source: Caselaw Access Project

author: WILSON, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Uri AMMAR, Defendant-Appellant.
    No. 13-12044
    United States Court of Appeals, Eleventh Circuit.
    (November 29, 2016)

      Tonya R. Long, Assistant U.S. Attorney, Kathleen Mary Salyer, Wifredo A. Ferrer, Michael E. Gilfarb, Seth Michael Schles-singer, Emily M. Smachetti, Arimentha R. Walkins, U.S. Attorney’s Office, Miami, FL, for Plaintiff-Appellee.
    Ashley M. Litwin, Marc David Seitles, Settles & Litwin, PA, Miami, FL, for Defendant-Appellant.
    Before WILSON, JULIE CARNES, and EBEL, Circuit Judges.

       Honorable David M, Ebel, United States Circuit Judge for the Tenth Circuit, sitting by designation.

   WILSON, Circuit Judge:

Uri Ammar appeals his convictions and total sentence of life imprisonment after a jury found him guilty of robbery, conspiracy to commit robbery, and' using or carrying a firearm in relation to a crime of violence. Ammar contends that the district court erred by failing to dismiss his indictment pursuant to the Speedy Trial Act, 18 U.S.C. §§ 3161-3174. Given the Supreme Court’s controlling decision in Zedner v. United States, 547 U.S. 489, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006), we agree and conclude that, in granting a one-year continuance, the district court failed to comply with the Speedy Trial Act. Accordingly, the indictment must be dismissed. We reverse and remand for the district court to consider whether the dismissal should be with or without prejudice.

I. THE SPEEDY TRIAL ACT

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy ... trial.” U.S. Const, amend. VI. To strengthen this constitutional mandate, Congress passed the Speedy Trial Act. The Act provides that the trial of any defendant who pleads not guilty must begin within 70 days of either the filing of the indictment or the date the defendant first appears before a judicial officer to answer the charges, whichever occurs later. See 18 U.S.C. § 3161(c)(1). If a defendant is not tried within that window of time, then the district court must grant the defendant’s motion to dismiss the indictment. See id, § 3162(a)(2). However, the 70-day time period may be tolled for certain statutorily enumerated reasons.

Relevant here, a district court may grant a continuance of the trial date when the “ends of justice” support the continuance. See id. § 3161(h)(7)(A). To do so, the district court must consider certain factors, such as whether the failure to grant the continuance would “result in a miscarriage of justice,” id. § 3161(h)(7)(B)(i); whether due to the nature of the case (or other factors), the case is too complex to reasonably expect adequate preparation within the Speedy Trial Act’s time limits, id. § 3161(h)(7)(B)(ii); or whether a refusal to continue the case would deny the defendant “reasonable time to obtain counsel,” or would unreasonably deny either party time for “effective preparation,” id. § 3161(h)(7)(B)(iv).

After considering these statutory factors, the district court is required to “set[ ] forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of [a] continuance outweigh the best interests of the public and the defendant in a speedy trial.” Id. § 3161(h)(7)(A). Considering this provision, the Supreme Court found in Zedner that “the Act requires express findings,”- and “without on-the-record findings, there can be no exclusion” of time past the 70-day requirement because the Speedy Trial Act, with “procedural strictness,” “demands on-the-record [ends-of-justice] findings.” 547 U.S. at 506-07, 509,126 S.Ct. at 1989,1990.

Moreover, a defendant’s agreement to waive the protections of the Act cannot, by itself, justify an ends-of-justice continuance because the public interest in a speedy trial is also protected by the Act. See id. at 500-01, Í26 S.Ct. at 1985 (finding that a defendant cannot simply waive or “opt out of the Act”); United States v. Mathurin, 690 F.3d 1236, 1242 (11th Cir. 2012). The best interests of the parties— and even those of the court—cannot alone justify deviation from the Act’s requirements, absent the determination that those interests outweigh the public interest. “[T]he Act was designed with the public interest firmly in mind,” and “there are many cases ... in which the prosecution, the defense, and the court would all be happy to opt out of the Act, to the detriment of the public interest.” Zedner, 547 U.S. at 501-02, 126 S.Ct. at 1985-86.

Accordingly, Zedner held that agreement by the parties cannot be the only basis for granting a continuance. A finding that a continuance is justified solely because the parties agreed to it is not a proper ends-of-justice finding. The district court must make “on-the-record findings that the ends of justice served by granting the continuance outweigh” the defendant’s and the public’s interests in a speedy trial. See id. at 498-99,126 S.Ct. at 1984.

The Act does not stipulate when the district court must make these findings; that is, whether the findings must be made contemporaneously with the granting of an ends-of-justice continuance. See id. at 506-07, 126 S.Ct. at 1989 (“Although the Act is clear that the findings must be made, if only in the judge’s mind, before granting the continuance ... the Act is ambiguous on precisely when those findings must be set forth, in the record of the case.” (alterations adopted and internal quotation marks omitted)). However, the Zedner Court opined that a trial court should put its findings regarding an ends-of-justice continuance on the record at least by the time it rules on the defendant’s motion to dismiss for a speedy trial violation. Id. at 507 & n.7, 126 S.Ct. at 1989 & n.7 (noting that the “best practice” is for the court to state the reasons simultaneously when granting the continuance). Thus, we look to see whether the district court considered the relevant factors and placed its ends-of-justiGe findings on the record when it continued Ammar’s trial beyond the Act’s 70-day timeframe, or, at the latest, by the time it ruled on Ammar’s motion to dismiss for a speedy trial violation.

II. BACKGROUND

In this case, the clock for the 70-day calculation began on September 1, 2011, when a federal grand jury returned an indictment against Ammar and four others for their involvement in the armed robbery and killing of a Brink’s money courier. Ammar pleaded not guilty, and a magistrate judge ordered Ammar detained pending trial. Subsequently, on September 13, 2011, the district court held a scheduling conference with Ammar, his codefen-dants, and the government to discuss the trial date. The same day, the court entered an order scheduling trial to begin October 9,2012. .

Ammar then appealed the magistrate judge’s detention order, contending that the district court had set an extended trial date over his objection and that detention pending a trial set for more than a year from the date of the indictment violated his due process and speedy trial rights. However, the district court denied the appeal on December 1, 2011. Over a year after the original indictment, on September 17,- 2012, a federal grand jury returned a four-count superseding indictment against Ammar. Ammar moved to dismiss the indictment pursuant to the Speedy Trial Act, which the government opposed.' The district court considered the matter at a calendar call on October 4, 2012. After hearing from both parties, the court denied Ammar’s motion during the calendar call.

On the first day of trial, Ammar again raised his motion to dismiss pursuant to the Speedy Trial Act. The court denied the motion and the case proceeded to trial. At the conclusion of the trial, the jury returned a verdict of guilty as to three counts and not guilty as to one count. Thereafter, the district court sentenced Ammar to life imprisonment. Ammar timely appealed, raising issues regarding the timeliness of trial, his conviction, and sentencing. We address only his claim under the Speedy Trial Act because we find that this threshold issue is dispositive.

We review de novo the denial of 'Ammar’s motion to dismiss based on a violation of the Speedy Trial Act, and any factual determinations by the district court with regard to excludable time receive clear error review. See United States v. Harris, 376 F.3d 1282, 1286 (11th Cir. 2004). We must determine whether any time between Ammar’s indictment on September 1, 2011, and the start of Ammar’s trial on October 9, 2012, can be excluded, bringing Ammar’s trial within the Act’s 70-day requirement. Crucial to this inquiry is whether the district court weighed the relevant interests and made the necessary ends-of-justice findings on the record. See Zedner, 547 U.S. at 507, 509, 126 S.Ct. at 1989, 1990. These findings may be oral or written. Therefore, we look,to both the conversations at the hearings before the district court and to written parts of the record. Here, the parties point to two dates in the record: the September 2011 scheduling hearing and order setting the trial date and the October 2012 calendar call denying Ammar’s motion to dismiss. We describe both instances before turning to ,our analysis.

A. September 2011 Scheduling Hearing and Order

On September 13, 2011, the district court heard from the parties at a scheduling conference and then, on the same day, entered its order scheduling trial for a year later. At the hearing, the government informed the court that Ammar and his co-defendants were charged with crimes for which they could face the death penalty, and the . Department of Justice (DOJ) would need between five months' and one year to determine whether to seek that option. The DOJ’s death penalty process included.a step in which the defendants could present mitigating factors. Some co-defendants therefore requested a lengthy continuance to afford them time to prepare such a presentation. Concurring with these defendants’ request for a delayed trial date, the government requested a trial date one year out.

In contrast, Ammar stated that he did not believe the government would seek the death penalty against him. For this reason, he believed he could be ready to make his presentation within thirty days. In addition, Ammar opposed a lengthy continuance because he remained in custody and the district court had not granted his request for bond. As such, Ammar was unwilling to agree to the lengthy continuance sought by some of his co-defendants. Instead, he asked for a December 2011 trial date, or in the alternative, that the district court review the magistrate judge’s decision regarding pretrial detention.

After the hearing, the district court issued a written order setting the case for trial. The order stated that the court had been advised during the discussion the same day “that a reasonable time allowance of approximately one year would be necessary for the parties to implement the newly-amended death policy procedures in order to permit careful consideration by the [DOJ] of whether or not this case will proceed to trial as a ‘death case.’ ” It also noted that “[sjeveral defense counsel advised the Court that there are other procedures that will be necessary for court-appointed counsel to follow to obtain approval from the Eleventh Circuit Court of Appeals for a budget to handle a potential death case,” while others “indicated that they were opposed to a trial date set so far in the future.” The order concluded: “After a thorough discussion, it became apparent that the Court’s best efforts to get this case tried under its normal procedures of setting conflict-free trial dates within approximately 90-120 dáys is not a reasonable objective.” The court then directed the clerk of court to schedule the trial for October 9,2012.

B. October 2012 Calendar Call

On October 3, 2012, Ammar moved to dismiss the September 17, 2012 superseding indictment pursuant to the Speedy Trial Act. He noted that unless the continuance granted by the court was excludable, the trial had not commenced within the 70 days required by the Act. Citing Zedner, he further noted that the fact that some defendants had agreed to the continuance was not sufficient, by itself, to comply with the Speedy Trial Act. Instead, the Act requires that, for all ends-of-justice continuances, the court make the appropriate findings set out in the statute.

The government opposed the motion. The government acknowledged that the court had not used the phrase “ends of justice” in its order granting the continuance nor had it even mentioned the Speedy Trial Act, but it argued that the court had performed the balancing of interests required by § 3161(h)(7)(A). Moreover, the government noted- that, prior to ruling on the motion to dismiss, the court would be permitted to explicitly make the necessary ends-of-justice findings. The government requested that the court make those findings, which it contended. were supported by the reasons for a continuance offered at the September 13, 2011 status conference.

The district court addressed the matter at a calendar call on October 4, 2012. The court first stated that the trial date was “by agreement of everybody.” Ammar corrected the court, replying that he had requested that trial be set for December 2011. The court then stated that the delay “was caused by this death penalty statute and the law pertaining to setting trials.” Ammar explained that the district court’s order setting the trial' date did not “set forth excludable time in the public [sic] best interest or in the interest of the defendant.” The court responded, “I asked each of you if you agreed to this, and everybody said yes,” and “[everybody knew they were waiving the Speedy Trial Act.”

Although the government stated that it believed the court had engaged in the necessary balancing of factors and that the court was not required to “use some magic words, [like] the words‘ends of justice,”’ the government again requested that the court make an explicit ends-of-justice finding;'Specifically, the government requested the court to hold “that when [it] issued that order it was in the ends, of justice.” The court replied, “At the end of the day, if they all agree to [the trial date], that’s always been adequate.” The court disagreed that it had to say any words other than what date it was setting the trial. Further, the court opined that it had been Ammar’s duty to advise the court if the Speedy Trial Act was being violated and to •request a trial.

The court then asked the government, “What magic words are' left out of the order that I entered? Should I put in there that [counsel for one of the co-defendants] couldn’t go to trial on the September 15th calendar because he has' a conflict, and somebody else couldn’t go later or before?” The government responded that it thought the court had earlier set out sufficiently the reasons for the continuance, but it once more urged the court to make an ends-of-justice finding on the record, to hold “that [the continuance] outweighs the public [sic] and the defendant’s interest in a speedy trial. That would make that time excluda-ble.”

The court inquired whether the government was arguing that the motion to dismiss should be denied. The government responded, “I think if your Honor feels it needs to be excluded and utter those mag-üe words, you should.” The court responded that it did not “wish to go back and change an order that [it had already] entered, that [it] felt was perfectly acceptable, as a matter of fact agreeable with everybody.” Moreover, the court explained, “that’s the reason I entered the order.” The court continued, “It was in the interest of—-both sides had an interest. The government had an interest in not having to try the case two or three times or whatever. The defendants had an interest, and we paid great sums of money to especially hire death penalty counsel. They had a big interest in seeing if they could persuade the [DOJ] not to seek the death penalty, which they did ultimately. That was a big advantage to 'them.... It was fair to ' everybody.”

.The government then stated that, “regardless of what, the defendant says, the Court can make a finding that the ends of justice outweigh—a continuance in the interest of justice.” The court replied, “That’s why I’m overruling the defense [sic], request to move the case forward. When I’m granting a time that everybody wants, there’s no need for it. It’s pointless.” The court then denied Amman’s motion, “in the interest of fair play in handling these cases and everything that is reasonable and decent, the effort I put into achieving^ trial date that was agreeable to everybody and worked to everybody’s advantage."

III. DISCUSSION

A. Speedy Trial Act Violation

Our analysis is guided by the language of the Speedy Trial Act and the Supreme Court’s interpretation of that language in Zedner. The Act states that delay resulting from a continuance either by the district court or at the request of a party is excludable from the 70-day period in which the trial must begin if the court puts on the record “its reasons for finding that the ends of justice served by the granting of [a] continuance outweigh” the public’s and defendant’s interests in a speedy trial. See 18 U.S.C. § 3161(h)(7)(A). Zedner makes clear that' the findings must be expressly made on the record. See 547 U.S. at 506-07, 126 S.Ct. at 1988-89 (stating that the Act, with “procedural strictness,” “demands on-the-record findings”; thus, the district court must make “an express finding on the record about the ends-of-justice balance” (emphasis added and internal quotation mark omitted)). Additionally, Zedner held that the parties cannot simply agree to a continuance and thus waive the Act’s 70-day requirement. See id. at 500-OS, 126 S.Ct. at 1985-87 (finding that “mere consent or waiver” will not result in excludable time). Hence, a court’s finding that a continuance' is justified solely because the parties agreed to the continuance is not a proper ends-of-justice finding. See id. at 502,126 S.Ct. at 1986. If the district court fails to comply with these requirements, then the resulting delay will not constitute excludable time from the 70-day calculation.

Based on the record before us, we conclude that the district court ran afoul of Zedner. The court stated several times that it had granted the continuance because all of the parties had agreed to it, thereby indicating its belief that the Speedy Trial Act could be waived. And when the government repeatedly advised the court that the continued time period could be excluded if the court simply made an express ends-of-justice finding, the court refused to declare that the ends of justice supported the continuance, repeating its belief that the “parties’ agreement” provided a sufficient.reason to justify the continuance..

Specifically, during the October 2012 calendar call, the district court ruled on Am-mar’s motion to dismiss for the Speedy Trial Act violation. The court expressed its understanding that the trial date was “by agreement of everybody,” emphasizing repeatedly “[everybody knew they were waiving the Speedy Trial Act,” and stating, “if they all agree .,. that’s always been adequate.” In fact, the district court said it would not make the ends-of-justice findings because they were unnecessary, stating, “When I’m granting a time that everybody wants, there’s no need for it. It’s pointless.” The court’s repeated assertion that it did not have to make-the ends-of-justice findings because'the parties agreed to the trial date is problematic for three reasons.

First, the district court’s assertion is factually inaccurate and thus clearly erroneous—not all of the parties agreed to the trial date, as evidenced by Ammar’s repeated objection to the length of the delay. Second, it is legally incorrect because an agreement by the parties does not eliminate the requirement that the court make a proper ends-of-justice finding. Zedner makes clear that the parties cannot waive the Speedy Trial Act’s requirement. The district court did not comply with this rule, as it based its decision to continue the case on the parties’ agreement. Again, the court stated to the parties: “Everybody knew they were waiving the Speedy Trial Act,” and the date was “agreeable with everybody, and that’s the reason I entered the order.” (emphasis added). While we do not fault a district court, when considering a defendant’s motion to dismiss based on an alleged Speedy Trial Act violation, for noting that the defendant had agreed to the continuance, this agreement cannot be the sole basis for the continuance. The court must consider both the defendant’s interest and the public’s interest in a speedy trial. Zedner, 547 U.S. at 501, 126 S.Ct, at 1985. Third, the court did not just fail to make an ends-of-justice finding—it refused to make this finding. Where a district court refuses to make such a finding, notwithstanding the repeated entreaties of the government that it do so, we are left with little choice but to conclude that the district court did not think that the ends of justice warranted the continuance. Such a record makes it difficult to affirm the court’s decision here, even if we might otherwise conclude that there were adequate reasons to justify the continuance.

The government has argued, however, that the district court’s failure to specifically utter the “magic words,” such as “ends of justice,” should not be dispositive. We do not necessarily disagree with this position.- But this appeal cannot be properly characterized as a “magic words” case in which the district court simply neglected to utter certain precise words. Again, when confronted with the request to make the findings, the court expressly declined to do so, stating that the continuance was based solely on the parties’ agreement. Thus, we need not opine as to precisely which or specifically how many words a district court must place on the record before the findings requirement is met. Instead, the court’s explicit declination to make ends-of-justice findings on the record and its stated reason for continuance are dispositive.

In sum, our review of the record leads us to conclude that the district court did not. make the proper ends-of-justice findings to permit tolling of the 70-day time period in which Ammar should have gone to trial. We hold that the Speedy Trial Act was violated when Ammar’s trial did not begin until over a year after his indictment.

B. Remedy

Having determined that Ammar’s rights under the Speedy Trial Act were violated, we turn to the appropriate remedy. Once again, the plain language of the Act controls: dismissal of Ammar’s charges is required. The Act states that, when a trial does not begin within the required period of time, “the information or indictment shall be dismissed on motion of the defendant.” 18 U.S.C. § 3162(a)(2) (emphasis added). Thus, although a trial court is ordinarily given “great discretion to make decisions concerning trial schedules and to respond to abuse and delay where appropriate,” the Act “confines the exercise of that discretion more narrowly, mandating dismissal of the indictment upon violation of precise time limits,‘and specifying criteria to consider in deciding whether to bar reprosecution.” United States v. Taylor, 487 U.S. 326, 343-44, 108 S.Ct. 2413, 2423, 101 L.Ed.2d 297 (1988). The Supreme Court specified in Zedner that, “if a judge fails to make the requisite findings regarding the need-for an ends-of-justice continuance, the delay resulting from the continuance must be counted, and if as a result the trial does not begin on time, the indictment or information must be dismissed.” 547 U.S. at 508, 126 S.Ct. at 1989.-The Act “does not permit those findings to be made on remand.” Id. at 506, 126 S.Ct. at 1988.

As discussed above, the district court failed to make the requisite findings, and Ammar’s trial, which began over a year after his indictment, violated the Speedy Trial Act’s 70-day time period. Accordingly, we .reverse and remand to the district court with instructions to dismiss the charges. This dismissal may be with or without prejudice—we leave that determination to the district court.

IV. CONCLUSION

A criminal defendant’s right to a speedy trial is “one of. the most basic rights preserved by our Constitution.” Klopfer v. North Carolina, 386 U.S. 213, 226, 87 S.Ct. 988, 995, 18 L.Ed.2d 1 (1967). Congress chose to safeguard this important right through the rigid procedural requirements of the Speedy Trial Act. Those requirements were not met here. Therefore, we have no choice but to vacate .Ammar’s conviction. We reverse and remand with instructions for the district court to dismiss the charges against Ammar and determine, after consideration of the statutory factors enumerated in the Act, whether the dismissal should be with or without prejudice.

REVERSED AND REMANDED.

      . The Speedy Trial Act specifically lists seven separate periods of delay that may be excluded from the 70-day requirement. See 18 U.S.C. § 3161(h). Only the seventh, the catchall "ends of justice” continuance, is at issue in this case.

      . The Zedner Court, interpreting an older version of the Act, refers to the pertinent section as § 3161(h)(8). In a 2008 amendment, this section was redesignated as (h)(7). Pub. L. No. 110-406 § 13(3) (2008). The text of the statutory section did not change.

      .To be clear, a defendant cannot waive the Act’s timeliness requirements. The district court bears the burden of making ends-of-justice findings and placing them on the record irrespective of the defendant's agreement to a delay. See Zedner, 547 U.S. at 506-07, 126 S.Ct. at 1988-89. However, a defendant may waive his or her right to dismissal of the indictment premised on a violation of the Act by failing to move for dismissal prior to trial. See 18 U.S.C. § 3162(a)(2). Here, Ammar timely moved for dismissal based on the Speedy Trial Act violation. Thus, the waiver provision does not apply.

      . Ammar appeared before the court on the charges contained in the complaint before he was first indicted. Accordingly, the indictment date—the later of the two—is the point at which the 70-day period began to run. See 18 U.S.C. § 3161(c)(1).

      . The superseding indictment rearranged Am-mar’s charges, splitting what was originally styled as one count into two separate counts. Therefore, the “superseding indictment do[es] not reset the speedy-trial timetable.” See United States v. Jones, 601 F.3d 1247, 1254 (11th Cir. 2010).

      . That we recognize the possibility that a finding that fails to recite precisely the words called for by the statute might pass muster does not mean that we encourage deviation from the statutory language. It is simple enough for a district court to create a template that sets out exactly the statutory words required, to be used, and to recite those words to explain a continuance that is otherwise based on the factors set out in the statute. Doing so is a prudent step that reduces the likelihood of future litigation concerning that order.

      . The Court expressly rejected the application of harmless-error review, finding that such an inquiry does not "square with the Act's categorical terms.” Zedner, 547 U.S. at 508, 126 S,Ct. at 1989-90. This result may seem inflexible; however, as the Court found, the Act's requirements are intentionally procedurally strict. See id. at 509, 126 S.Ct. at 1990,

      . The Act provides the statutory factors to guide the district court in making this decision. The court must consider, inter alia, the "seriousness of the offense,” the circumstances leading to dismissal, and the impact that reprosecution would have on the administration of the Act and justice. Examination of each statutory factor is necessary before the district court may conclude that the charges should be dismissed with prejudice, See Taylor, 487 U.S. at 333, 108 S.Ct. at 2417-18.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. James Lee COBB, III, Defendant-Appellant.
    No. 15-12817
    Non-Argument Calendar
    United States Court of Appeals, Eleventh Circuit.
    Date Filed: 11/30/2016

      Holly Lynn Gershow,- David Paul Rhodes, Natalie Hirt Adams, Arthur Lee Bentley, III, Thomas Nelson Palermo, U.S. Attorney’s Office, Tampa, FL, for Plaintiff-Appellee.
    Judy K. Hunt, Law Office of Judy K. Hunt, St. Petersburg, FL, for Defendant-Appellant.
    Before HULL, MARCUS, and JULIE CARNES, Circuit Judges.
   PER CURIAM:

Defendant James Lee Cobb, III, appeals his 324-month sentence, imposed after pleading guilty to conspiracy to commit wire and mail fraud, aggravated identity theft, and possession of a firearm by a convicted felon. On appeal, Defendant challenges his sentence on numerous grounds. He argues that: (1) the district court clearly erred in estimating the loss amount and the number of victims for sentencing enhancement purposes, and in calculating the amount of restitution; (2) the district court erred by applying the vulnerable-victim enhancement; and (3) the district court plainly erred by imposing an enhancement for production of an unauthorized access device and by designating Defendant an armed career criminal. After careful review, we affirm.

I. BACKGROUND

A. Factual Background

Beginning in approximately 2011, and continuing until 2013, Defendant and his wife Eneshia Carlyle, stole identities from patients at the Department of Veterans’ Affairs (“VA”), ambulance services, hospitals, and clinics, to electronically file fraudulent tax returns. Defendant and his wife used prepaid debit cards to access the refunds produced by these fraudulent tax returns.

The investigation into Defendant began in August 2012, following a routine traffic stop by the Tampa .Police Department. Defendant consented to a search of his vehicle, and officers found receipts and debit cards imprinted with names other than Defendant’s.

Following a trash pull at Defendant’s residence—which revealed several debit cards with various names on them, a sheet containing personal identifying information, and a receipt for a cash-back transaction—officers executed a search warrant at the residence. Officers found over 300 debit cards, as well as medical records from the VA, ambulance services, and hospitals. These records contained approximately 7,000 pieces of personal identifying information. The search also revealed two firearms. In addition, officers found three keys to storage units inside of Defendant’s wife’s purse. A subsequent search of those storage units revealed trash bags filled with medical records containing personal identifying information, prepaid debit cards, and a Mercedes.

B. Procedural History

A federal grand jury subsequently issued a superseding indictment against Defendant, charging him with: (1) conspiracy to commit mail and wire fraud, in violation of 18 U.S.C. § 1349 (“Count 1”); (2) wire fraud, in violation of 18 U.S.C. § 1343 (“Counts 2 through 5”); (3) aggravated identity théft, in violation of 18 U.S.C. § 1028A (“Counts 6 through 9”); and (4) being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g) (“Count 10”). Defendant initially pleaded not guilty, but before trial was set to begin, he pled guilty to Counts 1 through 10.

Using the 2014' Sentencing Guidelines, the probation officer prepared a Presen-tence Investigation Report (“PSR”). Pursuant to U.S.S.G. § 3D1.2(d), the PSR grouped Counts 1 through 5 (mail and wire fraud offenses) and assigned Defendant a base offense level of 7. Defendant received the following enhancements: (1) an 18-level enhancement under U.S.S.G. § 2Bl.l(b)(l)(J), because the intended loss was more than $2,500,000; (2) a 6-level enhancement under § 2Bl.l(b)(2)(C), because the offense involved 250 or more victims; (3) a 2-level enhancement under § 2Bl,l(b)(10), because the offense involved sophisticated means; (4) a 2-level enhancement under § 2Bl.l(b)(ll)(B), because Defendant produced an unauthorized access device; (5) a 2-level enhancement under § 3Al.l(b)(l), because Defendant knew or should have known that a victim of the offense was a vulnerable victim; (6) a 4-level enhancement under U.S.S.G. § 3Bl.l(a), because Defendant was an organizer or leader of the conspiracy; and (7) a 2-level enhancement under § 3C1.1, for obstruction of justice. Defendant’s resulting adjusted offense level was 43.

As to Count 10 (possession of a firearm by a convicted felon offense), the PSR assigned Defendant a base offense level of 26, pursuant to U.S.S.G. § 2K2.1. The PSR also noted that Defendant faced a mandatory minimum of 24 months’ imprisonment for Counts 6 through 9 (aggravated identity theft offenses). Because Defendant’s offense level of 43 was greater than 26, the PSR determined that Defendant’s ' combined total offense level was 43.

The PSR also determined that Defendant qualified as an armed career criminal for purposes of U.S.S.G. § 4B1.4, based on his three prior Florida convictions for serious drug offenses: (1) a 2008 conviction for trafficking in cocaine; (2) a 2008 conviction for possession of cocaine with intent to sell/deliver; and (3) a 2008 conviction for attempted possession with intent to distribute and to possess with intent to distribute less than 50, kilograms of marijuana within 1,000 feet of a school. Nevertheless, Defendant’s offense level remained at 43, as it was greater than his offense level pursuant to the armed-career-criminal enhancement.

With a two-level reduction for acceptance of responsibility, Defendant’s total offense was 41. Based on a total offense level of 41 and a criminal history category of VI, Defendant’s guideline range was 360 months to life imprisonment. In addition, Defendant faced a mandatory minimum of 24 months’ imprisonment for Counts 6 through 9, to be imposed consecutively to any other sentence. The PSR also noted that Defendant owed restitution in the amount of $1,820,759. .

- Of relevance to this appeal, Defendant objected to the PSR’s calculation of restitution, as well as the enhancements corresponding to the loss amount and the number of victims. He further objected- to the imposition ' of thé vulnerable-victim enhancement, the production-of-an-unauthorized-access-device enhancement, and the armed-career-criminal enhancement.

At the sentencing hearing, Defendant withdrew his objections to the enhancements for production of an unauthorized access device, as well as to his designation as an armed career criminal. In light of Defendant’s numerous factual objections to the PSR, the Government called several witnesses to testify about the traffic stop and the trash pull.

Tampa Police Department Detective Sharia Canfield testified that she examined the evidence recovered from the trash pull and the search of Defendant’s residence. She stated that approximately 7,000 means of identification were found in Defendant’s residence, some of which were taken from patient medical records. The records included handwritten notations, such as “not good” or “zero.” Based on her experience investigating tax fraud, Detective Canfield interpreted these notations to mean that an attempt to do a fraudulent tax return was unsuccessful. She stated that Defendant used the means of identification in these records to file fraudulent tax returns for individuals between the ages of 28 days and 108 years old. Defendant knew the ages, arid in some cases serious medical conditions, of the individuals whose identities he was stealing.

The Government also called Glenn Hay-ag, an Internal Revenue Service (“IRS”) Special Agent, to testify about a spreadsheet he prepared for purposes of calculating the loss amount, the number of victims, and the. amount of restitution owed. Special Agent Hayag explained, that officers recovered more than 7,000 pieces of personal identifying information from the search warrant executed at Defendant’s residence. The investigation revealed that a total of 5,811 tax returns were fraudulently filed based on that personal identifying information during the years 2010, 2011, and 2012. The IRS paid out $12,407,679 in refunds based on those 5,811 tax returns.

While reviewing the evidence collected during the investigation of Defendant and his wife, Special Agent Hayag noticed a pattern of similar, addresses, e-mail addresses, Internet Protocol (“IP”) addresses, and characteristics on the tax .returns, related to interest income, dividend income, withholdings, and wages. He examined the 5,811 filings, looking for the factors he found common to Defendant’s scheme, and narrowed the filings to 805 victims. In doing so, he excluded any refunds that went to a regular bank or were prepared by paid tax preparers, given that Defendant’s scheme involved refunds deposited to debit cards. Based on the claimed and paid amounts for only those 805 tax returns, Special Agent Hayag calculated an intended loss amount of $5,613,514 and an actual loss amount of $1,822,759. He admitted that only about 60 or 70 electronically-filed tax returns were linked to the wireless hot spot device recovered from Defendant’s residence on the day of the search. However, the hot spot device was dynamic, meaning that the device assigns a new IP address each time it signs off the internet. Stated another way, all 5,811 of the tax returns could have come from the same device.

■ Following Special Agent Hayag’s testimony, the district .court overruled Defendant’s objections to the calculation of the loss amount and the number of victims, concluding that ample evidence, including Special Agent Hayag’s testimony, showed that there were more than 250 victims who had their personal identifying information stolen and that $5,613,549 was a reasonable estimate of the intended loss. The district court also overruled Defendant’s objection to the PSR’s calculation of-restitution, concluding that Defendant owed restitution in the amount of $1,820,759, as this was the amount actually paid out by the IRS on the 805 tax returns attributed to Defendant.

As to the vulnerable-victim enhancement, the district court stated that:

The provision does provide if the defendant knew or should have known the victim of the offense was vulnerable as a result of the medical records. It’s clear from a review of the medical records that a number of them were vulnerable individuals just by virtue of the information and the source of the medical records.

Based on the district court’s determination regarding two enhancements not relevant to this appeal, the district court concluded that Defendant’s total offense level was 35, resulting in a guideline range of 292 to 365 months’ imprisonment. After considering the 18 U.S.C. § 3553(a) factors, the district court sentenced Defendant to a total of 324 months’ imprisonment. The district court also ordered Defendant to pay restitution in the amount of $1,820,759. This appeal followed.

II. DISCUSSION

A. Loss determination, calculation of the number of victims, and the amount of restitution

Defendant argues that the district court clearly erred by adopting Special Agent Hayag’s actual- and intended-loss determination and the calculation of the number of victims. In particular, Defendant argues that Special Agent Hayag’s calculations were speculative and did not reflect a reasonable estimate of the loss or the number of victims.

We review the district court’s loss determination, calculation of the number of victims, and the factual finding regarding the amount of restitution for clear error. United States v. Rodriguez, 732 F.3d 1299, 1305 (11th Cir. 2013) (number-of-victims calculation); United States v. Foley, 508 F.3d 627, 632 (11th Cir. 2007) (restitution); United States v. Hernandez, 160 F.3d 661, 667-68 (11th Cir. 1998) (loss determination). “Although review for clear error is deferential, a finding of fact must be supported by substantial evidence.” United States v. Robertson, 493 F.3d 1322, 1330 (11th Cir. 2007).

1. Loss Amount

Defendant first challenges the district court’s imposition of an 18-level enhancement based on its determination that the loss exceeded $2,500,000.

Section 2Bl.l(b)(l)(J) of the Sentencing Guidelines provides that a defendant is subject to an 18-level enhancement if the loss attributable to the defendant is more than $2,500,000. U.S.S.G. § 2Bl.l(b)(l)(J) (2014). The commentary states that “loss is the greater of actual or intended loss.” Id. § 2B1.1, comment. (n.3(A)). More specifically, “actual loss” is the “reasonably foreseeable pecuniary harm that resulted from the offense” and “intended loss” is the “pecuniary harm that was intended to result from the offense.” Id. § 2B1.1, comment. (n.3(A)(i)-(ii)).

The district court is only required to make a reasonable estimate of the loss, and we defer appropriately to its determination. See id. § 2B1.1, comment. (n.3(C)). To make the loss determination, the district court is permitted to use evidence from trial, undisputed PSR facts, and evidence from the sentencing hearing. United States v. Bradley, 644 F.3d 1213, 1290 (11th Cir. 2011). Although reasonable estimates are permissible, speculation is not. Id. The Government must establish the facts by a preponderance of the evidence and support the loss calculation with reliable and specific evidence. Id.

Here, the district court did not clearly err in finding that the Government proved by a preponderance of the evidence that the intended loss was more than $2,500,000. The Government provided reliable and specific evidence of the loss calculation and the district court made a reasonable estimate after reviewing the spreadsheet prepared by Special Agent Hayag and hearing his testimony at the sentencing hearing. See United States v. Medina, 485 F.3d 1291, 1304 (11th Cir. 2007) (“A reasonable estimate of the loss amount is appropriate because often the amount of loss caused by fraud is difficult to determine accurately.” (quotations omitted)).

Special Agent Hayag explained that the IRS determined that the 7,000 pieces of personal identifying information found during the execution of the search warrant were used to file 5,811 fraudulent tax returns during the three-year period between 2010 and 2012. While reviewing the evidence obtained during the investigation of Defendant’s tax-fraud scheme, Special Agent Hayag noticed" a pattern of common addresses, IP addresses, and e-mail addresses, as well as similarities on the returns related to wages, interest income,- and dividends. Based on the patterns associated with Defendant’s tax-fraud- scheme, Special Agent Hayag attributed 805 of the 5,811 tax returns to Defendant. In arriving at this number, Special Agent Hayag also excluded any tax returns that were filed by a tax preparer, as well as returns that had a refund distributed to a bank, not a debit card. The intended loss (or amounts claimed) on those 805 tax returns was $5,613,549. Based on this testimony, the district court reasonably estimated the intended loss in the amount of $5,613,549. Cf. Rodriguez, 732 F.3d at 1304-05 (concluding that the Government did not support the sentencing enhancement with rehable and specific evidence because no witness testified to authenticate the summaries of evidence presented at sentencing).

Defendant’s contention that Special Agent Hayag’s analysis was flawed because it used the 7,000 pieces of personal identifying information as a starting point misses the mark. Special Agent Hayag testified that the IRS determined that the 7,000 pieces of personal identifying information were associated with 5,811 fraudulent tax returns filed from 2010 to 2012. While Special Agent Hayag used those 5,811 tax returns as a starting point, he only attributed 805 of those returns .to Defendant based on the patterns he uncovered during his investigation of Defendant’s scheme. Defendant’s argument that it was unreasonable for Special Agent Hayag to use these common characteristics to attribute fraudulent tax returns to Defendant is without merit. See United States v. Ford, 784 F.3d 1386, 1396-97 (11th Cir. 2015) (affirming district court’s loss calculation based on an IRS agent’s testimony that he narrowed the total number of tax returns attributable to the defendant using certain addresses linked to the defendant). Further, although Defendant asserts that Special Agent Hayag did not provide sufficient explanation regarding certain aspects of his analysis, Defendant had the opportunity to cross-examine Special Agent Hayag on these points at the sentencing hearing.

We are also not persuaded by Defendant’s argument that he should only be held accountable for the loss amounts associated with the 60 to 70 tax returns linked to the IP address recovered from the hot spot device at his residence. As' Special Agent Hayag testified, the hot spot device recovered from Defendant’s residence was dynamic, meaning that it generated a new IP address each time that it disconnected from-the internet. In other words, the fact that the IP address could only be linked to 60 or 70 tax returns does not mean that the device was not used to file other tax returns.

Finally, we reject Defendant’s argument that the Government failed to establish that he had the ability to “rapid-file” tax returns, as he has pointed to no authority requiring the Government to submit proof that he had the ability to “rapid-file” tax returns. And indeed, the evidence put forth at the sentencing hearing showed that Defendant possessed 7,000 pieces of personal identifying information, in addition to over 300 debit cards. Because the Government presented reliable and specific evidence establishing by a preponderance of the evidence that the intended loss exceeded $2,500,000, the district court did not err in applying the 18-level enhancement under § 2Bl.l(b)(l)(J).

2. Number of Victims

Defendant further asserts that the district court’s finding that the offense involved more than 250 victims was speculative and unreasonable.

We do not agree. A defendant is subject to a 6-level enhancement when an offense involves, 250 or more: victims. U.S.S.G. § 2Bl.l(b)(2)(C) (2014). A victim is defined as “any person who sustained any part of the actual loss” of the scheme or “any individual whose means of identification was used unlawfully or without authority.” Id. § 2B1.1, comment. (n.l & n.4(E)).

The district court did not clearly err when it determined that Defendant’s offense involved more than 250 victims. The district court based its determination on Special Agent Hayag’s testimony that 805 fraudulently-filed tax returns could be attributed to Defendant. For the same reasons explained above, the Government provided specific and reliable evidence to support the finding that the offense involved more than 250 victims, and thus warranted the six-level enhancement under § 2Bl.l(b)(2)(C).'

3. Restitution

Defendant likewise challenges the district court’s calculation of restitution in the amount of $1,820,759.

“The amount of restitution must be based on the amount of loss actually caused by the defendant’s conduct.” United States v. Baldwin, 774 F.3d 711, 728 (11th Cir. 2014) (quotations omitted). The Government must establish the amount of restitution by a preponderance of the evidence. Id. “Because the determination of the restitution amount is by nature an inexact science, where difficulties arise, a district court may accept a reasonable estimate of the loss based oh the evidence presented.” Id. (citation and quotations omitted). ’

The .district court did not clearly err in determining that Defendant owed restitution in the amount of $1,820,759. Again, .the Government established by a preponderance of the evidence that Defendant was. accountable for 805 fraudulently-filed, tax returns. The actual loss, or amount paid out by the IRS, on those 805 tax returns was - $1,820,759. See id., 774 F.3d at 728. To the extent Defendant also challenges the forfeiture money judgment in the amount of $1,820,759, he does so for the first time on appeal. But regardless, for the reasons already explained, the forfeiture money judgment was based on the actual loss to the IRS as a result of the 805 fraudulently-filed tax returns attributed to Defendant.

B. Vulnerable-Victim Enhancement

Defendant next argues that the district court erred by applying the two-level vulnerable-victim enhancement under U.S.S.G. § 3Al.l(b)(l).

While the application of U.S.S.G. § 3Al.l(b) is a mixed question of law and fact that we review de novo, the district court’s determination that a victim is vulnerable is a factual finding to which we accord “due deference.” United States v. Frank, 247 F.3d 1257, 1259 (11th Cir. 2001). We will reverse this factual finding only if we conclude that it is clearly erroneous. Id,

Section 3Al.l(b)(l) of the Sentencing Guidelines provides for a two-level increase in a defendant’s offense level if “the defendant knew or should have known that a victim of the offense was a -vulnerable victim.” U.S.S.G. § 3Al.l(b)(l). The term “ ‘vulnerable victim’ means a person ... who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to - the criminal conduct.” Id. § 3A1.1, comment. (n.2).

Defendant argues that the Government did not establish that he targeted his victims based on their vulnerability. However, we recently determined that § 3Al.l(b)(l) does not require a defendant to have targeted his victims based on their vulnerability, as it requires only that the defendant knew or should have known that a victim of the offense was vulnerable. See United States v. Birge, 830 F.3d 1229, 1232-34 (11th Cir. 2016) (referring to language in our previous decisions stating that § 3A1.1 requires “targeting” a vulnerable victim as dicta). The district court found that Defendant knew or should have known that at least one of the victims of the offense was vulnerable, and Defendant does not appear to challenge that finding on appeal.

Instead, Defendant argues that the district court applied the vulnerable-victim enhancement based on the mere possession of medical records, but did not require proof that any personal identifying information from those records had actually been used. Because Defendant raises this argument for the first time on appeal, our review is for plain error. See United States v. Massey, 443 F.3d 814, 819 (11th Cir. 2006) (explaining that a defendant fails to preserve an objection where he asserts the factual basis for the objection before the district court but asserts a different legal theory on appeal). Regardless, Defendant has failed to show error, plainly or. otherwise, because Defendant admitted at the guilty plea colloquy that he had used the information in the medical records to file fraudulent tax returns.

C. Production-of Unauthorized-Access-Device Enhancement

Defendant argues that the district court plainly erred by imposing a two-level enhancement for the production of an unauthorized access device under U.S.S.G. § 2Bl.l(b)(ll)(B)(i). In particular, he asserts that the use of personal identifying information to file fraudulent tax returns does not constitute production of an unauthorized access device.

Under § 2Bl.l(b)(ll)(B)(i), a defendant is subject to a two-level increase in his offense level if the offense involved the production of an unauthorized access device. U.S.S.G. § 2Bl.l(b)(ll)(B)(i). The commentary defines “production” to mean “manufacture, design, alteration, authentication, duplication, or assembly.” Id. § 2B1.1, comment. (n.lO(A)).

Defendant initially objected to the PSR’s application of this enhancement, but subsequently withdrew the objection at the beginning of the sentencing hearing. As a result, the Government contends that the doctrine of invited error precludes appellate review of Defendant’s argument challenging this enhancement. “The doctrine of invited error is implicated when a party induces or invites the district court into making an error. Where invited error exists, it precludes a court from invoking the plain error rule and reversing.” United States v. Silvestri, 409 F.3d 1311, 1327-28 (11th Cir. 2005) (citation and quotations omitted). In a similar vein, we have held that a defendant waives a sentencing objection where he expressly withdraws the objection before the district court. See United States v. Horsfall, 552 F.3d 1275, 1283-84 (11th Cir. 2008); see also United States v. Masters, 118 F.3d 1524, 1526 (11th Cir. 1997) (concluding that plain-error review did not apply where a defendant withdrew his objection, despite knowing that the district court would commit error).

Based on the record before us, we conclude that Defendant waived any argument he may have had challenging the district court’s imposition of the two-level enhancement under § 2Bl.l(b)(ll)(B)(i). See Horsfall, 552 F.3d at 1283-84; Masters, 118 F.3d at 1526. Because Defendant expressly withdrew his objection to the enhancement at the sentencing hearing, we are precluded from addressing his arguments challenging the enhancement on appeal. See Horsfall, 552 F.3d at 1283-84.

In any event, even if Defendant had not waived this argument, it would still fail under plain-error review. Defendant has not pointed to any on-point precedent, in which our Court or the Supreme Court has concluded that duplicating stolen Social Security numbers on tax returns for the purpose of obtaining fraudulent refunds loaded onto debit cards does not qualify as production of unauthorized access devices. See United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003) (“It is the law of this circuit that, at least where the explicit language of a statute or rule does not specifically resolve an issue, there can be no plain error where there is no precedent from the Supreme Court or this Court directly resolving it.”).

D. Armed-Career-Criminal Enhancement

Finally, Defendant asserts that his 2008 Florida conviction for possession of cocaine with intent to sell or deliver does not qualify as a serious drug offense for purposes of the armed-career-criminal enhancement.

At the sentencing hearing, Defendant withdrew his objection to the armed-career-criminal enhancement. Defense counsel stated that he had reviewed Defendant’s underlying convictions and believed the enhancement applied. When the district court asked Defendant to confirm that he did not contest his designation as an armed career criminal, Defendant responded: “That’s what .the- record states, yes.”

Based on Defendant’s express and voluntary withdrawal of his objection to the armed-career-criminal enhancement, Defendant has waived any challenge he may have had to this enhancement. See Horsfall, 552 F.3d at 1283-84. But even if we determined that Defendant had not waived this challenge, his argument would likewise fail under plain-error review. As Defendant readily concedes, his argument that his conviction for possession of cocaine with intent to sell or deliver under Florida Statute § 893.13(1) does not qualify as a serious drug offense is foreclosed by United States v. Smith, 775 F.3d 1262, 1264-68 (11th Cir. 2014).

III. CONCLUSION

For all of the above reasons, Defendant’s 324-month sentence is

AFFIRMED.

      . This background is taken from the facts Defendant admitted during the guilty plea colloquy and those facts presented through witness testimony at the sentencing hearing. See United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005) (explaining that district court may support a sentencing enhancement wkh facts defendant admitted at the guilty plea colloquy); United States v. Bradley, 644 F.3d 1213, 1290 (11th Cir. 2011) (stating that the district court may rely on evidence produced at trial, undisputed facts in the presentence investigation report, and testimony presented at the sentencing hearing to support its loss determination).

      . We will only notice plain error if “(1) there is an error in the district court’s determination; (2) the error is plain or obvious; (3) the error affects the defendant’s substantial rights in that it was prejudicial and not harmless; and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Clark, 274 F.3d 1325, 1326 (11th Cir. 2001).


author: PER CURIAM.

text:
    SAS INSTITUTE, INC., Appellant v. COMPLEMENTSOFT, LLC., Cross-Appellant
    2015-1346
    2015-1347
    United States Court of Appeals, Federal Circuit.
    November 7, 2016
    John MaRlott, Jones Day, Chicago, IL, for appellant. Also represented by Gregory A. Castanias, Washington, DC; David B. Cochran, Cleveland, OH; Matthew Johnson, Pittsburgh, PA.
    Matthew Topic, Loevy & Loevy, Chicago, IL, for cross-appellant.
    Nathan K. Kelley, Office of the Solicitor, United States Patent and Trademark Office, Alexandria, VA, for intervenor Michelle K. Lee: Also represented by Scott Weidenfeller, Joseph Gerard Piccolo, Stacy Beth 'Margolies, Sarah E. Craven.
    Before PROST, Chief Judge, NEWMAN, LOURIE, DYK, MOORE, REYNA, WALLACH, TARANTO, CHEN, HUGHES, and STOLL, Circuit Judges.

       Circuit Judge O’Malley did not participate.

   NEWMAN, Circuit Judge, dissents from the denial of the petition for rehearing en banc.

ORDER

PER CURIAM.

Appellant SAS Institute, Inc. filed a petition for rehearing en banc. Responses to the petition were invited by the court and filed by intervenor Michelle K. Lee and cross-appellant Complementsoft, LLC. The petition was first referred as a petition for rehearing to the panel that heard the appeal, and thereafter the petition for rehearing en banc was referred to the circuit judges who are in regular active service. A poll was requested, taken, and failed.

Upon consideration thereof,

It Is Ordered That:

The petition for panel rehearing is denied.

The petition for rehearing en banc is denied.

The mandate of the court will issue on November 14, 2016.

Newman, Circuit Judge, dissenting from denial of the petition for rehearing en banc.

Administrative agency practices are required to conform to the authorizing legislation and the statutory purpose. The Patent and Trademark Office (“PTO”), charged with administering .the Leahy-Smith America Invents Act (“ALA”), P.L. 112-29, has adopted some implementing practices that are not authorized by the statute and not in accord with the legislative purpose of achieving final resolution of disputed patent' validity issues by agency action in place of litigation.

This case concerns the PTO’s adoption of the practice whereby on inter partes review (“IPR”) the PTO may, in its sole discretion, choose to decide some, but not all, of the patent claims that are challenged under the’ statute. This practice foils the legislative purpose of resolving certain patent issues in an administrative forum, newly available to litigants previously confined to.the district court. From my colleagues’ refusal'to reconsider , this agency practice en banc, I respectfully dissent.

Discussion

The America Invents A.ct established a new adjudicatory body called the Patent Trial and Appeal Board (“PTAB”), an administrative tribunal vested with authority to conduct trials including discovery, evidence, testimony, briefs, argument, and final decision. The PTAB’s decisions produce estoppel in all subsequent proceedings between the parties, both administrative and judicial. The goal is the efficient and reliable resolution of certain patent disputes without the cost and delay and uncertainty of district court litigation. As explained by Senator Kyi, a principal architect of the legislation, this system “ideally [will] completely substitute for at least the patents-and-printed-publication portion, of the civil litigation.” .157 Cong. Reo. S1376 (daily ed. Mar. 8, 2011) (statement of Sen. Kyi).

This goal was paramount during the years of genesis of the America Invents Act..“It is clearly appropriate to.have an administrative process for challenging patent validity, but it should exist within a structure that guarantees a quick—and final—determination.” Patent Reform Act of 2009: Hearing on H.R. 1260, Home Comm. on the Judiciary, 111th Cong. 153 (April 30, 2009) (statement of Rep. Man-zullo). The ALA provides for final determination of validity as to the grounds asserted against the claims challenged in the petition.

However, the PTO adopted regulations that authorizes the PTAB to choose to decide some, but not all, of the challenged claims. The practice, called “partial” or “selective” institution, leaves the unselected claims dangling, lacking both finality and estoppel, preventing the expediency and economy and efficiency that motivated the America Invents Act. Senator Kyi stressed a primary purpose of the Act “to force a party to bring all of [its] claims in one forum ... and therefore to eliminate the need to press any claims in' other fora.” 154 Cong. Reo. S9989 (daily ed. Sept. 27, 2008) (statement of Sen. Kyi).

Instead, by “partial institution” the petitioner is-, not only mired in the proceeding for the claims that the PTAB has selected, but may also be obliged to litigate the other claims in other for a, even though those claims were properly presented to the PTAB for adjudication. The matter requires m banc correction, for this court has endorsed the PTO’s position’ that “the final order of the Board need not address every- claim raised in the petition for review” Synopsys, Inc., v. Mentor Graphics Corp., 814 F.3d 1309, 1311 (Fed. Cir. 2016).

The - Statute

The provisions of the AIA form a coherent whole only when all of the properly challenged claims are decided by the PTAB. “The cardinal rule of statutory' interpretation [is] that no provision should be construed to be entirely redundant.” Kungys v. United States, 485 U.S. 759, 778, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988). “It is the duty of the court to give effect, if possible, to every clause and word of a statute” Inhabitants of Montclair Tp. v. Ramsdell, 107 U.S. 147, 152, 2 S.Ct. 391, 27 L.Ed. 431 (1883).

Relévant statutory provisions include—

35 U.S.C § 311 Inter Partes Review

Section 311 authorizes the defined post-grant challenges in the PTO. The purpose is not only to avoid or reduce the burdens and costs and delays of litigation, but potentially to avert litigation. See 157' Cong. Rec. S1053 (Mar, 1, 2011) (statement of Sen.' Whitehouse) (“[T]he bill will improve administrative processes so- that disputes over patents can be resolved quickly and cheaply without patents being tied up for years in expensive litigation.”); see also H.R. Rep. No. 112-98 pt.l at 48 (2011) (“[T]he purpose of the section is providing quick and cost effective alternatives to litigation.”):

§ 311(a) In general,—Subject, to the provisions of this chapter, a person who is not the owner, of a patent may file with the Office a petition to institute an inter partes review of the; patent.
(b) Scope.—A petitioner in an- inter partes review may request to cancel as unpatentable 1 or more claims of a patent only on a ground that could be raised under section 102 or 103 and only on the basis of prior art consisting of patents or printed publications.

The PTO’s then-Director Dudas explained that the majority of validity challenges are on § 102 or § 103 grounds based on reference patents and printed publications. See Patent Reform: The Future of American Innovation: Hearing Before the Senate Comm. on the Judiciary, 110th Cong. 7 (2007) (statement of Director Jon Dudas).

The legislative record is unambiguous: the purpose of the AIA procedure is to move these validity challenges into the PTO, whose expertise in technology and experience in the , relevant law are intended to produce decisions entitled to estoppel in any judicial or administrative proceeding between these parties or their privies. Senator Grassley explained the intended effect: “If an inter partes review is instituted while litigation is pending, that review will completely substitute for at least the patents-and-printed-publications portion of the civil litigation.” 157 Cong. Rec. S1376 (daily ed. Mar. 8, 2011) (statement of Sen. Grassley). This complete substitution, as enacted by Congress, cannot occur if the validity of only some of the challenged claims is decided, leaving the other challenged claims untouched.

35 U.S.C. § 312 Petitions

Section 312 states the required content of these post-grant petitions. When the specified content is not provided, the petition must be denied. When the specified content is provided, the petition may or may not be “instituted,” in the PTO’s unchallenged discretion. However, the statute does not contemplate the partial institution of only those parts selected by the PTO:

§ 312(a) Requirements of petition. — A petition filed under section 311 may be considered only if—
(3) the petition identified, in writing and with particularity, each claim challenged, the grounds on which the challenge to each claim is based, and the evidence that supports the grounds for the challenge to each claim, including— ....

At enactment Senator Grassley explained that “by requiring petitioners to tie their challenges to particular validity arguments against particular claims, the new threshold will prevent challenges from ‘mushrooming’ after the review is instituted into additional arguments employing other prior art or attacking other claims.” 157 Cong. Rec. S1376 (daily ed. Mar. 8, 2011). Emphasis on this requirement pervaded the genesis of the legislation. Senator Kyi explained that the-petitioner “must present a full affirmative case” as to every challenged claim. 154 Cong. Reo. S9987 (daily ed. Sept. 25, 2008) (statement by Sen. Kyi on S. 3600).

While § 314(d), discussed infra, provides that the PTO may refuse to accept any petition in its entirety, it was never contemplated that only some of the challenged claims might be reviewed, nor does § 314(d) provide such discretion, for this defeats the purpose of the proceeding. The legislative record stresses the intent “to eliminate the need to press any claims in other for.a.” 154 Cong. Rec. S9989 (daily ed. Sept. 27, 2008) (statement of Sen. Kyi).

35 U.S.C. § 313 Preliminary response to petition

The patent owner is authorized to respond, and to argue that “no inter partes review should be instituted.” There is no suggestion of partial institution.

35 U.S.C. § 314 Institution of inter partes review

“What the bill does ... is very simple. It says the Patent Office will make an administrative determination before the years of litigation as to whether this patent is a legitimate patent so as not to allow the kind of abuse we have seen.” 157 Cong. Rec. S5437 (daily ed. Sept. 8, 2011) (Statement of Sen. Schumer on Senate consideration of H.R. 1249). Section 314 provides for the threshold determination of whether to proceed at all and sets time limits for the decision of whether to institute review:

§ 314(a) Threshold.—The Director may not authorize an inter partes review to be instituted unless the director determines that the information presented in the petition filed in section 311 and any response filed under section 313 shows that there is a reasonable likelihood that the petitioner would prevail with respect to at least 1 of the claims challenged in the petition.
(b) Timing.—The Director shall determine whether to institute an inter partes review under this chapter pursuant to a petition filed under section 311 within 3 months after—
(1) receiving a preliminary response to the petition under section 313; or
(2) if no such preliminary response is filed, the last date on which such response may be filed.

In legislative response to the PTO’s concern about its ability to meet a sudden increase in workload, the statute provides that the PTO is not obligated to accept every petition, even when meritorious. Senator Kyi explained that this “reflects a legislative judgment that it is better that the Office turn away some petitions that otherwise satisfy the threshold for instituting and inter partes or post-grant review than it is to allow the Office to develop a backlog of instituted reviews that precludes the Office from timely completing proceedings.” 157 Cong. Rec. S1377 (daily ed. Mar. 8, 2011) (statement of Sen. Kyi). As part of this expedient, as well as to avert delay due to interlocutory appeal, the Act provides that the threshold decision whether to institute review is not appealable:

(d) No appeal.—The determination by the Director whether to institute an inter partes review under this section shall be final and nonappealable.

Thus, when a petition for review is declined, litigation may proceed. The statutory plan is for an alternative to litigation, not duplicative litigation as may arise from partial institution.

35 U.S.C § 315 Relation to other proceedings or actions

A primary focus of the AIA is to avoid the cost and delay and uncertainty of patent litigation. Thus the statute places controls on the relation between these PTO proceedings and district court and ITC litigation. Of particular concern is the effect of partial institution on the integrity of the new estoppel provisions:

§ 315(e) Estoppel—
(1) Proceedings before the Office.—The petitioner in an inter partes review of a claim in a patent under this chapter that results in a final written decision under section 318(a), or the real party in interest or privy of the petitioner, may not request or maintain a proceeding before the Office with .respect to that claim on any ground that the petitioner raised or reasonably could have raised during that inter partes review.
(2) Civil actions and other proceedings.—The petitioner in an inter partes review of a claim in a patent under this chapter that results in a final written decision under section 318(a), or the real party in interest or privy of the petitioner, may not assert either in a civil action arising in whole or in part under section 1338 of title 28 or in a proceeding before the International Trade Commission under section 337 of the Tariff Act of 1930 that the claim is invalid on any ground that the petitioner raised or reasonably could have raised during that inter partes review.

A goal of these new PTO proceedings is finality of decision. As the legislation evolved, it-was stressed that “if [such] proceedings are to be permitted, they should generally serve as a complete substitute for at least some phase of the litigation.” S. Rep. No. 110-259, at 67 (2008) (Additional Views of Sen. Specter joined with Minority Views of Sens. Kyi, Grass-ley, Cobum and Brownback).

The estoppel provisions were controversial. See, e.g., S. Rep. No. 111-18, at 17 (2009) (“Many businesses also have described could-have-raised estoppel as a powerful brake on their use of inter partes reexamination. They find this standard vague and uncertain, and fear that if they challenge a patent in an inter partes reexamination, they will lose the ability to raise later-discovered prior art against the patent if they are subsequently sued for infringement”). The statute as enacted embodies the dominant policy weight on the benefits of finality and estoppel, as explained by then-Director of the USPTO David Kappos: “Those estoppel provisions mean that your patent is largely unchallengeable by the same party.” Hearing on H.R. 12Jp9 before the Subcomm. on Intell. Prop., Competition and the Internet of the House Comm, on the Judiciary, 112th Cong. (2011).

On enactment, Senator Grassley flagged the purpose and significance of the estop-pel provisions:

In addition, the bill would improve the current inter partes administrative process for challenging the validity of a patent. It would establish an adversarial inter partes review, with a higher threshold for initiating a proceeding and ■ procedural safeguards to prevent a challenger from using the process to harass patent owners. It also would include a strengthened estoppel standard to prevent petitioners from raising in a subsequent challenge the same patent issues 'that were raised or reasonably could have been raised in a prior challenge. The bill would significantly reduce the ability to use post-grant procedures for abusive serial challenges to patents. These new procedures would also provide faster,, less costly,. alternatives to civil litigation.

157 Cong. Reo. S952 (daily ed. Feb. 28, 2011) (statement of Sen. Grassley). These goals are thwarted by the partial institution practice.

Estoppel cannot arise as to claims that the PTO declined to review. Partial institution negates the purpose that any patent claim challénged by the petitioner and any new claim added during the proceeding could be fully and finally decided, thereby bringing “more certainty in litigation.” 157 Cong. Reo. S948 (daily ed. Feb. 28, 2011) (statement of Sen. Leahy).

35 U.S.C § 316 Conduct of inter partes review

Section 316 authorizes the PTO Director to issue regulations, sets some evidentiary standards, and provides rules whereby the patent owner may file one motion to amend its claims.-The rules here of concern are 37 C.F.R. 42.108(a) (“When instituting inter partes review, the Board may authorize the review to proceed on all or some of the challenged claims and on all or some of the grounds of unpatentability asserted for each claim.”); 37 C.F.R. 42.108(b) (“At any time prior to institution of inter partes review, the Board may deny some or all grounds for unpatentability for some or all of the challenged claims. Denial of a ground is a Board decision not to institute inter partes review on that ground.”). These practices work against the statutory purpose of final resolution of § 102 and § 103 issues.

The Administrative Procedure Act requires that a reviewing court “shall hold unlawful and set aside agency action, findings, and conclusions found to be in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2)(C). “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

35 U.S.C. § 318 Decision of the Board

The legislation requires a final decision as to every claim challenged in the petition. •

§ 318(a) Final Written Decision—If an inter partes review is instituted and not dismissed under this chapter, the Patent Trial and Appeal Board shall issue a final written decision with respect to the patentability of any patent claim challenged by the petitioner and any new claim added under section 316(d).

The statute requires the Board’s final decision to encompass “the patentability of any patent claim challenged by the petitioner and any new claim added under section 316(d).”

This requirement to render a final decision for each of the challenged claims directly comports with the estoppel provisions. Fidelity to this legislative purpose is a necessity if the AIA’s new adjudicatory proceeding is to substitute for major aspects of patent validity litigation. Such substitution will serve the Nation’s interest in technological innovation and resultant societal benefits.

Conclusion

On this petition for rehearing en banc, the judicial obligation is to assure fidelity to the intent of Congress, as expressed in the statute and the legislative record, lest we become eomplicit in “frustrating the policy that Congress sought to implement:”

[T]he courts are the final authorities on issues of statutory construction. They must reject administrative constructions of the statute, whether reached by adjudication or by rulemaking, that are inconsistent with the statutory mandate or that frustrate the policy that Congress sought to implement.

Fed. Election Comm’n v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 32, 102 S.Ct. 38, 70 L.Ed.2d 23 (1981). Thus I must, respectfully, dissent from the denial of rehearing en banc.

      . The estoppel in IPR proceedings differs from the estoppel in the CBM transitional proceedings, 35 U.S.C. § 18(a)(1)(D) (“The petitioner in a transitional proceeding that ... results in a final written decision... may not assert ... that the claim is invalid on any ground that the petitioner raised during that transitional proceeding.”). Both the "raised” and "could-have-raised” standards are affected by partial institution.

      . I have focused on the question of partial institution, mindful that other aspects of AIA implementation are arising in other cases, all of which together affect the vitality of the statute. See Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 809, 109 S.Ct. 1500, 103 L.Ed.2d 891 (1989) ("A court must therefore interpret the statute ‘as a symmetrical and coherent regulatory scheme,’ and ‘fit, if possible, all parts into an harmonious whole.’ ”) (internal citations omitted).