IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-60529

MANUEL LOPEZ VENTURA, 

Also Known as Manuel A. Lopez-Ventura,

Petitioner,

versus

JEFFERSON B. SESSIONS, III,

U.S. Attorney General,

Respondent.

Appeal from an Order of

the Board of Immigration Appeals

Before SMITH, CLEMENT, and COSTA, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Manuel Lopez Ventura, a native and citizen of the Dominican Republic 

and a lawful permanent resident (“LPR”) of the United States, pleaded guilty 

of possessing AB-CHMINACA in violation of Louisiana Revised Statutes

§ 40.966(C). After his arrest, but before his conviction, AB-CHMINACA was 

added to the federal schedules of controlled substances. After his conviction, 

Lopez Ventura traveled to the Dominican Republic. Upon his return, he 

applied for admission as an LPR. But the Department of Homeland Security 

charged him with being inadmissible under the Immigration and Nationality 

United States Court of Appeals

Fifth Circuit

FILED

October 19, 2018

Lyle W. Cayce

Clerk

 Case: 17-60529 Document: 00514689202 Page: 1 Date Filed: 10/19/2018
No. 17-60529

2

Act (“INA”) because of the Louisiana conviction. See 8 U.S.C. § 1182(a)(2)-

(A)(i)(II). Lopez Ventura denied the charge, relying on the fact that

AB-CHMINACA was not a controlled substance at the time of his arrest. The

Board of Immigration Appeals (“BIA”) ultimately found him inadmissible, reasoning that AB-CHMINACA was a controlled substance on the date of his conviction. Because the application of § 1182(a)(2)(A)(i)(II) to Lopez Ventura is 

impermissibly retroactive, we grant the petition for review, reverse the order 

of the BIA, and remand for the BIA to determine whether Lopez Ventura was 

convicted of possessing marihuana or, instead, AB-CHMINACA.

I.

In 2014, Lopez Ventura was arrested for possessing cigarillo cigars and 

AB-CHMINACA, a synthetic cannabinoid. In February 2015, he was charged 

with possession of a controlled substance and drug paraphernalia in violation 

of Louisiana Revised Statutes §§ 40:966(C) and 40:1023, respectively. On 

April 16, 2015, he pleaded guilty of possessing marihuana and drug paraphernalia. At the time of the arrest, AB-CHMINACA was not a federally controlled 

substance. See 21 C.F.R. § 1308.11 (effective Mar. 7, 2014, to Jan. 29, 2015). 

Yet by the time he was charged and pleaded guilty, the Drug Enforcement 

Administration had added AB-CHMINACA to the controlled substance schedules as authorized by 21 U.S.C. § 811(h).1 

An alien convicted of violating any state law relating to a federally

controlled substance is inadmissible as an LPR. See 8 U.S.C. § 1182(a)(2)-

(A)(i)(II). Lopez Ventura claimed he was admissible because his Louisiana 

convictions concerned AB-CHMINACA, which was not a controlled substance 

 

1 See 80 Fed. Reg. 5042–01 (Jan. 30, 2015) (adding AB-CHMINACA to the schedule of 

controlled substances); 21 C.F.R. § 1308.11(h)(29) (effective Jan. 30, 2015, to Mar. 19, 2015); 

§ 1308.11(h)(21) (effective Mar. 20, 2015, to July 16, 2015).

 Case: 17-60529 Document: 00514689202 Page: 2 Date Filed: 10/19/2018
No. 17-60529

3

on the date of his offense.

The Immigration Judge (“IJ”) denied the motion, reasoning that 

AB-CHMINACA was a controlled substance on the date of Lopez Ventura’s 

conviction. Lopez Ventura moved to reconsider and requested relief from 

removal under the INA.2 The IJ denied that motion, finding that Lopez Ventura had actually been convicted of possessing marihuana—not 

AB-CHMINACA—so the drug he possessed had always been a controlled substance. The IJ then concluded, in a somewhat self-contradictory fashion, that 

Lopez Ventura was not eligible for § 1182(h) relief because he had been convicted of possessing AB-CHMINACA, not marihuana. 

Lopez Ventura appealed to the BIA with the same arguments. But for

the first time, he explicitly invoked the presumption against retroactivity, 

citing Vartelas v. Holder, 566 U.S. 257 (2012). The BIA affirmed. It concluded 

that the relevant date for purposes of § 1182(a)(2)(A)(i)(II) was the date of 

conviction and that AB-CHMINACA had been a controlled substance when 

Lopez Ventura was convicted. It further held that Lopez Ventura had waived 

his claim that § 1182(a)(2)(A)(i)(II) was being applied in a retroactive manner. 

Yet the BIA never resolved whether Lopez Ventura had been convicted of 

possessing marihuana instead of AB-CHMINACA. 

Lopez Ventura petitions for review, asserting that the application of 

§ 1182(a)(2)(A)(i)(II) to his case is retroactive because it attaches new legal 

consequences to his possession of AB-CHMINACA. And, as Lopez Ventura

posits, there is nothing in the statute to overcome the presumption against 

retroactivity. The government replies that Lopez Ventura has waived a critical 

 

2 See 8 U.S.C. § 1182(h) (providing that the Attorney General may waive inadmissibility for certain offenses involving simple possession of thirty grams of marihuana). Accord

Martinez v. Mukasey, 519 F.3d 532, 541–42 (5th Cir. 2008). 

 Case: 17-60529 Document: 00514689202 Page: 3 Date Filed: 10/19/2018
No. 17-60529

4

part of his argument on appeal. Moreover, it insists that because the statutory 

text, the categorical approach, and policies undergirding the INA focus on 

convictions, the court must consider whether the substance was controlled on 

the date of conviction, not commission. Finally, the government avers that 

§ 1182(a)(2)(A)(i)(II) is explicitly retroactive in any event.

II.

We review the BIA’s rulings of law de novo and findings of fact for “substantial evidence.” Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001). 

We consider the IJ’s decision only “to the extent that it influenced the BIA.” 

Shaikh v. Holder, 588 F.3d 861, 863 (5th Cir. 2009). The BIA’s order was 

entered by a single member of the BIA and was not precedential.3 Because the 

order therefore lacks the force of law, it is entitled only to Skidmore deference.4 

“Even so, it will be examined closely for its power to persuade.” Dhuka,

716 F.3d at 156. 

The BIA ruled that Lopez Ventura had waived his claim that applying 

§ 1182(a)(2)(A)(i)(II) to his Louisiana conviction would be impermissibly retroactive. We disagree. The presumption against retroactivity is merely a tool of 

statutory interpretation, not a separate claim for relief. See Falek v. Gonzales, 

475 F.3d 285, 290 (5th Cir. 2007). From the start, Lopez Ventura has 

consistently maintained that § 1182(a)(2)(A)(i)(II), properly construed, does 

not apply where the crime involves a substance not controlled on the date of 

commission. Although he did not expressly invoke the presumption against 

 

3 See 8 C.F.R. § 1003.1(e)(6)(ii) (providing that cases may be assigned to three-member 

panels if the cases present a need to establish precedent); see also Dhuka v. Holder, 716 F.3d 

149, 155 (5th Cir. 2013) (“The regulation does not recognize single-member decisions as having precedential effect . . . .”). 

4 See Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); Dhuka v. Holder, 716 F.3d 

149, 155 (5th Cir. 2013).

 Case: 17-60529 Document: 00514689202 Page: 4 Date Filed: 10/19/2018
No. 17-60529

5

retroactivity until his appeal to the BIA, Lopez Ventura has always advocated 

an interpretation of the INA that dovetails with that presumption.5 Indeed, to 

say that § 1182(a)(2)(A)(i)(II) should not apply where the substance became 

controlled after the criminal act is to claim that such application is improperly

retroactive.6 

Even if Lopez Ventura did not clearly present his retroactivity claim

before the IJ, the argument is still preserved via a petition for review. It is 

settled practice that to be considered on review, an issue must generally have 

been “pressed or passed upon” in the tribunal a quo.7 Though the BIA found

that Lopez Ventura had waived his retroactivity claim, it held that the relevant 

inquiry under § 1182(a)(2)(A)(i)(II) is whether a substance was controlled on 

the date of conviction. In doing so, the BIA plainly rejected Lopez Ventura’s 

reading of the statute and implicitly determined that applying § 1182(a)(2)-

(A)(i)(II) to him was not impermissibly retroactive. Because the BIA therefore 

passed upon Lopez Ventura’s claim, we may consider his argument on petition 

for review.

III.

The presumption against retroactive legislation arises in a “case that 

implicates a federal statute enacted after the events in suit.” Landgraf v. USI 

 

5 Citing Falek, 475 F.3d at 289−90, the government maintains that retroactivity is an 

issue that must be exhausted. But unlike Lopez Ventura, the petitioner in Falek wholly

failed to challenge the applicability of the statute before the BIA. Id. at 288. 

6 For similar reasons, the government is wrong to insist that Lopez Ventura has 

waived much of his argument in this petition. According to the government, Lopez Ventura

solely challenges whether the BIA’s decision was impermissibly retroactive—not whether the 

BIA erred in focusing on the date of conviction. But those arguments are two sides of the 

same coin. To assert that the BIA’s ruling was wrongly retroactive is to contend that the 

date of conviction should not have controlled.

7 McGoldrick v. Compagnie Generale Transatlantique, 309 U.S. 430, 434 (1940);

accord 19 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE ¶ 205.05 (3d ed. 2018). 

 Case: 17-60529 Document: 00514689202 Page: 5 Date Filed: 10/19/2018
No. 17-60529

6

Film Prods., 511 U.S. 244, 280 (1994). That presumption is “deeply rooted in 

our jurisprudence, and embodies a legal doctrine centuries older than our 

Republic.” Id. at 265. Accordingly, “the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place.”8 

Congress may enact retroactive legislation if it does not offend a specific constitutional prohibition. Id. at 267–68. But the Court requires that Congress 

legislate with a clear statement of retroactivity. Id. 

To determine whether a statute is impermissibly retroactive, we must 

ask first “whether Congress has expressly prescribed the statute’s proper 

reach” and second “whether the new statute would have retroactive effect.” Id. 

at 280. That framework also applies when determining the retroactive effect 

of a regulation.9

A.

The standard for finding a clear directive of retroactivity “is a demanding 

one.” I.N.S. v. St. Cyr, 533 U.S. 289, 316 (2001). The statute must contain 

wholly unambiguous language that it applies retroactively.10 For instance, a 

definition of “aggravated felony” that “applies expressly to ‘convictions entered 

before, on, or after’ the statute’s enactment date” is sufficient to overcome the 

presumption.11 But a statute’s effective date or comprehensive nature may not 

rebut the presumption. Id. at 316–18. 

 

8 Landgraf, 511 U.S. at 265. (quoting Kaiser Aluminum & Chem. Corp. v. Bonjorno, 

494 U.S. 817, 855 (1990) (Scalia, J., concurring)). 

9 See Perez Pimentel v. Mukasey, 530 F.3d 321, 326 (5th Cir. 2008); Kankamalage v. 

I.N.S., 335 F.3d 858, 862–63 (9th Cir. 2003). 

10 St. Cyr, 533 U.S. at 316 (quoting Lindh v. Murphy, 521 U.S. 320, 328 n.4 (1997)) 

(holding that the statutory language must be “so clear that it [can] sustain only one interpretation” favoring retroactivity).

11 Vartelas, 566 U.S. at 267 (cleaned up) (quoting 8 U.S.C. § 1101(a)(43)).

 Case: 17-60529 Document: 00514689202 Page: 6 Date Filed: 10/19/2018
No. 17-60529

7

The government attempts to sidestep Lopez Ventura’s retroactivity 

claim by insisting that no statute or regulation was ever altered to apply to 

pre-enactment conduct. Not true: The list of controlled substances in the Code 

of Federal Regulations was changed to include AB-CHMINACA only after 

Lopez Ventura allegedly had possessed it. The timing of that change raises at 

least the specter of retroactivity, causing us to consider whether the addition 

of AB-CHMINACA was meant to apply retroactively. 

There is no express statement of retroactivity in either the DEA’s final 

order,12 the regulation,13 or the statutes authorizing the promulgation of the 

controlled-substance schedules.14 Although the final order states it shall be 

“effective January 30, 2015,” the mere presence of an effective date is insufficient to establish retroactivity. See id. at 317. If the statute was meant to 

extend retroactively, Congress could have specified that the addition of a drug 

would apply to convictions regardless of when the substance became controlled. 

Congress has not done so here. 

The government yet contends that the Anti-Drug Abuse Act (“ADAA”) 

contains an explicit statement of retroactivity for § 1182(a)(2)(A)(i)(II). In 

1986, the ADAA amended § 1182’s provisions on aliens convicted of controlledsubstance crimes. In doing so, the ADAA stated that such amendments “shall 

apply to convictions occurring before, on, or after the date of the enactment of 

this section.” Pub. L. 99-570, § 1751(c), 100 Stat. 3207-47 (1986). But that

language is irrelevant. Though it establishes that the 1986 amendments were 

meant to apply retroactively, it says nothing about whether future additions to 

 

12 80 Fed. Reg. 5042 (Jan. 30, 2015).

13 21 C.F.R. § 1308.11(h)(29) (effective Jan. 30, 2015, to Mar. 19, 2015); id. § 1308.11-

(h)(21) (effective Mar. 20, 2015, to July 16, 2015).

14 See generally 21 U.S.C. § 811 (authorizing the classification of controlled substances); 21 U.S.C. § 812 (listing the schedules of controlled substances). 

 Case: 17-60529 Document: 00514689202 Page: 7 Date Filed: 10/19/2018
No. 17-60529

8

the controlled-substance schedules would have retroactive effect. In the 

absence of any unambiguous language to the contrary, we therefore presume 

that the addition of AB-CHMINACA was not meant to operate retroactively. 

Nevertheless, the government posits that the statutory language, categorical approach, and basic policy considerations overcome the presumption 

against retroactivity. As the government observes, § 1182(a)(2)(A)(i)(II) 

speaks in terms of convictions: “[A]ny alien convicted of” violating a state law 

relating to a controlled substance is inadmissible. (Emphasis added.) Because 

the INA “asks what offense the noncitizen was convicted of, not what acts he 

committed,” courts employ the “categorical approach” when construing the 

statute.15 That approach requires courts to look “not to the facts of the particular prior case, but instead to whether the state statute defining the crime of 

conviction . . . necessarily involved facts equating to the generic federal 

offense.” Moncrieffe, 569 U.S. at 190 (cleaned up). In sum, the categorical 

approach reflects Congress’s intent to “predicate[] deportations on convictions, 

not conduct.” Mellouli v. Lynch, 135 S. Ct. 1980, 1986 (2015) (internal quotations omitted). 

According to the government, to hold that the addition of a controlled 

substance does not apply retroactively would blow a hole through the otherwise 

well-structured categorical approach. As the government reasons, if courts 

must ask when the petitioner actually committed the crime, then they will go 

beyond comparing the elements of an offense and will look at the facts of conviction. And if courts ever engage in that inquiry, the government fears that 

aliens would have every incentive to contest the timing of the offense. Worse, 

conviction records may lack information on the date of commission, forcing the 

 

15 Moncrieffe v. Holder, 569 U.S. 184, 191 (2013) (citation omitted); see also Omari v. 

Gonzales, 419 F.3d 303, 307 (5th Cir. 2005). 

 Case: 17-60529 Document: 00514689202 Page: 8 Date Filed: 10/19/2018
No. 17-60529

9

BIA to conduct a mini-trial to identify the date of commission. The categorical 

approach, avers the government, would be reduced to ashes.

Standing alone, the categorical approach does not refute the presumption against retroactivity because it is only an expression of legislative intent. 

It exists merely because Congress has enacted statutes that call for such an 

approach. Though the categorical approach is longstanding,16 it is not absolute, and there are circumstances in which statutory language requires deviating from that approach. See Nijhawan v. Holder, 557 U.S. 29, 36–39 (2009). 

Conversely, the presumption against retroactivity applies absolutely as 

both a normative and descriptive canon of construction.17 Embodying “a legal 

doctrine centuries older than our Republic,” the presumption is grounded in 

numerous constitutional provisions from the Ex Post Facto Clause to the Due 

Process Clause. Landgraf, 511 U.S. at 265–66. It demands that in order to 

have retroactive effect, all congressional expressions—including the categorical approach—contain unambiguous statutory language.18 Hence, though 

Congress intended that the categorical approach apply generally, Congress 

must also clearly express that deportations are predicated on convictions—not 

conduct—even where doing so works a retroactive effect.19 Because this statute and accompanying regulation contain no such statement, the presumption 

 

16 Moncrieffe, 569 U.S. at 191 (noting that the categorical approach “has a long pedigree in our Nation’s immigration law”).

17 Landgraf, 511 U.S. at 286 (“The presumption against statutory retroactivity is 

founded upon sound considerations of general policy and practice, and accords with long held 

and widely shared expectations about the usual operation of legislation.”).

18 See Vartelas, 566 U.S. at 266; St. Cyr, 533 U.S. at 315–16; Lindh, 521 U.S. at 324–

25; Landgraf, 511 U.S. at 270, 273; United States v. Heth, 3 Cranch 399, 413 (1806); see also 

Garrido-Morato v. Gonzales, 485 F.3d 319, 322 (5th Cir. 2007); Ojeda-Terrazas v. Ashcroft, 

290 F.3d 292, 300 (5th Cir. 2002). 

19 Cf. St. Cyr, 533 U.S. at 317 (holding that the comprehensive nature of an immigration law is insufficient to overcome the presumption).

 Case: 17-60529 Document: 00514689202 Page: 9 Date Filed: 10/19/2018
No. 17-60529

10

against retroactivity is not overcome. 

Additionally, the government’s concerns regarding the continued viability of the categorical approach are likely overblown. Although the list of controlled substances must often expand to accommodate criminals’ ingenuity, 

most substances have already been controlled for years.20 And the date of the 

offense will almost always appear in the charging document, which can be considered under the categorical approach. Thus, the number of situations implycating retroactivity are probably few. A finding of “no retroactivity” therefore 

is unlikely to disturb the future operation of the categorical approach.

B.

Where a statute or regulation contains no express command of retroactivity, we must decide whether it would have retroactive effect. See id.

at 280. That “demands a commonsense, functional judgment about whether 

the new provision attaches new legal consequences to events completed before 

its enactment.” St. Cyr, 533 U.S. at 321 (internal quotations omitted). A 

statute operates retroactively when it “would impair rights a party possessed 

when he acted, increase a party’s liability for past conduct, or impose new 

duties with respect to transactions already completed.” Landgraf, 511 U.S. 

at 280. “[F]amiliar considerations of fair notice, reasonable reliance, and 

settled expectations” help guide the analysis. Id. at 270. 

Lopez Ventura contends that because he possessed AB-CHMINACA 

before it was added to the schedules, charging him with inadmissibility under 

the INA attaches a new legal consequence to his possession. The government 

responds that the statute focuses on convictions, not the underlying conduct. 

 

20 See, e.g., 21 C.F.R. § 1308.11(b) (listing all “opiates, including their isomers, esters, 

ethers, salts, and salts of isomers, esters and ethers”). 

 Case: 17-60529 Document: 00514689202 Page: 10 Date Filed: 10/19/2018
No. 17-60529

11

Thus, the government insists that no retroactivity occurs where an addition to 

the federal schedules is applied to someone convicted after that addition. 

Moreover, the government maintains, Lopez Ventura could have sought to 

avoid the consequences of the addition of AB-CHMINACA by negotiating a 

favorable plea agreement or proceeding to trial.

The government’s position is untenable, given that the Court has already 

considered and rejected very similar reasoning in Vartelas. That case involved 

a statutory change that precluded foreign travel by LPRs with certain convictions. Vartelas, 566 U.S. at 260. Although the petitioner had been convicted 

before the statutory amendment, he was denied reentry when he traveled after 

the amendment. Id. at 260–61. Dissenting, Justice Scalia maintained that 

retroactivity should turn on “the activity a statute is intended to regulate.” Id. 

at 277 (Scalia, J., dissenting). Because the statute focused on “reentry into the 

United States,” Justice Scalia found no retroactive application because the 

petitioner attempted to reenter after the statutory change. Id. at 277–78. 

Moreover, Justice Scalia noted that the petitioner could have avoided the consequences of the statutory amendment “by simply remaining in the United 

States or, having left, remaining [abroad].” Id. at 278.

That reasoning, in dissent, is strikingly similar to the government’s here. 

Both Justice Scalia and the government would have us look at “what activity 

the statute regulates,” be it reentry or a conviction. Both would ask whether 

the petitioner somehow could have avoided the consequences of the change in 

law. And both would have us find the absence of retroactivity where the 

relevant conduct occurred after the amendments. 

But the Court disagreed, explaining that any disability that attached to 

the petitioner was a result of “a single crime committed years before” the statutory change. Id. at 267–72. Furthermore, the Court rejected the notion that 

 Case: 17-60529 Document: 00514689202 Page: 11 Date Filed: 10/19/2018
No. 17-60529

12

the petitioner “could have avoided any adverse consequences” of the amendment by “simply stay[ing] at home in the United States.” Id. at 268.

In much the same way, Lopez Ventura was charged with inadmissibility 

because he possessed AB-CHMINACA—a crime committed before the addition 

of the drug to the schedules. Consequently, § 1182(a)(2)(A)(i)(II) operates 

retroactively in that it attaches a new disability (inadmissibility) to conduct 

completed before the regulatory change. It is purely irrelevant that Lopez Ventura might have avoided the adverse consequences of his possession by seeking 

a better plea deal or proceeding to trial.

Admittedly, the Vartelas Court did not squarely address whether retroactivity occurs when a new disability attaches to a defendant’s conduct or 

conviction—as both occurred before the statutory change.21 Nonetheless, 

whenever the Court has articulated the test for retroactivity, it has framed

that test in terms of attaching new disabilities to “transactions or considerations already past,”22 “conduct over and done,”23 or “events completed before 

[the statute’s] enactment.”24 Thus, for purposes of retroactivity analysis, it is 

the timing of the defendant’s conduct, not of his conviction, that controls. 

“[F]amiliar considerations of fair notice, reasonable reliance, and settled 

expectations” serve only to confirm that conclusion. St. Cyr, 533 U.S. at 321

(internal quotations omitted). When Lopez Ventura possessed 

AB-CHMINACA, he had no notice that such a crime carried the consequence 

 

21 See also St. Cyr, 533 U.S. at 326 (involving a defendant who was convicted before 

the statutory change); Carranza-De Salinas v. Holder, 700 F.3d 768, 774 (5th Cir. 2012) 

(same).

22 Landgraf, 511 U.S. at 269 (internal quotation omitted).

23 Vartelas, 566 U.S. at 267.

24 St. Cyr, 533 U.S. at 321 (internal quotations omitted).

 Case: 17-60529 Document: 00514689202 Page: 12 Date Filed: 10/19/2018
No. 17-60529

13

of inadmissibility. Although that disability attached only by virtue of his 

conviction, it was the act of possession that exposed him to conviction in the 

first place. Once he committed the crime, Lopez Ventura put himself on the 

path to conviction and any legal consequences that flowed therefrom. But at 

the time of the crime, he was not on notice that one of those legal consequences 

was inadmissibility. 

Still, one might argue that notice considerations are not directly implicated where, as here, the defendant pleaded guilty, after the statutory change,

with full knowledge of the legal consequences of his plea. Nevertheless, the

Supreme Court has explicitly held that the absence of actual detrimental reliance is not determinative. See Vartelas, 566 U.S. at 273. It would be a “strange 

presumption . . . that arises only on a showing of actual reliance.”25 Accordingly, the test for retroactivity is not whether the petitioner actually relied on 

the prior law but, instead, “whether the new provision attaches new legal consequences to events completed before its enactment.” Id. (internal quotation 

omitted). Because the addition of AB-CHMINACA does so, it operates retroactively. And because § 1182(a)(2)(A)(i)(II) does not overcome the presumption 

against retroactivity, applying it to Lopez Ventura is impermissibly 

retroactive. 

We therefore GRANT the petition for review, REVERSE the BIA’s order, 

and REMAND for the BIA to address what it left unsettled: namely, whether 

Lopez Ventura was convicted of possession of marihuana or, instead, of

AB-CHMINACA.

 

25 Vartelas, 566 U.S. at 273 (cleaned up); see also Carranza-De Salnias, 700 F.3d 

at 772–73 (noting that “actual, subjective reliance” is not required to establish retroactivity).

 Case: 17-60529 Document: 00514689202 Page: 13 Date Filed: 10/19/2018