author: POSNER, Circuit Judge.

text:
    Douglas A. BIRD, Plaintiff-Appellant, v. Nancy A. BERRYHILL, Acting Commissioner of Social Security, Defendant-Appellee.
    No. 16-2000
    United States Court of Appeals, Seventh Circuit.
    Submitted February 2, 2017
    Decided February 10, 2017
    Douglas A. Bird, Pro Se.
    Brian J. Alesia, Attorney, Social Security Administration, Office of the General Counsel, Region V, Chicago, IL, Kathryn E. Olivier, Attorney, Office of the United States Attorney, Indianapolis, IN, for Defendant-Appellee.
    Before WOOD, Chief Judge, and POSNER and KANNE, Circuit Judges.
   POSNER, Circuit Judge.

The Social Security Administration denied Douglas Bird’s application for disability insurance benefits. After he sought judicial review, 42 U.S.C. § 405(g), the Commissioner agreed with him that the agency’s adverse decision should be set aside and moved that the matter be remanded for further proceedings before an administrative law judge. But that proposal did not satisfy Bird, who wanted the district court to bypass further proceedings before an ALJ and instead simply direct the agency to award him benefits. The district court refused, precipitating this appeal.

Bird claims that since 2006 he has been unable to engage in gainful work because of migraine headaches, posttraumatic stress syndrome, tendonitis, and lower-back pain. In 2005, while serving in the Army National Guard, he injured a tendon in his right shoulder and was operated on in 2006. He reported to Veterans Affairs doctors that he suffered hearing loss, migraines, and stiffness and pain in his hands, back and right shoulder, as well as anxiety, weakness in gripping objects, and ringing in his ears. The medical records include contradictory opinions from treating physicians — opinions clearing him to work and opinions pronouncing him unemployable. The Department of Veterans Affairs gave Bird a 70% service-connected disability rating but pays him at the 100% rate because they found him unemployable. But the administrative record does not indicate what medical evidence the VA relied on.

At a hearing before an ALJ, Bird discussed the VA’s disability finding and testified that his back pain and migraines are severe and prevent him from working. His' back pain, he said, had worsened after he injured himself cutting up fallen trees in his yard in 2012. And he added that about every other week a migraine does not respond to treatment, forcing him to lie down for 12 to 24 hours, and that his tinnitus and anxiety (related in part to his posttraumatic stress disorder) would cause problems in a work environment. A vocational expert acknowledged that Bird is unemployable if severe migraines would cause him to be unavailable an average of three days each month. On the other hand, a nonexamining state-agency physician reviewed Bird’s medical records and testified that his impairments are not disabling. The ALJ agreed with that assessment, reasoning that Bird was “not entirely credible” and assigning no weight at all to his VA disability rating. This ruling became the final decision of the Commissioner when the Appeals Council denied review. See Varga v. Colvin, 794 F.3d 809, 813 (7th Cir. 2015).

In the district court Bird argued that the ALJ had erred in discrediting his evidence and disregarding the VA’s disability determination. The Commissioner asked for a remand to allow the agency to consider Bird’s VA disability after expanding the administrative record to include the medical evidence that the VA had relied on. The court granted the Commissioner’s motion and rejected Bird’s request to order immediate benefits since, the court reasoned, the medical evidence was not so one-sided as to compel a conclusion that Bird is disabled. See Allord v. Astrue, 631 F.3d 411, 415-16 (7th Cir. 2011).

In his brief on appeal challenging the district court’s decision to remand his case for further proceedings rather than ordering SSA to give him the benefits he is seeking, Bird focuses on alleged errors committed by the ALJ. But the Commissioner did not defend the ALJ’s decision, which anyway has been vacated. Bird argues that the VA’s conclusion that he is 70% disabled and therefore unemployable conclusively establishes that he is disabled. He also asserts that results from a back x-ray and MRI, which he appended to his appellate brief but were not available to the ALJ, establish that he has spinal fractures and bulging discs that exclude him from gainful employment. See 20 C.F.R. pt. 404, subpt. P, Appendix 1, Listing 1.04 (disorders of the spine).

The VA’s finding that Bird is 70% disabled and unemployable does not establish that he is entitled to SSA benefits. See Allord v. Barnhart, 455 F.3d 818, 820 (7th Cir. 2006). The VA’s disability percentage is based on the average impairment in earning capacity caused by service-connected disabilities, 38 C.F.R. §§ 4.10, 4.15, but the claimant can be rated less than 100% disabled and still be found unemployable and entitled to full disability compensation, if his disabilities render him “unable to secure or follow a substantially gainful occupation.” 38 C.F.R. § 4.16. Such a finding when made is practically indistinguishable from the SSA’s disability determination, which asks whether a medically determinable impairment prevents the claimant from engaging in past relevant work or any substantial gainful work that exists in the national economy. 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505; Hall v. Colvin, 778 F.3d 688, 691 (7th Cir. 2015). But there are differences in how the agencies evaluate claims: the VA’s evaluation is pro-claimant rather than neutral: “When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant.” 38 C.F.R. § 4.3; Hodge v. West, 155 F.3d 1356, 1362-63 (Fed. Cir. 1998). That is not SSA’s approach.

In any event the grounds for the VA’s decision finding Bird to be 70% disabled and unemployable were not available to the ALJ and neither were the results of Bird’s x-ray and MRI. The record even includes evidence conflicting with a finding of disability — one of Bird’s treating physicians cleared him to work, and a state-agency consultant opined that he is not disabled.

We close by noting for future reference a recent change in SSA’s regulation regarding decisions by other governmental agencies, such as the VA; see 20 C.F.R. § 404.1504. The current regulation provides that a disability determination by another agency does not bind the SSA. The new regulation adds that for claims filed on or after March 27, 2017, SSA will not try to analyze the other agency’s decision, although it will consider the decision’s supporting evidence. Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844, 5848-49 (Jan. 18, 2017) (to be codified at 20 C.F.R. pts. 404 and 416).

Bird requests that the proceedings on remand be expedited; the Commissioner agrees with the request.

Affirmed


source: Caselaw Access Project

author: EASTERBROOK, Circuit Judge.

license: Public Domain

text:
    Margarita Del Pilar FITZPATRICK, Petitioner, v. Jeff SESSIONS, Attorney General of the United States, Respondent.
    Nos. 15-2204 & 16-1864
    United States Court of Appeals, Seventh Circuit.
    Argued January 17, 2017
    Decided February 13, 2017
    Rehearing and Rehearing En Banc Denied April 13, 2017

      Richard Hanus, Attorney, Law Office of Richard Hanus, Chicago, IL, for Petitioner.
    Laura Halliday Hickein, Attorney, OIL, Attorney, Department of Justice, Civil Division, Immigration Litigation, Tim Ram-nitz, Attorney, Department of Justice, Civil Division, Commercial Litigation Branch, Washington, DC, for Respondent.
    Before EASTERBROOK, WILLIAMS, and SYKES, Circuit Judges.
   EASTERBROOK, Circuit Judge.

Margarita Del Pilar Fitzpatrick, a' citizen of Peru, had lived in the United States for three years when she applied for a driver’s license in Illinois. She contends that when filling out the forms at the Department of Motor Vehicles she displayed her green card and her Peruvian passport — but she admits that she also checked a box claiming to be a citizen of the United States. The form sternly warns aliens not to check that box, and Fitzpatrick does not contend that she has any difficulty understanding written English. (She came to the United States in 2002 to study English in college, and after earning a certificate as a medical translator she spent some time working as an interpreter before training as a nurse.) As required by the motor-voter law, 52 U.S.C. §§ 20503-06, the form also contained a checkbox that would lead to registration as a voter. Fitzpatrick maintains that the desk clerk asked whether she wanted to register, and when she inquired “Am I supposed to?” he replied: “It’s up to you.” She checked that box, was duly registered, and in 2006 twice voted in elections for federal officials.

Aliens are forbidden to vote in federal elections. 18 U.S.C. § 611. Another statute, 8 U.S.C. § 1227(a)(6), provides for the removal of aliens who vote in violation of either state or federal law. After discovering that Fitzpatrick had voted in a federal election, the Department of Homeland Security initiated removal proceedings. An Immigration Judge and then the Board of Immigration Appeals (initially and when denying reconsideration) decided that she must indeed leave the United States, even though she has led a productive and otherwise-unblemished life in this country, is married to a U.S. citizen, and has three U.S.-citizen children. Her children were born in Peru and naturalized after arrival. Her own 2007 application for citizenship is what brought her 2006 voting to light, when in response to questions asked of all applicants she honestly described her voting history.

Fitzpatrick acknowledges that she voted in apparent violation of § 611, which does not require proof that the alien knew that only citizens can vote in federal elections. See Kimani v. Holder, 695 F.3d 666 (7th Cir. 2012). Nonetheless, she contends, she did not actually violate § 611, because she had official approval to act as she did. Her lawyer calls this the “entrapment by estop-pel” defense; we suggested in Keathley v. Holder, 696 F.3d 644 (7th Cir. 2012), that a better label would be “official authorization.” But names don’t matter.

The defense is available to someone who makes complete and accurate representations to a public official and then receives permission from that official, when acting within the scope of his or her authority. (We observed in Keathley that a high school principal can’t permit aliens to vote, but that voting officials may have at least apparent authority to do so.) Fitzpatrick cannot make out either ingredient of this defense.

First, she did not make accurate disclosures when applying. She checked the box claiming U.S. citizenship. She is literate in English and has no excuse for making that misrepresentation. As we observed in Ki-mani, statements such as “I didn’t read the form carefully” or “I didn’t think this through before acting” or “I didn’t understand the legal significance of what I was doing” may be explanations, but they are not excuses.

Second, no one told her that aliens are entitled to vote. Indeed, no one told her that aliens are entitled to register to vote. A clerk asked whether she wanted to register and added “It’s up to you.” That statement — apparently following a script that Illinois then required clerical officials to use — was a refusal to give advice, not an assurance that it was lawful to register. Federal law forbids state officials to say anything that will discourage an applicant for a driver’s license from registering to vote. 52 U.S.C. § 20506(a)(5)(C). This statute leads to unhelpful responses such as the one Fitzpatrick received. What happened to Fitzpatrick and other aliens such as Keathley has led Illinois’s Secretary of State to revise the department’s Field Operations Manual to require clerks to remind applicants that citizenship is essential to voting, but the omission of that advice in 2005 still left Fitzpatrick with a noncommittal answer.

What’s more, even if the clerk had assured Fitzpatrick (as he did not) that she was entitled to register, that assurance differs from authorization to vote. Because different units of government have different requirements for voting, it may be proper for aliens to register even though they must take care not to vote in elections for certain offices. Fitzpatrick had time after receiving her voter-registration card to determine which elections she could participate in. Even a cursory search would have turned up the rule against an alien’s voting in a federal election — -just as a cursory search would have revealed that a person registered in Illinois cannot vote for Governor of Indiana. Registration to vote simply does not imply authorization to vote in any election one chooses. Fitzpatrick is well educated and understands English; it is not too much to ask that she find out before voting whether an alien can cast a ballot in a federal election. States may deem it wise to inform all who register about the requirements for voting in particular elections, but failure to provide that advice does not amount to official authorization for aliens to vote in all elections.

The panel inquired at oral argument whether Fitzpatrick is the kind of person the Attorney General and the Department of Homeland Security want removed from the United States. The answer was yes— that consideration had been given to exercising prosecutorial discretion in Fitzpatrick’s favor, but that the possibility had been resolved adversely to her. That decision is entrusted to executive officials, leaving us no option other than to deny the petitions for review of the BIA’s decisions.


author: KANNE, Circuit Judge.

text:
    Willie LONG, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 15-2668
    United States Court of Appeals, Seventh Circuit.
    Argued November 9, 2016
    Decided February 13, 2017

      Peter W. Henderson, Attorney, Office of the Federal Public Defender, Urbana, IL, Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, for Petitioner-Appellant.
    Nathaniel Whalen, Attorney, Office of the United States Attorney, Hammond, IN, Respondent-Appellee.
    Before BAUER and KANNE, Circuit Judges, and FEINERMAN, District Judge.

       The Honorable Gary Feinermán, United States District Court for the Northern District of Illinois, sitting by designation.

   KANNE, Circuit Judge.

Willie Long pled guilty to being a felon in possession of a firearm. Thereafter, Long sought collateral relief, arguing that his trial attorney provided ineffective assistance of counsel. Unfortunately for Long, his plea agreement contained a provision waiving his right to collaterally attack his conviction and sentence. For that reason, the district court summarily denied his claim.

On appeal, Long argues that the district court erred in denying his claim without an evidentiary hearing. Long correctly notes that we will allow a petitioner to circumvent a collateral-attack waiver if he can prove that his counsel was ineffective in negotiating the plea agreement containing that waiver. Nevertheless, because Long has failed to allege any facts that, if proven true, would entitle him to relief, he is not entitled to an evidentiary hearing. We affirm.

I. Background

According to Long’s arrest report, on November 18, 2013, at about 4:20 a.m., a Mishawaka police officer on routine patrol saw several cars maneuvering around a ear parked in a McDonald’s drive-through lane. The officer notified dispatch of his location and gave a description of the parked car. He then got out of his squad car and approached the car on foot. When he reached the car, he saw Long asleep in the driver’s seat. The officer noticed that the car was actually in drive, but Long’s foot was on the brake.

The officer knocked on the car’s window. When Long responded, the officer told him to park the car and open the door so they could talk. Long opened the door, and the officer immediately smelled marijuana. As they were discussing the marijuana odor, the officer saw a gun on the floorboard near Long’s feet. He then secured Long’s hands and told him not to move.

At that point, another officer arrived at the scene. The officers discovered that Long had a prior felony conviction and thus could not lawfully possess the gun. They arrested Long and impounded his car. An inventory search of the car revealed five gallon-sized bags of marijuana, three bags of ecstasy pills, three cell phones, two digital scales, and ninety-eight small plastic baggies.

The government charged Long under 18 U.S.C. § 922(g)(1) for being a felon in possession of a firearm. Assistant federal public defender H. Jay Stevens was appointed to represent Long. Long and Stevens allegedly discussed the possibility of filing a motion to suppress the gun evidence. But Stevens never filed that motion because he apparently “didn’t see any realistic hope in [Long] winning [it].” (R. 35 at 2.) Two weeks after the filing deadline passed, Long pled guilty to the possession charge.

In his plea agreement, Long expressly waived his right to appeal or collaterally attack his conviction and sentence. He also affirmed that he had told Stevens the facts and circumstances of his case and that he believed Stevens was fully informed of the relevant matters. During the change-of-plea hearing, Long agreed that, if the case were to proceed to trial, the government would be able to prove that a police officer found Long asleep at the wheel in a McDonald’s drive-through lane, and after waking Long, the officer saw a gun on the floorboard, which Long admitted he knew was there. The court accepted Long’s plea and set a date for sentencing.

Nevertheless, Long changed his mind once he discovered that his presentence report (“PSR”) recommended a 4-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for possessing a firearm in connection with another felony offense — that is, Long’s possession of marijuana. This enhancement increased Long’s guidelines range from 37-46 months to 57-71 months. At the sentencing hearing, Long claimed that Stevens told him that no such enhancement would factor into his sentence. Thus, Long wished to withdraw his plea. Stevens acknowledged that the two disagreed about how to handle the case. Accordingly, the court rescheduled the sentencing hearing, allowed Stevens to withdraw as counsel, and appointed Michael Rehak as new counsel.

Soon after, in accordance with Long’s wishes, Rehak moved to withdraw Long’s plea. Rehak argued that, had Long known of the enhancement, Long would have moved to suppress the gun evidence on the ground that the officers had no probable cause to stop him. The government conceded that there was no probable cause, but argued that there was no Fourth Amendment violation because the officers were performing a caretaking function by checking on Long, whom they had found asleep at the wheel. At a hearing on the motion, Rehak said that he viewed the case the same way that Stevens did and that Rehak had explained to Long that withdrawing the guilty plea and proceeding with a motion to suppress was a bad idea. The court gave Long and Rehak time to discuss. After a recess, Long agreed to stick with his guilty plea and proceed to sentencing.

At sentencing, the court confirmed that Long had read and understood the PSR and that Long was satisfied with Rehak’s work. The court then overruled Long’s objection to the sentencing enhancement and imposed a below-guidelines sentence of 51 months’ imprisonment.

On May 8, 2015, Long filed a timely pro se motion seeking relief under 28 U.S.C. § 2255. Long alleged that he had told Stevens that the officers obtained the gun evidence in a way that violated his Fourth Amendment rights and that Stevens provided ineffective assistance of counsel by failing to move to suppress that evidence. Long further argued that he would have gone to trial had Stevens so moved. Finally, Long claimed that Stevens failed to adequately investigate the case and “never fully explained to Long what the waiver in his plea bargain restricted him from doing.” (R. 49 at 2.)

The district court summarily denied Long’s motion without an evidentiary hearing on the ground that Long’s plea agreement contained a collateral-attack waiver. The court rejected Long’s argument that Stevens did not fully explain the waiver to him, finding that argument inconsistent with Long’s statements at his change-of-plea hearing.

Long then sought a certificate of appeal-ability, in which he claimed that he was denied effective assistance of counsel. The district court declined to issue a certificate, but we granted one. This appeal followed.

II. Analysis

Long’s § 2255 motion asserts that Stevens provided ineffective assistance of counsel. The district court held that the waiver in Long’s plea agreement precluded this claim. In so holding, the court rejected Long’s argument that Stevens was ineffective for failing to explain the waiver, determining that Long fully understood the consequences of the waiver.

But the fact that Long understood the waiver does not necessarily foreclose his ineffective-assistance-of-counsel claim. As Long argues, we have “repeatedly recognized that appellate and collateral review waivers cannot be invoked against claims that counsel was ineffective in the negotiation of the plea agreement.” Hurlow v. United States, 726 F.3d 958, 964 (7th Cir. 2013). Although Long’s § 2255 motion does not specifically allege Stevens’s ineffectiveness in negotiating the plea agreement, we construe his motion liberally. Wyatt v. United States, 574 F.3d 455, 459 (7th Cir. 2009) (“Pro se collateral review filings are construed liberally.”). And liberally construed, it appears that Long is making this argument. For instance, Long alleges that he told Stevens that he wanted to move to suppress the gun evidence—which he claims was obtained in violation of his Fourth Amendment rights—but Stevens never filed that motion. Long further claims that “Stevens never looked fully into Long’s case, just obtained a plea agreement without fully investigating.” (R. 49 at 2.) Long contends that, had Stevens done these things, Long never would have entered into the plea agreement. These allegations suggest that the plea agreement was either “the product of ineffective assistance of counsel or tainted by ineffective assistance of counsel,” which, if proven true, would mean that Stevens was ineffective in negotiating the plea agreement. See Hurlow, 726 F.3d at 967 (internal citations and quotation marks omitted).

Nevertheless, although these allegations allow Long to open the door to collateral relief, they do not necessarily permit him to walk through it. Indeed, “[n]ot every claim of ineffective assistance of counsel can overcome a waiver in a plea agreement.” Id. at 966. For instance, we have disallowed “broad, unsupported assertions of ineffective assistance” to circumvent a waiver. Id.

Long contends that, at this stage, he is not trying to succeed on the merits of his claim; instead, he seeks nothing more than an evidentiary hearing to develop his argument. Even so, a district court need not grant an evidentiary hearing if “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief,” or “if the petitioner makes allegations that are vague, concluso-ry, or palpably incredible, rather than detailed and specific.” Martin v. United States, 789 F.3d 703, 706 (7th Cir. 2015) (internal quotation marks omitted). Only when a petitioner “alleges facts that, if proven, would entitle him to relief’ must a district court grant a hearing. Id. (quoting Kafo v. United States, 467 F.3d 1063, 1067 (7th Cir. 2006)). Thus, we must decide whether Long’s allegations sufficiently state a claim for ineffective assistance of counsel, thereby allowing him to circumvent his waiver and obtain an evidentiary hearing.

To prevail on this claim, Long must be able to show that (1) Stevens performed deficiently and (2) Long was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We begin our analysis by addressing Stevens’s alleged deficient performance; we then move to prejudice.

A. Deficient Performance

Long asserts that Stevens provided deficient performance in two ways: (1) by declining to file a motion to suppress, and (2) by failing to adequately investigate Long’s case. When a petitioner alleges that counsel was ineffective for failing to move to suppress evidence, we require him to “prove the motion was meritorious.” United States v. Cieslowski, 410 F.3d 353, 360 (7th Cir. 2005). And when the purported deficiency is based on a failure to investigate, we require the petitioner to allege “what the investigation would have produced.” Richardson v. United States, 379 F.3d 485, 488 (7th Cir. 2004) (per curiam) (quoting Hardamon v. United States, 319 F.3d 943, 951 (7th Cir. 2003)).

Insofar as Long’s claim is based on Stevens’s decision not to file a motion to suppress, that claim fails because Long has alleged no facts suggesting that the motion would have succeeded. The only facts that we have — which are the only facts that were available to Stevens when he was deciding whether to file the motion — are those that are contained in Long’s arrest report. According to that report, the incident began when a police officer approached Long’s car, which was impeding the traffic of a McDonald’s drive-through lane. Because a “seizure does not occur simply because a police officer approaches an individual and asks a few questions,*’ this encounter did not implicate the Fourth Amendment. United States v. Broomfield, 417 F.3d 654, 655 (7th Cir. 2005) (quoting Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991)).

Nor did the officer’s instruction that Long open the car door. When the officer arrived at the car, he saw Long asleep at the wheel. The officer asked Long to open his door “for a purpose ‘totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.’” Sutterfield v. City of Milwaukee, 751 F.3d 542, 554 (7th Cir. 2014) (quoting Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973)). That purpose was to ensure that Long was alright. The Constitution allows officers to perform these kinds of caretaking functions because, in doing so, they are “tak[ing] actions not for any criminal law enforcement purpose but rather to protect members of the public.” Id. at 553.

Finally, when Long opened the door, the officer immediately smelled marijuana. That gave the officer probable cause to search the entire vehicle. United States v. Mosby, 541 F.3d 764, 768 (7th Cir. 2008). Because there was probable cause, any challenge to the officer’s subsequent discovery of the gun would fail. Cf. Tapley v. Chambers, 840 F.3d 370, 377-78 (7th Cir. 2016) (“If there is probable cause to believe that a person has committed a crime, it is constitutionally irrelevant whether the officer arrested the person on charges for which there was no probable cause.”). Thus, under these facts, there is no cognizable Fourth Amendment claim.

Long argues that the caretaking doctrine doesn’t apply here because he never admitted to sleeping at the wheel. But the evidence suggests otherwise. At the change-of-plea hearing, Long admitted that, if the case were to proceed to trial, the government would be able to prove that the police found Long asleep at the wheel. Long now retreats from this admission, arguing that just because the government could prove (that is, convince a jury) that he was asleep does not necessarily mean he was asleep. Although Long tries to run from his prior admission, he cannot hide. Indeed, Long’s sentencing memorandum explicitly admitted that officers found him asleep at the wheel and had to wake him. Moreover, at sentencing, Long testified that he and Rehak read the PSR together, yet neither objected to the PSR’s statement of facts, which unambiguously state that Long was asleep at the wheel. In fact, there is no evidence that Long ever told his attorneys that he was awake. Even now, Long makes no allegation that he was awake. Nor does he allege any other facts that would support a motion to suppress.

That brings us to Long’s second contention: if Stevens had conducted a more thorough investigation of Long’s case, he would have discovered facts that would have supported a suppression motion. Specifically, Long claims that Stevens should have examined security-camera footage of the McDonald’s parking lot and interviewed witnesses or restaurant employees.

Nevertheless, an attorney need not investigate every possible factual scenario. Instead, the Constitution requires an attorney to make a “reasonable” investigation. Strickland, 466 U.S. at 691, 104 S.Ct. 2052. “[W]hen determining the reasonableness of trial counsel’s investigation,” we “consider what [the defendant] told trial counsel.” Koons v. United States, 639 F.3d 348, 354 (7th Cir. 2011). Here, the only thing that Long alleges he told Stevens is that the police violated his Fourth Amendment rights. But that’s not a fact; it’s a legal conclusion. True enough, Long suggests that he told Stevens the facts underlying that purported Fourth Amendment violation. But he doesn’t say what those facts are. And although he faults Stevens for failing to investigate, he never alleges “what the investigation would have produced.” Richardson, 379 F.3d at 488. Long has thus failed to “allege[ ] facts that, if proven, would entitle him to relief,” and instead makes allegations that are “vague” and “conclusory.” Martin, 789 F.3d at 706 (internal quotation marks omitted). For that reason, he is not entitled to an evidentiary hearing.

Long tries to liken his case to Hurlow— a case in which we reversed a district court for holding that a waiver in the defendant’s plea agreement precluded an evidentiary hearing on his § 2255 motion; but that case is distinguishable. In Hurlow, the defendant and his fiancée shared a home. 726 F.3d at 960. Police officers searched the home over the defendant’s objection after obtaining the fiancée’s written consent. Id. They discovered contraband and arrested the defendant. Id. at 961. The defendant claimed that he told his attorney these facts and that he wanted his attorney to move to suppress the incriminating evidence, but his attorney never filed a motion or investigated the claim. Id.

We noted that the defendant’s alleged facts, if true, would have supported a suppression motion under Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006). Hurlow, 726 F.3d at 967. In light of these alleged facts, we allowed the defendant to circumvent his waiver, instructing the district court to hold an evidentiary hearing on the defendant’s claim that his attorney was ineffective in negotiating the plea agreement. Id. at 968.

But here, Long has alleged no facts that would support his Fourth Amendment claim, which in turn would support his claim for ineffective assistance of counsel. Accordingly, we hold that Long is bound by his waiver, which precludes any relief under § 2255. See id. at 966 (noting that a petitioner cannot circumvent an appeal and collateral-attack waiver by making “broad, unsupported assertions of ineffective assistance”).

In so holding, we do not suggest that a petitioner’s ability to circumvent a collateral-attack waiver depends on the strength of his argument. We instead require only that a petitioner allege facts showing that an argument actually exists. Because Long has not alleged that any such facts exist, we will not waste judicial resources by requiring the district court to hold an evi-dentiary hearing.

B. Prejudice

Even if Long adequately alleged that Stevens’s performance was deficient, Long still would have to prove prejudice. To do so, Long would have to show “a reasonable probability that, but for counsel’s errors, he would not have pleaded” guilty. Cieslowski, 410 F.3d at 359 (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)). A “mere allegation ... that he would have insisted on going to trial is insufficient to establish prejudice.” Id. (quoting Berkey v. United States, 318 F.3d 768, 772 (7th Cir. 2003)). Instead, he “must go further and present objective evidence that a reasonable probability exists that he would have taken that step.” Id. ...

Long has not carried this burden. Indeed, he has alleged nothing that indicates that he would have gone to trial had Stevens moved to suppress the gun evidence. In fact, the evidence suggests the opposite. After Stevens withdrew as counsel, Long’s new attorney Rehak filed a motion to withdraw Long’s guilty plea. That motion stated that Long “now wishes to suppress certain evidence in relation to his case, in particular, the initial probable cause for his stop by law enforcement.” (R. 38 at 2.) But at a hearing on the motion, Rehak informed the court that he did not think withdrawing the guilty plea would benefit Long. After discussing the issue with Rehak, Long decided to forego his motion to withdraw his plea and proceed to sentencing. Long’s actions thus rebut his claim that he would have gone to trial but for Stevens’s alleged deficient performance.

During oral argument, Long conceded that Rehak gave “very competent advice” on this issue. Nevertheless, Long claims that, by the time Rehak got involved, the damage was already done given that Long had already pled guilty. For example, Long argues that there is no guarantee that the district court would have allowed him to withdraw his guilty plea. And even if Long was able to do so, he consequently would have faced a higher sentence because he would have lost his 3-level reduction for acceptance of responsibility. Thus, the eggs were already broken.

But that is not so. Although the district court did not have to grant Long’s motion to withdraw his plea, that does not excuse Long from pursuing that motion. Of course, if Long did proceed with that motion and won, he would have faced a higher sentence. But that’s only because he would have lost his credit for acceptance of responsibility — a credit that he received only because he pled guilty in the first place. Put differently, had Long succeeded on a motion to withdraw his guilty plea, it would have been as if he had never pled guilty at all.

For that reason, we do not- accept Long’s argument that his initial decision to plead guilty caused irreparable harm. Long had an opportunity to try to undo whatever purported damage was done, but he chose not to pursue that opportunity. His decision thus strongly suggests — if not confirms — that Stevens’s alleged deficient performance had no effect on his decision to plead guilty. On these facts, Long cannot prove prejudice. And because Long has failed to allege the existence of any facts that, if proven true, would entitle him to relief, he is not entitled to an evidentia-ry hearing.

III. Conclusion

For the reasons above, we AFFIRM the district court’s decision.

      . All record citations refer to Long’s criminal case in the Northern District of Indiana, Case No. 3:14-cr-16.


author: PER CURIAM.

text:
    Nathaniel HARPER, Plaintiff-Appellant, v. Venerio M. SANTOS and Terri Dean, Defendants-Appellees.
    No. 15-1903
    United States Court of Appeals, Seventh Circuit.
    Argued November 16, 2016
    Decided February 13, 2017

      Roy Nelson Williams, Attorney, Thompson Coburn LLP, St. Louis, MO, Plaintiff-Appellant.
    Robert Vogt, Attorney, Weldon-Linne & Vogt, Chicago, IL, for Defendants-Appel-lees.
    Before EASTERBROOK, KANNE, and HAMILTON, Circuit Judges.
   PER CURIAM.

Nathaniel Harper an Illinois prisoner sued a prison doctor, Venerio Santos, and nurse, Terri Dean, for deliberate indifference towards his pain following nine abdominal surgeries, the management of his diet, and inattention to a possible renal cell tumor. See 42 U.S.C. § 1988. The district court granted summary judgment for the defendants, concluding that Harper had not produced evidence from which a jury could find that either defendant ignored a substantial risk of harm. We affirm.

Harper, a prisoner at the Centralia Correctional Center, was seen by a nurse at the health center on December 3, 2010, for complaints of nausea and vomiting. Harper asserts that Nurse Dean examined' him, but the defendants contend that he was examined by another nurse. The nurse determined that Harper was constipated and sent him back to his cell with instructions to drink clear liquids and return if symptoms persisted.

The parties also disagree over events the following day, when Harper returned with complaints that he still had stomach pains and was vomiting. Harper asserts that Nurse Dean evaluated him, laughed at his plight, and told him that there was no way to relieve his constipation. He says that he returned to the health center twice more that day, only to be sent back to his cell each time and told that the nurses could not help him. The defendants, however, maintain that two nurses saw Harper at 9:00 a.m. and that Dr. Santos ordered him admitted for observation. They assert that Harper was seen and evaluated by nurses three more times that day.

Dr. Santos examined Harper on December 5 and ordered an x-ray of his abdomen. The x-ray indicated a “GI gas pattern most consistent with” an intestinal blockage, so the doctor arranged for Harper to be transferred to St. Mary’s Good Samaritan Hospital to rule out a small-bowel obstruction.

Harper was admitted to St. Mary’s that same day and later operated upon for a bowel obstruction. He remained there for 38 days due to post-surgical complications, including inflammation of a membrane lining the abdominal wall, pneumonia, an infection from a catheter, a fistula, an infection at a surgical site, dehydration, and anemia. Altogether he underwent nine surgeries at the hospital and, by the time he left, he was equipped with a temporary colostomy bag.

Following Harper’s discharge, the doctors at St. Mary’s recommended a course of treatment. They advised him that he could have a regular diet, but that he should drink plenty of fluids. For pain relief, they recommended, among other things, that he take 650 mg of Tylenol and Vicodin 500 mg/5 mg every six hours as needed. In addition, the doctors advised Harper to get an ultrasound every three months to monitor a mass on his kidney that had shown up on an x-ray; in their discharge summary, however, the doctors noted that decisions about monitoring would be left to his “primary care physician.”

When Harper returned to Centraba in January 2011, Dr. Santos discontinued Harper’s Vicodin prescription but responded to his subsequent complaints of pain by upping his Tylenol dosage to two 500 mg tablets every 6 hours, as needed. This dosage was reduced the following month to 650 mg of Tylenol every 6 hours.

Besides the pain, Harper had difficulty eating. Dr. Santos started Harper on a pureed diet, but Harper began vomiting multiple times a day. Dr. Santos prescribed Harper to consume between meals one can of Fibersource, a nutritional supplement, to which he initially responded well; he was able to eat a salami sandwich, apple slices, and carrots. But Harper soon reported that he could not tolerate solid food, so his diet was changed to include protein shakes. This led to hunger pangs, and Harper often complained that he was “starving” or that he did not feel well following his meals. Harper requested double portions of food from Nurse Dean, and Dr. Santos authorized him to receive double-meal trays. When symptoms continued, Harper asked Dr. Santos to order an egg-based diet because he could tolerate them, but Dr. Santos refused. Over time, Harper expressed fears that he was “fading away” and didn’t think he was “going to make it.” The nurses noted that Harper looked “thin” and “frail,” but by January 30, he again was tolerating food well and had stopped complaining of nausea or vomiting.

Harper also had minor run-ins with Nurse Dean about his care. He states that she removed an extra pillow that he was using to elevate his leg and relieve his foot pain. Harper once refused to give the pillow to her, so she filed a disciplinary report with the prison. On another instance, Harper said that she refused his request to empty his colostomy bag.

To monitor the mass on his kidney, Harper had an ultrasound at St. Mary’s in April 2011, and after that Dr. Santos monitored it with sporadic blood and urine tests that were negative. According to Harper, Dr. Santos once told him that he would not treat him because he “only” had a kidney cyst and on another occasion in 2012, Dr. Santos screamed, “Never,” when Harper asked him for the date of a follow-up ultrasound.

Dissatisfied with his medical care during his 88-day stay at the health center, Harper filed grievances with the prison. While the appeals of his grievances were pending, Harper — noting imminent deadlines for the statute of limitations on his claims — filed this suit in November 2012. The defendants eventually moved for summary judgment, arguing that Harper’s claims against Dr. Santos and Nurse Dean amounted to mere disagreements over his preferred course of treatment, and that Harper could not show that the actions of either defendant rose to the level of deliberate indifference.

The court determined that Dr. Santos and Nurse Dean were not deliberately indifferent to Harper’s serious medical conditions, and granted them summary judgment. Harper, the court observed, had not shown that the increased dose of Tylenol ordered by Dr. Santos was ineffective or that Vicodin was such a superior treatment option that Dr. Santos’s failure to prescribe it amounted to deliberate indifference. Nor had he shown that Dr. Santos denied him adequate nutrition; as the court stated, he was accommodated with protein drinks, meal-replacement drinks, and supplemented meals. Harper may have preferred eggs, the court noted, but he was not entitled to dictate his diet. As for the mass on his kidney, the court explained that Harper was not entitled to specific treatments, especially since he presented no evidence showing that monitoring his condition through blood and urine tests substantially departed from accepted medical practice or that an ultrasound was a superior treatment option. With respect to Nurse Dean, the court found that she was not deliberately indifferent to Harper’s presurgical needs, given that he was examined and treated each time that he appeared at the health center. She may not have acted as compassionately as he would have liked, the court concluded, but he did not establish that she acted with deliberate indifference.

Prison officials are liable under the Eighth Amendment for cruel and unusual punishment if they are deliberately indifferent to a prisoner’s serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). The parties agree that Harper suffered from a serious medical condition, so the only question is whether Dr. Santos and Nurse Dean “acted with a ‘sufficiently culpable state of mind’ in failing to provide adequate care or treatment for that condition.” Dixon v. Cnty. of Cook, 819 F.3d 343, 349 (7th Cir. 2016) (quoting Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005)).

On appeal Harper first argues that the district court erred when it concluded that Dr. Santos was not deliberately indifferent to his medical needs by discontinuing his Vicodin prescription. Harper contends that a genuine issue of material fact exists as to Dr. Santos’s state of mind because he disregarded Harper’s Vicodin prescription from the hospital.

The district court correctly granted summary judgment to Dr. Santos on this claim. Failing to follow instructions received from outside experts can amount to deliberate indifference, Gil v. Reed, 381 F.3d 649, 661-64 (7th Cir. 2004), but the medical records here reflect that Dr. Santos attempted to manage Harper’s pain. After the surgeries, Dr. Santos continued to monitor Harper, visiting him on 31 out of 88 days that Harper stayed at the health center. Dr. Santos continued to see Harper two to three times per week until April, and this constant, ongoing assessment of his condition cannot create an inference of deliberate indifference. See McGee v. Adams, 721 F.3d 474, 482 (7th Cir. 2013). Harper also provided no evidence that the Tylenol did not alleviate his pain or that Dr. Santos intended to cause him pain. See Holloway v. Del. Cnty. Sheriff, 700 F.3d 1063, 1073 (7th Cir. 2012). Harper asserts that he sought more medication to relieve his pain, but the health center’s medical records reflect that he regularly was given Tylenol and did not complain of pain.

Harper next argues that the district court erred when it granted summary judgment on his claim that Dr. Santos acted with deliberate indifference by depriving him of adequate nutrition. Harper maintains that he should have been fed eggs, the only food, he says, that he could tolerate after his surgeries.

We agree with the district court that Dr. Santos’s active monitoring of Harper’s dietary needs represents the “antithesis of deliberate indifference.” See McGee, 721 F.3d at 482. Harper was not entitled to dictate the terms of his care, see Arnett v. Webster, 658 F.3d 742, 754 (7th Cir. 2011), including whether his meals consisted mostly of eggs. Dr. Santos also altered Harper’s diet to meet his nutritional needs by ordering that he take Fibersource supplements to counter the nausea and vomiting and by ordering double-meal trays for Harper once he showed that he could tolerate solid foods.

Harper next contends that the district court incorrectly determined that Dr. Santos was not deliberately indifferent to his kidney issue. He points to the discharge summary from St. Mary’s, which, he argues, instructed him to get an ultrasound of his kidneys every three months for monitoring.

The district court properly granted summary judgment for Dr. Santos on this claim because Dr. Santos’s decision to use blood tests was a matter of medical judgment. Harper has not shown that blood and urine tests would fail to monitor his kidney, nor has he demonstrated that the tests substantially depart from accepted medical practice. Harper is not entitled to dictate which tests Dr. Santos can use to monitor his condition, see Arnett, 658 F.3d at 754, and the decision whether medical imaging should be used is “a classic example of a matter for medical judgment.” Estelle, 429 U.S. at 107, 97 S.Ct. 285. Counsel’s representations at oral argument and Dr. Santos’s affidavit also establish that Harper has not been harmed by the lack of ultrasound tests, a fact fatal to his deliberate indifference claim. See Gayton v. McCoy, 593 F.3d 610, 624-25 (7th Cir. 2010).

As for Harper’s claims against Nurse Dean, he disagrees with the court’s conclusion that no inference of deliberate indifference can be drawn from her (1) failure to treat him when he first appeared at the health clinic with stomach pain, (2) confiscation of his pillow, and (3) failure to empty his colostomy container.

We believe that the district court correctly entered summary judgment for Nurse Dean because Harper has not established that her efforts were “blatantly inappropriate,” Arnett, 658 F.3d at 751 (quoting Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005), or that she “recklessly disregarded” his needs, see Hayes v. Snyder, 546 F.3d 516, 524 (7th Cir. 2008)). With regard to his claim that Nurse Dean ignored his presurgical pain, Harper was evaluated and treated each time that he appeared at the health center, given a treatment plan, and told to return if his symptoms persisted. Harper is not entitled to dictate whether Nurse Dean should have treated him differently or immediately transferred him to St. Mary’s. See Arnett, 658 F.3d at 754. His assertion that Nurse Dean laughed at him also does not establish that she acted with deliberate indifference. See Townsend v. Cooper, 759 F.3d 678, 684, 688-90 (7th Cir. 2014) (deliberate indifference not established by evidence of incidents where two psychologists laughed at the plaintiff and told him that he was “making things up” in response to the plaintiff’s complaints that he was hearing voices). As for Harper’s other claims— confiscating a pillow that Harper was not supposed to have and refusing Harper’s demand to empty his colostomy container do not reflect a deliberate indifference to his medical needs because her insensitivity does not demonstrate that she disregarded a substantial risk of harm to Harper. See Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011).

AFFIRMED.


author: LOKEN, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jonathon Adam LAMB, Defendant-Appellant.
    No. 15-2399
    United States Court of Appeals, Eighth Circuit.
    Submitted: January 18, 2017
    Filed: February 3, 2017
    Rehearing and Rehearing En Banc Denied April 12, 2017

      Counsel who represented the appellant were John P. Messina, AFPD, of Des Moines, IA and Heather Quick, AFPD, of Cedar Rapids, IA.
    Counsel who represented the appellee was Richard D. Westphal, AUSA, of Davenport, IA.
    WOLLMAN, BRIGHT, and LOKEN, Circuit Judges.

       Judge Kelly did not participate in the consideration of this matter.

       This opinion is being filed by Judge Wollman and Judge Loken pursuant to 8th Cir. Rule 47E.

   LOKEN, Circuit Judge.

Jonathon Adam Lamb pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court sentenced Lamb to 180 months in prison, the mandatory minimum sentence under the Armed Career Criminal Act (“ACCA”) for a defendant who has three prior “violent felony” convictions. 18 U.S.C. § 924(e)(1). Lamb appealed his sentence. We affirmed, applying the familiar but often perplexing “categorical approach” to assess whether his prior convictions were violent felonies as defined in 18 U.S.C. § 924(e)(2)(B). See Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 2283-85, 186 L.Ed.2d 438 (2013); Johnson v. United States, 559 U.S. 133, 144-45, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). We concluded that Lamb’s two pri- or Michigan unarmed robbery convictions were violent felonies under the ACCA’s force clause, § 924(e)(2)(B)®, and that a state court charging document established that his prior Wisconsin burglary conviction was for the crime of generic burglary, an enumerated violent felony in § 924(e)(2)(B)(ii). United States v. Lamb, 638 Fed.Appx. 575 (8th Cir. 2016). We noted the Supreme Court had granted a writ of certiorari to review our decision in United States v. Mathis, 786 F.3d 1068 (8th Cir. 2015), where we upheld applying the ACCA to an Iowa burglary conviction.

The Supreme Court reversed our decision in Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016), granted Lamb’s petition for a writ of certiorari, vacated our judgment, and remanded “for further consideration in light of Mathis.” Lamb v. United States, — U.S.-, 137 S.Ct. 494, 196 L.Ed.2d 397 (2016). We recalled our mandate and reopened the case but did not vacate our prior opinion. We now conclude that the Supreme Court’s decision in Mathis, which did not address the ACCA’s force clause, does not alter our prior decision that Lamb’s Michigan robbery convictions were ACCA violent felonies. That portion of our prior opinion is reinstated. Lamb, 638 Fed.Appx. at 576-77. Mathis does require additional analysis of whether Lamb’s Wisconsin burglary conviction was an enumerated ACCA violent felony. As we will explain, Mathis does not alter our conclusion that he was convicted of generic burglary. Therefore, we again affirm the judgment of the district court.

I.

The ACCA defines the term violent felony to include any state or federal felony that “is burglary.” 18 U.S.C. § 924(e) (2) (B) (ii). In Taylor v. United States, the Supreme Court concluded that Congress in the ACCA intended to adopt “the generic, contemporary meaning of burglary [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. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Thus, to determine whether a prior burglary conviction was for the violent felony of generic burglary, the Court “focus[es] solely on whether the elements of the crime of conviction sufficiently match the elements of generic burglary, while ignoring the particular facts of the case.” Mathis, 136 S.Ct. at 2248.

Many state burglary statutes are overinclusive, that is, they define burglary more broadly than generic burglary. For example, a statute may include unlawful entry into places other than buildings, such as automobiles and vending machines. If an overinclusive statute has a “divisible” structure — defining multiple crimes by listing one or more elements in the alternative — the Court applies a “modified categorical approach” that “permits [federal] sentencing courts to consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant’s prior conviction.” Descamps, 133 S.Ct. at 2281. However, if the statute is overinclu-sive and not divisible, as in Descamps, no prior conviction under that statute qualifies for the ACCA mandatory minimum sentence enhancement.

In Mathis, the Court resolved a circuit conflict regarding the meaning of the term “divisible.” Under Mathis, when “faced with an alternatively phrased statute [we must first] determine whether its listed items are elements or means.” 136 S.Ct. at 2256. “Elements” are “the things the prosecution must prove to sustain a conviction.” Id. at 2248 (quotation omitted). “Means” are “[h]ow a given defendant actually perpetrated the crime.” Id. at 2251. To distinguish between elements and means, federal sentencing courts should look at “authoritative sources of state law” such as “a state court decision [that] definitively answers the question,” or the statute’s text. If necessary, the court may “peek” at the record of the prior conviction, but only to determine if the statutory alternatives are elements or means. Id at 2256-57 (quotation omitted). If the statute lists alternative elements, it is divisible, and therefore the prior conviction is subject to modified categorical analysis. Id.

II.

In 2006, Lamb pleaded no contest to a felony charge that he violated Wis. Stat. § 943.10(lm)(a), a subsection of the Wisconsin burglary statute:

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

A. Without question, § 943.10(lm), viewed as a whole, encompasses a broader range of conduct than generic burglary as defined in Taylor, such as burglary of railroad cars, ships, trucks, and motor homes. But viewing subsections (a)-(f) as a whole, we agree with the District of Minnesota that Section (lm) is a divisible statute, indeed, “a textbook example of one with alternative elements.” United States v. Jones, 2016 WL 4186929, at *3 (D. Minn. Aug. 8, 2016).

We find support for this conclusion in Wisconsin precedent and practice. Consistent with the face of the statute, prior reported decisions all reflect that defendants were convicted of violating a specific subsection of § 943.10(1m). See, e.g., Anderson v. State, 66 Wis.2d 233, 223 N.W.2d 879, 882 (1974) (subsection (d), locked cargo trailer of truck); State v. Champlain, 307 Wis.2d 232, 744 N.W.2d 889, 899 (App. 2007) (subsection (a), building); State v. Curtis, 144 Wis.2d 691, 424 N.W.2d 719, 719-20 (App. 1988) (subsection (f), room inside a dwelling). Likewise, taking the permitted “peek” at the record of Lamb’s prior conviction, we find that he was charged with and pleaded no contest to “Burglary-Building or Dwelling,” a violation of “943.10(lm)(a).” Wisconsin’s model burglary jury instructions reinforce this interpretation, explaining that “[t]he model instruction is drafted for a case involving entry into a ‘building.’ It must be modified if entry involved any of the other places listed in § 943.10(l)(a) through (f).” Wis. J.I.-Crim. No. 1421 n.2 (2001). The Supreme Court noted in Mathis that “an indictment and jury instructions could indicate, by referencing one alternative term to the exclusion of all others, that the statute contains a list of elements, each one of which goes toward a separate crime.” 136 S.Ct. at 2257.

In Mathis, the Court found that a Supreme Court of Iowa decision definitively resolved the elements/means issue under state law; thus, the Court declared, the question “is easy in this case.” 136 S.Ct. at 2256. Here, wé have found no definitive Supreme Court of Wisconsin decision. However, that Court decided in State v. Baldwin, 101 Wis.2d 441, 304 N.W.2d 742, 747 (1981), subsection (a) of Wis. Stat. § 940.225(2) “differs significantly from the offenses described in paragraphs (b), (c), (d) and (e), violation of each of which also constitutes second degree sexual assault.” This is strong evidence the Wisconsin Supreme Court would conclude that unlawful entry into the various “places” described in subsections (a)-(f) of § 943.10(lm) are elements of distinct burglary offenses.

For these reasons, we conclude that subsections (a)-(f) of § 943.10(lm) list the locational elements of divisible burglary offenses. Therefore, the district court properly used the modified categorical approach to determine that Lamb’s prior conviction was for a violation of subsection (a), burglary of a building or dwelling. See Jones, 2016 WL 4186929, at *3; cf. United States v. Gundy, 842 F.3d 1156, 1166-68 (11th Cir. 2016) (Georgia burglary statute’s “alternative locational elements” are overinclusive and divisible).

B. On appeal, Lamb does not argue that the various subsections of § 943.10(lm) are indivisible. Rather, he argues (i) that subsection (a) itself is indivisible; (ii) that subsection (a) is overinclusive because “dwelling” can include places other than those encompassed by generic burglary; and (in) that Descamps and Mathis preclude use of the modified categorical approach to determine that he was convicted of generic burglary of a building, rather than non-generic burglary of a dwelling. In our prior opinion, we assumed that subsection (a) is overinclusive and applied the modified categorical approach to determine that Lamb was convicted of generic burglary. 638 Fed.Appx. at 577. After Mathis, that analysis is unsound if subsection (a) is both overinclusive and indivisible.

The Seventh Circuit recently concluded, after the careful review of Wisconsin law required by Mathis, “that subsection (a) lists alternative means rather than elements and is therefore indivisible.” United States v. Edwards, 836 F.3d 831, 838 (7th Cir. 2016). Although the issue is not free from doubt, we will defer to the'Seventh Circuit’s greater familiarity with Wisconsin law and assume without deciding that § 943.10(lm)(a) is indivisible under Mathis.

If subsection (a) is indivisible under Mathis, as the Seventh Circuit concluded in Edwards, we must apply the categorical approach to determine whether burglary of a “building or dwelling” is generic burglary as defined in Taylor — “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” 495 U.S. at 599, 110 S.Ct. 2143 (emphasis added). Lamb argues that a conviction under subsection (a) does not fall, categorically, within the definition of generic burglary because “ ‘dwelling’ might encompass non-generic places such as vehicles or curtilage.” The notion that “dwelling” in § 943.10(lm)(a) might be construed to include vehicles is contrary to the statute because burglary of various vehicles is encompassed by the separate crimes enumerated in subsections (b), (d) and (e).

Lamb’s speculation that burglary of a “dwelling” might encompass burglary of a non-structural curtilage is at odds with the Supreme Court’s categorical approach:

[T]o find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute’s language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.

Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007), quoted in James v. United States, 550 U.S. 192, 208, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). Lamb has cited no case, and we have found none, that extended § 943.10(lm)(a) to include burglary of a dwelling’s curtilage. Rather, prior ACCA decisions have held that a defendant who violates this subsection of the Wisconsin burglary statute is convicted of “generic burglary.” See Jones, 2016 WL 4186929, at *3 (subsection (a) “corresponds with the ‘building or structure’ element of generic burglary”); United States v. Anderson, 249 Fed.Appx. 337, 338 (5th Cir. 2007); United States v. Franklin, 1996 WL 536498, at *1 (7th Cir. 1996).

Section 943.10(lm) is part of the Trespass subchapter of the Wisconsin Statutes Crimes Against Property chapter. Although “dwelling” is not defined in § 943.10, the term is defined in another section of this subchapter, entitled criminal trespass to dwellings, as meaning “a struc ture or part of a structure that is used or intended to be used as a home or residence.” Wis. Stat. § 943.14(1) (emphasis added). In § 943.10(lm), burglary of a dwelling is linked in subsection (a) to burglary of a building, a linkage that strongly suggests the word “dwelling” means a particular type or subset of a “building or other structure,” consistent with the express definition in § 943.14. As the Seventh Circuit reasoned in Edwards, “the phrase ‘building or dwelling’ in subsection (a) is best understood as ... providing two examples of enclosed structures.” 836 F.3d at 837. We agree. Therefore, Lamb was convicted of generic burglary and properly sentenced under the ACCA.

The judgment of the district court is affirmed.

      . The Honorable John A. Jarvey, Chief Judge of the United States District Court for the Southern District of Iowa.

      . Compare State v. Derango, 236 Wis.2d 721, 613 N.W.2d 833, 839 (2000), where the Court ruled, without citing Baldwin, that Wis. Stat. § 948.07 "creates one offense with multiple modes of commission” stated in six discrete subparagraphs. In construing these other criminal statutes, the Court in Baldwin and Derango dealt with the important but distinct issue of jury unanimity. We know of no rational way to decide which of these state court decisions should govern the elements/means question that controls ACCA divisibility in this case. As Justice Breyer predicted: "What was once a simple matter [has] produce[d] a time-consuming legal tangle.” Mathis, 136 S.Ct. at 2264 (Breyer, J., dissenting).

      . Edwards went on to decide a distinct issue under the Sentencing Guidelines career offender provisions that is not before us and we do not consider.


author: GRUENDER, Circuit Judge.

text:
    Edward HUYER; Connie Huyer; Carlos Castro; Hazel P. Navas, Plaintiffs-Appellees, Wells Fargo & Company; Wells Fargo Bank, N.A., Defendants-Appellees, v. Kenneth M. NJEMA, Movant-Appellant.
    No. 16-1484
    United States Court of Appeals, Eighth Circuit.
    Submitted: January 10, 2017
    Filed: February 3, 2017

      Counsel who represented the appellees, Wells Fargo & Company and Wells Fargo Bank, N.A. was Jesse Linebaugh, of Des Moines, LA, Jan T. Chilton, of San Francisco, CA., Mark D. Lonergan, of San Francisco, CA.
    Counsel who represented the appellees, Edward Huyer, Connie Huyer, Carlos Castro, and Hazel P. Navas was Roxanne Barton Conlin, of Des Moines, IA., Michael Reese, of New York, NY., Deborah Clark Weintraub, of New York, NY., Kim E. Richman, of Brooklyn, NY., Mario A. Pa-cella, of Columbia, SC., Todd Garber of White Plains, NY.
    Before SMITH, GRUENDER, and SHEPHERD, Circuit Judges.
   GRUENDER, Circuit Judge.

Kenneth Njema appeals the district court’s orders denying Njema’s motion to join a trespass claim to this class action and approving the class action settlement. Because the district court did not abuse its discretion in denying joinder or in approving the settlement, we affirm.

I. BACKGROUND

In 2008, plaintiffs filed this class action against Wells Fargo & Co. and Wells Fargo Bank, N.A. (‘Wells Fargo”), alleging eight counts, including two violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”). The plaintiffs’ claims related to Wells Fargo’s practice of automatically ordering and charging fees for drive-by property inspections when customers fell behind on their mortgage payments. In 2015, the parties participated in mediation and reached a settlement agreement, which provides that Wells Fargo will pay $25,750,000 in exchange for dismissal of the lawsuit and a release of all related claims. The release provision of the settlement agreement requires an injunction against prosecution by class members of any “Released Claims,” which the provision defines as any claims “based upon, arising out of, or relating to, in any way, property inspection fees assessed on a mortgage serviced by Wells Fargo, or Wells Fargo’s practices in ordering or charging borrowers for property inspections.”

On September 2, 2015, the district court preliminarily approved the settlement agreement, scheduled a fairness hearing for January 21, 2016, and entered an injunction prohibiting class members from maintaining any action asserting Released Claims against Wells Fargo in any other court. Afterward, more than 2.7 million notices were sent to class members.

Separately, in 2013, Kenneth Njema brought an individual action against Wells Fargo in the United States District Court for the District of Minnesota (“Minnesota district court”). In his individual action, Njema raised a claim for trespass, arguing that Wells Fargo’s agents entered his property and changed the locks even though Wells Fargo knew that he still resided there. The Minnesota district court denied Wells Fargo’s motion for summary judgment as to Njema’s trespass claim, and it scheduled a trial on December 14, 2015.

In October 2015, Njema received notice that he was a member of this class action. Njema then attempted to join his individual action with the class action by filing a series of motions. On November 14, 2015, Njema filed a motion with the Judicial Panel on Multidistrict Litigation (“JPML”), seeking to transfer his individual action under 28 U.S.C. § 1407 to the district court for consolidation with the class action. The same day, Njema filed a motion with the Minnesota district court to stay his individual action pending resolution of the JPML transfer motion. Njema later filed a transfer motion with the district court. The following events then occurred.

First, the Minnesota district court denied Njema’s motion to stay his individual action, noting that there was “no basis for transferring this action for consolidation.” After Njema requested reconsideration of this denial, the Minnesota district court asked Wells Fargo whether the injunction entered in the class action against prosecuting any “Released Claim” would bar Njema from proceeding on his trespass claim. Wells Fargo responded that Nje-ma’s trespass claim was not within the scope of the “Released Claims” described in the class action settlement agreement and that, even if it were, Wells Fargo “should be able to waive that protection” so that Njema’s trespass claim could proceed to trial in the Minnesota district court. In light of this response, the Minnesota district court denied Njema’s request for reconsideration.

Second, the district court denied Nje-ma’s transfer motion. The district court held that “[bjecause Plaintiffs trespass claim in the District of Minnesota does not in any way relate to property inspection fees charged by Wells Fargo, he is not precluded from pursuing that claim while also remaining a class member in the class action suit in this Court.” Third, before the JPML could consider Njema’s transfer motion, the Minnesota district court dismissed Njema’s individual action for failure to prosecute.

Lastly, Njema filed an objection to the settlement agreement in the district court, arguing that the settlement terms were unfair. On the morning of the fairness hearing, Njema also filed a motion to certify trespass as a related claim under Federal Rule of Civil Procedure 23 and to add himself as a named class representative of this new subclass under Rule 19. Six days later, the district court denied Njema’s motion to certify trespass as a related claim, explaining that “the questions of law and fact related to trespass are not common to those raised in the property inspection fee claims.” The following month, the court determined that the settlement agreement was fair, overruled all objections, and granted final approval of the settlement. The court also awarded attorneys’ fees to class counsel and granted each named plaintiff an incentive award of $10,000. Njema now appeals the court’s denial of his motion to certify trespass as a related claim and its approval of the settlement.

II. DISCUSSION

A. Motion to Certify Trespass as a Related Claim

Njema first argues that the district court erred in denying his motion to certify trespass as a related claim and create a new subclass under Rule 23. We review this denial for abuse of discretion. Avritt v. Reliastar Life Ins. Co., 615 F.3d 1023, 1029 (8th Cir. 2010).

Rule 23(a) lists four prerequisites that a plaintiff must satisfy to bring a claim as a class action. Here, the district court properly denied Njema’s motion because Njema’s trespass claim does not satisfy the requirement that “there are questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). “Commonality requires the plaintiff to demonstrate that the class members have suffered the same injury.” Ebert v. Gen. Mills, Inc., 823 F.3d 472, 478 (8th Cir. 2016) (quotation omitted). Njema’s trespass claim involved a different injury than the injury alleged by the class action plaintiffs. Njema alleged that agents of Wells Fargo unlawfully entered his property, whereas the class action plaintiffs alleged that Wells Fargo unlawfully charged fees for drive-by inspections, which do not involve entry onto property. Indeed, the complaint in the class action contains no mention of physical entry or trespass. As a result, no eom-mon question existed between the two actions.

Njema responds that the JPML determined that both actions contained common questions of fact “worthy of consideration” of a judicial transfer because the JPML accepted Njema’s transfer motion for filing and created a briefing schedule. However, the acceptance of a transfer motion and creation of a briefing schedule is an automatic clerical function mandated by JPML Rule 6.2(b); it does not suggest that the JPML believed Njema’s transfer motion had any merit. Therefore, the district court did not abuse its discretion in denying Njema’s motion to certify trespass as a related claim.

B. Approval of the Class Action Settlement

A district court may approve a class action settlement only after finding that it is “fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2). We review a district court’s order approving a class action settlement for abuse of discretion. Marshall v. Nat’l Football League, 787 F.3d 502, 508 (8th Cir. 2015). Njema argues that the district court abused its discretion for five reasons: (1) the court erred in analyzing the factors from Van Horn v. Trickey, 840 F.2d 604 (8th Cir. 1988); (2) the settlement will cost class members money, and the court violated the Class Action Fairness Act (“CAFA”) by not providing a written finding that non-monetary benefits to the class members substantially outweigh the monetary loss; (3) the release provision unfairly prevents class members from prosecuting related claims, and Wells Fargo violated the preliminary approval order by waiving this release provision in Njema’s individual action; (4) the incentive awards to the named plaintiffs were too small; and (5) Wells Fargo violated CAFA notice requirements. We address each argument in turn.

1. Analysis of the Van Horn Factors

To determine whether a settlement is “fair, reasonable, and adequate,” district courts must analyze the four Van Horn factors: “the merits of the plaintiff’s case, weighed against the terms of the settlement; the defendant’s financial condition; the complexity and expense of further litigation; and the amount of opposition to the settlement.” Van Horn, 840 F.2d at 607. The first factor is the “single most important factor.” Id. On review, “we ask whether the District Court considered all relevant factors, whether it was significantly influenced by an irrelevant factor, and whether in weighing the factors it committed a clear error of judgment.” Marshall, 787 F.3d at 508 (quoting Little Rock Sch. Dist. v. Pulaski Cty. Special Sch. Dist. No. 1, 921 F.2d 1371, 1391 (8th Cir. 1990)). Here, the court properly analyzed the Van Horn factors and concluded that they weighed in favor of approving the settlement.

The court found that the first factor, balancing the merits of the case against the settlement terms, weighed in favor of approving the settlement. The court observed that “the strength of the Plaintiffs’ legal claims is in question” because Wells Fargo had credible defenses such as that “some class members had signed loan modification agreements that rolled all outstanding fees into the principal balance of their loans,” thus releasing any claims related to those fees. Huyer v. Wells Fargo & Co., 314 F.R.D. 621, 626-27 (S.D.Iowa 2016). Njema challenges this conclusion by arguing that RICO does not allow such modifications. However, Njema cites no legal authority to support this argument, and even if he is correct, the court noted that “this was one of the first property-inspeetion-fee class actions to be filed nationwide” and “similar RICO claims in other class actions against major mortgage providers have been dismissed.” Id. Thus, at the very least, “Plaintiffs’ ability to recover by proceeding to trial was not inevitable.” Id. at 627. In contrast, the court found that the $25,750,000 settlement fund was “favorable to the class” and “ensures that class members will receive an adequate percentage of their damages.” Id. at 626-27. Indeed, according to Nje-ma’s own calculations, every class member who receives an award will receive at least $5 to compensate for an average inspection fee cost of $15. Therefore, the court did not err in concluding that the first factor weighed in favor of approving the settlement.

The court found that the second factor, the defendant’s financial condition, was neutral because Wells Fargo’s financial condition was stable. Njema does not dispute this finding.

The court found that the third factor, the'complexity and expense of further litigation, weighed in favor of approving the settlement. The court noted that proceeding to trial would be costly, extensive discovery was likely, a trial would last ten days to two weeks, and presenting complex financial data to lay jurors would be difficult. Njema points to no error in this finding, and we detect none.

The court found that the fourth factor, the amount of opposition to the settlement, was neutral. The district court recognized that only thirteen out of 2.7 million class members objected to the settlement, but the court gave this fact little weight because “class members may lack the time, resources, or information necessary to lodge an objection.” Id. at 627. Njema does not argue that the court erred in analyzing this factor. Rather, he argues that the court erred in concluding that the thirteen objections raised were meritless. However, Njema offers no explanation for his belief that the objections had merit, and we detect no error.

Because two factors weighed in favor of approving the settlement and two were neutral, the court concluded that the agreement was fair and reasonable. The district court did not abuse its discretion in reaching this conclusion.

2. The Amount of the Settlement and the CAFA Written Finding Requirement

Njema next argues that the settlement will “cost” class members $10 to settle a $5 claim. Njema asserts that this “dubious low value settlement” is not “fair, reasonable, and adequate.” He also argues that the district court violated CAFA because, under CAFA, settlements cannot constitute a net financial loss to individual plaintiffs unless the court makes a “written finding that non-monetary benefits to the class member substantially outweigh the monetary loss.” See 28 U.S.C. § 1713.

However, Njema uses faulty math. He concludes that the settlement “costs” each class member $10 because the average cost of the inspections fees was $15 and because, assuming all class members receive a settlement award, each class member will recover only $5. But class members have already paid the inspection fees; the only remaining question is how much they can recover. According to Njema’s logic, any class action settlement that does not result in class members receiving the full value of the damages alleged in the complaint would be considered a “net loss” for the purpose of CAFA’s written finding requirement. This cannot be correct. Rather, CAFA requires a written finding only when the settlement obligates a class member “to pay sums to class counsel that would result in a net loss to the class member.” 28 U.S.C. § 1713. The terms of this settlement do not obligate class members to pay class counsel or to incur any additional expense to retrieve their awards. Attorneys’ fees will be deducted from the total settlement fund, and class members will receive a net gain from the remaining settlement funds. Therefore, this argument has no merit.

3. The Release Provision and Wells Fargo’s Waiver

Njema argues that the release provision barring class members from prosecuting claims relating.to property inspection fees is “unfair and creates ‘plain legal prejudice’ against appellant or others [sic] class members who would rather not be bound by the terms of the agreement.” Further, Njema argues that Wells Fargo violated the district court’s preliminary approval order by waiving the injunction so that Njema’s trespass claim could proceed to trial in the Minnesota district court.

However, as the district court noted when denying' Njema’s motion to certify trespass as a related claim, “no class member is required to waive a trespass claim in order to recover under the pending settlement because the claims are not related.” Thus, the release provision does not prejudice class members who wish to litigate trespass claims separately. Furthermore, Njema fails to explain how Wells Fargo’s purported waiver of the release provision in his individual action would render the settlement agreement unfair or violate the district court’s preliminary approval order. Thus, he fails to show an abuse of discretion.

L Amount of Incentive Awards to Named Plaintiffs

Njema next argues that the $10,000 incentive awards to the named plaintiffs were “unfair for the named plaintiffs as their lives have been disrupted while carrying their obligation on behalf of the numerous class.” However, Njema lacks standing to argue that the incentive awards are too small. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (“[A] plaintiff must demonstrate standing separately for each form of relief sought.”). Njema is not a named plaintiff, so he is not injured by the district court’s decision not to award larger sums. See Lujan v. Def’s of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (holding that the first requirement of standing is that the plaintiff must have suffered an “injury in fact”); United States v. Northshore Mining Co., 576 F.3d 840, 848 (8th Cir. 2009) (“[A] party’s aggrieved status does not extend to the vindication of the private interests of third parties.” (quotation omitted)).

5. CAFA Notice Requirement

Lastly, Njema argues that the district court erred in approving the settlement because Wells Fargo did not serve notice on the appropriate government officials. CAFA requires that, within ten days of the filing of a proposed class action settlement, each defendant must provide notice of the proposed settlement to “the appropriate State official of each State in which a class member resides and the appropriate Federal official.” 28 U.S.C. § 1715(b). Njema argues that this requirement was violated because he “is not aware that such notices were sent as no references of such a notice exist in the approval order.”

However, this issue is waived because neither Njema nor any other objector raised this issue in the district court. See Quinn v. St. Louis Cty., 653 F.3d 745, 752 n.6 (8th Cir. 2011) (holding that a party waives a claim by failing to present it to the district court). Because Njema did not raise the issue before the district court, no evidentiary record was created to evaluate this claim, and we decline to address it.

III. CONCLUSION

In conclusion, none of Njema’s arguments persuade us that the district court abused its discretion in denying joinder or approving the settlement agreement. Therefore, we affirm the judgment of the district court.

      . The Honorable Robert W. Pratt, United States District Judge for the Southern District of Iowa.

      . The pleadings related to Njema’s individual action are contained within the supplemental appendix filed along with Well Fargo’s motion to supplement the record, which we grant.

      . Njema also argues that the district court erred in denying his request to add himself as a named subclass representative under Rule 19. However, because this argument depends on the court creating a new subclass for trespass claims, it necessarily fails in light of the above analysis.

      . Njema’s only response to this finding is that the "claims contained sufficient evidence to provide ample persuasive evidence to a jury” because his own trespass claim survived a motion for summary judgment. However, this argument addresses only the likelihood of success on the merits, which implicates the first Van Horn factor. Even under that factor, Njema’s chances of success on his individual trespass claim do not reflect the class members' chances of success on the property inspection fee claims. Thus, his argument is unavailing.