source: Caselaw Access Project

author: JAMES E. GRAVES, JR., Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee v. Jesus ENRIQUE-ASCENCIO, Defendant-Appellant
    No. 16-10274
    United States Court of Appeals, Fifth Circuit.
    FILED May 19, 2017

      Brian W. Portugal, James Wesley Hendrix, Assistant U.S. Attorneys, U.S. Attorney’s Office, Northern District of Texas, Dallas, TX, for Plaintiff-Appellee.
    Kevin Joel Page, Federal Public Defender’s Office, Northern District of Texas, Dallas, TX, for Defendant-Appellant.
    Before BARKSDALE, GRAVES, and HIGGINSON, Circuit Judges.
   JAMES E. GRAVES, JR., Circuit Judge:

Jesus Enrique-Ascencio pleaded guilty to one count of illegally' reentering the country after a prior removal. He appeals the 16-level sentence enhancement he received under Section 2L1.2 of the federal Sentencing Guidelines for a prior drug trafficking conviction, contending that this conviction was not “a drug trafficking offense for which the sentence imposed exceeded 13 months.” In the alternative, Enrique-Ascencio asks for remand so that the district court may resentence him under a post-sentencing Guidelines amendment that would have reduced his total offense level. For the reasons that follow; we AFFIRM.

I. BACKGROUND

On November 24, 2015, Enrique-Ascen-cio pleaded guilty to one count of illegally reentering the country after a prior removal in violation of 8 U.S.C. § 1326(a) and (b)(2). The probation officer who prepared his presentence report (“PSR”) recommended that his base offense level be increased by 16 levels under Section 2L1.2(b)(1)(A), based on a prior felony drug trafficking offense “for which the sentence imposed exceeded 13 months.” The recommended enhancement was based on a 2006 California felony conviction for possession for sale of cocaine. According to the PSR, Enrique-Ascencio was sentenced for this offense to 120 days in “the work release program in jail,” followed by 36 months of probation. In April 2008, a probation revocation hearing was held after Enrique-Ascencio violated the terms of his probation and he was sentenced to an additional 365 days in the county jail.

The PSR calculated a cumulative sentence of 485 days of imprisonment, triggering the Section 2L1.2 16-level enhancement. As proof of the 2006 conviction and sentence, the PSR appended a plea document for the offense. It indicated that Enrique-Ascencio desired to enter a guilty plea to the offense with the understanding that the district attorney had agreed to a sentence of “120 CJ W/E’s. Plea contingent on no prior felony convictions.”

Enrique-Ascencio objected to the enhancement, arguing that he had not sustained a drug trafficking offense for which the sentence imposed was greater than 13 months. He claimed that serving his sentence of 120 days through a work release program did not constitute a “sentence of imprisonment” under Section 2L1.2(b)(1)(A)(i) and 2L1.2 cmt. n.1(B)(vii), because he worked each day outside of a jail facility. Enrique-Ascencio did not dispute that his 365-day sentence of imprisonment for his subsequent parole violation counts toward his “sentence imposed” for purposes of the enhancement. But by his calculation, his sentence was 365 days in total, warranting only a 12-level enhancement. Enrique-Aseencio also noted that the Government had not provided a certified copy of the judgment supporting the enhancement and reserved his right to object on this additional basis if the Government did not produce a certified copy by the date of sentencing.

The district court overruled Enrique-Ascencio’s objections and adopted the findings in the PSR without change. The court sentenced Enrique-Aseencio at the bottom of the Guideline range of 57 to 71 months and credited him for a month of administrative custody, resulting in a term of imprisonment of 56 months. It imposed no term of supervised release. This appeal followed.

II. DISCUSSION

Enrique-Ascencio raises two issues on appeal. First, he argues that the district court’s application of the 16-level enhancement was error because it was not established that the sentence imposed for the offense, at least some of which he served through work release, exceeded 13 months. Second, Enrique-Ascencio urges remand so that the district court may resentence him under a Guidelines amendment that became effective after his sentencing. We address each issue in turn.

A. Work Release as a Sentence of Imprisonment

Enrique-Ascencio appeals the district court’s rejection of his objection to the PSR that his time spent in a work release program should not be counted toward his “sentence imposed” for purposes of determining the applicability of Section 2L1.2’s 16-level enhancement. Because Enrique-Ascencio preserved this objection, “we review the district court’s interpretation and application of the sentencing guidelines de novo and its findings of fact for clear error.” United States v. Martinez-Lugo, 782 F.3d 198, 201 (5th Cir. 2015) (alteration omitted). “We review a district court’s conclusion that a prior state conviction constitutes a drug trafficking offense [for which the sentence imposed exceeded 13 months] de novo.” Id.

1. Section 2L1.2(b)(1)(A)(i)

We have. not yet addressed whether a sentence involving work release qualifies as a “sentence of imprisonment” under the Guidelines. Here, we need only determine whether the particular California work release program identified by Enrique-Ascencio so qualifies. Federal sentencing guidelines are analyzed according to the rules of statutory interpretation. United States v. Mendez-Villa, 346 F.3d 568, 570 (5th Cir. 2003) (per curiam). “The text of the guideline is the starting point in the analysis; the commentary is considered authoritative. We use ‘a plain-meaning approach’ in our interpretation of the Sentencing Guidelines.” Id. (internal citations omitted).

We begin with the text. At the time Enrique-Ascencio was sentenced, Section 2L1.2(b)(1)(A)(i) provided that the offense level for unlawfully entering the United States shall be increased by 16 if the defendant previously was deported after “a conviction for a felony that ... is a drug trafficking offense for which the sentence imposed exceeded 13 months.” The commentary to Section 2L1.2 indicates that “sentence imposed” has the same meaning as the term “sentence of imprisonment” found in Section 4A1.2. U.S.S.G. § 2L1.2 cmt. n.1(B)(vii) (referring to § 4A1.2(b) and cmt. n.2). That Guideline, in turn, defines “sentence of imprisonment” as a “sentence of incarceration and refers to the maximum sentence imposed.” § 4A.1.2(b)(1). The commentary further clarifies that “[t]o qualify as a sentence of imprisonment, the defendant must have actually served a period of imprisonment on such sentence (or, if the defendant escaped, would have served time).” § 4A1.2 cmt. n.2. But “criminal history points are based on the sentence pronounced, not the length of time actually served.” Id.

Enrique-Ascencio posits that serving a jail sentence through work release does not constitute a “sentence of imprisonment” because work release is not actual incarceration. And because “the defendant must have actually served a period of imprisonment” in order for his sentence to qualify as a “sentence of imprisonment,” § 4A1.2 cmt. n.2, the Government must prove that Enrique-Ascencio actually served at least one day of his 120-day sentence in a penal institution.

The parties agree that the work release program referenced in Enrique-Ascencio’s plea agreement refers, to California’s county jail work release program, authorized under California Penal Code Section 4024.2(a). That statute permits the sheriff “to offer a voluntary program under which any person committed to the [county jail] facility may participate in a work release program ... in which one day of participation will be in lieu of one day of confinement.” Id. Individual participation in the program is within the discretion of the sheriff. Id. § 4024.2(d). Furthermore, if the person fails to comply with the conditions of the program, “the sheriff may immediately retake the person into custody to serve the balance of his or her sentence.” Id. § 4024.2(c).

Although we have not previously decided the issue of whether a work release program like this one qualifies as a ‘sentence of imprisonment’, we do not write on a clean slate. In. United States v. Schomburg, 929 F.2d 505 (9th Cir. 1991), the Ninth Circuit determined that a jail sentence served through a similar California diversionary work release program is nonetheless a “sentence of imprisonment” under the Guidelines. In Schomburg, the defendant was sentenced to 60 days in county jail, which the sentencing court recommended he serve through a weekend work project. Id. at 506-07. The Schom-burg court rejected the defendant’s argument that “because he was never in custody on the 60-day sentence, it should not be counted as a sentence of imprisonment.” Id. at 507. The court reasoned that the defendant’s eligibility for the weekend work project was ultimately at the discretion of the sheriff so the sentencing court’s recommendation of the work project was not binding. Id. “Thus, the sentence, as pronounced by the court at the outset, was a sentence of imprisonment subject to alteration at the Sheriffs discretion.” Id.

Enrique-Ascencio’s participation in the work release program is similarly at the discretion of the county sheriff. See Cal. Penal Code §§ 4024.2(c) and (d). Indeed, treatment of section 4024.2 by California courts supports this understanding. The California Supreme Court has observed that “[sjubdivision (a) of section 4024.2 states that the program may only be offered to someone already committed to the correctional facility[,]” and the statute further “provides that a person is eligible for the program at the discretion of the administrative official in charge of the program[.]” Ryan v. Comm’n on Judicial Performance, 45 Cal.3d 518, 247 Cal.Rptr. 378, 754 P.2d 724, 735-36, as modified on denial of reh’g (Cal. 1988). Thus, a judge does “not have authority under Penal Code section 4024.2 to order [a defendant] into the work-release program.” Id., 247 Cal.Rptr. 378, 754 P.2d at 736. Importantly, the court explained, “[a] judge has the power to commit a person to a correctional facility, but then the administrative official in charge of the facility has the discretionary power to offer work release if the person is deemed eligible under the rules of the program.” Id. (emphasis added). Courts since appear to have embraced this interpretation of the work release statute. See, e.g., United States v. Benz, 472 F.3d 657, 659 (9th Cir. 2006) (“California state judges do not have the discretion to impose work release under § 4024.2(a).”); People v. Dubose, No. B275409, 2017 WL 1365026, at *2 (Cal. Ct. App. Apr. 12, 2017) (unpublished) (“By section 4024.2’s explicit terms, oversight and administration of a work release program to satisfy an imposed term of confinement under that section falls under the authority of the county board of supervisors and the county sheriff or appropriate designee—not the trial court.”).

These decisions bolster the Ninth Circuit’s analysis in Schomburg, which we have cited with approval in the past. In United States v. Valdez-Valdez, 143 F.3d 196, 202 n.41 (5th Cir. 1998), we noted that although the defendant had not argued that his work release was not a sentence of imprisonment, such an argument would likely fail, citing Schomburg.

Then, in United States v. Brooks, 166 F.3d 723, 727 (5th Cir. 1999), we cited Schomburg as persuasive authority in determining that the defendant’s boot camp sentence was a sentence of imprisonment for purposes of calculating his criminal history score under Section 4A1.1(b). Enrique-Ascencio argues that Brooks supports his position because we deemed “physical confinement [to be] a key distinction between sentences of imprisonment and other types of sentences,” leading to our conclusion that boot camp was a sentence of imprisonment because the defendant was not free to leave. Id. at 726-27 (quoting United States v. Vanderlaan, 921 F.2d 257, 259 (10th Cir. 1990)). By contrast, Enrique-Ascencio argues that the work release program in which he participated does not require any physical confinement; the participant may simply “show up to work and then go home.” In this sense, he contends that work release is similar to home detention, which we have held is not a sentence of imprisonment because it does not involve confinement in a penal institution. See United States v. Gordon, 346 F.3d 135, 138-39 (5th Cir. 2003).

Brooks and Gordon do not avail Enrique-Ascencio. Both decisions accepted Schomburg’s logic that, despite the lack of custodial confinement, the sheriffs discretion to alter the sentence to include imprisonment renders work release a sentence of imprisonment. Indeed, Gordon distinguished work release from home detention, as “there [was] no indication in the record that [the defendant’s] sentence of house arrest involved any discretion by law enforcement.” 346 F.3d at 138.

We are persuaded by Schomburg’s reasoning and adopt it here. The text of the Guidelines further supports this interpretation. Importantly, a sentence of imprisonment is based on the “sentence pronounced” by the court, and not “the length of time actually served.” § 4A1.2 cmt. n.2. The court sentenced Enrique-Ascencio to 120 days in the county jail with eligibility to serve his sentence through a work release program. His ultimate participation in the program in lieu of incarceration was at the discretion of law enforcement. Just as the length of time actually served has no impact on whether a defendant’s sentence is a sentence of imprisonment, so too is the manner in which the sheriff ultimately determines the defendant will serve the jail sentence pronounced by the court.

Enrique-Aseencio’s remaining arguments are similarly unpersuasive. In response to his contention that the Government must prove he “actually served a period of imprisonment,” i.e., a period of incarceration, on his sentence, § 4A1.2 cmt. n.2, the Government asserts that “period of imprisonment” has a more limited meaning, as evidenced by the commentary’s reference to Sections 4A1.2(a)(3) and (b)(2). Those provisions address the suspension of sentences, which the Guidelines treat differently. For example, any part of a sentence of imprisonment that was suspended does not count toward the “sentence of imprisonment.” § 4A1.2(b)(2). Therefore, the requirement of actually serving a period of imprisonment is meant only to carve out sentences that were initially pronounced as sentences of imprisonment, but were subsequently judicially suspended. That an escapee is counted as having actually served a period of imprisonment, see § 4A1.2 cmt. n.2, underscores the point that judicial suspension of a sentence (which leaves no discretion to law enforcement), and not actual confinement, is the focus of that clause. We think this a more reasonable construction of the term because it avoids conflict with the Guidelines’ emphasis on “the sentence pronounced,” rather than “the length of time actually served.” See id.

Enrique-Ascencio also invokes the canon of statutory construction against surplusage, pointing out that another Guideline, Section 4A1.1, lists both work release and imprisonment as examples of criminal justice sentences, suggesting that the two must be distinct. See § 4A1.1(d) (stating that a defendant receives two extra criminal history points “if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status”). If “imprisonment” were understood to include “work release,” Enrique-Ascencio argues, the latter would be surplusage. See Ratzlaf v. United States, 510 U.S. 135, 140-41, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994). But the surplusage canon “cannot always be dispositive because (as with most canons) the underlying proposition is not invariably true. Sometimes drafters do repeat themselves ...” Scalia & Garner, Reading Law: The Interpretation of Legal Texts, 176-77 (1st ed. 2012). That canon is inapt in the context of Section 4A1.1, in which the Commission was trying to account for myriad “jurisdictional variations in offense definitions, sentencing structures, and manner of sentence pronouncement.” § 4A1.1 cmt. background. As the Government explains, it is more likely that the Commission was especially inclusive in expounding the meaning of a “criminal justice sentence,” and some redundancy crept in.

Furthermore, the Government points to another Guideline that mentions work release, Section 5G1.3, which expressly includes work release within the definition of a “term of imprisonment.” Section 5G1.3 discusses how sentences are imposed on defendants subject to an undischarged term of imprisonment and provides that: “[i]f the instant offense was committed while the defendant was serving a term of imprisonment (including work release, furlough, or escape status)” the sentence should be imposed consecutively to the undischarged term of imprisonment. § 5G1.3(a). By the Government’s reckoning, Sections 4A1.1 and 5G1.3 contain the only two instances of the term “work release” in the Guidelines. And one of those instances plainly includes work release in the definition of “a term of imprisonment.” This strongly suggests that the Commission recognized that work release may be a means of serving a sentence of imprisonment, rather than a separate status. By contrast, the Guidelines treat a sentence of home detention as something other than a sentence of imprisonment. See Gordon, 346 F.3d at 138-39 (observing that Sections 501.1(c) and 7B1.3(d) distinguish between home detention and imprisonment).

Accordingly, we hold that Enrique-As-cencio’s 120-day sentence is a sentence of imprisonment, regardless of whether he served it in whole or in part through California’s Section 4024.2 work release program. Therefore, based on his cumulative 485-day sentence, Enrique-Ascencio was previously convicted of “a felony ... drug trafficking offense for which the sentence imposed exceeded 13 months,” warranting Section 2L1.2’s 16-level enhancement.

2. District Court’s Reliance on Nonbinding Plea Document

Enrique-Ascencio also challenges the enhancement on the grounds that the Government failed to satisfy its burden of proof with competent evidence of his prior conviction and sentence. Because the PSR appended only a non-binding plea document as proof of the predicate offense, Enrique-Ascencio reserved his right to object if the Government did not provide a certified copy of the judgment by the date of sentencing. At sentencing, the Government had not yet obtained the document. Enrique-Ascencio notified the district court of his intent to file an appeal and indicated that, although he did not contest the fact of the conviction, a certified copy of the judgment would be necessary for the appellate record. He agreed to a continuance to the imposition of final judgment to allow the Government time to provide a certified copy, which the Government agreed to do. Final judgment, however, was entered without such documents. Some months later, the Government provided the district court with three additional documents: (1) the same plea document that was originally appended to the PSR; (2) the criminal complaint for the 2006 offense; and (3) a case print of the court minutes relating to the offense. In its brief to this Court, the Government stated that it was in the process of obtaining a copy of the judgment from San Bernardino County to supplement the record. The Government has since represented that for reasons unknown and despite multiple requests, the clerk’s office in San Bernardino County has not yet produced the judgment. Nevertheless, the Government maintains that the documents in the record are sufficient to support the district court’s imposition of the enhancement.

“A district court cannot impose a sentence enhancement such as [§ 2L1.2(b)(1)(A)(i) ] unless the government has proven any facts necessary to support the enhancement by a preponderance of the evidence.” United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011). We review the district court’s factual findings for clear error. Id. A factual finding is not clearly erroneous if it is “plausible in light of the record as a whole.” Id. “This court will find clear error only if a review of the record results in a ‘definite and firm conviction that a mistake has been committed.’ ” United States v. Lopez-Cano, 516 Fed.Appx. 350, 352 (5th Cir. 2013) (unpublished) (quoting Rodriguez, 630 F.3d at 380).

Enrique-Aseencio contends that the “categorical approach” of Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), applies to a sentencing court’s determinations that a prior offense qualifies as a predicate for a sentence enhancement. We agree. See, e.g., United States v. Gomez-Alvarez, 781 F.3d 787, 792 (5th Cir. 2015); United States v. Garza-Lopez, 410 F.3d 268, 273 (5th Cir. 2005). “Under the categorical approach set forth in Taylor v. United States, a sentencing court looks to the elements of a prior offense, rather than the facts underlying the conviction, when classifying a prior offense for sentence enhancement purposes.” Gomez-Alvarez, 781 F.3d at 792. When the statutory definition of the prior offense does not categorically establish that it is a qualifying offense for the enhancement, the Supreme Court has, under certain circumstances, endorsed a “modified” categorical approach, under which a sentencing court “is permitted to look beyond the fact of conviction and the statutory definition of the prior offense.” Id. (citing Shepard v. United States, 544 U.S. 13, 17, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)). Under this approach, a court may look to a limited class of documents, such as a “charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Shepard, 544 U.S. at 16, 125 S.Ct. 1254.

Proper documents are limited to “conclusive records made or used in adjudicating guilt.” Id. at 21, 125 S.Ct. 1254. This Court has previously determined that certain documents are not Shepard-approved. The PSR, standing alone, cannot establish whether a prior offense qualifies for a sentence enhancement. United States v. Gutierrez-Ramirez, 405 F.3d 352, 357 (5th Cir. 2005). Criminal complaints are also inadequate because they do not represent the final charging document to which a defendant pleaded guilty. Lopez-Cano, 516 Fed.Appx. at 353-54 (explaining that under California criminal procedure, a felony prosecution commences with a criminal complaint, but is subsequently replaced by an information or stipulated to be deemed an information). For the same reason, the plea document appended to the PSR, a declaration by defendant of intention to plead nolo contendere, is not an acceptable record because it is not a final written plea agreement between the parties and approved by the court. Docket sheets and case summaries also “are not Shepard-approved documents because they were prepared by court [clerical staff] not judges.” Id. at 354. As we explained in Gutierrez-Ramirez, such documents do not have sufficient-indi-cia of reliability “to satisfy the ‘rigorous standard’ required by Taylor’s modified categorical approach.” 405 F.3d at 358 (citation omitted).

Enrique-Ascencio asserts that none of the documents in the record satisfy this standard. Moreover, he claims that consideration of the documents provided after entry of final judgment would violate his right to be present at sentencing and right to be heard under due process and Federal Rule of Criminal Procedure 32. The Government, however, maintains that even if these documents would not satisfy the Taylor/Shepard standard, we have, in some cases, condoned the use of non-Shepard documents to establish the fact of an underlying conviction, as opposed to facts about the underlying conviction. See, e.g., Lopez-Cano, 516 Fed.Appx. at 354; United States v. Neri-Hernandes, 504 F.3d 587, 590-92 (5th Cir. 2007). The Government contends that if such documents are permissible to establish the fact of an underlying conviction, they are by implication sufficient to establish the fact of an underlying sentence. The problem is that the Government must prove not only the fact of Enrique-Ascencio’s sentence, but also facts about the sentence, namely, whether it provided the remaining one month of imprisonment necessary to support the Section 2L1.2 enhancement.

We agree with Enrique-Ascencio that, issues of notice aside, none of the documents in the record satisfy the reliability standard established by Taylor and Shepard. In the face of a properly mounted challenge, such documents, standing alone, cannot serve as a basis for a sentence enhancement. Here, however, Enrique-As-cencio has never contested the existence of the underlying offense or his 120-day jail sentence. Therefore, these facts, in view of the record as a whole, are plausibly “explicit factual finding[s] by the trial judge to which the defendant assented,” which may be appropriately considered even under Shepard. See 544 U.S. at 16, 125 S.Ct. 1254.

Even assuming the district court’s reliance on the plea document was error, the error was harmless. Enrique-Ascencio’s argument is fundamentally legal in nature. He contends that the possibility that he served his sentence entirely through work release makes it not a “sentence of imprisonment” for purposes of the enhancement. In so far as there is any factual dispute, it is whether the Government has proven with competent evidence that he served at least one day of his 120-day sentence in custody. Because Enrique-Ascencio’s 120-day sentence is a sentence of imprisonment, even if served entirely through work release, this factual dispute is immaterial. We have only remanded when resolution of the factual dispute may have had an effect on the sentence imposed. See, e.g., Gutierrez-Ramirez, 405 F.3d at 359; United States v. Espinoza-Acuna, 328 Fed.Appx. 918, 919 (5th Cir. 2009) (unpublished). This is not such a case. Therefore, remand on this issue is not warranted.

B. Post-Sentencing Guidelines Amendment

Lastly, Enrique-Ascencio argues that we should remand to the district court in order to determine whether a lesser sentence is appropriate under an amendment to the Guidelines that took effect after the date of his sentence. Enrique-Ascencio was sentenced in March 2016 and, as stated supra in note 2, the amendment in question took effective on November 1 of that year. Pursuant to that amendment, Enrique-Ascencio would qualify for at least a six-level reduction to his offense level, which would give rise to a potential 26-month reduction in his sentence if he were sentenced at the bottom of the new range.

As Enrique-Ascencio concedes, because he did not object to his sentence on these grounds, we review only for plain error. United States v. Garcia-Carrillo, 749 F.3d 376, 378 (5th Cir. 2014). And Enrique-Ascencio acknowledges that we addressed this very issue in Garcia-Carrillo and held that it is not plain error for a district court to fail to consider a non-retroactive post-sentencing amendment to the Guidelines, even if it might have affected the sentence imposed by the district court. Id. at 380. He argues, however, that Garcia-Carrillo must be reconsidered in light of Molina-Martinez v. United States, — U.S. —, 136 S.Ct. 1338, 194 L.Ed.2d 444 (2016).

But Molina-Martinez has no bearing on the issue presented here. That case involved a situation where the district court had incorrectly calculated the guideline range under the existing Guidelines. Id. at 1341. Although Molina-Martinez clarifies the application of plain error review to such errors, it says nothing about applying that standard to non-erroneous sentencing decisions that might have been affected, had a subsequent Guidelines amendment controlled. Accordingly, Garcia-Carrillo is dispositive and forecloses Enrique-Ascen-cio’s argument.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.

      . The Government has been unable to obtain a certified copy of the judgment to date. Enrique-Ascencio argues that the documents supporting the enhancement are inadequate to establish that his sentence of imprisonment exceeded 13 months. As discussed infra Part II.A.2, even assuming that reliance on the documents is error, such error is harmless and does not warrant reversal!

      . Effective November 1, 2016, the Sentencing Commission amended Section 2L1.2 so that it no longer includes such a 16-level enhancement. See U.S.S.G. App. C, Amend. 802 (http://www.ussc.gov/sites/defaulVfiles/pd6' guidelines-manual/2016/APPEND IX_C_ Supplement.pdf#page= 148).


author: EDWARD C. PRADO, Circuit Judge:

text:
    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. EMCARE, INCORPORATED, Defendant-Appellant.
    No. 16-10598
    United States Court of Appeals, Fifth Circuit.
    FILED May 19, 2017

      Paul D. Ramshaw, U.S. Equal Employment Opportunity Commission, Washington, DC, Robert A. Canino, Jr., Equal Employment Opportunity Commission, Dallas, TX, for Plaintiff-Appellee.
    Stephen Lyle Tatum, Sr., David Lynn Fielding, Laura Hilton Hallmon, Cantey Hanger, L.L.P., Fort Worth, TX, for Gloria Stokes.
    Steven W. Moore, Esq., Heidi Kristina Wilbur, Constangy, Brooks, Smith & Prophete, L.L.P., Denver, CO, for Em-Care, Incorporated.
    Before SMITH, PRADO, and GRAVES, Circuit Judges.
   EDWARD C. PRADO, Circuit Judge:

Following a six-day trial, a jury found that EmCare, Inc. (“EmCare”) terminated three employees in retaliation for complaining of sexual harassment in the workplace. The district court denied EmCare’s motion for judgment as a matter of law. EmCare' appeals the judgment with respect to one employee, Luke Trahan. Specifically, EmCare contends that the Equal Employment Opportunity Commission (“EEOC”) failed to present sufficient evidence of a causal link between Trahan’s protected activity and termination because there was no evidence that the individual who decided to terminate Trahan was aware he had engaged in protected activity. Because we find there was sufficient evidence to support the jury’s verdict, we AFFIRM.

I. BACKGROUND

Trahan worked for EmCare’s Anesthe-siaCare division from November 2008 to August 7, 2009. EmCare provides physicians as well as physician management services to hospitals and emergency centers. Trahan was hired as a physician recruiter but was quickly promoted to recruiting manager. During his time at EmCare, Trahan headed the credentials and billing enrollment teams. At the time, AnesthesiaCare had only recently been acquired by EmCare, and one of Trahan’s responsibilities was updating and editing provider contracts to reflect the acquisition. For the first few months of his employment, Trahan was supervised by Jim McKinney, the CEO of An-esthesiaCare. Sean Richardson, the chief operating officer, became Trahan’s supervisor in April 2009. The other characters in this case include: Karen Thornton, EmCare’s vice president for human relations and head of AnesthesiaCare’s human resources (“HR”) office; Lewis Johnson, AnesthesiaCare’s HR manager; Gloria Stokes, McKinney’s executive assistant; Yvonne Shaw, a senior credentialing coordinator; and Ken Thompson, another credentialer. Johnson spoke to Thornton every day, and Thornton testified that Johnson reported to her, that the two spoke every day, and that Johnson would have made her aware of any complaint made by an AnesthesiaCare employee regarding sexual harassment.

This case arises from McKinney’s frequent and persistent sexual remarks and gestures in the workplace. At trial, numerous witnesses testified to various examples of the following conduct: McKinney constantly commented on women’s bodies, asking them to lower their blouses, hike up their skirts, show more cleavage, or turn around, he often referred to the size of women’s breasts, made groping gestures, and sought intimate hugs, he made inappropriate comments about his employees’ wives, and he offered commentary on which female employees he regarded as “hott[ies].” One AnesthesiaCare employee told the EEOC investigator that she called McKinney “the boob man” because he commented on women’s breasts so frequently. Both Trahan and Shaw testified that Thornton and Johnson were occasionally present for McKinney’s comments but never reprimanded McKinney. Furthermore, Shaw testified that Richardson heard at least one offensive comment and stated “one day” McKinney would “get [them] in trouble.”

Trahan, Shaw, and Stokes all testified that they complained to Thornton and/or Johnson about McKinney’s behavior and the work environment it created, but that they never heard of any investigative or remedial action taken by EmCare. In addition, Trahan testified that every time he complained to HR about McKinney, “McKinney would tell him shortly thereafter that he ‘needed to shape up and do things better’ ” but would not point out any deficiencies when Trahan asked for specifics.

The situation took a turn for the worse in June 2009, when AnesthesiaCare hosted a “Bring Your Child to Work Day” (“BYCTW Day”). Shaw brought her fifteen-year-old daughter to the office. She testified that when she introduced her daughter to McKinney, McKinney stated, “[T]here is no way she is 15 with breasts like that.” Shaw recalled that McKinney laughed when Shaw became visibly upset. She then went to HR to complain, accompanied by Trahan and Thompson. At this point in his employment, Trahan had already complained to HR at least four times about McKinney’s behavior. Johnson, who appeared distressed by their account, told them to submit a formal complaint. Trahan did so that day.

In July, Thornton suggested that Tra-han’s and Shaw’s units be audited. An employee from EmCare’s management services audited Trahan’s unit and summarized her findings to Richardson. The reported listed several problems with the unit’s performance that were caused by the failures of a regional vice president, an issue that Trahan had already reported to Richardson. Nonetheless, the report was essentially positive regarding Trahan’s performance, particularly as it compared to that of another recruiter who did not get fired. Trahan never received any feedback from his superiors about the audit. On August 7, 2009—six weeks after BYCTW Day and four days after Richardson received the audit report—EmCare fired the three employees who had complained on BYCTW Day: Trahan, Shaw, and Thompson. Thornton and Richardson met with Trahan and told him he was being terminated because “it was [not] working anymore.” Richardson testified that it was his decision to terminate Tra-han, but acknowledged that he discussed the decision with Thornton and McKinney beforehand. Thornton entered Trahan’s termination into the computer database, which she only did when there was a “backlog or if [she] was personally involved in the transaction.”

EmCare maintains that Trahan was fired due to the “quality of his work and inaccuracies in his contracts.” Both parties acknowledge that in December 2008, shortly after Trahan began his employment, numerous errors arose with regard to some of the company’s contracts in El Paso. Trahan characterized the mistakes as the result of a computer glitch and testified that he resolved the issue in a timely manner. EmCare concedes that the mistakes were corrected and no business was lost but maintains that the incident caused McKinney to become very upset and was part of an “ongoing problem” with Trahan’s performance. At trial, Richardson testified that Trahan had difficulty editing contracts, Trahan was verbally counseled at certain times to improve his performance, and the audit performed following BYCTW Day was “not a complimentary review.”

By contrast, Trahan asserted that the limited feedback he received at EmCare was positive. In February 2009, Trahan was given a 90-day performance review during which McKinney told him to keep doing what he was doing—a statement that was repeated to him by Richardson as late as mid-July. According to Trahan, the only concrete example of a performance issue he was made aware of was the incident with the El Paso contracts.

The EEOC filed suit in federal district court on August 15, 2011, seeking injunc-tive relief and monetary damages under Title VII on behalf of Gloria Stokes, Luke Trahan, and Yvonne Shaw. The EEOC alleged that Stokes had been subjected to a hostile work environment based on her sex and fired in retaliation for her complaints; likewise, it alleged that Trahan and Shaw were terminated in retaliation for their complaints about McKinney’s behavior. EmCare did not seek dismissal or summary judgment, and in October 2014, the case proceeded to a six-day jury trial. The jury found in favor of the EEOC and awarded $167,000 in back pay for Trahan, $82,000 in back pay for Shaw, and $250,000 in punitive damages for Stokes.

The district court denied EmCare’s renewed motion for judgment as a matter of law and motion for a new trial. Shaw and Stokes have settled their claims. EmCare appealed the judgment in favor of Trahan.

II. STANDARD OF REVIEW

This Court “review[s] the denial of a motion for judgment as a matter of law de novo, ... applying] the same legal standard as the district court.” EEOC v. Boh Bros. Constr. Co., 731 F.3d 444, 451 (5th Cir. 2013) (en banc). Judgment as a matter of law is appropriate if the Court finds no “legally sufficient evidentiary basis” to support the jury’s verdict. Fed. R. Civ. P. 50(a)(1). But “if reasonable persons could differ in their interpretations of the evidence, then the motion should be denied.” Bryant v. Compass Grp. USA Inc., 413 F.3d 471, 475 (5th Cir. 2005) (quoting Thomas v. Tex. Dep’t of Criminal Justice, 220 F.3d 389, 392 (5th Cir. 2000)). “[W]hen evaluating the sufficiency of the evidence, we view all evidence and draw all reasonable inferences in the light most favorable to the verdict.” Id. This Court is “especially deferential” to jury verdicts; the verdict should be affirmed “unless the facts and inferences point so strongly and overwhelmingly in the movant’s favor that reasonable jurors could not reach a contrary conclusion.” Boh Bros., 731 F.3d at 451 (internal quotation marks omitted) (quoting SMI Owen Steel Co. v. Marsh U.S.A., Inc., 520 F.3d 432, 437 (5th Cir. 2008) and Baisden v. I’m Ready Prods., Inc., 693 F.3d 491, 498 (5th Cir. 2012)).

III. DISCUSSION

To prove retaliation under Title VII, the plaintiff must establish: “(1) the employee engaged in activity protected by Title VII; (2) the employer took adverse employment action against the employee; and (3) a causal connection exists between that protected activity and the adverse employment action.” Thomas, 220 F.3d at 394. When there has been a trial on the merits, however, a court can bypass “the familiar McDonnell Douglas burden-shifting” analysis and “proceed to the ultimate question of whether the plaintiff presented enough evidence for a jury to find that [retaliation] occurred.” Zamora v. City of Houston, 798 F.3d 326, 333 (5th Cir. 2015) (alteration in original) (quoting Thomas, 220 F.3d at 393). EmCare acknowledges that Trahan engaged in protected activity—making complaints to HR—and that he was terminated. Accordingly, the only issue on appeal is whether the EEOC presented legally sufficient evidence of a causal link between Trahan’s complaints and his termination.

“[T]o establish the causation prong of a retaliation claim, the employee should demonstrate that the employer knew about the employee’s protected activity.” Manning v. Chevron Chem. Co., 332 F.3d 874, 883 (5th Cir. 2003). Generally, this requires some showing that the decisionmaker—the individual “who actually made the decision or caused the decision to be made”—was aware of the activity. Russell v. McKinney Hosp. Venture, 235 F.3d 219, 227 (5th Cir. 2000). A decisionmaker’s awareness may be established by circumstantial evidence. See Mulhall v. Ashcroft, 287 F.3d 543, 552 (6th Cir. 2002); Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1458 (7th Cir. 1994); Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993). Resting its argument on this narrow issue, EmCare maintains that there is no evidence Sean Richardson, the person who decided to terminate Trahan, was aware of Trahan’s complaints. Thus, EmCare implicitly makes two claims: (1) there is no evidence that Richardson knew about Trahan’s complaints and (2) there is no evidence that anyone other than Richardson decided to fire Trahan. EmCare characterizes the evidence on these points as uncontroverted and unequivocally established at trial.

EmCare contends that any evidence suggestive of Richardson’s knowledge amounts to speculation. Demonstrating that a decisionmaker was aware of an employee’s protected activity certainly requires “more evidence than mere curious timing coupled with speculative theories.” Raney v. Vinson Guard Serv., Inc., 120 F.3d 1192, 1197 (11th Cir. 1997). For example, we have found that evidence of generalized discussions between a deci-sionmaker and someone with knowledge of the plaintiffs protected activity creates only a speculative inference regarding the decisionmaker’s awareness. See Lee v. Kan. City S. Ry., 574 F.3d 253, 258 (5th Cir. 2009); Turner v. Jacobs Eng’g Grp., Inc., 470 Fed.Appx. 250, 253 (5th Cir. 2012) (per curiam). And if the plaintiff fails to produce any evidence that a decision-maker was aware of the protected activity, judgment as a matter of law should be granted. See Bain v. Ga. Gulf Corp., 462 Fed.Appx. 431, 433-34 (5th Cir. 2012) (per curiam) (crediting the sole decisionmaker’s testimony that he had no knowledge of protected activity when the plaintiff did not present any evidence to-the contrary); Lopez v. Martinez, 240 Fed.Appx. 648, 650 (5th Cir. 2007) (per curiam) (noting that the plaintiff “presented no evidence establishing the superior’s knowledge”).

This case does not involve mere speculation. As an initial matter, there was an abundance of conflicting testimony over critical issues, entitling the jury to discredit Richardson’s and Thornton’s versions of events and find their testimony not credible. For example, the jury heard conflicting accounts regarding: whether Thornton and Richardson ever personally observed McKinney make sexually offensive comments, whether Trahan and Shaw ever complained to HR about McKinney’s behavior, and whether the audit of Trahan’s unit produced any legitimate grounds to fire him. Accordingly, the jury was entitled to find that Richardson and Thornton had both witnessed inappropriate behavior in the workplace and taken no action, that Trahan and other employees complained to HR numerous times, and that the justification for firing Trahan was pretextual.

In light of these contradictory statements, as well as the circumstances surrounding Trahan’s termination, the evidence was sufficient for the jury to find that Richardson was aware of Trahan’s complaints. More specifically, Trahan testified that McKinney would criticize Tra-han whenever he complained, allowing the jury to infer, at the very least, that McKinney knew about the complaints. Given that both McKinney and Richardson were executives and supervisors in the same division, Richardson could have been given the same information. The jury could also have logically inferred that Thornton told Richardson about the complaints when they discussed Trahan’s performance and termination. Unlike the conversations in Lee and Turner, these were not general discussions about an employee; Thornton and Richardson specifically discussed Trahan’s performance before and after the audit. See Lee, 574 F.3d at 258; Turner, 470 Fed.Appx. at 253.

In addition—or alternatively— there was sufficient evidence for the jury to find that Thornton and Richardson both made the decision to fire Trahan. A deci-sionmaker is an individual “who actually made the decision or caused the decision to be made.” Russell, 235 F.3d at 227. Here, it was Thornton’s idea to audit Trahan in 2009, shortly after Trahan made the complaint on BYCTW Day. Those audits were used to justify his firing. Richardson discussed terminating Trahan with Thornton before he did so, and Thornton was present when Trahan was fired. She was also the person who entered his termination into the company computer system, even though that was not her usual practice. Indeed, Thornton testified that she entered terminations into the system only if there was “a backlog or if [she] was personally involved in the transaction.” Any inference by the jury that Thornton was a decisionmaker or caused the decision to be made would not have been speculative.

IV. CONCLUSION

The district court did not err in denying EmCare’s motion for judgment as a matter of law. Because the jury could have logically inferred either that Richardson knew of Trahan’s complaints or that Thornton was involved in the decision to fire Trahan, the EEOC presented sufficient evidence of causation. Accordingly, we AFFIRM the judgment in favor of the EEOC.

      . Similarly, Shaw and Thompson testified that no supervisor ever criticized their performance until they were fired.

      . Notably, ample additional evidence presented at trial supports causation, including: the timing of Trahan’s firing (approximately six weeks after the complaint on BYCTW Day); the fact that the three employees who complained together were all fired the same day; testimony suggesting the explanations given for Trahan's termination were pretextual; and evidence related to Shaw and Stokes that may have overlapped with Trahan’s testimony. Because EmCare’s entire argument is based on Richardson’s lack of knowledge, we focus on evidence relevant to that specific issue. Nonetheless, we are mindful of the totality of evidence from which the jury drew its inferences.

      . EmCare accuses the EEOC of using a "cat’s paw theory” to prove causation. Plaintiffs may use a cat’s paw theory to prove causation when they cannot show the official decision-maker had a retaliatory motive, but can show that another individual influenced that deci-sionmaker. Zamora, 798 F.3d at 331. However, the EEOC does not raise a cat’s paw argument, and we do not need to decide whether cat's paw causation applies. The jury could have found that Thornton was actually involved in the decision to fire Trahan.


author: PATRICK E. HIGGINBOTHAM, Circuit Judge:

text:
    RENEGADE SWISH, L.L.C., Plaintiff-Appellee v. Emily A. WRIGHT, Defendant-Appellant
    No. 16-11152
    United States Court of Appeals, Fifth Circuit.
    Filed May 22, 2017

      David E. Keltner, Esq., Caitlyn Hubbard, Kelly, Hart & Hallman, L.L.P., Fort Worth, TX, for Plaintiff-Appellee.
    John Brett Agee, Garvin Agee Carlton, P.C., Pauls Valley, OK, for Defendant-Appellant.
    Before STEWART, Chief Judge, and HIGGINBOTHAM and COSTA, Circuit Judges.
   PATRICK E. HIGGINBOTHAM, Circuit Judge:

The issue in this case is whether Plaintiff Renegade Swish had an objectively reasonable basis to remove to federal court. Finding that it did not, we VACATE that portion of the district court’s order that concluded otherwise and REMAND for the district court to consider anew whether costs and fees are warranted.

I.

Plaintiff-Counter Defendant Renegade Swish, LLC (“Renegade Swish”) employed Defendant-Counter Plaintiff Emily Wright (“Wright”) between 2012 and 2015. In June of 2015, Renegade Swish sued Wright in state court for breach of employment agreement-related claims. Wright counterclaimed based on unpaid bonuses and Fair Labor Standards Act (“FLSA”) violations. Soon after, Renegade Swish nonsuited its claims without prejudice and moved to realign the parties in the state court.

Before the state court decided on the motion to realign, Renegade Swish noticed its removal to federal court, asserting that removal was proper because “the affirmative civil claims pending in the lawsuit arise under the Constitution, laws, or treaties of the United States.” It argued that the district court case of Sadeghian v. City of Aubrey, Texas, “illustrates that removal by a counter-defendant, after non-suiting its initial claim, is proper when the counterclaim asserted raises a federal question.” In its notice of removal, Renegade Swish also re-urged that the parties be realigned. And upon being removed, Renegade Swish formally moved in federal court to realign the parties.

After the case arrived in federal court, Wright moved for remand and attorney’s fees. Citing the Supreme Court case of Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., Wright argued that Renegade Swish “lacked an objectively reasonable basis for seeking removal” and requested costs pursuant to 28 U.S.C. § 1447(c). Renegade Swish countered that it was the “functional defendant.”

On February 22, 2016, the district court denied Renegade Swish’s motion to realign, granted Wright’s motion to remand, and awarded her costs and fees. It relied on Holmes Group to conclude that “Wright’s FLSA counterclaim against Renegade Swish cannot serve as the basis for federal-question jurisdiction” and found that Holmes Group effectively overruled Sadeghian.

Renegade Swish moved for partial reconsideration of the district court’s February 22 order under Federal Rule of Civil Procedure 59(e). Renegade Swish did not challenge the remand order; it only sought reconsideration of the award of costs and fees, arguing that it had an “objectively reasonable” basis to remove. It argued that there was a split in district court authority, that Holmes Group “did not definitively resolve the conflict,” and that there were no credible allegations of forum shopping or increased litigation costs.

On June 23, 2016, in a one-page order, the district court granted Renegade Swish’s motion to reconsider. The court reasoned that “in light of the split of district-court authority as to whether removal under the circumstances involved in this case was proper, Renegade Swish had an objectively reasonable basis for attempting to remove this action from state court.” The court noted that “[t]o the extent that [it] previously concluded that [Holmes Group] ‘effectively overrules’ the decision in Sadeghian [ ], the Court now believes it may have painted with too broad a brush.” The district court thus vacated the portion of its previous order assessing costs and fees against Renegade Swish.

Wright now appeals.

II.

Renegade Swish removed this action to the district court based on federal question jurisdiction under 28 U.S.C. §§ 1331, 1441. This Court has jurisdiction under 28 U.S.C. § 1291. “Although this Court may not review a district court’s remand for lack of subject matter jurisdiction, we may review the district court’s award of attorney fees.”

III.

The district court originally awarded Wright fees under 28 U.S.C. § 1447(c), but upon a motion for reconsideration, reversed course. The only question on appeal is whether Renegade Swish had an “objectively reasonable basis” for removal such that awarding fees to Wright was improper. The parties dispute whether this Court reviews this question de novo or for abuse of discretion.

This Court “review[s] the district court’s decision not to award costs and attorney’s fees under § 1447(c) for abuse of discretion.” Wright does not dispute this, but suggests that because she appeals an order decided pursuant to Rule 59(e) on a point of law, de novo review is appropriate, an argument not without merit. Indeed, there is some uncertainty in our doctrine regarding the standard of review on the objective reasonableness of removal, but we need not resolve it today. Even assuming arguendo that we review for abuse of discretion—a deferential standard that here favors Renegade Swish—Renegade Swish plainly lacked an objectively reasonable basis to remove. In September 2015, when Renegade Smith removed, the Supreme Court had established that a defendant’s counterclaim could not furnish federal question jurisdiction.

Wright argues that Holmes Group stands for the principle that “a counterclaim asserting a federal question may not serve as the basis for removal of an action.” She avers that Holmes Group is determinative, though also points to Fifth Circuit precedent to support her argument. Wright argues that Holmes Group overruled Sadeghian v. City of Aubrey, the first case upon which Renegade Swish relies, as did Blanco v. Equable Ascent Financial. Wright further argues that Hickman v. Alpine Asset Management another case upon which Renegade Swish relies, is not controlling, did not incorporate Holmes Group, and is distinguishable on the basis of the parties consenting to removal and realignment.

Renegade Swish responds that it was unable to receive a hearing and ruling on its motion to realign in the state court before the deadline for removal. It argues that federal court authority—namely Sa-deghian—supported its decision to seek removal. Renegade Swish contends that because the law regarding its ability to remove was unsettled, it had “an objectively reasonable basis” to remove. It avers that Holmes Group is not so clearly controlling, and that a Western District of Missouri case, Hickman, supports its position.

28 U.S.C. § 1441(a) governs removal from state to federal court:

Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the. district court of the United States for the district and division embracing the place where such action is pending.

Pursuant to 28 U.S.C. § 1331, the district courts have original jurisdiction of suits involving federal questions. The Supreme Court has explained that “under the present statutory scheme as it has existed since 1887, a defendant may not remove a case to federal court unless the plaintiffs, complaint establishes that the case ‘arises under’ federal law.” The well-pleaded complaint rule is well-established:

[W]hether a case is one arising under the Constitution or a law or treaty of the United States, in the sense of the jurisdictional statute, ... must be determined from what necessarily appears in the plaintiffs statement of his own claim in the bill or declaration, unaided by anything alleged in anticipation of avoidance of defenses which it is thought the defendant may interpose.

In Holmes Group, a case concerning the Federal Circuit’s appellate jurisdiction, the Supreme Court elaborated on the function of the well-pleaded complaint rule in the presence of federal question counterclaims. After Plaintiff Holmes Group sued Defendant Vornado in federal district court for trade-dress infringement claims, Defendant Vornado “asserted a compulsory counterclaim alleging patent infringement.” The district court ruled in favor of the plaintiff, after which Defendant Vor-nado appealed—not to the Tenth Circuit, but to the Court of Appeals for the Federal Circuit. Because “the Federal Circuit’s jurisdiction is fixed with reference to that of the district court, and turns on whether the action arises under federal patent law[,]” the Supreme Court considered whether the Federal Circuit had “appellate jurisdiction over a case in which the complaint d[id] not allege a claim arising under federal patent law, but the answer contained] a patent-law counterclaim.”

The Court referred to its 28 U.S.C. § 1331 “arising under” jurisprudence. As the Court explained, the Federal Circuit’s grant of jurisdiction is found in 28 U.S.C. § 1295. In 2002, when Holmes Group was decided, § 1295 granted the Federal Circuit jurisdiction “of an appeal from a final decision of a district court of the United States ... if the jurisdiction of that court was based, in whole or in part, on section 1338 of this title ...” Section 1338, in turn, granted district courts jurisdiction “of any civil action arising under any Act of Congress relating to patents, plant variety protection, copyrights and trademarks.” Because § 1338(a) “use[d] the same operative language as 28 U.S.C. § 1331, the statute conferring general federal-question jurisdiction ... ‘[Urnguistic consistency' require[d] [the Court] to apply the same test to determine whether a case arises under § 1338(a) as under § 1331.”

The Court began by noting that “[t]he well-pleaded-complaint rule has long governed whether a case ‘arises under’ federal law for purposes of § 1331.” Relevant here, the Court reminded that “[t]he well-pleaded-complaint rule also governs whether a case is removable from state to federal court pursuant to 28 U.S.C. § 1441(a)[J” Applying the rule, Holmes Group found “it [wa]s undisputed that petitioner’s well-pleaded complaint did not assert any claim arising under federal patent law[,]” and concluded that “[t]he Federal Circuit therefore erred in asserting jurisdiction over th[e] appeal.”

The Court directly rejected Defendant Vornado’s argument that a counterclaim could provide the basis for “arising under” jurisdiction, noting that it had “declined to adopt proposals that ‘the answer as well as the complaint ... be consulted before a determination [is] made whether the case “ar[ises] under” federal law....’” The Court further reasoned that “[allowing a counterclaim to establish ‘arising under’ jurisdiction would ... contravene the longstanding policies underlying our precedents.”

The Supreme Court reaffirmed this principle in Vaden v. Discover Bank. In Vaden, the Court held that there was no federal question jurisdiction when a plaintiffs claims were based on state law and a defendant’s counterclaims were preempted by federal law. It explained, “[t]his Court’s decision in Holmes Group ... held that federal-question jurisdiction depends on the contents of a well-pleaded complaint, and may not be predicated on counterclaims.” The Vaden Court recounted that its ruling in Holmes Group was “emphatic[ ]”—“[w]ithout dissent, the Court held ... that a federal counterclaim, even when compulsory, does not establish ‘arising under’ jurisdiction.” In short, Holmes Group and Vaden extinguished any possibility that a counterclaim can establish federal question jurisdiction. Our own case law is in agreement. In the face of such precedent, Renegade Swish lacked an objectively reasonable basis to seek removal.

Additionally, the text of 28 U.S.C. § 1441 itself counsels against Renegade Swish’s ability to remove. Section 1441(a) grants the power to remove to “defendants,” yet Renegade Swish is the original plaintiff. Although it argues it was the “functional” defendant after Wright asserted FLSA counterclaims, Renegade Swish removed before the parties were realigned—and there is no guarantee that they would have been. “Perhaps events could have unfolded differently,” but, just as the Court in Yoden refused to read into Section 4 of the Federal Arbitration Act, 28 U.S.C. § 1441 “does not invite federal courts to dream up counterfactuals when actual litigation has defined the parties’ controversy.” Renegade Swish’s “hypothesizing about the [realignment] that might have [occurred] does not provide a basis for federal-court jurisdiction.” This Court “evaluated] the objective merits of removal at the time of removal,” and at the time of removal, Renegade Swish was the plaintiff. Furthermore, “allowing responsive pleadings by the defendant to establish ‘arising under’ jurisdiction would undermine the clarity and ease of administration of the well-pleaded-complaint doctrine, which serves as a ‘quick rule of thumb’ for resolving jurisdictional conflicts.” Finally, as a district court concluded in the face of a similar argument for removal, to allow an original plaintiff to remove in this situation could invite strategic dismissals and forum shopping.

Nonetheless, Renegade Swish insists that “[a] split of authority on the availability of removal constituted an objectively reasonable basis for [its] removal.” Renegade Swish is correct that unsettled law can provide an objectively reasonable basis for removal, but its contention that authority is split on “whether a plaintiff who has nonsuited its state claims and faces a federal counterclaim can remove” is unpersuasive. On one side of this alleged split, Renegade Swish avers, is Sadeghian v. City of Aubrey, Texas, which found removal to be proper when a plaintiff non-suited its state law claims and removed based on the defendant’s federal law counterclaims. The Sadeghian district court relied on a “‘functional’ test that examine[d] which parties’ claims constituted the ‘mainspring of the proceedings.’ ” But Sadeghian predates Holmes Group and Vaden, which effectively overruled the decision. Renegade Swish points to authority for the “functional” analysis, but the cases it cites to also predate Holmes Group and Vaden and are not directly on point. Furthermore, Blanco v. Equable Ascent Fin., LLC expressly disagreed with Sadeghian. Whereas Renegade Swish frames Blanco as the other side of a district court split, Blanco is better understood as the natural progression of doctrine post-Holmes Group. Blanco cited both Holmes Group and Vaden to conclude that removal was improper where the original plaintiff nonsuited its claims and removed on the basis of the defendant’s counterclaims. The Blanco court found the plaintiffs reliance on Sadeghian to be objectively unreasonable. Simply put, Renegade Swish has not identified an actual district court split as to whether removal is proper on the basis of federal counterclaims after a plaintiff nonsuits its claims.

Next, Renegade Swish asserts that “Holmes Group is not ‘clearly controlling’ and did not definitely resolve the conflict.” It first argues that Holmes Group is procedurally distinct. Although Holmes Group concerned the Federal Circuit Court’s jurisdiction, the Court was clear that it relied upon its § 1331 “arising under” jurisprudence. Renegade Swish also argues Holmes Group is factually distinct. But these factual distinctions are not meaningful given Holmes Group’s statement that “a counterclaim—which appears as part of the defendant’s answer, not as part of the plaintiffs complaint—cannot serve as the basis for ‘arising under’ jurisdiction.” Renegade Swish additionally argues why each of the three “Holmes Group justifications” do not apply to its case. However, the Court identified those policies as further justification for the rule at which it was arriving, not individual reasons up for debate on the facts of any given removal case. In any event, whether Renegade Swish’s position would align with, or undermine, those policies is debatable. Renegade Swish argues that at the time of removal, it should have been viewed as the defendant, and that “neither Shamrock Oil nor Holmes Group forecloses th[e] practical view of what is the complaint and who is the defendant, and this Court has not addressed the issue.” Renegade Swish may be correct that its particular argument has not been directly addressed by our Court, but this is likely because no party has before supposed that such an argument was viable in the face of 28 U.S.C. § 1441, Holmes Group, Vaden, and our own precedent. Indeed it is not.

Renegade Swish nevertheless presses that “[pjost-iioZmes Group authority has upheld removal by an initial plaintiff who nonsuited claims.” Specifically, Renegade Swish points to Hickman v. Alpine Asset Management Group, which found removal to be proper when the original plaintiff dismissed its state claims against the original defendant, and the only remaining claims were those under federal law. The Hickman court, which cited to neither Holmes Group nor Vaden, found that “the nature of the[ ] claims changed when [the plaintiff] dismissed all claims[,]” and “[t]he law does not support that once a counterclaim, always a counterclaim, or that once a plaintiff always a plaintiff.” This district court case is undoubtedly helpful to Renegade Swish’s argument; however, a single out-of-circuit district court case that conflicts with Supreme Court precedent is insufficient to find a party’s basis for removal objectively reasonable.

In Riverside Construction, for example “[the defendant] presented the district court with colorable arguments, supported by facts and authority, that its contract with [the plaintiff] was a maritime contract” so as to support federal removal. Further, an amendment to 28 U.S.C. § 1441(b) resulted in “disagreement among district courts in this circuit” regarding the removability of general maritime claims. This Court held “that the district court did not abuse its discretion in concluding that [the defendant] had an objectively reasonable basis for attempting to remove this case to federal court such that fees and expenses should be denied.” As compared to Riverside Construction, where the disagreement among the courts was “hotly contested,” any disagreement here is tepid and lopsided. Similarly, this Court has found a defendant’s removal objectively reasonable when case law from other circuits arguably supported removal and this Circuit had not yet decided the precise question. But here, Renegade Swish points only to Hickman as a post-Holmes Group case that supports its position on removal, a case from which district courts have since distanced themselves. Hickman does not make Renegade Swish’s position objectively reasonable.

IV.

In sum, Renegade Swift did not have an objectively reasonable basis for removal, and the district court abused its discretion in finding otherwise. We accordingly VACATE that part of the district court’s order and REMAND for the district court to consider anew whether costs and fees are warranted.

      . No. CIV. A. 300CV2561-D, 2001 WL 215931 (N.D. Tex. Mar. 1, 2001).

      . 535 U.S. 826, 122 S.Ct. 1889, 153 L.Ed.2d 13 (2002).

      . After the ruling, Wright filed a brief in support for costs and fees.

      . Hornbuckle v. State Farm Lloyds, 385 F.3d 538, 541 (5th Cir. 2004) (citations and footnote omitted).

      . That provision states in relevant part: “An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.”

      . See Martin v. Franklin Capital Corp., 546 U.S. 132, 136, 126 S.Ct. 704, 163 L.Ed.2d 547 (2005) ("[A]bsent unusual circumstances, attorney’s fees should not be awarded when the removing party has an objectively reasonable basis for removal.”).

      . CamSoft Data Sys., Inc. v. S. Elecs. Supply, Inc., 638 Fed.Appx. 255, 259 (5th Cir. 2015) (per curiam) (unpublished) (footnote omitted); accord Grand View PV Solar Two, LLC v. Helix Elec., Inc./Helix Elec. of Nevada, L.L.C., J.V., 847 F.3d 255, 259 (5th Cir. 2017) ("We review the district court’s denial of fees for abuse of discretion.”) (citing Garcia v. Amfels, Inc., 254 F.3d 585, 587 (5th Cir. 2001)).

        . DeCarlo v. Bonus Stores, Inc., 512 F.3d 173, 175 (5th Cir. 2007), certified question answered, 989 So.2d 351 (Miss. 2008) ("While we usually review a denial of a Rule 59(e) motion under an abuse of discretion standard, if the appellant is clearly appealing the entire case solely with regards to questions of law, we construe the appeal as concerning the merits of the summary judgment, which we review de novo.”) (citation omitted); Miller v.

        BAC Home Loans Servicing, L.P., 726 F.3d 717, 721-22 (5th Cir. 2013) (This Court " ‘generally reviewfs] a decision on a motion to alter or amend judgment under Rule 59(e) for abuse of discretion.' ‘To the extent that a ruling was a reconsideration of a question of law, however, the standard of review is de novo.’ ” (citations omitted)); Kmart Corp. v. Fulton Improvements, L.L.C., 605 Fed.Appx. 374, 376 (5th Cir. 2015) (per curiam) (unpublished).

        . See Admiral Insurance Co. v. Abshire, 574 F.3d 267, 280-81 (5th Cir. 2009); CamSoft Data Sys., 638 Fed.Appx. at 259.

      . Howard v. St. Germain, 599 F.3d 455, 457 (5th Cir. 2010) (per curiam).

      . No. EP-12-CV-134-PRM, 2012 WL 2155005 (W.D. Tex. June 13, 2012).

      . 919 F.Supp.2d 1038 (W.D. Mo. 2013).

      . That provision states: "The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”

      . Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Trust for S. California, 463 U.S. 1, 10, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983) (footnote omitted).

      . Id. (quoting Taylor v. Anderson, 234 U.S. 74, 75-76, 34 S.Ct. 724, 58 L.Ed. 1218 (1914)).

      . Holmes Group, 535 U.S. at 828, 122 S.Ct. 1889.

      . Id. at 829, 122 S.Ct. 1889.

      . Id. (footnote omitted).

      . Id. at 827, 122 S.Ct. 1889 (emphasis added).

      . Id. at 829, 122 S.Ct. 1889.

      . 28 U.S.C. § 1295(a)(1) (2002). Congress has since amended 28 U.S.C. § 1295 in the Leahy-Smith America Invents Act, Pub. L. No. 112-29, 125 Stat. 284 (2011). See In re Rearden LLC, 841 F.3d 1327, 1331 (Fed. Cir. 2016) ("Congress amended our jurisdictional statute through the America Invents Act to broaden our jurisdiction to include compulsory counterclaims 'arising under’ patent law. Previously, the Supreme Court's decision in Holmes Group [], had effectively limited our jurisdiction to patent law claims asserted in a well-pleaded complaint. It was explained that the amendment to our jurisdictional statute, would counteract the potential for Holmes Group to lead to an erosion in the uniformity or coherence in patent law that has been steadily building since the [Federal] Circuit's creation in 1982.' ” (citations omitted)); accord Predator Int’l, Inc. v. Gamo Outdoor USA, Inc., 793 F.3d 1177, 1180 n.1 (10th Cir. 2015).

      . 28 U.S.C. § 1338(a) (emphasis added).

      . Holmes Group, 535 U.S. at 829-30, 122 S.Ct. 1889.

      . Id. at 830, 122 S.Ct. 1889 (footnote and citation omitted).

      . Id. at 830 n.2, 122 S.Ct. 1889.

      . Id. at 830, 122 S.Ct. 1889.

      . Id.

      . Id. at 831, 122 S.Ct. 1889 (citations omitted).

      . Id. at 831-32, 122 S.Ct. 1889 (explaining it "would leave acceptance or rejection of a state forum to the master of the counterclaim,” would "radically expand the class of removable cases,” and "would undermine the clarity and ease of administration of the well-pleaded-complaint doctrine”).

      . 556 U.S. 49, 62, 129 S.Ct. 1262, 173 L.Ed.2d 206 (2009) ("Under our precedent construing § 1331, as just explained, counterclaims, even if they rely exclusively on federal substantive law, do not qualify a case for federal-court cognizance.”).

      . See id. at 54, 129 S.Ct. 1262.

      . Id. at 56, 129 S.Ct. 1262 (citation omitted).

      . Id. at 60, 129 S.Ct. 1262 (footnote omitted).

      . See In re Crystal Power Co., Ltd., 641 F.3d 82, 85 n.10 (5th Cir. 2011) ("The Supreme Court has been clear that when a party voluntarily enters state-court litigation as a plaintiff, the subsequent filing of a counter-claim or cross-claim against it does not allow that party to invoke the right of removal conferred only on true defendants.” (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 105-08, 61 S.Ct. 868, 85 L.Ed. 1214 (1941))); State of Tex. By & Through Bd. of Regents of Univ. of Texas Sys. v. Walker, 142 F.3d 813, 816 (5th Cir. 1998); Metro Ford Truck Sales, Inc. v. Ford Motor Co., 145 F.3d 320, 326-27 (5th Cir. 1998) (“When an action is brought to federal court through the § 1441 mechanism, ‘for both removal and original jurisdiction, the federal question must be presented by plaintiff's complaint as it stands at the time the petition for removal is filed and the case seeks entry into the federal system. It is insufficient that a federal question has been raised as a matter of defense or as a counterclaim.’ ” (citations omitted)); In re Adams, 809 F.2d 1187, 1188 n.1 (5th Cir. 1987) ("Appellant strenuously argues that he pleaded counterclaims based on federal antitrust law. The district court aptly noted that these are unavailing to compel federal court jurisdiction, based on the well-pleaded complaint rule.” (citations omitted)).

      . The provision states: "Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States ...” (emphasis added). See also Shamrock Oil & Gas Corp., 313 U.S. at 106-07, 61 S.Ct. 868 (discussing history of removal statutes).

      . Vaden, 556 U.S. at 68, 129 S.Ct. 1262 (footnote omitted).

      . Id. at 68 n.17, 129 S.Ct. 1262.

      . Riverside Const. Co. v. Entergy Mississippi, Inc., 626 Fed.Appx. 443, 445 (5th Cir. 2015), as revised (Oct. 16, 2015) (per curiam) (unpublished) (quoting Valdes v. Wal-Mart Stores, Inc., 199 F.3d 290, 293 (5th Cir. 2000)); accord Hornbuckle, 385 F.3d at 541; Omega Hosp., L.L.C. v. Louisiana Health Serv. & Indem. Co., 592 Fed.Appx. 268, 270 (5th Cir. 2014) (per curiam) (unpublished).

      . Holmes Group, 535 U.S. at 832, 122 S.Ct. 1889 (citation omitted).

      . See Chancellor’s Learning Sys., Inc. v. McCutchen, No. 1:07 CV 1623, 2008 WL 269535, at *3 (N.D. Ohio Jan, 29, 2008) (“Chancellors brought a breach of contract action in state court against Ms. McCutchen. Ms. McCutchen answered and filed a counterclaim asserting a claim under a federal statute. Thereafter, plaintiff Chancellors makes a strategic decision to dismiss its complaint without prejudice and remove the action to federal court on the same day ... Chancellors' claim has not been adjudicated and by dismissing without prejudice, Chancellors may intend to re-assert the claim as a counterclaim in federal court if removal is permitted. Even if it does not re-file its claim as a counterclaim, it clearly intends to use it as a setoff to Ms. McCutchen’s claims. Accordingly, the Court finds that Chancellors is not a functional defendant and will not re-align the parties to enable Chancellors to forum shop. As Chancellors is not a defendant it may not remove the action based on Ms. McCutchen’s counterclaim. ”).

      . No. CIV. A. 300CV2561-D, 2001 WL 215931 (N.D. Tex. Mar. 1, 2001).

      . Id. at *1. The district court held this even though there was “no indication in the record that the state court ever formally realigned the parties.” Id.

      . Id. (citations omitted).

      . No. EP-12-CV-134-PRM, 2012 WL 2155005 (W.D. Tex. June 13, 2012).

      . See id. at *1-2.

      . See id. at *2-3. Another district court notes that Sadeghian “was decided before Holmes Group and is therefore without persuasive value.” Cross Country Bank v. McGraw, 321 F.Supp.2d 816, 819 n.4 (S.D.W. Va. 2004).

      . See Holmes Group, 535 U.S. at 829-30, 122 S.Ct. 1889.

      . Id. at 831, 122 S.Ct. 1889 (citations omitted).

      . Id. ("Allowing a counterclaim to establish ‘arising under’ jurisdiction would also contravene the longstanding policies underlying our precedents.”).

      . See Id. at 831-32, 122 S.Ct. 1889.

      . E.g., Vaden, 556 U.S. at 60, 129 S.Ct. 1262 ("Nor can federal jurisdiction rest upon an actual or anticipated counterclaim. We so ruled, emphatically, in Holmes Group[.]").

      . See 919 F.Supp.2d 1038, 1040-41 (W.D. Mo. 2013).

        . Id. at 1042.

      . Id. at 1043.

      . 626 Fed.Appx. at 446-47 (citation and footnote omitted).

      . Id. at 447 (citations omitted).

      . Id. (citation omitted).

      . Id. (quoting Boudreaux v. Global Offshore Res., LLC, No. 14-CV-2507, 2015 WL 419002, at *1 (W.D.La. Jan. 30, 2015)).

      . See Omega Hosp., 592 Fed.Appx. at 271-72.

      . See, e.g., VIP PDL Serv., LLC v. Am. Arbitration Assn, No. SACV 16-2064-DOC (JCGx), 2017 WL 167857, at *3 (C.D. Cal. Jan. 17, 2017) ("[I]n a subsequent line of cases, several courts have declined to follow Hickman.” (collecting cases)).


author: HAYNES, Circuit Judge:

text:
    Robert FRASCARELLI, Petitioner v. UNITED STATES PAROLE COMMISSION, Respondent
    No. 16-60235
    United States Court of Appeals, Fifth Circuit.
    FILED May 23, 2017

      Kristin Michelle Kimmelman, Judy Ful-mer Madewell, Assistant Federal Public Defenders, Federal Public Defender’s Office, San Antonio, TX, Manuel Acosta-Rivera, Assistant Federal Public Defender, Federal Public Defender’s Office, El Paso, TX, for Petitioner.
    Kate Elizabeth Dwyre, Esq., Assistant Attorney General, Helen H. Krapels, U.S. Parole Commission, Washington, DC, for Respondent.
    Before SMITH, ELROD, and HAYNES, Circuit Judges.
   HAYNES, Circuit Judge:

Robert Frasearelli is a federal prisoner who was transferred to the United States from Mexico to continue serving a Mexican sentence for “qualified homicide committed with advantage.” Pursuant to 18 U.S.C. § 4106A(b)(1)(A), the United States Parole Commission (the “Commission”) determined that the federal offense most analogous to Frascarelli’s crime was second-degree murder and analyzed his release date accordingly. Frascarelli now appeals that determination. We affirm.

I.

Robert Frascarelli is an American citizen who killed his live-in girlfriend, Kajia Helena Kauppinen-Conway (“Conway”), in Tijuana, Mexico on November 22, 2009. Their brief relationship appears to have been rocky from the start, involving allegations of drug use, theft, and incessant fighting.

After Frascarelli killed Conway, he contacted Mexican authorities. Upon arrival, they found Conway’s body with adhesive tape on her head and her ankles tied together. Frascarelli explained the scene by lying to law enforcement, telling them that armed and masked intruders arrived at Conway’s house, threatened both of them, tied her up and killed her. The police inspected the crime scene and noted that there were no signs of forced entry. When the police questioned Frascarelli about how the masked men had entered, he became visibly nervous and admitted that the doors were locked at the time of the alleged break-in. The police also questioned him about how he was capable of speaking to the masked men because he had earlier reported that his mouth had been taped shut.

Frascarelli eventually confessed to killing Conway. Specifically, Frascarelli confessed that he was fed up with Conway because she had treated him badly. He described that before he killed her, they had argued over forty dollars. The argument angered Frascarelli, causing him to descend the stairs from her room on the second floor, take a hammer from a toolbox, climb back up the stairs, and hit her in the face with the hammer “three or four times.” When she then “fell uneonscious[,] ... [he] strangled her with [his] hands until she could not breathe.” The autopsy report concluded that the cause of death was strangulation.

Mexican authorities convicted Frascarel-li of having committed qualified homicide with advantage, as proscribed by Articles 123, 126, and 148 of the Baja California State Penal Code (“Baja Penal Code”). The elements of the offense under the Baja Penal Code are (a) the pre-existence of a life, (b) the deprivation of that life (c) caused by delinquent conduct carried out by a party, and (d) committed with advantage. See Baja Penal Code Arts. 123, 126, 147, 148. The Mexican appellate court found that Frascarelli’s statement that he killed Conway was reliable and voluntary, as it was given in the public prosecutor’s office in the presence of the official public defender. The court also decided that the confession was corroborated and supported by witness testimony. The court therefore concluded that Frascarelli committed the act with advantage over Conway because she was unarmed and had fallen before he strangled her.

Pursuant to a treaty between the United States and Mexico, Frascarelli requested a transfer to serve his term of imprisonment in the United States. See Molano-Garza v. U.S. Parole Comm’n, 965 F.2d 20, 22 (5th Cir. 1992) (citing Treaty on Executions of Penal Sentences, Nov. 25, 1976, U.S.-Mex., 28 U.S.T. 7399, T.I.A.S. No. 8718). In accordance with the transfer proceedings, a probation officer prepared a postsentence investigation report (“PSR”). The PSR recommended to the Parole Commission that the most analogous offense to Fras-carelli’s Mexican conviction of qualified homicide committed with advantage was second-degree murder, under 18 U.S.G. § 1111(b). In preparation for the transfer-treaty hearing, a Parole Commission Examiner reviewed the PSR and prepared a prehearing assessment.

The Parole Commission subsequently held a hearing before an examiner to determine Frascarelli’s release date. At the hearing, Frascarelli recounted a third version of events leading to Conway’s death. He testified that, on the day of the killing, he and Conway had been arguing, and she demanded that he purchase more vodka for her. When he refused, the argument escalated from a verbal dispute to a physical altercation with Conway exploding in fury and lunging toward him with a pair of rusty scissors. Frascarelli also stated that he tried to disarm Conway and hit her in the ribs, causing her to fall down a spiral staircase and die. Just as the police recognized Frascarelli’s initial fabrication, the examiner noticed inconsistencies in Fras-carelli’s new version of events. For example, contrary to the field crime report, Frascarelli asserted that Conway’s body was at the bottom of the stairs when the police arrived.

The examiner determined that the description of the crime in the Mexican field crime report was more consistent with the official version in the PSR than the version Frascarelli provided at the hearing. She also found that the official Mexican documents were more credible than Frascarel-li’s new story about Conway falling down the stairs. Based on these conclusions, the examiner recommended that the most analogous federal offense to the Mexican conviction was second-degree murder. She found that Frascarelli acted with malice by both stepping away from the argument to obtain a hammer he then used to hit Conway and by proceeding to strangle her and tie her up in order to support a fabricated story that he told the police. The Commission adopted the examiner’s recommendation. Frascarelli appeals that determination.

II.

The Commission had jurisdiction to determine Frascarelli’s release date under 18 U.S.C. § 4106A(b)(1)(A), which states, “[t]he United States Parole Commission shall ... determine a release date and a period and conditions of supervised release for an offender transferred to the United States to serve a sentence of imprisonment, as though the offender were convicted in a United States district court of a similar offense.”

We have jurisdiction under 18 U.S.C. § 4106A(b)(2)(A), which allows for direct appeals “to the ... court of appeals for the circuit in which the offender is imprisoned” if the notice of appeal is filed “not later than 45 days after receipt of’ the Commission’s notice of determination. Because Frascarelli was incarcerated at FCI La Tuna, located in Anthony, Texas, when the Commission made its determination, and because Frascarelli received notice of the Commission’s determination on April 1, 2016 and filed his appeal from the determination on April 15, 2016, we have jurisdiction to hear this appeal.

“[We] exercise! ] review over a Transfer Treaty prisoner’s sentence as [we] would over that of an ordinary federal prisoner sentenced in district court.” Bender v. U.S. Parole Comm’n, 802 F.3d 690, 693 (5th Cir.), cert. denied, — U.S. —, 136 S.Ct. 493, 193 L.Ed.2d 359 (2015) (citing § 4106A(b)(2)(A); Molano-Garza, 965 F.2d at 23). “The Parole Commission’s construction of statutory law and the Sentencing Guidelines is reviewed de novo[,] and its factual findings are reviewed for clear error.” Id. (citing Molano-Garza, 965 F.2d at 23); see also Navarrete v. U.S. Parole Comm’n, 34 F.3d 316, 318 (5th Cir. 1994). “We will reverse under the clearly erroneous standard ‘only if we have a definite and firm conviction that a mistake has been committed.’ ” In re Dall. Roadster, Ltd., 846 F.3d 112, 127 (5th Cir. 2017) (quoting Canal Barge Co. v. Torco Oil Co., 220 F.3d 370, 375 (5th Cir. 2000)).

III.

“In determining a release date for a transfer offender, the Commission considers the recommendations of the U.S. Probation Service and any documents from the transferring country.” Lizama v. U.S. Parole Comm’n, 245 F.3d 503, 505 (5th Cir. 2001) (citing § 4106A(b)(1)(B)). The Commission determines

[t]he applicable offense guideline provision ... by selecting the offense in the U.S. Code that is most similar to the offense for which the transferee was convicted in the foreign court. In so doing, the Commission considers itself required by law and treaty to respect the offense definitions contained in the foreign criminal code under which the prisoner was convicted, as well as the official documents supplied by the foreign court.

28 C.F.R. § 2.68(a)(4); see also Lizama, 245 F.3d at 506-07.

The analysis may involve more than simply comparing the offense definitions. “[T]he Commission shall take into account the offense definition under foreign law ... and the underlying circumstances of the offense behavior.” Lizama, 245 F.3d at 505 (quoting 28 C.F.R. § 2.68(g)); see also Kleeman v. U.S. Parole Comm’n, 125 F.3d 725, 732 n.9 (9th Cir. 1997). “Disputes of material fact shall be resolved by a preponderance of the evidence....” 28 C.F.R. § 2.68(h)(5). The Commission does not re-sentence the transferee, nor does it revisit questions of guilt or innocence; instead, it simply converts the foreign sentence into a determination of release date and a period and conditions of supervised release. See Molano-Garza, 965 F.2d at 22. Here, the Commission was tasked with converting a Mexican conviction under Article 123 of the Baja Penal Code into a parallel conviction under the laws of the United States.

Under the Baja Penal Code, “ ‘[w]hom-ever deprives another of his life commits the crime of homicide.’ ” Lizama, 245 F.3d at 505 (quoting Baja Penal Code Art. 123). The Code establishes three ranges of punishment for homicide. Id. Qualified homicide is defined as a killing committed with premeditation, advantage, malice, or treachery. Id. (quoting Baja Penal Code Art. 147).

By comparison, second-degree murder under U.S. law requires a finding that a human being was killed “with malice aforethought.” 18 U.S.C. § 1111(a). “Malice” is a term of art that encompasses three mental states: “(1) intent to kill; (2) intent to do serious bodily injury; and (3) the existence of a ‘depraved heart,’ another term of art that refers to a level of extreme recklessness and wanton disregard for human life.” United States v. Browner, 889 F.2d 549, 551-52 (5th Cir. 1989). Voluntary manslaughter is defined in 18 U.S.C. § 1112(a) as: “the unlawful killing of a human being without malice ... [u]pon a sudden quarrel or heat of passion.” If malice is present, then the crime is second-degree murder; if malice is absent, the crime is manslaughter. United States v. Collins, 690 F.2d 431, 437 (5th Cir. 1982). “The fact that distinguishes manslaughter from murder is the existence of malice.” Id.; see also 18 U.S.C. § 1112.

The Mexican court found that Frascarel-li committed homicide with advantage under the Baja Penal Code. The Mexican court supported its conclusion that Fras-carelli committed the crime -with advantage under the Baja Penal Code’s fourth definition of advantage—that when Fras-carelli killed Conway, she was unarmed and had fallen while he was armed and standing.

Frascarelli argues that the Commission erred in finding that second-degree murder was the federal offense most analogous to his Mexican crime. He first contends that the Mexican conviction alone did not require a finding that a human being was killed with malice aforethought. Frascarelli also argues that the underlying facts would not support a conviction of second-degree murder.

Frascarelli’s first contention is correct—a conviction of qualified homicide committed with advantage under the Baja Penal Code requires no finding that a defendant acted with malice. Malice exists if a defendant acts with a certain mental state, see Browner, 889 F.2d at 551-52, whereas homicide committed with advantage exists based on facts surrounding the killing, see Baja Penal Code Art. 148. Therefore, comparing the offense definitions alone is insufficient to reach a final conclusion. See Lizama, 245 F.3d at 505 (quoting 28 C.F.R. § 2.68(g)); Kleeman, 125 F.3d at 732 n.9 (“Given the differences between the Baja Penal Code and the United States Code with respect to voluntary manslaughter, the Commission was required to evaluate the underlying circumstances of the offense behavior, not simply the offense definition under foreign law.”). Therefore, we must look to the underlying circumstances of Frascarelli’s behavior to come to our conclusion. In doing so, however, we reject Frascarelli’s argument that the evidence presented in the. Mexican court’s judgment supports only a conviction of voluntary manslaughter and that the Commission erred in concluding otherwise.

In support of that argument, Frascarelli asserts that he and Conway had a volatile relationship—that they constantly argued, that she ordered him around, and that they were addicted to drugs and alcohol. According to Frascarelli, after suffering months of abuse from their dysfunctional relationship, he snapped, “got a hammer, hit her with it, and strangled her until she was dead.” Frascarelli’s version of events is that of a lovers’ quarrel gone wrong— that Conway provoked him by her abusive treatment, and that, in a moment of passion, he killed her, thus acting without malice and committing voluntary manslaughter. Frascarelli further asserts that there is no evidence that the pre-killing argument had ended or that enough time had passed between Conway’s provocation and her death for Frascarelli to reflect on his course of action.

The Commission is required to credit the Mexican court’s version of events. See 28 C.F.R. § 2.68(a)(4); Lizama, 245 F.3d at 506-07. But the Commission may make factual findings as to the underlying circumstances of the crime that are not inconsistent with the Mexican court’s determinations. See Lizama, 245 F.3d at 505 (quoting 28 C.F.R. § 2.68(g)); 28 C.F.R. § 2.68(h)(5). The question for the Commission, therefore, was whether these underlying circumstances are more consistent with a finding of second-degree murder (with malice) or voluntary manslaughter (in the heat of passion).

A killing in the heat of passion occurs when “the defendant loses his normal self-control as a result of circumstances that would provoke such a passion in an ordinary person, but which did not justify the use of deadly force.” Browner, 889 F.2d at 552. “The malice that would otherwise attach is negated by the fact that the intentional killing occurred in the heat of passion in response to a sufficient provocation.” Id. The Model Penal Code “defines a heat-of-passion killing ... as ‘a homicide which would otherwise be murder ... committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. .The reasonableness of such explanation ... shall be determined from the viewpoint of a person in the actor’s situation ....’” United States v. Delaney, 717 F.3d 553, 558 (7th Cir. 2013) (quoting Model Penal Code § 210.3(1)(b) (Am. Law Inst. 1962)).

The Government typically bears “the burden of proving absence of heat of passion beyond a reasonable doubt.” Id. at 559 (citing Mullaney v. Wilbur, 421 U.S. 684, 703-04, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); United States v. Martinez, 988 F.2d 685, 690 (7th Cir. 1993); United States v. Lofton, 776 F.2d 918, 921-22 (10th Cir. 1985)). In other words, “the malice element of the traditional offense of murder implicitly forces prosecutors to disprove the existence of adequate provocation when the evidence suggests that it may be present.” Browner, 889 F.2d at 552. But “the defendant [is required] to make an initial showing that the defense has some evidentiary support; only then is the burden of proof beyond a reasonable doubt laid on the government.” Delaney, 717 F.3d at 559 (citing United States v. Begay, 673 F.3d 1038, 1045 (9th Cir. 2011) (en banc); Lofton, 776 F.2d at 920)). Another way of describing the process is that “[t]he jury ha[s] to find malice beyond a reasonable doubt in order to convict the defendant of murder, and so evidence that [the defendant] acted in the heat of passion and therefore without malice would if believed require the jury to acquit him of the charge of murder.” Id.

Hitting a defendant in the face with a hammer, followed by strangling her, would usually show one of the three kinds of malice—“(1) intent to kill; (2) intent to do serious bodily injury; [or] (3) ... extreme recklessness and wanton disregard for human life.” Browner, 889 F.2d at 552. We conclude here that sufficient evidence was presented for a jury to find that Frascarel-li acted with malice and did not kill Conway in the heat of passion.

First, there is scant evidence that Conway said or did anything during their argument over money to constitute adequate provocation that would provoke a reasonable person to kill. The only evidence of provocation that the Commission found credible was evidence both that they were arguing about money and that Fras-carelli was fed up with her. Second, there was evidence, and Frascarelli himself admits, that he made up the story about the masked men. Such fabrication tends to support a conclusion that Frascarelli invented the story to deflect attention from his malicious crime. Indeed, Frascarelli’s having told three different versions of events is consistent with having acted with malice when he killed Conway. Finally, the fact that Frascarelli walked down and up a flight of stairs to obtain the hammer, as well as Frascarelli’s subsequent decision to strangle Conway, is evidence that the heat of passion had time to “cool.” See Collins v. United States, 150 U.S. 62, 65, 14 S.Ct. 9, 37 L.Ed. 998 (1893); see also Collins, 690 F.2d at 436; People v. Edgmon, 267 Cal.App.2d 759,73 Cal.Rptr. 634, 639 (1968). Therefore, we conclude that the Commission did not clearly err in finding that Frascarelli acted with malice. Accordingly, we affirm the Parole Commission’s transfer-treaty determination.

AFFIRMED.

      . The Baja Penal Code defines advantage in four ways:
      I. When the criminal is physically stronger than the victim and the victim is not armed.
      II. When the criminal is in a superior position because of the weapons that he or she uses, because of his/her greater skill in handling such weapons, or because of the number of individuals accompanying him/her.
      III. When the criminal makes use of a means that weakens the victim's defenses, or
      IV. When the victim is unarmed or has fallen, and the criminal is armed or standing up.
      Baja Penal Code Art. 148.

      . "The term 'malice' has a different meaning under the Baja Penal Code, than in United States jurisprudence.” Lizama, 245 F.3d at 505 n.1 (citing Kleeman, 125 F.3d at 731 n.7).

      . Whether a criminal defendant committed malice is typically a fact question for the jury. See United States v. Chagra, 807 F.2d 398, 402 (5th Cir. 1986); see also Delaney, 717 F.3d at 555-58; Collins, 690 F.2d at 437; United States v. McRae, 593 F.2d 700, 704-05 (5th Cir. 1979); Fifth Circuit Pattern Jury Instructions (Criminal Cases) § 2.53 (2015).
      Frascarelli argues that the Ninth Circuit applied a de novo standard of review to determine whether the alleged acts supported second-degree murder. Kleeman, 125 F.3d at 730 n.6, 732. However, that case involved a determination that there was no evidence to support a conclusion that the petitioner acted with malice. Id. at 732.

      . At oral argument, Frascarelli’s counsel asserted that when a set of facts could result in a determination of two similar U.S. offenses, due process requires that the Commission choose the least culpable similar offense. Counsel's rationale for this rule is that, if one of the transfer defendants were to have been convicted by a U.S. court, due process would require a prosecutor to prove each element beyond a reasonable doubt.
      But this contention is inconsistent with the relevant federal regulations and statutes. In fact, as counsel admitted, her argument is not supported by any case law. Furthermore, due process does not require the Commission to choose the least culpable offense because a transfer-treaty defendant is not convicted according to U.S. law. His or her foreign convictions are merely converted. See Molano-Garza, 965 F.2d at 22. Finally, defendants are given sufficient due process protection by the fact that the transfer sentence may not be longer than the sentence imposed in the transferor country. 18 U.S.C. § 4106A(b)(C). We therefore reject this argument.