                             In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 06-8002
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
                                                   Plaintiff-Appellee,
                                 v.

SIDLEY AUSTIN LLP,
                                               Defendant-Appellant.
                         ____________
                 Application for Leave to Appeal
           from the United States District Court for the
           Northern District of Illinois, Eastern Division.
              No. 05 C 0208—James B. Zagel, Judge.
                         ____________
  SUBMITTED FEBRUARY 7, 2006—DECIDED FEBRUARY 17, 2006
                         ____________

  Before POSNER, EASTERBROOK, and WOOD, Circuit Judges.
  POSNER, Circuit Judge. In 1999, Sidley & Austin (as it
then was) demoted 32 of its equity partners to “counsel” or
“senior counsel.” The EEOC began an investigation to
determine whether the demotions might have violated
the Age Discrimination in Employment Act. After we
upheld the district court’s rebuff of Sidley’s effort to de-
rail the investigation, EEOC v. Sidley Austin Brown & Wood,
315 F.3d 696 (7th Cir. 2002), the Commission filed an ADEA
suit against Sidley. Sidley asks us to entertain, as recom-
2                                                 No. 06-8002

mended by the district judge, an interlocutory appeal
from the judge’s denial of Sidley’s motion for partial sum-
mary judgment. The appeal would require us to decide
whether the judge was correct to rule that the EEOC may
obtain monetary relief on behalf of individuals who, having
failed to file timely administrative charges under the ADEA,
are barred from bringing their own suits. The question
satisfies the criteria in 28 U.S.C. § 1292(b) for an interlocu-
tory appeal and since it has been fully briefed we can
proceed to answer it.
  The identical question received the opposite answer in
EEOC v. North Gibson School Corp., 266 F.3d 607 (7th Cir.
2001), but that decision is no longer good law. It was
scuttled by the Supreme Court in EEOC v. Waffle House, Inc.,
534 U.S. 279 (2002), which held that the EEOC’s claim for
monetary relief for a victim of an alleged violation of the
Americans with Disabilities Act was not barred by the fact
that the victim had agreed to arbitrate any disputes arising
out of his employment. The reason there was no bar was not
that the arbitration clause was unenforceable but that the
Commission was not bound by it because its enforcement
authority is not derivative of the legal rights of individuals
even when it is seeking to make them whole. Similarly, the
Commission is not bound by the failure of the Sidley ex-
partners to exhaust their remedies; the Commission had no
duty to exhaust.
  Sidley seeks to distinguish Waffle House from the pres-
ent case on the basis of the following sentence in the Court’s
opinion: “It is true, as respondent and its amici have argued,
that Baker’s conduct [Baker was the victim of the alleged
violation of the ADA] may have the effect of limiting the
relief that the EEOC may obtain in court.” 534 U.S. at 296.
But the remainder of the paragraph makes clear that the
No. 06-8002                                                   3

Court was talking about something quite different from a
procedural forfeiture. “If, for example, [Baker] had failed to
mitigate his damages, or had accepted a monetary settle-
ment, any recovery by the EEOC would be limited accord-
ingly. As we have noted, it ‘goes without saying that the
courts can and should preclude double recovery by an
individual.’ ” Id. at 296-97 (citations omitted). Similarly, had
Baker sued and lost, the employer might have been able to
interpose the judgment as a bar to the EEOC’s obtaining
money for Baker, by virtue of the doctrine of collateral
estoppel. EEOC v. U.S. Steel Corp., 921 F.2d 489 (3d Cir.
1990). Even though (this is the doctrinal heart of Waffle
House) the EEOC is not in privity with the victims for whom
it seeks relief, it does not follow that they must be permitted
to take two bites from the same apple.
  For all we know, some of the ex-partners may have
received settlements from Sidley and others may have failed
to mitigate their damages. Suppose all have received
settlements that have fully compensated them for the
alleged violations of the age discrimination law. Then the
EEOC could obtain no monetary relief on their behalf. But
this was not the basis for Sidley’s motion for partial sum-
mary judgment. The basis was a ground that Waffle House
rejects, as we and other courts have already recognized in
related contexts. EEOC v. Caterpillar, Inc., 409 F.3d 831, 833
(7th Cir. 2005); EEOC v. Board of Regents, 288 F.3d 296, 300
(7th Cir. 2002); EEOC v. Pemco Aeroplex, Inc., 383 F.3d 1280,
1292-94 (11th Cir. 2004), and cases cited there.
                                                    AFFIRMED.
4                                            No. 06-8002

A true Copy:
       Teste:

                      _____________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit

                USCA-02-C-0072—2-17-06


                                                             [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                                                        JULY 11, 2012
                                            No. 11-14978
                                        Non-Argument Calendar            JOHN LEY
                                                                           CLERK
                                      ________________________

                               D.C. Docket No. 1:07-cr-20635-PAS-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellee,

                                               versus

MEKINSON JEAN,

llllllllllllllllllllllllllllllllllllllll                            Defendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                               for the Southern District of Florida
                                 ________________________

                                           (July 11, 2012)

Before TJOFLAT, EDMONDSON and ANDERSON, Circuit Judges.

PER CURIAM:
      Mekinson Jean appeals his fifteen-month sentence, imposed for violating

the conditions of his supervised release. Jean originally pled guilty to one count

of theft of United States treasury checks, in violation of 18 U.S.C. § 641. On

appeal, Jean argues that his sentence was procedurally unreasonable because the

district court relied upon arrest affidavits without making the requisite findings of

reliability. Jean also argues that the district court’s imposition of a consecutive

sentence to his fifteen-year state court sentence resulted in an excessive term of

imprisonment in light of the 18 U.S.C. § 3553(a) factors.

      We review a sentence imposed upon revocation of supervised release for

reasonableness. United States v. Sweeting, 437 F.3d 1105, 1106-07 (11th Cir.

2006). We review a district court’s evidentiary decisions, as well as the

revocation of supervised release, for an abuse of discretion. United States v.

Frazier, 26 F.3d 110, 112 (11th Cir. 1994). The reasonableness review is

deferential, and the party challenging the sentence “bears the burden of

establishing that the sentence is unreasonable in the light of both [the] record and

the factors in section 3553(a).” United States v. Talley, 431 F.3d 784, 788 (11th

Cir. 2005).

      A sentence may be procedurally unreasonable if the sentencing court fails to

calculate the advisory guideline range accurately, treats the sentencing guidelines

                                          2
as mandatory, bases the sentence on clearly erroneous facts, fails to consider the

sentencing factors, or fails to explain the chosen sentence adequately. Gall v.

United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007). When revoking a

defendant’s term of supervised release, 18 U.S.C. § 3583(e) instructs courts to

consider certain § 3553(a) sentencing factors to determine an appropriate sentence.

See 18 U.S.C. § 3583(e). Specifically, courts are directed to consider: (1) “the

nature and circumstances of the offense and the history and characteristics of the

defendant”; (2) the need for the sentence imposed to “promote respect for the

law,” “afford adequate deterrence to criminal conduct,” and “protect the public

from further crimes of the defendant”; (3) the applicable guidelines or policy

statements issued by the Sentencing Commission; (4) the need to avoid

unwarranted sentence disparities; and (5) the need to provide restitution to victims.

See 18 U.S.C. § 3553(a)(1), (a)(2)(B)-(D), (a)(4)-(7). The district court need not

discuss or explicitly state each factor on the record; an acknowledgment by the

court that it has considered the defendant’s arguments and the § 3553(a) factors

will suffice. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).

      Once we have determined that the sentence is procedurally reasonable, we

will consider the substantive reasonableness of the sentence. Gall, 552 U.S. at 51,

128 S. Ct. at 597. The analysis includes “examining the totality of the

                                         3
circumstances, including an inquiry into whether the statutory factors in § 3553(a)

support the sentence in question.” Gonzalez, 550 F.3d at 1324. “The weight to be

accorded any given § 3553(a) factor is a matter committed to the sound discretion

of the district court, and we will not substitute our judgment in weighing the

relevant factors.” United States v. Amedeo, 487 F.3d 823, 832 (11th Cir. 2007)

(quotations and alterations omitted). A sentence is substantively unreasonable if,

under the totality of the circumstances, it fails to achieve the purpose of

sentencing. United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008).

      We have previously held that reliable hearsay may be admitted at

sentencing. United States v. Zlatogur, 271 F.3d 1025, 1031 (11th Cir. 2001).

Although “it may be advisable and in some instances necessary for a district court

to make distinct findings regarding the reliability of hearsay statements used at

sentencing, the absence of such findings does not necessarily require reversal or

remand where the reliability of the statements is apparent from the record.”

United States v. Gordon, 231 F.3d 750, 761 (11th Cir. 2000).

      To establish that the consideration of hearsay was harmful error, Jean “must

show (1) that the challenged evidence is materially false or unreliable, and (2) that

it actually served as the basis for the sentence.” United States v. Taylor, 931 F.2d

842, 847 (11th Cir. 1991) (quotation omitted).

                                          4
      Jean argues that the district court erred by considering hearsay arrest

reports. This argument fails for several reasons. First, he admitted the facts of the

supervised-release violations to the district court. During the sentencing hearing,

Jean freely conceded the four violations stemming from the 2009 armed robbery of

a restaurant. Jean also had not challenged the presentence investigation report’s

description of the 2007 violation, which stemmed from the armed robbery of a

vehicle. See United States v. Beckles, 565 F.3d 832, 843 (11th Cir. 2009) (“For

purposes of sentencing, the district court also may base its factual findings on

undisputed statements found in the PSI, because they are factual findings to which

the defendant has assented.”). Second, Jean has not shown that the district court

“explicitly relied upon” the arrest reports in formulating the sentence. Taylor, 931

F.2d at 847 (emphasis in original). And third, Jean has not provided any evidence

to show that these reports are “materially false or unreliable.” Id. Accordingly,

there was no error by the district court.

      Jean acknowledges that the court calculated the advisory guideline

correctly. The court treated the guidelines as discretionary and exercised its

discretion when sentencing Jean, as it discussed several enhancing factors and

explained why it had not sentenced him at the high-end of the guidelines range.

See Gonzalez, 550 F.3d at 1324 (stating that the court need not explicitly discuss

                                            5
or state each § 3553(a) factor). We conclude that Jean’s sentence was

procedurally reasonable.

      With respect to substantive reasonableness, the district court did not err by

imposing a fifteen-month sentence. First, this Court has previously rejected Jean’s

argument that imposing a consecutive sentence constitutes additional punishment.

See United States v. Quinones, 136 F.3d 1293, 1295 (11th Cir. 1998); see also 18

U.S.C. § 3584(a). The district court carefully considered the parties’ arguments

and concluded that there should be actual ramifications for Jean’s actions, given

the seriousness of the violations and proximity of the 2009 robbery to the start of

his supervised release. In exercising its discretion, the court also determined that a

high-end guidelines sentence was not appropriate given that Jean did accept

responsibility. Contrary to Jean’s assertion, the district court expressly addressed

his age argument. The court properly considered the § 3553(a) factors. It did not

abuse its discretion by running his sentence consecutively to his state court

sentence, and, accordingly, we affirm Jean’s sentence as substantively reasonable.

See Gonzalez, 550 F.3d at 1324.

      AFFIRMED.1

      1
             Jean’s request for oral argument is DENIED.

                                            6


849 P.2d 606 (1993)
J. Lamar RICHARDS, Plaintiff and Appellee,
v.
SECURITY PACIFIC NATIONAL BANK; Debra L. Youngman; Deborah Diamanti; Ameristar Financial Corporation; Associates Financial Services Company, Inc.; First Boston Mortgage Securities Corp., Defendants and Appellants.
No. 920679-CA.
Court of Appeals of Utah.
March 9, 1993.
*607 Sherman C. Young (argued), Jerry L. Reynolds, Ivie and Young, Provo, for defendants and appellants.
Ralph R. Tate, Jr. (argued), Salt Lake City, for plaintiff and appellee.
Before BENCH, BILLINGS and ORME, JJ.
BILLINGS, Presiding Judge:
Security Pacific National Bank appeals from the trial court's grant of summary judgment concluding the mechanics' lien of J. Lamar Richards had priority over Security Pacific's mortgage on the property in question. We affirm.

FACTS
On May 15, 1985, Debra Youngman purchased, under a uniform real estate contract (U.R.E.), residential property located in Salt Lake City. The property was subject to five encumbrances: Three simple deeds of trust totaling $139,130, an "all-inclusive" deed of trust for $284,239.80 in favor of Gail Zscheile, and a second all-inclusive deed of trust for $395,000 in favor of Lafayette Properties. The three simple trust deeds and the Zscheile trust deed were all recorded in 1985. The U.R.E. and the Lafayette trust deed were not recorded until June 29, 1988.
Sometime prior to June 29, 1988, but in that month, J. Lamar Richards, a painting contractor, commenced work on the property at Youngman's request. By August 26, 1988, Richards had completed his work, supplying materials and services valued at $9499.50. Youngman paid $4000 towards retiring that debt. On November 16, 1988, Richards filed a mechanics' lien in the amount of $5985.
On July 7, 1988, Ameristar Financial Corp. and Youngman closed a loan for the purpose of refinancing Youngman's obligations on the property. Ameristar loaned Youngman $320,000. Of that amount, $98,029.95 went to the three individuals holding the simple trust deeds, $151,970.05 went to Zscheile, and $53,546 went to Lafayette Properties. Thus, $303,546 of the loan paid off existing encumbrances on the *608 property. The balance of the loan, $16,454, covered the costs of the loan. Ameristar received a trust deed in the amount of $320,000, which was recorded on July 7, 1988, as security for the loan. On October 15, 1988, Ameristar assigned its trust deed to First Boston Mortgage Securities Company. On the same day First Boston assigned the trust deed to Security Pacific. The record does not indicate if Ameristar ever asked Ms. Youngman whether any remodeling or construction work had been, or was being, undertaken. Ms. Youngman did, however, sign a "Fannie Mae" affidavit containing, among many other things, preprinted language that she had not "given, conveyed, permitted, or contracted for, or agreed to give, convey, or permit any lien upon the Property to secure a debt or loan." In addition, two forms prepared by Ameristar's underwriter, neither of which have Ms. Youngman's signature, have checks next to a box labeled first mortgage.
Richards filed an action against Youngman and others, ultimately including Security Pacific, asserting that his mechanics' lien was superior to the Ameristar trust deed. Richards filed for summary judgment. Richards argued that because a mechanics' lien relates back to the commencement of work and he commenced work at least by June 29, 1988, his lien was superior to the Ameristar loan recorded July 7, 1988. Security Pacific filed a cross-motion for summary judgment. Security Pacific argued that under the doctrine of equitable subrogation its mortgage had priority over Richards's mechanics' lien.
On August 20, 1991, the trial court granted Richards's motion for summary judgment against Security Pacific. In doing so, the court ruled: "Based on the undisputed facts of record and equities between the parties, the court concludes that the doctrine of equitable subrogation as claimed by defendant Security Pacific is not applicable in this case" and Security Pacific's interests were "inferior and subordinate to plaintiff's mechanics' lien."
On appeal, Security Pacific argues the trial court erred in granting Richards's motion for summary judgment. It asks us to reverse the trial court's summary judgment and hold the doctrine of equitable subrogation requires judgment in its favor.

STANDARD OF REVIEW
Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Hill v. Seattle First Nat'l Bank, 827 P.2d 241 (Utah 1992); Jones v. Bountiful City Corp., 834 P.2d 556, 558 (Utah App.1992). We examine a trial court's grant of summary judgment for correctness, according "no deference to the trial court's legal conclusions." Jones, 834 P.2d at 558. This is true whether the issue presented on summary judgment is one of law or equity. See Town of Alta v. Ben Hame Corp., 836 P.2d 797 (Utah App.1992) (applying summary judgment standard on review of an injunction); Vergote v. K Mart Corp., 158 Mich.App. 96, 404 N.W.2d 711 (1987) (applying summary judgment standard on claim for specific performance). When reviewing a grant of summary judgment, we review the record, including all inferences arising therefrom, in the light most favorable to the party opposed to the motion. Hill, 827 P.2d at 242.

I. EQUITABLE SUBROGATION
The doctrine of equitable subrogation has not often been applied in Utah. The only detailed analysis of the doctrine is in a case from early in this century, Martin v. Hickenlooper, 90 Utah 150, 59 P.2d 1139 (1936). Thus, we examine the doctrine in some detail before determining the trial court correctly refused to apply equitable subrogation in this case.

A. General Doctrine
The doctrine of equitable subrogation is widely recognized in American jurisprudence and has long been part of Utah law. See Hickenlooper, 59 P.2d at 1140-51. An individual's access to equitable subrogation as a "remedy depends upon the principles of justice, equity, and benevolence to be applied to the facts of the *609 particular case." Hickenlooper, 59 P.2d at 1140; see also Grant S. Nelson & Dale A. Whitman, Real Estate Finance Law § 10.1, at 707 (2d ed. 1985) (Nelson & Whitman). Equitable subrogation allows a creditor, who satisfies a prior creditor's lien, to acquire the lien priority of the prior creditor under certain circumstances. Hickenlooper, 59 P.2d at 1141; Nelson & Whitman, § 10.1, at 706. Because of its equitable nature, application of the doctrine "may be defeated by intervening rights which would be prejudiced." Peterman-Donnelly Engineers & Contractors Corp. v. First Nat'l Bank, 2 Ariz.App. 321, 408 P.2d 841, 846 (1965); see also Metropolitan Life Ins. Co. v. First Security Bank, 94 Idaho 489, 491 P.2d 1261, 1265 (1971). The equitable nature of the doctrine prevents articulation of an unwavering rule that applies in all cases. Hickenlooper, 59 P.2d at 1141; see also Peterman-Donnelly, 408 P.2d at 845.
Nevertheless, courts have focused on two critical questions in determining whether to apply the doctrine of equitable subrogation to grant a subsequent lender priority over an intervening lienor. First, whether there was an agreement, either express or clearly implied, that the subsequent lender would succeed to the priority position of the earlier lender. Hickenlooper, 59 P.2d at 1152. The extent to which an agreement between the lender and the debtor must be evidenced before subrogation is applied depends on the "attitude of the particular court toward subrogation."[1] Nelson & Whitman, § 10.5, at 714 (footnote omitted). Second, whether the subsequent lender had knowledge of the intervening lien. Nelson & Whitman, § 10.6, at 716. See also Collateral Investment Co. v. Pilgrim, 421 So.2d 1274 (Ala.Civ.App.1982) (holding constructive notice defeats claim under doctrine); Canton Morris Plan Bank v. Most, 44 Ohio App. 180, 184 N.E. 765 (1932) (holding actual notice defeats claim under doctrine). Because the knowledge issue is dispositive, we need not decide whether the facts of this case satisfy the agreement prong of the doctrine.[2]

B. Knowledge

1. Utah Cases
Older Utah cases provide some guidance on the issue of knowledge. In Badger Coal & Lumber Co. v. Olsen, 50 Utah 307, 167 P. 680 (1917), a mechanics' lienholder was granted priority over a later lender because the subsequent loans were not made "`in ignorance of an intervening lien.'" Id. at 682 (quoting 2 Jones on Mortgages, § 971). Thus, the supreme court recognized that a later lender with actual knowledge of an intervening lien could not take advantage of equitable subrogation.
Another early case refused to grant complete subrogation because of the earlier lender's constructive knowledge of an intervening lien. In George v. Butler, 16 Utah 111, 50 P. 1032 (1897), Butler borrowed $2500 from an investment company. He then borrowed $1000 from George. He next borrowed another $1000 from the investment company. Finally, Butler borrowed $3500 from Sutherland to pay off the investment company. Each loan was secured by the property. The mortgage Butler gave George was recorded but mis-identified the actual lot. Neither Sutherland nor the investment company had any actual knowledge of the loan from George. *610 Sutherland thought he was secured to the same extent as the investment company. The investment company thought the entire loan was secured by a first lien. George brought suit to foreclose her mortgage. The trial court subrogated Sutherland to the rights of the investment company and granted him priority as to the first $25000. 50 P. at 1033. The supreme court affirmed. Id. at 1034. Sutherland was not subrogated to the full extent of the $3500 which he loaned. The court apparently held that the investment company was constructively aware of George's intervening loan even though the recordation was imperfect. Thus, constructive knowledge was sufficient to defeat part of Sutherland's claim for subrogation even where the recordation was imperfect and he believed he was getting a first priority lien.
In Hickenlooper, Mr. Stoven executed a mortgage on some property in favor of the State of Utah. Stoven then sold the property, subject to the mortgage, to the Hickenloopers. The Hickenloopers then executed a second mortgage in favor of Martin. They then conveyed the property, subject to both mortgages, to Fritsch Loan & Trust. Fritsch then executed a mortgage in favor of Mrs. Zorn and used the money to pay off the mortgage held by the State. Joining all parties, Martin brought an action to foreclose. Mrs. Zorn asserted that, because her loan was used to pay off the State, was intended for that purpose, and Fritsch had agreed and represented to Mrs. Zorn that her lien would be a first lien, she had priority over Martin. Mrs. Zorn had no knowledge of Martin's lien. The opinion does not indicate if the lien had been recorded. However, Mrs. Zorn relied on the representations of Fritsch's agent who told her she did not need a lawyer to assure her priority.
The trial court, after a trial on the merits, found in favor of Mrs. Zorn. Hickenlooper, 59 P.2d at 1140. The Utah Supreme Court held the only issue presented was whether the trial court erred in applying the principle of subrogation. Id. Based on the promise of Fritsch that Mrs. Zorn's lien would have priority, the court held there was ample evidence an agreement that Mrs. Zorn take the priority of the State's lien, "if not expressed [was] at least implied." Id. at 1152. In its discussion, the court examined the impact of constructive notice and recognized that, in appropriate circumstances, constructive notice could defeat application of equitable subrogation based on the equities of the situation. Id. at 1143.
The more recent Utah cases applying equitable subrogation principles involve unique factual circumstances not helpful to our analysis.[3] Aside from the passing reference in Hickenlooper, Utah courts have not considered whether equitable subrogation is applicable when a subsequent lender does not have actual notice of an intervening mechanics' lien. To resolve this question we look to Utah's mechanics' lien statutory scheme and then look at how other jurisdictions have dealt with the issue.

2. Mechanics' Lien Statutes and Constructive Notice
Utah's mechanics' lien statutes exist to protect those who enhance the value of property by supplying labor or materials. Calder Bros. Co. v. Ross L. Anderson Signs, Inc., 652 P.2d 922, 924 (Utah 1982); For-Shor Co. v. Early, 828 P.2d 1080, 1081 (Utah App.1992). The statutes are construed "broadly to effectuate that purpose." Interiors Contracting, Inc. v. Navalco, 648 P.2d 1382, 1386 (Utah 1982). Mechanics' liens
relate back to, and take effect as of, the time of the commencement to do work or furnish materials on the ground for the structure or improvement, and shall have priority over any lien, mortgage or other encumbrance which may have attached subsequently ... [or] was unrecorded at the time the ... improvement was commenced, work begun, or first material furnished on the ground. *611 Utah Code Ann. § 38-1-5 (1988). "[T]he presence of building materials upon the land or other visible evidence of work performed provides notice to any interested party that work has commenced." Calder Bros., 652 P.2d at 924 n. 1. Thus, the unique aspect of a mechanics' lien is that commencement of visible work is treated as imparting constructive notice of a lien.[4]See First of Denver Mortgage Investors v. C.N. Zundel & Assoc's., 600 P.2d 521 (Utah 1979).
A number of courts have concluded constructive notice under mechanics' lien statutes defeats application of equitable subrogation. See, e.g., Collateral Inv. Co. v. Pilgrim, 421 So.2d 1274 (Ala.Civ.App.1982); Carl H. Peterson Co. v. Zero Estates, 261 N.W.2d 346 (Minn.1977); Cheswick v. Weaver, 280 S.W.2d 942 (Tex.Civ.App. 1955).[5] In Collateral, a construction company executed construction money mortgages for condominiums on the property in question. Pilgrim supplied lighting equipment and related fixtures for the projects. Homeowners purchased the finished condominiums. Collateral Investment loaned the homeowners money in return for a purchase money mortgage. It instructed the closing agents that it wanted to acquire an interest subject to no other lien. At closing, Collateral Investment paid off the construction money mortgages and the construction company executed an affidavit that no other liens existed. Pilgrim recorded notice of his mechanics' liens after the closing. The trial court held Pilgrim's liens had priority over Collateral Investment's mortgages.
On appeal, Collateral Investment argued it should be equitably subrogated to the construction mortgages. The appeals court affirmed on two grounds. First, Collateral Investment did not advance the money on behalf of the debtor. Collateral, 421 So.2d at 1276. Second, Collateral Investment had knowledge of the intervening lien. The court held that under Alabama's mechanics' lien statutes, when a mortgage company finances a new building it is under constructive notice that a mechanics' lien "is statutorily permissible for six months." Id. at 1277.
The Minnesota Supreme Court, in Carl H. Peterson Co. v. Zero Estates, 261 N.W.2d 346 (Minn.1977), reached a similar result with a slightly different rationale. That court rejected a bank's argument a second mortgage executed by the debtor, which paid off the bank's first loan, should be subrogated to that loan and thus gain priority over intervening mechanics' liens. In affirming the trial court's grant of priority to the mechanics' lienholders, the court relied on the commercial sophistication of the bank and its ability to identify and obtain subordination agreements from those lienholders. It also noted the mechanics' lienholders were "innocent parties whose rights could be substantially impaired" if the bank was given priority. Id. at 348. Without directly saying so, the court appears to have held the bank had constructive notice of the intervening liens, and thus could not claim to have a reasonable expectation of priority arising in equity.
We conclude the constructive notice provided by Utah's mechanics' lien statutes defeats a claim for equitable subrogation. The mechanics' lien statutes are an expression of legislative intent that should stay the hand of equity in this situation. If we held otherwise, we would violate the equitable maxim that equity follows the law. Thus, because Richards commenced visible work on the property at least seven days prior to the Ameristar refinancing, Security *612 Pacific had constructive knowledge of the mechanics' lien via our mechanics' lien statutes. See Utah Code Ann. § 38-1-5 (1988); Calder Bros., 652 P.2d at 924 n. 1. Because equitable subrogation is not available to a later lender who has knowledge of an intervening lien, we conclude the trial court was correct in rejecting Security Pacific's attempt to use the doctrine.
Security Pacific argues that Richards receives a windfall simply because the property was refinanced. If we held against Richards, however, Security Pacific would receive the windfall. They would have the value of his work without having paid anything for it. Given the legislature's creation of a specific statutory preference for mechanics' lienholders, if the question is framed as a choice between which party should receive a windfall, we believe it should be the mechanics' lienholder.
In addition, the fact there have been few equitable subrogation cases before the courts in recent years underscores the argument that commercially sophisticated lenders should protect themselves in contract. Commercial lenders can easily examine the property, ask specific questions regarding the existence of intervening lienholders, acquire subordination agreements with any lienholders that exist, or, in many cases, assume the rights of the earlier lender by assignment. In contrast, asking mechanics and materialmen to stay apprised of the state of title for each property they perform work on adds a layer of legal complexity that many have no capacity to incorporate into their businesses. Given the statutory protection granted mechanics' lienholders, it is much more appropriate to have commercial lenders bear the burden of protecting themselves.[6]

II. ATTORNEY FEES
Counsel for Richards asks that we remand the case to the trial court for an award of costs and attorney fees in accord with Utah's mechanics' lien statutes. The Utah mechanics' lien statutory scheme provides for attorney fees to a party that must undertake court action to recover on the lien. The Utah Code provides: "In any action brought to enforce any lien under this chapter the successful party shall be entitled to recover a reasonable attorneys' fee, to be fixed by the court, which shall be taxed as costs in the action." Utah Code Ann. § 38-1-18 (1988). An appeal from a suit brought to enforce a lien qualifies as part of "an action" for the purposes of this section. See Govert Copier Painting v. Van Leeuwen, 801 P.2d 163, 174 (Utah App.1990). Because Richards is the successful party he is entitled to attorney fees. We therefore remand for the entry of the appropriate fees in favor of Richards.

CONCLUSION
We conclude that under Utah's mechanics' lien statutes a subsequent lender has constructive notice of intervening mechanics' liens. Thus, we affirm the trial court's ruling that Security Pacific is not entitled to utilize the doctrine of equitable subrogation to defeat Richards's mechanics' lien. We, therefore, remand this case to the trial court for entry of a judgment including reasonable attorney fees and costs for this appeal in favor of Richards.
ORME and BENCH, JJ., concur.
NOTES
[1]  For example, Texas courts infer an agreement to subrogate from the fact of a loan. See Diversified Mortgage Investors v. Lloyd D. Blaylock General Contractor, Inc., 576 S.W.2d 794 (Tex. 1978). In contrast, Wisconsin requires a definite agreement plus a balancing of the equities that shows subrogation should be applied as a matter of doing justice. See Rock River Lumber Corp. v. Universal Mortgage Corp., 82 Wis.2d 235, 262 N.W.2d 114, 117 (1978).
[2]  See Metropolitan Life Ins. Co. v. First Security Bank, 94 Idaho 489, 491 P.2d 1261, 1265 (1971) (reasoning the later lender "should not be rewarded in equity for their negligence in failing to take a specific assignment of the rights" of the earlier creditor); Southwest Title & Trust Co. v. Norman Lumber Co., 441 P.2d 430, 434 (Okla.1968) (upholding trial court's rejection of trust company's equitable subrogation claim in favor of mechanics' lienholder because no clear agreement to subrogate); Rock River Lumber Corp. v. Universal Mortgage Corp., 82 Wis.2d 235, 262 N.W.2d 114 (1978) (requiring "definite agreement" and assessment of equities prior to applying subrogation).
[3]  See Tracy-Collins Trust Co. v. Goeltz, 5 Utah 2d 350, 301 P.2d 1086 (1956); Horton v. Horton, 695 P.2d 102 (Utah 1984).
[4]  Whether the work done by Richards was sufficient to meet the visible commencement standard is not an issue in this case. See King Bros., Inc. v. Utah Dry Kiln Co., 13 Utah.2d 339, 374 P.2d 254 (1962) (remanding case for factual findings on visible commencement issue). Security Pacific did not raise the issue below. It conceded the work commenced prior to June 29 for purposes of the mechanics' lien statutes.
[5]  Another court implied it would hold constructive notice defeats equitable subrogation. See Metropolitan Life Ins., Co. v. First Security Bank, 94 Idaho 489, 491 P.2d 1261 (1971); but see Smith v. State Savings & Loan Assoc., 223 Cal. Rptr. 298, 301, 175 Cal.App.3d 1091, 1099 (Cal. App.1985) (holding constructive knowledge insufficient to defeat application of subrogation).
[6]  Furthermore, this case illustrates the wasteful nature of litigation over the doctrine of equitable subrogation. Plaintiff's five thousand dollar lien has most recently been the subject of a judgment, including costs and fees, of nearly ten thousand dollars. That does not include the costs or fees relating to this appeal, which plaintiff also recovers. The nature of situations in which equitable remedies are applicable are highly fact sensitive and will always require a significant amount of legal work to present. Thus, encouraging simple contractual solutions is sound public policy.


103 F.3d 131
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Joe Mitchell LITTLETON, Defendant-Appellant.
No. 95-5917.
United States Court of Appeals, Sixth Circuit.
Dec. 3, 1996.

1
Before:  NELSON and NORRIS, Circuit Judges;  COHN, District Judge.*

2
COHN, District Judge.

3
This is a sentencing appeal.  Defendant-appellant Joe Mitchell Littleton (Littleton) pled guilty to sixteen counts of Possession and Mailing of Obscene Material, 18 U.S.C. § 1461, and was sentenced to thirty-six months imprisonment with three years of supervised release with conditions.  The obscene mailing charges arose out of mailing by Littleton of sexually graphic photographs and letters to sixteen young women.  The sentencing court, following the United States Sentencing Guidelines (Nov. 1994) and the recommendations in the presentence report, determined that the sentencing guidelines called for a sentencing range of fifteen to twenty-one months.  The sentencing court granted the government's motion for an upward departure, however, because the case was atypical and there were aggravating circumstances.

4
Littleton argues on appeal that the sentencing court erred in granting an upward departure from the sentencing guidelines.  Littleton also argues that the sentencing court erred by imposing the following conditions on his supervised release:  (1) that he register as a sex offender;  (2) that he abstain from alcohol;  and (3) that he submit to a plethysmography test.  The government argues in response that the sentencing court correctly enhanced Littleton's sentence and imposed these conditions to ensure Littleton's rehabilitation and to protect the public.  For the reasons that follow, Littleton's sentence will be affirmed, and we decline to review the conditions of his supervised release.

I.
A.

5
Between December 1, 1992, and September 21, 1994, Littleton mailed sexually graphic photographs and letters to sixteen young women aged ten to fourteen.  He also telephoned the young women anonymously and harassed them.

6
Littleton found these young women through local Tennessee newspapers, which had published their pictures and names for various reasons.  He mailed them explicit photographs of his sex organ in an offensive configuration.  He also sent letters explicitly describing unseemly sexual acts that he would like to perform with the young women.

7
At the time of his arrest, Littleton admitted his offenses, stating that he was sick and unable to control his behavior.

B.
1.

8
Littleton pled guilty to sixteen counts of intentionally using the United States mails to deliver obscene material.

9
In determining the sentence for Littleton's offense, the sentencing court applied USSG § 2G3.1.  Section 2G3.1 establishes a base offense level of ten.  The sentencing court enhanced the base offense level by applying USSG §§ 3A1.1 and 3D1.4.  Section 3A1.1 adds two levels because there were vulnerable victims, i.e. children.  Section 3D1.4 enhances the base offense level for multiple counts, adding a maximum of five levels for five counts or more of the same offense.  The sentencing court also deducted three levels because Littleton accepted responsibility for his offenses.  USSG § 3E1.1.  The sentencing court applied these guidelines as follows:

10
Base                     Base offense
level  10  USSG § 2G3.1  level for 18
                         U.S.C. § 1461
  +    2   USSG § 3A1.1  Vulnerable victims
  +    5   USSG § 3D1.4  Multiple counts
  -    3   USSG § 3E1.1  Acceptance of responsibility
  =    14

11
The sentencing court calculated Littleton's offense level as fourteen.  Because this was Littleton's first offense, he had a criminal history category of "I."   Under the sentencing guidelines, these variables translate to a sentence of fifteen to twenty-one months.

12
The sentencing court also took note of the presentence report's comments on the impact on the victims.  It states:

13
There is one common theme which all parents and victims have noted from this crime, that is, that Joe Mitchell Littleton stole their children's childhood....  Littleton's portrayal of sexual behavior terrified all of the victims, each one stating the questions "why me" and "is he going to get me."

14
The presentence report also described the victims' personal struggles.  At least one young woman's grades dropped significantly, and many lost sleep and were afraid to leave their homes.  One victim's family packed their belongings and moved to another state without leaving a forwarding address.  After receiving mail from Littleton, one young woman started to use drugs and another developed anorexia nervosa.

2.

15
The United States Attorney moved for an upward departure, arguing that the Sentencing Commission did not adequately consider this kind of case when it set the sentencing guideline for mailing obscene matter.  According to the U.S. Attorney, the applicable sentencing guideline generally applies to mail between consenting adults.  Although the guidelines provide for a two-level increase for vulnerable victims and a five-level increase for multiple counts, the U.S. Attorney argued that these increases insufficiently reflected the kind and degree of aggravating circumstances existing in Littleton's case.

3.

16
At Littleton's sentencing hearing, the sentencing court heard testimony from a clinical psychologist, from Littleton, and from the victims' parents.

17
The court-appointed clinical psychologist who examined Littleton diagnosed him as a moderate risk pedophile.  The clinical definition of pedophilic behavior includes such actions as exposing oneself to children;  touching or fondling children;  and penetrating a child's orifices with foreign objects or one's own genitals.  The psychologist testified that, to her knowledge, Littleton had committed none of these acts, but that his behavior was within the clinical definition.

18
The psychologist also testified that Littleton had many "limited risk factors."   She noted his acceptance of responsibility;  his family support;  his good work history;  the nonviolent nature of his crime;  and the fact that this was his first offense.  Nevertheless, the psychologist diagnosed Littleton as a moderate risk because she found him to be confused about the morality of his offense.  She also said that Littleton "uses drugs and alcohol," and that "he would be a lower risk" if he did not use these substances.

19
The psychologist recommended that Littleton receive treatment at the Butner, North Carolina, Federal Prison facility (FCI Butner), which has a twelve- to twenty-four-month treatment program for sex offenders.  At the time of the hearing, there was a waiting period for participation in the program.

20
Littleton testified at the sentencing hearing that he was sorry for the harm he had caused the victims.  Parents of the victims testified that Littleton had terrorized their daughters and urged the court to impose a harsh sentence.

4.

21
The sentencing court granted the government's motion for upward departure and sentenced Littleton to thirty-six months imprisonment for each count, with terms to be served concurrently.

22
The sentencing court found that Littleton's offense was atypical and contained aggravating circumstances, thereby warranting an upward departure under USSG § 5K2.0.  The sentencing court said:

23
It seems that the guidelines adopted for violating this statute take into consideration situations where pornographic material is mailed between, for instance, two consenting adults for distribution.  Not necessarily pornographic material being sent to minors by an adult.  This I think is a distinction that is important and one that the Court feels warrants an upward departure in this case.

24
The sentencing court also found aggravating circumstances because there were numerous violations over a period of ten years, and the victims felt terrorized.  The sentencing court recommended that Littleton participate in the twenty-four-month program at FCI Butner.

25
The sentencing court also sentenced Littleton to three years of supervised release with conditions that he abstain from alcohol, submit to a treatment program that uses plethysmography, and register as a sex offender.  Littleton did not object to these conditions.

II.

26
Littleton first argues that the sentencing court erred by upwardly departing because his offense was not atypical and the circumstances not so aggravating as to warrant an upward departure.

27
We review an upward departure for abuse of discretion.  Koon v. United States, 116 S.Ct. 2035, 2047-48 (1996).  "A district court's decision to depart from the Guidelines ... will in most cases be due substantial deference, for it embodies the traditional exercise of discretion by a sentencing court."  Id. at 2046.  The Koon abuse-of-discretion standard replaces the three-part test we have applied in past cases.  United States v. Barajas-Nunez, 91 F.3d 826, 831 (6th Cir.1996).

28
A sentencing court is permitted to "depart" from the sentencing guidelines if it finds "an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described."  18 U.S.C.A. § 3553(b) (1996);  USSG Ch. 1, Pt. A, at 4(b) (Nov.1994).

29
The sentencing court noted several aggravating factors warranting an upward departure.  Littleton's crime differed significantly from the great majority of crimes under 18 U.S.C. § 1461, which typically involve commercial transactions in which the defendant either orders or fills orders for obscene material.  There were also many victims, all of whom had been particularly vulnerable to Littleton's messages.

30
When a sentencing court gives multiple reasons for an upward departure, we will affirm if any one of the reasons would justify departure.  United States v. Hart, 70 F.3d 854, 862 (6th Cir.1995), cert. denied, 116 S.Ct. 1368 (1996).  The circumstances here are so different from the "heartland" case under 18 U.S.C. § 1461 that this alone provides sufficient reason for the sentencing court to upwardly depart from the sentencing guidelines.

31
The guidelines themselves indicate that convictions under 18 U.S.C. § 1461 do not typically resemble Littleton's offenses.  The guidelines read:  "Most federal prosecutions for offenses covered in this guideline are directed to offenses involving distribution for pecuniary gain."  USSG § 2G3.1, comment.  (backg'd.).1  Littleton did not act for monetary gain when he sent obscene materials to non-consenting minors.  In addition, his communications frightened and threatened the recipients, contrary to typical 18 U.S.C. § 1461 cases.

32
The sentencing court reasonably increased Littleton's sentence from a maximum of twenty-one months to thirty-six months.  Though it could have been more specific, the sentencing court apparently set the sentence to permit Littleton to fulfill the waiting period for, and then to participate in, the 24-month Sex Offender Treatment Program at FCI Butner.  Pursuant to the standards for upward departure under 18 U.S.C. § 3553(b), the sentencing court imposed an "appropriate" sentence with due regard for the policy initiative of providing "the defendant with needed ... correctional treatment in the most effective manner."  18 U.S.C. § 3553(a)(2)(D).  The sentencing court therefore acted within its discretion in imposing the sentence.2

III.

33
Littleton also argues that the sentencing court erred when it imposed conditions on his supervised release.  He argues that abstention from alcohol has no relation to his recovery;  that registration as a sex offender is impossible;  and that the requirement that he undergo a plethysmography test as part of treatment is beyond the power of the sentencing court to order.

34
These conditions are unripe for review.  Littleton is not yet subject to these conditions, and we do not yet know whether these conditions will have any relation to Littleton's recovery.  See United States v. Schoenborn, 4 F.3d 1424, 1434 (7th Cir.1993);  United States v. Linares, 921 F.2d 841, 843 (9th Cir.1990).

35
We review conditions of supervised release to determine whether they are "reasonably related to the goals of probation, rehabilitation of the defendant, and the protection of the public."  United States v. Berridge, 74 F.3d 113, 118 (6th Cir.1996).  The effects of Littleton's future therapy in the Sex Offender Treatment Program at FCI Butner are unknown.  Because the treatment program may precipitate a change in Littleton's behavior and attitudes, we do not yet know if the challenged conditions will be reasonably related to his recovery at the time of his release from the program.  It is premature to examine the possibility at this time.

36
Upon his release from the program, Littleton may request that these conditions be modified under 18 U.S.C.A. § 3583(e) (1996).  Conditions of Littleton's supervised release must involve "no greater deprivation of liberty than is reasonably necessary" to accomplish the goals of rehabilitation and protection of the public.  Id. § 3583(d)(2).  After the full effects of Littleton's treatment are known, and if Littleton still believes that any of the conditions are not reasonably related to the goals of probation, Littleton can take the matter up with the sentencing court.  If he is dissatisfied with the sentencing court's decision regarding modification, he has the right to ask this Court to review the conditions of his supervised release.  See United States v. Bortels, 962 F.2d 558, 560 (6th Cir.1992).

IV.

37
For the reasons stated above, the sentencing court correctly applied the sentencing guidelines.  Littleton's sentence is AFFIRMED.

*
 The Honorable Avern Cohn, United States District Judge for the Eastern District of Michigan, sitting by designation

1
 Sixth Circuit cases of convictions under 18 U.S.C. § 1461 have almost uniformly involved the "heartland" case of commercial dealings in obscenity.  See, e.g., United States v. Kussmaul, 987 F.2d 345, 347 (6th Cir.1993);  United States v. Easley, 942 F.2d 405, 406-07 (6th Cir.1991);  United States v. Johnson, 855 F.2d 299, 300 (6th Cir.1988)

2
 Littleton argues that the sentencing court erred because it failed to explain why it skipped the next higher criminal history category in setting his sentence.  See United States v. Schultz, 14 F.3d 1093, 1102 (6th Cir.1994).  The argument is inapposite, because the sentencing court did not upwardly depart from the sentencing guidelines by enhancing Littleton's criminal history category.  The sentencing court apparently increased Littleton's offense level, based upon, inter alia, the atypical offense and numerous victims.  The rationale for upward departures in criminal history category is different than that for increases of offense level.  No precedent requires that a sentencing court specifically add offense levels and justify each added level.  But see United States v. Tsosie, 14 F.3d 1438, 1443 (10th Cir.1994) ("Explanation of why a departure is made cannot fulfill the separate explanation of the degree of departure.")


223 Ga. 174 (1967)
154 S.E.2d 246
HINTON
v.
THE STATE. ANDERSON
v.
THE STATE.
23956, 23957.
Supreme Court of Georgia.
Submitted February 14, 1967.
Decided February 23, 1967.
Rehearing Denied March 9, 1967.
*175 C. B. King, for appellants.
NICHOLS, Justice.
1. It was stipulated that defendants were represented by counsel on April 5, 1966, that commitment hearings were held on the fifth and sixth of April, 1966, where the defendants were represented by counsel and the indictments were returned on April 26, 1966. No challenge to the array of the grand jury was made prior to indictment although the defendants were represented by counsel and had been represented by counsel for three weeks prior to such indictments. Under the decision in Blevins v. State, 220 Ga. 720 (3) (141 SE2d 426), and the numerous cases cited therein, the motions to quash the indictments on this ground are without merit as such contention must be treated as having been waived.
2. The challenge to the array of the traverse jury was properly overruled. The contention of the defendants is basically the same as that made in Whitus v. State, 222 Ga. 103 (149 SE2d 130), reversed by the United States Supreme Court (Whitus v. Georgia, 385 U. S. 545 (87 SC 643, 17 LE2d 599)), and it is contended that such decision is controlling in the cases *176 sub judice. The decision in that case, based upon entirely different circumstances, in nowise controls the present cases. While in both cases the jury was selected from a segregated tax digest as was required by Georgia statutes (this is no longer required, see Ga. L. 1966, p. 393), there the similarity ends. The evidence in the Whitus case showed a "revision" of an old jury list which had previously been declared to show discrimination while in the present case the evidence showed a completely new jury list made up from the tax digest without reference to the old jury list. In Whitus the jury commissioners relied completely upon their own knowledge of the people in the community while in the present cases the jury commissioners sought information from others including a Negro business man in the community.
These cases arose in Crisp County, as did the case of Brookins v. State, 221 Ga. 181 (144 SE2d 83), where the same question was presented for decision and the jury selection approved. The evidence in the Brookins case was stipulated as part of the evidence in the present cases and the additional evidence adduced in no way requires a different result. The percentages of Negroes on the tax digest in Crisp County were shown to be 22 percent and on the traverse jury actually drawn 13.7 percent (44 white and 7 Negro). This is not such a disparity as to authorize a conclusion on this ground alone that discrimination exists. See Brookins v. State, supra, citing Swain v. Alabama, 380 U. S. 202 (85 SC 824, 13 LE2d 759). Nor is the requirement that jurors be selected from a tax digest unconstitutional as contended by the defendants. See Brown v. Allen, 344 U. S. 443 (73 SC 397, 97 LE 469).
3. In case numbered 23957 the defendant demurred and sought to attack the constitutionality of the statutes under which he was indicted as being too vague and uncertain to set forth a standard of conduct and therefore a violation of the due process clause of the Constitution of the United States as secured by the Fourteenth Amendment and the due process clause of the Constitution of the State of Georgia.
Code § 26-7202 provides: "Contemptuous use or defacement.  It shall also be unlawful for any person, firm or corporation to mutilate, deface, defile or contemptuously abuse the flag or *177 national emblem of the United States by any act whatever. (Acts of 1917, p. 203)." The Act of 1960, supra, insofar as the case sub judice is concerned makes unlawful the same conduct as it applies to the flag or emblem of the State of Georgia.
In Halter v. Nebraska, 205 U. S. 34, 41 (27 SC 419, 51 LE 696), the United States Supreme Court upheld a statute of the State of Nebraska which prohibited the use of the national flag as a part of any advertisement. The basis of such decision was the right of the people to protect such flag from disrespectful conduct and insults. The statute upon which Code Ch. 26-72 is based was enacted after the decision in Halter v. Nebraska, supra, and followed the language of the Nebraska statute. Accordingly, it must be assumed that the General Assembly was cognizant of the above decision. It was there held: "One was loves the Union will love the State in which he resides, and love both of the common country and of the State will diminish in proportion as respect for the flag is weakened. Therefore a State will be wanting in care for the well-being of its people if it ignores the fact that they regard the flag as a symbol of their country's power and prestige, and will be impatient if any open disrespect is shown towards it." The conduct sought to be prohibited by such statute is conduct which shows open disrespect for such flag, and no question of freedom of speech is here involved. The language of such statute making it unlawful to mutilate, deface, defile or contemptuously abuse such flags by any act is not vague, uncertain or indefinite, and such statutes are accordingly not unconstitutional for any reason urged in the demurrers attacking them. Nor was the indictment, which expressly stated the unlawful conduct of the defendants, subject to demurrer as being vague or uncertain.
(a) In view of the holding in the preceding division of the opinion it was not error, in the absence of a proper request, to fail to define in the charge to the jury the terms contained in such statutes which needed no definition in order to be understood by the jury.
4. The next enumeration of error to be dealt with concerns a motion for mistrial which was overruled in case numbered 23956. After deliberation the jury returned to the courtroom *178 and its verdict was published. Counsel for the defendant then began to poll the jury and as the second juror was being polled a colloquy took place which counsel for the defendant interpreted as showing that the verdict returned was not the verdict of such juror. At this point, on motion of the solicitor general, the jury was instructed to return to the jury room and return a unanimous verdict if possible and if not possible to so inform the court. After further deliberation the jury returned to the courtroom and published another verdict which apparently (as far as can be observed from the transcript), consisted of the original written verdict with the additional words "by unanimous vote" added after "guilty." Counsel for the defendant objected to such verdict as not being a new verdict but the same verdict on which a question arose and requested that the jury be instructed to return to the jury room and write out a new verdict which request was granted. Again the jury returned to the jury room and at this point counsel for the defendant moved for a mistrial based upon the colloquy which took place when the jury was being polled after the original verdict was published. This motion was overruled and thereafter the jury returned to the courtroom with a rewritten verdict of guilty and upon being polled each member of the jury affirmed that it was his verdict.
The procedure followed by the trial court in directing the jury to return to the jury room and arrive at a unanimous verdict if possible was not error as this is the proper procedure where a poll of the jury discloses other than a unanimous verdict of the jury. Macon R. & Light Co. v. Barnes, 121 Ga. 443, 448 (49 SE 282).
(a) Nor was it, after the verdict was published and the jury returned to the jury room to correct it as to form, error to overrule a motion for mistrial or hear evidence because of the alleged incompetency of one of the jurors.
5. All who participate in the commission of a misdemeanor are principals. Parmer v. State, 91 Ga. 152 (16 SE 937); Crocker v. State, 103 Ga. App. 870 (121 SE2d 166).
"Intention may be manifested by the circumstances connected with the perpetration of the offense, and the sound mind and discretion of the person accused." Code § 26-202.
*179 The evidence disclosed that the defendants were involved in a "freedom march" in Crisp County, Georgia, and a crowd (estimated by various witnesses to be as many as 250 persons) had gathered at the county courthouse. The defendants moved over to the flagpole and proceeded to lower the flags. The defendant Hinton in his unsworn statement said the Negro community was in a state of mourning and he intended to lower the flag to half-mast to symbolize the state of mourning. The defendant Anderson made no statement. At this point, as the flag was being lowered others in the group closed in, removed the flags from the lanyard, actually tearing the American flag and damaging the State flag, both of which were displayed to the jury, and proceeded to shake the flags in the faces of the police officers who were stationed nearby. At this point James Burch took possession of the flags from the demonstrators and delivered them to the county authorities. The evidence authorized the verdicts.
Judgments affirmed. All the Justices concur.


596 F.Supp. 1546 (1984)
ORA CORPORATION, Plaintiff,
v.
Gordon R. VINSON; Fortune, Inc.; North Carolina Palco Company, Inc.; Intercel Chemistries, Inc.; Robert F. Schmunk; A.C. Palmer; A.C. Palmer d/b/a Chemical Services Co.; and Harold E. Sullivan, Defendants.
and
Robert F. SCHMUNK and Intercel Chemistries, Inc., As Third-Party Plaintiffs,
v.
Robert B. WILSON, a/k/a Robert B. Wilson, Jr., Third-Party Defendant.
Civ. A. No. 84-444-14.
United States District Court, D. South Carolina, Greenville Division.
November 14, 1984.
R. David Massey, R. Scott Tewes, Brown & Hagins, P.A., Greenville, S.C., John P. Freeman, Columbia, S.C., for plaintiff, Ora Corp.
James M. Herring, Herring & Meyer, Hilton Head Island, S.C., for defendants, Gordon R. Vinson, Fortune, Inc. and North Carolina Palco Company, Inc.
Larry D. McDonald, Greenville, S.C., for defendants and third-party plaintiffs, Intercel Chemistries, Inc. and Robert F. Schmunk.
Albert Q. Taylor, Jr., Leatherwood, Walker, Todd & Mann, Greenville, S.C., for defendant, Harold E. Sullivan.
R. Scott Tewes, Brown & Hagins, P.A., Greenville, S.C., for third-party defendant, *1547 Robert B. Wilson, a/k/a Robert B. Wilson, Jr.

ORDER
WILKINS, District Judge.
Defendant Harold Sullivan moves to dismiss Plaintiff's claims brought under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.A. §§ 1961-1968 (West Supp.1970-1983), for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). He asserts that a civil RICO claim must include allegations of criminal convictions of the alleged racketeering activities and a separate and distinct "racketeering injury" to constitute a cognizable cause of action. His motion was denied by an order issued from the bench on October 23, 1984. The Court now sets forth more fully the basis for its decision.
Plaintiff alleges that Defendants conspired and instigated a scheme to deprive it of waste acid shipments and of payments for disposal of the shipments. Plaintiff further alleges that Defendants conspired and operated an enterprise through a pattern of mail and wire fraud activities in violation of RICO. Defendant Sullivan contends that this alleged conduct constitutes mere fraud and not the type of corrupt business practices which Congress intended RICO to eradicate.
In determining the scope of the RICO provisions, the Court must first look to the language of the statute, United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981), which Congress has dictated "shall be liberally construed to effectuate its remedial purposes." RICO, Pub.L. No. 91-452, § 904(a), 84 Stat. 922, 947 (1970). Plaintiff alleges a violation of Section 1964(c) which provides a civil remedy of treble damages and costs for "[a]ny person injured in his business or property by reason of a violation of section 1962." Defendants are charged with violating the following portions of Section 1962:
(a) It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity or through collection of an unlawful debt in which such person has participated as a principal within the meaning of section 2, title 18, United States Code, to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce....
(b) It shall be unlawful for any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.
(c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.
(d) It shall be unlawful for any person to conspire to violate any of the provisions of subsections (a), (b), or (c) of this section.
The term "racketeering activity" includes "any act which is indictable under any of the following provisions of title 18, United States Code: ... section 1341 (relating to mail fraud), section 1343 (relating to wire fraud)...." Section 1961(1)(B). A `"pattern of racketeering activity" requires at least two acts of racketeering activity, one of which occurred after the effective date of this chapter and the last of which occurred within ten years ... after the commission of a prior act of racketeering activity.' Section 1961(5). The term `"enterprise" includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals *1548 associated in fact although not a legal entity.' Section 1961(4).
The Court recognizes the capacious language of RICO provides a federal forum and new remedies for acts which previously would have been cognizable at the state level or pursuant to other federal statutes. However, the language of RICO and its legislative history indicate that Congress "was alerted to the far-reaching implications of [RICO]," Schacht v. Brown, 711 F.2d 1343, 1361 (7th Cir.1983), cert. denied, ___ U.S. ___, 104 S.Ct. 508, 78 L.Ed.2d 698 (1983), and that Congress "was well aware that it was entering a new domain of federal involvement through the enactment of this measure," United States v. Turkette, 425 U.S. at 586, 101 S.Ct. at 2530. Courts are without authority to restrict the plain meaning of RICO. Id. at 587, 101 S.Ct. at 2530. Accordingly, this Court holds that the clear language of RICO does not require the additional elements suggested in the motion to dismiss. Even if changes to the language of RICO would offer improvement, a court does not have the authority to redraft legislative acts. These additional elements may be added only by legislative action and not judicial edict. Neither should a court use the veil of "interpretation" to engage in legislating.

PRIOR CRIMINAL CONVICTIONS
Defendant Sullivan urges the Court to follow Sedima, S.P.R.L. v. Imrex Co., Inc., 741 F.2d 482, 503 (2d Cir.1984), which required prior criminal convictions of the alleged predicate racketeering activities. The Court declines to follow Sedima for several reasons. A racketeering activity is defined as an act "which is chargeable under State law" or which is "indictable under" any of several listed provisions of federal law. Section 1961(1). This clear language rebuts the contention that Congress intended to require a criminal conviction as a prerequisite to a civil RICO suit. If Congress had intended to require a prior conviction it could have easily said so. The words "chargeable" and "indictable" simply do not mean convicted. Congress did not intend for an injured litigant's civil recourse to depend on the exercise of prosecutorial discretion or, if the decision to prosecute is made, the outcome of a criminal trial. Also, other courts have refused to limit the scope of RICO by requiring prior criminal convictions of the predicate offenses. Bunker Ramo Corp. v. United Business Forms, Inc., 713 F.2d 1272, 1287 (7th Cir.1983); USACO Coal Co. v. Carbomin Energy, Inc., 689 F.2d 94, 95 n. 1 (6th Cir.1982).
While the Fourth Circuit has not directly addressed this issue, the court recently reversed the dismissal of a RICO claim for failure to state a meritorious cause of action. Battlefield Builders, Inc. v. Swango, 743 F.2d 1060 (4th Cir.1984). The Court held that the appellant had sufficiently alleged predicate racketeering activities, extortion and attempted extortion, under the applicable state law, and that the cause of action was therefore "immune to a Rule 12 motion to dismiss." Id. at 1063. The court upheld the sufficiency of the RICO claim apparently without requiring the additional element of prior criminal convictions of the racketeering activities. Accordingly, this Court finds that the plain language of the statute and weight of authority preclude the requirement of prior criminal convictions of predicate offenses as a prerequisite to a civil RICO suit.[1]

*1549 RACKETEERING INJURY
Defendant Sullivan also urges the Court to hold that a cognizable civil RICO claim must include an allegation of a "racketeering injury" separate and distinct from the injury caused by the commission of the predicate racketeering activities. RICO requires that a plaintiff allege an injury to his business or property "by reason of a violation of section 1962," which renders unlawful the operation of an enterprise through a pattern of predicate racketeering activities. Accordingly, a RICO plaintiff must allege injury resulting from the commission of at least two predicate offenses. There simply is no requirement that a plaintiff assert an additional "competitive" or "racketeering" injury resulting from the racketeering enterprise. E.g., Schacht v. Brown, 711 F.2d at 1358; Kitchens v. U.S. Shelter, No. 82-1951-1, at 17; Mauriber v. Shearson/American Express, Inc., 567 F.Supp. 1231, 1240-41 (S.D.N.Y.1983); see Furman v. Cirrito, 741 F.2d 524, 533 (2d Cir.1984). Moreover, the separation of a "racketeering" injury from an injury resulting from the predicate racketeering activities creates an artificial distinction, for any alleged injury from the operation of the enterprise emanates from the commission of the predicate acts. Accordingly, the Court finds that a "competitive" or "racketeering" injury is not a required element of a cognizable civil RICO claim.
The motion to dismiss is therefore denied.
AND IT IS SO ORDERED.
NOTES
[1]  The Court notes that a connection with organized crime is often associated with the alleged requirement of prior criminal convictions. However, a nexus to organized crime has been uniformly rejected by a majority of courts addressing this issue. Owl Construction Co., Inc. v. Ronald Adams Contractor, Inc., 727 F.2d 540, 542 (5th Cir.1984) cert. denied, ___ U.S. ___, 105 S.Ct. 118, 83 L.Ed.2d 61 (1984); Moss v. Morgan Stanley, Inc., 719 F.2d 5, 21 (2d Cir.1983), cert. denied, ___ U.S. ___, 104 S.Ct. 1280, 79 L.Ed.2d 684 (1984); Bunker Ramo Corp. v. United Business Forms, Inc., 713 F.2d at 1287 n. 6; Bennett v. Berg, 685 F.2d 1053, 1063 (8th Cir.1982), aff'd en banc, 710 F.2d 1361 (8th Cir.1983), cert. denied, ___ U.S. ___, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983); Kitchens v. U.S. Shelter, No. 82-1951-1, at 13 (D.S.C. Oct. 29, 1984) (order denying dismissal). This Court joins the majority in rejecting such a limitation of the scope of RICO.


12 Utah 2d 190 (1961)
364 P.2d 418
PETER M. LOWE, SPECIAL ADMINISTRATOR OF THE ESTATE OF T.O. NELSON, DECEASED, PLAINTIFF AND APPELLANT,
v.
MAX ROSENLOF AND MAX ROSENLOF CONSTRUCTION COMPANY, A PARTNERSHIP, DEFENDANTS AND RESPONDENTS.
No. 9348.
Supreme Court of Utah.
August 29, 1961.
Peter M. Lowe, Salt Lake City, for appellant.
Clyde & Mecham, Salt Lake City, for respondents.
McDONOUGH, Justice.
Appeal by the Special Administrator of the Estate of T.O. Nelson from a judgment of the district court, the details of which we set out below. Hereinafter where plaintiff is referred to the reference is to T.O. Nelson.
On March 3, 1958, the defendants as holders of the prime contract for the construction of a new high school building in Lehi, Utah, awarded plaintiff the subcontract for doing the concrete work on the project. Due to the plaintiff's lack of funds, and in order to get the job under way, the defendants also cosigned with the plaintiff on a note to secure a $1,000 loan. Work commenced under the contract about the middle of March, 1958, and plaintiff continued forming and placing the concrete pursuant thereto until the evening of September 9, at which time some 73% of the concrete for the building had been poured. On the morning of September 10, the defendant Max Rosenlof "took over" the concrete work and subsequently completed it, using plaintiff's men, tools, materials, and prefabricated forms.
The action below was brought to recover damages for an alleged breach of the written subcontract and for conversion of the plaintiff's property. Plaintiff alleged in his complaint that the defendants had excluded him from the job without legal excuse and had converted the tools, materials and prefabricated concrete forms which he then had on the job. The defendants counterclaimed, contending that plaintiff had breached the contract by abandoning the work.
The trial court found that the plaintiff had abandoned the work and awarded damages to the defendants. The court also found that the defendants had converted 60% of the plaintiff's prefabricated forms by using them on another job, and that the value of the converted forms was $4,000 at the time of their conversion. From a denial of plaintiff's motions for a new trial, or to reopen for the purpose of presenting further evidence respecting the value of the converted forms, plaintiff appeals. Three grounds are claimed by the plaintiff for reversal: (1) the preponderance of the evidence does not support the finding of the court that plaintiff had abandoned the contract, but shows rather that he was forced off the job by the defendants. (2) The court erred in failing to give force and effect to the written contract between the parties. (3) The evidence was insufficient to support the court's finding with respect to the value of the converted forms.
This court has stated on numerous occasions that findings of fact made by the trial court will not be disturbed so long as they are supported by substantial evidence. Therefore, the findings of the lower court must be affirmed unless there was no reasonable basis in the evidence on which the court could fairly and rationally have thought the requisite proof was met.[1]
In support of his claim that he was "without legal excuse excluded" from the work plaintiff argues that the defendants knew of his lack of capital from the beginning, as evidenced by the fact that they cosigned with him on the note to secure the $1,000 loan with which to get the job started. That notwithstanding this knowledge, the defendants failed to pay plaintiff promptly for his proportion of the estimates as they were submitted to the Alpine School District for payment. Briefly stated, it is plaintiff's contention that he was compelled to leave the job because of the defendants' failure to comply with their agreement to pay promptly.
Plaintiff's contention that he was "forced off" the job is without merit. Not only was plaintiff paid in full for all estimates which he submitted prior to the time when the defendants took over the job, but by the first of August plaintiff had already been paid within a few hundred dollars of the amount to which he did not become legally entitled until the first of September. Moreover, although the written contract only imposed on the defendants the obligation to pay plaintiff once each month at the rate of $9.45 per yard for 90% of the concrete which had been poured, plaintiff was paid 100% of his estimates twice monthly at the rate of $10 per yard. In addition, defendants paid $500 on the note which they had cosigned to help the plaintiff get started.
The evidence not only fails to support plaintiff's contention that he was forced off the job by the defendants' failure to pay promptly, but it supports the court's finding of abandonment as well. Plaintiff was in financial distress when he was awarded the contract in March, and this distress became more severe as the work progressed. By September 9, the last day which the plaintiff worked, he had unpaid bills for equipment rentals and materials going back to March and April. The payroll checks issued to cover the work period from August 1 to August 15 had not cleared when presented for payment, and some of the men had not been paid for work performed prior to the first of August.
That plaintiff was in such financial distress as to be no longer able to finance the work is shown by the testimony of Kelsey Chatfield, who was inspector for the architect on the project. Chatfield testified that on four or five occasions within a month to six weeks before leaving the job, plaintiff had told him that he was in such financial distress that he could no longer finance the work and that "he would have to quit." That plaintiff abandoned the contract is also supported by the evidence relating to a telephone call from the defendant Max Rosenlof to the plaintiff. Rosenlof testified that on the evening of September 9 he placed a call to the plaintiff at his home in Bountiful. His account of what occurred is as follows:
"When I got him on the telephone I said, `Ted, there's got to be something done on that job. I haven't seen you on that job for approximately two weeks. The men are running wild and getting in trouble because they have not been getting their pay checks.' * * * I asked him about getting down on the job because the job was running wild and he said, `Max, you are just going to have to take the job over; I am broke; I have got a lot of people pressuring me for money and I can no longer finance the job and I am about going crazy. I am going to lose my house; I am going to lose my trucks, the forms and the equipment.' He says, `I have been home trying to sell my house so that I can get some operating capital to keep on operating with.'"
Although plaintiff admits that he received a call from Rosenlof, he claims that Rosenlof merely inquired about his absence from the job and that he had advised Rosenlof that he was trying to sell his home to get capital to operate on, and that he would be back on the job within a couple of days.
We think the court was justified in accepting Rosenlof's account of what was said. Both parties agreed that the phone call was made on the evening of September 9, and that Rosenlof took over the job on the following morning, September 10. In view of the plaintiff's testimony that the call had ended with the understanding that he would be back on the job in a couple of days, it is significant that when plaintiff was told by his foreman that Rosenlof had taken over the job, he did not contact Rosenlof to find out what the reason was. Instead, he had his wife go to Rosenlof several days later to try to get some money to cover the payroll checks which were "bouncing." The court's finding with respect to abandonment was, therefore, supported by substantial evidence and must be affirmed.
In view of the fact that it was plaintiff who abandoned the contract, his contention that the court erred in failing to give force and effect to the written contract between the parties must likewise fail. The applicable rule is well stated in Miller v. Young, 197 Okl. 503, 172 P.2d 994, 995, as follows:
"It is an elementary principle of the law of contracts that in order to recover upon a contract, the contractor * * * must first establish his own performance or a valid excuse for his failure to perform (citing authorities including Am.Jur.). Since plaintiff failed under the uncontradicted proof to complete the work he contracted to do, without valid excuse for such failure, he was entitled to no judgment against defendant."
Although plaintiff is not entitled to the benefits of the contract, he is, nevertheless, entitled to payment on a quantum meruit basis for the work which he did perform.[2] The lower court awarded plaintiff the contract price on the full amount of the concrete work done on the entire job, including that done by the defendants and charged plaintiff with the defendants' excess cost above the agreed contract price. While on the surface this might appear to be more favorable to the plaintiff than the law allows, we think it reaches substantially the same result as would a proper quantum meruit approach in view of the fact that a major portion of the work remaining to be done when the defendants took over the job was low cost, high profit "flat work." In any event, only the defendants could properly have raised this issue under the facts of this case and they are not complaining.
In support of his claim that the court erred in finding the value of the converted forms to have been only $4,000, plaintiff contends that (a) the evidence was insufficient to support such a finding because such a finding could only have been justified on the basis of a wholly unsupported statement by the defendant Max Rosenlof; (b) a much higher value should have been found inasmuch as there was sufficient evidence submitted from which a higher "market value could be deduced"; and (c) if the evidence in the record was in fact insufficient for the purpose of establishing market value, the court should have granted plaintiff's motion to reopen so that additional evidence could have been introduced upon which a finding of a higher market value could properly have been made.
We are not persuaded by these arguments. This court has stated that the measure of damages for conversion is the market value of the item converted at or near the time of the conversion,[3] and furthermore, that proof of the value of converted property is essential to recovery of damages on the theory of conversion.[4]
While plaintiff introduced evidence showing that the original cost of the forms could have been as high as $17,707.49, and that their replacement cost new at the time of the conversion would have been $20,071.85, such evidence was not by itself sufficient to show what the market value of the forms was at the time of their conversion. Although plaintiff did produce evidence that the forms could be used for as many as 1,000 pours if properly taken care of, he failed to submit any evidence whatsoever as to the condition of the forms or as to how they had been maintained. He failed to produce such evidence despite the fact that he had notice of where the forms were kept for at least a month before trial commenced. Apparently he made no effort to look at the forms or have them appraised. In view of plaintiff's failure to show what the market value of the forms was, we believe the trial court was justified in refusing to "deduce" a higher market value from plaintiff's evidence respecting their cost price. This court held in the case of Haycraft v. Adams[5] that evidence of cost price is insufficient for the purpose of establishing market value under these circumstances.
Plaintiff cites the case of Lym v. Thompson, supra, to show that evidence of cost price is proper for showing market price when the cost price closely approximates market price. A reading of that case, however, shows that part of the converted pipe there involved was "equivalent of new" and furthermore, an appraisal of the pipe's value was impossible because it was "not possible of identification." [112 Utah 24, 184 P.2d 670.] In the instant case an appraisal could easily have been made. Moreover, the evidence showed clearly that the forms were not new since many of them had been used "approximately" 300 or 400 times. In the absence of other competent evidence upon which to find market value, we think the court was entirely justified in placing their value at $4,000 on the basis of Max Rosenlof's testimony. He stated that he would not appraise "all" of the forms to be worth more than $4,000 at the completion of the high school job in Lehi.
Insofar as the denial of plaintiff's motion to reopen is concerned, we are not persuaded that the court abused its discretion in view of the fact that the motion was first made some three months after the trial was concluded. Despite the fact that plaintiff had ample notice that "market value" was the only proper measure of damages for conversion, he nevertheless failed to submit competent evidence to show what the market value of the forms was. Instead, he insisted that market value be deduced from the cost price. Accordingly this claim must also fail.
Judgment affirmed. Costs to respondents.
WADE, C.J., and HENRIOD, CALLISTER and CROCKETT, JJ., concur.
NOTES
[1]  Child v. Child, 8 Utah 2d 261, 332 P.2d 981.
[2]  Ryan v. Curlew Irr. & Reservoir Co., 36 Utah 382, 104 P. 218; Eckes v. Luce, 70 Okl. 67, 173 P. 219; 17 C.J.S. Contracts § 511.
[3]  Lym v. Thompson, 112 Utah 24, 184 P.2d 667.
[4]  Knighton v. Manning, 84 Utah 1, 33 P.2d 401.
[5]  82 Utah 347, 24 P.2d 1110.


               Case: 13-13415     Date Filed: 03/31/2014   Page: 1 of 6

                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                  No. 13-13415
                              Non-Argument Calendar
                            ________________________

                         D.C. Docket No. 5:12-cv-02006-IPJ

JOY LYNETTE OWENS,

                                                                   Plaintiff-Appellee,

                                         versus

JACKSON COUNTY BOARD OF EDUCATION,

                                                                          Defendant,

KENNETH HARDING,
in his official and individual capacities,

                                                               Defendant-Appellant.

                            ________________________

                    Appeal from the United States District Court
                       for the Northern District of Alabama
                           ________________________

                                   (March 31, 2014)
                Case: 13-13415       Date Filed: 03/31/2014       Page: 2 of 6

Before CARNES, Chief Judge, TJOFLAT and JORDAN, Circuit Judges.

PER CURIAM:

       Kenneth Harding, the Superintendent for the Jackson County School

District, appeals the district court’s decision denying his motion for summary

judgment based on qualified immunity. He contends that he should have been

granted summary judgment on both the retaliation and discrimination claims

brought against him under the Fourteenth Amendment’s Equal Protection Clause.

                                               I.

       Viewing the evidence in the light most favorable to Joy Owens, the facts for

present purposes are these. She has worked as a teacher in Alabama’s Jackson

County School District since 1988. From May 2010 to May 2012, she

unsuccessfully applied for sixteen different administrative positions in the School

District: seven as a school principal, six as an assistant principal, and three in

supervisory roles at the central office. Fourteen of those sixteen positions were

filled by men. 1 During that time, Harding voiced his belief that women should not

be in administrative positions.

       1
          As for the two women who were hired, Owens’ brief points to evidence in the record
suggesting that in both instances unusual circumstances overbore Harding’s discriminatory
attitude. According to an affidavit from a teacher familiar with the hiring of the first woman,
Harding was going to hire a man, but a state senator personally lobbied Haring and persuaded
him to hire the woman. The record indicates that the other woman was hired after Owens filed
an EEOC charge. Owens argues in her brief that, based on the timing, it can be inferred that the
woman was hired to minimize the appearance of discrimination if Owens filed a lawsuit.

                                                2
              Case: 13-13415     Date Filed: 03/31/2014    Page: 3 of 6

      Under Alabama law, the sixteen positions could not be filled until a

candidate was nominated by Harding and appointed by the Jackson County Board

of Education. See Ala. Code § 16-12-16. Harding used different methods for

choosing his nominees. For the seven principal positions, Harding had a

committee system to help him make nominations. Harding interviewed the

candidates first, then the committee (whose members had been picked by Harding)

interviewed the candidates. Then Harding and the committee would discuss the

candidates, and Harding would nominate one to the Board. For the six assistant

principal positions, Harding nominated whomever that school’s principal

recommended, though he and the principal conferred about which candidates the

principal would interview before making a recommendation. For the three central

office positions, Harding selected the nominees himself.

      Owens’ lawsuit pleaded two claims. Her first claim was against the Board

under Title VII for gender discrimination and retaliation. Her second claim was

against the Board and Harding under 42 U.S.C. § 1983 for gender discrimination

and retaliation in violation of her rights under the Equal Protection Clause of the

Fourteenth Amendment. The defendants filed a joint motion for summary

judgment, arguing that there was insufficient evidence in the record to support any

of Owens’ claims of discrimination and retaliation. In addition, Harding asserted

an affirmative defense of qualified immunity. The district court denied the motion

                                          3
              Case: 13-13415     Date Filed: 03/31/2014   Page: 4 of 6

in its entirety. This is Harding’s interlocutory appeal from the denial of his motion

for summary judgment based on qualified immunity. See 28 U.S.C. § 1291.

                                         II.

      “We review de novo a district court’s denial of summary judgment based on

qualified immunity, applying the same legal standards that governed the district

court.” Feliciano v. City of Miami Beach, 707 F.3d 1244, 1247 (11th Cir. 2013).

Defendants are entitled to summary judgment based on their qualified immunity

only if “the law preexisting the defendant official’s supposedly wrongful act was

already established to such a high degree that every objectively reasonable official

standing in the defendant’s place would be on notice that what the defendant

official was doing would be clearly unlawful given the circumstances.” Morton v.

Kirkwood, 707 F.3d 1276, 1280 (11th Cir. 2013) (quotation marks omitted).

                                         A.

      Harding contends that the district court erred by denying summary judgment

on Owens’ Fourteenth Amendment retaliation claim. This Court has held that a

claim of gender-based retaliation “simply does not implicate the Equal Protection

Clause.” Watkins v. Bowden, 105 F.3d 1344, 1354 (11th Cir. 1997); see also

Ratliff v. DeKalb Cnty., Ga., 62 F.3d 338, 340 (11th Cir. 1995) (“[N]o clearly

established right exists under the equal protection clause to be free from

                                          4
               Case: 13-13415    Date Filed: 03/31/2014   Page: 5 of 6

retaliation.”). As a result, Harding is entitled to summary judgment on Owens’

retaliation claim.

                                         B.

      Harding also contends that he should have been granted summary judgment

on Owens’ discrimination claim. He makes two arguments in support of that

contention.

      First, Harding asserts that he chose his nominees for principal based on his

committees’ recommendations and his nominees for assistant principal based on

his principals’ recommendations, and therefore a reasonable official in his position

would not have thought his actions were unlawful. Assuming that relying on those

recommendations would have been objectively reasonable, evidence in the record

creates a genuine issue of material fact as to whether Harding did rely on the

recommendations. Owens points to evidence showing that: (1) Harding would, in

his own words, “pray about” each decision and ultimately make it himself; (2)

Harding picked the committee members himself; and (3) Harding engaged in

activity that implied he had preselected the candidate he wanted for a job,

including lessening the job requirements so that the preselected candidate would be

qualified for the position and discouraging others from applying. Because we must

view the evidence in the light most favorable to Owens and draw all inferences in

                                         5
                Case: 13-13415        Date Filed: 03/31/2014       Page: 6 of 6

her favor, there is a genuine issue about whether Harding chose his nominees in the

manner he claims. He is not entitled to summary judgment on that ground.

       Harding also argues that Owens failed to present evidence raising a genuine

issue of material fact as to his discriminatory intent.2 She did. The affidavit of

Sheila Cornelison attested that Harding had told her on multiple occasions that:

“he did not want females in administration positions,” he thought “females do not

make good administrators because they are too emotional and hardnosed,” he

believed “females don’t have the personality and fortitude to be principals,” and he

“had a lot less problems out of the male principals.” That is sufficient evidence to

permit Owens to survive summary judgment.

                                               III.

       We REVERSE the district court’s decision to deny summary judgment on

Owens’ retaliation claim against Harding, AFFIRM the district court’s decision to

deny summary judgment on Owens’ discrimination claim against Harding, and

REMAND for further proceedings consistent with this opinion.

       AFFIRMED in part; REVERSED in part; and REMANDED.

       2
          Owens argues that we lack jurisdiction to review this portion of Harding’s appeal
because he is simply second-guessing the district court’s determination that there is sufficient
evidence to survive summary judgment. See generally Johnson v. Jones, 515 U.S. 304, 115 S.Ct.
2151 (1995). We do, however, have jurisdiction to decide this issue because it “is part and
parcel of the qualified immunity inquiry, not a separate question.” Hartley v. Parnell, 193 F.3d
1263, 1271 (11th Cir. 1999). More specifically, Harding’s argument that Owens failed to present
sufficient evidence that he had the discriminatory intent necessary to violate her equal protection
rights is part and parcel of his qualified immunity defense. See Mencer v. Hammonds, 134 F.3d
1066, 1070 (1998).

                                                6