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                                                         [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 16-14838
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 1:15-cr-00008-MW-1



UNITED STATES OF AMERICA,
                                                   Plaintiff-Appellee,


                                      versus

MATILDA JEAN RENFRO,

                                                   Defendant-Appellant.

                          ________________________

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

                                  (July 6, 2017)

Before JORDAN, ROSENBAUM and JILL PRYOR, Circuit Judges.

PER CURIAM:

      Matilda Jean Renfro appeals her petty offense conviction for disorderly

conduct at a Department of Veterans Affairs (“VA”) hospital in violation of
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38 C.F.R. § 1.218. After a magistrate judge found Renfro guilty at a bench trial,

the district court upheld her conviction on appeal. Now, appealing the district

court’s decision, Renfro argues that her conviction must be reversed because the

regulation she was charged with violating is unconstitutionally vague and there

was insufficient evidence to support her conviction. After careful review, and for

the reasons set forth below, we affirm the district court’s decision.

                                   I.   BACKGROUND

A.     Renfro’s Arrest

       The incident leading to Renfro’s arrest occurred when she visited a VA

hospital for medical treatment. When Renfro arrived at the hospital, she was

required to check in with the dispatcher at the hospital’s police services so that she

could be escorted to her appointment. The dispatcher’s station was behind a

bulletproof glass window in the emergency room waiting area.

       When Renfro arrived, the waiting area was full of people. Renfro

approached the dispatcher’s desk where William Goff, a volunteer, was working.

Because Goff was sitting behind the glass window, he asked Renfro through an

intercom for her identification and to state where she was going in the hospital. 1

Although Renfro gave Goff her identification, she refused to tell him where she

was headed. Renfro told Goff that she did not feel like she needed to give that
       1
          Goff needed to know where in the hospital Renfo’s appointment was so that he could
tell the officer who would be escorting her and also for VA documentation purposes.

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information and would not provide it over an intercom in the waiting area where

others could hear about the nature of her appointment. But Goff insisted that under

the VA’s procedures, he needed this information. During this conversation, Renfo

became agitated and began yelling. Goff described Renfro’s conduct as loud and

boisterous. Goff then requested help from the hospital’s police services in dealing

with Renfro.

      Sergeant Ronald Brown and Officer Rodney Fausnaugh then went into the

emergency room waiting area to meet with Renfro. Fausnaugh, who observed that

Renfro was shouting and agitated, took her identification from Goff. He explained

that he was holding her identification while he investigated the incident. Renfro

then yelled at Fausnaugh that he was holding her identification hostage.

Fausnaugh asked Renfro where her appointment was, but she refused to tell him.

When Brown asked Renfro to lower her voice and calm down, she became louder.

Renfro then demanded to see the patient advocate, and the officers agreed. During

this interaction in the waiting area, a triage nurse who had been working with a

patient came out to see what was going on because of the noise Renfro was

making.

      The officers escorted Renfro to the patient advocate’s office. To avoid

taking Renfro through multiple areas in the hospital where other patients were

present, they walked her outside and around the building. While they were


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walking outside, Renfro told the officers that she could not believe the way they

were treating her and that she was a “n***** of the VA.” Trial Tr. at 39 (Mag.

Doc. No. 76). 2 Renfro told the officers that she was not using the term as a racial

slur but instead to express that she felt she was being “disenfranchised.” Id. When

Fausnaugh told her that her language was inappropriate, Renfro repeated the

phrase several times and told Fausnaugh she could say what she wanted.

       After walking to another entrance, Renfro and the officers reentered the VA

building. To reach the patient advocate’s office, they had to walk through the day

surgery area where approximately 20 to 30 people were sitting, including patients

waiting for surgery and families waiting for patients to come out of surgery. When

they walked through this area, Renfro yelled about how she was being treated as a

Muslim women and stated that she was being treated “as a n*****.” Id. at 41.

According to the officers, Renfro was creating a scene and causing everyone to

look at her. Once again, because of the noise Renfro was making, an employee left

her office to see what was happening.

       When they reached the patient advocate’s office, the officers directed Renfro

to stay in the patient advocate’s waiting room. Renfro continued to shout, and

Brown directed her to lower her voice because others were waiting. Renfro

responded that she did not have to be quiet. Brown then went to get Michelle

       2
        Citations to “Mag. Doc.” refer to numbered docket entries in the case before the
magistrate judge.
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Howard, a patient advocate, and let her know that Renfro was waiting. Howard

agreed to talk with Renfro. Because Renfro was so loud, Howard shut the doors to

other employees’ offices so that they would not be disturbed. In addition, other

staff working nearby came out of their offices to see what was going on. Howard

reassured these employees that everything was fine and that police officers were

present.

      When Howard came out to talk to Renfro, Renfro told her that Fausnaugh

was holding her driver’s license hostage and again stated that she was being treated

“as a n*****.” Id. at 42. When Howard told Renfro “[t]hat’s enough,” the officers

directed Renfro to leave. Id. Fausnaugh placed a hand on Renfro’s elbow to escort

her out of the patient advocate’s office. Renfro told Fausnaugh not to touch her

because she was a Muslim woman. As the officers escorted Renfro back through

the day surgery area, she accused the officers of mistreating her because she was a

Muslim woman. When the officers told her to lower her voice, she refused and

asserted that she was exercising her First Amendment rights.

      When Fausnaugh and Renfro reached the exit, Renfro again stated that the

officers were treating her like a “n*****.” Id. at 43. At that point, Fausnaugh

arrested Renfro for disorderly conduct. At the time of the arrest, Fausnaugh

prepared a notice charging Renfro with disorderly conduct in violation of

38 C.F.R. § 1.218(b)(11), a petty offense.


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B.    Procedural History

      1.        Proceedings Before the Magistrate Judge

      Renfro was tried for the offense in a bench trial before a magistrate judge.

At the trial, Goff, Fausnaugh, Brown, and Howard testified for the government. At

the close of the government’s case, Renfro moved for a judgment of acquittal

under Federal Rule of Criminal Procedure 29. She argued that because 38 C.F.R.

§ 1.218(b)(11) was a penalty provision that set out no substantive charge, the

government had to prove that she committed the substantive offense found in

38 C.F.R. § 1.218(a)(5), meaning the government had to show that she made a

loud, boisterous, or unusual noise that interfered with the operation of the facility.

She asserted that the government’s evidence failed to satisfy this standard.

      In response, the government addressed the relationship between

§ 1.218(a)(5) and (b)(11). The government explained that (a)(5) was the

substantive provision and (b)(1) was the penalty provision, both of which

prohibited Renfro’s conduct. The magistrate judge denied the motion for judgment

of acquittal.

      Renfro then testified in her own defense. She explained that she initially

refused to disclose the nature of her appointment because that information was

confidential and the waiting area was filled with people. She claimed that she was

loud when talking to Goff because it was hard to communicate through the


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intercom. She denied being willfully loud, boisterous, or unusually noisy that day.

She explained that if she was loud, it was the result of a surgery to her vocal cords

that left her unable to control the volume of her voice when she was under stress.

She produced the medical certificate showing that she had had surgery on her voice

box.

       After the trial, the magistrate judge issued a written decision finding that the

government proved beyond a reasonable doubt that Renfro engaged in disorderly

conduct. The magistrate judge found credible the government witnesses’

testimony describing Renfro’s conduct. Based on this testimony, the magistrate

judge concluded that Renfro’s conduct created loud, boisterous, and unusual noise.

In addition, the magistrate judge found that Renfro’s conduct was so disruptive that

it caused several VA employees to interrupt their work when, upon hearing Renfro,

they exited their offices to see what was causing the commotion.

       The magistrate judge also determined that Renfro knowingly created the

noise. The magistrate judge found unconvincing Renfro’s testimony that a vocal

cord surgery left her unable to control her volume because when the officers asked

Renfro to lower voice, she told the officers that she would not comply and could

say whatever she wanted.

       At sentencing, the magistrate judge ordered to Renfro to pay a fine and

sentenced her to three years of non-reporting probation. As a condition of her


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probation, Renfro was required to check in with VA law enforcement upon

arriving at a VA facility to receive healthcare and to be escorted to her

appointment.

      2.      Proceedings Before the District Court

      Renfro appealed her conviction to the district court, arguing that her

conviction should be reversed because the disorderly conduct regulation was

unconstitutionally vague and there was insufficient evidence to convict her of the

offense. The district court rejected both of these arguments and affirmed her

conviction.

      Before addressing the merits of Renfro’s arguments, the district court

identified the elements of the offense that she was charged with violating.

Although the notice that Fausnaugh prepared charged Renfro with violating

§ 1.281(b)(11), the district court concluded that it had to look to both

§ 1.281(a)(5)—which set forth the substantive offense—and (b)(1)—which set

forth the penalty—to determine the elements of her offense. The district court

concluded that these provisions should be read together and required the

government to prove that Renfro created noise of the type that tended to be

disruptive.

      The district court then rejected Renfro’s vagueness challenge. The court

explained that a person of ordinary intelligence entering a VA facility would


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understand that she could not act in a way that would interfere with the provision

of medical care. Because a person of ordinary intelligence would know what was

prohibited under the regulation, the district court concluded that it was not

unconstitutionally vague.

      The district court also rejected Renfro’s challenge to the sufficiency of the

evidence. The court concluded a reasonable factfinder could find from the

testimony of the government’s witnesses that Renfro created loud, boisterous, and

unusual noise when she was yelling and agitated in the emergency waiting area,

the day surgery area, the patient advocate’s waiting room, and near the hospital

exit. The court also concluded that a reasonable factfinder could find that Renfro’s

conduct would tend to disturb the normal operation of a VA facility because her

conduct drew multiple VA employees out of their offices to see what was going

on. Accordingly, the district court affirmed Renfro’s conviction. This is Renfro’s

appeal.

                         II.   STANDARDS OF REVIEW

      In this case, our review of the magistrate judge’s decision functions

essentially as “a second tier of appellate review” after the district court’s review.

United States v. Pilati, 627 F.3d 1360, 1364 (11th Cir. 2010). We review de novo

the trial court’s interpretation of the relevant federal regulation. See Owner-

Operator Indep. Drivers Ass’n, Inc. v. Landstar Sys., Inc., 622 F.3d 1307, 1320


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(11th Cir. 2010). We also review de novo the trial court’s determination that the

regulation is constitutional. United States v. Hunt, 526 F.3d 739, 743 (11th Cir.

2008). And we review de novo whether there was sufficient evidence to support

Renfro’s conviction, considering the evidence in the light most favorable to the

government and drawing all reasonable inferences as well as credibility

determinations in the government’s favor. United States v. Capers, 708 F.3d

1286, 1296-97 (11th Cir. 2013). Under this standard, we may not overturn the

verdict “if any reasonable construction of the evidence would have allowed the

[factfinder] to find the defendant guilty beyond a reasonable doubt.” Id. at 1297

(internal quotation marks omitted).

                           III.     LEGAL ANALYSIS

      Renfro argues that her conviction should be overturned because the

regulation she was convicted of violating is unconstitutionally vague and there was

insufficient evidence to support her conviction. Before we can address the merits

of Renfro’s argument, we must provide background on 38 C.F.R. § 1.218 and

identify the elements the government had to prove to convict Renfro for disorderly

conduct.

      Congress delegated to the VA Secretary the authority to set regulations to

maintain law and order on VA property, which includes the authority to

promulgate regulations governing the rules for conduct on VA property. See


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38 U.S.C. § 901(a)(1), (b)(1). Congress provided that the violation of such

regulations may be punished with a fine or imprisonment for up to six months. Id.

§ 901(c). Under this legislation, the VA Secretary promulgated 38 C.F.R. § 1.218,

subsection (a) of which sets forth the substantive rules governing conduct on VA

property. One provision in subsection (a), labeled “Disturbances,” prohibits

      [c]onduct on property which creates loud or unusual noise; which
      unreasonably obstructs the usual use of entrances, foyers, lobbies,
      corridors, offices, elevators, stairways, or parking lots; which
      otherwise impedes or disrupts the performance of official duties by
      Government employees; which prevents one from obtaining medical
      or other services provided on the property in a timely manner; or the
      use of loud, abusive, or otherwise improper language.

38 C.F.R. § 1.218(a)(5).

      Subsection (b) sets forth the penalties for violating the rules of conduct set

forth in subsection 1.218(a). Subsection (b) provides that “[c]onduct in violation

of the rules and regulations set forth in paragraph (a) of this section subjects an

offender to arrest and removal from the premises.” Id. § 1.218(b). In addition,

subsection (b) sets the fine to be assessed when a person engages in “[d]isorderly

conduct which creates loud, boisterous, and unusual noise, or which obstructs the

normal use of entrances, exits, foyers, officers, corridors, elevators, and stairways

or which tends to impede or prevent the normal operation of a service or operation

of the facility.” Id. § 1.218(b)(11).




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       In identifying the elements of Renfro’s offense, the magistrate judge and the

district court looked to both § 1.218(a)(5) and (b)(11). 3 On appeal, Renfro argues

that magistrate and district judges erred by looking to both § 1.218(a)(5) and

(b)(11) for the elements of the offense. Instead, she contends that only

§ 1.218(b)(11) defined her offense, meaning, she argues, that the government was

required to prove she knowingly created a loud, boisterous, and unusual noise that

impeded the VA’s normal operations.

       Renfro argues on appeal that the magistrate judge and the district court erred

in looking to § 1.218(a)(5) to determine the elements of her offense. But at trial,

she argued to the magistrate judge that because § 1.218(b)(11) sets forth only a

penalty, the government had to prove that she committed the substantive offense

set forth in § 1.218(a)(5). Because “[i]t is a cardinal rule of appellate review that a

party may not challenge as error a ruling or other trial proceeding invited by that

party,” the invited error doctrine precludes our review of Renfro’s argument that

the magistrate judge should have looked only to § 1.218(b)(11) for the elements of



       3
          The magistrate judge and the district court formulated the elements of the offense in
slightly different ways. The magistrate judge explained that the government had to prove
Renfro’s conduct created a loud or unusual noise that caused a disruption, which impeded VA
employees from performing their usual duties. The district court determined that the government
had to prove that Renfro’s conduct created a noise of the type that would tend to disturb the
normal operation of a VA facility. Although the district court concluded that the government
was not required to prove that the noise Renfro created was loud, boisterous, and unusual, it
nonetheless concluded in the alternative that a reasonable factfinder could have found beyond a
reasonable doubt that Renfro’s noise was loud, boisterous, and unusual.

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her offense. United States v. Silvestri, 409 F.3d 1311, 1327 (11th Cir. 2005)

(alteration in original) (internal quotation marks omitted).

      In any event, we need not decide today the precise elements that the

government had to prove to convict an individual of disorderly conduct under

§ 1.218. This is because even if we assume, as Renfro contends, that the

government had to prove her conduct created loud, boisterous, and unusual noise

that disrupted the normal operations of the VA, her challenges would still fail.

A.    The Disorderly Conduct Regulation Is Not Unconstitutionally Vague.

      First, Renfro argues that her conviction should be reversed because the

regulation is unconstitutionally vague. Because she fails to specify whether her

challenge is facial, as-applied, or both, we assume, like the district court did, that

she made both facial and as-applied challenges. Both challenges fail, however.

      A statute or regulation is unconstitutionally vague if it “fails to provide a

person of ordinary intelligence fair notice of what is prohibited, or is so

standardless that it authorizes or encourages seriously discriminatory

enforcement.” United States v. Williams, 553 U.S. 285, 304 (2008). Here, Renfro

contends that the regulation is unconstitutionally vague because it authorizes or

encourages discriminatory enforcement. The Supreme Court has explained that a

statute encourages discriminatory enforcement when it “impermissibly delegates

basic policy matters to policemen, judges, and juries for resolution on an ad hoc


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and subjective basis.” Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972).

A law or regulation is vague when it leaves government actors “free to decide,

without any legally fixed standards, what is prohibited and what is not in each

particular case.” Giaccio v. Pennsylvania, 382 U.S. 399, 402-03 (1966).

      We reject Renfro’s as-applied challenge because the regulation

unambiguously covered her conduct. See Holder v. Humanitarian Law Project,

561 U.S. 1, 21 (2010) (holding that as-applied challenge to statute failed when the

statute’s “terms [were] clear in their application to plaintiffs’ proposed conduct”).

As we describe in more detail below, it was clear that Renfro’s conduct caused a

loud, boisterous, and unnatural noise that disrupted the operations of the VA.

      We also reject Renfro’s facial challenge to the regulation. The Supreme

Court has provided us with guidance on when a statute or regulation that prohibits

disorderly conduct is unconstitutionally vague. In Grayned, the Court held an anti-

noise ordinance, which prohibited noises that disturbed or tended to disturb the

peace or good order in a classroom, was not unconstitutionally vague. 408 U.S. at

110-11. Although the ordinance failed to specify the level of disturbance required,

the Supreme Court explained that the ordinance’s purpose of protecting schools

made it apparent “that the measure is whether normal school activity has been or is

about to be disrupted.” Id. at 112. Because the ordinance was limited to the school

context “where the prohibited disturbances are easily measured by their impact on


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the normal activities of the school,” the ordinance gave fair notice to those who

were regulated. Id.

        Likewise, we conclude that the regulation here is not unconstitutionally

vague because it gives fair notice to those who may be affected. Even if the

regulation failed to identify the precise quantum of noise or disturbance that is

required, we can discern the required level of noise or disruption by looking to the

context where the regulation applies—that is, VA property. See 38 C.F.R.

§ 1.218(a) (explaining that the regulation “appl[ies] at all property under the charge

and control of VA”). As the district court explained, “(1) the purpose of VA

facilities is to serve and care for veterans, (2) many veterans have heightened

sensitivities, and (3) disturbances, including loud noises, can trigger psychological

reactions from the VA patient population.” Order at 12 (Doc. 17)4 (quoting United

States v. Szabo, 760 F.3d 997, 1003 (9th Cir. 2014)). A person of common

intelligence would understand that the regulation prohibited noises likely to disturb

the provision of care or services to veterans.

        Nonetheless, Renfro contends that the regulation is void for vagueness

because she raised her voice and engaged in similar conduct several times before

being arrested. But Renfro confuses arbitrary enforcement with officer discretion.

It certainly is true that the officers observed Renfro engage in disorderly conduct

        4
            Citations to “Doc.” refer to numbered docket entries in the district court record in this
case.
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several times that day before arresting her. But the officers had discretion not to

arrest Renfro when they first observed her committing a petty offense and instead

to try to de-escalate the situation. When the attempts to calm Renfro failed and she

continued to make disruptive noise, the officers were permitted to arrest her. See

Grayned, 408 U.S. at 1114 (“As always, enforcement requires the exercise of some

degree of police judgment, but, as confined, that degree of judgment here is

permissible.”). Accordingly, we agree with the magistrate judge and the district

court that the regulation is not unconstitutionally vague.

B.     There Was Sufficient Evidence to Support Renfro’s Conviction.

       Renfro also argues that the government failed to produce sufficient evidence

to support her conviction. More specifically, she argues that the government failed

to present evidence that: she made noise, the noise she made was unusual for a

hospital setting, her conduct caused a disturbance, or she acted knowingly. But we

conclude there was sufficient evidence as to each element.5

       First, there is no question that Renfro made noise. A noise, of course, is

merely a “sound.” Noise, Webster’s Third New International Dictionary

Unabridged (2002). There is no doubt that when Renfro was yelling in the

emergency room waiting area, the day surgery area, and the waiting room for the


       5
         Renfro does not challenge that there was sufficient evidence to find that if she made
noise, the noise was loud and boisterous. Indeed, her initial brief concedes that she “raised her
voice multiple times.” Appellant’s Br. at 32.

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patient advocate’s office, as well as at the exit to the VA, she created sound and

thus noise. Renfro argues that because she was communicating thoughts and ideas,

her speech cannot qualify as noise. But noise is broadly defined to include any

sound, including speech. 6

       Second, Renfro’s conduct created noise that was unusual. The parties agree

that for this element to be satisfied, Renfro’s noise had to be uncommon. Even

though noise associated with conversations, and at times loud conversations, is

common in a hospital or VA facility, a reasonable factfinder could have concluded

that the level of noise Renfro created was so great that it was uncommon. Her

yelling caused multiple employees to exit their offices to find out what was going

on, showing that the level of noise was uncommon at such a facility. A reasonable

factfinder could therefore find that Renfro’s noise was unusual.

       Third, there was sufficient evidence for a reasonable factfinder to find that

Renfro’s noise caused a disturbance that impeded the VA’s normal operations.

This evidence includes the testimony that as a result of Renfro’s yelling and

screaming, VA employees who had been working left their offices to check on

what was happening.

       6
          Renfro contends that “noise” must exclude speech because § 1.218(a)(5) separately
provides that “the use of loud, abusive, or otherwise improper language” constitutes disorderly
conduct. She argues that the prohibition on loud language would be meaningless if such
communications were already forbidden as loud noise. But even if we accepted Renfro’s
argument, her conduct still would violate § 1.218(a)(5) as the evidence was sufficient to show
that she used loud and improper language.

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       Renfro argues that the evidence was insufficient because no VA employee

testified he or she was delayed or prevented from performing actual work duties as

a result of Renfro’s conduct. But Fausnaugh testified that as he escorted Renfro

through the facility, he observed a triage nurse who had been working leave his

station as a result of Renfro’s noise.7 In addition, Howard, the patient advocate,

testified that she was required to close the doors to offices so that employees who

were working with patients would not be distracted. From this evidence, a

reasonable factfinder could infer that Renfro’s shouting impeded operations at the

VA.

       Fourth, the evidence was sufficient to prove that Renfro acted knowingly.

Renfro contends that the intent element was not satisfied because she testified she

had trouble modulating the volume of her voice after a voice box reduction

surgery. But the magistrate judge explicitly found that this rationale was

unconvincing; this credibility determination was not clearly erroneous as Renfro

herself testified that she was resistant and frustrated and had raised her voice. And

when the officers directed her to quiet down, she told them that they could not tell

her what to do, suggesting that she chose to be loud and disruptive.



       7
         Renfro argues that this evidence was insufficient because the triage nurse could have
completed the project he was working on. But we must draw all reasonable inferences in favor
of the government: a reasonable factfinder could infer from this testimony that the triage nurse
was disrupted by Renfro.

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      The evidence, when viewed in the light most favorable to the government,

was sufficient to establish that Renfro made knowingly made unusual noise that

disrupted the normal operations of the VA hospital. We thus reject Renfro’s

challenge to her conviction on the basis of insufficient evidence.

                              IV.    CONCLUSION

      For the reasons set forth above, we affirm the judgment of the district court.

      AFFIRMED.




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