author: EDITH BROWN CLEMENT, Circuit Judge:

text:
    Angela ORR, heir to Ahmede Jabbar Bradley; Monteria Brown, heir to Ahmede Jabbar Bradley; Tashika Wright, as next friend of minor Z.B.; Neachole Veal, as next friend of minor Z.B., Plaintiffs-Appellees v. Officer Eric COPELAND, Defendant-Appellant
    No. 16-50023
    United States Court of Appeals, Fifth Circuit.
    Filed December 22, 2016

      Bobby R. Taylor, Law Offices of Bobby R. Taylor, P.C., Austin, TX, for Plaintiffs-Appellees.
    Christopher Coppola, Attorney, City of Austin, Law Department, Austin, TX,'for Defendant-Appellant.
    Before CLEMENT, PRADO, and OWEN,, Circuit Judges. .
   EDITH BROWN CLEMENT, Circuit Judge:

In this qualified immunity case, the question on appeal is whether the district court erred in holding that—in the absence of video evidence—eyewitness testimony should not be considered for summary judgment purposes until subject to cross examination. Because we conclude that it did, we REVERSE.

I.

On April 5, 2012, at approximately 6:30 p.m., pólice officer Eric Copeland of the Austin Police Department stationed his patrol car near-an intersection ■ in a high crime neighborhood. He parked his car in a way that blocked his view of the street, so he could hear but not see oncoming traffic. He was listening for violations of the city’s amplified noise ordinance. ■ He admits that he had a secondary motivation for this: in Copeland’s experience, individuals who blared loud music while driving often had illegal drugs concealed in their vehicles.

After about ten minutes, Copeland heard a car blasting loud music approaching and decided to pull it over. He pulled out behind the vehicle—a black Toyota Camry with tinted windows—when it passed and turned on his flashing lights and sirens. By doing so, he also automatically activated the video and audio recording devices on his dashboard and the audio recording device on his person. The vehicle he was following did not pull over for a couple of blocks but ultimately came to a stop in a gas station parking lot.

Copéland exited his vehicle and approached the Camry on foot. The driver of the car, Ahmede Bradley, was a black male in his mid-thirties. Bradley rolled down the window when' Copeland approached but did not speak or look at the officer directly. Instead, he looked straight-ahead and nervously shuffled some papers in his hands as he continued to smoke.

Copeland noticed several things that suggested to him that Bradley might be a narcotics trafficker. First, Bradley had some white .residue smeared on the left side of his mouth that Copeland thought looked like crack/cocaine powder. Second, there was a messenger bag sitting in the back seat with plastic baggies sticking out of one of the pockets. Copeland had frequently seen similar baggies used to package and distribute drugs. Third, despite the presence of an unusual number of air fresheners and the smoke from the cigar Bradley was smoking, Copeland co.uld still “smell[] the distinct odor of marijuana.”

After a brief conversation about the odor and his criminal history, Copeland asked Bradley to step out of the vehicle. Bradley refused, keeping his door locked and rolling up his window. Although Copeland ordered Bradley to stop, Bradley drove off at high speed. Believing that Bradley was involved in serious drug crimes, Copeland reentered his vehicle, notified dispatch that the suspect was fleeing, and gave chase.

The subsequent pursuit lasted less than a minute. Bradley drove erratically, crossing a double yellow line at one point and twice turning left in front of oncoming traffic. He stopped in front of a residence, and as Copeland pulled up behind him, Bradley exited the vehicle and fled on foot. Copeland followed, ordering Bradley to “get down.”

The foot chase and physical altercation that followed lasted two minutes and thirty-three seconds, ending when Copeland fired three shots into Bradley’s chest, killing him. The parties’ accounts of what transpired diverge considerably. Although Copeland’s dashcam and microphone continued to record as the events unfolded, the majority of the fight took place off-camera.

A. Copeland’s Version of the Altercation

According to Copeland, Bradley darted for and attempted to scale a “short 3 or 4 foot chain link fence, with chicken-wire fencing strung along the top,” but was unable to clear it. Copeland was able to grab Bradley and ordered him to “[g]et down on the fucking ground.” Bradley said he would comply, but instead grabbed Copeland by the bicep and attempted to shove him to the ground. As they grappled with each other, Copeland told Bradley to “get back,” warning “I’m going to kill you.” ■

As the pair raced across the street (and in front of the camera), Copeland attempted to taser Bradley. Bradley tripped as a result, but did not convulse, leading the officer to conclude that the taser prongs had gotten stuck in the suspect’s shirt. Copeland kicked Bradley, but was unable to stop him from getting to his feet and continuing to flee. Thinking “it was best to take the Taser out of the equation so that [Bradley] could not use it on [him],” Copeland discarded the weapon as he pm-sued the suspect.

As Bradley attempted to climb another fence, Copeland caught up, grabbed him from behind, and forced Bradley to ■ the ground on all-fours using a leg-sweep maneuver. Copeland repeatedly ordered Bradley to put his arms behind his back, but the suspect ignored him. Copeland tried to force Bradley’s arms out from under him and “delivered several (3-5) hammer strikes to the side of Bradley’s head and to his torso” in hopes that “he would reach up to block the strikes,” enabling Copeland to force Bradley to the ground and hold him there until backup arrived. Instead, Bradley fought back, and being much larger than Copeland, quickly overcame his opponent. Feeling exhausted and concerned for his life, Copeland took one hand off of Bradley to radio for backup to “step it up.” As he did this, Bradley was able to stand up and get the officer into a headlock, forcing him onto the ground on his hands and knees. As they wrestled, Copeland shouted “I’m going to fucking kill you” as a way of warning Bradley that “if he did not stop assaulting [him], [Copeland] would eventually resort to deadly force to end the threat to [his] life.”

In response, Bradley grabbed the cord that connected the radio on Copeland’s belt to the microphone on his shoulder and pulled it across Copeland’s neck, choking him. Copeland “grabbed with one hand underneath the cord and tried to pull it off of [his] neck,” causing the microphone to detach from the radio cord and preventing Bradley from cutting off his airway. Bradley then shifted tactics and attempted to grab Copeland’s firearm, successfully “defeat[ing] one or two of the safety mechanisms on the holster designed to stop someone from simply snatching the weapon out of the holster.” Copeland placed his hand on the butt of the gun to block him and yelled “Don’t do it!” Bradley responded ‘Til let go if you stop.”

In an effort to get Bradley’s hand off of his weapon, Copeland “fell with all of [his] body weight onto [his] right hip, where the holster was.” The fall broke Bradley’s contact with the pistol and enabled Copeland to kick Bradley away. Bradley “did not use this opportunity to run away,” but instead began to í-ise and come back towards Copeland. Exhausted and fearing for his life, Copeland stood up, drew his weapon, and fired three shots into Bradley’s chest.

B. Brenda Miller’s 911 Call

Brenda Miller lived nearby and witnessed the shooting. After hearing police sirens in the neighborhood, she called 911 to report seeing a “poor police officer” wrestling with a young man in her neighbor’s yard. Gunshots are audible on the audio recording shortly after she connected with dispatch. When asked to describe exactly what happened, she stated, “I looked out my door, and this police officer was tangling with this guy. And all I know is that he had the police officer down on the ground and he looked like he was trying to take his gun and the officer stood up and shot him.”

C. Zachary Rife’s 911 Call and Deposition

Another neighbor, Zachary Rife, also witnessed the shooting. He called 911 to report seeing a “police officer in a fight with a guy across the street.” He was concerned for the officer’s safety, stating that “[h]e looks like he’s about to be hurt, he looks like ■ he’s about to be smothered .... He needs help.” A few moments later, Rife exclaimed that the black male the officer was fighting with was “about to pull [the officer’s] gun off of him!” The combatants began “wrestling” shortly after that, and the encounter ended when “the cop shot him” (i.e. the male who was wrestling with the police officer). Gunshots are audible on that recording as well.

In' a later deposition, Rife elaborated, stating that “Bradley had had an officer in a headlock” and that “they were kind of doing like 360s and fighting with their hands.” He stated that at' the time he “believe[d] that Officer Copeland’s life or safety was in danger,” describing the struggle as a “fight to the death.” He also stated that Bradley “at the very end .;. went for the gun a couple times, and the cop shot him.”

D. The Heirs’ Version of the Altercation

Plaintiffs are Bradley’s family members and heirs. None of them personally witnessed the altercation. Nevertheless, they dispute Copeland’s version of facts. They claim that after Copeland asked Bradley to step out of his vehicle, Bradley bolted “in fear of Copeland ... knowing that, in two separate similar situations, Austin police officers had recently killed two other Black male drivers using similar minor traffic offenses as justifications for confronting each of them.” They claim that once “Bradley observed Copeland following [he] stopped his vehicle and immediately 'exited the car ... to avoid being assaulted and/or killed by Copeland.” Within twelve seconds of leaving the car, Bradley heard Copeland threaten to kill him. Copeland then ordered Bradley to get down on the ground. The suspect complied, exposing himself to the officer’s threats and physical assaults. “As Bradley laid himself on the ground, Copeland never attempted to handcuff or restrain him but kept striking and kicking him while telling him to stop resisting,” even though at the time “Bradley was not resisting and was attempting to comply with Copeland’s every demand.” Eventually, the abuse was too much, and Bradley “broke away and ran into the street, in view of the car camera,” at which point Copeland “used his taser, as a weapon, to strike Bradley across the head and face at least two times as Bradley fell to the street.” More physical abuse and threats followed as Copeland chased. Bradley into a neighboring yard.

Bradley managed to get Copeland into a headlock in an effort to restrain him, but “never squeezed Copeland’s head or body or hit, or caused any injuries or pain to Defendant Copeland.” He even attempted to barter a truce, telling Copeland “I’ll let go if you stop. I promise.” The headlock allegedly lasted two to three seconds, during which time “Bradley never had contact with, possession of or pulled on Defendant Copeland’s radio cord and never reached for or touched Defendant Copeland’s gun, radio, radio coil, holster, gun belt, or any other weapon possessed by Defendant.” After Copeland broke free of Bradley’s restraint, “Plaintiff laid flat on his back on the ground, hands open” and “did not resist or fight [but] allowed Defendant to restrain him on the ground.” With Bradley in this position, “with his buttocks and back fiat on the ground, Defendant Copeland stood straight up and fired three bullets directly into the front body and left side of 'Plaintiff Bradley.”

E. Procedural History

Copeland moved for summary judgment on qualified immunity grounds. The district court denied the motion, finding that in the absence of video evidence, the third-party, eyewitness accounts could not be credited until subject to cross examination. Copeland then timely appealed.

II.

“Ordinarily, we do not have jurisdiction to review a denial of a summary judgment motion because such a decision is not final.... ” Gobert v. Caldwell, 463 F.3d 339, 344 (5th Cir. 2006) (quoting Palmer v. Johnson, 193 F.3d 346, 350 (5th Cir. 1999)). But under the collateral order doctrine, a district court’s “order denying qualified immunity, to the extent that it turns on an ‘issue of law’ is immediately appealable.” Behrens v. Pelletier, 516 U.S. 299, 811, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996) (citing Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). In these circumstances, this court reviews such interlocutory orders de novo.

III.

Under Federal Rule of Civil Procedure 56, summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” When making this determination, a court should review the record as a whole but “must disregard all evidence favorable to the moving party that the jury is not required to believe,” Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 874 (5th Cir. 2000), and. instead only “give credence to the evidence favoring the nonmovant [and] that evidence supporting the moving party that is uncontradicted and unimpeached, at least. to the extent that that evidence comes from disinterested witnesses.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (internal quotation marks omitted).

Typically, the movant bears the initial burden of demonstrating the absence of a material fact issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). But “[a] good-faith assertion of qualified immunity alters the usual summary judgment burden of proof, shifting it to the plaintiff to show that the defense is not available.” Cass v. City of Abilene, 814 F.3d 721, 728 (5th Cir. 2016) (internal quotation marks omitted). To do so, a plaintiff must “identify specific evidence in the summary judgment record demonstrating that there is a material fact issue concerning the essential elements of its case.for which it will bear the burden of proof at trial.” Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994). “Conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation” are all insufficient to overcome immunity. See Reyes v. Hornbeck Offshore Servs., L.L.C., 383 Fed.Appx. 442, 443-44 (5th Cir. 2010) (quoting TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002)).

In denying Copeland’s motion for summary judgment, the district court disregarded the testimony of Copeland and two eyewitnesses, finding that because there was “no video evidence of the actual shooting” the “testimony of Copeland, the eyewitness, and the 9-1-1 caller ... should not be accepted until subjected to cross examination.” This finding is erroneous for two reasons.

First, the district court’s decision flips Supreme Cornet precedent on its head. In Scott v. Harris, 550 U.S. 372, 375, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), a police officer terminated a high-speed car chase by intentionally bumping a fleeing suspect’s rear bumper, causing the suspect to lose control of his vehicle and crash, rendering him a quadriplegic. The suspect brought an excessive force claim under § 1983, and the officer asserted qualified immunity. Id. at 375-76, 127 S.Ct. 1769. At the summary judgment stage, the two parties presented radically different accounts of the chase. The police officer claimed that the suspect was driving so recklessly during the pursuit that it endangered human life, while the suspect “contend[ed] that he used his turn signals when passing or turning, and maintained control over his vehicle” the entire time. Harris v. Coweta Cty., No. CIVA 3:01CV148WBH, 2003 WL 25419527, at *1 (N.D. Ga. Sept. 25, 2003). A dashcam recorded the entire car chase, and confirmed the officer’s testimony. The video showed the suspect’s vehicle:

rac[e] down narrow, two-lane roads ⅛ the dead of night at speeds that are shockingly fast[;] ... swerve around more than a dozen other cars, cross the double-yellow line, and force cars traveling in both directions to their respective shoulders[;] ... run multiple red lights and travel for considerable periods of time in the occasional center left-turn-only lane, chased by numerous police cars forced to engage in the same hazardous maneuvers just to keep up.

Scott, 550 U.S. at 379-80, 127 S.Ct. 1769. Nevertheless, the district court credited the suspect’s testimony. Harris, 2003 WL 25419527, at *5. Finding that the conflicting evidence created a genuine issue of material fact, the district court denied the officer’s motion. Id. The Eleventh Circuit affirmed. Harris v. Coweta Cty., 406 F.3d 1307 (11th Cir. 2005). The Supreme Court, however, reversed, holding that “[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott, 550 U.S. at 380, 127 S.Ct. 1769.

The decision below inverses that holding. While Scott empowers a district court to disregard testimony that is at odds with video evidence, the holding below would prevent summary judgment from being granted in the absence of video evidence, effectively stripping all officers of qualified immunity' if their actions were not recorded. This fundamentally flips'the burden back onto the government official. Cf. Kovacic v. Villarreal, 628 F.3d 209, 214 (5th Cir. 2010) (“[O]nce a defendant invokes qualified immunity, the burden shifts to the plaintiff to’ show that the defendant is not entitled to qualified immunity.”).

Second, the district court was not permitted to disregard the testimony of the two eyewitnesses. There is no evidence to suggest that the pair was biased, and the district court specifically found that the heirs “[did] not offer any evidence to contradict the eyewitnesses’ statements.” Because their testimony was “uncontradicted and unimpeached,” the district court was required to give it credence. Failure to do so amounted to an inappropriate “credibility determination[ ].” See Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008).

IV.

We now turn to the question of whether Copeland was entitled’ to qualified immunity, applying the'correct evidentiary standard for' summary judgment articulated above. Giving full height to the undisputed eyewitness testimony, we hold that the district court erred in denying Copeland’s motion' for' summary judgment on qualified immunity grounds.

Section 1983 enables persons who have been “deprived] of any rights, privileges, or. immunities secured by the Constitution and laws” of the United States by the actions of a person or entity operating under color of state law to seek redress from those state actors responsible for the, deprivations. 42 U.S.C. § 1983. But qualified immunity insulates those government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Courts use a two-prong analysis to determine whether a defendant is entitled to qualified immunity in a given ease. The court must decide both whether the plaintiff has alleged a violation of a constitutional right and whether that right was “clearly established” at the time of the incident. Freeman v. Gore, 483 F.3d 404, 410 (5th Cir. 2007). In Pearson v. Callahan, the Supreme Court determined that courts may tackle these questions in any order. 555 U.S. 223, 227, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).

The heirs assert three separate § 1983 claims: (1) that Copeland violated Bradley’s Fourth Amendment right to be free from unreasonable seizures by initiating a traffic stop and asking Bradley to exit his vehicle without probable cause; (2) that Bradley used excessive force in his effort to detain Bradley; and (3) that Copeland used unlawful lethal force when he shot Bradley three times in the chest. Because the heirs did not raise the false arrest/illegal search claim in their complaint, their first argument is not properly before us and is waived. See LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 387 (5th Cir. 2007). Their remaining two claims will each be discussed in turn.

A. Non-Lethal Excessive Force

The heirs claim that Copeland used non-lethal, excessive force on Bradley when Copeland: (1) “forcefully kick[ed] Bradley after he fell to the street;” (2) “[struck] Bradley about the head and face, with his taser in his hand;” (3) “us[ed] the taser as a weapon;” and (4) “use[d] his fist and feet to deliver numerous and continual punches, strikes, and hammer hits into Bradley’s stomach, face and torso.” To prevail on an excessive force claim, a plaintiff must show “(1) an injury (2) which resulted directly and only from the use of force that was clearly excessive, and (3) the exeessiveness of which was clearly unreasonable.” Ontiveros v. City of Rosenberg, 564 F.3d 379, 382 (5th Cir. 2009). The inquiries as to whether police conduct was clearly excessive and clearly unreasonable often are intertwined. Poole v. City of Shreveport, 691 F.3d 624, 628 (5th Cir. 2012). Copeland concedes that he injured Bradley during the altercation, but maintains that his actions were neither clearly excessive nor clearly unreasonable. We agree.

“The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). “The objective-reasonableness inquiry is fact-intensive, requiring consideration of circumstances such as the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Galvan v. City of San Antonio, 435 Fed.Appx. 309, 310-11 (5th Cir. 2010) (per curiam) (internal quotation marks omitted). “Officers may consider a suspect’s refusal to comply with instructions ... in assessing whether physical force is needed to effectuate the suspect’s compliance.” Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009). When dealing with an uncooperative suspect, police act within the scope of objective reasonableness when they “react[ ] with measured and ascending responses.” Galvan, 435 Fed.Appx. at 311.

It is undisputed that Bradley refused to comply with Copeland’s instructions at the time he drove away. While there is a factual dispúte as to whether Bradley’s vehicle smelled like marijuana, the heirs concede that Bradley had a white residue on his face at the time of the traffic stop and that Copeland observed drug paraphernalia— plastic baggies—hidden in the backseat of Bradley’s car. The heirs concede—and the video evidence confirms—that rather than step out of his vehicle as requested, Bradley chose to flee, driving erratically in an effort to escape the pursuing officer. When Copeland caught up to the suspect, Bradley took off on foot. By this point, Copeland already had reason to suspect that Bradley was involved in serious drug crimes. As such, some degree of non-lethal force was reasonable to counter the suspect’s efforts to flee. Galvan, 435 Fed. Appx. at 311.

Viewing the evidence in the light most favorable to Bradley, Copeland’s conduct throughout the altercation consisted of the “measured and ascending responses” called for under this court’s case law. Id. It is undisputed that Copeland repeatedly commanded Bradley to get down. While the heirs claim, without proffering any evidence to support their allegations, that Bradley initially “laid himself on the ground” in an effort to comply with Copeland’s instructions, all of the actions complained of by the heirs occurred later, once Bradley and Copeland had crossed back within the frame of the dashcam or were observed by eyewitnesses, and it is clear that Bradley was resisting the officer’s commands.

As such, this case is similar to Carroll v. Ellington, 800 F.3d 154, 176 (5th Cir. 2015), where the court found that several officers acted reasonably when they used escalating force to try and restrain a suspect actively resisting arrest. Specifically, the court upheld a holding of qualified immunity in a case where officers (a) repeatedly struck the suspect on the leg with a hickory stick, (b) then kicked him in the stomach, (c) tackled him, (d) struck him with their fists, and (e) finally tasered him several times. Id.; see also Poole, 691 F.3d at 629 (finding officers’ conduct was not clearly excessive or objectively unreasonable when they responded to suspect’s refusal to obey commands by first attempting to physically restrain him by the arm and then resorting to a taser when that failed). Here, after Bradley ignored Copeland’s verbal commands and initial efforts to restrain him, Copeland deployed , his taser. When the taser malfunctioned, he resorted to physical force—kicks, punches, and hammer strikes—to attempt to take down the suspect. Considering the totality of the circumstances including the size differential of the combatant and the duration of the altercation, which one eyewitness refereed to as a “fight to the death,” Copeland’s conduct prior to the shooting was neither excessive nor unreasonable.

B. Lethal Excessive Force

The heirs’ deadly excessive force claim is similarly unavailing. “An officer’s use of deadly force is presumptively reasonable when the officer has reason to believe that the suspect poses a threat of serious harm to the officer or to others.” Ontiveros, 564 F.3d at 382. The threat to the officer’s life—and therefore the reasonableness of the force used—“must be judged from the perspective of a reasonable officer on the scene, rather than with, the 20/20 vision of hindsight.” Graham, 490 U.S. at 396-97, 109 S.Ct. 1865. As such, an officer’s “underlying intent or motivation” at the time of the incident is irrelevant. Id.

Here, undisputed evidence demonstrates that Copeland used deadly force to protect himself. By the time Copeland drew and fired his weapon, Bradley—who was physically larger and stronger than Copeland-had, already disobeyed verbal orders, put Copeland in a headlock, wrestled Copeland to the ground, and repeatedly reached for Copeland’s firearm. One eyewitness described the altercation, as a “fight to the death.” Under the totality of the circumstances, a reasonable officer could have believed that his life was in danger.

The heirs claim that they have proffered enough evidence to raise genuine issues of material fact and should survive summary judgment. Specifically, they claim that the testimonies' of Copeland’s firearm expert Greg Karim and crime scene reconstruction expert Janice Johnson call into question the accuracy of the reenactment photos. They also claim that the lack of DNA evidence on Copeland’s radio wire challenges Copeland’s story that Bradley attempted to choke him with the chord. But the heirs have failed to provide any evidence challenging the principle dispositive “fact material to whether [Copeland] was justified in using deadly force”: that Bradley repeatedly reached for the officer’s firearm. Manis v. Lawson, 585 F.3d 839, 844 (6th Cir. 2009). This court has repeatedly found that it is objectively reasonable for an officer to use deadly force even if he merely believes—albeit reasonably—that the suspect is reaching for a weapon. See, e.g., id. at 844-45 (collecting cases and finding that officer’s use of deadly force was not excessive when undisputed evidence showed that suspect “in defiance of the officers’ contrary orders, reached under the seat of his vehicle and appeared to retrieve an object that [the officer] reasonably believed to be a weapon”); Ontiveros, 564 F.3d at 385 (finding that officer acted reasonably when he shot suspect who had refused to obey orders and reached into his boot for something); Colston v. Barnhart, 130 F.3d 96, 99-100 (5th Cir. 1997) (finding it objectively reasonable for an officer to believe unarmed suspect posed a threat of serious bodily harm when suspect walked towards shotgun after assaulting another officer); see also Johnson v. City of Phila., 837 F.3d 343, 350 (3d Cir. 2016) (“We begin with a proposition that can scarcely be disputed: once [the suspect] began reaching for [the officer’s] gun, [the officer] was justified in using deadly force to defend himself.”); Jacobs v. City of Shreveport, No. 04-2492, 2006 WL 3247095, at *11 (W.D. La. Nov. 8, 2006) (finding that officer’s actions were objectively reasonable when he used lethal force after suspect “reached for [the officer’s] gun several times” during a physical altercation). Copeland, Brenda Miller, and Zachary Rife all stated that prior to the shooting, Bradley attempted to grab Copeland’s pistol. Absent evidence to the contrary, the court is required to accept this testimony as true. See Scott, 550 U.S. at 380, 127 S.Ct. 1769 (“When opposing parties tell two different stories, one of which is blatantly contradicted by the record .... a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”).. The heirs have thus failed to satisfy their burden of establishing that Copeland’s use of lethal force was unreasonable. See Kovacic, 628 F.3d at 214 (finding that defendant officers are entitled to qualified immunity when plaintiffs fail to present evidence to contradict the officers’ affidavits with respect to dispositive factual matters).

Because the heirs have failed to demonstrate a constitutional violation, we hold that they have failed to satisfy their burden of showing that Copeland is not entitled to qualified immunity.

V.

For the forgoing reasons, we REt VERSE and hold that Copeland is entitled to qualified immunity^


source: Caselaw Access Project

author: CARL E. STEWART, Chief Judge:

license: Public Domain

text:
    ENABLE MISSISSIPPI RIVER TRANSMISSION, L.L.C., Plaintiff-Appellant v. NADEL & GUSSMAN, L.L.C.; Nadel & Gussman Ruston, L.L.C., Defendants-Appellees
    No. 16-30269
    United States Court of Appeals, Fifth Circuit.
    Filed December 23, 2016

      Joseph L. Shea, Jr., Bradley, Murchison, Kelly & Shea, L.L.C., Shreveport, LA, for Plaintiff-Appellant.
    George Hardy Robinson, Jr., Esq., Brit-tan Jackson Bush, Liskow & Lewis, Lafayette, LA, Scott Allen O’Connor, Gordon, Arata, MeCollam, Duplantis & Eagan, L.L.C., New Orleans, LA, for Defendants-Appellees.
    Before STEWART, Chief Judge, and SMITH and DENNIS, Circuit Judges.
   CARL E. STEWART, Chief Judge:

Plaintiff-Appellant Enable Mississippi River Transmission, LLC (“Enable”), which operates a federally regulated natural gas storage facility, sued, alleging that a natural gas well operated by Defendants-Appellees Nadel & Gussman, LLC and Nadel & Gussman Ruston, LLC (collectively “Nadel”) was producing gas from this storage facility. The district court dismissed for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). After appealing, Enable filed a motion to disqualify opposing counsel. We AFFIRM the dismissal and DENY, as moot, the motion to disqualify.

I. FACTUAL AND PROCEDURAL HISTORY

Enable owns the West Unionville Gas Storage Facility (“West Unionville”) in Lincoln Parish, Louisiana. Nadel operates the Sanderlin No. 1 Well, which produces natural gas from the Vaughn Sand geological formation near West Unionville.

West Unionville is owned and operated by Enable pursuant to a Certificate of Public Convenience and Necessity issued by the Federal Energy Regulatory Commission (“FERC”) as authorized by the Natural Gas Act (“NGA”). West Union-ville is part of Enable’s interstate natural gas pipeline system. Enable transports gas and injects it underground, where it can be withdrawn and shipped through its pipelines as needed. In a gas storage facility some of the gas injected underground is non-effective, which means that it cannot be withdrawn through normal means. The present suit arose when Enable discovered that West Unionville had an unusually large amount of non-effective gas.

Enable conducted a study and concluded that the gas was leaking from West Union-ville through a passageway in the geologic formation. After examining the publicly available production data of nearby natural gas wells, Enable found a correlation between the times it was injecting natural gas into its storage facility and increased production at those wells. Enable alleges in these proceedings that Nadel’s Sander-lin No. 1 Well is producing gas from West Unionville.

Enable brought this suit against Nadel in federal district court, seeking a declaratory judgment pursuant to 28 U.S.C. § 2201 to determine the ownership of the natural gas in West Unionville. Additionally, Enable sought an accounting of the gas produced from the Sanderlin No. 1 Well, disgorgement of the profits enjoyed by Nadel for producing storage gas, an injunction requiring Nadel to plug the Sand-erlin No. 1 well and any other wells producing storage gas, and attorney’s fees.

Nadel moved to dismiss for lack of subject matter jurisdiction and failure to state a claim under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), respectively. After concluding that Enable was in essence asserting a state law conversion claim, the district court granted Nadel’s motion to dismiss for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). In so doing, the district court relied on a decision by the Ninth Circuit that presented similar facts. See Williston Basin Interstate Pipeline Co. v. An Exclusive Gas Storage Leasehold & Easement in the Cloverly Subterranean Geological Formation, 524 F.3d 1090 (9th Cir. 2008). The district court found that Nadel was not subject to regulation by the NGA and that federal jurisdiction would interfere with the federal-state regulatory balance that Congress established between the transportation and sale of natural gas and the production of natural gas. Enable, appealed.

While this case was pending on appeal, Enable filed a motion to disqualify Nadel’s courisel on grounds that Enable, under its previous name, was represented when forming West Unionville in 1968 by current and former members of the same law firm that now represents' Nadel.

II. ANALYSIS

1. Subject Matter Jurisdiction

This court “review[s] de novo a district court’s ruling on a motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1).” In re Eckstein Marine Serv., L.L.C, 672 F.3d 310, 314 (5th Cir. 2012). “The party asserting jurisdiction carries the burden of proof.” Id. “A court can find that subject matter jurisdiction is lacking based on ‘(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.’ ” Ballew v. Continental Airlines, Inc., 668 F.3d 777, 781 (5th Cir. 2012) (quoting Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001)).

Enable claims that this court has original jurisdiction to hear .this case under 28 U.S.C. § 1331 as well as under 15 U.S.C § 717u. Federal courts have jurisdiction in “all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Additionally, the NGA provides that federal courts “shall have exclusive jurisdiction of violations of this chapter or the rules, regulations, and orders thereunder, and of all suits in equity and actions at law brought to enforce any liability or duty created by, or to enjoin any violation of, this chapter or any rule, regulation, or order thereunder,” 15 U.S.C.. § 717u. Although section 717u is not expressly limited to cases arising under the NGA, this limitation is implied. Pan Am. Petroleum Corp. v. Superior Court of Del., 366 U.S. 656, 665 n.2, 81 S.Ct. 1303, 6 L.Ed.2d 584 (1961).

There are two types of cases that fit this “arising under” standard: “cause[s] of action created by federal law” and state law claims that “turn on substantial questions of federal law.” Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 312, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005). For a state law claim to support federal subject matter jurisdiction, a federal issue must be “(1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress.” Gunn v. Minton, — U.S. -, 133 S.Ct. 1059, 1065, 185 L.Ed.2d 72 (2013).

a. Federal Question Jurisdiction

Enable admits that there is no federal cause of action but avers that there are substantial questions of federal law implicated by its state law claim. Specifically, Enable asserts that the court must decide (1) the nature and ownership of any gas leaving West Unionville; (2) whether the production exception applies to Nadel when it withdraws gas from West Union-ville; and (3) whether Nadel has violated the NGA by withdrawing, transporting, and selling storage gas in interstate commerce.

Although Enable pled no specific state law claim, the district court determined that Enable was essentially pursuing a conversion claim against Nadel for producing gas owned by Enable. The Louisiana Civil'Code does not provide for a common law conversion áction, “[hjowever, causes of action for conversion have been inferred from the Codal articles providing that the right of ownership, possession, and enjoyment of movables are protected by actions for the recovery of the movables themselves, actions for restitution of their value, and actions for damages.” Dual Drilling Co. v. Mills Equip. Invs., Inc., 721 So.2d 853, 856 (La. 1998). We agree with the district court that this is a proper characterization of Enable’s claim.

To establish a civilian conversion claim under Louisiana law, Enable must demonstrate an act of dominion or control that is wrongfully asserted over its moveable property. See id. at 857; 12 William E. Crawford, Louisiana Civil Law Treatise § 12:13 (2d ed. 2016). Therefore, we must determine whether the right of ownership, possession, and enjoyment of the storage gas implicates a federal question that is necessary, substantial, and disputed. See Gunn, 133 S.Ct. at 1065. Enable argues that this determination of ownership cannot be made without interpretation of the NGA. We disagree.

The NGA and its associated regulations govern the operation of Enable’s storage facility and the possessory interest in the gas as between Enable and its customers. Enable acquired a certifícate of public convenience and necessity to operate West Unionville. See 15 U.S.C. § 717f(c) (providing that a natural gas company needs a certificate of convenience and necessity to operate facilities). This certificate does not address Enable’s property rights in the storage gas; it merely authorizes the operation of West Unionville. See id. Enable also filed a tariff with FER.C that details “all rates and charges for any [interstate] transportation or sale ... and the classifications, practices, and regulations affecting such rates and charges.” Id. § 717c(c). Enable’s tariff states that it controls and possesses the gas at all times “while [the gas] is in [Enable’s] facilities between the receipt point(s) and delivery point(s).” However, these rules of possession apply only “[a]s between Customer and [Enable],” On their face, the tariff’s rules of possessory interest do not extend beyond the customers to others who may interfere with the storage gas.

Enable’s storage facility is also subject to state regulation. States are empowered “to regulate the physical production and gathering of natural gas in the interests of conservation or of any other consideration of legitimate local concern.” Interstate Nat. Gas Co. v. Fed. Power Comm’n, 331 U.S. 682, 690, 67 S.Ct. 1482, 91 L.Ed. 1742 (1947); see also Fed. Power Comm’n v. Panhandle E. Pipe Line Co., 337 U.S. 498, 509-13, 69 S.Ct. 1251, 93 L.Ed. 1499 (1949) (stating that the federal power granted under the NGA “was to complement that of the state regulatory bodies”); 15 U.S.C. § 717(b). Louisiana has its own permitting requirements for underground storage facilities that must be met before the facility can be used. La. Rev. Stat. § 30:22(B)(1-3). In authorizing West Unionville, the commissioner is empowered to deem all natural gas in the facility that “has previously been reduced to possession and which is subsequently injected into [the] underground storage reservoir” to be “deemed the property of the injector.” Id. § 30:22(E). The statute further states “in no event shall such gas ... be subject to the right of the owner of the surface of the lands.” Id. Enable has an order to that effect from the commissioner for West Unionville. As it is clear that Louisiana law defines the property interest in the storage gas as between Enable and Nadel, issues of federal law are not necessary to the resolution of this ease.

The Ninth Circuit reached the same conclusion in a nearly identical suit. See Williston, 524 F.3d at 1092-94, 1102. The plaintiff in Williston operated an underground natural gas storage reservoir that it claimed was losing natural gas to a nearby production well. Id. at 1093. The plaintiff brought state law claims for conversion and negligence against the owner of the well. Id. The court held that “no provision of the NGA constitutes an essential element of [the conversion and negligence] claims,” and thus there was no federal jurisdiction. Id. at 1102. We agree with the reasoning of the Ninth Circuit. Because no elément of a Louisiana civilian conversion claim requires the resolution of a federal law issue, there is no federal question jurisdiction over this suit.

It is of no moment that Enable accuses Nadel of producing gas traveling in interstate commerce, which Enable contends places Nadel outside of the NGA’s production exception. The NGA excludes from federal regulation “the production or gathering of natural gas.” 15 U.S.C. § 717(b). An error by Nadel in its production activities does not automatically place it outside of this production exception. “[Pjroducers are subject to the jurisdiction of the FERC when they engage in activities that can be classified as sales or transportation rather than as production or gathering.” Shell Oil Co. v. Fed. Energy Regulatory Comm’n, 566 F.2d 536, 539 (5th Cir. 1978). “ ‘Production’ of gas (means) the act of bringing gas from the earth, and ‘gathering’ (means) the act of collecting gas after it has been brought forth.” Id. (quoting Panhandle E. Pipe Line Co., 337 U.S. at 518, 69 S.Ct. 1251 (Black, J., dissenting)) (alterations in original). Erroneously drawing storage gas from the ground is still a part of physical production, and we decline to reclassify it as the interstate' salé or transportation of natural gas.

We also conclude that the federal issues Enable’s tort claim raises are not substantial. The ÑGA applies to the transportation or sale of natural gas in interstate or foreign commerce, but not to retail sales or “the production or gathering of natural gas.” 15 U.S.C. § 717(b); see also Oneok, Inc. v. Learjet, Inc., — U.S. -, 135 S.Ct. 1591, 1595-96, 191 L.Ed.2d 511 (2015). Regulation of the production and gathering of natural gas is left to the states. Oneok, 135 S.Ct. at 1596. The core subject of this suit is state-regulated production by Nadel, so “there is no ‘serious federal interest in claiming the advantages thought to be inherent in a federal forum.’” Gunn, 133 S.Ct. at 1068 (quoting Grable, 545 U.S. at 313, 125 S.Ct. 2363).

Finally, finding federal jurisdiction in this case would disrupt the balance between state and federal regulation of the natural gas markets established by the NGA. See Gunn, 133 S.Ct. at 1065. “[Tjhe Natural Gas Act “was drawn with meticulous regard for the continued exercise of state power, not to handicap or dilute it in any way.’ ” Oneok, 135 S.Ct. at 1599 (quoting Panhandle E. Pipe Line Co. v. Pub. Serv. Comm’n, 332 U.S. 507, 517-18, 68 S.Ct. 190, 92 L.Ed. 128 (1947)). Finding federal jurisdiction in this state law action against a producer would interfere with the congressionally approved right of Louisiana to regulate production according to its own laws and in its own courts.

b. Exclusive Federal Jurisdiction

Enable also argues that the NGA’s grant of exclusive federal jurisdiction over “actions at law brought to enforce any liability or duty created by, or to enjoin any violation of, this chapter or any rule, regulation, or order thereunder” requires that its claims be brought in federal court. See 15 U.S.C. § 717u. Enable alleges that by withdrawing and possessing the storage gas, Nadel is interfering with Enable’s own rights and obligations under the NGA. Enable admits that the NGA does not provide it with a private cause of action, but it insists that Nadel’s withdrawal and resale of gas from West Unionville is exclusively a matter of federal law.

We do not agree. The NGA’s federal exclusivity clause does not create federal jurisdiction in this case because Nadel’s conduct is not a violation of the NGA even if it interferes with Enable’s rights and obligations under the NGA. It is an issue of first impression for this court whether the NGA’s exclusive jurisdiction provision extends to actions involving third party interference, but other circuits that have addressed the issue have held that it does not. For instance in Williston, the Ninth Circuit held that because the well operator was not subject to any duties under the NGA it could not violate the NGA and be subject to the exclusive jurisdiction clause. 524 F.3d at 1102. The Sixth Circuit, in resolving a dispute between a regulated gas company and the non-regulated owners of land across which the gas company held an easement, similarly concluded that “[i]f the [defendants] do not have a statutory duty, then they cannot have violated the Natural Gas Act.” Columbia Gas Transmission, LLC v. Singh, 707 F.3d 583, 588 (6th Cir. 2013). Since Nadel does not have any duties under the NGA or its related regulations, resolution of Enable’s state law claims will not require us “to determine whether the defendants [have] complied with rules that [have] the effect and force of federal law.” Williston, 524 F.3d at 1102.

We therefore join our sister circuits and decline to extend the federal exclusivity provision of the NGA to cover claims of interference with duties under the NGA against defendants who have no statutory duties of their own under the Act.

2. Motion to Disqualify

Having concluded that this court lacks subject matter jurisdiction to hear the underlying suit, we deny as moot Enable’s motion to disqualify Nadel’s counsel.

III. CONCLUSION

We AFFIRM the district court’s dismissal of Enable’s claims for lack of subject matter jurisdiction. We DENY as moot Enable’s motion to disqualify Nadel’s counsel.

      . 15 U.S.C. §§ 717 et seq.

      . Enable filed for a declaratory judgment. See 28 U.S.C. § 2201(a). Although the Declaratory Judgment Act "enlarged the range of remedies available in the federal courts,” it "did not extend their jurisdiction.” Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671, 70 S.Ct. 876, 94 L.Ed. 1194 (1950).

      . There are three possible actions under Louisiana civil law: a "revendicatory action for the recovery of a moveable transferred” if the defendant is still in possession; an unjust enrichment action; and a delictual action, which is the closest to common law conversion, but it requires fault rather than imposing strict liability. Dual Drilling Co. v. Mills Equip. Invs., Inc., 721 So.2d 853, 856-57 (La. 1998).

      . The plaintiffs also brought a condemnation action to take over the well as permitted by the NGA, but that claim is not relevant to this case, Williston, 524 F.3d at 1093; 15 U.S.C. § 717f(h).

      . Enable points to a district court case out of Oregon to support its claim of exclusive federal jurisdiction. Pacificorp v. Nw. Pipeline GP, No. CV. 10-99-PK, 2010 WL 3199950 (D. Or. June 23, 2010). However, Pacificorp is inapplicable because in that case the plaintiff's state law claims were based on the defendant’s violation of its own federal tariff, not solely on the plaintiff's tariff. Id. at *4. In contrast, Nadel is not subject to a tariff or other regulation under the NGA,


text:
    UNITED STATES of America, Plaintiff-Appellee v. Deion Dee LOCKHART, also known as Memphis, also known as Deion Lockhart; Richard Charles Gray, also known as Crenshaw, also known as Richard Gray; Timothy Keith McCullouch, Jr., also known as TJ, also known as Timothy McCullough, Jr., also known as Timothy Keith McCullough, Jr.; Emmanual Lockhart, also known as E. Jay, Defendants-Appellants
    No. 15-50596
    United States Court of Appeals, Fifth Circuit.
    Filed December 23, 2016

      Joseph H. Gay, Jr., Ellen A. Lockwood, Assistant U.S. Attorneys, U.S. Attorney’s Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.
    Patrick A. Lara, Esq., Law Office of Patrick A. Lara, Maria Bertha Ramirez, Sherilyn Ann Bunn, Esq., Firth Johnston Bunn Kerr, Miguel Angel Villalba, Miguel A. Villalba & Associates, El Paso, TX, for Defendants-Appellants.
    Before STEWART, Chief Judge, and SMITH and DENNIS, Circuit Judges.
   CARL E. STEWART, Chief Judge:

Following a Federal Bureau of Investigation (“FBI”) inquiry into a child sex trafficking ring, a jury found Defendants-Appellants -guilty of various crimes charged in an eleven-count indictment. All four appeal the jury’s guilty verdicts. We AFFIRM each conviction, with one exception. Finding that the district court’s jury instructions regarding 18 U.S.C. § 1591 (Sex Trafficking of Children) constructively amended the indictment, we VACATE and REMAND Appellant McCullouch’s conviction as to that count.'

I. Background and Procedural History

Between May 1, 2012 and March 31, 2013, Appellants prostituted underage girls, ranging from fifteen- to seventeen-years-old. After the National Center for Missing and Exploited Children discovered a suspicious advertisement featuring a sixteen-year-old girl on Backpage.com, a website notorious for facilitating prostitution, the FBI began collecting Appellants’ hotel, phone, Facebook, and e-mail records. Through its investigation, the FBI learned that Appellants were pooling their money together to rent hotel rooms, solicit johns over the Internet, and transport underage girls to and from hotel rooms, in some cases crossing state lines to do so.

The conspiracy began when Appellants Deion Lockhart (“D. Lockhart”), Emmanual Lockhart (“E. Lockhart”), and Richard Gray (“Gray”)—all members of the Folk Nation Gangster Disciples (“Folk Nation”) gang—decided to begin prostituting teenage girls instead of dealing drugs. After meeting the victims—SH, KB, LA, AG, and ANJ—and convincing them to “work” for them, the men used prepaid credit cards to post advertisements for escort services on Backpage.com. The men would then rent adjoining hotel rooms, using one room for “meeting dates” and the other for “hanging out.”

Timothy McCullouch (“McCullouch”), another member of Folk Nation, became part of the conspiracy after he and Gray met ANJ and LA in a hotel room in June 2012. ANJ initially met Gray at a downtown club. She and Gray corresponded over Facebook, and eventually ANJ invited Gray and McCullouch to meet her and LA in ANJ’s hotel room. When McCul-louch entered the room, ANJ and LA both recognized him as an officer from the juvenile facility where they had been previously confined. After this meeting, ANJ began living with and prostituting 'for McCul-louch, and LA began prostituting for Gray.

To ensure that the girls continued working for them, Gray regularly beat LA while his coconspirators and the other victims watched. The men controlled the girls’ movements and forced them to give all of the money they earned to Appellants. The victims testified that they felt they had no choice but to prostitute for the men.

Before trial, the district court denied E. Lockhart’s motion to sever and Appellants’ joint motion to exclude evidence of their gang affiliation. The court also ruled that it would not admit evidence of the victims’ prior or subsequent prostitution. At trial, the Government solicited testimony from Officer Robert Ontiveros. Through his testimony, Officer Ontiveros explained to the jury what his job as a gang investigator entails, the specialized training he had received, and his particular knowledge of Folk Nation. After the court accepted him as a gang expert, he testified that all four of Appellants are confirmed Folk Nation members.

At the" blose of the Government’s casein-chief, all four Appellants moved for a Rule 29 judgment of acquittal as to each count against them, which the court denied. At the close of the evidence, each Appellant renewed his motion, which the court again denied.

After deliberating, the jury found D. Lockhart guilty of Sex Trafficking by Force, Fraud or Coércion; Aiding and Abetting Sex Trafficking of Children; and Conspiracy to Sex Traffic Persons. The jury acquitted Gray on Count Three, Sex Trafficking by Force, Fraud or Coercion with respect to KB, but found him guilty of Sex Trafficking by Force, Fraud or Coercion with respect to LA; Sex Trafficking of Children; Conspiracy to Sex Traffic Persons; and Transportation for Prostitution. The jury found McCullouch guilty of Sex Trafficking of Children and Conspiracy to Sex Traffic Persons, and found E. Lock-hart guilty of Conspiracy to Sex Traffic Persons.

On May 6, 2015, E. Lockhart filed a motion seeking an evidentiary hearing, as the jury found him guilty of only Count Nine, the conspiracy count, but had not specified on which object offense(s) it had based his guilt, as U.S.S.G. § 1B1.2 requires. The district court denied that motion. The court thereafter sentenced E. Lockhart to 240 months’ imprisonment to be followed by five years’ supervised release and sentenced Gray to life imprisonment, among other, lesser sentences to be served concurrently. In determining Gray’s sentence, the court applied U.S.S.G. § 2A3.1(b)(1), thereby increasing his base offense level by four.

II. DISCUSSION

Appellants raise a host of arguments on .appeal. They first challenge the sufficiency of the evidence as to each of their convictions, and relatedly, the district court’s denial of their motions for judgment of acquittal. They next assert that the district court erred in excluding evidence of the victims’ prior- and post-indictment prostitution and in including evidence of their shared gang affiliation. E. Lockhart contends that the district court erred in denying his motion to sever and in applying U.S.S.G. § 1B1.2 to his sentence. McCullouch argues that the district court’s jury instructions, regarding 18 U.S.C. § 1591 constructively amended the indictment. Finally, Gray avers that the district court misapplied U.S.S.G. § 2A3.1(b)(4)(B) when it added a four-point enhancement to his offense level. We address each argument in turn.

A. Sufficiency of the Evidence

We review the denial of a motion for judgment of acquittal de novo. United States v. Floyd, 343 F.3d 363, 370 (5th Cir. 2003). Still, this court’s review of a jury’s verdict is “highly deferential.” United States v. McNealy, 625 F.3d 858, 870 (5th Cir. 2010). Thus, the relevant question is whether, “viewing the evidence and the inferences that may be drawn from it in the light most favorable to the verdict, a rational jury could have found the essential elements of the offenses beyond a reasonable doubt.” United States v. Clark, 577 F.3d 273, 284 (5th Cir. 2009) (internal quotation marks omitted); see Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

At trial, three of Appellants’ victims and two coconspirators who had already pleaded guilty testified against Appellants. These witnesses explained how the men decided to prostitute young girls instead of selling drugs, took turns posting advertisements to Backpage.com and shared the profits, and that Gray would regularly beat AG in front of the other coconspirators and victims. The Government also presented physical evidence that linked Appellants to Baclcpage.com through e-mail and cell phone records, showed that Gray transported LA across state lines for the purpose of prostitution, and corroborated the witnesses’ testimony with hotel rental receipts and. Facebook conversations. Finally, the victims’ testimony demonstrated that Appellants knew, or at the least recklessly disregarded the fact that, their victims had not yet attained the age of eighteen. Viewing this evidence “and all inferences to be drawn from it in the light most favorable to the verdict,” United States v. Burton, 126 F.3d 666, 669 (5th Cir. 1997), a rational jury could find all four Appellants guilty beyond a reasonable doubt of the crimes for which the jury convicted them.

B. Evidence of Prior and Post-Indictment Acts of Prostitution

Appellants argue that the district court erred when it barred admission of evidence showing the victims’ prior and subsequent acts of prostitution. They aver that Rule 412 applies primarily to rape cases, and that even if the Rule does apply to this case, barring the evidence violated their Fifth and Sixth Amendment rights. We review the district court’s limitation of cross-examination for an abuse of discretion. United States v. Davis, 393 F.3d 540, 548 (5th Cir. 2004) (citing United States v. Gordon, 780 F.2d 1165, 1175 (5th Cir. 1986)). When a defendant alleges that the district court’s limitation violated a constitutional right, however, this court reviews that limitation de novo. See United States v. Hitt, 473 F.3d 146, 156 (5th Cir. 2006); Gochicoa v. Johnson, 118 F.3d 440, 445 (5th Cir. 1997).

In a “criminal proceeding involving alleged sexual misconduct,” Rule 412 prohibits evidence offered “to prove that a victim engaged in other sexual behavior,” as well as evidence offered “to prove a victim’s sexual predisposition.” Fed. R. Evid. 412(a). Further, Rule 412(a) prohibits a defendant from introducing or eliciting evidence of the victim’s “other sexual behavior,” even if it is offered “as substantive evidence or for impeachment.” Fed. R. Evid. 412 (1994 Advisory Committee Notes). Forced prostitution undoubtedly involves sexual misconduct. Moreover, Appellants offer evidence of the victims’ pre- and post-indictment acts of prostitution to prove their predisposition and to impeach their credibility. Thus, Rule 412 applies here.

One exception to Rule 412, however, allows a defendant to introduce otherwise inadmissible evidence if the “exclusion would violate the defendant’s constitutional rights.” Fed. R. Evid. 412(b)(1)(C). In this case, Appellants allege that the district court’s refusal to admit evidence of the victims’ prior and' subsequent prostitution violated their Fifth Amendment right to present a defense and their Sixth Amendment right to confront the witnesses against them. We address each argument in turn.

1. Due Process Clause

The Fifth Amendment’s Due Process Clause guarantees a defendant’s right “to present evidence favorable to himself on an element that must be proven to convict him.” Clark v. Arizona, 548 U.S. 735, 769, 126 S.Ct. 2709, 165 L.Ed.2d 842 (2006) (emphasis added). In this case, the Government must prove, inter alia, that Appellants recruited, enticed, harbored, transported, provided, obtained, advertised, maintained, patronized, or solicited each of the victims, while knowing or recklessly disregarding the fact “that means of force, threats of force, fraud, coercion or any combination of such means [would] be used to cause” the victims “to engage in a commercial sex act.” 18 U.S.C. § 1591(a).

Section 1591 defines “coercion” as, inter alia, “any scheme, plan, or pattern intended to cause a person to believe that failure to perform an act would result in serious harm to or physical restraint against any person.” Id. § 1591(e)(2)(B). The statute further defines “serious harm” as “any harm ... that is sufficiently serious .,. to compel a reasonable person of the same background and in the same circumstances to perform or to continue performing commercial sexual activity in order to avoid incurring that harm,” Id. § 1591(e)(4) (emphasis added). Thus, evidence of the victims’ pre- and post-indictment acts of prostitution would be irrelevant to this case as it does not “make ... more or less probable” the fact that Appellants caused their victims to engage in a commercial sex act during the time period alleged in the indictment. Fed. R. Evid. 401; see United States v. Elbert, 561 F.3d 771, 777 (8th Cir. 2009) (finding evidence of the victims’ prior prostitution “would only prove other people may be guilty of similar offenses of ... causing the[ ] victims to engage in a commercial sex act”); United States v. Cephus, 684 F.3d 703, 708 (7th Cir. 2012) (finding that prior prostitution evidence is irrelevant, as “the fact that [the victim had] been a prostitute before does not suggest that [the defendant] didn’t beat and threaten her”).

Thus, evidence of the victims’ pre- and post-indictment prostitution is not relevant to prove an element necessary to convict Appellants, see Clark, 548 U.S. at 769, 126 S.Ct. 2709, and therefore, the district court did not violate the Fifth Amendment when it excluded such evidence pursuant to Rule 412. See Taylor v. Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988) (“The accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.”),

2. Confrontation Clause

The Confrontation Clause guarantees a defendant the opportunity for effective cross-examination. Delaware v. Fensterer, 474 U.S. 15, 19-20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985) (per curiam). That right, however, is not without limitations, and cross-examination limited on the basis of a Federal Rule of Evidence “do[es] not abridge an accused’s right to present a defense so long as [the rule is] not ‘arbitrary' or ‘disproportionate to the purposes [it is] designed to serve.’ ” United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998) (quoting Rock v. Arkansas, 483 U.S. 44, 56, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987)); see Kittelson v. Dretke, 426 F.3d 306, 319 (5th Cir. 2005).

The Advisory Committee has noted that, although prior convictions are normally admissible to impeach a witness under Rule 609, Rule 412 trumps that rule to the extent that the witness has previous convictions for prostitution. Fed. R. Evid. 412 (1994 Advisory Committee Notes). A defendant may, however, impeach victim-witnesses with other inculpatory evidence.

In the instant case, Appellants questioned the victims about their prior drug use, their possible bias against Appellants, whether they consented to prostitute for Appellants during the timeframe alleged in the indictment, and whether they were coerced into prostitution or motivated by money. Because Appellants were permitted to impeach the victims with this other inculpatory evidence, Rule 412’s application to this case was “not ‘arbitrary' or ‘disproportionate to the purposes [it is] designed to serve.'" Scheffer, 523 U.S. at 308, 118 S.Ct. 1261 (quoting Rock, 483 U.S. at 56, 107 S.Ct. 2704).

Finally, because the Confrontation Clause guarantees only “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish,” Fensterer, 474 U.S. at 20, 106 S.Ct. 292, the district court’s. refusal to admit evidence of the victims’ prior and subsequent prostitution under Rule 412 did “not abridge [Appellants’] right to present a defense.” Scheffer, 523 U.S. at 308, 118 S.Ct. 1261 (quoting Rock, 483 U.S. at 56, 107 S.Ct. 2704). Accordingly, the district court did not err in excluding the evidence.

C. Evidence of Gang Affiliation

Appellants raise several issues regarding the district court’s decision to allow evidence of their gang affiliation to come beforé the jury. First, Appellants argue that Officer Ontiveros’s testimony prevented them from confronting the witnesses against them, as he based his testimony on inadmissible hearsay in violation of the Fifth Amendment. Next, Appellants argue that admitting Officer Ontiveros as an expert was an abuse of discretion. In support of this claim, Appellants assert that Officer Ontiveros was not. qualified to be an expert. They further contend that, because the subject area is one of common knowledge, there was no need for expert testimony on gang affiliation. Finally, Appellants argue that the court abused its discretion in admitting any evidence of their gang affiliation, as it was irrelevant to the instant matter and constituted inadmissible “other bad acts” evidence in violation of Rule 404(b).

1. Confrontation Clause

When the district court’s ruling violates a criminal defendant’s Sixth Amendment right to confrontation, reversal is required unless “the beneficiary of [the] constitutional error [can] prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); see Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). That said, before this court applies such an exacting standard of review, it must first find a constitutional violation.

In this case, Appellants rely on Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) in asserting that Officer Ontiveros was merely a conduit for testimonial hearsay. They point to the fact that during voir dire, Officer Ontiveros testified that some of his expertise is based on his participation in custodial interrogations and events where other officers detailed their experiences during interrogations. This argument is without merit.

The record reflects that Officer Ontiveros’s testimony was “not procured with [the] primary purpose of creating an out-of-court substitute for trial testimony.” Michigan v. Bryant, 562 U.S. 344, 358, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011). “Although ‘Crawford forbids the introduction of testimonial hearsay as evidence in itself,’ ... ‘it in no way prevents expert witnesses from offering their independent judgments merely because those judgments were in some part informed by their exposure to otherwise inadmissible evidence.’ ” United States v. Palacios, 677 F.3d 234, 243 (4th Cir. 2012) (quoting United States v. Johnson, 587 F.3d 625, 635 (4th Cir. 2009)). Therefore, “the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause.” Bryant, 562 U.S. at 359, 131 S.Ct. 1143. Rule 703 allows an expert to base his testimony on otherwise inadmissible hearsay evidence. Fed. R. Evid. 703. An expert’s opinion may be based on both- the evidence in the case and his education and experience. United States v. Williams, 447 F.2d 1285, 1290 (5th Cir. 1971) (en banc). “Thus, when the expert witness has consulted numerous sources, and uses that information, together with his own professional knowledge and experience, to arrive at his opinion, that opinion is regarded as evidence in its own right and not as hearsay in disguise.” Id.

The interrogations and conferences Officer -Ontiveros attended were part of his education as a gang expert, and he properly based his testimony on these experi-enees. Therefore, Officer Ontiveros did not serve as a conduit for inadmissible testimonial hearsay. Finding no constitutional violation, we review this issue for abuse of discretion. Carlson v. Bioremedi Therapeutic Sys., Inc., 822 F.3d 194, 199 (5th Cir. 2016).

2. Officer Ontiveros’s Qualifications

Officer Ontiveros testified that he worked for the El Paso Police Department for twelve years and within the gang unit for nearly six years. He has special training related to gangs generally and Folk Nation in particular. Even if some jurors previously had a general understanding of gangs, Officer Ontiveros’s testimony regarding Folk Nation specifically was helpful to the jury, and the district court did not abuse its discretion in admitting him as an expert. See, e.g., United States v. Griffith, 118 F.3d 318, 322-23 (5th Cir. 1997) (finding a DEA agent with eight-and-one-half years and fifty investigations’ worth of experience qualified to interpret drug jargon); United States v. Garcia, 86 F.3d 394, 400 (5th Cir. 1996) (holding that the district court did not abuse its discretion in qualifying a federal agent to explain a large drug operation).

3. Rule 404(b)

This court reviews a district court’s decision to admit or exclude evidence for abuse of discretion. United States v. Yi, 460 F.3d 623, 631 (5th Cir. 2006) (citing United States v. Cantu, 167 F.3d 198, 203 (5th Cir. 1999)). “In a criminal case, Rule 404(b) evidence must ‘be strictly relevant to the particular offense charged.’” Id. (quoting United States v. Hernandez-Guevara, 162 F.3d 863, 869 (5th Cir. 1998)). If, however, the admission of the 404(b) evidence did not prejudice the defendant, this court will uphold the conviction. Id. (citing United States v. Coleman, 78 F.3d 154, 156 (5th Cir. 1996)). The applicability of Rule 404(b) to this case depends upon whether evidence of Appellants’ gang membership is intrinsic or extrinsic to the crimes charged. If the evidence is intrinsic, it is not other bad acts evidence at all, but rather additional facts surrounding the charge at issue. See United States v. Sumlin, 489 F.3d 683, 689 (5th Cir. 2007); see also United States v. Manning, 79 F.3d 212, 218 (1st Cir. 1996) (stating that Rule 404(b) only limits the admissibility of extrinsic evidence).

Because in an alleged conspiracy the existence of a joint venture and the nature of the members’ relationship are at issue, evidence of defendants being members of the same gang is intrinsic to the crime of conspiracy. United States v. Westbrook, 125 F.3d 996, 1007 (7th Cir. 1997). In this case, gang evidence serves to complete the story as to why Appellants would work together, deciding to “leave the dope game alone” and take up prostituting women instead. See United States v. Lugo-Lopez, 833 F.3d 453, 461 (5th Cir. 2016) (citing United States v. Chavful, 100 Fed.Appx. 226, 231 (5th Cir. 2004)) (“[The defendant’s] alleged cartel involvement was also probative of his association with the other members of' the conspiracy.”). Therefore, the district court did not err in allowing this evidence to come before the jury.

D. Motion to Sever

E. Lockhart contends that because the district court did hot sever his trial from that of his codefendants’, he was denied a fair trial. This court reviews a district court’s denial of a motion to sever for abuse of discretion. United States v. Clay, 408 F.3d 214, 219 (5th Cir. 2005). A district court should grant a motion to sever defendants who were charged in the same indictment only if there is a serious risk that a joint trial would compromise a defendant’s specific trial right, or if the jury would be unable to make a reliable assessment about guilt or innocence. Zafiro v. United States, 506 U.S. 534, 539, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993); United States v. Nguyen, 493 F.3d 613, 625 (5th Cir. 2007). Finding that E. Lockhart failed to show the requisite prejudice to warrant severance, we affirm the district court’s judgment as to this issue. See United States v. Cortinas, 142 F.3d 242, 249 (5th Cir. 1998) (affirming district court’s denial of a motion to sever because defendants (1) were members of the same gang as coconspirators and (2) the timing of their involvement coincided with the gang’s involvement).

E. U.S.S.G. § IB 1.2

E. Lockhart argues that because neither the jury nor the district court specified which of the charged offenses was the object of the conspiracy on which the jury based his guilt, this court should partially reverse and remand his conviction for re-sentencing.. .

This court reviews the application of U.S.S.G. § 1B1.2(d) de novo; factual findings underlying its application are reviewed for clear error. United States v. Sylvester, 143 F.3d 923, 931 (5th Cir. 1998). A sentence will be upheld unless it was imposed in violation of the law, which occurs either as a result of an incorrect application of the Guidelines, or if the sentence is outside the range of the applicable Guideline and is unreasonable. United States v. Wyjack, 141 F.3d 181, 183 (5th Cir. 1998).

Under U.S.S.G. § 1B1.2(d), “[a] conviction on a count charging a conspiracy to commit more than one offense shall be treated as if the defendant had been convicted on a separate count of conspiracy for each offense that the defendant conspired to commit.” Further, “[i]n such cases, subsection (d) should only be applied with respect to an object, offense alleged in the conspiracy count if the court, were it sitting as á trier of fact, would convict the defendant of conspiring to commit that object offense.” Id. (cmt. n.4). Findings can be either explicit or implicit based on the record as a whole. United States v. Manges, 110 F.3d 1162, 1179 (5th Cir. 1997); United States v. Fisher, 22 F.3d 574, 577 (5th Cir. 1994).

Here, although neither the district court nor the jury specified from which of the base offenses E. Lockhart’s guilt stems, it is implicit from the record. See Fisher, 22 F.3d at 577 (affirming the district court’s sentence because there was. “ ‘more than sufficient’ evidence” of the defendant’s guilt on the record). At sentencing, the court concluded that E.‘Lockhart “provided the tools that would enable the other coconspirators to engage in the conduct that resulted in the convictions on each case as to each co-defendant.” The court further noted that Lockhart “helped pool money for the securing of hotels. He helped participate in encouraging individuals to engage in the activity” and that “much of what he did was significant to the accomplishment of the continued activities of the conspiracy that, resulted in the pimping of young individuals.” Finding “ample evidence to support the requisite implicit findings,” we affirm E. Lockhart’s sentence. See id.

F. Constructive Amendment

Title 18 U.S.C. § 1591 allows the Government to prosecute anyone who knowingly forces an underage person into prostitution.. 18 U.S.C. § 1591. Although § 1591 allows the Government to prove scienter by showing that the defendant (1) knew the victim was underage, (2) recklessly disregarded that fact, or (3) had a reasonable opportunity to observe the victim, McCullouch argues that because the “reasonable opportunity to observe” language was not included in the indictment, but was included in the jury instructions, the court constructively amended the indictment.-.

We review ' constructive amendment claims de novo. United States v. Thompson, 647 F.3d 180, 183 (5th Cir. 2011). If we conclude that there has been a constructive amendment, we must Reverse the defendant’s conviction. United States v. Chambers, 408 F.3d 237, 241 (5th Cir. 2005) (citing United States v. Adams, 778 F.2d 1117, 1123 (5th Cir. 1985)). A constructive amendment occurs “when the jury is permitted to convict the defendant upon a factual basis that effectively modifies an essential element of the offense charged” in the indictment. Adams, 778 F.2d at 1123.

The seminal case on this issue is Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). In Stirone, the U.S. Supreme Court considered whether there had been a constructive amendment of the indictment in a Hobbs Act prosecution. The indictment charged the defendant with using his union position to “unlawfully obstruct, delay [and] affect interstate commerce ... and movement of [sand] by extortion.” Id. at 213-14, 80 S.Ct. 270. Over defense counsel’s objection, the district court allowed the Government to bring “evidence of an effect on interstate commerce not only in sand ... but also in interference with steel shipments.” Id. at 214, 80 S.Ct. 270. The trial court’s jury instructions-allowed the jury to convict the defendant on either basis. Id. Assuming there was sufficient evidence on the record to convict the defendant under either theory and that the evidence did not surprise the defendant, the Third Circuit affirmed the conviction. United States v. Stirone, 262 F.2d 571, 574 (3d Cir. 1958).

The Supreme Court reversed, concluding that “when only one particular kind of commerce is charged to have been burdened[,] a conviction must rest on that charge and not another, even though it be assumed that under an indictment drawn in general terms a conviction might rest upon a showing that commerce of one kind or another had been burdened.” Stirone, 361 U.S. at 218, 80 S.Ct. 270. Therefore, even assuming there was sufficient evidence on the record to prove a Hobbs Act violation pertaining to sand and steel, because the indictment alleged only that the violation related to sand, the court constructively amended the indictment when it broadened it to include steel. Id. at 215, 80 S.Ct. 270; 218-19, 80 S.Ct. 270.

We have interpreted Stirone many times. When the indictment alleges a particular set of facts as forming the basis for the defendant’s violation of a statute, but the trial court allows evidence of other facts not alleged in the indictment to form the basis of the jury’s guilty verdict, this court finds a constructive amendment. E.g., United States v. Hoover, 467 F.3d 496, 502 (5th Cir. 2006) (alleging one false statement in indictment but proving another at trial was constructive amendment); United States v. Doucet, 994 F.2d 169, 170-73 (5th Cir. 1993) (finding constructive amendment where indictment charged with “assembled” gun, but was potentially convicted for possessing a “combination of parts from which a machine gun can be assembled”); Adams, 778 F.2d at 1123-24 (vacating because indictment listed “false name” but Government proved both “false name” and “false address,” and the court allowed,conviction on either basis); United States v. Davis, 461 F.2d 83, 91 (5th Cir. 1972) (“Since the Government chose to charge a section 1708 violation in a particular manner, we hold that in any conviction pursuant to that indictment the prosecution is bound by the particular allegations contained therein and it cannot obtain a conviction by proof of a violation of the same statute in a manner not alleged.”).

In United States v. Chambers, for example, the indictment alleged that the defendant possessed “rounds” distributed by a particular manufacturer. 408 F.3d at 238-39. At trial, however, the Government presented evidence of the defendant’s possessing ammunition components, rather than completed rounds. Notably, the statute cited in the indictment allowed for conviction under either theory. This court, in concluding that the trial court had constructively amended the indictment, pointed out that:

[I]n Stirone there was no departure from the indictment in respect to what the defendant did, or when, where or to whom he did it, or what his conduct immediately threatened.... Nor was there any departure from the indictment so as to allow conviction under any different language segment or portion of the statute, alleged in the indictment.

Id. at 242. Because the Government established an essential element of the offense on the basis of facts wholly different from those particularized in the indictment, we vacated the jury’s guilty verdict. Id. at 247.

The essential element at issue here is § 1591’s scienter requirement. See United States v. Garcia-Gonzalez, 714 F.3d 306, 312 (5th Cir. 2013) (stating that the defendant’s mens rea is an essential element under § 1591). Subsection (c) states that “[i]n a prosecution under subsection (a)(1) in which the defendant had a reasonable opportunity to observe the person ... the Government need not prove that the defendant knew, or recklessly disregarded the fact, that the person had not attained the age of 18 years.” 18 U.S.C. § 1591(c).

The indictment alleged in pertinent part that McCullouch “kn[ew] and ... recklessly] disregarded] ... the fact that ... A.N.J., had not attained the age of eighteen years (18) ... in violation of Title 18, United States Code, Sections 1591(a)(1),(2), and (b)(2),” but did not include the “reasonable opportunity” language found in subsection (c). Thus, we must ask whether the district court constructively amended the indictment when it instructed the jury that McCullouch could be convicted under § 1591

IF THE GOVERNMENT PROVES BEYOND A REASONABLE DOUBT THAT [MCCULLOUCH] HAD A REASONABLE OPPORTUNITY TO OBSERVE THE PERSON [HE] RECRUITED, ENTICED, HARBORED, TRANSPORTED, PROVIDED, OBTAINED, OR MAINTAINED, [EVEN IF] THE GOVERNMENT [DID NOT] PROVE THAT THE DEFENDANT ’ KNEW THAT [ANJ] HAD NOT ATTAINED THE AGE OF 18 YEARS.

By including the language found in § 1591(c), the district court materially modified an essential element of the indictment by transforming the offense with which the indictment charged McCullouch from one requiring a specific mens rea into a strict liability offense. See United States v. Copeland, 820 F.3d 809, 813 (5th Cir. 2016) (concluding that under § 1591(c), “the Government ‘need not prove any mens rea with regard to the defendant’s awareness of the victim’s age.’ ” (quoting United States v. Robinson, 702 F.3d 22, 34 (2d Cir. 2012))). Given the district court’s inclusion of subsection (c), it is possible that the jury “convictfed McCullouch] based on an alternative basis permitted by the statute, but not charged in the indictment,” United States v. Partida, 385 F.3d 546, 557 (5th Cir. 2004) (citing United States v. Daniels, 252 F.3d 411, 414 (5th Cir. 2001)), a possibility that constructively amended the indictment, see Partida, 385 F.3d at 557 (stating that constructive amendment occurs when jury instructions make it possible for the jury to convict on an alternative basis not alleged in the indictment).

It is conceivable that someone could recklessly disregard a person’s age without having a reasonable opportunity to observe him or her. Therefore, although McCul-louch was ANJ’s juvenile detention officer, it is possible that the jury believed ANJ looked so different from when she was detained that McCullouch did not recognize her, thus he did not know she was underage. Further, the jury could, have concluded that, although he spent time with her, McCullouch’s disregard for her youth was not “reckless.” In that way, it is plausible that the jury convicted McCul-louch on a theory that even though he did not know her age or recklessly disregard it, he did have a reasonable opportunity to observe her. The Government’s closing argument makes this possibility especially true:

We don’t have to prove knowledge. If they come up here and say, “You have to acquit because they didn’t know that these girls were under 18,” remember, that’s not what the law says. You can also prove it by reckless disregard. But it goes even further. If the government proves beyond a reasonable doubt that the defendant had a reasonable opportunity to observe the person ... then the government does not have to prove that the defendant knew that the person had not attained the age of 18. Beyond reckless disregard. Beyond knowledge. If these gentlemen had contact or a reasonable opportunity to observe these girls, we don't have to prove that they ivere—that they knew that they were under the age of 18. So when they come up here and talk to you about, “Well, he didn’t know she was under age,” remember this provision of the law that is before you in the jury charge.

(emphasis added). Accordingly, because the district court’s instructions allowed the jury to “convict [McCullouch] based on an alternative basis permitted by the statute, but not charged in the indictment,” Partida, 385 F.3d at 557 (citing Daniels, 252 F.3d at 414), we vacate and remand McCullouch’s guilty verdict as to this count.

G. U.S.S.G. § 2A3.1(b)(4)(b)

Gray argues that the district court plainly erred when it added a four-point enhancement to his offense level, asserting that the facts stated in his PSR were erroneous. He also argues that his sentence is unreasonable.

We review the district court’s sentencing decisions for reasonableness, United States v. Anderson, 559 F.3d 348, 354 (5th Cir. 2009), and its interpretation of the sentencing guidelines de novo, United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). “A sentence will be upheld so long as it results from a correct application of the guidelines to factual findings that are not clearly erroneous.” United States v. Medina-Saldana, 911 F.2d 1023, 1024 (5th Cir. 1990). Section 2A3.1(b)(1) provides for a four-level enhancement “[i]f the offense involved conduct described in 18 U.S.C. § 2241(a) or (b).” U.S.S.G § 2A3.1(b)(1). 18 U.S.C. § 2241(a) pertains to “[w]hoever ... knowingly causes another person to engage in a sexual act (1) by using force against that other person; or (2) by threatening or placing that other person in fear that any person will be subjected to ... serious bodily injury.” 18 U.S.C. § 2241(a)(1)—(2). The record and the PSR contain multiple examples of Gray’s viciously beating LA. These incidents are sufficient to show that Gray used force against LA and placed her in fear that she would be subjected to serious bodily injury. Both the beatings and the fear of future harm caused LA to engage in commercial sex acts. Therefore, the district court did not err in applying U.S.S.G § 2A3.1 to Gray. Gray’s sentence, which falls within the Guideline range, is presumptively reasonable, see United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006), and he has presented no evidence sufficient to rebut that presumption. Therefore, we affirm his sentence.

III. CONCLUSION

In summary, we AFFIRM in part, and VACATE and REMAND in part. We AFFIRM each of Appellants’ convictions, except McCullouch’s conviction for Sex Trafficking of Children in violation of 18 U.S.C. § 1591(a). We VACATE and REMAND McCullouch’s conviction and sentence as to that count.

      . All relevant facts produced at trial and discussed herein are taken in the light most favorable to the jury’s verdict. See United States v. Haines, 803 F.3d 713, 734-35 (5th Cir. 2015).

      . The indictment also charged Brandon Shapiro and Tai Von Lynch, both of whom pleaded guilty to Count Nine of the second superseding indictment prior to trial and are not a party to this appeal.

      . Although a reversal of McCullouch’s conviction on this count also implicates Gray's conviction for the same offense, because Gray did not object to the jury instruction in the district court, the standard of review differs as to him, requiring that Gray show plain error, which he cannot. See United States v. Scher, 601 F.3d 408, 411 (5th Cir. 2010). Review under plain error, requires reversal only if "(1) there is an error, (2) that is clear or obvious, and (3) that affects [the defendant’s] substantial rights.” Id. (quoting United States v. Ferguson, 211 F.3d 878, 886 (5th Cir. 2000)). Even if Gray demonstrates these factors, "the decision to correct the forfeited error is within the soúnd discretion of the court, and the court will not exercise that discretion unless the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (citing Ferguson, 211 F.3d at 886). Given the substantial evidence against him, we decline to exercise our discretion here.

      . For example, in United States v. Phea, 755 F.3d 255, 260 (5th Cir. 2014), the defendant, having never seen the victim, recklessly disregarded her age when he discovered that she did not have identification sufficient to allow her to fly on an airplane.