    Case: 17-60529   Document: 00514689202     Page: 1   Date Filed: 10/19/2018




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
                                No. 17-60529                    October 19, 2018
                                                                  Lyle W. Cayce
                                                                       Clerk
MANUEL LOPEZ VENTURA,
   Also Known as Manuel A. Lopez-Ventura,

                                          Petitioner,
versus

JEFFERSON B. SESSIONS, III,
    U.S. Attorney General,

                                          Respondent.



                          Appeal from an Order of
                     the Board of Immigration Appeals




Before SMITH, CLEMENT, and COSTA, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      Manuel Lopez Ventura, a native and citizen of the Dominican Republic
and a lawful permanent resident (“LPR”) of the United States, pleaded guilty
of possessing AB-CHMINACA in violation of Louisiana Revised Statutes
§ 40.966(C). After his arrest, but before his conviction, AB-CHMINACA was
added to the federal schedules of controlled substances. After his conviction,
Lopez Ventura traveled to the Dominican Republic.        Upon his return, he
applied for admission as an LPR. But the Department of Homeland Security
charged him with being inadmissible under the Immigration and Nationality
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                                       No. 17-60529
Act (“INA”) because of the Louisiana conviction. See 8 U.S.C. § 1182(a)(2)-
(A)(i)(II).   Lopez Ventura denied the charge, relying on the fact that
AB-CHMINACA was not a controlled substance at the time of his arrest. The
Board of Immigration Appeals (“BIA”) ultimately found him inadmissible, rea-
soning that AB-CHMINACA was a controlled substance on the date of his con-
viction. Because the application of § 1182(a)(2)(A)(i)(II) to Lopez Ventura is
impermissibly retroactive, we grant the petition for review, reverse the order
of the BIA, and remand for the BIA to determine whether Lopez Ventura was
convicted of possessing marihuana or, instead, AB-CHMINACA.

                                              I.
       In 2014, Lopez Ventura was arrested for possessing cigarillo cigars and
AB-CHMINACA, a synthetic cannabinoid. In February 2015, he was charged
with possession of a controlled substance and drug paraphernalia in violation
of Louisiana Revised Statutes §§ 40:966(C) and 40:1023, respectively.                      On
April 16, 2015, he pleaded guilty of possessing marihuana and drug parapher-
nalia. At the time of the arrest, AB-CHMINACA was not a federally controlled
substance. See 21 C.F.R. § 1308.11 (effective Mar. 7, 2014, to Jan. 29, 2015).
Yet by the time he was charged and pleaded guilty, the Drug Enforcement
Administration had added AB-CHMINACA to the controlled substance sched-
ules as authorized by 21 U.S.C. § 811(h). 1

       An alien convicted of violating any state law relating to a federally
controlled substance is inadmissible as an LPR. See 8 U.S.C. § 1182(a)(2)-
(A)(i)(II). Lopez Ventura claimed he was admissible because his Louisiana
convictions concerned AB-CHMINACA, which was not a controlled substance


       1 See 80 Fed. Reg. 5042–01 (Jan. 30, 2015) (adding AB-CHMINACA to the schedule of
controlled substances); 21 C.F.R. § 1308.11(h)(29) (effective Jan. 30, 2015, to Mar. 19, 2015);
§ 1308.11(h)(21) (effective Mar. 20, 2015, to July 16, 2015).
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                                      No. 17-60529
on the date of his offense.

        The Immigration Judge (“IJ”) denied the motion, reasoning that
AB-CHMINACA was a controlled substance on the date of Lopez Ventura’s
conviction. Lopez Ventura moved to reconsider and requested relief from
removal under the INA. 2 The IJ denied that motion, finding that Lopez Ven-
tura        had   actually     been   convicted     of    possessing     marihuana—not
AB-CHMINACA—so the drug he possessed had always been a controlled sub-
stance. The IJ then concluded, in a somewhat self-contradictory fashion, that
Lopez Ventura was not eligible for § 1182(h) relief because he had been con-
victed of possessing AB-CHMINACA, not marihuana.

        Lopez Ventura appealed to the BIA with the same arguments. But for
the first time, he explicitly invoked the presumption against retroactivity,
citing Vartelas v. Holder, 566 U.S. 257 (2012). The BIA affirmed. It concluded
that the relevant date for purposes of § 1182(a)(2)(A)(i)(II) was the date of
conviction and that AB-CHMINACA had been a controlled substance when
Lopez Ventura was convicted. It further held that Lopez Ventura had waived
his claim that § 1182(a)(2)(A)(i)(II) was being applied in a retroactive manner.
Yet the BIA never resolved whether Lopez Ventura had been convicted of
possessing marihuana instead of AB-CHMINACA.

        Lopez Ventura petitions for review, asserting that the application of
§ 1182(a)(2)(A)(i)(II) to his case is retroactive because it attaches new legal
consequences to his possession of AB-CHMINACA. And, as Lopez Ventura
posits, there is nothing in the statute to overcome the presumption against
retroactivity. The government replies that Lopez Ventura has waived a critical


        2 See 8 U.S.C. § 1182(h) (providing that the Attorney General may waive inadmissi-
bility for certain offenses involving simple possession of thirty grams of marihuana). Accord
Martinez v. Mukasey, 519 F.3d 532, 541–42 (5th Cir. 2008).
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                                       No. 17-60529
part of his argument on appeal. Moreover, it insists that because the statutory
text, the categorical approach, and policies undergirding the INA focus on
convictions, the court must consider whether the substance was controlled on
the date of conviction, not commission. Finally, the government avers that
§ 1182(a)(2)(A)(i)(II) is explicitly retroactive in any event.

                                             II.
       We review the BIA’s rulings of law de novo and findings of fact for “sub-
stantial evidence.” Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001).
We consider the IJ’s decision only “to the extent that it influenced the BIA.”
Shaikh v. Holder, 588 F.3d 861, 863 (5th Cir. 2009). The BIA’s order was
entered by a single member of the BIA and was not precedential. 3 Because the
order therefore lacks the force of law, it is entitled only to Skidmore deference. 4
“Even so, it will be examined closely for its power to persuade.”                    Dhuka,
716 F.3d at 156.

       The BIA ruled that Lopez Ventura had waived his claim that applying
§ 1182(a)(2)(A)(i)(II) to his Louisiana conviction would be impermissibly retro-
active. We disagree. The presumption against retroactivity is merely a tool of
statutory interpretation, not a separate claim for relief. See Falek v. Gonzales,
475 F.3d 285, 290 (5th Cir. 2007).                From the start, Lopez Ventura has
consistently maintained that § 1182(a)(2)(A)(i)(II), properly construed, does
not apply where the crime involves a substance not controlled on the date of
commission. Although he did not expressly invoke the presumption against



       3 See 8 C.F.R. § 1003.1(e)(6)(ii) (providing that cases may be assigned to three-member
panels if the cases present a need to establish precedent); see also Dhuka v. Holder, 716 F.3d
149, 155 (5th Cir. 2013) (“The regulation does not recognize single-member decisions as hav-
ing precedential effect . . . .”).
       4See Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); Dhuka v. Holder, 716 F.3d
149, 155 (5th Cir. 2013).
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                                      No. 17-60529
retroactivity until his appeal to the BIA, Lopez Ventura has always advocated
an interpretation of the INA that dovetails with that presumption. 5 Indeed, to
say that § 1182(a)(2)(A)(i)(II) should not apply where the substance became
controlled after the criminal act is to claim that such application is improperly
retroactive. 6

       Even if Lopez Ventura did not clearly present his retroactivity claim
before the IJ, the argument is still preserved via a petition for review. It is
settled practice that to be considered on review, an issue must generally have
been “pressed or passed upon” in the tribunal a quo. 7 Though the BIA found
that Lopez Ventura had waived his retroactivity claim, it held that the relevant
inquiry under § 1182(a)(2)(A)(i)(II) is whether a substance was controlled on
the date of conviction. In doing so, the BIA plainly rejected Lopez Ventura’s
reading of the statute and implicitly determined that applying § 1182(a)(2)-
(A)(i)(II) to him was not impermissibly retroactive. Because the BIA therefore
passed upon Lopez Ventura’s claim, we may consider his argument on petition
for review.

                                            III.
       The presumption against retroactive legislation arises in a “case that
implicates a federal statute enacted after the events in suit.” Landgraf v. USI


       5 Citing Falek, 475 F.3d at 289−90, the government maintains that retroactivity is an
issue that must be exhausted. But unlike Lopez Ventura, the petitioner in Falek wholly
failed to challenge the applicability of the statute before the BIA. Id. at 288.
       6 For similar reasons, the government is wrong to insist that Lopez Ventura has
waived much of his argument in this petition. According to the government, Lopez Ventura
solely challenges whether the BIA’s decision was impermissibly retroactive—not whether the
BIA erred in focusing on the date of conviction. But those arguments are two sides of the
same coin. To assert that the BIA’s ruling was wrongly retroactive is to contend that the
date of conviction should not have controlled.
       7 McGoldrick v. Compagnie Generale Transatlantique, 309 U.S. 430, 434 (1940);
accord 19 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE ¶ 205.05 (3d ed. 2018).
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Film Prods., 511 U.S. 244, 280 (1994). That presumption is “deeply rooted in
our jurisprudence, and embodies a legal doctrine centuries older than our
Republic.” Id. at 265. Accordingly, “the legal effect of conduct should ordin-
arily be assessed under the law that existed when the conduct took place.” 8
Congress may enact retroactive legislation if it does not offend a specific con-
stitutional prohibition. Id. at 267–68. But the Court requires that Congress
legislate with a clear statement of retroactivity. Id.

       To determine whether a statute is impermissibly retroactive, we must
ask first “whether Congress has expressly prescribed the statute’s proper
reach” and second “whether the new statute would have retroactive effect.” Id.
at 280. That framework also applies when determining the retroactive effect
of a regulation. 9

                                                A.
       The standard for finding a clear directive of retroactivity “is a demanding
one.” I.N.S. v. St. Cyr, 533 U.S. 289, 316 (2001). The statute must contain
wholly unambiguous language that it applies retroactively. 10 For instance, a
definition of “aggravated felony” that “applies expressly to ‘convictions entered
before, on, or after’ the statute’s enactment date” is sufficient to overcome the
presumption. 11 But a statute’s effective date or comprehensive nature may not
rebut the presumption. Id. at 316–18.



       8Landgraf, 511 U.S. at 265. (quoting Kaiser Aluminum & Chem. Corp. v. Bonjorno,
494 U.S. 817, 855 (1990) (Scalia, J., concurring)).
       9 See Perez Pimentel v. Mukasey, 530 F.3d 321, 326 (5th Cir. 2008); Kankamalage v.
I.N.S., 335 F.3d 858, 862–63 (9th Cir. 2003).
       10 St. Cyr, 533 U.S. at 316 (quoting Lindh v. Murphy, 521 U.S. 320, 328 n.4 (1997))
(holding that the statutory language must be “so clear that it [can] sustain only one interpre-
tation” favoring retroactivity).
       11   Vartelas, 566 U.S. at 267 (cleaned up) (quoting 8 U.S.C. § 1101(a)(43)).
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       The government attempts to sidestep Lopez Ventura’s retroactivity
claim by insisting that no statute or regulation was ever altered to apply to
pre-enactment conduct. Not true: The list of controlled substances in the Code
of Federal Regulations was changed to include AB-CHMINACA only after
Lopez Ventura allegedly had possessed it. The timing of that change raises at
least the specter of retroactivity, causing us to consider whether the addition
of AB-CHMINACA was meant to apply retroactively.

       There is no express statement of retroactivity in either the DEA’s final
order, 12 the regulation, 13 or the statutes authorizing the promulgation of the
controlled-substance schedules. 14 Although the final order states it shall be
“effective January 30, 2015,” the mere presence of an effective date is insuffi-
cient to establish retroactivity. See id. at 317. If the statute was meant to
extend retroactively, Congress could have specified that the addition of a drug
would apply to convictions regardless of when the substance became controlled.
Congress has not done so here.

       The government yet contends that the Anti-Drug Abuse Act (“ADAA”)
contains an explicit statement of retroactivity for § 1182(a)(2)(A)(i)(II). In
1986, the ADAA amended § 1182’s provisions on aliens convicted of controlled-
substance crimes. In doing so, the ADAA stated that such amendments “shall
apply to convictions occurring before, on, or after the date of the enactment of
this section.” Pub. L. 99-570, § 1751(c), 100 Stat. 3207-47 (1986). But that
language is irrelevant. Though it establishes that the 1986 amendments were
meant to apply retroactively, it says nothing about whether future additions to


       12   80 Fed. Reg. 5042 (Jan. 30, 2015).
       13 21 C.F.R. § 1308.11(h)(29) (effective Jan. 30, 2015, to Mar. 19, 2015); id. § 1308.11-
(h)(21) (effective Mar. 20, 2015, to July 16, 2015).
       14 See generally 21 U.S.C. § 811 (authorizing the classification of controlled sub-
stances); 21 U.S.C. § 812 (listing the schedules of controlled substances).
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the controlled-substance schedules would have retroactive effect.                   In the
absence of any unambiguous language to the contrary, we therefore presume
that the addition of AB-CHMINACA was not meant to operate retroactively.

       Nevertheless, the government posits that the statutory language, cate-
gorical approach, and basic policy considerations overcome the presumption
against retroactivity.       As the government observes, § 1182(a)(2)(A)(i)(II)
speaks in terms of convictions: “[A]ny alien convicted of” violating a state law
relating to a controlled substance is inadmissible. (Emphasis added.) Because
the INA “asks what offense the noncitizen was convicted of, not what acts he
committed,” courts employ the “categorical approach” when construing the
statute. 15 That approach requires courts to look “not to the facts of the partic-
ular prior case, but instead to whether the state statute defining the crime of
conviction . . . necessarily involved facts equating to the generic federal
offense.” Moncrieffe, 569 U.S. at 190 (cleaned up). In sum, the categorical
approach reflects Congress’s intent to “predicate[] deportations on convictions,
not conduct.” Mellouli v. Lynch, 135 S. Ct. 1980, 1986 (2015) (internal quota-
tions omitted).

       According to the government, to hold that the addition of a controlled
substance does not apply retroactively would blow a hole through the otherwise
well-structured categorical approach. As the government reasons, if courts
must ask when the petitioner actually committed the crime, then they will go
beyond comparing the elements of an offense and will look at the facts of con-
viction. And if courts ever engage in that inquiry, the government fears that
aliens would have every incentive to contest the timing of the offense. Worse,
conviction records may lack information on the date of commission, forcing the


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

Gonzales, 419 F.3d 303, 307 (5th Cir. 2005).
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                                      No. 17-60529
BIA to conduct a mini-trial to identify the date of commission. The categorical
approach, avers the government, would be reduced to ashes.

       Standing alone, the categorical approach does not refute the presump-
tion against retroactivity because it is only an expression of legislative intent.
It exists merely because Congress has enacted statutes that call for such an
approach. Though the categorical approach is longstanding, 16 it is not abso-
lute, and there are circumstances in which statutory language requires devi-
ating from that approach. See Nijhawan v. Holder, 557 U.S. 29, 36–39 (2009).

       Conversely, the presumption against retroactivity applies absolutely as
both a normative and descriptive canon of construction. 17 Embodying “a legal
doctrine centuries older than our Republic,” the presumption is grounded in
numerous constitutional provisions from the Ex Post Facto Clause to the Due
Process Clause. Landgraf, 511 U.S. at 265–66. It demands that in order to
have retroactive effect, all congressional expressions—including the categori-
cal approach—contain unambiguous statutory language. 18                   Hence, though
Congress intended that the categorical approach apply generally, Congress
must also clearly express that deportations are predicated on convictions—not
conduct—even where doing so works a retroactive effect. 19 Because this stat-
ute and accompanying regulation contain no such statement, the presumption


       16 Moncrieffe, 569 U.S. at 191 (noting that the categorical approach “has a long pedi-
gree in our Nation’s immigration law”).
       17Landgraf, 511 U.S. at 286 (“The presumption against statutory retroactivity is
founded upon sound considerations of general policy and practice, and accords with long held
and widely shared expectations about the usual operation of legislation.”).
       18See Vartelas, 566 U.S. at 266; St. Cyr, 533 U.S. at 315–16; Lindh, 521 U.S. at 324–
25; Landgraf, 511 U.S. at 270, 273; United States v. Heth, 3 Cranch 399, 413 (1806); see also
Garrido-Morato v. Gonzales, 485 F.3d 319, 322 (5th Cir. 2007); Ojeda-Terrazas v. Ashcroft,
290 F.3d 292, 300 (5th Cir. 2002).
       19 Cf. St. Cyr, 533 U.S. at 317 (holding that the comprehensive nature of an immigra-
tion law is insufficient to overcome the presumption).
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against retroactivity is not overcome.

       Additionally, the government’s concerns regarding the continued viabil-
ity of the categorical approach are likely overblown. Although the list of con-
trolled substances must often expand to accommodate criminals’ ingenuity,
most substances have already been controlled for years. 20 And the date of the
offense will almost always appear in the charging document, which can be con-
sidered under the categorical approach. Thus, the number of situations imply-
cating retroactivity are probably few. A finding of “no retroactivity” therefore
is unlikely to disturb the future operation of the categorical approach.

                                                B.
       Where a statute or regulation contains no express command of retro-
activity, we must decide whether it would have retroactive effect. See id.
at 280. That “demands a commonsense, functional judgment about whether
the new provision attaches new legal consequences to events completed before
its enactment.” St. Cyr, 533 U.S. at 321 (internal quotations omitted). A
statute operates retroactively when it “would impair rights a party possessed
when he acted, increase a party’s liability for past conduct, or impose new
duties with respect to transactions already completed.” Landgraf, 511 U.S.
at 280.     “[F]amiliar considerations of fair notice, reasonable reliance, and
settled expectations” help guide the analysis. Id. at 270.

       Lopez Ventura contends that because he possessed AB-CHMINACA
before it was added to the schedules, charging him with inadmissibility under
the INA attaches a new legal consequence to his possession. The government
responds that the statute focuses on convictions, not the underlying conduct.



       20 See, e.g., 21 C.F.R. § 1308.11(b) (listing all “opiates, including their isomers, esters,
ethers, salts, and salts of isomers, esters and ethers”).
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Thus, the government insists that no retroactivity occurs where an addition to
the federal schedules is applied to someone convicted after that addition.
Moreover, the government maintains, Lopez Ventura could have sought to
avoid the consequences of the addition of AB-CHMINACA by negotiating a
favorable plea agreement or proceeding to trial.

      The government’s position is untenable, given that the Court has already
considered and rejected very similar reasoning in Vartelas. That case involved
a statutory change that precluded foreign travel by LPRs with certain con-
victions. Vartelas, 566 U.S. at 260. Although the petitioner had been convicted
before the statutory amendment, he was denied reentry when he traveled after
the amendment. Id. at 260–61. Dissenting, Justice Scalia maintained that
retroactivity should turn on “the activity a statute is intended to regulate.” Id.
at 277 (Scalia, J., dissenting). Because the statute focused on “reentry into the
United States,” Justice Scalia found no retroactive application because the
petitioner attempted to reenter after the statutory change. Id. at 277–78.
Moreover, Justice Scalia noted that the petitioner could have avoided the con-
sequences of the statutory amendment “by simply remaining in the United
States or, having left, remaining [abroad].” Id. at 278.

      That reasoning, in dissent, is strikingly similar to the government’s here.
Both Justice Scalia and the government would have us look at “what activity
the statute regulates,” be it reentry or a conviction. Both would ask whether
the petitioner somehow could have avoided the consequences of the change in
law. And both would have us find the absence of retroactivity where the
relevant conduct occurred after the amendments.

      But the Court disagreed, explaining that any disability that attached to
the petitioner was a result of “a single crime committed years before” the statu-
tory change. Id. at 267–72. Furthermore, the Court rejected the notion that

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

      In much the same way, Lopez Ventura was charged with inadmissibility
because he possessed AB-CHMINACA—a crime committed before the addition
of the drug to the schedules.            Consequently, § 1182(a)(2)(A)(i)(II) operates
retroactively in that it attaches a new disability (inadmissibility) to conduct
completed before the regulatory change. It is purely irrelevant that Lopez Ven-
tura might have avoided the adverse consequences of his possession by seeking
a better plea deal or proceeding to trial.

      Admittedly, the Vartelas Court did not squarely address whether retro-
activity occurs when a new disability attaches to a defendant’s conduct or
conviction—as both occurred before the statutory change. 21                  Nonetheless,
whenever the Court has articulated the test for retroactivity, it has framed
that test in terms of attaching new disabilities to “transactions or consider-
ations already past,” 22 “conduct over and done,” 23 or “events completed before
[the statute’s] enactment.” 24 Thus, for purposes of retroactivity analysis, it is
the timing of the defendant’s conduct, not of his conviction, that controls.

      “[F]amiliar considerations of fair notice, reasonable reliance, and settled
expectations” serve only to confirm that conclusion. St. Cyr, 533 U.S. at 321
(internal      quotations      omitted).         When      Lopez     Ventura    possessed
AB-CHMINACA, he had no notice that such a crime carried the consequence



      21 See also St. Cyr, 533 U.S. at 326 (involving a defendant who was convicted before
the statutory change); Carranza-De Salinas v. Holder, 700 F.3d 768, 774 (5th Cir. 2012)
(same).
      22   Landgraf, 511 U.S. at 269 (internal quotation omitted).
      23   Vartelas, 566 U.S. at 267.
      24   St. Cyr, 533 U.S. at 321 (internal quotations omitted).
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of inadmissibility. Although that disability attached only by virtue of his
conviction, it was the act of possession that exposed him to conviction in the
first place. Once he committed the crime, Lopez Ventura put himself on the
path to conviction and any legal consequences that flowed therefrom. But at
the time of the crime, he was not on notice that one of those legal consequences
was inadmissibility.

       Still, one might argue that notice considerations are not directly impli-
cated where, as here, the defendant pleaded guilty, after the statutory change,
with full knowledge of the legal consequences of his plea. Nevertheless, the
Supreme Court has explicitly held that the absence of actual detrimental reli-
ance is not determinative. See Vartelas, 566 U.S. at 273. It would be a “strange
presumption . . . that arises only on a showing of actual reliance.” 25                Accord-
ingly, the test for retroactivity is not whether the petitioner actually relied on
the prior law but, instead, “whether the new provision attaches new legal con-
sequences to events completed before its enactment.” Id. (internal quotation
omitted). Because the addition of AB-CHMINACA does so, it operates retroac-
tively. And because § 1182(a)(2)(A)(i)(II) does not overcome the presumption
against retroactivity, applying it to Lopez Ventura is impermissibly
retroactive.

       We therefore GRANT the petition for review, REVERSE the BIA’s order,
and REMAND for the BIA to address what it left unsettled: namely, whether
Lopez Ventura was convicted of possession of marihuana or, instead, of
AB-CHMINACA.




       25Vartelas, 566 U.S. at 273 (cleaned up); see also Carranza-De Salnias, 700 F.3d
at 772–73 (noting that “actual, subjective reliance” is not required to establish retroactivity).
                                              13
