UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ THOMAS RAEL, Plaintiff - Appellant,

v. SMITH’S FOOD AND DRUG CENTERS, INC.; ARTURO SUAZO, individually and as an employee of Smith’s Food and Drug Centers, Inc., Defendants - Appellees. No. 16-2278 (D.C. No. 1:15-CV-00983-SCY-KK) (D. N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , O’BRIEN , and BACHARACH , Circuit Judges.

________________ _________________ Thomas Rael appeals the dist rict court’s dismissal of his state law tort claims as preempted by § 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185(a). Exerci sing jurisdiction under 28 U. S.C. § 1291, we affirm.

* After examining the briefs and appellate record, th is panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court2 I. Factual Background Rael worked for Smith’s Food and Drug Centers as a meat cutter for 25 years until he resigned in December 2014. The terms of Rael’s employment were governed by a collective bargaining agreement (“CBA”) negotiated between Smith’s and Rael’s union. Arturo Suazo became Rael’s immediate supervisor approximately a year before he resigned. In his operative complaint, Rael alleged that he left his position with Smith’s because of continual harassm ent by Suazo. He claimed th at Suazo frequently yelled at and “constantly harassed, belittled, and degraded” him. Aplt. App. at 20. More specifically, Suazo repeatedly called Rael “old man,” regul arly said he “was moving too slow,” and told Rael th at younger meat cutters coul d do his job better and get it done faster. Id. Rael claimed that, due to a workplace injury, he was unable to work as fast as younger employees or as quickly as Suazo demande d. He alleged that he is 58 years old, while Suazo is “much younger.” Id

. Rael complained about Su azo’s harassment and mi streatment to several assistant store directors and to the local he ad of human resource s for Smith’s. These individuals said they would talk to Suazo, but Suazo neve r modified his conduct. He instead told Rael that he could find anot her job if he did not like the way Suazo treated him. Rael ultimately resigned due to “constant pressure” from Suazo, feeling that he had been “constr uctively terminated.” Id. at 21. Rael alleged that Suazo was acting within the course and scope of his employment at all material times.3 Rael alleged state law claims for inten tional infliction of emotional distress (“IIED”) and prima facie tort against both Smith’s and Suazo. Defendants moved to dismiss the complaint, arguing that Rael’s claims are preempted by § 301 of the LMRA. The district court granted the motion and dismissed Rael’s complaint. II. Legal Background A. Rael’s State Law Claims Rael alleged two tort claims under Ne w Mexico law. To prevail on his IIED claim, he was required to s how that he suffered severe emotional distress caused by defendants’ intentional or reckless c onduct that was extreme and outrageous under the circumstances. See Coates v. Wal-Mart Stores, Inc. , 976 P.2d 999, 1009 (N.M. 1999). The elements of a prima facie tort claim are: “(1) an intentional and lawful act; (2) an intent to in jure the plaintiff; (3 ) injury to the plain tiff as a result of the intentional act; (4) and the absence of sufficient justificati on for the injurious
act.” Lexington Ins. Co. v. Rummel , 945 P.2d 992, 995 (N.M. 1997). Rael argues that neither of his st ate law tort claims is preempted by § 301. B. Section 301 Preemption Section 301 of the LMRA provides: “S uits for violation of contracts between an employer and a labor organization repres enting employees in an industry affecting commerce as defined in this chapter . . . may be brought in any district court of the United States having jurisdiction of the par ties . . . .” 29 U.S. C. § 185(a). This provision has been construed “as a congressional mandate to the federal courts to fashion a body of federal common law to be used to address disputes arising out of4 labor contracts.” Allis-Chalmers Corp. v. Lueck , 471 U.S. 202, 209 (1985). Section 301 is also deemed to have a preemptive effect, su ch that “[a] state rule that purports to define the meaning or scope of a term in a contract suit . . . is pre-empted by federal labor law.” Id. at 210. In Allis-Chalmers , the Supreme Court extended this rule beyond breach of contract claims, stat ing that “questions relating to what the parties to a labor agreement agreed, and what legal cons equences were intended to flow from breaches of that agreement, must be resolv ed by reference to uniform federal law, whether such questions arise in the context of a suit for breach of contract or in a suit alle ging liability in tort.” Id. at 211. Ultimately, the Court held that preemption depends on “whether evalua tion of the tort clai m is inextricably intertwined with consideration of th e terms of the labor contract.” Id. at 213. Applying this test, the Supreme Court held in Lingle v. Norge Division of Magic Chef, Inc. , 486 U.S. 399, 401 (1988), that a state law claim alleging a retaliatory discharge for fi ling a workers’ compensation claim was not preempted by § 301. The Court reasoned th at the “purely factual questi ons” necessary to prove the elements of this claim could be determined without interpreting any term of a CBA. Id. at 407 (noting the factual issues were whether an employee was discharged or threatened with discharge and whether th e employer’s motivation was to deter the employee from exercising his workers’ compensation rights). Thus, under Lingle , “an application of state law is preempted by § 301 . . . only if such application requires the interpretation of a co llective-bargaining agreement.” Id. at 413.5 C. Tenth Circuit Cases Holding IIED Claims Preempted by § 301 After Lingle , we have regularly held that IIED claims are preempted by § 301.
In Johnson v. Beatrice Foods Co ., 921 F.2d 1015, 1016 (10th Cir. 1990), the plaintiff alleged that he left his job as a delivery driver due to ha rassment by his supervisor. We held that his IIED claim was preempted because “[e]ach of [his] allegations directly relates to either explicit or implied rights deri ved from the CBA, just as the bad faith tort claim in Allis-Chalmers did.” Id. at 1020. Further, because an IIED claim under Oklahoma law “should not be considered in a sterile setting, detached from the milieu in wh ich it took place,” 1 we held that “all aspect s of [the plaintiff’s] employment, including the terms of the CBA , must be considered when evaluating whether [his employer’s] c onduct was outrageous.” Id . (internal quotation marks omitted). More specifi cally, we concluded that “it cannot be determined whether [the employer’s] conduct was outrageous without determining whether the conduct was allowed under the CBA. Indeed, actions that the CBA permits might be deemed reasonable in virtue of the fact that the CBA permits them.” Id. (brackets and internal quotation marks omitted). Finally, we determined that Lingle was inapposite because, unlike a state statut e that specifically prohib its firing an employee for exercising rights under a workers’ compen sation act, the state law IIED claim in Johnson did not “create an independent meth od of measuring when an employer’s work-related conduct is outrageous.” Id. at 1021.

1 Rael does not argue that an IIED claim under New Mexico law requires a different analysis.6 Our subsequent decisions have largely followed Johnson in holding that IIED claims are preempted by § 301. See Mowry v. United Parcel Serv. , 415 F.3d 1149, 1158 (10th Cir. 2005) (determination wh ether alleged conduct was outrageous required construction of employer’s ri ghts and obligations under the CBA); Steinbach v. Dillon Cos. , 253 F.3d 538, 542 (10th Cir. 2001) (same); Garley v. Sandia Corp. , 236 F.3d 1200, 1214 (10th Ci r. 2001) (same, as to part of IIED claim); Mock v. T.G.
& Y. Stores Co. , 971 F.2d 522, 530 (10t h Cir. 1992) (same). D. Tenth Circuit Cases Holding IIED Claims Not Preempted by § 301 We have also held that some IIED claims were not preempted by § 301. Although we held that part of the pl aintiff’s IIED claim was preempted in Garley , we concluded that it was not preempted to th e extent that the claim was based on the employer’s conduct after an arbi trator ordered the plaintiff’ s reinstatement. 236 F.3d at 1214. We emphasized this portion of the IIED claim was not preempted by § 301 because it was based on allegati ons regarding the employer’s “ retaliatory acts ”; thus, as with the plaintiff’s “i ndependent cause of action fo r retaliation, determining whether [the employer’s] acts are ‘outrageous ’ would not require resort to the CBA.” Id. In two more cases, we he ld that IIED claims were not preempted based on the nature of the alleged conduct. In Albertson’s, Inc. v. Carrigan , 982 F.2d 1478, 1479 (10th Cir. 1993), the plain tiff brought a state law clai m for extreme and outrageous conduct, alleging that she was suspended after the defendants conspired to falsely accuse her of shoplifting. Relying on Lingle , we held that the plaintiff’s state law7 claim was not preempted by § 301 because “if [she] can show defendants conspired to have [her] arrested by fa bricating her theft of grocer ies from her employer, proving their outrageous conduct need not require interpretation of or reference to the CBA.” Id. at 1482; see also id. at 1483 (citing earlier Suprem e Court decision holding that IIED claims were not preempted by anot her provision of the LMRA where the alleged conduct was “p articularly abusive”). We also held that IIED cl aims were not preempted in Fry v. Airline Pilots Ass’n, International , 88 F.3d 831, 841 (10th Cir. 1996). 2 The plaintiffs were airline pilots who continued working when their union went on strike. In support of their IIED claims against the union , the pilots presented evid ence that they and their families were targeted w ith “massive abuse” intended to punish them, drive them from their jobs, and deter ot her union members from cro ssing future picket lines. Id. at 840. The harassment campaign include d “food and drink cont amination, property loss and property damage, death threats and threats of physical harm, threats of sexual assault of spouses and family members, and harass ing phone calls and knocks on the door during the night on flight la yovers, among other acts of harassment and intimidation.” Id. (internal quotation marks omitted). We held that the pilots’ IIED claims were not preempted because it wa s unnecessary to interp ret the CBA to find liability for outrageous conduct on these facts. Id. at 841. In reaching this

2 In Fry , we considered preemption under th e Railway Labor Act rather than § 301 of the LMRA. But this court applies the Lingle preemption standard under both statutes. 88 F.3d at 835-36.8 conclusion, we cited a Seventh Circuit case holding that an IIED claim was not preempted by § 301 where the conduct alle ged was “‘not even arguably sanctioned by the labor contract.’” Id. (quoting Keehr v. Consol. Frei ghtways of Del., Inc. , 825 F.2d 133, 138 n.6 (7th Cir. 1987)). III. Analysis We review de novo the district court’ s dismissal of Rael ’s complaint for failure to state a claim on whic h relief can be granted. See Garley , 236 F.3d at 1206; see also id. at 1203 (reviewing district court’s gr ant of motion to dismiss for failure to state a claim based on § 301 preemption) . “Whether state law is preempted by federal law is a conclusion of law which we also review de novo .” Id. A. Under the Reasoning in Johnson , Rael’s State Law Tort Claims are Preempted by § 301 Applying Johnson and its progeny , the district court he ld that Rael’s IIED claim is preempted by § 301. It reasoned that, as in Johnson , Rael’s allegations directly relate to explic it and implied rights derive d from the CBA. The court pointed to CBA provisions granting Smith’s the sole right and f unction “to maintain the discipline and efficiency of the empl oyees,” Aplt. App. at 47 (CBA § 6.1), and prohibiting “the use of profanity, raised voices and harassment” in the workplace, id. at 78 (CBA § 26). The court conclude d that “[w]hether Suazo’s comments constituted harassment as opposed to an ap propriate evaluation of a subordinate’s efficiency requires an inte rpretation of the CBA.” Id. at 128. It further held that “the allegations in the present case do not rise to the level of the clearly outrageous9 conduct in Albertson’s . . . and do not lend themse lves to such a clear cut determination.” Id. at 130. The district court held that Rael’s prim a facie tort claim is also preempted by § 301 because “[a]s is the case with dete rmining the ‘outrageous ness’ of conduct in the [IIED] context, determining whethe r the conduct was ‘justified’ cannot be evaluated without reso rt to the [CBA].” Id. at 132. The court reasoned that his prima facie tort claim “lacks an independent me thod of measuring whether the employer’s alleged conduct was justified.” Id. Rael does not separately challenge the district court’s reasoning in dismissing his prima facie tort claim. 3 Rael argues that Suazo’s conduct coul d not arguably be sanctioned by the
CBA. See Aplt. Opening Br. at 14 (citing Keehr , 825 F.2d at 138 n.6). But we agree with the district court that the facts underlying Rael’s stat e law claims are more akin to the allegations in Johnson than in Albertson’s . Like Rael, the plaintiff in Johnson alleged that his supervisor yelled at him, verbally abus ed him, and frequently called him names in the presence of co-worke rs. 921 F.2d at 1017. Moreover, Johnson also involved other conduct that is more egregious than any of the treatment alleged by

3 The district court dismissed both of Rael’s preempted claims rather than treating them as arising u nder § 301 because Rael did not demonstrate that he had exhausted his available remedi es under the CBA. Rael does not challenge this aspect of the district court’s decision.10 Rael. 4 Yet we held that it wa s necessary to construe the applicable CBA to determine whether the supervisor’s alle ged conduct was outrageous. Id. at 1020. In reaching our holding in Johnson , we acknowledged our sister circuits’ varying decisions applying § 301 preemption to IIED claims. Id. at 1021. But we nonetheless held that Allis-Chalmers and Lingle necessitated our preemption conclusion. Id. at 1021-22. Johnson is binding precedent in this circuit; if not distinguishable, it controls our result in this case, see United States v. Edward , 224 F.3d 1216, 1220 (10th Cir. 2000) (“Under the doctrine of stare decisis, this panel cannot overturn the decision of another panel of this court barring en banc reconsideration, a supersedi ng contrary Supreme Court decision, or authorization of all currently active judges on the court. ” (internal quotation marks omitted)). B. Rael’s Arguments why Johnson is distinguishable Rael advances two arguments w hy his case is distinguishable from Johnson

. He first contends that the determining f actor for § 301 preemption is whether the employee “suffered emotional distress caus ed by [his] employer in a matter involving employee discipline, or in a matter i nvolving the disciplinary process.” Aplt. Opening Br. at 6. If it did, Rael argues that th e tort claim is pree mpted; but if the

4 The delivery-driver plaintiff in Johnson alleged that his supervisor, among other things, encouraged one co-worker to shun him and others to follow him around; told a co-worker to ignore theft by other driv ers and instead devote his time to getting rid of the plaintiff; publicly ridiculed the plaintiff, falsely clai ming he had the most “bad product” on his route; rearranged the plaintiff’s route, making it more difficult to run; made it impossible to properly se rvice a particular customer; planted bad product on the plaintiff’s rout e, then disciplined the plain tiff for it; and suspended the plaintiff for leaving bad product with a customer, knowing it was left by a different driver. 921 F.2d at 1017-18.11 claim arose “outside of the disciplinary context,” id. at 7, Rael contends that preemption is not generally applied. He ar gues that his tort claims are not preempted by § 301 because, unlike th e IIED allegations in Johnson , Rael’s claims are based on conduct by Suazo outside of a disciplinar y context. Rael also contends that Johnson is distinguishable beca use, unlike the CBA in Johnson , the Smith’s CBA lacks a clearly applicable grievance procedur e. Neither contention has merit. 1. Rael Fails to Show that § 301 Preemption Applies Only to IIED Claims Involving Conduct Related to a Disciplinary Process Rael maintains that there is a line of cases demonstrati ng his proposition that § 301 preempts only tort claims based on co nduct that occurred w ithin a disciplinary process. But he points to no case expres sly holding that preemption turns on this factor. Nor do all of his ca ses align with his proposition. Johnson , itself, does not support it. Although the conduct alleged in Johnson involved workplace harassmen t both in and outside of a disciplinary context, 5 we held that § 301 preempted all of the plaintiff’s IIED allegations, 921 F.2d at 1020. Moreover, we specifically disagr eed with the district court to the extent it limited its preemption holding to the plai ntiff’s allegations related to suspensions or disciplinary

5 The allegedly outrageous conduct in Johnson included written warnings, suspensions, and terminations, as well as other actions not alle gedly related to any disciplinary action or process. See 921 F.2d at 1017-18.12 actions, stating that “since the CBA also a llows ‘disputes’ to be grieved, we would hold that all of [his] alle gations are pre-empted.” Id . at 1020. 6 Rael’s response is that Johnson is an “outlier” case, Aplt. Opening Br. at 10, and he attempts, without succes s, to assemble a line of ot her cases clearly supporting his proposition. Rael is correct that, when we have followed Johnson in finding IIED claims were preempted by § 301, the cases involved conduct that occurred within a disciplinary context. See Mowry , 415 F.3d at 1158 (termination); Steinbach , 253 F.3d at 539 (cancellation of employee’s vacation on threat of termination and initiation of disciplinary proceedings); Garley , 236 F.3d at 1214 (investigation of employee and termination); Mock , 971 F.2d at 530 (investiga tion of employees and termination). But our non-preemption holdings in Albertson’s and Garley do not clearly support Rael’s proposition.
In Albertson’s , the plaintiff alleged that sh e was suspended from employment based on a false accusation of shoplifting. 982 F.2d at 1479. In holding that her “single state law claim” of extreme and outrageous conduct 7 was not preempted by

6 Contrary to Rael’s assertion, see Aplt. Opening Br. at 12, we did not dismiss the plaintiff’s non-discip linary allegations in Johnson because they were insufficient to sustain an IIED claim. We did hold that the supervisor’s al leged statements and actions related to the plaintif f’s divorce were arguably not “ work-related ,” and we held that those allegations were insufficient, on thei r own, to support an IIED claim. 921 F.2d at 1020 n.3 (emphasis added). But we held that the pl aintiff’s remaining allegations—involving conduct both within and outside of a disciplinary context— were preempted by § 301. Id. at 1020.

7 The district court had construed the plaintiff’s complain t as bringing two claims: one based on her suspension and one based on the conspiracy to charge her with shoplifting. 982 F.2d at 1479.13 § 301, we distinguished Johnson and other previous decisions in which the outrageousness of the alleged conduct could not be determ ined without interpreting the CBAs. Id. at 1481-82. Thus, we did not hold that the clai m avoided § 301 preemption because the allegedly outra geous conduct occurred outside of a disciplinary context. Rather, we acknow ledged that her outrageous conduct claim would require a determination of the same factual issues a nd disputes as her separate challenge to her suspension, which she wa s pursuing through arbitration under the
CBA. Id. at 1482.
In Garley , we held that part of the plain tiff’s IIED claim was not preempted because it was base d on the employer’s “ retaliatory acts ,” not because the conduct occurred outside of a disciplinary process. 236 F.3d at 1214 (citing the court’s prior analysis regarding the employee’s retalia tion claim). Moreover, the allegations underlying the non-preempted IIED claim in Garley arguably involved conduct related to a disciplinary process. The em ployee claimed that hi s employer retaliated by refusing to provide the relief he was entitle d to under an arbitr ator’s reinstatement ruling that followed his termination. See 236 F.3d at 1205, 12 14. Two other cases Rael cites similarly found th at retaliation-based IIED cl aims were not preempted by § 301. See Meyer v. Schnucks Mkts., Inc. , 163 F.3d 1048, 1049, 1051-52 (8th Cir. 1998) (holding IIED claim based on hara ssment in retaliation for employee’s complaints about sanitation and selling out dated meat was not preempted by § 301); Krashna v. Oliver Realty, Inc. , 895 F.2d 111, 115 (3d Cir. 1990) (holding IIED claim14 based on harassment and term ination after filing worker s’ compensation claim was not preempted by § 301). 8 Finally, Rael mischaracterizes a nother case. He contends that Douglas v. American Information Technologies Corp ., 877 F.2d 565 (7th Cir. 1989), involved only “discipline,” Aplt. Opening Br. at 7. The plaintiff did a llege “an unjustified final warning” and a threat of termination, but she also a lleged forced participation in stressful work, unwarranted scrutiny of her work, and constant ha rassment. 877 F.2d at 567-68. Yet the court held that her IIED claim was preempted by § 301 because its resolution would require interpretation of the CBA. Id. at 572-73. Rael fails to show there is a line of cases in which § 301 -preemption rulings have turned on whether the state law clai m arose from conduct within a disciplinary process. Nor has he distinguished Johnson as an “outlier” as to any such line of cases. Moreover, it is unsur prising that many of the cas es applying § 301 preemption to IIED claims have involved allegations of outrageous conduct that occurred within a disciplinary process, as th at subject is often addres sed by the terms of a CBA. See, e.g., Mock , 971 F.2d at 530 (IIED claim related to manner of employee investigation and termination required in terpretation CBA provision permitting termination for “just cause.”). But § 30 1 preemption extends to any state law claim that requires

8 Rael acknowledges that Krashna involved allegations of harassment not related to discipline (e.g ., increasing the amount of the employee’s workload, impugning him orally, and taking other acts “t o harass and annoy” him), as well as termination of the employee. 895 F.2d at 115 & n.5. But despite the disciplinary-related allegation, the court he ld that the plaintiff’s IIED claim was not preempted by § 301. Id. at 115.15 interpretation of any CBA term. What “matters for § 301 pre-emption purposes [is whether] resolution of the state-law claim does not require construing the collective-bargaining agreement.” Lingle , 486 U.S. at 407. 2. Rael Also Fails to Show that the Smith’s CBA Lacks a Grievance Procedure Applicable to His Claims Rael also attempts to distinguish Johnson on the basis that the Smith’s CBA “does not provide a[] clear a nd express procedure for [him] to grieve his harassment and bullying.” Aplt. Opening Br. at 18. 9 We noted in Johnson that the plaintiff “could have used the CBA grievance proce dure for any of the allegations in his complaint since all th e allegations involved either a suspension, discharge, or work-related dispute.” 921 F.2d at 1020. Therefore, because “disputes” were grievable under the CBA, we did not limit our § 301-preemption ruling to the plaintiff’s IIED claims related to su spensions and disciplinary actions. Id

. Rael argues that, unlike in Johnson , he could not redress his claims under the grievance provisions in the Sm ith’s CBA. He contends th at Suazo’s harassment was

9 Although Rael does not expl ain why grievability of hi s claim is relevant, the Supreme Court has said that § 301 preemp tion “preserves the central role of arbitration” in labor disputes. Allis-Chalmers , 471 U.S. at 219; see also Lingle , 486 U.S. at 411 n.11 (noting arbitration is called for in mo st CBAs). Thus, a preemption rule that permitted an individual to side step available grievance procedures would cause arbitration to lose most of its effectiveness, as well as eviscerate a central tenet of federal labor contract law under § 301 that it is the arbitrator, not the court, who has the responsibility to interpret the labor contract in the first instance. Allis-Chalmers , 471 U.S. at 220 (cit ation omitted).16 not grievable because the anti-harassme nt provision in the CBA is merely aspirational and unenforceable and the grievance provision is ambiguous. Rael bases these contentions entirely on the absence of an express st atement in the CBA that a violation of the anti-harassm ent provision is grievable. But Smith’s argues that Rael’s allegations are grievable under the CBA. Smith’s points to the broad language of the grievance provision itself: The Union or any employee in the Bargaining Unit who has any dispute or disagreement of any kind or character arising out of or in any way involving the interpretation or a pplication of this Agreement, shall submit such dispute or disagreement for resolution under the procedures and in the manner set forth in this Section. Aplt. App. at 66 (CBA § 15.1). Rael doe s not explain why he could not grieve Suazo’s alleged harassment under th is expansive grievance language (as supplemented by implied contractual right s and “the common law of the shop,” Johnson , 921 F.2d at 1020). He also notes that “harassmen t” is not defined in the CBA. But the final step in the CBA’s grievan ce process is arbitrati on. Aplt. App. at 67 (CBA § 15.2(c)). A nd under § 301, it is the arbitr ator who must interpret the CBA’s anti-harassment provisi on in the first instance. Allis-Chalmers , 471 U.S. at 220. Rael again fails to show th at his case is di stinguishable from Johnson

. C. Rael Also Fails to Establish that his Individual Claims against Suazo are not Preempted by § 301 In his final contention, Rael argues the district court erred in holding that his individual claims against Suazo are preempted. The court based its ruling on Steinbach , which affirmed the dismissal of an IIED claim brought against both the17 plaintiff’s former employer and her supervisor because the claim was preempted by § 301. 253 F.3d at 539. Rael asserts that Steinbach has not been cited for this proposition, but he fails to point to a ny decision holding that claims against a supervisor are not preempted. Nor did he provide any support for th is contention in the district court. See Aplt. App. at 132 (district cour t’s dismissal order noting that “Plaintiff cites no authority for this proposition”). We decline to address an argument for which Rael provides no legal authority. See United States v. Banks , 451 F.3d 721, 728 (10th Cir. 2006). IV. Conclusion The district court’s judgment is affirmed.

Entered for the Court
Mary Beck Briscoe Circuit Judge