author: EDITH H. JONES, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee v. Edgar SHAKBAZYAN, Defendant-Appellant
    No. 15-20426
    United States Court of Appeals, Fifth Circuit.
    Filed October 26, 2016

      Francesco Valentini, U.S. Department of Justice, Criminal Division, Appellate Section, Washington, DC, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney’s Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.
    Mark J, Geragos, Geragos & Geragos, A.P.C., Los Angeles, CA, for Defendant-Appellant.
    Before REAVLEY, DAVIS, and JONES, Circuit Judges.
   EDITH H. JONES, Circuit Judge:

For the 39 days that it was open in 2009, a small Houston clinic accomplished a lot. It claimed to treat 429 Medicare “beneficiaries,” submitted approximately 9,300 claims to Medicare, and billed Medicare for $2.1 million. The clinic, however, was a sham. A vehicle full of “patients” would arrive at the clinic each day. The driver was paid to transport them, and the “beneficiaries” were paid to visit the clinic. After acquiring their Medicare information, the clinic would charge Medicare for thousands of procedures that were either unnecessary or never performed.

The Government prosecuted several individuals involved in the enterprise, including defendant-appellant - Edgar Shakbaz-yan, the prime mover behind the scheme. Shakbazyan pled guilty to a multi-count indictment .and, pursuant to sentence enhancements under the 2009 Sentencing Guidelines, was sentenced to 97 months of imprisonment.

In this appeal, Shakbazyan challenges his sentence, arguing, among other things, that the district court erred in applying the 2009 Guidelines, because only one of the counts involved criminal conduct that occurred after the effective date of the 2009 Guidelines. He asserts that the use of the 2009 Guidelines to enhance his sentence violates the Ex Post Facto Clause. Finding no merit to any of his claims, we AFFIRM;

I. BACKGROUND

A grand jury returned a superseding indictment that charged Shakbazyan with 21 counts related to Medicare fraud: (1) one count of conspiracy to commit health care fraud “involving 429 patients” under 18 U.S.C. § 1349 (Count 1); (2) 19 counts of health care fraud under 18 U.S.C. § 1347 (Counts 2 through 20); and (3) one count of conspiracy to violate the anti-kickback provisions of 18 U.S.C. § 371 (Count 21). Count 1 alleged an ongoing conspiracy between “in or about April[] 2009” and “in or about February[ ] 2010.” In particular, Count 1 alleged an unindict-ed co-conspirator wired $9,700 to another co-conspirator on February 19, 2010. By contrast, the remaining 20 counts covered conduct that occurred between June 2009 and August 2009. Thus, Count 1 alone extended to February 2010.

These time periods are important in Shakbazyan’s view because a definition of “victim” was amended in the 2009 Sentencing Guidelines, which became effective on November 1, 2009. Section 2Bl.l(b)(2)(C) of both the 2008 and 2009 Guidelines provided a '6-level sentencing enhancement where the offense “involved 250 or more victims.” See U.S. Sentencing Guideline's Manual § 2Bl.l(b)(2)(C) (U.S. Sentencing Comm’n 2008); U.S. Sentencing Guidelines Manual § 2Bl.l(b)(2)(C) (U.S, Sentencing Comm’n 2009) [hereinafter U.S.S.G.]. But the definitions of “victim” in the commentary differed. The 2008 commentary defined victim as “(A) any person who sustained any part of the actual loss ...; or (B) any individual who sustained bodily injury as a result of the offense.” U.S.S.G. § 2B1.1 cmt. n.l (2008). The 2009 commentary added a new note for purposes of the definition of “victim:” “[I]n a case involving means of identifieation[,] ‘victim’ means (i) any victim as defined in Application. Note 1 [the 2008 definition]; or-(ii) any individual whose means of identification was used unlawfully or without authority.” U.S.S.G. § 2B1.1 cmt. n.4(E) (2009) (emphasis added).

The amendment features prominently in this case because the presentence report (PSR) based Shakbazyan’s recommended sentence on the 2009- Guidelines. Ordinarily, the version - of the Guidelines in effect on the date of sentencing is the controlling version, see- U.S.S.G. § lBl.ll(a)-(b), unless doing so would violate the Ex Post Facto Clause. See id. § lBl.ll(b)(l). Further, the Guidelines’ “one-book rule” forbids piecemeal application of the Guidelines, requiring instead that only one version of the Guidelines be used. See id. § lBl.ll(b)(2). The PSR stated that applying the current Guidelines would violate the Ex Post Facto Clause because a post-offense amendment enhanced health care fraud computations. Thus, the PSR used the 2009. Guidelines—the version in effect on the date the last offense of conviction (the Count 1 conspiracy offense) was committed. The PSR, therefore, used the 2009 definition of “victim” and recommended a 6-level enhancement on the understanding that the fraud involved 250 or more “victims”—429 Medicare beneficiaries whose identifying information was used “Unlawfully.” With that 6-level enhancement, Shakbazyan’s total offense level was 30 with a criminal history category of I, and his range of imprisonment was 97 to 121 months. Without the 6-level enhancement, his range of imprisonment would have been 51 to 63 months.

Shakbazyan objected to the 6-level enhancement on the ground that using the 2009 definition of “victim” to enhance his sentence on Counts 2 through 21 violated the Ex Post Facto Clause. The district court overruled this objection, among others, and sentenced Shakbazyan to 97 months of imprisonment. Shakbazyan timely appealed.

II. ANALYSIS

A. Standard of Review

“We review a district court’s sentencing decision for abuse of discretion.” United States v. Pringler, 765 F.3d 445, 451 (5th Cir. 2014). However, we “review[ ] the district court’s interpretation and application of the Sentencing Guidelines de novo.” Id. (italics added). And, “when faced with a preserved constitutional challenge to the Guidelines’ application, our review is de novo.” United States v. Preciado-Delacruz, 801 F.3d 508, 511 (5th Cir. 2015).

B. Ex Post Facto Clause

Shakbazyan’s principal argument is that using the 2009 Guidelines definition of “victim” to enhance his sentence violates the Ex Post Facto Clause. That argument is foreclosed by our precedent.

The provision that “[n]o ... ex post facto Law shall be passed,” U.S. Const, art. I, § 9, cl. 3, includes “[e]very law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.” Peugh v. United States, — U.S. -, 133 S.Ct. 2072, 2077-78, 186 L.Ed.2d 84 (2013) (quoting Calder v. Bull, 3 Dali. 386, 390, 1 L.Ed. 648 (1798)). The motivating concern in this category of ex post facto violations “is not an individual’s right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.” Weaver v. Graham, 450 U.S. 24, 30, 101 S.Ct. 960, 965, 67 L.Ed.2d 17 (1981).

Shakbazyan concedes, as he did below, that the 2009 definition of “victim” “can technically be applied to Count 1 which alleges conduct that occurred post November of 2009, in February of 2010.” He does not challenge the Guidelines’ one-book rule that requires one version of the Guidelines to be applied to all grouped counts, and he does not claim that the 21 counts were improperly grouped together. Nor does he allege that the post-Novembér 1, 2009 conspiratorial conduct cannot be imputed to him. His complaint, however, is that the “expanded definition of victim was not in effect during the [periods covered by] Counts 2 through 21 of the Indictment.” In his view, using the 2009 definition of “victim” to enhance his sentence constitutes “an increased retroactive punishment” and thus an Ex Post Facto Clause violation.

This court, along with’ eight other circuits, has previously rejected Shakbaz-yan’s argument. In United States v. Kimler, 167 F.3d 889 (5th Cir. 1999), the court held that “where a sentencing court groups offenses committed before a change in the sentencing guidelines with offenses after the amendment, and then applies the amended guideline in determining a defendant’s appropriate sentence, the Ex Post Facto' Clause is not implicated.” Id. at 893 (italics added). Given the Guidelines’ one-book rule and grouping rules, “a defendant has notice that the version of the sentencing guidelines in effect at the time he committed the last of a series of grouped offenses will apply to the entire group.” Id. at 894-95. That notice eliminates any Ex Post Facto Clause concerns that may have otherwise existed. Therefore, a defendant who decides to “continue his illegal activities -,.. after the revisions in the sentencing guidelines” does so at his own peril because, “that decision allow[s] the sentencing court to determiné his appropriate sentence with reference to the guidelines in effect when the last criminal act in the grouped series was committed without running afoul of the Constitution.” Id. at 893,

Kimler plainly forecloses Shakbazyan’s Ex Post Facto Clause claim. The conspiracy charged in Count 1 continued well after November 1, 2009. During that period, the Guidelines gave Shakbazyan adequate notice that his pre-November 1, 2009 offenses would be grouped with the Count 1 conspiracy offense, and therefore that the 2009 Guidelines would apply. Indeed, “[i]t was [Shakbazyan’s] decision to continue his illegal activities related to his ... [conspiracy] offense[ ] after the revisions in the sentencing guidelines, and that decision allowed the sentencing court to determine his appropriate sentence with reference to the guidelines in effect when the last criminal act in the grouped series was committed without running afoul of the Constitution.” Kimler, 167 F.3d at 893.

Shakbazyan fails to cite Kimler, but he contends that Peugh v. United States supports his Ex Post Facto Clause claim. It does not. Peugh found an Ex Post Facto Clause violation where “a defendant [was] sentenced under Guidelines promulgated after he committed his criminal acts and the new version provide[d] a higher applicable Guidelines sentencing range than the version in place at the time of the offense.” Peugh, 133 S.Ct. at 2078. But there are clear factual and legal distinctions between Peugh and this case. On the facts, the defendant in Peugh committed all of his alleged crimes in 1999 and 2000, before the promulgation of the 2009 Guidelines under which he was sentenced. See id. at 2078-79. In contrast, Shakbazyan concedes that one of the crimes to which he pled guilty extended past the effective date of the 2009 Guidelines. Additionally, as just explained, this case, unlike Peugh, does not implicate the Ex Post Facto Clause’s concern with “the lack of fair notice ... when the legislature increases punishment beyond what was prescribed when the crime was consummated.” Weaver, 450 U.S, at 30, 101 S.Ct. at 965. Peugh had no notice of Guidelines enhancements that would be promulgated a decade after he committed his crimes, but Shakbazyan was on notice of the Guidelines’ one-book and grouping rules that would apply one version of the Guidelines to his pre- and post-amendment criminal conduct. Peugh does not carry the day for Shakbazyan. No Ex Post Facto Clause violation occurred when the district court applied the 2009 Guidelines to Shak-bazyan’s sentence. ■

C. Miscellaneous Arguments

Shakbazyan raises a number of additional arguments, each of which we reject. First, Shakbazyan claims that even if the 2009 Guidelines apply to his sentence, the Medicare beneficiaries were not “victims” within the meaning of the 2009 definition but were more like co-conspirators because “they were either paid to attend the Barson Clinic or they suffered no harm.”

Shakbazyan has waived this argument. At the sentencing hearing, the district court asked Shakbazyan’s attorney whether the Medicare beneficiaries fall within the 2009 definition of “victim,” and the attorney answered affirmatively:

THE COURT: But the 2009 guideline which governs the conspiracy count for sure defines “victims” as these patients whose Medicare benefits were used.
MR. GERAGOS: Correct.

This court does not consider arguments deliberately waived in the trial court. See, e.g., United States v. Puckett, 505 F.3d 377, 383 n.1 (5th Cir. 2007), aff'd, 556 U.S. 129, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009).

Shakbazyan next asserts that, in any event, the indictment charged him only “with defrauding eight total victims”—Medicare and individuals specifically named in the indictment—which is “below the threshold need for any victim enhancement to apply.” The superseding indictment, to which he pled guilty, expressly mentioned 429 patients’ claims as being fraudulently charged. And it is hornbook procedure that “[t]he sentencing judge is entitled to find by a preponderance of the evidence all the facts relevant to the determination of a Guideline sentencing range and all facts relevant to the determination of a non-Guidelines sentence.” See, e.g., United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). This contention is meritless.

Also without merit is Shakbazyan’s conclusional assertion that the trial court’s Judgment and Commitment Order is facially deficient because it states a sentence below 24 months was imposed and consequently did not include a written statement of reasons for the sentence imposed. This complaint apparently refers to the “Statement of Reasons” form, which did erroneously categorize Shakbazyan’s sentence as “within an advisory guideline range that is not greater than 24 months.” Because of the error, the form does not contain the required written statement identifying the district court’s reasons for the sentence. The error is harmless, and clerical in nature. Shakbazyan does not and cannot claim his substantial rights were affected. The transcript evinces the district court’s thorough explanation of its reasons for imposing Shakbazyan’s 97-month, bottom of the applicable sentencing range term of imprisonment. Moreover, the Statement of Reasons form is intended “to serve a record-keeping function” and not to provide “a procedural safeguard for any particular defendant.” See United States v. Pillault, 783 F.3d 282, 292 n.2 (5th Cir. 2015) (quoting United States v. Denny, 653 F.3d 415, 422 (6th Cir. 2011) (quoting United States v. Ray, 273 F.Supp.2d 1160, 1164 (D. Mont. 2003))).

For these reasons, the district court’s sentence is AFFIRMED.

      . Cf. United States v. Olis, 429 F.3d 540, 545 (5th Cir. 2005) ("This court has held that conspiracy ‘is a continuing offense' and that ‘[s]o long as there is evidence that the conspiracy continued after the effective date of the [amendments to the] guidelines, the Ex Post Facto Clause is not violated.' Moreover, unless a conspirator effectively withdraws from the conspiracy, he is to be sentenced under the amendments to the guidelines, even if he did not commit an act in furtherance of the conspiracy after the date of the new guidelines, or did not know of acts committed by other co-conspirators after the date of the new guidelines, where it was foreseeable that the conspiracy Would continue past the effective date of the amendments.” (citation omitted)).

      . See, e.g., United States v. Pagan-Ferrer, 736 F.3d 573, 598 (1st Cir. 2013) (explaining that its decision on this point was "consistent with the findings of an overwhelming majority of our sister circuits.” (citing cases from the Second, Fourth, Fifth, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits)); United States v. Kumar, 617 F.3d 612, 626-27 (2d Cir. 2010) (similarly citing cases).


source: Caselaw Access Project

author: E. GRADY JOLLY, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Francisco Javier CASTRO-ALFONSO, Defendant-Appellant.
    No. 15-41597
    United States Court of Appeals, Fifth Circuit.
    Filed October 27, 2016

      Katherine Lisa Haden, Assistant U.S. Attorney, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney’s Office, Houston, TX, for Plaintiff-Appellee.
    Marjorie A. Meyers, Federal Public Defender, Philip G. Gallagher, Assistant Federal Public Defender, Laura Fletcher Leavitt, Federal Public Defender’s Office, Houston, TX, for Defendant-Appellant.
    Before JOLLY, BARKSDALE, and SOUTHWICK, Circuit Judges.
   E. GRADY JOLLY, Circuit Judge:

Francisco Javier Castro-Alfonso (“Castro-Alfonso”) challenges the district court’s application of a 16-level sentencing enhancement that was based on his previous conviction of aggravated burglary under Tennessee law. We affirm, because the Tennessee conviction, like the Texas offense at issue in United States v. Garcia-Mendez, 420 F.3d 454 (5th Cir. 2005), is equivalent to burglary of a dwelling and is a “crime of violence” for the purposes of § 2L1.2(b)(l)(A)(ii) of the United States Sentencing Guidelines.

I.

Castro-Alfonso pleaded guilty to unlawful reentry into the United States in violation of 8 U-S.C. § 1326(a) and (b). He had been deported in 2006 following a conviction for aggravated burglary under Tennessee Code § 39-14-403, His Presentence Investigation Report (“PSR”) recommended a 16-level enhancement because his Tennessee aggravated burglary conviction equated to a “crime of violence” within the meaning of § 2L1.2 of the Sentencing Guidelines. Castro-Alfonso objected to the 16-level enhancement. He argued that the prior felony offense was categorically broader than the generic “burglary of a dwelling” component of the “crime of violence” definition and, further, that the offense did not contain an element of force. Before sentencing in this case, the Government filed a transcript of the guilty plea colloquy in the earlier burglary conviction, in which Castro-Alfonso admitted ■ to breaking into the home of a resident of Nashville.

The district court, relying upon this court’s decision in Garcia-Mendez, 420 F.3d at 454, and the guilty plea colloquy, denied Castro-Alfonso’s objection and applied the recommended enhancement. Castro-Alfonso’s total offense level was 21, including the enhancement and- accounting for the three-point reduction for acceptance of responsibility. This offense level yielded a Guidelines range of 46 to 57 months of imprisonment. Castro-Alfonso was sentenced to a prison term of 46 months. The district judge, in announcing his decision, expressed that he had considered the sentencing factors in 18 U.S.C. § 3553(a) and the guilty plea transcript in arriving at his conclusion, and that even if the court were committing error in calculating the sentencing range, he would nonetheless have delivered the same sentence. Castro-Alfonso appeals.

II.

The question presented is whether § 39-14-403 of the Tennessee Code constitutes a “crime of violence” under U.S.S.G. § 2L1.2(b)(l)(A)(ii), We review a district court’s interpretation of the Sentencing Guidelines de novo. United States v. Hernandez-Galvan, 632 F.3d 192, 196 (5th Cir. 2011). Furthermore, “[wjhere a defendant preserves error by objecting at sentencing, [this court] review[s] the sentencing court’s factual findings for clear error_” United States v. Gomez-Alvarez, 781 F.3d 787, 791 (5th Cir. 2015). We find no clear error “if the district court’s finding is plausible in light of the record as a whole.” United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). Procedural errors at sentencing receive harmless error review. United States v. Robinson, 741 F.3d 588, 598 (5th Cir. 2014). .

III.

The Sentencing Guidelines advise a 16-level enhancement for the sentence of an individual convicted > of illegal reentry when the individual also has been convicted of a “crime of violence” as defined in the Guidelines. The application notes define “crime of violence” as follows:

“Crime of violence” means any of the following offenses under federal, state, or local law: [mjurder, manslaughter, kidnapping, aggravated assault, forcible sex offenses ..., statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against thé person of another.

U.S.S.G. § 2L1.2 cmt. n.l(B)(iii) (emphasis added). To qualify as. a “crime of violence,” an offense must either fit the generic definition of one of the enumerated offenses or include as an,element the “use, attempted use, or threatened use of physical force against” another. Id.

Courts generally apply a “categorical, common-sense” approach when determining whether an offense constitutes a “crime of violence” under the Guidelines. United States v. Albornoz-Albornoz, 770 F.3d 1139, 1141 (5th Cir. 2014) (citing Taylor v. United States, 495 U.S. 575, 599-600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). Rather than considering the specific conduct of the defendant,. courts using the categorical approach consider the reach of the statute of .conviction.. Id. If the court finds “ ‘a realistic probability, not a theoretical possibility, that the State would apply the statute of conviction to conduct that falls outside the generic definition of the crime,’ then it cannot use the state conviction to enhance.” Id. (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007)).

A.

Here, Castro-Alfonso’s 2006 crime of conviction was a violation of Tennessee Code § 39-14-403. This statute defines aggravated burglary as “burglary of a habitation as defined in §§" 39-14-401 and 39-14-402.” Tenn. Code Ann. § 39-14-403 (2014). Accordingly, § 39-14^101 states the definition of “habitation”:

(1) “Habitation”:
(A) Means any structure, including buildings, module units, mobile homes, trailers, and tents, which is designed or adapted for the overnight accommodation of persons;
(B) Includes a self-propelled vehicle that is designed or adapted for the overnight accommodation of persons and is actually occupied at the time of initial entry by the defendant; and
(C) Includes each separately secured or occupied portion of the structure or vehicle and each structure appurtenant to or connected with the structure or vehicle....

Tenn. Code Ann. § 39-14-4:01. “Burglary,” in turn, is defined in subsection 402: ■

(a) A person commits burglary who, without the effective consent of the property owner:
(1) Enters a building other than a habitation[] (of any portion thereof) not open to the public, with intent to commit a felony, theft or assault;
(2) Remains concealed, with the intent to commit a felony, theft or assault, in a building;
(3) Enters a building and commits or attempts to commit a felony, theft or assault; or
(4) Enters any freight or passenger car, automobile, truck, trailer, boat, airplane or other motor vehicle with intent to commit a felony, theft or assault or commits or attempts to commit a felony, theft or assault. ...

Tenn. Code Ann. § 39-14-402. The Supreme Court in Taylor defined the generic, contemporary meaning of “burglary” as “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” Taylor, 495 U.S. at 598, 110 S.Ct. 2143. The categorical approach commands that we analyze the statute of conviction to determine whether the statute is equivalent to or narrower than the generic definition of the offense.

B.

Castro-Alfonso contends that the Tennessee aggravated burglary offense should not be considered a crime of violence because it is too capacious and proscribes a broader range of conduct than does the generic “burglary of a dwelling” offense. His argument relies on an unpublished case from a sister circuit that addresses the same statute. In United States v. Lara, 590 Fed.Appx. 574 (6th Cir. 2014), the Sixth Circuit held that § 39-14-403 did not qualify as a “crime of violence” under the Sentencing Guidelines because it sweeps more broadly than does the generic definition and encompasses the burglary of structures other than dwellings, including a “tool shed, outhouse, bathhouse, smokehouse, [and] other uninhabited outbuildings that belong to or serve the principal structure.” Id. at 582. Castro-Alfonso argues that a similar analysis.should be applied to his conviction.

Notwithstanding Lam’s factual similarity to the instant case, our decision in Gar-ciar-Mendez controls the outcome here. The defendant in Garcia-Mendez received a sentencing enhancement under § 2L1.2 of the Sentencing Guidelines based on a previous conviction of “burglary of a habitation” under Texas law. This court disagreed with Garcia-Mendez’s argument that his previous conviction under the Texas statute should not be deemed a “crime of violence” to warrant a sentence enhancement because the statute criminalized the. burglary of structures “appurtenant to or connected with” the dwelling. Garcia-Mendez, 420 F.3d at 456. The court instead drew from this circuit’s observation in United States v. Hornsby, 88 F.3d 336, 339 (5th Cir. 1996), that “burglary of a habitation is considered a crime of violence,” to conclude that burglary of a habitation under Texas law is equivalent to burglary of a dwelling under § 2L1.2.

Castro-Alfonso disputes the application of Garcia-Mendez in the instant case. First, he contends that this court in Gar-ciar-Mendez did not address the Tennessee statute at issue here. Second, he echoes the Sixth Circuit’s observation in Lara that Garcia-Mendez has “little to no persuasive value” because our court in that case did not “rigorously analyze the scope of the appurtenant-to clause of the Texas statute.” Lara, 590 Fed.Appx. at 584.

1.

C'astro-Alfonso’s first argument overlooks the similarities between the Texas Code statutes at issue in Garcia-Mendez and Tennessee’s aggravated burglary statute. Garcia-Mendez’s “burglary of a habitation” conviction fell under §§ 30.01(1) and 30.02(a)(1) of the Texas Code. The statutory language, in pertinent part, is as follows:

(1) “Habitation” means a structure or vehicle that is adapted for the overnight accommodation of persons, and includes:
(A) each separately secured or occupied portion of the structure or. vehicle; and
(B) each structure appurtenant to or connected with the structure or- vehicle.

Tex. Penal Code Ann. § 30.01(1) (West 2015).

(a) A person commits [a burglary] of- • fense if, without the effective consent of the owner, the person:
(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault.

Tex. Penal Code Ann. § 30.02(a)(1).

The language describing “habitation” as a structure “adapted for the overnight accommodation of persons” and as including “each structure appurtenant to or connected with” the structure is identical in both states’ statutes. See Tenn. Cope Ann. § 39-14-401. Furthermore, the two states’ respective statutes equate in their definition of “burglary” as including the entry of a building not open to the public, without the consent of the property owner, with the intent to commit a “felony, theft, or assault” therein. See Tenn. Code Ann. § 39-14-402. Because of the clear similarities between the two states’ statutes, our holding in Garciou-Mendez that burglary of a habitation under Texas law is a crime of violence for sentencing enhancement purposes requires that we reach the same conclusion here.

2.

We also find Castro-Alfonso’s second argument unpersuasive. Irrespective of the Garciar-Mendez panel’s cursory treatment of the appurtenant-to issue, we are bound by the rule of orderliness to refrain from overturning our previous decision in Garcia-Mendez. The Fifth Circuit rule of orderliness dictates that “absent an intervening change in the law, such as by a statutory amendment, or the Supreme Court, or our en banc court,” a panel cannot overrule another panel’s decision. United States v. Quiroga-Hernandez, 698 F.3d 227, 229 (5th Cir. 2012). No such catalysts are present here. Thus, Garcia-Mendez controls.

Furthermore, this circuit has already defined a “dwelling” as including structures connected with the main dwelling. In Albornoz-Albornoz, 770 F.3d at 1143, the defendant challenged his 16-level “crime of violence” enhancement resulting from a previous conviction of second-degree burglary under New York law. The relevant statute characterized this offense as “knowingly entering] or remaining] unlawfully in a building with intent to commit a crime therein, and ... [t]he building is a dwelling" N.Y. Penal law § 140.25 (McKinney 2014) (emphasis added). Albor-noz-Albornoz claimed that the New York law’s definition of “dwelling” was broader than the generic definition. In its analysis, the court turned to legal dictionaries and treatises to determine that the “ordinary, contemporary” definition of “dwelling” includes connected structures. Albornoz-Albornoz, 770 F.3d at 1142 (quoting United States v. Guerrero-Navarro, 737 F.3d 976, 979 (5th Cir. 2013)). The Albornoz-Albor-noz decision bolsters our holding in Garcia-Mendez that burglary of a habitation is a crime of violence for the purposes of § 2L1.2 of the Sentencing Guidelines.

C.

Because we hold that Castro-Alfonso’s previous offense of aggravated burglary under Tennessee law constitutes an enumerated crime of violence subjecting him to the sentencing enhancement, we need not consider whether the crime includes as an element “the use, attempted use, or threatened use of physical force.” U.S.S.G. § 2L1.2 cmt. ri.l(B)(iii). The district court’s reliance on the guilty plea transcript and Garciar-Mendez supports its application of the 16-level sentencing enhancement under both the clear error and de novo standards of review. Thus, the court’s judgment is AFFIRMED.

IV.

Alternatively, we hold that the practical result of the case is the same under the harmless error standard of review. Under this standard, the proponent of harmless error, here the Government, must first demonstrate that the - district court would have imposed the same sentence outside of the appropriate Sentencing Guidelines range for the same reasons, and second, the proponent must show that the district court was not influenced .by an erroneous Guidelines calculation. United States v. Ibarra-Luna, 628 F.3d 712, 718 (5th Cir. 2010).

In the instant case, the district judge did not “beat around the bush” or equivocate in delivering the court’s decision at the sentencing hearing. On the contrary, he elaborated upon the court’s reasoning and stated plainly that the court would have imposed the same sentence regardless of whether the court was in error:

In imposing [the 46-month] sentence the Court has considered all the 3553(a) factors. The Court believes that its ruling on the objection is correct. But if the Court is in error, the Court, nonetheless, would impose the same sentence noting that it’s reflected in the transcript itself, the offense was one that, involved burglary of a dwelling. So the Gourt would impose the same sentence even if it is in error as to the enhancement here.

We take the district court at its clear and plain word. In some instances, we have considered whether the court was improperly influenced by an erroneous Sentencing Guidelines range. See United States v. Martinez-Romero, 817 F.3d 917, 925-26 (5th Cir. 2016); Ibarra-Luna, 628 F.3d at 718. That is not the case here. The district judge was firm, plain, and clear in expressing the court’s reasoning, and we take him at his word. Consequently, we hold, alternatively, that to the extent that error may have occurred, it was harmless.

V.

In sum, we hold that the district court’s designation of Castro-Alfonso’s previous Tennessee aggravated burglary conviction as a crime of violence is consistent with and controlled by our decision in Gardcir-Mendez. Thus, the district court’s application of a 16-level sentence enhancement under the Guidelines is AFFIRMED.

      . Under § 39-14-402 of the Tennessee Code, one may commit burglary of a building other than a habitation. Gastro-Alfonso was convicted under § 39-14-403, however, which defines “aggravated burglary” as "burglary of a habitation.'” Tenn. Code Ann. § 39-14-403 (emphasis added).

      . Our analysis under the categorical approach does not entail a consideration of the indictment language. Even so, Castro-Alfonso’s Tennessee indictment charged him with “intentionally, knowingly, or recklessly entering] [a] habitation ... with the intent to commit theft in violation of Tennessee Code Annotated § 39-14-403.” Although Tennessee Code § 39-14-403—the statute of Castro-Alfonso's 2006 conviction—encompasses all manners in which burglary can be committed in § 39-14-402, the language of Castro-Alfonso’s indictment tracked that of § 39-14-402(a)(1), stating that he was charged with entering a habitation with intent to commit a theft. Thus, Castro-Alfonso’s Tennessee conviction under § 39-14-403 is even more closely akin to Garcia-Mendez’s Texas conviction under § 30.02(a)(1) than our analysis may permit us to consider.
      • Moreover, because we are applying the categorical approach, we do not consider whether § 39-14-403 of the Tennessee Code is a divisible statute sufficient to warrant a modified categorical approach. See Mathis v. United States, — U.S.-, 136 S.Ct. 2243, 2253, 195 L.Ed.2d 604 (2016) (distinguishing between means of committing an offense and •the elements of the offense and holding that the modified categorical approach may only be applied when a disjunctively phrased statute “renders one (or more) of [the elements of a crime] opaque”), Under the modified categorical approach, we would consider the language of the indictment to narrow our understanding of the specific statute of conviction before comparing it to the generic definition of the offense. The outcome, in any event, would remain the same because of our reliance on the panel’s decision in Garcia-Mendez.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Ramona C. JOHNSON; Nekia N. Everson, Defendants-Appellants.
    No. 15-10493
    United States Court of Appeals, Fifth Circuit.
    Filed October 27, 2016

      Leigha Amy Simonton, Assistant U.S. Attorney, James Wesley Hendrix, Assistant U.S. Attorney, U.S. Attorney’s Office, Dallas, TX, for Plaintiff-Appellee.
    John R. Teakell, Esq., Dallas, TX, for Defendants-Appellants.
    Before JOLLY, BARKSDALE and SOUTHWICK, Circuit Judges.
   E. GRADY JOLLY, Circuit Judge:

Ramona Johnson and Nekia Everson were charged with conspiracy to prepare false and fraudulent income tax returns in violation of 18 U.S.C. § 371. They challenge their sentences and the district court’s calculation of tax loss according to §§ 2Tl.l(a) and 2T4.1 of the United States Sentencing Guidelines. For the reasons set forth below, we AFFIRM.

I.

Johnson, a self-taught tax preparer and member of the National Association of Tax Professionals and the National Society of Accountants, operated a tax preparation business located in Fort Worth, Texas, with her daughter-in-law Everson. During the tax seasons of 2008 through 2014, Johnson and Everson engaged in the preparation of fraudulent tax returns for their customers. After an IRS investigation, the Government brought an indictment against them, charging them with multiple counts of falsely preparing and filing tax returns and assisting in the filing of fraudulent returns. The indictment alleged that Johnson and Everson falsified Schedule C forms by reporting inaccurate income and loss amounts from the taxpayers’ purported personal businesses; falsified Schedule A forms by reporting incorrect itemized deductions; and falsely included on taxpayers’ returns the personal information of individuals who had no connection with the taxpayer as dependents in order to enable the taxpayer to receive an Earned Income Tax Credit. Following the indictment, Johnson and Everson approached the Government to discuss a waiver of a jury trial. The Government agreed to reduce the overall number of counts of conviction that it would pursue if the defendants opted for a bench trial.

Thereafter the Government filed a notice of intent to waive a jury trial. In doing so, the Government explained that Johnson and Everson had instigated the request to waive a jury trial and elaborated that a bench trial would be more efficient. The district court, however, expressed concern with the arrangement, noting

that sounds like to me what you’re saying is that you’re coercing the defendants into foregoing a jury trial by telling them that if you don’t forego the jury trial, . ■.. we’re going to try you for more offenses, ... but if you do agree to waive a jury trial, then we won’t try you. That seems to me to be inappropriate coercion. I’ve never had that situation develop before, but I have some question about the propriety of that.

In the wake of these voiced concerns, the district court denied the waiver of a jury trial. The Government responded that it had already informed the defendants that it would seek a third superseding indictment. The new indictment added five substantive counts against Everson and deleted three substantive counts against Johnson.

Johnson then filed a motion to waive a jury trial. She explained to the district court her desire to pursue this avenue because of the greater efficiency of a bench trial and because she trusted more the determination of a judge than that of a jury. Everson echoed Johnson’s sentiments. Concluding that the request was knowing and voluntary, the district court granted the waiver.

A bench trial followed. Johnson was found guilty of conspiring to aid and assist in the preparation and presentation of a false tax return (count 1); aiding in the preparation of a false tax return in violation of 26 U.S.C. § 7206(2) (counts 2-9,11-16, 18, 20-27, and 29-31); and filing a false return in violation of 26 U.S.C. § 7206(1) (counts 35-36). Everson was found guilty of conspiracy and in the aiding and assisting in the preparation of false tax returns (count 1 and counts 17, 19, and 32-34, respéctively).

At sentencing, Johnson received a total offense level of 38, and Everson received an offense level of 32. This determination was based in part on the Government’s calculation of tax loss- in the amount of $25,201,861. The district court sentenced Johnson to 170 months of imprisonment and Everson to 95 months of imprisonment, It also ordered Johnson and Ever-son to pay restitution to the IRS in the amount of $14,782,524.

Johnson and Everson timely appealed and assert the following challenges: first, they allege error on the part of the district court in denying their first request for waiver of a jury trial, and second, they claim that the district court clearly erred in calculating the tax loss amount. In addition, for the first time on appeal, Johnson and Everson challenge the amount of time allotted to them for the purpose of examining the tax returns that were not included in the sample of returns used to generate the tax loss calculation.

II.

A.

Johnson and Everson first claim that the district court erred in refusing to grant the Government’s initial motion for waiver of a jury trial. They argue that the district court improperly determined their initial motion to be the result of coercion on the part of the Government. Johnson and Ev-erson further contend that although the court ultimately granted a non-jury trial, they were prejudiced by the initial denial because the third superseding indictment increased the total counts of conviction.

We adopt the abuse of discretion standard in our examination of the district court’s denial of a written waiver of a jury trial that has been approved by both the defendants and the Government. See United States v. Stark, 582 Fed.Appx. 462, 463 (5th Cir. 2014) (citing Singer v. United States, 380 U.S. 24, 34, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965)) (applying abuse of discretion standard to a case in which the Government did not consent to a jury waiver and the district court denied the waiver). Under this standard, the district court “abuses its discretion if it bases its decision on an error of law or a clearly erroneous assessment of the evidence.” United States v. Gray, 717 F.3d 450, 451 (5th Cir. 2013) (quoting United States v. McKnight, 570 F.3d 641, 645 (5th Cir. 2009)).

B.

Rule 23(a) of the Federal Rules of Criminal Procedure provides that “[i]f the defendant is entitled to a jury trial, the trial must be by jury unless: (1) the defendant waives a jury trial in writing; (2) the government consents; and (3) the court approves.” Fed. R. Crim. P. 23(a). A district court is afforded discretion under the court-approval prong of Rule 23(a), but the discretion must be “sound and advised.” Patton v. United States, 281 U.S. 276, 312, 50 S.Ct. 253, 74 L.Ed. 854 (1930) (observing that because trial by jury is “the preferable mode of disposing of issues of fact in criminal cases,” a district court’s decision to grant a waiver of a jury trial must be supported by “sound and advised discretion”), abrogated on other grounds by Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970).

Further, there is no constitutional right to a non-jury trial. Indeed, the Supreme Court found in Singer that no “constitutional impediment” exists to placing conditions on a court’s granting a jury trial waiver when “the result [of a denial of the waiver] is simply that the defendant is subject to an impartial trial by jury—the very thing that the Constitution guarantees him.” Singer, 380 U.S. at 36, 85 S.Ct. 783. We presume that the defendant “understandingly and intelligently waived [her] right to jury trial” when she does not claim prejudice. United States v. Igbinosun, 528 F.3d 387, 390 (5th Cir. 2008) (quoting United States v. Tobias, 662 F.2d 381, 387 (5th Cir. 1981)).

In both instances, because Johnson and Everson did not assert a' claim of prejudice before the district court, we understand that their requests for waiver of a jury trial were intelligently made. Johnson and Everson nevertheless contend that they would have benefited from a waiver of a jury trial upon the initial motion because the trial would have then proceeded on fewer counts and the defendants’ ultimate prison sentences likely would have been reduced. Given the constitutional preference for a trial by jury and the broad discretion that is afforded a sentencing judge,- however, we are unconvinced that the district court’s comments regarding the propriety of allowing a non-jury trial and -its use of the term “coercion” constitute an error of law, or otherwise an abuse of discretion. Thus the convictions of the defendants are affirmed.

III.

A.

With respect to sentencing, Johnson and Everson contend that the district court miscalculated the amount of tax loss, which affected the lengths of their sentences. Further, they argue that1 they were not given süffícierit time to examine all of the allegedly false tax returns so as to challenge the sample on which the probation officer relied in calculating the tax loss. Johnson and Everson raise the latter argument for the first time on appeal.

This court reviews á district court’s calculation of tax loss for clear error. United States v. Clark, 139 F.3d 485, 490 (5th Cir. 1998). Objections that are raised for the first time on appeal are reviewed for plain error. United States v. Hernandez-Martinez, 485 F.3d 270, 272 (5th Cir. 2007). Under plain error review, the error or defect must be “clear or obvious,” must affect the “appellant’s substantial rights,” and must “seriously affect the fairness, integrity, or public reputation of the judicial proceedings.” Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (quoting United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). In the event that all of these requirements are satisfied, the reviewing court has discretion to remedy the plain error. Id.

1.

Under the Sentencing Guidelines, the base offense level for a tax fraud offense, derives from the amount of loss that is the object of the offense. U.S.S.G. § 2Tl.l(a) and § 2T4.1. The commentary to § 2T1.1 states that when the tax loss is “uncertain,” the court may “simply make a reasonable estimate based on the available facts.” U.S.S.G. § 2T1.1 n.l. To prevail on an argument that the district court’s calculation of tax loss was clearly erroneous, a defendant must introduce evidence to contradict or rebut the alleged improper computation of the loss. See Clark, 139 F.3d at 490.

2.

The Government calculated its estimate of.the tax loss amount in the following manner. According to IRS case agent testimony, Johnson’s company filed 13,429 returns during the years 2006 to 2013. Of those, 6,727 returns contained Schedule C losses that generated a total claimed refund amount, of approximately $37.5 million. The IRS case agent then researched tax returns filed in the Dallas/Fort Worth (“DFW”) area during the 2006-2013 time frame and determined that 7.1% contained Schedule :C. losses. This 7.1% was then applied to $37 million to yield $2.6 million; the case agent concluded that $2.6 million (i.e., 7.1%) of the total claimed refund amount was not fraudulent because this amount was on par with the other returns filed in the DFW area.

Next, the case agent employed the extrapolation method of estimating tax loss by selecting a sample of tax returns prepared during-the 2006 to 2013 tax seasons to analyze the percentage of the claimed refund amount that was deemed to be fraudulent in this group. The sample was defined as follows. Throughout the investigation, 58 Revenue Agent Reports (“RARs”) were prepared. Of those, 41 investigated returns reflected Schedule C losses; this amount included not only returns that were part of the indictment as counts of conviction, but also returns from the RARs that did not factor into the counts of conviction. The case agent calculated the total criminal tax loss of the 41 returns to be approximately $235,000. This amount constituted 72.2% of the total refund amount claimed, which was approximately $325,000.

Recall the $2.6 million figure which equaled to 7.1% of the total refund amount of $37.5 million claimed from returns with Schedule C losses. The case agent subtracted $2.6 million from $37.5 million to find a difference of $34.9 million. This amount was determined to be the total amount of refunds claimed on Schedule C losses less the DFW area credit. The cage agent then applied the 72.2% falsity rate to $34.9 million to reach an estimated total loss amount—resulting from fraudulent Schedule Cs—to be $25,201,861.

3.

Johnson and Everson objected to the Presentence Investigation Report (“PSR”) recommending the aforementioned calculation of losses and raise the same objection on appeal. They contend that the sample used to extrapolate the amount of tax loss was too small and not representative of the total corpus of tax returns prepared. The use of this sample, according to Johnson and Everson, resulted in an inflated percentage of fraud.

The Government counters that the IRS case agent’s method of calculation was similar to that utilized previously in United States v. Simmons, 420 Fed.Appx. 414 (5th Cir. 2011). In Simmons, an unpublished decision, the IRS examined a sample of 41 tax returns to estimate the tax loss—a number that is identical to the number of returns composing the extrapolated sample in the instant case. Although the sample in Simmons was “not ... completely random,” no evidence in the record “indicate[d] [whether] those returns would have a higher falsity rate than any other returns prepared by Simmons.” Id. at 418.

Johnson and Everson argue that the instant case is distinguishable from Simmons. Here, the 41 tax returns were chosen from the prepared RARs. The defendants claim that, as such, they had already been audited and were therefore less random than the selection at issue in Sim mons. The defendants point out too that nearly half of the returns were bases for the counts of conviction. In addition, Johnson and Everson introduced evidence before the district court indicating that their investigators had located 82 customers whose returns were not included in the sample; none of these clients ’ expressed any problems with their tax returns. These factors, according to Johnson and Everson, contributed to an inflated falsity rate. The defendants also point to other circuits’ decisions to support their argument, namely the Fourth Circuit’s opinion in United States v. Mehta, 594 F.3d 277, 283 (4th Cir. 2010). The court held in Mehta that the use of only audit-flagged returns to calculate total tax loss was an. error on the part of the district court, but that the error was harmless under the harmless error standard of review..Johnson and Everson argue that Mehta’s persuasive authority with respect to the improper use of audit-flagged returns supports a reversal of the instant tax loss calculation.

4.

We view Johnson and Everson’s arguments as reasonable and relevant, but we do not find them sufficient to warrant a reversal of the district court’s adoption of the tax loss calculation. Although the defendants point to errors in the Government’s calculation, they do not offer evidence or alternative calculations to contradict or rebut a finding that the alleged tax' loss was anything but a “reasonable estimate based on the available facts.” Further, we have affirmed tax loss calculations based on less reliable information than that present in the instant case. See, e.g., United States v. Montgomery, 747 F.3d 303, 311-12 (5th Cir. 2014) (upholding IRS case agent’s calculation of tax loss notwithstanding agent’s failure to account for defendants’ unclaimed business expenses). Thus, even if the sample might have been more randomly selected to generate a more specific portrayal of the tax fraud at issue, the district court did not commit clear error in adopting the case agent’s calculations.

B.

Johnson and Everson’s argument that they were not allowed sufficient time to inspect the non-sample tax returns was raised for the first time on appeal and thus warrants plain error review.

The defendants were given the time between the PSR’s articulation of the calculation method on March 16, 2015 and the date of sentencing on May 13, 2015 to prepare their defense to the tax loss calculation. This time frame resulted from the court’s grant of a continuance to the defendants; after the May 13th sentencing date was set, Johnson and Everson did not move for a second continuance. The defendants nonetheless now attempt to compare their allotted time to the five months of preparation obtained by the defendant in Simmons, They claim further that with more time they would have been able to locate favorable witnesses in excess of the 82 customers they contacted as part of their defense.

This argument fails under plain error review. Johnson and Everson have not shown that they were unable to prepare a proper defense as a result of insufficient time. Neither do they show that the two-month time frame affected their substantial rights or seriously hindered the fairness of the judicial proceedings. Indeed, it was Johnson and Everson’s own failure to request a second continuance that contributed to the length of the time frame at issue. Thus, we find no plain error on the part of the district court.

IV.

In sum, the district court did not abuse its discretion in refusing to grant the first waiver of a jury trial. Further, the district court did not clearly err in adopting the PSR’s calculation method in estimating the amount of tax loss generated by Johnson and Everson’s fraudulent activity. Moreover, the time frame allotted to the defendants to prepare their defense did not constitute plain error. Thus, we AFFIRM the judgment of the district court.

      . Extrapolation is often used in tax audit situations when the number of tax returns under review is too large for a practicable and effective analysi?. Black’s Law Dictionary defines "extrapolation” as "[t]he process of estimating an unknown value or quantity on the basis of the known range of variables.” Extrapolation, Black's Law Dictionary (9th ed. 2009). For a description of the use of extrapolation to calculate fraudulent tax loss, see United States v. Mehta, 594 F.3d 277, 283 (4th Cir. 2010).


author: PER CURIAM:

text:
    Doris FORTE, O.D., on behalf of herself and all other similarly situated persons; Bridget Leesang, O.D.; David Wiggins, O.D.; John Boldan; O.D., Plaintiffs-Appellees, v. WAL-MART STORES, INCORPORATED, Defendant-Appellant.
    No. 12-40854
    United States Court of Appeals, Fifth Circuit.
    Filed October 27, 2016
    Mark Clyde Burgess, Esq., Boyd, Poff & Burgess, L.L.P., Texarkana, TX, Russell S. Post, William R. Peterson, Beck Redden, L.L.P., Houston, TX, Jose Antonio Canales, Canales & Simonson, P.C., Corpus Christi, TX, for Plaintiffs-Appellees.
    Prerak Shah, Senior Counsel, James C. Ho, Esq., Ashley E. Johnson, Esq., Gibson, Dunn & Crutcher, L.L.P., Dallas, TX, for Defendant-Appellant.
    William David George, Baker Wotring, L.L.P., Houston, TX, for Harris County, Texas, Hunt County, Texas, City of Houston, Texas, Texas Municipal League, Texas City Attorneys’ Association, Amici Curiae.
    ■ Bill L. Davis, Assistant Attorney General, Office of the Attorney General, Austin, TX, for Attorney General of Texas, Amicus Curiae.
    Before STEWART, Chief Judge, and JOLLY, and SMITH, Circuit Judges.
   PER CURIAM:

The Texas Supreme Court has resolved the certified questions in this case. In the light of - its answers, we now vacate the district court’s judgment and remand for further proceedings.

Plaintiffs, a group of optometrists who leased office space from Wal-Mart. Stores, Inc., in its retail stores," sued Wal-Mart for violations of the Texas Optometry Act, Tex. Occ. Code §§ 351.001-.608. They alleged that Wal-Mart, in violation of the Act, attempted to control their practice of optometry by exercising influence over their hours. Plaintiffs conceded that they did not suffer any compensatory damages, but instead sought civil penalties under the Act. After trial, a jury returned a verdict in the Plaintiffs’ favor, and the district court entered judgment in the amount of $1,395,400, consisting entirely of statutory civil penalties.

Wal-Mart appealed the district court’s judgment. In, our first opinion addressing the matter, we held that (1) Wal-Mart could properly be held liable under the Act, but that (2) the damages awarded, “civil penalties” assessed under the Optometry Act, were awarded in violation of Chapter 41 of the Texas Civil Practices and Remedies Code. Forte v. Wal-Mart Stores, Inc., 763 F.3d 421 (5th Cir. 2014) (“Forte I”). However, we subsequently vacated that opinion. In our second opinion, we (1) vacated the original opinion; (2) adopted the holding of the original opinion as to liability, finding again that Wal-Mart was properly found liable for violating the Optometry Act; (3) found that the issue of whether damages were proper implicated important issues of Texas law as to which there was no controlling precedent; and (4) certified two questions concerning the issue to the Texas Supreme Court. Forte v. Wal-Mart Stores, Inc., 780 F.3d 272, 278 (5th. Cir. 2015) (“Forte II”). We certified the following questions:

1. Whether an action for a “civil-penalty” under the Texas Optometry Act is an “action in which a claimant seeks damages relating to a cause of action” within the meaning of Chapter 41 of the Texas Civil Practice and Remedies Code. In other words, are civil penalties awarded under Tex. Occ. Code § 351.605 “damages” as that term is used in Tex. Civ. Prac. & Rem. Code § 41.002(a),
2. • If civil penalties awarded under the Texas Optometry Act are “damages” as that term is used in Tex. Civ. Prac. & Rem. Code § 41.002(a), whether they are “exemplary damages” such that Tex. Civ. Prac. & Rem, Code § 41.004(a) precludes their recovery in any case where a plaintiff does not receive damages other than nominal damages.

The Texas Supreme Court accepted the certified questions and answered both questions “yes,” reaching the same outcome as we did originally in Forte I. Wal-Mart Stores, Inc. v. Forte, 497 S.W. 3d 460, No. 15-0146, 2016 WL 2985018 (Tex. May 20, 2016), reh’g denied (Sept. 23, 2016) (“Forte III”). In other words, the Texas Supreme Court found that “civil penalties” under the Optometry Act were, by operation of Chapter 41, unavailable to private plaintiffs who had not sustained any actual damages.

The parties were subsequently ordered to file letter briefs addressing (1) what matters remain for adjudication in the light of the Texas Supreme Court’s opinion, and (2) what action this Court should now take. As to the first issue, the parties agree that Forte III resolved the merits of this matter, and that the district court’s judgment regarding damages must be vacated; attorneys’ fees are the only matter that remains in this case. The parties disagree over the second issue. The Optometrists argue that they are entitled to attorneys’ fees and so this Court should remand to the district court for proceedings regarding fees, Wal-Mart argues that the Optometrists are not entitled to fees, and that this Court should find as much as a matter of law.-

We find that the best course is to remand this case to the district court so that it may determine in the first instance whether the Optometrists are entitled to attorneys’ fees in the light of the Texas Supreme Court’s opinion and the correspondent vacatur of their damages award.

Accordingly, we AFFIRM the. district court’s judgment regarding Wal-Mart’s liability and REVERSE and VACATE the district court’s judgment regarding damages. The case is REMANDED to the district court for .further proceedings com sistent with this - opinion, our opinion in Forte II, and the Texas Supreme Court’s opinion in Forte III.

      . Chapter 41 provides, in relevant part, that "exemplary damages may be awarded only if damages other than nominal damages are awarded.” Tex. Civ. Prac. & Rem. Code § 41.004(a).


text:
    Tanner Elliot GRIGGS, Plaintiff-Appellant v. Officer Charley Daniel BREWER, Defendant-Appellee
    No. 16-10221
    United States Court of Appeals, Fifth Circuit.
    FILED October 28, 2016

      Steven Gregory White, Esq., Waco, TX, Shelby Jean White, Harris, Finley & Bo-gle, P.C., Fort Worth, TX, for Plaintiff-Appellant.
    Jeffrey Clay Hartsell, City Attorney’s Office for the City of Lubbock, Lubbock, TX, for Defendant-Appellee.
    Before JOLLY, HAYNES, and GRAVES, Circuit Judges.
   E. GRADY JOLLY, Circuit Judge:

This appeal arises from the dismissal, based on qualified immunity, of a § 1983 claim asserting excessive force under the Fourth Amendment.

I.

Officer Charley Brewer conducted a routine traffic stop óf a vehicle driven by Tanner Griggs after Griggs ran a red light around 2:00 a.m. on September 4, 2013. A video and audio recording from Officer Brewer’s dashboard camera captured most of the incident.

Officer Brewer smelled alcohol and suspected that Griggs might be intoxicated, so he asked Griggs to ; exit the vehicle and conducted a field sobriety test. After testing Griggs for over fifteen minutes, he arrested Griggs for driving while intoxicated.

The decision to arrest came in the midst of the “one legged stand” part of the sobriety test. Officer Brewer told Griggs, who was attempting .to stand on one leg, that he could , stop. Griggs did not stop and responded “I’m doing it.” Brewer retorted “you’re not actually,” told him to “put your hands behind your back,” and grabbed Griggs’s hands to handcuff him. As he did, Griggs lurched to the side and- said “no, no.” Brewer immediately performed a “takedown” maneuver and threw Griggs face-down onto the 'nearby grass and- landed on top of him.

As Griggs lay on the ground following the take down, Officer Brewer attempted to handcuff him. Brewer’s backup officer, Officer Cruce, came to his assistance. Both officers got on top of Griggs and struggled with him, repeatedly ordering him to put his hands behind his back. Brewer punched Griggs with a closed fist to the back of the head in an effort to gain control of his arms;-when Griggs pulled his arms back again, Brewer punched him several more times, to regain control. The officers finally gained control of Griggs’s arms and handcuffed him.

As noted, a police video was entered into evidence. Although the details of the struggle are blurred in the video, the parties’ testimony tells the same basic story: the officers punched Griggs when attempting to gain control of his arms; he withdrew his arms again; and the officers punched him until they gained (and maintained) control of his arms a second time.

Once Griggs was handcuffed, the officers hoisted him to his feet and Officer Brewer escorted him to the back of his patrol vehicle. Officer Brewer attempted to get Griggs into the vehicle, then pushed Griggs’s head down into the vehicle. After he was pushed into the vehicle, with his legs still hanging out the door, Griggs kicked Officer Brewer in the chest. Officer Brewer responded by quickly climbing on top of Griggs and delivering a closed-fisted punch to the head.

After, he was punched the last time, Griggs receded into the car and Officer Brewer was able to close the door. Brewer completed the arrest without further incident. A blood sample taken from Griggs showed that his blood alcohol level was .273, more than three times the legal limit.

Griggs later brought these claims against Officer Brewer" in, his individual capacity, under 42 U.S.C. § 1983, alleging that Brewer used constitutionally excessive force in effecting the arrest. The district court granted Officer Brewer’s motion for summary judgment, holding that he was entitled to qualified immunity on all claims against him. Griggs appeals.

II.

This court reviews de novó the district court’s resolution of legal issues on a motion for summary judgment on the basis of qualified immunity. Freeman v. Gore, 483 F.3d 404, 410 (5th Cir. 2007). Summary judgment is proper when there is no genuine dispute as to any material fact and the .movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

In reviewing an appeal from summary judgment, we “view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in its favor.” See Deville v. Marcantel, 567 F.3d 156, 163-64 (5th Cir. 2009). Further, although courts view evidence in the light most favorable to the nonmoving party, they give greater weight, even at the summary judgment stage, to the facts evident from video recordings taken at the scene. Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011).

III.

A.

The Fourth Amendment right to be free from excessive force during a seizure is clearly established. See Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012). The inquiry is “whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 398, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). The use of force must be evaluated “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Poole, 691 F.3d at 627 (quoting Graham, 490 U.S. at 397, 109 S.Ct. 1865). Factors to consider in determining whether the force was “objectively reasonable” include the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. Deville, 567 F.3d at 167 (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865).

Succinctly stated, a plaintiff must show (1) an injury, (2) which resulted directly and only from a use of force that was clearly excessive, and (3) the exces-siveness of which was clearly unreasonable. Poole, 691 F.3d at 628 (citations and quotations omitted).

Excessive force claims are necessarily fact-intensive; whether the force used is excessive or unreasonable depends on the facts and circumstances of each particular case. Deville, 567 F.3d at 167 (citations and quotations omitted).

B.

In claims against state officials under 42 U.S.C. § 1983, the official may raise the affirmative defense of qualified immunity. The plaintiff has the burden to negate the defense of qualified immunity where, as here, it is properly raised. See Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008).

“The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S, 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (citations and quotations omitted). “Put simply, qualified immunity protects all but the plainly incompetent or those who knowingly violate the law.” Pratt v. Harris Cty., Tex., 822 F.3d 174, 181 (5th Cir. 2016) (citations and quotations omitted).

In determining qualified immunity, courts engage in a two-step analysis. First, they assess whether a statutory or constitutional right would have been violated on the facts alleged. Flores v. City of Palacios, 381 F.3d 391, 395 (5th Cir. 2004). Second, they determine whether the defendant’s actions violated clearly established statutory or constitutional rights of which a reasonable person would have known. Id. (citations and quotations omitted). “A clearly established right, is one that is sufficiently clear that-every reasonable official would have understood that what he is doing violates that right.” Mullenix v. Luna, — U.S. -, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (citations and quotations omitted). There need not be a case directly on point, but “existing precedent must have placed the statutory or constitutional question beyond debate.” Id. (citations and .quotations omitted). The two steps of the qualified immunity inquiry may be performed in any order. Pearson, 555 U.S. at 236, 129 S,Ct. 808.

In excessive force cases, “the second prong of the analysis is better understood as two separate inquiries: whether the allegedly violated constitutional rights were clearly established at the time of the incident; and, if so, whether the conduct of the defendants was objectively unreasonable in light of that then clearly established law.” Tarver v. City of Edna, 410 F.3d 745, 750 (5th Cir. 2005) (citations and quotations omitted). “If officers of reasonable competence could disagree as to whether the plaintiffs rights were violated, the officer’s qualified immunity remains intact.” Id.

IV.

Griggs argues that Brewer violated his Fourth Amendment rights by using excessive force in effecting the arrest, and that the district court erred in finding that Brewer was entitled to qualified immunity. Specifically, he raises three issues: (1) whether Brewer used excessive- force when he executed the “takedown” maneuver; (2) whether Brewer used excessive force by punching him while attempting to handcuff him; and (3) whether Brewer used excessive force by punching him in the face while he was in the police car. We address each issue in turn.

A.

The first issue is whether the initial takedown amounted to excessive force. Recall that as Griggs was performing the one-legged stand during the sobriety test, Officer Brewer decided to arrest Griggs and told him to put his hands behind his back. As he did, Griggs lurched to one side and said “no, no.” Brewer immediately placed Griggs in a choke hold, swept his legs out from under him, and body-slammed him onto the nearby grass. Griggs claims that this “takedown” amounted to excessive force.

Griggs argues that the district judge erred by failing to construe the facts in the light most favorable to him. He testified that he did not “flex” or demonstrate any intent to escape; he merely lost his balance and lurched to the side, so the use of force was not justified. In the alternative, he argues that even if he was being perceived as trying to escape, the takedown maneuver was not justified under the circumstances, as he was clearly unarmed, drunk, and unable to meaningfully resist arrest.

Griggs’s first argument—that he was not resisting, but merely lost his balance—falls short. Although he is correct that, based on his testimony and the ambiguities in the video, a reasonable jury might find that he was not actually resisting arrest, that is not the proper inquiry in this appeal. A court must measure the force used under the facts as a reasonable officer would perceive them, not necessarily against the historical facts. Hill v. Carroll Cty., Miss., 587 F.3d 230, 234 (5th Cir. 2009) (emphasis added). “For that reason, when reviewing a grant of summary judgment in the Fourth Amendment context, after first construing disputed historical facts in favor of the non-movant, the court must then ask how a reasonable officer would have perceived those historical facts.” Id. Here, we must conclude that, under the totality of the circumstances— that is, a late-night traffic stop involving a clearly drunk and obstinate individual, lurching to the side and stating “no, no,” in the act of being handcuffed, immediately following the command to “put your hands behind your back”—Griggs’s actions would, to a reasonable police officer, amount to resistance to arrest.

Griggs’s second argument, that in any event the “takedown” was an unreasonable use of force, involves much of the same analysis as resistance to arrest set out above. It is true, however, that Brewer had previously patted Griggs down and knew that he was unarmed, and knew that Griggs was drunk. So the inquiry here is whether responding to Griggs’s conduct under these circumstances with a forceful “takedown” maneuver was a clearly excessive use of force, and whether the force was clearly unreasonable under the circumstances. See Poole, 691 F.3d at 628. Because our analysis is under the defense of qualified immunity, the question is whether Brewer’s conduct was clearly Unreasonable in the light of clearly established law.

Griggs points to two of our cases that he, argues are analogous. First, he relies on Goodson v. City of Corpus Christi, 202 F.3d 730, 740 (5th Cir. 2000), in which the court found that tackling a suspect who yanked away from an arresting officer and fled may have amounted to unreasonable force. Goodson is inapposite, however, because the case turned not on whether the force was excessive, but on whether the force was justified at all because fact issues remained as to whether the officer had reasonable suspicion to initiate the stop. Id.; see also Poole, 691 F.3d at 632 (distinguishing Goodson on similar grounds).

Griggs next points us to Ramirez v. Martinez, 716 F.3d 369 (5th Cir. 2013). There, a suspect pulled away from ah officer who was attempting to make an arrest, and the officer immediately used a Taser on the suspect and tackled him to the ground. Id. at 372-73. After the suspect had been restrained with handcuffs, the officer tased him again. Id. The court found that the officer was not entitled to qualified immunity on the plaintiffs excessive force claims. Id. at 377-80. Although Officer Martinez’s quick use of the Taser was arguably similar to Officer Brewer’s quick use of the takedown maneuver, Martinez’s decision to continue to tase Ramirez after he was already handcuffed was far more unreasonable than Officer Brewer’s conduct. Even so, the Martinez court did not find that the quick use of a Taser on an arrestee who is resisting arrest amounts to' a clearly established violation, so that case provides Griggs with little persuasive support. Id. at 378 (citing Poole, 691 F.3d at 626).

Thus we conclude that Officer Brewer’s conduct in executing the initial takedown was not constitutionally unreasonable in the light of clearly established law. Or, stated differently, our precedent does not clearly establish that this “take-down” maneuver—against a drunken, erratic suspect who is resisting arrest—is constitutionally unreasonable. See Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (“For a constitutional right to be clearly established, its contours must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of preexisting law the unlawfulness must be apparent.”) (citations and quotations omitted). Brewer’s actions may not have been as restrained as we would like to expect from model police conduct, but qualified immunity “protect[s] officers from the sometimes hazy border between excessive and acceptable force.” Saucier v. Katz, 533 U.S. 194, 206, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (citations and quotations omitted), overruled in part on other grounds, Pearson, 555 U.S. at 227, 129 S.Ct. 808; see also Graham, 490 U.S. at 396-97, 109 S.Ct. 1865 (“The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.”).

B.

The second issue is whether Officer Brewer’s punching Griggs several times while he was on the ground, as Brewer attempted to handcuff him, amounted to excessive force. Briefly, recall that after Officer Brewer threw Griggs to the ground, he placed his weight on top of him, and he attempted to handcuff him. Griggs’s hands were under his stomach. Brewer then punched Griggs to gain control over his arms. After Brewer gained control, Griggs, ignoring the officers’ commands, again pulled away and again tucked his arms back under him. Brewer again punched Griggs until he was able to regain control of his hands to handcuff him.

In assessing Brewer’s conduct under the defense of qualified immunity, we need not determine whether an actual constitutional violation occurred. The question for us is whether Brewer’s conduct was unreasonable in the light of clearly established law. In this instance, Griggs points to no authority establishing that it was unreasonable for an officer to use non-deadly punches to gain control of the arms of a drunken, actively resisting suspect. Griggs actively resisted and refused to comply with the officers’ clear and audible commands. Although the officers might have used less forceful conduct, there was no settled authority to put Brewer on notice that his use of force in such circumstances violated Griggs’s constitutional rights. See Poole, 691 F.3d at 627 (“We must evaluate an officer’s use of force from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”) (citations and quotations omitted).

We therefore hold that Officer Brewer is entitled to qualified immunity as to the claims stemming from his attempts to handcuff Griggs while Griggs was on the ground.

C.

The third issue is whether Officer Brewer’s punch after Griggs kicked Brewer amounted to excessive force. Briefly, recall that after Officer Brewer ■ finally handcuffed Griggs, he hoisted Griggs up, escorted him to his patrol vehicle, and pushed him in. Griggs, whose legs were still hanging out the door, delivered a kick to Officer Brewer’s chest. Brewer quickly responded by placing his weight on Griggs’s legs and delivering a swift punch to Griggs’s face. Griggs receded into the vehicle, and Brewer closed the door.

Griggs argues that the punch was disproportionate to his kick and excessive because he was restrained in handcuffs. He cites caselaw that punching or otherwise gratuitously harming a restrained suspect constitutes excessive force. See, e.g., Ramirez, 716 F.3d at 378. The principle of law may be correct, but it has no application here. Griggs was clearly not subdued and under restraint; if he were, he would not have been able to physically assault Officer Brewer. He still posed a danger to Brewer, as evidenced by the fact that he did, in fact, kick Officer Brewer in the chest.

Applying the Graham factors, some use of force to gain control of Griggs was not objectively unreasonable. Under Graham, driving while under the influence is a serious crime; the intoxicated Griggs was capable of and evinced erratic behavior; and Griggs had been and continued to demonstrate active resistance during the course of the arrest. And, as it were, the punch was effective for its purpose—Griggs immediately curled up into the back of the police car, and Brewer was able to close the door. In short, the use of force was the sort of “split-second judgment” in a difficult situation that qualified immunity is designed to protect. See Graham, 490 U.S. at 396-97, 109 S.Ct. 1866.

V.

Although the parties have different “spins” on the facts, the pertinent objective facts, demonstrated by testimony and the video, are undisputed. In the light of this evidence, we conclude that no material fact issue exists and that none of Officer Brewer’s conduct in effecting Griggs’s arrest was objectively unreasonable in the light of clearly established law. Accordingly; the district court did not err in holding that. Brewer is entitled to qualified immu-nii^so the judgment is

AFFIRMED.

      . Pat downs do not always reveal weapons, leading to tragic circumstances. See, e.g., Tamayo v. Stephens, 740 F.3d 991, 993 (5th Cir. 2014) (despite having been searched and placed in handcuffs by Officer Gaddis, Ta-mayo had a gun concealed on his person which he managed to máneuver in place; he then shot and killed Officer Gaddis).