author: KANNE, Circuit Judge.

text:
    Fernando DELATORRE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 15-1632
    United States Court of Appeals, Seventh Circuit.
    Argued September 28, 2016
    Decided February 3, 2017
    Rehearing and Rehearing En Banc Denied April 6, 2017

      Isaac Philip Rabicoff, Attorney, Rabicoff Law LLC,' Chicago, IL, for Petitioner-Appellant.
    Stuart D. Fullerton, Attorney, Office of the United States Attorney, Chicago, IL, for Respondent-Appellee.
    Before KANNE, SYKES, and HAMILTON, Circuit Judges.
   KANNE, Circuit Judge.

A jury convicted Fernando Delatorre of several felonies. He was sentenced to life in prison, and his conviction and sentence were affirmed on appeal. He then filed a motion to vacate, set aside, or correct his sentence, arguing that (1) the prosecutor committed misconduct by reneging on a promise to provide him with a plea agreement and (2) his pretrial counsel’s performance was constitutionally ineffective. The district court rejected these claims and denied his collateral motion.

Because Delatorre failed to raise the prosecutorial-misconduct claim in the district court or on direct appeal, we hold that this claim has been procedurally defaulted. We further hold that Delatorre has failed to meet the cause-and-prejudice standard necessary to overcome procedural default. We therefore do not address the merits of that claim. Finally, because Delatorre’s pretrial counsel was not deficient and because Delatorre suffered no prejudice as a result of his counsel’s performance, we reject his claim of ineffective assistance of counsel. •

I. Background

Delatorre was a member of the Insane Deuces street gang in Aurora, Illinois. In 2002, state and federal authorities — assisted by Delatorre’s fellow gang-member Orlando Rivera, who had agreed to serve as a confidential informant — began investigating the gang. Rivera worked with the. authorities and recorded several meetings and conversations between active members of the gang, including Delatorre. Through these recordings, Rivera produced evidence of the gang members’ many crimes, including at least four murders, eleven attempted murders, two solicitations to commit murder, several shootings, and numerous drug offenses.

On January 31, 2003, Delatorre was arrested for his connections to these crimes. Shortly after his arrest, he confessed to his involvement in at least three of the murders. In 2006, Delatorre and fifteen other gang members were indicted on racketeering and other related charges. The district, court then divided the sixteen defendants ■into two groups for trial. Delatorre was tried with other gang leaders. A jury convicted him of (1) engaging in racketeering conspiracy; (2) murder in aid of racketeering activity; (3) conspiracy to distribute a controlled substance; (4) assault with a dangerous weapon in aid of racketeering activity; (5) distribution of crack cocaine; and (6) possession of a firearm with an obliterated serial number. He was sentenced to life in prison.

Delatorre and his codefendants raised several arguments oil appeal. We rejected each of those arguments in two separate opinions. See United States v. Benabe, 654 F.3d 753 (7th Cir. 2011); United States v. Benabe, 436 Fed.Appx. 639 (7th Cir. 2011). Delatorre then filed a petition for a writ of certiorari in the Supreme Court. On February 21, 2012, the Supreme Court denied that petition.

On February 6, 2013, Delatorre moved to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 in the Northern District of Illinois. In that motion, he argued that (1) the prosecutor committed misconduct by reneging on a promise to provide a plea agreement and (2) his pretrial counsel was constitutionally ineffective.

Delatorre based his prosecutorial-mis-conduct and ineffective-assistance-of-counsel claims on events associated with his cooperation with the government beginning in February of 2003, shortly after his arrest. At that time, he participated in eight to ten proffer sessions with the United States Attorney’s Office. A proffer letter, which Delatorre and the prosecutor both signed, outlined the cooperation arrangement. In exchange for his cooperation and truthful testimony both during the proffer sessions and at subsequent court appearances, the government agreed not to use “anything related to the government by [Delatorre or his attorney] during the proffer” in any subsequent criminal proceedings filed against Delatorre. (R. 1 at 34.) The letter further explained that it “embodie[d] the entirety of the agreement to make a proffer.... No other promise or agreement exist[ed] between [Delatorre] and [the government] regarding the proffer.” (R. 1 at 35.)

At one of the later proffer sessions, De-latorre asked the prosecutor how much time he was “eventually going to have to serve[.]” (R. 1 at 12.) The prosecutor responded “A long time.” (R. 1 at 12.) Unsatisfied with this answer, Delatorre repeated his request. The prosecutor responded “A long time, you were involved in too much.” (R. 1 at 13.) Delatorre then asked the prosecutor “exactly how long” he would have to serve, and the prosecutor responded “You will serve 25-30 years.” (R. 1 at 13.) The prosecutor further explained that he intended to provide Delatorre with a plea agreement if he continued to cooperate, but that he would have to serve at least twenty-five to thirty years because the government “h[eld] all the cards.” (R. 1 at 13.)

After completing these proffer sessions, Delatorre requested a formal plea agreement that included the twenty-five to thirty year term. The prosecutor “made it very clear that at that point he could not provide [Delatorre] with a plea or anything in writing and would not with respect to the 25-30 year offer.” (R. 1 at 13.) Instead, the prosecutor instructed Delatorre to “continue cooperating, take a leap of faith, and play ball.” (R. 1 at 13.) Delatorre then testified twice before a grand jury without a plea agreement.

Because the government continued to refuse to give Delatorre a plea deal, he stopped “playing ball” shortly thereafter. Despite repeated efforts by his attorney— Fred Morelli — to encourage him “in the strongest possible terms” to continue cooperating, Delatorre refused to appear before the grand jury a third time to complete his testimony. (R. 1 at 36, 38.) Morelli then explained that Delatorre’s continued refusal to cooperate would likely “result in [his] indictment on, at the least, the federal case for which [he was] arrested and for either two or three murders.” (R. 1 at 36.) Morelli further explained to Delatorre that a jury would likely convict him of at least one of those murders, and that if convicted, he would almost certainly be sentenced to life in prison, or worse, be eligible for the death penalty. Nonetheless, Delatorre refused to cooperate with the government and had no further contact with Morelli, who soon withdrew his representation. Because he ceased his cooperation, Delatorre never received a plea agreement.

In his § 2255 motion filed with the district court, Delatorre alleged that the prosecutor promised to provide him with a plea agreement that included a recommended sentence of twenty-five to thirty years. He thus argued that the prosecutor committed misconduct by reneging on that promise and failing to provide him with a plea deal. In the same vein, Delatorre also argued that Morelli’s failure to secure the allegedly agreed-upon plea agreement amounted to constitutionally ineffective assistance of counsel. The district court rejected those arguments and denied his motion. Dela-torre then filed a motion for reconsideration, which the district court also denied. This appeal followed.

II. Analysis

On appeal, Delatorre reasserts his two arguments related to the prosecutor’s alleged breach of a promise to provide him with a plea agreement. We review a district court’s denial of a § 2255 motion de novo as to issues of law. Blake v. United States, 723 F.3d 870, 879 (7th Cir. 2018). We review the district court’s factual findings for clear error. Id. We begin with the prosecutorial-misconduct claim and then turn to the ineffective-assistance-of-counsel claim.

A. Prosecutorialr-Misconduet Claim

Delatorre first argues that the prosecutor committed misconduct when he reneged on his promise to provide a plea agreement. But Delatorre did not raise this claim in the district court at trial or on his direct appeal. Instead, he raised this claim for the first time on collateral review in his § 2255 motion. Any claim that could have been raised originally in the trial court and then on direct appeal that is raised for the first time on collateral review is proeedurally defaulted. Hale v. United States, 710 F.3d 711, 713-14 (7th Cir. 2013) (holding that a claim that was not raised in the trial court or on direct appeal was “doubly defaulted” on collateral review). Thus, Delatorre’s prosecutorial-misconduct claim is proeedurally defaulted.

Proeedurally defaulted constitutional claims are not considered on eollat-eral review unless the petitioner shows either (1) actual innocence or (2) cause and prejudice. Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). Delatorre makes no argument for actual innocence. We therefore restrict our analysis to the cause-and-prejudice standard. See McCoy v. United States, 815 F.3d 292, 295 (7th Cir. 2016). To excuse a procedural default for cause and prejudice, a petitioner must demonstrate both (1) good cause for his failure to raise the defaulted claim before collateral review and (2) actual prejudice stemming from the violations alleged in the defaulted claim. Theodorou v. United States, 887 F.2d 1336, 1340 (7th Cir. 1989).

To establish “cause,” Delatorre argues that he was unaware during his trial and on direct appeal that the government’s failure to offer a plea agreement, as allegedly promised, amounted to a constitutional violation. He does not argue, however, that he was unaware of any of the facts giving rise to that potential claim. In fact, he knew before his trial even began that the government allegedly promised him a plea agreement and that he was never presented with that plea agreement: he was thus aware of all of the facts giving rise to the alleged violation. Nothing occurred after his trial or direct appeal that altered his potential claim. Thus, the proper time to raise that argument was at the district court before he was convicted and then again on direct appeal, not for the first time on collateral review. The fact that Delatorre may have been subjectively unaware of the constitutional ramifications of the government’s inaction is not sufficient “cause” justifying a procedural default. See id. at 1340-41 (holding that a defendant who was aware of all of the facts giving rise to the claimed constitutional violation before sentencing could not establish “cause” for his procedural default).

Delatorre also argues that his pros-ecutorial-misconduct claim — like most claims of ineffective assistance of counsel — is so inextricably linked to extrinsic evidence that it could not have been properly considered on direct appeal. He argues that this also provides “cause” for his procedural default. We disagree.

Delatorre is correct that “[a] reviewing court on direct appeal is limited to the record of trial and cannot consider any extrinsic evidence.” Galbraith v. United States, 313 F.3d 1001, 1007 (7th Cir. 2002). A claim of ineffective assistance of counsel requires a defendant to prove that his counsel performed deficiently and that this deficiency caused him prejudice. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “The evidence introduced at trial [in the case giving rise to the claim of ineffective assistance], however, will be devoted to issues of guilt or innocence, and the resulting record in many cases will not disclose the facts necessary to decide either prong of the Strickland analysis.” Massaro v. United States, 538 U.S. 500, 505, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003). Thus, claims of ineffective assistance, by their very nature, are almost “invariably doomfed]” on direct review because they often require augmentation of the record with extrinsic evidence, which cannot be considered. United States v. Gilliam, 255 F.3d 428, 437 (7th Cir. 2001) (quoting United States v. Godwin, 202 F.3d 969, 973 (7th Cir. 2000)). We thus permit these claims, in most instances, to be raised for the first time on collateral review. United States v. Flores, 739 F.3d 337, 341 (7th Cir. 2014) (citing Massaro, 538 U.S. 500, 123 S.Ct. 1690).

Delatorre’s prosecutorial-misconduct claim, on the other hand, does not, by its very nature, require augmentation of the record. The only reason extrinsic evidence is required to prove his claim is because he failed to raise this claim in the district court in the first place. Had he raised this claim at the proper time — in the district court before he was convicted — his evidence supporting. that claim would have been in the trial record and could have been considered on direct appeal. His prosecutorial-misconduct claim is not akin to an ineffective-assistance-of-counsel claim in this regard, and we refuse to reward Delatorre for his creation of an evidentiary issue.

Because Delatorre has provided no plausible “cause” for his failure to raise his prosecutorial-misconduct claim before collateral review, we decline to excuse the procedural default and do not address the merits of that claim.

B. Ineffective-Assistance-of-PretriaV-Counsel Claim

Delatorre’s ineffective-assistance-of-counsel claim is related to his prosecutorial-misconduct claim. Like with his first claim, he again relies on an alleged promise made by the prosecutor to provide him with a plea agreement that included a maximum recommended sentence of twenty-five to thirty years. According to Delatorre, his pretrial counsel — Morelli— rendered constitutionally ineffective assistance when he failed to secure that allegedly promised plea agreement.

We first briefly note that this claim does not suffer from the same procedural default as the prosecutorial-miscon-duct claim even though it, too, was raised for the first time in Delatorre’s § 2255 motion. As discussed above, ineffective-assistance-of-counsel claims, by their very nature, are almost “invariably doom[ed]” on direct review. Gilliam, 255 F.3d at 437 (quoting Godwin, 202 F.3d at 973). Thus, we generally permit a petitioner to raise these claims for the first time on collateral review, “regardless of whether the petitioner could have raised the claim on direct appeal.” Gaylord v. United States, 829 F.3d 500, 506 (7th Cir. 2016) (citing Massaro, 538 U.S. at 504, 123 S.Ct. 1690). We follow that general rule here and excuse Delatorre’s failure to raise this argument on direct appeal. We now turn to the merits of this claim.

To succeed on his Sixth Amendment claim of ineffective assistance of counsel, Delatorre had to demonstrate both elements of the test announced in Strickland, 466 U.S. 668, 104 S.Ct. 2052. First, he had to show that his counsel’s performance was constitutionally deficient, meaning that it “fell below an objective standard of reasonableness” measured “under prevailing professional norms.” Id. at 688, 104 S.Ct. 2052. Second, he had to show that he suffered prejudice because of this deficiency, meaning that there was “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. The district court concluded that Delatorre had failed to establish either element. We agree. We begin our discussion with deficient performance and then move to prejudice.

1. Deficient Performance

Delatorre has failed to establish that Morelli’s representation was constitutionally deficient. When analyzing deficient performance, we apply a “‘strong presumption’ that counsel’s representation was "within the ‘wide range’ of reasonable professional assistance.” Harrington v. Richter, 562 U.S. 86, 104, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). The central question in this analysis is not whether counsel’s conduct “deviated from best practices or most common custom,” but instead, “whether an attorney’s representation amounted to incompetence under ‘prevailing professional norms.’ ” Sussman v. Jenkins, 636 F.3d 329, 349-50 (7th Cir. 2011) (quoting Harrington, 562 U.S. at 105, 131 S.Ct. 770). In other words, a counsel’s representation “need not be perfect, indeed not even very good, to be constitutionally adequate.” McAfee v. Thurmer, 589 F.3d 353, 355-56 (7th Cir. 2009) (quoting Dean v. Young, 777 F.2d 1239, 1245 (7th Cir. 1985)). It must merely be reasonably competent. Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

Delatorre is correct that his Sixth Amendment right to effective counsel “extends to the plea-bargaining process.” Lafler v. Cooper, 566 U.S. 156, 162, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012); see also Missouri v. Frye, 566 U.S. 133, 144, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012) (“In today’s criminal justice system ... the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.”). The Supreme Court has held that an attorney who fails to make a meaningful attempt to inform his client of an existing written plea offer, Frye, 566 U.S. at 149, 132 S.Ct. 1399, or advises his client to reject a highly favorable plea offer “on the grounds [the client] could not be convicted at trial,” Lafler, 566 U.S. at 163, 132 S.Ct. 1376, has performed deficiently under the Sixth Amendment. Delatorre cannot rely on these cases, however, because he was never formally offered a plea agreement.

Instead, Delatorre’s claim of deficient performance centers on his attorney’s inability to secure a plea deal that included a maximum recommended sentence of twenty-five to thirty years. In making this argument, Delatorre again focuses on the prosecutor’s alleged promise to provide him with a plea agreement. True enough, the prosecutor did suggest that, if Dela-torre continued to cooperate, the government would then offer him a plea agreement. But even if we assume that this suggestion was a “promise” of a plea deal, it was explicitly conditioned on Delatorre’s continued cooperation. Because Delatorre ceased cooperating, the government did not offer him a plea agreement. So the government did not breach any promise.

Morelli’s representation was entirely reasonable under the circumstances. Before he began representing Delatorre, De-latorre had already made incriminating statements to Rivera — who again, was acting as a government informant. Moreover, Delatorre had already confessed to the authorities his involvement in at least three of the murders. Delatorre’s options were thus already “rather limited” by the time Morelli began representing him. Delatorre v. United States, No. 13 C 1355, 2015 WL 1176820, at *7 (March 11, 2015). In fact, Morelli believed that the government had more than enough evidence to convince a jury to convict Delatorre of at least some of the crimes for which he was charged. In Morelli’s opinion, the prosecutor was willing to negotiate with Delatorre only because he was one of the first gang members to come forward and speak with the government. In an effort to secure the most favorable plea agreement possible, Morelli therefore instructed his client — on numerous occasions — to cooperate fully with the government.

“[T]he successful negotiation of a plea agreement involves factors beyond the control of counsel, including the cooperation of his client, clearly absent here, as well as the cooperation of the prosecutor, who has no obligation to offer such an agreement.” United States v. Hall, 212 F.3d 1016, 1022 (7th Cir. 2000). Morelli cannot be faulted for Delatorre’s refusal to cooperate, especially in light of his repeated efforts to encourage his client to do so. Moreover, he cannot be faulted for the government’s decision not to reward an uncooperative defendant with a plea agreement. The government is not required to offer any defendant such an agreement. Id. Delatorre’s arguments that Morelli’s representation was anything but competent are unavailing. Under the circumstances, Morelli’s representation was not constitutionally deficient. In fact, it was quite reasonable.

2. Prejudice

Even if we believed that Mor-elli’s representation was constitutionally deficient, we would still reject Delatorre’s ineffective-assistance-of-counsel claim because he also cannot establish that he suffered prejudice as a result of Morelli’s representation. To demonstrate prejudice, Delatorre had to show a reasonable probability that “the outcome of the plea process would have been different with competent advice.” Lafler, 566 U.S. at 163, 132 S.Ct. 1376. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Because Delatorre’s prejudice argument centers on his attorney’s inability to secure a plea agreement for him, Delatorre had to show — at a minimum — that the prosecutor would have actually offered him a deal had his attorney been competent. See Frye, 566 U.S. at 147-49, 132 S.Ct. 1399 (discussing the prejudice standard in cases where the defendant alleges that he did not receive the benefit of a plea agreement because of his attorney’s deficient performance).

He has failed to meet this burden. As discussed above, it was Delatorre’s stubborn refusal to continue cooperating that prevented him from securing a plea deal, not his attorney’s performance. Nothing in the record indicates that the prosecutor would have provided Delatorre, an uncooperative defendant, with a plea deal had Morelli performed any differently. In short, Delatorre did not suffer prejudice from his attorney’s performance.

III. Conclusion

For the foregoing reasons, we AFFIRM the district court’s denial of Delatorre’s motion.

      . In his § 2255 motion, Delatorre also argued that his Sixth and Eighth Amendment rights had been violated. Because we issued a certificate of appealability only as to the prosecuto-rial-misconduct and ineffective-assistance-of-counsel claims, we do not address these additional claims.

      . The district court did not consider procedural default, and it is unclear from the record whether the government ever made this argument before this appeal. As we noted in Doe v. United States, the government’s failure to raise a procedural-default argument in the district court might result in a waiver of that argument. 51 F.3d 693, 698-99 (7th Cir. 1995). We need not consider that issue here, however, because Delatorre never argued that the government waived its procedural-default argument. Id. at 699. In fact, like the defendant in Doe, Delatorre "devote[d] a significant portion of the reply brief establishing 'cause' for the default.” Id. We think that "[i]t is apparent, then, that [Delatorre] has conceded the government's assertion of procedural default (or, at the risk of being tedious, waived any argument that the government waived its defense of waiver).” Id. It also doesn’t matter that the district court did not consider procedural default: "We may affirm on any basis fairly presented in the record.” Figgs v. Dawson, 829 F.3d 895, 902 (7th Cir. 2016).


source: Caselaw Access Project

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Ramon E. RIVERA, Defendant-Appellant.
    No. 16-1322
    United States Court of Appeals, Seventh Circuit.
    Argued October 28, 2016
    Decided February 3, 2017

      Keith S. Alexander, Attorney, Margaret Blackwood Honrath, Attorney, Jonathan H. Koenig, Attorney, Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.
    Johanna M. Christiansen, Attorney, Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.
    Before RIPPLE, KANNE, and ROVNER, Circuit Judges.
   KANNE, Circuit Judge.

On December 23, 2014, Rivera and three others robbed a Milwaukee bar called the Brew City Tap. They all wore masks; and three of them were armed, two with BB guns and one with a .40-caliber handgun. They left with $857.25.

Four days later, they robbed the Sky Zone Indoor Trampoline Park. This robbery was more successful than the prior one, netting them over $12,000.

Nearly fifty businesses throughout the Milwaukee area suffered similar armed robberies between October 2013 and January 2015. Although various cooperating witnesses implicated Rivera in thirty of those robberies, the government sought a reckoning for only five of them. To that end, the government charged Rivera with five counts of Hobbs Act robbery under 18 U.S.C. §§ 1951(a) and 2. The government also took the position that Hobbs Act robbery constitutes a “crime of violence” as defined under 18 U.S.C. § 924(c)(3). So in addition to the five Hobbs Act robbery counts, the government tacked on five counts of brandishing a firearm in furtherance of a crime of violence under 18 U.S.C. §§ 924(c) and 2. Rivera agreed to plead guilty to two of the crime-of-violence counts in exchange for the government dropping the other charges. Judge Stadt-mueller accepted Rivera’s guilty plea on November 12, 2015.

On February 4, 2016, Judge Stadtmuel-ler sentenced Rivera to the mandatory minimum of thirty-two years’ imprisonment. He also imposed a five-year term of supervised release, which he said he was “obliged” to do. (R. 196 at 24.)

Rivera timely appealed his convictions and sentence, raising two issues: (1) whether Hobbs Act robbery qualifies as a “crime of violence” under § 924(c); and (2) whether Judge Stadtmueller committed procedural error by saying he was “obliged” to impose a five-year supervised-release term.

With respect to the first issue, we have recently decided that Hobbs Act robbery indeed qualifies as a “crime of violence” under § 924(c) because it “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” United States v. Anglin, No. 15-3625, 2017 WL 359666, at *6-7 (7th Cir. Jan. 25, 2017) (quoting 18 U.S.C. § 924(c)(3)(A)). The Hobbs Act defines robbery in relevant part as “the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property.” 18 . U.S.C. § 1951(b)(1). Because one cannot commit Hobbs Act robbery without using or threatening physical force, we held that Hobbs Act robbery qualifies as a predicate for a crime-of-violence conviction. Anglin, 2017 WL 359666, at *7.

We have little to add to the analysis in Anglin, except to address one additional argument. Rivera contends that the Supreme Court’s recent decision in Mathis v. United States undermines the notion that physical force is' an “element” of Hobbs Act robbery. — U.S.-, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). In Mathis, the Court explained that “[elements are the constituent parts of a crime’s legal definition,” or the things upon which a jury must agree to convict. Id. at 2248 (internal quotation marks omitted). “Means,” on the other hand, “spell[] out various factual ways of committing some component of the offense,” and a jury need not agree on which way the defendant committed the offense to convict him. Id. at 2249. Rivera asserts that Hobbs Act robbery has three elements — (1) taking property (2) from another (3) against his will — and several means by which to commit the “against his will” element, including force, violence, and threatening injury. For example, he contends that a jury could convict him of Hobbs Act robbery even if one juror found that he committed robbery through violence while another found that he committed robbery by threatening injury. Under this reading of the statute, Hobbs Act robbery does not have physical force as an element and thus is not a crime of violence under the force clause.

But Rivera takes the Supreme Court’s discussion of means and elements out of context. Contrary to Rivera’s belief, the Court did not distinguish between means and elements to dictate which parts of a statute matter in a predicate-offense analysis. The Court instead made this distinction to explain when it is appropriate to use the categorical approach versus a “modified” categorical approach — an issue that is irrelevant here. Mathis, 136 S.Ct. at 2249.

Even if Rivera’s application of Mathis is correct, his argument still fails. The distinction between means and elements would matter only if one of the ways to commit Hobbs Act robbery, say, putting another in fear of injury, did not involve force, so that a juror could find a defendant guilty irrespective of whether he used force to commit the crime. But as noted above, one cannot commit Hobbs Act robbery without using or threatening force. Anglin, 2017 WL 359666, at *7. Because each of the means by which to satisfy the “against his will” element requires physical force, the “against his will” element itself requires physical force.

We now turn to the second issue on appeal regarding Rivera’s supervised-release term. Rivera’s § 924(c) convictions carry a maximum five-year term of supervised release following imprisonment. See 18 U.S.C. § 3583(b)(1). The government concedes that this term is not mandatory. Nevertheless, at sentencing, Judge Stadt-mueller said he was “obliged” to impose a five-year term. (R. 196 at 24.) Rivera argues that this statement suggests that the judge erroneously believed that the law required a five-year term, so we should remand for resentencing.

We review de novo whether a district court committed procedural error when sentencing a defendant. United States v. Dorsey, 829 F.3d 831, 836 (7th Cir. 2016). In United States v. Lyons, we vacated a sentence that included a five-year supervised-release term because the district judge clearly thought that term was mandatory, when, like here, it wasn’t. 733 F.3d 777, 784 (7th Cir. 2013). This was evident by the fact that the judge noted that the defendant would “have to serve five years of mandatory supervised release” at the sentencing hearing, referred to the term as “5 years Mandatory Supervised Release” in her judgment, and indicated that the “mandatory minimum sentence was imposed” in her statement of reasons. Id. at 781. We held that her misunderstanding constituted a “manifest procedural error.” Id. at 784.

But that’s not the case here. Although Judge Stadtmueller said he was “obliged” to impose a five-year term, this does not necessarily mean that he thought the term was mandatory. To be sure, the word “obliged” does connote a legal obligation; but it also encompasses a moral duty. See Black’s Law Dictionary 1106 (8th ed. 2004) (defining “oblige” as “[t]o bind by legal or moral duty”); Webster’s Third New International Dictionary, 1556 (1986) (defining “oblige” as “[t]o constrain (as another or oneself) by physical, moral, or legal force”). If Judge Stadtmueller thought he was legally required to impose a five-year term, then he committed procedural error; but if he felt morally bound to impose this term based on the sentencing factors he considered, then there was no error.

The record indicates that Judge Stadt-mueller used the word “obliged” in the latter way. For instance, at the ehange-of-plea hearing, Judge Stadtmueller referenced paragraph six of the plea agreement, which explained that Rivera faced a maximum five-year term of supervised release. (R. 195 at 9); (R. 117 at ¶ 6.) Judge Stadtmueller instructed Rivera to summarize this paragraph to ensure that Rivera fully understood the maximum possible sentence. (R. 195 at 9-10.)

Moreover, the presentence investigation report prohibited imposing a supervised-release term exceeding five years, and cited U.S.S.G. § 5D1.2(a)(l), which recommends a two- to five-year term. (R. 175 at ¶¶ 138-39.) Judge Stadtmueller relied on this report at sentencing, saying that Rivera’s prison term would be “followed by a term of supervised release of 2 to 5 years.” (R. 196 at 5.)

Finally, Judge Stadtmueller’s statement of reasons noted that the supervised-release range is “[a]t least 2 years but not more than 5 years.” (R. 184 at 1.) All of this shows that Judge Stadtmueller understood that a five-year term was not mandatory, but he felt obliged — in a moral sense — to impose this term nonetheless.

In United States v. Dill, we addressed a similar challenge to Judge Stadtmueller’s use of the word “obliged” when imposing a sentence. 799 F.3d 821, 825-26 (7th Cir. 2015). Although we noted that “obliged” is an ambiguous word, we recognized the dichotomy between the legal and moral understanding of the word. Specifically, we acknowledged that “[a] judge pronouncing [a] sentence often explains to a defendant how the defendant has earned the sentence by his own choices, which have forced the judge to impose a just punishment.” Id. We upheld the sentence, holding that Judge Stadtmueller did not mean “obliged” in the word’s legal sense.

Judge Stadtmueller could have — and probably should have — used less ambiguous language when sentencing Rivera. That said, the record demonstrates that Judge Stadtmueller used the word “obliged” in the moral sense — not the legal one. And our holding in Dill corroborates this conclusion. We thus hold that there was no procedural error.

For these reasons, we AFFIRM the district court’s judgment.

      . The first crime-of-violence conviction carried a mandatory minimum sentence of seven years’ imprisonment. 18 U.S.C. § 924(c)(l)(A)(ii). The second one carried a mandatory minimum sentence of twenty-five years’ imprisonment. 18 U.S.C. § 924(c)(l)(C)(i).


author: RIPPLE, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jason L. NICHOLS, Defendant-Appellant.
    No. 16-1628
    United States Court of Appeals, Seventh Circuit.
    Argued September 23, 2016
    Decided February 6, 2017

      David J. Reinhard, Attorney, Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.
    Kim M. Zion, Attorney, Eisenberg Law Offices, S.C., Madison, WI, for Defendants Appellant.
    Before RIPPLE, ROVNER, and SYKES, Circuit Judges.
   RIPPLE, Circuit Judge.

Jason Nichols was charged with two counts of possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g). Prior to trial, Mr. Nichols moved to suppress the evidence relating to the second count, and, following an evidentiary hearing, the district court denied his motion. He then pleaded guilty to count two, reserving his right to appeal the suppression issue. The Government moved to dismiss the first count and the court granted that motion.

In calculating the appropriate guidelines range, the district court denied Mr. Nichols credit for acceptance of responsibility and imposed an enhancement for obstruction of justice. It also concluded that he was not entitled to a reduction in his offense level on the ground that all the firearms and ammunition in his possession were used exclusively for sporting purposes. The court imposed a sentence of 27 months’ imprisonment, at the low end of the applicable guidelines range.

Mr. Nichols now challenges his conviction and sentence. He contends that his confession to law enforcement was involuntary and should have been suppressed by the district court. He further contends that, in calculating his sentencing guidelines range, the court should have given him credit for acceptance of responsibility, see U.S.S.G § 3E1.1, and should not have imposed an enhancement for obstruction, id. § 3C1.1. Finally, he submits that his guidelines range should have been reduced because all of the contraband for which he was prosecuted was used for lawful sporting purposes. See U.S.S.G. § 2K2.1(b)(2).

We affirm. The district court was faced with opposing versions of the circumstances of Mr. Nichols’s confession from Mr. Nichols himself and his probation officer; it made a credibility determination, which we have no cause to upset on appeal. In light of its determination that Mr. Nichols testified falsely in connection with his motion to suppress, the court committed no reversible error in applying the obstruction enhancement and denying credit for acceptance of responsibility. Finally, Mr. Nichols’s unsupported statements failed to carry his burden of demonstrating that the contraband involved in his case was used exclusively for lawful sporting purposes as would justify a reduction under U.S.S.G. § 2K2.1(b)(2).

I

BACKGROUND

A.

On January 7, 2015, Mr. Nichols was involved in an altercation at his home that escalated when he threatened someone with a weapon. Responding officers of the Iowa County, Wisconsin Sheriffs Department took him into custody. During the subsequent investigation of the altercation, Mr. Nichols consented to a search of his property. During the search, officers found a black case for a Taurus brand handgun with six .40 caliber rounds in it, as well as a stray round in a cabinet. In the same cabinet, officers discovered a Taurus PT 58 SS .380 semi-automatic handgun with a fully loaded magazine along with other ammunition in a separate, zippered case. Mr. Nichols stated that he previously had sold a handgun without its case and that he had forgotten about the remaining handgun.

At the time of the incident, Mr. Nichols was serving a three-year probation term for a prior federal felony mail fraud offense. When his probation officer, Kris Kiel, learned of Mr. Nichols’s arrest, she conducted a home visit. In the course of that visit, Mr. Nichols turned over to Officer Kiel a gallon-size container, half-full of various types of firearm ammunition as well as two or three shotgun shells, which he retrieved separately from a hunting vest.

B.

In April 2015, a federal grand jury indicted Mr. Nichols on one count of possession of a firearm and ammunition by a felon and one count of possession of ammunition by a felon, both in violation of 18 U.S.C. § 922(g). Mr. Nichols initially pleaded not guilty and moved to suppress the evidence underlying the second count. He claimed that any statements and surrender of contraband that he had made to Officer Kiel were involuntary and based on false promises of leniency.

A magistrate judge held a hearing on the motion. Officer Kiel testified that she had been a U.S. Probation Officer for twenty-three years. She described her review of the police report from the January 7 altercation, and the brief phone contacts she had with Mr. Nichols to set up the home visit on January 23. She noted that she had been concerned about the possibility that Mr. Nichols had a firearm on his property because the police report had noted the recovery of an empty handgun case. With respect to the visit itself, she described Mr. Nichols as calm and cooperative. She stated that she had inquired about the empty case and that he had told her that he sold the weapon without its case to a former girlfriend.

According to Officer Enel, this exchange led to a conversation “about contraband and what constituted contraband.” She explained that “guns, ammunition, drugs, anything like that would be considered contraband” and asked whether he had any. At that point, according to Officer Kiel, Mr. Nichols led the way to the basement and gave Officer Kiel “a gallon-size half-full container of ammunition of various types.” Officer Kiel then inquired whether there was any other contraband in the house, and Mr. Nichols led Officer Kiel and her colleague back upstairs and took two or three shotgun shells out of a hunting vest and gave them to her.

Officer Kiel affirmatively stated that neither in her pre-visit calls nor in the home visit itself did she ever make any promises of leniency to Mr. Nichols in exchange for his cooperation in turning over any contraband. She also did not threaten him with revocation of his probation for failure to answer questions or cooperate. She stated that it was the policy of the Probation Office to make no promises to defendants who are under supervision. Officer Kiel also stated that, in her many years as a Probation Officer, this occasion was only the second time that someone had turned over a weapon or ammunition to her. It was not her practice to request such a turnover; rather, she would inform those under her supervision of the prohibition on contraband, what it covered, • and consequences for violation. She would reiterate this information on multiple occasions throughout probation. The court also asked several folíow-up questions, and Officer Kiel noted that she had begun discussing these prohibitions with Mr. Nichols when he was in his pretrial phase for his prior offense. She knew him to be an avid hunter, and she knew of the presence of hunting equipment; once he was placed on probation following the conviction, she initiated and repeated the conversations about contraband.

Mr. Nichols also testified at the hearing. He claimed that “[sjhortly after being placed on probation” he discussed firearms and ammunition with Officer Kiel. Specifically, according to Mr. Nichols, Officer Kiel had told him that “if [he] was to find any ammunition in the home” he should “give it to her.” In response, he claimed that he had “asked [Officer Kiel] if [he] would get in trouble and [Officer Kiel] said no.” He also claimed that in one of the phone calls to arrange the home visit in January 2015, Officer Kiel again had told him that he should hand over any ammunition to her for proper disposal, and again had promised that he would not “get in trouble” if he did so. Mr. Nichols further claimed that, in that phone conversation, he responded that, to his knowledge, there was no ammunition in the home but that he had some unpacked boxes in the basement and was not sure of their contents. He further testified that, on the day of the visit itself, Officer Kiel again instructed him to hand over to her any contraband, which he did. Mr. Nichols also testified about an email he had sent to his attorney in May, after having seen the charge related to the contraband recovered from him on January 23. In the email, he noted that he had been promised that handing over contraband would not result in adverse consequences for him. He also stated that, had he not received these promises, he would have disposed of the ammunition himself.

Based on both Officer Kiel’s and Mr. Nichols’s testimony, the magistrate judge issued a report and recommendation, which characterized the motion hearing as essentially “a swearing contest.” The magistrate judge accepted Officer Kiel’s version of events and therefore recommended denial of Mr. Nichols’s motion to suppress. The report found that Mr. “Nichols had plenty of opportunities to dispose of firearms and ammunition on his own.” Moreover, he had been alerted on numerous occasions of the consequences of contraband prior to the January incidents and had never disclosed the presence of the handgun recovered in early January or the ammunition. Allegations that he forgot were incredible, given that he “had been able to remember, recover and brandish his handgun in a trice while drunk and angry.” The report also found it “[equally incredible” that Mr. Nichols had sought assurances about immunity prior to knowing that there was contraband in the basement, but did not seek to confirm it once he had allegedly located the ammunition in advance of the home visit.

Mr. Nichols objected to the report and recommendation of the magistrate judge. He first argued to the district court that the magistrate judge had relied on erroneous facts that were extraneous to the immediate matter at hand. He also contended that the magistrate judge erroneously had concluded that Mr. Nichols’s perception of a promise of immunity was not a determinative factor. Finally, he contended that the factual record did not support the recommendation.

The district court overruled these objections and adopted the magistrate judge’s recommendation. Specifically, the district court found that the magistrate judge properly had considered the allegations surrounding the altercation on January 7, 2015 because “[t]he allegation that Nichols had possessed a firearm during an incident that le[d] to his arrest is obviously part of the factual background of this case.” As for Mr. Nichols’s “state of mind,” the district court concluded that “[t]he decisive fact is what Kiel said, and it does not matter at all what Nichols believed. If Kiel did not make the promise, then it does not matter whether Nichols somehow convinced himself that she had.”

After the district court’s denial of the motion to suppress, Mr. Nichols pleaded guilty to Count 2 of the indictment, the count involving the ammunition recovered by Officer Kiel; in exchange, the Government agreed to dismiss Count 1, involving the January 7 incident. Mr. Nichols reserved the right to appeal on the motion.

The presentence report recommended a two-level enhancement under U.S.S.G. § 3C1.1 for obstruction of justice and no reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. Mr. Nichols objected not only to this recommendation, but also to the offense-level calculation. He contended that his offense level should be reduced to level 6 because the guns and ammunition that he possessed were used solely for lawful .sporting purposes pursuant to § 2K2.1(b)(2). The district court overruled these objections. Specifically, the court determined that Mr. Nichols had obstructed justice because he willfully had made material false statements at the evi-dentiary hearing. Moreover, because of his obstruction of justice, he was not entitled to a reduction for acceptance of responsibility. Finally, the district court found that Mr. Nichols had not demonstrated that the guns and ammunition possessed were used solely for lawful sporting purposes pursuant to § 2K2.1(b)(2).

The court then determined that Mr. Nichols’s advisory guidelines range was 27 to 33 months and sentenced Mr. Nichols to 27 months’ imprisonment with 3 years of supervised release. The court also revoked Mr. Nichols’s probation and imposed 12 months’ imprisonment concurrent to the 27-month sentence. Mr. Nichols timely appeals his conviction and sentence.

II

DISCUSSION

Mr. Nichols’s appeal of his conviction rests on his claim that the district court erred in denying the motion to suppress. With respect to his sentence, he challenges both the imposition of the obstruction enhancement and the denial of credit for acceptance of responsibility. He also challenges the district court’s denial of the offense level reduction in U.S.S.G. § 2K2.1(b)(2); he continues to assert that all of the contraband recovered in relation to Count 2 was used for sporting purposes. We address each of these issues in turn.

A.

In a challenge to the denial of a motion to suppress, we review all factual determinations for clear error, and we review conclusions of law de novo. United States v. Villalpando, 588 F.3d 1124, 1127 (7th Cir. 2009). Accordingly, where the district court’s factual findings are supported by the record, we will not disturb them. United States v. Sands, 815 F.3d 1057, 1061 (7th Cir. 2015). Credibility determinations receive special deference; we uphold them unless “completely without foundation” in the record. United States v. Freeman, 691 F.3d 893, 899 (7th Cir. 2012) (internal quotation marks omitted).

The parties agree, correctly, that a government agent’s “false promise of leniency may render a statement involuntary.” Villalpando, 588 F.3d at 1128. “An empty prosecutorial promise could prevent a suspect from making a rational choice by distorting the alternatives among which the person under interrogation is being asked to choose.” Id. (internal quotation marks omitted).

As we previously noted, at the hearing on his motion to suppress, Mr. Nichols and his probation agent, Officer Kiel, gave testimony in direct conflict. Indeed, the magistrate judge called it “a swearing contest,” and the district court noted that it was “a straightforward credibility contest.” The district court found believable Officer Kiel’s version of the events: as a twenty-three-year veteran of the Probation Office, it is unlikely that Officer Kiel violated her office’s policy and made a promise of leniency (or immunity) to Mr. Nichols. Moreover, the context of Officer Kiel’s inquiry bolsters her version of events. As the magistrate judge noted:

The court’s general take-away from Kiel’s version of events is that she and Nichols had had the “no-guns-or-ammo” conversation several times while Kiel was supervising Nichols, but Kiel never told Nichols that he would have to surrender this sort of contraband over to her or to law enforcement. In other words, Nichols had plenty of opportunities to dispose of firearms and ammunition on his own, without consequence- Nichols faced no Catch-22 here.

Nothing in the record suggests that Officer Kiel's version of events is “exceedingly improbable.” United States v. Vallar, 635 F.3d 271, 283 (7th Cir. 2011) (internal quo-' tation marks omitted). We therefore accept the district court’s credibility determinations and accept its further findings of fact.

Mr. Nichols also submits that, in finding him incredible, the district court erroneously relied on disputed factual material not in evidence in this case. Specifically, he notes that the district court relied in part on the fact that he had been told on several occasions prior to the January incidents that he was prohibited from possessing firearms and ammunition as a condition of his probation. Although he claimed to have forgotten about the presence of firearms and ammunition in his home, the court noted that he was able to retrieve a firearm during the January 7 dispute and threaten someone with it, which indicated that he had made false statements about his possession of contraband prior to January 23.

We need not decide whether the district court should have considered the statements about the January 7, 2015 incident and his weapon possession at that time. Even if Mr. Nichols did not retrieve a weapon on January 7 during an altercation, the fact remains that, prior to January 7, he had been warned about the consequences of firearm possession and never had sought to search his possessions and dispose of all firearms and ammunition on his own. The district court did not err in considering this. warning as part of its overall assessment of credibility.

Finally, the district court properly considered not only the plausibility of the two versions of events, but also the motivations of the witnesses. Considering all that evidence, the district court found Officer Kiel credible and accepted her version of events; we see no basis to disrupt those findings.

Mr. Nichols also contends that the district court erred in determining that his belief that he could turn over the ammunition without negative consequences was irrelevant to the suppression motion. The district court took a different view. It found that the possibility that Mr. Nichols had a mistaken belief that he had been promised leniency or immunity for his conduct was not raised reasonably by the record. We agree. The evidence at the suppression hearing presented, as the district court characterized the situation, “a stark, binary contrast between two alternative versions of the facts: Nichols claims that Kiel expressly promised him immunity; Kiel denies ever saying such a thing. If Nichols is right that Kiel promised him immunity, then the statements to Kiel and the ammunition must be suppressed.” We are left with two alternatives: either Officer Kiel coerced Mr. Nichols by promising him that he would not get in trouble for turning over contraband to her or she did not. We already have credited the district court’s findings in this regard.

In sum, the district court’s ruling on the motion to suppress was based on a factual conclusion that there were no promises of immunity or leniency. That finding was based on credibility determinations made about witnesses at the suppression hearing. We see no basis to reverse the district court’s determination on the voluntariness of the admissions to Officer Kiel or on the physical evidence obtained as a result.

B.

The Sentencing Guidelines permit a two-level enhancement for obstruction of justice

[i]f (1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct related to (A) the defendant’s offense of conviction and any relevant conduct; or (B) a closely related offense[.]

U.S.S.G. § 3C1.1. We review the district court’s determination that a defendant satisfies the requirements of the obstruction of justice enhancement de novo, and its supporting factual findings for clear error. United States v. Jackson, 787 F.3d 1153, 1159 (7th Cir. 2015). In applying the enhancement, the district court concluded that Mr. Nichols had testified falsely at the suppression hearing.

Both parties agree that a finding that the defendant committed perjury is sufficient to justify the enhancement. See id. “To apply the enhancement based on perjury, the district court should make a finding as to all the factual predicates necessary for a finding of perjury: false testimony, materiality, and willful intent.” Id. (internal quotation marks omitted).

On this point, Mr. Nichols continues to assert factual error by the district court in refusing to credit his testimony, a position we already have rejected. In addition, Mr. Nichols invites the court’s attention to scattered comments by the magistrate judge and the district court which, taken together, could be read to suggest that he did not form the necessary intent for an obstruction enhancement. He likens his ease to United States v. Parker, 716 F.3d 999 (7th Cir. 2013), in which we held that the obstruction enhancement was improper where the court had commented that the defendant “may even believe herself that she didn’t negotiate these checks,” which suggested an absence of willfulness. Id. at 1012 (internal quotation marks omitted). Indeed, we stated that the district court’s comments in Parker left us “unsure as to whether the court found that Parker’s denial of involvement in the scheme was willful.” Id.

Mr. Nichols points us to what he perceives are parallel comments in his own record, specifically, the magistrate judge’s comment that he “ ‘would not speculate as to Nichols’[s] actual thought process’ ” and that “ ‘perhaps Nichols has convinced himself that Kiel really did offer him absolution in the abstract,’ ” and the district court’s comment that “there may be an arguable position” that Mr. Nichols did not make willingly false statements. Unlike in Parker, however, the record here is unambiguous regarding the district court’s ultimate conclusions on willfulness. That the district court asked the parties to argue willfulness shows its thorough and deliberate consideration of the issue. After hearing from both sides, it plainly found that the record supported a finding of willfulness. In short, Parker is inapposite where, as here, the district court heard argument and made explicit findings on the willful falsity of Mr. Nichols’s statements. The district court therefore did not err in applying the enhancement for obstruction of justice.

Mr. Nichols also challenges the denial of the downward adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1. The Guidelines permit a defendant to receive both the obstruction enhancement and credit for acceptance of responsibility only in “extraordinary cases” because conduct supporting the enhancement generally indicates that he has not accepted responsibility. U.S.S.G. § 3E1.1 cmt. n.4; see also United States v. Black, 636 F.3d 893, 900 (7th Cir. 2011); United States v. Krasinski, 645 F.3d 546, 554 (7th Cir. 2008). The defendant “bears the burden of proving that he is entitled to a reduction.” United States v. Purchess, 107 F.3d 1261, 1266 (7th Cir. 1997) (internal quotation marks omitted). “Whether a defendant has accepted responsibility is a factual finding, which we review for clear error and accord great deference” to the sentencing judge. United States v. Pons, 795 F.3d 745, 747 (7th Cir. 2015).

Mr. Nichols argues that he is entitled to an adjustment for acceptance of responsibility for several reasons: he never denied possession of the contraband charged in Count 2; he entered a timely guilty plea following denial of his suppression motion; and he challenged only the voluntariness of his confessional statements and acts. He relies on decisions which hold that a defendant’s decision to raise a legal challenge to admitted facts or otherwise to challenge the admissibility of evidence do not automatically preclude the § 3E1.1 adjustment. See United States v. Washington, 340 F.3d 222, 230 (5th Cir. 2003); Purchess, 107 F.3d at 1267.

The record does not support the view that the district court denied the adjustment because of Mr. Nichols’s legal challenges; instead, it based its denial on Mr. Nichols’s obstruction of justice by giving false testimony at the suppression hearing. The court’s findings about his untruthfulness are an adequate basis to support denying the adjustment. See, e.g., United States v. Yusuff, 96 F.3d 982, 990 (7th Cir. 1996) (denying credit for acceptance where the defendant pleaded guilty and “admitted] guilt” but obstructed justice by giving false testimony at a suppression hearing about the conduct of investigating officers). There is simply nothing in the record to indicate that this case presents the kind of extraordinary circumstances envisioned by the application notes.

C.

At sentencing, Mr. Nichols asserted that he was entitled to a reduction of his offense level down to level 6, under U.S.S.G. § 2K2.1(b)(2), which applies “if the defendant ... possessed all ammunition and firearms solely for lawful sporting purposes or collection, and did not unlawfully discharge or otherwise unlawfully use such firearms or ammunition.” Application Note 6 suggests that relevant' circumstances in this analysis include “the number and type of firearms, the amount and type of ammunition, the location and circumstances of possession and actual use, the nature of the defendant’s criminal history (e.g., prior convictions for offenses involving firearms), and the extent to which possession was restricted by local law.” U.S.S.G. § 2K2.1(b)(2) cmt. n.6. A defendant bears the burden of proof on his eligibility for the sporting reduction. See United States v. Gresso, 24 F.3d 879, 880 (7th Cir. 1994).

The parties agree that target shooting qualifies as a sporting purpose under the guideline. United States v. Lewitzke, 176 F.3d 1022, 1028 (7th Cir. 1999). Mr. Nichols contends that the firearm and ammunition confiscated on January 7, 2015, as well as the ammunition provided to Officer Kiel during the home visit, were for sporting purposes. Mr. Nichols asserts that the district court erred in denying a reduction under the “sporting purpose” guideline by concluding that target practice was not a sporting activity.

In denying the applicability of the guideline, the court noted that it was “not limited to considering only the ammunition that was in the plastic bag that was turned over to Ms. Kiel” but also could consider the contraband retrieved during the January 7, 2015 incident, which included a “handgun and the ammunition for it.” The court continued that it would not allow the exception to swallow the rule and noted that “there’s virtually no weapon that you couldn’t say wasn’t used in a sporting way if you consider target practice to be a sporting activity.” Any suggestion that the court denied that target practice was a sporting activity as a blanket matter is belied by the district court’s written statement of reasons, which we review alongside the transcript. See United States v. Pape, 601 F.3d 743, 747 (7th Cir. 2010); United States v. Baker, 445 F.3d 987, 991-92 (7th Cir. 2006). That statement does not reject target shooting as a sporting purpose, but instead discusses the number, type, and location of the contraband recovered in considering whether to apply the exception. This reasoning was proper under the application notes to § 2K2.1. Most importantly, the only evidence in the record that all the contraband was used exclusively for sporting is Mr. Nichols’s own statement, which the district court did not credit. Mr. Nichols bore the burden on this issue, and he did not create a record that made a convincing case for the district court. The district court therefore did not err in denying the reduction under the sporting purposes guideline.

Conclusion

The district court’s factual finding at Mr. Nichols’s suppression hearing, based on its credibility assessments of Mr. Nichols and his Probation Officer, is not clearly erroneous, and therefore, the court did not err in finding that his confessional acts were voluntary. Furthermore, the false testimony that Mr. Nichols provided at his suppression hearing is an adequate basis for the court .to have both imposed the enhancement for obstruction of justice and denied the adjustment for acceptance of responsibility. Finally, Mr. Nichols failed to carry his burden to show that all the contraband recovered in January 2015 was used exclusively for sporting purposes, where his only affirmative evidence was his own unsupported statements. We therefore affirm Mr. Nichols’s conviction and sentence.

AFFIRMED

      . R.24 at 15.

        . Id.

      . Id.

      . Id. at 30.

      . Id.

      . Id.

      . Id. at 31.

      . R.31 at 1.

      . Id. at 7.

      . Id. at 8.

      . Id.

      . R.37 at 4.

      . Id. at 5.

      . That section provides, in pertinent part, “If the defendant ... possessed all ammunition and firearms solely for lawful sporting purposes or collection, and did not unlawfully discharge or otherwise unlawfully use such firearms or ammunition, decrease the offense level determined above to level 6.” U.S.S.G. § 2K2.1(b)(2).

      . R.31 at 1.

      . R.37 at 2.

      17. R.31 at 7-8.

      . R.37 at 5.

      . Appellant’s Br. 26 (quoting R.31 at 9).

      . R.59 at 6, see also id. at 8-9.

      . R.59 at 12.

      . Id.


author: EASTERBROOK, Circuit Judge.

text:
    Nathaniel BROWN, Plaintiff-Appellant, v. Michael RANDLE, et al., Defendants-Appellees.
    No. 14-2480
    United States Court of Appeals, Seventh Circuit.
    Argued October 26, 2016
    Decided February 7, 2017

      Douglas B. Harper, Attorney, Law Offices of Douglas B. Harper, Chicago, IL, for Plaintiff-Appellant.
    Mary Ellen Welsh, Attorney, Office of the Attorney General, Civil Appeals Division, Chicago, IL, for Defendants-Appel-lees.
    Before FLAUM, EASTERBROOK, and WILLIAMS, Circuit Judges.
   EASTERBROOK, Circuit Judge.

In 1994 Nathaniel Brown was convicted of four sex offenses and sentenced to prison in Illinois. His projected release date was July 10, 2009, after which his sentence required him to serve three years of “mandatory supervised release,” a status that officials in Illinois often call parole.

When July 10 arrived, however, the Illinois Department of Corrections did not release Brown. Instead it issued a “Parole Violation Report” reciting that Brown had committed two anticipatory violations of the terms of supervised release. First, he had refused to accept electronic monitoring that is required of sex offenders; second, he lacked a place where he could lawfully reside outside the prison’s walls. (Like many other states, Illinois limits the locations where sex offenders can make their homes.) The problems are related. Illinois tries to find lawful accommodations for sex offenders who promise to wear electronic monitoring devices, but because Brown rejected the device the prison system did not try to help him find a place to live.

Brown seeks damages for the delay in releasing him, yet he does not contend that either the electronic-monitoring or the residential-location condition of release is invalid. We have held that one is proper, and the Eighth Circuit has sustained the other. See Belleau v. Wall, 811 F.3d 929 (7th Cir. 2016) (state may require a sex offender to wear a GPS ankle bracelet as a condition of release); Weems v. Little Rock Police Department, 453 F.3d 1010 (8th Cir. 2006) (residential-location limits for sex offenders are valid); Doe v. Miller, 405 F.3d 700 (8th Cir. 2005) (same). Cf. Doe v. Lafayette, 377 F.3d 757 (7th Cir. 2004) (en banc) (states may prevent sex offenders from visiting places where children congregate). Nonetheless Brown contends that he was entitled to immediate release without regard to those conditions. Perhaps the state could have picked him up later and revoked his release, he allows, but first it had to discharge him. He contends that his confinement violated both the Fourth Amendment, applied to the states through the Fourteenth Amendment, and the Due Process Clause of that amendment.

One part of Illinois’ government thinks that he should have been let out in July 2009. The Prisoner Review Board held a hearing in October 2009 and determined that Brown had not violated the conditions of his release. Apparently it believes that an anticipatory violation should be distinguished from a completed violation, though it did not explain its reasoning. On the same day the Board made this decision, an employee of the Department of Corrections issued a second Parole Violation Report, giving the same two reasons as before. That step was authorized by 20 Ill. Admin. Code § 1610.110(a), which says that even a formal order for release on parole “shall not be effective” until the prisoner has an approved residence. The Board then washed its hands of the matter, having earlier told the Department that it would not re-review situations in which the Department disagreed with its decisions. Brown remained in prison until January 11, 2011, when he was released unconditionally. (Illinois gives day-for-day good-time credit, so 18 months in prison was deemed to discharge a sentence of three years’ supervised release.)

One of Brown’s themes is that Illinois did not offer him a hearing before it issued either the first or the second violation report. No one doubts that, if he had been released, the Constitution would have required notice and an opportunity for a hearing before he could be returned to prison. See Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). But the Supreme Court has limited Mor-rissey by holding that a state may rescind parole, without a hearing, if it acts before a person reaches the outside of the prison. See Jago v. Van Curen, 454 U.S. 14, 102 S.Ct. 31, 70 L.Ed.2d 13 (1981). That’s what happened to Brown.

No matter how the Due Process calculus may come out, Brown insists, he had a right under the Fourth Amendment to release as soon as his prison sentence ended. Yet as of 2009, when he was kept in prison, no court had held that the Fourth Amendment entitles a sex offender to release even though it appears likely that, as soon as he steps outside the prison’s front door, he will be in violation of the terms of release. Indeed, no federal court has so held to this day. Under the circumstances, therefore, the defendants are entitled to qualified immunity from damages. And so we concluded with respect to Wisconsin’s system of keeping sex offenders in prison until they have a lawful post-prison residence. See Werner v. Wall, 836 F.3d 751 (7th Cir. 2016).

In a supplemental brief filed after argument, Brown asks us to put Wemer to one side because Illinois and Wisconsin do not use identical systems, and he emphasized the Fourth Amendment while Werner relied principally on the Eighth Amendment. These distinctions are true but beside the point. The core conclusion of Wemer is that the federal judiciary has not clearly established that sex offenders who lack a lawful place to live must nonetheless be released from prison. That conclusion does not depend on the particulars of the state systems or the constitutional provision a given plaintiff emphasizes.

Brown does not identify any decision of a federal court establishing that sex offenders without approved living arrangements must be released. Instead he states the constitutional rule at a high level of generality (the Fourth Amendment forbids unreasonable seizures) and contends that this suffices. No, it doesn’t. As the Justices reiterated earlier this month:

“clearly established law” should not be defined “at a high level of generality.” Ashcroft v. al-Kidd, 563 U.S. 731, 742 [131 S.Ct. 2074, 179 L.Ed.2d 1149] (2011). As this Court explained decades ago, the clearly established law must be “particularized” to the facts of the case. Anderson v. Creighton, 483 U.S. 635, 640 [107 S.Ct. 3034, 97 L.Ed.2d 523] (1987). Otherwise, “[plaintiffs would be able to convert the rule of qualified immunity ... into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights.” Id. at 639 [107 S.Ct. 3034],

White v. Pauly, — U.S. -, 137 S.Ct. 548, 552, 196 L.Ed.2d 463 (2017). Federal courts have not particularized the sort of right Brown asserts, so the defendants are entitled to immunity from liability in damages.

But wait!, Brown cries. Even if it is not clearly established that the Constitution requires immediate release of sex offenders who lack lawful living plans, it must be clearly established that inmates who have such plans are entitled to their freedom. Perhaps so, but Brown has not shown either that he had lawful living plans or that he had consented to electronic monitoring. His complaint does not contain such an allegation; he did not proffer an affidavit to that effect; his brief does not ask for an opportunity to prove it. Instead of contending that he had consented to monitoring and had a lawful place to live, Brown insists that the Prison Review Board must have found those matters in his favor.

There are two problems. First, the Board did not say any such thing. All it said is that Brown had not violated the conditions of his release. We take this as restating the Board’s oft-expressed view that the Department of Corrections should follow a release-and-revoke model, rather than retaining custody of prisoners during their supervised-release periods. If the Board meant something different (or something extra) in Brown’s case, it did not say so.

Second, no rule of federal law requires every state official to accept, without question, any determination made by some other state official. Whether the Board’s decision binds the Department of Corrections is a matter of state rather than federal law. Cf. Castle Rock v. Gonzales, 545 U.S. 748, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005). Perhaps 20 Ill. Admin. Code § 1610.110(a) is invalid as a matter of Illinois law. Brown could have pursued such a theory in state court. But 42 U.S.C. § 1983 does not authorize federal courts to order state officials to pay damages for violations of state law; remedies in § 1983 suits are for violations of federal law only.

Brown has a further claim for relief that is unrelated to his status as a sex offender. He contends that state employees violated the Eighth Amendment by withholding care for a serious medical condition. See generally Petties v. Carter, 836 F.3d 722 (7th Cir. 2016) (en banc) (standards for medical-care claims under the Eighth Amendment). There’s no doubt that he has grave coronary problems; there is also no doubt that he has received intensive care for them. He had a heart attack in March 2007 and was sent to a hospital. A recurrence in April led to another trip to the hospital, followed by a transfer to a university health center for triple bypass surgery. Another heart attack in April 2008 led to his return to the university’s health center for placement of a stent, and he had received a second stent in May 2010 to reheve a coronary blockage. Since his release from prison in January 2011, he has had two additional stents inserted to deal with blocked arteries.

In this court, Brown contests two aspects of his medical care: a delay between July 2009 and May 2010 in returning him to the university center for diagnosis and treatment, and a six-week period in May and June 2010 that he spent in the prison’s general population rather than its health-care unit. He wants to recover damages from Nedra Chandler, who was the Warden of Dixon Correctional Center in 2009 and 2010. He does not seek damages from anyone else, such as the prison physician who determined that Brown did not need hospital care between July 2009 and May 2010.

Brown does not contend that Chandler had anything to do with the timing of his visits to the university health center, so she cannot be liable. Public officials are accountable for their own conduct, but they are not vicariously liable for the acts of their subordinates. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 677, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Vance v. Rumsfeld, 701 F.3d 193, 203-05 (7th Cir. 2012) (en banc). Brown alleges that in March 2007 Chandler called him a faker and that this supports an inference that she was responsible for keeping him away from the hospital between July 2009 and May 2010. That’s a non-sequitur. The comment that Brown attributed to Chandler occurred before his repeated hospitalizations for heart problems. By the middle of 2009, after Brown had triple-bypass surgery and yet another heart attack following that surgery, no one could have doubted that his condition was real. No reasonable trier of fact could conclude that something Chandler may have said in March 2007 controlled medical decisions that the prison’s physicians made in 2009 or 2010.

Brown maintains that Chandler personally made the decision to house him in the general population during May and June 2010, so she could be liable under the standards of Petties. This aspect of Brown’s claim fails because he has not shown harm. Indeed, he has not even alleged harm. He says that he would have been more comfortable in the health-care unit and could have received faster treatment if he had another heart attack, but he does not allege that heart problems did recur during those six weeks. The Eighth Amendment prevents prison personnel from being deliberately indifferent to serious medical needs, see Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), but it does not oblige those officials to maximize the comfort of inmates who have medical challenges such as heart disease.

AFFIRMED


author: PER CURIAM.

text:
    Tuwayne BELL, Plaintiff-Appellant, v. Supervisor KAY, et al., Defendants-Appellees.
    No. 15-2479
    United States Court of Appeals, Seventh Circuit.
    Submitted February 2, 2017

    Decided February 7, 2017

      Tuwayne Bell, Pro Se.
    Before WOOD, Chief Judge, and POSNER and KANNE, Circuit Judges.

       The defendants were not served with process in the district court and are not participating in this appeal. We have agreed to decide this case without oral argument because the appellant’s brief and record adequately present the facts and legal arguments, and oral argument would not significantly aid the court. Fed. R. App. P. 34(a)(2)(C).

   PER CURIAM.

Tuwayne Bell, an Illinois prisoner, appeals the denial of his application to proceed in forma pauperis and the dismissal of his civil rights suit for failure to prosecute. The district court denied his application because Bell did not attach to it his inmate trust-account ledger. But the court did not assess Bell’s explanation that he could not attach the ledger because prison staff had refused to give it to him. Because the district court unreasonably dismissed the suit without first evaluating Bell’s exculpatory explanation, we vacate the dismissal and remand.

Bell began this suit by filing a request for pauper status and his complaint. The complaint alleged that while he was working in the kitchen at the jail where he was previously detained, hot water spilled on his foot and burned him. He sued the kitchen supervisors, the food supply company, and others, and asserted that they deliberately disregarded inmates’ safety by ignoring complaints of unsafe conditions and providing improper protective gear. His request to proceed in forma pauperis did not include a printout showing transactions in his trust fund accounts over the previous six months, as required by 28 U.S.C. § 1915(a)(2). But Bell swore that he could not submit this printout because staff at East Moline Correctional Center, where he was incarcerated at the time he filed suit, refused to give him a copy or sign anything.

The district court denied Bell’s application to proceed without prepaying fees because, without the ledger, it was incomplete. Without setting a deadline, the court warned Bell that if he did not submit a new application with a copy of the trust fund ledger or pay the full filing fee, it would dismiss his case. The court also noted Bell’s statement “that prison officials have refused to give him the financial information he requires.” But it did not evaluate the statement’s veracity or significance, or order the prison to provide the ledger. It did, however, instruct the clerk to “forward a copy of this order to the trust fund officer at East Moline Correctional Center to facilitate compliance.”

Three months later the district court dismissed the suit. In explaining the dismissal, the court observed that it had ordered Bell to submit a completed application “within thirty days” or risk dismissal. Because, the court continued, Bell failed to comply with this warning, it dismissed the case pursuant to Federal Rule of Civil Procedure 41(b) and declared that the “case is terminated.”

Two months later Bell tried to revive the suit. He wrote to the district court, saying that he recently received the dismissal order and that he never had received the order denying his application and warning him to submit a completed one. The court interpreted Bell’s letter as a “motion to reconsider” the dismissal, but denied it because, the court reasoned, Bell still had not submitted a completed application.

On appeal Bell challenges the district court’s dismissal, repeating that he never received the order telling him that his application was incomplete. Now at a different prison, where he has received the ledger, this court granted him leave to proceed on appeal without prepaying fees.

We begin by explaining our jurisdiction to review the order dismissing the suit. Bell filed his notice of appeal 71 days after the court issued the order that dismissed his suit and gave its reason for doing so. That order was not the “ ‘separate document’ ” of judgment required by Rule 58 of the Federal Rules of Civil Procedure because it “states rather than omits the reason for dismissal.” Brown v. Fifth Third Bank, 730 F.3d 698, 701 (7th Cir. 2013) (Posner, J., in chambers); Otis v. City of Chicago, 29 F.3d 1159, 1163 (7th Cir. 1994) (en banc) (A proper Rule 58 order should say “who has won and what relief has been awarded, but omit[] the reasons for this disposition”). Because the district court did not enter a separate judgment, Bell’s time to appeal the dismissal did not begin running until 150 days after the order, see Fed. R. Civ. P. 58(c)(2)(B), and his notice of appeal is treated as filed on that date, see Fed. R. App. P. 4(a)(2). See Calumet River Fleeting, Inc. v. Int'l Union of Operating Eng’rs, Local 150, AFL-CIO, 824 F.3d 645, 650 (7th Cir. 2016). So Bell’s appeal of the dismissal order is timely. It also brings up for review the earlier order denying Bell’s application to proceed in the district court without prepaying the filing fee. See Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1019-20 (7th Cir. 2013).

We conclude that the district court acted unreasonably in denying Bell’s application to proceed without prepaying fees and dismissing the suit. A district court errs when it dismisses an inmate’s suit for nonpayment of a filing fee without determining whether the prisoner is at fault in not supplying what the court required from the inmate’s trust account. Sultan v. Fenoglio, 775 F.3d 888, 890 (7th Cir. 2015); Thomas v. Butts, 745 F.3d 309, 312 (7th Cir. 2014). Prisoners have limited control over their prison trust accounts, and “it is entirely predictable that the prison will prefer to postpone [an inmate’s] ability to pursue litigation against itself.” Sultan, 775 F.3d at 890; Thomas, 745 F.3d at 313. Bell swore that he could not append his account ledger to his otherwise-complete application because prison officials refused to provide it to him. The district court, having noted that explanation, should have assessed its truthfulness, and if truthful the court should have decided whether Bell was at fault for not completing the application.

The district court’s later actions did not rectify the error. First, the court never ordered prison officials to provide the ledger, despite Bell’s statement that they would not give it to him. The court merely directed its clerk to notify prison officials that Bell wanted the ledger. But the officials presumably knew that already because Bell had requested it. Second, the court incorrectly stated that its warning to file a completed application or face dismissal included a 30-day deadline. Third, the court never addressed Bell’s post-dismissal explanation that he never even received the order denying him pauper status and its warning. Without having received the warning and, even if he did, without the warning specifying a deadline, Bell cannot be faulted for missing the deadline. See Sroga v. Huberman, 722 F.3d 980, 982-83 (7th Cir. 2013) (reversing dismissal for failure to prosecute where plaintiff explained in postjudgment motion that he did not receive the court’s warning in the mail and the court did not explain why it doubted explanation). Dismissal is a harsh sanction and should not occur unless the. court concludes that it is necessary because other options have failed or would fail. Thomas, 745 F.3d at 313; Johnson v. Chi. Bd. of Educ., 718 F.3d 731, 732-33 (7th Cir. 2013); Beyer v. Cormier, 235 F.3d 1039, 1041 (7th Cir. 2000). The court did not properly reach this conclusion, so the suit must be reinstated.

Accordingly, we VACATE the dismissal and REMAND for further proceedings.


author: HAMILTON, Circuit Judge.

text:
    Martin GARCIA-HERNANDEZ, Petitioner, v. Dana J. BOENTE, Acting Attorney General of the United States, Respondent.
    No. 15-2835
    United States Court of Appeals, Seventh Circuit.
    Argued April 26, 2016
    Decided February 7, 2017

      Andrea M. Duron, Attorney, Duron Law Firm, PC, Chicago, IL, for Petitioner.
    OIL, Attorney, Department of Justice, Civil Division, Immigration Litigation, Tim Ramnitz, Attorney, Department of Justice, Civil Division, Commercial Litigation Branch, Washington, DC, for Respondent.
    Before KANNE, SYKES, and HAMILTON, Circuit Judges.
   HAMILTON, Circuit Judge.

This case lies at the intersection of immigration law and legal measures to prevent domestic violence. Even if a state court does not impose severe punishment for an alien’s violation of a domestic protective order, the immigration consequences may be severe, as in this case.

Petitioner Martin Garcia-Hernandez, a citizen of Mexico, sought cancellation of removal, arguing that his removal would cause exceptional and extremely unusual hardship for his U.S.-citizen children. See 8 U.S.C. § 1229b(b)(l). An immigration judge concluded that he was statutorily ineligible for this discretionary form of relief because of a 2010 conviction for violating a domestic protection order in Illinois. See 8 U.S.C. § 1227(a)(2)(E)®). The Board of Immigration Appeals affirmed. On judicial review, we agree that Garcia-Hernandez’s conviction renders him ineligible for the relief he seeks. We deny the petition for review.

I. Factual and Procedural Background

Garcia-Hernandez entered the United States from Mexico without inspection in 2000. In February 2010, Sara Talavera, the mother of two of Garcia-Hernandez’s children, obtained an emergency court order of protection against him after having moved out of the home they shared. The protection order was soon extended to be effective for one year.

About a month later, Garcia-Hernandez was charged under 720 ILCS 5/12-3.4 (formerly 720 ILCS 5/12-30) with violating the protection order by “confronting the complainant [Talavera] at the protected address and harassing her”, and with violating the provision in the protection order requiring him to stay away from Talavera, her children, and their residence whenever any of them was present. Garcia-Hernandez pled guilty. He was sentenced to twelve months of supervision and participation in a domestic-violence clinic.

Shortly after his conviction, Garcia-Hernandez was placed in removal proceedings and charged as inadmissible for being present in the United States without being admitted or paroled. See 8 U.S.C. § 1182(a)(6)(A)(i). Garcia-Hernandez conceded that he was removable but said he intended to seek cancellation of removal for nonpermanent residents because of the hardship his children will face if he is removed. 8 U.S.C. § 1229b(b).

Removal may be cancelled under § 1229b(b)(l) if an alien has been physically present in the United States for ten years, has been a person of good moral character during those years, and establishes that removal would result in “exceptional and extremely unusual hardship” to the alien’s spouse, parent, or child who is a U.S. citizen or lawful permanent resident. There is one other requirement under § 1229b(b)(l): the alien may not have been convicted of an offense under 8 U.S.C. §§ 1182(a)(2), 1227(a)(2), or 1227(a)(3).

The relevant provision here is § 1227(a)(2), which sets forth numerous provisions for crimes that will render an alien both removable and ineligible for discretionary cancellation of removal. The legal issue for the immigration judge, the Board, and now us is whether Garcia-Hernandez’s conviction for violating the protection order makes him legally ineligible for cancellation of removal under the terms of § 1227(a)(2)(E)(ii). That provision makes removable any alien who a court “determines has engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued.” The immigration judge determined that Garcia-Hernandez’s offense qualified under (E)(ii) because the charging document to which he pled guilty said that he had harassed Talavera and violated the injunction to stay away from her. There is no doubt here that the protection order qualifies under (E)(ii) or that Garcia-Hernandez was the person enjoined by that order.

On appeal to the Board of Immigration Appeals, Garcia-Hernandez argued that § 1227(a)(2)(E)(ii) did not apply because the charging document did not say that he had actually made credible threats of violence or caused repeated harassment or bodily injury. In his view, he had failed to comply only with the protection order’s stay-away provision. The Board upheld the judge’s decision, adding that § 1227(a)(2)(E)(ii) is not limited to cases involving actual harassment or threats but also extends to violations of provisions meant to prevent those behaviors, such as no-contact or stay-away provisions.

II. Analysis

A. Categorical Approach and Modified Categorical Approach

To determine whether an alien’s prior criminal conviction qualifies as a removable offense under 8 U.S.C. § 1227(a)(2), courts apply the “categorical approach” or “modified categorical approach,” first adopted for domestic criminal law in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). The categorical and modified categorical approaches are triggered by statutes that spell out consequences for criminal convictions. See Moncrieffe v. Holder, 569 U.S.-, 133 S.Ct. 1678, 1684-85, 185 L.Ed.2d 727 (2013) (“conviction” is the “relevant statutory hook” for applying categorical approach); cf. Nijhawan v. Holder, 557 U.S. 29, 39-40, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009) (declining to apply categorical approach to loss element for crimes of fraud and deceit that involved losses of more than $10,000 under “aggravated felony” provision of immigration statute, 8 U.S.C. § 1101(a)(43)(M)(i)).

Section 1227(a)(2) spells out numerous categories of criminal offenses that will render an alien removable. All but three of those provisions are framed in terms of criminal convictions. The three exceptions are § 1227(a)(2)(B)(ii), which applies to “Any alien who is, or at any time after admission has been, a drug abuser or addict,” § 1227(a)(2)(F), which applies to aliens involved in human trafficking, and the provision at issue here, § 1227(a)(2)(E)(ii), which applies to those who violate protection orders. The full text of (E)(ii) provides:

Any alien who at any time after admission is enjoined under a protection order issued by a court and whom [sic] the court determines has engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is deporta-ble. For purposes of this clause, the term “protection order” means any injunction issued for the purpose of preventing violent or threatening acts of domestic violence, including temporary or final orders issued by civil or criminal courts (other than support or child custody orders or provisions) whether obtained by filing an independent action or as a pendente lite order in another proceeding.

Much of the legal argument in this case has focused on whether the Illinois statute and charges to which Garcia-Hernandez pled guilty “categorically” involved violation of a portion of the protection order that involved “protection against credible threats of violence, repeated harassment, or bodily injury,” or whether the modified categorical approach might apply. At the time of oral argument, the statute appeared to be divisible, so that the modified categorical approach would apply. The Supreme Court’s later decision in Mathis v. United States, 579 U.S. -, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016), narrowed the field of statutes that can be deemed divisible, so we have taken a fresh look at the overall issue.

The text of (E)(ii) does not depend on a criminal conviction but on what a court “determines” about the alien’s conduct. Based on that significant textual difference between (E)(ii) and other provisions, we find that neither the categorical approach nor the modified categorical approach controls this case. What matters is simply what the state court “determined” about Gareia-Hernandez’s violation of the protection order.

The key language, “the court determines,” does not require a conviction of a particular kind or the categorical approach at all. What matters is what the court “determines.” Section 1227(a)(2) (E) (ii) makes clear that the protection order can be one that is issued and enforced in another proceeding (such as a divorce action in which a court holds the alien in contempt for violating the order). Given the reference to a “conviction” in § 1229b(b)(l), we assume that a criminal conviction is needed, but the focus on what the court “determines” points, as in Nijha-wan, away from any sort of categorical test with respect to that particular element of the federal statute. If a court “determines” that the alien has engaged in conduct that violates a portion of the order that “involves protection against credible threats of violence, repeated harassment, or bodily injury,” that is enough for purposes of (E)(ii).

This emphasis on the court’s determinations about the alien’s conduct is consistent with the text of (E)(ii) and with the concurring opinion in Szalai v. Holder, which explains why use of the court’s determinations about actual conduct is appropriate in deciding whether an alien is removable under § 1227(a)(2)(E)(ii). See 572 F.3d 975, 982-87 (9th Cir. 2009) (Wu, J., concurring). In that case, the majority applied the categorical and modified categorical approaches to conclude that the petitioner’s violation of a “100 yard stay away provision” in a restraining order under Oregon law was one that involved protection against credible threats of violence, repeated harassment, or bodily injury, thereby satisfying § 1227(a)(2)(E)(ii). Id. at 982. Judge Wu’s concurring opinion argued that the language of § 1227(a)(2)(E)(ii) calls for a focus on the state court’s determinations rather than the categorical or modified categorical approaches. Id. at 984-86.

In this case, the immigration judge looked at documents in the record of conviction to determine the portions of the protection order that Garcia-Hernandez was charged with and convicted of violating. The state court determined that Garcia-Hernandez violated the “stay away” portion of the protection order by going to Talavera’s residence and confronting her. The immigration judge thus found that Garcia-Hernandez, by violating the protection order’s “stay-away” provision, engaged in conduct that violated portions of the protection order that “involve[d] protection against credible threats of violence, repeated harassment, or bodily injury.” § 1227(a) (2) (E) (ii).

Under Board precedent, a violation of a stay-away provision fits within the scope of § 1227(a)(2)(E)(ii). In In re Strydom, 25 I. & N. Dec. 507, 510-11 (2011), the Board broadly interpreted the language of (E)(ii) (“involves protection against credible threats of violence, repeated harassment, or bodily injury”) to include even provisions requiring offenders to stay away from victims or to refrain from contacting them. The Board explained that the purpose of such provisions is to prevent future threats of violence, harassment, dr injury — regardless of whether the offender, in violating the order, actually had engaged in these behaviors. Id.

The Tenth Circuit has deferred to the Board’s interpretation of § 1227(a)(2)(E)(ii) to cover a no-contact provision, see Cespedes v. Lynch, 805 F.3d 1274, 1277-78 (10th Cir. 2015), and the Ninth Circuit, in two decisions preceding Strydom,t construed the language of § 1227(a)(2)(E)(ii) similarly, see Szalai, 572 F.3d at 982; Alanis-Alvarado v. Holder, 558 F.3d 833, 839-40 (9th Cir. 2009). We agree with the Board’s reading of § 1227(a)(2)(E)(ii) and agree that the state court’s determinations here render Garcia-Hernandez ineligible for cancellation of removal. See 8 U.S.C. § 1229b(b)(l)(C).

The petition for review is therefore

DENIED.

      . See also Hoodho v. Holder, 558 F.3d 184, 189 n.2 (2d Cir. 2009) (noting that not every removability provision requires categorical approach, and leaving question open regarding § 1227(a)(2)(E)(ii)).

      . On judicial review, Garcia-Hernandez has raised a new argument about which side bore the burden of proof on the issue. The argument was waived by failing to raise it before the Board, but the burden of proof would not matter here. The state court’s findings are sufficiently clear.


author: RIPPLE, Circuit Judge (in chambers).

text:
    IN RE: CENTRAL ILLINOIS ENERGY COOPERATIVE, Debtor, A. Clay Cox, Trustee-Appellant, v. Nostaw, Inc., Appellee.
    No. 16-1389
    United States Court of Appeals, Seventh Circuit.
    February 8, 2017

      Thomas W. O’Neal, Attorney, Howard & Howard Attorneys PLLC, Peoria, IL, for Appellee.
    Alan Fulkerson, Attorney, Riordan, Fulkerson, Hupert & Coleman, Chicago, IL, for Trustee-Appellant.
   RIPPLE, Circuit Judge (in chambers).

Appellant A. Clay Cox, the bankruptcy trustee for Central Illinois Energy Cooperative, asks this court to dismiss his appeal and remand in light of the bankruptcy court’s statement that it would approve a settlement between the parties.

After mediation the parties agreed to settle this case, but the settlement is contingent on approval by the bankruptcy court. The parties filed a joint motion in the bankruptcy court asking for an indicative ruling whether it would approve their proposed settlement. On November 7, 2016, the bankruptcy court issued an order saying that it would approve the settlement agreement, subject to the disposition of any objection filed by a creditor or the trustee, if the case was remanded for that purpose. In light of this order, Mr. Cox moves this court pursuant to Federal Rule of Appellate Procedure 12.1 to dismiss his appeal and remand to the district court with instructions to remand to the bankruptcy court for proceedings consistent with its indicative ruling.

Rule 12.1 provides that if a district court says it would grant a motion that is barred by a pending appeal, “the court of appeals may remand for further proceedings but retains jurisdiction unless it expressly dismisses the appeal.” This court’s Circuit Rule 57 provides similar relief, but says that this court “will remand” if the district court is inclined to modify its judgment. See Boyko v. Anderson, 185 F.3d 672 (7th Cir. 1999). These rules allow for coordination of proceedings between a district court and a court of appeals. See Fed. R. App. P. 12.1 advisory committee’s note (2009).

When, as in this case, an appeal is from the district court’s affirmance of a bankruptcy court order, a remand to the bankruptcy court for approval of settlement requires coordination between three courts. Further, Rule 12.1 and Rule 57 both authorize relief only after the district court has said that it is inclined to grant a motion barred by the pending appeal. Although the parties obtained an indicative ruling from the bankruptcy court, there is no record that they sought or obtained an indicative ruling from the district court.

To ensure that each of the coordinating courts agree, the proper procedure when asking this court to remand to the district court and then to the bankruptcy court is to obtain an indicative ruling from both courts that will need to act. Because Mr. Cox has not done this, his motion is DENIED without prejudice to renewal after obtaining an indicative ruling from the district court.