author: DUBINA, Circuit Judge:

text:
    Elroy A. PHILLIPS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 14-11960
    United States Court of Appeals, Eleventh Circuit.
    (February 23, 2017)

      Ashley M. Litwin, Marc David Settles, Settles & Litwin, PA, Miami, FL, for Petitioner-Appellant.
    Lisa Tobin Rubio, Kathleen Mary Sal-yer, Wifredo A. Ferrer, Emily M. Sma-chetti, Miami, FL, Rolando Garcia, Janice Le Clainche, Ann Marie Christine Villafa-na, West Palm Beach, FL, U.S. Attorney’s Office, David M. Lieberman, U.S. Department of Justice, Criminal Division, Appellate Section, Washington, DC, for Respondent-Appellee.
    Before MARCUS, DUBINA, and WALKER, Circuit Judges.

       Hon. John Walker, Jr., United States Circuit Judge for the Second Circuit, sitting by designation.

   DUBINA, Circuit Judge:

This is an appeal from the district court’s order denying Elroy Phillips’s (“Phillips”) motion to vacate his sentence pursuant to 28 U.S.C. § 2255. We granted Phillips a certificate of appealability (“COA”) pursuant to 28 U.S.C. § 2253. After conducting oral argument, reading the parties’ briefs, and reviewing the record, we affirm in part, vacate in part, and remand for resentencing.

I. BACKGROUND

A grand jury charged Phillips with numerous drug related offenses occurring from December 1999 to June 2001, and charged him with being a felon in possession of ammunition from October 2000 to November 1, 2000, and on June 8, 2001. Phillips proceeded to trial, and the jury found him guilty on one count of conspiracy to distribute less than five grams of crack cocaine, in violation of 21 U.S.C. § 846 (Count 1); one count of crack cocaine distribution, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(C) (Count 9); one count of cocaine possession, in violation of 21 U.S.C. § 844(a) (Count 11); and two counts of possession of ammunition after a prior felony conviction, in violation of 18 U.S.C. § 922(g)(1) and § 924(e) (Counts 14 & 17). The jury acquitted Phillips on the remaining counts of the 21-count second superseding indictment. The district court imposed sentences of 860 months’ imprisonment on Counts 1, 9, 14, and 17, each running concurrently with a 24 month sentence on Count 11.

On appeal, we affirmed Phillips’s convictions, but vacated his sentences. United States v. Phillips, 177 Fed.Appx. 942 (11th Cir. 2006). The district court re-sentenced Phillips to 288 months’ ■ imprisonment on Counts 1 and 9, 24 months’ imprisonment on Count 11, and 180 months’ imprisonment on Count 14, all to run concurrent. The district court merged Count 17 with the sentence for Count 14. On appeal a second time, we affirmed the sentences. United States v. Phillips, 262 Fed.Appx. 183 (11th Cir. 2008).

In November 2008, Phillips filed a § 2255 motion to vacate and amended it numerous times. The district court determined that Phillips raised 19 claims for relief, and referred the matter for an evi-dentiary hearing. While preparing for the evidentiary hearing, the government re-interviewed Agent Michael Ghent (“Ghent”), an officer with the West Palm Beach Police Department (“WPBPD”), and a primary investigator in Phillips’s underlying drug offenses. Ghent initially provided information to federal authorities about a drug purchase he and a confidential informant (“Cl”) made from Phillips on April 6, 2001. The authorities relayed that information to a magistrate judge reviewing the government’s warrant applications for Phillips’s arrest and the search of his home. After the magistrate judge issued the search warrant, officers found drug paraphernalia, a gun box, and ammunition in Phillips’s home. Ghent also testified at trial that he conducted surveillance on Phillips from January to April 2001, and he and a Cl participated in a controlled buy of crack cocaine from Phillips on April 6, 2001.

During the preparation for the eviden-tiary hearing, the government discovered that not only had Ghent lied at trial, but, during the investigation and subsequent trial of Phillips, Ghent had been under investigation by his own police department for alleged criminal activities. The government investigated the allegations against Ghent, which included a charge that he engaged in a sexual relationship with his Cl, used illegal substances, extorted a massage parlor, falsified information on government forms, and submitted a false sworn affidavit in a state criminal prosecution. After confirming that Ghent had provided false testimony at Phillips’s trial and confirming that he may have committed criminal acts during the pertinent time-frame, the government agreed to join in Phillips’s motion to vacate Counts 1, 9, 14, and 17. The parties jointly agreed that the conviction for Count ll should remain.

The district court granted in part and denied in part the § 2255 motion to vacate. In its order, the district court agreed with the parties that Phillips’s conviction on Count 9 should be vacated because Ghent provided the only testimony about the April 6, 2001, drug transaction that supported that charge. On Count 1, the district court found ample co-conspirator testimony, apart from Ghent’s perjured testimony, from which the jury could have concluded that Phillips was involved in a conspiracy to distribute five grams or less of crack cocaine.

As to Counts 14 and 17, the district court found that the basis for these counts of conviction was the discovery of ammunition during a search of Phillips’s residence pursuant to a valid search warrant. Although the probable cause affidavit supporting the application for the search warrant contained Ghent’s false statements about the April 6, 2001, drug transaction, the district court noted other evidence that supported the probable cause affidavit, such as co-conspirator statements, Phillips’s behavior during a brief search of his home, and Phillips’s possession of cocaine during another encounter with police. Because the search was supported by probable cause without Ghent’s false statements, the district court determined that the evidence obtained from the search would have been admissible. Thus, it concluded that these convictions were supported by sufficient valid evidence and there was no reasonable probability that the jury would have acquitted Phillips on these counts. Moreover, the district court reasoned that Ghent’s testimony was not relevant to Phillips’s convictions on Counts 14 and 17 because Ghent was not present during the execution of the search warrant. The district court denied Phillips’s remaining claims for relief and denied him a COA.

II. STANDARD OF REVIEW

We review de novo the district court’s legal determinations on a 28 U.S.C. § 2255 motion to vacate and review for clear error the district court’s factual findings. Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004).

III. DISCUSSION

A. Count 1

Contrary to the district court’s finding, we agree with the parties that Phillips’s conviction for conspiracy to distribute crack cocaine, Count 1, should be vacated. Ghent’s false testimony was material to the government’s case, and the government concedes that it cannot show that the perjured testimony did not have a substantial and injurious effect on the verdict. Thus, we vacate Phillips’s conviction on Count 1 and remand to the district court for re-sentencing.

A defendant’s right to due process is violated when “the prosecution’s case includes perjured testimony and ... the prosecution knew, or should have known, of the perjury.” United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976). This is a violation under Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972), and to prevail on this claim, a defendant “must establish that the prosecutor knowingly used perjured testimony ... and that the falsehood was material.” Tompkins v. Moore, 193 F.3d 1327, 1339 (11th Cir. 1999) (internal quotation marks and citation omitted). The false testimony is material “if there is any reasonable likelihood that [it] could have affected the judgment of the jury.” Agurs, 427 U.S. at 103, 96 S.Ct. at 2397. “The ‘could have’ standard requires a new trial unless the prosecution persuades the court that the false testimony was ‘harmless beyond a reasonable doubt.’ ” Smith v. Sec’y, Dep’t of Corr., 572 F.3d 1327, 1333 (11th Cir. 2009) (quoting Ford v. Hall, 546 F.3d 1326, 1332 (11th Cir. 2008)). Giglio’s materiality standard is “more defense-friendly” than Brady’s. Guzman v. Sec’y, Dep’t of Corr., 663 F.3d 1336, 1348 (11th Cir. 2011) (citation omitted). The question of materiality is one of law which we review de novo. See id. at 1339.

When a petitioner raises a Gig-lio error on collateral review, habeas relief will be granted only “if the [constitutional violation at the trial level resulted in ‘actual prejudice’ to the petitioner.” Id. at 1347 (quoting Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993)). “The alleged error must have had a ‘substantial and injurious effect or influence in determining the jury’s verdict.’ ” Id. (quoting Brecht, 507 U.S. at 637, 113 S.Ct. at 1722). Our circuit applies “the Brecht harmless error standard to the ha-beas review of federal court convictions.” Ross v. United States, 289 F.3d 677, 682 (11th Cir. 2002) (per curiam) (applying the Brecht standard to review of a 28 U.S.C. § 2255 motion). The harmlessness question is one of law that we review de novo. Mansfield v. Sec’y, Dep’t of Corr., 679 F.3d 1301, 1307 (11th Cir. 2012). The question is also one that turns on whether the Court can “say, with fair assurance,” that the verdict “was not substantially swayed by the error”:

If, when all is said and done, the [court’s] conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand.But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.

O’Neal v. McAninch, 513 U.S. 432, 437-38, 115 S.Ct. 992, 995, 130 L.Ed.2d 947 (1995) (quotation omitted) (brackets and ellipsis in original) (emphasis omitted).

The government previously conceded that Ghent offered false testimony dt trial about the April 6, 2001, undercover drug buy and that Ghent was a member of the prosecution team, meaning that knowledge of the false .statement can be imputed to the government. See, e.g., Guzman, at 1349, (noting that false testimony of a prosecution team member is imputed to the prosecutor). On appeal, the government reasserts that Ghent provided false trial testimony and maintains that it cannot meet its burden of demonstrating that Ghent’s testimony was immaterial. It was the sole evidence the jury had to convict Phillips on this count. The government’s case against Phillips was weak, and there is thus “grave doubt about whether [the Giglio error] had substantial and injurious effect or influence in determining the jury’s verdict.” Ross, 289 F.3d at 683 (quotation omitted). Thus, the government concedes that it cannot demonstrate that Ghent’s testimony satisfies the Brecht harmlessness standard, and it acknowledges that there is a reasonable likelihood that the jury would have acquitted Phillips on this count had Ghent not testified. Accordingly, we vacate Phillips’s conviction on Count 1 and remand for re-sentencing.

B. Counts 14 and 17

Phillips challenges these counts for illegal possession of ammunition by arguing that Ghent’s false statements in the affidavit to support the search warrant tainted the warrant. The government responds that the district court properly excised the false information provided by 'Ghent from its review of the warrant application and found sufficient independent probable cause to justify the search warrant. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Upon review, we conclude that the district court properly excluded Ghent’s false testimony from its probable cause warrant consideration.

The warrant application contained an affidavit executed by DEA Agent John En-ockson, cataloging evidence of Phillips’s drug activities and firearm possession. The affidavit included three paragraphs summarizing Ghent’s undercover drug buy with Phillips on April 6, 2001. Based on the parties’ agreement that this information from Ghent was false, the district court properly excised this information. The remaining affidavit information included testimony about a police visit to Phillips’s residence, .in an attempt to execute an arrest warrant on another individual, where officers heard toilet-flushing sounds, saw a water-saturated bathroom floor, and observed white powder residue near a safe. The affidavit also contained information summarizing interviews of co-conspirators who stated that they had helped Phillips manufacture and distribute drugs and that they had observed Phillips with firearms. In addition, it contained information that police had recovered cocaine and $1,610 in cash from Phillips during his June 8, 2001, arrest for possession of powder cocaine, and that Phillips had prior drug and firearm-related convictions. Moreover, Ghent was not present at the search that produced evidence of Phillips’s ammunition possession. Hence, we conclude that there was sufficient evidence, apart from Ghent’s false testimony, to provide probable cause to justify the search warrant that led police to the discovery of ammunition in Phillips’s residence. Accordingly, we hold that the district court correctly denied Phillips’s relief on this claim, and we affirm his convictions on Counts 14 and 17, ammunition possession.

C. Count 11

Phillips challenges his conviction on Count 11, which charged him with possession of powder cocaine on June 8, 2001. The government counters that Phillips abandoned this challenge. In the parties’ joint memorandum, the government noted that at trial the defense essentially conceded that Phillips was guilty of this offense, and it proffered that this conviction was not subject to the amended motion to vacate. (R. Joint Memorandum, D.E. 480 at 8 n.9, D.E. 281 at 28 n. 26). The district court agreed with the government and concluded that Phillips abandoned this challenge.

We conclude from the record that the district court correctly found that Count 11 was not subject to Phillips’s amended motion to vacate. Phillips did not seek reconsideration of the district court’s order finding that Count 11 was not asserted in his amended § 2255 motion. As such, Phillips deprived the district court of any opportunity to review any challenge to Count 11. Accordingly, we hold that Phillips abandoned any challenge to Count 11, and we affirm this conviction. ;

IV. CONCLUSION

We affirm the district court’s judgment affirming Phillips’s convictions on Counts 14 and 17, and its finding that Phillips abandoned any challenge to Count 11. However, we disagree with the district court’s disposition as to Count 1, and we vacate that count and remand this case for re-sentencing.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

      . We granted a COA as to whether Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny applied during Phillips's suppression proceedings, and if so, whether Phillips’s rights under Brady and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), were violated based on the government’s failure to disclose the alleged misconduct and false statements of Michael Ghent, a police officer whose statements were included in the criminal complaint and applications for an arrest warrant and a search warrant in Phillips’s criminal proceedings. However, based on the government’s concession that Count 1 should be vacated, and our conclusion that the district court properly excised Ghent’s false testimony in determining that sufficient independent probable cause existed to justify the search warrant with respect to Counts 14 and 17, we need not address these issues.

      . We commend the government for confessing error as to Count 1. As an officer of the court, the government attorney is required to correct or remedy any false testimony of which he knows. See In re Global Energies, LLC, 763 F.3d 1341, 1348-49 (11th Cir. 2014) (noting that the rules regulating attorney conduct required officer of the court to correct or remedy testimony he knew was false) (citing Fla. Bar Code Prof. Resp. D.R. 4-3.3(a)(4) (2010)). See also Model Rules of Prof’l Conduct R. 3.3(a)((3) (2016).


source: Caselaw Access Project

license: Public Domain

text:
    SECURITIES AND EXCHANGE COMMISSION, Plaintiff-Appellee, v. George G. LEVIN, Defendant-Appellant, Frank Preve, Defendant.
    No. 15-14375
    United States Court of Appeals, Eleventh Circuit.
    (February 23, 2017)

      Jeffrey Alan Berger, Emily T.P. Rosen, U.S. Securities & Exchange Commission, Washington, DC, Amie Berlin, David Corey Lawson, U.S. Securities & Exchange Commission, Miami, FL, for Plaintiff-Ap-pellee.
    Michael Anthony Pineiro, Daniel L. Rashbaum, Marcus Neiman & Rashbaum, LLP, Miami, FL, Kenneth B. Robinson, Rice Pugatch Robinson & Schiller, PA, Fort Lauderdale, FL, for Defendant-Appellant.
    Robert C. Josefsberg, Ramon A. Rasco, SunTrust International Center, Miami, FL, for Frank Preve.
    Before MARCUS and DUBINA, Circuit Judges, and GOLDBERG, Judge.

       Honorable Richard W. Goldberg, Judge of the United States Court of International Trade, sitting by designation.

   DUBINA, Circuit Judge:

Defendant-Appellant George G. Levin (“Levin”) appeals the district court’s judgment in favor of the Plaintiff-Appellee Securities and Exchange Commission (“SEC”) on its action charging Levin with securities violations. The action centers on Levin’s sales of securities in connection with a large Ponzi scheme. The SEC brought suit against Levin alleging violations of the registration provisions of the Securities Act and fraud in the sale of securities in violation of the Securities and Exchange Act (“Acts”). Levin asserted affirmative defenses that the sales were exempt from the registration provisions. The district court awarded summary judgment to the SEC, finding no merit to Levin’s affirmative defenses, and a jury found Levin liable on the fraud claims. Levin appeals the district court’s grant of summary judgment to the SEC on Count I, the failure to register securities pursuant to Section 5 of the Securities Act, and he also challenges claimed errors that occurred during trial. Based on our review of the record, reading the parties’ briefs, and having the 'benefit of oral argument, we affirm in part, and reverse in part; specifically, we reverse the grant of summary judgment on Count I and remand this case for further proceedings consistent with this opinion.

I. BACKGROUND

A. Facts

The controversy in this case arises from the operation and eventual collapse of Scott Rothstein’s (“Rothstein”) Ponzi scheme. Rothstein used his law firm, Roth-stein, Rosenfeldt and Adler P.A. (“law firm”), to operate his scheme by soliciting investors to purchase purported confidential settlement agreements supposedly reached in sexual harassment or whistle-blower lawsuits. No such agreements existed, and the investors were paid with funds from other investors. The scheme collapsed in October 2009, and Rothstein pled guilty to a five-count information charging one count each of racketeering conspiracy, conspiracy to commit money laundering, conspiracy to commit mail and wire fraud, and two counts of wire fraud.

Levin’s involvement in the Ponzi scheme began in 2007 when he invested in the purported settlements. Initially, Levin used his personal funds to invest in the scheme, but he soon began using funds from his dormant legal entity, Banyon 1030-32 (“Banyon”). Frank Preve (“Preve”) was the daily operations manager of Banyon, and he handled the paperwork for the investments. Rothstein would email Banyon details regarding the bogus settlements that Banyon could purchase, and Levin determined the parameters of the settlements that Banyon would purchase. In order to purchase more of the purported settlements, Banyon offered investors promissory notes, and Banyon used funds from the notes to purchase additional settlements. Banyon repaid the notes with the returns from those settlements. Levin personally guaranteed the notes. Levin and Preve initially marketed the notes to their friends and family but soon began to solicit other potential investors. Ultimately, Banyon issued notes to approximately 90 investors, for an approximate total amount of $50 to $58 million. The SEC did not receive a registration statement with respect to these promissory notes.

To obtain additional funding, Banyon established lines of credit with New York-based hedge funds to finance settlement purchases. These hedge funds set up separate accounts with Rothstein, and the hedge fund managers independently decided whether they would fund certain settlement purchases. Banyon also utilized the Banyon Income Fund, a limited partnership with Banyon as the general manager, to raise approximately $100 million from an estimated 83 investors to purchase purported settlement agreements. The law firm established a dedicated trust account for the Banyon Income Fund at the TD Bank (“TD Bank”). Eventually, the scheme collapsed.

B. Procedural History

The SEC filed suit against Levin in May 2012, and later amended its complaint. In the amended complaint, the SEC alleged that Levin sold unregistered securities in violation of Sections 5(a) and 5(c) of the Securities Act, and that Levin engaged in fraud in violation of Section 17(a) of the Securities Act, Section 10(b) of the Exchange Act, and Rule 10b-5. In his answer, Levin asserted that the Banyon promissory notes were exempt from registration under Section 4(a)(2) either because they did not involve any public offering as demonstrated by compliance with Rule 506(b) of Regulation D, or because they were protected by the .safe harbor provision of Rule 508 of Regulation D. Levin also asserted that he did not profit from any of the purported conduct and, therefore, disgorgement was not a proper remedy.

The parties both moved for summary judgment, and the district court denied Levin’s motion in full and denied portions of the SEC’s motion as well. The district court, however, did partially grant the SEC’s motion, finding that the Banyon notes were not exempt under Rule 506, but determining that there was a triable issue of fact as to whether the notes were exempt under the safe harbor provision of Rulé 508. The SEC filed a motion for reconsideration as to whether the notes were exempt, and the district court granted the motion, finding that the safe harbor provision in Rule 508 did not protect defendants against enforcement actions brought by the SEC.

The district court began a trial on the securities fraud claim without Levin’s presence because, that morning, Levin’s counsel notified the court that Levin had been admitted to the hospital in Panama where he had traveled for business. Levin was unable to return by the start of the trial, and his counsel moved for a one-week continuance. The SEC objected, mainly on fiscal grounds, but also because a continuance would create problems with witness availability. The district court denied the motion. Levin was absent for the first two days of trial, which included jury selection, opening statements, the SEC’s presentation of its first witness, and the beginning testimony of the SEC’s second witness.

At the end of the trial, the jury found Levin liable on all counts. The SEC moved for a total disgorgement award of $106 million. Levin responded that any disgorgement should be offset by payments made to investors from Banyon and the Banyon bankruptcy trustee. The district court determined that a disgorgement award of $40.1 million was appropriate because it reflected the amounts actually received by Levin and his family members as a result of Levin’s wrongdoing. The district court entered final judgment against Levin on July 31, 2015, and Levin timely filed a notice of appeal.

II. ISSUES

1. Whether the district court erred in granting summary judgment to the SEC because it found the Banyon note offerings were not eligible for a Regulation D exemption from the registration requirements of Section 5 of the Securities Act.

2. Whether the district court abused its discretion in denying Levin’s motion for a continuance on the basis that he was unable to attend the first two days of trial due to an unexpected hospitalization.

3. Whether the district court abused its discretion in including certain gains by Levin’s family members in its $40.1 million disgorgement order, or in failing to reduce that disgorgement based on certain prior and future payments by Banyon’s bankruptcy trustee.

4. Whether the district court plainly erred in questioning Levin and another witness during trial.

III. STANDARDS OF REVIEW

We review de novo a district court’s order on summary judgment. See Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110, 1119 (11th Cir. 2014). “In so doing, we draw all inferences and review all evidence in the light most favorable to the non-moving party.” Id.

We review for abuse of discretion the district court’s ruling on a motion for continuance. See Romero .v. Drummond Co. Inc., 552 F.3d 1303, 1319-20 (11th Cir. 2008). The denial of a request for continuance does not constitute an abuse of discretion unless it is arbitrary and unreasonable and severely prejudices the moving party. See Rink v. Cheminova, Inc., 400 F.3d 1286, 1296 (11th Cir. 2005).

We review for abuse of discretion a district court’s calculation of disgorgement. See SEC v. Monterosso, 756 F.3d 1326, 1337 (11th Cir. 2014).

We also review for abuse of discretion a district court’s questioning of witnesses under Federal Rule of Evidence 614. See generally United States v. Wright, 392 F.3d 1269, 1274 (11th Cir. 2004). When a party fails to object at trial to the district court’s conduct, however, we review for plain error only. See SEC v. Big Apple Consulting USA, Inc., 783 F.3d 786, 812 (11th Cir. 2015).

IV. ANALYSIS

A. Summary Judgment

1. Statutory and Regulatory Framework

Section 5 of the Securities Act prohibits the use of any means of interstate commerce or the mails to offer to sell or offer to buy any security without having first filed a registration statement with the SEC as to such security. 15 U.S.C. § 77e(a), (c) (2012). To establish a prima facie case for a Section 5 violation, the SEC must prove three elements: “(1) no registration statement was in effect as to the securities, (2) the defendant sold or offered to sell these securities, and (3) interstate transportation or communication and the mails were used in connection with the sale or offer of sale.” SEC v. Cont’l Tobacco Co. of S.C., 463 F.2d 137, 155 (5th Cir. 1972). The Securities Act does exempt from its application certain types of securities and securities transactions “where there is no practical need for its application or where the benefits are too remote.” Id. These exemptions must be narrowly viewed because, as remedial legislation, the Securities Act is entitled to a broad construction. Id.

The Code of Federal Regulations Rule 506 (“Rule 506”) implements the statutory exemption involving securities that are not public offerings, such as the ones at issue here. See 17 C.F.R. § 230.506 (2016); see also 15 U.S.C. § 77d(a)(2) (2012) (providing that Section 4(2) of the Securities Act exempts from registration “transactions by an issuer not involving any public offering”). The private offering exemptions are known as Regulation D, which is a series of rules that establish three separate, distinct private offering exemptions from the registration requirements of the Securities Act. To meet the conditions of Rule 506, an offer or sale must satisfy the terms of Rules 501 and 502, and the issuer must reasonably believe that there are no more than 35 purchasers of securities. 17 C.F.R. § 230.506(b)(1), (2)(i). Accredited investors are not counted toward the 35. Id. § 230.501(e). An accredited investor is any person “whose individual net worth ... exceeds $1,000,000.” Id. § 230.501(a)(5) & (6). Rule 502 sets out certain requirements for offerings made under Rule 506(b), including a provision requiring certain information be provided to investors before the sale of the securities and a provision limiting the manner by which the issuer can sell the securities. Id. § 230.502(b), (c), and (d).

To obtain the exemption, there is another condition that must be satisfied, and it involves the nature of the purchasers. Rule 506(b)(2)(h) states that

Each purchaser who is not an accredited investor either alone or with his purchaser representative(s) has such knowledge and experience in financial and business matters that he is capable of evaluating the merits and risks of the prospective investment, or the issuer reasonably believes immediately prior to making any sale that such purchaser comes within this description.

17 C.F.R. § 230.506(b)(2)(h). The issuer is to take reasonable steps to verify that a purchaser of a security sold in an offering-under section (c) is an accredited investor. Id. § 230.506(c). The offeror can verify a purchaser’s accredited status on the basis of income or net worth. See id. § 230.506(c)(2)(ii)(A) & (B).

Rule 508 provides a safe harbor in private offering actions when there are “insignificant deviations” from Rule 506(b). This provision states that a deviation from a “term, condition or requirement of § 230.504, § 230.505 or § 230.506 will not result in the loss of the exemption from the requirements of section 5 of the Act for any offer or sale to a particular individual or entity, if the person relying on the exemption” satisfies three factors. 17 C.F.R. § 230.508(a). The first two factors tie the deviation to the purchasers: the failure to comply with a term, condition or requirement of Rule 506 must not (1) “pertain to a term, condition or requirement directly intended to protect that particular individual or entity”; and (2) must be “insignificant with respect to the offering as a whole, provided that any failure to comply with [certain specified terms] shall be deemed to be significant to the offering as a whole.” Id. The third factor requires a “good faith and reasonable attempt” to comply with all Rule 504, 505, and 506 requirements. Id.

Rule 508(b) states that “[a] transaction made in reliance on § 230.504, § 230.505, or § 230.506 shall comply with all applicable terms, conditions and requirements of Regulation D.” Id. § 230.508(b). Significantly, it provides that “[w]here an exemption is established only through reliance upon paragraph (a) of this section, the failure to comply shall nonetheless be actionable by the Commission under section 20 of the Act.” Id. This regulatory language is. at issue in the present case. There is no precedent explaining what the phrase “failure to comply” modifies in this regulation, and whether this safe harbor is available in SEC enforcement actions.

As we explain infra, our review of the regulatory construction and regulatory history persuades us that the safe harbor provision is available to private note offerings in SEC enforcement actions. Levin establishes a genuine dispute of material fact whether the Banyon note offering, as a whole, falls under the safe harbor provision in Rule 508. Thus, we reverse the district court’s grant of summary judgment on the registration claim and remand for further proceedings.

2. Rule 508 issue

Initially, the district court ruled that there was a genuine dispute of fact regarding Banyon’s compliance with Rule 508. Specifically, it found a genuine dispute as to whether Banyon made a “good faith and reasonable” effort to comply with Rule 506 as required under Rule 508(a)(3). 17 C.F.R. § 230.508(a)(3). The record shows that Banyon attempted to comply with Rule 506(b)(2) by requiring investors, before purchasing the Banyon promissory notes, to submit investor certifications certifying that they were accredited investors under Rule 501, or, if they were not, that they were either sophisticated investors or represented by a “purchaser representative” as required by Rule 506(b)(2)(ii). The district court further found that there was a genuine issue of material fact regarding whether Banyon failed to comply with any provision of Regulation D that was “significant to the offering as a whole.” 17 C.F.R. § 230.508(a)(2).

After this initial ruling by the district court, the SEC filed a motion for reconsideration, asserting that under Rule 508(b), Levin could not avail himself of the Rule 508(a) exemption because this exemption is applicable only in private actions, not SEC enforcement actions under the Securities Act. Thus, the SEC argued that it was “the failure to comply” with Section 5 that was actionable. Levin responded that “the failure to comply” referred to individual failures to comply with Rules 504-506, leaving the protection of the exemption in place for the Section 5 violation generally. On reconsideration, the district court agreed with the SEC and entered judgment in its favor on the registration claim. In our view, this was error.

In determining the meaning of a statute or regulation, “the first step is to determine whether the statutory language has a plain and unambiguous meaning by referring to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Bautista v. Star Cruises, 396 F.3d 1289, 1295 (11th Cir. 2005) (quotation omitted). “If the statute’s meaning is plain and unambiguous, there is no need for further inquiry.” CBS Broad. Inc. v. Echostar Commc’ns Corp., 532 F.3d 1294, 1300-1301 (11th Cir. 2008) (quotations omitted). To determine the plain meaning of a statute or regulation, we do not look at one word or term in isolation, but rather look to the entire statutory or regulatory context. Id. at 1301.

Hence, we first look to the usage of the phrase “failure to comply” and note that it appears numerous times in Rule 508. It is used at the start of (a) in reference to the terms of Rules 504-506 and to describe the basic premise of the exemption; it appears in (a)(1) and (a)(2) referring back to its usage in (a); and it is used again in (a)(2) to specifically reference the terms of Rules 504-506. The word “comply” is also used in (a)(3), separately from the phrase “failure to comply,” again in relation to Rules 504-506. “A standard principle of statutory construction, provides that identical words and phrases within the same statute should normally be given the same meaning.” Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 232, 127 S.Ct. 2411, 2417, 168 L.Ed.2d 112 (2007); see also Douglas v. Yates, 535 F.3d 1316, 1320-21 (11th Cir. 2008) (“Similar language contained within the same section of a statute must be accorded a consistent meaning.”) (quotation omitted). Given Rule 508(a)’s repeated reference to “failure to comply” in the context of compliance with the Rules of Regulation D for private offering exemptions, it follows that the phrase “failure to comply” in Rule 508(b) must be interpreted in the same manner: relating to compliance with Rules 504-506 of Regulation D and not to compliance with Section 5. See Owusu-Ansah v. Coca-Cola Co., 715 F.3d 1306, 1311 (11th Cir. 2013) (stating that “a term appearing in several places in a statutory text is generally read the same way each time it appears”) (quotation omitted).

Second, if the SEC had intended for Rule 508(b) to address non-compliance with Section 5 of the Act, it would have expressly stated so. This is true especially because Rule 508(a), part of the same rule, explicitly references Section 5 of the Securities Act. See 17 C.F.R. § 230.508(a) (stating that a “failure to comply” with Rules 504-506 will not result “in the loss of the exemption from the' requirements of section 5 of the Act” if certain conditions are satisfied). When a deliberative body “includes particular language in one section of a statute but omits it in another, it is generally presumed that [it] acts intentionally and purposely in the disparate inclusion or exclusion.” Keene Corp. v. United States, 508 U.S. 200, 208, 113 S.Ct. 2035, 2040, 124 L.Ed.2d 118 (1993) (quotation omitted).

Third, “statutes should be construed so that no clause, sentence, or word shall be superfluous, void, or insignificant.” United States v. Aldrich, 566 F.3d 976, 978 (11th Cir. 2009) (quotation omitted). The district court’s interpretation of Rule 508 runs counter to this instruction. The district court’s interpretation renders the entire first sentence of Rule 508(b) — providing that “[a] transaction made in reliance on § 230.504, § 230.505, or § 230.506 shall comply with all applicable terms, conditions and requirements of Regulation D”— superfluous. The inclusion of this first sentence adds meaning to Rule 508(b) only if it is interpreted as allowing the SEC to bring Section 20 enforcement actions for specific violations of the rules of Regulation D, not of Section 5 of the Securities Act, even where Rule 508(a) good faith compliance . applies. Otherwise, the sentence is not necessary.

In sum, the first part of the first sentence is necessary to qualify the second part of the sentence. The first sentence provides context, and the two sentences in Rule 508(b) explain that a transaction made in reliance upon the Regulation D private offering exemption generally must comply with all its terms, but if a transaction violates those terms and is saved by Rule 508’s safe harbor provision, those specific violations are actionable even though the transaction is otherwise exempt.

Additionally, the regulatory history lends support for this interpretation. After requesting comment on whether a good faith compliance standard should be instituted for Regulation D, the SEC proposed such a standard, explaining that under the proposed rule, isolated and minor deviations from the requirements of Regulation D might eliminate the exemption with respect to a particular sale, but not with respect to the offering as a whole. See Regulation D Revisions, 52 Fed. Reg. 3015, 3020 (Jan. 30, 1987); 53 Fed. Reg. 7870, 7871 (Mar. 10, 1988). At this point in the regulatory history, however, no distinction had been made between private and SEC actions. After further comment, the SEC proposed a revised version of Rule 508 that contains the language which currently appears in section (b). See Regulation D; Independent Exemptions from Registration Requirements, 54 Fed. Reg. 309, 310, 312, 314 (Jan. 5, 1989). In reference to Rule 508(b), the SEC explained that “[a] separate provision in reproposed Rule 508 provides that in any case, failure to comply with any term, condition or requirement of Regulation D would be actionable by the Commission regardless of the significance of the deviation.” Id. at 312. This final clause refers back to the “failure to comply,” suggesting that it is the minor deviations from Regulation D that are actionable, and not the offering as a whole under Section 5.

We conclude that the district court erred in finding that the safe harbor provision of Rule 508(a) was not available in this SEC enforcement action. Based on .the plain language of the regulation and the regulatory history, we hold that Rule 508(a) not only preserves the safe harbor for certain insignificant deviations in private actions, but it also preserves the safe harbor in SEC enforcement actions. Because there are disputed facts about whether the Banyon notes comply with Rule 502(b)(2)(vii) in order to be eligible for a Rule 506 exemption, and, in turn, fall within the safe harbor provision of Rule 508, we hold that the district court erred in granting summary judgment to the SEC on Count I, the registration claim. Accordingly, we reverse the district court’s judgment in favor of the SEC on the registration claim and remand for further proceedings.

B. Motion for Continuance

Levin argues that the district court abused its discretion when it denied his motion for a continuance. He posits that the denial prejudiced his case by preventing him from participating in jury selection, by tainting the jury against him, and by preventing him from assessing the testimony and assisting in his counsel’s cross-examination of the SEC’s first witness. Based on our review of the record, we hold that the district court did not abuse its discretion in denying the motion for continuance.

We have clearly stated that we will not reverse a district court’s ruling on a motion for continuance unless the ruling is arbitrary, unreasonable, and severely prejudicial. See Rink, 400 F.3d at 1296. There are four factors we generally consider in determining whether a trial continuance is warranted. First, we examine the diligence of the party requesting the continuance to ready the case prior to the date set for trial. See Hashwani v. Barbar, 822 F.2d 1038, 1040 (11th Cir. 1987) (citation omitted). Second, we consider the likelihood that the need for a continuance could have been met if a continuance was granted. Id. Third, we examine the extent to which granting the continuance would have been an inconvenience to the court and the opposing party. Id. Fourth, we consider the extent to which the requesting party might have suffered harm as a result of the district court’s denial of the continuance. Id; see also Fowler v. Jones, 899 F.2d 1088, 1094 (11th Cir. 1990). Another relevant factor we entertain is whether the district court has granted a prior continuance in the case. See Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1351 (11th Cir. 2003).

In considering these factors, we conclude that the district court properly denied the motion for a continuance. The first factor is irrelevant because the parties do not dispute that in most respects Levin was diligent in readying his case for trial. As to the second factor, when Levin’s counsel contacted the district court the morning of the trial to inform the court of Levin’s illness, counsel did not know the specific extent of Levin’s illness and asked for a week-long continuance. Because the district court had no information regarding Levin’s prognosis at the time, we conclude that it did not abuse its discretion in reasoning that a week-long continuance would not guarantee Levin’s return. See Romero, 552 F.3d at 1320-21 (noting that as to the second factor “[i]t is well-settled that a district court may deny a continuance when there is no guarantee that granting one will enable a party to [meet the need for the continuance]”).

We conclude that the third factor weighs heavily against the continuance because the last-minute request, if granted, would have increased the inconvenience to the district court and the SEC. The district court had secured the services of an extra court reporter for the trial and had summoned fifty potential jurors. Moreover, one of the SEC’s witnesses was available only for a few days, so a week-long continuance might have prevented his testimony. Lastly and importantly, we conclude that Levin cannot demonstrate prejudice from the denial of the continuance. We note that Levin.voluntarily traveled to Panama several days before his trial was scheduled to commence. Although Levin argues that his absence at the start of the trial tainted the jury’s impression of him, the district court minimized any prejudice by informing the jurors that Levin was absent due to an illness. The district court reiterated the reason for Levin’s absence before jury selection and the presentation of the SEC’s first witness.

Moreover, the district court weighed the fact that during the three years the case had been pending, the district court had granted three continuances. This is a permissible factor to consider in evaluating whether to grant a motion for continuance. See Quiet Tech. DC-8, Inc., 326 F.3d at 1351. Furthermore, Levin was present to testify on his own behalf. Thus, we conclude that Levin fails to show serious prejudice to his case from the district court’s denial of the motion for continuance. Accordingly, we affirm the district court’s order on this challenge.

C. Disgorgement Award

Levin argues that the district court abused its discretion in entering a $40.1 million disgorgement award against him, and he proffers several reasons why we should reverse the disgorgement award. First, Levin claims that the district court should have reduced the disgorgement award by $30.4 million, the amount distributed by the Banyon bankruptcy trustee to Banyon’s investors. Second, he argues that the award failed to provide for reductions based on any future distributions or other repayments by the Banyon trustee to Banyon’s investors. Third, he claims that the district court erred by including in its calculation the gains obtained by his wife and his unaffiliated companies. None of these arguments merits relief.

“Disgorgement is an equitable remedy intended to prevent unjust enrichment.” SEC v. Monterosso, 756 F.3d at 1337. The initial amount is established by the SEC who “needs to produce only a reasonable approximation of the defendant’s ill-gotten gains.” Id. After the SEC has established the initial amount, the burden shifts to the defendant “to demonstrate the SEC’s estimate is not reasonable.” Id.

Initially, we note that for the first time on appeal, Levin challenges the approximation of his gains based on the inclusion of gains obtained by his wife and his companies. Because Levin failed to object to that inclusion in the district court, we will not entertain this challenge on appeal. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (stating that this court “has repeatedly held that an issue not raised in the district court and raised for the first time in an appeal will not be considered”) (quotation omitted). If we did consider the issue, however, Levin would not prevail because he has presented no evidence that the gains obtained by his wife and his entities did not ultimately reach him.

We conclude that the district court properly based the disgorgement upon Levin’s gains and not the investors’ losses. The $30.4 million returned by the Banyon trustee did not come out of Levin’s gains but instead came from a TD Bank settlement for Banyon’s investment in the fraud. Hence, this money was not a return of investor proceeds raised during the Ba-nyon offering, and the district court properly did not consider these funds to offset the disgorgement. Moreover, there is no evidence that the $1.75 million Levin contributed from his personal bankruptcy estate has reached the hands of Banyon investors. As the district court noted, if any investor does ultimately recover from Lev-in, then Levin could petition the court for a reduction in the disgorgement award because the recovery would constitute a partial return of Levin’s ill-gotten gains. This indicates the district court’s clear understanding of its duty in ordering a disgorgement award. Accordingly, we affirm the disgorgement award.

D. Judge’s questioning of witnesses

Levin contends that during the trial, the district court improperly intervened during his testimony and Preve’s testimony by asking them both “leading, one-sided, and tendentious questions.” Levin claims that these questions constituted an abuse of the district court’s discretion to examine witnesses, as provided in Federal Rule of Evidence 614. Levin acknowledges that he did not object to the district court’s improper questioning at trial, but argues that he was not required ⅜0 object because such objection would place him in a disadvantageous position that might create a conflict for him with the district court. Regardless of the standard of review employed by this court — abuse of discretion or plain error — Levin maintains that reversal is appropriate because the district court’s questioning prejudiced his defense, affected the outcome of his trial, and seriously affected the fairness, integrity, or public reputation of the proceeding.

A district court has discretion to question witnesses. See Wright, 392 F.3d at 1274. It is within that discretion that the district court can “make inquiries of a witness in order to clarify the evidence presented,” act to prevent any misunderstanding of a witness’s testimony, and “maintain the pace of trial by interrupting or limiting counsel’s questions.” Id. at 1275. A district court abuses that discretion when it abandons its proper role and assumes the role of an advocate. Id. at 1274. Under an abuse of discretion review, in order for Levin to be entitled to a reversal based on alleged improper, comments by the district court, there must be a “clear effect on the jury.” United States v. Hill, 643 F.3d 807, 845 (11th Cir. 2011).

However, our review is for plain error. Regardless of the provision in Rule 614(c) that allows for parties to refrain from objecting to a judge’s questioning of a witness in front of the jury so as to avoid prejudicing themselves, the rule “does not entirely relieve the litigant of his duty to object in order to preserve the exception on appeal.” Hanson v. Waller, 888 F.2d 806, 813 (11th Cir. 1989). In order to preserve an objection, a party should lodge the objection at the next available opportunity when the jury is not present. Id. Otherwise, the alleged error is deemed waived unless it constitutes plain error. Id.

Levin cannot prevail under a plain error review because he cannot show that the district court’s alleged improper questioning seriously affected the fairness, integrity, or public reputation of his trial. United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014). Levin’s testimony lasted for all of one day and the start of the next day. During his testimony, the district court had to instruct Levin at least one dozen times to answer questions directly and to give clear answers. At one time, the district court sent the jury out of the room to admonish Levin to cease arguing with the SEC’s counsel. Upon review, it is clear that the district court’s questions were meant to provide clarification in Levin’s testimony and to maintain the pace of the trial.

The district court interrupted when Lev-in was unresponsive to the SEC’s counsel’s questions, when the SEC’s questions confused Levin, and when the SEC’s counsel’s questioning became repetitive. This is all within the district court’s discretion. See Wright, 392 F.3d at 1274-75. Moreover, the district court instructed the jury to disregard any of its questions and to arrive at its own decision about the facts. Considering the record as a whole, we conclude that there is no reversible error. See, e.g., United States v. Bertram, 805 F.2d 1524, 1529 (11th Cir. 1986) (holding that, given the vigor of counsel and the cautionary instructions to the jury, thirty-five “egregious” interruptions from the trial judge “did not intrude [ ] to such an extent that he showed bias in favor of the prosecution or prejudice against the defendants or their attorneys”). Accordingly, we conclude that Levin is not entitled to relief on this claim.

V. CONCLUSION

We hold that the district court did not abuse its discretion in denying Levin’s motion for continuance or in questioning Lev-in and Preve during the trial. We affirm the district court’s disgorgement award because the district court properly based the award on Levin’s ill-gotten gains and not the investors’ losses. However, we reverse the district court’s judgment on the registration count with regard to its determination that Rule 508(a) does not apply to SEC enforcement actions. There are disputed issues of fact whether the Banyon note offerings failed to comply with any provision of Regulation D that was significant to the offering as a whole. Thus, we are compelled to remand that issue to the district court for further proceedings consistent with this opinion.

AFFIRMED in part, REVERSED in part, and REMANDED.

      . Preve was also named as a defendant, but the SEC settled its case with Preve via consent judgment. Hence, Preve is not a party to this appeal.

      . See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (holding that decisions of the Fifth Circuit Court of Appeals prior to September 30, 1981, are binding on the Eleventh Circuit Court of Appeals).


author: WILLIAM PRYOR, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Erik Lindsey HUGHES, Defendant-Appellant.
    No. 15-15246
    United States Court of Appeals, Eleventh Circuit.
    (February 27, 2017)

      Jane Elizabeth McBath, Lynsey Morris Barron, Dahil Dueño Goss, John Andrew Horn, Angela Marie Munson, Mary Christine Roemer, Lawrence R. Sommerfeld, U.S. Attorney’s Office, Atlanta, GA, for Plaintiff-Appellee.
    Brian Mendelsohn, Stephanie A. Kearns, Federal Defender Program, Inc., Atlanta, GA, Erik Lindsey Hughes, FCI Jesup-Inmate Legal Mail, Jesup, GA, for Defendant-Appellant.
    Before WILLIAM PRYOR, JORDAN, and BALDOCK, Circuit Judges.

       Honorable Bobby R. Baldock, United States Circuit Judge for the Tenth Circuit, sitting by designation.

   WILLIAM PRYOR, Circuit Judge:

This appeal requires us to apply the rule of Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977), to the splintered opinion in Freeman v. United States, 564 U.S. 522, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011), to determine whether a defendant who entered into a plea agreement that recommended a particular sentence as a condition of his guilty plea is eligible for a reduced sentence, 18 U.S.C. § 3582(c)(2). Erik Hughes pleaded guilty to drug and firearm offenses and entered into a binding plea agreement with the government, Fed. R. Crim. P. 11(c)(1)(C). The district court accepted the agreement and sentenced Hughes according to the agreement. Hughes then sought a sentence reduction permitted for defendants who have been “sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2) (emphasis added). In Freeman, the justices divided over the question whether a defendant sentenced under a binding plea agreement was sentenced “based on a sentencing range.” 564 U.S. at 525, 534, 131 S.Ct. 2685. The district court determined that Justice Sotomayor’s concurring opinion stated the holding in Freeman because she concurred in the judgment on the narrowest grounds, Marks, 430 U.S. at 193, 97 S.Ct. 990, and it denied Hughes’s motion based on the reasoning of that concurring opinion. We agree on both counts. Hughes is ineligible for a sentence reduction because he was not sentenced “based on a sentencing range,” 18 U.S.C. § 3582(c)(2), that has since been lowered. We- affirm.

I. BACKGROUND

In 2013, a federal grand jury returned an indictment that charged Erik Hughes in four counts for drug and firearm offenses. Hughes pleaded guilty to two counts: conspiracy to possess with intent to distribute at least 500 grams of methamphetamine, 21 U.S.C. §§ 841(b)(1)(A)(viii), 846, and being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1). In the plea agreement, Hughes and the government agreed to a sentence of 180 months of imprisonment.

At the sentencing hearing, the district court calculated Hughes’s guidelines range and determined that his sentencing range under the United States Sentencing Guidelines was 188 to 235 months. The district court then accepted the plea agreement, which bound the court to impose the below-guidelines sentence recommended by the parties. See Fed. R. Crim. P. 11(c)(1)(C). So the district court sentenced Hughes to 180 months of imprisonment.

Just over a year later, Hughes filed a motion to reduce his sentence, 18 U.S.C. § 3582(c)(2). Section 3582(c)(2) allows a court to reduce the term of imprisonment of “a defendant who has been sentenced ... based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” Hughes sought a reduction based on Amendment 782 to the Sentencing Guidelines, which reduced the offense levels for certain drug offenses by two levels and applies retroactively. See United States Sentencing Guidelines Manual § 1B1.10 (Nov. 2015). According to Hughes, applying the amendment would reduce his guidelines range to 151 to 188 months.

The district court denied Hughes’s motion. It determined that Hughes was ineligible for a reduced sentence. It reasoned, based on Justice Sotomayor’s concurring opinion in Freeman, that the sentence in Hughes’s binding plea agreement was not “based on” a sentencing guidelines range as required by section 3582(c)(2).

II. STANDARDS OF REVIEW

“We review a district court’s decision whether to reduce a sentence pursuant to [section] 3582(c)(2), based on a subsequent change in the sentencing guidelines, for abuse of discretion.” United States v. Brown, 332 F.3d 1341, 1343 (11th Cir. 2003). Like all questions of statutory interpretation, we review the conclusions of the district court about the scope of its legal authority under section 3582(c)(2) de novo. United States v. Moore, 541 F.3d 1323, 1326 (11th Cir. 2008).

III. DISCUSSION

We divide our discussion in two parts. First, we explain that Justice Sotomayor’s concurring opinion in Freeman constitutes the holding of that decision because it is the “position taken by th[e] [Justice] who concurred in the judgment[] on the narrowest grounds.” Marks, 430 U.S. at 193, 97 S.Ct. 990 (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (opinion of Stewart, Powell, and Stevens, JJ.)). Second, we explain that the district court correctly denied Hughes’s motion for a .sentence reduction because applying the holding of Freeman, Hughes was not sentenced based on a sentencing guidelines range, Freeman, 564 U.S. at 538-39, 131 S.Ct. 2685 (Sotomayor, J., concurring in the judgment).

A. Justice Sotomayor’s Concurring Opinion Stated the Holding in Freeman.

Federal courts ordinarily may not “modify a term of imprisonment once it has been imposed,” 18 U.S.C. § 3582(c), but “Congress has provided an exception to that rule ‘in the ease of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.’” Dillon v. United States, 560 U.S. 817, 819, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010) (quoting 18 U.S.C. § 3582(c)(2)). Such a defendant may have his sentence reduced after the court “considers] the factors set forth in [18 U.S.C.] § 3553(a) ... if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” Id. § 3582(c)(2).

In Freeman, the Supreme Court split over the question whether defendants like Hughes who enter into plea agreements that recommend a particular sentence as a condition of their guilty plea were sentenced “based on a sentencing range.” 564 U.S. at 525, 131 S.Ct. 2685 (plurality opinion). William Freeman entered into a plea agreement with the government under Rule 11(c)(1)(C), and the district court accepted the agreement and imposed the recommended sentence. Id. at 527-28, 131 S.Ct. 2685. The Sentencing Commission later issued a retroactive amendment that lowered the guidelines range applicable to Freeman’s conduct, and he moved for a sentence reduction, 18 U.S.C. § 3582(c)(2). Id. at 528, 131 S.Ct. 2685. The district court denied Freeman’s motion, and the Sixth Circuit affirmed. Id. But the Supreme Court, in a five-to-four decision, reversed. Id. at 525-526, 131 S.Ct. 2685

. Five justices agreed that the district court could reduce Freeman’s sentence, but those justices differed in their reasoning. The plurality opinion, joined by four justices, determined that the “[t]he district judge’s decision to impose a sentence may ... be based on the Guidelines even if the defendant agrees to plead guilty under Rule 11(c)(1)(C).” Id. at 526, 131 S.Ct. 2685. “In every case the judge must exercise discretion to impose an appropriate sentence” and “[tjhis discretion, in turn, is framed by the Guidelines.” Id. at 525, 131 S.Ct. 2685. But Justice Sotomayor concurred only in the judgment. Id. at 534, 131 S.Ct. 2685.

Justice Sotomayor’s concurring opinion determined that “the term of imprisonment imposed by a district court pursuant to an agreement authorized by Federal Rule of Criminal Procedure 11(c)(1)(C) ... is ‘based on’ the agreement itself, not on the judge’s calculation of the Sentencing Guidelines.” Id. (Sotomayor, J., concurring in the judgment). Under this view, if a plea agreement “call[s] for the defendant to be sentenced within a particular Guidelines sentencing range,” the acceptance of the agreement by the district court “obligates the court to sentence the defendant accordingly, and there can be no doubt that the term of imprisonment the court imposes is ‘based on’ the agreed-upon sentencing range.” Id. at 538, 131 S.Ct. 2685. And if a plea agreement “provide[s] for a specific term of imprisonment ... but also make[s] clear that the basis for the specified term is a Guidelines sentencing range applicable to the offense to which the defendant pleaded guilty,” then “[a]s long as that sentencing range is evident from the agreement itself,” the term of imprisonment imposed is “based on” that range. Id. at 539,131 S.Ct. 2685.

“When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.’ ” Marks, 430 U.S. at 193, 97 S.Ct. 990 (quoting Gregg, 428 U.S. at 169 n.15, 96 S.Ct. 2909). “The Marks Court did not elaborate on how to identify the narrowest grounds.” Bryan A. Garner, et al, The Law of Judicial Precedent 199-200 (2016). “But the prevailing view is that the narrowest grounds are those that, when applied to other cases, would consistently produce results that a majority of the Justices supporting the result in the governing precedent would have reached.” Id. at 200, 96 S.Ct. 2909. We have explained that the “ ‘narrowest grounds’ is understood as the ‘less ■ far-reaching’ common ground.” United States v. Robison, 505 F.3d 1208, 1221 (11th Cir. 2007) (quoting Johnson v. Bd. of Regents, 263 F.3d 1234, 1247 (11th Cir. 2001)). When determining which opinion controls, we do not “consider the positions of those who dissented.” Id.

Justice Sotomayor’s opinion in Freeman provides the narrowest ground of agreement because her concurring opinion establishes the “le[ast] far-reaching” rule. District courts are required to consult the guidelines before sentencing a defendant, see Freeman, 564 U.S. at 525-26, 131 S.Ct. 2685 (plurality opinion), and district courts may not accept an agreement under Rule 11(c)(1)(C) “without first evaluating the recommended sentence in [the] light of the defendant’s applicable sentencing range.” Id. at 529, 131 S.Ct. 2685; see also U.S.S.G. § 6B1.2. Under the logic of the plurality opinion, the guidelines range always “provide[s] a framework or starting point — a basis, in the commonsense meaning of the term — for the judge’s exercise of discretion” in deciding to accept a plea agreement under Rule 11(c)(1)(C). Id. Justice Sotomayor’s opinion, by contrast, provides two examples in which a sentence is based on a sentencing range.

Both opinions agree on the broader principle that defendants sentenced based on a binding plea agreement can later have their sentences reduced under section 3582(c)(2), but the concurring opinion uses narrower reasoning than the plurality opinion. Whenever the concurring opinion would grant relief to a defendant sentenced according to a binding plea agreement, the plurality opinion would agree with the result because, under the logic of the plurality opinion, a defendant should always receive relief. Justice Sotomayor’s opinion is the less far-reaching common ground. We already reached this conclusion in dicta when we evaluated the impact of Freeman on our precedent and stated that “Justice Sotomayor’s concurring opinion can be viewed as the holding in Freeman.” United States v. Lawson, 686 F.3d 1317, 1321 n.2 (11th Cir. 2012).

The decisions of eight sister circuits also support our conclusion that Justice Soto-mayor’s concurring opinion is the holding of Freeman. See Garner, et al., supra, at 204 (“Almost every federal circuit court to consider the Marks issue in Freeman has held that [Justice Sotomayor’s] opinion is controlling.”). The First, Third, and Fourth Circuits reached that conclusion because “the plurality would surely agree that in every case in which a defendant’s [Rule 11(c)(1)(C)] plea agreement satisfies the criteria for Justice Sotomayor’s exception ... the sentencing judge’s decision to accept that sentence is based on the guidelines.” United States v. Rivera-Martinez, 665 F.3d 344, 348 (1st Cir. 2011); see also United States v. Thompson, 682 F.3d 285, 289 (3d Cir. 2012); United States v. Brown, 653 F.3d 337, 340 n.1 (4th Cir. 2011). The Tenth Circuit explained that Justice Soto-mayor’s concurring opinion is the holding in Freeman because it is a “middle ground.” United States v. Graham, 704 F.3d 1275, 1277-78 (10th Cir. 2013). And the Fifth, Sixth, Seventh, and Eighth Circuits adopted Justice Sotomayor’s concurring opinion after stating the Marks rule and then stating that Justice Sotomayor’s concurring opinion provides the narrowest ground of agreement. See United States v. Benitez, 822 F.3d 807, 811 (5th Cir. 2016); United States v. Smith, 658 F.3d 608, 611 (6th Cir. 2011); United States v. Dixon, 687 F.3d 356, 359 (7th Cir. 2012); United States v. Brome, 698 F.3d 1042, 1045 (8th Cir. 2012).

The decisions of two circuits deviate from this majority view and hold that Justice Sotomayor’s concurring opinion does not provide the narrowest ground of agreement in Freeman, but we find their reasoning unpersuasive. The Ninth and D.C. Circuits explained that the rule in Marks applies when one opinion is a “logical subset” of another, broader opinion. See United States v. Davis, 825 F.3d 1014, 1021-22 (9th Cir. 2016) (en banc); United States v. Epps, 707 F.3d 337, 350 (D.C. Cir. 2013). Both courts then determined that Justice Sotomayor’s concurring opinion is not a logical subset of the plurality opinion but instead offers a different rationale because the concurring opinion focuses on the parties’ agreement and the plurality opinion focuses on “the role of the judge’s Guidelines calculations in deciding whether to accept or reject the agreement.” Davis, 825 F.3d at 1022; see also Epps, 707 F.3d at 350. But this narrow focus on the rationale of the opinions in Freeman is misplaced.

The Supreme Court has not stated that an opinion can qualify as the “narrowest grounds” of decision only when it “rep-resentfs] a common denominator of the Court’s reasoning.” Davis, 825 F.3d at 1020 (quoting King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en banc)); see also id. at 1031 (Bea, J., dissenting) (“The ... ‘logical subset’ requirement is an invention of the D.C. Circuit that finds no support in Marks or any other Supreme Court precedent.”). Indeed, the Supreme Court has determined that an opinion is controlling, under Marks, even when that opinion does not share common reasoning with the other opinions necessary to support the judgment. See O’Dell v. Netherland, 521 U.S. 151, 162, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997) (adopting justice White’s concurring opinion in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), as the “narrowest grounds of decision among the ■ justices whose votes were necessary to the judgment” even though the concurring opinion relied on a different constitutional amendment than the plurality opinion). “After all, in splintered cases, there are multiple opinions precisely because the Justices did not agree on a common rationale.” United States v. Duvall, 740 F.3d 604, 613 (D.C. Cir. 2013) (Kavanaugh, J., concurring in the denial of rehearing en banc).

Marks itself determined that a plurality opinion, governed as the narrowest grounds of decision notwithstanding that none of the justices that concurred in the judgment “agreed with the rule enumerated by the ... plurality.” Davis, 825 F.3d at 1034 (Bea, J., dissenting). Marks evaluated which opinion provided the holding of the Supreme Court in A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of the Commonwealth of Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966). The plurality opinion in Memoirs determined that literature was protected by the First Amendment unless it satisfied the test of obscenity established by Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). See Memoirs, 383 U.S. at 418, 86 S.Ct. 975. Justice Black’s and Justice Douglas’s concurring opinions in Memoirs, in contrast, stated a rule that “the First Amendment provides an absolute shield against governmental action aimed at suppressing obscenity.” Marks, 430 U,S. at 193, 97 S.Ct. . 990. And Justice Stewart’s concurring opinion, different still, explained that only hardcore pornography could be suppressed. Id. Although six justices agreed that the literature at issue was protected by the First Amendment, only the plurality opinion, joined by three justices, relied on the test in Roth to reach that result. Yet the Supreme Court determined that the plurality opinion governed as the “position taken by those Members who concurred in the judgments on the narrowest grounds,” id. (quoting Gregg, 428 U.S. at 169 n.15, 96 S.Ct. 2909).

The decision in Marks that the plurality opinion in Memoirs stated the holding makes clear that when no opinion garners a majority of the votes, the opinion that relies on the narrowest grounds necessary to reach the judgment controls. Id. at 194, 97 S.Ct. 990; see also United States v. Santos, 553 U.S. 507, 523, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008) (opinion of Scalia, Souter, and Ginsburg, JJ.) (explaining that the holding of the Court was limited by Justice Stevens’s concurrence because his vote was necessary to the judgment and his opinion rested upon the narrower ground). As Judge Bea has explained, “Marks’ emphasis on the Court’s ‘judgment’ demonstrates that it is the ultimate ‘vote’ of five Justices that is important in determining the binding effect of a splintered Supreme Court opinion.” Davis, 825 F.3d at 1035 (Bea, J., dissenting). “That is, Marks requires us to find a ‘legal standard which, when applied, will necessarily produce results with which a majority of the Court from that case would agree.’ ” Id. (quoting United States v. Williams, 435 F.3d 1148, 1157 n.9 (9th Cir. 2006)); see also Duvall, 740 F.3d at 608 (Kavanaugh, J., concurring in the denial of rehearing en banc).

As we see it, Justice Sotomayor’s opinion provides a legal standard that produces results with which a majority of the Court in Freeman would agree because whenever Justice Sotomayor’s opinion would permit a sentence reduction, the plurality-opinion would as well. The plurality opinion stated that because a judge must “eval-uare] the recommended sentence in [the] light of the defendant’s applicable sentencing range’-’ and determine “either that such sentence is an appropriate sentence within the applicable guideline range or, if not, that the sentence departs from the applicable guideline range for justifiable reasons” before the judge accepts the agreement, “the court’s acceptance is itself based on the Guidelines.” Freeman, 564 U.S. at 529, 131 S.Ct. 2685 (plurality opinion) (internal quotation marks omitted). Justice Sotoma-yor’s opinion, in contrast, provided two examples in which a sentence imposed according to a plea agreement is “based on a sentencing range.” Because the district judge must evaluate the sentencing range before accepting the plea agreement, the plurality opinion would reach the same result as Justice Sotomayor’s concurring opinion and determine that, in those two circumstances, the defendant was sentenced “based on a sentencing range” and qualifies for a sentence reduction. As a result, Justice Sotomayor’s opinion is the narrower opinion.

When applying the rule of Marks to a splintered Supreme Court opinion, we must determine which opinion that supports the judgment relied on the narrowest grounds. Applying this rule to Freeman, it is clear that Justice Sotomayor’s opinion controls because “ ‘sometimes’ is a middle ground between ‘always’ and ‘never.’ ” Duvall, 740 F.3d at 612 (Kavanaugh, J., concurring in the denial of rehearing en banc). As a result, we must apply Justice Sotomayor’s concurring opinion to determine whether Hughes qualifies for a sentence reduction under section 3582(c)(2).

B. Hughes Is Not Eligible for a Sentence Reduction.

The district court did not abuse its discretion when it determined that Hughes is not eligible for a sentence reduction because Hughes’s sentence was not based on a sentencing guidelines range. Justice Sotomayor’s opinion explained that a trial judge’s acceptance of a binding plea agreement is “based on” a sentencing range when the Rule 11(c)(1)(C) agreement calls for a “defendant to be sentenced within a particular Guidelines sentencing range,” or the agreement “make[s] clear that the basis for the specified term is a Guidelines sentencing range applicable to the offense to which the defendant pleaded guilty.” Freeman, 564 U.S. at 538-39, 131 S.Ct. 2685 (Sotomayor, J., concurring in the judgment). Hughes’s agreement does neither. His plea agreement does not call for him to be sentenced within a particular sentencing range but instead states that he “should be sentenced to 180, months.” And his plea agreement does not “make clear” that the basis for the 180 month recommendation is a guidelines sentencing range.

The plea agreement does not “make clear” that a sentencing range formed the basis for Hughes’s sentence. The agreement states that the district court and the probation office will calculate the applicable guidelines range. And the government reserved the right to modify its recommendations about the guidelines. But the agreement does not make any recommendation about a specific application of the Sentencing Guidelines, and the agreement does not calculate Hughes’s range or discuss factors that must be used to determine that range, such as Hughes’s criminal history. Nor does it set the agreed-upon sentence within the applicable guideline range. Hughes was not sentenced “based on” a guidelines range, and he is not eligible for a sentence modification under section 3582.

IV. CONCLUSION

We AFFIRM the judgment of the district court.


author: HALL, District Judge:

text:
    Elizabeth BLEVINS, individually and on behalf of others similarly situated, Plaintiffs-Appellants, v. Seydi V. AKSUT, M.D., Selma Heart Institute, PC, Vaughan Region Medical Center, LLC, LifePoint Hospitals, Inc., LifePoint RC, Inc., LifePoint CSGP, LLC, Baptist Medical Center South, Jackson Hospital & Clinic, Inc., Defendants-Appellees.
    No. 16-11585
    United States Court of Appeals, Eleventh Circuit.
    (March 1, 2017)

      Greg William Foster, Foster Law Firm, PC, Birmingham, AL, Joshua P. Hayes, Prince Glover & Hayes, PC, Tuscaloosa, AL, for Plaintiffs-Appellants.
    Allen C. King, Michael Kevin Wright, Birmingham, AL, John Peter Crook McCall, Mobile, AL, Starnes Davis Florie, LLP, for Defendant-Appellee Seydi Vak-kas Aksut.
    Walter Jasper Price, III, David L. Brown, Jr., H. Cannon Lawley, Huie Fer-nambucq & Stewart, LLP, Birmingham, AL, Lon Stuart Hays, Brandon Marshall Howell, B. Todd Thompson, Thompson Miller & Simpson PLC, Louisville, KY, for Defendant-Appellee Vaughan Regional Medical Center; LLC.
    Clarence James Gideon, Jr., Alan S. Bean, Justin Blake Carter, Gideon Cooper & Essary, PLC, Nashville, TN, Rickman E. Williams, III, Pitts Williams & Jones, Selma, AL, for Defendants-Appellees Life-Point Hospitals, Inc., LifePoint RC, Inc., LifePoint CSGP, LLC.
    Lewis Peyton Chapman, III, Amanda C. Hines, Rushton Stakely Johnston & Garrett, PA, Montgomery, AL, for Defendant-Appellee Jackson Hospital & Clinic, Inc.
    James E. Williams, James Flynn Mozin-go, Melton Espy & Williams, PC, Montgomery, AL, for Defendant-Appellee Baptist Health.

      Before WILSON and JULIE CARNES, Circuit Judges, and HALL, District Judge.

       Honorable J. Randal Hall, United States District Judge for the Southern District of Georgia, sitting by designation.

   HALL, District Judge:

This case arises out of Defendant Doctor Seydi V. Aksut’s alleged performance of unnecessary heart procedures. Two issues are on appeal. First, we must decide whether the Class Action Fairness Act’s (“CAFA”) local-controversy provision, 28 U.S.C. § 1332(d)(4), precluded the district court from exercising federal-question jurisdiction. And if not, we must decide whether Plaintiffs allege that they were injured in their “business or property,” 18 U.S.C. § 1964(c), under the Racketeer Influenced and Corrupt Organizations Act (“RICO”).

Below, the district court sided with Defendants on both issues. We affirm in part and vacate in part. We affirm the denial of Plaintiffs’ motion to remand because CAFA’s local-controversy provision does not prohibit district courts from exercising federal-question jurisdiction under 28 U.S.C. § 1331. But we vacate the district court’s grant of Defendants’ motion to dismiss because Plaintiffs allege economic injuries that are recoverable under RICO.

I. Background

According to Plaintiffs-, after an examination, Doctor Aksut would falsely tell a patient that the patient needed heart surgery. Doctor Askut would then perform the procedure at a facility operated by Defendants Selma Heart Institute, P.C., LifePoint Hospitals, Inc., LifePoint RC, Inc., LifePoint CSGP, Inc., Baptist Medical Center South, or Jackson Hospital & Clinic, Inc. Defendants would then bill the patient for the procedure. According to the complaint, each Plaintiff underwent some type of unnecessary procedure at one of these locations.

After learning about this practice, Plaintiffs filed suit in February 2015 in the Circuit Court of Dallas County, Alabama. Plaintiffs’ complaint asserts, among other things, civil RICO claims and alleges that Defendants operated a racketeering enterprise through which they performed and billed for the unnecessary heart procedures.

Defendants timely removed the case to the Southern District of Alabama based on federal-question jurisdiction. Defendants then moved to dismiss the complaint and argued that Plaintiffs allege only personal injuries, which are not recoverable under RICO, and that they failed to plead sufficient facts to support their claims. Around the same time, Plaintiffs moved to remand and argued that CAFA’s local-controversy provision prohibited the district court from exercising jurisdiction.

The magistrate judge assigned to the case reported and recommended that the district court deny Plaintiffs’ motion to remand because CAFA was inapplicable and grant Defendants’ motion to dismiss because Plaintiffs had failed to plead RICO-recoverable injuries. After entertaining objections to the report and recommendation, the district court adopted it as its opinion and dismissed the case. Plaintiffs now appeal.

II. Standards of Review

We review the denial of Plaintiffs’ motion to remand de novo. See Henderson v. Wash. Nat’l Ins. Co., 454 F.3d 1278, 1281 (11th. Cir. 2006). We also review the grant of Defendants’ motion to dismiss de novo, “and we must accept all factual allegations in the complaint as true and construe them in the light most favorable to [Plaintiffs].” Id. (quotation omitted).

III. Discussion

On appeal, Plaintiffs argue that the district court erred by not remanding the case because CAFA’s local-controversy provision precluded it from exercising jurisdiction. And even if it appropriately exercised jurisdiction, Plaintiffs contend that the district court should have denied Defendants’ motion to dismiss because Plaintiffs’ complaint alleges pecuniary injuries that are recoverable under RICO.

A. Plaintiffs’ Motion to Remand

It is undisputed that Plaintiffs’ complaint alleges that Defendants violated federal RICO statutes — that is, it pleads a federal question — and that Defendants removed based on federal-question jurisdiction under 28 U.S.C. § 1331. Still, Plaintiffs contend that CAFA’s local-controversy provision precludes federal jurisdiction. First, Plaintiffs argue that CAFA’s local-controversy provision requires district courts to abstain from exercising jurisdiction over all local class actions. Alternatively, they argue that CAFA assigns jurisdiction over local class actions exclusively to the state courts. We reject both arguments.

“Congress enacted CAFA to address inequitable state court treatment of class actions and to put an end to certain abusive practices by plaintiffs’ class counsel.” Lowery v. Ala. Power Co., 483 F.3d 1184, 1193 (11th Cir. 2007). Indeed, Congress was concerned that 28 U.S.C. § 1332 had worked to “kee[p] cases of national importance in state courts rather than federal courts.” Miss. ex rel. Hood v. AU Optronics Corp., — U.S.—, 134 S.Ct. 736, 739, 187 L.Ed.2d 654 (2014) (alteration in original) (quotation omitted). “CAFA seeks to address these inequities and abusive practices by, among other things, broadening federal diversity jurisdiction over class actions with interstate implications.” Lowery, 483 F.3d at 1193.

1. CAFA’s local-controversy provision does not require district courts to abstain from exercising jurisdiction over federal-question class actions.

With the enactment of CAFA, Congress amended 28 U.S.C. § 1332 to include § 1332(d). Notably, § 1332(d)(2) grants district courts jurisdiction over class actions “in which the matter in controversy exceeds the sum or value of $5,000,000” and there is diversity between any class member and any defendant. But under CAFA’s local-controversy provision, § 1332(d)(4), district courts must refrain from exercising jurisdiction over certain class actions that otherwise meet § 1332(d)(2)’s requirements. Specifically, § 1332(d)(4) instructs district courts to “decline to exercise jurisdiction under” § 1332(d)(2) over class actions that involve local parties and controversies. And, as Plaintiffs point out, courts have held that § 1332(d)(4) is similar to abstention and does not eliminate federal jurisdiction. See Morrison v. YTB Int’l, Inc., 649 F.3d 533, 536 (7th Cir. 2011) (“[Section] 1332(d)(4) does not itself diminish federal jurisdiction. It directs district judges to ‘decline to exercise’ jurisdiction otherwise present and thus is akin to abstention.”); Graphic Commc’ns Local 1B v. CVS Caremark Corp., 636 F.3d 971, 973 (8th Cir. 2011) (“The local controversy provision ... inherently recognizes the district court has subject matter jurisdiction.... Thus, the local controversy provision operates as an abstention doctrine, which does not divest the district court of subject matter jurisdiction.”).

Plaintiffs contend that § 1332(d)(4) requires district courts to refrain from hearing any local class action. That is, according to Plaintiffs, district courts must decline to exercise jurisdiction over any class action that meets the requirements of § 1332(d)(4), even those based on federal-question jurisdiction, such as this one. The problem with Plaintiffs’ argument is simple: § 1332(d)(4) does not affect a district court’s ability to exercise jurisdiction under § 1331.

As noted, § 1332(d)(2) grants district courts jurisdiction over minimally diverse class actions in which more than $5,000,000 is in dispute. And § 1332(d)(4) proscribes the exercise of that jurisdiction over local cases. Put differently, § 1332(d)(2) grants district courts jurisdictional power they did not previously have, and § 1332(d)(4) removes their ability to exercise that specific grant of jurisdiction in certain cases. Indeed, § 1332(d)(4)’s language makes clear that it has no bearing on jurisdiction asserted under § 1331: it provides that district courts “shall decline to exercise jurisdiction under paragraph (2)” of § 1332(d) (emphasis added). It does not preclude the exercise of any other jurisdictional power. Thus, when the requirements of federal-question jurisdiction are met, district courts may exercise jurisdiction over class actions, even if they involve only local parties.

2. CAFA’s local-controversy provision does not grant state courts exclusive jurisdiction over local federal-question class actions.

Plaintiffs also contend that § 1332(d)(4) grants state courts exclusive jurisdiction over local class actions, including those based on federal-question jurisdiction. When a federal statute creates a private right of action, the federal courts presumptively have jurisdiction under § 1331. Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 378-79, 132 S.Ct. 740, 748-49, 181 L.Ed.2d 881 (2012). And “[t]hat principle endures unless Congress divests federal courts of their § 1331 adjudicatory authority.” Id. at 379, 132 S.Ct. at 749.

Nothing in the language of § 1332(d)(4) indicates that Congress intended to divest district courts of jurisdiction under § 1331. Rather, as explained above, § 1332(d)(4) prevents district courts from exercising the jurisdiction that they otherwise possess under that statute. See Morrison, 649 F.3d at 536; CVS Caremark Corp., 636 F.3d at 973. It does not restrict their ability to exercise other forms of jurisdiction. Thus, we are unpersuaded that § 1332(d)(4) divests district courts of their authority under § 1331.

In sum, CAFA’s local-controversy provision does not require district courts to abstain from exercising federal-question jurisdiction over local class actions, and nothing in that provision indicates that Congress intended to divest district courts of federal-question jurisdiction. Accordingly, we affirm the district court’s denial of Plaintiffs’ motion to remand.

B. Defendants’ Motion to Dismiss

Plaintiffs assert, among other things, civil RICO claims under 18 U.S.C. § 1964(c) and allege that Defendants operated a racketeering enterprise in violation of 18 U.S.C. § 1962(a), (c), & (d). Specifically, Plaintiffs allege that “Defendants operated a medical services enterprise that falsely represented to patients that certain interventional cardiology procedures were medically necessary.” Plaintiffs also contend that Defendants committed mail and wire fraud through this enterprise by billing Plaintiffs for the unnecessary procedures.

Under 18 U.S.C. § 1964(c), “[a]ny person injured in his business or property by reason of a violation of [18 U.S.C. § 1962]” may pursue a civil action in federal court based on that violation. But the language “injured in his business or property” limits an aggrieved party’s ability to recover because it “excludes personal injuries, including the pecuniary losses therefrom.” Grogan v. Platt, 835 F.2d 844, 847 (11th Cir. 1988). Thus, “both personal injuries and pecuniary losses flowing from those personal injuries fail to confer relief under § 1964(c).” Jackson v. Sedgwick Claims Mgmt. Servs., Inc., 731 F.3d 556, 565 (6th Cir. 2013).

Here, the magistrate judge concluded that Plaintiffs failed to allege injuries to their business or property because their alleged harm — then’ medical expenses— flowed from their personal injuries — the unnecessary procedures. But Plaintiffs allege in their complaint that “Plaintiffs and class members and/or their indemnitors paid or are obligated to pay monies to the defendants” for the unnecessary medical procedures.

In the context of unnecessary medical treatment, payment for the treatment may constitute an injury to property. See Ironworkers Local Union 68 v. AstraZeneca Pharm., LP, 634 F.3d 1352, 1363 (11th Cir. 2011). In Ironworkers, the plaintiffs asserted civil RICO claims against AstraZeneca. They claimed that AstraZeneca fraudulently induced physicians to prescribe one of its drugs instead of cheaper alternatives. Similar to Plaintiffs here, the plaintiffs in Ironworkers sought to recover damages based on the amounts they paid for the unnecessary prescriptions. Although this Court affirmed the dismissal of the case, we noted that a plaintiff who “allege[s] that her purchase payments were the product of a physician’s medically unnecessary or inappropriate prescriptions” has likely pleaded an injury under RICO. Id.

Our reasoning in Ironworkers applies here. Plaintiffs seek to recover damages under § 1964(c) for the amounts they paid for the unnecessary heart procedures. These injuries do not flow from any personal injuries. Rather, as in Ironworkers, the payments themselves are economic injuries because they were for medically unnecessary procedures. That Plaintiffs also seek redress for personal injuries under other legal theories does not change the outcome. Accordingly, because Plaintiffs have alleged injuries to “business or property,” we vacate the district court’s grant of Defendants’ motion to dismiss.

IV. Conclusion

We AFFIRM the district court’s denial of Plaintiffs’ motion to remand, VACATE the district court’s grant of Defendants’ motion to dismiss, and REMAND for further proceedings.

      . The district court dismissed the entire case because it declined to exercise supplemental jurisdiction over Plaintiffs’ state-law claims.

      . Also, Defendants argue on appeal that: (1) we lack appellate jurisdiction over the district court’s order denying Plaintiffs’ motion to remand because Plaintiffs did not petition for permission to appeal that ruling; (2) we lack appellate jurisdiction over the grant of Defendants’ motion to dismiss because Plaintiffs did not sufficiently designate that ruling in their notice of appeal; and (3) even if we have appellate jurisdiction, Plaintiffs are entitled to only plain-error review. Because we are satisfied that we have appellate jurisdiction and that Plaintiffs are entitled to de novo review, we reject these arguments.

      . The plaintiffs in Ironworkers included a putative class of insurers and an individual. We affirmed the dismissal of the insurers’ claims because we found that they had assumed the risk of paying for medically unnecessary prescriptions, and we affirmed the dismissal of the individual’s claims because she failed to plausibly allege that she purchased medically unnecessary prescriptions.

      . We note that Defendants alternatively argue that we should affirm the district court’s order for a separate reason: that the complaint fails to meet Federal Rule of Civil Procedure 9’s heightened pleading standard. We decline to reach that issue. The district court, however, is free to address that argument on remand.