### 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 r esident ( “ LPR ” ) of the United States , pleaded guilty of possessing AB

- CHMINACA in violation of Lou isiana Revised Statute s § 40.966(C). After his arrest, but before his convic tion, AB

- CHMINACA was added to the federal schedules of controlled sub stances. After his conviction, Lopez Ventura traveled to the Dominican Republic. Upon his return, he applied for admission as an LPR. But t he Department of Homeland Security charged him wi th 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: 10/19/2018No. 17

- 60529

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

- (A)(i)(II)

. Lopez Ventura denied the charge, relying on the fact that AB

- CHM I NACA was not a controlled substance at th e time of his arrest

. The Board of Immigration Appeals (“ BIA”) ultimately found him inadmissible, rea

son ing that AB

- CHMINACA was a controlled substance on the date of his con
vic tion

. Because the application of § 1182(a)(2)(A)(i)(II) to Lopez Ventura is im per missibly retroactive, w e grant the petition for review , reverse the order of the BIA, and remand for the BIA t o de termine whether Lopez Ventura was convicted of possessing mar i h uana or , instead, AB

- CHMINACA.

I. I n 2014, Lopez Ventura was arrested for possessing ciga rillo cigars and AB

- CHMINACA, a synthetic cannabinoid. I n February 2015, he was charged with possession of a controlled substance and drug para phernalia in violation of Louisiana Revised Statute s §§ 40:966(C) and 40:1023 , respect ively. On April 16, 2015, he pleaded guilty of possessing m ari h uana and drug parapher

nalia. 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 ple a d ed guilty, the Drug Enforcement Administration had added AB

- CHMINACA to the controlled sub stance sched

ules as authorized by 21 U.S.C. § 811(h). 1
An alien convicted of violating a ny state law relating to a federal ly 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

con victions 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: 10/19/2018No. 17

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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 Ven

tura had actually been convicted of possessing mari h uana

— not AB

- CHMINACA

— so the drug he possessed had always been a controlled sub

stance. The IJ then concluded, in a somewhat self

- contradictory fashion, that Lopez Ventura was not eligible for § 1182 (h) relief because he had been con
victed of possessing AB

- CHMINACA , not mari h uana. Lopez Ventura appealed to the BIA with the same arguments. But for the first time, he explicitly invoked the pre sump tion against retroa ctivity, citing Vartelas v. Holder , 566 U.S. 257 (2012). The BIA affirmed . It c onclud ed 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 c laim 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 mari h uana instead of AB

- CHM INACA. Lopez Ventura petition s 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 criti cal

2 See 8 U.S.C. § 1182(h) (providing that the Attorney General may waive inadmissi

bil ity for certain offenses involving simple possession of thirty grams of mari h uana). Accord Martinez v. Mukasey , 519 F.3d 532, 541

– 42 (5th Cir. 2008). Case: 17-60529 Document: 00514689202 Page: 3 Date Filed: 10/19/2018No. 17

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4 part of his argument on appeal . Moreover, it insists that because the stat utory text, the categorical approach, and policies undergirding t he INA focus on convictions, the court must consider whether the substance was con trolled o n the date of conviction , not commission . Finally, the government avers that § 1182(a)(2)(A)(i)(II) is explicitly retro active in any event.

II. We review the BIA’s rulings of law de novo and findings of fact for “sub

stantial 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, 86 3 (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 Skid more deference. 4 “Even so, it will be examined closely for its power to per suade.” 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 retro

active. 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 wher e the crime involves a substance not controlled on the date of

com mission. 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

- membe r decisions as hav

ing 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: 10/19/2018No. 17

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5 retro activity until his appeal to the BIA , Lopez Ventura has always advocated

an interpretation of the INA that dove tails with that presumption. 5 Indeed, t o say that § 1182(a)(2)(A)(i)(II) should not apply where the substance became

con trolled after the criminal act is to claim that such application is improperly retroactive. 6
E ven if Lopez Ventura did not clearly present his retroactivity claim before the I J , the argument is still preserved via a petition for review . It is settled practic e that to be considered on review, an issue must generally have been “pressed or passed upon” in the tribunal a quo
. 7 T hough t he 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 con trolled on the date of conviction . In doing so, the BIA plainly rejected Lopez Ven tura ’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 there fore passed upon Lopez Ventura ’s claim, we ma y consider his argument on petition for re view.

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 in sist that Lop ez 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 focus ing on the date of conviction. But th o se 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 M cGoldrick v. Compagnie Generale Transatlantique , 309 U.S. 430, 434 (1940); accord 19 J AMES W M

. M OORE ET AL ., M OORE ’ S F EDERAL P RACTICE ¶ 205.05 (3d ed. 2018). Case: 17-60529 Document: 00514689202 Page: 5 Date Filed: 10/19/2018No. 17

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6 Film Prods. , 511 U.S. 244, 280 (1994). Th at presumption is “ deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Repub lic .” Id. at 265. Accordingly, “the legal effect of conduct should ordin

arily be assessed under the law that existed when the conduct took place.” 8 Congress may enact retroactive legislation if i t does not offend a spe cific con

sti tution al prohibition

. Id. at 267

– 68. But the C ourt requires that Con gress legislate with a clear statement of retroactivity. Id.
T o determine whether a statute is impermissibly retroactive, we must ask first “ whether Congress has expressly prescribed the stat ute ’ s proper reach ” and second “whether the new statute would have retro active effect.” Id. at 280. That framework also applies when determining the ret roactive effect of a regulation. 9

A. T he 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 st atute must contain wholly unambiguous language that it appl ies retroactively. 10 For instance, a defi nition of “ aggravated felony ” that “ applies expressly to ‘conviction s entered before, on, or afte r’ 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 Alum inum & 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, 32 8 n. 4 (1997)) ( hold ing that the statutory language must be “so clear that it [can] sustain only one inter pre
tation” 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: 10/19/2018No. 17

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7 T he gov ernment attempts to sidestep Lopez Ventura ’s retroactivity claim by insisting that no statute or regulation was ever altered to a ppl y to
pre
- enactment conduct. Not true : T he list of controlled substances in the Code of Federal Regulations was chan ged to include AB

- CHMINACA only after Lopez Ventura allegedly had possessed it. The timing of that change raises at least the specter of retroactivity, caus ing us to consider whether the addition of AB

- CHMINACA wa s meant to apply retroactively.
There is no exp ress 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 t he final order states it shall be

“ effec tive January 30, 2015, ” the mere pre sence of an effective date is insuffi

cient to establish retroactivity. See id. at 317. If the stat ute was meant to extend retroactively, Congress could have specified that the addition of a drug would apply to convictions regardless of when the sub stance became controlled. Congress has not done so here

. The gover nment 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 alie ns convicted of controlled

substance 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.” P ub. L

. 99

- 570, § 1751(c) , 100 Stat. 3207

- 47 (1986). Bu t that lan guage 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 sub

stances); 21 U.S.C. § 812 ( listing the schedules of controlled substances). Case: 17-60529 Document: 00514689202 Page: 7 Date Filed: 10/19/2018No. 17

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8 the controlled

- substance schedul e s would ha ve retroactive effect. In the ab sence 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, cate

gorical approach , and basic policy considerations ov ercome the presumption against retroactivity. As the government o bserves , § 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.) B eca use the INA “asks what offense the noncitizen was convicted of, not what acts he committed , ” c ourts employ the “categorical approach” when construing the
stat ute

. 15 That approach requires courts to look “not to the facts of the partic

ular 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 Cong ress’s intent to “p redicate [] deportations on convictions, not conduct.” Mellouli v. Lynch , 135 S. Ct. 1980, 1986 (2015) ( internal quota

tions omitted)

. According to the government, to hold that the addition of a controlled substance does not apply retr oactively 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 con

viction. 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, forci ng 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: 10/19/2018No. 17

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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 pre sump tion against retroactivity because it is only an expression of legislative intent. It ex ists mere ly because Congress has enacted statutes that call for such an
ap proach. Though the categorical approach is longstanding, 16 it is not abso

lute , and there are circumstances in which statutory la nguage requires devi

ati ng 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 doctri ne 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 26 5

– 6 6. It demands that in order to have retroactive effect, all con gres sional expressions

— including the categori

cal approach

— contain unam big uous statutory language. 18 Hence, though Congress intended that the categorical approach apply generally, Congress must also clearly express that deportations are predicated on co nvictions

— not conduct

— even where doing so works a retroactive effect. 19 Because this stat

ute and accompanying regulation contain no such statement, the presumption

16 Moncrieffe , 569 U.S. at 191 (noting that the categorical approach “ has a lon g pedi

gree 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); s ee 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 immi gra
tion law is insufficient to overcome the presumption). Case: 17-60529 Document: 00514689202 Page: 9 Date Filed: 10/19/2018No. 17

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10 against retroactivity is not overcome. Additionally, the government’s concerns regarding the continued viabil

ity of the categorical approach are likely overblown. Although the list of con

trolled 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 con

sidered under the categorical approach. Thus, the number of situations imply

cating retroactivity are probably few. A finding of “no retro activity” there fore is unlikely to disturb the future operation of the cate gor ical approach.

B. Whe re a statute or regulation contains no express command of retro

activity, we must decide whether it would have retro active effect. See id.
at 280. That “ demands a com mon se nse, func tional judgment about whether the new provision attaches new legal conse quences to events completed before its enactment

. ” St. Cyr , 533 U.S. at 321 (internal quotations omitted). A statute operates retroactively when it “ would impair rig hts a party possessed when he acted, increase a party’s lia bil ity 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 a ttaches a new legal consequence to his possess ion. The government responds that the statute focus es 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: 10/19/2018No. 17

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11 Thus, the government insists that no retroactivity occurs where an addition to the federal schedules is applied to someone convicted after that addition. M ore over, the government maintains , Lope z 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 re jected very similar reasoning in Vartelas . That case involved a statutory change that precluded foreign travel by LPRs with certain con

victions. Vartelas , 566 U.S. at 260. Alt h ough the petitioner had been con victed before the statutory amendment, he was denied reentry when he trav eled a fter 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., dissentin g). Because the statute focus ed on “reentry into the United States , ” Justice Scalia found no retroactive appli cation because the peti tioner attempted to reenter after the statutory change. Id. at 277

– 78. Moreover, Justice Scalia noted that the petitioner could have avoided the con

sequences 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 simil ar to the government’s here

. Both Justic e 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 th e 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 statu

tory change. I d. at 267

– 72. Furthermore, the Court rejected the notion that Case: 17-60529 Document: 00514689202 Page: 11 Date Filed: 10/19/2018No. 17

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12 the petitioner “ could have avoided any adverse consequences ” of the amend

ment by “simply stay[ing] at home in the United States.” Id. a t 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
retro actively in that it attaches a new disability (inadmissibility) to conduct

com pleted before the regulatory change. It is purely irrelevant that Lopez Ven

tura 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 squarel y address whether retro

activity occurs when a new disability attaches to a defendant’s conduct or conviction

— as both occurred before the statutory change. 21 Nonethe less, when ever the Court has articulate d the test for retroactivity, it has frame d that t est in terms of attaching new disabilities to “transactions or consider

ations already past,” 22 “conduct over and done,” 23 or “events completed before [the statute’s] enactment.” 24 Thus, for purposes of retroactivity analy sis, it is the timing of the defend ant’s conduct, not of his conviction, that controls. “[F]amiliar considerations of fair notice, reasonable rel iance, 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

- D e 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 26 7.

24 St. Cyr , 533 U.S. at 321 (internal quotations omitted). Case: 17-60529 Document: 00514689202 Page: 12 Date Filed: 10/19/2018No. 17

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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 plac e. Once he committed the crime, Lo pez Ventura put hi mself on the path to conviction and any legal con se quences that flow ed 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 impli

cated 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 hel d that the absence of actual detrimental reli

ance is not determinative. See Vartelas , 566 U.S. at 273. I t would be a “strange
presump tion . . . that arises only on a showing of actual reliance.” 25 Accord

ingly, the test for retroactivity is not whether the petitioner actually relied on the prior law but, instead, “whether the new provision attaches new legal con

sequences to events completed before its enactment.” Id. (internal quotation omitted). Becaus e the addition of AB

- CHMINACA does so, it operates retroac

tively. And because § 1182(a ) (2) (A)(i)(II) does not overcome the presumption against retroactivity, applying i t to Lopez Ventura is impermissibly retroactive.
We therefore GRANT the petition f or 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 mari h uana or , instead, of AB

- CHMINACA

.

25 Vartelas , 566 U.S. at 273 (cleaned up) ; s ee also Carranza

- D e Salnias , 700 F.3d at 772

– 73 (noting that “ actual, subjective reliance” is not required to estab lish retroactivity). Case: 17-60529 Document: 00514689202 Page: 13 Date Filed: 10/19/2018