text:
    UNITED STATES of America, Plaintiff-Appellee, v. Justin EDWARDS, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Ryan Pouliot, Defendant-Appellant.
    Nos. 15-2373 & 15-2374
    No. 15-2552
    United States Court of Appeals, Seventh Circuit.
    Argued December 10, 2015
    Decided September 8, 2016

      Kevin F. Burke, Attorney, Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.
    Shelley M. Fite, Kelly A. Welsh, Attorneys, Federal Defender Services of Wisconsin, Inc., Madison, WI, for Defendants-Appellants.
    Before POSNER, MANION, and SYKES, Circuit Judges.
   SYKES, Circuit Judge.

In separate cases Justin Edwards and Ryan Pouliot pleaded guilty to firearms offenses that carry an enhanced base offense level under the Sentencing Guidelines if the defendant has a prior conviction for a “crime of violence.” See U.S.S.G. §2K2.1(a). At the time they were sentenced, the version of the Guidelines then in effect defined “crime of violence” to include “any offense under federal or state law ... that ... is burglary of a dwelling.” Id. § 4B1.2(a)(2). Both defendants have prior Wisconsin convictions for burglary; the district judge in each case counted the convictions as erime-of-violence predicates and applied the higher offense level. The defendants challenge the enhancement, arguing that a conviction under Wisconsin’s burglary statute cannot serve as a predicate offense under § 2K2.1(a). Because their appeals raise the same issue, we’ve consolidated them for decision.

To determine whether a prior conviction counts as a crime of violence requires a categorical approach that focuses on the statutory definition of the crime of conviction. If state law defines the offense more broadly than the Guidelines, the prior conviction doesn’t qualify as a crime of violence, even if the defendant’s conduct satisfies all of the elements of the Guidelines offense. In a narrow set of circumstances, the sentencing court may go one step beyond the statute itself. When a single statute creates multiple offenses, the court may consult a limited universe of documents to determine which offense the defendant was convicted of committing. This inquiry is called the “modified categorical approach,” but it only applies to “divisible” statutes. The Supreme Court recently clarified that a statute is considered divisible only if it creates multiple offenses by setting forth alternative elements. See United States v. Mathis, — U.S. —, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016).

Wisconsin defines burglary more broadly than the Guidelines: The relevant statute prohibits burglary of a “building or dwelling.” Wis. Stat. § 943.10(1m)(a). The judges in both cases consulted the state charging documents to determine whether Edwards and Pouliot were convicted of burglary of a dwelling as required by § 4B1.2(a)(2). The documents revealed that both were charged with burgling a dwelling, so the judges applied a higher offense level under § 2K2.1(a).

After Mathis, however, it’s clear that this recourse to state-court charging documents was improper. The relevant subsection of Wisconsin’s burglary statute sets forth alternative means of satisfying the location element of the state’s burglary offense. Accordingly, we vacate the sentences and remand for resentencing.

I. Background

A. Edwards

In 2013 Justin Edwards was charged with possessing a firearm as a felon, see 18 U.S.C. § 922(g)(1), and possessing a short-barreled shotgun, see 26 U.S.C. §§ 5841, 5845(a)(2), 5861(d). He was released on bond while an appeal of an evidentiary ruling was pending and quickly racked up multiple state-law charges in three separate cases. In September 2014 Edwards was again arrested and charged with two more federal gun crimes — another charge of possessing a firearm as a felon and a t charge of possessing a firearm as a drug user, see 18 U.S.C. § 922(g)(3). Plea agreements were reached in both the 2013 and the 2014 federal cases.

Two disputes arose at sentencing. First, the judge determined that Edwards’s prior Wisconsin conviction for burglary of a “building or dwelling,” Wis. Stat. § 943.10(1m)(a), qualified as a crime of violence under § 4B1.2(a)(2) of the Guidelines. To make that determination, the judge consulted the state charging documents — a criminal complaint and information. Both documents stated that Edwards “intentionally enter[ed] a dwelling, without the consent of the person in lawful possession of the place, and with intent to steal.” On that basis, and over Edwards’s objection, the judge applied a higher base offense level under § 2K2.1(a)(2).

Second, and again over Edwards’s objection, the judge declined to apply an acceptance-of-responsibility reduction under § 3E1.1 of the Guidelines because Edwards committed multiple criminal offenses while on pretrial release for the 2013 charges. With the crime-of-violence enhancement and without an acceptanee-of-responsibility reduction, the Guidelines range was 92-115 months. The judge imposed a sentence of 92 months, the bottom of the range.

B. Pouliot

In an unrelated case in the same district, Ryan Pouliot was charged with possessing a firearm and ammunition as a felon, and he too pleaded guilty. At sentencing the judge determined that Pouli-ot’s prior Wisconsin burglary conviction qualified as a crime of violence under § 4B1.2(a)(2) of the Guidelines. As in Edwards’s case, the judge consulted the charging documents in the underlying state proceedings to make that determination; those documents revealed that Pouli-ot had been charged with burgling a dwelling. The judge accordingly rejected Pouliot’s objection and applied the crime-of-violence enhancement under § 2K2.1(a)(3), which yielded a Guidelines range of 84-105 months. The judge imposed a below-range sentence of 72 months.

II. Discussion

Edwards and Pouliot challenge the application of the crime-of-violence enhancement based on their Wisconsin burglary convictions. Edwards also challenges the judge's refusal to apply an acceptance-of-responsibility reduction under § 3E1.1.

A. Crime-of-Violence Enhancement

Whether a prior conviction counts as a crime of violence is a question of law that we review de novo. United States v. Woods, 576 F.3d 400, 408 (7th Cir. 2009). The version of the Guidelines in effect when the defendants were sentenced listed “burglary of a dwelling” as a qualifying “crime of violence.” U.S.S.G. § 4B1.2(a)(2). The defendants have prior convictions for burglary in violation of section 943.10(1m)(a) of the Wisconsin Statutes, but that statute is broader than the Guidelines; it makes burglary of a “building or dwelling” a Class F felony. The issue here is whether subsection (a) of the Wisconsin burglary statute is divisible. If it is, then it was appropriate for the judges in these cases to consult the state charging documents. If it’s not divisible, then a conviction under Wisconsin’s burglary statute doesn’t qualify as a crime of violence for purposes of the Sentencing Guidelines.

1. Divisibility

The concept of divisibility is an outgrowth of the categorical approach that governs the crime-of-violence determination under the Sentencing Guidelines. See Mathis, 136 S.Ct. at 2248-49. The categorical approach disregards the facts underlying a prior conviction, focusing instead on the statutory definition of the offense. See id. at 2248 (citing Taylor v. United States, 495 U.S. 575, 600-01, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). If the statutory definition is the same as (or narrower than) the Guidelines definition, the prior conviction can be counted as a crime of violence. But if a statute defines an offense more broadly than the Guidelines, the prior conviction doesn’t count, “even if the defenT dant’s actual conduct (ie., the facts of the crime)” would fit within the Guidelines definition. Id. Consequently, in most cases the sentencing judge’s inquiry is limited to “the fact of conviction and the statutory definition of the prior offense.” Taylor, 495 U.S. at 602, 110 S.Ct. 2143.

We say “most cases” because the categorical approach “may permit the sentencing court to go beyond the mere fact of conviction in a narrow range of cases where a jury was actually required to find all the elements” of the Guidelines offense. Id. This occurs when a statute is “divisible,” meaning it “sets out one or more elements of the offense in the alternative.” Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). Under these circumstances a court may “consult a limited class of documents ... to determine which alternative formed the basis of the defendant’s prior conviction.” Id. The documents that may be consulted include charging papers, jury instructions, and any available plea agreements or plea colloquies. Shepard v. United States, 544 U.S. 13, 20, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). This variant of the categorical approach has been dubbed the “modified categorical approach.” Descamps, 133 S.Ct. at 2281.

Until recently, the circuits were split regarding what qualifies as a divisible statute. Some had held that any statute containing a list of alternatives is divisible, while others distinguished between statutes that list alternative elements (thus creating multiple offenses) and statutes that create a single offense with alternative means of satisfying an element of that offense. See Mathis, 136 S.Ct. at 2250-51, 2251 n.1. The Supreme Court resolved the split in Mathis, holding that a statute is divisible only if it creates multiple offenses by listing one or more alternative elements. Id. at 2253-54. A statute that defines a single offense with alternative means of satisfying a particular element is indivisible and therefore not subject to the modified categorical approach. Id. at 2251.

2. Wisconsin’s Burglary Statute

With this framework in place, we proceed to the central question presented here: Is subsection (a) of Wisconsin’s burglary statute divisible? As we’ve just explained, the answer depends on whether subsection (a) defines multiple offenses by listing alternative elements or instead lists alternative means of committing a single offense. “Elements are the constituent parts of a crime’s legal definition — the things the prosecution must prove to sustain a conviction.” Mathis, 136 S.Ct. at 2248 (internal quotation marks omitted). Means, in contrast, are legally extraneous facts that “need neither be found by a jury nor admitted by a defendant.” Id.

The distinction is both familiar and important because “Mailing a particular kind of fact an ‘element’ carries certain legal consequences.” Richardson v. United States, 526 U.S. 813, 817, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999). “[A] jury in a federal criminal case cannot convict unless it unanimously finds that the Government has proved each element” of an offense, but all members of the jury need not agree on “which of several possible means the defendant used to commit an element of the crime.” Id.; see also Alleyne v. United States, — U.S. —, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314 (2013). Multiplicity challenges likewise turn on the elements of the charged offenses: The Double Jeopardy Clause permits successive punishment or prosecution of multiple offenses arising out of the same conduct only if each offense contains a unique element. See United States v. Dixon, 509 U.S. 688, 696, 703-04, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) (citing Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932)); accord United States v. Larsen, 615 F.3d 780, 788 (7th Cir. 2010) (“In multiplicity challenges the elements of each offense — not the specific offense conduct — determine whether two offenses are the same for purposes of double jeopardy.”). After Mathis the divisibility of a statute rests on the same distinction between elements and means. 136 S.Ct. at 2254-55.

Mathis offers some practical guidance for drawing the distinction in this particular context. First, a decision by the state supreme court authoritatively construing the relevant statute will both begin and end the inquiry. Id. at 2256; see also Schad v. Arizona, 501 U.S. 624, 636, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991) (“If a State’s courts have determined that certain statutory alternatives are mere means of committing a single offense, rather than independent elements of the crime, we simply are not at liberty to ignore that determination .... ”). Absent a controlling state-court decision, the text and structure of the statute itself may provide the answer. Mathis, 136 S.Ct. at 2256; see also Schad, 501 U.S. at 636, 111 S.Ct. 2491 (“The question whether statutory alternatives constitute, independent elements of the offense ... is a substantial question of statutory construction.”). Failing those “authoritative sources of state law,” sentencing courts may look to “the record of a prior conviction itself’ for the limited purpose of distinguishing between elements and means. Mathis, 136 S.Ct. at 2256-57.

The parties haven’t directed us to a decision of the Wisconsin Supreme Court that construes subsection (a) of the state’s burglary statute, and our own search has yielded none. Accordingly, we’re on our own and turn first to the text and structure of the statute itself. Section 943.10(1m) provides:

Whoever intentionally enters any of the following places without the consent of the person in lawful possession and with intent to steal or commit a felony in such place is guilty of a Class F felony:
(a) Any building or dwelling; or
(b) An enclosed railroad car; or
(c) An enclosed portion of any ship or vessel; or
(d) A locked enclosed cargo portion of a truck or trailer; or
(e) A motor home or other motorized type of home or a trailer home, whether or not any person is living in any such home; or
(f) A room within any of the above.

The statute thus criminalizes the act of intentionally entering certain types of locations without consent and with the intent to steal or commit a felony. Subsections (a) — (f) describe the various locations that the statute covers, any one of which will satisfy the location requirement for burglary. The phrase “building or dwelling” is one of several disjunctively phrased lists that appear within these subsections.

The statute’s text and structure suggest that the components of each subsection are merely “illustrative examples” of particular location types. Mathis, 136 S.Ct. at 2256. That’s clearly true for subsections (c)-(e) given the virtually synonymous terms contained within these subsections. See, e.g., Manson v. State, 101 Wis.2d 413, 304 N.W.2d 729, 736 (1981) (“If the [statutory] alternatives are similar, one crime was probably intended.”). There’s no plausible argument that the Wisconsin legislature intended to create a distinct offense for entering a “ship” as opposed to a “vessel,” a “truck” as opposed to a “trailer,” or a “motor home or other motorized home” as opposed to a “trailer home.” These subsections simply identify several different ways of describing a particular location.

To put the question in double-jeopardy terms: The statutory structure does not suggest that each subsection creates multiple crimes; a ship is a particular type of vessel, but a prosecutor couldn’t charge two counts of burglary for a single act of breaking into a ship.

Read in this context, the phrase “building or dwelling” in subsection (a) is best understood as likewise providing two examples of enclosed structures rather than creating two separate offenses. Reinforcing that conclusion is the fact that those alternatives carry the same punishment. Cf. Mathis, 136 S.Ct. at 2256 (“If statutory alternatives carry different punishments, then under Apprendi they must be elements.”). On its face subsection (a) of Wisconsin’s burglary statute thus identifies two means of committing a single crime rather than alternative elements.

To the extent that we have lingering uncertainties about whether “building” and “dwelling” are elements or means, Mathis suggests that we resolve them by looking to the record of the defendant’s prior conviction. Because both defendants pleaded guilty in the underlying state-court proceedings, the record is limited to the charging documents and in Edwards’s case, the plea colloquy. See Descamps, 133 S.Ct. at 2285 n.2 (noting that courts may look to any of the Shepard documents, including the “indictment, jury instructions, plea colloquy, and plea agreement”). The Court explained in Descamps (and reiterated in Mathis) that these documents will likely “reflect the crime’s elements.” Id.; Mathis, 136 S.Ct. at 2256-57.

The Shepard documents are of little use here. Cf. Mathis, 136 S.Ct. at 2257 (“Of course, such record materials will not in every case speak plainly-”). Under Wisconsin law the complaint and information, which are the documents that initiate proceedings against a criminal defendant, must allege every element of the crime charged, but they , may also (and usually do) include additional facts that need not be proved to the jury beyond a reasonable doubt. See State v. Baldwin, 101 Wis.2d 441, 304 N.W.2d 742, 746 (1981) (“[W]hile a charging document must always allege facts necessary to support a conviction, it does not follow that a conviction requires proof of every fact alleged in a complaint.”)- Similarly, the recitation of a crime’s elements during a plea colloquy may include as much or as little factual detail as necessary for the defendant to understand the nature of the charges against him. See State v. Brown, 293 Wis.2d 594, 716 N.W.2d 906, 2006 WI 100, ¶ 52. Indeed, the Wisconsin Supreme Court has “encourage[d] circuit court judges to translate legal generalities into factual specifics when necessary to ensure the defendant’s understanding of the charges.” Id. ¶¶ 56, 58. The upshot of these rules is that in Wisconsin neither the charging documents nor a plea colloquy will necessarily reflect only the elements of a crime.

These two appeals illustrate a practical difficulty that can arise in applying the Mathis/Descamps rule. In the state-court proceedings against Edwards and Pouliot, the complaint and information specify that each defendant was charged with burgling a dwelling. If Wisconsin law required that all facts alleged in the charging documents be proved to a jury beyond a reasonable doubt, we could conclude that “dwelling” is an element. But because the charging documents may allege additional facts, the inclusion of “dwelling” tells us nothing about whether it’s an element of burglary or simply a factual description of the type of enclosed structure the defendant entered. Edwards’s plea colloquy is similarly unhelpful: It includes a recitation of the “elements of burglary as they apply to [.Edwards’s] case.” (Emphasis added.) In short, the record materials simply do not speak to whether “building” and “dwelling” are elements or means.

Left with only the text and structure of Wisconsin’s burglary statute, we conclude that subsection (a) lists alternative means rather than elements and is therefore indivisible. That conclusion resolves this appeal: The elements of the crime of conviction “cover a greater swath of conduct” than the elements of the Guidelines offense, so the defendants’ burglary convictions cannot serve as predicate offenses under § 2K2.1(a). Mathis, 136 S.Ct. at 2251. Edwards and Pouliot are entitled to resentencing.

B. Acceptance-of-Responsibility Reduction

Edwards raises an additional challenge to his sentence. He argues that the district judge erred by refusing to apply an acceptance-of-responsibility reduction under § 3E1.1 of the Guidelines. We review the judge’s decision for clear error. United States v. Sellers, 595 F.3d 791, 793 (7th Cir. 2010).

Section 3E1.1(a) calls for a two-level reduction in the defendant’s offense level “[i]f the defendant clearly demonstrates acceptance of responsibility for his offense.” Application note 3 explains that entry of a guilty plea before trial and truthfully admitting any additional relevant conduct “will constitute significant evidence of acceptance of responsibility” but “may be outweighed by conduct of the defendant that is inconsistent with such acceptance of responsibility.” § 3E1.1 cmt. n.3. Continued criminal activity is the sort of conduct that .is inconsistent with acceptance of responsibility. United States v. McDonald, 22 F.3d 139, 144 (7th Cir. 1994). However, “the Guidelines do not authorize the court to adopt a per se rule denying a reduction when a defendant engages in further criminal activity.” United States v. Bothun, 424 F.3d 582, 587 (7th Cir. 2005).

Edwards has wisely omitted a challenge to the judge’s finding that he continued to engage in criminal activity while on pretrial release for his 2013 offenses. Instead he argues that the judge wrongly thought that this conduct necessarily precluded an acceptance-of-responsibility reduction. This argument rests on the following comment by the judge:

I understand that [Edwards] thinks he should receive the credit because he did cooperate with investigators, he never contested his criminal conduct, and he was arrested without incident. However, the other part of that — what’s required for that reduction is that he voluntarily terminate his criminal conduct and associations and he did not do that.

Edwards argues that the judge’s reference to “what’s required” for aceeptance-of-re-sponsibility credit means that she treated his continued criminal activity as categorically disqualifying.

We disagree. The judge expressly acknowledged that Edwards’s guilty plea and admission of other relevant conduct weighed in favor of the downward adjustment. That’s enough to satisfy us that she understood the law and considered factors both for and against an acceptance-of-responsibility reduction. See id. And given how extensive Edwards’s continued criminal activity was, the judge’s determination that it outweighed Edwards’s cooperation was not clear error.

For the foregoing reasons, we Vaoate the defendants’ sentences and Remand for resentencing.

      . All references to'the Sentencing Guidelines are to the 2014 version in effect when Edwards and Pouliot were sentenced. The Sentencing Commission has since amended § 4B 1.2(a)(2), removing burglary of a dwelling from the list of offenses that qualify as a crime of violence; the amendment became effective on August 1, 2016. See 81 Fed. Reg. 4741, 4742 (2016).

      . The categorical approach was developed in the context of the Armed Career Criminal Act ("ACCA”), which enhances the sentence of a felon who has three prior convictions for a "violent felony.” 18 U.S.C. § 924(e). The ACCA definition of a violent felony is "closely analogous” to the Guidelines definition of a crime of violence. United States v. Woods, 576 F.3d 400, 403-04 (7th Cir. 2009). Accordingly, we've held that the categorical approach applies when determining if a prior conviction qualifies as a crime of violence under the Sentencing Guidelines, see id. and "we refer to cases dealing with the ACCA and the career offender guideline provision interchangeably,” United States v. Taylor, 630 F.3d 629, 633 n.2 (7th Cir. 2010).

      . Like the Supreme Court’s other decisions addressing the categorical approach, Mathis dealt with whether a prior conviction qualifies as a violent felony under the ACCA. The Court highlighted three reasons for its "adher[ence] to an elements-only inquiry”: (1) the ACCA’s use of the word "conviction” mandates it; (2) a contrary approach would "raise serious Sixth Amendment concerns”; and (3) "an elements-focus avoids unfairness to defendants” by preventing factual admissions that a defendant had no reason to contest in a prior proceeding from serving as the basis for an enhanced penally. United States v. Mathis, — U.S. —, 136 S.Ct. 2243, 2252-53, 195 L.Ed.2d 604 (2016). After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Guidelines no longer raise the same Sixth Amendment concerns as the ACCA. But the Guidelines do use the same language of "conviction” and create the same potential for unfairness to defendants in sentencing. Cf. United States v. Jones, 830 F.3d 142, —, 2016 WL 3923838, at *4 (2d Cir. July 21, 2016) (applying the reasoning of Mathis to the career-offender guideline).
      And Mathis itself indicates that its holding applies in the immigration context, where Sixth Amendment concerns are similarly immaterial. 136 S.Ct. at 2253 n.3; accord Gomez-Perez v. Lynch, 829 F.3d 323, 326-27 & n.4, 2016 WL 3709757, at *2 & n.4 (5th Cir. July 11, 2016). These reasons, along with our precedents treating ACCA and Guidelines cases interchangeably for purposes of the categorical approach, lead us to conclude that
        Mathis applies with equal force in the context of the career-offender guideline.


source: Caselaw Access Project

author: POSNER, Circuit Judge.

license: Public Domain

text:
    Jessie RIVERA, Plaintiff-Appellant, v. Ravi GUPTA and Cesar Lopez, Defendants-Appellees.
    No. 15-3462
    United States Court of Appeals, Seventh Circuit.
    Submitted August 18, 2016
    Decided September 8, 2016

      Jessie Rivera, Pro Se.
    David Daly Conway, Attorney, Office of the United States Attorney, Madison, WI, for Defendants-Appellees.
    Before POSNER, EASTERBROOK, and SYKES, Circuit Judges.
   POSNER, Circuit Judge.

Jessie Rivera, a federal inmate, suffers from numbness and pain as a result of second-degree burns on his left leg, foot, and ankle. His suit accuses a physician named Ravi Gupta, and a prison health services administrator named Cesar Lopez, of deliberate indifference to his need for substantial medical treatment, thereby violating his Eighth Amendment rights. See Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). The district court entered summary judgment for the defendants, precipitating this appeal. (Rivera had also brought a claim under the Federal Torts Claims Act, but the district court rightly dismissed it on the authority of United States v. Demko, 385 U.S. 149, 87 S.Ct. 382, 17 L.Ed.2d 258 (1966), which holds that the Inmate Accident Compensation Act, 18 U.S.C. § 4126(c)(4), precludes FTCA claims for prisoners injured while working.)

The prison kitchen in which Rivera was working in May 2011 when the accident occurred had a history of large kettle pots’ boiling over and spilling water on the floor. One of these pots, containing dirty water, butter, and shortening, had been boiling over for more an hour when Rivera slipped on the wet floor underneath the pot, scalding his leg. A nurse diagnosed him with second-degree burns on his left lower leg and ankle, removed the dead skin around the wound, dressed the burn, and prescribed a narcotic pain medication, a wheelchair (because the burn was making it difficult for him to walk), and a lower bunk, and told him not to engage in strenuous physical activity.

For several weeks Rivera returned to the healthcare unit daily so that medical staff could monitor the burn for infection and clean and dress the wound. In these visits he continued to complain that pain and numbness in his left leg, ankle, and foot were making walking difficult for him. A physician assistant told him that his symptoms probably were a normal part of the healing process and suggested that he return to the health care unit in six months if he was still experiencing numbness and difficulty walking. When he returned six months later and complained that he was indeed still experiencing pain and numbness he was told that the symptoms probably were permanent but that he could see Dr. Gupta, the director of the prison’s clinic, if he wanted a physician’s opinion.

Rivera met with Gupta, told him that the numbness and pain in his leg, ankle, and foot had not abated, and said he wanted treatment from a burn specialist and that his family would pay for the treatment. According to Rivera, Gupta refused to examine him, look up his records, or authorize any treatment, instead admonishing him that he wouldn’t have scalded himself had he not been in prison, that “only God” could help him now, and that if he complained about numbness and pain in his leg again, Gupta would write a disciplinary report. Gupta disputes Rivera’s account but at the summary-judgment stage of the case we are obliged to accept Rivera’s version. See Tradesman Int’l, Inc. v. Black, 724 F.3d 1004, 1009 (7th Cir. 2013). Conflicting factual assertions, both plausible, can be resolved only by a trial.

Rivera supports his deliberate-indifference claim with excerpts from medical websites which suggest that severe burns can cause nerve damage, that damaged nerves can progressively worsen if untreated, and that nerve-pain medications and physical therapy can reduce the nerve damages from chronic, persistent pain and numbness. The validity of this medical information is not contested.

As for Lopez — the prison’s health-services administrator who is the other defendant — -Rivera claims to have complained to him early on about the inadequate medical treatment that he was receiving, and Lopez never followed up. But Lopez is not a medical professional, and the medical staff was aware of Rivera’s condition and had as we know told him to wait six months to allow the bum further time to heal, before he sought additional treatment. The grant of summary judgment for Lopez thus was proper. See, e.g., McGee v. Adams, 721 F.3d 474, 483 (7th Cir. 2013).

Not so with regard to Dr. Gupta. The district judge granted summary judgment in his favor without considering the website excerpts, and noted that despite the “odd exchange” between Rivera and Gupta, Rivera had produced no expert evidence that Gupta had been deliberately indifferent to Rivera’s numbness and pain. The judge also denied Rivera’s request for counsel. While acknowledging that “counsel could have assisted Rivera in responding to defendants’ motion for summary judgment in several respects, perhaps most critically in possibly securing expert testimony,” the judge said that no amount of expert testimony would “alter [his] determination that defendants’ decision to refuse [Rivera’s] request for a referral” to a burn specialist was not “blatantly inappropriate.” This was an odd thing to say, given that Rivera’s condition was at root a burn problem. Nor did the judge explain the basis for his unalterable “determination.”

Gupta argues that the numbness and pain in Rivera’s leg and foot were not serious. But Rivera submitted evidence from which a jury could reasonably find that they were. He claims that for nine months he suffered from pain and numbness that made walking difficult, and he had presented as we noted earlier uncontested evidence from reputable medical websites indicating that severe burns such as he’d experienced- can damage nerves and cause progressively worsening pain or numbness (or both) and that medication and physical therapy can relieve those conditions.

Yet Gupta refused to examine Rivera or provide any medical treatment for his pain and numbness, thereby deliberately ignoring a serious medical condition, as in the comparable cases of Gonzalez v. Feinerman, 663 F.3d 311, 314-15 (7th Cir. 2011); Hayes v. Snyder, 546 F.3d 516, 524-25 (7th Cir. 2008); and Brock v. Wright, 315 F.3d 158, 166-68 (2d Cir. 2003). Apropos to this case is our statement in Miller v. Campanella, 794 F.3d 878, 880 (7th Cir. 2015), quoting Williams v. O’Leary, 55 F.3d 320, 324 (7th Cir. 1995), that “a prison officer is deliberately indifferent if he ‘knows of and disregards an excessive risk to inmate health.’ ”

Gupta responds that there was no medical treatment that could have relieved Rivera’s numbness or pain, because his condition was a “normal” part of the healing process and his “neurovascular exam” was normal. But Gupta is not a neurologist or a specialist in the treatment of burn injuries and did not explain the medical basis for his contention that pain and numbness nine months after a burn were normal.' Nor is the relevance of “normality” apparent. It is “normal” to experience pain after a fall or other accident, but also “normal” to treat it. Peritonitis is a “normal” consequence of a bacterial or fungal infection in the abdomen, but requires prompt medical attention as left untreated it can lead to severe, potentially life-threatening infection. A refusal to treat peritonitis on the ground of “normality” would certainly amount to deliberate indifference rather than just to medical malpractice, and likewise a refusal to treat a painful and protracted burn injury on the same ground.

The statements that Rivera claims Gupta made during their one meeting could well incline a reasonable jury to doubt Gupta’s good faith in refusing to treat Rivera or allow him to seek treatment from a burn specialist, because Rivera could receive help only from “God.” And very improperly he threatened Rivera with discipline if he continued to complain of numbness and pain. A reasonable jury might well infer that personal hostility, divorced from medical judgment, had motivated Gupta’s refusal to provide -Rivera with any further treatment, even by a burn specialist whom Rivera’s family would have compensated.

We are mindful of the Supreme Court’s ruling in Helling v. McKinney, 509 U.S. 25, 35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993), that a prisoner who claims that the defendants have failed to handle his health issues properly must establish “both the subjective and the objective elements necessary to prove an Eighth Amendment violation.” The objective component is the seriousness of the inmate’s medical condition, and as Rivera’s burn injury was objectively serious, that element of the test is satisfied. The subjective component is the “deliberate indifference” component and one way to satisfy it is by showing that the prison doctor provided no treatment even though the circumstances indicated that treatment clearly was warranted, thus permitting an inference that in failing to provide any treatment the doctor’ had acted with a culpable state of mind (deliberate indifference, equivalent to recklessness in criminal law). So there is evidence of both Helling components of Rivera’s claim and therefore his case against Gupta should go to a jury.

The defendants suggest that Rivera must have been exaggerating his symptoms because he never complained to the medical staff about the pain and numbness in his leg after his appointment with Gupta in 2012. That would not be surprising were it true, given the brush-off that Gupta had given him and the threat to discipline him if he continued complaining about numbness and pain and difficulty walking. Rivera may indeed have given up on the medical staff of the prison (FCI-Oxford), but two years after his brush-up with Gupta, and after being transferred to another prison (MCC-Chicago) — where he no longer had to worry about Gupta — Rivera told a clinician at his new prison that he still had pain and numbness at the burn site.

A final point: although Rivera does not argue on appeal that the district judge abused its discretion in denying his motion for counsel, the judge’s unquestionably correct remark that “counsel could have assisted Rivera in responding to defendants’ motion for summary judgment in several respects, perhaps most critically in possibly securing expert testimony,” persuades us that on remand the judge should recruit counsel for Rivera. Cf. Pruitt v. Mote, 503 F.3d 647, 655-56 (7th Cir. 2007) (en banc).

The judgment in favor of Dr. Gupta is reversed, the judgment in favor of Mr. Lopez affirmed, and the case remanded to the district court for further proceedings, consistent with this opinion, concerning the plaintiffs claim against Gupta.


author: WOOD, Chief Judge.

text:
    Shmael Isaac TURKHAN, Petitioner, v. Loretta E. LYNCH, Attorney General of the United States, Respondent.
    Nos. 14-3456 & 15-1378
    United States Court of Appeals, Seventh Circuit.
    Argued April 5, 2016
    Decided September 9, 2016

      Royal F. Berg, Attorney, LAW OFFICE OF ROYAL F. BERG, Chicago, IL, for Petitioner.
    Catherine Bye, Sunah Lee, OIL, Attorneys, DEPARTMENT OF JUSTICE, Civil Division, Immigration Litigation, Washington, DC, for Respondent.
    Before WOOD, Chief Judge, and BAUER and WILLIAMS, Circuit Judges.
   WOOD, Chief Judge.

Bureaucracy’s “specific nature,” Max Weber said, “develops the more perfectly the more [it] is ‘dehumanized,’ the more completely it succeeds in eliminating from official business love, hatred, and all purely personal, irrational and emotional elements which escape calculation.” Max Weber, Bureaucracy, in FROM Max Weber: Essays in SoCiology 196, 215-16 (H.H. Gerth & C. Wright Mills eds. & trans., 1991). By this standard, the government’s treatment of this case has achieved perfection.

In 1979, Shmael Isaac Turkhan, an Assyrian Christian and citizen of Iraq, immigrated to the United States as a lawful permanent resident. He was convicted of conspiracy to distribute cocaine in 1990 but has had no trouble with the law since then. Twenty-six years later, the Department of Homeland Security, Javert-like, is still trying to deport him to Iraq. The Board of Immigration Appeals affirmed the immigration judge’s decision to defer his removal under the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), implemented at 8 C.F.R. §§ 208.16, 208.17. It refused, however, to reopen the immigration judge’s order for Turkhan’s removal. This means that he can be removed whenever the conditions for CAT deferral abate.

Turkhan argues that the Board and the immigration judge erred in declining to reopen the decision requiring his removal for two reasons: first, he says, it was wrong for the Board to read its own order as a limited remand for consideration of relief under the CAT rather than as a reopening of the entire proceeding under section 212(c) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(c) (1994); and second, the Board should have found that Turkhan’s constitutional right to procedural due process was violated at his original section 212(c) hearing. While we are mystified by the government’s decision to contest this matter, the decision is not ours to make, and we must therefore deny Turkhan’s petition for review.

I

Turkhan was born in 1960, in Kirkuk, Iraq. On January 29, 1979, at age 19, he arrived in New York. His entry was lawful, and he eventually became a legal permanent resident. He was — and is — a practicing Assyrian Christian and has not left the United States since he entered in 1979. He is married to a U.S. citizen, is the father of two U.S. citizen children, ages 10 and 19, and is the stepfather of his wife’s other two children, whom he helped to raise.

For his first 11 years in the United States, Turkhan lived uneventfully in Chicago, Illinois (where he still resides). But on April 17, 1990, he pleaded guilty to conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846. He was sentenced to 47 months’ imprisonment. By all accounts, he was a model prisoner: he obtained his G.E.D., completed a 166-hour course for nursing assistants, was awarded a certificate for finishing another course for nursing assistants and mental-health companions, and graduated from the Adult Basic Education Course. He also worked as a mental-health companion while in federal custody. A letter of commendation written by a supervisor noted that “his language abilities ha[d] proved invaluable to the correctional and medical staff in our mission to provide safe, humane and professional psychiatric services to our patients”; that he was “a positive role model for the patients and for the other inmates in our institution”; and that he “balance[d] his role as a patient advocate and compassionate Mental Health worker with [sic] the confines of his status as an inmate with great finesse and maturity.”

At the conclusion of his prison term, Turkhan was placed in deportation proceedings. On October 3, 1994, an immigration judge found him deportable based on his conviction of an aggravated felony. Turkhan turned for relief to section 212(c) of the INA, which at the time allowed the Attorney General to waive deportation for certain otherwise excludable legal permanent residents. See 8 U.S.C. § 1182(c) (1994); INS v. St. Cyr, 533 U.S. 289, 294, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (noting that the Board has interpreted section 212(c) to allow for waiver of deportation). (Section 212(c) was later repealed by § 304(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, (IIRIRA) Pub. L. No. 104-208, Div. C, 110 Stat. 3009, 3009-597, and replaced with a narrower waiver for which Turkhan is not eligible. See 8 U.S.C. § 1229b(a)(3) (waiver available only to permanent residents not convicted of aggravated felony)).

At the hearing, Turkhan attempted to have his mother and sister testify on his behalf. They do not speak English, however, and although arrangements were supposed to have been made for an interpreter, one was not provided. According to the testimony of Gerardo Gutierrez, Turkhan’s attorney, Gutierrez was supposed to renew Turkhan’s request for an interpreter 30 days before the hearing but he forgot to do so. As a result, Turkhan was unable to present the testimony of his mother and sister. The immigration judge reviewed only their “somewhat boiler plate” affidavits, to which he gave almost no weight because they did not testify. The immigration judge found Turkhan statutorily eligible for relief under section 212(c), but denied it as a matter of discretion. The Board affirmed.

From there, Turkhan’s case meandered along a long and winding road. In May 1997, the Board denied Turkhan’s motions to reconsider and reopen his case, finding that, as an aggravated felon, he was statutorily ineligible for section 212(c) relief under changes to the INA made by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-208, Div. C, 110 Stat. 2009, and IIRIRA. Later that year, we ruled that AEDPA and IIRIRA deprived us of jurisdiction to review the Board’s decisions in Turkhan’s case. See Turkhan v. INS, 123 F.3d 487 (7th Cir. 1997), abrogated by LaGuerre v. Reno, 164 F.3d 1035 (7th Cir. 1998). In 1999, we held that we had jurisdiction to consider Turkhan’s petition for a writ of habeas corpus, but affirmed the district court’s denial of the writ and held that Turkhan was ineligible for a section 212(c) waiver. See Turkhan v. Perryman, 188 F.3d 814 (7th Cir. 1999).

In January 2001, the Department of Justice issued new regulations providing for the reopening of certain section 212 cases. See 8 C.F.R. §§ 3.44, 212.3 (2001). Turkhan filed another motion to reopen. While that motion was pending, the Supreme Court handed down INS v. St Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), which held that persons rendered removable by guilty pleas entered prior to AED-PA’s enactment may still obtain relief under section 212(c). The Board nevertheless denied Turkhan’s motion and his motion to reconsider.

The Department issued additional regulations in 2004. See 8 C.F.R. § 1003.44 (2004). Turkhan filed another motion to reopen, which was denied, as was its reconsideration. In 2006, he filed a new motion to reopen, seeking withholding of removal under the CAT and reasserting his eligibility for section 212(c) relief. The Board denied the motion. Turkhan filed a motion for reconsideration, along with a petition for review.

On February 27, 2007, somewhat surprisingly, the Board ordered Turkhan’s proceedings reopened. It explained that “[i]n light of [Youkhana v. Gonzales, 460 F.3d 927 (7th Cir. 2006)],” it would “grant the motion to reconsider sua sponte, vacate [its] June 12, 20[0]6 decision and remand the record so that the Immigration Judge may consider the respondent’s claims based on changed country conditions in Iraq.” In 2009, an immigration judge ruled that, despite limiting language in the Board’s remand order, Turkhan could apply for any form of relief.

Shortly thereafter, the immigration judge administering Turkhan’s case retired and a new judge took over the case. The new judge took a fresh look at the matter and held that the Board’s order did not reopen Turkhan’s application for section 212(c) relief. In 2012, that judge issued an oral decision finding Turkhan ineligible to seek section 212(c) relief but granting deferral of removal under the CAT. The Board affirmed. Turkhan then filed a motion to reconsider, in which he contended that the Board had reopened both his CAT claim and his section 212(c) application. Both the immigration judge and the Board disagreed with that view. In affirming the immigration judge’s decision, the Board noted:

The subsequent decision of the Board granting the respondent’s motion based on changed country conditions did not restore the respondent to his prior lawful permanent resident status, because such an order is merely an interlocutory measure allowing for a hearing on a new issue- that has arisen; it does not abrogate the existing deportation order or confer lawful immigration status on the movant.

Turkhan moved for reconsideration, which the Board denied. Turkhan petitioned for review of both decisions. We consolidated his petitions, and now address them.

II

Where, as it did in this case, the Board “affirms the [immigration judge’s] decision and supplements with its own explanation for denying the appeal, we review the [immigration judge’s] decision as supplemented by the [Board’s] reasoning.” Champion v. Holder, 626 F.3d 952, 956 (7th Cir. 2010). In doing so, we review factual and credibility determinations to ensure that they are supported by substantial evidence; we evaluate legal conclusions de novo. Lishou Wang v. Lynch, 804 F.3d 855, 858 (7th Cir. 2015) (internal citations omitted). Because the criminal-alien review bar applies, this Court has jurisdiction to review only constitutional claims and questions of law. See 8 U.S.C. § 1252(a)(2)(C), (D).

A

Turkhan urges that there is no such thing as a partial reopening and that the Board therefore committed legal error when it purported to take such an action. There is no basis for his contention. To the contrary, we have held that the Board’s decision that an individual is removable is still “final” when it is remanded for a background check to ensure eligibility for withholding of deportation. See Viracacha v. Mukasey, 518 F.3d 511, 513 (7th Cir. 2008) (noting that a “final order of removal” is an “order of the agency ‘concluding that the alien is deportable or ordering deportation’ ” (quoting 8 U.S.C. § 1101(a)(47)(A))).

The same logic applies here. An “order withholding removal” — of which an order based on the CAT is one — “supposes that the alien is ‘removable.’ ” Id. at 514 (citing Guevara v. Gonzales, 472 F.3d 972, 976 (7th Cir. 2007)). The Board has long held that when an order reopening proceedings is granted because “a new question has arisen that requires a hearing,” that order “is an interlocutory order allowing for such a hearing and does not dispose of the merits of the application for relief from deportation.” In Re M-S-, 22 I. & N. Dec. 349, 354 (BIA 1998) (internal citations omitted). There is no reason to doubt that the Board may use such a procedure. See generally Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) (formal agency interpretations of own regulations are “controlling unless ‘plainly erroneous or inconsistent with the regulation’ ” (citation omitted)). The Board’s interpretation of the relevant regulations is entirely reasonable. See 8 C.F.R. §§ 1003.2(e)(3)(ii)(excepting certain applications for withholding of deportation based on changed country conditions from ordinary motion-to-reopen time and numerical limitations), § 1003.23(b)(3)-(4) (same for CAT, differentiating conditions for granting motions to reopen based on relief sought).

Turkhan points to a number of our cases, which he reads as rejecting the Board’s reasoning in In re M-S-. He is mistaken. True, Orichitch v. Gonzales held that “the grant of a motion to reopen vacates the previous order of deportation or removal and reinstates the previously terminated immigration proceedings.” 421 F.3d 595, 598 (7th Cir. 2005) (quoting Bronisz v. Ashcroft, 378 F.3d 632, 637 (7th Cir. 2004)). But Orichitch involved an order to reopen the immigrant’s removal proceedings themselves, not a separate ground for withholding removal. Id. at 597. Bronisz dealt with the distinct question whether the grant of a motion to reopen is part of the original immigration proceedings, or constitutes the commencement of a new proceeding. See 378 F.3d at 636-37.

The dicta Turkhan cites from Fedorca v. Perryman simply contemplates the situation we confronted in Orichitch — a motion to reopen the removal proceedings as a whole. 197 F.3d 236, 240 (7th Cir. 1999) (“If Fedorca’s motion to reopen his deportation proceedings had been successful ... it would have abrogated the 1995 deportation order.”). None of these cases says that if the Board wants to remand, it faces an “all or nothing” choice.

Turkhan also asserts that the “Department of Homeland Security agreed that [he] was a permanent resident after the 2007 reopening and remand by issuing him a new permanent resident card in 2014.” But that is misleading. About seven months after he received that card, U.S. Citizenship and Immigration Services notified him that he had received it in error and that his status had not changed. Turk-han’s argument on this point is not clear, but to the extent he is arguing estoppel, he does not come close to meeting its elements. See United States v. Anaya-Aguirre, 704 F.3d 514, 520 (7th Cir. 2013) (“When a party seeks to estop the government, the party must also show that the government committed affirmative misconduct, which requires ‘more than mere negligence.’ ” (citation omitted)).

Turkhan repeatedly refers to St. Cyr and the fact that he is eligible for section 212(c) relief. But eligibility is not the problem. The issue is whether the Board must exercise its discretion to reopen his section 212(c) application, even though it is number-barred. Having lived within the law for the 11 years before and the 26 years since his conviction, Turkhan would be a prime candidate for that discretion if it were exercised. But the government has elected to oppose reopening, and there is no legal basis for forcing the Board to take this step.

Finally, Turkhan contends that because the Board did not consider Ori-chitch, it erred in denying his motion to reconsider. “While the BIA need not ‘write an exegesis on every contention,’ its opinion must reflect that ‘it has heard and thought and not merely reacted.’ ” Akinyemi v. INS, 969 F.2d 285, 289 (7th Cir. 1992) (quoting Becerra-Jimenez v. INS, 829 F.2d 996, 1000 (10th Cir. 1987)). The Board laid out its reasoning in its October 16, 2014 order. Turkhan repeated arguments he has made before, but he did not identify any error of law or fact, or any argument that the Board overlooked. We find no legal error in the Board’s denial of Turkhan’s motion to reconsider.

B

Turkhan also contends that the conduct of his section 212(c) proceedings violated the procedural due process rights guaranteed to him by the Fifth Amendment to the U.S. Constitution. This argument hits a stumbling block straight out of the gate: non-citizens “have a Fifth Amendment right to due process in some immigration proceedings, but not in those that are discretionary.” Champion, 626 F.3d at 957. The section 212(c) waiver was a discretionary benefit and is therefore governed by this rule. See Bakarian v. Mukasey, 541 F.3d 775, 784 (7th Cir. 2008). Because Turkhan’s section 212(c) proceeding did not adjudicate a right protected by procedural due process, the hearing by definition did not violate due process requirements.

All this said, Turkhan’s experience is troubling. As the immigration judge who granted Turkhan relief under CAT and denied it under section 212(c) noted, Turk-han’s is “an unusual case.” It has been pending for roughly 23 years. The immigration judge opined that “[t]he record clearly shows that [Turkhan] ha[s] been rehabilitated for the offense [he] ... committed” 26 years ago. Turkhan has no family in Iraq. To the contrary, all his family is here, and lawfully so. “Family unity” is “one of the principal goals of the [U.S. immigration] statutory and regulatory apparatus.” Fornalik v. Perryman, 223 F.3d 523, 525 (7th Cir. 2000). Finally, Turkhan is 56 years old; he has not set foot in Iraq since he left that country more than 37 years ago, at the age of 19.

The government has continued to pursue this case vigorously despite the fact that, several years ago, it.announced a policy of not seeking mandatory punishment against certain low-level, nonviolent drug offenders such as Turkhan. See Memorandum from Attorney General Eric Holder to the United States Attorneys and Assistant Attorney for the Criminal Division (Aug. 12, 2013). Perhaps if the Department allows Turkhan another chance to apply for discretionary relief, things might turn out differently. Perhaps, unlike 23 years ago, Turkhan’s lawyer might not inadvertently fail to secure an interpreter, and Turkhan’s sister and mother will be able to testify on his behalf. Perhaps the immigration judge, who gave the “boiler plate” affidavits of these witnesses little weight, will find their testimony persuasive. Turkhan has also contended that the immigration judge in his section 212(c) decision misinterpreted Turkhan’s prison records in finding that a record of his participation in a drug treatment program contradicted (and rendered not credible) his testimony that he never used drugs. But a closer look reveals that there was no such inconsistency. What Turkhan said was that he worked in that program; he was not a patient. Perhaps that misunderstanding can be resolved in a new proceeding. Perhaps, after 26 years of law-abiding life in the United States, the executive authorities might see fit to give him a chance to win the right to stay rather than live under a constant risk of being dropped back into a country he has not known since he was a teenager.

III

Because it provides only for discretionary relief, section 212(c) endows Turkhan with no right protected by procedural due process; as a result, this theory of relief cannot succeed. Neither did the Board or immigration judge err in determining that the Board could — and did — order only a partial remand of Turkhan’s case. We therefore Deny his petitions for review.