author: WOOD, Chief Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Sylvia HOLLINS, Defendant-Appellant.
    No. 16-1442
    United States Court of Appeals, Seventh Circuit.
    Argued September 12, 2016
    Decided February 1, 2017

      Jason M. Bohm, Attorney, Office of the United States Attorney, Urbana Division, Urbana, IL, for Plaintiff-Appellee.
    Colleen McNichols Ramais, Attorney, Office of the Federal Public Defender, Ur-bana, IL, for Defendant-Appellant.
    Before WOOD, Chief Judge, and EASTERBROOK and SYKES, Circuit Judges.
   WOOD, Chief Judge.

This case comes to us for the second time after a district court revoked Sylvia Hollins’s supervised release stemming from her 2007 federal conviction. In the first appeal, we granted a joint motion for summary reversal and remand for resen-tencing. See United States v. Hollins, No. 15-3750 (7th Cir. Jan. 27, 2016). The district court obliged with a resentencing hearing held on February 25, 2016. Hollins has appealed from the new sentence, which she asserts is tainted by several procedural flaws. We find no error, however, and so we affirm the district court’s judgment.

I

Hollins has struggled for nearly 30 years against her addiction to crack cocaine. Unfortunately, but predictably, this has led to a long string of criminal convictions involving incarceration, stints in various treatment centers, and home confinement. In the present case, she pleaded guilty in 2007 to distributing five or more grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). She was sentenced to 92 months’ imprisonment and eight years of supervised release. The Bureau of Prisons released her in November 2012.

Over the next year, Hollins tested positive for cocaine numerous times and was convicted of theft in the Champaign County (Illinois) Circuit Court. She received a very light sentence — three days in jail— but this conviction prompted the district court to modify her conditions of supervised release. It required her to spend 120 days in community confinement in a local jail, so that she could “get clean” and “regain focus of her life.” The court’s hopes were unrealized. Following her release from the jail in December 2013, Hol-lins again tested positive fqr cocaine use on several different occasions. Once again, the district court modified her supervised re-leáse and gave her another 120 days of community confinement at the Prairie Center, an addiction treatment facility. While at the Center she tested positive for cocaine and was returned to the county jail for the rest of her sentence.

In May 2014, still concerned about her drug use, the district court modified Hol-lins’s supervision conditions to add six months of in-home confinement. Hollins began to serve that sentence upon her release from the county jail in June 2014, but she failed again. She was arrested for retail theft in Urbana, Illinois, in September 2014, during the term of her in-home confinement. The district court thereupon placed her in community confinement for 120 days and stayed her in-home confinement. She completed the community confinement on February 4, 2015, and resumed her in-home confinement on February 27, 2015.

On March 16, 2015, Hollins pleaded guilty in state court to the retail theft charge stemming from her September 2014 arrest and was sentenced to one year’s imprisonment in the custody of the Illinois Department of Corrections (IDOC) — a sentence that was to start on May 13, 2015. Between February and May 2015, Hollins failed to report for drug testing on three occasions. She attended outpatient substance abuse and mental health' counseling sessions between February and May, but she was discharged for failing to participate successfully in the program; the discharge was dated May 13, 2015, the day she reported for her Illinois sentence. At that point she had 31 days of her federal in-home confinement remaining to be served.

While Hollins was in IDOC’s custody, her probation officer petitioned the district court to revoke her supervised release based on her two retail theft convictions. The district court issued a warrant and Hollins was detained pending her revocation hearing after IDOC released her in November 2015. The district court conducted the first revocation hearing on December 7, 2015. On January 26, 2016, we granted the parties’ joint motion for summary reversal and remanded for resen-tencing in light of United States v. Boultinghouse, 784 F.3d 1163, 1178 (7th Cir. 2015). The district court conducted the re-sentencing hearing on February 25, 2016. At that hearing, the government recommended a 24-month sentence, Hollins argued in favor of a 12-month sentence, and the district court imposed a 28-month sentence. The district court issued an order on February 26, 2015, clarifying the reasons behind its decision to revoke supervised release and impose the additional prison time.

II

Hollins argues that the district court proeedurally erred at the resentencing hearing by failing adequately to address her arguments in mitigation, relying on the probation officer’s recommendation, and failing adequately to address the factors listed in 18 U.S.C. § 3553(a).

We review challenges to the sentence imposed at a revocation hearing under a highly deferential standard comparable to that with which we review sanctions imposed by prison disciplinary boards. Boultinghouse, 784 F.3d at 1177. We will affirm the district court’s chosen sentence as long as it is not “plainly unreasonable.” Id. When revoking supervised release, a district judge must consider the Sentencing Guidelines policy statements, which are found in U.S.S.G. Chapter 7, Part B. The judge must also consider the statutory sentencing factors set forth in 18 U.S.C. § 3553(a), to the extent they apply to revocations. See 18 U.S.C. § 3583(e).

The policy statements are intended to anchor the district court’s considerations during revocation proceedings. They have always been advisory, and so a judge is free to reject them. The judge must, however, provide some explanation for her choice, in order to enable the appellate court to conduct a meaningful review both for procedure and substance. United States v. Robertson, 648 F.3d 858, 859-60 (7th Cir. 2011). The further the sentence departs from the relevant Guideline provisions, the more imperative it is for the court to detail its justification. Boultinghouse, 784 F.3d at 1178.

A

Hollins contends that the district court failed to say enough about her principal arguments in mitigation: her request for a “discount” based on time she already had served in connection with the same conduct; and her argument that she finally had been undergoing successful outpatient drug treatment and thus a lower sentence ' was suitable.

At a revocation hearing a defendant is entitled to “an opportunity to make a statement and present any information in mitigation.” Fed. R. CRiM. P. 32.1(b)(2)(E). We have cautioned district judges “not to predetermine the appropriate punishment” and reminded them of their obligation to “approach revocation and sentencing hearings with an open mind and consider the evidence and arguments presented before imposing punishment.” United States v. Dill, 799 F.3d 821, 825 (7th Cir. 2015). In the sentencing context we have held that a district court must address all of a defendant’s principal arguments, as long as they are not so weak that they do not merit discussion. United States v. Villegas-Miranda, 579 F.3d 798, 801 (7th Cir. 2009).

The district court provided Hollins the opportunity to present her mitigation arguments at the hearing. She stated that she was in the longest period of sobriety since she began using drags, and that for a great portion of this time she was out of custody and doing outpatient treatment. She also pointed out that she had been in custody for multiple-month periods for the theft convictions that partly justified the revocation.

After prompting by the government, the district judge responded to the argument about Hollins’s sobriety, contending that he knew “too much about recidivism ... and how it occurs.” He then asked Hollins if she wanted a more detailed explanation in light of her arguments, at which point Hollins’s counsel again noted the time she had already served and requested a discount on that basis. In response the judge seemed to indicate that he at first understood Hollins tó be arguing for continued supervised release or to be put at liberty. Hollins’s counsel clarified that she was not asking for release. When counsel started to say “What I’m asking for is,” the district judge interjected “Is a reduction in the period of....” Hollins’s counsel then explained, “Because she’s already been in custody on this exact same conduct and will receive no credit for time served.”

Counsel for the government then weighed , in, urging that the court’s sentence should be considered a punishment for violating the conditions of her supervised release rather than for the underlying conduct and stating that the government did not believe there had been any additional sanctions for the felony theft committed while she was on supervised release. Counsel for Hollins added, “I’m sure the Court also knows that the Guidelines are advisory, specifically for the purpose of — ”. The district judge interjected, “I am thoroughly aware of that.”

The record as a whole satisfies us that the judge considered Hollins’s principal arguments in mitigation. The transcript indicates that he understood her to be asking for a sentence reduction and that he was aware of his discretion to fashion an appropriate sentence. He also indicated that he understood her to be making an argument related to her sobriety and rejected it based on his concern (based on her track record) about recidivism. The judge did not, in short, pass over Hollins’s arguments in mitigation in silence. Cf. Villegas-Miranda, 579 F.3d at 802.

We are also persuaded that the judge did not impermissibly lengthen Hol-lins’s term of incarceration to promote rehabilitation — a step that Tapia v. United States, 564 U.S. 319, 131 S.Ct. 2382, 180 L.Ed.2d 357 (2011), forecloses. His comments about the medical benefits of incarceration and the programs available through the Bureau of Prisons at most touched on matters of fact (the programs) and the adequacy of the care she would receive while in prison. Moreover, Hollins does not argue that the district court actually relied on the rehabilitative programming to justify her sentence, nor has she argued that this would constitute an independent ground for reversal. We are satisfied that the district court did nothing inconsistent with Tapia, and so we are not troubled by its' reference to these programs.

B

Hollins also argues that the district court effectively delegated its authority and judgment by relying uncritically on the probation officer’s sentencing recommendation. Probation officers, we have said, are “professionals who play critical roles in the federal justice system.” United States v. Crisp, 820 F.3d 910, 913 (7th Cir. 2016). Their duty, as relevant here, is to conduct presentence investigations, compile information, and make a recommendation to the judge. Fed. R. Crim. P. 32; United States v. Peterson, 711 F.3d 770, 775-76 (7th Cir. 2013). “But of course probation officers do not have the power to revoke supervised release and return an offender to prison. Every action the probation officer takes is subject to review by the district court responsible for the su-pervisee.” Crisp, 820 F.3d at 913. “[P]robation officers are employees of the federal judiciary ... yet they are not allowed to decide the sentences of convicted defendants.” United States v. Thompson, 111 F.3d 368, 382 (7th Cir. 2015).

At the hearing the district judge told Hollins that he was “absolutely required to rely on the advice of’ and “[did] have to rely on the recommendations of’ the probation services. If this were all the record showed, there might be a serious problem. But it is not. After prompting by the government, the judge clarified his comments: “I do not blindly follow what Probation says. I don’t mean that at all. I rely on them to a great extent because of their experience ... but I don’t blindly follow them.”

Naturally, it would not be enough for a judge merely to say that he was not blindly following Probation and nevertheless to do so. Hollins says that this is what happened, or at least that it is impossible to rule it out. At oral argument, her counsel contended that there is no way of knowing what the district court relied upon in fashioning a 28-month sentence for her. But that goes too far. First, the judge knew Hollins well, having adjusted her supervised release conditions on several occasions and having seen how hard compliance was for her. Second, he relied on the reasoning of the probation office in its presentencing report and recommendation — a proper, indeed common, step. See, e.g., United States v. Speed, 811 F.3d 854, 856 (7th Cir. 2016) (noting the district judge had adopted the conditions and reasoning contained in probation’s presen-tence reports). The judge explained why he was comfortable relying on the reasoning and recommendation from the probation office. As he told Hollins, “They work with you. They deal with you. They see you personally. All these things, I don’t do.” Finally, as we already have noted, the judge considered Hollins’s arguments in mitigation at the hearing — points that did not appear in the probation office’s recommendations. We are therefore satisfied that the district court did not abdicate its authority or rely unduly on the probation office.

C

Hollins’s last point is a familiar one: that the district judge did not adequately consider the statutory sentencing factors. A district court may revoke supervised release after considering several of the factors set forth in 18 U.S.C. § 3553(a); namely, those at sections 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7). See 18 U.S.C. § 3583(e); see also Boultinghouse, 784 F.3d at 1177-78. But, just as in the original sentencing proceeding, the court does not need to discuss each factor in a checklist fashion. United States v. Washington, 739 F.3d 1080, 1081 (7th Cir. 2014). When a sentence is within the range recommended by Chapter 7 of the guidelines, the court need only provide a concise explanation on the record that reflects that it considered the proper factors. Boulting-house, 784 F.3d at 1178.

Here the court referred to the presentence report’s calculation of 21 to 27 months, which was based on Hollins’s criminal history of VI and a Grade B violation. This is consistent with the range set forth at U.S.S.G. § 7B1.4, which suggests 21 to 27 months for a person with those characteristics. The court also noted the addition of the 31 days of unserved home confinement and imposed a total sentence of 28 months.

While 28 months is a month higher than the top of the range recommended in § 7B1.4, that is not the end of the analysis. Section 7B1.3(d) specifies that “[a]ny ... home detention previously imposed in connection with the sentence for which revocation is ordered that rémains ... un-served at the time of revocation shall be ordered to be ... served in addition to the ... § 7B1.4 [imprisonment term], and ... may be converted to an equivalent period of imprisonment.” Further, § 7B1.3(f) specifies that any imprisonment term imposed upon revocation of supervised release “shall be ordered to be served consecutively to any sentence the defendant is serving, whether or not [that] sentence ... resulted from the conduct that is the basis of the revocation.... ” Taking those additional recommendations into account, we see that the proposed range for imprisonment in Hollins’s case went up to 28 months (27 months plus 31 days) — -just what she got. There is no anticipated discount for the time she served in IDOC custody for her retail theft conviction.

At the revocation hearing the district court relied on Hollins’s criminal history, her repeated violations of the terms of her supervised release, and the failure of supervised release and graduated sanctions to deter Hollins’s criminal conduct. These are pertinent under sections 3553(a)(1) (“the history and characteristics of the defendant”) and (a)(2)(B) (“the need for the sentence imposed to afford adequate deterrence to criminal conduct”). The court also noted the range recommended by the Chapter 7 statements, which it found relevant to section 3553(a)(4). While much of the rationale appears in the probation officer’s report, which the court adopted, this was permissible. Taken as a whole, we find no procedural error in the resentencing proceeding.

We find that the district court did not commit procedural error in its resentenc-ing of Hollins and therefore Affirm its 28-month sentence.


source: Caselaw Access Project

author: POSNER, Circuit Judge.

license: Public Domain

text:
    S.A.B., Petitioner, v. Dana J. BOENTE, Acting Attorney General of the United States, Respondent.
    Nos. 15-1834, 15-3874, 16-1303
    United States Court of Appeals, Seventh Circuit.
    Argued January 4, 2017
    Decided February 2, 2017

      Jennifer Yule DePriest, Attorney, Vanessa Marti Heftman, Attorney, Karlin Sangdahl, Attorney, Reed Smith LLP, Lisa Katharine Koop, Attorney, National Immigrant Justice Center, Chicago, IL, for Petitioner.
    Michael D. Richman, Attorney, Reed Smith LLP, Chicago, IL, for Petitioner (Case No. 16-1303).
    Alison Marie Igoe, Attorney, OIL, Attorney, Civil Division, Immigration Litigation, Washington, DC, for Respondent.
    Ethan B. Kanter, Attorney, Civil Division, Immigration Litigation, Washington, DC, for Respondent (Case No. 15-1834).
    Before POSNER, EASTERBROOK, and SYKES, Circuit Judges.
   POSNER, Circuit Judge.

We introduce this immigration case by noting that Jane’s is a long-established British publisher of studies, often book-length, of (so far as relates to this case) warfare, weaponry, national security, electronic warfare, insurgency, terrorism, and related topics. See “Jane’s Information Group,” Wikipedia, https://en.wikipedia. org/wiki/Jane% 27s_Information_Group (visited Feb. 1, 2017, as were the other websites cited in this opinion). In 2006 and 2011 Jane’s issued two confidential reports on the Oromo Liberation Front (OLF), which the reports describe as having become “the most robust armed group in Ethiopia in the late 1990s.” See Jane’s WORLD InsurgenCy and Terrorism, Oromo Liberation Front (OLF) 1 (March 23, 2011) (we’ll call it “Jane’s Report (2011)”); Jane’s World Insurgency and Terrorism, Oromo Liberation Front (OLF) 1 (May 31, 2006) (“Jane’s Report (2006)”).

Though the Oromo are the largest ethnic group in Ethiopia, they consider themselves discriminated against by the Ethiopian government, which is the reason or a reason that the OLF would like to see the government overthrown. Jane’s Report (2006) states at pages 2 and 4 that the OLF, founded in the early 1970s, has long conducted a “low level guerrilla campaign against the Ethiopian security forces,” in part from bases that it has established in countries neighboring Ethiopia, such as Kenya and Somalia. The 2011 report states at pages 1-3 that between 1973 and 2011 the OLF wreaked considerable havoc that included a number of killings of Ethiopian security personnel, though it had not come close to overthrowing the government. The immigration judge in this case classified the OLF as a “Tier III” terrorist organization, defined in 8 U.S.C. § 1182(a)(3)(B)(vi)(III) as “a group of two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in,” terrorist activity as defined in subsection iv of the above section.

The petitioner is a former member of the OLF now living in the United States. Her name is not SAB, though that is the name that appears in the briefs; those are her initials; she or her lawyers are concerned that should her name appear in the briefs in this court or in our opinion, she or a member of her family, such as her sister, who had been imprisoned by the Ethiopian government possibly in an attempt to discover SAB’s whereabouts after she’d fled the country, might become a target of the Ethiopian government. We’ll refer to her by her initials rather than her name, but it would be unrealistic to think they actually conceal her identity; for the opinions of the Immigration Court and the Board of Immigration Appeals use her full name rather than her initials to identify her, and those opinions are public documents.

An Ethiopian citizen now 61 years old, SAB came to the United States in 2004 on a visitor’s visa that expired in December of that year. But rather than leave the United States she applied for asylum and alternatively for withholding of removal. When an asylum officer deemed her claims not credible, the Department of Homeland Security charged her in the Immigration Court with being “removable” (deportable) for having remained in the United States after the- expiration of her visa, and therefore illegally. See 8 U.S.C. § 1227(a)(1)(B). She conceded removability, and the immigration judge designated Ethiopia as the country to which she would be removed. But she renewed her application for asylum and her alternative application for withholding of removal, basing both grounds for relief on fear that if removed to Ethiopia she would be tortured by the Ethiopian government because of her past membership (which she acknowledges) in the OLF.

An Oromo, she had joined the OLF in 2001, three years before she came to the United States. She had attended the general meetings of the OLF in 2002 and 2003 and made small financial contributions to the organization, though as we’ll note shortly she had helped the organization in other ways as well. In 2002 she’d seen reports on television that the OLF had killed people, but she claims not to have believed the reports because the television station was owned by the Ethiopian government. Subsequently her husband disappeared (and has never reappeared and may well be dead) and she was arrested and imprisoned for four months and, though never tried or sentenced, was tortured in prison.

Her principal witness at her removal hearing was Dr. Charles Schaefer, a history professor at Valparaiso University in Indiana. He specializes in Ethiopian politics, having been born in Ethiopia and lived there for a number of years. He testified that while some bombings and other violent acts have been attributed to the OLF he thinks it unclear whether it rather than some other political group was actually responsible for them. Though aware of Jane’s reports he thinks them “biased, market-driven and shoddily verified,” but he provided no evidence to support these suspicions. He contests, again without evidence, statements in our State Department’s country reports that the OLF “regularly use[s] landmines.” See U.S. Dep’t of State, Bureau of Democracy, Human Rights, and Labor, Ethiopia Country Reports on Human Rights Practices 2001 (March 4, 2002), www.state.gov/ j/drl/rls/hrrpt/2001/af/8372.htm; U.S. Dep’t of State, Bureau of Democracy, Human Rights, and Labor, Ethiopia Country Reports on Human Rights Practices 2002 (March 31, 2003), https://www.state.gov/j7 drl/rls/hrrpV2002/18203.htm.

He testified that he would expect SAB to “assume that the OLF is a non-violent organization, first and foremost [because] ... the OLF was a vehicle by which she could validate her Oromo identity.” We don’t understand the logic of that sentence; if belonging to the OLF validates an Oromo’s identity, it does so whether the OLF is violent or peaceful. And finally he testified that he thought SAB would be imprisoned by the Ethiopian government if she returned to Ethiopia.

The immigration judge ruled that while SAB is.entitled to deferral of removal under the Convention Against Torture because (according to Schaefer’s and other evidence) she indeed risks torture if returned to Ethiopia, owing .to the Ethiopian government’s continued fierce hostility to the OLF, she is not entitled to either asylum or withholding of removal. That’s because she admits having been a member of the OLF and having “provided material support to the OLF,” a terrorist organization, when she solicited and donated funds to it, paid monthly dues, and recruited other Oromo women to join her OLF chapter. She further admits having heard television and radio reports in 2002 that the OLF was responsible for violent attacks. She would have understood those reports, as she is a relatively sophisticated person: a high school graduate who (more important) owned a business in Ethiopia and engaged in extensive international travel in support of the business.

After the Board of Immigration Appeals affirmed the immigration judge and SAB appealed to us, she asked a component of the Department of Homeland Security usually referred to as USCIS (short for U.S. Citizenship and Immigration Services) to lift the terrorism bar that prevented her from obtaining asylum or withholding of removal. USCIS refused.

As noted below, knowing support of a terrorist organization is a bar to asylum or withholding of removal. On the basis of the U.S. State Department country reports, Jane’s reports, and other reputable information sources such as Human Rights Watch (conceded by Dr. Schaefer to be a credible source) and START (Study of Terrorism and Responses to Terrorism), and noting that Dr. Schaefer had no evidence that the OLF had not engaged in violence during the period in which SAB was a member, the immigration judge had enough evidence to conclude that the OLF had committed a number of violent acts, killing a significant number of people, over a period of years that included the years in which SAB was a member.

But was SAB a terrorist by virtue either of her membership in the OLF or of her having provided “material support” to it? See 8 U.S.C. § 1182(a)(3)(B)(iv)(VT)(dd). Obviously she did provide material support: she donated money to the OLF, recruited women to join it, and helped in fundraising. Her support of the group was not major, but minor material support is still material support within the meaning of the statute. See Hussain v. Mukasey, 518 F.3d 534, 538 (7th Cir. 2008).

Although a person who belongs to or provides material support to a terrorist organization is presumed to know it is indeed a terrorist organization, there is an escape hatch if the alien can “demonstrate by clear and convincing evidence that [he or she] did not know,” and “should not reasonably have known [in other words, shouldn’t have been expected to know], that the organization was a terrorist organization.” 8 U.S.C. § 1182(a)(3)(B)(iv)(VI)(dd). SAB failed to meet that standard (especially the second half), because among other things the OLF claimed responsibility for a bombing that killed 14 people in 2002, when SAB was living in Addis Ababa (the capital of Ethiopia) with ready access to radio and television. Indeed there were numerous reports of OLF violence between 2001 and 2004 (see, e.g., Nita Bhalla, “Ethiopia Links Blast to Oromo Rebels,” BBC, October 2, 2002, http://news.bbc.co.uk^2/hi/africa/ 2293185.stm; “OLF Claims Responsibility for Bomb Blast,” IRIN, June 26, 2002, http://www.irinnews.org/news/2002/06/26/ olf-claims-responsibility-bomb-blast), including some from the OLF’s official channel — the “Voice of Oromo Liberation.”

SAB, solidly middle class, a business woman, could not have missed all these reports or reasonably thought all of them fraudulent. Clearly she didn’t provide “clear and convincing evidence” that she had missed or disbelieved all of them.

So the immigration judge found (and the Board of Immigration Appeals affirmed his finding) that SAB knowingly supported a terrorist organization to which she belonged, and this finding, the soundness of which we have no basis for doubting, bars' her from obtaining asylum in the United States, see 8 U.S.C. § 1227(a)(4)(B) — that is, makes her deportable despite the immigration judge’s also impeccable finding that she is likely to be imprisoned and quite possibly tortured if returned to Ethiopia, given that before leaving for the United States she had been imprisoned and tortured in prison because of her affiliation with the OLF, which continues to be the Ethiopian government’s béte noir. We must therefore deny the first petition for review that SAB filed in this case, which seeks asylum and withholding of removal. The reader should bear in mind however that the removal order, which is predicated on her being a member of a terrorist organization, can’t be executed as long she remains under threat of torture if returned to Ethiopia. See 8 C.F.R. § 1208.17.

SAB has filed two other petitions for review. One asks us to overrule the decision by USCIS not to lift the terrorism bar. The other challenges the refusal of the Board of Immigration Appeals to set aside the removal order. USCIS is authorized to lift the bar for an individual or a Tier III terrorist group, subject to exceptions inapplicable to SAB. See 8 U.S.C. § 1182(d)(3)(B)(i). And if it had lifted the bar, thereby cutting the link between SAB and OLF, she would be eligible for asylum and withholding of removal. But UCSIS declined to lift the bar, and the statutory provision that we just cited grants the agency “sole unreviewable discretion” whether to do so. With the bar thus fixed in place, there is no basis for our vacating the removal order. The petition is therefore dismissed.

SAB’s third petition for review challenges the BIA’s decision to deny her motion to reopen. The Board denied the motion as untimely and found no reason to reopen it sua sponte. We have jurisdiction to review a denial of a motion to reopen; such review is consolidated with our review of the final order of removal. See 8 U.S.C. § 1252(a)(1), (b)(6). But we find no error in the Board’s refusal to reconsider its order of removal in light of USCIS’s decision, because remember that USCIS’s “sole unreviewable discretion” precludes the Board’s reopening the proceeding. We therefore deny the third petition along with the first; the second we dismiss for want of jurisdiction.

And so, to conclude, SAB’s petition for review of her final order of removal is denied, as is her petition for review that challenges the BIA’s decision to deny her motion to reopen. Her remaining petition is dismissed for want of jurisdiction to review USCIS’s discretionary rulings.


author: FLAUM, Circuit Judge. , HAMILTON, Circuit Judge,

text:
    COLUMBIA COLLEGE CHICAGO, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.
    Nos. 16-2080 & 16-2026
    United States Court of Appeals, Seventh Circuit.
    Argued November 29, 2016
    Decided February 2, 2017

      Alex V. Barbour, Jenny R. Goltz, Joseph E. Tilson, Attorneys, COZEN O’CON-NOR, Chicago, IL, for Petitioner/Cross-Respondent (Case No. 16-2080).
    Alex V. Barbour, Jenny R. Goltz, Joseph E. Tilson, Attorneys, COZEN O’CON-NOR, Patricia T. Bergeson, Attorney, COLUMBIA COLLEGE CHICAGO, Chicago, IL, for Petitioner/Cross-Respondent (Case No. 16-2026).
    Linda Dreeben, Usha Dheenan, Kellie Isbell, Attorneys, NATIONAL LABOR RELATIONS BOARD, Washington, DC, Peter S.Ohr, NATIONAL LABOR RELATIONS BOARD, Chicago, IL, for Respondent/Cross-Petitioner. .
    Before BAUER, FLAUM, and HAMILTON, Circuit Judges.
   FLAUM, Circuit Judge. ,

Petitioner Columbia College Chicago (“Columbia”) seeks review of a National Labor Relations Board (“NLRB”) order. The order required Columbia to engage in “effects bargaining” with the Part-Time Faculty Association at Columbia College Chicago (“PFAC”) under the terms of the parties’ collective-bargaining agreement (“CBA”) regarding credit-hour changes to Columbia’s performing-arts curriculum, and awarded bargaining expenses to PFAC. We grant Columbia’s petition for review, and grant in part and deny in part the NLRB’s application for enforcement. We thus enforce in part and vacate in part the Board’s order, and remand for further proceedings.

I. Background

Columbia is a private, independent college that specializes in communication, media, and the arts. Since 1998, PFAC has served as the exclusive collective-bargaining representative for part-time faculty at Columbia, of which there were over 1,200. PFAC and Columbia were parties to a CBA that, by its terms, was in effect from 2006 to August 31, 2010. The parties agreed to keep the 2006 CBA in place while they bargained for a successor agreement, and so the former was in effect at all times relevant to this case.

The CBA contained several provisions that are pertinent to this appeal. First, the agreement had a management-rights clause permitting Columbia to make decisions about its educational, fiscal, and employment policies without first having to bargain with PFAC:

Columbia ... retain[s] all ... rights ... inherent in the management of [Columbia] ... except as specifically modified by this Agreement during its term. All the rights and responsibilities of Columbia ... shall be retained and exercised in [its] sole discretion including by way of example and not in any way limited to:
A. The right to plan, establish, terminate, modify, and implement all aspects of educational policies and practices, in-eluding curricula; admission and graduation requirements and standards; scheduling; ... and the ... reduction, modification, alteration ... or transfer of any job, department, program, course, institute, or other academic or non-academic activity and the staffing of the activity, except as may be modified by this Agreement.
B. The right to manage [Columbia] and direct [Columbia’s] property, including fiscal and budgetary policy ..., except as may be modified by this Agreement.
C. The right to ... establish, modify, and discontinue rules and regulations ... relating to the performance of work, including workload, scheduling of work and its location ..., except as may be modified by this Agreement.

Second, the CBA determined part-time faculty pay using two main variables: the number of credit hours a course carried and the total number of credit hours the faculty member had previously taught. The agreement contained a minimum-compensation schedule for three-credit-hour courses and provided that “[c]ompensation for courses totaling other than three credits shall be prorated” accordingly. Minimum compensation for a given course increased as faculty accumulated credit hours from prior semesters. The CBA required Columbia to notify the instructor of a given course of any significant changes to the course.

Finally, a section entitled “Entire Agreement,” also known as a “zipper clause,” stated:

The parties acknowledge that during the negotiations which resulted in this Agreement, each had the right and opportunity to make demands and proposals on any subject or matter ... and that the understandings and agreements arrived at by the parties after the exercise of that right and opportunity are set forth in this, the sole Agreement between the parties regarding wages, hours, and other terms and conditions of employment.

By January 2010, PFAC and Columbia had begun negotiations for a successor CBA. The parties met weekly and kept a running list of contract items that were not in dispute and about which the parties planned to agree.

In the spring of 2010, Columbia administrators reevaluated the school’s curriculum. As part of that process, Columbia unilaterally decided to reduce the credit hours for ten courses in its School of Fine and Performing Arts, with the changes to take effect in the 2011-2012 academic year. Columbia notified part-time faculty members affected by these changes, but not PFAC.

In July 2010, PFAC filed an unfair-labor-practice charge regarding Columbia’s refusal to bargain over the effects of its decision to reduce course credit hours in the Photography Department — a different department from the ones at issue in this case. The parties settled that charge on October 22, 2010.

Meanwhile, the negotiations over the successor CBA were still ongoing, and on October 27, 2010, Columbia sent PFAC a proposal that included a modified management-rights clause. The modified clause was similar to the 2006 clause, but proposed new language extending the clause to explicitly waive PFAC’s right to bargain over the effects or impact of Columbia’s management decisions. On October 29, PFAC expressed concern about the proposed modification.

On March 30, 2011, Columbia submitted a new, comprehensive CBA proposal to PFAC. The document included the additional management-rights-clause language that Columbia had proposed in October 2010. In October 2011, after further negotiations, Columbia resubmitted its March 2011 proposal to PFAC. PFAC responded by saying that Columbia was engaging in regressive bargaining.

Negotiations broke down and stalled for several weeks. Then, on December 19, 2011, Columbia sent PFAC another revised contract, but with even stronger language in the management-rights clause, which was “intended to constitute a clear and unmistakable waiver of any rights [PFAC] might otherwise have to bargain over managerial rights and/or the effects or impact on unit members of [Columbia’s] decisions with respect to such rights.” (first alteration in original).

Around the same time, PFAC learned of the credit-hour reductions that Columbia had made in the spring of 2010. PFAC sought a list of affected courses from Columbia and demanded to bargain over the effects of the changes.

On February 13, 2012, PFAC called for Columbia to resume face-to-face negotiations from the parties’ bargaining positions as they had stood in October 2011. PFAC also stated that it would not consider Columbia’s December 2011 proposal, which PFAC felt was regressive. On February 21, 2012, Columbia notified PFAC that the college did not believe it had an obligation to bargain with PFAC about the effects of course-credit-hour reductions. Nevertheless, Columbia provided a list of the impacted courses, and stated that it was willing meet to discuss the issue if PFAC would first give Columbia a proposal regarding the effects, and a list of PFAC members that had been affected by the changes to course credit hours. Similar exchanges followed in March and April 2012.

On May 4, 2012, Columbia agreed to meet and discuss the credit-hour reductions, and the parties resumed face-to-face negotiations in late June 2012. (PFAC did not allege that Columbia had engaged in bad-faith bargaining after this date.)

On August 28, 2012, the NLRB lodged a complaint against Columbia. The Board’s consolidated complaint alleged, among other things, that Columbia had violated Sections 8(a)(1) and (5) of the NLRA, 29 U.S.C. §§ 158(a)(1), (5), by failing to bargain: 1) over the effects of the credit-hour reductions from February to May 2012; 2) for a successor CBA from February to June 2012; and 3) in good faith with PFAC.

On March 15, 2013, after a full hearing, the Administrative Law Judge (“ALJ”) issued his recommended decision and order. He concluded that Columbia had failed to engage in effects bargaining, had failed to adequately negotiate for a successor CBA, had set illegal preconditions to bargaining, and had demonstrated bad-faith bargaining in its overall behavior. However, the ALJ declined to award special remedies, including reimbursement of PFAC’s bargaining expenses, noting, “I cannot find ... that [Columbia’s] misconduct was so aggravated as to infect the bargaining process to the point where traditional remedies would not be effective.” Columbia, PFAC and the NLRB each filed exceptions to the ALJ’s decision.

On March 24, 2016, the NLRB, through a divided three-member panel, issued, its decision and order. The NLRB agreed that Columbia had failed to engage in effects bargaining, set unlawful preconditions to bargaining, and negotiated in bad faith. Noting the absence of objections, the NLRB also adopted the ALJ’s findings on Columbia’s failure to adequately bargain over a successor CBA.

However, the NLRB disagreed with the ALJ regarding remedies, and awarded bargaining expenses. The NLRB ordered Columbia to compensate PFAC for efforts to initiate effects bargaining from February 21, 2012, to May 4, 2012, and in connection with bargaining for a successor contract from March 31, 2012, to June 13, 2012,

As to the governing standard for waivers of bargaining rights, the NLRB majority stated,

We also reject our dissenting colleague’s argument that [Columbia] had no duty to bargain over the effects of its decision to change course credit hours under the contract-coverage test endorsed by the District of Columbia Circuit and the Seventh Circuit. The Board has declined to adopt the contract-coverage standard and instead has consistently applied the “clear and unmistakable” waiver standard. See Provena St. Joseph Medical Center, 350 NLRB 808 (2007)....

The dissenting panel member argued that Columbia had not violated the NLRA because the college had no duty to bargain over the effects of the credit-hour reductions. The dissent outlined three rationales for this conclusion: 1) the effects were the inevitable consequence of a permissible managerial decision under Fresno Bee, 339 NLRB 1214 (2003); 2) under binding case law from this Court, the effects of the credit-hour reductions were already “covered” by the CBA and there was no indication that the effects should be treated separately from the decision itself; and 3) Columbia did not violate the NLRA even under the majority’s version of the unmistakable-waiver standard. The dissent concluded that bargaining expenses were inappropriately awarded. This appeal followed.

II. Discussion

Though “we give substantial deference to both [the NLRB’s] findings of fact and its interpretations of the [NLRA],” we must still “determine whether the Board’s decision is supported by substantial evidence and whether its legal conclusions have a reasonable basis in law.” Roundy’s Inc. v. N.L.R.B., 674 F.3d 638, 645-46 (7th Cir. 2012) (citations omitted). “We defer to the Board’s interpretation of the [NLRA] unless its legal conclusions are irrational or inconsistent with the Act. Where a matter involves analysis of state law for which the Board has no special expertise, however, our review is de novo,” including in matters of contractual interpretation. Id. at 646 (citations and internal quotation marks omitted). Additionally, courts “refuse[ ] enforcement of Board orders where they ha[ve] no reasonable basis in law, either because the proper legal standard was not applied or because the Board applied the correct standard but failed to give the plain language of the standard its ordinary meaning.” Ford Motor Co. v. N.L.R.B., 441 U.S. 488, 497, 99 S.Ct. 1842, 60 L.Ed.2d 420 (1979) (citation and internal quotation marks omitted).

The NLRB, in finding for PFAC, applied the “clear and unmistakable waiver”' standard. However, as the NLRB’s order recognized, when a binding CBA fully defines the parties’ rights on the contested issue, we look only to the language of the agreement; the clear-and-unmistakable-waiver standard is irrelevant. See Chicago Tribune Co. v. N.L.R.B., 974 F.2d 933, 937 (7th Cir. 1992). Because the NLRB chose to apply a standard that conflicts with this Court’s precedents, we owe no deference to the NLRB’s legal conclusions. See Ford Motor Co., 441 U.S. at 497, 99 S.Ct. 1842; Roundy’s Inc., 674 F.3d at 645-46.

A. Contractual Waiver of Effects Bargaining

The NLRA allows employees to bargain collectively through a chosen bargaining representative. 29 U.S.C. •§ 157. An employer must bargain with the representative over significant changes in working conditions. See id. § 158(a)(5); Contemporary Cars, Inc. v. N.L.R.B., 814 F.3d 859, 868 (7th Cir. 2016); Local 15, Int’l Bhd. of Elec. Workers, AFL-CIO v. Exelon Corp., 495 F.3d 779, 783 (7th Cir. 2007). Statutory rights such as these may be waived by the bargaining representative, often “to secure gains it considers of more value to its members.” Metro. Edison Co. v. N.L.R.B., 460 U.S. 693, 707, 103 S.Ct. 1467, 75 L.Ed.2d 387 (1983), Waivers of statutory rights must be “clear and unmistakable.” Id. at 708,103 S.Ct. 1467.

Since Metropolitan Edison, this Court has determined that

where the contract fully defines the parties’ rights as to what would otherwise be a mandatory subject of bargaining, it is incorrect to say that the union has “waived” its statutory right to bargain; rather, the contract will control and the “clear and unmistakable” intent stan-. dard is irrelevant.

Chicago Tribune, 974 F.2d at 937 (quoting Local Union No. 17 v. N.L.R.B., 927 F.2d 635, 641 (D.C. Cir. 1991)). The parties refer to this agreement-centric approach as “contract-coverage analysis.”

This type of analysis applies to decisions taken by employers and to the effects of those decisions, unless the parties’ collective-bargaining agreement contemplates treating effects separately from the decisions covered by the terms of the agreement. Enloe Med. Ctr. v. N.L.R.B., 433 F.3d 834, 838-39 (D.C. Cir. 2005) (“Whether the parties contemplated that the collective bargaining agreement would treat the effects of a decision separately from the decision itself is just as much a matter of ordinary contract interpretation as is the initial determination of whether the agreement covers the matter altogether. It would be rather unusual, moreover, to interpret a contract as granting an employer the unilateral right to make a particular decision but as reserving a union’s right to bargain over the effects of that decision. This is not to say that such an interpretation is inconceivable, but it would seem that there would have to be some language or bargaining history to support the proposition that the parties intended to treat the issues separately.”).

Thus, under Chicago Tribune, the NLRB or reviewing court should first look to see whether the parties are subject to an agreement, such as a collective-bargaining agreement, that sets out their respective rights and responsibilities. If there is such an agreement, the adjudicating body should determine, using normal principles of contract interpretation, whether the agreement “fully defines the parties’ rights as to what would otherwise be a mandatory subject of bargaining.” 974 F.2d at 937. If it does, the court should apply the terms of the agreement to the facts of the case in deciding whether the employer has fulfilled its contractual obligations. Finally, if the bargaining representative argues that the employer was obligated to bargain over the effects of the employer’s decision, the court should look to see whether the governing agreement or the parties’ bargaining history indicates an intent to treat effects bargaining separately from bargaining over the decision itself. See Enloe Med. Ctr., 433 F.3d at 838-39.

In the absence of a CBA, credit-hour changes would likely be a mandatory subject of bargaining between the parties. However, in this case, PFAC and Columbia agreed to continue the terms of their 2006 CBA while negotiating a successor agreement. The 2006 agreement gave Columbia “sole discretion” to, among other things, “modify ... all aspects of educational policies and practices,” including the “modification [or] alteration ... of any ... course.” Reducing the number of credit hours for a course constitutes a modification or alteration of that course. The management-rights clause thus fully defined the parties’ rights with respect to course-credit-hour changes.

Further, the agreement did not create a decisions-effects bargaining dichotomy. PFAC did not adduce bargaining-history evidence or point to contractual language showing that the parties intended to treat effects bargaining separately from Columbia’s decision-making rights. To the contrary, Columbia had made many credit-hour changes in prior years, and PFAC had not demanded effects bargaining until the 2010 Photography Department lawsuit. When PFAC first demanded to engage in effects bargaining over the credit-hour reductions in this case, Columbia’s initial rejoinder stated that Columbia did not have such a bargaining obligation. Regarding the CBA’s terms, the parties agreed both to tie part-time-faculty compensation to credit hours and to allow Columbia to unilaterally modify those hours, without engaging in separate effects bargaining for changes in faculty pay.

In sum, Columbia and PFAC bargained over their respective rights and duties, and agreed to a binding CBA. The terms of that contract gave Columbia the right to alter course credits — the subject area over which PFAC wanted to engage in effects bargaining. Further, the CBA did not indicate separate treatment of effects bargaining and decision bargaining. Therefore, Columbia was not under any further obligation to bargain with PFAC over the effects of the credit-hour reductions. The college had already satisfied its statutory bargaining duty on this issue when it negotiated and entered into the 2006 CBA.

B. Bargaining Expenses

Columbia does not contest on appeal that it failed to adequately negotiate for a successor CBA in 2012. For “the vast majority of bad-faith bargaining violations,” the traditional remedies of a bargaining order, “cease-and-desist order[,] and the posting of a notice[ ] will suffice to induce a respondent to fulfill its statutory obligations.” Frontier Hotel & Casino, 318 NLRB 857, 859 (1995). However,

[i]n cases of unusually aggravated misconduct, ... where ... substantial unfair labor practices have infected the core of a bargaining process to such an extent that their “effects cannot be eliminated by the application of traditional remedies,” an order requiring the respondent to reimburse the charging party for negotiation expenses is warranted....

Id. (quoting N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 614, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969)).

The NLRB awarded bargaining expenses to PFAC under this standard, partially relying on conduct that Columbia does not challenge on appeal, but also on Columbia’s behavior during the effects-bargaining negotiations. Because we conclude that Columbia was not obligated to engage in such bargaining, we vacate the award of bargaining expenses and remand to the NLRB to decide whether such a remedy is still warranted in this case without considering the effects-bargaining behavior.

III. Conclusion

For the foregoing reasons, we Grant Columbia’s petition for review, and Grant in part and Deny in part the NLRB’s application for enforcement of the Board’s order. We Vacate the order’s effects-bargaining and negotiation-expense components, summarily enforce the remainder, and Remand for further proceedings consistent with this opinion.

HAMILTON, Circuit Judge,

concurring.

Judge Flaum’s opinion for the court applies correctly this circuit’s precedents on “effects bargaining.” See, e.g., Chicago Tribune Co. v. NLRB, 974 F.2d 933 (7th Cir. 1992). The Board quite deliberately chose not to follow this circuit’s precedents in this case, perhaps to set up a test case to resolve the circuit split on the “clear and unmistakable” standard for waiver on effects bargaining. See generally Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 709, 103 S.Ct. 1467, 75 L.Ed.2d 387 (1983) (rejecting finding of waiver of union officials’ rights under no-strike clause: “to waive a statutory right the duty must be established clearly and unmistakably”).

There are strong arguments in favor of the Board’s “clear and unmistakable” standard for waiver of bargaining rights on effects that management decisions have on employees. See, e.g., Provena St. Joseph Medical Center, 350 NLRB 808 (2007). Our different approach is settled law in this circuit, however. If this legal standard is to change, it will need to happen in a different forum.

On the remedial issue, even without the effects-bargaining issue, the Board’s decision to impose a remedial award of negotiating costs had ample support. Columbia College has not even challenged the Board’s findings that it violated the National Labor Relations Act by engaging in bad-faith bargaining, by failing to meet and bargain over a successor agreement for four months, by failing to provide the union with requested information, by harassing a union official and then threatening her with discipline when she complained about it, by discriminating against the same union official, by maintaining an overly broad policy on use of the college’s computer network, and by setting an unlawful precondition to bargaining. Because the effeets-bargaining issue was part of the Board’s calculus in using its remedial discretion, I agree we must remand the remedial issue to the Board. There was plenty of other egregious conduct by the employer here, however, and Judge Flaum’s opinion leaves the Board ample discretion to impose that remedy again on remand.

      . The 2006 CBA did not require Columbia to notify PFAC of such, changes, only the individually-affected faculty members.

      . As part of the settlement, Columbia agreed to bargain over the effects of changes to credit hours in the Photography Department, and not to violate the National Labor Relations Act "in any similar way” in the future. However, the parties do not argue that the settlement’s non-violation provision impacts the current dispute.

      . The NLRB likewise adopted the ALJ’s findings regarding several allegations not at issue in this appeal, including Columbia’s failure to provide information on its professor-evaluation system, misconduct toward a PFAC negotiator and Columbia faculty member, and maintenance of an overbroad work rule. Columbia does not challenge any of these adopted findings. The NLRB further adopted the ALJ’á dismissal of several allegations against Columbia, and the NLRB does not challenge this aspect of the order. We summarily enforce the unchallenged portions of the NLRB's decision and order. E.g., N.L.R.B. v. Atwin Mfg. Co., 78 F.3d 1159, 1162 (7th Cir. 1996); 29 U.S.C. § 160(e).

      . Under Fresno Bee, an employer has no duty to bargain over the effects of a permissible managerial decision if "the change resulted directly from that decision, [and] there was no possibility of an alternative change in terms of employment that would have warranted bargaining.” 339 NLRB at 1214-15 (citing Holly Farms Corp. v. N.L.R.B., 48 F.3d 1360, 1368 (4th Cir. 1995)).

      . Columbia complied with its related contractual obligation to notify affected faculty members of impending significant changes to courses.

      . The NLRB argues that the Photography Department settlement agreement’s effects-bargaining provision indicates that PFAC did not waive its effects-bargaining rights. Columbia argues that years of unchallenged curriculum changes shows the opposite. While true that "[t]he failure to demand bargaining in the past, without more, does not waive that bargaining right forever,” N.L.R.B. v. Roll & Hold Warehouse & Distrib. Corp., 162 F.3d 513, 518 (7th Cir. 1998), such a failure is a good indication that the parties did not intend to separate decision bargaining from effects bargaining under Enloe. Further, the NLRB does not develop an argument as to why the Photography Department settlement agreement shows an intention to separate effects from decisions; the settlement’s effects'-bargaining provision could also be understood as a concession to PFAC to settle the dispute, and not as a wider indication of what the 2006 CBA meant. In fact, the notice to employees generated by the settlement is expressly limited to the effects of credit-hour changes "in the Photography Department.” This settlement is not sufficient to demonstrate that the parties intended to treat the two types of bargaining separately.

      . Additionally, Columbia twice attempted to insert explicit effects-bargaining waivers into the proposed management-rights clause during the 2010-2011 negotiations. PFAC argues that the correct-interpretation of this bargaining posture reveals that Columbia never believed that it actually had obtained an effects-bargaining waiver from PFAC. However, the rejected modifications can also be understood as attempts by Columbia to clarify its preexisting rights using exceedingly clear waiver language. In the context of the 2010 Photography Department lawsuit and the negotiations underlying this lawsuit, such a goal would have been understandable. This Court therefore declines to interpret these contract-modification attempts as definitive evidence of the parties’ intent to treat effects bargaining and decision bargaining separately.

      . Because we decide that Columbia had no further duty to bargain under Chicago Tribune, we do not address whether the effects of the credit-hour reductions were inevitable consequences of a permissible managerial decision under Fresno Bee, 339 NLRB 1214, or whether Columbia would have succeeded under the NLRB’s version of waiver analysis.


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Abel COVARRUBIAS, Defendant-Appellant.
    No. 16-3402
    United States Court of Appeals, Seventh Circuit.
    Argued January 24, 2017
    Decided February 3, 2017
    Michelle P. Brady, Brian L. Reitz, Attorneys, Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appel-lee.
    Tyler D. Helmond, Jennifer M. Lukem-eyer, James Hugh Voyles, Jr., Attorneys, Voyles, Zann, Paul, Hogan & Merriman, Indianapolis, IN, for Defendant-Appellant.
    Before BAUER, EASTERBROOK, and KANNE, Circuit Judges.
   PER CURIAM.

Abel Covarrubias was convicted by a jury of possessing with intent to distribute 50 grams or more of methamphetamine, and conspiring to commit this crime. On appeal he challenges the denial of his motion to suppress drugs found in a car being delivered to him from across the country. We affirm the judgment because the district court correctly decided that Covarru-bias lacked standing to contest the admission of the drugs into evidence.

A New Mexico State Police patrolman stopped a car hauler on a New Mexico highway because a digit on the car hauler’s license plate was unreadable. During the stop the officer noticed that a Saturn Vue, secured on a trailer attached to the car hauler’s truck, lacked a license plate and asked to see the car’s paperwork. (The Saturn, which is the subject at the center of this suit, was being delivered to Covar-rubias.) The bill of lading (the contract for this car’s shipment) showed that the car was being shipped from an individual in California to someone named Juan Pablo in Indianapolis; the document listed the same phone number for both parties. The document also gave the ear hauler the authority to drive the vehicle “on and off the [car hauler’s trailer], or to and from the [trailer] at the pickup or delivery site.” Further, the officer saw a stack of air fresheners in the car’s air conditioning vents and after checking the car’s vehicle identification number, determined that the car was not owned by the shipper or receiver.

The officer became suspicious that this car might be trafficking drugs and received permission from the car hauler, who had a car key, to search the locked vehicle. The officer found 46 pounds of methamphetamine in a hidden compartment below the console between the driver’s and front passenger’s seats. A conversation ensued, and the car hauler agreed to participate in a controlled delivery of the car that agents of the Department of Homeland Security and Indiana State Police officers would supervise.

The car hauler delivered the car to the Indianapolis delivery address on the bill of lading and unloaded the car from the trailer. At this point, Covarrubias entered the picture. He arrived at the shipping address, paid the car hauler for the delivery, and drove the car away. Shortly thereafter, police arrested him.

Covarrubias declined an interpreter, waived his Miranda rights in writing, and proceeded to make several admissions. He acknowledged that he paid the car hauler for delivering the car and represented himself as “Juan Pablo” to the car hauler. And he admitted knowing that the car contained methamphetamine and that he was being paid $2,000 to pick up the car and deliver it to an associate.

The government charged Covarrubias with possessing with intent to distribute 50 grams or more of methamphetamine and conspiring to commit this crime. See 21 U.S.C. §§ 841(a)(1), 846. Covarrubias moved to suppress the drugs, contending that the search violated his reasonable ex: pectation of privacy in the car. He argued that the terms of the bill of lading deprived the car hauler of authority to consent to the officer’s search and therefore the drugs found during the search should not be admitted into evidence. The district court conducted an evidentiary hearing and then denied Covarrubias’s motion to suppress. The court concluded that he lacked standing to argue that this evidence should be suppressed because he did not have either a subjective or objective expectation of privacy in the vehicle. He had “no apparent ownership or possessory right in the vehicle, as either the shipper or receiver” and “no expectation of privacy in the Saturn Vue after it was turned over to the shipping company,” which had a key to the car and permission to drive the car on and off the trailer. In concluding that Covarru-bias had no expectation of privacy in the car, Judge Pratt relied on this court’s holding in United States v. Crowder, 588 F.3d 929 (7th Cir. 2009) — a case involving “nearly identical” facts, according to the judge — that parties have no reasonable expectation of privacy for a car given to a shipping company. Crowder, 588 F.3d at 934-35. Even if Covarrubias had standing to object to the search, the court went on to say, it was reasonable for the officer to believe that' the car hauler had apparent authority to consent to a search because he had keys to the vehicle and authorization (as reflected in the bill of lading) to drive the car on and off the trailer.

A jury found Covarrubias guilty of the two charges, and he was sentenced to 225 months’ imprisonment and five years’ supervised release.

On appeal Covarrubias challenges the district court’s standing analysis and maintains that he had a legitimate expectation of privacy in the car. He contends that the drugs’ concealment below the car’s center console gave him a subjective expectation of privacy. And he asserts that the bill of lading’s restriction on the car hauler’s authority, limited to taking the car on and off the trailer, gave him an objective expectation of privacy. He tries to distinguish his case from Crowder, which, he says, presents materially different facts. In Crowder, unlike his case, he asserts, the doors on the car being shipped were unlocked and the bill of lading did not limit the car hauler’s authority to taking the car on and off the trailer.

The district court properly concluded that Covarrubias did not have a legitimate expectation of privacy in the car because he did not own the car, had never been inside it, and did not control the car’s contents. See Rakas v. Illinois, 439 U.S. 128, 134, 143 & n.12, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Moreover, this case, as the district court observed, mirrors Crow-der in legally relevant ways: the car hauler received keys to a car being shipped cross-country and permission to drive the car on and off the trailer. Crowder, 588 F.3d at 934-35. Even though the car’s doors were locked, Covarrubias lacked a reasonable expectation of privacy because the car hauler controlled and had access to the car. Further, Covarrubias is incorrect that different terms in the bill of lading distinguish Crowder. In both cases the car haulers’ control over the cars, stemming from the bills of lading, empowered them “to act in direct contravention” of the defendants’ “privacy interests.” Id. at 935 (internal quotation marks and citation omitted).

Covarrubias also asserts that he did not knowingly waive his Miranda rights because he did not understand the contents of the Miranda waiver document, which was written in English. Based on this contention, he urges the suppression of his statements to law enforcement that he acted as a middleman for the drugs and that he had identified himself as Juan Pablo. The district court found that these statements supported the conclusion that he did not have standing because they showed that he lacked an ownership interest in the car.

Covarrubias’s argument is irrelevant because he did not have any expectation of privacy in the car once the car hauler received it. See Crowder, 588 F.3d at 934. In any event his post-Miranda statements to law enforcement are admissible because substantial evidence demonstrates that he understands and speaks English: five law enforcement officers and a paramedic testified that he understands and speaks English, he declined an interpreter when he was arrested, and he sent text messages from his cell phone in English.

The judgment of the district court is AFFIRMED.


text:
    John Jones BEY, Plaintiff-Appellant, v. STATE of Indiana, et al., Defendants-Appellees.
    No. 16-1589
    United States Court of Appeals, Seventh Circuit.
    Submitted October 27, 2016
    Decided February 3, 2017
    John Jones Bey, Pro Se.
    Aaron T. Craft, Attorney, OFFICE OF THE ATTORNEY GENERAL, Indianapolis, IN, for Defendants-Appellees STATE OF INDIANA, ERIC HOLCOMB.
    Pamela G. Schneeman, Attorney, OFFICE OF THE CORPORATION COUNSEL, Indianapolis, IN, for Defendants-Ap-pellees MARION COUNTY, MARION COUNTY TREASURY OFFICES, JOSEPH P. O’CONNOR.
    Before POSNER, FLAUM, and RIPPLE, Circuit Judges.
   POSNER, Circuit Judge.

John Jones Bey, who describes himself as an “Aboriginal Indigenous Moorish-American,” filed in the district court what he labeled a “Writ of Mandamus,” seeking to enjoin state and county officials from taxing real estate that he owns in Marion County, Indiana. He also asked that the defendant officials be ordered to refund the taxes that he’d paid and to compensate him for their alleged wrongs. He asked the district court to award him $11.5 billion. The court refused, and granted the defendants’ motions to dismiss, precipitating this appeal.

Bey says he’s a “sovereign citizen” and therefore can’t lawfully be taxed by Indiana or its subdivisions in the absence of a contract between them and him. (See El v. AmeriCredit Financial Services, Inc., 710 F.3d 748, 750 (7th Cir. 2013), for a description of the beliefs of so-called sovereign citizens of alleged Moorish origin.) We have repeatedly rejected such claims. See United States v. Jonassen, 759 F.3d 653, 657 and note 2 (7th Cir. 2014); United States v. Benabe, 654 F.3d 753, 767 (7th Cir. 2011); United States v. Hilgeford, 7 F.3d 1340, 1342 .(7th Cir. 1993); United States v. Schneider, 910 F.2d 1569, 1570 (7th Cir. 1990). We do so in this case as well, and thus affirm the district court.

But we want to take this opportunity to examine the rights asserted, in this as in the other cases we’ve cited, by persons describing themselves as sovereign citizens by virtue of their alleged Moorish origin. Most of them are African Americans who belong to the Moorish Science Temple of America (MSTA) and claim to be descendants of the Moors of northern Africa, though they are not; Moors are of mixed Berber and Arab descent rather than being African American in the usual sense of being descended from black Africans. The original purpose of MSTA, founded in the 1920s by Noble Drew Ali, whose followers call themselves “Moors” in place of more conventional designations such as “Black,” “African American,” and “colored,” was to claim government “recognition and respect as full citizens rather than the second-class descendants of slaves.” Leah Nelson, ‘Sovereigns’ in Black, Intelligence Report, Southern Poverty Law Center (Aug. 24, 2011), www.splcenter.org/fighting-hate/ intelligence-report/2011/‘sovereigns’-black (visited Feb. 2, 2017, as were the other websites cited in this opinion). MSTA focuses on “uplifting” its followers, and encourages them to vote in U.S. elections so that they can escape “political slavery.” Spencer Dew, Moors Know the Law, 31 J. L. & Religion 70, 72-75 (2016).

The MSTA home office, located in Washington D.C., has issued, a statement clarifying that the organization is neither “a Sovereign Citizen movement [n]or a Tax Protestor Movement” and that it was not founded “for its members to become anarchist or conspiracy theorist[s].” Moorish Science Temple of America, Statement on Radical and Subversive Fringe Groups (July 15, 2011), http://mstal913.org/ Statement_Radical_Moors.pdf. A MSTA temple in Georgia denounces sovereign-citizen propaganda as “completely asinine” and asks that Moors not “adopt[ j the ideals of these European groups who at their core, hate [Moors’] very existence.” Frequently Asked Questions, Question 1, Moorish Science Temple of America (Georgia), moorishsciencetemple.org/faqs/.

But clearly, sovereign-citizen ideas appeal to many [self-described] Moors, who combine those ideas with Ali’s teachings in an effort to reclaim and rewrite black history. For example, the “Moors Order of the Roundtable” uses eighteenth-century treaties with Morocco to distinguish “Free Moors” from Africans who could be enslaved and teaches that courts have no jurisdiction over Moors. Nelson, ‘Sovereigns’ in Black, supra. Other groups claim that their Moorish nationality gives them the status in the United States of an indigenous people, although' the logic behind this claim is deeply obscure. See id. Renita Bey teaches that Europeans are latecomers and Moors never granted them citizenship. Washitaw Nation Comes Under Investigation, Intelligence Report, Southern Poverty Law Center (June 15,1999), www. spkenter.org/fighting-hate/intelligence-re-port/1999/washita w-nation-comes-under-investigation. She teaches her followers that they are “Muurs” from “Muu” who traveled to North America before Africans did, when the world had only one continent. Many sovereign citizen organizations teach that whenever a Moor’s name is spelled in capital letters in a government document, the name identifies not the individual but instead his “corporate shell identity,” or in other words a “straw man” controlled by the government. See Southern Poverty Law Center, “Sovereign Citizens Movement,” www.splcenter.org/ fighting-hate/extremist-files/ideol ogy/sov-ereign-citizens-movement.

• Although the Moorish Science Temple does not buy the “sovereign citizen” line, many of its members do. Many of them argue, without any basis in fact, that as a result of eighteenth-century treaties the United States has no jurisdiction over its Moorish inhabitants, who are therefore under no obligation to pay taxes. That is Bey’s position, but he does not explain how it entitles him to an $11.5 billion refund from the State of Indiana and/or its subdivisions. Nor is there any basis for his contention that he is not required to pay any taxes because being a Moor makes him a sovereign citizen; he may be a Moor but — we emphasize, in the hope of staving off future such frivolous litigation — he is not a sovereign citizen. He is a U.S. citizen and therefore unlike foreign diplomats has no immunity from U.S. law. Indeed his suit is frivolous and was therefore properly dismissed; he was lucky to be spared sanctions for filing such a suit.

Although we have discussed the MSTA at some length, our aim was to introduce readers who may not be familiar with the “sovereign citizen” movement to its principal institutional establishment. We do not mean to task the district judges of this circuit with having to delve into the history of every particular organization involved in every case before them. Often the organization either played no significant role in the events leading up to the case or if it did, nevertheless it was an organization already well known to the court. The unusual feature of this case is that the sovereign-citizen movement and its institutions, such as MSTA, aré at once sources of difficult litigation and not well known outside the sovereign-citizen movement.

The judgment of the district court is affirmed.


author: HAMILTON, Circuit Judge.

text:
    Patti LARDAS, Plaintiff-Appellant, v. Slavko GRCIC, et al., Defendants-Appellees. Danny Christofalos, Debtor-Appellant, v. Joseph E. Cohen, Chapter 7 Trustee, Trustee-Appellee. John Laurence Kienlen, Creditor-Appellee, v. Danny Christofalos, Debtor-Appellant. Patti Lardas, Plaintiff, and Danny Christofalos, Intervenor-Appellant, v. Slavko Grcic, et al., Defendants-Appellees.
    No. 15-1685, No. 15-1704, No. 16-2913, No. 16-4210
    United States Court of Appeals, Seventh Circuit.
    Argued October 28, 2015
    Decided February 3, 2017
    Rehearing Denied March 15, 2017

      Maurice J. Salem, Attorney, LAW OFFICES OF SALEM & ASSOCIATES, P.C., Palos Heights, IL, Plaintiff-Appellant.
    Ronald A. Damashek, Stephanie A.S. Stinton, Attorneys, STAHL COWEN CROWLEY & ADDIS, Chicago, IL, for Defendants-Appellees.
    Before WOOD, Chief Judge, and EASTERBROOK and HAMILTON, Circuit Judges.
   HAMILTON, Circuit Judge.

These four related appeals arise from a long-running and acrimonious business dispute between appellants Patti Lardas and her nephew Danny Christofalos on one side and appellees Slavko Grcic and associates on the other. Appeal Nos. 15-1685 (Lardas I) and 15-1704 {Cohen) were consolidated for oral argument, which took place on October 28, 2015. Appeal No. 16-4210 {Lardas II) concerns the district court’s denial of a motion by Christofalos to reopen proceedings in Lardas I, and we treat it as a successive appeal. Appeal No. 16-2913 {Kienlen) is also successive to the earlier consolidated appeals. We can decide Kienlen and Lardas II without further oral argument. The briefs and record adequately present the facts and legal issues, and oral argument would not significantly aid our decision-making process. See Fed. R. App. P. 34(a)(2)(C). We affirm the judgments and orders on appeal in Lardas I, Lardas II, and Kienlen, and we dismiss the appeal in Cohen as moot.

I. Lardas I (No. 15-1685)

In Lardas I, a diversity jurisdiction action, plaintiff Patti Lardas brought claims of fraudulent inducement and breach of contract against defendants Slavko Grcic; his sons, Milovan arid Draza Grcic; Thomas Karacic; and Karacic’s employer, the Amalgamated Bank of Chicago.

The crux of Lardas’s controlling amended complaint is that the Grcics tricked her into participating in a global settlement agreement pursuant to .which, among other things, her nephew Christofalos was to receive a 99% interest in an entity called Wauconda Shopping Plaza, LLC (“WSP”), with Slavko Grcic retaining a 1% interest in the entity as well as a lien on Christofa-los’s interest. According to Lardas, the Grcics hatched an elaborate scheme— along with Karacic and the Amalgamated Bank* — to force WSP to default on a loan and, ultimately, to foreclose on Christofa-los’s 99% stake and have the Grcics take control.

The defendants moved to dismiss, arguing that Lardas lacked standing to pursue her claims. Though the defendants cited Federal Rule of Civil Procedure 12(b)(6), the district court reviewed their motion pursuant to Rule 12(b)(1). In so doing, the court treated the motion as a facial attack on Lardas’s standing; accepting as true the factual allegations in the amended complaint as well as the contents of the settlement agreement appended to the complaint. The court took no additional evidence. See Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443 (7th Cir. 2009) (“Facial challenges require only that the court look to the complaint and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction.”); see also Silha v. ACT, Inc., 807 F.3d 169, 174 (7th Cir. 2015) (“[W]hen evaluating a facial challenge to subject matter jurisdiction under Rule 12(b)(1), a court should use Twombly-Iqbal’s ‘plausibility’ requirement, which is the same standard used to evaluate facial challenges to claims under Rule 12(b)(6).”). The district court dismissed Lardas’s case without prejudice, agreeing with the defendants that' Lardas lacked standing to pursue her claims. Lardas v. Drcic [sic], Nos. 14 C 193 & 14 C 6958, 2015 WL 444321, at *2 (N.D. Ill. Jan. 29, 2015). Because the district court decided the question of standing without resolving factual disputes, we review de novo the court’s judgment of dismissal. Berger v. NCAA, 843 F.3d 285, 289 (7th Cir. 2016).

To pursue a civil claim in federal court, a plaintiff must allege and then prove that she has standing — i.e., that she suffered a concrete and particularized injury-in-fact that is traceable to the defendant’s conduct and that is likely to be redressed by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). Taking Lardas’s allegations at face value, the defendants schemed to deprive her nephew Christofalos of his interest in WSP. The problem here is that Lardas had no current or even contingent interest in WSP. In fact, Lardas had transferred her entire interest in a predecessor entity to Christofalos back in 2000. She never held a stake in WSP itself. Through the settlement agreement, Lardas released any and all claims (known and unknown) against the Grcics in exchange for their release of any and all claims (known and unknown) against her. She does not allege that the Grcics violated the terms of that exchange by, for instance, suing her or otherwise seeking to recover anything from her.

In a post-judgment motion for reconsideration, which the district court correctly treated as a motion under Federal Rule of Civil Procedure 59(e), Lardas argued for the first time that Christofalos was a third-party beneficiary of her settlement agreement with the Grcics, such that the alleged scheme to deprive Christofalos of his interest in WSP in turn deprived Lardas of the benefit of her bargain. As a procedural matter, Lardas should have raised this argument during the initial briefing on defendants’ motion to dismiss. Rule 59(e) does not entitle a party to advance after judgment a non-jurisdictional argument that could have been presented prior to judgment. See Bordelon v. Chicago School Reform Board of Trustees, 233 F.3d 524, 529 (7th Cir. 2000). A Rule 59(e) motion may allow a district judge to exercise discretion to consider such a new argument. E.g., Miller v. Safeco Ins. Co. of America, 683 F.3d 805, 813 (7th Cir. 2012); see also Mendez v. Republic Bank, 725 F.3d 651, 658-60 (7th Cir. 2013) (same point for Rule 60(b)). Cases such as Miller and Mendez show, however, that this is a matter of judicial discretion, not a party’s entitlement.

In any event, the new argument is without merit. Christofalos wás himself a party to the same settlement agreement — not a third-party beneficiary — and he paid $600,000 for the LLC membership interest he- acquired from Slavko Grcic. Even if we assume that Christofalos might have had his own claims against Grcic or others arising from the settlement agreement (and any such claims would have wound up in his bankruptcy estate, addressed in the other related appeals), Lardas has alleged no injury personal to her. Nor has she offered any plausible reason why she should be able to assert a claim on behalf of Christofalos. Lardas lacks standing to pursue the claims she asserts, and the district court correctly dismissed her case. That dismissal is AFFIRMED.

II. Cohen (No. 15-1701)

Before Grcic and his associates could perfect their supposed scheme to acquire Christofalos’s interest in WSP, Christofa-los filed for bankruptcy protection. Cohen represents a challenge by Christofalos to a bankruptcy court order issued under 11 U.S.C. § 363(b) authorizing the trustee to sell Christofalos’s interest in WSP, as well as any interest he might have in the Lar-das litigation and a separate state court case. The buyers? None other than the Grcics, who paid $15,000 for these assets in what might have -been an attempt to buy-peace.

Christofalos’s appeal of the sale order rests on two rather remarkable premises. He argues first that by listing his stake in WSP as an exempt asset worth just one dollar, he actually was putting all interested parties on notice that he sought an “unlimited exemption” for that property, regardless of what the property might be worth or what it might potentially sell for. He argues second that the Grcics paid too much for the assets they acquired — the implication being that the bankruptcy court should have ordered the trustee to drive an easier bargain and settle for less money for the estate’s creditors in the process. The bankruptcy court rejected Christofalos’s arguments on their merits, and the district court affirmed. 2015 WL 444321, at *3-4.

We do not reach the merits. Chris-tofalos’s challenge to the trustee’s sale is moot. See DJL Farm LLC v. U.S. Environmental Protection Agency, 813 F.3d 1048, 1050 (7th Cir. 2016) (per curiam) (“[A] case must be dismissed ‘if an event occurs while a case is pending ... that makes it impossible for the court to grant any effectual relief whatever to a prevailing party.’ ”) (citations omitted).

Christofalos opposed the sale of his interest in WSP through a motion to compel the trustee to abandon that property and through an objection to the trustee’s motion to sell. The bankruptcy court denied the motion to compel abandonment and approved the sale over Christofalos’s objection. At that point, if Christofalos wanted to seek judicial review of the sale order, he should have moved for a stay pursuant to Federal Rule of Bankruptcy Procedure 8007(a)(1)(A), thereby preserving the status quo.

Under 11 U.S.C. § 363(m), the reversal on appeal of an authorized sale “does not affect the validity of a sale ... to an entity that purchased ... property in good faith ... unless such authorization and such sale ... were stayed pending appeal.” In light of this safe harbor provision, we have “repeatedly held that when a party challenges the bankruptcy court’s order approving the sale of estate property to a good faith purchaser, it must obtain a stay of that order pending appeal, lest the sale proceed and the appeal become moot.” In re River West Plaza-Chicago, LLC, 664 F.3d 668, 671 (7th Cir. 2011), quoting In re CGI Industries, Inc., 27 F.3d 296, 299 (7th Cir. 1994) (collecting cases).

The safe harbor in section 363(m) does not apply if the sale was not conducted in good faith. Hower v. Molding Systems Engineering Corp., 445 F.3d 935, 938 (7th Cir. 2006). But the good faith requirement is narrow, addressing only the buyer’s integrity during the course of the sale proceedings: “Typically, the misconduct that would destroy a purchaser’s good faith status ... involves fraud, collusion between the purchaser and other bidders or the trustee, or an attempt to take grossly unfair advantage of other bidders.” In re Andy Frain Services, Inc., 798 F.2d 1113, 1125 (7th Cir. 1986) (citation omitted).

Christofalos did not request a stay of the sale order. Instead, the sale was consummated, and the Grcics are now actively managing the shopping plaza and its tenants. Money has changed hands, years have passed, and third parties have acted in reliance on the sale.

Christofalos argues that the Grcics acted in bad faith by offering $15,000 for an asset he believes to have been underwater. Christofalos’s argument is not legally sound, and it makes no sense on the facts of this case. He cites no case or other authority for the proposition that a buyer who pays (in the debtor’s view) too much for an asset acts in bad faith toward the debtor or other creditors. There may be perfectly good reasons to pay something for a highly leveraged asset that is currently. worthless. Fair market values rise ,and fall, and the purchase allows the buyer to make an investment that may pay off if the value later rises.

As a factual matter, moreover, even if the shopping plaza was financially underwater in 2014, that is not the actual asset the trustee sold: rather, the trustee sold Christofalos’s interest in WSP, which was apparently encumbered only by the lien in Slavko Grcic’s favor, and which was part of a package. The package of assets the trustee sold included three separate assets of the bankruptcy estate: Christofalos’s interest in WSP and his interest in two lawsuits against the Grcics. The Grcics paid $15,000 not only to acquire WSP but also to terminate the litigation against them. Parties in civil cases often choose to pay relatively small sums to settle claims, even claims that seem far-fetched or vexatious. We cannot understand how, in paying $15,000 for two unliquidated claims and an asset that Christofalos swore was worth only one dollar, the Grcics could be the parties who might be deemed to have acted in bad faith. There is no evidence that their conduct in the bankruptcy proceedings perpetrated a fraud on anyone, amounted to collusion with the trustee, or caused an unfair disadvantage to other bidders, of which there were none. See In re Andy Frain Services, Inc., 798 F.2d at 1125.

In its sale order, the bankruptcy court explicitly found that the Grcics were “good faith purchasers” and that the sale was “conducted at arms-length without fraud, collusion, or undue influence by the purchasers.” The bankruptcy court reached these findings after three hearings and the submission of affidavits by the Grcics, the contents of which Christofalos failed to rebut. These findings are renewable only for clear error, Hower, 445 F.3d at 938, and there was no such error here. The Grcics purchased Christofalos’s interests in WSP and the two lawsuits in good faith, and Christofalos failed to seek a stay pending appellate review. His challenge to the trustee sale is moot, and his appeal is DISMISSED.

III. Kienlen (No. 16-2913)

In Kienlen, Christofalos challenges the bankruptcy court’s November 23, 2015 order following an adversary proceeding brought by J. Laurence Kienlen, a creditor. The bankruptcy court conducted a trial on the adversary complaint pursuant to Part VII of the Federal Rules of Bankruptcy Procedure, and it made findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a)(1). The court entered judgment in Kienleris favor, denying Christofalos’s petition for a Chapter 7 discharge. The court based its denial on 11 U.S.C. § 727(a)(4)(A), which authorizes denial of discharge where the debtor has “knowingly and fraudulently ... made a false oath or account.” See Stamat v. Neary, 635 F.3d 974, 978 (7th Cir. 2011) (to prevail on a § 727(a)(4)(A) claim, an objecting party must establish that “(1) the debtor made a statement under oath; (2) the statement was false; (3) the debtor knew the statement was false; (4) the debtor made the statement with fraudulent intent; and (5) the statement related materially to the bankruptcy case”) (citation omitted). The district court affirmed the denial of discharge. Christofalos v. Kienlen, No. 15 C 10832, 2016 WL 3268164, at *3 (N.D. Ill. June 14, 2016). We review de novo the district court’s judgment; we likewise review de novo the bankruptcy court’s legal determinations, but we review its findings of fact for clear error. In re Herman, 737 F.3d 449, 452 (7th Cir. 2013); Zedan v. Habash, 529 F.3d 398, 403 (7th Cir. 2008). We affirm.

In its order denying discharge, the bankruptcy court observed that Chris-tofalos made a “host of false statements and omissions in his schedules and statement of financial affairs.” For instance, the court found that Christofalos falsely represented that he had issued no financial statements to financial institutions within two years of his petition. Christofalos also grossly undervalued his real property located in Mundelein, Illinois. He failed to identify a source of rental income, omitted a property located in Florida, and falsely asserted that he had relinquished all interest in another property following his divorce. He also omitted a vehicle and falsely represented that he had no contingent and unliquidated claims. The bankruptcy court found as a matter of fact after trial that Christofalos knew these representations were false and that he made them with fraudulent intent. The court explained: “Christofalos could not have cared less whether his schedules and statement of financial affairs were accurate.”

On appeal, Christofalos quarrels with some of the bankruptcy court’s factual findings, but without citing record evidence. He nevertheless concedes that he made multiple errors in his bankruptcy disclosures. To obtain reversal, he contends that these errors were “completely inconsequential and immaterial” because they worked neither to his benefit nor to the detriment of any creditor.

That assertion is not plausible. If Christofalos had succeeded in concealing or misrepresenting his assets, he might well have obtained a discharge while at the same time retaining property that rightfully belonged to the bankruptcy estate for the benefit of his creditors. In any case, materiality in the bankruptcy context has a broad meaning: “a fact is material ‘if it bears a relationship to the debtor’s business transactions or estate, or concerns the discovery of assets, business dealings, or the existence and disposition of the debtor’s property.’ ” Stamat, 635 F.3d at 982, quoting Retz v. Samson (In re Retz), 606 F.3d 1189, 1198 (9th Cir. 2010); cf. Skavysh v. Katsman (In re Katsman), 771 F.3d 1048, 1050 (7th Cir. 2014) (observing that fraud in the bankruptcy context encompasses intent to deceive, which “need not connote intending to obtain a pecuniary benefit”). The bankruptcy court was not required to find an affirmative detriment to Christofalos’s creditors (or an affirmative benefit to Christofalos) in concluding that Christofalos made fraudulent statements within the meaning of § 727(a)(4)(A). After all, the “successful functioning of the Bankruptcy Code hinges both upon the bankrupt’s veracity and his willingness to make a full disclosure.” Sta-mat, 635 F.3d at 983 (citation omitted).

Christofalos pleads for clemency, contending that it was not he but his attorney who could not have “ ‘cared less’ about the accuracy of the schedules” and that it would be a “gross injustice to penalize Christofalos for the incompetence of his counsel.” The brief making this argument was filed by the same attorney, Maurice Salem, who accuses himself of incompetence. Whether attorney Salem committed malpractice or violated the Illinois Rules of Professional Conduct is not before this court. But Salem himself testified in the adversary proceeding that he reviewed the schedules and statement of financial affairs with his client, paragraph by paragraph. That evidently unrebutted testimony supports the bankruptcy court’s conclusion that Christofalos’s misstatements were not inadvertent but were intentional and' fraudulent. The denial of Christofalos’s petition for a Chapter 7 discharge is AFFIRMED. Given the gravity of the apparent misconduct here, we are referring this case to the United States Attorney for the Northern District of Illinois for further review.

IV. Lardas II (No. 16-1210)

In Lardas II, Christofalos appeals the denial of his “Motion to Reopen Case and Assign a Receiver” and his subsequent motion for reconsideration, both of which he filed in Lardas’s ease in district court while that case remained under advisement in this court in Appeal No. 15-1685. Christofalos cited no authority for his “Motion to Reopen.” Because he is no longer a plaintiff in his aunt’s case — the district court dismissed the original complaint and Lardas re-filed as sole plaintiff — we assume he sought both permissive intervention under Federal Rule of Civil Procedure 24(b) and then relief from a final judgment pursuant to Rule 60(b)(6). The district .court denied Christofalos’s motions, Lar-das v. Grcic, No. 14 C 193, 2016 WL 7367946, at *2 (N.D. Ill. Dec. 20, 2016). Having reviewed the district court’s decision and Christofalos’s brief, we summarily affirm.

The relief Christofalos seeks would be unusual under any circumstances. “Permissive intervention under Rule 24(b) is wholly discretionary,” Sokaogon Chippewa Community v. Babbitt, 214 F.3d 941, 949 (7th Cir. 2000), while Rule 60(b) provides an “extraordinary remedy” for exceptional situations, Eskridge v. Cook County, 577 F.3d 806, 809 (7th Cir. 2009) (citation omitted). Christofalos asserts that he is entitled to intervene in his aunt’s lawsuit because the bankruptcy trustee “abandoned” his claim against the Grcics. That assertion- is simply wrong. As noted, the trustee sold Christofalos’s claim, along with his interest in WSP and another lawsuit, to the Grcics. We dismiss as moot Christofalos’s challenge to that sale. Chris-tofalos has no remaining interest in his prior claim. We also affirm the dismissal of Lardas’s suit for lack of standing, so even if Christofalos had some remaining claim, there is no live case in which he might intervene. The district court was right to deny Christofalos’s last-ditch effort to prolong this multi-front litigation. The district court’s decision is AFFIRMED.

      . Christofalos was originally a co-plaintiff 'in this action, but the district court dismissed the initial complaint without prejudice. Lar-das filed an amended complaint as the sole plaintiff.

      . Federal district courts exercise appellate jurisdiction over "final judgments, orders, and decrees” entered by bankruptcy judges in "cases and proceedings.” 28 U.S.C. § 158(a). Federal circuit courts of appeals in turn exercise appellate jurisdiction over "final decisions, judgments, orders, and decrees” entered by district judges in their appellate capacity. § 158(d)(1); see also Smith v. Capital One Bank (USA), N.A., 845 F.3d 256, 259 (7th Cir. 2016) ("In the bankruptcy context, both the bankruptcy court decision and the district court decision must be final.”). Christofalos's appeal in Cohen concerns not a final order of the bankruptcy court granting or denying a discharge but rather an event during the life of a Chapter 7 bankruptcy — the sale of an asset. While in previous cases we have recognized that an order approving or denying sale of a debtor’s property is immediately appealable, the Supreme Court's recent decision in Bullard v. Blue Hills Bank, 575 U.S. -, 135 S.Ct. 1686, 191 L.Ed.2d 621 (2015), could be read to create a question about the viability of those prior holdings. Bullard held that an order declining to approve a proposed Chapter 13 repayment plan is not immediately appealable. The Court concluded that the relevant "proceeding,” within the meaning of section 158(a), is the "entire process culminating in confirmation or dismissal.” Id. at 1693. At oral argument, we asked the parties whether the logic oí Bullard extends to the approval of discrete asset sales, and we ordered supplemental briefing on the question. We do not resolve here the extent to which Bullard may affect the immediate appealability of a sale order because we find that Christofalos's challenge is moot. Accordingly, we dismiss the appeal on that well-trodden ground.

      . Christofalos designated only the adversary pleadings, the transcript of the bankruptcy court’s November 23, 2015 oral decision, and the bankruptcy court’s subsequent judgment as the record on appeal in the district court. He did not designate or otherwise produce any transcripts or exhibits from the trial, either in the district court or in this court. We cannot entertain claims that factual findings were clearly erroneous when the party claiming error fails to include in the appellate record the evidence we would need to evaluate the claim. See Fed. R. Bankr. P. 8009(a)(1)(A), (b)(1)(A) (providing that the bankruptcy appellant must designate items to be included in the record on appeal and must order transcripts of "such parts of the proceedings ... as the appellant considers necessary for the appeal”); see also Fed. R. Bankr. P. 8009(b)(5) ("If the appellant intends to argue on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant must include in the record a transcript of all relevant testimony and copies of all relevant exhibits.”); cf. In reDomer, 343 F.3d 910, 912, 914-15 (7th Cir. 2003) (where bankruptcy clerk failed to transmit record that debtor-appellant had designated, but where appellant failed to supplement record on appeal in circuit court and "elected to proceed as if there were no problem,” circuit court found on skeletal record "no reason to think that the bankruptcy-judge committed a clear error or abused his discretion”); id. at 914-15 ("A litigant whose position in the court of appeals depends on extra-record evidence loses forthwith.”).