author: JAMES L. DENNIS, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee v. Edward MESQUITI, Defendant-Appellant
    No. 16-50034
    United States Court of Appeals, Fifth Circuit.
    FILED April 12, 2017

      . Joseph H. Gay, Jr., Mark Randolph Stelmach, Esq., Assistant U.S. Attorneys, U.S. Attorney’s Office, San Antonio, TX, for Plaintiff-Appellee.
    Bradford W. Bogan, Laura G. Green-berg, Assistant Federal Public Defenders, Maureen Scott Franco,' Federal Public Defender, Federal Public Defender’s Office, San Antonio, TX, for Defendant-Appellant.
    Before WIENER, DENNIS, and HAYNES, Circuit Judges.
   JAMES L. DENNIS, Circuit Judge:

Edward Mesquiti was charged in an indictment with one count of bank robbery and aiding and abetting thereof in violation of 18 U.S.C. §§ 2 and 2113(a). Prior to trial, the district court granted Mesquiti’s motion to dismiss his attorney. The case eventually proceeded to a jury trial, with Mesquiti representing himself throughout the trial. The jury ultimately found Mesq-uiti guilty, and he was sentenced to 151 months of imprisonment. Now represented by the Federal Public Defender, Mesquiti appeals his conviction, arguing that the district court deprived him of his constitutional right to counsel by allowing him to represent himself and that the court reversibly erred in denying a continuance. For the following reasons, we affirm the district court’s judgment.

I

Mesquiti is a follower of the “sovereign citizen” movement, which we have described as “a loose grouping of litigants, commentators, and tax protesters who often take the position that they are not subject to state or federal statutes and proceedings.” United States v. Weast, 811 F.3d 743, 746 n.5 (5th Cir. 2016). An indictment was filed against Mesquiti on April 2, 2014, charging him with bank robbery and aiding and abetting of same, in violation of 18 U.S.C. §§ 2 and 2113(a), and he was appointed counsel the next day. On April 8, 2014, the court granted Mesquiti’s motion to replace his appointed counsel with a retained attorney, Richard Langlois. On July 30, Langlois received a letter from Mesquiti, notifying him that his “representation of the ‘Corporate fiction/ens legis Debtor; Edward Mesquiti Jr.... is no longer needed” and asking him to notify the court of his removal as “legal representative.”

The following day, Mesquiti filed with the court a pro se document titled “Notice and Declaration of Revocation of Power of Attorney and Notice and Declaration of Fraud and Notice to Cease and Desist,” in which he said that “all power of attorney ... is wholly revoked, extinguished, canceled, [and] made null and void.” Langlois thereafter moved to withdraw as counsel, and, on August 20, a hearing on the motion was held before a magistrate judge. During the hearing, the magistrate judge repeatedly asked Mesquiti if he wished to represent himself, but Mesquiti was unresponsive, instead making statements consistent with his sovereign citizen ideology and asserting that he did “not consent to these proceedings.” The magistrate judge concluded that he could not say that Mesq-uiti wished to represent himself, and he therefore appointed the Federal Public Defender to represent Mesquiti after granting Langlois’s motion to withdraw.

On February 5, 2015, the court conducted a docket call, during which Mesquiti was uncooperative. After Mesquiti’s appointed counsel, Alfredo Villarreal, announced that he represented him, Mesquiti declared, “[H]e is not here for me” and asserted that the court had “no subject matter jurisdiction.” Both Villarreal and the Government’s attorney expressed doubts about Mesquiti’s competence to stand trial, and the district court ordered a competency evaluation. The court subsequently received a thorough report by a licensed psychologist opining that Mesquiti was competent to stand trial, his adherence to the sovereign citizen ideology notwithstanding. The report also noted that, with respect to his need for representation, Mesquiti stated that “he is not trying to represent himself nor does he need a lawyer because the need for representation comes after the court establishes it has jurisdiction over him.” In light of the report’s conclusions, the court found that Mesquiti was competent to stand trial.

On June 17, 2015, the court held a pretrial hearing during which Villarreal announced that Mesquiti was ready for trial. After the court explained to Mesquiti that his attorney stated that he wanted to go to trial, Mesquiti said, “Your Honor, I haven’t accepted Mr. Villarreal as my attorney. I don’t consent to him being my attorney. I have never asked him to be my attorney.” The court construed Mesquiti’s statement as “a motion to withdraw Villarreal as [his] attorney” and stated, “You have a right to represent yourself. The motion is granted. Mr. Villarreal will be standby counsel.” The district court then warned Mesquiti that proceeding pro se was not advisable. The court told Mesquiti that it was “generally a very bad idea to proceed pro se,” that it was “always inadvisable” to do so, and that he “really need[ed] to have a lawyer.” The district court told Mesquiti that he had been charged with a bank robbery, in violation of 18 U.S.C. § 2113, and informed him that, if found guilty, his sentencing guidelines range would be 121 to 151 months but that he would face up to twenty years of imprisonment. The court also warned Mesquiti that his jurisdictional arguments could not be continuously interjected into the trial, as they did not have “any legal merit.” At the conclusion of the hearing, the court again advised Mesquiti:

Again, I am telling you, it is always a bad idea for defendants to represent themselves, and so I highly caution you, don’t go this approach. One hundred twenty-one to 151 months is a long time in prison and potentially you could be facing up to 20 years. And so you know what happened that day. You know what the evidence is the government has against you. Your codefendant, I believe, is going to be testifying against you, so this is not a good posture you are in.

When asked if he had anything to say, Mesquiti replied, “I don’t accept Mr. Villarreal as my lawyer and I don’t consent to these proceedings, sir.” The court relieved Villarreal from representing Mesquiti and instructed him to serve as standby counsel, informing Mesquiti that he could change his mind and ask that Villarreal take over as lead counsel.

On the first day of trial, July 7, 2015, before jury selection began, Mesquiti stated to the court that he had been “locked up in segregation” and that he had had “no access to courts, no way to get paper, no way to write.” The Government’s attorney responded that she had mailed copies of all of the Government’s filings to Mesquiti at his place of confinement, and she pointed out that all of the Government’s evidence was available in the courtroom if he wished to review it. The district court construed Mesquiti’s argument as a motion to dismiss the indictment and denied that purported motion.

Later that day, during an afternoon break in the trial proceedings, Mesquiti made the following statement:

Your Honor, about my Sixth Amendment right to have my own witnesses, to have my own discovery evidence put in, I mean, I’ve been held under conditions that don’t allow me to do any of that, to have — to subpoena witnesses, to have any kind of discovery added to this trial. I’m sure you can — I have the constitutional right to defend myself. And without my witnesses, I’m barred from putting on a defense.

In response, the district court stated that Mesquiti had known that his trial was scheduled for that day and that he had declined representation by an attorney and had insisted on representing himself. Mesquiti then asserted that he had been given discovery just forty-five minutes before the trial began, to which the district court responded that discovery had been provided to Mesquiti’s counsel but he had refused to meet with his counsel.

At the close of the Government’s casein-chief, Mesquiti called no witnesses, and he rested without putting on any evidence. The jury found Mesquiti guilty, and the district court ultimately sentenced him to 151 months of imprisonment. Mesquiti appeals, challenging his conviction.

II

First, we discuss Mesquiti’s contention that the district court deprived him of his constitutional right to counsel at a critical stage of the proceeding by allowing him to proceed pro se. Sixth Amendment challenges to the validity of a waiver of counsel are reviewed de novo. United States v. Jones, 421 F.3d 359, 363 (5th Cir. 2005). “The Sixth Amendment safeguards to an accused who faces incarceration the right to counsel at all critical stages of the criminal process.” Iowa v. Tovar, 541 U.S. 77, 80-81, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004). To determine if the district court violated Mesquiti’s right to counsel by dismissing counsel and relegating him to the status of standby counsel, we inquire whether Mesquiti properly waived his right to counsel. See, e.g., United States v. Virgil, 444 F.3d 447, 454 (5th Cir. 2006). In the course of this inquiry, we ask whether the defendant in fact relinquished his right to counsel and whether he did so knowingly and intelligently. See id. at 453.

A. Mesquiti Relinquished His Right to Counsel

“Where a fundamental constitutional right, such as the right to counsel, is concerned, courts indulge every reasonable presumption against waiver.” United States v. Cano, 519 F.3d 512, 517 (5th Cir. 2008) (quoting Burton v. Collins, 937 F.2d 131, 133 (5th Cir. 1991)). A defendant can waive his right to counsel implicitly, by his clear conduct, as well as by his express statement. See, e.g., United States v. Fields, 483 F.3d 313, 350 (5th Cir. 2007). As relevant here, because “indigent defendants have no right to appointed counsel of their choice,” we have held that “a defendant’s refusal without good cause to proceed with able appointed counsel constitutes a voluntary waiver of’ the right to counsel. Id. (alteration omitted) (quoting Richardson v. Lucas, 741 F.2d 753, 757 (5th Cir. 1984)). To constitute waiver, such a refusal must take the form of “a persistent, unreasonable demand for dismissal of counsel.” United States v. Moore, 706 F.2d 538, 540 (5th Cir. 1983).

Mesquiti contends that he had not waived-his right to counsel at the pretrial hearing on June 15, 2015, before the court dismissed Villarreal from representation and instated him as standby counsel. We conclude, however, that Mesquiti’s actions before and on the day of the hearing constituted waiver of his right to counsel. Mesquiti acted to terminate his representation by three different attorneys, retained and appointed. He renounced his last two attorneys in hearings before two different courts. At no point did Mesquiti articulate dissatisfaction with his particular counsel, and he never asked the court for substitute counsel. While it is true that Mesquiti did not expressly say that he wished to represent himself, he “refus[ed] without good cause to proceed with able appointed counsel,” Fields, 483 F.3d at 350 (quoting Richardson, 741 F.2d at 757), and made “persistent, unreasonable demand[s] for dismissal of counsel,” Moore, 706 F.2d at 540. Mesquiti’s conduct therefore constituted a relinquishment of his right to counsel.

B. Mesquiti’s Relinquishment of His Right to Counsel was “Knowing and Intelligent”

“Waiver of the right to counsel, as of constitutional rights in the criminal process generally, must be a ‘knowing, intelligent act done with sufficient awareness of the relevant circumstances.’” Tovar, 541 U.S. at 81, 124 S.Ct. 1379 (alteration omitted) (quoting Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)). In Faretta v. California, the seminal case explaining the requirements for waiver of counsel, the Supreme Court mandated that the defendant “be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ ” 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (quoting Adams v. U.S. ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942)). However, the Court has not “prescribed any formula or script to be read to a defendant who states that he elects to proceed without counsel.” Tovar, 541 U.S. at 88, 124 S.Ct. 1379.

We have required district courts to exercise discretion in determining the precise nature of the warning provided to a defendant seeking to represent himself, depending on the circumstances of the individual case. E.g., United States v. Davis, 269 F.3d 514, 519 (5th Cir. 2001). The trial court must consider various factors, including “the defendant’s age and education and other background, experience, and conduct.” McQueen v. Blackburn, 755 F.2d 1174, 1177 (5th Cir. 1985) (citation omitted). “The court must ensure that the waiver is not the result of coercion or mistreatment of the defendant and must be satisfied that the accused understands the nature of the charges, the consequences of the proceedings, and the practical meaning of the right he is waiving.” Id. (citation omitted).

Although, as explained, the precise nature of appropriate warnings depends on the particularities of the case, we have generally required trial courts to provide warnings of substance, including at least a modicum of specificity. For instance, in United States v. Davis, the defendant was dissatisfied with his attorney because the attorney refused to ask witnesses the questions the defendant had prepared. 269 F.3d at 516-17. The district court confirmed that the defendant wanted to proceed to ask the questions despite his attorney’s advice that asking the questions was not in his best interest. The court also asked the defendant if he understood that if the answers implicated him, “that puts you in an awkward position ... with the jury” and that he would not “be able to stand up and throw a temper tantrum if somebody ... says something that you believe is provocative.” Id. at 517 n.l. We concluded on appeal that the trial judge’s warnings against self-representation, which relied largely on the warnings given by the same counsel that the defendant no longer trusted, were not sufficient to discharge the trial court’s duties under Faret-ta. See Davis, 269 F.3d at 518.

Similarly, in United States v. Jones, “the district court recommended to [the defendant] that he have an attorney[,] ... stated that his appointed counsel was highly qualified,” and asked him if he “fully realized that representing himself was dangerous to him.” 421 F.3d at 362, 364. On appeal, we found that “the district court took no steps, except in the most general way, to insure that Jones was ‘aware of the dangers and disadvantages of self-representation’ ” and therefore concluded that the court did not do enough to protect the defendant’s right to counsel. Id. at 364-65 (quoting United States v. Joseph, 333 F.3d 587, 590 (5th Cir. 2003)).

Where the record demonstrates that the trial court provided advisories that were more concrete, we have generally not required those warnings to be very detailed. For example, in United States v. Joseph, the district court recommended several times that the defendant allow counsel to represent him because they were very good lawyers, and, after the court instructed the attorneys to serve as standby counsel, it recommended that the defendant allow counsel to question witnesses, conduct cross-examination, and put on any evidence on his behalf. 333 F.3d at 590.

We found that this was sufficient to inform the defendant of the dangers and disadvantages of self-representation. Id. Similarly, in United States v. Fulton, 131 Fed.Appx. 441, 442-43 (5th Cir. 2005), we approved of the district court’s warnings where they advised the defendant: (1) that his case was “complex” and involved “complex issues”; (2) that it was in his best interest to proceed with appointed counsel; and (3) that the defendant faced a “daunting task” if he chose to proceed on his own because he was facing a “very capable prosecutor.”

The warnings that the district court provided to Mesquiti at the June 17 hearing satisfy the requirements of Faret-ta, as applied by our precedent. As an initial matter, the district court had all of the necessary information to assess Mesq-uiti’s ability to understand its warnings regarding the perils of self-representation. The court had before it a thorough report concerning Mesquiti’s competence to stand trial. This report described Mesquiti’s age, education history, employment history, relationship history, substance use history, medical history, mental health history, and legal history. The report noted that Mesq-uiti was 51 years old, that he dropped out of high school in the eleventh grade but went on to receive his GED, that he continuously worked when he was not incarcerated, and that he was a man of average intelligence.

At the June 17 hearing, the district court on several occasions strongly warned Mesquiti that proceeding pro se was not advisable. The court informed Mesquiti that, if the jury found him guilty, the applicable sentencing guidelines range was 121 to 151 months of imprisonment but that he could face up to twenty years of imprisonment. The court advised Mesquiti of the nature of the charges against him. The court also warned Mesquiti that his jurisdictional arguments could not be continuously interjected into the trial, as they did not have “any legal merit.” The court further emphasized that the Government possessed substantial evidence against Mesquiti and that his codefendant was going to testify against him and thus explained that Mesquiti was “not [in] a good posture.” In the face of these warnings by the court, Mesquiti stated, “I don’t accept Mr. Villarreal as my lawyer and I don’t consent to these proceedings.”

Mesquiti complains that the court did not advise him that he would be giving up any right to access to legal research and did not warn him of the practical difficulties of subpoenaing witnesses or procuring defensive evidence that might be necessary to present a defense. We agree that the court’s warnings could have been more concrete. Cf. Tovar, 541 U.S. at 89, 124 S.Ct. 1379 (“ ‘At trial ... counsel is required to help even the most gifted layman adhere to the rules of procedure and evidence, comprehend the subtleties of voir dire, examine and cross-examine witnesses effectively, object to improper prosecution questions, and much more.’ Warnings of the pitfalls of proceeding to trial without counsel ... must be ‘rigorously’ conveyed.” (alterations omitted) (quoting Patterson v. Illinois, 487 U.S. 285, 298, 299 & n.13, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988))). But we cannot say that the district court deprived Mesquiti of his right to counsel by failing to make these specific advisories.

The court informed Mesquiti of the nature of the charge against him and the consequences of the proceedings and explained the difficulty of his particular case to him. Importantly, the court also highlighted that Mesquiti would not be able to continuously advance his sovereign citizen theories to the jury, which seemed to have been the primary motivation behind Mesq-uiti’s decision to waive his right to counsel. The district court repeatedly and strongly advised Mesquiti against self-representation in the context of his particular case, and its warning equaled or exceeded those previously approved of by this court. See, e.g., Joseph, 333 F.3d at 590. There was no indication that Mesquiti, a man of average intelligence, did not understand the difficulties he faced by proceeding without counsel, and we are satisfied that he “kn[ew] what he [wa]s doing.” See Faretta, 422 U.S. at 835, 95 S.Ct. 2525 (quoting McCann, 317 U.S. at 279, 63 S.Ct. 236). Thus, we find that Mesquiti knowingly and intelligently relinquished his right to counsel at the June 17 hearing. Accordingly, we conclude that the district court’s dismissal of Villarreal from full representation did not deprive Mesquiti of his Sixth Amendment right to counsel.

Ill

We now turn to consider Mesquiti’s contention that the district court reversibly erred in denying a continuance. The Government argues that Mesquiti never requested a continuance and thus that we should review this claim by Mesquiti for plain error. Mesquiti concedes that he did not expressly move for a continuance, but he contends that the district court should have construed his complaints about his inability to prepare for trial, expressed on the morning and afternoon of the first day of his trial, as a request for a continuance. Thus, Mesquiti urges that we review this claim for abuse of discretion. Because we conclude that Mesquiti fails to establish reversible error even under the less demanding abuse-of-discretion standard, we need not determine the applicable standard of review.

Trial judges have “broad discretion” in ruling on motions for a continuance. United States v. Scott, 48 F.3d 1389, 1393 (5th Cir. 1995). “In review, we evaluate each situation on a case-by-case basis and normally consider only the reasons for continuance presented to the trial judge.” Id. (quoting United States v. Cueto, 611 F.2d 1056, 1060 (5th Cir. 1980)). To establish that denial of such a motion was an abuse of discretion, the appellant “must show that the denial resulted in ‘specific and compelling or serious prejudice.’ ” United States v. Barnett, 197 F.3d 138, 144 (5th Cir. 1999) (some internal quotation marks omitted) (quoting United States v. Krout, 66 F.3d 1420, 1436 (5th Cir. 1995)).

Mesquiti notes that he had only three weeks between the hearing at which his counsel was dismissed from primary representation and the start of trial, and he contends that he therefore did not have adequate time for trial preparation. He emphasizes that during this three-week period, the Government filed its proposed jury instructions, witness list, and exhibit lists, as well as a notice of its intent to use evidence pursuant to Federal Rule of Evidence 404(b) and Federal Rule of Evidence 609, and he asserts that he needed additional time to respond to these filings. However, Mesquiti does not specifically indicate what response he could have given or how his lack of response prejudiced his defense. Next, he states that he needed additional time to request jury instructions to support his defensive theory, but he did not indicate to the district court that he needed more time for this purpose, and we therefore do not consider this reason. See Scott, 48 F.3d at 1393. Moreover, Mesquiti does not state what jury instructions he would have requested or how their absence prejudiced his case.

Mesquiti also contends that he needed additional time to procure the attendance of defense witnesses. Yet, he does not indicate what witnesses he might have called or explain how their testimony would have aided his defense, and he therefore cannot establish prejudice on this basis. United States v. Shaw, 920 F.2d 1225, 1230 (5th Cir. 1991) (“In order for an appellant to show that a continuance was necessary to secure a witness, ‘[he] must show ... that substantial favorable testimony would be tendered by the witness, that the witness [will be] available and willing to testify, and that the denial of a continuance would materially prejudice [him].’ ” (quoting United States v. Uptain, 531 F.2d 1281, 1287 (5th Cir. 1976))). Finally, Mesquiti notes that he had been held in segregation in the weeks leading up to his trial and asserts that, while in segregation, he lacked adequate resources to review the discovery. He further asserts that his receipt of discovery shortly before the start of trial was inadequate to protect his rights. However, here, too, Mesquiti does not specifically indicate how the late receipt of discovery prejudiced him, and, as the district court noted, Mesquiti’s standby counsel had received the discovery provided by the Government well before trial, and Mesquiti could have reviewed the discovery with him.

Because Mesquiti fails to make the requisite showing of prejudice resulting from the denial of a continuance, he cannot establish an abuse of discretion by the district court. See Barnett, 197 F.3d at 144.

IV

For these reasons, we AFFIRM the district court’s judgment.

      . Mesquiti also argues that the he was deprived of an opportunity to prepare and present a defense, in violation of the Sixth Amendment, because he lacked access to legal materials, but he concedes that this argument is foreclosed by Degrate v. Godwin, 84 F.3d 768, 769 (5th Cir. 1996), and he raises the issue only to preserve it for possible further review.

      . We have previously noted that ''[t]he Bench-book for U.S. District Court Judges, published by the Federal Judicial Center, provides a guide for questions the judge can ask to convey the disadvantages the defendant will likely suffer if he proceeds pro se.” Jones, 421 F.3d at 363; Davis, 269 F.3d at 519 n.11.

      . Mesquiti makes no argument that we should review this issue de novo because the district court failed to recognize his motion and did not deny it in the exercise of discretion. Cf., e.g., FDIC v. Dawson, 4 F.3d 1303, 1308 (5th Cir. 1993) (applying de novo review because district court denied equitable tolling as a matter of law rather than in exercise of discretion). Any such argument is therefore forfeited. See, e.g., Jefferson Cmty. Health Care Ctrs., Inc. v. Jefferson Par. Gov't, 849 F.3d 615, 626 (5th Cir. 2017) (citing United States v. Jackson, 426 F.3d 301, 304 n.2 (5th Cir. 2005)) (issue not raised in party's opening brief is generally forfeited).


source: Caselaw Access Project

author: CARL E. STEWART, Chief Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee v. Avan NGUYEN, Defendant-Appellant
    No. 16-10186
    United States Court of Appeals, Fifth Circuit.
    FILED April 13, 2017

      Emily Baker Falconer, James Wesley Hendrix, Assistant U.S. Attorneys, U.S. Attorney’s Office, Dallas, TX, for Plaintiff-Appellee.
    Richard Bratton Roper, III, Esq., Thompson &. Knight, L.L.P., Dallas, TX, for Defendant-Appellant.
    Before STEWART, Chief Judge, and JONES and OWEN, Circuit Judges.
   CARL E. STEWART, Chief Judge:

Defendant-Appellant Avan Nguyen pleaded guilty to aiding and assisting in the preparation of a false and fraudulent tax return. The district court imposed a 36-month above-Guidelines sentence based on the 18 U.S.C. § 3553(a) factors and its conclusion that it was more likely than not that Nguyen participated in the uncharged offense of currency structuring. Nguyen now appeals the reasonableness of his sentence. Finding no error, we AFFIRM.

I. BACKGROUND

Nguyen, the owner of a wholesale salon equipment business, was charged with aiding and assisting in the preparation of a false and fraudulent corporate tax return. He pleaded guilty pursuant to a written plea agreement and entered into a settlement agreement with the Government, wherein he agreed to forfeit $1,100,000 in seized funds. In preparing the presentence report (“PSR”), the probation officer determined that Nguyen had a total offense level of 13 and a criminal history category of I, resulting in an advisory Guidelines range of 12-18 months. However, the probation officer also noted that Nguyen appeared to be involved in unlawful structuring activities: IRS agents found over $4,900,000 in structured deposits made by third parties to bank accounts registered to Nguyen or his family members. Moreover, during a raid of Nguyen’s business, IRS investigators found $3,215,703 in currency — most of it separated into $10,000 bundles — whose source could not be determined. In paragraph 87 of the PSR, the probation officer suggested the structuring activities could warrant an upward departure under U.S.S.G. § 4A1.3 for an underrepresented criminal history or under U.S.S.G. § 5K2.21 for uncharged conduct.

Nguyen objected to the suggestion that an upward departure may be appropriate, and the Government agreed that there was insufficient evidence to prove that he had structured or directed the structuring of deposits into his bank accounts. The district court, however, entered an order tentatively concluding that Nguyen’s objections to the upward departure were without merit. The district court suggested that it would reject the plea agreement, including the forfeiture settlement, and that Nguyen should receive a sentence above the advisory Guidelines range, given the probability that he knew of the structured deposits being made into his accounts and the Government’s failure to prosecute him for that crime.

At the first sentencing hearing, the district court conducted an evidentiary hearing to determine whether Nguyen had participated in illegal structuring activities. The district court questioned three witnesses. Oanh Nguyen, Defendant-Appellant’s wife, testified that the new business bank accounts Nguyen had opened at Chase Bank (“Chase”) and Wells Fargo were not an attempt to evade the law but rather a result of his decision to restructure the company after their son decided to leave the business. IRS Special Agent Alan Hampton and IRS Task Force Officer Alison Turner then testified about the investigation into Nguyen’s financial activities. Afterwards, the district court accepted the plea agreement but expressed its belief that there was sufficient evidence to conclude that structuring activities occurred, that Nguyen was aware of the illegal transactions, and that he aided and abetted the deposits. The Government, while agreeing there was enough evidence to show that the funds were structured, expressed doubt that there was sufficient proof by a preponderance of the evidence to show that Nguyen himself assisted in the structuring.

At the second sentencing hearing, the district court sustained Nguyen’s objection to an upward departure as detailed in paragraph 87 of the PSR. The district court also concluded that Nguyen was not entitled to a reduction for acceptance of responsibility, which resulted in a newly applicable Guidelines range of 21-27 months. Taking into account the 18 U.S.C. § 3553(a) factors, the district court then sentenced Nguyen to 36 months in prison, to be followed by a one-year term of supervised release and payment of a $250,000 fine. The district court acknowledged the Government’s doubt as to whether Nguyen participated in structuring activities, but explained that it had reached a different conclusion based on its examination of the evidence and provided a ■lengthy explanation as to why “it [was] more likely than not that [Nguyen] committed the offense of structuring.” In support of its decision, the district court cited, inter alia, Nguyen’s dishonesty in un-derreporting his taxable income for multiple years; the connection between the investigation into his structuring activities and the discovery of tax fraud; and that Nguyen was able to retain “millions of dollars” that could have been subject to forfeiture had the Government pursued forfeiture proceedings. The district court rejected Ms. Nguyen’s explanation for why the new bank accounts were opened and noted that Defendant-Appellant gave conflicting explanations to IRS investigators as to whether funds seized from his business were bank withdrawals. In its thirteen-page Statement of Reasons (“SOR”), the district court reiterated these conclusions and detailed the factors that influenced it to impose an above-Guidelines sentence. Nguyen timely appealed.

II. DISCUSSION

This court reviews sentfencing decisions for reasonableness. Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). Using a bifurcated review process, we first examine whether the district court committed any significant procedural error. Gall, 552 U.S. at 51, 128 S.Ct. 586. If the district court’s decision is procedurally sound, we then consider the substantive reasonableness of the sentence. Id.

A. Procedural Reasonableness

1.

In considering the procedural unreasonableness of a sentence, we review the district court’s interpretation and application of the Sentencing Guidelines de novo and its findings of fact for clear error. Cisneros-Gutierrez, 517 F.3d at 764. If the district court committed a significant procedural error, we must remand unless the error was harmless. United States v. Delgado-Martinez, 564 F.3d 750, 752-53 (5th Cir. 2009).

Significant procedural errors include “failing to calculate (or improperly calculating) the Guidelines range, ... failing to consider the § 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.” Gall, 552 U.S. at 51, 128 S.Ct. 586. “[W]e will give great deference to [a] sentence” if the judge “carefully articulate[s] the fact-specific reasons she concludes that [a non-Guidelines] sentence is appropriate,” “commits no legal error in the procedure followed in arriving at the sentence,” and “gives appropriate reasons for her sentence.” United States v. Mares, 402 F.3d 511, 519-20 (5th Cir.), cert. denied, 546 U.S. 828, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005).

2.

Nguyen contends that the district court committed procedural error because its determination that he participated in financial structuring activities was not supported by sufficient evidence and thus could not form the basis for an upward variance. We disagree.

Generally, structuring requires proof of three elements: that (1) the defendant knew of the financial institution’s legal obligation to report transactions in excess of $10,000; (2) the defendant knowingly structured (or attempted to structure, or assisted in structuring) a currency transaction; and (3) the purpose of the structured transaction was to evade that reporting obligation. Fifth Circuit Pattern Jury Instructions (Criminal Cases) § 2.104 (2015) [hereinafter Jury Instructions § 2.104], Although the Government must prove each of these elements beyond a reasonable doubt to establish the defendant’s guilt at trial, for sentencing purposes, the district court needed only to find that the elements were satisfied by a preponderance of the evidence. See Mares, 402 F.3d at 519 (“The sentencing judge is entitled to find by a preponderance of the evidence ... all facts relevant to the determination of a non-Guidelines sentence.”). Additionally, direct evidence is not required; rather, “the sentencing court is permitted to make common-sense inferences from the circumstantial evidence.” United States v. Caldwell, 448 F.3d 287, 292 (5th Cir. 2006).

Given these standards, the district court did not err in inferring that Nguyen participated in currency structuring. First, the district court’s conclusion that “it is more likely than not that [Nguyen] knew of the banks’ reporting obligations” was not clearly erroneous. See Jury Instructions § 2.104. In support of its conclusion, the district court pointed to a June 7, 2012 letter written by Chase to Nguyen that stated in relevant part:

All banks operating in the United States are required by law to file a Currency Transaction Report (CTR) when a customer’s cash transaction(s) exceed $10,000 on any business day.... [W]e have noted through a review of your account(s) a pattern of cash transactions that potentially give the appearance of an attempt to evade the CTR filing requirement. Attempting to evade the CTR filing requirement may be viewed as structuring and is a violation of the Bank Secrecy Act.
Therefore, Chase feels that it would be in our mutual best interest for you to change your transaction patterns. If your pattern of cash activity does not change promptly, your account, along with any related accounts, may be at risk for closure.

Although Nguyen suggests there is an absence of evidence showing that Chase actually mailed the letter or that he received it, we agree with the district court’s conclusion that Nguyen received a letter that was addressed to him — particularly given that he does not explicitly assert that he never received the letter nor does he explain why he would not have received it. Moreover, Nguyen’s actions following the letter’s issue date support a conclusion that he received it: five days later, he filed a business name change with the Texas Secretary of State; approximately two weeks later, he opened a new account at Chase under the new business name; shortly thereafter, currency deposits into the Chase account referenced in the warning letter became infrequent while frequent deposits appeared in the newly opened, account; and less than one week after that, one of Nguyen’s business customers, Anh Le, changed the pattern of his currency deposits into Nguyen’s accounts. The district court additionally noted that “[a]ny businessman of the years of experience [Nguyen] had in running his own business, and with the number of bank accounts he had and the number of currency transactions conducted in those accounts, would have known of the [banks’ reporting] requirement.” We are convinced that the Chase letter and Nguyen’s resultant actions, combined with Nguyen’s extensive business experience, support the district court’s conclusion that “it is more likely than not that [Nguyen] knew of the banks’ reporting obligations.”

Next, the district court determined that “it is more likely than not” that Nguyen “was intentionally and knowingly participating in the illegal currency-structuring activities.” See Jury Instructions § 2.104. For example, the district court referenced Nguyen’s actions after the date of the Chase letter, as detailed above. The district court also explained that it was unpersuaded by Ms. Nguyen’s explanation for why her husband opened the new bank accounts, concluding that she lacked sufficient knowledge of his business activities to be able to give informed answers “and that she was stretching to help her husband.”

Furthermore, other evidence before the district court further supports the conclusion that Nguyen knowingly and intentionally participated in structuring activities. For example, IRS investigators found at his place of business $3,215,703 in currency, most of which was separated into $10,000 bundles. Nguyen stated that he did not deposit the money in the bank “because their fees are too high and he does not trust banks.” Nguyen also provided conflicting explanations as to the source of the currency. He initially told the officers that it came from his customers’ cash payments and from bank withdrawals — which he made in increments of $5,000 or $10,000, and never “over $10,000 at a time.” However, when officers asked why he never withdrew more than $10,000, Nguyen “hesitated and then stated that the U.S. currency [was] from only sales and the casino.” Nguyen’s counsel later told the Government .that “the cash found in the business was from gambling proceeds.” Additionally, Nguyen’s bank records show that multiple $9,000 deposits were made into his various accounts either on the same day or in close proximity to one another, and because these deposits were round numbers — in contrast to the “legitimate deposits,” all of which were less than $9,000 and non-round numbers— the structured deposits likely would have stood out to Nguyen on his bank statements.

This evidence, taken together, reasonably supports the district court’s determination that Nguyen knowingly and intentionally participated in structuring activities. See Caldwell, 448 F.3d at 292.

3.

For these reasons, we hold that the district court did not clearly err when it determined, based on the circumstantial evidence, that it was more likely than not that Nguyen participated in his customers’ structuring activities. See Jury Instructions § 2.104; Mares, 402 F.3d at 519. We therefore conclude that Nguyen’s sentence was not proeedurally unreasonable. See Gall, 552 U.S. at 51, 128 S.Ct. 586; Mares, 402 F.3d at 519-20.

B. Substantive Reasonableness

Having determined that the district court’s decision was proeedurally sound, we turn to the question of whether it was substantively reasonable. See Gall, 552 U.S. at 51, 128 S.Ct. 586.

1.

We review the substantive reasonableness of a sentence for abuse of discretion. Id.; Delgado-Martinez, 564 F.3d at 751. “A non-Guidelines sentence unreasonably fails to reflect the statutory sentencing factors set forth in § 3553(a) where it (1) does not account for a factor that should have received significant weight, (2) gives significant weight to an irrelevant or improper factor, or (3) represents a clear error of judgment in balancing the sentencing factors.” United States v. Diehl, 775 F.3d 714, 724 (5th Cir. 2015) (quoting United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006)). In reviewing a challenge to the length of a non-Guidelines sentence, this court “may take the degree of variance into account and consider the extent of a deviation from the Guidelines.” United States v. Herrera-Garduno, 519 F.3d 526, 530 (5th Cir. 2008) (quoting Gall, 552 U.S. at 47, 128 S.Ct. 586).

The fact that this court “might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal.” Gall, 552 U.S. at 51, 128 S.Ct. 586. We “must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent' of the variance.” Id.; Diehl, 775 F.3d at 724 (“[O]ur ‘review for' substantive reasonableness is highly deferential, because the sentencing court is in a better position to find facts and judge their import under the § 3553(a) factors with respect to a particular defendant.’ ”) (quoting United States v. Hernandez, 633 F.3d 370, 375 (5th Cir. 2011) (internal quotation marks omitted)). Thus, a “significant variance” from the Guidelines is permitted where it is “commensurate with the individualized, case-specific reasons provided by the district court.” Diehl, 775 F.3d at 724 (quoting United States v. McElwee, 646 F.3d 328, 338 (5th Cir. 2011)).

2.

Nguyen contends that the undue weight the district court gave to insufficient evidence of alleged structuring and the court’s consideration of improper factors — for example, that the Government chose not to forfeit all of the funds it seized from him — rendered the imposed sentence an abuse of discretion. Nguyen also argues that the district court failed to give weight to the fact that his criminal conduct was fully captured by the Guidelines, that he lacked a criminal record, and that he timely paid restitution and other penalties.

We disagree. First, as we held above, the district court’s determination that Nguyen participated in structuring activities was not improper. Furthermore, the district court, both in an extensive statement at sentencing and in the SOR, explained that it was imposing the above-Guidelines sentence based on a variety of factors, including: (1) due to “the magnitude of [Nguyen’s] dishonesty and unwillingness to abide by our society’s basic rules of conduct,” (2) based on “the aggravated nature of [Nguyen’s] criminal conduct,” (3) because Nguyen’s “exceptional [business] success ... had a significant foundation in [his] unlawful activity,” (4) because Nguyen “was able to retain millions of dollars of funds” that “probably would have been forfeited to the [G]overnment” had it pursued forfeiture proceedings, (5) to afford deterrence to “others who are knowledgeable of [Nguyen’s] situation [and] would be tempted to engage in [similar] criminal conduct,” (6) to protect the public from Nguyen’s further crimes and the criminal conduct of others, and (7) because financial penalties alone would not satisfy § 3553(a)’s sentencing objectives. See 18 U.S.C. § 3553(a)(l)-(2). We cannot say that these considerations, taken together, are insufficient to justify a 36-month upward variance. See Gall, 552 U.S. at 51, 128 S.Ct. 586; Diehl, 775 F.3d at 724; Mares, 402 F.3d at 519-20. Moreover, the district court held an evidentiary hearing, questioned the witnesses, thoroughly reviewed the exhibits, and explained its findings in considerable detail. See Diehl, 775 F.3d at 724-25.

3.

Given this court’s “highly deferential” review for substantive reasonableness, id. we hold that the district court did not abuse its discretion in imposing the upward variance to Nguyen’s sentence.

III. CONCLUSION

For the foregoing reasons, Defendant-Appellant Avan Nguyen’s sentence is AFFIRMED.

      . A person 'structures” a transaction if he, acting alone or in conjunction with others, "conducts or attempts to conduct one or more transactions in currency, in any amount, at one or more financial institutions, on one or more days, in any manner, for the purpose of evading ... reporting requirements.” 31 C.F.R. § 1010.100(xx). Section 5324 makes it a crime to "structure or assist in structuring, or attempt to structure or assist in structuring,” a transaction to avoid § 5313’s requirement that financial institutions file a currency transaction report ("CTR”) with the government for all cash transactions exceeding $10,000. 31 U.S.C. §§ 5313(a); 5324(a)(3); United States v. Rodriguez, 132 F.3d 208, 212 (5th Cir. 1997).

      2. These include (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence to reflect the seriousness of the offense, deter criminal conduct, protect the public, and provide the defendant with correctional treatment; (3) the kinds of sentences available; (4) the kinds of sentences and sentencing range established for the applicable category of offense; (5) pertinent policy statements; (6) the need to avoid unwarranted sentencing disparities; and (7) the need to provide restitution to victims. 18 U.S.C. § 3553(a).

      . Nguyen disputes the district court's reliance on cases stating that the business background of a defendant, when combined with evidence of structuring itself, is sufficient to create an inference that the defendant knew of the bank’s currency reporting requirement. See United States v. Packer, 234 F.3d 28, at *1-2 (5th Cir. 2000); Rodriguez, 132 F.3d at 212-13. Nguyen argues that Packer and Rodriguez are distinguishable from the instant case because they involved defendants who had themselves engaged in structuring. We do not read those cases as creating a requirement that the defendant himself must have structured the funds. However, even assuming ar-guendo that Nguyen’s interpretation is correct, his business background was only one factor the district court considered in concluding that he probably knew of the banks’ reporting obligation. Thus, we find no error in the district court’s analysis.

      . Likewise, the district court did not accept as credible Mr. Le’s explanations for the structuring activity in Nguyen’s bank accounts. The district court ultimately determined that Mr. Le's awareness that he too was at risk of prosecution for structuring activities caused him to be cautious in his comments to investigators.

      . The Government argues that plain error review is appropriate because Nguyen failed to preserve his challenge to the substantive reasonableness of his sentence. See United States v. Peltier, 505 F.3d 389, 391 (5th Cir. 2007). This is a close question, however, our review of the record reveals that some of Nguyen’s counsel’s objections and comments at sentencing can reasonably be construed as preserving the challenge. Nevertheless, because Nguyen’s arguments fail under the abuse of discretion standard, we pretermit further analysis under plain error review as moot.


author: REAVLEY, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee v. Dantana TANKSLEY, Defendant-Appellant
    No. 15-11078 Conference Calendar
    United States Court of Appeals, Fifth Circuit.
    April 13, 2017

      Brian W. McKay, Esq., James Wesley Hendrix, Assistant U.S. Attorneys, U.S. Attorney’s Office, Northern District of Texas, Dallas, TX, for Plaintiff-Appellee.
    Jessica Graf, Jason Douglas Hawkins, Federal Public Defender, Federal Public Defender’s Office, Northern District of Texas, Dallas, TX, Taylor Wills Edwards Brown, Christopher Allen Curtis, Assistant Federal Public Defender, Federal Public Defender’s Office, Northern District of Texas, Fort Worth, TX, for Defendant-Appellant.
    Before REAVLEY, ELROD, and . GRAVES, Circuit Judges.
   REAVLEY, Circuit Judge:

The government has filed a petition for en banc rehearing. The en banc petition remains pending. This court supplements its opinion entered on petition for panel rehearing to reaffirm that, under Texas law, section 481.112(a) of the Texas Health and Safety Code is indivisible and “establishes alternative means of punishing an offense in the continuum of drug distribution.” Weinn v. State, 326 S.W.3d 189, 194 (Tex. Crim. App. 2010); see United States v. Tanksley, 848 F.3d 347, 352 (5th Cir. 2017). We reached this conclusion based on Lopez v. State, 108 S.W.3d 293 (Tex. Crim. App. 2003). In urging the en banc court to rehear the case, the government argues our holding “is clearly inconsistent with Guerrero v. State, 305 S.W.3d 546 (Tex. Crim. App. 2009), which controls the issue and holds that manufacturing and possessing with intent to deliver a controlled substance are separate offenses.” The government’s argument is misguided because it is drawn from a plurality opinion. Weinn makes clear that Guerrero never upset Lopez. Weinn, 326 S.W.3d at 193 (footnotes omitted) (explaining that, in Guerrero, the “majority, comprised of two concurring judges and three dissenting judges, noted that the legislature did not intend multiple punishments for manufacture and simultaneous possession with intent to deliver with respect to a single quantity of controlled substances.”). Without a doubt, Weinn “definitively” establishes that Section 481.112 is an indivisible statute. See Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 2256, 195 L.Ed.2d 604 (2016).

      . We note a typographical error in the original Opinion, which wrongly referenced “Hin-kle’s holding that Section 481.112 is divisible.’’ Hinkle, of course, found Section 481.112 to be ¿«divisible. To avoid any future confusion, we also note that our harmless error analysis relied exclusively on the test set forth in United States v. Ibarra-Luna, 628 F.3d 712 (5th Cir. 2010), because the district court did not consider the correct guidelines range. We have also held in United States v. Richardson, 676 F.3d 491, 511 (5th Cir. 2012): “[A] guidelines calculation error is harmless where the district court has considered the correct guidelines range and has stated that it would impose the same sentence even if that range applied.”


author: STEPHEN A. HIGGINSON, Circuit Judge:

text:
    Joe ALVIAR, Jr., Plaintiff-Appellant v. John LILLARD, individually, Defendant-Appellee
    No. 16-11501 Summary Calendar
    United States Court of Appeals, Fifth Circuit.
    FILED April 14, 2017

      Jason Smith, Law Offices of Jason Smith, Fort Worth, TX, for Plaintiff-Appellant.
    Michael C. Christman, Macy’s Law Department, St. Louis, MO, Arthur V. Lambert, Fisher & Phillips, L.L.P., Dallas, TX, for Defendant-Appellee.
    Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
   STEPHEN A. HIGGINSON, Circuit Judge:

Joe Alviar, Jr. sued his former employer, Macy’s Retail Holdings, Inc., a wholly-owned subsidiary of Macy’s, Inc. (collectively, “Macy’s”), and his former supervisor at Macy’s, John Lillard, in Texas state court. After Macy’s removed the case to federal district court, Alviar moved to remand and Lillard moved to dismiss the action against him under Fed. R. Civ. P. 12(b)(6). The district court denied Alviar’s motion to remand, granted Lillard’s motion to dismiss, and entered final judgment for Lillard under Rule 54(b). Alviar appealed, and we now affirm in part and remand in part.

I

Alviar was employed as an Asset Protection Manager by Macy’s. He was diagnosed with Post Traumatic Stress Disorder (“PTSD”) after serving in the United States Army. Alviar alleged that he was subjected to discrimination by Lillard, the Director of Asset Protection, when Lillard expressed hostility to Alviar’s PTSD and made inappropriate statements to Alviar regarding his condition.

In August 2015, Macy’s fired Alviar. Alv-iar alleged that Macy’s stated reason for firing him was false and a “mere pretext for unlawful discrimination” based on his PTSD condition. Additionally, Alviar claimed that “Lillard interfered with [his] contract of employment with Macy’s by terminating him and making the performance of the contract more difficult on account of [his] disability and status as a veteran, in violation of Macy’s poliey[,] which expresses disapproval of discrimination based on disability and Veteran status.” Alviar alleged that Lillard’s actions were contrary to the interests of Macy’s.

Alviar sued Macy’s and Lillard in Texas state court, claiming that Macy’s discriminated against him based on his disability in violation of the Texas Labor Code. Additionally, he claimed that Lillard tortiously interfered with his employment contract with Macy’s. Macy’s removed the suit to federal court on the basis of diversity jurisdiction, contending that the district -court should ignore the in-state and non-diverse citizenship of Lillard because he was improperly joined to defeat diversity. Alviar moved to remand, arguing that because Lillard — acting in his own interest— tortiously interfered with Alviar’s employment contract, he was properly joined, the parties were not completely diverse, and district court lacked jurisdiction. Lillard moved to dismiss the suit against him under Rule 12(b)(6). The district court denied Alviar’s motion to remand and granted Lillard’s motion to dismiss. Alviar timely appealed the order dismissing the claim against Lillard.

II

Alviar is a citizen of Texas and both Macy’s organizations are foreign corporations. Lillard — a citizen of Texas — is an impediment to diversity jurisdiction for two reasons. First, for diversity jurisdiction to exist under 28 U.S.C. § 1332, “all persons on one side of the controversy [must] be citizens of different states than all persons on the other side.” McLaughlin v. Miss. Power Co., 376 F.3d 344, 353 (5th Cir. 2004) (citation omitted). Additionally, a case cannot be removed based on diversity jurisdiction if any properly joined defendant is a citizen of the state in which the action is brought. 28 U.S.C. § 1441(b)(2). “Improper joinder can be established in two ways: (1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the •plaintiff to establish a cause of action against the non-diverse party in state court.” Mumfrey v. CVS Pharmacy, Inc., 719 F.3d 392, 401 (5th Cir. 2013) (citation and alteration omitted). To establish improper joinder under the second prong, the defendant must demonstrate “that there is no possibility of recovery” against the in-state or non-diverse defendant, “which stated differently means that there is no reasonable basis for the district court to predict that the plaintiff might be able to recover against an in-state [or non-diverse] defendant.” Smallwood v. Illinois Cent. R. Co., 385 F.3d 568, 573 (5th Cir. 2004) (en banc). Accordingly, to determine whether an in-state or non-diverse defendant was properly joined, “[t]he court may conduct a Rule 12(b)(6)-type analysis, looking initially at the allegations of the complaint to determine whether the complaint states a claim under state law against the ... defendant.” Id.

III

“We review de novo the district court’s ‘determination that a party is improperly joined and [its] denial of a motion for remand.’ ” Davidson v. Ga-Pac., L.L.C., 819 F.3d 758, 765 (5th Cir. 2016) (quoting Kling Realty Co. v. Chevron USA Inc., 575 F.3d 510, 513 (5th Cir. 2009)) (alteration in original).

IV

“Under Texas law, the elements of tortious interference with a contract are: (1) the existence of a contract, (2) willful and intentional interference, (3) interference that proximately caused damages, and (4) actual damage or loss.” Mumfrey, 719 F.3d at 402 (citing Powell Indus., Inc. v. Allen, 985 S.W.2d 455, 456 (Tex. 1998) (per curiam)). “When the defendant is both a corporate agent and the third party who allegedly induced the corporation’s breach, the second element is particularly important.” Id. (quoting Powell, 985 S.W.2d at 456-57). “To maintain a tortious interference suit against a corporate agent or representative, a plaintiff must show that the agent acted willfully and intentionally to serve the agent’s personal interests at the corporation’s expense.” Id. at 402-03 (citing Powell, 985 S.W.2d at 457). “Even an agent’s mixed motives — benefitting himself and the corporation — are insufficient.” Id. at 403 (citing Powell, 985 S.W.2d at 457). Thus, “[b]ecause a corporate officer’s acts on the corporation’s behalf usually are deemed corporate interests, a plaintiff must show that the agent acted solely in his own interests.” Powell, 985 S.W.2d at 457 (citing ACS Inv’rs Inc. v. McLaughlin, 943 S.W.2d 426, 432 (Tex. 1997)) (“[T]he plaintiff must show that the officer acted in a manner so contrary to the corporation’s best interests that his or her actions could only have been motivated by personal interest.”)-

The district court held that it had no reasonable basis to predict that Alviar might be able to recover against Lillard for tortious interference because Alviar failed to allege that Lillard was acting to serve his own personal interests. We agree. Although Alviar alleges that Lillard’s actions violated Macy’s internal anti-discrimination policies, Alviar failed to plead any facts showing that Lillard acted solely in his own interests. See Powell, 985 S.W.2d at 457; ACS, 943 S.W.2d at 432. Indeed, Alviar makes no allegations regarding how Lillard’s alleged conduct ben-efitted Lillard personally at all. See Holloway v. Skinner, 898 S.W.2d 793, 798 (Tex. 1995) (“[T]here must be evidence that [the agent] personally benefitted from decisions that were inconsistent with his duty to the Corporation.... ”). Alviar argues that the court should infer that Lillard was acting solely in his own interests from the petition’s allegations that Lillard acted in violation of Macy’s internal policies and, thus, contrary to the interests of Maey’s. Under Texas law, however, “[i]f a corporation does not complain about its agents actions, then the agent cannot be held to have acted contrary to the corporation’s interests.” Mumfrey, 719 F.3d at 403 (citing Morgan Stanley & Co. v. Tex. Oil Co., 958 S.W.2d 178, 181-82 (Tex. 1997)). Alviar never alleged that Macy’s complained about Lillard’s behavior or disciplined Lil-lard for his conduct in violation of internal policy. See id. Accordingly, Alviar has failed to adequately plead that Lillard aet-ed willfully and intentionally at the expense of Macy’s. Id.

Relying on an unpublished district court case, Rush v. Jacobs Engineering Group, Inc., No. 3:14-CV-3723-B, 2015 WL 1511122 (N.D. Tex. Apr. 2, 2015), Alviar contends that his allegation that Lillard acted in violation of Macy’s internal policy is sufficient to plead that Lillard acted contrary to Macy’s interests and solely in his own interests. In Rush, the district court acknowledged the Texas Supreme Court’s ruling that a corporate agent may not be held to have acted contrary to the corporation’s interests unless the corporation complained about its agent’s actions. 2015 WL 1511122, *2 n.2 (citing Morgan Stanley, 958 S.W.2d at 181-82). Nonetheless, the court observed that the Texas Supreme Court “ha[d] never specified the form that such a complaint must take.” Id. The court reasoned that “where ... the corporation has proactively expressed its disapproval of an agent’s actions in a published code of conduct, it seems overly technical to also require the plaintiff to show that the corporation complained about those actions after they occurred.” Id. Thus, the court found it could “reasonably infer from the fact that [the agent’s] actions violated [the company’s] code of conduct and policies that [the company] disapproved of [the agent’s] actions and, therefore, that he must have been acting solely in his own interests when he took them.”

For three reasons, we reject the district court’s reasoning in Rush. First, it contradicts the clear language of the Texas Supreme Court, which requires a “eom-plaint” by a principal of an agent’s actions. Morgan Stanley, 958 S.W.2d at 181 (emphasis added). The Morgan Stanley court explained that a principal “is certainly a better judge of its own best interests than we are,” and that it was “entitled to assess its own interests.” Id. at 181-82. Thus, the court determined that a plaintiff claiming tortious interference by an agent must allege that the corporate principal “complained” of the agent’s action. Id. The Rush court’s determination that it could “reasonably infer” that an agent was acting at the expense of its corporate principal cannot be reconciled with this rule. It does not automatically follow from the existence of corporate policies that any action taken in violation of those policies is taken at the expense of the company. Actions that might violate corporate codes of conduct or internal policies may in fact benefit the company at least in part. Indeed, the company may even know that its agent is violating company policy, and rather than complain of the agent’s actions, stay silent and benefit from the agent’s conduct. Second, even if a court could validly infer that an agent who violates corporate policy is necessarily acting at the expense of the corporation, this inference still does not suffice to demonstrate that the agent was acting solely in his personal interest. See Powell, 985 S.W.2d at 457; ACS, 943 S.W.2d at 432. Thus, to establish tortious interference, a plaintiff must show that the agent personally benefitted from his actions. See Holloway, 898 S.W.2d at 798. Third, given the ubiquity of corporate policies and codes of conduct, the practical consequence of the Rush court’s reasoning would be that plaintiffs in employment discrimination suits would be able to plead tortious interference against an individual corporate agent and possibly defeat diversity jurisdiction in nearly every employment discrimination case. Cf. Holloway, 898 S.W.2d at 796 (observing that absent a requirement of proof that the agent acted in his sole interest at the expense of the corporation, “virtually every failure to pay a corporate debt would constitute a prima facie case of tortious interference against the corporate officer who decided not to pay the debt.”).

V

After determining that Lillard was improperly joined, and relying on this court’s unpublished opinion in Berry v. Hardwick, 152 Fed.Appx. 371, 374 (5th Cir. 2005), the district court granted Lil-lard’s Rule 12(b)(6) motion and dismissed the tortious interference claim with prejudice. In a later, published opinion, however, we held that “the only ground for dismissing any improperly joined, nondiverse party is lack of subject matter jurisdiction.” Int’l Energy Ventures Mgmt. v. United Energy Grp., Ltd., 818 F.3d 193, 210 (5th Cir. 2016). “To dismiss on any other basis would require the presence of jurisdiction that does not exist.” Id. “Therefore, the dismissal of a nondiverse party over whom the court does not have jurisdiction must be a dismissal without prejudice in every instance.” Id.

Accordingly, we hold that once the district court determined that Lillard was improperly joined, the district court effectively dismissed Alviar’s claim against him without prejudice. See id. We remand to the district court with instructions to vacate its grant of Lillard’s motion to dismiss his claims with prejudice.

YI

For the foregoing reasons, we AFFIRM the district court’s denial of Alviar’s motion to remand. We REMAND to the district court with instructions to VACATE its grant of Lillard’s motion to dismiss for failure to state a claim. Because the court lacks subject matter jurisdiction over Lil-lard, the claim against Lillard must be dismissed without prejudice.

      . When ruling on the motion to remand, the district court properly considered the allegations in Alviar’s initial state-court petition, rather than his First Amended complaint filed in district court. See Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002) ("To determine whether jurisdiction is present for removal, we consider the claims in the state court petition as they existed at the time of removal."). The district court correctly noted that the First Amended Complaint was "nearly identical in substance” to the state-court petition.

      . Alviar also contends that the district court erred by considering extrinsic evidence — an email from Alviar to Macy’s in which Alviar admitted to performance issues. This argument is unavailing. This court has made clear that district courts may, in their discretion, "pierce the pleadings and conduct a summary inquiry" where a “plaintiff has stated a claim, but has misstated or omitted discrete facts that would determine the propriety of joinder.” Smallwood, 385 F.3d at 573. Citing Smallwood, the district court concluded that such summary inquiry was appropriate. Moreover, the district court explained that it would have reached the same conclusion even without considering this extrinsic evidence.

      . Because we hold that the claims against Lillard should be dismissed without prejudice, Alviar’s argument that the district court erred in denying him an opportunity to amend is moot.


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

text:
    DECATUR HOSPITAL AUTHORITY, doing business as Wise Regional Health System, Plaintiff-Appellee v. AETNA HEALTH, INCORPORATED, Defendant-Appellant
    No. 16-10313
    United States Court of Appeals, Fifth Circuit.
    FILED April 18, 2017

      Jennifer R. Ecklund, Esq., Andrew Christian Cookingham, Reed Cullen Ran-del, Attorney, Thompson & Knight, L.L.P., Dallas, TX, Derrick Scott Boyd, Simpson Boyd Powers & Williamson, Decatur, TX, for Plaintiff-Appellee.
    John Bruce Shely, Esq., Mitchell A. Reid, Andrews Kurth Kenyon, L.L.P., Houston, TX, for Defendant-Appellant.
    Before JOLLY, HIGGINBOTHAM, and GRAVES, Circuit Judges.
   JAMES E. GRAVES, JR., Circuit Judge:

This appeal relates to ongoing litigation between Wise Regional Health System, a Texas municipal hospital authority, and Aetna Health Inc., an insurance plan administrator, regarding medical insurance claims Wise Regional submitted on behalf of its patients. Wise Regional sued Aetna in Texas state court, and, when Aetna removed, it relied in part upon the federal officer removal statute, 28 U.S.C. § 1442. Finding Aetna’s removal untimely, the district court remanded and awarded attorneys’ fees.

We have appellate jurisdiction over the remand order, and, upon de novo review, we AFFIRM. We also perceive no abuse of discretion in the separate attorneys’ fee award, and we AFFIRM.

BACKGROUND

On May 27, 2015, Wise Regional sent Aetna a demand letter “to address claims Wise [Regional] has against Aetna for Aet-na’s violations of the timely claim processing requirements imposed by the Texas Prompt Pay Act.” Wise Regional’s letter claimed state-law late-payment penalties in excess of $17.4 million had accrued.

Wise Regional’s demand letter made three specific requests. First, the letter asked Aetna to contact Wise Regional’s counsel to coordinate a “secure, HIPPA-eompliant” transmission of “a detailed list of the claims at issue.” Second, “[t]o make pre-suit negotiations more productive,” Wise Regional asked Aetna to conduct a “line-of-business analysis” on the claims list to identify “the payment arrangement (e.g., self-funded ERISA, fully insured, Medicare Advantage, FEHBA)” implicated by each claim. Third, Wise Regional asked Aetna to provide information regarding any claim “Aetna believes was timely paid.” Aetna’s counsel asked for the claims list on June 19, 2015, and Wise Regional provided it three days later.

On June 24, two days after sending the claims list, Wise Regional filed in Texas state court a lawsuit predicated upon insurance claims it alleges Aetna paid, but paid too slowly. On November 4, 2015, Wise Regional provided objections and answers to Aetna’s first set of interrogatories. On December 4, 2015, Aetna removed the case to federal court pursuant to 28 U.S.C. § 1441(a) and 28 U.S.C. § 1442.

Wise Regional filed a motion to remand, and the district court issued a remand order on February 19, 2016. The district court’s memorandum opinion stated that “the action should be remanded because [Aetna] did not timely remove it.”

Wise Regional also filed a motion for attorneys’ fees. The district court granted that motion on March 7, 2016, and awarded Wise Regional $14,500. The district court ruled that Aetna “lacked an objectively reasonable basis for seeking removal of this action almost five months after expiration of the thirty-day deadline for removal,” and stated that “[Aetna’s] contention that it first ascertained from the interrogatory answers that the case is one that was removable borders on being absurd considering that the state court pleading of [the] plaintiff provided exactly that same information.”

Aetna timely noticed its appeal of both the remand order and the attorneys’ fees award.

JURISDICTION

The parties dispute whether this court has jurisdiction to review the remand order. Aetna contends that we may review the remand order under 28 U.S.C. § 1447(d), which provides:

An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1442 or 1443 of this title shall be reviewable by appeal or otherwise.

28 U.S.C..§ 1447(d). Wise Regional contends that because the district court based its remand order on a defect in removal procedure (here, timeliness), we must withhold appellate review. As discussed below, we conclude that this court possesses appellate jurisdiction over the remand order.

As the parties correctly acknowledge, we also have jurisdiction to review the award of attorneys’ fees. See Miranti v. Lee, 3 F.3d 925, 927-28 (5th Cir. 1993) (holding “that § 1447(d) does not prohibit review by this court of the order of costs and fees”); see also Garcia v. Amfels, Inc., 254 F.3d 585, 587 (5th Cir. 2001).

STANDARD OF REVIEW

We review the district court’s remand order de novo, “without a thumb on the remand side of the scale.” Savoie v. Huntington Ingalls, Inc., 817 F.3d 457, 462 (5th Cir. 2016), cert. denied, — U.S. -, 137 S.Ct. 339, 196 L.Ed.2d 262 (2016). “The decision of the district court to award attorneys’ fees is reviewed for an abuse of discretion.” Garcia, 254 F.3d at 587.

DISCUSSION

As a threshold matter, this appeal requires us to analyze our appellate jurisdiction over the district court’s remand order. We hold that appellate jurisdiction exists. Applying de novo review, we hold that remand was proper. Finally, we conclude the district court did not abuse its discretion by awarding attorneys’ fees.

I. Appellate jurisdiction

“Orders remanding a case to state court are generally not reviewable.” Savoie, 817 F.3d at 460. “The statute governing removal procedure [i.e., 28 U.S.C. § 1447(d) ] provides for only two exceptions: remand orders involving certain civil rights cases, 28 U.S.C. § 1443, and remand orders involving the federal officer removal statute, 28 U.S.C. § 1442.” Id. “Our unusual ability to review a remand order in [the Section 1442] context reflects the importance Congress placed on providing federal jurisdiction for claims asserted against federal officers and parties acting pursuant to the orders of a federal officer.” Id.

Wise Regional notes that the district court expressly based its remand order on the untimeliness of Aetna’s removal, and it contends this ground for remand bars our review. “Untimely removal is a defect in removal procedure,” Belser v. St. Paul Fire & Marine Ins. Co., 965 F.2d 5, 8 (5th Cir. 1992), and we ordinarily lack jurisdiction to review a remand order based on such a defect, see Price v. Johnson, 600 F.3d 460, 462 (5th Cir. 2010). Here, however, the fact that Aetna relied upon the federal officer removal statute in its notice of removal permits appellate review.

This conclusion flows from the text of Section 1447(d). As the Supreme Court observed in Kircher, Section 1447(d) “specifically excepts certain [statutory] actions from its bar.” Kircher v. Putnam, Funds Trust, 547 U.S. 633, 640 n.7, 126 S.Ct. 2145, 165 L.Ed.2d 92 (2006). Put another way, “Congress has, when it wished, expressly made 28 U.S.C. § 1447(d) inapplicable to particular remand orders.” Id. at 641 n.8, 126 S.Ct. 2145 (emphasis added). In 2011, Congress expressly made Section 1447(d)’s bar inapplicable to “an order remanding a case to the State court from which it was removed pursuant to ... section 1442....” 28 U.S.C. § 1447(d). Like the Seventh Circuit, “[w]e take both Congress and Kircher at their word in saying that, if appellate review of an ‘order’ has been authorized, that means review of the ‘order.’ Not particular reasons for an order, but the order itself.” Lu Junhong v. Boeing Co., 792 F.3d 805, 812 (7th Cir. 2015); see also 14C Charles Alan Wright et al., Federal Practice & Procedure § 3740 n. 30.50 (4th ed., West) (updated Jan. 2017) (“The Removal Clarification Act of 2011 amends Section 1447(d) to exempt remands to State court, of actions removed under Section 1442, from the prohibition on review that Section 1447(d) has heretofore imposed on all removals except those of civil rights cases removed under Section 1443.”); 15A Charles Alan Wright et ah, Federal Practice & Procedure § 3914.11 (2d ed., West) (updated Jan. 2017) (“Although § 1447(d) allows review of the ‘order remanding’ the case, it has been held that review is limited to remova-bility under § 1443. Review should instead be extended to all possible grounds for removal underlying the order.) (emphasis in original).

In Robertson v. Ball, we declined to review “the part of [a] remand order” expressing a Section 1447(c) ground (lack of subject matter jurisdiction) for rejecting a party’s reliance upon a portion of the general removal statute, Section 1441(b). See 534 F.2d 63, 65 (5th Cir. 1976). Robertson implies only that we cannot review a remand order (or a portion thereof) expressly based on a Section 1447(c) ground when the basis for removal is a statute that, like Section 1441, Section 1447(d) does not specifically exempt from Section 1447(c)’s bar.

By recognizing “[t]he exception in [Section] 1447(d)’s prohibition of appellate review for remands of removals effected under [Section] HIS,” Robertson supports our elevation of Aetna’s purported Section 1442 basis for removal (which supports appellate review) over the district court’s articulation of a Section 1447(c) ground for remand (which would ordinarily foreclose appellate review). See 534 F.2d at 66 n.5 (emphasis added); see also Charter School of Pine Grove, Inc. v. St. Helena Parish School Bd., 417 F.3d 444, 446 (5th Cir. 2005) (per curiam) (stating that “we may review an order to remand based on lack of subject matter jurisdiction [i.e., a Section 1447(c) ground for remand] when the case remanded was removed pursuant to 28 U.S.C. § 1443 [i.e., a statute Section 1447(d) excepts from Section 1447(c)’s bar on reviewability].”).

II. Merits of the remand order

Having established our jurisdiction to review the remand order, we consider its merits de novo. We hold that the district court correctly remanded; Aetna’s notice of removal was untimely.

“In essence, when read as a whole, § 1446(b) provides a two-step test for determining whether a defendant timely removed a case.” Chapman v. Powermatic, Inc., 969 F.2d 160, 161 (5th Cir. 1992). “[I]f the case stated by the initial pleading is removable, then notice of removal must be filed within thirty days from the receipt of the initial pleading by the defendant....” Id. “[I]f the case stated by the initial pleading is not removable, then notice of removal must be filed within thirty days from the receipt of an amended pleading, motion, order, or other paper from which the defendant can ascertain that the case is removable.” Id.

Aetna urges us to conclude that this case only became removable when Wise' Regional provided its interrogatory responses. Aetna maintains that one interrogatory response specified, for the first time, Wise Regional’s intention to pursue removable claims.

We disagree with Aetna’s position essentially for the reasons cogently articulated by the district court in its order awarding attorneys’ fees. See Decatur Hospital Authority v. Aetna Health Inc., No. 4:15-cv-922-A, 2016 WL 950950 at *2-3 (N.D. Tex. March 7, 2016). There is no new information in the interrogatory response at issue, which, in relevant part, referred Aetna “to the spreadsheet served on its counsel on or about June 22, 2015.” Decatur Hosp., 2016 WL 950950 at *2.

Aetna bases its theory of removability on the proposition that the medical claims list includes entries that would support removal. Of course, Aetna received the medical claims list two days before Wise Regional filed its petition. Wise Regional’s petition referred to the medical claims list. Decatur Hosp., 2016 WL 950950 at *2.

Given this factual context, even if we accepted Aetna’s theory of why this case presents removable subject matter, we would agree with the district court’s conclusion that Aetna’s 30-day window for removal began to run under Section 1446(b)(1) on June 30, 2015, the date it received service of the petition. We perceive no aspect of Aetna’s theory of re-movability that would have only become apparent when Wise Regional served its interrogatory response. Because Aetna filed its notice of removal more than 30 days after June 30, 2015, we hold that remand was proper.

III. Award of attorneys’ fees

“The decision of the district court to award attorneys’ fees is reviewed for an abuse of discretion.” Garcia, 254 F.3d at 587. [A] court may award attorney’s fees when the removing party lacks an objectively reasonable basis for removal.” Am. Airlines, Inc. v. Sabre, Inc., 694 F.3d 539, 542 (5th Cir. 2012) (internal quotations and citation omitted). “A defendant’s subjective good faith belief that removal was proper is insufficient to establish that the district court abused its discretion in awarding attorney’s fees under Section 1447(c).” Id. at 542, n.2.

The district court ruled that Aet-na “lacked an objectively reasonable basis for seeking removal of this action almost five months after expiration of the thirty-day deadline for removal.” As stated in the previous section, we agree with the district court’s conclusion that Aetna’s removal was untimely. We perceive no abuse of discretion in the district court’s finding that Aetna had no reasonable basis to think otherwise.

CONCLUSION

Accordingly, we AFFIRM both the district court’s remand order and award of attorneys’ fees.

      . Both Wise Regional's state-court petition and briefing on appeal disclaim any pursuit of claims implicating these federal insurance and health care programs. See Appellee’s Br. at 18, n.27.

      . The Kircher opinion references a prior version of Section 1447(d) that provided a specific exception for civil rights removals. The modern version of Section 1447(d) states an exception for both the civil rights removal and federal officer removal statutes.

      . This amendment accounts for the difference between the result we reach today and the holding of Price, 600 F.3d at 460.

      . Wise Regional stridently disputes the notion that its suit pursues any removable claims. See Appellee's Br. at 18 n.27. Because we affirm the district court’s remand on timeliness grounds, we express no view on this substantive issue.