author: KAYATTA, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Joshua J. NIEVES-MERCADO, Defendant, Appellant.
    No. 15-1627
    United States Court of Appeals, First Circuit.
    January 30, 2017

      Cathryn A. Neaves on brief for appellant.
    Rosa Emilia Rodriguez-Velez, United States Attorney, Mariana E. Bauzá-Al-monte, Assistant United States Attorney, Chief, Appellate Division, and Francisco A. Besosa-Martinez, Assistant United States Attorney, on brief for appellee.
    Before HOWARD, Chief Judge, THOMPSON and KAYATTA, Circuit Judges.
   KAYATTA, Circuit Judge.

The district court sentenced defendant Joshua Nieves-Mercado (“Nieves”) to 60 months’ imprisonment, a term that exceeded by 9 months the top of the guidelines sentencing range and by 14 months the government’s recommendation pursuant to a plea agreement. Nieves appeals, arguing that the court abused its discretion by considering unreliable evidence, by varying upward based on information already factored into the guidelines sentencing range, and by ignoring “the significant mitigating factor” of his youth. According to Nieves, these errors rendered his sentence procedurally and substantively unreasonable. We disagree and so affirm.

I.

We draw the following facts from the plea agreement and change-of-plea colloquy, the undisputed portions of the presen-tence investigation report (“PSR”), and the sentencing hearing. See United States v. Rivera-González, 776 F.3d 45, 47 (1st Cir. 2015).

The criminal conduct at issue took place in the early morning hours of March 15, 2013. Nieves and two other men were traveling westbound on the highway between Rio Grande and Carolina in Puerto Rico. Their vehicle approached an intersection and pulled alongside a red Ford Explorer stopped at the light. Nieves exited the vehicle and carried “a long pointed tip object” to the driver’s side of the Explorer. He first ordered the driver to get out. When she did not immediately comply, he opened the driver’s side door, yanked the driver from her seat, and pushed her toward the highway lane divider. Nieves drove away in the Explorer, and the vehicle in which he arrived likewise fled the scene.

Hours later, reports surfaced of three armed individuals disassembling a red Ford Explorer in Canóvanas. Police officers responded to the scene and observed two men removing parts from the Explorer. The officers took both men into custody. Their investigation confirmed that the Explorer was the vehicle carjacked hours earlier. It also led them to Nieves, whom federal officers arrested the following day. Nieves waived his constitutional rights and admitted to his participation in the carjacking.

On March 20, 2013, a grand jury returned a one-count indictment charging Nieves and the two other men with carjacking and aiding and abetting in violation of 18 U.S.C. § 2119(1). Nieves pled guilty to that charge, pursuant to a plea agreement with the government, on September 23, 2013. The agreement obligates the government to recommend a sentence in “the middle range of the applicable guideline,” with no stipulation as to Nieves’s criminal history category. It also includes a sentencing guidelines calculation table that lists Nieves’s total offense level as twenty-two, reflecting the following: a base offense level of twenty, U.S. Sentencing Guidelines Manual § 2B3.1(a); plus a two-level enhancement because the offense involved carjacking, id. § 2B3.1(b)(5); plus a three-level enhancement because Nieves brandished a dangerous weapon, id. § 2B3.1(b)(2)(E); less three levels because Nieves accepted responsibility, id. § 3E1.1. The parties agreed to seek no further adjustment to, or departure from, the base offense level.

The timely produced PSR mirrors the offense level computation in the plea agreement, finds a criminal history score of zero, and computes Nieves’s criminal history category as I. Additionally, the PSR provides a detailed description of the offense conduct according to the reports of investigation. As relevant to this appeal, the PSR states that FBI agents interviewed Nieves’s codefendants on the date of their arrest. Both admitted their role in the carjacking and subsequent disassembling of the Explorer, explaining that Nieves approached one of the codefen-dants after the carjacking, told him where to find the Explorer, and suggested that he remove and sell the radiator to satisfy a debt Nieves owed to that codefendant.

The sentencing hearing took place on April 29, 2015. The district court asked defense counsel whether he had read and examined the PSR. Defense counsel responded that he had and lodged one objection unrelated to the issues on appeal. Defense counsel also confirmed that he had explained the PSR to his client and that they had discussed it together. He then addressed the court, providing context for a juvenile adjudication briefly referenced in the PSR, and noting Nieves’s compliance with the terms of his probation during a previous period of supervision. He also referenced literature calling into question the positive correlation between incarceration and deterrence, and he reported statistics indicating a higher percentage of guidelines sentences in the District of Puerto Rico compared to the national average. Finally, defense counsel argued that offender characteristics including age, employment, and education made Nieves’s potential for rehabilitation “tremendous” and his risk of recidivism “low.”

The court then heard from Nieves. In his address to the court, he stated, “I must apologize to the victims, because what happened was a momentary thing and I ask them to forgive me.” The court responded by questioning Nieves’s assertion:

Mr. Nieves, I think it is very good and proper for you to ask the victims for forgiveness. However you mentioned that this event and what transpired of you committing this carjacking was ... the result of a spur of the moment thing. However, there is information to the effect that whatever the situation was between you and your two codefendants and whether the three of you were arguing or not, at the time in which the vehicle is found you had stated that you had a debt, you owed money to a code-fendant of yours and you told him, take the car, sell the parts and use that to cover for my debt. So it had a purpose, it served a purpose.

Defense counsel interjected that the information on which the court relied “did not come from the defendant” and was instead “an allegation from the other codefen-dant.” He explained that, although Nieves accepted responsibility for his participation in the carjacking, he had a different account of his motivation and his conduct following the carjacking. Defense counsel questioned the credibility of the allegation reported in the. PSR, arguing that it was an “improper factor for the Court to consider” because the court lacked “any elements on the record before it to determine if the codefendants [sic] statement is true and he is not trying to minimize his participation or if our client [sic] version is true and he is trying to minimize his participation.” The court made no explicit ruling with respect to the information, instead indicating that it would hear from the government.

After hearing from the government, which did not comment on the disputed evidence, the district court imposed its sentence. It agreed with the total offense level listed in the plea agreement of twenty-two and, applying a criminal history category of I, calculated the applicable guidelines sentencing range as 41 to 51 months of imprisonment. See U.S. Sentencing Guidelines Manual ch. 5, pt. A (Sentencing Table). Turning to the sentencing factors enumerated in 18 U.S.C. § 3553(a), the court discussed “the history and characteristics of the defendant,” id. § 3553(a)(1), including Nieves’s age, education, employment history, family situation, history of drug abuse, and criminal record. The court also considered “the nature and circumstances of the offense,” id such as the events immediately preceding t[ie carjacking and the injury suffered by the victim. It imposed an upwardly variant sentence of 60 months’ imprisonment, followed by a term of supervised release not challenged on appeal.

Defense counsel asked the court to reconsider the sentence, noting that it exceeded the government’s recommendation and arguing that the additional prison time did not further the goals of punishment set forth in § 3553(a)(2). The court, in denying reconsideration, emphasized that Nieves’s actions evinced his “lack of maturity” and “disregard for human life and disregard for others.” The court also stated,

I still have my doubts as to whether this was a way or mechanism of paying a debt. I have to base this on information that is available, that is relevant to the case, given by a person against his own interest per say [sic] in terms of explaining how he was there and why he was there and how he got the vehicle and why this person got to be related.

The court further explained that it “factored in” several considerations, including “his prior record of delinquency, the seriousness of this offense[, and] ... the leading role that he had in being the one that decided and instructed the other ones.”

II.

Nieves advances several arguments on appeal. First, he argues that the district court impermissibly considered unreliable evidence in determining his sentence. Next, he contends that the court justified the upward variance with factors the guidelines. sentencing range already took into account. Additionally, he claims that the court overlooked the importance of his youth, which Nieves declares a “significant mitigating factor.” According to Nieves, these errors produced a substantively unreasonable sentence.

A.

“We review sentencing' decisions imposed under the advisory Guidelines, whether outside or inside the applicable [guidelines sentencing range], for reasonableness.” United States v. Pantojas-Cruz, 800 F.3d 54, 58 (1st Cir. 2015). Although we customarily apply the abuse of discretion standard to assess reasonableness, “the plain error standard supplants the customary standard of review” when the defendant neglects to preserve an objection before the district court. United States v. Dávila-González, 595 F.3d 42, 47 (1st Cir. 2010). The government contends that the plain error standard applies to certain of Nieves’s arguments on appeal, but we sidestep that question because Nieves’s arguments fail under even the more favorable abuse of discretion standard.

We review sentences imposed under the advisory guidelines in two phases. In the first phase, we “examine whether the district court committed any procedural missteps.” United States v. Rossignol, 780 F.3d 475, 477 (1st Cir. 2015). Such missteps include “failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the section 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence-including an explanation for any deviation from the Guidelines range.” United States v. Rivera-Moreno, 613 F.3d 1, 8 (1st Cir. 2010) (quoting Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). We have described our abuse of discretion standard in this context as “multifaceted,” as we apply clear error review to factual findings, de novo review to interpretations and applications of the guidelines, and abuse of discretion review to judgment calls. See United States v. Serunjogi, 767 F.3d 132, 142 (1st Cir. 2014) (citing United States v. Leahy, 668 F.3d 18, 21 (1st Cir. 2012)).

In the second phase of our review, we “ask whether the sentence is substantively reasonable.” Rossignol, 780 F.3d at 477. Our inquiry “focuses on the duration of the sentence in light of the totality of the circumstances.” United States v. Del Valle-Rodríguez, 761 F.3d 171, 176 (1st Cir. 2014). It acknowledges that, although the “sentencing court is under a mandate to consider a myriad of relevant factors, ... the weighting of those factors is largely within the court’s informed discretion.” United States v. Clogston, 662 F.3d 588, 593 (1st Cir. 2011). Our review demands only “a plausible sentencing rationale and a defensible result.” United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008).

B.

Nieves’s first argument concerns the PSR’s report of a statement made by one of Nieves’s codefendants concerning the reasons for disassembling the stolen car. Nieves argues that the district court improperly relied on this out-of-court statement by a codefendant to an FBI agent, whose report of the statement then made it into the PSR. We agree with Nieves that the reported statement can be seen as hearsay, and that the district court relied on it, at least in part. Generally, though, “there is no limitation on the information which a court may consider in sentencing other than that the information bear sufficient indicia of reliability to support its probable accuracy, and evidence not ordinarily admissible under the rules of evidence at trial may be considered.” United States v. Berzon, 941 F.2d 8, 21 (1st Cir. 1991). Accordingly, district courts may rely on hearsay statements that bear such indicia of reliability. See United States v. Ramírez-Negrón, 751 F.3d 42, 52 (1st Cir.) (“Reliable hearsay is, of course, admissible during sentencing proceedings.”), cert. denied, — U.S. -, 135 S.Ct. 276, 190 L.Ed.2d 203 (2014); U.S. Sentencing Guidelines Manual § 6A1.3 cmt. (“Reliable hearsay evidence may be considered.”).

The report of the statement made by his codefendant was disclosed to Nieves in the PSR. Nieves does not deny that the statement was made, nor does he dispute the context in which it was made. The nature and circumstances of the reported explanation bolster its reliability. The codefendant made an inculpatory statement to law enforcement on the date of his arrest. This was not a statement attendant to plea bargaining, a context that sharpens the code-fendant’s incentive to shift blame. Instead, it was a near-contemporaneous confession that acknowledged the codefendant’s participation not only in the carjacking but also in the additional criminal activity of disassembling the Explorer to sell its parts. Furthermore, the codefendant’s statement was consistent with the actions of the codefendants immediately prior to their apprehension by law enforcement: the codefendants had removed one part from the Explorer, which they had placed in their vehicle, and were working on removing the radiator when the police detained them.

In these circumstances, we find no abuse of discretion or legal error by the district court in relying on this evidence at sentencing. See, e.g., United States v. Parra-Gonzalez, 329 Fed.Appx. 887, 889 (11th Cir. 2009) (per curiam) (citing United States v. Gordon, 231 F.3d 750, 761 (11th Cir. 2000)) (finding no clear error-in district court’s reliance on codefendants’ hearsay statements, even where court did not explicitly address reliability of statements at sentencing, because “hearsay statements by [the] codefendants were supported by sufficient indicia of reliability and [the defendant] had an opportunity to rebut those statements”); United States v. Berry, 258 F.3d 971, 976-77 (9th Cir. 2001) (similarly finding no abuse of discretion in district court’s reliance on codefendants’ hearsay statements, even where court made no express findings regarding reliability, given “external consistency” of statements).

C.

Nieves next contends that, apart from the codefendant’s statement, the factors relied on by the district court to support the variance “were reiterations of the factors already used to calculate the [guidelines sentencing range].” According to Nieves, the district court “pointed to no particular characteristics of either the offense itself or [Nieves] that justified an upward variance.” Not so. The district court, before imposing this above-guidelines sentence, discussed not only the existence but also the nature of Nieves’s criminal history. See Del Valle-Rodríguez, 761 F.3d at 176 (“We have held that an upward variance may be justified by, say, a finding that the defendant’s criminal history score underrepresents the gravity of his past conduct, or by a finding that the [guidelines sentencing range] underestimates the likelihood of recidivism.” (citation omitted)); cf. United States v. Santa-Otero, 843 F.3d 547, 550-51 (1st Cir. 2016) (rejecting argument that district court double-counted factor where offense level accounted for mere possession of weapon yet district court based variance on circumstances attendant to that possession). The district court seemed particularly troubled that Nieves’s criminal history began at a young age and that the circumstances of the juvenile adjudication bore similarities to the circumstances of this case insofar as Nieves, when upset or emotional, resorted to aggression and violence. Additionally, the district court discussed the emotional injury suffered by the victim of the carjacking. Nieves does not explain how the guidelines sentencing range accounted for that factor.

Nor do we find persuasive Nieves’s argument that the district court abused its discretion by giving short shrift to the role of his youth in this offense and the juvenile offense. According to Nieves, although his counsel pointed to neuroscientific evidence that “an adolescent is prone to impulsive, rash behavior,” the district court “essentially gave this factor no weight in considering the sentence.” Yet the district court, before imposing its sentence, specifically noted Nieves’s age at the time of this, offense and the juvenile offense. Later, in response to the motion for reconsideration, the district court stated that — even assuming “his frontal lobe has not developed and he has not matured enough” — Nieves’s actions reflected not just a “lack of maturity” but also a “disregard for human life and disregard for others.” Thus, “[t]he defendant’s real complaint is not that the court overlooked [his youth] but that it weighed th[at] factorf ] less heavily than he would have liked.” Rivera-González, 776 F.3d at 50. However, “that type of balancing is, within wide limits, a matter for the sentencing court ... [and t]hose wide limits were not exceeded, or even closely approached, in this instance.” Id. (citations omitted).

D.

Finding no procedural missteps, we consider Nieves’s final argument that his sentence is substantively unreasonable. According to Nieves, his sentence lacks a “plausible rationale” because “[t]he court simply gave no reason specific either to [Nieves’s] history or to the crime itself that justified” the variance. We have already rejected this contention in finding that the district court gave reasons for its variance beyond those factored into the guidelines sentencing range calculation— namely, the particulars of Nieves’s criminal history as well as the emotional harm suffered by his victim. The district court’s articulation of those reasons was sufficiently clear, and it reflected a “plausible, albeit not inevitable, view of the circumstances sufficient to distinguish this case from the mine-run of cases covered by the [guidelines sentencing range].” Del Valle — Rodríguez, 761 F.3d at 177. We are satisfied that the district court’s upward variance of 9 months on top of a 41-to-51-month range constitutes a “defensible result” in these circumstances, see Martin, 520 F.3d at 96, and thus we find the sentence substantively reasonable.

III.

For the foregoing reasons, we affirm Nieves’s sentence.

      . Nieves’s plea agreement contains a waiver of appeal. The government agrees with Nieves that the waiver does not bar this appeal because the court did not sentence Nieves according to the agreement’s recommendations.

      . Nieves does not argue that the district court failed to resolve the dispute over this evidence or used an improper procedure to do so. See Fed. R. Crim. P. 32(i)(3); U.S. Sentencing Guidelines Manual § 6A1.3(a)-(b). We permit implicit reliability determinations as to the evidence considered at sentencing where the basis of the implicit determination is manifest. See United States v. Van, 87 F.3d 1, 3 (1st Cir. 1996) ("Although explicit resolution of disputed material facts is preferable, we have found that the court implicitly resolved the facts when the court's statements and the sentence imposed showed that the facts were decided in a particular way.”). Here, the district court expressly found that the statement tended to inculpate the codefendant and that it explained "how he was there and why he was there and how he got the vehicle.”


source: Caselaw Access Project

author: TORRUELLA, Circuit Judge.

license: Public Domain

text:
    Siny Van TRAN, Petitioner, Appellant, v. Gary RODEN, Respondent, Appellee. Nam the Tham, Petitioner, Appellant, v. Lisa A. Mitchell, Respondent, Appellee.
    No. 15-2133, No. 15-2134
    United States Court of Appeals, First Circuit.
    January 30, 2017

      Janet Hetherwick Pumphrey, Lenox, MA, for appellant Siny Van Tran. Robert F. Shaw, Jr., Cambridge, MA, with whom Law Offices of Robert F. Shaw, Jr. was on brief, for appellant Nam The Tham.
    Thomas E. Bocian, Assistant Attorney General, Criminal Bureau, with whom Maura Healey, Attorney General of Massachusetts, was on brief, for appellees Ro-den and Mitchell.
    Before TORRUELLA, THOMPSON, and KAYATTA, Circuit Judges.
   TORRUELLA, Circuit Judge.

Petitioners-appellants, Siny Van Tran (“Tran”) and Nam The Tham (“Tham”), contest the district court’s denial of their petitions for writs of habeas corpus under 28 U.S.C. § 2254. They argue that the Commonwealth of Massachusetts’s use of photocopies of United Airlines flight records' at their trials violated their Sixth Amendment Confrontation Clause rights, albeit for slightly different reasons. Tran contends that he had a right to confront someone who knew about United AMines’s procedures for verifying passenger identities at the time of the flight. Tham contends that he had a right to confront the person who created the records. After careful consideration, we affirm the district court’s denial of habeas corpus relief.

I. Background

On January 12, 1991, six men were shot, execution-style, in the basement of an illegal gambling club in Boston’s Chinatown district; only one survived the resulting injuries. Commonwealth v. Siny Van Tran, 460 Mass. 535, 953 N.E.2d 139, 145 (2011). According to the testimony of the surviving victim, Pak Wing Lee (“Lee”), and the proprietor of the gambling club, Yu Man Young, Tran arrived at the gambling club at approximately 2:30 a.m. with another one of the victims after they had both been drinking at a nightclub ‘ together. Tran soon left by himself, returned to the gambling club, and left again. Tran returned once again, this time with Tham and another man, Hung Tien Pham (“Pham”). All three had guns. Upon entering the club, they told everyone to stop moving and kneel down. Lee felt a gun placed to the back of his head, heard a bang, and lost consciousness. Two hours later, Lee regained consciousness and stumbled out of the building to find help. A young couple passing by saw him and flagged down a security guard at a nearby hospital. The security guard contacted two police officers who entered the gambling club and found five people dead, all with gunshot wounds to the head.

Arrest warrants were issued for Tran, Tham, and Pham after the shootings, but they had already left the United States. Authorities in China arrested Tran in 1999, and Tham in 2000. A grand jury in Massachusetts state court indicted Tran and Tham in 1999, and they were extradited from Hong Kong in December of 2001.

The Commonwealth jointly tried Tran and Tham in 2005. At trial, the Commonwealth sought to introduce a passenger manifest and ticket inquiry showing that on February 1, 1991 — three weeks after the gambling club shooting — passengers named Wah Tran, Nam The Tham, and Hung Tien Pham flew on United Airlines (“United”) from New York City to Hong Kong via Narita, Japan. The flight manifest — a computer-generated report created for the pilot and flight crew listing all of the passengers on a flight with each passenger’s seat number — showed that “Wah Tran” sat in seat 53F and “Nam The Tham” sat in seat 46J on a flight from New York to Narita and both passengers had a connecting flight to Hong Kong. The manifest also showed that someone named “Hung Tien Pham” was on the flight and that the passengers named Tran, Tham, and Pham had the same “group code,” meaning that they had purchased their tickets together. The ticket inquiry — a computer-generated report from United’s ticket database — showed that tickets for “Tran/Wah Mr.,” “Tham/Nam The Mr.,” and “Pham/Hung Tien Mr.” were purchased on the same date (January 30, 1991) and, based on their consecutive ticket information numbers, around the same time. An unidentified United employee gave the Boston police- the manifest and ticket inquiry on February 12,1991.

The Commonwealth argued that these records helped prove that Tran and Tham fled the country, and their flight was evidence of their consciousness of guilt. Both Tran and Tham sought to exclude the documents on the grounds that they were improperly authenticated, were inadmissible hearsay, and violated their Confrontation Clause rights. Their motions were ultimately denied, and the Commonwealth introduced the manifest and ticket inquiry as business records through the testimony of David Contarino (“Contarino”), the business manager of United in Boston. Contar-ino began working for United in 1999, and therefore was not a United employee at the time of the flight in question in 1991. Contarino authenticated the documents by stating that the passenger manifest and ticket inquiry contained almost the exact same identifying information that then-current United passenger manifests and ticket inquiries contained, and he described the various numbers and codes on each item. Contarino also testified that United created manifests and kept ticket information in the regular course of business. He stated that a United employee created a manifest before every flight to. give to the crew. Contarino further testified that United entered information about every ticket at the time of purchase and stored that information in order to comply with federal regulations and for “revenue collection from credit card companies.”

The jury convicted Tran and Tham of five counts of first-degree murder on theories of deliberate premeditation and extreme atrocity or cruelty, one count of armed assault with intent to murder, and one count of carrying a firearm without a license. Both petitioners were sentenced on the murder charges to five consecutive terms of life in prison. On the additional charges, they were both sentenced to an aggregate of twenty-four to twenty-five years to follow the consecutive life sentences.

Tran and Tham appealed their convictions to the Supreme Judicial Court of Massachusetts (“SJC”), asserting — among other issues — that the trial court erred in admitting the passenger manifest and ticket inquiry. In 2011, the SJC affirmed the convictions, stating that the “jury could rationally have concluded ... that the documents were authentic,” that the names on the documents were not hearsay because they “were not offered for their truth,” and that the documents were not testimonial for Sixth Amendment purposes and, thus, their rights under the Confrontation Clause had not been violated. Siny Van Tran, 953 N.E.2d at 152, 154-57.

Tran and Tham filed petitions for writs of habeas corpus with the district court in 2013. Petitioners argued that their incarcerations violated federal law in a number of ways, including that they were deprived of the federal constitutional right to confront the witnesses against them. The district court denied each petition and issued a certificate of appealability with respect to the Confrontation Clause claim. Their timely appeals followed.

II. Analysis

A. Antiterrorism and Effective Death Penalty Act Standards

We review petitioners’ claims under the deferential lens of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Under AEDPA, habeas relief will not be granted unless the state court’s adjudication of the claim on the merits “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” id. § 2254(d)(2); Zuluaga v. Spencer, 585 F.3d 27, 29 (1st Cir. 2009).

It is well established that

[a] state court decision is contrary to clearly established federal law if the state court applies a rule that contradicts the governing law set forth by the Supreme Court or confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a re-suit different from [its] precedent.'

Linton v. Saba, 812 F.3d 112, 122 (1st Cir. 2016) (alterations in the original) (citations and internal quotation marks omitted). “And a state court adjudication constitutes an unreasonable application [of clearly established federal law] if the state court identifies the correct governing legal principle from the Supreme Court’s then-current decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. (alteration in the original) (citations and internal quotation marks omitted).

“A state court’s determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of [the state court’s] decision.” Id. at 122-23 (alteration in the original) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)). “Thus, to obtain federal habeas relief, a petitioner must show ‘the state court’s ruling on the claim ... was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.’ ” Id. at 123 (quoting Harrington v. Richter, 562 U.S. 86, 103, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011)).

B. Petitioners’ Claims

Petitioners argue that the introduction of the flight manifest and ticket inquiry at trial violated their Confrontation Clause rights. Specifically, Tran argues that the admission of the flight manifest and ticket inquiry violated his Confrontation Clause right because he was not able to confront a witness who could testify that he and Tham were the individuals who boarded the United flight. Tran contends that the manifest and ticket inquiry contained two levels of hearsay: (1) the documents themselves were out-of-court statements made by whoever created them; and (2) the names of the passengers were recorded by an out-of-court declarant who, in turn, relied on the out-of-court statements of the passengers who gave their names. Tran argues that Contarino’s testimony did not address United’s procedures for verifying passengers’ identities in 1991 and therefore only cured the first level of hearsay. He claims that he had a right to confront someone who had personal knowledge about the accuracy of the names contained in the manifest given that, according to him, the Commonwealth relied on the documents for their truth — be., to prove that he was on the flight from Boston to Narita and Hong Kong.

Additionally, Tran argues that the SJC’s application of the facts was objectively unreasonable in holding that Contarino’s testimony properly authenticated the airline documents. According to him, the Commonwealth needed to produce a witness who could explain where the documents came from.

Tham makes a slightly different argument than Tran. Tham argues that the admission of the manifest and ticket inquiry was improper because he did not have an opportunity to confront the individual who produced those documents. Tham contends that the SJC had no way of knowing whether the documents were testimonial or not because of the lack of information presented about how they were produced; He notes that in the context of the Fifth Amendment’s right against self-incrimination, the production of records can be incriminating testimony. Tham argues that this rule applies in the Sixth Amendment context, and that the Commonwealth’s failure to present any evidence as to how the police obtained the documents or where they came from creates a Confrontation Clause violation.

C. Discussion

In this case, the SJC held that Tran and Tham’s Confrontation Clause rights were not violated because the manifest and ticket inquiry were neither testimonial nor offered for their truth. Siny Van Tran, 953 N.E.2d at 154-57. The SJC stated that the passenger manifest and ticket inquiry were admissible under the business records exception to the state rule against hearsay evidence, Mass. Gen. Laws ch. 233, § 78. Id. at 154. The SJC also con-eluded that the statements contained within these documents were not offered for their truth, but rather for a nonhearsay purpose — to show “that the statements were made by someone, even, perhaps, a person being untruthful, who held themselves out to be these men.” Id. at 155. The SJC also concluded that, based on Contari-no’s testimony and other circumstantial evidence introduced at trial, “the jury could rationally have concluded, applying a preponderance of the evidence standard, that the documents were authentic.” Id. at 152-53.

As to the confrontation challenge, the SJC noted that “the [Confrontation [C]lause guarantees a defendant the opportunity to confront any person, in the ‘crucible of cross-examination,’ whose ‘testimonial’ statements are introduced against him.” Id. at 156 (quoting Crawford v. Washington, 541 U.S. 36, 50-52, 61, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)). It stressed that “[i]t is the testimonial character of any item of evidence that triggers the confrontation right.” Id. (citing Meléndez-Díaz v. Massachusetts, 557 U.S. 305, 324, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009)). It further noted that, as “[t]he Supreme Court has stated: ‘[b]usiness and public records are generally admissible absent confrontation ... because — having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial— they are not testimonial.’ ” Id. (third alteration in the original) (quoting Meléndez-Díaz, 557 U.S. at 324, 129 S.Ct. 2527). Relying on these Supreme Court precedents, the SJC concluded that the passenger manifest and ticket inquiry were created . “for the administration of an entity’s affairs,” and not in anticipation of use at trial, as evidenced by Contarino’s testimony, and, thus, the documents were not testimonial and Tran and Tham’s Confrontation Clause rights had not been violated. Id. at 156-57 (quoting Meléndez-Díaz, 557 U.S. at 324, 129 S.Ct. 2527).

The district court determined that the SJC’s conclusion that the documents were not testimonial and, thus, petitioners’ Confrontation Clause rights were not implicated, was not an unreasonable application of Supreme Court precedent. Accordingly, it denied habeas relief.

We review the district court’s denial of habeas relief de novo. Sánchez v. Roden, 753 F.3d 279, 293 (1st Cir. 2014). The district court is not entitled to deference. Healy v. Spencer, 453 F.3d 21, 25 (1st Cir. 2006). Rather, we must “determine whether the habeas petition should have been granted in the first instance.” Sánchez, 753 F.3d at 293.

Because it is undisputed that the SJC ■properly recognized the controlling Supreme Court precedent, see Siny Van Tran, 953 N.E.2d at 156 (citing Crawford, 541 U.S. at 51-52, 61, 124 S.Ct. 1354; Meléndez-Díaz, 557 U.S. at 323-26, 129 S.Ct. 2527), the SJC’s determination that the admission of the airline records did not violate the Confrontation Clause will be upheld unless the SJC applied the principles of Crawford and Meléndez-Díaz in an objectively unreasonable manner. See Linton, 812 F.3d at 122.

As the SJC correctly noted, the Confrontation Clause applies only to evidence that is testimonial. Davis v. Washington, 547 U.S. 813, 823-25, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). The Supreme Court has defined a “core class” of testimonial statements as including affidavits, custodial examinations, or prior testimony without cross-examination. Crawford, 541 U.S. at 51, 124 S.Ct. 1354. Testimonial statements also include those made with “a primary purpose of establishing or proving past events potentially relevant to later criminal prosecution.” Bullcoming v. New Mexico, 564 U.S. 647, 659 n.6, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011) (quotations and brackets omitted). Generally, courts do not label business records as testimonial as long as they are not created for the purpose of prosecution. Meléndez-Díaz, 557 U.S. at 322-24, 129 S.Ct. 2527.

Here, the SJC could reasonably conclude that the manifest and ticket inquiry were not testimonial. Neither Tran nor Tham contend that the manifest or ticket inquiry fell within Crawford’s core class of testimonial documents. Rather, they focus their attacks on the documents’ purpose. Petitioners take issue with the documents’ unknown origin and argue that the Commonwealth failed to rule out the possibility that the manifest and ticket inquiry were created for the primary purpose of establishing past events relevant to a later criminal prosecution. They fail, however, to cite any on-point Supreme Court decisions stating that the unknown origin of otherwise standard business records makes those documents testimonial. See Hensley v. Roden, 755 F.3d 724, 732-33 (1st Cir. 2014), cert. denied, - U.S. -, 135 S.Ct. 964, 190 L.Ed.2d 852 (2015) (noting that the Supreme Court has declined to “produce an exhaustive classification of all conceivable statements ... as either testimonial or nontestimonial” (alteration in the original) (quoting Davis, 547 U.S. at 822, 126 S.Ct. 2266)); Nardi v. Pepe, 662 F.3d 107, 112 (1st Cir. 2011) (rejecting habeas petition arguing that forensic laboratory reports were testimonial and “stressing] the present uncertainty of the law”).

Contrary to petitioners’ contentions, Supreme Court precedent suggests that the manifest and ticket inquiries were not testimonial. Contarino testified that United kept both the manifest and ticket information in its ordinary course of business. Contrary to Tham’s argument, the act of an unknown United employee handing these documents to the police does not make them testimonial. After all, business records must be handed to either the police or the parties in order to be introduced at trial and the Supreme Court has explicitly held that ordinarily business records are not testimonial. Meléndez-Díaz, 557 U.S. at 324, 129 S.Ct. 2527; see also United States v. Fujii, 301 F.3d 535, 539 (7th Cir. 2002) (holding check-in and reservation records from Korean Airlines flight fit within business record exception and fact that “the information was printed out at the request of the INS does not deprive the printouts of its business-record character”).

Tham’s reliance on this court’s decision in United States v. Cameron, 699 F.3d 621 (1st Cir. 2012) — a circuit court case that post-dates the SJC’s 2011 opinion — is misplaced. Tham contends that Cameron supports his argument that the act of production can make evidence testimonial. In Cameron, Yahoo created reports whenever it suspected a user’s account contained child pornography. Id. at 628-29. This court held that the reports, although created in Yahoo’s ordinary course of business, were testimonial because the reports were always sent to the National Center for Missing and Exploited Children, “an organization that is given a government grant to forward any such reports to law enforcement.” Id at 644. In Cameron, it was not Yahoo’s act of turning the reports over to law enforcement that made the documents testimonial — it was that Yahoo created the documents for the primary purpose of turning them over. In Tran and Tham’s case, however, there is no evidence that the manifest and ticket inquiries were created for law enforcement. The production of the documents to the police does not change their primary purpose or make them testimonial.

Furthermore, Tran and Tham’s arguments relating to the origin of the manifest and ticket inquiry go to authentication and not the Confrontation Clause. Petitioners are correct that Contarino could not testify directly about the documents’ authenticity or whether they were at any point altered to contain petitioners’ names; he could testify only that they bore similar markings to genuine United manifests and ticket inquiries. Although the Supreme Court has forbidden a witness from testifying about “another’s testimonial statements,” Bullcoming, 564 U.S. at 662, 131 S.Ct. 2705 (emphasis added), as stated above, the manifest and ticket inquiry were not testimonial in. the first instance. Moreover, even for testimonial documents, the Supreme Court has not clearly stated which witnesses the prosecution must call in the chain of custody. See Meléndez-Díaz, 557 U.S. at 311 n.1, 129 S.Ct. 2527 (“[W]e do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case. ... ‘[G]aps in the chain [of custody] normally go to the weight of the evidence rather than its admissibility.’ ” (quoting United States v. Lott, 854 F.2d 244, 250 (7th Cir. 1988) (third alteration in the original))).

In light of the above, we conclude that the SJC’s decision did not contradict, nor was it an unreasonable application of, Supreme Court precedent.

III. Conclusion

Because the SJC did not rule “contrary to” or unreasonably apply “clearly established Federal law,” Linton, 812 F.3d at 122, we affirm the district court’s denial of Tran and Tham’s habeas corpus petitions.

Affirmed.

      . Because we must accept the findings of fact of the state court unless convinced by clear and convincing evidence they are in error, we recount the facts as found by the Supreme Judicial Court, and note supplementary facts from the record as such. Lynch v. Ficco, 438 F.3d 35, 39 (1st Cir. 2006) (quoting McCambridge v. Hall, 303 F.3d 24, 26 (1st Cir. 2002) (en banc)).

      . Pham has never been detained.

      . It is not disputed that Tran obtained a passport issued in the name of Wah Tran.

      . The trial court originally ruled in Tran and Tham’s favor, but the Corpmonwealth sought interlocutory review by the Supreme Judicial Court of Massachusetts. A single justice resolved the appeal and concluded that the manifest and ticket inquiry were admissible subject to the prosecution laying a proper foundation. The prosecution did so, and then the district court admitted the documents.

      . Because we conclude that the manifest and ticket inquiry were not testimonial, we do not need to reach petitioners’ additional argument that the documents constituted hearsay and they had the right to confront a witness who knew about United’s identification procedures in 1991. See United States v. Castro-Davis, 612 F.3d 53, 64 n.14 (1st Cir. 2010) (noting that "Crawford draws a distinction between testimonial and non-testimonial hearsay and applies only to the former category of statements” (quoting Horton v. Allen, 370 F.3d 75, 84 (1st Cir. 2004))).


author: LYNCH, Circuit Judge.

text:
    UNITED STATES EX REL. Alex BOOKER and Edmund Hebron, Relators, Appellants, State of California; State of Colorado; State of Connecticut; State of Delaware; State of Florida; State of Georgia; State of Hawaii; State of Illinois; State of Indiana; State of Louisiana; State of Maryland; State of Michigan; State of Minnesota; State of Montana; State of New Hampshire; State of New Jersey; State of New Mexico; State of New York; State of North Carolina; State of Oklahoma; State of Rhode Island; State of Tennessee; State of Texas; State of Wisconsin; Commonwealth of Massachusetts; Commonwealth of Virginia; District of Columbia, Plaintiffs, v. PFIZER, INC., Defendant, Appellee.
    No. 16-1805
    United States Court of Appeals, First Circuit.
    January 30, 2017

      Kevin J. Darken, Tampa, FL, with whom The Barry A. Cohen Legal Team, Thomas N. Burnham, Ann Arbor, MI, and Burnham International Law Office were on brief, for appellants.
    Kirsten V. Mayer, with whom Brien T. O’Connor, Emily J. Derr, Nicholas S. Bradley, and Ropes & Gray LLP, Boston, MA, were on brief, for appellee.
    Before LYNCH, STAHL, and BARRON, Circuit Judges.
   LYNCH, Circuit Judge.

On August 31, 2009, the pharmaceutical company Pfizer, Inc. settled various claims that it had violated the False Claims Act (“FCA”), 31 U.S.C. §§ 3729 et seq„ with the U.S. Department of Justice (“DOJ”). As part of that settlement, Pfizer entered into a Corporate Integrity Agreement (“CIA”) with the U.S. Department of Health and Human Services (“HHS”).

Less than a year after that settlement, relators Alex Booker and Edmund He-bron, two former Pfizer sales representatives, brought this qui tam action against Pfizer in federal district court, alleging it was on behalf of the United States, more than two dozen individual states, and the District of Columbia, and asserting that despite the settlement, Pfizer had continued to engage in conduct prohibited by the FCA and state analogues. None of the sovereigns elected to intervene.

Relators filed their original complaint on July 13, 2010 and amended it several times before the district court denied their motion for leave to file a sixth amended complaint. Primarily, they alleged that Pfizer had continued' to knowingly induce third parties to file false claims for payment for Pfizer drugs with government programs like Medicaid by (1) marketing the drug Geodon for off-label uses, in violation of sections 331 and 355 of the Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C. §§ 301 et seq.; and (2) paying kickbacks to doctors to compensate them for prescribing the drugs Geodon and Pristiq, in violation of the Anti-Kickback Statute (“AKS”), 42 U.S.C. § 1320a-7b(b), (g). Relators also alleged that Pfizer had violated the “reverse false claims” provision of the FCA, see 31 U.S.C. § 3729(a)(1)(G), by failing to pay the government money owed it under Pfizer’s CIA with HHS. Finally, relators alleged that Pfizer had violated the FCA’s anti-retaliation provision, see id. § 3730(h), by terminating Booker’s employment on January 6, 2010, purportedly in response to his alleged whistleblowing activities.

All of these claims were resolved against relators, one on a motion to dismiss and the rest on summary judgment. On March 26, 2014, the district court granted Pfizer’s motion to dismiss the claim under the reverse false claims provision (the “reverse FCA claim”) but allowed relators to proceed to discovery (with limits) on the other claims. See U.S. ex rel. Booker v. Pfizer, Inc. (“Booker I”), 9 F.Supp.3d 34, 50, 60-61 (D. Mass. 2014). On May 23, 2016, the district court granted Pfizer’s motion for summary judgment on the remaining claims. See U.S. ex rel. Booker v. Pfizer, Inc. (“Booker II”), 188 F.Supp.3d 122, 140 (D. Mass. 2016). Relators appeal the dismissal, the grant of summary judgment, and certain of the district court’s intervening discovery rulings. We affirm the district court’s merits decisions and find no error in its management of discovery.

We rely on the district court’s two thorough opinions for a basic recounting of the case. See Booker I, 9 F.Supp.3d 34; Booker II, 188 F.Supp.3d 122. We give only that background information needed for this appeal.

I. ANALYSIS

A. Appeal from Dismissal of Reverse FCA Claim

1. Appellate Jurisdiction

Pfizer wrongly suggests that we have no jurisdiction to review the district court’s March 26, 2014 order dismissing relators’ reverse FCA claim due to defects in relators’ notice of appeal. See Fed. R. App. P. 3(c)(1)(B) (a “notice of appeal must[] designate the judgment, order, or part thereof being appealed”). Specifically, we reject the contention that there is no jurisdiction because relators’ notice of appeal did not explicitly mention the dismissal order. While the notice did specify certain other orders issued by the district court, it also specified the court’s May 26, 2016 final judgment disposing of the case, and “it has been uniformly held that a notice of appeal that designates the final judgment encompasses not only- that judgment, but also all earlier interlocutory orders that merge in the judgment.” John’s Insulation, Inc. v. L. Addison & Assocs., Inc., 156 F.3d 101, 105 (1st Cir. 1998); see also Ocasio-Hernández v. Fortuño-Burset, 777 F.3d 1, 6 n.12 (1st Cir. 2015).

2. Merits of Dismissal of Reverse FCA Claim

We affirm the district court’s dismissal of relators’ reverse FCA claim on de novo' review, albeit on grounds different from those relied on by the district court. See Otero v. Commonwealth of P.R. Indus. Comm’n, 441 F.3d 18, 20 (1st Cir. 2006). We take no position on whether the district court’s reasoning was correct.

The reverse false claims provision of the FCA imposes liability on anyone who “knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay ... money ... to the Government.” 31 U.S.C. § 3729(a)(1)(G). The term “obligation” is defined by the statute as “an established duty, whether or not fixed, arising from an express or implied contractual ... relationship.” Id. § 3729(b)(3).

Relators’ reverse FCA claim was predicated on Pfizer’s alleged breach of its obligations under its August 31, 2009 CIA with HHS. The CIA imposed on Pfizer an ongoing duty to report its “probable” violations of the FCA to HHS. Specifically, the CIA defined as a “Reportable Event,” inter alia, “a matter that a reasonable person would consider a probable violation of ... laws applicable to any FDA requirements relating to the promotion of Government Reimbursed Products.” And the CIA provided that “[i]f Pfizer determines (after a reasonable opportunity to conduct an appropriate review or investigation of the allegations) ... that there is a Reportable Event, Pfizer shall notify [HHS] ... within 30 days after making the determination.” Elsewhere, the CIA stated that Pfizer’s failure to meet the “obligations ... set forth [above] may lead to the imposition of ... [a] Stipulated Penalty of $2,500 ... for each day Pfizer” is in breach. The CIA explained that, if HHS finds “that Pfizer has failed to comply with [the aforementioned] obligations,” and if HHS thereafter “determin[es] that Stipulated Penalties are appropriate, [HHS] shall notify Pfizer of ... [HHS’s] exercise of its contractual right to demand payment of the Stipulated Penalties.”

In their complaint, relators allege that a January 5, 2010 email sent by Booker to Pfizer’s Corporate Compliance Department, purportedly claiming that Booker’s manager was instructing his subordinates to engage in off-label promotion, constituted a “Reportable Event” under the CIA. Because. Pfizer did not report this email to HHS, relators allege, Pfizer illegally avoided its “obligation” to pay the CIA’s “stipulated penaltfy]” of $2,500 per day for failure to report a “Reportable Event.”

Pfizer argues — as it did before the district court — that relators fail to state a claim for reverse FCA liability because Booker’s email to the Corporate Compliance Department did not constitute a “Reportable Event.” Pfizer points out that the “CIA does not require Pfizer to report all complaints” it receives. Under the CIA, conduct becomes a “Reportable Event” only “if Pfizer determines,” after a chance to investigate, that the conduct is a “probable violation” of a specific class of laws. As Pfizer explains, nowhere in their much amended complaint do relators allege that Pfizer ever determined Booker’s complaint to be in any way credible and therefore a “Reportable Event.”

On the record in this case we affirm. We do not decide if, under the CIA, Pfizer’s authority to determine whether a “Reportable Event” occurred is subject to an implicit reasonableness limitation that prevents Pfizer from shutting its eyes to conduct that it abides but that a “reasonable person” would think is a “probable violation” of relevant law. Relators did not assert before the district court, nor do they assert on appeal, that the agreement should be construed that way and that Pfizer acted unreasonably in not determining that Booker’s complaint constituted a “Reportable Event,” so the point is waived. As relators fail to allege that Pfizer determined that a “Reportable Event” occurred, their complaint fails to state a claim for relief. We affirm the dismissal on that basis.

B. Appeal from Summary Judgment on the Remaining FCA Claims

Relators next appeal the district court’s grant of summary judgment for Pfizer on their off-label promotion and retaliation claims under the FCA. After reviewing those decisions de novo, “drawing all reasonable inferences in [relators’] favor,” Feliciano de la Cruz v. El Conquistador Resort & Country Club, 218 F.3d 1, 5 (1st Cir. 2000), we affirm both.

1. Off-Label Promotion FCA Claim

Relators sought to prove that after Pfizer resolved its FCA liability with the DOJ in 2009 for, inter alia, knowingly inducing false claims through off-label promotion in violation of 31 U.S.C. § 3729(a)(1)(A), Pfizer continued to induce false claims by promoting Geodon for three off-label uses. Those three uses were (1) as a treatment for children and adolescents, (2) as a bipolar maintenance monotherapy drug, and (3) as a treatment for any condition at excessive dosages. Without deciding whether relators had provided sufficient evidence of continued off-label promotion to survive summary judgment, see Booker II, 188 F.Supp.3d at 133 n.4, the district court concluded that relators’ proffer was fatally devoid of evidence that an “actual false claim” had resulted from any such promotion, id. at 129. We agree.

It is well settled that “[ejvidence of an actual false claim is ‘the sine qua non of a False Claims Act violation.’ ” U.S. ex rel. Karvelas v. Melrose-Wakefield Hosp., 360 F.3d 220, 225 (1st Cir. 2004) (citation omitted), abrogated on other grounds by Allison Engine, 553 U.S. 662, 128 S.Ct. 2123, 170 L.Ed.2d 1030. That is, even when a relator can prove that a defendant engaged in “fraudulent conduct affecting the government,” FCA liability attaches only if that conduct resulted in the filing of a false claim for payment from the government. Rost, 507 F.3d at 727. Because claims of fraud are involved, even at the pleading stage relators are required under Fed. R. Civ. P. 9(b) “to set forth with particularity [at least] the who, what, when, where, and how of’ an actual false claim alleged to have been filed because of the defendant’s actions. Lawton ex rel. U.S. v. Takeda Pharm. Co., 842 F.3d 125, 130 (1st Cir. 2016) (citations omitted). And at the summary judgment stage, relators must produce competent evidence of an actual false claim made to the government.

When FCA liability is predicated on a defendant’s alleged off-label promotion of drugs to medical providers, that generally means the “specific medical provider[ ] who allegedly submitted [the] false claim[], the rough time period! ], location!], and amount!] of the claim!], and the specific government program! ] to which the claim! ] [was] made.” Id. at 131 (citations omitted). This court has made clear that where relators offer only “aggregate expenditure data by the government for” the drug at issue, “with[out] identify[ing] specific entities who submitted claims ... much less times, amounts, and circumstances,” their claim falls “far short.” U.S. ex rel. Ge v. Takeda Pharm. Co., Ltd., 737 F.3d 116, 121, 124 (1st Cir. 2013). Relators argue that this is an impossible standard for qui tam relators to meet and that we should change our law. We disagree.

After six years of litigation, relators’ only proffered evidence of actual false claims was aggregate data reflecting the amount of money expended by Medicaid for pediatric Geodon prescriptions (an off-label use) between January 2008 and March 2012, according to the National Disease and Therapeutic Index’s survey research. See Booker II, 188 F.Supp.3d at 129-30. We have previously held comparable data insufficient on its own to support an FCA claim, even at the motion to dismiss stage. See, e.g., Lawton, 842 F.3d at 132; Ge, 737 F.3d at 124; cf. U.S. ex rel. Kelly v. Novartis Pharms. Corp., 827 F.3d 5, 13-14 (1st Cir. 2016) (“Merely alleging that a scheme was wide-ranging [and] that a [false] claim was presumably submitted ... will not suffice.”).

Ultimately, “summary judgment ... is ‘the put up or shut up moment in litigation,’ ” and a relator certainly must make a greater showing than is required in a pleading in order “to get in front of a jury.” Jakobiec v. Merrill Lynch Life Ins. Co., 711 F.3d 217, 226 (1st Cir. 2013) (quoting Goodman v. Nat’l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010)); see also U.S. ex rel. Quinn v. Omnicare Inc., 382 F.3d 432, 440 (3d Cir. 2004) (“Without proof of an actual claim, there is no issue of material fact to be decided by a jury. [Relator’s] theory that the claims ‘must have been’ submitted cannot survive a motion for summary judgment.”).

Relators rely on this court’s Neurontin cases for the proposition that their aggregate data is sufficient for them to establish that false claims were submitted. See In re Neurontin Mktg. & Sales Practices Litig. (Harden), 712 F.3d 60 (1st Cir. 2013), cert. denied, — U.S.-, 134 S.Ct. 786, 187 L.Ed.2d 594 (2013) (denying certiorari in all three Neurontin cases); In re Neurontin Mktg. & Sales Practices Litig. (Aetna), 712 F.3d 51 (1st Cir. 2013); In re Neurontin Mktg. & Sales Practices Litig. (Kaiser), 712 F.3d 21 (1st Cir. 2013). But in those cases, we held that plaintiffs could use aggregate data together with strong circumstantial evidence to overcome summary judgment on the distinct issue of whether there was a causal link between fraudulent marketing and demonstrated off-label prescriptions in the distinct context of a civil RICO case — not that such proof could be used to demonstrate the existence of false claims in an FCA case. See, e.g., Harden, 712 F.3d at 68. Relators’ data is woefully inadequate to support their FCA claim. We affirm entry of summary judgment for Pfizer on this core FCA argument.

2. Booker’s FCA Employment Retaliation Claim

Relators also contend that Pfizer terminated Booker’s employment on January 6, 2010 in retaliation for two instances in which Booker complained to his superiors that the company was continuing to promote Geodon for off-label uses after the settlement.

Under the FCA’s anti-retaliation provision, an employer is prohibited from retaliating against an employee for any “lawful acts done ... in furtherance of an [FCA] action ... or other efforts to stop ... violations of [the FCA].” 31 U.S.C. § 3730(h)(1). We have defined the type of conduct protected under this provision as “limited to activities that ‘reasonably could lead’ to an FCA action; in other words, investigations, inquiries, testimonies or other activities that concern the employer’s knowing submission of false or fraudulent claims for payment to the government.” Karvelas, 360 F.3d at 237 (citation omitted).

Relators rely on Booker’s deposition testimony about two instances in which Booker objected to directions from his supervisor, District Manager Jon Twidwell. Those directions, they say, were that Booker and other sales representatives promote sales based on Geodon’s effect on certain conditions, such as depression and overt anger, though Geodon is not FDA-approved for those uses. Booker II, 188 F.Supp.3d at 139.

We affirm the grant of summary judgment for Pfizer on this claim, but on different grounds than those relied on by the district court. See Tutor Perini Corp. v. Banc of Am. Sec. LLC, 842 F.3d 71, 84 (1st Cir. 2016) (“[W]e may affirm the summary-judgment holding on any grounds supported by the record, even if not relied on by the district judge.”). Even accepting that Booker’s objections to the directions were concerned with off-label promotion, such objections, without more, are not enough under Karvelas. See 360 F.3d at 237. Evidence that an employee objected to or reported receipt of instructions to promote a drug’s off-label use, absent any evidence that those objections or reports concerned FCA-violating activity such as the submission of false claims, cannot show at the summary judgment stage that the employee engaged in conduct protected by the FCA.

As we stated in Karvelas, the FCA protects only conduct that concerns the “knowing submission of false ... claims” because only such conduct “ ‘reasonably could lead’ to an FCA action.” 360 F.3d at 237; see also Rost, 507 F.3d at 727 (“FCA liability does not attach to violations of federal law[s] or regulations, such as marketing of drugs in violation of the FDCA, that are independent of any false claim [for payment filed with the government].”). Thus, we have rejected, at even the motion to dismiss stage, an FCA retaliation claim to the extent that it was based on an employee’s allegations that he had reported “to his superiors” that his employer was “failing] to meet regulatory standards ... required for reimbursement by Medicare and Medicaid.” Karvelas, 360 F.3d at 237. We held that the employee had not alleged protected conduct because he had alleged only that he reported “regulatory failures but ... not [that he] investigated] or reported] ... false ... claims knowingly submitted to the government.” Id. We reasoned that “[although ‘Correcting regulatory problems may be a laudable goal,’ ” those problems were “not actionable under the FCA in the absence of actual fraudulent conduct,” and so reporting them fell outside the purview of the FCA’s anti-retaliation provision. Id. (second alteration in original) (citations omitted). Other circuits agree. See, e.g., McKenzie v. Bell-South Telecomms., Inc., 219 F.3d 508, 516 (6th Cir. 2000) (“Although internal reporting may constitute protected activity, the internal reports must allege fraud on the government.”); U.S. ex rel. Yesudian v. Howard Univ., 153 F.3d 731, 740 (D.C. Cir. 1998) (“[It is not enough that] an employee[ ] investigated] ... his employer’s noncompliance with federal or state regulations. ... [T]he [employee’s] investigation must concern ‘false or fraudulent’ claims.” (citations omitted)); U.S. ex rel. Hopper v. Anton, 91 F.3d 1261, 1269 (9th Cir. 1996) (rejecting a retaliation claim where the relator “was not investigating fraud” or “trying to recover money for the government” but “was merely attempting to get [her employer] to comply with Federal and State regulations”).

Relators do not assert that the disagreements between Booker and his supervisor concerned the submission of false claims. They thus have no trial-worthy claim of retaliation under the FCA.

C. Discovery Rulings

Relators challenge the district court’s rulings on their two motions to compel the production of documents and their motion to defer summary judgment and compel further production under Fed. R. Civ. P. 56(d). We review a district court’s denial of both types of motions for abuse of discretion. See Wells Real Estate Inv. Tr. II, Inc. v. Chardon/Hato Rey P’ship, S.E., 615 F.3d 45, 58 (1st Cir. 2010) (motion to compel); Hicks v. Johnson, 755 F.3d 738, 743 (1st Cir. 2014) (Rule 56(d) motion). We intervene “only upon a clear showing of manifest injustice, that is, where the [district court’s decision] was plainly wrong and resulted in substantial prejudice.” Bogan v. City of Bos., 489 F.3d 417, 423 (1st Cir. 2007) (citation omitted). We find no error.

1. Motions to Compel

Relators challenge on appeal the district court’s handling of their two motions to compel in no more than a perfunctory one-paragraph section of their brief. They argue that the court denied both motions “wholesale,” “with the sole exception of ordering Pfizer to produce” one particular class of documents. The record flatly refutes the suggestion that the district court did not pay appropriate attention to rela-tors’ requests. The district court was admirably attentive to the many issues in this case. Relators rely on Danny B. ex rel. Elliott v. Raimondo, 784 F.3d 825 (1st Cir. 2015), and cite its statement that “a district court may not impose discovery restrictions that preclude a suitor from the legitimate pursuit of evidence supporting her cause of action.” Id. at 835.

Raimondo is inapposite. There, we found that the district court had abused its discretion when it upheld a magistrate judge’s protective order, which categorically precluded the plaintiffs from seeking “all policy or custom discovery.” Id. at 837. That suit was one “to impose liability upon official-capacity state defendants under section 1983,” and “[i]n such a suit, it is black letter law that the plaintiffs must prove that a policy or custom of the State contributed to the alleged violations of federal law in order to prevail.” Id. at 834. Thus, the district court had abused its discretion because it barred the plaintiffs from conducting any discovery germane to an essential element of their claim. Not so here.

2. Rule 56(d) Motion

Relators also challenge the district court’s denial of their Rule 56(d) motion to defer summary judgment on their AKS-based FCA claim until Pfizer produced a subset of the documents relators had sought in their second motion to compel. We put aside possible waiver by relators for failure to develop any legal argument on appeal and find no error.

“Rule 56(d) relief is not to be granted as a matter of course,” and a court “is. entitled to refuse a Rule 56(d) motion if it concludes that the [movant] is unlikely to garner useful evidence from supplemental discovery.” Hicks, 755 F.3d at 743. Relators were unable to uncover evidence' supporting any of the possible bases for their kickback claim after six years of investigating. See Booker II, 188 F.Supp.3d at 133-34. And a full year after the court denied their second motion to compel but invited them to proffer further support for their requests at the summary judgment stage, the district court found that relators could muster only “an anecdotal report of possibly coincidental changes in prescription trends” to justify their Rule 56(d) motion. Id. at 135 n.6. We cannot say that the court was “plainly wrong” to conclude that further discovery would likely be fruitless. See Bogan, 489 F.3d at 423.

II. CONCLUSION

The district court reached the proper outcome as to each of the merits issues before us on appeal, and we find no abuse of discretion in its management of discovery. We affirm the judgment in full. Costs are awarded to Pfizer.

      . Off-label uses of a drug that are medically "essential" or recognized in certain medical compendia, for which Medicaid does reimburse, see 42 U.S.C. § 1396r-8(a)(3), (g)(l)(B)(i), (k)(6), are not at issue in this case. See U.S. ex rel. Rost v. Pfizer, Inc., 507 F.3d 720, 723 n.1 (1st Cir. 2007), abrogated on other grounds by Allison Engine v. U.S. ex rel. Sanders, 553 U.S. 662, 128 S.Ct. 2123, 170 L.Ed.2d 1030 (2008).

      . The district court reasoned that relators failed to plead that Pfizer ever had an “obligation” to pay the government because they failed to plead that HHS exercised its right to demand payment under the CIA. Booker I, 9 F.Supp.3d at 50. Relators insist that an “obligation" to pay the government arises under the CIA as soon as HHS is entitled to demand payment and that they pled that Pfizer had such an obligation by virtue of pleading that Pfizer failed to report a Reportable Event. They note that two district courts have come to this conclusion as to when an "obligation” arises under CIAs materially identical to the one at issue here. See Ruscher v. Omnicare Inc., No. 4:08-CV-3396, 2014 WL 4388726, at *5-6 (S.D. Tex. Sept. 5, 2014); U.S. ex rel. Boise v. Cephalon, Inc., No. 08-287, 2015 WL 4461793, at *3-7 (E.D. Pa. July 21,. 2015).

      . The CIA also provided that “Pfizer shall submit to [HHS] annually a report [that] shall include,” inter alia, "a summary of Reportable Events ... identified.”

      . Nor did relators seek reconsideration after discovery.

      . Relators do not directly appeal the grant of summary judgment on their AKS-based FCA claim. Instead, they bring challenges to some of the district court’s discovery rulings that were germane to that claim. For reasons we explain later, those challenges fail.

      .Geodon is approved by the Food and Drug Administration ("FDA”) pursuant to the FDCA as a treatment for “schizophrenia, as monotherapy for the acute treatment of bipolar manic or mixed episodes, and as an adjunct to lithium or valproate for the maintenance treatment of bipolar disorder.”

      . As the district court noted, relators' proffer may have a further shortcoming. See Booker II, 188 F.Supp.3d at 130-31. Pfizer asserts, and relators do not dispute, that several state Medicaid programs do reimburse for the off-label uses of Geodon at issue here. Id. at 131. Thus, even accepting relators' aggregate data as proof that claims for reimbursement for off-label uses of Geodon were filed with a Medicaid program, relators’ inability to show that any such claim was filed in any non-reimbursing state might render them unable to demonstrate the falsity of any claim filed. Id.; see U.S. ex rel. Banigan v. Organon USA Inc., 883 F.Supp.2d 277, 294 (D. Mass. 2012) ("[I]f a state Medicaid program chooses to reimburse a claim for a drug prescribed for off-label use, then that claim is not ‘false or fraudulent,' and [FCA] liability cannot therefore attach [upon] reimbursement.”). However, whether state Medicaid programs actually have the discretion to reimburse for off-label uses of a drug under the Medicaid statute "is up for debate.” Id. Because we find that rela-tors' claim easily fails on other grounds, we leave this issue for another day.

      . While Karvelas interpreted this provision before it was amended to refer to "other efforts to stop ... violations of [the FCA],” rather than only "acts done ... in furtherance of an [FCA] action,” see Pub. L. No. 111-203, § 1079A(c), 124 Stat. 1376, 2079 (2010), that addition has no effect on Karvelas's application to this case. Courts have understood the amendment as having clarified that the provision covers not only steps in the litigation process, such as investigating or testifying, but also measures, such as internal reporting or objecting to employer directives, which might not be taken in direct furtherance of an actual lawsuit. See, e.g., Halasa v. ITT Educ. Servs., Inc., 690 F.3d 844, 847-48 (7th Cir. 2012); Miller v. Abbott Labs., 648 Fed.Appx. 555, 560 (6th Cir. 2016) (unpublished opinion). Karvelas construed the pre-amendment provision as covering such activities. See 360 F.3d at 238. And the amended provision maintains the requirement, noted in Karvelas, that even those activities must pertain to violations of the FCA, meaning the submission of false claims. See id. at 237.

      . The court concluded that the undisputed facts were that Booker had not in fact objected to off-label promotion. Booker II, 188 F.Supp.3d at 139. The court reasoned that the supposed "off-label conditions” at the center of Booker's protests — such as depression and overt anger — were actually either symptoms of conditions for which Geodon is an on-label treatment, like schizophrenia, or side effects associated with such on-label uses of the drug. Id. Thus, the court explained, when Booker objected to the directive to discuss them, he was objecting to a particular manner of purely on-label promotion, which, bearing no connection to the submission of false claims, could not reasonably lead to an FCA action. Id. at 140; see also Karvelas, 360 F.3d at 237. Relators say there is a dispute of material fact about this issue. Our ruling renders it immaterial.

      . Because relators lack evidence that Booker engaged in FCA-protected conduct, we do not reach Pfizer's alternative argument that relators’ retaliation claim fails, in any event, because they lack evidence that "Pfizer’s proffered nonretaliatory reason for firing Booker — his poor sales performance — was a pretext.” Booker II, 188 F.Supp.3d at 140; see also Harrington v. Aggregate Indus. Ne. Region, Inc., 668 F.3d 25, 31 (1st Cir. 2012). However, the ample evidence that Booker had a long history of negative performance reviews, had been placed on a series of remedial performance plans, and had been notified of his failure to comply with the requirements of his "Final” plan weeks before his termination' — coupled with relators' failure to argue this point in their opening brief — further supports our conclusion that relators’ retaliation claim is without merit.


author: BARRON, Circuit Judge.

text:
    Oral Agustas SWABY, Petitioner, v. Sally Q. YATES, Acting Attorney General of the United States, Respondent.
    No. 16-1821
    United States Court of Appeals, First Circuit.
    January 30, 2017

      Patrick N. Long, Dorchester, MA, on brief for petitioner.
    Jessica E. Burns, Washington,, DC, with whom Rachel L. Browning, Trial'Attorney,. Office of Immigration Litigation, U.S. Department of Justice, Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, and Keith McManus, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.
    Before BARRON, STAHL, LIPEZ, Circuit Judges.

       Pursuant to Fed. R. App. 43(c)(2), Sally Q. Yates, has been substituted for Loretta E. Lynch as Attorney General.

   BARRON, Circuit Judge.

Oral Swaby, a citizen of Jamaica, petitions for review of a decision of the Board of Immigration Appeals (“BIA”) affirming his order of removal and denying his request for cancellation of removal. We dismiss in part and deny in part the petition.

I.

Swaby lawfully entered the United States on a tourist visa in May 1996, and he adjusted to lawful permanent resident status on May 14, 2010. On September 4, 2013, Swaby pled nolo contendere in Rhode Island Superior Court to three counts of manufacturing, delivering, or possessing with intent to distribute a controlled substance — to wit, marijuana — in violation of Rhode Island General Laws Section 21-28-4.01(a)(4)(i). In consequence, on February 26, 2015, the Department of Homeland Security (“DHS”) served Swaby with a Notice to Appear (“NTA”). The NTA charged Swaby with removability under 8 U.S.C. § 1227(a)(2)(B)©.

That provision of federal immigration law authorizes the removal of an alien convicted of a violation of any federal or state law “relating to a controlled substance (as defined in section 802 of Title 21).” Section 802 of Title 21 limits the term “controlled substance” to a “drug or other substance” included in one of the five federal drug schedules. 21 U.S.C § 802(6).

Swaby initially chose to appear pro se before the Immigration Judge (“IJ”), whereupon Swaby admitted the allegations contained in the NTA, accepted an order of removal, and waived his right to appeal the IJ’s decision. But, on July 29, 2015, with the assistance of counsel, Swaby filed a motion to stay his removal and to reopen and terminate removal proceedings. He contended that, pursuant to Mellouli v. Lynch, — U.S.-, 135 S.Ct. 1980, 192 L.Ed.2d 60 (2015), which had been decided in January of that year, his Rhode Island convictions did not qualify as removable offenses under 8 U.S.C. § 1227(a)(2)(B)©. He also requested cancellation of removal based on a consideration of various equitable factors.

On August 26, 2015, the IJ determined that Swaby was removable under § 1227(a)(2)(B)®, notwithstanding the Supreme Court’s decision in Mellouli, and thus denied Swaby’s motion to terminate proceedings. The IJ did, however, grant Swaby’s motion to stay removal and reopen proceedings. Due to an oversight by DHS, Swaby was then removed to Jamaica in spite of the stay. After DHS located Swaby and returned him to the United States, the IJ denied Swaby’s request for cancellation of removal. Swaby appealed both rulings to the Board of Immigration Appeals (“BIA”), which, on May 24, 2016, affirmed them.

Swaby now petitions for review of the BIA’s decision. We have jurisdiction to review the BIA’s May 2016 decision to dismiss Swaby’s appeal of the IJ’s decision pursuant to 8 U.S.C. § 1252(a)(1) and § 1252(a)(2), which give the courts of appeals jurisdiction to review constitutional claims and questions of law raised upon a petition for review of a final order of removal against a noncitizen who is removable by reason of having committed a criminal offense covered in § 1227(a)(2)(B).

II.

As we have noted, the record shows that the “controlled substance” that Swaby was convicted of manufacturing, delivering, or possessing with intent to distribute was marijuana, which is listed on the federal controlled substances schedules. The BIA’s conclusion that Swaby’s state convictions qualified as convictions for predicate offenses under § 1227(a)(2)(B)(i) may thus seem to be a straightforward one. But, it is not. The reason is that, consistent with Mellouli, the BIA applied what is known as the “categorical approach” to determining whether a state conviction qualifies under § 1227(a)(2)(B)®. See Mellouli, 135 S.Ct. at 1986. And the application of the categorical approach to the facts of this case presents some complications.

The complications have to do with the breadth of the Rhode Island drug schedules — and thus with the breadth of the Rhode Island crime at issue. Specifically, the Rhode Island drug schedules included at the relevant time at least one drug— thenylfentanyl — not listed on the federal drug schedules. Compare R.I. Gen. Laws § 21-28-2.08(e)(13), with 21 C.F.R. § 1308.11-1308.15. As a result, Rhode Island General Laws Section 21-28-4.01(a)(4)® applied more broadly than the federally defined predicate offense set forth in § 1227.

The breadth of the Rhode Island offense potentially matters because Mel-louli makes clear that the categorical approach “looks to the statutory definition of the offense of conviction, not to the particulars of the alien’s behavior.” 135 S.Ct. at 1986. Accordingly, under § 1227, a “state conviction triggers removal only if, by definition, the [state] underlying crime falls within a category of removable offenses defined by federal law.” Id. Thus, it would appear that, under the categorical approach, this state law offense did not fall within the federal predicate. offense set forth in § 1227, given that the state law offense had a broader scope of application due to the broader sweep of the state drug schedules.

Nevertheless, the BIA ruled that the breadth of the Rhode Island offense was of no moment under the categorical approach. The BIA did so based on its decision in Matter of Ferreira, 26 I. & N. Dec. 415 (BIA 2014). There, the BIA ruled that, under Gonzales v. Duenas-Alvarez, 549 U.S. 183, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007), a noncitizen must show that there is a “realistic probability” that the state actually would prosecute cases involving any substances listed on state drug schedules that are not listed on the federal schedules. Id at 421-22. Absent that showing, the BIA held, the state controlled substances offense should be treated as if it did fall within the federally defined crime under § 1227(a)(2)(B)®, as the seemingly problematic sweep of the state crime would then be more theoretical than real. Id. at 419.

Deploying this same logic, the BIA explained in this case that Swaby had failed to show that there was a realistic probability that Rhode Island would actually prosecute offenses under Rhode Island General Laws Section 21-28-4.01(a)(4)(i) for the-nylfentanyl, the one drug listed on the state schedules but not the federal ones. The BIA thus concluded that, under Matter of Ferreira, Swaby’s convictions were for a crime that fell within the federally defined offense, notwithstanding that the state crime did appear to apply more broadly than the federally defined offense. For that reason, the BIA concluded that Swaby’s convictions qualified as removable offenses under the categorical approach.

Swaby contends on appeal that Duenas-Alvarez does not support the BIA’s conclusion. And we agree. Duenas-Alvarez made no reference to the state’s enforcement practices. It discussed only how broadly the state criminal statute applied. In doing so, Duenas-Alvarez does make clear that to find that a state statute proscribes a broader range of conduct than a federal crime “requires more than the application of legal imagination to a state statute’s language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside” the federal definition of the crime. Duenas-Alvarez, 549 U.S. at 193, 127 S.Ct. 815. But, that sensible caution against crediting speculative assertions regarding the potentially sweeping scope of ambiguous state law crimes has no relevance to a case like this. The state crime at issue clearly does apply more broadly than the federally defined offense. Nothing in Duenas-Alvarez, therefore, indicates that this state law crime may be treated as if it is narrower than it plainly is. Nor are we aware of any circuit court case, whether from this circuit or from any other, that supports the BIA’s surprising view that, in applying the categorical approach, state law crimes should not be given their plain meaning.

Simply put, the plain terms of the Rhode Island drug schedules make clear that the Rhode Island offense covers at least one drug not on the federal schedules. That offense is simply too broad to qualify as a predicate offense under the categorical approach, whether or not there is a realistic probability that the state actually will prosecute offenses involving that particular drug. See Mellouli, 185 S.Ct. at 1986.

III.

The government does make a fallback argument, in which it asks us to uphold the BIA’s decision on a different ground. The government argues that, under what is known as the “modified categorical approach,” Swaby’s state law convictions do qualify as predicates for removal under § 1227(a)(2)(B)(i), even if they do not qualify under the categorical approach itself.

In pressing this argument, the government points out that, as Mellouli itself makes clear, the categorical approach gives way to the “modified categorical approach” when the state law offense “eon-tain[s] several different crimes, each described separately.” Mellouli, 135 S.Ct. at 1986 n.4 (quoting Moncrieffe v. Holder, — U.S. -, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013)). In such cases, “a court may determine which particular offense the noncitizen was convicted of by examining the charging document and jury instructions, or in the case of a guilty plea, the plea agreement, plea colloquy, or some comparable judicial record of the factual basis for the plea.” Moncrieffe, 133 S.Ct. at 1684 (internal quotation marks omitted). And, in cases of that sort, if the adjudicator can determine from those records the particular state law offense for which the noncitizen was convicted, then the adjudicator need only determine whether that particular state law offense falls within the predicate federal offense , under § 1227(a)(2)(B)(i). See Mellouli, 135 S.Ct. at 1986 n.4.

The government contends that we should apply the modified categorical approach to Rhode Island General Laws Section 21-28-4.01(a)(4)(i). The government contends that this state statute does not set out one overarching offense covering all “controlled substances” on the state schedules. Rather, in the government’s view, this state law offense creates distinct state law crimes for each distinct drug listed on the state drug schedules. From that premise, the government then argues that Swaby’s actual crime of conviction falls within the federally defined removable offense under § 1227(a)(2)(B)(i) because the relevant plea documents make clear that Swaby’s convictions were for manufacturing, delivering, or possessing with intent to distribute marijuana, a drug that is listed on the federal drug schedules.

Swaby’s sole response is that Rhode Island law does not make the particular listed drug involved in the commission of an offense under Rhode Island General Laws Section 21-28^.01(a)(4)(i) an element of that offense. Rather, Swaby contends, the listed drugs merely set forth the means by which the broader crime of manufacturing, delivering, or possessing with intent to distribute a “controlled substance” may be committed. He thus contends that the modified categorical approach has no application. But we do not agree.

In Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 2256-57, 195 L.Ed.2d 604 (2016), the Supreme Court recently provided guidance about how to resolve the elements versus means issue that determines whether the modified categorical approach applies to a state criminal statute. And here the factors Mathis instructs us to consider lead us to reject Swaby’s view.

We start with how the Rhode Island Supreme Court has construed the offense. See Mathis, 136 S.Ct. at 2256 (explaining that the “threshold inquiry — elements or means? — is easy” where “a state court decision definitively answers the question”). In State v. Feng, 421 A.2d 1258 (R.I. 1980), the Rhode Island Supreme Court expressly described the particular type of controlled substance listed in the state drug schedules as an element of an offense under Rhode Island General Laws Section 21-28-1.01, rather than merely as a possible means by which the offense may be committed. Feng did so in the course of deciding whether there was a sufficient factual basis to support a guilty plea to the charge of possession of “a controlled substance to wit, Lysergic Acid Dithylamide [LSD]” under Rhode Island General Laws Section 21-28-4.01.

Feng explained that a Rhode Island trial court can establish an adequate factual basis for a plea by reading the indictment to the defendant, but only if, among other things, “the elements of the crime are clearly set out.” Id. at 1270 (quoting Seiller v. United States, 544 F.2d 554, 565 (2d Cir. 1975)). Yet, Feng noted, in the case at hand, the trial judge had “merely summarized the charge as ‘knowledge and intent to possess a controlled substance.’ ” Id. at 1270-71. Feng then ruled that this summary did not suffice to supply the factual basis for the guilty plea precisely because the “[rjeference to ‘a controlled substance’ does not by itself set out the elements of the offense of possession of the particular controlled substance LSD.” LI at 1271. Moreover, other Rhode Island Supreme Court decisions accord with Feng’s description of the drug’s type as an element of the offense. See State v. Mendez, 116 A.3d 228, 239 (R.I. 2015) (jury instructions for the crime of possession of a controlled substance specified that “the State must show that the defendant possessed the controlled substance in question”); State v. Jenison, 442 A.2d 866, 875 (R.I. 1982) (possession of a controlled substance requires “intentional control of the designated substance with knowledge of its nature” (emphasis added) (punctuation and citation omitted)).

Our conclusion that this state law crime is divisible by the type of drug also accords with the face of the statute, which is not drafted merely “to offer ‘illustrative examples,’ ” Mathis, 136 S.Ct. at 2256, but instead assigns “different punishments,” id. based on the class of a drug, and then “exhaustively]” lists the individual drugs by type on the state drug schedules. Feng, 421 A.2d at 1271; see R.I. Gen. Laws § 21-28-4.01(a)(4). This feature of the Rhode Island statute, under Mathis, also points in favor of the conclusion that the offense sets out distinct crimes based on drug type. Mathis, 136 S.Ct. at 2256.

Finally, Mathis explains that, even where “state law fails to provide clear answers, federal judges have another place to look: the record of a prior conviction itself.” Mathis, 136 S.Ct. at 2256. “[A]n indictment and jury instructions could indicate, by referencing one alternative term to the exclusion of all others, that the statute contains a list of elements, each one of which goes toward a separate crime.” Id. at 2257. And the indictment in Swaby’s case did exactly this, specifying that Swaby manufactured, delivered, or possessed with intent to distribute “a controlled substance, to wit, [m]arijuana.”

Our determination that the statute is divisible by drug type, moreover, comports with the rulings of several of our sister circuits, which have relied on similar considerations in applying the modified categorical approach to other state controlled substance- statutes. See United States v. Henderson, 841 F.3d 623, 629 (3d Cir. 2016); Carcamo v. Lynch, 648 Fed.Appx. 306, 311-12 (4th Cir. 2016); Ruiz-Giel v. Holder, 576 Fed.Appx. 738, 743-44 (10th Cir. 2014). In fact, we are aware of no case holding otherwise.

Accordingly, we conclude that the modified categorical approach does apply. And Swaby does not dispute that, under the modified categorical approach, the relevant plea documents suffice to make clear that Swaby’s convictions were for the manufacturing, delivering, or possessing with intent to distribute marijuana. We thus conclude that Swaby’s convictions clearly do “relat[e] to a controlled substance (as defined in [the federal drug schedules]),” just as § 1227(a)(2)(B)® requires. Accordingly, we deny Swaby’s petition for review of the BIA’s decision that Swaby had committed a removable offense.

IV.

Swaby next challenges the denial of his motion for cancellation of removal, a discretionary form of relief that may be granted when positive factors weighing against removal outweigh negative factors that counsel in favor of removal. See 8 U.S.C. § 1229b(a); Matter of C-V-T-, 22 I. & N. Dec. 7, 10-12 (BIA 1998). Swaby recognizes that “[cancellation of removal is a form of discretionary relief over which we generally have no appellate jurisdiction,” unless a petitioner raises “at least a colorable constitutional claim or question of law.” Elysee v. Gonzales, 437 F.3d 221, 223 (1st Cir. 2006). He thus seeks to frame his challenges ás ones that identify a legal error rather than a questionable exercise of discretion.

We review questions of law de novo, though we accord “some deference to the BIA’s interpretation of the statutes and regulations that come within its purview.” Mendez-Barrera v. Holder, 602 F.3d 21, 24 (1st Cir. 2010). And when the BIA adopts and affirms an IJ’s decision, as the BIA did here, we review the IJ’s decision “to the extent of the adoption, and the BIA’s decision as to [any] additional ground.” Sunoto v. Gonzales, 504 F.3d 56, 59-60 (1st Cir. 2007) (quoting Berrio-Barrera v. Gonzales, 460 F.3d 163, 167 (1st Cir. 2006)).

With that background in place, we turn now to the first of Swaby’s challenges. Swaby contends that the IJ erred as a matter of law in balancing the positive and negative factors in this case by impermissi-bly considering as a negative factor the fact that Swaby’s five children have five different mothers. Swaby contends in this regard that, under Matter of C-V-T-, the only negative factors an IJ may consider are the noncitizen’s immigration and criminal records and matters pertaining to them.

In fact, Matter of C-V-T- is not so strict. 22 I. & N. Dec. at 11 (explaining that noncitizens’ immigration and criminal records are “[a]mong the factors deemed adverse” to them, but so too is “the presence of other evidence indicative of a respondent’s bad character or undesirability as a permanent resident of this, country”). But, of more significance here, the IJ recognized that the fact that Swaby has five children in the United States was a positive factor. The IJ thus referenced the fact that Swaby’s children had different mothers not as a negative factor but only in the course of evaluating the strength of Swa-by’s ties to those children. The evaluation of the strength of those ties falls well within the IJ’s discretion to assess the strength of a positive factor. There is thus no basis in the record for Swaby’s assertion of legal error.

Swaby next contends that the IJ erred by “entirely failing] to consider” the hardship that would befall two of Swaby’s children if Swaby were removed. This contention fails to present a colorable legal challenge- over which we have jurisdiction. For even if a complete failure to consider such hardship constitutes a legal error, cf. Elysee, 437 F.3d at 223-24 (holding that a petition for review based on “the IJ’s supposed ‘complete[ ] disregard[ ]’ for the hardships that will be faced by [petitioner’s] children if he is deported” raised no question of law); Mele v. Lynch, 798 F.3d 30, 32 (1st Cir. 2015) (“[Wjhere Congress has enacted a jurisdictional wall, an alien cannot scale it simply ‘by relitigat[ing] whether the factors relevant to [the] discretionary relief were appropriately weighed by the IJ and the BIA.’ ” (quoting Urizar-Carrascoza v. Holder, 727 F.3d 27, 32 (1st Cir. 2013) (modifications in original))), there is no colorable argument that such a failure occurred here.

The record reveals that the IJ identified hardship to Swaby’s family as a positive factor and considered all of the exhibits that Swaby submitted, including Swaby’s affidavit and affidavits from family members and friends, as well as Swaby’s testimony, noting that Swaby had expressed “particular concern” about the hardship that would befall one of Swaby’s children. The IJ then stated that it had weighed the positive factors against the negative factors. No more was required. See Telyatitskiy v. Holder, 628 F.3d 628, 631 (1st Cir. 2011) (holding that where “[t]he record reveals that the IJ considered the totality of the evidence presented,” the IJ does not err “merely by failing to address specifically each piece of evidence the petitioner presented”). For these reasons, Swaby’s petition for review of the IJ’s denial of Swaby’s request for cancellation of removal is dismissed.

Y.

In light of the foregoing, the petition for review is denied in part and dismissed in part.

      . We note, though, that Rhode Island has retained thenylfentanyl on Schedule I despite enacting other amendments to that drug schedule in 2012, 2013, and 2014. See 2012 R.I. Pub. Laws ch. 415, § 36; 2013 R.I. Pub. Laws ch. 404, § 1; 2014 R.I. Pub. Laws ch. 71, § 1.

      . See United States v. Fish, 758 F.3d 1, 6 (1st Cir. 2014) (noting, outside the context of § 1227, but with reference to the categorical approach more generally, that “a state's definition of a crime is overbroad if its elements allow for a conviction without satisfying the elements Congress has provided to define the required predicate offense” (emphasis added)); see also United States v. Aparicio-Soria, 740 F.3d 152, 158 (4th Cir. 2014) (en banc) ("We do not need to hypothesize about whether there is a 'realistic probability' that Maryland prosecutors will charge defendants engaged in [the broader conduct]; we know that they can because the state's highest court has said so.” (emphasis added)); Ramos v. U.S, Att'y Gen., 709 F.3d 1066, 1071-72 (11th Cir. 2013) (Duenas-Alvarez does not require showing that the state "would use the [state] statute to prosecute conduct falling outside the generic definition ... when the statutory language itself, rather than 'the application of legal imagination’ to that language, creates the 'realistic probability’ that a state would apply the statute to conduct beyond the generic definition”); Jean-Louis v. Att'y Gen., 582 F.3d 462, 481 (3d Cir. 2009) (finding the “realistic probability” test inapplicable where the statute's "elements .... are clear, and the ability of the government to prosecute a defendant under [the statute] is not disputed”); United States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007) (en banc) (“Where, as here, a state statute explicitly defines a crime more broadly than the generic definition, no ‘legal’ imagination' is required to hold that a realistic probability exists that the state will apply its statute to conduct that falls outside the generic definition of the crime. The state statute's greater breadth is evident from its text.” (quoting Duenas-Alvarez, 549 U.S. at 193, 127 S.Ct. 815)).

      . In reaching this conclusion, Feng elaborated:
      Reference to "a controlled substance” does not by itself set out the elements of the offense of possession of the particular controlled substance LSD. The list of controlled substances contained' in chapter 28 of title 21 is exhaustive. Unlawful possession of more than one controlled substance constitutes a separate offense for each such substance possessed. We note also that at the time of Feng’s arrest, several controlled substances were seized from his dormitory room, and the indictment itself charged Feng with possession of another controlled substance — cocaine. In light of the wide range of substances classified as "controlled”, we conclude that the trial justice's summary of the charge did not constitute a straightforward statement of the facts underlying the offense of possession of LSD.
      Feng, 421 A.2d at 1271.

      . Swaby does cite to two Massachusetts cases that construe that state’s controlled substances criminal statute and that he contends, by analogy, support his view that this Rhode Island controlled substances law is not divisible with respect to the type of controlled substance. But, in addition to the fact that those cases do not construe Rhode Island law, they also establish only that a defendant need not know the particular identity of the controlled substance. They do not address whether the government must prove the identity of the particular controlled substance. Commonwealth v. DePalma, 41 Mass.App.Ct. 798, 673 N.E.2d 882, 884 (1996); Commonwealth v. Rodriguez, 415 Mass. 447, 614 N.E.2d 649, 653 (1993). And other Massachusetts cases appear to establish that the government actually must do so. See Commonwealth v. Vasquez, 456 Mass. 350, 923 N.E.2d 524, 534 (2010); Commonwealth v. McGilvery, 74 Mass.App.Ct. 508, 908 N.E.2d 783, 787 (2009).

      . Although the IJ originally denied Swaby’s motion to terminate proceedings based on its application of the modified categorical approach, the BIA did not affirm the IJ's order on that ground. Ordinarily, we would not uphold an agency’s decision on grounds that the agency did not itself supply. See SEC v. Chenery Corp., 332 U.S. 194, 67 S.Ct. 1760, 91 L.Ed. 1995 (1947). We do so here, however, because the parties agree, that no purpose would be served by remanding this case to the agency to apply the modified categorical approach given that, as a matter of law, the modified categorical approach dictates the outcome, just as the IJ had ruled. See NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766 n.6, 89 S.Ct. 1426, 22 L.Ed.2d 709 (1969) (remand not required where it would be an “idle and useless formality”)-