author: LOKEN, Circuit Judge. COLLOTON, Circuit Judge,

text:
    Paul GUNDERSON, Plaintiff-Appellant v. BNSF RAILWAY COMPANY, Defendant-Appellee
    No. 15-2905
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 19, 2016
    Filed: March 10, 2017

      Counsel who presented argument on behalf of the appellant was Fredric Allen Bremseth, of Minnetonka, MN. The following attorney(s) appeared on the appellant brief; Christopher James Moreland, of Minnetonka, MN., Michael P. McReynolds, of Anoka, MN.
    Counsel who presented argument on behalf of the appellee was Jacqueline M. Holmes, of Washington, DC. The following attorney(s) appeared on the appellee brief; Yaakov Roth, of Washington, DC., Joanne Rian Bush, of Houston, TX., David M. Morrell, of Washington, DC.
    Before LOKEN, SMITH, and COLLOTON, Circuit Judges.
   LOKEN, Circuit Judge.

Paul Gunderson appeals the district court’s grant of summary judgment dismissing his complaint alleging that BNSF Railway Co. violated the Federal Rail Safety Act (“FRSA”), 49 U.S.C. § 20109, when it fired Gunderson in 2009 for harassing a co-worker and threatening a supervisor. Gunderson alleges that the real reason for his termination was unlawful retaliation for his prior FRSA-protected activity, an injury report and years of safety advocacy. A Department of Labor (“DOL”) administrative law judge (“ALJ”) dismissed Gunderson’s FRSA complaint on the merits following extensive discovery and a six-day evidentiary hearing. Gunder-son then filed this de novo action under the FRSA’s “kick-out” provision, 49 U.S.C. § 20109(d)(3). The district court denied BNSF’s motion to dismiss but, at the end of discovery, granted BNSF summary judgment on the merits and dismissed Gunderson’s complaint with prejudice. Reviewing the grant of summary judgment de novo, we affirm.

I. Background.

A. The Disciplinary Backdrop. Gun-derson worked for BNSF at its yard in Willmar, Minnesota, as a brakeman, conductor, switchman, and remote-control operator, from 1989 until BNSF terminated him in August 2009 for harassing and intimidating a co-worker and threatening a supervisor. Gunderson was active in Local 1177 of the United Transportation Union (“UTU”), becoming local chairman for the Willmar Yard in 2005, and also serving as vice general chairman of the international union. His union duties included representing fellow workers in Willmar accused of rules violations. After Michael Babik became Superintendent of Operations in Willmar in 2008, Gunderson and Babik met almost weekly regarding labor-management issues, causing tension at times.

In March 2009, two Willmar co-workers, Mitchell Duke and Robert Cluka, complained that yardmaster David Peterson had improperly obtained and published their personnel information. BNSF served Peterson with a Notice of Investigation. When Gunderson told Babik he was thinking of representing Peterson, Babik allegedly said, “stay away from this ... if you get involved you could be next.” Gunder-son believed that Babik was angry because Gunderson and another union official, Steve Mace, “keep beating the carrier” in investigations.

B. First Investigation of Gunderson. In May 2009, Local 1177 president Doug Campen informed Babik that Gunderson and Mace were pressuring union members Duke and Cluka to recant their allegations against Peterson. Campen said Gunderson had used “intimidation and scare tactics,” telling Duke he should be “very nervous.” Campen also said that Mace had asked Cluka to withdraw his statement against Peterson. Babik immediately notified his supervisor, Twin Cities Division General Manager Richard Ebel, who obtained written statements from Duke, Cluka, and Campen.

Duke’s statement accused Gunderson of saying that “things could get really bad” if Duke did not withdraw his accusations against Peterson — Duke could face a lawsuit by Peterson and could be fired. Gun-derson also advised that Duke could get a large settlement from BNSF over a previous injury if Duke “played his cards right.” Gunderson invited Duke to his house, where Gunderson gave Duke a letter to sign recanting his allegations against Peterson. Duke reported that someone had placed garbage in his pickup truck and filled its gas tank with diesel. Duke stated, “I am concerned for my safety at work, Pm afraid there will be retaliation by other union members and Gunderson.” Cluka’s statement alleged that he encountered Mace in a grocery store, asked for general advice about serving as a witness in a disciplinary hearing, and was - asked by Mace to recant his accusation against Peterson.

Based upon these statements, Ebel decided to investigate Gunderson and Mace for violating Rule 1.6 of BNSF’s General Code of Operating Rules and its Violence in the Workplace Policy, which prohibits threatening behavior, including “verbal, nonverbal, or written threats or intimidation, explicit or subtle.” Before proceeding, Ebel contacted James Hurlburt, director of employee performance, who was in charge of reviewing BNSF disciplinary actions nationwide to ensure consistent application of the company’s Policy for Employee Performance and Accountability (PEPA). Hurlburt, stationed in Fort Worth, Texas, had no prior contact with Gunderson. He recommended initiating an investigation and removing Gunderson from service due to the “egregious” level of harassment alleged, and because of the “incredibly unusual” situation presented by a union president bringing to management a complaint against a union member. Milton Siegele, in BNSF’s labor relations department, concurred. With the approval of his supervisor, Ebel then issued Notices of Investigation to Gunderson and Mace and withheld both from service pending the investigations.

C. Second Investigation. Ebel directed Willmar Terminal Manager Herbert Beam to serve Gunderson with the Notice of Investigation and ordered BNSF resource protection officers to be present because of the volatile situation at the Willmar Yard. Officers Eric Collins and Scott Poundstone, who had never heard of Gunderson or his protected activities, traveled to Willmar and waited across the hallway from Beam’s office, out of sight but where they could hear the conversation, while Beam delivered the Notice to Gunderson. After receiving the Notice, Gunderson told Beam, “Herb, you know, I’m not just a local [union] chairman.... Sometimes things can come back to hurt you.” When Beam returned to his office after escorting Gunderson from the building, the security officers said he needed to write a statement describing what they regarded as a threat by Gunderson. Beam sent an email describing the incident to Babik and Ebel, and Ebel received a formal report from Collins and Poundstone confirming Beam’s account. Steven Klug, Senior Vice President of Human Resources, read this description and concluded it warranted additional investigation as an “intentional attempt to intimídate and threaten.” Hurlburt and Siegele advised this was a serious event warranting separate investigation. Ebel served a second Notice of Investigation.

D.Disciplinary Hearings. BNSF’s collective bargaining agreement with UTU provided that the company must prove disciplinary violations at a formal adversarial hearing. At a meeting to prepare for Gunderson’s separate hearings, one officer noted, “we above all want Gunderson,” referring to the seriousness of his alleged misconduct, compared to Mace’s. The first hearing, on August 12, 2009, concerned Gunderson’s alleged harassment of Duke. Witnesses included Gunderson, Campen, Duke, Babik, Peterson, and Mace. Gunder-son denied harassing Duke, claimed that Duke approached him asking for help in recanting, but admitted that he delivered the recantation letter to Duke as a favor to Peterson’s attorney. Duke testified, consistent with his written statement, that Gun-derson pressured him to recant on multiple occasions, and that he suffered panic attacks and dreaded coming to work as a result of the harassment. The second hearing, concerning the alleged threat against Terminal Manager Beam, was held the next day. Beam, Collins, and Poundstone testified that Gunderson told Beam that the investigation could come back to hurt Beam, and each testified that he interpreted this as a threat. Gunderson testified that he could not remember whether or not he made the statement to Beam. After each hearing, the hearing officer sent the transcript and record to Ebel for a decision whether BNSF had proven each of the alleged disciplinary violations. '

E. Dismissals. Ebel reviewed the records and transcripts and decided that BNSF proved both charges — Gunderson engaged in a “serious event of intimidation and harassment” against Duke and threatened Beam. Ebel decided that dismissal was warranted for each violation. Ebel sought advice from Hurlburt and Siegele and his supervisor; they reviewed the records and recommended dismissal for each charge. On August 25, 2009, BNSF issued two separate dismissal letters to Gunder-son, one for harassing Duke and one for threatening Beam. Ebel denied Gunder-son’s request to reconsider the decision. The UTU appealed Gunderson’s discharge to BNSF Labor Relations, arguing that the work rules in question did not apply to his contacts with Duke away from the workplace, and that “all of the multiple charges leveled against Mr. Gunderson were unwarranted and unsubstantiated.” BNSF denied the internal appeals. Gun-derson also appealed to BNSF’s PEPA Board, which reviewed his discipline for company-wide consistency and upheld the decision.

F. Railway Labor Act Appeal. The UTU on behalf of Gunderson then appealed both rulings and his discharge to the Public Law Board (PLB), a three-person arbitration panel established under the Railway Labor Act and comprised of a carrier member, union member, and neutral member. Gunderson argued that the “real reason” behind BNSF’s investigation was that Gunderson’s activity in representing members as a union officer “placed him in an adversarial relationship with [BNSF, which does] not like to be challenged.” The PLB denied both claims, concluding BNSF’s evidence was sufficient to support the charges. Though Gunderson had a protected interest in representing and counseling union members in investigations, the PLB ruled, his conduct in harassing and intimidating Duke “went beyond the bounds of such protected [union] activity to that of interfering with the proper conduct of a company investigation by harassing and intimidating a complainant and company witness.”

G. FRSA Complaint. In November 2009, Gunderson filed a timely complaint with the Secretary of Labor, alleging for the first time that his discharge was unlawful retaliation for his repeated complaints about safety problems at the Will-mar Yard and for filing an injury report in September 2008 after he injured his shoulder at work. See 49 U.S.C. § 20109(a)(4), (b)(1)(A); Kuduk v. BNSF Ry„ 768 F.3d 786 (8th Cir. 2014). The Occupational Safety and Health Administration (OSHA) investigated and issued written findings and a preliminary order rejecting Gunderson’s complaint on September 9, 2010. See 29 C.F.R. § 1982.104 (2011). Noting that “engaging in protected activity does not shield an employee from any and all subsequent disciplinary action,” OSHA concluded that there was “no reasonable cause” to believe BNSF violated the FRSA in dismissing Gunderson.

The FRSA “kick-out” provides that, if. the Secretary of Labor fails to issue a final decision within 210 days, the complainant may remove the dispute to federal court by filing an original de novo action. 49 U.S.C. § 20109(d)(3). Gunderson’s “kick-out” right accrued on June 23, 2010, 210 days after he filed his administrative complaint. Instead of filing a lawsuit, Gunder-son pursued his administrative complaint on October 13, 2010, by filing objections to OSHA’s preliminary order with DOL’s Office of Administrative Law Judges, requesting a full de novo hearing.

With his complaint pending before the ALJ, Gunderson engaged in extensive document production and depositions until the end of discovery in November 2011. The ALJ conducted a six-day evidentiary hearing in January and March 2012 and issued a fourteen-page decision on January 10, 2014, dismissing Gunderson’s claim on the merits. The ALJ concluded: “[I]t is clear to me that Mr. Gunderson’s raising safety concerns played no part in BNSF’s decision to terminate him.” The DOL regulations then in effect provided that the ALJ’s decision would become the Secretary’s final order unless Gunderson petitioned for review by DOL’s Administrative Review Board within ten business days. 29 C.F.R. § 1982.110(a) (2011). The regulations further provided that the claimant has a “kick-out” right only “[i]f there is no final order of the Secretary.” 29 C.F.R. § 1982.114(a).

II. This Lawsuit.

Gunderson filed this action nine business days after receiving the ALJ’s decision, without petitioning for further review, and more than three-and-a-half years after he acquired the right to abandon the administrative proceedings and file a “kick-out” action. He again alleged that BNSF fired him in retaliation for engaging in FRSA-protected activity. BNSF moved to dismiss, arguing that Gunderson waived his right to bring a de novo action in federal court by actively litigating his claim in an administrative forum for over four years. The district court converted the motion to dismiss into a motion for summary judgment because BNSF submitted portions of the administrative record, see Fed. R. Civ. P. 12(d), and denied the motion. Noting it had “a great deal of sympathy for BNSF’s argument” because permitting Gunderson to proceed in federal court after pursuing the administrative process almost to its conclusion was “extremely wasteful,” the court concluded it was “constrained to hold that Gunderson has not waived his statutory right to file this action.” Gunderson v. BNSF Ry., 29 F.Supp.3d 1259, 1262, 1264 (D. Minn. 2014). After the court declined to certify an interlocutory appeal, the parties engaged in substantial discovery.

To prevail on his FRSA retaliation claim, Gunderson must prove, by a preponderance of the evidence, that “(i) he engaged in a protected activity; (ii) BNSF knew or suspected, actually or constructively, that he engaged in the protected activity; (iii) he suffered an adverse action; and (iv) the circumstances raise an inference that the protected activity was a contributing factor in the adverse action.” Kuduk, 768 F.3d at 789. If Gunderson makes that showing, BNSF can avoid liability if it “demonstrates, by clear and convincing evidence, that [it] would have taken the same unfavorable personnel action in the absence of [Gunderson’s protected activity].” 49 U.S.C. § 42121(b)(2)(B)(ii). At the conclusion of discovery, the district court reviewed the lengthy record and granted BNSF’s motion for summary judgment. The court ruled that Gunderson made a sufficient showing he engaged in protected activity, BNSF knew of that activity, and he suffered an adverse action. However, the court concluded, (i) Gunderson did not present sufficient evidence to permit a reasonable jury to find that FRSA-protected activity was a “contributing factor” to his discharge, and (ii) alternatively, BNSF proved by clear and convincing evidence that it would have dismissed Gunderson regardless of his protected activity.

III. The Merits.

On appeal, Gunderson argues there is evidence in the summary judgment record permitting a jury to find that FRSA-pro-tected activities were a contributing factor in his discharge: (i) he was a prominent safety advocate at the Willmar Yard for the eight or nine years prior to termination, serving during his last year on the Willmar Yard site safety committee; (ii) though he suffered no prior adverse action for his many safety complaints, supervisors Babik and Beam were openly hostile, with Beam expressing the view that his job would be easier if Gunderson were not around because he was unwilling to let go of safety matters, and Babik referring to Gunderson’s lighting complaints as “whining”; (iii) though Babik insisted that Gun-derson fill out an injury report after hurting his shoulder at work, see 49 C.F.R. § 225.19(d) (2015), Beam and Babik were hostile toward him because supervisors’ bonuses depended in part on the number of injuries suffered in their territory; (iv) decision-maker Ebel attended meetings where Gunderson raised safety complaints; (v) Beam and Babik participated in the decision-making process; (vi) BNSF served its Notice of Investigation on Mace by certified mail, but served the first Notice of Investigation on Gunderson personally, with surveillance, resulting in the second investigation; and (vii) BNSF disciplined the similarly situated Mace less severely, an inconsistent application of its “zero tolerance” for workplace harassment.

At issue is the fourth element of Gunderson’s retaliation case, whether his protected activity was a contributing factor in his discharge. To avoid summary judgment on this element, he must submit sufficient evidence of “intentional retaliation prompted by the employee engaging in protected activity.” Kuduk, 768 F.3d at 791. A “contributing factor” includes “any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision.” Id. In considering this element, we must take into account “the evidence of the employer’s non-retaliatory reasons.” Palmer v. Canadian Nat’l Ry., ARB No. 16-035, 2016 WL 5868560, *33 (DOL Admin. Rev. Bd. Sept. 30, 2016).

In reviewing this issue, five highly relevant facts stand out. First, the disciplinary investigations that led to Gunderson’s discharge were “completely unrelated” to his protected activity. Kuduk, 768 F.3d at 792. Second, Gunderson’s prior safety-related activities were remote in time and disconnected from the disciplinary proceedings by an “intervening event that independently justified adverse disciplinary action”— union president Campen complaining to management that two members were being harassed. Id.; see Feldman v. Law Enf't Assocs. Corp., 752 F.3d 339, 348 (4th Cir. 2014) (“causal connection may be severed by the passage of a significant amount of time, or by some legitimate intervening event”). Third, Gunderson was discharged after disciplinary hearings at which he was represented by union counsel, and the decisions to discharge were upheld by BNSF internally and by a Railway Labor Act arbitration panel. Fourth, the merits of the discharge were again reviewed in a six-day hearing before a DOL ALJ, who concluded that “Mr. Gun-derson’s raising safety concerns played no part in BNSF’s decision to terminate.” Fifth, the decision to discharge was made by General Manager Ebel after consulting with his supervisors and with BNSF human relations officers, not by Babik and Beam, the lower-level supervisors Gunder-son accuses of safety-related bias.

The fact section of Gunderson’s brief reprises his attacks on the merits of the discharge decision and asserts that BNSF’s reasons for firing him “were pre-textual, and thus retaliatory.” We decline to review the merits of the discipline because “federal courts do not sit as a super-personnel department that re-examines an employer’s disciplinary decisions.” Kuduk, 768 F.3d at 792 (quotation omitted). The critical inquiry in a pretext analysis “is not whether the employee actually engaged in the conduct for which he was terminated, but whether the employer in good faith believed that the employee was guilty of the conduct justifying discharge.” McCullough v. Univ. of Ark. for Med. Scis., 559 F.3d 855, 861-62 (8th Cir. 2009). Moreover, if the discipline was wholly unrelated to protected activity, as the ALJ found, whether it was fairly imposed is not relevant to the FRSA causal analysis. “An employee who engages in protected activity is not insulated from adverse action for violating workplace rules, and an employer’s belief that the employee committed misconduct is a legitimate, non-discriminatory reason for adverse action.” Richey v. City of Independence, 540 F.3d 779, 784 (8th Cir. 2008).

On appeal, Gunderson emphasizes evidence supporting the inference that Babik and Beam were hostile to Gunderson’s safety complaints and injury reporting. Ba-bik and Beam participated in the investigations and testified at the disciplinary hearings, he argues, where they served as “cat’s paws” to Ebel, the ultimate decision-maker. We agree with the district court that Gunderson failed to present “evidence that Beam or Babik influenced either of Ebel’s [discharge] decisions.” In this regard, we will limit our focus to the first investigation, Gunderson’s harassment and intimidation of co-worker Duke. This matter was brought to BNSF’s attention by a complaint from union president Campen. Babik’s only role was to forward the complaint to his supervisor, consistent with BNSF policy requiring him to report a complaint of workplace harassment, and to arrange for witness interviews. There is no evidence that his motive in doing these routine tasks was to retaliate against Gun-derson for remote-in-time FRSA-protected activities. Beam played no role in initiating the first investigation, did not testify at the first hearing, and was not involved in Ebel’s decision to discharge Gunderson for the harassment. As the district court noted, Beam and Babik had only “trivial” participation in BNSF’s preparation to prosecute the investigation hearings.

Gunderson further argues that BNSF’s disparate treatment of Gunderson and Mace is evidence that Gunderson’s protected activities contributed to his dismissal. We note that Mace, like Gunder-son, was one of the “loud people in Will-mar” engaged in safety advocacy and had submitted an injury report, so more lenient treatment of Mace, who engaged in similar protected activities, would undermine Gunderson’s retaliation claim. See Bone v. G4S Youth Servs., LLC, 686 F.3d 948, 957 (8th Cir. 2012). More importantly, the first investigation confirmed that Gun-derson and Mace were not similarly situated. BNSF officers opined that Mace’s one short, cordial conversation with Cluka did not have the “same degree of severity” as Gunderson’s harassment of Duke. Cluka testified that Mace asked him to withdraw his allegations against Peterson and never raised the subject again, whereas Gunder-son’s harassment of Duke was repeated and serious.

For these reasons, we conclude that summary judgment dismissing Gunder-son’s retaliation claim must be affirmed because he failed to submit evidence that would permit a reasonable jury to infer that his FRSA-protected activities were a contributing factor in BNSF’s decision to discharge Gunderson for harassing and intimidating co-worker Duke. Therefore, we need not consider the district court’s alternative ground, that BNSF proved by clear and convincing evidence it would have dismissed Gunderson regardless of his protected activity. Cf. Koziara v. BNSF Ry., 840 F.3d 873, 878-79 (7th Cir. 2016).

IV. The Waiver Issue.

In defending the district court’s summary judgment decision, BNSF urges us to rule, contrary to the district court, that Gunderson waived his right to file a de novo action in district court by engaging in protracted administrative adjudication of the merits of his FRSA retaliation claim. In addressing this issue, we begin like the district court with the statute’s text:

[I]f the Secretary of Labor has not'issued a final decision within 210 days after the filing of the complaint [with DOL] and if the delay is not due to the bad faith of the employee, the employee may bring an original action at law or equity for de novo review in the appropriate district court ... which shall have jurisdiction over such an action....

49 U.S.C. § 20109(d)(3). Use of the present perfect tense — if the Secretary “has not issued a final decision” — indicates that, after 210 days, the complainant may abandon agency proceedings and resort to federal district court, so long as the 210-day delay is not due to his bad faith. But if the claimant’s administrative complaint proceeds to a final order, only the courts of appeals have jurisdiction to review the final agency action. See § 20109(d)(4); 29 C.F.R. § 1982.112(a), (b).

The statute is silent on the question BNSF raises — whether a claimant’s conduct after his right to file a “kick-out” lawsuit has vested can waive his right to commence an action in district court. BNSF argues that it can: “Just as litigating in court waives the right to arbitrate, and litigating in state court waives the right to remove to federal court, and litigating in one district waives the right to transfer to another, an FRSA plaintiffs active and substantial litigation before OSHA, the ALJ, and/or the ARB past the 210-day mark waives the right to invoke FRSA’s ‘kick-out’ option.” BNSF cites no prior case in which an FRSA plaintiffs kick-out lawsuit has been dismissed on the pleadings because the plaintiffs prior litigation before the agency waived his statutory right to file a judicial de novo action before the DOL issued a final agency order.

In other contexts, a party’s wasteful pursuit of two duplicative remedies will be deemed a waiver of one or the other. See, e.g., PR Group, LLC v. Windmill Int’l, Ltd., 792 F.3d 1025, 1026 (8th Cir. 2015) (removal to federal court); Erdman Co. v. Phoenix Land & Acquisition, LLC, 650 F.3d 1115, 1117 (8th Cir. 2011) (right to compel arbitration). However, the federal statutes underlying those decisions created or permitted alternative, not sequential remedies. Here, the statute expressly authorizes, indeed mandates pursuit of an administrative remedy before allowing pursuit of a sequential de novo judicial remedy that will necessarily be duplicative to some extent. So the question becomes, when does the employee’s extended pursuit of an administrative remedy that must be exhausted for at least 210 days reflect his intentional abandonment of the § 20109(d)(3) judicial remedy? BNSF fails to suggest a specific answer to this question, simply arguing that “such duplicative litigation wastes scarce resources,” as Congress surely knew in drafting the statute.

In opposing BNSF’s waiver contention, Gunderson argues that § 20109(d)(3) by its express terms gives the employee-complainant an absolute right to file a kick-out de novo action if more than 210 days have elapsed since the administrative complaint was‘filed, the delay is not attributable to the employee’s bad faith, and the Secretary has not issued a final order reviewable by a court of appeals. We disagree. In the first place, the Supreme Court has, “in the context of a broad array of constitutional and statutory provisions, articulated a general rule that presumes the availability of waiver.” New York v. Hill, 528 U.S. 110, 114, 120 S.Ct. 659, 145 L.Ed.2d 560 (2000) (quotation omitted). Gunderson fails to articulate why that principle would not apply to this statute. Second, because no federal statute of limitations expressly applies to § 20109(d)(3) actions, and because equitable relief such as reinstatement is authorized, it is likely that common law principles of laches may apply to cut off an employee’s right to sue, -or at least to seek equitable relief, some time after the § 20109(d)(3) action accrues. See Brown-Mitchell v. Kansas City Power & Light Co., 267 F.3d 825, 827 (8th Cir. 2001) (Title VII post-charge delay); see generally Petrella v. Metro-Goldwyn-Mayer, Inc., — U.S. -, 134 S.Ct. 1962, 188 L.Ed.2d 979 (2014); Astoria Fed. Sav. and Loan Ass’n v. Solimino, 501 U.S. 104, 108, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991) (“[WJhere a common-law principle is well established ... courts may take it as given that Congress has legislated with an expectation that the principle will apply except when a statutory purpose to the contrary is evident.”); Teamsters & Emp’rs Welfare Tr. of Ill. v. Gorman Bros. Ready Mix, 283 F.3d 877, 880-82 (7th Cir. 2002).

For laches to apply, defendant must prove: “(1) the plaintiff unreasonably and inexcusably delayed .filing the lawsuit, and (2) prejudice to the defendant from the delay.” Brown-Mitchell, 267 F.3d at 827. As BNSF did not sufficiently develop its alternative waiver argument, did not raise a laches or estoppel defense in the district court or on appeal, and presented insufficient proof (if any) on these fact intensive issues, we leave these questions for another day.

The judgment of the district court is affirmed.

COLLOTON, Circuit Judge,

concurring in part and concurring in the judgment.

I concur in Part I through III of the opinion of court, but do not join Part IV. The discussion of the common law principles of laches in Part IV is pure dicta, on an issue raised sua sponte by my colleagues. Where the question is unnecessary to a decision, and without briefing or argument on the complex issues lurking therein, including what statute of limitations might apply to an action under 49 U.S.C. § 20109(d)(3) and the implication of a limitations period for the availability of a laches defense, see Petrella v. Metro-Goldwyn-Mayer, Inc., - U.S. -, 134 S.Ct. 1962, 1973-74, 188 L.Ed.2d 979 (2014), I express no view on whether the defense is “likely” to cut off an employee’s right to sue or to seek equitable relief. Nor is it necessary, given the conclusion in Part III, to address the company’s contention that Gunderson, by his conduct, waived his right to file a de novo action in the district court. In particular, I do not join the court’s apparent assumption that “Congress surely knew in drafting the statute” that railroad employees could undertake the sort of wasteful duplicative litigation displayed in this case, where a claimant pursued administrative remedies for nearly four years after expiration of the 210-day statutory period, received an unfavorable decision from an administrative law judge, and then started over with a dupli-cative de novo action in federal court.

      . The Honorable Patrick J. Schiltz, United States District Judge for the District of Minnesota.

      . Prior to oral argument, the Association of American Railroads ("AAR”) filed a contested motion for leave to file a brief as amicus curiae in support of BNSF. We took the motion for consideration with the case and now grant AAR leave to file its brief. See F.R.A.P. Rule 29.

      . Rule 1.6 provides that "[a]ny act of hostility [or] misconduct, ... affecting the interest of the company or its employees is cause for dismissal and must be reported."

      . An employee alleging an FRSA violation must first file á complaint with the Secretary of Labor within 180 days. 49 U.S.C. §§ 20109(d)(2)(A)(ii).

      . DOL published an interim final rule on August 31, 2010. See Procedures for the Handling of Retaliation Complaints, 75 Fed. Reg. 53527 (Aug. 31, 2010) (codified at 29 C.F.R. Part 1982). In 2015, DOL published its final rule after notice and comment. See Procedures for the Handling of Retaliation Complaints, 80 Fed. Reg. 69115 (Nov. 9, 2015) (codified at 29 C.F.R. Part 1982).

      . On appeal, BNSF does not contend that Gunderson presented insufficient evidence to avoid summary judgment on those elements of his retaliation claim.

      . The complaints included safety problems caused by snow build-up in the yard, leading BNSF to shut down the yard in December 2007; complaints that BNSF was not performing newly required air tests, prompting BNSF to conduct these tests; repeated complaints of inadequate lighting in the yard, ultimately causing BNSF to install $250,000 of new lighting equipment; and other unsafe working conditions. Gunderson raised these issues at safety meetings and in emails to General Manager Ebel and Terminal Manager Beam.

      . BNSF explained that Gunderson was working on the day the Notices issued while Mace was on vacation.

      . The cat’s paw theory requires proof that a supervisor "perform[ed] an act motivated by [discriminatory] animus that is intended by the supervisor to cause an adverse employment action ... if that act is a proximate cause of the ultimate employment action.” Kuduk, 768 F.3d at 790, quoting Staub v. Proctor Hosp., 562 U.S. 411, 131 S.Ct. 1186, 1194, 179 L.Ed.2d 144 (2011) (emphasis in original).

      . Gunderson argues we cannot consider BNSF’s waiver argument because BNSF has not cross-appealed the district court’s final order. This contention is without merit. “We may affirm a judgment on any ground raised in the district court, and the party that pré-vailed in the district court need not file a cross-appeal to raise alternative grounds for affirmance.” Transcon. Ins. Co. v. W.G. Samuels Co., 370 F.3d 755, 758 (8th Cir. 2004); see Hudson Specialty Ins. Co. v. Brash Tygr, LLC, 769 F.3d 586, 593 (8th Cir. 2014).

      . At least one circuit has held that the ''catchall” four-year statute of limitations in 28 U.S.C. § 1658(a) applies to a similar whis-tleblower statute. Jones v. Southpeak Interactive Corp., 777 F.3d 658, 666 (4th Cir. 2015).


source: Caselaw Access Project

author: LOKEN, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee v. Timothy D. KOONS, Defendant-Appellant United States of America, Plaintiff-Appellee v. Kenneth Jay Putensen, Defendant-Appellant United States of America, Plaintiff-Appellee v. Randy Feauto, Defendant-Appellant United States of America, Plaintiff-Appellee v. Esequiel Gutierrez, Defendant-Appellant United States of America, Plaintiff-Appellee v. Jose Manuel Gardea, Defendant-Appellant
    No. 15-3794, No. 15-3825, No. 15-3854, No. 15-3880, No. 15-3894
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 19, 2016
    Filed: March 10, 2017

      Counsel who presented argument on behalf of the appellants was Joseph Herrold, AFPD, of Des Moines, IA.
    Pamela Wingert, of Spirit Lake, IA filed a brief on behalf of Esequiel Gutierrez (15-3880). Joseph Herrold filed a brief on behalf of all other defendant/appellants.
    Counsel who presented argument on behalf of the appellee was Patrick J. Reinert, AUSA, of Cedar Rapids, IA. The following attorney appeared on the appellee brief; Shawn Wehde, AUSA, of Sioux City, IA.
    Before WOLLMAN, LÓKEN, and BENTON, Circuit Judges.
   LOKEN, Circuit Judge.

In these consolidated appeals, five defendants convicted of methamphetamine conspiracy offenses appeal denial of their motions for sentence reductions under 18 U.S.C. § 3582(c)(2). For all five, the initial advisory guidelines range was entirely below the statutory mandatory minimum, and each was sentenced below that minimum after the district court granted government motions for § 3553(e) substantial assistance departures. The question is. whether §• 3582(c)(2) relief is now available because Amendment 782 to the Guidelines retroactively reduced by two levels the base offense levels assigned to drug quantities, lowering' the advisory guidelines range for most drug offenses. We conclude that these defendants are not eligible for a § 3582(c)(2) reduction because their sentences were not “based oh” a guidelines range subsequently lowered by the Sentencing Commission. Thus, we affirm the district court’s denial of sentencing reductions on a different ground.

I.

In November 2012, Randy Feauto pleaded guilty to conspiracy to manufacture and distribute 50 grams or more of actual methamphetamine and unlawful possession of a firearm. Feauto’s advisory guidelines range was 168 to 210 months in prison, but the conspiracy offense mandated a statutory minimum 20-year sentence, which became his guidelines sentence under U.S.S.G. § 5Gl.l(b). The^ government moved for a substantial assistance downward departure. See 18 U.S.C. § 3553(e); U.S.S.G. § 5K1.1. The government recommended a ten percent reduction because Feauto had continued dealing drugs while assisting law enforcement by making controlled buys from drug dealers. The district court imposed a 132-month sentence, 45 percent below the mandatory -minimum.

After Amendment 782 became effective on November 1, 2014, the district court initiated a § 3582(c)(2) proceeding to determine whether Feauto was eligible for a sentence reduction. The United States Probation Office calculated his amended guidelines range to be 121 to 151 months in prison, disregarding § 5G1.1 of the Guidelines, as U.S.S.G. § lB1.10(c) instructs. Promulgated by the Commission in Amendment 780, § 1B1.10(c) provides, with emphasis added:

Cases Involving Mandatory Minimum Sentences and Substantial Assistance. If the case involves a statutorily required minimum sentence and the court had the authority to impose a sentence below the statutorily required minimum sentence pursuant to a government motion to reflect the defendant’s substantial assistance to authorities, then for purposes of this policy statement the amended guideline range shall be determined without regard to the operation of § 5G1.1 (Sentencing on a Single Count of Conviction) and § 5G1.2 (Sentencing on Multiple Counts of Conviction).

This appeared to make Feauto eligible for discretionary § 3582(c)(2) relief that could reduce his sentence to as low as 67 months, a reduction comparable to the initial 45 percent substantial assistance reduction. See U.S.S.G. § 1B1.10, cmt. n.4.

At the § 3582(c)(2) motion-hearing, the district court commented, “I don’t see how a retroactive guideline can essentially trump a mandatory minimum like it does in this case,” arid ordered briefing on the issue. The government and Feauto agreed he was eligible for a reduction, but disagreed as to whether the district court should exercise its discretion to reduce his sentence. After- giving the parties an opportunity to comment on its tentative decision, the court ruled that the Sentencing Commission exceeded its authority in promulgating a guideline, § lB1.10(c), that nullifies the statutory minimum sentence, or that Congress violated the non-delegation doctrine and separation-of-powers principles if it granted that authority. Accordingly, the district court concluded, Feauto was not eligible for § 3582(c)(2) relief because he “was subject to a mandatory minimum sentence exceeding both his original guideline range and his amended guideline range.” United States v. Feauto, 146 F.Supp.3d 1022, 1041 (N.D. Iowa 2015). This decision was consistent with controlling Eighth Circuit precedent prior to the adoption of § lB1.10(e) in November 2014. See United States v. Moore, 734 F.3d 836, 838 (8th Cir. 2013).

The other four appellants were likewise convicted of drug conspiracy offenses mandating statutory minimum sentences greater than their entire advisory guidelines ranges — Timothy Koons (20-year mandatory minimum), Kenneth Jay Putensen (life), Jose Gardea (10 years), and Esequiel Gutierrez (20 years). Each was granted a substantial assistance reduction below the mandatory minimum sentence — Koons to 180 months (25 percent); Putensen to 264 months (35 percent); Gardea to 84 months (30 percent); and Gutierrez to 192 months (36 percent). Amendment 782 lowered their amended guidelines ranges further below the mandatory minimum, calculated in accordance with § lB1.10(c). The district court denied § 3582(c)(2) sentencing reductions, relying on its ruling in Feauto. These appeals followed. We review defendants’ eligibility for § 3582(c)(2) sentence reductions de novo. United States v. Bogdan, 835 F.3d 805, 807 (8th Cir. 2016).

II.

Providing a rare exception to the finality of criminal judgments, § 3582(c)(2) allows a district court to reduce the sentence of “a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission ... if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” The applicable policy statement, U.S.S.G. § 1B1.10, provides that a defendant is eligible for a discretionary § 3582(c)(2) reduction if his applicable guidelines range is lowered by a retroactive amendment listed in § 1B1.10(d), such as Amendment 782. See U.S.S.G. § lB1.10(a). The extent of a § 3582(c)(2) reduction is normally limited to the bottom of the amended guidelines range, but if the defendant initially received a sentence below the initial guidelines range by reason of a substantial assistance reduction, “a reduction comparably less than the amended guideline range ... may be appropriate.” § lB1.10(b)(2)(B).

For a defendant to be eligible for § 3582(c)(2) relief under U.S.S.G. § 1B1.10(a), Amendment 782 must lower his applicable guideline range. A conflict in the circuits developed regarding how to determine eligibility when the applicable guidelines range is affected by a mandatory minimum sentence. Some circuits held that a retroactive amendment did not have the effect of lowering the defendant’s applicable guidelines range because, by reason of § 5Gl.l(b), the amended and original range were both determined by the mandatory minimum. See, e.g., United States v. Joiner, 727 F.3d 601, 608-09 (6th Cir. 2013), cert. denied, — U.S. -, 134 S.Ct. 1357, 188 L.Ed.2d 357 (2014); United States v. Johnson, 732 F.3d 109, 114-15 (2d Cir. 2013); United States v. Baylor, 556 F.3d 672, 673 (8th Cir. 2009). In promulgating § lB1.10(e), the Commission explained that “circuits are split over what to use as the bottom of the [amended] range.” The Commission “generally adopt[ed]” the approach of the Third Circuit and the D.C. Circuit — when a defendant’s initial guidelines range was entirely below the mandatory minimum, “the bottom of the amended range [is] ... the bottom of the Sentencing Table guideline range,” disregarding § 5G1.1(b). U.S.S.G. App. C, Amend. 780, at 56 (Supp. 2015), citing United States v. Savani, 733 F.3d 56, 66-67 (3d Cir. 2013), and In re Sealed Case, 722 F.3d 361, 369-70 (D.C. Cir. 2013).

The government’s interpretation of § lB1.10(c) makes defendants eligible for § 3582(c)(2) reductions, contrary to our controlling prior precedents. See Moore734 F.3d at 838; Baylor, 556 F.3d at 673. On appeal, the government argues that § lB1.10(c) requires us to reexamine these precedents and urges us to follow the Fourth Circuit panel majority in United States v. Williams, 808 F.3d 253 (4th Cir. 2015). Defendants are eligible for discretionary § 3582(c)(2) reductions, the government argues, because § 3582(c)(2) authorizes a reduction based on a defendant’s substantial assistance if it is “consistent with applicable policy statements issued by the Sentencing Commission.”

As we noted in Bogdan, 835 F.3d at 807, the government, like the Commission, ignores a critical “threshold question” raised by the plain language of § 3582(c)(2), namely, whether each defendant was sentenced “based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” § 3582(c)(2) (emphasis added); see Dillon v. United States, 560 U.S. 817, 821, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010). Like the defendants in this case, Joseph Bogdan’s guidelines range was entirely below the mandatory minimum, and he received an initial sentence below the mandatory minimum for his substantial assistance. We did not answer this threshold question in Bogdan because that case turned on the application of the Supreme Court’s decision in Freeman v. United States, 564 U.S. 522, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011), to defendant Bogdan’s Rule 11(c)(1)(C) plea agreement. But we were “inclined to agree with Fourth Circuit Chief Judge William Trax-ler that, in this situation, the sentence would not be based on a range the Sentencing Commission subsequently lowered, ‘because it was not based on a sentencing range in the first instance.’ ” Id, at 808, quoting Williams, 808 F.3d at 264 (Traxler, C.J., dissenting). “The more logical interpretation would be that the [term of imprisonment] was based on the mandatory minimum, not on a guidelines range.” Bogdan, 835 F.3d at 809.

With the issue now fully briefed and argued, we adhere to our tentative conclusion in Bogdan. When the district court grants a § 3553(e) substantial assistance motion and grants a substantial assistance departure to a defendant whose guidelines range is entirely below • the mandatory minimum sentence, the court must use the mandatory minimum as the starting point. See United States v. Billue, 576 F.3d 898, 904-05 (8th Cir.), cert. denied, 558 U.S. 1058, 130 S.Ct. 765, 175 L.Ed.2d 533 (2009). Any “reduction below the statutory minimum must be based exclusively on assistance-related considerations.” United States v. Williams, 474 F.3d 1130, 1131 (8th Cir. 2007); see Feauto, 146 F.Supp.3d at 1036, 1039. In these cases, each defendant’s prison term' was “based on” his statutory mandatory minimum sentence and his substantial assistance. The guidelines range “artificially established by § 5Gl.l(b)” depended upon the mandatory minimum. Bogdan, 835 F.3d at 809. If § 5G1.1(b) did not exist, the district court would still have set these defendants’ sentences at the mandatory minimum before considering a substantial assistance departure. And if initially sentenced today with Amendment 782 in effect, the defendants would be “stuck with that mandatory minimum sentence as a ‘starting point’ for any substantial assistance reduction.” Feauto, 146 F.Supp.3d at 1037. “In essence, the advisory sentencing range became irrelevant.” Williams, 808 F.3d at 264 (Traxler, C.J., dissenting).

We respectfully decline to follow the Fourth Circuit panel majority in Williams. In United States v. Hood, 556 F.3d 226 (4th Cir.), cert. denied, 558 U.S. 921, 130 S.Ct. 321, 175 L.Ed.2d 212 (2009), an earlier Fourth Circuit panel concluded: “Because Hood’s 240-month Guidelines sentence was based on a statutory minimum and U.S.S.G. § 5Gl.l(b), it was not based on a sentencing range lowered by Amendment 706, and at this point in the analysis, Hood would not be eligible for a reduced sentence under § 3582(c)(2).” Hood, 556 F.3d at 233. Likewise, in Moore, 734 F.3d at 838, we held that “Moore’s sentence was based on a statutory mandatory minimum term of imprisonment. Accordingly, Amendment 750 does not apply ... and Moore is not eligible for relief under section 3582(c)(2).” Then-Chief Judge Trax-ler’s dissent in Williams specifically relied on Hood ⅛ statutory “based on” analysis, 808 F.3d at 265-66, yet the Williams majority concluded that Hood was simply “inapplicable” after Amendment 780, ignoring altogether that “based on” is a statutory prerequisite of § 3582(c)(2) eligibility, M at 261.

The Commission in Amendment 780 also ignored this “based on” statutory requirement, despite numerous circuit court decisions such as Hood and Moore that had considered this a critical, if not determinative, issue. For example, in “generally” adopting the Third Circuit and D.C. Circuit “approach,” the Commission did not acknowledge the D.C. Circuit’s analysis of the “based on” requirement in In re Sealed Case, 722 F.3d at 365-66, nor the fact that the Third Circuit in Savani, 733 F.3d at 67, after concluding that “applicable guideline range” in § lB1.10(a)(2)(B) was ambiguous and should be construed in favor of the defendants under the Rule of Lenity, remanded for consideration of whether defendants’ sentences were “based on” a guidelines range in light of Freeman. See also United States v. Glover, 686 F.3d 1203, 1208 (11th Cir. 2012).

The Commission’s failure to consider the meaning of the term “based on” in § 3582(c)(2) is especially perplexing given the Supreme Court’s recent decision in Freeman. That case turned on whether a defendant who was sentenced in accordance with a Rule 11(c)(1)(C) plea agreement was ineligible for a § 3582(c)(2) reduction because his sentence was “based on” the plea agreement, rather than on a lowered sentencing range., Five Justices held that the sentence was based on the plea agreement. See 564 U.S. at 535, 131 S.Ct. 2685 (Sotomayor, J., concurring), 545 (Roberts, C.J., dissenting). The dissenters acknowledged that a defendant’s sentence is “based on” a guidelines range when his Rule 11(c)(1)(C) plea agreement “expressly provided] that the court will sentence the defendant within an applicable Guidelines range.” Id at 546, 131 S.Ct. 2685. Justice Sotomayor concurred in the result, concluding the defendant is also eligible for relief if the plea agreement “make[s] clear that the basis for the specified [prison] term is [an applicable] Guidelines sentencing range.” IcL at 539, 131 S.Ct. 2685. The plurality, in the minority on this issue, concluded that the sentence imposed pursuant to a Rule 11(c)(1)(C) plea agreement is “based on” the applicable guidelines range considered by the district court in accepting the agreement. Id. at 529, 131 S.Ct. 2685.

The reasoning of all nine Justices in Freeman required a greater substantive relationship between the plea agreement and a guidelines range than the fictional relationship between a mandatory minimum sentence required by statute and a guidelines “range” determined by § 5Gl.l(b). A § 5Gl.l(b) artificial range in .no substantive way “serves as the basis or foundation for the term of imprisonment.” Id. at 535, 131 S.Ct. 2685 (Sotomayor, concurring). Justice Sotomayor’s concurring opinion controls in construing Freeman. See United States v. Browne, 698 F.3d 1042, 1045 (8th Cir. 2012), cert. denied, — U.S.—, 133 S.Ct. 1616, 185 L.Ed.2d 602 (2013). But all nine Justices construed the term “based on” as imposing a substantive limitation on § 3582(c)(2) relief, a limitation inconsistent with the examples discussed by the Commission in Amendment 780, and with the result reached by the Fourth Circuit majority in Williams.

Congress has declared that the Commission’s guidelines and policy statements shall “establish a sentencing range that is consistent with all pertinent provisions of title 18, United States Codé.” 28 U.S.C. § 994(b)(1). But the Commission’s interpretation of § 3582(c)(2) ignores the statute’s plain text as construed in Freeman — defendants’ sentences were “based on” the mandatory minimum and their substantial assistance, not on “a sentencing range that has subsequently been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Once the Supreme Court determines the meaning of a statute, courts “assess an agency’s later interpretation of the statute against that settled law.” Neal v. United States, 516 U.S. 284, 295, 116 S.Ct. 763, 133 L.Ed.2d 709 (1996). “[T]he Commission does not have the authority to amend [a] statute” the Supreme Court has construed. Id. at 290, 116 S.Ct. 763; see United States v. Stoneking, 60 F.3d 399, 402 (8th Cir. 1995) (en banc). “If the Commission’s revised commentary is at odds with [§ 3582(c)(2)’s] plain language, it must give way.” United States v. LaBonte, 520 U.S. 751, 757, 117 S.Ct. 1673, 137 L.Ed.2d 1001 (1997). Nor can “the Sentencing Commission ... overrule circuit precedent interpreting a statutory provision.” Williams, 808 F.3d at 266 (Traxler, C.J., dissenting).

For these reasons, we conclude that the defendants are ineligible for § 3582(c)(2) sentencing reductions because their initial sentences were not “based on” a guidelines range lowered by Amendment 782. Accord United States v. C.D., No. 15-3318+, 2017 WL 694483, 848 F.3d 1286 (10th Cir. Feb. 22, 2017). Accordingly, the district court orders denying § 3582(c)(2) reductions are affirmed.

      . In deciding these appeals, we accept the Commission's resolution of conflicting judicial interpretations of the term “applicable guideline range" in U.S.S.G. § 1B1.10(a). "[P]rior judicial constructions of a particular guideline cannot prevent the Commission from adopting a conflicting interpretation” provided it does not violate the Constitution or a federal statute and is not plainly erroneous. Stinson v. United States, 508 U.S. 36, 46, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993). The district court concluded that § IB 1.10(c) is constitutionally flawed, an issue we do not address.

      . The original Commentary to § 5G1.1 stated, more plainly than the amended version, "[i]f the statute requires imposition of a sentence other than that required by the guidelines, the statute shall control." U.S.S.G. App. C, Vol. 1, Amend. 286.


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Hosea Latron SWOPES, Defendant-Appellant.
    No. 16-1797
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 23, 2016
    Filed: March 10, 2017

      Counsel who presented argument on behalf of the appellant was Scott Tilsen, AFPD, of Cape Girardeau, MO. The following attorney also appeared on the appellant brief; Nanci McCarthy, AFPD, of Saint Louis, MO.
    Counsel who filed a brief and presented argument on behalf of the appellee was Allison Hart Behrens, AUSA, of Saint Louis, MO.
    Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.
   PER CURIAM.

Hosea Swopes pleaded guilty to unlawful possession of a firearm as a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1). The district court concluded that Swopes was subject to an enhanced sentence under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). The ACCA requires a minimum 15-year prison sentence for a felon in possession of a firearm who has sustained three prior convictions for a violent felony or a serious drug offense. The district court cited Swopes’s prior Missouri convictions for unlawful use of a weapon, second-degree robbery, and first-degree robbery as three violent felonies.

Swopes argued in his opening brief that unlawful use of a weapon, in violation of Mo. Rev. Stat. § 571.030.1(4), is not a violent felony. The government countered that United States v. Pulliam, 566 F.3d 784 (8th Cir. 2009), held that a violation of the statute qualifies categorically. After the case was submitted, Swopes moved for leave to file a supplemental brief to argue, based on intervening circuit precedent, that second-degree robbery is not a violent felony. The government did not oppose leave.

Swopes points out that in United States v. Bell, 840 F.3d 963, 965-67 (8th Cir. 2016), a divided panel held that second-degree robbery in Missouri is not a “crime of violence” under the sentencing guidelines. As relevant here, “crime of violence” under the guidelines means an offense that has as an element “the use, attempted use, or threatened use of physical force against the person of another.” USSG § 4B1.2(a)(l). In Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265,176 L.Ed.2d 1 (2010), the Court held that the term “physical force” in a statute defining the term “violent felony” required the use of “violent force” — i.e., force that is capable of causing physical pain or injury to another person. Id. at 140, 130 S.Ct. 1265. This court in Bell reasoned that there is a reasonable probability that one could be convicted under the Missouri second-degree robbery statute without using, attempting to use, or threatening to use violent force, so second-degree robbery was not a “crime of violence.” 840 F.3d at 966-67. Swopes argues that the reasoning of Bell requires a ruling that second-degree robbery likewise is not a “violent felony” under the ACCA. '

We review Swopes’s new contention for plain error only, but we must consider the law in effect at the time of our decision. If the error is plain at the time of appellate review, then it is plain for purposes of Federal Rule of Criminal Procedure 52(b). Henderson v. United States, — U.S. —, 133 S.Ct. 1121, 1127, 185 L.Ed.2d 85 (2013). Bell involved the sentencing guidelines rather than the ACCA, but the operative text is the same: the statute, as relevant here, defines “violent felony” as an offense that has as an element “the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). The government argues that Bell was wrongly decided, but it does not suggest any reason why the enhancement in this case is not plainly erroneous under the reasoning of Bell. Cf. United States v. Ross, 613 F.3d 805, 809 (8th Cir. 2010). Nor does the government dispute that Swopes meets the remaining requirements for plain-error relief, including that the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. See United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Pirani, 406 F.3d 543, 553-54 (8th Cir. 2005) (en banc).

Accordingly, based on the intervening circuit precedent of Bell, we conclude that Swopes is entitled to relief. The reasoning of Bell dictates a conclusion that second-degree robbery in Missouri is not a-violent felony under the ACCA, and Swopes therefore does not qualify as an armed career criminal. The judgment of the district court is vacated, and the case is remanded for resentencing.


author: RILEY, Chief Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee v. Justin Patrick STEGALL, Defendant-Appellant
    No. 16-2549
    United States Court of Appeals, Eighth Circuit.
    Submitted: March 6, 2017
    Filed: March 13, 2017
    Rehearing Denied May 5, 2017

      Cameron C. McCree, Assistant U.S. Attorney, Erin Siobhan O’Leary, Assistant U.S. Attorney, Edward 0. Walker, Assistant U.S. Attorney, U.S. Attorney’s Office, Eastern District of Arkansas, Little Rock, AR, for Plaintiff-Appellee.
    John Wesley Hall, Jr., Attorney, John Wesley Hall, Jr., P.C., Little Rock, AR, for Defendant-Appellant.
    Justin Patrick Stegall, Pro Se.
    Before RILEY, Chief Judge , GRUENDER and KELLY, Circuit Judges.

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

   RILEY, Chief Judge.

After receiving a report of a road rage incident where a driver brandished a firearm, officers arrested Justin Patrick Ste-gall and charged him with terroristic threatening in the first degree. See Ark. Code Ann. § 5 — 13—301(a)(1). During a search of Stegall’s vehicle, officers discovered a short-barreled rifle and a handgun in the rear cargo area. A jury found Ste-gall guilty of possessing an unregistered short-barreled rifle in violation of 26 U.S.C. §§ 5845(a)(3), 5861(d), and 5871. Stegall appeals the district court’s order denying his motion to suppress evidence. Having jurisdiction under 28 U.S.C. § 1291, we affirm.

1. BACKGROUND

On September 9, 2013, an Arkansas State Trooper responded to a 911 call placed with the Benton, Arkansas, police department regarding a road rage incident where the driver of a silver sport utility vehicle (SUV) pulling a jet ski brandished a gun at the 911 caller. Observing a vehicle matching the description, the state trooper informed the Benton and Bryant police departments of the SUV’s location and heading. After temporarily losing track of the SUV, two Benton police officers found the vehicle parked and unoccupied at a shopping center in front of a hair salon and a deli. While the officers were searching the parking lot and surrounding businesses for the driver of the vehicle, a witness told them she “saw a gentleman get out of the vehicle, go to the back and seemingly put something up underneath something in the back of the vehicle ... and then [go] towards [the deli].”

After obtaining a description of the driver’s clothing, the officers searched the deli, but did not find anyone matching the witness’s information. The officers returned to the deli with the witness and she promptly identified the driver of the SUV by pointing at Stegall. Stegall admitted he was the driver of the SUV and involved in a road rage incident earlier that day with a vehicle similar to the one driven by the 911 caller. Although Stegall denied brandishing a firearm during the road rage incident, he told the officers he “probably” had a firearm in his vehicle. Stegall did not consent to a search of his vehicle.'

The officers detained Stegall and contacted the 911 caller, who came to the scene. The 911 caller immediately identified Stegall as the driver of the SUV who brandished a firearm at him. The officers arrested Stegall for terroristic threatening and placed him in restraints in the back of a .patrol vehicle. With Stegall in custody, the officers began to inventory the contents of Stegall’s vehicle before towing it. While searching the rear hatch of Stegall’s SUV, the officers discovered a handgun lodged between the back row of seats and the rear cargo floorboard and also an AR-15 rifle with an unusually short barrel. Recognizing the handgun matched the 911 caller’s description of the firearm used in the road rage incident and the possession of a short-barreled rifle could be an independent crime, the officers stopped inventorying Stegall’s SUV and prepared, an application for a search warrant.

Stegall was charged with one count of possessing an unregistered short-barreled rifle in violation of 26 U.S.C. §§ 5845(a)(3), 5861(d), and 5871. Stegall moved to suppress evidence obtained from the search of his SUV, arguing “the inventory search by [officers] ... was a constitutionally unreasonable ruse to conduct an investigatory search.” The district court denied Stegall’s motion, concluding the officers had a reasonable basis to search Stegall’s vehicle for the gun. A jury found Stegall guilty, and the district court sentenced him to 30 months imprisonment. Stegall appeals.

II. DISCUSSION

On appeal from the denial of a motion to suppress, we review the district court’s findings of fact for clear error and its legal conclusions de novo. See United States v. Sigillito, 759 F.3d 913, 923 (8th Cir. 2014). Stegall does not challenge the district court’s factual findings or its ruling that the officers had a reasonable basis to believe Stegall’s SUV contained evidence relevant to his arrest. In denying Stegall’s motion to suppress, the district court determined that the officers’ search of Ste-gall’s SUV was constitutionally reasonable under the second search incident to arrest exception as articulated by the United States Supreme Court in Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). Stegall challenges that determination, because “he was handcuffed and in custody and the police had the keys ... [so] [t]here no longer was any exigency.”

Under the search incident to arrest exception to the warrant requirement of the Fourth Amendment of the United States Constitution, officers may search a vehicle incident to an arrest only if (1) the arrestee is unrestrained and “within reaching distance of the passenger compartment” when the search begins or (2) “it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Id. at 351, 129 S.Ct. 1710. The district court determined the warrantless search of Ste-gall’s SUV was constitutionally reasonable under Gant’s second exception because the officers had a reasonable basis to believe Stegall’s SUV contained evidence relevant to the crime of his arrest. We agree. Under the second Gant exception, officers may conduct a warrantless search of a vehicle incident to arrest — even after the arrestee is restrained in the back of a patrol vehicle — when officers have a reasonable basis to believe the vehicle contains evidence related to the crime of arrest. See id.; see United States v. Allen, 713 F.3d 382, 387 (8th Cir. 2013).

Officers reasonably believed Ste-gall’s vehicle might contain evidence relevant to Stegall’s arrest for terroristic threatening because (1) Stegall confirmed he was the driver of the SUV and involved in an earlier road rage incident, (2) Stegall told the officers he “probably” had a firearm in his vehicle, (3) the 911 caller positively identified Stegall as the driver who brandished a gun at him during the reported road rage incident, and (4) a witness observed Stegall concealing something in the rear hatch of his SUV. Because these facts created a reasonable basis for the officers to believe Stegall’s SUV contained evidence relevant to the terroristic threat charge — the gun, we affirm the district court’s ruling that the officers’ warrantless search of Stegall’s SUV was reasonable. See Allen, 713 F.3d at 387.

Stegall contends the second Gant exception does not apply because he was restrained in police custody and, thus, could not acquire a weapon or destroy evidence. Stegall’s argument fails to appreciate the distinct rationales underlying the two Gant exceptions. See Gant, 556 U.S. at 339, 343, 129 S.Ct. 1710 (discussing the different policy interests supporting each exception). The first exception is grounded in the “safety and evidentiary interests” recognized in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), and New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), abrogated by Gant, 556 U.S. 332, 129 S.Ct. 1710. See Gant, 556 U.S. at 339-41, 346, 129 S.Ct. 1710. In contrast, the second exception is independent of the first and supported by “circumstances unique to the vehicle context.” Id. at 343, 129 S.Ct. 1710; see, e.g., Riley v. California, 573 U.S. —, —, 134 S.Ct. 2473, 2484, 189 L.Ed.2d 430 (2014) (“Gant added ... 'an independent exception for a warrantless search of a vehicle’s passenger compartment when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” (internal quotation marks omitted)); Allen, 713 F.3d at 387. Because the second Gant exception is supported by independent rationales, Stegall’s argument that “[t]here was no exigency for a search incident” to arrest because he was restrained and locked in the back of a patrol car is inapposite.

Stegall next asserts “the hatchback area of the car is akin to the trunk of a car, and it is not subject to search incident [to arrest] under Gant, Belton, or Chimel.” We disagree. Even if searches under the second Gant exception are limited to the passenger compartment, we, along with several of our Sister Circuits, have clearly held the hatchback or rear hatch area of a vehicle is a part of the passenger compartment “[a]s long as an occupant could have reached [that] area while inside the vehicle.” United States v. Barnes, 374 F.3d 601, 604 (8th Cir. 2004); see also United States v. Sain, 421 Fed.Appx. 591, 594 (6th Cir. 2011) (“[T]he question is not how [officers] chose to access the area, but rather how an occupant of the vehicle could have accessed it.”); United States v. Allen, 469 F.3d 11, 15-16 (1st Cir. 2006) (passenger compartment includes the rear hatch area of an SUV); United States v. Mayo, 394 F.3d 1271, 1277 (9th Cir. 2005) (concluding police conducting a search incident to arrest may search the hatchback area of arrestee’s vehicle); United States v. Olguin-Rivera, 168 F.3d 1203, 1205 (10th Cir. 1999) (same).

Stegall further proposes, “in light of Gant, this Court should reconsider its conclusion in Barnes that actual reachability under the circumstances is irrelevant.” We disagree again. While the Supreme Court rejected an overly broad application of the search incident to arrest exception, the Court did not alter the definition of the passenger compartment or constrain the scope of a legitimate search thereof. See Gant, 556 U.S. at 343, 129 S.Ct. 1710.

III. CONCLUSION

We affirm.

      . The Honorable Billy Roy Wilson, United States District Judge for the Eastern District of Arkansas.

      . The government also argues the officers’ search of Stegall’s vehicle was permissible under the inventory search exception to the warrant requirement. See United States v. Williams, 777 F.3d 1013, 1015 (8th Cir. 2015). We need not reach the question of whether the officers’ search of Stegall’s vehicle was valid under the inventory search exception because we agree with the district court that the search of Stegall’s vehicle was constitutionally reasonable under the search incident to arrest exception. See, e.g., United States v. Shackleford, 830 F.3d 751, 754 (8th Cir. 2016).


text:
    UNITED STATES of America, Plaintiff-Appellee v. Brian BOYKIN, Defendant-Appellant
    No. 16-1593
    United States Court of Appeals, Eighth Circuit.
    Submitted: November 14, 2016
    Filed: March 15, 2017

      Counsel who represented the appellant was Troy K. Stabenow, AFPD, of Jefferson City, MO.
    Counsel who represented the appellee was Michael S. Oliver, AUSA, of Jefferson City, MO.
    Before RILEY, Chief Judge, SMITH and KELLY, Circuit Judges.

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

   PER CURIAM.

Brian Boykin pleaded guilty to one count of possession with intent to distribute a controlled substance and two counts of distribution of a controlled substance, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). The United States Probation Office recommended a Sentencing Guidelines range of 70 to 87 months’ imprisonment based on a total offense level of 21 and criminal history category V. The district court sentenced Boykin to 98 months’ imprisonment. Boykin appeals his sentence as substantively unreasonable. We affirm.

I. Background

On November 21, 2013, Boykin sold 0.62 grams of heroin to a confidential informant (Cl) working for the Jefferson City Police Department in Missouri. Boykin sold another 0.30 grams of heroin to the same Cl the next day. When police arrested Boykin in February 2014, a search incident to arrest uncovered another 12 grams of heroin and an additional gram of crack cocaine on his person. Boykin confessed to regularly dealing heroin to approximately ten people, trafficking 10 to 20 grams of heroin per week for five months. Boykin spent two months in state custody for this offense, but the state dropped its charges once Boykin received a federal indictment. At the time of his February arrest, Boykin was on parole for a state conviction of trafficking drugs. Boykin contacted his parole officer to notify him of the new charge, and his parole was revoked. Boy-kin remained in state custody until April 2014, when he was transferred to the Federal Bureau of Prisons.

For the current offense, the probation office determined that Boykin was accountable for at least 160 grams of heroin during his five months of admitted dealing. The presentence investigation report (PSR) assigned Boykin a base offense level of 24 and a criminal history category V. The PSR also included a three-point reduction for Boykin’s acceptance of responsibility. The probation office calculated a Guidelines range of 70 to 87 months’ imprisonment, tó which Boykin did not object.

At sentencing, the government requested an upward variance from the Guidelines to a sentence of 120 months, noting that Boykin was previously sentenced to an aggregate of 40 years’ imprisonment on state charges but served only five. The government stressed that Boykin had a history of serious convictions followed by multiple failed parole attempts. In opposition, Boykin argued that his sentence should be at the lower end of the Guidelines range because his offense of possessing 160 grams of heroin fell at the lower end of the drug quantity in the statute, which requires possession between 100 and 400 grams. He also requested credit for 14 months of related imprisonment — the 2 months he served in state custody for the same charge and the 12 months of revoked parole because of his confession to the charge. In total, Boykin requested a sentence of 56 months’ imprisonment, which would require taking the low end of the Guidelines range and varying downward 14 months for time served.

The district court, taking into account the 18 U.S.C. § 3553(a) factors and the PSR, varied above the Guidelines range and sentenced Boykin to 98 months’ imprisonment, finding 100 months appropriate but deciding to credit Boykin 2 months for time served in state custody. In discussing the final sentence, the court pointed to Boykin’s multiple previous convictions for selling narcotics and the great disparity between the time that he was sentenced to serve and the time that he actually served. The court determined that an upward variance was appropriate under the specific circumstances of Boykin’s case.

The sentencing court concluded with a short sermon:

[W]eVe got to get out of this lifestyle of selling. Which becomes a lifestyle. Amd I’ve heard enough of selling where it’s the rush of doing it and being in the game. But it doesn’t get you anywhere but in front of me and in jail. Okay. I’m done preaching.

Boykin asserts that the court’s admonition betrayed an improper weighing of the § 3553(a) factors.

II. Discussion

Regardless of whether the final sentence is inside or outside the Guidelines range, we review a defendant’s sentence under a deferential abuse-of-discretion standard. United States v. Goodale, 738 F.3d 917, 924 (8th Cir. 2013). We first analyze the district court’s Guidelines application for procedural error, and in the absence of a procedural error, we consider the substantive reasonableness of the sentence. United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). Boykin does not allege a procedural error, so we consider only the substantive reasonableness of his sentence for an abuse of discretion. See, e.g., United States v. Vanhorn, 740 F.3d 1166, 1169 (8th Cir. 2014). “A district court abuses its discretion when it (1) ‘fails to consider a relevant factor that should have received significant weight’; (2) ‘gives significant weight to an improper or irrelevant factor’; or (3) ‘considers only the appropriate factors but in weighing those factors commits a clear error of judgment.’ ” Feemster, 572 F.3d at 461 (quoting United States v. Kane, 552 F.3d 748, 752 (8th Cir. 2009)). “[I]t will be the unusual case when we reverse a district court sentence as substantively unreasonable.” United States v. David, 682 F.3d 1074, 1077 (8th Cir. 2012).

First, Boykin contends that the district court failed to give substantial weight to the fact that he was a low-level offender. Because hé pleaded to possessing only 160 grams of heroin, he contends that his sentence should be at the lower end of the Guidelines range. Boykin highlights the drug quantity of 100 to 400 grams found in U.S.S.G. § 2Dl.l(c)(8) in support. In considering this argument, however, the district court pointed specifically to the fact that Boykin did more than merely possess heroin — he actively distributed it. The court found Boykin’s multiple charges for heroin distribution to be a substantial and repetitive threat to the community despite Boykin’s low-volume sales. See United States v. Boneshirt, 662 F.3d 509, 520 (8th Cir. 2011) (affirming the sentencing court’s upward variance after thorough consideration of the defendant’s history). The district court gave more weight to Boykin’s criminal history than to the drug quantity in his charge. The court did not abuse its discretion in doing so.

Second, Boykin argues that the district court improperly weighed the unsubstantiated assertion that he got a “rush” from selling drugs. The record, though, contains no evidence that the sentencing court relied on its “rush” remark to arrive at Boykin’s sentence, but rather shows that the court relied on the specific facts of the crime committed and Boykin’s criminal history. See United States v. Edwards, 820 F.3d 362, 366 (8th Cir. 2016) (finding substantial discussion of the § 3553(a) factors sufficient to ensure that the district court did not give improper weight to irrelevant factors). The drug-selling statement occurred at the very end of the sentencing hearing. The court made a passing remark addressing the lifestyle of drug dealers generally, not Boykin specifically. The court considered it “preaching” because it was an admonition against future behavior, not punishment for past conduct. The district court did not give significant weight to an improper factor.

Third, Boykin argues that the sentencing court committed a clear error of judgment by basing his sentence on a theory of specific deterrence. This contention misunderstands the district court’s role in the sentencing process. The Supreme Court has instructed the sentencing court to consider the § 3553(a) factors in formulating its sentencing decisions to fit the specific circumstances of each defendant. See Gall v. United States, 552 U.S. 38, 49-50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). These factors include the nature of the offense, the history of the defendant, the need for adequate deterrence, and the protection of the public. 18 U.S.C. § 3553(a). “[A] sentencing court has wide latitude to weigh the § 3553(a) factors and assign some factors greater weight than others in determining an appropriate sentence.” David, 682 F.3d at 1077. In this case, Boykin committed multiple drug offenses, accumulating 40 years of imprisonment without serving a majority of the time sentenced. The sentencing court determined that the significant lenience that other courts had given Boykin resulted in continued illegal behavior. Boykin’s 98-month sentence represented a sentence necessary to achieve the statutory aims of federal criminal punishment, which include deterrence. The district court did not abuse its discretion in its final determination of Boykin’s sentence.

III. Conclusion

Accordingly, we affirm the judgment of the district court.

      . The Honorable Brian C. Wimes, United States District Judge for the Eastern District of Missouri.


author: BENTON, Circuit Judge.

text:
    AMCO INSURANCE COMPANY, Plaintiff-Appellee v. Judith WILLIAMS; Robert Williams Defendants-Appellants
    No. 16-2723
    United States Court of Appeals, Eighth Circuit.
    Submitted: February 7, 2017
    Filed: March 16, 2017

      Counsel who represented the appellant was Scott R. Pettit of Aurora, MO.
    Counsel who represented the appellee was Nikki Cannezzaro of Kansas City, MO.
    Before SMITH
       BENTON, and SHEPHERD, Circuit Judges.

      . The Honorable Lavenski R. Smith became Chief Judge of the United States Court of Appeals for the Eighth Circuit on March 11, 2017.

   BENTON, Circuit Judge.

Kelly D. Williams died when her car was hit by Dylan A. Meyer’s vehicle. After-settling with Meyer’s insurance company, Appellants Judith and Robert Williams— Kelly’s parents and sole survivors — submitted a claim for underinsured motorist (UIM) coverage. AMCO Insurance Company sued, seeking a declaration of no coverage under Kelly’s auto policy. Both parties moved for summary judgment. The district court granted AMCO’s motion. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

Meyer’s insurance had a limit of $250,000, all paid to the Williamses. Because the damages exceed this amount, the Williamses sought $100,000 in UIM coverage under Williams’ auto policy with AMCO.

The policy’s Declarations page lists a UIM limit of $100,000 per person and $300,000 per accident. The Underinsured Motorists Coverage-Missouri Endorsement says:

UNDERINSURED MOTORISTS COVERAGE INSURING AGREEMENT
A. We will pay compensatory damages which an “insured” is legally entitled to recover from the owner or operator of an “underinsured motor vehicle” because of “bodily injury”:
1. Sustained by an “insured”; and
2. Caused by an accident.
The owner’s or operator’s liability for these damages must arise out of the ownership, maintenance or use of the “underinsured motor vehicle”.
* * * *
C.“Underinsured motor vehicle” means a land motor vehicle or trailer of any type to which a bodily injury liability bond or policy applies at the time of the accident but its limit for bodily injury liability is less than the limit of liability for this coverage....

(emphasis added).

The “Limit of Liability” section in the same Endorsement says:

LIMIT OF LIABILITY
A. The limit of liability shown in the Declarations for each person for Un-derinsured Motorists Coverage is our maximum limit of liability for all damages, including damages for care, loss of services or death, arising out of “bodily injury” sustained by any one person in any one accident. Subject to this limit for each person, the limit of liability shown in the Declarations for each accident for Underinsured Motorists Coverage is our maximum limit of liability for all damages for “bodily injury” resulting from any one accident.
This is the most wfe will pay regardless of the number of:
1. “Insureds”;
2. Claims made;
3. Vehicles shown in the Declarations; or
4. Vehicles involved in the accident. A vehicle and attached “trailer” are considered one vehicle. Therefore the Limit of Liability will not be increased for an accident involving a vehicle which has an attached “trailer”.
D. We will not make a duplicate payment under this coverage for any element of loss for which payment has been made by or on behalf of persons or organizations who may be legally responsible.
E. Any amount otherwise payable for damages under this coverage shall be reduced by all sums paid because of bodily injury by or on behalf of persons or organizations who may be legally responsible. This includes all sums paid under Part A of the policy.

The Williamses moved for summary judgment, arguing the policy is ambiguous and provides UIM coverage. AMCO cross-moved, asserting no coverage because Meyer’s vehicle was not an “underinsured motor vehicle.” Relying on the Missouri Supreme Court’s decision in Rodriguez v. General Accident Insurance Company, 808 S.W.2d 379 (Mo. banc 1991), the district court granted summary judgment for AMCO.

“This court reviews de novo a grant of summary judgment, viewing the record most favorably to the nonmoving party and drawing all reasonable inferences for that party.” Munroe v. Cont’l W. Ins. Co., 735 F.3d 783, 786 (8th Cir. 2013), citing Chambers v. Pennycook, 641 F.3d 898, 904 (8th Cir. 2011). “Interpretation of an insurance policy is a matter of state law.” Progressive N. Ins. Co. v. McDonough, 608 F.3d 388, 390 (8th Cir. 2010), quoting Stan Koch & Sons Trucking, Inc. v. Great W. Cas. Co., 517 F.3d 1032, 1039 (8th Cir. 2008). The parties agree Missouri law applies. This court is “bound by the decisions of the Missouri Supreme Court regarding issues of substantive state law.” Owners Ins. Co. v. Hughes, 712 F.3d 392, 393 (8th Cir. 2013), quoting Bockelman v. MCI Worldcom, Inc., 403 F.3d 528, 531 (8th Cir. 2005).

II.

The Williamses argue the policy is ambiguous and must be construed in their favor. “Under Missouri law, courts apply the general rules of contract construction when interpreting an insurance policy.” Munroe, 735 F.3d at 786, citing Todd v. Missouri United Sch. Ins. Council, 223 S.W.3d 156, 160 (Mo. banc 2007). “The key is whether the [policy] language is ambiguous or unambiguous.” Peters v. Emp’rs Mut. Cas. Co., 853 S.W.2d 300, 302 (Mo. banc 1993). “If the policy is unambiguous, it will be enforced as written, absent statutory or policy considerations.” Munroe, 735 F.3d at 786, citing Rodriguez, 808 S.W.2d at 382. “If ambiguity exists, the court interprets the policy in favor of the insured.” Id., citing Todd, 223 S.W.3d at 160.

“An ambiguity . exists when there is duplicity, indistinctness, or uncertainty in the meaning of the language in the policy. Language is ambiguous if it is reasonably open to different constructions.” Burns v. Smith, 303 S.W.3d 505, 509 (Mo. banc 2010), quoting Seeck v. Geico Gen. Ins. Co., 212 S.W.3d 129, 132 (Mo. banc 2007). “[C]onstruing the terms of an insurance policy,” courts should apply “the meaning which would be attached by an ordinary person of average understanding if purchasing insurance.” Id., quoting Seeck, 212 S.W.3d at 132. “Courts should not interpret policy provisions in isolation but rather evaluate policies as a whole.” Ritchie v. Allied Prop. & Cas. Ins. Co., 307 S.W.3d 132, 135 (Mo. banc 2009). Courts “must endeavor to give each provision a reasonable meaning and to avoid an interpretation that renders some provisions useless or redundant.” Dibben v. Shelter Ins. Co., 261 S.W.3d 553, 556 (Mo. App. 2008).

This case is controlled by Rodriguez v. General Accident Insurance Company of America, 808 S.W.2d 379 (Mo. banc 1991). There, the tortfeasor’s vehicle had a $50,000 liability policy. Id. at 380. After collecting the $50,000, the insured sought the balance of damages under her policy’s UIM coverage which had a $50,000 limit per vehicle. Id. The company declined, emphasizing the policy’s definition of “under-insured motor vehicle.” Id. at 381. The insured sued, claiming the policy was ambiguous and must be construed in favor of coverage. Id.

The court rejected the insured’s arguments, finding the “contract between [the company] and the [insured] clearly states that an underinsured motor vehicle is a vehicle whose limits for bodily injury liability are ‘less than the limit of liability for this coverage.’ ” Id. at 382. The court held, “Since [the tortfeasor’s] coverage is equal to the limit of liability under the [insured’s] policy, [the tortfeasor] was not an underin-sured motorist as defined by the [] policy.” Id.

The definition of “underinsured motor vehicle” in Rodriguez is identical to the definition here. The same analysis applies. Williams’ policy provides that “[AMCO] will pay compensatory damages which the ‘insured’ is legally entitled to recover from the owner or operator of an ‘underinsured motor vehicle’ because of ‘bodily injury.’ ” The issue is whether Meyer’s vehicle was an “underinsured motor vehicle.” The policy defines “underinsured motor-vehicle” as:

[A] land motor vehicle or trailer of any type to which a bodily injury liability bond or policy applies at the time of the accident but its limit for bodily injury liability is less than the limit of liability for this coverage.

(emphasis added). The policy “clearly states that an underinsured motor vehicle is a vehicle whose limits for bodily injury liability are ‘less than the limit of liability for this coverage.’ ” Id. at 382. It is undisputed that Meyer’s bodily-injury liability limit is $250,000, and the policy’s UIM liability limit is $100,000. Because the bodily-injury liability limit for Meyer’s vehicle is greater than the policy’s UIM liability limit, Meyer’s vehicle is not an “underin-sured motor vehicle.” Id. See Hughes, 712 F.3d at 396 (relying on Rodriguez and finding no UIM coverage because the tort-feasor’s vehicle was not an “underinsured automobile”).

III.

The Williamses argue Rodriquez is inapplicable because the policy is ambiguous. They contend the definition of “underin-sured motor vehicle” conflicts with the Declarations page, Insuring Agreement section, Limit of Liability section, and Other Insurance clause.

A.

The Williamses think that the definition of “underinsured motor vehicle” conflicts with the Declarations page, which lists a UIM limit of liability of $100,000 but has no other limitations or exclusions. This reads the Declarations page in isolation, contrary to Missouri law requiring courts to interpret policies “as a whole,” Ritchie, 307 S.W.3d at 135 and “avoid an interpretation that renders some provisions useless or redundant.” Dibben, 261 S.W.3d at 556. “The essential terms [of a policy] are usually stated in abbreviated form on a declarations page.” Todd, 223 S.W.3d at 160. The district court properly found no ambiguity between the Declarations page, which states “in abbreviated form” the UIM limit, and the UIM Endorsement which limits coverage to cases where the tortfeasor’s bodily-injury liability limit is less than the UIM liability limit. See Hughes, 712 F.3d at 396 (relying on Rodriguez to enforce a definition of “underin-sured automobile” despite the policy’s Declarations page that provided $100,000 in UIM coverage).

B.

The. Williamses claim the definition of “underinsured motor vehicle” conflicts with the Insuring Agreement section by ignoring the promise to “pay compensatory damages which an ‘insured’ is legally entitled to recover from the owner or operator of an ‘underinsured motor vehicle’ because of ‘bodily injury.’ ” Like the Declarations argument, this claim fails to read the policy as a whole, ignoring other policy language that limits UIM coverage. See Ritchie, 307 S.W.3d at 135; Dibben, 261 S.W.3d at 556.

C.

The Williamses assert that the policy’s Limit of Liability section creates an ambiguity because its “set-off” provisions make the UIM coverage illusory. However, the two Missouri Supreme Court cases they invoke are inapposite. See Jones v. Mid-Century Ins. Co., 287 S.W.3d 687 (Mo. banc 2009); Ritchie, 307 S.W.3d 132. In Jones, it was undisputed that the tort-feasor’s vehicle was an underinsured motor vehicle. Ritchie did not involve the definition of “underinsured motor vehicle,” thus, neither case considered the issue here.

This court has considered and rejected this argument:

Burger argues that [the limit-of-liability] provision renders the extent of UIM coverage ambiguous because the policy first states that Allied will contribute $50,000 and then later indicates that it will pay only the difference between that $50,000 figure and the amount of money contributed by an underinsured tortfea-sor. See Jones v. Mid-Century Ins. Co., 287 S.W.3d 687, 690 (Mo. 2009) (“[I]f a contract promises something at one point and takes it away at another, there is an ambiguity.” (quoting Seeck, 212 S.W.3d at 133)). This argument misses the mark. Even if the policy did contain inconsistent statements about the amount of coverage due once coverage has been triggered, such inconsistency would be immaterial to the question at issue here: whether the policy provides for coverage at all. As we explained in Hughes, disputes about the amount Allied must contribute simply do not “inject ambiguity into the meaning of what is a covered ‘underinsured motor vehicle’ ” so as to render the UIM definition unclear. 712 F.3d at 396 (emphasis added). Nothing in Allied’s UIM limit-of-liability section undermines the requirement that a tortfeasor’s vehicle first must qualify as underinsured in order to trigger UIM coverage.

Burger v. Allied Prop. & Cas. Ins. Co., 822 F.3d 445, 450 (8th Cir. 2016) (emphasis added).

Although Rodriguez did not address this precise issue, the court examined ambiguity arguments about the set-off provision— “the limit of liability shall be reduced by all sums paid because of the ‘bodily injury’ by or on behalf of persons or organizations who may be legally responsible.” Rodriguez, 808 S.W.2d at 381. The provision, the court stated, reinforced, rather than made ambiguous, the definition of “underinsured motor vehicle:”

The effect of this provision is to set-off the $50,000 paid by [the tortfeasor’s] insurer against the $50,000 coverage provided by the [insureds’ company]. The underinsured motorist coverage, therefore, is not excess coverage as the [insureds] argue. Instead, that coverage provides a total amount of protection to be paid to the [insureds] if other persons legally responsible for [the] injuries have lesser liability limits than those provided under the [insureds’] underin-sured motorist coverage.

Id. at 382.

Here, the set-off provision — “[a]ny amount otherwise payable for damages under this coverage shall be reduced by all sums paid because of bodily injury by or on behalf of persons or organizations who may be legally responsible” — also reinforces that UIM coverage is not “excess coverage” but rather provides protection if other persons legally responsible have lesser liability limits.

The set-off provision does not render the policy ambiguous.

D.

The Williamses claim the definition of “underinsured motor vehicle” creates an ambiguity by contradicting the Other Insurance clause. The Williamses did not raise this argument in the district court. This court will not consider it on appeal. See Satcher v. Univ. of Ark. at Pine Bluff Bd. of Trs., 558 F.3d 731, 735 (8th Cir. 2009) (“[F]ailure to oppose a basis for summary judgment constitutes waiver of that argument.”); Smith v. City of Des Moines, Iowa, 99 F.3d 1466, 1473 (8th Cir. 1996) (“We will not reverse a grant of summary judgment on the basis of an argument not presented below.”).

IV.

The Williamses attempt to discredit Rodriguez, stating, “Numerous cases since Rodriguez have considered policies defining an ‘underinsured motor vehicle’ as one with liability limits less than the insured’s UIM limits, yet because of ambiguities in the policies the insureds were entitled to collect the UIM coverage even though they had collected the same amount as or limits greater than the UIM coverage from the tortfeasor.” Yet the cases they cite are all appellate decisions. Although “[decisions by the Missouri Court of Appeals may be used as an indication of how the Missouri Supreme Court may rule,” this court is “not bound to follow these decisions.” Burger, 822 F.3d at 447, quoting Aerotronics, Inc. v. Pneumo Abex Corp., 62 F.3d 1053, 1068 (8th Cir. 1995). Rather, this court is “bound by the decisions of the Missouri Supreme Court regarding issues of substantive state law.” Hughes, 710 F.3d at 393.

The Williamses recognize Rodriguez “is the only Missouri Supreme Court case that directly addresses the definition of ‘under-insured motor vehicle’ ” at issue here, and that “Rodriguez has not been overruled by the Supreme Court” despite “numerous opportunities to revisit” it. This court has relied on Rodriguez to find similar UIM provisions unambiguous. See Burger, 822 F.3d 445; Hughes, 712 F.3d 392. “Considering the clarity with which the underin-sured motorist coverage is defined in the policy,” the district court did not err in finding the policy “is neither ambiguous nor misleading.” Rodriguez, 808 S.W.2d at 383.

⅝ ⅝ ⅜ ⅝ ⅜ ⅜ ⅝

The judgment is affirmed.

      . The Honorable Brian C. Wimes, United States District Judge for the Western District of Missouri.