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    UNITED STATES of America, Plaintiff-Appellee, v. Clarence NAGELVOORT and Edward J. Novak, Defendants-Appellants.
    Nos. 15-2766 & 15-2821
    United States Court of Appeals, Seventh Circuit.
    Argued December 7, 2016
    Decided May 12, 2017

      Debra Riggs Bonamici, Matthew L. Kutcher, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL, for Plaintiff-Appellee.
    Terence H. Campbell, Attorney, COT-SIRILOS, TIGHE & STREICKER, POULOS & CAMPBELL, Chicago, IL, for Defendant-Appellant CLARENCE NAGLEVOORT.
    Joel D. Bertocchi, Attorney, HINSHAW & CULBERTSON LLP, Chicago, IL, for Defendant-Appellant EDWARD J. NO-VAK.
    Before WOOD, Chief Judge, BAUER, Circuit Judge, and SHADID, District Judge.

       Of the United States District Court for the Central District of Illinois, sitting by designation.

   BAUER, Circuit Judge.

On March 25, 2015, after a seven-week trial, a jury convicted Edward Novak and Clarence Nagelvoort of knowingly and willfully causing Sacred Heart Hospital in Chicago, Illinois, to offer and pay kickbacks to physicians in return for patient referrals, in violation of 42 U.S.C. § 1320a-7b(b)(2)(A) (Anti-Kickback Statute), and conspiracy to do so in violation of 18 U.S.C. § 371. They now challenge their convictions on a number of grounds. For the reasons that follow, we affirm the convictions.

I. BACKGROUND

On March 18, 2014, Novak and Nagelv-oort were charged with participating in a scheme by which, from 2001 through 2013, Sacred Heart Hospital paid illegal kickbacks to physicians in exchange for referring patients to the Hospital. During that time, Novak was the owner of Sacred Heart and served as the President and Chief Executive Officer. Between August 2007 and April 2011, Nagelvoort worked as an outside consultant for the Hospital, and at various times during that period, he served as the Hospital’s Vice President of Administration and Chief Operating Officer.

In 2011, federal agents began investigating and securing the cooperation of physicians and other Sacred Heart employees, some of whom began recording conversations with Sacred Heart administrators and physicians. On April 16, 2013, federal agents executed warrants authorizing the search of the Hospital and its administrative and storage facilities.

At trial, the government presented the audio recordings, testimony from cooperating physicians and staff, and documents gathered in the search as evidence that the Hospital paid kickbacks to physicians by concealing them, as payments under various types of contractual arrangements. The government’s case focused on four types of agreements: (1) direct personal services contracts; (2) teaching contracts; (3) lease agreements for the use of office space; and (4) agreements to provide physicians with the services of other medical professionals.

A. Personal Service Agreements With Physicians

Doctor Jagdish Shah, an oncologist, gained privileges and began seeing patients at Sacred Heart in 2000. At trial, Shah testified that in 2009, after another clinic where he was working closed, he told Novak that he could direct approximately 250 patients to Scared Heart. Novak said he was interested and directed Shah to speak with Nagelvoort about the arrangement. Shah relayed the same information to Nagelvoort, who then said he would speak with Novak. A couple days later, Novak called Shah and told him that there was a contract for him to pick up. Until that point, Shah had not discussed with Novak or Nagelvoort any specific additional services that Shah might provide the Hospital.

The contract provided that Shah would devote 20 hours per month to developing a cancer screening program and consult on oncology and hematology cases in exchange for a monthly payment of $2,000. Shah then met with Nagelvoort to explain that he would be unable to devote 20 hours per month to such work. Nagelvoort responded that Shah should “just sign the contract.” Shah testified that he understood this to mean that he did not have to do the work required by the contract. It was his understanding that in exchange for $2,000 per month, he was required only to bring patients to Sacred Heart. Shah and Nagelvoort then signed the contract.

From July 2009 through January 2012, Shah submitted time sheets to Sacred Heart that showed he performed work and services that he did not actually perform. Shah testified that during that time period, he never spent 20 hours in one month performing any of the duties set forth in the contract. He also submitted time sheets showing time spent on services that were not outlined in the contract. Still, he received $2,000 every month.

In April 2012, Doctor Rajiv Kandala entered- into an agreement with Sacred Heart to provide education to patients and staff regarding palliative care and hospice services. The contract provided that Kan-dala would be paid $175 per hour for up to 23 hours of such work per month. He submitted time sheets for the maximum number of hours each month and was paid the monthly maximum amount of $4,025. Numerous administrators and staff testified that there was no such palliative care educational or screening program at the Hospital. According to these witnesses, Kandala was rarely, if ever, seen at the Hospital. Additionally, some of Kandala’s time sheets showed his attendance at meetings that did not occur on the dates recorded.

Between April 2012 and March 2013, Chief Operating Officer Anthony Puorro had numerous conversations with Kandala and Novak regarding Kandala’s patient admission numbers. On at least three occasions, Puorro noted that Kandala’s admission numbers were down and asked Kan-dala if he could increase the number of patients he sent to Sacred Heart. In February 2013, after discussing Kandala’s declining numbers, Novak suggested to Puorro that they take Kandala out and talk to him because “we need his patients over here.”

B. Teaching Contracts

Doctor William Noorlag was the Director of Sacred Heart’s Podiatric Residency Program from 1999 to 2010. In 2001, Novak told Noorlag that he wanted to create paid teaching positions for podiatrists as a way to bring more podiatric patients to the Hospital. Noorlag testified that prior to creating these teaching contracts, the attending podiatrists at Sacred Heart already taught the residents as part of their regular duties, without any additional compensation. According to Noorlag, the attending physicians did not perform duties that justified additional teaching salaries. He also testified that in 2008 or 2009, Novak instructed him that there must be evaluations and other paperwork to justify the contracts, and explained, “If I go down for this, you’re going down with me.”

In late 2001, Sacred Heart entered into a teaching contract with Doctor Richard Weiss. At trial, Weiss testified that when he first met with Novak to discuss a teaching contract, it was Weiss’ understanding that Sacred Heart would be compensating him for bringing surgical cases to the Hospital. There was no discussion at that meeting of Weiss’ qualifications or any details of the residency program. Weiss and Novak eventually signed a contract, under which Weiss would receive $2,000 per month for teaching and performing various other services related to the residency program. From 2002 through 2008, Weiss received his monthly salary from Sacred Heart, but performed none of the services listed in the teaching contract. Instead, he simply allowed residents to observe his surgeries in the same manner he had done, ■without additional compensation, before signing the contract.

In November 2006, Novak signed a contract with Doctor Shanin Moshiri, which contained the same duties as Weiss’ contract, and stated that Moshiri would be the “Director of External Office Rotations” for the residency program. Noorlag, the Director of the program, testified that he did not consider Moshiri to hold that position and that another podiatrist was, in fact, in charge of arranging external rotations for the residents. Like Weiss, Moshiri was paid $2,000 per month under the contract. According to Noorlag, Moshiri did not perform the duties outlined in his contract and his instruction of residents was limited to allowing them to observe and participate in surgical procedures. Additionally, records showed that other attending podiatrists who were not compensated under teaching contracts had significantly more contact with residents than Moshiri did.

In May 2010, Nagelvoort drafted a teaching contract for Doctor Subir Maitra, which mirrored the contracts for Weiss and Moshiri. Under the contract, Sacred Heart would pay Maitra $2,000 per month to serve as a faculty member of the Hospital’s “Medical Student Program.” At this time, there was already a medical student program at the Hospital, which was run by an outside organization called Affiliated Institute for Medical Education (AIME). This organization independently paid physicians to allow medical students to rotate with them. Maitra received his teaching compensation from Sacred Heart, not AIME.

Students who rotated with Maitra were to record their time in a logbook, which Maitra was then required to sign. Nagelv-oort directed his assistant to maintain this logbook. At Maitra’s request, he was allowed to sign blank log sheets, which were to be filled in later by the students. By June 2012, students stopped recording their time altogether, but Maitra’s signature continued to appear on blank logs. Sacred Heart continued to pay Maitra under the contract through April 2013. During a meeting with Puorro in February 2013, Puorro told Maitra that Novak wanted to know how many patients Maitra was referring to the Hospital. Maitra responded: “Every month, I’m bringing at least three to four insurance cases.... He should be giving me more [money], a little bit.” There was no discussion during that meeting of any of Maitra’s teaching duties under his contract.

C. Lease Agreement

In March 2004, Novak signed a lease to rent space from Doctor Percy Conrad .May, Jr. at the May Medical Center. Sacred Heart agreed to pay $5,000 per month to rent three exam rooms, the clinic’s pharmacy, and its waiting area. In December 2009, Nagelvoort signed an addendum to this lease, lowering the monthly payment to $2,000, with no changes to the other terms. At trial, Noorlag testified that in 2006, Ed Lorgeree, the Chief Operating Officer, explained to him that this lease was established so that May would refer podiatry patients to Sacred Heart. In April 2012, during a recorded conversation, Chief Financial Officer, Roy Payawal noted that when the rent was $5,000, “we were getting five or six referrals a month,” but when the rent was reduced, May’s referrals “dried up.” In September 2012, prior to his cooperation, Puorro was recorded stating: “[Mayj’s getting 2,000 dollars a month.... That’s his check, and ah, it’s in exchange for continuing his relationship. It’s a quid pro quo. We expect admissions to be sent to Sacred Heart Hospital, otherwise it doesn’t make any financial sense for us.”

D. Agreements for Services of Other Medical Professionals

In early 2009, Nagelvoort discussed with the Director of Nursing, Deborah Savage, an arrangement whereby the Hospital would hire physician’s assistants (PAs) for some of their attending physicians. At trial, Savage testified that Nagelvoort explained that this arrangement would create an incentive for physicians to refer patients to the Hospital.

Savage’s successor, Michael Castro, also testified that he had multiple meetings in 2010 and 2011 with Novak, Nagelvoort, and the Director of Respiratory Practice, Ernie Velasquez. During those meetings, Nagelvoort explained that the Hospital needed to provide Doctor Ventkateswara Kuchipudi with a PA in order to obtain more patient referrals from him. In a conversation recorded in February 2013, Velasquez explained the arrangement:

When Clarence [Nagelvoort] wanted to get Kuchipudi here, ... Kuchipudi said I can bring the patients in, but I need some help. Clarence thought about this program, which was a program whereby the Hospital is gonna hire the PAs.... You will make money and guarantee that your patient will be protected, that it’s not gonna be stole from you, and we make money from the Medicare admission.

Doug Willaman began working as a PA at Sacred Heart in February 2009. Shortly thereafter, Willaman had a meeting with Doctor Shah and Nagelvoort. Willaman testified that during that meeting, Nagelv-oort told Shah that Willaman would provide services for Shah’s patients both at the clinic and the Hospital, and in return Nagelvoort expected Shah to refer five to ten patients per month to Sacred Heart. Willaman saw patients at Shah’s clinic between February 2009 and December 2010, and was paid a salary by the Hospital, but was never compensated by Shah.

Joanna Swajnos began working as a PA at Sacred Heart in November 2009. In December 2009, Nagelvoort assigned Swajnos to work at May’s clinic treating his patients for two and a half days per week. May did not compensate Swajnos for her work, but did bill for the services she provided his patients. Sacred Heart paid Swajnos’ salary and did not bill for her services. In July 2010, Debra Savage asked Roy Payawal for May’s admission numbers. She testified that she thought Swajnos was needed more at the Hospital than at May’s clinic, but that if May was bringing enough admissions to the Hospital, she would keep Swajnos at the clinic in some capacity. Between January and July 2010, May had admitted four patients to the Hospital. After she received that information and discussed it with Nagelvoort, Nagelvoort made the decision to recall Swajnos from the clinic.

Beginning in 2010, Nagelvoort assigned Swajnos, Willaman, and nurse practitioners (NPs) Jean Rush and Myrline Jeudy to assist Doctor Kuchipudi with his patient care. They worked with Kuchipudi’s patients both in the Hospital and at various nursing home facilities. Swajnos, Rush, and Jeudy each testified that they spent at least 90% of their time working with Ku-chipudi’s patients and understood him to be their boss. Kuchipudi never paid Rush and Jeudy, who received all of their compensation from the Hospital. From March 2011 to April 2013, Swajnos received between 25% and 30% of her compensation from Kuehipudi, but estimated that, during that period, 60% of her time was devoted to his patients. She still received her full salary from the Hospital, as well. In a recorded conversation in March 2013, regarding these arrangements, Payawal explained: “I think that was the main reason, uh, we created that, uh, PA to do ... the work for uh', the doctor, and particularly Kuehipudi. Because I don’t think he will come here, if that was not set up for him.” In this same conversation, Payawal also confirmed that Nagelvoort set up these arrangements and that Novak knew about them.

On numerous occasions, Novak and Na-gelvoort conferred with Sacred Heart’s outside counsel, Joan Lebow, when creating these arrangements. Lebow testified that Nagelvoort told her that the Hospital intended to employ the PA or NP full time, but only use them at the Hospital 70% of the time and sell the balance of the time to attending physicians for market value. Upon that information, Lebow. drafted a memorandum in August 2010, in which she advised that the relationship did not fit into any of the safe harbor provisions of the Anti-Kickback Statute, but that it might not violate the law so long as referral inducement was not a purpose of the arrangement. Nagelvoort responded to the memorandum in an email by first explaining that he had discussed it with Novak. Among other suggested revisions to the memorandum, Nagelvoort requested that Lebow “remove bullet point three as it refers to referrals!!! [PJlease delete this.”

For the next few months, Lebow continued to confer with and provide advice to Novak and Nagelvoort regarding these arrangements. In February 2011, another memorandum from Lebow reiterated that when the PAs and NPs were working at the Hospital, only the Hospital was allowed to bill for the services, not the attending physician. Lebow stated that allowing a PA or NP to work for a physician while the PA or NP was working a shift at the Hospital could be considered an illegal inducement for referrals.

E. Indictment, Trial, and Post-Trial Motions

On March 18, 2014, Novak and Nagelv-oort were charged in a superseding indictment with violating 42 U.S.C. § 1320a-7b(b)(2)(A), and conspiring to do so in violation of 18 U.S.C. § 371. Novak was charged with 27 substantive counts of violating the Anti-Kickback Statute and Na-gelvoort was charged with 10 such counts. After a seven-week trial, the jury found both Novak and Nagelvoort guilty of the conspiracy count, and all but one of the substantive counts with which they were charged.

At trial, and in post-trial motions, Novak and Nagelvoort argued that there was insufficient evidence to prove that they acted with the requisite knowledge and willfulness under the statute. They also argued that the government failed to prove that certain of the agreements fell outside the statute’s safe harbor provisions. Nagelv-oort separately argued that he withdrew from the conspiracy when he resigned his position at Sacred Heart on April 28, 2011, and as such, any coconspirator statements made after that date were not admissible against him.

The district court rejected these challenges. It held that there was sufficient evidence for the jury to find that Novak and Nagelvoort acted knowingly and that the contracts did not fall within any of the statute’s safe harbors. The court also affirmed its ruling that Nagelvoort had not proven his withdrawal as a matter of law.

II. DISCUSSION

On appeal, both Novak and Nagelvoort argue that the government did not present sufficient evidence to support their convictions for violating the Anti-Kickback Statute. Nagelvoort also challenges the district court’s rulings and jury instruction regarding his withdrawal from the conspiracy. Finally, Nagelvoort argues that the Anti-Kickback Statute is unconstitutionally vague as applied to him.

A. Sufficiency of the Evidence

Novak and Nagelvoort make two challenges to the sufficiency of the evidence. First, they argue that the government failed to present sufficient evidence that the agreements at issue fell outside of the statute’s safe harbor provisions. Then, they contend that there was insufficient evidence for the jury to determine that they knowingly or willfully violated the Anti-Kickback Statute.

When reviewing a challenge to the sufficiency of the evidence, “we view the evidence in the light most favorable to the prosecution and ask whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Salinas, 763 F.3d 869, 877 (7th Cir. 2014) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). We do not reweigh the evidence nor judge the credibility of witnesses. United States v. Galati, 230 F.3d 254, 258 (7th Cir. 2000). “As long as there is a reasonable basis in the record for the jury’s verdict, it must stand.” Id. (citation omitted).

Under 42 U.S.C. § 1320a-7b(b)(2)(A), it is a felony to knowingly or willfully pay any remuneration, directly or indirectly, to refer a person for a service for which payment may be made, in whole or in part, under a federal health care program. The statute’s corresponding regulations provide certain “safe harbors” that protect from liability payments made pursuant to personal services contracts and rental agreements if they satisfy specific criteria. See 42 C.F.R. § 1001.952(b) and (d). Generally, the safe harbors exempt written agreements for space rental and personal services if the terms are for less than a year; the compensation is consistent with fair market values; and the services or space are reason-ably necessary to accomplish the business goals of the contracting entity. Id. These safe harbors, however, do not protect any payment that “takes into account the value or volume of any referrals” for services to be paid for under a federal health care program. Id. § 1001.952(b)(5) and (c)(5).

The jury was properly instructed on the application of these safe harbor provisions, and Novak and Nagelvoort do not contend otherwise. Instead, they simply argue that the jury’s conclusions were incorrect because the evidence showed that the leases, personal service contracts, and teaching agreements met each of the elements of the respective safe harbor. However, there was ample evidence from which the jury could determine that the arrangements at issue “[took] into account the value or volume of any referrals” from the doctors.

Doctor Shah signed a contract to spend 20 hours per month developing a cancer screening program’ at the Hospital in exchange for $2,000 per month. Shah testified that it was his understanding that he was not actually required to perform the work outlined, and instead, was required only to bring patients to Sacred Heart. Additionally, multiple witnesses testified that Kandala was rarely at the Hospital, despite his time sheets showing that he spent 23 hours per month providing education on palliative and hospice services. The jury also heard recorded conversations between Kandala, Puorro, and Novak discussing Kandala’s declining referral numbers, as well as Novak’s desire to make Kandala happy because “we need his patients over here.” Based on this evidence, a reasonable jury could conclude that the agreements took into account the physician’s potential referrals, thereby placing them outside the safe harbor.

As to the teaching contracts, Doctor Noorlag testified that the attending podiatrists were already teaching residents as part of their normal duties before the creation of separate teaching contracts. He said there were no additional duties created that would have justified the additional payments made under the contracts. Doctor Weiss, who had one such contract, testified that it was his understanding he was being compensated for bringing surgical cases to the Hospital. The jury heard testimony indicating that Doctors Moshiri and Maitra were paid pursuant to these contracts, but did not perform all of the corresponding duties. The jury also heard a conversation between Maitra and Puor-ro, during which Maitra referenced the number of referrals he had made and that he thought the Hospital should be paying him more.

Finally, the evidence regarding the lease agreement with Doctor May also supported the jury’s conclusion. Puorro was recorded stating that the arrangement with May was “a quid pro quo. We expect admissions to be sent to Sacred Heart Hospital, otherwise it doesn’t make financial sense for us.” Clearly, this indicates the consideration of May’s potential referrals.

The evidence summarized here, and outlined in more detail above, when viewed in the light most favorable to the prosecution, certainly could have lead a reasonable jury to find that the agreements took into account the referrals that the doctors would make to Sacred Heart. Thus, because there was a reasonable basis for the jury to conclude that the contracts were not protected by the safe harbors, that conclusion must stand. See Galati, 230 F.3d at 258.

Next, Novak and Nagelvoort contend that the evidence presented at trial was insufficient to prove that they knowingly or willfully violated the Anti-Kickback Statute when they entered into the arrangements at issue. Again, however, there was sufficient evidence from which the jury could have concluded that both appellants knew the contracts were illegal.

As an initial matter, the government presented evidence that Novak and Nagelvoort had knowledge of the Anti-Kickback Statute, its purpose, and its prohibitions. The jury heard that both men were involved in the Hospital’s Corporate Compliance Program, which produced a manual that discussed these very issues. Additionally, Sacred Heart’s outside counsel Joan Lebow testified that she discussed the statute with appellants and counseled them on its provisions. The jury saw numerous memoranda from Lebow to Novak and Nagelvoort wherein she clearly set forth the types of arrangements the statute prohibits.

Having established their knowledge of the statute, the government also presented ample evidence indicating that both Novak and Nagelvoort played significant roles in the creation and oversight of the arrangements at issue. Novak signed the lease agreement with May, the initial contract with Moshiri, and the teaching contracts with Weiss and Maitra. He also reviewed and signed mileage requests submitted by Szwajnos for her travel to and from May’s and Kuchipudi’s clinics. Nagelvoort signed the second agreement with Moshiri, the contract with Shah, and the amendment to May’s lease agreement.

In addition, Noorlag, the Director of Podiatrie Residency, testified that Novak sought his input in creating and drafting the language of the teaching contracts. Weiss testified that, after a discussion with Novak, it was his understanding that his teaching contract was a means for compensating him for bringing surgical cases to the Hospital. Noorlag also testified that Novak directed him to create paper files justifying the teaching agreements, and explained to Noorlag, “if I go down for this, you’re going down with me.”

As further evidence of their knowledge, Shah testified that he discussed bringing patients to Sacred Heart with both Novak and Nagelvoort before he was offered a contract to develop a Cancer Screening Program. He told Nagelvoort he could not devote the amount of time the contract required, and Nagelvoort told him to “just sign the contract.” Shah testified that, based on these conversations, he believed his only obligation was to bring patients to the Hospital. Savage testified that Nagelv-oort told her that the provision of PAs and NPs would create an incentive for physicians to refer their patients to Sacred Heart. She also' testified that Nagelvoort oversaw this program and assigned the professionals to particular physicians. Pay-awal stated in a recorded conversation that Nagelvoort was responsible for creating these arrangements and that Novak had knowledge of them. All of this evidence could lead a reasonable jury to conclude that Novak and Nagelvoort knew that they were compensating doctors for referrals.

Finally, documents showed that Novak and Nagelvoort provided Lebow with false and incomplete information when seeking her counsel on the legality of these arrangements. On multiple occasions, and after consulting with Novak, Nagelvoort informed Lebow that the individual physicians would compensate the PAs and NPs provided to them, when in fact, the Hospital paid those professionals. Nagelvoort also told Lebow that the Hospital alone would be billing for the PAs’ and NPs’ services, which was not true. From that evidence, a reasonable jury could make the inference that Novak and Nagelvoort knew the arrangements were illegal, but provided false information so as to obtain a record of approval from their outside counsel.

Both Novak and Nagelvoort argue that their numerous consultations with Lebow showed their intent to ensure the contracts were legal. Novak similarly argues that many of the recorded conversations the government presented were, in fact, exculpatory. He contends that these conversations show that he was attempting to follow the law and, therefore, cannot be found to have knowingly or willfully violated the Anti-Kickback Statute. For example, in some of these recordings, Novak is heard directing others to make sure that the arrangements were “kosher” and that employees and physicians were documenting the work that was required under the contracts.

However, the jury heard and rejected these arguments. Instead, it accepted the government’s theory that these conversations indicated that Novak and Nagelvoort knew these arrangements were illegal and that they were attempting to cover their tracks. This is a reasonable inference based upon all of the evidence presented, and it is not for us to decide that the jury was wrong to accept it. See Galati, 230 F.3d at 258 (we will not reweigh evidence if there is a reasonable basis in the record for the verdict); see also United States v. Hale, 448 F.3d 971, 984-85 (7th Cir. 2006) (where there are competing views of the evidence, “[w]e will not substitute our judgment for the jury’s”).

In sum, there was sufficient evidence, when viewed in the light most favorable to the government, for the jury to conclude that both Novak and Nagelvoort violated the Anti-Kickback Statute knowingly or willfully.

B. Nagelvoort’s Challenge to Admission of Coconspirator Statements

Nagelvoort’s employment with Sacred Heart ended on April 28, 2011, when he went to Novak and asked to be terminated. The next day, Novak sent a notice to all the department managers at the Hospital informing them that Nagelvoort was no longer associated with Sacred Heart. Nagelvoort never returned to the Hospital and did not receive any payments or benefits after that date.

Nagelvoort argues, therefore, that he withdrew from the conspiracy on that date, and any coconspirator statements or conduct occurring after April 28, 2011, should have been held inadmissible against him. He requested such an instruction at trial, which the district court denied. Instead, the court instructed the jury that if it found that Nagelvoort showed “that it’s more likely than not that he withdrew from the alleged conspiracy as of April 28, 2011, then you may not consider as evidence against him any statements made by any alleged coconspirators after that date.”

We review a district court’s decision to admit coconspirator statements under Federal Rule of Evidence 801(d)(2)(E) for an abuse of discretion. United States v. Pust, 798 F.3d 597, 602 (7th Cir. 2015) (citation omitted). Any relevant findings of fact are reviewed for clear error. Id.

Under Rule 801(d)(2)(E), statements of a coconspirator are admissible against a party if the party was a member of the conspiracy and the statements were made during the course and in furtherance of the conspiracy. United States v. Powers, 75 F.3d 335, 339 (7th Cir. 1996) (citation omitted). Thus, if Nagelvoort was no longer a member of the conspiracy after April 28, 2011, the coconspirator statements made after that date would not be admissible against him under that rule. It is the defendant’s burden to prove that he withdrew from the conspiracy. United States v. Hall, 212 F.3d 1016, 1023 (7th Cir. 2000). Ceasing one’s active participation in the conspiracy, by itself, is not sufficient to prove withdrawal. United States v. Vallone, 752 F.3d 690, 697 (7th Cir. 2014) (citation omitted). Withdrawal requires an “ ‘affirmative action ... to disavow or defeat the purpose’ of the conspiracy.” Smith v. United States, 568 U.S. 106, 133 S.Ct. 714, 720, 184 L.Ed.2d 570 (2013) (quoting Hyde v. United States, 225 U.S. 347, 369, 32 S.Ct. 793, 56 L.Ed. 1114 (1912)).

Nagelvoort argues that by his termination from Sacred Heart and Novak’s communication of that fact to the Hospital’s managers, he effectively withdrew from the conspiracy as a matter of law, and therefore, any coconspirator statements after his termination were inadmissible against him. He does not contend that he took any other affirmative actions toward withdrawal, nor does he argue that any such actions would have been necessary. As support, Nagelvoort cites to a number of cases from our sister circuits, in which the courts have found that ending one’s relationship with a company was sufficient to establish withdrawal from a conspiracy occurring within that company. See, e.g., Morton’s Mkt., Inc. v. Gustafson’s Dairy, Inc., 198 F.3d 823, 838-39 (11th Cir. 1999), amended in part, 211 F.3d 1224 (11th Cir. 2000); United States v. Nerlinger, 862 F.2d 967, 974-75 (2d Cir. 1988); United States v. Steele, 685 F.2d 793, 803-04 (3d Cir. 1982).

Our cases, however, require something more. We have held consistently that simply ending one’s involvement in the conspiracy, even voluntarily, is not enough to constitute withdrawal. See, e.g., Vallone, 752 F.3d at 697 (defendant did not withdraw where he did not perform an affirmative act “to defeat or disavow the unlawful goal of the conspiracy”); United States v. Morales, 655 F.3d 608, 640 (7th Cir. 2011) (“neither retirement from an organization nor mere inactivity constitutes effective withdrawal” without affirmative act to disavow the criminal objective); United States v. Julian, 427 F.3d 471, 483 (7th Cir. 2005) (same). Here, there was no evidence presented at trial, nor does Nagelvoort now contend, that he took any additional action aimed at defeating or disavowing the objectives of the conspiracy. The termination of Nagelv-oort’s employment alone does not constitute withdrawal.

Nagelvoort points out that in United States v. Wilson, we held that “communication by the defendant of the fact of his withdrawal in a manner designed to reach his coconspirators” can suffice as proof of withdrawal. 134 F.3d 855, 863 (7th Cir. 1998). He argues that his request to be terminated and the notice Novak sent to the Hospital managers constitutes such a communication. We clarified that holding, however, in Vallone, where the defendant made a similar argument. United States v. Vallone, 698 F.3d 416, 494 (7th Cir. 2012), vacated on other grounds sub nom., Dunn v. United States, — U.S. -, 133 S.Ct. 2825, 186 L.Ed.2d 881 (2013), opinion modified and reinstated, Vallone, 752 F.3d 690. Expanding on the language in Wilson, we held that “in order to effectuate legally meaningful withdrawal from the conspiracy, the defendant’s announcement must also disavow the conspiracy and its criminal objectives.” Id. (internal quotation marks and alteration omitted). Nagelvoort made no such disavowal. He simply expressed his desire to end his employment at the Hospital. Thus, we agree with the district court’s finding that Nagelvoort had not carried his burden of proving that he had withdrawn from the conspiracy as a matter of law. The court did not abuse its discretion, therefore, when it allowed the coconspirator statements into evidence and denied the limiting instruction Nagelvoort requested.

Nagelvoort then attempts to argue that, despite the court’s findings, he was prejudiced by the court’s decision to allow the jury to consider the issue of withdrawal. We fail to see any prejudice this may have caused. Based on the court’s instruction, the jury could have determined that Nagelvoort had withdrawn, in which case any statements after April 28, 2011, could not be considered against him. Particularly in light of the court’s finding that he had not proven withdrawal as a matter of law, we fail to see how Nagelv-oort was prejudiced by allowing the jury the opportunity to make a contrary factual finding. If anything, it appears that he only could have benefitted from the instruction. Therefore, we do not find any error in the court’s instruction.

C. Constitutionality of Anti-Kickback Statute

Finally, Nagelvoort contends that this Court’s interpretation of the Anti-Kickback Statute renders it unconstitutionally vague. Specifically, Nagelvoort takes issue with the district court’s instruction, and the government’s argument to the same effect, that the statute is violated if “any part or purpose” of a payment or remuneration was to induce referrals to the Hospital.

We review issues of statutory interpretation de novo. United States v. Ford, 798 F.3d 655, 661 (7th Cir. 2015) (citation omitted). A challenge to a statute’s constitutionality is also reviewed de novo. United States v. Sylla, 790 F.3d 772, 774 (7th Cir. 2015) (citation omitted).

A statute is unconstitutionally vague if it: “(1) does not provide a person of ordinary intelligence a reasonable opportunity to know what is prohibited, or (2) fails to provide explicit standards to prevent arbitrary discriminatory enforcement by those enforcing the statute.” United States v. Plummer, 581 F.3d 484, 488 (7th Cir. 2009) (citation omitted). Unless the vagueness challenge implicates the First Amendment, which is not the case here, the statute is analyzed as applied to the specific facts of the case. Id.

Nagelvoort argues that by allowing the jury to find a violation if “any part or purpose” of the payments was meant to induce referrals, the statute is unconstitutionally vague. He contends that “every contractual relationship a Hospital has with a doctor” might run afoul of the statute with such an interpretation, and that one could not know in advance whether a particular arrangement might be deemed illegal by a prosecutor. He urges us, therefore, to overturn our precedent and adopt an interpretation (also set forth in his proposed jury instruction) that a payment or remuneration violates the Anti-Kickback Statute only if its “primary or substantial purpose” is to induce referrals.

We considered, and rejected, an almost identical theory in United States v. Borrasi, 639 F.3d 774, 781-82 (7th Cir. 2011). In fact, Nagelvoort relies on the same case, United States v. Bay State Ambulance & Hospital Rental Serv., Inc., 874 F.2d 20 (1st Cir. 1989), to support his argument as the defendant in Borassi did. In Bay State, the First Circuit affirmed convictions after the district court instructed the jury that defendants were guilty only if payments were made “primarily as [referral] inducements.” 874 F.2d at 30. That case did not persuade us in Borassi, and instead, we followed the holdings of the Third, Fifth, Ninth, and Tenth Circuits on this issue. See Borrasi, 639 F.3d at 782 (collecting cases). We held that “if part of the payment compensated past referrals or induced future referrals,” it constitutes a violation of the Anti-Kickback Statute. Id.

We see no reason to overturn Borassi and alter that interpretation now. We reject Nagelvoort’s contention that our interpretation of the statute criminalized his otherwise “innocent, legitimate business arrangements and conduct.” As we said in Borrasi, “nothing in the [Anti-Kickback Statute] implies that only the primary motivation of remuneration is to be considered in assessing” the conduct at issue. Id. We hold, therefore, that the Anti-Kickback Statute is not unconstitutionally vague as applied to Nagelvoortis case.

III. CONCLUSION

For the foregoing reasons, we affirm the convictions of both Novak and Nagelvoort.


source: Caselaw Access Project

author: ROVNER, Circuit Judge.

license: Public Domain

text:
    Luis VEGA, Plaintiff-Appellant, v. NEW FOREST HOME CEMETERY, LLC, Defendant-Appellee.
    No. 16-3119
    United States Court of Appeals, Seventh Circuit.
    Argued April 18, 2017
    Decided May 15, 2017

      Carlos G. Becerra, Attorney, Becerra Law Group, LLC, Chicago, IL, for Plaintiff-Appellant.
    Susan- E. Walsh, Attorney, Hennessy & Roach, Chicago, IL, for Defendant-Appel-lee.
    Before EASTERBROOK, KANNE, and ROVNER, Circuit Judges.
   ROVNER, Circuit Judge.

Luis Vega filed this suit alleging that his former employer, New Forest Home Cemetery, LLC (“New Forest”), by failing to pay him for his final two weeks of work, violated his right under the Fair Labor Standards Act of 1938, 29 U.S.C. § 206(b), to compensation at the minimum wage. The district court entered summary judgment in favor of New Forest, reasoning that Vega had not exhausted the grievance procedure specified by the collective bargaining agreement between New Forest and the union representing its workforce before he filed suit. R. 25. Because the collective bargaining agreement did not clearly and unmistakably waive Vega’s right to pursue his FLSA claim in a judicial forum, we reverse.

I.

For purposes of reviewing the court’s summary judgment decision, we recite the facts in the light most favorable to Vega. E.g., Thompson v. Holm, 809 F.3d 376, 378 (7th Cir. 2016).

Vega worked for New Forest as a seasonal employee from May 2010 to June 2015. His employment was conditioned upon membership in the Service Employees International Union (the “union”), and he was therefore subject to the terms of a collective bargaining agreement between the union’s local and New Forest. Article VIII of that agreement sets forth a mandatory four-step procedure culminating in arbitration to resolve employee grievances. Section 8.1 of the agreement defines “grievance” to include “a claim or dispute concerning pay, hours[,] or working conditions or the interpretation or application of this Agreement.”

New Forest terminated Vega from its employ on June 3, 2015. At the time of his discharge, Vega was owed compensation for roughly 54 hours of work in the preceding two weeks. New Forest did not tender a final paycheck to Vega for the wages owed to him, purportedly because it discovered that Vega lacked a valid Social Security number and it did not know how to lawfully make payment to him without such a number.

The parties dispute whether Vega made efforts to initiate a grievance regarding his final paycheck in accordance with the collective bargaining agreement. Vega avers that he did. He has submitted a declaration indicating that he raised the matter with his union steward, Arzaius Lander, who told him to contact Charles Jones, a union representative with the local bargaining unit. Vega represents that he attempted to reach Jones by telephone and left messages with his office, but to no avail. Lander and Jones have both submitted affidavits denying that Vega ever sought the union’s assistance with his unpaid wages.

Vega, having concluded that any further attempts to pursue the grievance process would be futile, instead filed suit in the district court. Count I of Vega’s complaint asserts that New Forest, in failing to pay him the wages owed for his last two weeks of work, has violated section 6(b) of the FLSA, which requires employers to pay an employee engaged in interstate commerce no less than the federal minimum wage (specified in section 6(a) of the statute) for his work. 29 U.S.C. § 206(b). Counts II and III assert pendent state claims for violation of the Illinois Wage Payment and Collection Act, 820 ILCS 115/1, et seq., and for breach of contract.

New Forest promptly moved to dismiss the suit because Vega had not exhausted the grievance procedure specified in the collective bargaining agreement for any dispute about wages, and the district court ultimately entered summary judgment against Vega on that basis as to his FLSA claim. R. 25. Although it recognized that Vega was suing to enforce his rights under the FLSA as opposed to the collective bargaining agreement, the court believed it to be the “generally established” rule that a union member “must follow the [collective bargaining] agreement’s established grievance procedures before [he] can bring a lawsuit.” R. 25 at 3 (collecting cases). The court was willing to assume, in light of Vega’s representation that he attempted to reach Jones by telephone on multiple occasions, that he had followed the first step of the grievance process (contacting the union) as set forth in the collective bargaining agreement. R. 25 at 3. But the court found Vega’s account insufficient to establish that he had otherwise exhausted his contractual remedies or that his efforts to do so were frustrated by the union. R. 25 at 3. The court entered judgment in favor of New Forest on that basis, and relinquished jurisdiction over Vega’s state and common law claims. R. 25 at 3^1.

n.

Our review of the district court’s summary judgment decision is, of course, de novo. E.g., Madison Mut. Ins. Co. v. Diamond State Ins. Co., 851 F.3d 749, 753 (7th Cir. 2017). The question posed is straightforward: Does the collective bargaining agreement require Vega to resolve his FLSA minimum wage claim through the specified grievance procedure, or does it allow him to ask a court to resolve that claim regardless of whether he has exhausted his contractual remedies?

The district court’s determination that Vega’s failure to exhaust the grievance procedure forecloses him from seeking relief in court presumes that because his complaint is about New Forest’s failure to pay him, and the collective bargaining agreement establishes a grievance procedure for a dispute over pay, he is invariably required to use that contractual procedure regardless of whether his claim sounds in contract or in statute. The collective bargaining' agreement between the union and New Forest indeed does address the minimum rate of pay owed to seasonal employees like Vega (sections 3.2 and 3.3), sets out a mandatory grievance procedure to resolve disputes with the employer (section 8.2), and defines grievances to include disputes over pay, hours, or working conditions (section 8.1). If Vega’s claim were one relying on his substantive rights under the collective bargaining agreement, there is no question that he would have to exhaust his contractual remedies by pursuing a grievance or, in the alternative, demonstrate why futility or one of the other recognized exceptions to exhaustion should relieve him of that obligation. E.g., McCoy v. Maytag Corp., 495 F.3d 515, 524-25 (7th Cir. 2007); McLeod v. Arrow Marine Transp., Inc., 258 F.3d 608, 616-17 (7th Cir. 2001).

But Vega has statutory as well as contractual rights, and the district court did not appreciate the distinction between those categories of rights vis-á-vis his obligation to resort to the grievance procedure. In opposing New Forest’s motion to dismiss his suit, Vega cited Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981), for the propositions that an employee’s rights under the FLSA are independent of his rights under a collective bargaining agreement, id. at 737, 745, 101 S.Ct. at 1443, 1447, and that one’s rights under the FLSA cannot be waived by contract, see id. at 740, 745, 101 S.Ct. at 1444-45, 1447. R. 23 at 4-5. The former proposition is the one that is relevant here. No one is suggesting that Vega’s union purported to negotiate away his FLSA rights in the collective bargaining agreement. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628, 105 S.Ct. 3346, 3354, 87 L.Ed.2d 444 (1985) (“By agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral rather than a judicial forum.”). What New Forest argues is that the collective bargaining agreement, by establishing a grievance procedure for disputes over pay, compels Vega to use that grievance procedure to resolve his FLSA claim. Barren-tine is neither the Supreme Court’s most recent nor most pertinent decision on that question. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 34-35, 111 S.Ct. 1647, 1656-57, 114 L.Ed.2d 26 (1991) (noting that Barrentine and similar cases did not resolve question of whether employee may be contractually obligated to arbitrate statutory claims). But it does make clear that an employee’s statutory rights are distinct from his contractual rights and as such must be analyzed separately with respect to his right to enforce them in court. See Barrentine, 450 U.S. at 734-37, 101 S.Ct. at 1441-43. This is the fundamental point that the district court overlooked.

Later cases have backed away from a reading of Barrentine, its-predecessor, Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), and its successor, McDonald v. City of West Branch, Mich, 466 U.S. 284, 104 S.Ct. 1799, 80 L.Ed.2d 302 (1984), suggesting that a collective bargaining agreement can never restrict an employee’s access to the courts for the purpose of enforcing his statutory rights. That trilogy of cases, the Supreme Court has now made clear, did not resolve the question whether an agreement to arbitrate statutory claims is enforceable against an aggrieved employee who wishes to pursue such claims in court rather than by way of a grievance and arbitration. See lip Penn Plaza LLC v. Pyett, 556 U.S. 247, 263-64, 129 S.Ct. 1456, 1468-69, 173 L.Ed.2d 398 (2009) (citing Gilmer, 500 U.S. at 35, 111 S.Ct. at 1656-57). Up Penn Plaza answers this question in the affirmative, so long as the collective bargaining agreement explicitly states that an employee must resolve his statutory as well as his contractual rights through the grievance procedure delineated in the collective bargaining agreement. Id. at 258-59, 274, 129 S.Ct. at 1465, 1474. The language of the agreement in this regard must be clear and unmistakable in order for it to be enforced against an employee who wishes to bypass the contractual dispute resolution process in favor of a judicial forum. Id. at 274, 129 S.Ct. at 1474; see Wright v. Universal Maritime Serv. Corp., 525 U.S. 70, 79-82, 119 S.Ct. 391, 396-97, 142 L.Ed.2d 361 (1998).

In this case, the district court did not consider whether the collective bargaining agreement requires Vega to resort to the grievance process when he is pursuing rights granted to him by the FLSA rather than the contract itself. Vega did not cite 14 Penn Plaza to the district court, but, as we have noted, he did cite Barrentine in support of an argument that his statutory rights are distinct from his contractual rights and that the collective bargaining agreement cannot waive his rights under the FLSA. Although Vega’s argument as framed was incomplete, if not inaccurate— 14 Penn Plaza leaves no doubt that a collective bargaining agreement can restrict an employee’s access to a judicial forum for purposes of resolving his statutory claim so long as it does so in clear and unmistakable terms—the argument was sufficient to alert the court that an employee’s statutory rights are independent of his contractual rights and must be separately analyzed vis-a-vis the employee’s obligation to invoke the contractual dispute resolution process. The court apparently did not consult Barrentine, which would have led it to 14 Penn Plaza.

In sum, the particular question Up Penn Plaza requires us to answer is whether the collective bargaining agreement clearly and unmistakably requires Vega to use the grievance and arbitration procedure to resolve his FLSA claim rather than skipping over that process and proceeding directly to court. It does not.

New Forest assumes that because the agreement defines a grievance to include disputes over pay, it necessarily requires statutory claims on the same subject to be submitted to the grievance process. Our decision in Jonites v. Exelon Corp., 522 F.3d 721, 725 (7th Cir. 2008), shows why that assumption is mistaken. Jonites held that language in a collective bargaining agreement to the effect that “any dispute or difference arising] between the Company and the Union or its members as to the interpretation or application of any of the provision of this Agreement or with respect to job working conditions” must be resolved through the contractual grievance procedure was not an “explicit” waiver of an employee’s right to sue under the FLSA. Id. We noted that this generalized language was little different from that at issue in Wright, supra, wherein the Supreme Court had likewise concluded that there was no clear and unmistakable language in the agreement requiring claims under the Americans with Disabilities Act to be arbitrated. 522 F.3d at 725; see Wright, 525 U.S. at 80-82, 119 S.Ct. at 396-97. The Court in Wright pointed out that the arbitration clause’s reference to “matters under dispute” could be thought to mean matters disputed under the contract rather than under any statute; and there was no provision elsewhere in the contract explicitly incorporating statutory anti-discrimination provisions. Id. at 80-81, 119 S.Ct. at 396-97. By contrast, the contractual language at issue in 1⅛ Penn Plaza explicitly incorporated a variety of statutory anti-discrimination provisions into the agreement and provided that “[a]ll such claims shall be subject to the grievance and arbitration procedure ... as the sole and exclusive remedy for violations.” 556 U.S. at 252, 129 S.Ct. at 1461. That language, the Court concluded, amounted to an explicitly-stated agreement to arbitrate statutory claims. Id. at 258-59, 129 S.Ct. at 1465.

Here, by contrast, nothing in the language of the collective bargaining agreement clearly and unmistakably requires an employee to resolve a statutory claim through the grievance procedure. Although section 8.1 of the agreement defines a grievance to include a claim or dispute “concerning pay, hours[,] or working eon-ditions or the interpretation or application of this Agreement,” this could be thought to mean a claim over the requirements of the contract itself rather than one about what the FLSA requires. See Wright, 525 U.S. at 80-81, 119 S.Ct. at 396-97. Indeed, that is the most natural reading of the agreement, given that nowhere in Article VIII or, for that matter, anywhere else in the agreement is there even a reference to the FLSA. Under no sense of the phrase “clear and unmistakable” can the agreement be read to compel an employee to resolve his rights under FLSA through the grievance process.

Consequently, there was no need for Vega to exhaust his contractual remedies. He was free to file suit regardless of whether he first pursued a grievance and did so through each of the four steps delineated by the collective bargaining agreement.

III.

The district court erred in granting summary judgment to New Forest. Absent clear and unmistakable language to the contrary in the collective bargaining agreement, nothing precluded Vega from filing suit to enforce his rights under the Fair Labor Standards Act. The judgment is REVERSED, and the case is REMANDED to the district court for further proceedings.

      . The process, outlined in section 8.2 of the agreement, entails (1) an informal discussion of the grievance among the employee, his union steward or representative, and the employee's supervisor; (2) submission of the grievance in writing to the employer by the employee, with a copy to the union; (3) an effort by the employer and the union’s business representative to adjust the grievance; (4) arbitration on the demand of either the employer or the union.

      . The court converted New Forest’s motion to dismiss into one for summary judgment in view of the affidavits and other materials beyond the complaint that both parties had submitted in connection with the motion. R. 25 at 1-2; see Fed. R. Civ. P. 12(d).

      . Barrentine considered whether an employee who, unlike Vega, already had exhausted the specified grievance procedure as to a contractual minimum wage claim, was free to then pursue an FLSA claim in court based on the same facts and litigate the statutory claim de novo; the Court concluded that he could. 450 U.S. at 745-46, 101 S.Ct. at 1447. That holding does not answer the separate question of whether an employee may bypass the grievance procedure altogether and proceed directly to court on his statutory claim. See Gilmer, 500 U.S. at 35, 111 S.Ct. at 1657.

      . The agreement’s one and only mention of a federal statute is found in section 6.4, which addresses absenteeism. That provision con-eludes with a disclaimer that "[njothing in this Agreement is meant to conflict with the Family and Medical Leave Act.”


author: POSNER, Circuit Judge. MANION, Circuit Judge,

text:
    Cathleen KENNEDY, Plaintiff-Appellee, v. THE LILLY EXTENDED DISABILITY PLAN, Defendant-Appellant.
    No. 16-2314
    United States Court of Appeals, Seventh Circuit.
    Argued March 30, 2017
    Decided May 18, 2017
    Mark D. DeBofsky, Attorney, DEBOF-SKY & ASSOCIATES, P.C., Chicago, IL, Bridget L. O’Ryan, Attorney, O’RYAN LAW FIRM, Indianapolis, IN, for Plaintiff-Appellee.
    Ellen E. Boshkoff, Philip J. Gutwein, II, Brian James Paul, Daniel Pulliam, Attorneys, FAEGRE BAKER DANIELS LLP, Indianapolis, IN, for Defendant-Appellant.
    Before POSNER, MANION, and HAMILTON, Circuit Judges.
   POSNER, Circuit Judge.

This case is about fibromyalgia, “a common and chronic disorder characterized by widespread pain, diffuse tenderness, and a number of other symptoms. The word ‘fi-bromyalgia’ comes from the Latin term for fibrous tissue (fibro) and the Greek [terms] for muscle (myo) and pain (algia). ... [F]ibromyalgia can cause significant pain and fatigue, and it can interfere with a person’s ability to carry on daily activities. ... Scientists estimate that fibromyalgia affects 5 million Americans age 18 or older.” National Institute of Arthritis and Musculoskeletal and Skin Diseases, “Questions and Answers about Fibromyalgia,” July 2014, www.niams.nih.gov/Health_Info/ Fibromyalgia/defaultasp (visited May 16, 2017, as were the other websites cited in this opinion). “‘Chronic’ means that the pain lasts a long time—at least 3 months or longer. Many people experience fibro-myalgia pain for years before being diagnosed. “Widespread’ means that it is felt all over, in both the upper and lower parts of the body. However, many people with fi-bromyalgia feel their pain in specific areas of their body, such as in their shoulder or neck. And ‘Tenderness’ means that even a small amount of pressure can cause a lot of pain.” Lyrica, “Fibromyalgia [Frequently Asked Questions],” www.lyrica.com/ frequently-asked-questions#fibromyalgia.

As further explained by the Mayo Clinic, “Fibromyalgia is a disorder characterized by widespread musculoskeletal pain accompanied by fatigue, sleep; memory and mood issues. Researchers believe that fi-bromyalgia amplifies painful sensations by affecting the way your brain processes pain signals. Symptoms sometimes begin after a physical trauma, surgery, infection or significant psychological stress. In other cases, symptoms gradually accumulate over time with no single triggering event. Women are much more likely to develop fibromyalgia than are men. Many people who have fibromyalgia also have tension headaches, temporomandibular joint (TMJ) disorders, irritable bowel syndrome, anxiety and depression.” Mayo Clinic, “Fi-bromyalgia,” www.mayoclinic.org/diseases-eonditions/fibromyalgia/home/ovc-20317786 (emphasis added).

There used to be considerable skepticism that fibromyalgia was a real disease. No more. See, besides the websites already cited, Anne Underwood, “The Long Search for Fibromyalgia Support,” New York Times, Sept. 23, 2009, wwwmytimes. com/ref/health/healthguide/esn-fibromy algiaess.html; and Valencia Higuera, “Fi-bromyalgia: Real or Imagined?,” Health-line Newsletter, Aug. 17, 2016, www. healthline.com/health/fibromyalgia-real-or-imagined.

And finally the American College of Rheumatology offers the following harrowing description of the disease: “Fibromyal-gia is a neurologic chronic health condition that causes pain all over the body and other symptoms. Other symptoms of fibro-myalgia that patients most often have are: Tenderness to touch or pressure affecting muscles and sometimes joints or even the skin. Severe fatigue. Sleep problems (waking up unrefreshed). Problems with memory or thinking clearly. Some patients also may have: Depression or anxiety. Migraine or tension headaches. Digestive problems: irritable bowel syndrome (commonly called IBS) or gastroesophageal reflux disease (often referred to as GERD). Irritable or overactive bladder. Pelvic pain. Temporo-mandibular disorder—often called TMJ (a set of symptoms including face or jaw pain, jaw clicking, and ringing in the ears).” American College of Rheumatology, “Fi-bromyalgia,” www.rheumatology.org/I-Am-A/Patient-Caregiver/Diseases-Conditions/ Fibromyalgia.

Eli Lilly and Company is a global pharmaceutical corporation headquartered in Indianapolis. And it is familiar with fibro-myalgia because it markets a drug called Cymbalta (a trade name for Duloxetine) for treating the disease. It has retained an expert on fibromyalgia, Dr. Daniel Clauw of the University of Michigan, a physician and professor of rheumatology, to advise it on the disease, and he has pointed out that many persons afflicted with fibromyalgia “end up needing to stop working because of this condition” and that the disease “is not only very common but is typically also very disabling.”

So much for background; now for the case:

Cathleen Kennedy, the plaintiff, was hired by Lilly in 1982 and rose rapidly, eventually becoming an executive director in the company’s human resources division, with a monthly salary of $25,011. But at the beginning of 2008 she was forced to quit work because of disabling symptoms of fibromyalgia. As a participant in the company’s Extended Disability Benefits plan, she requested benefits upon ceasing to work, and effective May 1, 2009, was approved for monthly benefits of $18,972.44. Three and a half years later, however, her benefits were terminated, precipitating this suit by her against Lilly’s self-funded Extended Disability Plan based on the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001 et seq., which so far as pertains to this case sets minimum standards for voluntarily established health and pension plans in private industry. See Metropolitan Life Insurance Co. v. Glenn, 554 U.S. 105, 115, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008). Lilly’s disability plan has discretion to deny claims that it deems not to meet its standard, but a reviewing court will overturn a denial of benefits if the plan’s decision is unreasonable. Edwards v. Briggs & Stratton Retirement Plan, 639 F.3d 355, 360 (7th Cir. 2011).

The plan states that an employee has a “disability” if unable “to engage, for remuneration or profit, in any occupation commensurate with the Employee’s education, training, and experience.” Kennedy’s benefits were revoked by Lilly’s Employee Benefits Committee (the administrator of the plan), on the ground that her fibro-myalgia was not disabling.

The district judge granted summary judgment in favor of Ms. Kennedy and awarded her $537,843.81 in past benefits (benefits she should have received but did not) and pre-judgment interest, and in addition the judge ordered Lilly to reinstate Kennedy’s disability benefits retroactive to December 2012 and resume the payment of her monthly benefits. Lilly based its unsuccessful case in the district court on evidence presented by a number of doctors (oddly not including Dr. Clauw), but the evidence turned out to be a hodge-podge. For example, Lilly sent Kennedy to be examined by a Dr. Schriber in Dayton, Ohio, more than 100 miles from Kennedy’s home in Indianapolis. The doctor conducted a physical exam of her that lasted all of five minutes. He testified that the “American College of Rheumatology does not consider fibromyalgia to be disabling on a long-term basis.” That, as we know from our earlier quotation from the ACR is false; and Lilly itself appears not to have relied on Dr. Schriber’s opinion in its decision to terminate Kennedy’s benefits.

A psychiatrist named Dr. Osman advised Lilly that Kennedy “from a psychiatric standpoint ... has no restrictions or limitations,” but based this on her having been diagnosed with Major Depressive Disorder and Anxiety Disorder rather than with fibromyalgia, a disease about which as a psychiatrist he could not be expected to offer an authoritative opinion; apparently he offered no opinion. Another psychiatrist, Dr. Goldman, opined similarly. And a urologist, Dr. Davi, after reviewing Kennedy’s medical records, told Lilly that she was not disabled from working “from a urology perspective,” which Kennedy does not dispute and in any event seems irrelevant.

Kennedy’s general internist, Dr. Condit, testified that she’s permanently disabled, basing this opinion on his diagnoses of her nonarticular rheumatism (musculoskeletal aches and pains not traceable to joints), fibromyalgia, sleep disorder, depression, irritable bowel syndrome, restless leg syndrome, and her symptoms of pain and fatigue.

Dr. Condit retired and Dr. Steven Neucks became Kennedy’s treating rheu-matologist. He testified to her “pain, poor quality sleep, fatigue, and difficulty concentrating,” remarked that “because of her fibromyalgia and degenerative arthritis, as well as her underlying discomfort, I do not think that she can- work a regular work schedule,” and added that he “thought [that] at [her] last visit [to him] her function level had declined slightly and that her anxiety was significantly worse.” And he commended her for her “consistency and lack of attempt to over dramatize her limitations,” adding that “is I believe, suggestive of forthright presentation.”

Dr. Dayton Payne, reviewing Ms. Kennedy’s disability claim but not examining her, opined that she was able to return to her past job, while acknowledging mention in the medical record of fatigue, irritable bowel, interstitial cystitis, depression, anxiety, attention deficit disorder, diffuse tenderness, and tender points. Dr. Payne appears not to have credited these symptoms, saying that “all of the laboratory data in this file are normal.” But as the district judge pointed out, it is error to demand laboratory data to credit the symptoms of fibromyalgia—the crucial symptoms, pain and fatigue, won’t appear on laboratory tests. Hawkins v. First Union Corp. Long-Term Disability Plan, 326 F.3d 914, 919 (7th Cir. 2003).

Another doctor hired by the company, Dr. Dikranian, a rheumatologist, reviewed Kennedy’s medical records and expressed skepticism about whether she had fibro-myalgia at all. But as with Dr. Schriber even Lilly seems not to have credited Dr. Dikranian’s evaluation. The company’s Employee Benefits Committee didn’t mention his conclusions in its decision, and is represented by Lilly as having grudgingly “acknowledged that Kennedy does have fibromyalgia and that fibromyalgia has caused her “some restrictions and limitations” (emphasis added).

All deficiencies in its evidence to one side, Lilly has failed to indicate what job or kind of job, and at what level, Kennedy would be capable of performing if the company is permitted to cancel her benefits. Dr. Neucks opined that Kennedy “could do [only] a low stress, non-high cognitive functioning job at about 30 hours a week,” which equals six hours a day. Neucks further opined that she would experience “flares” that would prevent her from working for one or two days a month, further shrinking her job prospects and presumably her salary. “Fibromyalgia is ... characterized by chronic, widespread pain, fatigue, cognitive impairments, poor sleep, and mood difficulties.... These symptoms ... appear to undergo periods of exacerbation or worsening, often colloquially referred to as ‘flares’ by patients and their health care providers.” Ann Vincent et al., “Fibromyalgia Flares: A Qualitative Analysis,” 17 Pain Medicine 463 (2016), http://academic.oup.com/ painmedicine/artiele-lookup/doi/10.1111/ pme.12676.

Ms. Kennedy was informed by a liaison to the Employee Benefits Committee that if she could work 20 hours per week as a secretary she would not be considered disabled. Yet in its written decision the Committee said only that Kennedy could work in “various non-executive positions in compensation, benefits, and other human resources fields,” which is both vague and inconsistent with the medical evidence. If Dr. Neucks is correct about the flares (and there is no evidence that he’s not), Kennedy wouldn’t be able to work any regular schedule. Another questionable aspect of Lilly’s case is the company’s conflict of interest, by reason of its being both the initial adjudicator of an employee’s benefits claim (via Lilly’s Employee Benefits Committee) and the payor of those benefits. See Metropolitan Life Insurance Co. v. Glenn, supra, 554 U.S. at 108, 128 S.Ct. 2343. By cutting off Kennedy’s benefits the company has saved itself about $2.5 million. Big as Lilly is, that’s not a trivial loss.

The judgment of the district court is

AFFIRMED.

MANION, Circuit Judge,

dissenting.

Cathleen Kennedy challenges her plan administrator’s decision to terminate her benefits under an ERISA disability plan. Under the plan, Kennedy is entitled to benefits if she is unable to perform “any occupation consistent with [her] education, training, and experience” because of illness or injury treated by a physician. The plan contains discretionary language, meaning we can overturn the administrator’s decision only if it was arbitrary and capricious. Mote v. Aetna Life Ins. Co., 502 F.3d 601, 606 (7th Cir. 2007). Nevertheless, the court sets it aside. Because I conclude that the administrator’s decision was within the bounds of reasonableness, I would sustain it. Therefore, I respectfully dissent.

Where ERISA disability plans contain language granting the plan administrator discretionary authority, our power to set aside the administrator’s decision is substantially limited. We may “overturn the administrator’s decision only where there is an absence of reasoning to support it.” Jackman Financial Corp. v. Humana Ins. Co., 641 F.3d 860, 864 (7th Cir. 2011). We are not to substitute our judgment for that of the administrator so long as the administrator has made “an informed judgment and articulate[d] an explanation for it that is satisfactory in light of the relevant facts.” Herman v. Cent. States, Se. & Sw. Areas Pension Fund, 423 F.3d 684, 692 (7th Cir. 2005) (quoting Carr v. Gates Health Care Plan, 195 F.3d 292, 294 (7th Cir. 1999)). In other words, the decision must stand unless it is “downright unreasonable.” Id. (quoting Carr, 195 F.3d at 294). This is not a rubber stamp, but it is quite deferential. See id. at 693.

The administrator’s decision in this case contains sufficient evidence to sustain it under that standard. With respect to limitations caused by fibromyalgia (the main dispute here), the administrator relied on reports from Drs. Neucks and Condit, both of whom were Kennedy’s treating rheuma-tologist at one point, as well as a record review by Dr. Payne. In 2010, Dr. Neucks concluded that Kennedy had “average fi-bromyalgia,” with relatively high functioning and normal movement. He said that Kennedy could work a lower-stress job for about 30 hours per week with some limitations, but that her condition did not preclude the performance of any job. In 2012, once Dr. Neucks had replaced Dr. Condit as treating rheumatologist, he indicated once again that Kennedy could not perform her old job because of its high stress and cognitive demands. In 2013, he opined that Kennedy could not work a regular schedule or perform high-stress activities. He never stated that Kennedy was totally disabled from doing any work.

After a record review, Dr. Payne concluded that Kennedy’s medical records did not support restrictions or limitations on activities. The court says that Dr. Payne erred by requiring laboratory data to confirm Kennedy’s diagnosis of fibromyalgia, but that’s not quite right. He acknowledged the diagnosis, but his relevant conclusion was about Kennedy’s functional limitations. While the amount of pain someone experiences is entirely subjective, “how much an individual’s degree of pain or fatigue limits [her] functional abilities can be objectively measured.” Williams v. Aetna Life Ins. Co., 509 F.3d 317, 322 (7th Cir. 2007); see also Boardman v. Prudential Ins. Co. of Am., 337 F.3d 9, 17 n.5 (1st Cir. 2003) (“While the diagnoses of chronic fatigue syndrome and fibromyalgia may not lend themselves to objective clinical findings, the physical limitations imposed by the symptoms of such illnesses do lend themselves to objective analysis.”). Social Security administrative law judges make these determinations every day in cases where claimants report pain but can still do some work. In short, it was not improper for the administrator to rely on Dr. Payne’s conclusion that Kennedy’s medical records did not support functional limitations, irrespective of the diagnosis of fibromyalgia.

There was also other evidence apart from the doctors that indicated Kennedy could work in some occupations. She self-reported in a questionnaire to Anthem that she exercised often (and Dr. Neucks reported in 2010 that Kennedy could jog three miles). And, speaking of Social Security, that Administration found that Kennedy was not disabled under a similar standard to “any occupation” on February 13, 2012. We have upheld an administrator’s decision to deny benefits in several cases despite a contrary Social Security decision, so the administrator in this case should have been entitled to rely in part on a negative Social Security finding. See, e.g., Mote, 502 F.3d at 610; Black v. Long Term Disability Ins., 582 F.3d 738, 748 (7th Cir. 2009). That is especially true when the Social Security decision bolsters other competent evidence on the record.

Nobody disputes that Kennedy has fi-bromyalgia. Yet, most people with fibro-myalgia can work. Hawkins v. First Union Corp. Long-Term Disability Plan, 326 F.3d 914, 916 (7th Cir. 2003). I cannot agree that the administrator’s determination that Kennedy is one of those still able to work was arbitrary and capricious. “Although others reviewing [Kennedy’s] medical condition in the first instance may reasonably conclude that she is disabled ... our standard of review in this matter is deferential, and we [should not] say that [the administrator’s] determination was unreasonable.” Black, 582 F.3d at 748. The record contains sufficient evidence to uphold the decision. Therefore, I would reverse the judgment of the district court.

I respectfully dissent.

      . The court thinks that the “any occupation” standard is too harsh. It finds unfair that Kennedy might have to take a part-time position or a job below her pay grade and forego disability benefits (which she, quite rationally, probably doesn’t want to do given the significant sum she receives in benefits each month). But it’s not our place to rewrite the language of the plan, and the administrator has discretion to interpret it.
      Moreover, the court faults the administrator for its failure to indicate which jobs Kennedy could do with her restrictions. Of course, the administrator did say that she could potentially do “various non-executive positions in compensation, benefits, and other human resources fields.” The court says this is both vague and inconsistent with the medical evidence. However, as I explain throughout the dissent, the conclusion that Kennedy could perform in a lower-stress position (with some accommodations for flare-ups) is a reasonable interpretation of the evidence.

      . The court also references the administrator’s conflict of interest. We have held that conflicts of interest for self-funded ERISA plans “may act as a tiebreaker in finding that the determination was arbitrary and capricious” depending on the circumstances of the case. Black, 582 F.3d at 748 (citing Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105, 118, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008)). But in Black, we rejected the employee's argument that a conflict of interest required the administrator to give more weight to a positive Social Security determination. Id. Here, we have a negative Social Security finding and other evidence by which the administrator could have rationally found that Kennedy is not disabled. The self-funded nature of the plan does not override that deferential standard of review.


author: BAUER, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Patrick ARMAND, Defendant-Appellant.
    No. 16-2991
    United States Court of Appeals, Seventh Circuit.
    Argued April 19, 2017
    Decided May 18, 2017

      Grayson Sang Walker, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL, for Plaintiff-Ap-pellee.
    Yelena A. Dolgosheeva, Attorney, LAW OFFICES OF YELENA A. DOLGOSH-EEVA, Buffalo Grove, IL, for Defendant-Appellant.
    Before BAUER, POSNER, and HAMILTON, Circuit Judges.
   BAUER, Circuit Judge.

Patrick Armand pleaded guilty to distributing crack and powder cocaine, in violation of 21 U.S.C. § 841(a)(1), and was sentenced to 108 months’ imprisonment, and a five-year term of supervised release subject to certain special conditions. On appeal we reversed, finding that the district court imposed unconstitutionally vague conditions of supervised release and failed to justify the discretionary conditions and the length of supervision. We remanded the case for a full resentencing. See United States v. Armand, 638 Fed.Appx. 504 (7th Cir. 2016). Armand was resentenced to 104 months’ imprisonment and a three-year term of supervised release. He again appeals, contending that the district court committed a host of procedural and substantive errors. For the reasons that follow, we affirm.

I. BACKGROUND

We assume familiarity with the facts as noted in our earlier order and add only what we consider necessary for resolving the present appeal. Prior to Armand’s original sentencing, the probation officer initially calculated a Guidelines range of 100 to 125 months using the 2013 United States Sentencing Commission Guidelines, based on a total offense level of 25 and a criminal-history category of V. However, the parties later agreed that Amendment 782 applied, see U.S.S.G. § 2D1.1, amend. 782, which decreased the total offense level to 23 with the Guidelines range of 84 to 105 months.

At his original sentencing hearing, the court accepted the probation officer’s revised Guidelines range calculation. Armand acknowledged multiple times during the hearing that the applicable Guidelines range was 84 to 105 months. He contended that the court should depart downward to impose a sentence that would apply if the crack and powder cocaine Guidelines reflected a one-to-one ratio, rather than the eighteen-to-one ratio currently used; the court declined to do so. Ultimately, the court imposed a sentence of 108 months’ imprisonment and five years of supervised release.

On remand, the government’s resentenc-ing memorandum calculated the Guidelines range as 84 to 105 months based upon the November 2015 Guidelines. Armand’s re-sentencing memorandum did not dispute the applicable Guidelines range, but reiterated his argument regarding the sentencing disparity between crack and powder cocaine. He also raised arguments regarding the length and proposed conditions of his supervised release, an issue he does not raise in this appeal. Finally, he contended that the district court failed to consider mitigating factors, such as his background and mental health issues.

At the resentencing hearing, Armand’s counsel reiterated his mitigation arguments, and also contended that his age put him at a lower risk for recidivism. His counsel also highlighted affirmative steps he had taken in prison to improve himself, such as enrolling in classes related to employment, substance abuse, and anger management. Finally, his counsel asked the court to depart downward from the crack cocaine Guidelines due to the disparity with powder cocaine Guidelines. In response, the government challenged the correlation between Armand’s long criminal history and his unsubstantiated claim of mental illness. It also rejected his contention that he presented a low risk of recidivism.

The court discussed the sentencing factors set forth in 18 U.S.C. § 3553(a). Specifically, the court addressed Armand’s history and characteristics, as well as the need for the sentence imposed to afford adequate deterrence to criminal conduct, promote respect for the law, and provide correctional treatment. Prior to imposing Armand’s sentence, the government stated that the applicable Guidelines range was 84 to 105 months, and that Armand’s vacated sentence was 108 months. The court sentenced Armand to 104 months’ imprisonment and three years of supervised release, explaining that it was reducing his sentence by a few months in recognition of the effort Armand undertook to improve his life while imprisoned.

The court addressed Armand’s mitigation arguments, expressing skepticism that mental health treatment and his age would lower his risk of recidivism. The court also stated that its position on the crack cocaine Guidelines had not changed since the original sentencing hearing, and declined to decrease the ratio. The court then confirmed that the applicable Guidelines range was 84 to 105' months. Armand’s counsel acknowledged that the court had addressed all his principal mitigation arguments. The court then entered final judgment, and Armand timely appealed.

II. DISCUSSION

Armand contends that the district court failed to calculate the advisory Guidelines range and treated the Guidelines as presumptively reasonable. Finally, he argues that the court gave inadequate consideration to his arguments in mitigation. We address each argument in turn.

Because Armand did not object to the claimed error at the sentencing hearing, plain error is the standard of review. To demonstrate plain error, a defendant must show that (1) the court committed error; (2) it was plain; (3) it affected the defendant’s “substantial rights”; and (4) the court “should exercise its discretion to correct the error because it seriously affected the fairness, integrity, or public reputation of the judicial proceedings.” United States v. Durham, 645 F.3d 883, 890 (7th Cir. 2011) (citation omitted).

The Supreme Court recently set forth the procedure sentencing courts must employ in Molina-Martinez v. United States:

At the outset of the sentencing proceedings, the district court must determine the applicable Guidelines range. To do so, the court considers the presentence report as well as any objections the parties might have. The court then entertains the parties’ arguments regarding an appropriate sentence, including whether the sentence should be within the Guidelines range or not. Although the district court has discretion to depart from the Guidelines, the court “must consult those Guidelines and take them into account when sentencing.”
— U.S. -, 136 S.Ct. 1338, 1342, 194 L.Ed.2d 444 (2016) (citations omitted).

At Armand’s original sentencing, the court accepted the probation officer’s calculation of Armand’s base offense level to be 23 with a criminal history of category V, resulting in a Guidelines range of 84 to 105 months. The court confirmed the parties’ agreement with the revised calculation and applicable Guidelines range. Armand acknowledged that the applicable Guidelines range was 84 to 105 months in his sentencing memorandum and multiple times during sentencing.

At resentencing, the court confirmed twice that the parties were still in agreement that the applicable Guidelines range was 84 to 105 months.

The government argues that under these circumstances, there was no need for the court to rehash the calculations set forth in the supplemental PSR, which the parties agreed to during the original sentencing and on remand. We agree. We have held that “the record that was compiled during a prior sentencing hearing is still valid, and the district court at a later sentencing hearing may continue to rely on it.” United States v. Mobley, 833 F.3d 797, 802 (7th Cir. 2016). The record demonstrates that the parties and the court were in agreement as to the appropriate Guidelines range since December 2014. It is clear that the district judge relied on the record from the previous sentencing hearing, as well as the probation officer’s recommendation. Absent an objection from Armand, the court did not err in declining to recalculate the Guidelines.

Seeking to avoid this result, Armand argues that the court also erred by failing to determine the quantity of drugs involved. This argument suffers from the same defect as the previous one. While we have found that sentencing courts must make an explicit drug-quantity finding, we have also held that “a court’s adoption of the PSR findings would be enough to satisfy us that the district court rendered a specific determination of the amount of drugs involved.” United States v. Claybrooks, 729 F.3d 699, 706 (7th Cir. 2013) (citation omitted).

Here, during Armand’s original sentencing the court accepted the probation officer’s revised calculation. As discussed above, neither party challenged this finding at any point. The court was entitled to rely upon the record established at the original sentencing regarding the applicable Guidelines range.

Armand next argues that the district court erred by treating the Sentencing Guidelines as presumptively reasonable. A district court “may not presume that a within-Guidelines sentence is reasonable.” United States v. Johnson, 635 F.3d 983, 988 (7th Cir. 2011) (citation omitted). To guard against this presumption, a reviewing court “must be able to infer that the court, in exercising its discretion, determined that the sentence conformed with the parsimony principle of § 3553(a)[.]” We have held that “when statements made during sentencing call into question whether the district court appreciated the advisory nature of the Guidelines, we can resolve doubts in favor of the court when its application of the § 3553(a) factors assures us that the sentence was imposed in conformity with the parsimony clause.” Id.

Armand relies on two comments made by the court as evidence of an improper presumption of reasonableness. First, the court confirmed the applicable Guidelines range was 84 to 105 months just before it sentenced Armand to a within-Guidelines range sentence of 104 months’ imprisonment. Secondly, the court referenced making a slight adjustment to Armand’s sentence on remand based on the relevant “bracket” of time. Armand contends that these stray remarks are evidence that the court treated the Guidelines range as presumptively reasonable. We do not agree.

The Supreme Court has told sentencing courts that while they may not presume that the Guidelines range is reasonable, “the Guidelines should be the starting point and the initial benchmark” when calculating a term of imprisonment. Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). We view the sentencing court’s comments as simply establishing the initial benchmark before imposing a sentenced tailored to Armand. We are confident that the court tailored its sentence to Armand’s specific circumstances based on its discussion of the § 3553(a) factors. The court discussed Armand’s history and characteristics, as well as the need for the sentence imposed to afford adequate deterrence to criminal conduct, promote respect for the law, and provide correctional treatment. This discussion is sufficient to comply with the parsimony provision, and to demonstrate that the court did not presume the Guidelines range reasonable.

Briefly, we address Armand’s related argument that the court did not discuss sufficiently the § 3553(a) factors. We have found that “[i]t is simply not required that the sentencing judge tick off every possible sentencing factor ... to find that the sentence was proper.” United States v. Collins, 640 F.3d 265, 271 (7th Cir. 2011) (citation omitted). “Indeed, sentencing judges must only demonstrate meaningful consideration of § 3553(a) factors.” United States v. Paige, 611 F.3d 397, 398 (7th Cir. 2010) (citation omitted). Based on the foregoing discussion, we conclude that the court has shown a “meaningful consideration” of the sentencing factors.

Armand’s final procedural argument is that the court failed to give meaningful consideration to his arguments in mitigation of his sentence. Specifically, he contends that his age and intensive mental health treatment would reduce his risk of recidivism. The government counters that Armand has waived this argument on appeal. We agree.

A district court must consider all of a defendant’s principal, non-frivolous arguments in sentencing. United States v. Rosales, 813 F.3d 634, 637 (7th Cir. 2016). We encourage sentencing courts to ask defense counsel whether he or she is satisfied that the court has adequately addressed the main arguments in mitigation and that if counsel replies in the affirmative, a contention on appeal that the district court failed to address a principal argument in mitigation would be deemed waived. In this case, the district court followed this practice, and Armand’s counsel replied in the affirmative.

Finding the court’s sentencing procedures sound, we turn to the substantive reasonableness of Armand’s sentence. We can dispense with these arguments in short order. Armand essentially recycles his procedural arguments, contending that the district court failed to consider both his principal mitigation arguments and the § 3553(a) sentencing factors. We have already concluded that Armand waived his first argument, and we rejected his second argument. We are entitled to presume Armand’s sentence within the Guidelines range is reasonable. Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). Armand has not offered any persuasive justification to disrupt that presumption. See, e.g., United States v. Campos, 541 F.3d 735, 750-51 (7th Cir. 2008) (citation omitted). Therefore, we find that Armand’s sentence is substantively reasonable.

III. CONCLUSION

We AFFIRM Armand’s sentence.