author: POSNER, Circuit Judge.

text:
    Jairo E. RAMOS, Plaintiff-Appellant, v. Gary HAMBLIN, et al., Defendants-Appellees.
    No. 15-3052
    United States Court of Appeals, Seventh Circuit.
    Argued September 9, 2016
    Decided October 24, 2016

      Daniel A. Johnson, JENNER & BLOCK LLP, New York, NY, Barry Le-venstam, Michael Anthony Scodro, JENNER & BLOCK LLP, Chicago, IL, for Plaintiff-Appellant.
    Gabe Johnson-Karp, OFFICE OF THE ATTORNEY GENERAL, Madison, WI, for Defendants-Appellees.
    Before POSNER, MANION, and WILLIAMS, Circuit Judges.
   POSNER, Circuit Judge.

The plaintiff, who is appealing the dismissal, resulting from the judge’s grant, of the defendants’ motion for summary judgment, of the plaintiff’s suit under 42 U.S.C. § 1983 alleging punishment that violated the Eighth Amendment, was at the time relevant to this suit a prisoner at Stanley Correctional Institution, a Wisconsin medium-security prison, serving a long prison term for homicide. In the fourteenth year of his imprisonment (though only his fifth year at Stanley), -he was placed in a cell with a prisoner in -his second year at Stanley named DaSilva, who one night twelve days later sexually assaulted the plaintiff in the cell. DaSilva was in prison for having sexually assaulted a woman.- Both prisoners were classified as “medium security” inmates, meaning that they were bélieved to be less likely -to engage in violent or otherwise disruptive behavior than maximum-security inmates, though DaSilva in his two years at Stanley had committed eight violations of the prison’s rules, including fighting, lying, theft, and use of intoxicants—but no sexual offenses.

The plaintiff promptly reported DaSil-va’s sexual assault of him to a correctional officer, who notified her superiors, who conducted a thorough investigation that resulted in a criminal charge being lodged against DaSilva, also a disciplinary charge against him for disobeying prison regulations regarding sexual assault, and finally an official notice that the plaintiff and Da-Silva were not to share a cell.

The complaint charges the defendants, who are supervisory personnel at Stanley, including its vvarden, with deliberate indifference to the danger of the plaintiff’s being sexually assaulted by DaSilva. All prisoners at Stanley have a cellmate, randomly assigned in the first instance, and ¡the plaintiff claims that the defendants were aware of, but did nothing to eliminate, the danger of placing DaSilva in the same cell with him. Not only had DaSilva committed a previous sexual assault, albeit against a woman, but in addition the plaintiff claims to have been perceived as homosexual, which may have -made him more likely to be assaulted, sexually or otherwise. More broadly the. plaintiff attacks the practice of random assignment of cellmates. Presumably his previous, cellmate had been transferred to a different cell (or different prison, or had completed his prison term and been released), leaving a gap that the prison filled with a random assignment, namely of DaSilva.

A 2003 federal statute, the Prison Rape Elimination. Act, 42 U.S.C. :§§ 15601-15609, as the name implies, and corresponding rules of the Wisconsin Department of Corrections, Executive Directives 16A and 72,. make the prevention of prison rape a priority concern of prison administrators, just as the prevention of suicide by newly jailed persons is a priority concern of jail administrators. See, e.g., Belbachir v. County of McHenry, 726 F.3d 975, 980-82 (7th Cir. 2013). Thus each new inmate in a Wisconsin prison is given a “Sexual Abuse/Assault Prevention and Intervention” handbook, which among other things directs him to inform prison staff about any danger he perceives of being assaulted or otherwise abused. The handbook states:

You should feel free to discuss your concerns about sexual misconduct with any staff member. Some staff,, like psychologists, are specially trained to help you deal with problems in this area. If you are in an emergency situation, approach' any' staff member.... Even if you have not been assaulted or abused, but are in fear for your safety, you should report your concern to staff.

The plaintiff claims that he was perceived by inmates and staff alike as homosexual, and that this perception should have alerted the staff to the need to separate him from his new cellmate, a convicted rapist. The record indicates that Ramos may have been homosexual or bisexual but renounced that identity upon a religious conversion. Yet the principal evidence that he was perceived as being homosexual was that prison staff had asked him whether he was, but there is no indication that they told any other prisoner that he was homosexual. It made sense for the staff to question Ramos about his sexual orientation, given the vulnerability of homosexual prisoners to rapé by other prisoners, whether homosexual prisoners or heterosexual ones seeking to substitute homosexual sex in a setting in which heterosexual sex is precluded—to engage, in other words, in what is called “opportunistic homosexuality.” See National Center for Transgender Equality et al, “Preventing the Sexual Abuse of Lesbian, Gay, Bisexual, Transgender, and Intersex-People in Correctional Settings” 3-6 (May 10, 2010), www. prearesourcecenter.org/sites/defaulVSles/ library/8-preventingthesexualabuseof Igbtipeopleincorrectionalsettings_0.pdf (visited October 21, 2016).

There is nothing to indicate that when asked by staff whether he was homosexual the plaintiff said he was, or expressed any concern about being vulnerable to sexual assault; and in these circumstances the staff would have been opening themselves to suit had they declared him a homosexual and taken action as a result, though had they believed him to be perceived by other prisoners to be homosexual it might have been wise to take steps to protect him from the likes of a DaSilva. See Jody Marksamer & Harper Jean Tobin, National Center for Transgender Equality, “Standing with LGBT Prisoners,” www. transequality.org/sites/default/files/docs/ resources/JailPrisons_Resource_FINAL. pdf (also visited October 21, 2016). But so far as appears, the staff was unaware that the plaintiff was perceived by other prisoners to be homosexual; nor is there any evidence of such a perception, apart from the plaintiffs unsupported claim.

It’s not clear how vulnerable the plaintiff was to a sexual assault. It’s true that he isn’t tall—he’s 5'6" (DaSilva is 510"; but neither is he a mouse, for he had been, after all, convicted of reckless homicide. And there is no indication that he had any anxieties about DaSilva before the rape. Nor had DaSilva committed any sexual offenses in prison, and as far as appears he had told no one—including the plaintiff— that he had raped anyone, let alone that he wanted and was planning to rape an inmate.

In these circumstances we can’t see how the defendants, who as supervisory employees of the prison would have limited interactions with inmates, can be thought to have been deliberately indifferent to the possibility that the plaintiff would be raped—that is, would know there was a nontrivial danger of that happening, could prevent it without danger or other undue cost to themselves, but instead decided to do nothing.

Had the plaintiff any fear of DaSil-va, it behooved him to ask the prison staff to transfer him to another cell. If he either is a homosexual or, as he contends, felt vulnerable because he was believed by prison staff and prisoners to be one, it behooved him to complain to prison staff, consistently with the advice in the prison handbook. He didn’t do that. He argues that random assignment of cellmates is deliberate indifference per se to prisoners’ safety. But the only alternative he suggests (for he does not argue that all prison inmates should be in solitary confinement or even that he should have been) is that sex offenders never be placed in cells with any inmate who for whatever reason is at a heightened risk of being sexually assaulted. Given the number of characteristics that could trigger such a heightened risk, sex offenders would probably have to be either placed in solitary confinement, or given cellmates who were also sex offenders. The feasibility of such a solution can be questioned; but more important is the fact that the plaintiff presents no evidence that it would promote prison safety more than the handbook, which emphasizes a prisoner’s right to complain about danger posed to him by a cellmate. Apropos is our comment in Billman v. Indiana Dept. of Corrections, 56 F.3d 785, 788 (7th Cir. 1995), that if prison staff “place a prisoner in a cell that has a cobra, but they do not know that there is a cobra there (or even that there is a high probability that there is a cobra there), they are not guilty of deliberate indifference even if they should have known about the risk, that is, even if they were negligent—even grossly negligent or even reckless in the tort sense—in failing to know.” We can’t even say that administrators of the Stanley Correctional Institution were negligent or reckless in erecting this policy. The line officers who assigned Ramos and DaSilva to the same cell may have been negligent or reckless, but he hasn’t sued them—-just the administrators.

In short, the plaintiff has no case, and so his suit was rightly dismissed by the district court.

Affirmed.


source: Caselaw Access Project

author: MANION, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff, v. SANFORD-BROWN, LIMITED, et al., Defendants-Appellees. Appeal of: Brent M. Nelson
    No. 14-2506
    United States Court of Appeals, Seventh Circuit.
    Argued January 8, 2015
    Decided October 24, 2016

      Matthew Dean Krueger, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Milwaukee, WI, Charles W. Scarborough, Attorney, DEPARTMENT OF JUSTICE, Civil Division, Appellate Staff, Washington, DC, for Plaintiff United States of America.
    James H. Raster, Attorney, Minneapolis, MN, for Appellant Brent M. Nelson.
    Martin M. Loring, Derek T. Teeter, Attorneys, HUSCH BLACKWELL LLP, Kansas City, MO, Daniel J. Vaccaro, S. Edward Sarskas, Attorneys, MICHAEL BEST & FRIEDRICH LLP, Milwaukee, WI, for Defendants-Appellees.
    Before BAUER, MANION, and ROVNER, Circuit Judges.
   MANION, Circuit Judge.

This matter is before us on remand from the United States Supreme Court for reconsideration in light of its recent decision in Universal Health Services, Inc. v. United States, — U.S. -, 136 S.Ct. 1989, 195 L.Ed.2d 348 (2016). See U.S. ex rel. Nelson v. Sanford-Brown, Ltd., — U.S. -, 136 S.Ct. 2506, 195 L.Ed.2d 836 (2016). The only part of our previous opinion, United States v. Sanford-Brown, Ltd., 788 F.3d 696 (7th Cir. 2015), that is affected by the holding in Universal Health is part IV(B)(2), which addressed the plaintiff-relator’s false presentment claim under 31 U,S.C. § 3729(a)(1)(A) of the False Claims Act. We readdress that claim here in light of Universal Health and substitute the following discussion for part IV(B)(2) of our earlier opinion. The remainder of our previous opinion is reinstated, and we once again affirm the district court in ah respects.

I.

The plaintiff-relator’s false presentment claim is based on a theory of “implied false certification.” In Universal Health, the Court held that the implied false certification theory can be a basis for liability where two conditions are met: “first, the claim does not merely request payment, but also makes specific representations about the goods or services provided; and second, the defendant’s failure to disclose noncompliance with material statutory, regulatory, or contractual requirements makes those representations misleading half-truths.” Universal Health Servs., Inc., 136 S.Ct. at 2001 (footnote omitted).

Neither condition is met here. Nelson (the plaintiff-relator) offered no evidence that defendant Sanford-Brown College (SBC) made any representations at all in connection with its claims for payment, much less false or’ misleading representations, Nelson’s bare speculation that SBC made misleading representations is insufficient to survive summary judgment. See Bass v. Joliet Pub. Sch. Dist. No. 86, 746 F.3d 835, 841 (7th Cir. 2014) (“Speculation is no substitute for evidence at the summary judgment stage.”).

SBC is also entitled to summary judgment because Nelson failed to establish the independent element of materiality. As the Universal Health Court explained, “a misrepresentation about compliance with a statutory, regulatory, or contractual requirement must be material to the Government’s payment decision in order to be actionable under the False Claims Act.” Universal Health Servs., Inc., 136 S.Ct. at 2002 (emphasis added). The Act’s materiality requirement is “rigorous” and “demanding.” Id. at 2002-03 & n.6 at 2004. To establish materiality, it is not enough to show that “the Government would have the option to decline to pay if it knew of the defendant’s noncompliance.” Id. at 2003. Instead, “materiality looks to the effect on the likely or actual behavior of the recipient of the alleged misrepresentation.” Id. at 2002 (emphasis added) (internal marks omitted).

Here, Nelson has offered no evidence that the government’s decision to pay SBC would likely or actually have been, different had it known of SBC’s alleged noncompliance with Title IV regulations. On the contrary, as we previously noted, the subsidizing agency and other federal agencies in this case “have already examined SBC multiple times over and concluded that neither administrative penalties nor termination was warranted.” Sanford-Brown, Ltd., 788 F.3d at 712; see also Universal Health Servs., Inc., 136 S.Ct. at 2003 (“[I]f the Government pays a particular claim in full despite its actual knowledge that certain requirements were violated, that is very strong evidence that those requirements are not material.”). At bottom, even assuming Nelson’s allegations are true, the most he has shown is that SBC’s supposed noncompliance and misrepresentations would have entitled the government to decline payment. Under Universal Health, that is not enough. See Universal Health Servs., Inc., 136 S.Ct. at 2004 (explicitly rejecting the view that “any statutory, regulatory, or contractual violation is material so long as the defendant knows that the Government would be entitled to refuse payment were it aware of the violation”).

II.

Having reconsidered our previous opinion in light of Universal Health Services, Inc. v. United States, — U.S. -, 136 S.Ct. 1989, 195 L.Ed.2d 348 (2016), we once again affirm the district court in all respects. With the exception of part IV(B)(2), the vacated opinion of June 8, 2015, is reinstated.

AFFIRMED.


author: SYKES, Circuit Judge.

text:
    CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS HEALTH AND WELFARE FUND, an Employee Welfare Benefit Plan, BY Arthur H. BUNTE, Jr., Trustee, in his representative capacity, Plaintiffs-Appellants, v. AMERICAN INTERNATIONAL GROUP, INC., et al., Defendants-Appellees.
    No. 15-2237
    United States Court of Appeals, Seventh Circuit.
    Argued December 7, 2015
    Decided October 24, 2016

      Francis J. Carey, Attorney, CENTRAL STATES, SOUTHEAST & SOUTHWEST AREAS PENSION FUND, Emily Eileen Gleason, Attorney, CENTRAL STATES FUNDS, Law Department, Rosemont, IL, for Plaintiffs-Appellants.
    Amy J. Collins Cassidy, Attorney, NI-COLAIDES FINK THORPE MICHAE-LIDES SULLIVAN LLP, Chicago, IL, for Defendants-Appellees.
    Before FLAUM, WILLIAMS, and SYKES, Circuit Judges.
   SYKES, Circuit Judge.

A self-funded ERISA plan has sued several independent health insurers seeking reimbursement for medical expenses it paid on behalf of beneficiaries who were covered under both the plan and the insurers’ policies. We’re asked to decide whether a lawsuit like this one—a “coordination of benefits” dispute—seeks “appropriate equitable relief’ under section 502(a)(3) of ERISA, 29 U.S.C. § 1132(a)(3). Six circuits have held that section 502(a)(3) does not authorize suits of this type because the relief sought is legal, not equitable. We join this consensus and affirm the dismissal of the ERISA plan’s suit.

I. Background

Central States, Southeast and Southwest Areas Health and Welfare Fund (“Central States” or “the plan”) is a self-funded ERISA plan that provides health coverage to participating Teamsters and their dependents. The plan’s trustee filed suit on the plan’s behalf seeking a declaratory judgment enforcing the plan’s terms and awarding restitution on various theories. The defendants are insurance companies that underwrite and administer insurance policies for schools and youth sports leagues; their policies cover injuries sustained by young athletes while participating in athletic activities sponsored by these schools and leagues. The case arises from injuries sustained by student athletes who had medical coverage under both the Central States plan and the independent insurers’ policies. The trustee alleges that the plan paid the beneficiaries’ medical bills in full, in the total amount of about $343,000, and the insurers owe reimbursement.

The plan and the insurers’ policies have competing coordination-of-benefits clauses, and each side claims that its respective provision makes the other primarily liable for the beneficiaries’ medical expenses. Coordination-of-benefits disputes like this one are often resolved in state court in a declaratory-judgment action on an equitable-contribution theory. See 16 Lee R. Russ & Thomas F. Segalla, .Couch on In-sukance § 232:71 (3d ed. 2000).

But the trustee sued in federal court under section 502(a)(3) of ERISA (the Employee Retirement Income Security Act of 1974), which provides in relevant part that a participant, beneficiary, or fiduciary of an employee-benefits plan may bring a civil action “to obtain'... appropriate equitable relief ... to enforce any provisions of this subchapter or the terms of the plan.” 29 U.S.C. § 1132(a)(3)(B) (emphasis added). The trustee contends that the suit seeks “appropriate equitable relief’ to enforce the plan’s coordination-of-benefits provision.

More specifically, the trustee seeks: (1) a declaratory judgment that the insurers are primarily liable for “current unpaid and future medical expenses” incurred by athletes who are covered by both the plan and one of the insurers; (2) a declaratory judgment that the insurers are primarily liable for medical expenses for injuries already incurred and treated; (3) the imposition of an equitable lien on sums held by the insurers in the amount of the benefits paid by the plan; and (4) an order that the insurers must reimburse the plan, variously justified on restitution, unjust enrichment, and subrogation theories.

The insurers moved to dismiss all claims. The district judge granted the motion on two different grounds. To the extent that the suit sought a declaratory judgment regarding future medical expenses, the judge held that it did not raise a controversy sufficient to invoke the court’s power to award declaratory relief and dismissed that claim for lack of subject-matter jurisdiction. See Fed. R. Crv. P. 12(b)(1). The remaining claims were dismissed under Rule 12(b)(6) for failure to state a claim. The judge reasoned that the relief sought, though phrased in equitable terms, was not equitable relief within the meaning of section 502(a)(3).

II. Discussion

A. Jurisdiction

As always, our first question is subject-matter jurisdiction. We’re satisfied that jurisdiction is secure over most of this case. The Central States plan has clearly been injured by the independent insurers’ failure to reimburse it for the medical expenses it has paid, and its claim arises under a federal statute, section 502(a)(3) of ERISA. But the- request for a declaratory judgment regarding the insurers’ liability for “current unpaid and future medical expenses” is jurisdictionally problematic. For starters, the -trustee’s use of the phrase “current unpaid and future medical expenses” is odd. The amended complaint alleges that Central States paid the injured students’ medical expenses in full. Accepting that as true, there are no “current unpaid” medical expenses at all. The trustee explains in his briefs that this request for relief relates to “prospective claims”—-that is, claims that Teamsters’ dependents might make for injuries sustained in the future.

This clearly raises ripeness concerns, as the district judge recognized. The Declaratory Judgment Act- permits a federal court to award a declaratory judgment only in “a case of actual controversy.” 28 U.S.C. § 2201(a). This limitation is equivalent to the Constitution’s general limitation on the jurisdiction of the federal courts. U.S. Const. art. III, § 2, cl. 1; § 2201(a); Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 272, 61 S.Ct. 510, 85 L.Ed. 826 (1941). Maryland Casualty remains the leading statement on ripeness questions in the context of declaratory-judgment actions: A suit is ripe when “the facts alleged, under all the circumstances, show that there is a-substantial controversy, between parties having. adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” 312 U.S. at 273, 61 S.Ct. 510. The question is “necessarily one of degree,” id. and it “must be worked out on a case-by-case basis,” 10B Charles -Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2757 (3d ed. 1998).

The trustee’s request for a declaratory judgment regarding expenses the plan has already paid is plainly ripe for adjudication; that claim involves a definite injury between parties with adverse legal interests. The -declaratory-judgment request regarding future claims, however, is unripe. That request for relief arises from hypothetical benefits claims that have yet to be filed—indeed from injuries that have not yet occurred—so the controversy between the plan and the insurers is not of “sufficient immediacy” to invoke a federal court’s jurisdiction.

Our decision in Solo Cup Co. v. Federal Insurance Co., 619 F.2d 1178 (7th Cir. 1980), is instructive on this point. In Solo Cup we dismissed as unripe an employer’s request for a declaration that its insurer must indemnify it for yet-to-be-filed lawsuits. The employer had settled one plaintiffs discrimination claim and sought indemnification for .the settlement; that claim was clearly justiciable. Id. at 1183. In the meantime, the federal government had issued a report finding that the employer had discriminated against some 70 additional employees; the employer sought a judgment declaring that any sums it might have to pay on these potential discrimination claims would, be within the indemnity coverage of the insurer’s policy. Id. at 1188-89. That claim was-.unripe because “[t]he mere possibility that proceedings might be commenced against an insured ... is not sufficient to create a controversy within the meaning of either-the Declaratory Judgment Act or Article III of the Constitution.” Id. at 1189.

The trustee’s request here—for a declaration regarding payment of future claims—is even, more remote. In Solo Cup the prospective claims against the insured were identifiable and had accrued but had not yet been filed. Here the trustee wants a declaration regarding hypothetical future medical claims arising from injuries that have not yet occurred. This aspect of the trustee’s declaratory-judgment request is clearly unripe.

B. Section 502(a)(3) and “Equitable Relief’

Turning now to the merits of the remaining claims, we agree with the district judge that the relief sought is legal, not equitable, so the trustee’s suit is not authorized under ERISA section 502(a)(3).

This is not the first time that Central States has Sued insurers of schools and athletic leagues seeking reimbursement for medical expenses it paid on behalf of its beneficiaries. Six circuits have considered virtually identical claims by the plan. All have reached the same conclusion: The suit is not authorized under section 502(a)(3) because the relief sought is legal, not equitable. Cent. States, Se. & Sw. Areas Health & Welfare Fund v. Student Assurance Servs., Inc., 797 F.3d 512 (8th Cir. 2015); Cent. States, Se. & Sw. Areas Health & Welfare Fund v. Gerber Life Ins. Co., 771 F.3d 150 (2d Cir. 2014); Cent. States, Se. & Sw. Areas Health & Welfare Fund v. Bollinger, Inc., 573 Fed.Appx. 197 (3d Cir. 2014); Cent. States, Se. & Sw. Areas Health & Welfare Fund v. First Agency, Inc., 756 F.3d 954 (6th Cir. 2014); Cent. States, Se. & Sw. Areas Health & Welfare Fund v. Health Special Risk, Inc., 756 F.3d 356 (5th Cir. 2014).

These circuits rest their decisions on a quartet of Siipreme Court cases interpreting the phrase “appropriate equitable relief’ in section 502(a)(3): Mertens v. Hewitt Associates, 508 U.S. 248, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993); Great-West Life & Annuity Insurance Co. v. Knudson, 534 U.S. 204, 122 S.Ct. 708, 151 L.Ed.2d 635 (2002); Sereboff v. Mid Atlantic Medical Services, Inc., 547 U.S. 356, 126 S.Ct. 1869, 164 L.Ed.2d 612 (2006); and US Airways, Inc. v. McCutchen, — U.S. -, 133 S.Ct. 1537, 185 L.Ed.2d 654 (2013). The quartet has since become a quintet with the Court’s recent decision in Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan, — U.S. -, 136 S.Ct. 651, 193 L.Ed.2d 556 (2016).

Mertens, the first in the series, involved a suit brought by ERISA beneficiaries against a nonfiduciary who participated in an alleged breach of fiduciary duty. The Court held that “appropriate equitable relief’ is limited to “those categories of relief that were typically available in equity (such as injunction, mandamus, and restitution, but not compensatory damages).” Mertens, 508 U.S. at 256, 113 S.Ct. 2063. The Court held that the relief the ERISA beneficiaries sought was compensatory damages, which is “the classic form of legal relief’ and therefore unavailable under section 502(a)(3). Id. at 255, 113 S.Ct. 2063.

The next four cases—Great-West, Sere-bojf, McCutchen, and Montanile—all involved disputes between ERISA plans and beneficiaries over the proceeds of auto-insurance settlements. The ERISA beneficiaries suffered injuries in car accidents; the ERISA plans paid for the medical care to treat these injuries. When the beneficiaries settled with the drivers who caused the accidents, the ERISA plans demanded reimbursement from the settlement proceeds. The beneficiaries refused, and the ERISA plans brought restitution claims under section 502(a)(3) to enforce reimbursement provisions in their plan documents.

In Serebojf and McCutchen, the defendant beneficiaries held the settlement proceeds in segregated accounts or funds, and in each case the plans sought an equitable lien against the specifically identified account or fund; the Court held that this form of relief was properly regarded as equitable. In Great-West and Montanile, on the other hand, the defendant beneficiaries did not possess the settlement proceeds; the relief sought was money damages from the beneficiary’s general assets, a quintessentially legal remedy. More specifically, in Great>-West the proceeds of the settlement were allocated to a trust rather than directly to the beneficiary, who was the defendant in the plan’s suit; in Mon-tanile the settlement proceeds were paid directly to the defendant beneficiary, but the record suggested that the money may have been dissipated before the ERISA plan filed suit.

In each of these cases, the Court explained that whether a remedy is available under section 502(a)(3) “depends on (1) the basis for the plaintiffs claim and (2) the nature of the underlying remedies sought”; both must be equitable to proceed under section 502(a)(3). Montanile, 136 S.Ct. at 657 (brackets and quotation marks omitted). The inquiry looks to “standard treatises on equity, which establish the basic contours of what equitable relief was typically available in premerger equity courts.” Id. (internal quotation marks omitted).

Importantly, the Court made it clear that simply phrasing the request for relief in equitable terms—e.g., restitution, unjust enrichment, an equitable lien—is not dispositive. The remedy is properly regarded as equitable only if the plaintiff seeks the return of “specifically identified funds that remain in the defendant’s possession or ... traceable items that the defendant purchased with the funds (e.g., identifiable property like a car).” Id. at 658. A section 502(a)(3) suit wasn’t available in either Great-West or Montanile because the plaintiffs hadn’t pointed to specifically identifiable funds in the defendant’s possession to which an equitable lien could attach.

The trustee hasn’t done so here either, so he cannot proceed under section 502(a)(3) on any of the theories he styles as “restitutionary.” He can’t point to specifically identifiable funds in the insurers’ possession because the insurers never received any funds at all. They may have avoided what the trustee claims are their contractual obligations to the insureds and in that sense realized a monetary benefit. But no matter what the trustee calls his claim, he is seeking a recovery from the insurers’ general assets. His request for declaratory relief seeks an order requiring the insurers to reimburse the plan—in other words, he asks for money damages, the epitome of legal relief. That kind of suit is unavailable under section 502(a)(3). Great-West, 534 U.S. at 210, 122 S.Ct. 708 (“Almost invariably ... suits seeking (whether by judgment, injunction, or declaration) to compel the defendant. to pay a sum of money to the plaintiff are suits for ‘money damages,’ ... since they seek no more than compensation for loss resulting from the defendant’s breach of legal duty.”) (quotation marks omitted),

The trustee offers several arguments to avoid this conclusion, but all fail. First, he invokes the equitable roots of his various restitutionary theories. As we’ve noted, however, the Supreme Court has repeatedly held that even if the basis for a claim is equitable, the relief sought must be equitable as well and that requires identifying specific funds in the defendant’s possession, Montanile, 136 S.Ct. at 657. The Court has given us no indication that this requirement applies to some but not all of the three traditionally equitable theories by which a plaintiff may obtain restitution: equitable lien, constructive trust, and sub-rogation. See Restatement (Thikd) of Restitution and Unjust EnRichment § 56 cmt. a (Am. Law Inst. 2011). And the Restatement makes clear that all of these remedies “confer either rights of ownership or a security interest in specifically identifíablé property in the hands of the defendant.” Restatement (Thibd) of Restitution and Unjust Eneichment ch. 7, topic 2, intro, note (Am. Law Inst. 2011). Regardless of how the trustee characterizes his claims, the relief he seeks isn’t equitable in nature, and a suit under section 502(a)(3) is therefore unavailable.

Second, the trustee argues that allowing his suit is consistent with ERISA’s “underlying purpose[s]” of protecting plan assets and enforcing plan terms. For support he relies on the Supreme Court’s opinion in King v. Burwell, — U.S. -, 135 S.Ct. 2480, 192 L.Ed.2d 483 (2015). But the Court has heard this argument before- in the context of section -502(a)(3) suits and has consistently rejected it. Montanile, 136 S.Ct. at 661 (“[Vjague notions of a statute’s ‘basic purpose’ are ... inadequate to overcome the words of its text regarding the specific issue under consideration.” (quoting Mertens, 508 U.S. at 261, 113 S.Ct. 2063)).

Finally, the trustee relies on two cases from this court in which we permitted ERISA plans to litigate coordination-of-benefits disputes against other insurers: Winstead v. Indiana Insurance Co., 855 F.2d 430 (7th Cir. 1988), and Winstead v. J.C. Penney Co., 933 F.2d 576 (7th Cir. 1991). Both cases were decided before Mertens, the Supreme Court’s first foray into the question of appropriate' equitable relief under section 502(a)(3). These two early cases in our circuit cannot be reconciled with the Court’s consistent instructions in Mertens, Great-West, Serebojf, McCutchen, and Montanile.

In closing, we recognize the dilemma this outcome creates for the plan. An equitable-contribution suit under state law is probably foreclosed by ERISA’s broad preemption provision. See generally United of Omaha v. Bus. Men’s Assurance Co. of Am., 104 F.3d 1034 (8th Cir. 1997) (holding that ERISA preempts-a state common-law subrogation claim in a dispute between two insurance companies over which company was responsible to pay for certain benefits). If ERISA plans can’t bring section 502(a)(3) suits or state-law claims to obtain reimbursement from other insurers with overlapping coverage obligations, then they’re left with just one way to ensure that they don’t pay claims for which other insurers are primarily liable: refuse to provide coverage to beneficiaries who have other insurance and sue for a declaratory judgment that the other insurer is primarily liable. This approach leaves the ERISA beneficiary, “through- no fault of his own, ... considerably worse off for having two policies that coincidentally had conflicting language than he would be if he had only one.” Gerber Life Ins. Co., 771 F.3d at 159. .

The trustee asks us to resolve this regrettable dilemma in the plan’s favor. But that option is not open to us. It would directly contravene clear instructions from the Supreme Court on the scope of section 502(a)(3) and create a circuit split to boot; Accordingly, we now join our sister circuits and hold that the trustee’s suit against the insurers to recoup amounts it paid for the beneficiaries’ medical care seeks legal relief, not equitable relief, and as such is not authorized by section 502(a)(3).

AFFIRMED,

      . These suits also may be brought on equitable-subrogation or equitable-indemnification theories. For a discussion of the distinction between equitable contribution on the one hand and equitable subrogation or equitable indemnification on the other, see Home Insurance Co. v. Cincinnati Insurance Co., 213 Ill.2d 307, 290 Ill.Dec. 218, 821 N.E.2d 269 (Ill. 2004), and 15 Lee R. Russ & Thomas F. Segalla, Couch on Insurance § 217:5 (3d ed. 1999).

      . The Supreme Court has held that ripeness is a jurisdictional question. See, e.g., Metro. Wash. Airports Auth. v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 265 n.13, 111 S.Ct. 2298, 115 L.Ed.2d 236 (1991) ("[Ripeness] concerns our jurisdiction under Article III, so we'must-consider the question on our own initiative.”).

      . To be precise, in Montanile the lower courts had not had occasion to determine whether the defendant beneficiary had fully depleted the settlement fund on nontraceable assets. Applying its prior cases, the Court held that a recovery against a beneficiary’s general assets is legal rather than equitable relief, reversing the lower courts’ decisions to the contrary, but remanded to permit the district court to determine whether the beneficiary had dissipated the entire settlement fund or cómingled the fund with his general assets. Montanile v. Bd. of Trs. of the Nat'l Elevator Indus. Health. Benefit Plan, - U.S. -, 136 S.Ct. 651, 661-62, 193 L.Ed.2d 556 (2016).

      . But see Restatement (Third) of Restitution and Unjust Enrichment § 4 cmt. a (Am. Law Inst. 2011) (Some federal statutes “arguably necessitate[ ] an inquiry into the legal or equitable nature of the relief sought .... Resolution of such problems turns on issues ... that are beyond the reach of legal history and outside the scope of this Restatement.”); Restatement (Third) of Restitution and Unjust Enrichment ch. 7, topic 2, intro, note (Am. Law Inst. 2011) ("Lingering effects of [the law/equity distinction] on the remedies available under particular statutes or on the right to jury trial are outside the scope of this Restatement.”).


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Matthew ELDER, Defendant-Appellant.
    No. 15-2584
    United States Court of Appeals, Seventh Circuit.
    Argued September 9, 2016
    Decided October 25, 2016

      Kyle Matthew Sawa, Lauren Wheatley, Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Evansville, IN, Bob Wood, Brian L. Reitz, Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Indianapolis, IN, for Plaintiff-Appellee.
    Johanna M. Christiansen,. Thomas W. Patton, Attorneys, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Peoria, IL, for Defendant-Appellant.
    Before POSNER, MANION, and WILLIAMS, Circuit Judges.
   MANION, Circuit Judge.

Matthew Elder was convicted for conspiracy to distribute methamphetamine and sentenced to a mandatory term of life imprisonment. He now appeals his conviction and sentence. For the reasons that follow, we affirm Elder’s conviction but vacate his sentence and remand for resen-tencing.

I. Background

A. Trial and Conviction

In 2013 Matthew Elder (“Elder”) and seven codefendants, including his father Bill Elder (“Bill”), were charged in a superseding indictment with conspiring to traffic large quantities of methamphetamine from Arizona to southwest Indiana. Elder and Bill pleaded not guilty and went to trial, while the remaining codefendants all pleaded guilty.

At trial, Elder’s coconspirators testified in detail about his involvement in the conspiracy. Perhaps the most important testimony came from coconspirator Michael Curinga, who first met Elder in Arizona in the summer of 2012. Curinga began supplying Elder with methamphetamine for personal use, though it wasn’t long before Elder expressed an interest in buying “large quantities” of methamphetamine to transport to Indiana. To that end, Elder introduced Curinga to Bill around October 2012, and the three met at a restaurant a few days later to exchange drugs. The deal went off without a hitch. Elder gave Curin-ga a cooler with money inside. Curinga took the cooler to his supplier, replaced the money with methamphetamine, then returned to the restaurant and gave the cooler back to Bill and Elder. Curinga charged Bill and Elder $33,000 for the drugs.

Elder and Curinga continued to deal on very similar terms over the next several months. Each time, Elder gave Curinga a cooler packed with money; Curinga brought the cooler to his supplier, replaced the money with several pounds of methamphetamine, and then returned the cooler to Elder. On one occasion in December 2012, Curinga noticed that Elder’s payment for the drugs came up short. Elder insisted that the money was all there, and Curinga eventually decided to “eat the difference” because the deal was still profitable. But Curinga was not the only one concerned about Elder’s malfeasance; a few months later, Bill called Curinga and complained that Elder was “getting his hands in the money” and was bad for business. As a result, Bill and Curinga agreed to cut Elder out of the next delivery, which took place in February 2013.

The jury also heard from a coconspirator named Michael Clark, who testified that he purchased methamphetamine from Bill and Elder at a Phoenix hotel in December 2012. Clark arrived at the hotel with a bag of money, Bill and Elder counted the money, and Elder left with the money and returned a few hours later with methamphetamine. (Clark explained that he knew the substance brought by Elder was methamphetamine because he had been using that drug for the past twenty years and so was very familiar with it, and because the substance produced the same effect as methamphetamine when he tried it.) Bill and Elder' then distributed the methamphetamine among the three of them, and Clark transported his share of the drugs back to Indiana as usual.

.Further evidence against Elder came from coconspirators Lauri Cupp and Terry Ward, who were dating and lived together at Ward’s house in Indiana during the conspiracy. Ward used to travel to Phoenix with Bill to buy methamphetamine and then, bring it back to Ward’s house for furthér distribution among the conspirators. A portion of the drugs would go to Cupp, who used some for herself and sold the rest to her customers. On one particular drug run in December 2012, Bill and Ward took longer than usual. Cupp testified that when they returned, she heard them angrily complaining that their trip was delayed because Elder gave them only part of the methamphetamine that he owed them. Defense counsel objected to Cupp’s testimony as hearsay, but the court admitted- the testimony under the cocon-spirator exclusion to the hearsay rule. See Fed. R. Evid. 801(d)(2)(E).

Following trial, the jury found Elder guilty of conspiring to distribute 50 grams or more of methamphetamine and 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 841 and 846.

B. Sentencing

Before sentencing, the government filed an information under 21 U.S.C. § 851 indicating that Elder had two prior Arizona drug convictions: a 1999 conviction for possession of equipment or chemicals for the manufacture of dangerous drugs, and a 1997 conviction for possession of drug paraphernalia. The government argued that Elder’s two prior convictions were “felony drug offenses” under 21 U.S.C. § 841(b)(1)(A), which requires a defendant to be sentenced to life if he is convicted of a serious drug offense after having previously been convicted of two or more drug-related felonies; The district court reluctantly agreed, explaining that it believed a life sentence was overly harsh and unjust, but that it had no discretion to issue a lesser sentence under the statute. Based on its finding that Elder’s prior convictions qualified as felony drug offenses, the court sentenced Elder to a mandatory term of life imprisonment in July 2015. •

II. Discussion

Elder raises three arguments on appeal. First, he argues that the district court erred by allowing Cupp to testify about the conversation she overheard concerning his involvement in the conspiracy. Second, he argues, that the jury’s verdict must be overturned because it is not supported by sufficient evidence. Third, he argues that the district court erroneously imposed a mandatory term of life imprisonment. We address each argument in turn.

A. Statements of Coconspirators

Elder challenges the district court’s decision to admit Cupp’s testimony about the convérsation she overheard between Bill and Ward when they returned from Arizona in December 2012. In particular, he contends that the coconspirator exclusion does not apply because the conversation was not “in furtherance of the conspiracy.” See Fed: R. Evid. 801(d)(2)(E). We review the district court’s ruling for an abuse of discretion and its underlying factual findings for clear error. United States v. Johnson, 200 F.3d 529, 532 (7th Cir. 2000).

Federal Rule of Evidence 801 provides that a statement offered against a party is not hearsay if. the statement was “made by the party’s coconspirator during and in furtherance of the conspiracy.” Fed. R. Evid. 801(d)(2)(E). Statements can further the conspiracy in a number of ways. “Some examples include comments designed to assist in recruiting potential members, to inform other members about the progress of the conspiracy, to control damage to or detection of the conspiracy, to hide the criminal objectives of the conspiracy, or to instill confidence and prevent the desertion of other members.” Johnson, 200 F.3d at 533. A coconspirator’s statement may satisfy the “in furtherance” requirement even if the statement was not “exclusively, or even primarily, made to further the conspiracy.” United States v. Cruz-Rea, 626 F.3d 929, 937 (7th Cir. 2010) (internal marks omitted).

We see no error in the district court’s conclusion, that the challenged statements- in this case were made in furtherance of the conspiracy. Cupp testified that she heard Bill and Ward saying that Elder did not give them the agreed-upon amount of drugs to be distributed in Indiana as planned. Bill and Ward’s statements directly related to the conspiracy’s progress and were clearly part of the ordinary “information flow” among conspirators designed to “help each perform his role.” See United States v. Alviar, 573 F.3d 526, 545 (7th Cir. 2009) (internal marks omitted). The statements also worked to undermine confidence in Elder as a reliable drug source, and they alerted Cupp to a deficiency in her supply chain (recall that Ward got the drugs from Elder, while Cupp got her drugs from Ward) that resulted in an appreciable delay in business as well as an unanticipated reduction in supply. Far from mere “narrative declarations” of past events, Johnson, 200 F.3d at 533, the statements also betokened the conspiracy’s impending reorganization: shortly after complaining about Elder’s misconduct, Bill called Curinga to exclude Elder from future transactions because he was bad for business.

In- sum, the challenged statements were made between two conspirators, in the presence of a third conspirator, about a problem that arose during a recent conspiratorial transaction with a fourth conspirator, and that appears to have, prompted a decisive remedial change in the conspiracy’s structure. Under these circumstances, there was plainly a “ ‘reasonable basis’ ” to conclude that the statements furthered the conspiracy. See Cruz-Rea, 626 F.3d at 937. Accordingly, the district court did not abuse its discretion in admitting Cupp’s testimony under Rule 801(d)(2)(E).

B. Sufficiency of the Evidence

Elder next contends that the government presented, insufficient evidence to convict him of conspiracy. In considering the sufficiency of the evidence, •“[w]e view the evidence in the light most favorable to the government and will overturn a conviction only if the record contains no evidence from which a reasonable juror could have found the defendant guilty.” United States v. Longstreet, 567 F.3d 911, 918 (7th Cir. 2009); see also United States v. Jones, 222 F.3d 349, 352 (7th Cir. 2000) (“[A]s long as any rational jury could have returned a guilty verdict, the verdict must stand.”). When challenging a conviction for insufficiency of the evidence, the defendant bears a “heavy” burden that is “ ‘nearly insurmountable.’ ” United States v. Moses, 513 F.3d 727, 733 (7th Cir. 2008).

To prove a conspiracy charge, “the government must show both that a conspiracy existed and that the defendant knowingly agreed to join it.” United States v. Pagan, 196 F.3d 884, 889 (7th Cir. 1999). The essence of a conspiracy is “an agreement to commit an unlawful act.” United States v. Baker, 40 F.3d 154, 160 (7th Cir. 1994) (internal marks omitted).

Here, the government introduced ample evidence' establishing that Elder knowingly agreed with others to unlawfully distribute methamphetamine as charged in the superseding indictment. Curinga testified that he and Elder negotiated several high-volume deals to further the drug ring’s operations in Indiana, and that Elder successfully introduced him to Bill to expand the drug ring and increase supply. Additional testimony showed that, around December 2012, Elder supplied methamphetamine to coconspirators Clark, Bill, and Ward, who then delivered the drugs to Indiana according to plan: Viewed in the light most favorable to the government, the uncontroverted testimony of Elder’s coconspirators was more than sufficient to enable a rational jury to find Elder guilty of the charged conspiracy beyond a reasonable doubt.

Elder’s arguments to the contrary are easily disposed of. He first argues that the evidence was insufficient because it “came from almost entirely biased witnesses.” As we have said time and again, however, “[i]t is for the jury—not the court of appeals—to judge the credibility of witnesses, and attacks on witness credibility are insufficient to sustain a challenge to the sufficiency of the evidence.” United States v. Griffin, 84 F.3d 912, 927 (7th Cir. 1996); see also United States v. Curry, 79 F.3d 1489, 1497 (7th Cir. 1996) (noting that arguments challenging witness credibility are “wasted on an appellate court” because “questions of credibility are solely for the trier of fact”). Indeed, “a conviction for conspiracy may be supported by testimony that is ‘totally uncorroborated and comes from an admitted liar, convicted felon, large scale drug-dealing, paid government informant.’ ” United States v. Pulido, 69 F.3d 192, 206 (7th Cir. 1995). The testimony of Elder’s coconspirators supports the verdict, and we will not second-guess the jury’s assessment of their credibility. See United States v. Rollins, 544 F.3d 820, 835 (7th Cir. 2008).

Elder further argues that the evidence at trial was deficient because, when questioning Curinga on direct examination, the prosecution made a reference to “3.5 pounds” of methamphetamine in response to Curinga’s testimony that Elder asked him for “3.5 ounces.” Elder argues that this discrepancy cast “enormous doubt” over Curinga’s subsequent testimony that he regularly supplied Elder with multiple-pound shipments of methamphetamine. Once again, this argument fails at the outset because it was distinctly within the province of the jury to weigh the consistency of Curinga’s testimony and assess his overall credibility. See United States v. Muthana, 60 F.3d 1217, 1223 (7th Cir. 1995) (“Assessing a witnesses] credibility ‘is a matter inherently within the province of the jury.’ ”). Elder also exaggerates the supposed inconsistency in Curinga’s testimony. Notwithstanding his initial reference to “3.5 ounces,” Curinga consistently testified, without prompting from the government, that he and Elder negotiated the sale of “large quantities” of methamphetamine; that, on several occasions, he supplied Elder with shipments of methamphetamine weighing more than three pounds each; that the drugs were carefully packaged in “one pound bricks” before being placed in the cooler; and that a single deal was worth tens of thousands of dollars.

Finally, Elder challenges Clark’s testimony about the December 2012 drug exchange at the Phoenix hotel, arguing that Clark’s identification of the exchanged substance as methamphetamine was based on “pure speculation.” This argument borders on the frivolous. Clark testified that he had been using methamphetamine for the previous twenty years; that he routinely traveled to Arizona to buy methamphetamine from his coconspirators; and that, when he did so in December 2012, the substance he obtained from Elder looked like methamphetamine and produced the same effect as methamphetamine when he tried it. Clark’s testimony, viewed in the light most favorable to the prosecution, supports a reasonable inference that the substance supplied by Elder was methamphetamine. See United States v. Bradley, 165 F.3d 594, 596 (7th Cir. 1999) (noting that it is “common sense” that those who use, buy, and sell illegal drugs are the “real experts” on what those drugs are).

All in all, the government presented substantial evidence showing that Elder procured, possessed, trafficked, and distributed large amounts of methamphetamine, and that he did so in furtherance of the conspiracy charged in the superseding indictment. Elder’s conviction is supported by sufficient evidence, and the jury’s verdict must stand.

C. Mandatory Life Sentence

As discussed earlier, the district court in this case reluctantly imposed a mandatory life sentence after concluding that Elder’s prior two Arizona convictions (one in 1997 and one in 1999) qualified as “felony drug offenses” under 21 U.S.C. § 841. On appeal, Elder argues that his 1997 conviction was not a conviction for a felony drug offense because it was not punishable by more than one year imprisonment. Elder did not raise this argument at sentencing, so our review is for plain error only. See United States v. Gray, 332 F.3d 491, 492 (7th Cir. 2003); Fed. R. Crim. P. 52(b).

Under § 841’s “three strikes” provision, a person who conspires to distribute 50 grams or more of methamphetamine must be sentenced to life in prison if he has previously been convicted of two or more felony drug offenses. 21 U.S.C. § 841(b)(1)(A). For purposes of § 841, a prior offense is a “felony drug offense” only if, among other things, it is “punishable by imprisonment for more than one year.” 21 U.S.C. § 802 (44). Although Elder’s 1997 offense of conviction—possession of drug paraphernalia in violation of Ariz. Rev. Stat. Ann. § 13-3415(A)—is presently punishable by imprisonment for more than one year, the offense carried a one-year maximum sentence at the time of Elder’s conviction in 1997. Compare Ariz. Rev. Stat. Ann. § 13-702(D) (effective Jan. 1, 2009), with Ariz. Rev. Stat. Ann. § 13-701(C) (amended Jan. 1, 2009). As a consequence, Elder’s 1997 conviction was not a conviction for a felony drug offense within the meaning of § 841, and the district court’s finding to the contrary was plainly erroneous. The government agrees and correctly concedes that the mandatory life sentence was improper. We therefore vacate Elder’s sentence and remand for a complete resentencing in conformity with this opinion.

III. Conclusion

For the foregoing reasons, we affirm Elder’s conviction but vacate his sentence and remand for resentencing consistent with this opinion.

Affirmed in part; Vacated and Remanded in PART.

      . Curinga initially testified that Elder asked him for 3.5 ounces of methamphetamine, but he later clarified that the two exchanged numerous pounds of methamphetamine during the conspiracy.

      . Elder also challenges the district court’s finding that his 1999 Arizona conviction qualified as a felony drug offense. Because we conclude that Elder’s sentence must be vacated based solely on the district court’s erroneous finding regarding the 1997 conviction, we do not reach this additional argument. The parties are free to address the significance of the 1999 conviction on remand.


author: BAUER, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Oscar RASH, Defendant-Appellant.
    No. 16-1672
    United States Court of Appeals, Seventh Circuit.
    Argued October 5, 2016
    Decided October 27, 2016

      Matthew L. Jacobs, Jonathan H. Koe-nig, Benjamin Taibleson, Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.
    Daniel W. Stiller, Milwaukee, WI, Defendant-Appellant.
    Before BAUER, FLAUM, and KANNE, Circuit Judges.
   BAUER, Circuit Judge.

Oscar Rash, who was convicted of possessing a firearm as a felon, see 18 U.S.C. § 922(g)(1), challenges the district court’s decision to apply a two-level upward adjustment for obstruction of justice. At his trial Rash had conceded to possessing the gun, but the district court found at sentencing that he had also deceptively downplayed his involvement with the gun. Rash argues that, because he conceded possession, his false testimony about his connection to the gun was immaterial to his conviction. But because the district court reasonably concluded that Rash’s lie could have misled the jury to acquit him, the lie was material and the adjustment for obstruction was proper. Therefore we affirm.

I. BACKGROUND

In 2007, police caught Rash, a felon, with a gun..They caught him after they responded to a report of a man with a gun and encountered Rash. They then saw him take something, which turned out to be a gun, from his waistband and drop it. Rash was arrested, and during his interview with one of the officers he said that the gun belonged to his girlfriend, Monica. He explained that after he saw that she had left her gun in his house, he went to return it to her since he knew- that he. could not have a gun in his house.

Criminal proceedings followed. At trial Rash repeated what he had told the police officers—that he was merely returning the gun to Monica, the owner. But the government introduced video footage from a gun store showing that Rash had a deeper connection to the gun—he had twice accompanied Monica to the store to help purchase it. Rash denied any role in purchasing the gun; he testified that he “was just in the store with her,” and “just walked around and was looking.” At closing, Rash’s attorney urged the jury to acquit Rash in part because he “did not” purchase the gun.

At sentencing, the court applied a two-level upward adjustment for obstruction of justice, see U.S.S.G. § 3C1.1. The court found that the store’s videotape footage showed “clearly that [he was] engaged in assisting in the purchase of that gun” and that he was “not just a disinterested man in the store.” The court concluded that the statements Rash made denying “helping [his] girlfriend pick up the gun and that [he was] not paying attention to her and [was] just walking around” were “clearly false,” and therefore provided “a basis for points for obstructing in this casé.” The court noted, however, that the obstruction enhancement did “not essentially change” the Guidelines range since Rash was subject to a 15-year mandatory minimum sentence as an armed career criminal, see 18 U.S.C. § 924(e).

Rash’s sentence later was vacated under 28 U.S.C. § 2255 after Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), invalidated the part of the Armed Career Criminal Act that determined Rash’s sentence. During his resentencing hearing in 2016, Rash’s attorney argued against the proposed enhancement for obstruction of justice. When, as here, the enhancement is based on perjury, it has three elements: (1) “providing false testimony”; (2) “concerning a material matter”; (3) “with the willful intent to provide such false testimony.” United States v. Arambula, 238 F.3d 865, 868 (7th Cir. 2001). Without disputing the first and third elements, counsel contended only that Rash’s statements regarding his role in the gun store were not material because Rash had admitted at trial that he possessed a gun.

The district court disagreed and applied the enhancement. Initially it ruled that Rash’s testimony was material simply because it was sworn: “What a witness has to say under oath in a determination by—in a hearing where the finder of fact needs to assess the credibility of all the proof is material.” The government then argued that Rash’s testimony was material because it minimized his connection to the gun and therefore could have “encourage[d] the jury to nullify and not convict him of possession....” The court agreed with that logic as well. It then applied the two-level adjustment, producing a guideline range of 92 to 115 months. Without the enhancement, the guidelines would have called for a sentence between 77 and 96 months. See U.S.S.G. Ch. 5, Pt. A. The court imposed a mid-range sentence of 100 months.

II. DISCUSSION

We start with a brief word about mootness. Although Rash was released from prison on September 9, 2016, his appeal is not moot because he is currently serving a term of supervised release (a form of custody), and a resentencing can still provide him some relief by shortening that term. See United States v. Laguna, 693 F.3d 727, 729 (7th Cir. 2012); United States v. Garcia-Garcia, 633 F.3d 608, 612 (7th Cir. 2011); United States v. Larson, 417 F.3d 741, 747 (7th Cir. 2005). Consequently we proceed to the merits.

Rash argues on appeal that the district court erroneously ruled that his testimony was material and therefore improperly applied the upward adjustment for obstruction. Under § 3C1.1, testimony is material if it is information “that, if believed, would tend to influence or affect the issue under determination.” U.S.S.G. § 3C1.1, cmt. n.6. The parties focus on Rash’s testimony about his role in the gun store, and the government proposes two ways in which that testimony was material: First, it could have encouraged the jury to acquit through nullification. Second, it could have influenced the sentence. After considering both contentions, we agree with the first but not the second.

We begin with the nullification argument. Rash maintains that his false testimony was not material because, after he admitted to possessing the firearm, his lie about his role in its purchase was not “crucial to the question of guilt or innocence.” Arambula, 238 F.3d at 868. See United States v. Senn, 129 F.3d 886, 899 (7th Cir. 1997) (defendant’s admission that he accepted marijuana proved the offense; false testimony about what he did with it was immaterial, rendering the obstruction enhancement clear error), abrogated on other grounds by United States v. Vizcarra, 668 F.3d 516 (7th Cir. 2012); United States v. Parker, 25 F.3d 442, 448-449 (7th Cir. 1994) (vacating an obstruction enhancement for a defendant who admitted his guilt, but falsely stated that he stole $200 rather than $1252 from a bank); United States v. Stenson, 741 F.3d 827, 831 (7th Cir. 2014) (adjustment upheld in firearm possession because defendant falsely testified “that it was his cell phone, not a firearm, that the police officers saw in his possession when they arrived”); United States v. Saunders, 359 F.3d 874, 879 (7th Cir. 2004) (adjustment upheld because defendant lied about possessing a gun, “the central issue at his trial”); United States v. Sheikh, 367 F.3d 683, 687 (7th Cir. 2004) (upholding an adjustment because each defendant lied about knowingly redeeming illegally obtained food stamps, a matter that was “certainly crucial” to guilt).

But even if his false testimony was not material to whether he possessed the gun unlawfully, it was nonetheless material to his conviction for that crime. When Rash lied that he had no role in buying the gun, he sanitized his connection to it and bolstered his exculpatory claim that he possessed the gun only to return it to its owner after he found it in his house. That spin on his conduct might have swayed the jury to decide that, despite his admitted unlawful possession, it should disregard the law and acquit him. A jury has the unreviewable power to nullify the law by acquitting a defendant even when the facts and law compel conviction. See United States v. Sorich, 709 F.3d 670, 678 (7th Cir. 2013); United States v. Kerley, 838 F.2d 932, 938 (7th Cir. 1988). Jury nullification is a material risk when, as in this case, the jury receives information that invites it to ignore the law. See Laguna, 693 F.3d at 731. For that reason, the government may punish advocacy of jury nullification as obstruction of justice. See Braun v. Baldwin, 346 F.3d 761, 763 (7th Cir. 2003). Rash’s lie that he played no role in the gun’s purchase might not have risked influencing the jury quite as much as the government fears. But because Rash’s (false) testimony potentially invited the jury to ignore the law, his testimony created a material risk of nullification. It therefore warranted the enhancement for obstruction of justice.

We note that the district court initially made an incorrect, but ultimately harmless, overstatement when it suggested that material testimony includes anything a witness says under oath. Not all sworn testimony, even if false, is material. See, e.g., Senn, 129 F.3d at 899; Parker, 25 F.3d at 448-449. But the court later adopted the government’s more limited rationale for the obstruction enhancement: Rash’s lie put his illegal behavior in a favorable light, and that lie, “if believed, would tend to influence or affect,” U.S.S.G. § 3C1.1, cmt. n.6, the jury to use its nullification power. So the district court’s earlier misstatement was harmless. See United States v. Hill, 645 F.3d 900, 906 (7th Cir. 2011).

For completeness, we explain why Rash’s false testimony was not material to his sentencing. False testimony is material if it could affect a defendant’s sentence. See United States v. Sapoznik, 161 F.3d 1117, 1121 (7th Cir. 1998) (holding that a defendant obstructs justice not only when he makes it more difficult for the government convict him, but “also when he makes it more difficult for the court to give him the sentence that is his just desert”). But Rash’s false testimony deflecting his role in purchasing the gun did not have a realistic possibility of affecting his sentence. Once he was convicted of unlawful possession of a firearm in 2008, he necessarily faced a mandatory minimum of 15 years under 18 U.S.C. § 924(e) as an armed career criminal. The prospect that § 924(e) was unconstitutional, rendering his testimony at trial material to sentencing, was too remote—the Supreme Court would not decide Johnson for another seven years.

Finally we observe that in imposing its obstruction adjustment, the district court did not find that Rash specifically intended to obstruct justice through his lie, a finding that this court has previously required. See United States v. Gage, 183 F.3d 711, 717 (7th Cir. 1999) (remanding a case for resentencing when the district court’s obstruction enhancement did not include a specific “factual finding that [the defendant] told the lie intending to obstruct justice”). But because Rash limited his argument on appeal to the materiality of this testimony, we have addressed only that one contested issue.

III. CONCLUSION

Because Rash’s false testimony was material to the risk of jury nullification for the purposes of a § 3C1.1 obstruction adjustment, we affirm.


text:
    Jacquelyn M. CARLSON, Plaintiff-Appellant, v. CHRISTIAN BROTHERS SERVICES, Defendant-Appellee.
    No. 15-3807
    United States Court of Appeals, Seventh Circuit.
    Argued September 28, 2016
    Decided October 27, 2016
    Luanne M. Galovich, Barry A. Gomberg, Gomberg & Associates, Chicago, IL, for Plaintiff-Appellant.

      Kathryn Montgomery Moran, Melanie I. Stewart, Jackson Lewis P.C., Chicago, IL, for Defendant-Appellee.
    Philip Matthew Kovnat, Equal Employment Opportunity Commission, Washington, DC, for Equal Employment Opportunity Commission, Amicus Curiae.
    Before POSNER, FLAUM, and MANION, Circuit Judges.
   POSNER, Circuit Judge.

The plaintiff filed this suit against her former employer, defendant Christian Brothers Services (the parties refer to it as CBS), charging disability discrimination. CBS is a religious organization headquartered near Chicago that provides health and a number of other services to the Roman Catholic community in Illinois, other parts of the United States, and Canada. See Christian Brothers Services, www.cbservices.org (visited Oct. 26, 2016, as were the other websites cited in this opinion). The plaintiff, a senior customer service representative of the defendant, was in an automobile accident in March 2011 as a result of which she had to use a cane, and limped, and she was fired on February 1, 2012, because (she contends) of a perceived disability (mobility impairment) caused by the accident that had required her to take time off from work and to use her health insurance to pay the costs she’d incurred as a result of the accident. She argues that in these circumstances her employer’s firing her violated the Americans with Disabilities Act.

The Act requires a complainant to submit a charge of discrimination to the Equal Employment Opportunity Commission (EEOC) within a-statutory deadline—here 300 days from the alleged incident of discrimination—and to receive a right to sue notice from the EEOC, before suing. 42 U.S.C. §§ 2000e-5(e)(l), (f)(1). The district judge granted summary judgment for CBS on the ground that the plaintiff had failed to submit a charge in time and therefore could not maintain her suit.

Six months after being fired she filed with the Illinois Department of Human Rights (IDHR) (which administers the Illinois Human Rights Act, 775 ILCS 5/1 et seq., which like the ADA prohibits discrimination on grounds of disability) a “Complainant Information Sheet” (the parties call it a “CIS”), which asks the complainant for basic information about his or her claim. On the basis of the CIS IDHR decides whether it has jurisdiction and if it does it copies the information in the CIS on to an official charge form, which the filer can sign and submit. The CIS also asks the complainant to check a box if the employer - has more than 15 employees in Illinois, and to check another box if the employer has more than 15 employees in the United States; Carlson checked both boxes.

IDHR has a worksharing agreement with EEOC, whéreby a charge filed with IDHR is automatically cross-filed with EEOC. But a complaint of discrimination—the document the plaintiff filed with IDHR—is not a charge. A charge is' the administrative equivalent of a complaint filed in court; a CIS is not unless it asks for relief and thus functions as a charge. Federal Express Corp. v. Holowecki, 552 U.S. 389, 402, 128 S.Ct. 1147, 170 L.Ed.2d 10 (2008). Without such a request the CIS is just a pre-charge screening form, which does not prompt IDHR to notify the employer, launch an investigation, or sponsor mediation between the parties—filing a charge form does. IDHR, “Charge Process,” www.illinois.gov/dhr/FilingaCharge/ Pages/Intake.aspx; IDHR, “Path of a Charge,” www.illinois.gov/dhr/Filinga Charge/Pages/Path_of_aN)harge.aspx, But the CIS filer may believe that the filing will nudge the person or entity complained of to settle with the complainant on terms favorable to the latter, thus sparing the complainant the cost and time and anxiety of a contested proceeding.

There was no pre-charge settlement with CBS, however, or so far as appears any negotiation. Carlson’s lawyer did contact IDHR in 2012 about the possibility of mediation, but nothing came of it. Instead on March 5, 2013, the plaintiff filed a Charge of Discrimination with IDHR, copy to EEOC. But that was 398 days after she’d been fired, and the deadline to file a charge with the EEOC when the complainant had initially instituted a proceeding with a state or local agency is 300 days. 42 U.S.C. § 2000e-5(e)(l). Carlson thus had failed to exhaust her administrative remedies—a prerequisite to suit—and so the district judge dismissed her suit as untimely.

She had filed the CIS within the deadline, however, and argues that it was a charge and therefore timely. And although her CIS states “THIS IS NOT A CHARGE,” the EEOC deems a charge sufficient when it is a “written statement sufficiently precise to identify the parties, and to describe generally the action or practice complained of,” 29 C.F.R. § 1601.12(b), and Carlson’s CIS meets those requirements. It identifies the parties—Carlson and Christian Brothers Services—and states that she was fired for “us[ing] a cane at work,” “walk[ing] with a limp,” and “taking time off from work and for using [her] health insurance to pay for the severe car accident [she had experienced] ... in March 2011.” But the CIS did not request remedial action, and so was not a charge. Federal Express Corp. v. Holowecki, supra, 552 U.S. at 402, 128 S.Ct. 1147.

The plaintiff contends that what nevertheless made the CIS a charge was the statement in it that it “authorized EEOC to look into the discrimination alleged.” But that is a far cry from a “charge” as the word is ordinarily understood. Although the CIS form does say that IDHR will cross-file the complainant’s “charge of discrimination” with EEOC, it also says “THIS IS NOT A CHARGE,” followed immediately by the statement that “if IDHR accepts your claim, we will send you a charge form for signature.” And while it’s true that 29 C.F.R. § 1601.12(b) states that “a charge may be amended to cure technical defects or omissions, including failure to verify the charge, or to clarify and amplify allegations made therein” and that “such amendments ... will relate back to the date the charge was -first received,” her CIS contained more than a technical defect if conceived of as a charge because it requested no relief and the statement on the form that we quoted above—“if IDHR accepts your claim, we will send you a charge form for signature”—makes clear that the claim was merely a prelude to a charge, and not the charge itself; and a prelude to what turned out to be nothing..

Despite all this, the EEOC has submitted an amicus curiae brief in which it argues that the plaintiffs CIS was the equivalent of a charge—thus ignoring what the Supreme Court said in Federal Express Corp. v. Holowecki, supra, 552 U.S. at 402, 128 S.Ct. 1147—that a charge must request relief, and the plaintiffs CIS did not. The EEOC argues that by filing the CIS Carlson consented to the disclosure of her personal information to her employer, which shows she wanted remedial action. But the CIS says “if IDHR takes a charge based on the information provided, I consent for IDHR to disclose my identity and personal information” (emphasis added). It’s true that eventually the plaintiff filed a charge, but it was Untimely. And she can’t plead ignorance of legal technicalities, because she was represented by counsel throughout.

The decision of the district court must therefore be, and it is,

Affirmed.


text:
    Chance T. KELHAM, Plaintiff-Appellant, v. CSX TRANSPORTATION, INC., Defendant-Appellee.
    No. 16-1544
    United States Court of Appeals, Seventh Circuit.
    Argued September 22, 2016
    Decided October 27, 2016

      Steven P, Garmisa, James Louis Farina, Attorneys, Hoey & Farina, Chicago, IL, for Plaintiff-Appellant.
    Sarah N. Dimmich, Attorney, Stuart & Branigin LLP, Lafayette, IN, Evan M. Tager, Attorney, Mayer Brown LLP, Washington, DC, for Defendant-Appellee.
    Before BAUER, POSNER, and MANI ON, Circuit Judges.
   POSNER, Circuit Judge.

The plaintiff, Chance Kelham, a railroad engineer, sued the railroad that employed him, accusing it of having negligently caused him to be injured, for which he seeks compensation under the Federal Employers’ Liability Act, 45 U.S.C. §§ 51 et seq. The case was tried to a jury, which exonerated the railroad, precipitating this appeal.

On the day of the accident that Kelham claims caused his injury, he was driving a mile-long freight train comprised of two locomotives and 69 empty cars. Ordered to halt the train briefly on a parallel track to enable a train with a higher priority to pass it, Kelham duly halted his train. Unfortunately another train, which was also supposed to wait on the parallel track, failed to stop at a red stop signal and collided with Kelham’s train from behind, Because of the length of his train and the weight of its locomotive (212 tons), the collision caused the locomotive to lurch forward slightly, A mechanical engineer testifying for the railroad compared what a forward-facing video camera attached to the front of Kelham’s locomotive showed to what was shown by a video camera attached to another locomotive of the same make and model. That locomotive was placed in the same location on the tracks as the locomotive of Kelham’s train when it had begun- its lurch, and was then moved slowly forward so that the video from its camera could be compared with the video from the camera attached to the front of Kelham’s locomotive. The comparison indicated that the lurch forward could not have exceeded seven or eight inches, or lasted more than a third of a second— numbers that the engineer testified indicated that the train had accelerated as a result of the collision at an average of 13.5 feet per second squared.

Kelham complains that the engineer compared the two videos by eye rather than by mathematical calculations, didn’t measure the height of the camera on the comparison locomotive, and didn’t account for the “bounce and shudder” movement of the train. But the trial judge correctly ruled that these objections could be adequately explored on cross-examination.

Kelham’s- claim that the locomotive “bounced” vertically is implausible given the locomotive’s weight and the slightness of the lurch, and while he points ,to testimony from Knipp, the other conductor in the cab at the time of the accident, that the locomotive “bounced back and forth,” that isn’t the same as bouncing up and down. Kelham also claims that the “bounce and shudder”- are visible in the video of the accident, but CSX’s expert, who watched the video, disagreed, and the jurors were shown the video at trial and could decide for themselves. The jury rejected Kelham’s challenges to the railroad’s testimony, awarding judgment to the railroad.

The railroad concedes that the accident was caused by the negligence of its employees—the crew of the second train who ran the red light; the issue is whether the lurch resulting from the impact of the second train when it collided with Kel-ham’s train caused the injuries of which he complains. He testified that when the lurch occurred he’d just risen from his seat in the locomotive cab and begun to walk down the three stairs to the locomotive’s bathroom. The stairwell faced forward, so someone walking down the stairs would be facing the front of the train. Kelham claims that as he began to walk down, the lurch from the impact caused him to fall forward—almost indeed to somersault— down the stairs, causing a serious injury to his back which aggravated a condition that he had called “spondylitic spondylolisthe-sis”—the forward slippage of a vertebra— which had been asymptomatic before the accident but afterward required surgery.

A biomechanical engineer testified for the railroad that the forward lurch of the locomotive should have pushed Kelham backward rather than forward, since he was facing the front of the train at the time of the accident. If you’re sitting in the back seat of a' taxi stopped for a traffic light, then when the light changes and the cab surges ahead you’ll feel yourself pushed against the back of your seat, while if the taxi was moving and then slowed or stopped you would feel yourself pushed forward, toward the divider between the front and rear seats. The engineer further testified that if the lurch had pushed Kel-ham backward without causing-him to hit the back wall of the locomotive cab, it would have been too weak to injure him. In addition the train conductor sitting next to Kelham in the locomotive cab did not see him fall when the locomotive lurched. And for days after the accident he told no one that he’d fallen, even though he spent a good deal of that time with coworkers, supervisors, and medical personnel. Nor had he any bruises or any other visible injuries from the fall, even though he testified that at the end of the somersault his back and neck were against a bulkhead door and his feet were over his head. He argued that the biomechanical engineer had ignored the “bounce and shudder” and assumed he’d been positioned upright at the time of the accident, while he claims that he-was learning forward, that the studies cited by the engineer of how people who are standing on a platform react when the platform moves don’t apply to someone who is walking down stairs, as Kelham claims he was, and that the engineer did not cite studies on the aggravation of spon-dylitic spondylolisthesis- specifically—but again the trial judge correctly ruled that Kelham’s objections could be explored on cross-examination, and the jury didn’t have to believe him.

There is no question that’ Kelham has serious back pain, but the railroad presented evidence that' the pain preexisted’ the forward lurch of his train. Indeed he’d begun complaining of back pain in 2007, four and a half years before the collision, and the pain’had worsened over time. An MRI on October 5, 2009 revealed a herniated disc and a bulging disc, along with the spondylitic spondylolisthesis. On the recommendation of an orthopedic surgeon he was given a “nerve root block” (a strong anesthetic) a week later and in the following months received epidural steroid injections from a pain management specialist. A few weeks after the nerve root block he complained of pain and obtained prescriptions for morphine and Vicodin—opioid pain medications—and had continued to receive and fill prescriptions for the drugs up until the time of the accident, including five times in the five months immediately preceding it.

His back pain persisted after the accident, eventually leading him to have surgery; we say “persisted” because by his own admission it was similar to the pain that he had experienced and taken opioids to alleviate before the accident. Indeed he told medical staff—repeatedly—that he was seeking treatment for symptoms that he’d been experiencing for years. And indeed the surgery he had was for the same back pain for which he’d taken opioids before the accident. His post-accident surgeon conceded in a deposition that “surgery was an option for [Kelham]” before the accident, and that he would defer to CSX’s expert on whether the lurch could have caused Kelham’s post-accident symptoms. And Kelham’s pre-accident doctor conceded in a deposition that the spondylitic spondylolisthesis, which Kelham claims became symptomatic only after the accident, could have been responsible for some of his pre-accident symptoms. Indeed it would be a miracle had those symptoms vanished right before the lurch (they couldn’t have vanished a significant time before it as otherwise he would have stopped taking the opioids, which are dangerous medicines), only to recur—the identical symptoms—as a consequence of the lurch. And the trial judge correctly rejected Kelham’s objections to admitting the evidence about his history of back problems and the unfavorable statements from the depositions of his pre- and post-accident doctors.

After the surgery he was advised to undergo physical therapy, which his medical records indicate that he did but only intermittently, and though he has only modest functional limitations, which would not prevent him from working in some capacity for a railroad, he has declined to seek reemployment in the railroad industry. It was not unreasonable for a jury to find that Kelham had fabricated the claim that he was injured by the lurch, as unless the railroad bought his story it would not be required by the Federal Employers’ Liability Act to compensate Kel-ham for the cost of the surgery that he needed to repair the consequences of pre-accident ailments for which the railroad was not responsible. The jury was entitled to conclude that the negligence of the railroad that resulted in the collision and ensuing lurch had no causal relation to his injuries—that, to repeat, the injuries were the product of ailments that preceded the lurch.

Affirmed.


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Charles HANEY, Defendant-Appellant.
    No. 16-1513
    United States Court of Appeals, Seventh Circuit.
    Argued October 5, 2016
    Decided October 27, 2016

      Jason M. Bohm, OFFICE OF THE UNITED STATES ATTORNEY, Urbana, IL, for Plaintiff-Appellee.
    Colleen McNichols Ramais, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Urbana, IL, for Defendant-Appellant.
    Before BAUER, FLAUM, and KANNE, Circuit Judges.
   PER CURIAM.

Charles Haney pled guilty to possessing a gun as a felon. See 18 U.S.C. § 922(g)(1). The district court found that Haney had at least three prior convictions that qualified as “violent felonies” under the Armed Career Criminal Act and sentenced him to the mandatory minimum of fifteen years’ imprisonment. See id. § 924(e)(1). On appeal Haney argues that, in light of recent decisions by this court and the Supreme Court, his prior convictions for burglary in Illinois are not appropriate predicates under the ACCA. We agree, vacate the district court’s judgment, and remand for re-sentencing.

Police in Illinois discovered a gun in Haney’s van during a routine traffic stop. Haney was a convicted felon at the time, so he was charged with and pled guilty to a violation of 18 U.S.C. § 922(g)(1).

A probation officer prepared a presen-tence investigation report and recommended that Haney be sentenced as an armed career criminal. To qualify for that status, a defendant must have prior convictions for violent felonies committed on three different occasions. See 18 U.S.C. § 924(e)(1). The statute defines a violent felony as any crime punishable by more than a year in prison that “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, [or] involves use of explosives.” Id. § 924(e)(2)(B). The presentence report identified three predicate convictions: (1) burglary of an Illinois store in 1975 in violation of 38 ILCS § 19-1 (1978) ; (2) armed bank robbery in the Northern District of Illinois in 1977; and (3) aggravated assault in Pennsylvania in 1990. The report also listed that Haney had an additional conviction for burglary in Illinois in 1972 and two additional convictions for aggravated assault in Pennsylvania in 1990. But the report did not cite those additional convictions as potential predicates.

Haney argued that his convictions for burglary could not serve as predicates under- the ACCA, citing three Supreme Court cases: Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), and Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). In Taylor, the Court explained that “burglary” in § 924(e) (2) (B) (ii) refers to burglary in the “generic sense,” which “contains at least the following elements: an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” 495 U.S. at 598, 110 S.Ct. 2143. In Descamps, the Court concluded that a California burglary statute could not serve as a predicate offense under the ACCA because the statute was broader than generic burglary in that it did not require an unlawful breaking and entering, as most burglary laws do; 133 S.Ct. at 2285-86. And in Johnson, the Court declared unconstitutionally vague the ACCA’s “residual clause,” i.e., a part of § 924(e)(2)(B)(ii) that defined violent felonies as offenses involving “conduct that presents a serious potential risk of physical injury to another.” 135 S.Ct. at 2563. In light of these precedents, Haney argued that his convictions for burglary are not violent felonies because (1) the relevant statute does not have as an element a use or threat of physical force, as required under § 924(e)(2)(B)(i); (2) the statute does not have as an element an unlawful breaking and entering as required to constitute “burglary” under § 924(e)(2)(B)(ii); and (3) after Johnson, a conviction is not a violent crime merely because it presents a “serious potential risk of physical injury to another,” § 924(e)(2)(B)(ii). Haney did not challenge the report’s conclusion that his convictions for armed bank robbery and aggravated assault were violent felonies.

The district court overruled Haney’s objection to his designation as an armed career criminal, noting that we already had decided that a district court need not rely on the ACCA’s problematic residual clause to count residential burglary in Illinois as a violent felony, see Dawkins v. United States, 809 F.3d 953, 954-56 (7th Cir. 2016) (per curiam) (denying application to file successive petition under 28 U.S.C. § 2255). The dissent in Dawkins, however, expressed concern that Johnson and Des-camps may have undermined our decisions interpreting Taylor. 809 F.3d at 956-58 (Ripple, J., dissenting). Although the district court agreed with the dissent—opining that “under Descamps, a conviction for burglary in Illinois should not qualify as a violent felony for purposes of the ACCA”—the court concluded that it was bound by the majority’s decision in Daw-kins. The court therefore sentenced Haney as an armed career criminal and imposed the mandatory minimum sentence of fifteen years’ imprisonment.

On appeal, the parties now agree that, given recent developments in the law, Haney’s burglary convictions cannot count as predicate convictions under the ACCA. They come to this conclusion, however, for reasons different than those argued below. Now, the parties focus on the 1973 burglary statute’s “locational element[s].” Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 2250, 195 L.Ed.2d 604 (2016). In Mathis the Supreme Court declared that burglary in Iowa does not qualify as a predicate violent felony offense under the ACCA because it is broader than the “generic” offense of burglary listed in § 924(e)(2)(B)(ii)—generic burglary requires unlawful entry into a building or other structure, whereas the Iowa burglary statute also includes entries into vehicles. 136 S.Ct. at 2250-51, 2257 (2016). And in United States v. Edwards this court, applying Mathis, . concluded that Wisconsin’s burglary statute also does not constitute a crime of violence under the Sentencing Guidelines for similar reasons; Nos. 15-2552, 836 F.3d 831, 837, 2016 WL 4698952, at *4-6 (7th Cir. Sept. 8, 2016) (finding Wisconsin’s burglary statute— proscribing burglary of locations such as “building[s] or dwelling[s] ... enclosed railroad ear[s] ... [and] enclosed portions] of any ship or vessel”—“cover[s] a greater swath of conduct” than the éle-ments of the Guidelines offense (citing Mathis, 136 S.Ct. at 2251)). The Illinois burglary statute at the time of Haney’s 1975 conviction, the parties agree, similarly included locations other than a “building or other structure,” falling outside the “generic” offense as defined by Taylor.

We agree with the parties that Haney’s Illinois burglary convictions are not violent felonies under the ACCA. When Haney was twice convicted of burglary in the early 1970s, the relevant statute applied not only to. buildings but also , to vehicles, such as “housetrailer[s], watercraft, aircraft, motor vehicle[s] ... [and] railroad cartel.” 38 ILCS § 19-1 (1971); id § 19-1 (1973); id. § 19-1 (1975); see also United States v. Hope, 906 F.2d 254, 262 n.5 (7th Cir. 1990) (citing 38 ILCS § 19-1 (1975)). So, like the Iowa statute at issue in Mathis, Haney’s statute of conviction is broader than generic burglary. See Mathis, 136 S.Ct. at 2250-51. And the locations described in the older versions of the statute appear to represent “multiple means of fulfilling its locational element”—unlike the contemporary burglary statute, ’ 720 ILCS 5/19-1, which imposes different penalties depending on the location in which the burglary occurs, constituting separate elements that could render the statute divisible and subject to the modified-categorical approach. See Mathis, 136 S.Ct. at 2250. Thus, neither of Haney’s burglary convictions are appropriate predicates under the ACCA. See Edwards, 836 F.3d at 838-39, 2016 WL 4698962, at *6; see also United States v. Thorne, No. 15-1249, 837 F.3d 888, 888-89, 2016 WL 4896375, at *1 (8th Cir. Sept. 15, 2016) (vacating sentence in light of Mathis .where defendant was convicted under Florida burglary statute); United States v. White, No. 15-4096, 836 F.3d 437, 444-47, 2016 WL 4717943, at *6-8 (4th Cir. Sept. 9, 2016) (same with West Virginia statute).

The government maintains, however, that Haney is an armed career criminal because of his prior aggravated-assault convictions. Haney was thrice convicted under a Pennsylvania statute that provides that a defendant commits aggravated assault if he “attempts to cause serious bodily injury' to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life.” 18 Pa. Cons. Stat. § 2702(a)(1) (1990). Haney argues that the convictions do not satisfy § 924(e)'(2)(B)(i) because the statute does not require an intentional use or threat of force.

We need not decide whether aggravated assault from Pennsylvania is a violent felony because a remand for re-sentencing is required either way. Even assuming that Haney’s convictions for aggravated assault are violent felonies, Haney would still be one predicate short of being an armed career criminal if, as Haney argues, all three of his assaults occurred on the same “occasion.” See 18 U.S.C. § 924(e)(1). And that issue was never addressed at sentencing.

The government bears the burden of proving by a preponderance of the evidence that the three convictions were “committed on occasions different from one another.” See Kirkland v. United States, 687 F.3d 878, 895 (7th Cir. 2012) (quoting 18 U.S.C § 924(e)(1)). “[CJrimes that occur simultaneously will be deemed to have occurred on a single occasion,” see United States v. Elliott, 703 F.3d 378, 383 (7th Cir. 2012), and “the evidentiary restrictions set forth in Shepard v. United States apply to the ‘different occasion’ inquiry.” Kirkland, 687 F.3d at 883 (citing Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)). During sentencing the parties focused their attention on the burglary convictions, so the government did not argue—much less submit Shepard-approved documents to establish—that Haney committed his three aggravated assaults on different occasions. We granted Haney permission to supplement the record on appeal with the infor-mations and verdict forms for the three aggravated-assault cases. But all these documents reveal about the offenses is that Haney committed the crimes of aggravated assault and recklessly endangering another person against three different individuals in Armstrong County, Pennsylvania on or about April 29, 1988. The documents say nothing at all about how ’the crimes were committed.

Haney did not object to the presentence report’s description of his aggravated assaults, so we may consider the presentence report in determining whether Haney’s three assaults occurred on different occasions. See United States v. Aviles-Solarza no, 623 F.3d 470, 474-75 (7th Cir. 2010). But that document does not illuminate much either—for each conviction the report merely repeats that on April 29,1988, Haney shot a different victim “in the abdomen [and in one case also the left wrist] with a .357 caliber revolver while in Don and Jacks Lounge, Ford City, Pennsylvania.”

Given this scant record, the government has fallen far short of its burden of proving, by a preponderance of the evidence, that the aggravated assaults did, in fact, occur on separate occasions, as the ACCA requires. See Kirkland, 687 F.3d at 895. As such, we VACATE Haney’s sentence and REMAND for the district court to determine in the first instance whether (1) aggravated assault in Pennsylvania is a violent felony, and (2) whether Haney committed the three assaults simultaneously or on different occasions.

      . Now 720 ILCS 5/19-1 (2013).

      . We do not address recent case law's effect on Dawkins. Dawkins concluded Illinois’s Residential Burglary statute, under 720 ILCS 5/19-3, comported with Taylor's "generic offense” definition requirement. 809 F.3d at 954-56. Here, our ruling is limited to Illinois’s Burglary statutes as they existed in the 1970s, 38 ILCS § 19-1 (1971) and 38 ILCS § 19-1 (1973). The current Residential Bur- • glary statute does not include in its definition locations that fall outside of Taylors scope. The former Burglary statutes did, disqualifying them as ACCA'predicate offenses post-Mathis.