author: HAMILTON, Circuit Judge.

text:
    Herbert DIGGS, Plaintiff-Appellant, v. Parthasarathi GHOSH, et al., Defendants-Appellees.
    No. 16-1175
    United States Court of Appeals, Seventh Circuit.
    Submitted February 21, 2017

    Decided March 13, 2017

      Herbert Diggs, Pro Se.
    Julie Ann Teuscher, Attorney, Matthew H. Weller, Cassiday Schade LLP, Chicago, IL, for Defendants-Appellees Parthasara-thi Ghosh, Sáleh Obaisi, and Imhotep Carter.
    Mary Ellen Welsh, Attorney, Office of the Attorney General, Civil Appeals Division, Chicago, IL, for Defendants-Appel-lees Marcus Hardy and Randy Pflster.
    Before WOOD, Chief Judge, and POSNER and HAMILTON, Circuit Judges.

       We have agreed to decide this case without oral argument because the briefs and record adequately present the facts and legal argu-merits, and oral argument would not significantly aid the court. See Fed. R. App. 34(a)(2)(C).

   HAMILTON, Circuit Judge.

In 2014, Herbert Diggs, an Illinois prisoner, sued three doctors and the former warden of Stateville Correctional Center, asserting principally that they were deliberately indifferent to a full tear in his right knee’s anterior cruciate ligament (“ACL”). The tear had been diagnosed in 2009. When he filed suit in 2014 Diggs was (and for all we know he still is) waiting for surgery to repair the tear. The district court granted summary judgment for the defendants. We affirm in part and vacate and remand in part.

Because we are reviewing a grant of summary judgment, we consider facts that are undisputed, and where the evidence conflicts, we consider the version more favorable to plaintiff Diggs as the non-moving party. We also give him the benefit of reasonable inferences from the evidence. White v. City of Chicago, 829 F.3d 837, 841 (7th Cir. 2016). Diggs injured his knee in a fight with a cellmate in 2006, and for three years his ACL tear went undiagnosed. In the interim,' he repeatedly complained to medical staff about knee pain, swelling, and instability (fourteen times he orally requested treatment from medical staff), for which they gave him pain medication.

In July 2009, Dr. Parthasarathi Ghosh, the prison’s medical director, saw Diggs after he complained of right-knee instability. Dr. Ghosh recommended that Diggs be assigned to a lower bunk on a lower floor and ordered an MRI. The following month Dr. Ghosh referred Diggs to the University of Illinois:Chicago Medical Center (“UIC”) for the MRI, which revealed that his right ACL had a complete tear. Dr. Ghosh then got approval from Wexford Health Sources, Inc. (the private company that contracts with Illinois to provide medical care to prisoners) for Diggs to receive orthopedic follow-up at UIC. Wexford’s approval is required whenever an inmate needs outside medical care.

In October 2009, Diggs had his first of three visits with Dr. Alfonso Mejia, an orthopedist at UIC who is not a defendant in this case. Diggs had a range of motion in his knee of zero to ninety degrees, which Dr. Mejia thought was too stiff for ACL surgery. Dr. Mejia explained that Diggs needed “to be made into a better preoperative candidate” before being evaluated for knee surgery. Dr. Mejia recommended ibuprofen, a crutch, “extensive aggressive physical therapy,” and a follow-up appointment in four to'six weeks. A month later, at Dr. Ghosh’s request, Wexford pre-approved knee surgery for Diggs. From a constitutional standpoint, so far, so good. But then, notwithstanding Dr. Mejia’s recommendations, Diggs received no physical therapy and no medical follow-up. In February 2010, Diggs complained to Dr. Ghosh of continuing knee pain. Dr. Ghosh taught Diggs stretching exercises that he could perform in his cell, and he expanded Diggs’s medical permit to include a crutch, a knee sleeve, and special boots. Dr. Ghosh did not understand why the pre-approved surgery had not taken place, so he obtained approval from Wexford to have Diggs follow up with Dr. Mejia regarding the reason for the delay.

At a visit in July 2010, Diggs told Dr. Mejia that he had not received any physical therapy for his knee in the past nine months, and Dr. Mejia noted that his range of motion had decreased slightly to' ten to eighty degrees. Dr. Mejia recommended that Diggs receive physical therapy before being evaluated for surgery. Dr. Ghosh noted Mejia’s recommendation and promptly referred Diggs to the physical therapist, an outside contractor who came to the prison twice weekly. According to the physical therapist’s notes, Diggs steadily improved over the next two months and by October 2010 was “ready for surgery.” Dr. Ghosh initially approved the physical therapist’s recommendation for surgery, but he later decided to wait and to reevaluate the situation depending on whether Diggs continued to complain about pain.

Another two years passed, during which Diggs had no follow-up. Dr. Ghosh renewed Diggs’s medical permit in February 2011, but otherwise took no further action. Three months later, Dr. Imhotep Carter replaced Dr. Ghosh as the prison’s medical director, and he did not examine Diggs for nearly a year. In the meantime, Diggs regularly complained about his knee pain to other medical staff. When Dr. Carter examined Diggs in March 2012, he learned of Diggs’s knee injury, noted Diggs’s use of a crutch, and renewed his medical permits. But Dr. Carter did not follow up on Diggs’s knee, and he too left the prison two months later.

Roughly around this time, Diggs says, he repeatedly told the warden that his medical issues were being ignored. Marcus Hardy, Stateville’s warden from December 2009 to December 2012, did not recall having any conversations with Diggs or seeing him use a crutch. Diggs, on the other hand, said that he told Warden Hardy on approximately five occasions that he was awaiting ACL surgery, and that Warden Hardy responded by telling him to bring the issue up with the medical department. Shortly after Dr. Carter’s departure, Diggs filed an emergency grievance in which he requested surgery for his torn ACL and complained that his placement in a housing unit with stairs effectively confined him to his cell. Diggs says that Warden Hardy might have seen this grievance because the warden’s office reviews all emergency grievances. The warden’s office decided that his grievance was not an emergency and returned it to him four-days later. Diggs then resubmitted it through the normal grievance process. Months later it was denied by the Administrative Review Board.

In the meantime Dr. Saleh Obaisi had taken over as medical director. He assessed Diggs’s knee in September 2012. Dr. Obaisi obtained Wexford’s approval to refer Diggs back to UIC for follow-up. In December 2012, Dr. Mejia again examined Diggs, who still complained about knee pain and instability, and the doctor noted that Diggs had completed physical therapy and now had a normal range of motion (zero to 125 degrees). Dr. Mejia, with Dr. Obaisi’s approval, then referred Diggs to another orthopedist at UIC for a surgical evaluation.

In March 2013, Diggs saw Dr. Samuel Chmell, an orthopedist at UIC, who recommended (1) that Dr. Obaisi try to find a different hospital that had a physician who was willing to perform ACL reconstruction surgery on inmates (since the doctors at UIC would not) and (2) that Diggs receive more physical therapy for the time being. Dr. Obaisi, however, did not authorize any physical therapy. The next month Wexford approved Dr. Obaisi’s decision to find a local orthopedist to perform the surgery.

Shortly after Wexford approved the search, Dr. Obaisi examined Diggs, noted mild swelling in his knee, and prescribed pain medication. He twice wrote in his treatment notes that he wanted to send Diggs back to UIC (even though they would not evaluate Diggs for surgery), but a visit was never scheduled. He examined Diggs again in February 2014 for knee pain and suggested to Wexford that they send Diggs back to UIC. This time, however, Wexford advised Dr. Obaisi to again try to find another orthopedic surgeon for Diggs instead, and they discussed treatment options over the next four months.

In June 2014, Dr. Obaisi finally authorized another round of physical therapy for Diggs. But in November, Diggs still complained of pain and had swelling and tenderness in his knee. On January 5, 2015, .Dr. Ritz, a Wexford physician, reportedly told Dr. Obaisi that he should comply with UIC’s recommendation of no surgery and stop presenting Diggs’s ease to Wexford because no local doctor would perform the surgery. (Dr. Ritz apparently misunderstood UIC’s evaluation: the doctors there never disclaimed the need for surgery.)

Dr. Obaisi saw Diggs twice more in 2015. At appointments in May and June, Diggs reported that he had left-hip pain from overcompensating onto that leg, but a hip x-ray revealed no significant issues. Then in July, Dr. Obaisi referred Diggs to the Dreyer Medical Clinic, which had recently agreed with Wexford to treat State-ville inmates. In September Dr. Neena Szuch, an orthopedist at Dreyer, examined Diggs and found him “not an ideal candidate for ACL Reconstruction” because he performed only low-demand activities on a daily basis, had not complained of functional instability in his knee, and would not have access to daily physical therapy at the prison.

Diggs filed this civil-rights lawsuit in May 2014 and the district court early in the proceedings appointed counsel to represent him. Assisted by counsel, Diggs asserted that the doctors and Warden Hardy were deliberately indifferent toward his torn ACL and intentionally had caused him emotional distress. He also sought an injunction to compel Stateville’s current warden to authorize ACL surgery.

The district court granted summary judgment for all defendants. Regarding Diggs’s claims of deliberate indifference against the three prison doctors (Ghosh, Carter, and Obaisi), the court determined that the doctors’ treatment choices — which included “pain medication, some physical therapy, and various permits regarding physical activity to reduce strain on the knee” — were ones that other medical professionals would follow, especially because no doctor said that Diggs needed ACL surgery and Diggs’s range of motion in his knee had improved considerably after physical therapy. As for Diggs’s deliberate-indifference claim against Warden Hardy, the court concluded that Diggs did not provide facts showing that Hardy knew that the medical staff was supposedly mistreating him or not treating his ACL injury. Finally, regarding Diggs’s claims of intentional infliction of emotional distress, the court granted summary judgment for all defendants because it determined that Diggs had not established that any of the defendants’ conduct was extreme and outrageous.

On appeal Diggs, now proceeding pro se, first challenges the grant of summary judgment to the doctors on his deliberate-indifference claims. He maintains that the doctors delayed essential medical care and contravened the_ specialists’ recommendations.

Deliberate indifference requires that a defendant “knows of and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Whether a prison official or doctor was subjectively aware of a risk “is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Id. at 842, 114 S.Ct. 1970 (citation omitted). Although a difference of opinion among doctors is not enough to establish deliberate indifference, see, e.g., Petties v. Carter, 836 F.3d 722, 729 (7th Cir. 2016) (en banc), an inmate need not show that he was “literally ig-, nored” to prevail on a deliberate-indifference claim. Conley v. Birch, 796 F.3d 742, 748 (7th Cir. 2015) (citation omitted). “And if the defendant’s chosen ‘course of treatment’ departs radically from ‘accepted professional practice,’ a jury may infer from the treatment decision itself that no exercise of professional judgment actually occurred.” Zaya v. Sood, 836 F.3d 800, 805 (7th Cir. 2016).

With these standards in mind, we ask whether Diggs has put forward enough evidence to survive summary judgment with regard to the three doctors' — • Ghosh, Carter, and Obaisi — whom the district court addressed together in its analysis. The district court concluded that Diggs’s evidence was not sufficient: “The undisputed facts do not show that no minimally competent professional would have treated Plaintiffs injury in the manner of Defendants.” The record, observed the court, did not show that any doctor recommended ACL surgery, and it was “undisputed that Defendants did provide treatment options such as pain medication, some physical therapy, and various permits regarding physical activity to reduce strain on the knee.”

We begin with Dr. Ghosh, who — during the early stages of Diggs’s treatment— repeatedly delayed medical care despite a specialist’s recommendation to the contrary. The district court overlooked key evidence that would allow a jury to find that he knew of a substantial risk of serious harm and did nothing to protect Diggs. The court relied upon evidence that Dr. Ghosh gave Diggs pain medication, a medical permit, and a round of physical therapy that helped improve his range of motion. The court did not discuss, however, evidence that Dr. Ghosh twice disregarded the advice of the UIC specialist, Dr. Mejia. Dr. Ghosh first ignored Dr. .Mejia’s advice to give Diggs “extensive aggressive physical therapy”; for the next four months, Diggs received no treatment at all, and, at Diggs’s next follow-up, Dr. Mejia noted that Diggs’s range of motion had deteriorated. After that follow-up, Dr. Ghosh again deviated from the treatment recommended by the specialist. He gave Diggs physical therapy but disregarded Dr. Mejia’s recommendation that another followup be scheduled for a surgical evaluation. Dr. Ghosh then decided to monitor Diggs’s knee condition himself and took no further action. The district court said nothing about these questionable decisions, which resulted in treatment being unnecessarily delayed.

Similarly, the district court glossed over key details concerning Dr. Carter, who never followed up on Diggs’s knee injury at any point during his nine-month stint at Stateville (from July 2011 to May 2012). It is true, as Dr. Carter asserts, that he saw Diggs only once during his brief time working at the prison (and that was in regard to a heart issue). But the court did not address evidence that Dr. Carter knew of Diggs’s knee problems and did nothing. The court noted selective details about Dr. Carter — that he had reviewed all of Diggs’s medical records before the appointment, observed Diggs’s use of a crutch, and renewed Diggs’s existing medical permit. The court did not mention that Diggs testified at his deposition that he told Dr. Carter at that March 2012 visit that he was in pain and had been approved for ACL surgery or that the medical records reviewed by Dr. Carter contained numerous complaints he had recently made about knee pain and a prior authorization from Wexford for surgery. These unacknowledged facts are noteworthy because a jury could infer from them that Dr. Carter “knowingly disregarded” Diggs’s ACL tear by not recommending any treatment for him. Conley, 796 F.3d at 747.

The district court also overlooked evidence that Dr. Obaisi did not base his treatment decisions on medical judgment. The court acknowledged that “[o]nce a physician willing to perform the surgery was found, Dr. Obaisi submitted a request for a referral” for an orthopedic follow-up, but the court did not mention Dr. Obaisi’s decisions to do nothing about Diggs’s care. For over a year, Dr. Obaisi ignored Dr. Chmell’s advice to give Diggs more physical therapy, despite ' Diggs’s continued complaints of pain. Additionally, Dr. Obaisi largely ignored Dr. Chmell’s .other recommendation that he find a local surgeon to evaluate Diggs. After his initial search (of unknown scope), he wanted to send Diggs back to UIC so that they could make other recommendations, but he never did. Then when Dr. Ritz, a Wexford physician, told Dr. Obaisi to stop presenting Diggs’s case because Dr. Ritz mistakenly thought that the UIC doctors recommended no ACL surgery, Dr. Obaisi complied without question. Finally, for nine months, Dr. Obaisi took no action to obtain a surgical evaluation until Wexford found an orthopedist without his assistance. In evaluating Dr. Obaisi’s decisions, the district court did not address any of this evidence.

Diggs also argues that the district court improperly granted summary judgment to Warden Hardy. In the court’s view, Diggs had not “provided facts showing that Warden Hardy had any knowledge that [he] was not being treated for his injury or was being mistreated by medical staff.” Diggs, the court said, offered nothing to show that he informed Warden Hardy of his mistreatment, other than invoking conversations in which he told Warden Hardy that he was awaiting surgery.

The district court erred in concluding that Diggs did not present enough evidence to show that Warden Hardy knew that the medical staff was mistreating him. The court disregarded Diggs’s own sworn testimony that four or five times over three years he told Warden Hardy that he was waiting on surgery and had a painful knee injury. This testimony was sufficient to show that Warden Hardy had knowledge of Diggs’s predicament. It is undisputed that Warden Hardy took no action to investigate Diggs’s complaints, other than to tell Diggs to raise them with the medical staff. As a layperson, the warden could rely on the medical staffs expertise as long as he did not ignore Diggs or his mistreatment. See Arnett v. Webster, 658 F.3d 742, 755 (7th Cir. 2011); Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010). But Warden Hardy took no action in response to Diggs’s repeated complaints about his knee. Compare Perez v. Fenoglio, 792 F.3d 768, 782 (7th Cir. 2015) (plaintiff stated deliberate-indifference claim against grievance officials where they did not intervene after receiving several grievances regarding plaintiffs medical care), with Berry, 604 F.3d at 440 (plaintiff did not present sufficient facts from which a reasonable jury could infer that jail administrator was deliberately indifferent where he consulted with medical staff and responded to plaintiffs complaints).

Diggs’s claims for intentional infliction of emotional distress fail, however, because he has not presented sufficient facts from which a jury could infer that the defendants’ conduct was extreme and outrageous. See Dixon v. County of Cook, 819 F.3d 343, 351 (7th Cir. 2016) (applying Illinois law). As the district court explained, the doctors’ and Hardy’s actions “did not go beyond all bounds of decency so as to be considered intolerable in a civilized community.” Warden Hardy responded during his daily rounds to Diggs’s complaints. Drs. Ghosh and Obaisi provided some treatment over their tenures as medical director and did not threaten or harass Diggs. And Dr. Carter renewed a medical permit for Diggs’s knee. Simply put, the circumstances would not cause a reasonable person to think that any defendant’s conduct was outrageous.

Finally, Diggs' vigorously asserts that his recruited counsel in the district court rendered ineffective assistance by, among other things, not properly contesting the defendants’ statements of material facts. There is, however, no Sixth Amendment right to effective assistance of counsel in civil cases. See Pendell v. City of Peoria, 799 F.3d 916, 918 (7th Cir. 2015); Stanciel v. Gramley, 267 F.3d 575, 581 (7th Cir. 2001). We add, though, that notwithstanding the absence of such a constitutional right, pro se litigants’ requests for counsel are entitled to careful consideration, Pruitt v. Mote, 503 F.3d 647, 661 (7th Cir. 2007) (en banc), as the district court gave here.

Because a reasonable jury could find for Diggs on his deliberate-indifference claims against Warden Hardy and Doctors Ghosh, Carter, and Obaisi, we VACATE the grant of summary judgment on these claims and REMAND for further proceedings. We AFFIRM the judgment in all other respects.


source: Caselaw Access Project

author: BAUER, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Antwon D. JENKINS, Defendant-Appellant.
    No. 15-3068
    United States Court of Appeals, Seventh Circuit.
    Argued September 27, 2016
    Decided March 13, 2017

      Laura Reppert, Attorney, Office of the United States Attorney, Fairview Heights, IL, for Plaintiff-Appellee.
    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 Defendant-Appellant.
    Before BAUER, ROVNER, and HAMILTON, Circuit Judges.
   BAUER, Circuit Judge.

A two-year investigation into a drug-trafficking operation commenced in Spring 2011, when the Drug Enforcement Administration received a tip that Tyrone Carra-way was distributing narcotics in East St. Louis, Illinois. Agents enlisted a confidential source to make controlled purchases of crack cocaine from Cortez Yarbrough, one of Carraway’s distributors. In December 2011, DEA agents received authorization to wiretap Carraway’s phone. They learned from the wiretapped conversations that Carraway was obtaining cocaine from a barbershop in St. Louis, Missouri, operated by one Ernest Lyons; Richard Graham, Carraway’s cousin, acted as an intermediary between Carraway and Lyons. Carraway distributed cocaine from his father’s tire shop in East St. Louis, Illinois, referred to as “the Gate.”

On January 14, 2012, intercepted calls from Carraway’s phone revealed that he and Graham were going to retrieve narcotics from Lyons’ barbershop; surveillance teams near the barbershop observed Carr-away and Graham enter the barbershop and exit a short time later. Next, Carra-way’s vehicle headed toward the Gate in East St. Louis. During this trip, a surveillance team intercepted three calls between Carraway and Jenkins, using the phone number (618) XXX-4062.

During the first call, using coded language, Carraway told Jenkins that cocaine had arrived and that he would save some for him. In the second call, Carraway told Jenkins that he was in East St. Louis; Jenkins responded that he would meet Carraway in fifteen minutes. The last call was made as surveillance teams were monitoring the Gate. Jenkins told Carraway that he was “finna pull up.” A short time later, a black GMC Yukon with an Illinois temporary license plate number 244N250 pulled onto the lot. The car was registered to a Devontae Jenkins. Agents were unable to confirm who was driving the Yukon or observe what transpired inside the Gate because it was dark outside. The Yukon left after approximately five minutes.

On January- 28, 2012, agents intercepted phone calls between Carraway and Graham indicating that they planned to make another trip to the barbershop for cocaine. Surveillance teams at the barbershop observed Carraway and Graham arrive. The two went inside and stayed for about twenty minutes. Afterward, they ate at a nearby diner. While they were at the diner, agents intercepted a call between Jenkins and Carraway. Carraway told Jenkins that he would be heading to East St. Louis soon, and that he would call Jenkins, when he was on his way so that they could meet.

Surveillance teams followed Carraway and Graham to the Gate. Suspecting that Carraway would be distributing narcotics from the Gate, Special Agent Matthew McKnight contacted Jarrod Leckrone, an Illinois State Trooper, and instructed him to make a traffic stop near the Gate at the agent’s direction. While monitoring the Gate, agents intercepted another call between Carraway and Jenkins; Carraway told Jenkins that he could “come on this way.” A short time thereafter, agents observed the same Yukon from their January 14, 2012, surveillance arrive at the Gate. The Yukon left about five minutes later. Agents provided Leckrone with a description of the Yukon and its direction of travel. Leckrone noted that the vehicle had illegally tinted windows, the temporary registration was obscured, and the driver was not wearing a seat belt. He pulled the Yukon over eight blocks from the Gate.

Leckrone advised Jenkins, the driver of the vehicle, why he had been stopped. Jenkins admitted that he had not been wearing a seat belt. Leckrone observed that Jenkins acted nervous and excited; he also noticed an odor of burnt cannabis emanating from the vehicle. Leekrone asked Jenkins if he had any cannabis or other contraband in the car; Jenkins said no. At this point, an assisting officer arrived and Leekrone asked Jenkins to exit his vehicle so that it could be searched. Jenkins stood at the front of Leckrone’s squad car during the search. Leekrone searched the area of the dashboard and center console and found a plastic panel, behind which was a cellophane bag containing cocaine. He also found three cell phones which were “ringing one after another.” The phones were seized as part of the search.

Leekrone transported Jenkins to the Illinois State Police headquarters in Collins-ville, Illinois. McKnight also went to the headquarters, at which time Leekrone gave him the cocaine and cellular phones. McKnight searched the settings on one of the phones; he determined that its number was (618) XXX-4062, the same number fronrwhich agents had intercepted calls on January 14 and 28, 2012. Moreover, the call log showed recent calls to Carraway and Yarbrough. Leekrone read Jenkins his Miranda rights. Jenkins stated that the truck belonged to his cousin, and that he did not know anything about the cocaine recovered during the search. He refused to provide any further information.

On June 18, 2013, a grand jury charged Jenkins with conspiracy to distribute, and possession with intent to distribute'cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(l)(A)(ii), and 846, and possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Jenkins filed a motion to suppress evidence to exclude: the cocaine found in his car, evidence from the search of his phone, and any statements that he made.

On June 30, 2014, the district court denied in part and granted in part the motion to suppress. The court denied the motion as to the search of Jenkins’ vehicle and subsequent statements made by Jenkins. The court found that the vehicle search was invalid under the search incident to arrest exception, but permissible under the collective knowledge doctrine. The court found that the evidence was admissible because Leekrone had established independent probable cause, and normal police investigation would have inevitably led to the discovery of the evidence. The court granted the motion to suppress the results of the cell phone search, relying on Riley v. California, — U.S. -, 134 S.Ct. 2473, 2493, 189 L.Ed.2d 430 (2014), which held that a warrant must generally be obtained prior to searching an arrestee’s cell phone data.

The Government filed a motion to reconsider the motion to suppress. It argued that the evidence obtained from the cell phone search should be admitted, based on United States v. Flores-Lopez, 670 F.3d 803 (7th Cir. 2012); which held that searching a cell phone found on an arrestee’s person to identify its telephone number was a valid warrantless search incident to arrest. 670 F.3d at 809-10. The court granted the Government’s motion and permitted use of the cell phone evidence.

A three-day jury trial concluded on March 18, 2015, and Jenkins was found guilty of possession with intent to distribute cocaine. The court declared a mistrial on the conspiracy count and dismissed it.

The United States Probation Office prepared Jenkins’ Presentence Investigation Report, which concluded that Jenkins’ Sentencing Guidelines range was 27-33 months’ imprisonment. The PSR noted that Jenkins’ sentence could run concurrently, partially concurrently, or consecutively to his 308-month term of imprisonment on an unrelated conviction for kidnaping and using or carrying a firearm to commit a federal crime of violence. At sentencing, the court adopted the PSR as its own factual findings. The court sentenced Jenkins to 27 months’ imprisonment, and a term of 3 years’ supervised release. The court ordered Jenkins’ sentence to run consecutive to his sentence for kidnaping and using or carrying a firearm. This timely appeal followed.

On appeal, Jenkins challenges the district court’s denial of his motion to suppress, as well as the imposition of a consecutive rather than concurrent sentence. We address each of these arguments in turn.

I. Motion to Suppress

A. Constitutionality of Warrantless Cell Phone Search

Jenkins argues that the evidence derived from his cell phone should have been suppressed. “When reviewing a district court’s decision on a motion to suppress, we review findings of fact for clear error and conclusions of law de novo.” United States v. Guidry, 817 F.3d 997, 1005 (7th Cir. 2016) (citation omitted).

‘Where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing ... reasonableness generally requires the obtaining of a judicial warrant....” Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) (citation omitted). Thus, “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). One exception to the warrant requirement is for a search incident to a lawful arrest. See Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The justification for this exception is the protection of the arresting officer and the preservation of evidence. Id. at 762-63, 89 S.Ct. 2034.

In Riley, the Supreme Court grappled with how the search incident to arrest doctrine applies to modern cell phones. The Court declined to extend the categorical rule for searches incident to arrest to searches of data on cell phones. Riley, 134 S.Ct. at 2495. The Court unequivocally held: “Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple — get a warrant.” Id. The Court noted that “other case-specific exceptions may still justify a warrantless search of a particular phone[,]” such as the exigent circumstances exception. Id. at 2494. However, such exigencies, including the need to prevent the imminent destruction of evidence in individual cases, to pursue a fleeing suspect, and to assist persons who are seriously injured or are threatened with imminent injury, are not at issue here. See id.

Though the search took place before Riley was decided, we apply the new constitutional rule announced in Riley because this is the direct appeal of a criminal conviction. See Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). The Government concedes that the warrantless search of Jenkins’ cell phone was unlawful in light of Riley. However, this finding is not the end of the inquiry.

The Supreme Court haá held that unlawfully obtained evidence should not be suppressed “when the police act with an objectively ‘reasonable good-faith belief that their conduct is lawful.” Davis v. United States, 564 U.S. 229, 238, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) (quoting United States v. Leon, 468 U.S. 897, 909, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)). The Court instructed that “[p]olice practices trigger the harsh sanction of exclusion only when they are deliberate enough to yield ‘meaningful’ deterrence, and culpable enough to be ‘worth the price paid by the justice system.’ ” Id. at 240, 131 S.Ct. 2419 (alteration omitted) (quoting Herring v. United States, 555 U.S. 135, 144, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009)). Davis held that when “binding appellate precedent specifically authorizes a particular police practice,” officers should be able to employ such a practice without facing later suppression of evidence if that precedent is later overruled by the Supreme Court. Id. at 241, 131 S.Ct. 2419.

Here, the Government argued before the district court that our decision in Flores-Lopez specifically authorized the search of Jenkins’ cell phone, and thus Agent McKnight reasonably relied on binding appellate precedent in conducting the search. The district court agreed, and thus declined to suppress the evidence. The Government was correct that Flores-Lopez authorized the warrantless search of a cell phone seized incident to arrest until Riley upended it. However, because Flores-Lopez was decided after Jenkins’ cell phone was searched, Agent McKnight could not have reasonably relied upon it in conducting the search.

Undeterred, the Government argues that United States v. Gary, 790 F.3d 704 (7th Cir. 2015), and the cases cited therein, demonstrate that at the time of the search in this case, binding precedent permitted the search of cell phones seized incident to arrest. In Gary, police officers pulled over a vehicle in which the defendant was a passenger as part of an undercover drug operation. 790 F.3d at 706. Officers recovered twoJ cell phones from the defendant’s pockets that were seized incident to his arrest. Id. Officers transported defendant to the police station where he spoke with his parole officer. Id. At the station, his cell phones were placed on a table. Id. at 708. Later, a detective searched the phones, finding that the number of one of the phones matched the number that an undercover officer had called to set up the drug transaction. Id. The detective checked the call log of the cell phone and verified that it had received calls from the officer’s phone. Id.

The defendant, relying on Riley, argued that the warrantless search of the cell phones violated his Fourth Amendment rights and that the evidence adduced from the cell phone search should be suppressed. Id. Gary found that a Fourth Amendment violation had occurred, but it refused to apply the exclusionary rule because the officer had reasonably relied on binding appellate precedent in effect in 2009 when the search was conducted. Id.

Gary noted that in 2009, prior to Riley, the Supreme Court had recognized a categorical rule that permitted the police to conduct a search of a person incident to a lawful arrest. Id. at 709. Gary relied in part on United States v. Edwards, 415 U.S. 800, 805, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974), which upheld the search of an arrestee’s clothes taken .from him while he was in custody and the seizure of incriminating evidence that was found.

Furthermore, Gary found the facts of United States v. Ortiz, 84 F.3d 977 (7th Cir. 1996), “remarkably similar” and its holding persuasive. 790 F.3d at 710. In. Ortiz, federal agents, acting on the tip of a cooperating codefendant, contacted the pager number of the defendant. 84 F.3d at 982. At the agents’ request, the codefen-dant arranged a meeting with the defendant to obtain heroin. Id. When the defendant arrived, police officers arrested him. Id. Officers seized an electronic pager found on the defendant during a search. Id. While still at the scene of the arrest, officers retrieved its numeric messages to confirm that it was the same pager that agents had called earlier that day. Id. at 983. The defendant filed a motion to suppress evidence from the search of his pager. Id. at 984. Ortiz affirmed the denial of the defendant’s motion to suppress, finding that “the information from the pager was admissible because the officers conducted the search of its contents incident to the arrest.” Id.

Gary held that “the force of Ortiz was strong enough” to authorize the warrant-less search of a cell phone in Flores-Lopez. 790 F.3d at 710. Gary continued that it was objectively reasonable for the officers to rely on Ortiz as binding precedent when conducting the search. Id. at 710-11. Therefore, the Government concludes that Agent McKnight could rely on Ortiz and Gary as binding appellate precedent to search Jenkins’ cell phones incident to his arrest. The Government recognizes that Gary was decided in 2015, after the search of Jenkins’ cell phone transpired. However, it argues that Gary establishes that prior to Riley's announcement in 2014, the binding appellate precedent in this circuit permitted the warrantless search of Jenkins’ cell phone.

Jenkins argues that Gary and Ortiz are distinguishable because in those cases, the cell phones and pager were found on the arrestee’s person rather than in a vehicle. Jenkins relies on United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), abrogated on other grounds by California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991). In Chadwick, police conducted a warrantless search of a footlocker found in the arres-tee’s trunk over an hour after his arrest. 433 U.S. at 4, 97 S.Ct. 2476. Chadwick held that a warrant is required for searches “remote in time or place from the arrest” and precluded the police from searching “luggage or other personal property not immediately associated with the person of the arrestee[.]” Id. at 15, 97 S.Ct. 2476 (citation and internal quotation marks omitted). The Court found that' “[ujnlike searches of the person ... searches of possessions within an arrestee’s immediate control cannot be justified by any reduced expectations of privacy caused by the arrest.” Id. at 16, 97 S.Ct. 2476 n.10. Both Gary and Ortiz acknowledged the holding from Chadwick, and are properly understood to address the search of an arres-tee’s person rather than his vehicle. See Gary, 790 F.3d at 710-11; Ortiz, 84 F.3d at 984.

In response, the Government argues that it is “immaterial” that Jenkins’ cell phones were found in his vehicle as opposed to on his person. The Government cites Gant, which expounds upon the search incident to arrest doctrine. In Gant, the Court held that the search of a vehicle’s compartments and any containers therein is justified as a search incident to a lawful arrest when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” 556 U.S. at 343, 129 S.Ct. 1710 (quoting Thornton v. United States, 541 U.S. 615, 632, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004)).

But Gant specifically cabined its holding to instances in which “the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” Id. This limitation “ensures that the scope of a search incident to arrest is commensurate with its purposes of protecting arresting officers and safeguarding any evidence of the offense of arrest that an arrestee might conceal or destroy.” Id. at 339, 129 S.Ct. 1710. While we recognize that Jenkins was not handcuffed or secured inside Leckrone’s squad car at the time the search was executed, he was at the front of the squad car and in the company of another officer. Therefore, it seems implausible, and the Government does not argue, that he was within reaching distance of the center console. As a result, the safety and evidentiary concerns that undergird the reaching-distance rule are not present here.

We do not believe that Gary, Ortiz, or Gant “specifically authorize^]” the search of Jenkins’ cell phones. See Davis, 564 U.S. at 241, 131 S.Ct. 2419. The Government is essentially requesting that we extend the applicability of Ortiz from the search of an arrestee’s person to the search of the arrestee’s vehicle and electronic devices found therein; or conversely, that we ignore the limiting principle in Gant to permit the search of a compartment and its objects even when a defendant is not in reaching distance. But Davis requires a more exacting analysis. As we have recognized, “[t]he Davis exception for good faith reliance on controlling precedent does not reach so far as to excuse mistaken efforts to extend controlling precedents.” United States v. Rivera, 817 F.3d 339, 346 (7th Cir. 2016) (Hamilton, J. concurring in part and concurring in the judgments).

We conclude that McKnight’s search of Jenkins’ cell phone was not objectively reasonable, and therefore the Davis exception does not apply.

B. Harmless Error

When the Government seeks to introduce evidence that is the fruit of an unconstitutional search, the traditional remedy is exclusion. However, constitutional error that is harmless will not cause an otherwise valid conviction to be set aside. Mendoza v. United States, 755 F.3d 821, 829-30 (7th Cir. 2014) (citations omitted). The court must ask: “[i]s it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?” Kamlager v. Pollard, 715 F.3d 1010, 1016 (7th Cir. 2013) (quoting Neder v. United States, 527 U.S. 1, 18, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)).

Jenkins argues that without McKnight’s cell phone search, the Government could not prove that he was using the (618) XXX-4062 number to arrange the drug transactions. He contends that the information obtained through McKnight’s search was necessary to his conviction. We disagree. Even if the evidence from Jenkins’ cell phone had been suppressed, the jury heard ample evidence demonstrating Jenkins’ guilt. Specifically, it heard the three phone calls between Carraway’s phone and (618) XXX-4062 on January 14, 2012, revealing that a drug transaction was to take place at the Gate. The jury was presented with details of the agents’ surveillance of the Gate — that a male using the (618) XXX-4062 number called Carra-way to tell him that he was about to arrive, and that a black GMC Yukon registered to Devontae Jenkins arrived and left five minutes later.

Further, the jury heard the details of the drug transaction on January 28, 2012, including another call between Carraway and (618) XXX-4062 to arrange the transaction at the Gate. The jury also heard that agents observed the same black GMC Yukon arrive at the Gate, and leave shortly thereafter. The jury heard that from there, Leekrone pulled over the Yukon’s driver and sole occupant, Jenkins, who had over 81 grams of cocaine in his possession. The jury heard the additional details of the traffic stop. In addition, the jury heard testimony from Carraway identifying Jenkins as the individual that he spoke and messaged with at the (618) XXX-4062 number on January 14 and 28, 2012. Carr-away also confirmed that he sold Jenkins drugs two or three times beginning in Winter 2011 and into 2012.

Moreover, in our view, the surveillance evidence, in conjunction with Carraway’s testimony, provided the jury with substantial evidence tying Jenkins to the cell phone. Jenkins counters that Carraway’s testimony should not be given weight because he had credibility issues resulting from the fact that he was testifying in exchange for a reduced sentence. Jenkins assumes the jury would not have given weight to his testimony because he was “untrustworthy.” The Government routinely puts on witnesses at trial who are testifying in exchange for reduced sentences. If the jury has been properly instructed— that they should consider such testimony with caution and great care — the testimony is just something else for the jury to consider.

We find that the testimony of Carraway, along with the other witnesses and corroborating evidence, overwhelmingly demonstrates Jenkins’ guilt beyond a reasonable doubt and renders the jury’s exposure to the cell phone search harmless. Accordingly, we will not reverse Jenkins’ conviction.

II. Sentencing Error

Next, Jenkins argues that the district court erred in imposing a sentence consecutive to rather than concurrent with his sentence for kidnaping. Specifically, Jenkins argues that the court improperly relied on conduct related to the conspiracy charge, for which the court declared a mistrial, as a basis for imposing a consecutive rather than concurrent sentence. We review Jenkins’ criminal sentence in two steps: first for procedural error, then for substantive reasonableness. United States v. Warner, 792 F.3d 847, 855 (7th Cir. 2015) (citing Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)).

Because Jenkins did not object to the alleged error at the sentencing hearing, plain error is the standard of review. United States v. Chatman, 805 F.3d 840, 843 (7th Cir. 2015). To demonstrate plain error, a defendant must establish that (1) there was in fact an error; (2) the error was plain; (3) the error affected the defendant’s “substantial rights”; and (4) “the court ‘should exercise its discretion to correct the error because it seriously affected the fairness, integrity, or public reputation of the judicial proceedings.’ ” Id. at 843-44 (quoting United States v. Durham, 645 F.3d 883, 890 (7th Cir. 2011)).

Jenkins’ argument fails upon consideration of the first factor. At the sentencing hearing, the district court judge adopted the facts as set forth in the PSR. The district court judge noted that Jenkins’ case involved “a very large conspiracy,” but that Jenkins was not heavily involved. He also found that there was sufficient evidence to convict on the conspiracy count, but never stated that he was sentencing Jenkins on the basis of the conspiracy count. In fact, he observed that there was ample, credible evidence to support Jenkins’ conviction for possession with intent to distribute cocaine.

Jenkins argues that the district court judge’s comments about the conspiracy imply that he impermissibly considered the conspiracy count when fashioning his sentence. First, this is a misreading of the district court judge’s comments. While he believed there was sufficient evidence to sustain the conspiracy count, it is clear that he relied on the possession count, which he appropriately described as a “significant crime,” as the basis .for his sentence. The comments simply do not convey that the court actually relied on the conspiracy charge in determining Jenkins’ sentence. Further, the court made it clear that it was imposing a consecutive sentence as a result of Jenkins’ criminal history, the seriousness of the offense, and the need for just punishment, not on the basis of any conspiracy-related conduct.

However, we note that “a wide range of conduct is relevant at sentencing — including uncharged conduct and charges of which the defendant was acquitted — so long as that conduct is established by a preponderance of the evidence.” United States v. Heckel, 570 F.3d 791, 797 (7th Cir. 2009) (citing United States v. Watts, 519 U.S. 148, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997)); see also 18 U.S.C. § 3661; U.S.S.G. § 1B1.4. The district court judge found that the Government’s evidence was credible and largely uncontested. We agree. For his part, Jenkins does not seriously dispute the accuracy of any information in the PSR or evidence adduced at trial. Therefore, even if the district court judge had considered evidence related to the conspiracy charge, he would have been entitled to do so. Accordingly, Jenkins’ procedural challenge fails.

Having concluded the district court followed sound procedure, we will now determine whether that procedure led to its intended outcome: substantively reasonable punishment. We conduct this review for abuse of discretion. Because Jenkins’ Guidelines range was correctly calculated and the district court sentenced him within that range, the sentence is presumed reasonable on appeal. Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007).

“We will uphold [a] sentence so long as the district court offered an adequate statement of its reasons, consistent with 18 U.S.C. § 3553(a), for imposing such a sentence.” United States v. Abebe, 651 F.3d 653, 657 (7th Cir. 2011) (citation and quotation marks omitted). “Although the district judge is not required to make factual findings as to each of the [§ 3553(a) ] factors, the record on appeal should reveal that the district judge considered the factors.” United States v. Collins, 640 F.3d 265, 270 (7th Cir. 2011) (citation omitted). “It is simply not required that the sentencing judge tick off every possible sentencing factor or detail and discuss, separately, every nuance of every argument raised for this court to find that the sentence was proper.” Id. at 271.

As discussed above, the court clearly identified the § 3553(a) factors that it believed warranted the imposition of a consecutive sentence: Jenkins’ “substantial” criminal history; the seriousness of the offense; the need for just punishment; and to promote respect for the law. The court remarked that Jenkins “thumbs his nose at the rules” and believes that “the rales and laws don’t apply to him.” As a result, the court believed that a consecutive rather than concurrent sentence was most appropriate. We have held that “undoubtedly a sentencing court enjoys broad discretion in deciding whether to run concurrent or consecutive terms.” United States v. Bour, 804 F.3d 880, 885 (7th Cir. 2015) (citation and quotation marks omitted). We do not find Jenkins’ sentence to be an abuse of that broad discretion. Consequently, Jenkins’ sentence is substantively reasonable.

For the foregoing reasons, we AFFIRM Jenkins’ conviction and sentence.

      . In Jenkins’ opening brief, he alleges that at the time the search was executed he had already been placed in Leckrone’s squad car. However, Jenkins cannot marshal any evidence to support this claim, and it is belied by the record. Jenkins appears to abandon this factual dispute in his reply brief. Therefore, we will disregard Jenkins’ factual challenge and view the facts in accordance with the trial testimony.

      . During the pendency of this appeal, Jenkins' conviction for using or carrying a firearm to commit a federal crime of violence was reversed by this Court. See United States v. Jenkins, 849 F.3d 390, 395 (7th Cir. 2017). Jenkins was sentenced to 120 months for using or carrying a firearm, to run consecutively to a 188-month sentence for kidnaping. The case has been remanded for further proceedings.

      . The Government argues that a cell phone fits into the definition of "container” as the term is used in Gant because a cell phone "contains data.” We recognize that Flores-Lopez found that this was a plausible interpretation of the word container. See 670 F.3d at 805. But again, Flores-Lopez had not been decided at the time of the search in this case. Therefore, the Government may not rely upon it as binding appellate precedent. In any event, the Supreme Court rejected this argument in Riley, 134 S.Ct. at 2491.


author: POSNER, Circuit Judge.

text:
    David B. SHINER, Plaintiff-Appellee, v. Bernard TURNOY, Defendant-Appellant.
    No. 14-2999
    United States Court of Appeals, Seventh Circuit.
    Argued March 1, 2017
    Decided March 16, 2017

      Sanjay Shivpuri, Attorney, CHUHAK & TECSON, P.C., Chicago, IL, for Plaintiff-Appellee.
    Matthew Lee Stone, Attorney, SCHNEIDER & STONE, Skokie, IL, for Defendant-Appellant.
    Before POSNER, SYKES, and HAMILTON, Circuit Judges.
   POSNER, Circuit Judge.

Bernard Turnoy, the appellant, is an insurance broker who had sold insurance policies to David Shiner’s in-laws for decades. After Shiner (a successful lawyer in Chicago whose practice focuses on tax and estate planning) demanded that Turnoy split with him the commissions on new policies on the life of Shiner’s mother-in-law, Turnoy sent him a check for $149,000, which was about half the commissions that Turnoy had thus far obtained. Insisting that $149,000 was too little, Shiner sued Turnoy in an Illinois state court for breach of contract. While that suit was pending, Shiner brought a second suit against Tur-noy, this one a suit in federal district court, charging that Turnoy had committed tax fraud, in violation of 26 U.S.C. § 7434 by reporting to the IRS on Form 1099 his payment of the $149,000 to Shiner as income to Shiner when in fact, Shiner argued, he (Shiner) had refused to accept the check because had he done so he would have forfeited his claim to be owed more than $149,000 by Turnoy.

The district judge, convinced by this very weak argument and unaccountably hostile to Turnoy, ruled in favor of Shiner and ordered Turnoy to pay Shiner damages of $16,000 for the alleged fraud. That ruling was erroneous, because the state court had rejected Shiner’s breach of contract claim the day before the district court’s decision (though in fairness to the district judge, we point out that he would not yet have been aware of the state court’s decision), thus establishing that Shiner was entitled to no more than the $149,000 that he’d already received from Turnoy.

It’s true that Turnoy had placed a restrictive endorsement on the back of his check to Shiner, stating that by cashing the check Shiner accepted $149,000' as the full payment he was owed by Turnoy. U.S. Treasury regulations provide that a cheek received but not cashed (Shiner did not cash the check) counts as income for tax purposes only if “credited or set apart to a person without any substantial limitation or restriction as to the time or manner of payment or condition upon which payment is to be made,” Treas. Reg. § 1.6041-l(h), and Shiner argued in the district court that the restrictive endorsement constituted a “substantial limitation or restriction.” But Turnoy had filed the Form 1099 more than a month after sending the check to Shiner, and during that time Shiner had neither asked Turnoy for a new check — a check without a restrictive endorsement— nor otherwise communicated to Turnoy a rejection of the check. Shiner’s inaction gave Turnoy a solid basis for believing that Shiner had accepted the check Turnoy had sent him despite the restrictive endorsement, so Turnoy’s filing of the Form 1099 could not have been “willfully ... fraudulent,” as required by 26 U.S.C. § 7434.

But as there was the district court’s decision to reckon with despite its manifest deficiencies, Turnoy appealed to us — and Shiner hasn’t bothered to defend the district court’s ruling. In fact he’s told us he’s not filing a brief, or anything else (a motion for example), because he believes the case to be moot. The case is not moot (if it were, we wouldn’t have jurisdiction to hear the appeal). Shiner’s groundless litigation against Turnoy, culminating in the district judge’s angry unsound judgment in Shiner’s favor, has by branding Turnoy a tax fraud prevented him (he tells us without contradiction from Shiner) from obtaining errors and omissions insurance that he needs as an insurance broker. His continued interest in clearing his name of the judgment prevents the case from being moot even though he has discharged in bankruptcy his liability for the $16,000 of damages imposed on him by the district judge. “So long as the appellate court can fashion some form of meaningful relief to the prevailing party, an appeal is not moot, and the appellate court retains the jurisdiction to consider it.” McKinney v. Indiana Michigan Power Co., 113 F.3d 770, 772 (7th Cir. 1997).

The judgment of the district court is reversed and the ease remanded with directions to grant summary judgment for Turnoy.