author: JAMES L. DENNIS, Circuit Judge: JENNIFER WALKER ELROD, Circuit Judge,

text:
    Michael David MELTON, Plaintiff-Appellee v. Kelly D. PHILLIPS, Defendant-Appellant
    No. 15-10604
    United States Court of Appeals, Fifth Circuit.
    Filed September 14, 2016

      Jason Andrew Duff, Law Office of Jason Duff, Greenville, TX, for Plaintiff-Appel-lee.
    Robert Scott Davis, Esq., Flowers Davis, P.L.L.C., Tyler, TX, for Defendant-Appellant.
    Before DENNIS, ELROD, and GRAVES, Circuit Judges.
   JAMES L. DENNIS, Circuit Judge:

The plaintiff, Michael David Melton, spent sixteen days in county jail in connection with an assault he did not commit. The only thing that linked him' to this assault was the fact that he has the same first and last name as the person identified by the victim as the actual assailant. After his release, the plaintiff filed a lawsuit under 42 U.S.C. § 1983 against Kelly Phillips, a sheriffs office deputy, alleging that Phillips intentionally or recklessly misidentified him as the assailant in an offense report that he prepared, thereby leading to the plaintiffs arrest without probable cause in violation of the Fourth Amendment. The district court denied Phillips’s qualified immunity-based motion for summary judgment, and Phillips now appeals, principally arguing that he cannot be liable for a Fourth Amendment violation because he neither prepared nor signed the affidavit in support of an arrest warrant. After carefully considering the parties’ arguments, we affirm the district court’s order in part and dismiss the ^appeal in part.

I

In June 2009, Phillips, then a deputy with the Hunt County Sheriffs Office, interviewed the victim of an assault. The victim identified the attacker as his wife’s boyfriend at the time, a man named Michael Melton, apparently without providing the assailant’s middle name. Phillips then prepared an offense report and submitted it to the Sheriffs Office. The report specifically identified the plaintiff, Michael David Melton, as the suspected assailant. After he submitted his report, Phillips had no further involvement with the case.

In July 2010, the state prosecutor filed a criminal complaint against the plaintiff, charging him with the assault. The complaint expressly stated that it was based upon Phillips’s offense report and provided no other basis for the information contained therein. Shortly thereafter, a Hunt County judge issued a warrant for the plaintiffs arrest, identifying him by his first and last name and by his address, which was included in Phillips’s report. The plaintiff was arrested in May 2012 and held in county jail for sixteen days before he was released on bond. In August 2012, the charge against the plaintiff was dismissed. The plaintiff filed the instant suit in state court against multiple defendants, asserting, inter alia, Fourth Amendment violations, and the suit was subsequently removed to federal court. As to Phillips, the plaintiff alleged that he intentionally or recklessly misidentified him as the assailant in the offense report, thereby leading to his arrest without probable cause.

In support of his allegations, the plaintiff submitted an affidavit from a former Sheriffs Office employee, Brian Alford, who opined that Phillips likely used a computer database, the “Personal Identification History through net dáta” or “PID,” to identify the plaintiff as the suspected assailant. Specifically, Alford concluded that Phillips likely entered the name “Michael Melton” into the database and conducted no further investigation as to whether the PID-generated result matched the person identified by the victim.

Phillips moved for summary judgment, asserting qualified immunity. Relevant to the instant appeal, the district court denied summary judgment on the plaintiffs Fourth Amendment claims. First, the district court cited Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and Hart v. O’Brien, 127 F.3d 424 (5th Cir. 1997), in rejecting Phillips’s argument that he cannot be liable for the claimed Fourth Amendment violations because he neither signed nor drafted the affidavit in support of a warrant. Second, the district court found a genuine dispute of fact regarding whether Phillips was reckless in identifying the plaintiff in his offense report.

On appeal, Phillips contends that the district court should have followed another Fifth Circuit case, Michalik v. Hermann, 422 F.3d 252 (5th Cir. 2005), and subsequent cases that applied Michalik. Pursuant to those cases, Phillips claims, an officer who neither signed nor prepared the affidavit is not liable for Fourth Amendment violations. In the alternative, Phillips argues that the district court erred in finding a genuine issue of fact regarding his alleged recklessness. Finally, he argues that the independent intermediary doctrine forecloses the plaintiffs claims.

II

“The denial of a motion for summary judgment based on qualified immunity is immediately appealable under the collateral order doctrine to the extent that it turns on an issue of law.” Lytle v. Bexar Cnty., 560 F.3d 404, 408 (5th Cir. 2009) (citation and internal quotation marks omitted). “Accordingly, we lack jurisdiction to review the genuineness of a fact issue but have jurisdiction insofar as the interlocutory appeal challenges the materiality of the factual issues.” Allen v. Cisneros, 815 F.3d 239, 244 (5th Cir. 2016) (citation and internal quotation marks omitted). We review the district court’s conclusions regarding the materiality of the facts de novo, Lemoine v. New Horizons Ranch & Ctr., Inc., 174 F.3d 629, 634 (5th Cir. 1999), “considering] only whether the district court erred in assessing the legal significance of the conduct that the district court deemed sufficiently supported for purposes of summary judgment,” Kinney v. Weaver, 367 F.3d 337, 348 (5th Cir. 2004) (en banc). “Where factual disputes exist ... we accept the plaintiffs’ version of the facts as true.” Id.

Ill

A

Phillips argues that, under our precedent, an officer like him, who neither signed nor prepared the affidavit in support of a warrant, is not liable for Fourth Amendment violations. Because this claim turns on an issue of law, we have jurisdiction to consider it. See Lytle, 560 F.3d at 408.

In Franks v. Delaware, the Supreme Court considered whether criminal defendants ever have a right to challenge the veracity of factual statements made in an affidavit supporting a search warrant. 438 U.S. 154, 155, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Answering affirmatively, the Court held that the exclusionary rule mandates the exclusion of evidence that was seized pursuant to a search warrant if the defendant establishes that the affiant, “knowingly and intentionally, or with reckless disregard for the truth,” included a false statement in the warrant affidavit that was necessary to the finding of probable cause. Id. at 155-56, 98 S.Ct. 2674. While Franks dealt with the suppression of evidence in criminal proceedings, we have read it to establish, in the context of § 1983 claims asserting Fourth Amendment violations, “that an officer is liable for swearing to false information in an affidavit in support of a search warrant, provided that: (1) the affiant knew the information was false or [acted with] reckless disregard for the truth; and (2) the warrant would not establish probable cause without the false information.” Hart v. O’Brien, 127 F.3d 424, 442 (5th Cir. 1997) (citing Franks, 438 U.S. at 171, 98 S.Ct. 2674 (1978)). Taken at face value, Franks would suggest that only officers who sign a warrant affidavit or otherwise request a warrant under oath may be liar ble for Fourth Amendment violations due to their deliberate or reckless misrepresentations. Hart, 127 F.3d at 448 (citing Franks, 438 U.S. at 171, 98 S.Ct. 2674).

However, in Hart v. O’Brien, we held that Franks liability may extend to government officials who are not the affiants. Hart, 127 F.3d at 448-49. Relevant to the instant appeal, Hart sued an assistant county attorney, Starnes, for Fourth Amendment violations under § 1983. Id. at 434. Starnes, along with a state officer, drafted an affidavit in support of a search and arrest warrant relating to Hart. Id. at 432. Hart alleged that Starnes' inserted false statements into the affidavit, either intentionally or with reckless disregard for the truth. Id. Rejecting any contention that Starnes could not be liable for Fourth Amendment violations because he did not sign the affidavit, we explained that Franks “left open the possibility that a search or arrest violates the Fourth Amendment where' the affiant relies in good faith on deliberate or reckless misstatements by another government official.” Id. at 448 (citing Franks, 438 U.S. at 164 n.6, 98 S.Ct. 2674). After considering several sister circuits’ holdings that deliberate or reckless misrepresentations by non-affiant government officials may form the basis for Franks claims, we concluded:

We agree with the reasoning of these circuit courts.... The Fourth Amendment places restrictions and qualifications on the actions of the government generally, not merely on affiants. A governmental official violates the Fourth Amendment when he deliberately or recklessly provides false, material information for use in an affidavit in support of a search warrant, regardless of whether he signs the affidavit.

Id. at 449.

While Hart involved a government official who actually participated in drafting the affidavit, see 127 F.3d at 432,- its holding was not so confined. Rather than say that an officer violates the Fourth Amendment when he recklessly drafts or signs an affidavit that includes false information, we held that a “governmental official violates the Fourth Amendment when he deliberately or recklessly provides false, material information for use in [the] affidavit.” Hart, 127 F.3d at 448; accord United States v. Brown, 298 F.3d 392, 408 & n.9 (5th Cir. 2002) (Dennis, J., concurring) (“[A] defendant is entitled to a Franks hearing upon making a ... showing that á governmental official deliberately or recklessly caused facts that preclude a finding of probable cause to be omitted from a warrant affidavit.”). Indeed, we expressly relied upon the Supreme Court’s statement in Franks that police cannot “ ‘insulate one officer’s deliberate misstatements merely by relaying it through an officer-affiant personally ignorant of its falsity.’ ” Hart, 127 F.3d at 448 (quoting Franks, 438 U.S. at 164 n.6, 98 S.Ct. 2674). It would therefore have made very little sense for us to sanction the insulation of officer misstatements merely by having another officer draft an affidavit that includes those misstatements.

Moreover, our holding in Hart relied on several cases in which our sister circuits applied Franks to government officials who neither signed nor drafted thé affidavits. See Hart, 127 F.3d at 448 (citing United States v. DeLeon, 979 F.2d 761, 764 (9th Cir. 1992) (Franks applies to actions of investigator who neither signed nor drafted the affidavit); United States v. Wapnick, 60 F.3d 948, 956 (2d Cir. 1995) (deliberate or reckless omission by informant-government agent can serve as grounds for Franks suppression); United States v. Calisto, 838 F.2d 711, 714 (3d Cir. 1988) (same); United States v. Pritchard, 745 F.2d 1112, 1118 (7th Cir. 1984) (.Franks applies to “government agent [who] deliberately or recklessly misrepresents information to a second agent, who then innocently includes the misrepresentations in an affidavit”)). Notably, we also cited Hale v. Fish, in which this court applied the Franks test to an officer “who did not sign or draft, the affidavit but whose presence at [the] time of [the] warrant tended to influence [the] judge issuing [the] warrant.” Hart, 127 F.3d at 448 (citing Hale v. Fish, 899 F.2d 390, 401 (5th Cir. 1990)). In this light, it is clear that, under Hart, the fact that a government official did not sign, or draft the affidavit in support of a warrant does not preclude his or her liability for Franks violations.

Phillips points' to other cases in which, he claims, we have held that officers are not liable for Fourth Amendment violations under Franks if they neither sign nor draft the affidavit in support of a warrant. First and foremost, he relies on Michalik v. Hermann, 422 F.3d 252 (5th Cir. 2005). In Michalik, we reversed a district court’s denial of qualified immunity as to two officers who were involved in procuring a warrant but did not sign or prepare the affidavit in support thereof. Id. at 261. The plaintiffs there brought claims under Mal-ley v. Briggs, which concerns warrant applications that on their face, “fail[ ] to establish probable cause.” 475 U.S. 335, 345, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986); see Michalik, 422 F.3d at 258. Notably,, we expressly stated that those plaintiffs did not have a claim under Franks because they had not alleged any false statement in the warrant application attributable to the defendants. Michalik, 422 F.3d at 258. Accordingly, while noting the Franks/Hart rule that an officer may be liable for making false statements resulting in the issuance of a warrant without probable cause “regardless of whether he signed the application or was present before the judge,” see id. at 258 n.5, we moved on to analyze whether Malley liability also extends to non-affiant officers. See id. at 258-61. In reversing the district court’s denial of qualified immunity, we held that liability under, Malley is limited to “the affiant and person who actually prepared, or was fully responsible for the preparation of, the warrant application,” Michalik, 422 F.3d at 262, explaining that an officer who “actually prepares the warrant application with knowledge that a warrant would be based solely on the document prepared ... is in a position to see the whole picture ... and thus fully to assess probable cause questions.” Id. at 261.

Michalik is plainly inapplicable here; it did not involve Franks claims, and its own distinction between Franks and Malley and its separate analysis for the scope of Malley liability establish that its holding does not encompass Franks claims. See Michalik, 422 F.3d at 258-61 & n.5. Moreover, the reasoning supporting Michalik’s holding as to Malley liability does not apply to Franks claims. A government official who merely provides information that leads police to seek a warrant is not-necessarily in a position to “fully assess probable cause questions” and therefore he or she does not bear liability under Malley. See Michalik, 422 F.3d at 261. In contrast, an officer who deliberately or recklessly provides false or misleading information for -use in an affidavit in support of a warrant is certainly in a position to fully assess his own conduct, which forms the entire basis for the Franks claim.

Conceding that Michalik’s holding .did not encompass Franks claims, Phillips points to Hampton v. Oktibbeha County Sheriff Department, 480 F.3d 358, 365 (5th Cir. 2007) and Jennings v. Patton, 644 F.3d 297, 298-99 (5th Cir. 2011). He contends that these cases have extended Mi-chalik’s, holding to Franks claims. Indeed, those two cases involved Franks-type misrepresentation claims and applied Micha-lik in granting qualified immunity to government officials who neither signed nor drafted warrant applications. See Hampton, 480 F.3d at 365; Jennings, 644 F.3d at 298-99.

While .we agree with Phillips’s construction of.Hampton and Jennings, these cases’ additional limitation of the scope of Franks liability conflicts with Hart’s clear holding that officers may be liable for Fourth Amendment violations if they “provide false information for use in [the] affidavit.” Hart, 127 F.3d at 448. Neither Hampton nor Jennings even mentions Franks or Hart let alone attempts to distinguish Hart or construe its holding narrowly. See Hampton, 480 F.3d at 364-65; Jennings, 644 F.3d at 298-99. Where, as here, our prior decisions conflict, we must follow the earlier opinion. See EEOC v. LHC Grp., Inc., 773 F.3d 688, 695 (5th Cir. 2014). Because Hart predates both Hampton and Jennings, Hart’s holding applies: a- government official who intentionally or recklessly provides false, material information for use in an affidavit in support.of a warrant may be liable under Franks. See Hart, 127 F.3d at 448. Accordingly, we affirm the district court’s ruling that, under these circumstances, Phillips may be liable for Fourth Amendment violations under Franks even though he neither signed nor drafted.the affidavit in support of the warrant for the plaintiffs arrest.

B

In denying Phillips’s motion for summary judgment, the district court found that there was a genuine dispute of fact as to whether Phillips was reckless in identifying the plaintiff as the suspected assailant. On appeal, Phillips argues that the plaintiff provided no evidence that he acted with reckless disregard for the truth.

“To prove reckless disregard for the truth, [a plaintiff] must present evidence that [the defendant] ‘in fact entertained serious doubts as to the truth’ of the [relevant] statement.” Hart, 127 F.3d at 449 (quoting St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968)). Whether a defendant in fact entertained serious doubts as to the truth is necessarily a fact question. Cf. Smith v. Brenoettsy, 158 F.3d 908, 913 (5th Cir. 1998) (whether a prison official actually drew the ■ inference that there was a substantial- risk of serious harm to the plaintiff is “a factual question that a court of appeals lacks jurisdiction to hear on interlocutory appeal”).

As discussed above, in reviewing an interlocutory appeal from the denial of a motion for summary judgment qualified immunity, we lack jurisdiction to review the genuineness of a fact issue. Allen v. Cisneros, 815 F.3d 239, 244 (5th Cir. 2016). Accordingly, we lack jurisdiction to review the district court’s finding of a genuine fact dispute as to Phillips’s recklessness. See id.

C

Finally, Phillips argues that the independent intermediary doctrine precludes his liability in this case. Under the independent intermediary doctrine, “even an officer who acted with malice in procuring the warrant ... will not be liable if the facts supporting the warrant ... are put before an impartial intermediary such as a magistrate or a grand jury, for that intermediary’s ‘independent’ decision ‘breaks the causal chain’ and insulates the initiating party.” Thomas v. Sams, 734 F.2d 185, 191 (5th Cir. 1984) (citing Smith v. Gonzales, 670 F.2d 522, 526 (5th Cir. 1982)). However, this doctrine applies only when all of the facts are presented and the intermediary’s decision is truly independent of the wrongfulness of the defendant’s conduct: “Any misdirection of the magistrate or the grand jury'by omission or commission perpetuates the taint of the original official behavior.” Hand v. Gary, 838 F.2d 1420, 1428 (5th Cir. 1988).

Phillips claims that the Hunt County judge’s decision to issue a warrant for the plaintiffs arrest breaks the chain of causation between Phillips’s actions and the alleged constitutional violation. He also asserts that a negligent act is not sufficient to taint the deliberations of the intermediary. Phillips’s arguments ignore the plaintiffs contention that Phillips misrepresented the facts, intentionally or recklessly, by falsely identifying the plaintiff as the suspected assailant and thus tainted the county judge’s decision. Indeed, the district court found a genuine fact dispute regarding this factual contention. Assuming the plaintiffs factual assertions are true — and we must so assume, see Kinney v. Weaver, 367 F.3d 337, 348 (5th Cir. 2004) (en banc) — the independent intermediary doctrine does not apply to shield Phillips from liability, see Hand, 838 F.2d at 1428.

IV

For the forgoing reasons, we dismiss Phillips’s appeal to the extent he challenges the district court’s finding of genuine disputes of fact. We affirm in all other respects.

JENNIFER WALKER ELROD, Circuit Judge,

dissenting:

The majority opinion holds — contrary to our binding precedent — that a law enforcement officer who did not participate in the preparation or the execution of a warrant can be hable under 42 U.S.C. § 1983 when the wrong person is arrested. I respectfully dissent.

I.

In June 2009, Deputy Kelly Phillips interviewed an assault victim and wrote a report identifying the assailant as “Michael David Melton.” The report also contained what Deputy Phillips believed to be the assailant’s address, driver’s license number, age, and physical characteristics. This was Deputy Phillips’s sole involvement in the chain of events leading to Melton’s May 2012 arrest and detention.. After Deputy Phillips submitted his report, Investigator Jeff Haines began investigating the assault. A year later,- Haines obtained a sworn affidavit from the victim identifying his assailant as “Mike Melton.” The Hunt County Attorney’s Office then brought charges against “Michael Melton.” The assailant’s first and last names are the only identifying information contained in the complaint, and their accuracy is undisputed. Four days, after the complaint was filed, a Hunt County judge issued a capias warrant for the arrest of “Michael Melton.” This warrant contained additional identifying information, including a social security number that did not appear in Deputy Phillips’s report. Two years after the judge issued the warrant, Plaintiff Michael David Melton was arrested and detained. It is undisputed that Deputy Phillips had nothing to do with any of these actions by Haines, the victim, the Hunt County Attorney’s Office, or the Hunt County judge.

II.

The majority opinion relies exclusively on Hart v. O’Brien, 127 F.3d 424 (5th Cir. 1997), abrogated on other grounds by Kalina v. Fletcher, 522 U.S. 118, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997), and specifically disavows two other published opinions to reach its conclusion that Deputy Phillips is not entitled to qualified immunity. In so doing, the majority opinion stretches Hart to the point of breaking it and thereby unnecessarily concludes that it conflicts with other on-point, binding precedent. Hart is simply inapplicable on these facts. We stated in Hart that, notwithstanding the doctrine of qualified immunity, “[a] governmental official violates the Fourth Amendment when he deliberately or recklessly provides false, material information for use in an affidavit in support of a search warrant, regardless of whether he signs the affidavit.” Id. at 448-49. Thus, Hart denies qualified immunity to an officer who provides false information if: (1) the information is provided for use in an affidavit in support. of a warrant; (2) the officer acted deliberately or recklessly with regard to the truth or falsity of the information; and (3) the information is material. This case does not meet any of these requirements and does not fall within the scope of Hart.

To begin, Deputy Phillips’s actions in this case are not subject to liability under Hart because Deputy Phillips’s identification of the assailant as “Michael David Melton” was not information provided “for use in an affidavit in support of a [ ] warrant.” Id. The incorrect information in Hart was provided by a prosecutor as he assisted in drafting the affidavit. Id. at 433. The incorrect information in this case was provided by Deputy Phillips a year before additional investigation by. Haines, a sworn statement by the victim, and a decision to press charges by the Hunt County Attorney’s Office led to the drafting of a complaint that contained only accurate identifying information. In light of the attenuated connection between Deputy Phillips’s identification of the assailant and the application for a warrant, Deputy Phillips’s statement was not a statement provided for use in an affidavit in support of a warrant and therefore is not within the scope of Hart.

Moreover, the record in this case contains no .actual evidence that Deputy Phillips acted recklessly in identifying the assailant as' “Michael David Melton.” Recklessness in -this context requires proof that the defendant ‘in fact entertained serious doubts as to the truth’ of the statement”. Id. at 449 (quoting St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968)). The district court’s finding of a dispute regarding recklessness relied on an affidavit by a peace officer who, without personal knowledge of the matter, speculated that Deputy Phillips used the middle name “David” in his report because he found it in a local police database using the first and last names of the assailant without any other identifiers. The affidavit does not raise a fact issue as to whether Deputy Phillips himself entertained serious doubts as to the truth of his report. Thus, the affidavit is not evidence of recklessness as defined in this context. Moreover, Melton’s counsel in a 28(j) letter acknowledged that Melton did not have a criminal record in the local police database discussed, in the affidavit, undermining any evidentiary value the affidavit may have had on this point.

Even assuming arguendo that the affidavit is some evidence that Deputy Phillips acted recklessly by including the middle name “David” in his report, reliance on Hart is misplaced because the incorrect information that Deputy Phillips provided was not' material ’ to a determination of probable cause. In Hart, officers saw vehicles registered to Peggy Hart on a property being used to' grow marijuana; incorrectly assumed that this was the same Peggy Hart who was the wife of a known marijuana cultivator, and obtained a warrant for her arrdst using an affidavit that identified her as such. Id. at 432-33. Whether the Peggy Hart who is to be arrested for cultivating marijuana has been correctly identified as the wife of a known marijuana cultivator is material to an evaluation of probable cause. But whether the Michael Melton who is to be arrested for assault has been correctly identified as having the middle name of David is not material. If Deputy Phillips had omitted the name “David” from his report, the judge would have been no less likely to have issued the arrest warrant. Thus, this case fails to meet the requirements of Hart.

III.

Importantly, the majority opinion specifically disclaims published Fifth Circuit case law in reaching its contrary conclusion. In Michalik v. Hermann, 422 F.3d 252 (5th Cir. 2005), we expressly refused to abrogate the qualified immunity of law enforcement officers whose misstatements led to arrest and detention except in the case of officers who either signed or drafted a warrant application. Id. at 254-55 (“We hold that [appellants] are entitled to qualified immunity for claims based on the procurement of the warrant because neither prepared, presented, nor signed the application for the search warrant.”). We used this rule as a limit on Franks liability in Hampton v. Oktibbeha County Sheriff Department, 480 F.3d 358, 365 (5th Cir. 2007) (reversing district court’s denial of qualified immunity for three officers who may have conspired to submit incorrect information in a warrant application because they did not sign or draft the application) and Jennings v. Patton, 644 F.3d 297, 301 (5th Cir. 2011) (reversing district court’s denial of qualified immunity for a judge assumed on summary judgment to have caused a man to be arrested for bribery by misrepresenting settlement discussions to a district attorney’s office). Because Melton’s claim is based on Franks liability, Hampton and Jennings control. As the majority opinion itself recognizes, these cases, if controlling, preclude the result reached by the majority opinion because it is undisputed that Deputy Phillips did not sign or draft the warrant application in thife case.

The majority opinion invokes the rule of orderliness to avoid the conclusion that Hampton and Jennings control. It argues that Hart conflicts with and predates Hampton and Jennings. However, these cases do not conflict. As discussed above, Hart held that a governmental official could be liable under Franks when he helped to draft an affidavit in support of a warrant and provided incorrect information for use in that affidavit. Hampton and Jennings held that-a governmental official could not be hable under Franks when he neither signed nor drafted an affidavit in support of a warrant. Thus, ah three cases agree that, as Hart puts it, an officer cannot be liable under Franks without providing incorrect information “for use in an affidavit in support of a [ ] warrant.” 127 F.3d at 448-49. The rule of orderliness is not offended by either Hampton or Jennings.

iy.

Because our published, existing case law provides that a law enforcement officer is entitled to qualified immunity where he did not prepare or assist in the preparation of an erroneous arrest warrant, I respectfully dissent.

      . According to the plaintiff, the assailant's full name is Michael Glenn Melton.

      . Besides his full name, Phillips’s report identified the plaintiff by his address, driver’s license number, age, height, and other characteristics.

      . In Hampton, a plaintiff sued four officers for Fourth Amendment violations under § 1983, claiming that the officers conspired to submit false information to obtain a warrant for his arrest. 480 F.3d at 362. The Hampton court denied qualified immunity to the single officer who actually prepared the affidavit in support of a warrant and presented it to the judge. Id. at 364. However, citing Michalik, the court granted qualified immunity to the other officers because they neither signed the affidavit nor prepared the warrant application. Hampton, 480 F.3d at 365 (citing Michalik, 422 F.3d at 261).
      In Jennings, a county judge contacted the district attorney's office to report what he considered was a bribery attempt by the plaintiff. 644 F.3d at 298-99. Criminal charges were subsequently brought against the plaintiff but were ultimately dismissed. Id. at 299. The plaintiff sued the judge under § 1983, claiming that the judge violated his Fourth Amendment rights by intentionally misrepresenting his conduct, thus amounting to the initiation of criminal charges without probable cause. Id. Similar to Hampton, the Jennings court applied Michalik to conclude that the judge was entitled to qualified immunity because he neither signed the affidavit in support of an arrest warrant nor testified before the grand jury. Jennings, 644 F,3d at 301.

      . Nor does the record provide any support for a finding that Deputy Phillips deliberately misidentified the assailant.

      . Deputy Phillips has provided an affidavit stating that the identification of Melton in his report was "based solely on what I was told by [the victim],'” Apart from the affidavit that is discredited by Melton’s 28(j) letter, Deputy Phillips’s affidavit is uncontroverted,

      . Moreover, Hale v. Fish, 899 F.2d 390 (5th Cir. 1990) is inapposite, That decision held that an. .officer who was present at the warrant hearing and lent credibility to the affidavit due to the officer’s "prior working relationship” with the presiding judge could be held liable as a "conspirator.” Id. at 401.

        . Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).


source: Caselaw Access Project

author: JERRY E. SMITH, Circuit Judge:

license: Public Domain

text:
    Aaron BROTHERS, as Independent Executor of the Estate of William Slade Sullivan; Rosemary Claus Sullivan, Plaintiffs-Appellees, v. Officer Nathan J. ZOSS; Officer Kristen A. Mayo; Officer Aaron P. Ballew, Defendants-Appellants.
    No. 15-51204
    United States Court of Appeals, Fifth Circuit.
    FILED September 14, 2016

      Broadus A. Spivey, Law Offices of Broa-dus A. Spivey, Kurt Howard Kuhn, Kuhn Hobbs, P.L.L.C., Joseph Andrew Turner, Law Office of Joseph A. Turner, Austin, TX, for Plaintiffs-Appellees.
    Mike Thompson, Jr., Esq., Archie Carl Pierce, Esq., Wright & Greenhill, Austin, TX, for Defendants-Appellants.
    Before KING, SMITH, and COSTA, Circuit Judges.

       Carolyn Dineen King, Circuit Judge, concurs in the judgment only.

   JERRY E. SMITH, Circuit Judge:

Officers Nathan Zoss, Kristen Mayo, and Aaron Ballew forcibly removed William Sullivan from his pickup truck after he refused to comply with their lawful commands to exit the vehicle. In the process, Sullivan, who was heavily intoxicated, morbidly obese, and handicapped, suffered a serious injury that rendered him a quadriplegic. A few months later, he died.

In the ensuing civil lawsuit, the officers moved for summary judgment based on qualified immunity, which the district court denied, finding that there were genuine disputes of material facts. In so doing, the court erred because, even on plaintiffs’ version of the tragic facts, the officers did not violate Sullivan’s constitutional rights.

I.

At about 11:30 p.m., Sullivan drove to Rick’s Cabaret (“Rick’s”), a club, where he drank heavily and by the end of the night had run up a bill of over $400. When he left at about 3:30 a.m., Rick’s employees offered to pay for a cab to take him to a nearby hotel. But Sullivan refused, instead asking the employees to drive him and his truck home, as Rick’s floor manager had promised at the start of the evening; the manager reneged on his promise. Sullivan therefore demanded his truck keys, which he had entrusted to a Rick’s employee earlier in the evening, so that he could charge his cell phone and call a friend to take him home.

Shortly afterward, a Rick’s security guard called 911 and requested police assistance to prevent Sullivan from driving under the influence. When Zoss, the first responder, arrived on the scene, Sullivan was in his pickup with the engine running. Zoss approached Sullivan, engaged him in polite conversation, and requested that he exit the truck. Sullivan, however, refused to do so, “because,” he told Zoss, “you’re going to arrest me.” Zoss then warned Sullivan that he. would be arrested if he did not step out of the vehicle. Sullivan slowly opened the door but immediately closed it when Zoss reached for the handle.

Because of Sullivan’s noncompliance, Zoss and fellow officers Mayo and Ballew decided to resort to force. Mayo moved Zoss’s police cruiser in front of Sullivan’s pickup to try to prevent him from driving off, while Ballew drew his gun and pointed it at Sullivan. When Sullivan dropped his hands from view, Zoss also drew his weapon and ordered Sullivan to put his hands on his face. Sullivan eventually moved his hands back into view but, despite Zoss’s repeated orders, did not put his hands on his face.

At Zoss’s command, Mayo opened the driver’s door and told Sullivan to get out. Sullivan told her to “hold on” as he took a phone call. Mayo grabbed onto his left arm and attempted to pull him from the truck, but, because of his great weight, she was unable to move him. Zoss came over to help. He reached over Sullivan’s body to grab his right arm, and then Zoss and Mayo pulled Sullivan out of the vehicle, which was a large, elevated pickup. In the process, Sullivan fell and slammed hard into the pavement. He did not use his feet to brace his fall; nor could he use his hands, because Zoss and Mayo were holding onto them.

Immediately after Sullivan hit the ground, he yelled, “Ow, oh my back.” The officers handcuffed him. When they attempted to sit him up, he informed them that he had broken vertebrae. The officers therefore stopped moving him and called for medical assistance. ,

Aaron Brothers, to whom Sullivan had conveyed power of attorney, sued the City of Round Rock, Zoss, Mayo, and Ballew under 42 U.S.C. § 1983, alleging excessive force in violation of the Fourth and Fourteenth Amendments. The officers moved for summary judgment based on qualified immunity. The district court denied the motion, but disclaimed to rule directly on the defense, stating that it wanted to wait until “the record is fully developed through trial” to rule on qualified immunity.

II.

We review de novo the denial of summary judgment based on qualified immunity. Kovacic v. Villarreal, 628 F.3d 209, 211 (5th Cir. 2010). In denying such a motion, the trial court makes two determinations. First, it “decides that a certain course of conduct would, as a matter of law, be objectively unreasonable in light of clearly established law. Second, the court decides that a genuine issue of fact exists regarding whether the defendant(s) did, in fact, engage in such conduct.” Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir. 2004) (en banc). On interlocutory appeal, this court génerally has jurisdiction to “review the materiálíty of any factual disputes, but not their genuineness.” Hogan v. Cunningham, 722 F.3d 725, 730-31 (5th Cir. 2013).

The Supreme Court has created a narrow exception to this jurisdictional limitation where the record blatantly contradicts one party’s version of events. Curran v. Aleshire, 800 F.3d 656, 663-64 (5th Cir. 2015). In Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), the Court rejected the plaintiffs version because it was clearly contradicted by video evidence. Harris authorizes “assigning] greater weight ... to the facts evident from video recordings taken at the scene.” “When one party’s description of the facts is discredited by the record, we need not take his word for it but should view ‘the facts in the light depicted by the videotape.’”

The district court ruled that there were genuine disputes as to material facts. The officers urge us to review the genuineness in light of the video evidence and Harris’s exception to the jurisdictional limitation. We agree with the plaintiffs, however, that the video evidence does not unequivocally disprove their version of events, which we therefore accept for purposes of this appeal.

III.

Qualified immunity provides government' officials with immunity from suit — not merely a defense to liability for civil damages — “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” It thus involves two inquiries: “A public official is entitled to qualified immunity unless the plaintiff demonstrates that (1) the defendant violated the plaintiffs constitutional rights and (2) the defendant’s actions were objectively unreasonable in light of clearly established law at the time of the violation.” These inquiries can be made in any order. Callahan, 555 U.S. at 227, 129 5.Ct. 808. Both are matters of law for the court.

At the first step of the qualified-immunity inquiry, the record shows that, even accepting (as we do) the plaintiffs’ version of the facts, the officers did not violate Sullivan’s constitutional rights. Although plaintiffs allege excessive force under the Fourth and the Fourteenth Amendments, we are instructed to analyze “all claims that law enforcement, officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen ... under the Fourth Amendment and its ‘reasonableness’ standard.... ” Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). We thus consider only whether the officers violated Sullivan’s Fourth Amendment right to be “ ‘secure in [his] person[ ] ... against unreasonable ... seizures’ of the person.” Id. at 394, 109 S.Ct. 1865.

To succeed on an excessive-force claim under the Fourth Amendment, plaintiffs must demonstrate “(1) an injury that (2) resulted directly and only from the use of force that was excessive to the need, and that (3) the force used was objectively unreasonable.” In this procedural posture, though plaintiffs have no trouble satisfying the first two prongs, they are unable to meet the third because, even on the facts alleged and drawing all reasonable inferences in their favor, the officers’ conduct was objectively reasonable.

In excessive-force claims under the Fourth Amendment, the reasonableness of an official’s conduct depends on “the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396, 109 S.Ct. 1865. The court must adopt “the perspective of a reasonable officer on the scene, rather than [judge] with the 20/20 vision of hindsight.” Id. “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.” Id. at 396-97, 109 S.Ct. 1865. “As in other Fourth Amendment contexts, however, the ‘reasonableness’ inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Id. at 397, 109 S.Ct. 1865.

The Graham, factors support the decision to resort to force. Sullivan’s crimes were serious: driving while intoxicated and interfering with the duties of a public servant. A reasonable officer, moreover, could have perceived him as an immediate threat. As long as Sullivan remained in his pickup, he posed a potential danger to the officers and others. A motor vehicle can be used as a dangerous weapon, even when blocked in by a police cruiser. See, e.g., Rickard, 134 S.Ct. at 2021-22 (car chase despite police blockade). And a reasonable officer could have feared that Sullivan might have a weapon on his person or in the pickup. See Reese v. Anderson, 926 F.2d 494, 500-01 (5th Cir. 1991). Finally, he resisted arrest, refusing to comply with the instructions to get out of his vehicle and closing his door in Zoss’s face.

Because Sullivan.was not in the midst of harming other individuals and because his resistance was mostly passive, the officers were entitled to use > only a proportional amount- of - force. We agree with the officers, though, that the force they employed was moderate. Although Ballew and Zoss drew their guns during the encounter, they never used them or any other weapon on Sullivan but merely used their hands to pull Sullivan from his vehicle. Nor did any of the officers gratuitously strike Sullivan. The only force they employed was pursuant to and required for removing him from the truck.

The officers did not pull Sullivan with excessive force but, instead, slowly escalated the amount of force until it was enough to extract him. They began with a single arm bar. Mayo opened the door and attempted to pull Sullivan out by his left arm, but she was unable to move him on account of his great weight. Zoss thus came to her assistance and grabbed Sullivan by his right arm. Together, both officers repeatedly attempted to pull Sullivan out of the truck but succeeded only when they leaned back and put all of their weight into pulling.

The unfortunate result — Sullivan’s falling .on his chest and stomach — was not foreseeable. A reasonable officer could not have predicted that Sullivan would not use his feet to brace his fall. Moreover, given the speed at which Sullivan hit the ground, a reasonable officer could not have been expected immediately' to recognize that Sullivan was about to hit the ground, that the officers would be unable to lower his 350 pounds in a controlled manner, or that they should let go of his arms so that he could use them to catch himself.

We reject plaintiffs’ characterization of the force as “tantamount to deadly force” merely because it resulted in serious injury. Force is not necessarily deadly even where it results in death. The plaintiffs posit, however, that the officers could have acted differently. In particular, they could have spent more time negotiating with Sullivan. In denying qualified immunity, we have placed weight on the quickness with which law enforcement personnel have escalated from negotiation to force. See, e.g., Newman, 703 F.3d at 763; Deville, 567 F.3d at 167-68. The approximately two minutes that Zoss spent negotiating with Sullivan before deciding to resort to force was not objectively unreasonable, especially in light of, inter alia, Sullivan’s explicit and repeated refusal to comply with Zoss’s requests to exit the pickup and the possibility that Sullivan might have had access to a weapon or could have tried to drive his huge, elevated truck into the police car.

The order denying qualified immunity is REVERSED, and this matter is 'REMANDED for entry of dismissal as to the three officers and for further proceedings as needed.

      . Though only 5'10", Sullivan weighed approximately 350 pounds.

      . After Sullivan's death, Brothers, as independent executor of Sullivan’s estate, was substituted as the proper plaintiff. Sullivan’s mother was also added as a plaintiff. The complaint originally named two other police officers, who were dismissed after the plaintiffs ascertained that they had not been involved in Sullivan's injury. Amended complaints added Rick’s and its parent company as defendants.

      . Newman v. Guedry, 703 F.3d 757, 761 (5th Cir. 2012) (quoting Carnaby v. City of Hous., 636 F.3d 183, 187 (5th Cir. 2011)).

      . Id. (quoting Harris, 550 U.S. at 380-81, 127 S.Ct. 1769).

      . In particular, we accept plaintiffs’ allegations that the officers were aware both that Sullivan was morbidly obese and that he was handicapped and was morbidly obese and that he had back problems; his neck and shoulders were hunched over, and he was unable to turn his head without turning his .entire body. Moreover, although Sullivan did not park in a handicapped parking space, a handicapped placard hung from his rearview mirror,

      . Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).

      . Cowart v. Erwin, No. 15-10404, 837 F.3d 444, 454, 2016 WL 4784010, at *7 (5th Cir. Sept. 13, 2016) (footnote omitted).

      . See Plumhoff v. Rickard, — U.S. —, 134 S.Ct. 2012, 2019, 188 L.Ed.2d 1056 (2014) (“[Petitioners] contend that their .conduct did not violate the Fourth Amendment and, in any event, did not violate clearly established law. Thus, they raise legal issues.... ”); Harris, 550 U.S. at 381 n.8, 127 S.Ct. 1769 ("At the summary judgment stage ... once we have determined the relevant set of facts and drawn all inferences in favor of the nonmov-ing party to the extent supportable by the record, the reasonableness of [the officer's] actions — or, in Justice Stevens’ parlance, 'whether [the plaintiff's] actions have risen to a level warranting deadly force’ — is a pure question of law.” (some alterations in original) (internal citations omitted)).

      .The officers assert that plaintiffs have also alleged deprivation of "rights under the Americans with Disabilities Act” ("ADA”). The plaintiffs, however, deny bringing any claim under the ADA, and the complaints do not assert any cause of action under it, whether against the officers or the city. Issues pertaining to the ADA are thus not properly before this court.
      The irrelevance of the ADA notwithstanding, the district court issued a ruling on tire applicability of Title II of the ADA.- The officers lack standing to appeal that ruling because Title II does not apply to individuals. The city will be able to appeal that ruling if it suffers an adverse final judgment.

      . Hogan, 722 F.3d at 734 (quoting Flores v. City of Palacios, 381 F.3d 391, 396 (5th Cir. 2004)). An equivalent formulation found in other cases is "(1) injury, (2) which resulted directly and only from a use of force that was clearly excessive, and (3) the excessiveness of which was clearly unreasonable.” Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) (per curiam) (quoting Tarver v. City of Edna, 410 F.3d 745, 751 (5th Cir. 2005)).

      . Accord Ramirez v. Knoulton, 542 F.3d 124, 129-30 (5th Cir. 2008) (" 'A creative judge engaged in post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished.’ United States v. Sharpe, 470 U.S. 675, 686-87, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985). ‘The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it.’ Id. at 687, 105 S.Ct. 1568.”).

        . See Smith v. Ball State Univ., 295 F.3d 763, 769 (5th Cir. 2002) ("Smith posed a threat to himself, the officers and the general public, even after Officer Foster turned off Smith’s vehicle and attempted unsuccessfully to communicate with him. Indeed, contrary to Smith’s assertions, his unresponsiveness did not neutralize the safety threat, but rather exacerbated it by adding an element of unpredictability.”).

      . See Deville, 567 F.3d at 167 ("Officers may consider a suspect’s refusal to comply with instructions during a traffic stop in assessing whether physical force is needed to effectuate the suspect's compliance.”).

      . In the district court, plaintiffs maintained only that the officers employed excessive force in pulling Sullivan from his vehicle. They did not allege excessive force in handcuffing him, so that .argument has been waived. See Jethroe v. Omnova Solutions, Inc., 412 F.3d 598, 601 (5th Cir. 2005).

      . Cf. Mullenix v. Luna, — U.S. —, 136 S.Ct. 305, 312-13, 193 L.Ed2d 255 (2015) (Scalia, J., concurring) (‘‘It does not assist analysis to refer to all use of force that happens to kill the arrestee as the application of deadly force. The police might, for example, attempt to stop a fleeing felon's car by felling a large tree across the road; if they drop the tree too late, so that it crushes the car and its occupant, I would not call that the application of deadly, force. Though it was force sufficient to kill, it was not applied with the object of harming the body of the felon,”).


author: JAMES L. DENNIS, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee v. Jeremiah GRIEGO, also known as Jeremiah Greigo, Defendant-Appellant
    No. 15-51197
    Summary Calendar
    United States Court of Appeals, Fifth Circuit.
    September 15, 2016

      Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney’s Office, Margaret Mary Embry, Assistant U.S. Attorney, U.S. Attorney’s Office, San Antonio, TX, for Plaintiff-Appellee.
    Denton Bryan Lessman, Waco, TX, for Defendant-Appellant.
    Before KING, DENNIS, and COSTA, Circuit Judges..
   JAMES L. DENNIS, Circuit Judge:

Jeremiah Griego and two others were indicted on one count of aiding and abetting eách other in making false statements. Griego pleaded guilty, to the charge and was sentenced to ten months in prison and a three year term of supervised ’ release. On appeal, Griego argues that his sentence is procedurally flawed and substantively unreasonable because the district court misapplied the sentencing guidelines. Because we find that the district court committed a significant procedural error in the application of the guidelines’ cross-reference provision, we VACATE and REMAND for resentencing.

I.

By grand jury indictment, Griego was charged with aiding and abetting the making of a false statement to the United States Marshal’s Service, in violation of 18 U.S.C. §§ 1001(a)(2) and (2). Griego entered a plea of guilty without a plea agreement. The presentence report (PSR) prepared by the probation office assigned a base offense level of fourteen pursuant to U.S.S.G. § 2J1.2, Obstruction- of Justice. Griego objected to the application of § 2J1.2, arguing that the facts alleged in his indictment .did not satisfy the requirements of any of the statutory offenses covered by the obstruction of justice guideline. He argued that § 2Bl.l(a)(2), which sets forth a base offense level of six, was the guideline that appropriately covered his criminal conduct. The probation officer responded to the objection, agreed that the guideline to be used in calculating the . sentencing, range should be § 2B1.1, and filed an addendum to the PSR and revised the PSR. While the probation officer agreed that § 2J1.2 did not apply on its own terms, the revised PSR still calculated the base offense level as fourteen, pursuant to the cross-reference provision in § 2Bl.l(c)(3). That provision provides that if “the defendant was convicted under a statute proscribing false, fictitious, or fraudulent statements or representations generally (e.g., 18 U.S.C. § 1001 ...)” and “the conduct set forth in the count of conviction establishes an offense specifically covered by another guideline,” that other guideline should apply. U.S.S.G. § 2Bl.l(c)(3).

At sentencing Griego again objected to the PSR, arguing that the facts alleged in the indictment did not warrant the application of § 2J1.2. The district court overruled the objection and adopted the statements in the PSR and the response to Griego’s objection. The PSR calculated Griego’s guidelines range as ten to sixteen months, with a statutory maximum of five years. Had § 2Bl.l(a)(2) applied, Griego’s guidelines'range could have been zero to six months. The district court sentenced Griego to ten months in prison and a three year term of supervised release. Griego objected to a condition of supervised release, but did not object to the sentence as substantively unreasonable. Griego timely filed a notice of appeal.

II.

Pursuant to Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), we engage in a bifurcated review of the sentence imposed by the district court. United States v. Delgado-Martinez, 564 F.3d 750, 752 (5th Cir. 2009). First, we consider whether the district court committed a “significant procedural error,” such as miscalculating the advisory guidelines range. Id. If there is no error or the error is harmless, we may proceed to the second step and review the substantive reasonableness of the sentence for an abuse of discretion. Id. at 751-53. We review the district court’s factual findings for clear error and its interpretation and application of the guidelines, including any cross-reference provisions, de novo. United States v. Arturo Garcia, 590 F.3d 308, 312 (5th Cir. 2009).

III.

Griego argues that the district court reversibly erred by overruling his objection to the application of § 2Bl.l(c)(3), which provides a cross reference to § 2J1.2. He asserts that the Government did not specify and the district court did not find that the facts alleged in the indictment supported any offense other than a violation of 18 U.S.C. § 1001(a)(2), and argues that the facts alleged in the indictment could not support any other offense. We agree.

In Garcia, we held that a district court may apply a cross-reference provision pursuant to § 2Bl.l(c)(3) only if the'facts alleged in the indictment establish the elements of another offense for which the other guideline is applicable.' 590 F.3d at 315-16. In Garcia, the district court had not identified a specific statutory offense to which the cross-reference provision applied. We addressed the four criminal statutes that could have supported the application of the guidelines and ultimately affirmed the district court, concluding that one of the statutes “expressly cover[ed]” the conduct alleged in the count of conviction. Id. at 316.

The Government argues that the facts alleged in Griego’s indictment would support a conviction under 18 U.S.C. § 1505, which is covered by § 2J1.2 and prohibits, inter alia, “corruptly ... obstructing], or impeding] or endeavoring] to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States.” Specifically, the Government asserts that the indictment shows that Grie-go:

knew there was a pending proceeding ... ; being conducted by officers from the U.S. Marshal’s Service (who interviewed [Griego] more than once); and [Griego] willfully and knowingly made a false statement which impeded the investigation.

Yet while the Government acknowledges that the relevant portion of 18 U.S.C. § 1505 requires proof that the defendant acted “corruptly,” it wholly fails to explain how the facts alleged in Griego’s indictment satisfy this requirement.

We have explained that “corruptly” in the context of § 1505 means “knowingly and dishonestly, with the specific intent to subvert or undermine the due administration of justice.” United States v. Kay, 513 F.3d 432, 454 (5th Cir. 2007). By contrast, under 18 U.S.C. § 1001, “[t]he requirement that the false representation be made ‘knowingly and willfully’ is satisfied if the defendant acts deliberately and with the knowledge that the representation is false.” United States v. Guzman, 781 F.2d 428, 431 (5th Cir. 1986). The generalized mens rea required to violate §. 1001 is not sufficient to prove the more specific mens rea required to violate § 1505. See United States v. Kim, 95 Fed.Appx. 857, 862 (9th Cir. 2004). Griego’s indictment for violation of § 1001 alleged that Griego “did knowingly and willfully make a false, fraudulent and fictitious material statement and representation”; it did not allege that he specifically intended to subvert or undermine the due administration of justice. Because the facts alleged in the indictment do not support the application of U.S.S.G. § 2J1.2, the district court erred in applying the cross-reference provision under U.S.S.G. § 2.Bl.l(c)(3). See Garcia, 590 F.3d at 315-16.

Accordingly, we VACATE the sentence and REMAND for resentencing.