lack of specificity — such as failure to plead the plausible existence of an enterprise. So we find no error under the local rules.

y.

As alleged by Plaintiffs, Defendants’ conduct regarding the Mexico Tourism Tax is very troubling. But the pleadings in this case are simply insufficient to allow RICO to serve as a vehicle for addressing that conduct. Dismissal was therefore warranted.

AFFIRMED.

      .Defendants asserted at oral argument that Plaintiffs have no conceivable private civil remedy other than RICO because the Department of Transportation exclusively regulates the disclosure of charges on airline tickets. We impart no view on the availability of other remedies to Plaintiffs other than to note that, in Ray v. Spirit Airlines, Inc., 767 F.3d 1220 (11th Cir. 2014), we held that, although the Airline Deregulation Act of 1978 ("ADA”) expressly preempted state laws, neither the Federal Aviation Act nor the ADA precluded RICO claims based on allegedly fraudulent airfares.

      . The allegations in this section are taken from Plaintiffs' original complaint, unless otherwise noted. Since we review the district court's order granting dismissal, we accept the allegations as true and draw all reasonable inferences in Plaintiffs' favor. See Strickland v. Alexander, 772 F.3d 876, 882 (11th Cir. 2014).

      . Plaintiffs explain in their proposed amended complaint that, by taking on the obligation to collect the Mexico Tourism Tax on behalf of Mexico, the airlines made their passengers' trips "easier and hassle-free.”

      . Plaintiffs allege in their proposed amended complaint that though Defendants technically had refund procedures, the refund policies were so byzantine that they were "illusory,” and intentionally so, for they allowed the Defendants to keep the improperly collected taxes in their own coffers.

      . Defendants had asserted separate grounds for dismissal, including other arguments for why plaintiffs failed to state RICO claims, as well as arguments raising issues such as failure to join a party and improper venue. For these arguments, the court either summarily found them meritless or simply declined to consider them since it was dismissing the case, anyway.

      . While an "enterprise” and a "conspiracy” are distinct RICO elements (and the latter only an element in a conspiracy claim), the elements are analogous insofar as an enterprise may be premised on the existence of an agreement, and conspiracy requires an agreement. To that extent, then, the Twombly parallel-conduct pleading standard, which was developed for the "agreement” element of a Sherman Act § 1 conspiracy claim, applies equally to both RICO enterprise and RICO conspiracy allegations.

      . Although Plaintiffs present these factual enhancements discretely, Plaintiffs nevertheless object to Defendants' method of analyzing each discrete enhancement independently of the other enhancements. Of course, the Court may consider these enhancements holistically in its final assessment, but we must first reject any enhancement that is not cognizable under the law.

      . One last note while we're on the topic of unlawful conduct: Plaintiffs find it suspect that Defendants have not given an explanation for their behavior. Yet under Rule 12(b)(6), Defendants must explain only why Plaintiffs’ allegations are not plausible; Defendants are not required to affirmatively identify and justify what they actually did. What’s more, on a Rule 12(b)(6) motion, Defendants cannot proffer additional factual allegations without implying that their motion should be converted into a motion for summary judgment. Fed. R. Civ. P. 12(d).

      . Plaintiffs make arguments about the conduct of certain Defendants in litigation that took place in the Ninth Circuit, but we find those arguments equally unpersuasive, since the relevant conduct was, at most, again simply parallel conduct.