author: RILEY, Chief Judge.

text:
    Dale R. LUDWICK, on behalf of Herself and All Others Similarly Situated, Plaintiff-Appellant v. HARBINGER GROUP, INC.; Fidelity & Guaranty Insurance Company; Raven Reinsurance Company; Front Street Re (Cayman), Ltd., Defendants-Appellees
    No. 16-1561
    United States Court of Appeals, Eighth Circuit.
    Submitted: November 16, 2016
    Filed: April 13, 2017

      Counsel who presented argument on behalf of the appellant was Kevin Kamuf Green, of San Diego, CA. The following attorney(s) appeared on the appellant brief; Steve Berman, of Seattle, WA., Andrew S. Friedman, of Phoenix, AZ., Diane A. Nygaard, of Kansas City, MO., Charles J. Crueger, of Milwaukee, WL, Erin K. Dickinson, of Whitefish Bay, WL, Francis Joseph Balint, Jr., of Phoenix, AZ., Sean Matt, of Seattle, WA.
    Counsel who presented argument on behalf of the appellee was Maeve Louise O’Connor, of New York, NY. The following attorney(s) appeared on the appellee brief; Scott Gregory Knudson, of Minneapolis, MN., Frank A. Taylor, of Minneapolis, MN., Julie H. Firestone, of Minneapolis, MN., Jarrod L. Schaeffer, of New York, NY., Maeve Louise O’Connor, of New York, NY., Julie Keersmaekers, of New York, NY., Mark Spatz, of New York, NY., Stephen Gale Dick, of New York, NY.
    Before RILEY, Chief Judge, WOLLMAN and KELLY, Circuit Judges.

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

   RILEY, Chief Judge.

The question in this case is whether letting Dale Ludwick pursue her federal racketeering claims against an insurance company and its affiliates would impair state regulation of the insurance business in Iowa, Maryland, or Missouri. We agree with the district court that it would, and the McCarran-Ferguson Act forbids that result. See 15 U.S.C. § 1012(b). We affirm the dismissal of Ludwiek’s claims.

I. BACKGROUND

The essence of Ludwick’s case is that Fidelity & Guaranty Insurance Company (F&G) — directed by the hedge fund that owns it, Harbinger Group, Inc., and abetted by two related subsidiaries, Raven Reinsurance Company and Front Street Re (Cayman), Ltd. — misled her into paying too much for an F&G annuity. F&G did so, Ludwick says, by disseminating reports and marketing materials that did not properly reflect sham transactions F&G undertook to hide its true financial state. The details and ultimate propriety of those transactions are largely immaterial to our resolution of this appeal. As relevant, Lud-wick’s theory is that between 2011 and 2013, F&G took billions of dollars in liabilities off its books by transferring them to its affiliates Raven and Front Street, even though those companies did not have sufficient assets to cover them. At the same time, F&G marked up its valuation of the Raven stock it owned. And after quickly unwinding one of the transactions and taking some liabilities back from Rayen, F&G arranged for an unaffiliated insurance company — apparently gratuitously — to assume those liabilities, plus others, while taking assets worth significantly less (and otherwise lacking the resources to cover them).

According to Ludwick, if F&G had properly accounted for these transactions under the principles promulgated by the National Association of Insurance Commissioners, as F&G claimed to do in its annual statements, F&G would have had to report its “surplus” was in fact negative — in other words, that its liabilities exceeded its assets. Instead, F&G reported billion-dollar surpluses in each of 2011, 2012, and 2013. Based, in part, on F&G’s apparent financial good health, Ludwick bought an annuity in 2013.

Ludwick eventually became convinced F&G was not in as good shape as it seemed, and thus her annuity was not worth what she paid for it. She sued under the Racketeer Influenced and Corrupt Organizations Act (RICO), see 18 U.S.C. § 1964(c), alleging F&G — under Harbinger’s control and facilitated by the subsidiaries (collectively, F&G, from here on, except where context dictates otherwise)— committed numerous acts of mail and wire fraud in the course of a book-cooking scheme, most straightforwardly by distributing paper and electronic copies of its deceptive reports and marketing materials. See id. § 1962(c), (d) (imposing liability for conducting an enterprise’s affairs through a pattern of racketeering activity and for conspiring to do so); see also ⅛ § 1961(1) (defining racketeering activity). The district court granted F&G’s motion to dismiss for failure to state a claim on which relief can be granted, see Fed. R. Civ. P. 12(b)(6), relying on the McCarran-Ferguson Act and not reaching the merits of Ludwick’s RICO claims. Ludwick appeals. See 28 U.S.C. § 1291 (appellate jurisdiction).

II. DISCUSSION

The McCarran-Ferguson Act provides: “No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance ... unless such Act specifically relates to the business of insurance.” 15 U.S.C. § 1012(b). There is no suggestion RICO “specifically relates” to insurance, and no dispute Iowa, Maryland, and Missouri (respectively, where F&G is based now, where it was based until 2013, and where Ludwick lives) regulate the insurance business. Nor would imposing RICO liability for F&G’s alleged misconduct “invalidate” or “supersede” Iowa, Maryland, or Missouri law. See Humana Inc. v. Forsyth, 525 U.S. 299, 307, 119 S.Ct. 710, 142 L.Ed.2d 753 (1999) (giving the terms their ordinary meanings). The only question is whether Ludwick’s RICO charges would “impair” state insurance regulation.

This question, like the sufficiency of Ludwick’s allegations more generally, is a legal issue we review de novo. See, e.g., Saunders v. Farmers Ins. Exch., 537 F.3d 961, 963 (8th Cir. 2008). The Supreme Court articulated the governing standard in Humana Inc. v. Forsyth: “When federal law does not directly conflict with state regulation, and when application of the federal law would not frustrate any declared state policy or interfere with a State’s administrative regime, the McCar-ran-Ferguson Act does not preclude its application.” Humana, 525 U.S. at 310, 119 S.Ct. 710.

Ludwick insists her suit threatens no conflict, frustration, or interference because it is just about F&G’s bookkeeping, not the underlying propriety of the transactions or state regulators’ approval of them. The distinction cannot bear the weight of Ludwick’s argument. “In applying Humana’s fact-intensive interpretation of the word ‘impair,’ our focus must be on the precise federal claims asserted,” because “a statute might ‘impair’ state insurance laws when applied in some ways, but not in others.” Saunders, 537 F.3d at 967. The precise claims asserted in this case arise out of F&G, in Ludwick’s words, “misrepresent[ing] the true financial condition of [the company] in its public reports and marketing materials, artificially inflating its purported assets and surplus.”' Ruling on those claims would necessarily involve deciding whether the supposed sham transactions left F&G in the healthy financial position it reported, or whether Lud-wick is correct that a proper accounting would have shown liabilities substantially exceeding F&G’s assets (as Ludwick says, “a negative statutory surplus”).

Questions about insurance companies’ solvency are, no surprise, squarely within the regulatory oversight by state insurance departments. In Maryland (as elsewhere) deals like those underlying Ludwick’s case — namely, reinsurance transactions with affiliates — must be submitted to the insurance commissioner for review before they can be consummated. See Md! Code Ann., Ins. § 7-703(a)(l), (c), (d)(4); see also Iowa Code § 521A.5(l)(c)(l). See generally Saunders, 537 F.3d at 965 (“Like most States, Missouri thoroughly regulates the business of insurance.”). And the commissioner is directed to consider both whether the transaction “potentially adversely affects the interests of policyholders” and whether “after the transaction, ... the insurer has assets and surplus as regards policyholders that: (i) bear a reasonable relation to the insurer’s outstanding liabilities; and (ii) are adequate to meet the insurer’s financial needs.” Md. Code Ann., Ins. §§ 7-702(3), -703(e); see also Iowa Code § 521A.5(l)(a)(6), (f). For all practical purposes, that is the same inquiry Ludwick’s claims seek. A federal court could not rule in Ludwick’s favor without holding, more or less explicitly, that state insurance regulators were wrong to let the transactions proceed, because the negative surplus Lud-wick alleges would be patently unreasonable and inadequate. Cf. Saunders, 537 F.3d at 968 (‘“[A] more complete overlap with the state [agency’s] ... decisions is impossible to conceive.’ ” (second alteration in original) (quoting Dehoyos v. Allstate Corp., 345 F.3d 290, 302 (5th Cir. 2003) (Jones, J., concurring in part and dissenting in part))); Doe v. Mut. of Omaha Ins. Co., 179 F.3d 557, 564 (7th Cir. 1999) (“Even if the formal criteria are the same under federal and state law, displacing their administration into federal court — requiring a federal court to decide whether an insurance policy is consistent with state law — obviously would interfere with the administration of the state law. The states are not indifferent to who enforces their laws.”).

This conclusion holds even though Lud-wick sometimes describes the relevant misconduct as not the accounting itself, let alone the underlying transactions, but F&G’s representation that it arrived at the numbers in its reports without departing from the standard accounting principles it purported to follow. To start, we agree with F&G that this theory is a “Post-Hoc Reformulation” of Ludwick’s claims. Yes, Ludwick’s case has always been about F&G “fraudulently dup[ing]” her into buying the annuity, but until now her story was that she was duped by .lies about the company’s financial strength, not lies about its accounting practices. The new theory does not solve the problem. To decide whether F&G’s reported financials reflected a significant departure from the accounting principles it claimed to have followed, a federal court would need to ask what the result of the transactions should have been under those principles. That would drag the court right back into second-guessing state regulators’ oversight of F&G’s solvency and stability.

Ludwick also warns against “resurrect[ing] field-preemption arguments that the Supreme Court expressly rejected in Humana.” See Humana, 525 U.S. at 808, 119 S.Ct. 710 (“We reject any suggestion that Congress intended to cede the field of insurance regulation to the States.”). Her concerns are unfounded. The reason Lud-wick cannot pursue her RICO claims is not the mere fact that they relate to the insurance business in the abstract, .as it would be under a field-preemption analysis, but that, as a practical matter, a federal court ruling on the specific things Ludwick alleges against this particular insurance company would mean asking the same questions as state insurance regulators ask and effectively double-checking their work. In other words, such review is just the sort of case-specific intrusion and interference we have held the McCarran-Ferguson Act forbids. See Saunders, 537 F.3d at 967-68.

The Supreme Court’s decision in SEC v. National Securities, Inc., 393 U.S. 453, 89 S.Ct. 564, 21 L.Ed.2d 668 (1969), does not help Ludwick either, despite some superficial similarities to this case. In National Securities, the Court held the Securities and Exchange Commission (SEC) could unwind an insurance-company merger based on allegations that the letters soliciting approval from the target company’s shareholders failed to disclose that they would be paying for the takeover of their own company (among other misrepresentations), even though state regulators had already signed off on the deal. Id. at 455, 462-63, 89 S.Ct. 564. Ludwick latches onto the Court’s explanation that “[t]he gravamen of the [SEC’s] complaint was the misrepresentation, not the merger,” id. at 462, 89 S.Ct. 564, which she takes to mean she is safe from the McCarran-Ferguson Act as long as the federal and state inquiries are technically about different things. The Court did not limit itself to such formalities however — key to its conclusion was that the SEC’s arguments for undoing the merger (in short, that it was accomplished by deceiving shareholders) really were entirely separate from the state regulators’ review and approval, which centered on the effect of the combination on policyholders. See id. at 463, 89 S.Ct. 564 (“Different questions would, of course, arise if the Federal Government were attempting to regulate in the sphere reserved primarily to the States by the McCarran-Ferguson Act.”). In Ludwick’s case, by contrast, the federal claims and the state determinations boil down to the same issue, namely, how the alleged sham transactions, properly accounted for, affected F&G’s balance sheet. Cf. Doe v. Norwest Bank Minn., N.A., 107 F.3d 1297, 1307-08 (8th Cir. 1997) (concluding state insurance regulation would be impaired by RICO claims against an insurer where, “in contrast to National Securities, the federal and state statutes at issue ... are directed toward the same end”).

Ludwick’s final attempt to save at least a subset of her claims is also meritless. Her argument is that because only F&G itself is actually subject to state insurance laws, “surely [the McCarran-Ferguson Act] does not preclude the assertion of a federal RICO claim” as to the other defendants. But the Act is concerned with the practical effect of federal law on state insurance regulation, see 15 U.S.C. § 1012(b); Saunders, 537 F.3d at 967, regardless of whom it targets as a technical legal matter. Litigating claims premised on F&G’s conduct and financial condition against Harbinger, Raven, and Front Street would be no less disruptive of state insurance regulation than if F&G were a party as well.

Though we agree with the district court’s disposition of the case, we do not adopt the reasoning the district court thought controlling — that “the lack of a private right of action under the states’ insurance codes is dispositive” and “the availability of common law remedies [could] not save [Ludwick’s] RICO claim from reverse preemption.” According to F&G, the district court’s rule “makes sense because the lack of a private right of action reflects a state determination that ancillary actions will impair the functioning of the regulatory framework.” But why assume, as that explanation implicitly does, that an ancillary common-law action would be any less disruptive? To the contrary, if it were clearly established that a state let aggrieved parties bring common-law claims against insurance companies in a given situation, we would seem to be justified in drawing much the same inference as if the cause of action were written into the insurance code, namely that the state had not found its regulatory efforts frustrated by the availability of private litigation. See Humana, 525 U.S. at 312, 119 S.Ct. 710 (citing the availability of analogues under “other state laws, statutory or decisional,” as tending to show that allowing RICO claims would not impair Nevada’s regulation of the insurance business (emphasis added)); Saunders, 537 F.3d at 968 (reaching the opposite conclusion because, among other reasons, “neither the Missouri insurance laws nor Missouri common law provide a private right of action for [the alleged misconduct]” (emphasis added)); LaBarre v. Credit Acceptance Corp., 175 F.3d 640, 643 (8th Cir. 1999) (“Minnesota law permits only administrative recourse for violations of [the relevant provision] and, unlike RICO, does not provide a private cause of action.”).

Such an inference is not warranted in this case, because Ludwick has failed to establish that the specific sort of misconduct she alleges — an insurer lying about its financial condition and accounting— would be actionable under the common law of each implicated jurisdiction. With respect to Maryland and Missouri, all Lud-wick even purports to show is that each state “recognizes a common-law claim for fraudulent inducement” against insurance companies. Yet the fact that the state might allow some claims within such a broad category sheds little light on the disruptive effects of Ludwick’s particular theory of liability. Cf. Saunders, 537 F.3d at 967 (calling for a “fact-intensive” and contexfispecific analysis).

Two last points. First, because we conclude Ludwick’s federal claims are barred by the McCarran-Ferguson Act, we do not reach F&G’s alternative arguments that Ludwick lacked standing to sue under RICO and failed plausibly to allege a scheme or intent to defraud. We do take issue with F&G’s contention that Lud-wick’s allegations are implausible — indeed, “preposterous” and “outlandish” — and we should affirm their dismissal not because of any legal infirmity, but because it is hard to believe someone like Ludwick could have uncovered a fraud that eluded “multiple insurance regulators, a major auditing firm, industry ratings agencies, and the market.” It should (but apparently does not) go without saying that speculation about the likelihood a particular plaintiff would be the one to catch the misconduct she alleges is no reason to throw out her complaint, all the more so when the speculation is based on thinly veiled assumptions about the party’s relative status and sophistication. Cf. Ashcroft v. Iqbal, 556 U.S. 662, 681, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (“To be clear, we do not reject these bald assertions on the ground that they are unrealistic or nonsensical. We do not so characterize them.... It is the conclusory nature of [the plaintiffs] allegations, rather than their extravagantly fanciful nature, that disentitles them to the presumption of truth.”); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (“[0]f course, a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of the facts alleged is improbable.”). We therefore emphasize that Ludwick’s loss in this case reflects Congress’s deference to the states as the traditional regulators of insurance business, see 15 U.S.C. § 1012, not a ruling on the truth of Ludwick’s claims or a validation of the financial machinations underlying them.

Second, at oral argument Ludwick asked to be given a chance to cure the defects in her complaint if we affirmed the dismissal of her claims, acknowledging she had not sought to do so in the district court. The time for amending the complaint, either as of right or with the court’s leave, see Fed. R. Civ. P. 15(a)(1), (2), has passed — there is a final judgment, now affirmed on appeal, dismissing the case. Cf. Geier v. Mo. Ethics Comm’n, 715 F.3d 674, 677 (8th Cir. 2013).

III. CONCLUSION

Litigating Ludwick’s RICO claims would interfere with state regulation of the insurance business, and the claims are barred by the McCarran-Ferguson Act. The district court was right to dismiss. We affirm.

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

      . Ludwick filed her case as a class action, seeking to represent everyone who has bought annuities from F&G since Harbinger acquired the company in April 2011. The district court dismissed the suit before ruling on class certification, and class issues are not relevant to this appeal.

      . Ludwick makes little mention of Maryland law in her briefs, explaining she "does not contend” it applies. We see no reason why that should matter. Maryland had primary regulatory authority over F&G for most of the time covered by Ludwick’s complaint, and the existence of a third state whose regulation of the insurance business might be affected by federal litigation is a potential flaw in Lud-wick’s case, not a supplemental theory she can choose to forgo or ignore.

      . The district court read our ruling against the plaintiff in LaBarre differently, reasoning that because (in the district court’s view) Minnesota law did in fact allow some common-law claims for fraud and breach of contract against insurance companies, the existence of such causes of action must be irrelevant, otherwise it would have factored into our analysis. But LaBarre made no mention of the common law and, by all indications, rested on an understanding that “Minnesota law permitted] only administrative recourse.” LaBarre, 175 F.3d at 643 (emphasis added). Regardless of whether that remains an accurate description of Minnesota law, nothing in LaBarre suggests we meant to address a situation where a plaintiff specifically could not sue under the insurance code, but could under some other part of state law. See also Norwest Bank Minn., 107 F.3d at 1306 ("Minnesota law does not provide a private cause of action for violations of these prohibitions.”).

      . "Far more plausible," F&G assures us, "is that [Ludwick] does not fully understand these transactions, or simply holds a view of affiliate reinsurance transactions that is not shared by the relevant state regulators.”


source: Caselaw Access Project

author: WOLLMAN, Circuit Judge. KELLY, Circuit Judge,

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Eleuterio MURILLO-SALGADO, Defendant-Appellant.
    No. 16-1959
    United States Court of Appeals, Eighth Circuit.
    Submitted: November 17, 2016
    Filed: April 13, 2017
    Rehearing and Rehearing En Banc Denied May 17, 2017

      Daniel P. Goldberg, Research and Writing Specialist, Office of the Fed. Public Defender, Kansas City, MO, argued (Laine Cardarella, Fed. Public Defender, William J. Raymond, Asst. Fed. Public Defender, on the brief), for appellant.

      Patrick C. Edwards, Asst. U.S. Atty., Kansas City, MO, argued (Tammy Dickinson, U.S. Atty., on the brief), for appellee.
    Before RILEY, Chief Judge, WOLLMAN and KELLY, Circuit Judges.

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

   WOLLMAN, Circuit Judge.

Eleuterio Murillo-Salgado was charged with one count of possessing cocaine with intent to distribute, 21 U.S.C. § 841(a)(1) and (b)(1)(B), after a Missouri State Highway Patrol (MSHP) officer stopped a vehicle in which Salgado was a passenger and discovered cocaine hidden in an air-compressor tank during a search of the vehicle. The district court, adopting the report and recommendation of the magistrate judge, denied Salgado’s motion to suppress the drug evidence. Salgado thereafter entered a conditional guilty plea, reserving his right to challenge the denial of his motion to suppress. The district court sentenced Salgado to sixty-three months’ imprisonment and imposed a special condition of supervision ordering that Salgado be removed from the United States upon completion of his prison term. We affirm the order denying Salgado’s motion to suppress. Because the district court lacked jurisdiction to enter the removal order, however, we amend the special condition of supervision to order that Salgado be surrendered to a duly authorized immigration official for removal proceedings upon completion of his prison term.

We have reviewed the video and audio recording of the traffic stop that the government introduced at the evidentiary hearing on Salgado’s motion to suppress. We recite the facts as found by the magistrate judge and the district court, supplementing only where necessary to fully portray the encounter.

On the morning of April 7, 2014, MSHP Sergeant Larry Allen was patrolling Interstate 29 in Holt County, Missouri, when he observed a four-door Nissan truck traveling southbound in the left lane (but not passing other vehicles) and driving three miles over the posted speed limit. As he began to pursue the truck to initiate a traffic stop, Allen activated the safety lights on his patrol car, thereby triggering video and audio recording equipment. The video recording time stamp indicates that the truck and the patrol car stopped on the shoulder of the highway at 10:39 a.m. As Allen approached the stopped truck, which bore California license plates, he observed a driver and a passenger in the front seats, some luggage and an air compressor in the back seat, and three packages of electrical wiring, a small ladder, a hard hat, and an “electrical type box” in the open truck bed. Allen spoke to the truck’s occupants through the front passenger-side window. The driver identified himself as Ramon Arredondo, handed Allen a California driver’s license, and told Allen that he and his passenger were driving from California to North Carolina. Allen instructed Arredon-do to slow down and to use the left lane only for passing other vehicles, and then stated that he would issue a warning rather than a ticket. Allen asked Arredondo to exit the truck and accompany him to the patrol car while Allen completed necessary administrative tasks and wrote up the warning.

In the patrol car, Arredondo handed Allen a rental agreement and insurance information for the truck. Allen asked Ar-redondo what he and Salgado did for a living, as he simultaneously began entering Arredondo’s information into the vehicle’s computer. Arredondo responded that he and Salgado were electricians on their way to North Carolina for a big job that would pay “cool money.” Allen, still typing information into the computer, then asked Ar-redondo why they were driving such a long distance instead of flying. Arredondo replied that they were transporting tools and all of the electrical wiring required for the job. Allen was suspicious of Arredondo’s response because Allen did not believe that the quantity of electrical wiring he had seen in the truck bed was sufficient to complete a sizeable wiring job. Allen asked Arredondo if he had ever been arrested, and Arredondo replied that he had not. In response to Allen’s question why the name on the rental agreement for the truck did not match the name on Arredondo’s license, Arredondo pointed out that the agreement had mistakenly listed his middle name as his last name, and he expounded on similar past mix-ups. The two then spent several minutes discussing and paging through the rental agreement. Noting that the truck had been rented for only five days, Allen asked how Arredondo and Salgado could drive to North Carolina, complete the sizeable wiring job, and return the truck in California in only five days. Arredondo explained that he had been required to pay cash for the initial rental and could afford to pay for only five days but that he intended to extend the rental period for a total of. two weeks and to pay for the extension by credit card, as permitted under the agreement. He and Salgado would thus have sufficient time to drive to North Carolina, complete the wiring job, and return the truck in California. Allen asked whether it would have been less expensive to fly to North Carolina. Arredondo remarked that he had been in a traffic accident about a month earlier, described the accident in some detail, and stated that the other driver’s insurance company was paying for the truck rental, a fact that had played a role in his decision to drive to North Carolina.

Allen asked Arredondo for his social security number, but Arredondo did not have that information. Allen again asked Arre-dondo whether he had been arrested and whether he had ever used or transported illegal drugs, to which Arredondo replied that he had not. Allen then called dispatch and provided Arredondo’s name and date of birth for an outstanding-warrants check. A minute or so passed in silence while Allen waited for a reply from dispatch, and Allen then again asked Arredondo about the electrical wiring in the truck. Arredon-do replied that he believed it was twelve-gauge wire and also stated that he was not actually an electrician but merely a “helper,” who drilled holes for installation of the wiring. Allen then asked Arredondo who had rented the truck. Arredondo stated that he had and again explained that he would be reimbursed for the rental by an insurance company. The videotape reveals no signs of nervousness on Arredondo’s part during these exchanges with Allen. Allen called dispatch again, informed the operator that he would be out of his patrol car for a brief period, and approached the parked truck to obtain information from the passenger. Arredondo remained in the patrol car.

As Allen approached the truck, he saw that the passenger was talking on a cell phone while, according to Allen, attempting to hide that fact. As they spoke through the open window, the passenger told Allen that he was on the phone with the contractor for the North Carolina wiring job. Allen asked the passenger to terminate the call and provide his identification. The passenger identified himself as “Luther” and produced an expired Oregon driver’s license in the name of Eleuterio Salgado. In response to Allen’s questions, Salgado explained that he had lived in Oregon ten years earlier but had resided in California for the past six years. Allen asked Salgado when the truck had been rented and when he and Arredondo had left California. Salgado replied that they had rented the truck on Saturday and had left California Saturday evening at about 8:00 p.m. Salgado told Allen that Arredon-do was his helper, that they chose to drive rather than to fly to North Carolina because they had to transport tools and materials, and that the job in North Carolina involved wiring a 15,000-square-foot residence. Allen asked who was paying for the truck rental, and Salgado replied that the contractor was reimbursing them for the expense. After learning that Salgado did not know his social security number, Allen returned to his patrol car to enter Salga-do’s information into the vehicle’s computer and call dispatch to check for outstanding warrants.

Back in the patrol car, Allen asked Arre-dondo when he had left California, and Arredondo responded that they left Saturday evening. He told Allen that they had not driven all night, but had stopped at a Super 8 along the way. Arredondo then volunteered that it had been snowing when they stopped. Allen asked where the wiring job was located, and Arredondo responded that it was in Greensboro, North Carolina, and further offered that he had worked in West Virginia, Charleston, and North Carolina. He told Allen that he usually flew, but because an insurance company was paying for the rental truck, he had decided to drive on this occasion. Allen again asked who was paying for the truck, and Arredondo repeated that an insurance company was paying. During this exchange, Allen was typing information into his computer and talking to dispatch about Salgado’s identity and record. Arredondo then began to describe the accident he had been in and the trouble he had been having with the other driver’s insurance company, stating that he had retained an at-, torney to help resolve the matter. Allen again asked Arredondo whether there were any drugs, guns, or stolen items in the truck, and Arredondo again denied having any such items. Allen asked who had loaded the truck, and Arredondo replied that he and Salgado had loaded the truck together. Allen received a brief call from dispatch, notifying him that Salgado did not have a valid driver’s license and that he had a criminal record, including a drug-related offense. Allen continued to type on his computer for about a minute while Arredondo waited in silence.

Allen once again asked Arredondo whether there were any illegal drugs in the truck, going through a list of various drugs and receiving a negative reply from Arredondo regarding each substance. Finally, Allen asked Arredondo for permission to search the truck, which Arredondo consented to at 11:01 a.m., roughly twenty-three minutes after Allen had stopped the truck. Allen had not yet completed the tasks associated with the traffic stop or handed Arredondo the written warning upon obtaining Arredondo’s consent to search, and so he asked whether Arredon-do owned everything in the truck. Arre-dondo replied, “Just my clothes and everything else. Well, my clothes,” which he stated were in two bags in the back seat of the truck. Arredondo denied owning any of the tools or tool boxes, but did state that he and Salgado owned the electrical wiring in the truck bed “collectively.” While waiting for MSHP Sergeant Mark Wilhoit to arrive and assist with the search, Allen conducted a pat-down search of Arredondo and directed him to exit the patrol car and stand on the embankment along the shoulder of the highway.

Once Wilhoit arrived, Allen again approached the truck and asked Salgado about his criminal record. Salgado replied that it involved “a little cocaine.” Allen then asked Salgado if there was any marijuana, cocaine, methamphetamine, or heroin in the truck, to which Salgado replied that there was not. Allen then opened the front passenger door of the truck, asked Salgado to get out of the vehicle. During his pat-down search of Salgado, Allen commented on the number of cell phones in Salgado’s possession and the strong odor coming from the vehicle. Allen then directed Salgado to stand on the embankment with Arredondo. Allen did not ask Salgado for consent to search any of the items in the truck.

Wilhoit began to search in and under the truck’s bed, and Allen began to search' the passenger compartment. Upon opening the rear passenger door, Allen could more clearly see the air compressor in the back seat. Allen immediately identified the smell of fresh paint, as well as “some non-factory welding on the air tank ... underneath the motor” of the compressor. Allen then stated, “Man, there is ... something about this that just ain’t right.” Looking more closely at the air compressor as it sat on the truck’s back seat, Allen commented to Wilhoit, “I think it’s in here. I think it’s in this air compressor.” He further remarked on the rough and jagged welds, stating, “Come here and look, freshly painted, wel&ed on, that ain’t right.” Allen noticed that there was “a square cut underneath the motor” that he believed provided “access [to] the air tank that was probably cut open at some point and packages put in.” Without removing the air compressor from the truck, the officers tapped several times on the tank to determine whether it sounded hollow. Wilhoit then lifted the air compressor from the seat and hefted it several times in an attempt to determine if something inside the air tank would noticeably shift, commenting that the compressor felt heavier than it should. Wilhoit placed the compressor on the ground next to the truck and asked Allen to retrieve his “density buster,” described by Allen as a “glorified stud finder,” to use on the exterior of the tank. After applying the density buster to the exterior of the tank, Allen concluded that although the tank “ought to be hollow,” the readings indicated that it was not. Allen and Wilhoit then placed the air compressor on the truck’s now-open tailgate, Allen applied a stethoscope to the tank’s exterior, tapped the tank in several spots, and determined from the resulting sounds that there was something inside.

Using a pair of pliers or similar tool, Wilhoit removed the “bleeder valve” petcock from the air tank, peered through the small hole into the tank itself, and saw gray or silver duct tape. Arredondo and Salgado were then placed under arrest, handcuffed, and advised of their Miranda rights. Wilhoit then inserted a probe through the petcock and into the silver duct tape visible within the air tank. When he removed the probe from the tank, it was covered in white powder, which the officers both believed was cocaine. The air tank was eventually opened and several duct-taped packages of cocaine were recovered.

Salgado filed a motion to suppress the evidence recovered from the truck. The magistrate judge recommended that the motion be denied, concluding that the search of the truck and air compressor did not violate Salgado’s Fourth Amendment rights. The magistrate judge reasoned that Allen developed reasonable suspicion to expand the scope of the routine traffic stop, that the warrantless search of the truck was lawful based on Arredondo’s consent, and that the warrantless seizure of the air compressor was lawful based on the plain-view exception to the Fourth Amendment’s warrant requirement. With respect to the warrantless search of the air compressor, the magistrate judge discussed the single-purpose-container exception to the Fourth Amendment, under which a warrantless search of certain containers is permissible because the contents of such containers “can be inferred from their outward appearance” and thus cannot support a reasonable expectation of privacy. United States v. Banks, 514 F.3d 769, 773-74 (8th Cir. 2008) (quoting Arkansas v. Sanders, 442 U.S. 753, 764-65 n.13, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), overruled on other grounds by California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991)). The magistrate judge noted that Allen had “reasonable suspicion that the air compressor held evidence of a crime,” particularly given that it was “heavier than normal” and “non-intrusive testing” indicated that “the tank was not hollow.” The court then concluded that the officers had “probable cause to seize the air compressor” and, “applying the reasoning of Banks, ... were justified in removing the pe[t]cock and searching the air compressor.” Over Salgado’s objections, the district court entered an order agreeing with the magistrate judge’s “findings of fact and conclusions of law” and denying the motion to suppress. Following the entry of Salgado’s conditional guilty plea, the district court imposed the earlier described sentence of sixty-three months’ imprisonment and the special condition of supervision ordering that Salgado be deported.

In a challenge to the denial of a motion to suppress, we review for clear error a district court’s findings of fact, and we review de novo whether a search violated the Fourth Amendment. See United States v. Riley, 684 F.3d 758, 762 (8th Cir. 2012). We will affirm the denial of a motion to suppress unless the district court’s decision was unsupported by substantial evidence, was based on an erroneous interpretation of applicable law, or was clearly mistaken in light of the entire record. United States v. Woods, 829 F.3d 675, 679 (8th Cir. 2016). “We may affirm the district court’s denial of a motion to suppress on any ground the record supports.” United States v. Anderson, 688 F.3d 339, 343 (8th Cir. 2012) (quoting United States v. Pratt, 355 F.3d 1119, 1121 (8th Cir. 2004)); see also United States v. Wells, 347 F.3d 280, 287-88 (8th Cir. 2003) (affirming denial of motion to suppress on basis of automobile exception rather than on basis of search incident to arrest relied on by district court).

Salgado concedes that there was probable cause to stop the truck for the traffic violations. He argues, however, that Allen prolonged the stop beyond the time reasonably required to investigate those violations and without reasonable suspicion of unrelated criminal activity, and thus exceeded the constitutional limitations on such stops set forth in the United States Supreme Court’s post-April 7, 2014, decision in Rodriguez v. United States, — U.S. —, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015).

In Rodriguez, an officer had completed the routine tasks incident to a traffic stop, including checking the driver’s license and the vehicle’s registration and proof of insurance, and had handed the driver a written traffic warning. Id. at 1613. Only after these routine tasks were completed and the warning issued did the officer request permission to search the vehicle. Id. When the driver refused to consent, the officer ordered the driver out of the vehicle and had him wait for a canine unit to arrive. “All told, seven or eight minutes had elapsed from the time [the officer] issued the written warning until the dog indicated the presence of drugs.” Id. The Supreme Court first acknowledged that an officer is permitted to “conduct certain unrelated checks during an otherwise lawful traffic stop,” but reiterated that he “may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.” Id at 1615. In other words, the Court explained, “[authority for the seizure ... ends when tasks tied to the traffic infraction are — or reasonably should have been — completed.” Id. at 1614. Because the traffic stop in Rodriguez “exceed[ed] the time needed to handle the matter for which the stop was made[, the stop] violate[d] the Constitution’s shield against unreasonable seizures.” Id. at 1612.

Our pre-Rodriguez case law similarly recognizes that an officer may detain the occupants of a vehicle during a traffic stop “while the officer completes a number of routine but somewhat time-consuming tasks related to the traffic violation,” including running a computerized check of the vehicle’s registration and insurance; running a similar check of the occupants’ identification documents and criminal histories; preparing the traffic citation or warning; and asking the occupants about their “destination, route, and purpose.” United States v. Peralez, 526 F.3d 1115, 1119 (8th Cir. 2008) (citations omitted). If an officer encounters legitimate complications in completing these routine tasks, the officer “may reasonably detain a driver for a longer duration than when” no such complications arise. United States v. Olivera-Mendez, 484 F.3d 505, 510 (8th Cir. 2007). “An officer’s suspicion of criminal activity may reasonably grow over the course of a traffic stop as the circumstances unfold and more suspicious facts are uncovered.” United States v. Linkous, 285 F.3d 716, 720 (8th Cir. 2002). But the officer must identify “specific and articulable facts which, taken together with rational inferences from those facts,” amount to reasonable suspicion that further investigation is warranted. Woods, 829 F.3d at 679 (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). The totality of the circumstances are to be considered in determining whether reasonable suspicion existed. See id.

We concluded in United States v. Peralez that the traffic stop was unlawful because “[n]othing unusual occurred during the traffic stop” and “[t]here was nothing unusual or out of place with the [vehicle’s] registration or the driver’s documents” sufficient to justify extending the traffic stop. 526 F.3d at 1120. Rather, “[t]he stop was delayed because of the trooper’s drug interdiction questioning, not because of anything related to the investigation or processing of the traffic violation.” Id. Here, in contrast, Allen was faced with circumstances that, as a whole, were sufficient to establish reasonable suspicion necessary to justify extending the traffic stop.

Allen, who had received specific training in the trafficking of illegal drugs and had participated in “hundreds” of drug investigations, developed reasonable suspicion of drug-related activity while he was completing the routine tasks associated with the traffic stop. He first noticed a discrepancy between the name on Arredondo’s driver’s license and the name on the rental agreement. While further consulting the rental agreement to confirm the vehicle’s registration and insurance information, he observed that the rental agreement was for a period of time that appeared insufficient to accomplish the stated purposes of the trip. Based on his admittedly limited electrical-wiring experience, Allen believed that the quantity of electrical wiring in the bed of the truck was insufficient in light of Arre-dondo’s and Salgado’s statements that they were transporting all of the wiring necessary to complete work on a 15,000-square-foot house. Arredondo first told Allen that he and Salgado were both electricians, and then later told Allen that he was Salgado’s “helper.” After Arredondo volunteered information about an earlier car accident and his expectation that the other driver’s insurance company would pay for the truck rental, Allen attempted to verify this information with Salgado, receiving instead a conflicting response that the contractor on the North Carolina wiring job was paying for the truck rental.

The video recording of the roughly twenty-three-minute traffic stop indicates that Allen spent that time asking permissible questions of Arredondo arid Salgado regarding the purpose of their trip and their travel route, attempting to corroborate the responses to those questions, placing calls to dispatch, waiting for responses to verify Arredondo’s and Salgado’s identification and criminal history, and entering information into the patrol car’s computer. Unlike the circumstances in Peralez, where “there was ‘absolutely not’ anything” about the motorist’s actions or comments that caused the officer to be concerned that criminal activity was afoot when he began asking drug-interdiction questions, Allen could point to the factors set forth above to justify his reasonable suspicion that criminal activity was afoot. 526 F.Sd at 1117. The traffic stop was not unlawfully prolonged given Allen’s observations of the truck’s contents, the seeming implausibilities and inconsistencies in the responses to Allen’s routine questions, the reasonable suspicion Allen developed as a result of those improbable responses, as well as from Allen’s independent observations. See id. at 1120 (acknowledging that “an officer may extend or expand the scope of a traffic stop beyond the original justification for the stop.... if the officer develops reasonable suspicion that other criminal activity is afoot”); United States v. McCarty, 612 F.3d 1020, 1023 (8th Cir. 2010) (noting that an officer’s suspicion was reasonably aroused when a motorist “planned to maintain a very fast pace, having rented the car for only three days” to drive from Seattle to Atlanta, and when the cost of the rental “exceeded [the officer’s] estimate of round-trip airfare”).

We thus conclude that the traffic stop exceeded neither the constitutional boundaries set forth in our then-extant decisions nor those set forth in Rodriguez. To the extent that Rodriguez may be read to impose limitations greater than those reflected in our cases, we conclude that the evidence was nevertheless properly admitted, because “searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.” Davis v. United States, 564 U.S. 229, 232, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011). Indeed, citing Davis, we upheld Rodriguez’s conviction on remand. See United States v. Rodriguez, 799 F.3d 1222, 1223-24 (8th Cir. 2015), cert. denied, — U.S. -, 136 S.Ct. 1514, 194 L.Ed.2d 605 (2016); see also United States v. Englehart, 811 F.3d 1034, 1040 n.1 (8th Cir. 2016) (reversing grant of motion to suppress because “we apply the law of the circuit as it existed at the time of the stop,” and “Eighth Circuit precedent at [that] time ... permitted a de minimis extension of a stop to employ a dog”); United States v. Coleman, 700 F.3d 329, 335-36 (8th Cir. 2012) (concluding in pre-Rodriguez case that a traffic stop was permissibly prolonged when “additional questioning was brief, lasting only a couple of minutes” and noting that we “have upheld such short detentions as de minimis intrusions”); United States v. Robinson, 455 F.3d 832, 834 (8th Cir. 2006) (noting in pre-Rodriguez case that seizures of less than ten minutes are de minimis intrusions that do not amount to an unreasonable seizure and citing cases).

Because the traffic stop was not impermissibly expanded or prolonged, Ar-redondo’s consent to search the truck was valid, the continued detention to search the truck pursuant to that consent was permissible, and the ensuing search of the truck was lawful. See Peralez, 526 F.3d at 1120 (recognizing that an officer may extend or expand the scope of a traffic stop if the encounter becomes consensual); United States v. Barragan, 379 F.3d 524, 529-30 (8th Cir. 2004) (noting that a mere passenger who has no ownership rights in a vehicle has no standing to challenge a search of that vehicle). Salgado argues, however, that even if the search of the truck itself was a lawful consensual search, the search of the air compressor was not, because Arredondo’s consent could not have extended to the air compressor, over which he had specifically disclaimed ownership. Salgado further contends that even if the district court properly concluded that the seizure of the air compressor was lawful under the plain-view exception to the Fourth Amendment’s warrant requirement, the court erred in concluding that the search of the air compressor was lawful under the single-purpose-container exception to the warrant requirement, which permits the warrantless search of certain containers where the contents of the container are a foregone conclusion. See Banks, 514 F.3d at 773-74 (noting that, like objects in plain view, there is no reasonable expectation of privacy attendant to certain closed containers' because the contents of the container may be inferred from the container’s outward appearance); see also United States v. Corral, 970 F.2d 719, 725 (10th Cir. 1992) (noting that when a container’s “ ‘distinctive configuration ... proclaims its contents,’ the container supports no reasonable expectation of privacy and the contents can be said to be in plain view” (citations omitted)).

We need not belabor the district court’s reliance on the single-purpose-container exception to justify the warrantless search of the air compressor, because the search was permissible under the automobile exception to the Fourth Amendment’s warrant requirement. See, e.g., Wells, 347 F.3d at 287 (“It is a well-settled principle that we may affirm a district court’s judgment on any basis supported by the record.” (citation omitted)).

A warrantless search of an automobile for contraband is allowed under the Fourth Amendment if an officer has probable cause to justify the search, see generally United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), or if the officer has obtained voluntary consent, provided that the search is limited to the scope of the consent, Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (“It is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.”). Observations made by an officer during a consensual search of a vehicle may provide the officer with probable cause to expand the scope of the search under the automobile exception. See United States v. Guevara, 731 F.3d 824, 829-31 (8th Cir. 2013) (concluding that when officers conducting a consensual search of a lawfully stopped vehicle discovered a hidden compartment in the vehicle’s engine, they no longer needed consent to conduct a destructive search of the engine because they then had probable cause); United States v. Alverez, 235 F.3d 1086, 1089 (8th Cir. 2000) (concluding that when officers conducting a consensual search of a disabled vehicle moved cardboard in the trunk, discovered a usable spare tire, and knew that motorists had slept in the car during an ice storm while waiting to obtain tire sealant, officers had probable cause to remove the tire and examine it more closely for contraband). “Probable cause exists when, given the totality of the circumstances, a reasonable person could believe there is a fair probability that contraband or evidence of a crime would be found in a particular place.” Wells, 347 F.3d at 287 (citation omitted); see Florida v. Harris, 568 U.S. 237, 133 S.Ct. 1050, 1055, 185 L.Ed.2d 61 (2013) (“A police officer has probable cause to conduct a search when the facts available to him would warrant a person of reasonable caution in the belief that contraband or evidence of a crime is present.” (internal quotation, alterations, and citation omitted)). Probable cause is a “practical and common-sensical standard” that is based on “the totality of the circumstances” and requires only “the kind of fair probability on which reasonable and prudent people, not legal technicians, act.” Id. (internal quotations, alterations, and citations omitted). Moreover, “[i]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search,” Ross, 456 U.S. at 825, 102 S.Ct. 2157, including a passenger’s personal belongings, Wyoming v. Houghton, 526 U.S. 295, 302, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999). In determining whether probable cause exists, an officer “may draw inferences based on his own experience.” Orne-las v. United States, 517 U.S. 690, 700, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).

Allen began his search pursuant to Ar-redondo’s voluntary consent, which entitled Allen to search all areas of the truck, including the passenger compartment where the air compressor was located. Allen’s detection of the odor of fresh paint, his unimpeded observation of fresh paint on the air compressor’s tank and the rough, jagged, non-factory welds on the motor-attaching bracket and on the air tank itself, gave him probable cause to believe “that contraband or evidence of a crime [was] present.” Harris, 133 S.Ct. at 1055. The totality of the circumstances— coupled with Allen’s training and experience in “hundreds” of drug investigations — provided “a fair probability” from the moment Allen observed the air compressor that the truck held “contraband or evidence of a crime.” Harris, 133 S.Ct. at 1055. Accordingly, under the automobile exception to the warrant requirement, Allen was permitted to search “every part of the vehicle and its contents” that could conceal drug-related contraband, including the air compressor. Ross, 456 U.S. at 825, 102 S.Ct. 2157; Houghton, 526 U.S. at 302, 119 S.Ct. 1297. We thus affirm the denial of the motion to suppress.

Salgado also argues that the district court exceeded its authority under 18 U.S.C. § 3583(d) when it ordered that he be removed as a special condition of supervision. See, e.g., United States v. Tinoso, 327 F.3d 864, 865 (9th Cir. 2003) (“agreeing] with ... the First, Second, Fourth, Fifth, Tenth, and Eleventh Circuits ... that a district court exceeds its authority in ordering, as a condition of supervised release, immediate and automatic deportation without a deportation hearing” and citing cases). Unless the prosecutor and immigration officials request that the district court hold a removal hearing, only an immigration judge may order an individual removed. See United States v. Zamudio, 718 F.3d 989, 990 (7th Cir. 2013). There having been no such request in this case, the government concedes that the court exceeded its authority in entering the removal condition. Accordingly, we modify the judgment of the district court to reflect the following Special Condition of Supervision 1:

1. Upon completion of his term of imprisonment, the defendant shall be surrendered to a duly authorized immigration official for removal in accordance with the procedures set forth in the Immigration and Naturalization Act, 8 U.S.C. §§ 1101-1524.

See United States v. Sanchez, 923 F.2d 236, 238 (1st Cir. 1991) (concluding that district court exceeded its authority in ordering defendant deported, but declining to remand for resentencing and instead amending judgment); see also United States v. Phommachanh, 91 F.3d 1383, 1388 (10th Cir. 1996) (amending the judgment); United States v. Xiang, 77 F.3d 771, 773 (4th Cir. 1996) (same).

As modified, the judgment is affirmed.

KELLY, Circuit Judge,

dissenting.

In my view, the evidence recovered from the truck should have been suppressed because both the extension of the traffic stop and the search of the air compressor violated Murillo-Salgado’s Fourth Amendment rights. If an officer asks questions unrelated to the purpose of a traffic stop that extend the stop’s duration — even briefly — the extension must be supported by reasonable suspicion. Rodriguez, 135 S.Ct. at 1614-15. Here, Allen interspersed routine traffic-stop questions with investigatory questions that had nothing to do with the reason he pulled the truck over. This “blended process” measurably extended the stop:. From the time Allen told Arredondo he would give him a warning to the time Arredondo consented to the search of the truck, more than twenty minutes passed. See Peralez, 526 F.3d at 1121 (concluding that blended questioning prolonged a stop where the officer inter-persed routine and off-topic questions for thirteen minutes after telling the driver he would receive a warning).

The court concludes that the extension of the stop was justified by reasonable suspicion, citing a variety of circumstances that arose over the course of the stop. But the key question is whether Allen had reasonable suspicion before he extended the stop with off-topic questions. See United States v. Hollins, 685 F.3d 703, 706 (8th Cir. 2012) (explaining that the determination of whether “reasonable suspicion ‘existed is not to be made with the vision of hindsight, but instead by looking to what the officer reasonably knew at the time’ ” (quoting United States v. Sanders, 196 F.3d 910, 913 (8th Cir. 1999))). The extension of the stop by off-topic questions occurred — at the latest — by the time Allen left Arredondo in the cruiser and approached Murillo-Salgado. At that point, Allen had been questioning Arredondo for approximately ten minutes, and had asked numerous off-topic questions, including questions about the cost of plane tickets to North Carolina, the wiring job, and whether Arredondo had ever used or transported drugs. During the suppression hearing, Allen identified only two circumstances that he found “suspicious” prior to that point: the fact that the rental agreement transposed Arredondo’s middle and last names, and the fact that the rental agreement was for only five days. See United States v. Horton, 611 F.3d 936, 940 (8th Cir. 2010) (“Th[e reasonable suspicion] standard requires that officers be able to point to specific, articulable facts justifying the seizure.”). But Allen did not explain why those minor irregularities— which Arredondo explained without hesitation — gave rise to a rational inference that Arredondo and Murillo-Salgado were transporting drugs. See United States v. Jones, 269 F.3d 919, 928 (8th Cir. 2001) (concluding that inconsistencies in a driver’s answers to an officer did not support reasonable suspicion because the officer identified no “connection between [the] inconsistent answer ... and suspicion of interstate narcotics trafficking”). Thus, I would hold that the extension of the stop was an unconstitutional seizure.

Even if there was reasonable suspicion to prolong the stop, I do not believe there was probable cause to search the air compressor. The court concludes that probable cause existed because Allen observed fresh paint and jagged welding on the air compressor. But although such circumstances might have given rise to an inference that the air compressor had been repaired or modified, they did not establish “a fair probability” that the air compressor contained contraband. Nor could Allen’s training and experience add to the probable-cause calculus: He never testified that he was trained on the use of air compressors to smuggle narcotics, or that he had ever — in hundreds of drug investigations— found narcotics in an air compressor before. See United States v. Johnson, 171 F.3d 601, 604 (8th Cir. 1999) (determining that a postal inspection officer did not have reasonable suspicion that a package contained contraband . because although he had training and experience, “there was no articulation of how the officer’s experience bore upon his appraisal of the package”). Accordingly, I would hold that the search of the air compressor was unconstitutional. For these reasons, I respectfully dissent.

      . The patrol car was equipped with video cameras that recorded activity both within and in front of the vehicle. In addition, Sergeant Allen was wearing a microphone that recorded audio during the traffic stop.

      . The district court made one modification to the report and recommendation to correct a typographical error.

      . Allen offered no testimony suggesting that he found it suspicious that Arredondo first said he and Murillo-Salgado were both electricians, and later said he was a helper and Murillo-Salgado was an electrician. And to the extent Allen suggested that he found the amount of electrical wire in the truck to be suspicious, his testimony establishes that he developed such suspicion only after speaking with Murillo-Salgado, who told him they would be rewiring a 15,000 square-foot mansion.


author: BENTON, Circuit Judge.

text:
    Elizabeth MCLEOD; Heidi O’Sullivan; Sherri Slocum; Ivette Harper; Robert West; Kevin Stemwell; Stephen Miller; Peggy Maxe; Karalyn Littlefield; Colleen Friedrichs; Arlene Hornilla; Marilyn Epp; Dwight Sevaldson; Ann Carlson; Michael Baehr; Gabriele Bauer; Mark Davis; Susanne Dehnke; Frank Delaney; Paula Freeman-Brown; Barbara Fuglie; Richard Fugile; Christopher Gunn; Michelle Laurence; Robert Morris; Vicki Nellen-Jungers; Heidi Neumann; Greg Norman; Michelle Racepla; Susan Ryan; Timothy Schroeder; Diane Sundquist; Greg Zimprich, for and on behalf of themselves and other persons similarly situated, Plaintiffs-Appellees v. GENERAL MILLS, INC., Defendant-Appellant Equal Employment Advisory Council; Chamber of Commerce of the United States, Amici on Behalf of Appellant(s) AARP; Equal Employment Opportunity Commission, Amici on Behalf of Appellee(s)
    No. 15-3540
    United States Court of Appeals, Eighth Circuit.
    Submitted: November 16, 2016
    Filed: April 14, 2017

      Counsel who presented argument on behalf of the appellant was Aaron Daniel Van Oort, of Minneapolis, MN. The following attorneys also appeared on the appellant brief; Marko Joseph Mrkonich, Susan Fitz-ke, Jeffrey Justman, all of Minneapolis, MN.
    Counsel who presented argument on behalf of the appellee was Craig Andrew Brandt, of Minneapolis, MN. The following attorneys also appeared on .the appellee brief; Stephen J. Snyder and Brent C. Snyder, both of Minneapolis, MN.
    Counsel who presented argument on behalf of the amicus, EEOC, was Anne Warren King, Washington, DC. Appearing on the brief for the EEOC was Barbara L. Sloan, Washington DC.

      Before BENTON and SHEPHERD, Circuit Judges, and STRAND, District Judge.

      . The Honorable Leonard T. Strand, United States District Judge for the Northern, District of Iowa, sitting by designation.

   BENTON, Circuit Judge.

The Age Discrimination in Employment Act, as amended by the Older Workers Benefit Protection Act, permits waivers of ADEA rights and claims — but only if they are “knowing and voluntary” as defined by statute. 29 U.S.C. § 626(f)(1). In a waiver dispute, “the party asserting the validity of a waiver shall have the burden of proving in a court of competent jurisdiction that a waiver was knowing and voluntary.” § 626(f)(3). Here, General Mills, Inc., terminated employees and offered them benefits in exchange for releasing all ADEA claims and arbitrating release-related disputes. Thirty-three employees who signed releases request a declaratory judgment that the releases were not “knowing and voluntary.” They also bring collective and individual ADEA claims. General Mills moved to compel arbitration, and the district court denied that motion. Having jurisdiction under 9 U.S.C. § 16(a)(1)(B), this court reverses and remands.

I.

In June 2012, General Mills announced it was terminating about 850 employees. General Mills offered them severance packages in exchange for signing release agreements. By the agreements’ terms, employees release General Mills from all claims relating to their terminations — including, specifically, ADEA claims. The agreements also state that claims covered by the agreements will be individually arbitrated:

[I]n the event there is any dispute or claim arising out of or relating to the above release of claims, including, without limitation, any dispute about the validity or enforceability of the release or the assertion of any claim covered by the release, all such disputes or claims will be resolved exclusively through a final and binding arbitration on an individual basis and not in any form of class, collective, or representative proceeding.

Thirty-three former General Mills employees who signed agreements sued General Mills under the ADEA. They allege, first, that their' ADEA claim waivers were not “knowing and voluntary” as defined by § 626(f)(1) and related regulations, and request a declaratory judgment that the agreements do not waive their ADEA rights. They also allege that the terminations discriminated on the basis of age, and bring disparate-treatment and disparate-impact claims, both collectively and individually. General Mills moved to- dismiss and compel arbitration on an individual basis. The district court denied the motion.

II.

“This court reviews a determination concerning the arbitrability of a dispute de novo.” Owen v. Bristol Care, Inc., 702 F.3d 1050, 1052 (8th Cir. 2013). The Federal Arbitration Act “requires courts to enforce agreements to arbitrate according to their terms ... unless the FAA’s mandate has been ‘overridden by a contrary congressional command.’ ” Compu-Credit Corp. v. Greenwood, 565 U.S. 95, 132 S.Ct. 665, 669, 181 L.Ed.2d 586 (2012) (citation omitted), quoting Shearson/American Express Inc. v. McMahon, 482 U.S. 220, 226, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987). “[I]f a dispute presents multiple claims, some arbitrable and some not, the former must be sent to arbitration even if this will lead to piecemeal litigation.” KPMG LLP v. Cocchi, 565 U.S. 18, 132 S.Ct. 23, 24, 181 L.Ed.2d 323 (2011) (per curiam).

A.

Plaintiffs assert, for the first time on appeal, that the agreements do not cover their ADEA claims. They argue that the agreement to arbitrate applies only to claims “relating to” the release of claims, and their substantive ADEA claims are not related to the release of claims. They are wrong. The agreements’ “relating to” sentence shows the parties’ intent to arbitrate both disputes about the release and substantive ADEA claims. The arbitration provision applies to “any ... claim ... relating to the above release of claims, including ... the assertion of any claim covered by the release.” The agreements explicitly state that a claim “relates to” the release of claims if it asserts a claim covered by the agreements. ADEA claims are covered by the agreements. Absent a contrary congressional command, General Mills can compel employees who signed the agreements to arbitrate their ADEA claims.

B.

The parties disagree whether there is a “contrary congressional command” overriding the FAA’s mandate to enforce their agreements to arbitrate (1) substantive ADEA claims and (2) disputes about the validity of the former employees’ waivers.

1.

No “contrary congressional command” overrides the FAA’s mandate to enforce the parties’ agreements to arbitrate substantive ADEA claims. The former employees invoke § 626(f); they do not allege that the agreements are invalid on any other statutory or common law basis. Section 626(f)(1) provides, “An indi-vidúal may not waive any right or claim under this chapter unless the waiver is knowing and voluntary,” and lists a number of minimum requirements. See § 626(f)(l)(A)-(H). Section 626(f)(3) describes how to prove a waiver:

In any dispute that may arise over whether any of the requirements, conditions, and circumstances set forth in [§ 626(f)(l)-(2)] have been met, the party asserting the validity of a waiver shall have the burden of proving in a court of competent jurisdiction that a waiver was knowing and voluntary....

The former employees’ logic is this: First, by moving to compel arbitration of their claims, General Mills is “asserting the validity of a waiver,” forcing them to forego their “right” to a jury trial and their “right” to proceed by class action. Second, if General Mills wants to assert the validity of that waiver, it “shall” (which they read as “must”) do so “in a court of competent jurisdiction” (which they read as “not in arbitration”).

The logic fails at step one. In asking the court to compel arbitration of the former employees’ claims, General Mills is not asserting the validity of a “waiver.” In § 626(f), “waiver” refers narrowly to waiver of substantive ADEA rights or claims— not, as the former employees argue, the “right” to a jury trial or the “right” to proceed in a class action.

This issue is largely controlled by Penn Plaza LLC v. Pyett, 556 U.S. 247, 129 S.Ct. 1456, 173 L.Ed.2d 398 (2009). There, the Supreme Court addressed the meaning of “rights or claims” under § 626(f)(1)(C), which prohibits waiver of “rights or claims that may arise after the date the waiver is executed.” The Court held that an agreement to bring future claims in arbitration was not a waiver of “rights or claims”: “The decision to resolve ADEA claims by way of arbitration instead of litigation does not waive the statutory right to be free from workplace age discrimination; it waives only the right to seek relief from a court in the first instance.” 14 Penn Plaza, 556 U.S. at 265-66, 129 S.Ct. 1456. See also id. at 259, 129 S.Ct. 1456 (explaining that an “agreement to arbitrate ADEA claims” is not a waiver of “the ‘right’ referred to in § 626(f)(1)”). 1U Penn Plaza thus interprets one of § 626(f)(l)’s references to “rightfs] or claim[s]” to mean substantive rights to be free from age discrimination, not procedural “rights” to pursue age discrimination claims in court.

Here, the specific “rights” the former employees cite are not “rights” under § 626(f)(1). The former employees say that § 626(c)(2) gives them a “right” to a jury trial on ADEA claims. But 14 Penn Plaza forecloses categorizing a jury trial as a § 626(f)(1) “right.” Since no “rights or claims” are waived by agreeing to bring claims in arbitration, a jury trial is not a § 626(f)(1) “right.”

The former employees and amicus AARP try to distinguish 14. Penn Plaza by noting that it involved a pre-dispute agreement rather than a release of already-accrued claims. They argue that “rights or claims” under § 626(f)(1)(C) has a different meaning than “right or claim” under § 626(f)(1). This argument ignores the structure of § 626(f)(1). The two “right[s] or elaim[s]” phrases appear in consecutive sentences, creating a “natural presumption” that the phrases “have the same meaning.” See Environmental Def. v. Duke Energy Corp., 549 U.S. 561, 574, 127 S.Ct. 1423, 167 L.Ed.2d 295 (2007), quoting Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433, 52 S.Ct. 607, 76 L.Ed. 1204 (1932). The context does not rebut this presumption. Section 626(f)(1) refers to “right[s] or claim[s]” four times. Each reference describes the same “right[s] or claim[s]” and places a specific limitation on waiver of those “right[s] or claim[s].” Because an individual waives no “rights or claims” under § 626(f)(1)(C) by agreeing to bring ADEA claims in arbitration, an individual similarly waives no “right or claim” under § 626(f)(1) by agreeing to bring ADEA claims in arbitration.

The former employees also say that § 626(b), by incorporating 29 U.S.C. § 216(b), gives them a “right” to bring a class action. Section' 626(b) provides, “The provisions of this chapter shall be enforced in accordance with the powers, remedies, and procedures provided in sections” including § 216(b). Section 216(b) says, “An action to recover ... liability ... may be maintained ... in any ... court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.” Section 626(b)’s incorporation of § 216(b) “expressly authorizes employees to bring collective age discrimination actions ‘in behalf of ... themselves and other employees similarly situated.’ ” Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989), quoting § 216(b).

Standing alone, § 216(b) does not create a non-waivable substantive right; rather, its class-action authorization can be waived by a valid arbitration agreement. Owen, 702 F.3d at 1052-55. Section 626(b)’s incorporation of § 216(b) does not elevate the procedural class-action authorization to a substantive § 626(f)(1) “right.” A close reading of § 626(b) shows why. Section 626(b) says the ADEA “shall be enforced in accordance with the powers, remedies, and procedures provided in sections” including § 626(c) and § 216(b). Section 626(c) says aggrieved persons “may bring” court actions; § 216(b) says class actions “may be maintained.” Under Up Penn Plaza, § 626(c)’s authorization of court actions does not create a § 626(f)(1) “right.” Because § 216(b) and § 626(c) have similar language and context, § 216(b)’s authorization of class actions similarly does not create a § 626(f)(1) “right.”

In moving to compel arbitration of the former employees’ ADEA claims, General Mills did not assert the validity of a waiver of “the statutory right to be free from workplace age discrimination.” See 14 Penn Plaza, 556 U.S. at 265, 129 S.Ct. 1456. Section 626(f) is not a “contrary congressional command” overriding the FAA’s mandate to enforce the agreements to arbitrate ADEA claims. Since the agreements require individual arbitration of the former employees’ ADEA claims, the district court should have granted General Mills’s motion as to those claims.

2.

The former employees contend that the issue for declaratory judgment— whether the purported waivers of their substantive ADEA claims were “knowing and voluntary” under § 626(f)(1) — is not arbitrable. They note that § 626(f)(3) says that “the party asserting the validity of a waiver shall have the burden of proving in a court of competent jurisdiction that a waiver was knowing and voluntary” as defined in § 626(f)(1). They argue that the mandatory “shall have the burden of proving in a court of competent jurisdiction” (emphases added) is a contrary congressional command that overrides the FAA’s directive to enforce the agreements.

Athough neither party contests this court’s jurisdiction over the declaratory judgment claim, this court must independently determine whether the claim presents an Article III case or controversy. In re McCormick, 812 F.3d 659, 661 (8th Cir. 2016). To satisfy the case-or-controversy requirement, a declaratory judgment action must be “definite and concrete, touching the legal relations of parties having adverse legal interests,” “real and substantial,” and “admi[t] of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007) (alteration in original), quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41, 57 S.Ct. 461, 81 L.Ed. 617 (1937). “Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Id. quoting Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct 510, 85 L.Ed. 826 (1941).

An Article III case or controversy may exist where a private party threatens an enforcement action that would cause an imminent injury. See id. at 130-31, 127 S.Ct. 764. Here, though, the former employees do not plead that General Mills threatens any enforcement of the ADEA claim waiver, let alone enforcement that would cause them imminent injury. Instead, they request a declaration of their rights under a hypothetical set of facts. They want to know their legal rights if, in the future, General Mills asserts that the waivers of their substantive ADEA rights were “knowing and voluntary” under § 626(f)(3). The hypothetical nature of the claim is clear from the amended complaint:

If and to the extent that General Mills maintains that any purported waiver of ‘any right or claim’ under the ADEA contained in a Release Agreement form signed by any of Plaintiffs (or by other similarly situated person who may hereafter opt in to this action) is effective, then the parties have an actual controversy, and the Court should issue declaratory relief confirming that the Release Agreement forms signed by such persons were not ‘knowing and voluntary’ under the ADEA and therefore, as a matter of law, did not that [sic] waive or impair any right or claim under the ADEA

(emphases added). The former employees acknowledge that they have a justiciable claim only “if and to the extent” General Mills asserts the validity of their substantive ADEA claim waivers. But General Mills has not asserted the validity of the substantive ADEA claim waivers. At present, the injury (as pled by the former employees) is “conjectural” or “hypothetical” — not “actual” or “imminent” as required to satisfy Article III. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). See also MedImmune, 549 U.S. at 128 n.8, 127 S.Ct. 764 (quoting Lujan).

No Article III case or controversy arises when plaintiffs seek “a declaratory judgment as to the validity of a defense” that a defendant “may, or may not, raise” in a future proceeding. Calderon v. Ashmus, 523 U.S. 740, 747, 118 S.Ct. 1694, 140 L.Ed.2d 970 (1998). In Ashmus, prisoners sued state officials who had threatened to invoke a statute that allowed qualifying states to raise a shorter statute of limitations against habeas petitions, and granted other procedural benefits. See id. at 742-43, 118 S.Ct. 1694. The prisoners requested a declaration that the state did not qualify for the statutory benefits. See id. at 743, 118 S.Ct. 1694. The Court held there was no case or controversy:

The ‘case or controversy’ actually at stake is the class members’ claims in their individual habeas proceedings. Any judgment in this action thus would not resolve the entire case or controversy as to any one of them, but would merely determine a collateral legal issue governing certain aspects of their pending or future suits.

Id. at 747, 118 S.Ct. 1694. Accord Coffman v. Breeze Corp., 323 U.S. 316, 324, 65 S.Ct. 298, 89 L.Ed. 264 (1945) (finding no case or controversy where patent owner sought declaratory judgment that Royalty Adjustment Act was unconstitutional because “the constitutionality of the Act is without legal significance and can involve no justi-ciable question unless and until appellant seeks recovery of the royalties, and then only if appellee relies on the Act as a defense”).

The “controversies” here are not whether the former employees waived their substantive ADEA rights. Rather, the “controversies” are the ADEA claims themselves, which ■ the declaratory judgment action will not resolve. If the former employees won, they would still have to arbitrate the merits of the claims. If the former employees lost, they could still sue General Mills so long as General Mills did not raise waiver as an affirmative defense. The district court did not have jurisdiction over the former employees’ declaratory judgment claim.

III.

On remand, the district court should dismiss the former employees’ declaratory judgment claim for lack of jurisdiction, and grant General Mills’s motion to compel individual arbitration of the remaining substantive ADEA claims. The district court may decide whether to stay this action or dismiss it pending resolution of the arbitrations. See Unison Co. v. Juhl Energy Dev., Inc., 789 F.3d 816, 821 (8th Cir. 2015).

This court does not decide whether General Mills can assert the validity of its waiver in arbitration. Because this court does not have jurisdiction over the declaratory judgment action, this court does not reach the question of the import of § 626(f)(3)’s instruction that “the party asserting the validity of a waiver shall have the burden of proving in a court of competent jurisdiction that a waiver was knowing and voluntary.”

⅜ ⅜ ⅝ ⅜ ⅜ ⅜ ⅜

The judgment of the district court is reversed, and the case is remanded for proceedings consistent with this opinion.

      . This holding does not mean that a declaratory judgment claim that a waiver was not “knowing and voluntary” under § 626(f) could never present an Article III case or controversy. See, e.g., Newman v. District of Columbia Courts, 125 F.Supp.3d 95, 106-08 (D.D.C. 2015) (collecting cases and explaining that jurisdiction might exist if an agreement requires "tender back” of benefits or imposes penalties for pursuing substantive ADEA claims).


author: GRUENDER, Circuit Judge.

text:
    Glen Ray ALLEN, Movant-Appellant v. UNITED STATES of America, Respondent-Appellee
    No. 15-3607
    United States Court of Appeals, Eighth Circuit.
    Submitted: February 10, 2017
    Filed: April 14, 2017

      Counsel who presented argument on behalf of the appellant was Christopher Aaron Holt, AFPD, of Fayetteville, AR.
    Counsel who presented argument on behalf of the appellee was Dustin S. Roberts, AUSA, of Fort Smith, AR.

      Before SMITH, GRUENDER, and BENTON, 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.

   GRUENDER, Circuit Judge.

Glen Ray Allen pleaded guilty to conspiring to distribute more than 1,000 kilograms of marijuana and possessing with intent to distribute more than 100 kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846. The district court sentenced Allen to 120 months’ imprisonment, which was affirmed on appeal. Allen petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2255, claiming that he was denied his Sixth Amendment right to effective assistance of counsel. The district court denied the petition without an evidentiary hearing. We granted a certificate of appealability and now affirm.

I. BACKGROUND

The facts underlying Allen’s conviction are set forth in our prior opinion, United States v. Allen, 705 F.3d 367, 368-69 (8th Cir. 2013). We repeat those facts here as relevant for the instant appeal.

Following the initial filing of the criminal complaint in April 2010, Allen and a co-defendant ultimately were charged by superseding indictment with conspiring to distribute more than 1,000 kilograms of marijuana (count one) and possessing with intent to distribute more than 100 kilograms of marijuana (count two). He faced a mandatory minimum sentence of ten years on count one and five years on count two. See 21 U.S.C. § 841(b)(1)(A) and (B). Beginning in May 2010, attorney Tylar Tapp represented Allen, Allen pleaded not guilty to both counts, and Tapp filed a motion to suppress evidence seized from Allen’s ear. On July 29, 2010, the Government offered a plea deal in which Allen would plead guilty to count two, face a mandatory minimum of five years, and stipulate to a total offense level of 29 — • yielding an advisory sentencing range of 97 to 121 months’ imprisonment. The plea offer was contingent on Allen withdrawing the suppression motion.

Tapp thoroughly discussed the plea offer with Allen, but Allen was unhappy with the terms and did not want Tapp negotiating with the Government any further. Allen told Tapp that his sentence under the plea offer “was too much time for me to do according to my involvement.” Based on these instructions, Tapp sent a letter to Allen in September 2010 confirming that the suppression hearing was set for October 2010. Tapp wrote, “It is my belief and understanding that I am going forward with this hearing and not to do any other negotiations unless told otherwise by you. If your opinion changes then please do not hesitate to let me know as soon as possible.” Initially, Tapp had advised Allen to reject the plea offer and move forward with the motion to suppress. Tapp changed his position, however, when he learned that the Government could prove Allen was speeding prior to the search. Around this time and without Tapp’s knowledge, Allen attempted to file an independent motion to suppress with the district court. Allen then informed the district court that he wished to retain different counsel. The district court allowed Tapp to withdraw and postponed the suppression hearing. Afterwards, Allen filed another pro se motion asserting there was insufficient evi-denee supporting the charges. On December 9, 2010, Allen retained Clay Janske to represent him.

Allen informed Janske that he was not interested in a plea deal and instructed him not to discuss the existing plea' offer. In fact, Allen hired Janske specifically because he “would not be scared” to try the case before a.jury. On this basis, Janske proceeded with the motion to suppress, which was denied. Following the denial of the motion to suppress and a few days prior to trial, Allen’s co-defendant pleaded guilty and agreed to testify against Allen. Around this time, the Government also indicated that if Allen proceeded to trial, it intended to seek an enhanced sentence based on Allen’s prior felony drug convictions. See 21 U.S.C. § 851. If convicted on count one, Allen would face a mandatory sentence of life imprisonment; if convicted on count two, Allen would face a mandatory minimum sentence of 10 years and a maximum sentence of life imprisonment.

At this point, Janske broached the subject of a plea offer. Because Allen proceeded with the suppression hearing, the Government offered a plea deal in which Allen would conditionally plead guilty to both counts without the § 851 enhancements, reserving the right to appeal the denial of his motion to suppress. Allen accepted the plea offer, conditionally pleaded guilty to both counts, and faced a mandatory minimum sentence of ten years on count one and five years on count two. The district court calculated an advisory sentencing guidelines range of 121 to 151 months’ imprisonment and sentenced Allen to concurrent 120-month terms, the mandatory minimum for count one. On appeal, we affirmed the district court’s denial of the motion to suppress. Id. at 370.

After his appeal, Allen filed this § 2255 petition, along with an affidavit and exhibits, alleging that he was denied his Sixth Amendment right to effective assistance of counsel. The Government responded with a brief and affidavits from Tapp and Janske. Among other claims, Allen argued that Janske gave erroneous advice that Allen would only get “a couple of more years” if he proceeded to trial instead of pleading guilty. Janske attested that this advice had been based on inaccurate information that Allen had provided about his criminal history. Allen argued that had Janske properly advised him about the potential of a mandatory sentence of life imprisonment if convicted on count one, he would have accepted the Government’s initial offer and pleaded guilty before the suppression hearing. Instead, he pleaded guilty shortly before trial and faced a ten-year mandatory minimum instead of a five-year one.

The district court, adopting the report and recommendation of the magistrate judge, denied Allen’s petition without an evidentiary hearing. Reviewing the record, it found that Allen specifically told Janske that he was not interested in plea negotiations and to proceed with the suppression hearing. Even after the court denied the motion to suppress, Allen continued to forbid counsel from negotiating a plea deal. It concluded that “[o]nly when a co-defendant pled guilty and offered to testify against him and the Government indicated it would seek to enhance his sentence if the case went to trial, did Allen consider entering a plea agreement.” We granted a certificate of appealability on the question of whether Janske’s failure to advise Allen of a possible mandatory life sentence constituted ineffective assistance of counsel. Allen now appeals.

II. DISCUSSION

“It has long been recognized that the [Sixth Amendment] right to counsel is the right to effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) (citations omitted). This right extends to the plea-bargaining process such that “[i]f a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it.” Lafler v. Cooper, 566 U.S. 156, 168, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). In order to establish ineffective assistance of counsel, Allen must demonstrate that his counsel’s performance was both deficient and prejudicial. See Strickland v. Washington, 466 U.S. 668, 693, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

“In determining whether counsel’s conduct was [deficient], there is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’ ” Nguyen v. United States, 114 F.3d 699, 704 (8th Cir. 1997) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). Additionally,, “[strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” United States v. Rice, 449 F.3d 887, 897 (8th Cir. 2006) (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052). To demonstrate that counsel’s deficient performance prejudiced his defense, Allen must show that there is a “reasonable probability that, but for [his] counsel’s unprofessional errors, the result of [his] proceedings would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052; see also Sanders v. United States, 341 F.3d 720, 722 (8th Cir. 2003) (“[T]he defendant must show that, but for his counsel’s advice, he would have accepted the plea.” (quotation omitted)). “A reasonable probability is a probability sufficient to undermine confidence in the outcome,” which “requires a substantial, not just conceivable, likelihood of a different result.” Cullen v. Pinholster, 563 U.S. 170, 189, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011) (quotations omitted). In the plea-bargaining context, this means a claimant must demonstrate a substantial likelihood that (1) he would have accepted the offer to plead pursuant to the earlier proposed terms, (2) neither the prosecution nor the trial court would have prevented the offer from being accepted, and (3) the plea terms would have been less severe than under the judgment and sentence that were actually imposed. See Lafler, 566 U.S. at 164, 132 S.Ct. 1376; see also Missouri v. Frye, 566 U.S. 133, 148, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012).

We review § 2255 post-conviction ineffective-assistance claims de novo and the underlying findings of fact for clear error. United States v. Regenos, 405 F.3d 691, 692-93 (8th Cir. 2005). “We review the district court’s decision to deny an eviden-tiary hearing for abuse of discretion.” Id. at 693. Assuming without deciding that Allen has demonstrated that his counsel’s performance was deficient, see Boysiewick v. Schriro, 179 F.3d 616, 620 (8th Cir. 1999), Allen has failed to show a substantial likelihood that he would have accepted the offer to plead guilty pursuant to the more favorable terms offered prior to the suppression hearing. As a result, Allen has not proven that Janske’s advice prejudiced his defense.

Allen contends that he was prejudiced by Janske’s allegedly erroneous advice that Allen would only get “a couple of more years” if he proceeded to trial instead of pleading guilty. Allen points to the fact that once he learned of the possibility of a life sentence, he quickly pleaded guilty. This, he asserts, is sufficient to show a “substantial, not just conceivable, likelihood” that he would have accepted the initial plea offer had Janske advised him of the possibility of a life sentence. See Cullen, 563 U.S. at 189, 131 S.Ct. 1388 (quotations omitted). Men’s claims, however, run contrary to the record, which is clear that Men’s decision was motivated by his belief that the plea offer was not favorable enough and his hope that he would succeed on the suppression motion.

Men conceded that he thought the initial plea offer “was too much time for me to do according to my involvement” and thus told Tapp that he was not interested in negotiating with the Government. When Tapp expressed doubt about the chances of success on the motion to suppress, Men attempted to file his own motion to suppress and fired Tapp. After that, Men filed another pro se motion to dismiss the indictment, claiming there was insufficient evidence to support the charges. Men then hired Janske specifically because Janske “would not be seared” to go to trial and told Janske that he was not interested in negotiating a plea. Even after his suppression motion was denied in January 2011, Men forbade Janske from negotiating a plea deal. Men did not plead guilty until April 2011, after his co-defendant had agreed to testify against him and the Government had indicated that it would seek an enhanced sentence if Men proceeded to trial. The district court found that both factors — the co-defendant testimony and the possible enhancement — influenced Allen’s decision to plead guilty. In other words, Men failed to prove that “but for his counsel’s advice, he would have accepted the plea.” See Sanders, 341 F.3d at 722 (emphasis added). Under similar circumstances, we concluded a habeas claimant failed to show prejudice in part because he was “unwilling[ ] to consider pleading guilty,” had “always expressed a desire to proceed to trial, and none of counsel’s discussions about the possibility of a guilty plea seemed to sway him.” Id. at 723. Thus, we conclude that Men failed to prove, by a substantial likelihood, that he would have accepted the offer to plead pursuant to the earlier proposed terms.

Finally, the district court did not abuse its discretion in denying Men’s request for an evidentiary hearing. “A § 2255 motion can be dismissed without a hearing if (1) the petitioner’s allegations, accepted as true, would not entitle the petitioner to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.” Regenos, 405 F.3d at 694. Here, Men’s claim that he was prejudiced by his counsel’s purported deficient performance is contradicted by the record. Thus, the district court did not abuse its discretion in denying Men’s § 2255 petition without an evidentiary hearing.

III. CONCLUSION

For the foregoing reasons, the judgment of the district court is affirmed.

      . The Honorable Robert T. Dawson, United States District Judge for the Western District of Arkansas, now retired, adopting the report and recommendations of the Honorable Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas.

      . In a letter sent to the district court after he pleaded guilty and was sentenced, Allen wrote, “I did mention [to Janske] that I didn’t want to discuss a plea.”