author: MANION, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Lloyd B. LOCKWOOD, Defendant-Appellant.
    No. 15-3856
    United States Court of Appeals, Seventh Circuit.
    Argued September 22, 2016
    Decided November 1, 2016

      Jason M. Bohm, Attorney, Office of the United States Attorney, Urbana Division, Urbana, IL, Greggory R. Walters, Attorney, Office of the United States Attorney, Peoria, IL, for Plaintiff-Appellee.
    Erin Lange Ramamurthy, John Lausch, Attorneys, Kirkland & Ellis LLP, Chicago, IL, for Defendant-Appellant.

      Before BAUER, POSNER, and MANION, Circuit Judges.
   MANION, Circuit Judge.

This case returns for a second time. Lloyd Lockwood appeals his 120-month sentence.for possession of a destructive device. Previously, we vacated Lockwood’s first sentence of the same length. This time, for the reasons set forth below, we affirm.

I. Background

A. Conviction and First Sentencing

In an attempt to gain an advantage in a family dispute, Susie Curtis asked her longtime friend Lloyd Lockwood to place a package in her brother’s truck and then report to the police that it contained a bomb. Lockwood agreed to do it, but upon arrival at the brother’s house, he failed to locate the truck. As a result, Lockwood decided to place the bomb in the brother’s mailbox. He then immediately called the police and reported that the brother had a bomb and planned to blow up his office. An initial bomb-squad search turned up nothing, but Curtis’s sister-in-law discovered the package in the couple’s mailbox later that day. Authorities determined that the package contained a pipe bomb that was incapable of detonation because it was not connected to a power source.

After reviewing Curtis’s phone records, federal agents zeroed in on Lockwood. The government eventually charged him with possession of a destructive device. Before trial, Lockwood stipulated that the pipe bomb qualified as a destructive device under federal law. As a result, he necessarily staked his entire defense at trial on his supposed ignorance that the package contained a bomb. The jury was unconvinced and convicted him.

The district court sentenced Lockwood to the statutory maximum 120 months’ imprisonment, well above the Guidelines range of 33-41 months. The court concluded that Lockwood had to be incapacitated, but it based that finding on only a short, non-detailed description of Lockwood’s criminal history and a cursory discussion of the crime of conviction. See Lockwood I, 789 F.3d at 778-79.

On appeal, we affirmed his conviction but vacated his sentence. We held that the district court did not explain adequately “why Lockwood is different from the vast majority of defendants” who receive within-Guidelines sentences. Id. at 782. In short, the district court’s description of Lockwood’s crime and brief notation of his “extensive criminal record” was insufficient to show' why Lockwood should receive a sentence nearly three times the top of the Guidelines range. Id.

B. Resentencing

On remand, the district court again imposed- a 120-month sentence. This time, however, it detailed its justification in a lengthy sentencing order. The court recounted testimony from Lockwood’s ex-wife and her sister, both of whom spoke about Lockwood’s propensity for violence that continued even while he was on pretrial release in this case. Although Lockwood’s criminal history category was I, the court found that “his Guideline criminal history and criminal history category do not reflect the full magnitude of his criminal conduct.” It extensively detailed his troubling history, which includes several domestic incidents wherein' he threatened to kill women, one of which resulted in a conviction for aggravated arson when he burned down a girlfriend’s apartment building. See People v. Lockwood, 240 Ill.App.3d 137, 181 Ill.Dec. 59, 608 N.E.2d 132 (1992).

Ultimately, the district court concluded that Lockwood should be incapacitated for a significant time to protect the public and those closest to him. Based on the evidence and Lockwood’s demeanor, the court deemed Lockwood a “sociopath” who showed little remorse for his actions and had made a lifetime , of excuses for criminal behavior. Since the court held “very little hope for Lockwood’s rehabilitation or behavior modification,” it sentenced him to the ten-year- maximum. Again, Lockwood timely appealed.

II. Discussion

A. Procedural Soundness

We review Lockwood’s .procedural challenge de novo. Lockwood I, 789 F.3d at 781. “A sentencing court commits procedural error by not adequately explaining its choice of sentence.” Id. (quoting United States v. Lyons, 733 F.3d 777, 784 (7th Cir. 2013)). To ensure that the sentencing judge did not commit any “significant procedural error,” Gall v. United States, 552 U.S. 38, 53, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), we examine whether the district court: i) properly calculated the Guidelines range; ii) recognized that the Guidelines range was not mandatory; iii) considered the sentencing factors in 18 U.S.C. § 3553(a); iv) selected a sentence based on facts that were not clearly erroneous; and v) adequately explained the chosen sentence including an explanation for any deviation from the Guidelines range. Lockwood I, 789 F.3d at 781.

If the sentencing court decides that an above-Guidelines sentence is warranted, it must “consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of variance.” Gall, 552 U.S. at 50, 128 S.Ct. 586. The court must “adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.” Id. The sentencing judge also must address a defendant’s “principal arguments in mitigation unless they are too weak to merit discussion.” United States v. Garcia-Segura, 717 F.3d 566, 568 (7th Cir. 2013). The ultimate question is not whether the sentence imposed could be a reasonable one, but whether the reasons given are sufficiently compelling to support the upward departure. Lockwood I, 789 F.3d at 781.

In this case, the district court properly calculated the Guidelines range, acknowledged that the range was mandatory, and considered the Section 3553(a) factors. Thus, only the final two, somewhat related procedural requirements are at issue. Lockwood contends that the district court relied on erroneous facts and failed to explain adequately the upward departure. According to Lockwood, the court made four specific errors: (1) it improperly credited the testimony of his ex-wife and former sister-in-law to establish his propensity for violence; (2) it impi-operly inferred that the pipe bomb he deposited was capable of harm; (3) it relied too heavily on his criminal history despite the age of his convictions; and (4) it failed to sufficiently address his mitigation arguments. Lockwood’s first two arguments allege that the district court relied on clearly erroneous facts, while the third alleges a failure .to explain the chosen sentence adequately. We consider and reject these arguments in turn.

1. Sisters’ Testimony

Lockwood contends that the district court should have disregarded some of Crystal Jarvis’s testimony. He says that Jarvis, his former sister-in-law, was clearly biased and that part of her testimony was fatally inconsistent. Lockwood particularly takes issue with Jarvis’s claim at the hearing that Lockwood had a gun when he threatened her while on release in this case. That testimony contradicts what she told police when she first reported the incident in 2012. The district court credited her in-court testimony and found that Lockwood pointed a gun at her and threatened to kill her.

“[D]eterminations of witness credibility are entitled to great deference and ‘can virtually never be clear error.’ ” United States v. Ortiz, 431 F.3d 1035, 1039 (7th Cir. 2005) (quoting United States v. Blalock, 321 F.3d 686, 690 (7th Cir. 2003)). Unless a witness’s testimony describes events that are impossible, either physically or under the laws of nature, the district court is within its discretion to credit that testimony. Id. Inconsistencies in • a witness’s testimony are not enough to meet this standard. See id. at 1040. Nor is potential bias. Indeed, a district court “may credit testimony that is ‘totally uncorroborated and comes from an admitted liar, convicted felon, or large scale drug-dealing, paid government informant.’ ” United States v. White, 360 F.3d 718, 720 (7th Cir. 2004) (quoting Blalock, 321 F.3d at 690). The court’s decision to credit Jarvis’s testimony was not clear error.

Next, Lockwood takes issue with the district court’s recitation of certain testimony from his ex-wife, Tonya Sexton. Specifically, the court recounted that “Sexton spoke of evidence of fires (a charred paper towel stuffed into, her car’s fuel tank filler neck, and a fire smouldering upstairs in their house after Lockwood left the house one morning).” It cautioned that Sexton “could not be sure Lockwood had anything to do with either occurrence,” but noted that “Lockwood is no stranger to fire as a means of intimidation.”

Lockwood claims that the district court improperly inferred that he was involved in those incidents. The text of the sentencing order says otherwise. The court credited Sexton’s testimony that the incidents occurred, but also her uncertainty about Lockwood’s involvement. It also alluded to Lockwood’s past arson conviction. That is not equivalent to a factual finding that Lockwood was involved in the incidents with Sexton. The court did not rely on any clearly erroneous facts with respect to her testimony.

2. The Bomb’s Ability to Cause Harm

Lockwood next contends that the district court improperly inferred that the bomb he possessed was capable of harm. The sentencing order does say that Lockwood’s placement of the bomb in the mailbox “expos[ed] the mail carrier to harm.” But this is little more than a stray remark. The footnote attached to it dispels any concern that the court relied on a clearly erroneous fact. The court knew that the bomb was not capable of detonation, so it could not possibly have relied on the fact that it was so capable.

3. Reliance on Lockwood’s Criminal History

Lockwood contends that the district court did not adequately explain its upward departure because it again focused too heavily on his criminal history.' In Lockwood I, we held that the district court erred when it “focused almost exclusively on Lockwood’s previous criminal history, but sprinkled in a mention of his current offense and two comments about the need to incapacitate him.” Lockwood I, 789 F.3d at 782-83. We found that insufficient to justify a sentence almost three times the upper Guideline. According to Lockwood, the district court has repeated its error.’

The sentencing order on remand bears little resemblance to the brief comments the judge made at Lockwood's first sentencing hearing. We described the court’s justification for Lockwood’s first sentence as merely a “truncated reference to [his] criminal history, a mention of the current offense, and two comments about incapacitation.” Id. at 783. At resentencing, the court significantly expanded on its discussion of Lockwood’s dangerous history. It also credited the testimony of Jarvis arid Sexton that described Lockwood’s propensity for violence against women and showed that it was not behind him. In short, the court provided much more than a truncated reference to Lockwood’s history-

Moreover, the district court specifically addressed the necessity of an upward departure in Lockwood’s case. The sentencing order explained in detail how his criminal history category (I) does “not reflect the full magnitude of his criminal conduct.” In United States v. McIntyre, 531 F.3d 481 (7th Cir. 2008) (per curiam), we recognized that an upward departure may be appropriate when a defendant’s criminal history category underrepresents his actual criminal history. There, the defendant had engaged in a life of crime and would have been sentenced as a career offender “had it not been for a quirk in Massachusetts law.” Id. at 484. We affirmed his 144-month sentence for hank robbery although the top of the Guidelines range was just 46 months. Id. at 482. This case is quite similar. The district court adequately explained that Lockwood would have been sentenced as an Armed Career Criminal but for our decision in Buchmeier v. United States, 581 F.3d 561 (7th Cir. 2009). This was sufficient justification for the upward departure.

Finally, the court made some other observations that distinguish Lockwood from the run-of-the-mill offender. Specifically, the court focused on Lockwood’s refusal to take responsibility for his actions. It labeled his statement in allocution a “denial of reality” and found that his actions exhibited a “total lack of concern for the results of his conduct.” That is why the court thought Lockwood a “sociopath” with “very little hope” of rehabilitation. This explanation, coupled with the Guidelines’ underrepresentation of Lockwood’s criminal history, was not reversible error.

4. Lockwood’s Mitigation Arguments

As Lockwood correctly points out, sentencing courts'“must address a defendant’s principal arguments in mitigation unless they are too weak to merit discussion.” Garcia-Segura, 717 F.3d at 568. However, the sentencing order did reject all three mitigation arguments raised in Lockwood’s brief. The first two—Lockwood’s supposed expression of remorse and the staleness of his criminal history—require little further explanation. As discussed above, the district court simply did not believe that Lockwood was remorseful and thought his criminal history category significantly undersold the nature of his past. The court also rejected Lockwood’s final argument that he had been operating a legitimate car repair business for several years since he had been out of prison, finding instead that the business had operated at a loss. In sum, the district court satisfied the procedural requirement that it address all of Lockwood’s principal mitigation , arguments.

5. Overall Procedural Soundness

Having rejected Lockwood’s objections to the sentencing order, we conclude that the district court adequately explained its choice of sentence and did not rely on any erroneous facts in the sentencing order. Therefore, Lockwood’s re-sentencing was free from procedural error.

B. Substantive Reasonableness

We review the substantive reasonableness of a sentence only for abuse of discretion. United States v. Aldridge, 642 F.3d 537, 544 (7th Cir. 2011). We will affirm the 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.” McIntyre, 531 F.3d at 483. “There is no presumption that a sentence outside the guidelines’, range is unreasonable.” Aldridge, 642 F.3d at 544 (citing Gall, 552 U.S. at 51, 128 S.Ct. 586).

Lockwood proffers just one further argument. He contends that a statutory maximum sentence is unreasonable because many offenders receive less severe sentences for “worse” conduct, such as possession of a pipe bomb capable of detonation. Lockwood reasons that his sentence leaves no room for more culpable offenders to be sentenced more severely. He says that his sentence creates a significant risk of unwarranted sentencing disparities between defendants.

Lockwood relies on United States v. Kirkpatrick, 589 F.3d 414 (7th Cir. 2009), and United States v. Snyder, 635 F.3d 956 (7th Cir. 2011). Kirkpatrick involved a felon-in-possession defendant who was sentenced to 108 months’ imprisonment despite a Guidelines range of 37-46 months. The defendant had caused federal agents to waste 200 hours of investigatory time when he lied about killing four people and placing a contract hit on the federal agent investigating his case. Kirkpatrick, 589 F.3d at 415. We vacated the sentence because the district judge had “proceeded as if any sentence within the statutory maximum (10 years) needs no explanation beyond the conclusion .that something more than the top of the Guidelines’ range is in order.” Id. In other words, the court failed to explain why such a significant departure was warranted. The sentence, appeared to have been “chosen arbitrarily.” Id.

In Snyder, we vacated a statutory-maximum two-year sentence because the disr trict court had failed to consider the Guidelines range at all. 635 F.3d at 961. Because of that failure, we were not certain that the district court had “considered whether imposing what it believed to be the harshest possible sentence would lead to unwarranted disparities among similarly situated defendants.” Id. Indeed, we clarified that “[h]ad the district court correctly calculated and carefully reviewed the Guidelines range, we would be more confident that it also considered the need to avoid unwarranted disparities.” Id. The district court’s failure to consider the Guidelines range doomed the sentence.

Neither case helps Lockwood. Kirkpatrick stands for the proposition that sentencing judges must carefully explain significant upward departures from the Guidelines range. We afford significant deference to carefully explained upward departures. Kirkpatrick, 589 F.3d at 415. And Snyder holds only that district courts must carefully consider the Guidelines range before imposing an above-Guidelines sentence. Indeed, the Supreme Court has said that once a district judge does this, “he necessarily [gives] significant weight and consideration to the need to avoid unwarranted disparities.” Gall, 552 U.S. at 54, 128 S.Ct. 586.

In this case, the district court provided a careful, lengthy explanation for Lockwood’s statutory-maximum sentence and the upward departure from the Guidelines. It explained that Lockwood’s propensity for violence and lack of remorse warranted a much harsher sentence than Curtis received for the same crime. The simple fact that Lockwood received a harsher sentence than some defendants convicted of similar crimes does not establish an unwarranted disparity. In our legal tradition, each defendant is treated as a unique individual and “every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.” Id. at 52, 128 S.Ct. 586. We hold that the district court did not abuse its discretion in sentencing Lockwood to 120 months’ imprisonment.

III. Conclusion

The sentencing order on remand adequately explains the district court’s decision to sentence Lockwood to the statutory maximum of 120 months. We find no procedural error and conclude that his sentence is within the bounds of substantive reasonableness.

AFFIRMED.

      . A more detailed recitation of the facts relating to Lockwood's conviction is set forth in our initial decision in this case. United States v. Lockwood, 789 F.3d 773 (7th Cir. 2015) (Lockwood I). We present a brief summary here Lor the sake of clarity.

      . The presiding district judge retired after the trial. Judge Baker was assigned to the case for sentencing.

      . The footnote recognizes that ‘‘[t]he bomb was not attached to an energy source.”

      . Even if the use of the word "harm” was perhaps a poor choice, it was at most harmless error. Error is harmless when it "did not affect the district court’s selection of the sentence imposed.” United States v. Glosser, 623 F.3d 413, 419 (7th Cir. 2010) (quoting Williams v. United States, 503 U.S. 193, 203, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992)). The district court's stray statement that Lockwood’s actions "expos[ed] the mail carrier to harm” did not affect the court's overall analysis and choice of sentence. That sentence was instead based on the evidence of Lockwood’s propensity for violence and his failure to show any remorse or accept responsibility for his actions.


source: Caselaw Access Project

author: HAMILTON, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Deandre ARMOUR, Defendant-Appellant.
    No. 15-2170
    United States Court of Appeals, Seventh Circuit.
    Argued May 24, 2016
    Decided November 1, 2016

      William L. McCoskey, Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.
    Michelle L. Jacobs, Vanessa K. Eisen-mann, Biskupic & Jacobs, S.C., Mequon, WI, for Defendant-Appellant.
    Before ROVNER, SYKES, and HAMILTON, Circuit Judges.
   HAMILTON, Circuit Judge.

This appeal stems from an attempted bank robbery. It presents issues concerning the defendant’s sentence and the definition of a “crime of violence” in 18 U.S.C. § 924(c), which provides extra punishment for use of a firearm in committing a crime of violence. We affirm the district court’s judgment for the most part, but we must remand for re-sentencing on one count of conviction because the court imposed a mandatory minimum . sentence under § 924(c) without a jury finding on the key fact.

I. The Attempted Bank Robbery, Trial, and Sentence

On the morning of June 26, 2013, appellant Deandre Armour directed two other men as they attempted to rob a bank branch in a suburb of Indianapolis. Duryea Rogers and Xavier Hardy hid outside the bank entrance and forced a teller into the bank at gunpoint as she was opening the locked door. Armour sat in the bank parking lot and directed Rogers and Hardy by radio. Armour had recruited Rogers and Hardy before the robbery. He supplied them with clothing, reserved their hotel rooms, and orchestrated the plan.

Inside the bank, Hardy stood lookout for more arriving employees while Rogers ordered the teller to disable the bank’s alarm and open the safe. No other bank employees were trying to go inside the bank because they had not been given the all-clear signal. In the meantime, the' teller inside the. bank was unable to open the safe. Once Rogers realized the bank teller could.not open the safe, he told Armour over the radio that they needed to abort the robbery. Rogers and Hardy forced the teller to the floor, tied her with plastic “zip ties,” and stole her car to flee. All. three men were arrested quickly; two firearms were found with them.

Rogers and Hardy pled guilty. Both testified against Armour, who went to trial. The jury found Armour guilty on three charges; conspiracy to commit armed bank robbery under 18 U.S.C. § 371; aiding and abetting attempted armed bank robbery under 18 U.S.C. § 2113(a) and (d) and § 2; and aiding and abetting using or carrying and/or brandishing a firearm during and in relation to a crime of violence under 18 U.S.C. § 924(c). Armour was sentenced to a total of 324 months (27 years) in prison. The sentence included an 84-month (seven-year) consecutive sentence on the § 924(c) charge, which is the mandatory minimum sentence for brandishing a firearm.

On appeal, Armour does not challenge his convictions for conspiracy and aiding and abetting the attempted bank robbery. He makes three arguments. First, he argues his entire sentence was erroneously based on a finding that he was a career offender under the Sentencing- Guidelines. He contends, based on Samuel Johnson v. United States, 576 U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), that two prior Indiana convictions for robbery should no longer qualify as “crimes of violence” under the Guidelines. (Since there are two relevant opinions called Johnson v. United States, we include first names.) Second, also based on Samuel Johnson, he contends that the § 924(c) firearm conviction must be reversed because the underlying predicate offense, attempted armed bank robbery, should not qualify as a “crime of violence." Third, if his § 924(c) conviction stands, Armour contends that the seven-year mandatory minimum § 924(c) sentence should be vacated under Alleyne v. United States, 570 U.S.-, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), because the jury did not find that he aided and abetted the “brandishing” of the firearms during the attempted robbery. We affirm on the first two issues but agree with Armour on the last.

II. Indiana Bobbery as a “Crime of Violence"

Armour was sentenced as a career offender under § 4B1.1 of the United States Sentencing Guidelines.. That designation depended on treating as crimes of violence two prior convictions for robbery under Indiana law. Based on Samuel Johnson, Armour argues that those Indiana robbery convictions under Ind. Code § 35-42-5-1 should not be treated as “crimes of violence” under § 4B1.1. Armour’s tidal counsel objected to the career offender designation and mentioned the Samuel Johnson case, which was then awaiting a decision by the Supreme Court.

After Armour was sentenced, the Supreme Court held in Samuel Johnson that the “residual clause” in the definition of a “violent felony” in the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2), is unconstitutionally vague. 576 U.S. at -, 135 S.Ct. at 2557. We recently held that Samuel Johnson applies to invalidate the virtually identical residual clause of the definition of “crime of violence” ■■ in § 4B1.2(a) of the advisory Sentencing Guidelines. United States v. Hurlburt, 835 F.3d 715 (7th Cir.2016) (en banc). Those decisions leave intact the “elements clause” of the “crime of violence” definition under § 4B1.2(a)(l), which applies to Armour’s convictions for robbery.

Armour argues that Indiana robbery does not qualify as a crime of violence under the elements clause of § 4B1.2 because it may be committed not only by using or threatening the use of force but also by “putting any person in fear.” Ind. Code § 35-42-5-1. He argues that “putting any person in fear” does not necessarily involve “the use, attempted use, or threatened use of physical force against the person of another.”

In United States v. Duncan, 833 F.3d 751 (7th Cir. 2016), we. rejected the same argument based on “putting any person in fear” as applied to the elements clause of the definition of a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)©. We explained in Duncan that the “fear” in the Indiana robbery statute is fear of bodily injury, and Indiana courts have interpreted the statute so that “robbery by placing a person in' fear of bodily injury under Indiana law involves an explicit or implicit threat of physical force and therefore qualifies as a violent felony” under the statute. 833 F.3d at 758; see also United States v. Lewis, 405 F.3d 511, 514 (7th Cir. 2005). The reasoning of Duncan extends to the career offender Guideline here. The district court properly sentenced Armour as a career offender under the Guidelines.

III. Federal Attempted Bank Robbery as a “Crime of Violence"

Armour was convicted of using, carrying, and/or brandishing a firearm “during and in relation to any crime of violence” in violation of-18 U.S.C. § 924(c). Armour argues that the Supreme Court’s decision in Samuel Johnson requires us to reverse his conviction on that count because attempted armed bank robbery does not qualify as a “crime of violence” for purposes of § 924(c). We disagree' because the federal crime of attempted armed bank robbery qualifies as a crime of violence under the “elements” clause of the definition, which is not unconstitutionally vague.

As noted, Samuel Johnson held that the residual clause of' the definition of a “violent felony” in the'Armed Career Criminal Act (ACCA) is unconstitutionally vague. 576 U.S. at-, 135 S.Ct. at 2557. Armour was not sentenced under the ACCA enhancement under § 924(e) but was convicted under 18 U.S.C. § 924(c)(1)(A), which provides:

Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision .of law, any person who, during and in relation to any. crime of violence ... for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possess a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime ... (i) be sentenced .to a term of imprisonment of not less than 5 years.

The definition of “crime of violence” in § 924(c) tracks closely the ACCA definition that was struck down in part in-Samuel Johnson, including the elements clause and the residual clause:

For purposes of this subsection the term “crime of violence” means an offense that is a felony and—
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense,

18 U.S.C. § 924(c)(3). The Supreme Court has not said whether the residual clause of § 924(c)(3) is also unconstitutionally vague, though the parallels to Samuel Johnson and the ACCÁ definition are strong. We need not decide that question here, however. Armour’s conviction for attempted bank robbery under 18 U.S.C. § 2113(a) satisfies the elements clause of the definition of the “crime of violence.”

Since Armour did not raise this issue of law in the district court, our review is for plain error, see United States v. Olano, 507 U.S. 725, 732-35, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), but on this issue the standard of review does not matter. We find no error, plain or otherwise. We assume for purposes of argument that Samuel Johnson extends to the residual clause in the defihition of “crime of violence” in § 924(c)(3). Even with that assumption, Armour’s § 924(c) conviction still stands because the conviction for attempted armed bank robbery satisfies the elements clause of the definition. The crime had “as an element the use, attempted use, or threatened use of physical force against the person or property of another.” § 924(c)(3)(A).

The federal bank robbery statute provides in relevant part:

(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, ... Shall be fined under this title or imprisoned not more than twenty years, or both.
(d) Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined under this title or imprisoned not more than twenty-five years, or both.

18 U.S.C. § 2113(a) & (d). Armour did not actually enter the bank during the attempted robbery. He was convicted under 18 U.S.C. § 2 as a person who aided, abetted, counseled, commanded, induced, or procured commission of the attempted robbery.

Armour bases his challenge on the fact that a person can commit robbery by “intimidation,” as distinct from “by force or violence,” and he argues that robbery by “intimidation” does not qualify as a crime of violence. We disagree. In applying the categorical approach to the elements of § 2113(a) and (d), we must presume the conviction rested on the least serious acts that could satisfy the statute. See Curtis Johnson v. United States, 559 U.S. 133, 137, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), citing Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). “Intimidation means the threat of force.” United States v. Jones, 932 F.2d 624, 625 (7th Cir. 1991). Intimidation exists “when a bank robber’s words and actions would cause an ordinary person to feel threatened, by giving rise to a reasonable fear that resistance or defiance will be met with force.” United States v. Gordon, 642 F.3d 596, 598 (7th Cir. 2011), citing United States v. Thornton, 539 F.3d 741, 748 (7th Cir. 2008); United States v. Burnley, 533 F.3d 901, 903 (7th Cir. 2008); United States v. Clark, 227 F.3d 771, 775 (7th Cir. 2000). “A defendant properly convicted of bank robbery is guilty per se of a crime of violence, because violence in the broad sense that includes a merely threatened use of force is an element of every bank robbery.” Jones, 932 F.2d at 625. The intimidation element is satisfied “if an ordinary person would reasonably feel threatened under the circumstances.” Burnley, 533 F.3d at 903. In Burnley, we explained that the defendant “does not have to make an explicit threat or even announce that he is there to rob the bank. Credibly implying that a refusal to comply with a demand for money will be met with more forceful measures is enough.” Id.

Curtis Johnson teaches that the violent force that must be feared for robbery by intimidation to be a crime of violence has a low threshold—a fear of a slap in the face is enough. See Curtis Johnson, 559 U.S. at 143, 130 S.Ct. 1265; see also Duncan, 833 F.3d at 754. This low threshold of violent force is necessarily satisfied in attempted bank robbery by intimidation. A bank employee can reasonably believe that a robber’s demands for money to which he is not entitled will be met with violent force of the type satisfying Curtis Johnson because bank robbery under § 2113(a) inherently contains a threat of violent physical force.

Armour also argues that his conviction should be vacated because robbery under § 2113(d) could be accomplished by “assault.” The jury was instructed here that “assault” means “an intentional attempt to inflict, or threat to inflict, bodily injury upon another person with the apparent and present ability to cause such injury that creates in the victim a reasonable fear or apprehension of bodily harm. An assault may be committed without actually touching, striking, or injuring the other person.” Under § 2113(d), the “assault” putting the victim in fear must be “by the use of a dangerous weapon or device,” so we need not worry about such hypothetical minor injuries as paper cuts or hits from painful snowballs. Cf. Flores v. Ashcroft, 350 F.3d 666, 670, 672 (7th Cir. 2003) (misdemeanor battery with bodily injury not a crime of domestic violence under immigration statute because such minor injuries could satisfy criminal statute). Thus, for the same reasons that robbery by intimidation under § 2113(a) qualifies as a crime of violence under § 924(c), so does robbery by assault by a dangerous weapon or device under § 2113(d). The victim’s fear of bodily harm is necessarily fear of violent physical force that is inherent in armed bank robbery.

For these reasons, robbery by intimidation under § 2113(a) and robbery by assault by a dangerous weapon or device under § 2113(d) have as an element the use, attempted use, or threatened use of physical force against the person or property of another and thus qualify as crimes of violence under § 924(c). Accord, In re Sams, 830 F.3d 1234, 1238 (11th Cir. 2016); In re Hines, 824 F.3d 1334, 1337 (11th Cir. 2016); United States v. McNeal, 818 F.3d 141, 153 (4th Cir. 2016). We affirm Armour’s conviction for using or brandishing a firearm during and in relation to a “crime of violence.”

IV. Brandishing a Firearm ■

Finally, Armour contends that his § 924(c) sentence should be vacated because the jury did not find facts necessary for the court to apply the seven-year mandatory minimum sentence for “brandishing” a firearm as required-by Alleyne v. United States, 570 U.S. —, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). Armour did not raise this issue in the district court, so we also review this issue only for “plain error.” United States v. Cureton, 739 F.3d 1032, 1045 (7th Cir. 2014). Under this stan dard, we will not reverse a decision unless the defendant demonstrates “(1) [that] there was error; (2) that the error was plain; and (3) that the error affected the defendant’s substantial rights.” Id., citing United States v. Olano, 507 U.S. 725, 732-35, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). If all three of these conditions are met, we will reverse if the error “‘seriously affect[s] the fairness, integrity, or public reputation of the judicial proceedings,’ that is, if the error would result in a miscarriage of justice.” Id., citing Olano, 507 U.S. at 732-35, 113 S.Ct. 1770, and United States v. Ramirez-Fuentes, 703 F.3d 1038, 1042 (7th Cir. 2013) (internal citation omitted).

This demanding standard is met here. The jury’s verdict did not find, expressly or even implicitly, that Amour was responsible for “brandishing” firearms in the robbery. The jury instructions and verdict form simply did not require the jury to distinguish among using, carrying, and brandishing a firearm. The district court plainly erred under Alleyne by applying to Amour the mandatory minimum seven-year consecutive sentence for brandishing without a jury verdict finding him guilty of brandishing.

Section 924(c)(1)(A) provides that anyone who “uses or carries a firearm” in relation to a “crime of violence” shall:

(i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.

The jury was instructed as follows on the charge under § '924(c)(1)(A):

In order for you to find the Defendant guilty of this charge as a coconspirator, the government must prove each of the following elements beyond a reasonable doubt:
First: The Defendant, acting as a cocon-spirator, committed the crime of attempted armed bank robbery as charged in Count Two of the Indictment; and Second: The Defendant, acting as a co-conspirator, knowingly used or carried and/or brandished a firearm during and in relation to that crime.

Since Armour did not enter the bank himself, the jury was also instructed under a theory of aiding and abetting under 18 U.S.C. § 2. That instruction said that Armour could be convicted under this theory only if he “knowingly and intentionally assisted another’s use, carrying or brandishing of a firearm during and in relation to a crime of violence.” The instruction also said that a “person who merely aids the underlying offense, to wit, attempted armed bank robbery, knowing that a firearm would be used or carried does not aid the commission of the offense charged in Count Three. The Defendant must aid in the commission of the use or carrying of a firearm to be guilty of this charge.” The jury received further instruction on “using” and “carrying” a firearm, but not on “brandishing.”

In Alleyne, the Supreme Court held that “any fact that increases the mandatory minimum is an ‘element’ that must be submitted to the jury.” 570 U.S. at-, 133 S.Ct. at 2155. In that case, Alleyne had been charged with several federal offenses including using or carrying a firearm in relation to a crime of violence in violation of § 924(c)(1)(A). Id. The jury verdict said that the jury found. Alleyne used or carried a firearm during.and in relation to a.crime of violence but did not contain any finding that the firearm was “brandished.” Id. at 2156. Alleyne objected to the seven-year enhancement under § 924(c) for brandishing. Id, The Supreme Court held that facts “that increase the mandatory minimum sentence are ... elements and must be submitted to the jury and found beyond a reasonable doubt.” Id. at 2158. The Court concluded that the term “elements” necessarily “includes not only facts that increase the ceiling, but also those that increase the floor.” Id. There simply was no such finding here for the “brandishing” enhancement. That was an Alleyne error in the sentence.

Such an Alleyne error will not result in a miscarriage of justice where the evidence of brandishing is so strong that no reasonable jury would have convicted the defendant on a § 924(c) count but acquitted him on brandishing. Cureton, 739 F.3d at 1046, citing United States v. Kirklin, 727 F.3d 711, 719 (7th Cir. 2013). In Cureton, the victim testified that Cureton “ ‘came over to [her] and put the gun up to [her] head’, asked her where the money was, told her it was her last chance, and said that she would never see her daughter again.” 739 F.3d at 1046. That was the only evidence supporting the § 924(c) charge. We concluded that the jury “could not have rationally convicted Cureton on the § 924(c)(1) charge yet believed he did not brandish the gun.” M

There is no doubt that firearms were brandished in this attempted robbery, but this case is not like Cureton because of Armour’s role in the attempt. Armour did not brandish a firearm himself. To apply the brandishing enháncement, the jury should have been instructed that the government needed to prove beyond a reasonable doubt that Armour knew in advance not only that Rogers and Hardy would be carrying firearms but also that they would be brandishing them: See Rosemond v. United States, 572 U.S. -, -, 134 S.Ct. 1240, 1251-52, 188 L.Ed.2d 248 (2014) (to find defendant guilty of aiding and abetting co-defendant’s use of firearm in crime of violence under § 924(c), jury would need to find that defendant had advance knowledge of intended use of firearm).

In this case, the jury heard evidence that Armour told Hardy to bring his firearm, that Armour led the enterprise, and that Hardy and Rogers actually brandished firearms during the attempted robbery. We have no doubt that this evidence could easily support a finding that Armour aided and abetted the brandishing. But in light of the high standard of proof beyond a reasonable doubt, we cannot save this sentence on the ground that any reasonable jury would have convicted Armour of aiding and abetting the actual brandishing. In light of the failure to instruct the jury on .the point and to insist on a more specific verdict, we cannot overlook the Alleyne error here.

We must therefore vacate Armour’s seven-year mandatory minimum consecutive sentence for brandishing and remand for the limited purpose of re-sentencing him on the prison portion of the sentence for aiding and abetting using or carrying a firearm during a crime of violence. There is no guarantee, though, that Armour will receive a lower sentence. The verdict still supports the five-year mandatory minimum sentence for using or carrying a firearm, and that is, after all, just the minimum. The district court may exercise its discretion to sentence above the statutory mandatory minimum. The district judge did not signal in this record, however, that the difference between the five-year and seven-year mínimums would not have made a difference to the decision.

To sum up then, we AFFIRM the defendant’s conviction for violation of § 924(c) but VACATE the sentence on that count and remand for re-sentencing on that count consistent with this opinion. We also AFFIRM the district court’s decision to sentence defendant as a career offender under the Sentencing Guidelines.

      . ■ A comprehensive retooling of Indiana’s criminal code took effect in 2014 and reclassified the severity of crimes, including robbery. Ind. Pub. L, 1.58-2013, § 450. The amendments aré not relevant to the issues here.

      . The Second Circuit recently held that Samuel Johnson does not extend to the residual clause in § 924(c)(3). United States v. Hill, 832 F.3d 135, 145-50 (2d Cir. 2016). In Hill the Second Circuit noted that we and four other circuits have held that Samuel Johnson extends to the residual clause in 18 U.S.C. § 16(b), which is essentially the same as the residual clause in § 924(c)(3). Id. at 149, citing United States v. Vivas-Ceja, 808 F.3d 719, 723 (7th Cir. 2015), among other cases. The Supreme Court recently granted review in a case presenting the § 16(b) issue. Lynch v. Dimaya, No. 15-1498, — U.S. -, 137 S.Ct. 31, 195 L.Ed.2d 902, cert. granted, Sept. 29, 2016.

      . Some offenders convicted of attempts to commit crimes of violence have argued that their attempts should not be deemed crimes of violence because the substantial step toward completion of the crime need not itself be a violent step. Such an argument is difficult to square with the statutory language reaching an offense that "has as an element the ,., attempted use ,. of physical force.” An attempt conviction requires proof of intent to carry out all elements of the crime, including, for' violent offenses, threats or use of violence. Armour has not raised such an argument here, which we would view skeptically. See. Morris v. United States, 827 F.3d 696, 698-99 (7th Cir. 2016) (Hamilton, J,, concurring.)


text:
    Kiril Hristov VIDINSKI, Petitioner, v. Loretta E. LYNCH, Attorney General of the United States, Respondent.
    Nos. 13-2478 & 13-3263
    United States Court of Appeals, Seventh Circuit.
    Argued October 30, 2014
    Decided November 1, 2016

      Nicolette Glazer, Attorney, Law Offices of Larry R. Glazer, Century City, CA, for Petitioner.
    OIL, Song Park, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.
    Before WILLIAMS and HAMILTON, Circuit Judges.

      . Judge Tinder was on the panel that heard oral argument. We held these petitions for review after argument so that the parties could pursue possible resolution, including through an exercise of prosecutorial discretion by the government. Over the summer of 2016, it became clear that an agreed resolution was, unlikely. In the meantime, Judge Tinder has retired and did not participate in the decision. These petitions are being decided by a quorum pursuant to 28 U.S.C. § 46(d).

   HAMILTON, Circuit Judge.

Petitioner Kiril Vidinski is a native of Bulgaria. He entered the United States as a visitor in 1998 but overstayed his visa. He married a United States citizen, Constance Literski, in 2002, and in 2005 he and Ms. Literski filed petitions seeking legal permanent resident status for him. Before those petitions were resolved, Ms. Literski told an investigator for Immigration and Customs Enforcement (ICE) that the marriage had been a sham to obtain immigration benefits for Vidinski (and money for her). Removal proceedings resulted in a final order to remove Vidinski, and the Board of Immigration Appeals dismissed his appeal and later denied his motion to reopen proceedings based on ineffective assistance of counsel. He now seeks judicial review, arguing primarily that he was entitled to cross-examine Ms. Literski, whose affidavit was critical to the marriage fraud issue. We dismiss in part and deny the remainder of the.petitions on their merits.

There is no doubt that Vidinski is removable for having overstayed his 1998 visa. Also, the Board denied his request for cancellation of removal based on “exceptional and extremely unusual hardship” to family members. See 8 U.S.C. § 1229b(b)(l)(D). That is a discretionary decision that we have no jurisdiction to review unless it involves constitutional claims or questions of law, Stepanovic v. Filip, 554 F.3d 673, 678 (7th Cir. 2009), and Vidinski presents no such claims or questions. To the extent Vidinski seeks review of the Board’s denial of his. hardship request, we dismiss for lack of jurisdiction.

We do have jurisdiction to consider the finding by the immigration judge, affirmed by the Board, that Vidinski had engaged in marriage fraud, which results in a lifetime ban on being able to return to the United States. See 8 U.S.C. § 1154(c). Vidinski has raised legal issues within the scope of the jurisdiction authorized by 8 U.S.C. § 1252(a)(2)(D). In considering these issues, we review both the written decision of the immigration judge and the Board order adopting and affirming that decision. Surganova v. Holder, 612 F.3d 901, 904 (7th Cir. 2010). We review the Board’s legal conclusions de novo, but we defer to its factual findings, “reversing the Board only if the record lacks substantial evidence to support its factual conclusions.” Sayaxing v. INS, 179 F.3d 515, 519 (7th Cir. 1999).

1. Removal Proceedings

Under 8 U.S.C. § 1227(a)(1)(A) and 8 U.S.C. § 1182(a)(6)(C)(i), an alien who attempts to procure an immigration benefit by fraud or material misrepresentation—including marriage fraud—is subject to . removal. The government must prove marriage fraud with clear and convincing evidence. Surganova, 612 F.3d at 904; see generally Woodby v. INS, 385 U.S. 276, 285-86, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966).

In Vidinski’s case, the government relied on the testimony of an ICE agent who interviewed Ms. Literski as part of an investigation into an extensive marriage fraud ring in Chicago. The central figure in the ring was Jeremy Starnes. A man named Dion Liebich told the ICE agent that Starnes had helped him arrange his own fraudulent marriage and that he (Lie-bich) had referred Ms. Literski to Starnes. Following that lead, the agent contacted Ms. Literski and interviewed her in January 2011.

According to the agent, Ms. Literski admitted that her marriage to Vidinski had been fraudulent. She said that Liebich (her former boyfriend) told her she could make money by entering into a sham marriage. Liebich arranged a meeting among Starnes, Ms. Literski, Vidinski, and another man. After that meeting, Ms. Literski and Vidinski married. Ms. Literski was paid $1,000 the day of the marriage, with promises of more payments to come. She told the agent that Vidinski paid her a total of more than $5,000 over the course of the marriage, but'she never lived with him and never had sexual relations with him. No criminal charges have been filed against Ms. Literski, Vidinski, or Liebich.

Ms. Literski also told the agent that several photographs that she and Vidinski had submitted to support their 2005 petitions for lawful permanent resident status had been altered to appear to be pictures of the two of them together. Ms. Literski signed a sworn statement describing the fraudulent arrangement. Her statement is consistent with the agent’s report.

The agent also testified that he served notices to appear on Vidinski and a Ms. Tzvetana Stanislavova, who had a child by Vidinski in 2005 while he was still legally married to Ms. Literski (and before Ms. Literski filed her 1-130 petition on his behalf). Vidinski and Ms. Stanislavova are now married.

Additional documentary evidence supported the immigration judge’s finding of marriage fraud. Vidinski submitted his federal and Illinois' individual income tax returns for twelve years, from 1998 to 2009. All indicated that he was single, even though he was married to Ms. Literski from 2002 to 2009. (The government submitted a different return for 2005 that listed Vidinski and Ms. Literski as married, filing jointly, around the time of their interviews on her 1-130 petition. That discrepancy has not been explained.) None of the documents submitted in support of adjustment of status disclosed that Vidinski had a son born in 2005 to Ms. Stanislavova.

The most unusual feature of this case, apparently unprecedented in the experience of the veteran immigration judge, was that in response to the government’s evidence about the fraudulent nature of the marriage, Vidinski just refused to testify at all. The judge provided ample warnings to Vidinski and his counsel that he might draw adverse inferences from that refusal. In his decision, the judge reasonably refused to consider Vidinski’s affidavit clam-ing the marriage had been bona fide. Vi-dinski also offered some records of a joint bank account from 2004-06,. around the time of the immigration petitions and interview, but he was not willing to testify to explain those documents or any other facts relevant to the issue of marriage fraud.

■ The immigration judge concluded that the government had shown by clear and convincing evidence. that Vidinski’s marriage to Ms. Literski had been fraudulent. The judge wrote that the agent’s testimony was detailed and consistent and supported by his contemporaneous memorandum about his interview with Ms. Literski. And he noted that Vidinski had refused to testify and offered no rebuttal evidence. The judge therefore denied Vidinski’s request for cancellation of removal and ordered his removal to Bulgaria.

Vidinski sought review before the Board of Immigration Appeals, which adopted the immigration judge’s decision and dismissed Vidinski’s appeal in a June 20, 2013 order. The Board denied his subsequent motion to reopen proceedings, and Vidinski petitioned for judicial review of both decisions.

II. Analysis

On judicial review, Vidinski focuses on the fact that Ms. Literski did not testify in person before the immigration judge. He argues first that the government failed to meet its burden to prove marriage fraud by clear and convincing evidence. See Surganova, 612 F.3d at 904. He argues second that he was denied both statutory and constitutional rights to cross-examine adverse witnesses. See ■ 8 U.S.C. § 1229a(b)(4)(B) (alien in removal proceedings shall have reasonable opportunity to examine unfavorable evidence, present favorable evidence, and cross-examine adverse witnesses). “Evidence in removal proceedings need not conform strictly to the Federal Rules of Evidence, but it must be probative and its admission must be ‘fundamentally fair.’ ” Pouhova v. Holder, 726 F.3d 1007, 1011 (7th Cir. 2013), quoting Barradas v. Holder, 582 F.3d 754, 762 (7th Cir. 2009). We reject these arguments.

First, the Board and immigration judge did not err in concluding that the government had proven by clear and convincing evidence that Vidinski’s marriage to Ms. Literski was fraudulent. Ms. Liter-ski’s account of the fraud was presented as hearsay through her sworn statement and the agent’s testimony concerning his interview with her. That hearsay had sufficient indicia of reliability for use in these administrative proceedings. Ms. Literski’s admissions of fraud were admissions against her own penal interest, making it unlikely that she was lying. Also, her account was consistent with the available documentary evidence, and the agent’s testimony was—the judge found—detailed, internally consistent, and consistent with the documentary evidence. The use of this hearsay in this administrative hearing was permissible. See, e.g., Ogbolumani v. Napolitano, 557 F.3d 729, 734 (7th Cir. 2009) (allowing use of hearsay summaries of witness interviews to prove marriage fraud where nothing suggested summaries were inaccurate or unreliable beyond inherent risks of summaries); Duad v. Holder, 556 F.3d 592, 596 (7th Cir. 2009) (allowing use of reliable hearsay in immigration proceedings).

Perhaps most notable here is Vidinski’s choice not to testify and not to offer any rebuttal evidence. The key evidence the immigration judge heard was hearsay, but it was detailed and consistent, with indications of reliability, and it was corroborated by available documentary evidence. To weigh against that evidence there was essentially nothing. The immigration judge did not err by finding that the government had proven marriage fraud by clear and convincing evidence.

Second, Vidinski was not denied his statutory and constitutional right to cross-examine the witnesses against him. Although Vidinski contends that the government did not make reasonable efforts to have Ms. Literski or Liebich appear to testify, Vidinski’s lawyer requested subpoenas for those witnesses, and the immigration judge issued those subpoenas. Despite the subpoenas, the witnesses did not appear, and there was apparently no further effort by anyone to require their attendance. Vidinski’s lawyer told the immigration judge that she had talked to Ms. Literski, who reportedly said she was “told by the Government that she did not need to appear.” There is no actual evidence backing up that vague assertion; even assuming the assertion is true, it does not establish that the government took any affirmative steps to prevent Ms. Literski from testifying at Vidinski’s hearing.

An immigration judge has the authority to issue subpoenas for witnesses and to impose sanctions for failure to comply with those subpoenas. 8 U.S.C. § 1229a(b)(l). A regulation provides:

If a witness neglects or refuses to appear and testify as directed by the subpoena served upon him or her in accordance with the provisions of this section, the Immigration Judge issuing the subpoena shall request the United States Attorney for the district in which the subpoena was issued to report such neglect or refusal to the United States District Court and to request such court to issue an order requiring the witness to appear and testify and to produce the books, papers or documents designated in the subpoena.

8 C.F.R. § 1003.35(b)(6).

During the hearing, when it became apparent that Ms. Literski had not appeared in response to the subpoena, neither attorney asked the immigration judge to follow through and request enforcement through the district court. Nor did Vidinski seek a continuance of the hearing so that further efforts could be made to compel Ms. Liter-ski’s testimony. He chose to argue instead that the government had simply failed to meet its burden of proof and that Ms. Literski’s affidavit and the report of her interview should be rejected as unreliable hearsay. The record thus reflects a strategic decision to forgo further efforts to obtain her actual appearance and to rely on the legal argument we have rejected above.

We recognize that § 1003.35(b)(6) says the judge “shall” request enforcement of the subpoena, but we do not read the regulation as requiring the judge to do so in the absence of a request from a party. The regulation would otherwise impose additional unnecessary and useless delays and burdens on an already overburdened network of immigration courts. Cf. Malave v. Holder, 610 F.3d 483, 487-88 (7th Cir. 2010) (remanding where immigration judge refused alien’s request for issuance of subpoena to enable cross-examination of ex-husband whose hearsay interview was used to prove marriage fraud).

Vidinski insists, however, that a remand is required under Karroumeh v. Lynch, 820 F.3d 890 (7th Cir. 2016), and Pouhova v. Holder, 726 F.3d 1007 (7th Cir. 2013). In both cases we granted petitions where immigration judges ruled against aliens on the basis of hearsay evidence. Both cases differ from this one in important ways.

Kairoumeh also involved marriage fraud and an ex-spouse who provided a sworn statement but did not appear to testify. In Karroumeh, however, the government had not properly subpoenaed the missing ex-wife; a subpoena was prepared, but it was for the wrong date and not even served. 820 F.3d at 897. Even more important, the hearsay statement was “marked by contradictions and inconsistencies that call its reliability into question.” Id. at 898. There is no comparable reason to doubt the reliability of Ms. Literski’s account in this case, particularly where Vidinski himself chose not to testify to rebut it.

The issue in Pouhova was not marriage fraud but smuggling of other aliens, yet the government built its case on hearsay. The use of hearsay was unfair in Pouhova because there were specific reasons to deem it unreliable. The interview with the key witness was conducted in English because funding shortages meant no interpreter was available, and there was no indication of how well the witness understood or expressed herself in English. 726 F.3d at 1009, 1012. Moreover, the government did not even call the agent who had interviewed the witness, so the agent was not available for cross-examination on topics that might have affected the reliability of the interview. Id. at 1015. His written report on the witness was not prepared until seven years after the interview and contradicted it in important details. Id. at 1013-14. Further, Ms. Pouhova had testified in her case, id. at 1010, unlike Vidin-ski, who declined the opportunity to testify about any bona fide basis for his marriage to Ms. Literski.

When immigration authorities build their removal cases on hearsay, they venture onto thin ice, as Karroumeh, Pouho-va, Malave, and numerous other cases attest. But challenges to such use of hearsay call for close attention to the details of the hearsay and the rest of the evidence in the case. In this case, the hearsay accounts from Ms. Literski did not contain inconsistencies or improbable details that would call their reliability into doubt, and Vidin-ski declined the opportunity to rebut those accounts. Under these circumstances, we find no violation of Vidinski’s statutory or due process rights. To the extent we have jurisdiction over his petition for review of the order of removal (No. 13-2478), we deny that petition on the merits.

Finally, we consider Vidinski’s separate petition for review (No. 13-3263) of the Board’s denial of his motion to reopen proceedings based on the ineffectiveness of his counsel in the initial appeal to the Board, a decision we review only for abuse of discretion. See Patel v. Holder, 747 F.3d 493, 496 (7th Cir. 2014). The Board found that Vidinski met the procedural requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), for claims of ineffective counsel. The Board agreed that Vidinski’s counsel in the initial appeal did not perform competently because he filed a brief with “a very limited argument” on Vidinski’s behalf. The Board also found, however, that Vidinski had failed to show prejudice because he did not challenge the competence of his (different) counsel before the immigration judge, whose factual findings were not clearly erroneous.

Vidinski argues that prejudice should be presumed under these circumstances, citing Dearinger ex rel. Volkova v. Reno, 232 F.3d 1042 (9th Cir. 2000), and Dakane v. U.S. Attorney General, 399 F.3d 1269 (11th Cir. 2004). These cases applied a rebuttable presumption of prejudice where counsel had failed to file an appeal on time ('Volkova) or failed to file any brief at all (Dakane). Vidinski’s case, by contrast; was presented to the Board in a timely appeal, but with only cursory development of an argument, ■■

We assume for purposes of this discussion that a presumption of prejudice might apply where briefing before the Board is truly deficient. But any such presumption has been rebutted in this case. The Board found that Vidinski had failed to show he was prejudiced by the inadequate argument in the initial appeal. The Board noted that the judge had issued a subpoena to Ms. Literski, that she had not appeared, that Vidinski had chosen not to testify and not to present any rebuttal evidence on the marriage fraud issue, and that Vidinski did not claim his counsel was ineffective before the immigration judge. We find no error in the Board’s determination that Vidinski was not prejudiced by the initially, inadequate briefing. In his motion to reopen proceedings, Vidinski presented the arguments he makes before this court, and the Board reasonably rejected them. We see no basis for ordering the Board to consider the case a third time on the theory that thé 'issues were not adequately presented in the first round;

To sum up, we find no violation of Vidin-ski’s statutory or constitutional rights. The removal proceedings here were fundamentally fair. The stay entered on December 11,20Í4 is LIFTED; Vidinski’s petition for review in No. 13-2478 is DISMISSED in part for lack of jurisdiction and DENIED on the merits as to its remainder; and Vidinski’s petition for review in No. 133263 is DENIED on the merits.

      . The investigation led to an indictment resulting in sixteen convictions and two fugitive defendants.

      . The chronology did not obviously fit a story of marriage fraud. Vidinski and Ms. Literski were married in 2002 with assurances, according to the agent’s investigation, that the marriage needed to last only six months. They did not file the 1-130 and 1-485 petitions until 2005, after Vidinski’s son by Ms. Stanislavova had been born. They did not divorce until 2009. We might speculate about various explanations for the timing, but without any testimony or other evidence from Vidinski to rebut Ms. Literski’s account of a fraudulent marriage, the immigration judge was not required to find that the government had failed to meet its burden of proof.

      . This presumption would differ sharply from, for example, claims of ineffective assistance of counsel in habeas corpus cases under 28 U.S.C. § 2254, where a petitioner must show prejudice. Cf. Roe v. Flores-Ortega, 528 U.S. 470, 482-83, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000) (stating general rale but presuming prejudice where counsel simply fails to file appeal as directed by client).


author: POSNER, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. John THOMAS, Defendant-Appellant.
    No. 15-2509
    United States Court of Appeals, Seventh Circuit.
    Submitted October 27, 2016
    Decided November 3, 2016
    Stuart D. Fullerton, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.
    Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, Elisabeth R. Pollock, Attorney, Office of the Federal Public Defender, Urbana, IL, for Defendant-Appellant.
    Before POSNER, FLAUM, and RIPPLE, Circuit Judges.
   POSNER, Circuit Judge.

The defendant pleaded guilty to committing wire fraud, in violation of 18 U.S.C. § 1343, by submitting fraudulent invoices to an Illinois town (Riverdale), which reimbursed him for $374,000 claimed in the invoices but not owed him by the town. The district judge sentenced him to 60 months in prison to be followed by 36 months of supervised release. The appeal challenges the conditions of supervised release and not the prison sentence, but asks us to order a full resentencing of the defendant.

Apart from certain mandatory conditions of supervised release, which are not challenged, the judge at the sentencing hearing imposed (and we quote) the following “discretionary conditions of supervised release, most of which have to do with restitution and money and seeking work, these are number 1; number 2; number 4; number 6 and number 7; number 8; number 9; number 14; number 15; number 16 which includes virtually every place where a probation officer could visit the defendant at a reasonable time. 17, notifying of change in residence. 18, notifying a probation officer promptly within 72 hours of arrest or questioned by a law enforcement officer.”

The judge also imposed (again we are quoting) “certain special conditions [of supervised release] which is another- list. Under special condition number 3, which requires community service, if there is unemployment for the first 60 days on supervision. Number 5, restricting credit charges. Number 7 is giving the probation officer information as to financial information. Notifying the court, number 7, notifying the court in any material change in defendant’s circumstances. This is number 10 under special, he will have to contribute an amount that’s at least 10 percent of his net monthly income to the extent that other financial' obligations have not been met. And he may not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the permission of the Court.”

The number references are to the written judgment (no number, however, was given for the last condition of supervised release that the judge imposed). A sentencing judge is required to give reasons for the conditions that he imposes; that was not done. The judge should also read the conditions of supervised release to the defendant, United States v. Kappes, 782 F.3d 828, 862 (7th Cir. 2015); United States v. Johnson, 765 F.3d 702, 710-11 (7th Cir. 2014), along with the rest of the sentence; that was not done either, and the judge did not explain the omission. It’s true that United States v. Bloch, 825 F.3d 862 (7th Cir. 2016), holds that a judge may during sentencing state that he’s incorporating by reference supervised-release conditions listed in his written notice of proposed conditions, but only if the defendant has had an opportunity to review the proposed conditions before sentencing and there is no conflict either between the conditions in the written notice and the conditions actually imposed in the written judgment or between the conditions stated orally by the judge at the sentencing hearing and those in the written judgment. Id. at 872-73, citing United States v. Kappes, supra, 782 F.3d at 862.

In the present case the written notice was prepared by the probation office, but the judge imposed a condition—that the defendant “participate, at the direction of a probation officer, in a substance abuse treatment program, which may include urine testing up to a maximum of 104 tests per year” that was not in the written notice. Furthermore, the judge imposed special condition 7 twice, the first time incorrectly, saying that “Number 7 is giving the probation officer information as to financial information.” No, that is Number 6 in the written judgment, so there is a discrepancy between oral and written, in violation of Bloch and Kappes.

And finally the judge gave no reason, as he was also required to do, see 18 U.S.C. § 3553(c); United States v. Kappes, supra, 782 F.3d at 845-46, for the term of supervised release—36 months—that he was imposing.

The errors we’ve enumerated were serious. The government joins the defendant in asking us to reverse the judgment with instructions for a full resentencing. See, e.g., United States v. Harper, 805 F.3d 818, 822 (7th Cir. 2015); United States v. Downs, 784 F.3d 1180, 1182 (7th Cir. 2015).

The judgment is reversed and the case remanded with instructions for a full re-sentencing of the defendant.


author: WILLIAMS, Circuit Judge.

text:
    Sandra HALL, special administrator of the estate of Chelsea Weekley, Plaintiff-Appellant, v. Ann FLANNERY, et al., Defendants-Appellees.
    No. 15-2602
    United States Court of Appeals, Seventh Circuit.
    Argued February 17, 2016
    Decided November 4, 2016

      Rhonda Dee Fiss, Attorney, Law Office of Rhonda D. Fiss, P.C., Belleville, IL, for Plaintiff-Appellant.
    Edward.S. Bott, Jr., Attorney, Greens-felder, Hemker & Gale, P.C., St. Louis, MO, for Defendants-Appellees.
    Before BAUER, FLAUM, and WILLIAMS, Circuit Judges.
   WILLIAMS, Circuit Judge.

Chelsea Weekley suffered a skull fracture as an infant and underwent - surgery 17 years later.to fix it. She died, several days after the surgery, and her mother, Sandra Hall, sued the hospital and the surgeons. Hall argued that the surgery caused Weekley to suffer a seizure and die, and that the surgeons should have prescribed anti-seizure medication. But the defendants argued that no seizure had occurred and that a heart-related ailment was the likely cause of death. A jury trial was held and the jury found in the defendants’ favor.

On appeal, Hall argues that the district judge erroneously permitted three of the defendants’ experts to opine about Week-ley’s likely cause of death. We conclude that Hall forfeited her arguments as to two of these experts by making perfunctory and underdeveloped arguments concerning the experts’ testimony, qualifications, and methodology. However, we find that the third expert lacked the requisite qualifications to opine that Weekley’s heart ailment was the likely cause of death. Because there is a significant chance that the erroneous admission of this expert testimony affected the outcome of the trial, we vacate the district court’s judgment and remand for further proceedings.

I. BACKGROUND

A. Weekley’s Surgery and Death

When Chelsea Weekley was approximately five months old, she was dropped and suffered a skull fracture. As the fracture expanded over time, a cyst formed in the area. The fracture and cyst did not become a cause for concern until, at the age of 17, she was hit in the head and suffered a loss of consciousness, blurred vision, and dizziness. After CT and MRI scans confirmed the extent of the fracture and the cyst, Weekley underwent a “cra-nioplasty” surgery to repair, the fracture and the area of the dura (the thick membrane surrounding the brain) where the cyst had formed. The surgery was performed at SSM Cardinal Glennon Children’s Hospital (“Hospital”) by Dr. Ann Flannery, a neurosurgeon, and Dr. Raghu-ram Sampath, a neurosurgical resident.

Weekley was discharged a day after the surgery and was found dead in her bed three days later. The coroner observed that Weekley was in a.“normal resting position,” that her legs were straight and her ankles crossed, and that her right arm was bent near her head “as if using it to lay on.” .The coroner also observed that her hands were “cramped up,” that her bladder was empty, and that her feet were near the headboard while her head was near the foot of the bed.

Weekley’s autopsy was performed by Dr. Raj Nanduri, a board forensic pathologist. According to Dr. Nanduri, forensic pathology concerns the effect of sudden, accidental, and suicidal death on the human body.. After performing a physical, microscopic, and toxicological examination of Weekley’s body, Dr. Nanduri was unable to identify a cause of death. So she asked Dr. Mary Case, a neuropathologist, to' examine Weekley’s brain. Dr. Case found that the surgery damaged the dura and surface of Weekley’s brain. Based on this finding, Dr. Nanduri concluded that Weekley had died from a seizure brought about by the surgical damage. Neither Dr. Nanduri nor Dr. Case was aware of or had reviewed the pre-surgery CT and MRI scans when they made their findings.

B. Pre-Trial Proceedings

Weekley’s mother, Sandra Hall, sued Dr. Flannery, Dr. Sampath, and the Hospital, alleging that they provided Weekley with negligent post-operative care, and that this negligence caused Weekley to suffer a seizure and die. Before trial, Hall filed two motions in limine (“MILs”) that concerned three of the defendants’ expert witnesses: Dr. John Ruge, a pediatric neurologist; Dr. Douglas Miller, a neuropa-thologist; and Dr. Steven Rothman, a pediatric neurologist.

In MIL #48, Hall sought to bar Dr. Miller from testifying that anything other than a seizure had caused Weekley’s death, on the ground that Dr. Miller had not provided such an opinion to a reasonable degree of medical certainty. The district judge granted this MIL, though only to the extent that Dr. Miller had in fact failed to disclose any such opinion.

In MIL #49, Hall sought to bar the defendants and their witnesses from denying that Weekley’s death was caused by a seizure. In doing so, Hall argued that Dr. Ruge and Dr. Rothman were “not qualified through education or experience to give an opinion to a reasonable degree of medical certainty as to Weekley’s forensic cause of death.” In addition, Hall argued that Dr, Ruge had failed to offer any scientific explanation for his opinion that Weekley had not died from a seizure, and that Dr. Roth-man had failed to offer any cause-of-death opinions to a reasonable degree of medical certainty. The district judge denied the MIL, noting that the defendants’ experts could provide any cause-of-death opinions that had been previously disclosed.

C. Trial Proceedings

At trial, the defendants elicited cause-of-death testimony from Dr. Ruge, Dr. Miller, and Dr. Rothman. Dr. Ruge testified that Weekley’s death was not brought about by a seizure, and opined that “focal interstitial chronic inflammation” of Week-ley’s heart (i.e., thickening of the heart’s connective tissue) was the likely cause of death. Hall’s attorney objected immediately, stating,

[Tjhere’s been absolutely no foundation laid, no qualifications, nothing that would suggest that this gentleman is qualified to give, nor has that been disclosed as one of the opinions as to cause of death.

A sidebar ensued in which the parties and the district judge focused on whether Dr. Ruge had previously expressed these opinions with the requisite degree of medical certainty. No one mentioned Dr. Ruge’s qualifications or methodology. After consulting Dr. Ruge’s expert report and deposition transcript, the district judge concluded that the opinions had been properly disclosed and did not violate her ruling on MIL # 49.

Dr. Miller testified next. Before he shared his cause-of-death opinions, Hall’s attorney objected, stating,

The Court has already determined after argument and briefing that defendants’ expert Dr. Douglas Miller is barred from testifying, suggesting or implying that Chelsea Weekley’s cause of death was anything other than a seizure. In addition, this motion in limine was also granted that defendants’ opinion witnesses cannot express any opinions as to cause of Chelsea Weekley’s death that has [not] previously been stated to a reasonable degree of medical certainty.

The district judge concluded that although Dr. Miller had previously stipulated that he had reached his opinions with a reasonable degree of medical probability but not medical certainty, his opinions had been adequately shared before trial and thus would not constitute a prejudicial surprise to Hall. Dr. Miller then testified that “it’s overwhelmingly probable that [Weekley’s death] was not caused by a seizure.”

Finally, Dr. Rothman testified that he did not believe Weekley suffered any seizures before her death. Hall did not object to any of Dr. Rothman’s cause~of-death opinions during trial.

At the end of trial, the jury returned a general verdict “findfing] for all of the defendants and against the plaintiff.” This appeal followed.

II. ANALYSIS

Hall argues on appeal that the district court erred in permitting Dr. Ruge, Dr. Miller, and Dr. Rothman to testify about the specific cause of Weekley’s death. The admissibility of expert testimony is governed by Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Such testimony is permitted if the witness is “an expert by knowledge, skill, experience, training, or education,” and her opinion is “the product of reliable principles and methods” that have been reliably applied to the facts of the case. Fed. R. Evxd. 702. Because we are not concerned with the witness’s general qualifications but instead with his “foundation for ... answering] a specific question!,]■ ... we must look at each of the conclusions he draws individually to see if he has the adequate education, skill, and training to reach them.” Gayton v. McCoy, 593 F.3d 610, 617 (7th Cir. 2010) (citations and internal quotation marks omitted).

We review de novo whether a district judge has properly followed Rule 702 and Daubert. Kunz v. DeFelice, 538 F.3d 667, 675 (7th Cir. 2008). So long as the judge applied the Rule 702¡Daubert framework, we review the judge’s decision to admit or exclude expert testimony for abuse of discretion. Id. If, however, the district judge failed to apply the framework, we review the judge’s decision de novo. Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 760 (7th Cir. 2010); see also United States v. Adame, 827 F.3d 637, 645 (7th Cir. 2016); Naeem v. McKesson Drug Co., 444 F.3d 593, 608 (7th Cir. 2006).

Even if an expert’s testimony was erroneously admitted or excluded, reversal is not warranted unless the error has affected a party’s “substantial rights.” Fed. R. Civ. P, 61; see Naeem, 444 F.3d at 608-09. This occurs when the erroneous ruling has had a “substantial influence over the jury, and the result reached was inconsistent with substantial justice.” Far faras v. Citizens Bank & Trust of Chi., 433 F.3d 558, 564 (7th Cir. 2006) (citation omitted); Jones v. Lincoln Elec. Co., 188 F.3d 709, 725 (7th Cir. 1999), “Evidentiary errors satisfy this standard only when .a significant chance exists that they affected the outcome of the trial.” EEOC v. Mgmt. Hospitality of Racine, Inc., 666 F.3d 422, 440 (7th Cir. 2012) (quoting Old Republic Ins. Co. v. Emp’rs Reinsurance Corp., 144 F.3d 1077, 1082 (7th Cir. 1998)); DeBiasio v. Ill. Cent. R.R., 52 F.3d 678, 685 (7th Cir. 1995).

A. Claim Forfeited as to Dr. Miller and Dr. Rothman

In her appellate brief, Hall states in conclusory fashion that Dr. Miller and Dr. Rothman should not have been allowed to testify that seizure was not the cause of Weekley’s death. But Hall makes no effort to explain why either doctor’s cause-of-death testimony was improperly admitted, or to identify the specific testimony that was improperly admitted. This failure is fatal, as “we are not in the business of formulating arguments for the parties.” United States v. McClellan, 165 F.3d 535, 550 (7th Cir. 1999).

Hall does cite Dr. Miller’s testimony that an epilepsy-related cause-of-death finding can be made in the absence of other potential causes such as heart attack, as well as Dr. Rothman’s testimony that clenched fists can be linked not only to seizure but also to heart attack and lung disease. However, Hall failed to take the critical next step of arguing that Dr. Miller and Dr. Rothman lacked the requisite qualifications and/or methodology to supply this testimony. Rather, Hall merely cited this testimony to underscore her contention that Dr. Ruge had supplied “wholly unfounded and baseless cause of death testimony.” See Estate of Moreland v. Dieter, 395 F.3d 747, 756 (7th Cir. 2005) (“The defendants’ Daubert challenge to the testimony of a different expert hardly suffices to preserve the argument against [the expert at issue].”). Indeed, Hall conceded at oral argument that she was not arguing that Dr. Miller’s and Dr. Rothman’s testimony violated Rule 702 and Daubert. So Hall has forfeited her claim as to Dr. Miller and Dr. Rothman. See Otto v. Variable Annuity Life Ins. Co., 134 F.3d 841, 854 (7th Cir. 1998) (“This court has refused to consider unsupported or cursory arguments.”); United States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991) (holding that “perfunctory and undeveloped arguments” are forfeited on appeal).

B, Reversible Error Involving Dr. Ruge

1. Rule 702¡Daubert Framework Should Have Been Applied

Hall argues that the district judge erred •in permitting Dr, Ruge to testify that Weekley’s cause of death was not attributable to seizure, and that a heart-related issue was the likelier explanation. Both Hall and the defendants contend that we should review the admission of this testimony for abuse of discretion. But that overlooks the fact that the abuse of discretion standard is available only when the district judge actually applied the Rule 702¡Daubert framework, which did not occur here.

In MIL # 49, Hall argued that Dr, Ruge offered cause-of-death opinions without being “qualified through education or experience” and without the requisite “scientific explanation.” With that challenge to Dr. Ruge’s credentials, the district judge should have conducted, a Daubert inquiry, even though Hall .did not expressly reference Daubert or Rule 702 by name. And when Hall objected at trial that “there’s been absolutely no foundation laid, no qualifications, nothing that would suggest that this gentleman is qualified to give ... opinions as to cause of death,” the district judge was squarely faced with a need to determine if Dr. Ruge was qualified as an expert in this area, even if the word “Dau-bert” was not spoken.

But the objections did not prompt the judge to examine Dr; Ruge’s qualifications and methodology or to apply the Daubert test. Instead, the judge focused solely on whether the challenged opinions had been previously disclosed. Perhaps even more curiously, neither party made any effort to clarify that Hall had in fact invoked Rule 702 and Daubert, and that the district judge should therefore comment on more than whether the opinions had been previously disclosed. The parties’ failure to do so, however, did not extinguish the need to apply the Rule 702/Daubert framework to Dr. Ruge’s opinions. Because that application never occurred, our review of the admission of these opinions is de novo.,

2. Adequate Qualifications and Methodology for Dr. Ruge’s Seizure Opinion

At trial, Dr. Ruge opined that Weekley had not suffered a seizure before she died. He noted that she had no documented history of seizures, and that her body and bed did not display , the typical signs of seizure such as violent convulsions, tongue damage, and urinary incontinence. He also stated that seizures typically do not result from cranioplasty (the surgical procedure Weekley underwent), and that the cranioplasty here had not damaged Weekley’s brain.

This opinion was not erroneously admitted. For one, Dr. Ruge possessed sufficient qualifications to opine on the operation performed and the possible occurrence of a seizure afterward. At the time of trial, Dr. Ruge had practiced pediatric neurosurgery for approximately 25 years and was serving as the chief of pediatric neurosurgery for the Advocate Health Care system, which encompassed two major children’s hospitals and approximately ten other hospitals. In addition, he was certified by the American Board of Neurological Surgery, was affiliated with multiple neurological and medical societies, and was a former editorial board member for the publications Critical Reviews in Neurology and Child’s Nervous System. And perhaps most notably, he had operated on growing skulls fractures like Weekley’s, and had published articles on various pediatric neurosurgery topics including epilepsy, cranial cysts, and severe head injury.

In addition, Dr. Ruge’s seizure-related opinions were based on sufficiently reliable methodology. Dr. Ruge arrived at his conclusions based on his review of the autopsy report; Weekley’s medical records, including the MRI and CT scans taken before surgery, Dr. Flannery’s operative report, and Dr. Flannery and Dr. Sam-path’s post-surgery progress notes; and deposition testimony. See Gayton, 593 F.3d at 618 (holding that district court abused its discretion in finding expert’s methodology unreliable where expert made differential diagnosis based on decedent’s autopsy report and medical records and testimony of prison guards and other witnesses); Walker v. Soo Line R.R. Co., 208 F.3d 581, 591 (7th Cir. 2000) (holding that district judge did not abuse his discretion in admitting expert testimony informed by expert’s experience and examination of medical records, despite lack of in-person examination). In addition, Dr. Ruge relied on his medical experience, which as discussed above is substantial, particularly with regard to pediatric neurosurgery. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 156, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (“[N]o one denies that an expert might draw a conclusion from a set of observations based on extensive and specialized experience.”); Metavante Corp., 619 F.3d at 761 (“An expert’s testimony is not unreliable simply because it is founded on his experience rather than on data...."); Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000) (“While extensive academic and practical expertise in an area is certainly sufficient to qualify a potential witness as an expert, Rule 702 specifically contemplates the admission of testimony by experts whose knowledge is based on experience.” (citations and internal quotation marks omitted)).

Hall contends that Dr. Ruge lacked the requisite qualifications because pathology is not his area of professional focus. However, this argument ignores the fact that “[o]rdinarily, courts impose no requirement that an expert be a specialist in a given field.” Gayton, 593 F.3d at 618 (citation omitted); see also Gaydar v. So-ciedad Instituto Gineco-Quirurgico y Planificacion Familiar, 345 F.3d 15, 24-25 (1st Cir. 2003) (“The proffered expert physician need not be a specialist in a particular medical discipline to render expert testimony relating to that discipline. In fact, it would have been an abuse of discretion for the court to exclude [the expert’s testimony [about plaintiffs pregnancy] on the sole basis that his medical specialty was something other than gynecology or obstetrics.”); Pineda v. Ford Motor Co., 520 F.3d 237, 244 (3d Cir. 2008) (explaining that a district court abuses its discretion by excluding testimony simply because “the proposed expert does not have the specialization that the court considers most appropriate” (citation omitted)). The fact that an expert may not be a specialist in the field that concerns her opinion typically goes to the weight to be placed on that opinion, not its admissibility. See, e.g., Huss v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009); Mitchell v. United States, 141 F.3d 8, 15 (1st Cir. 1998); Kannankeril v. Terminix Int’l, Inc., 128 F.3d 802, 809 (3d Cir. 1997).

Here, the issue of whether a seizure occurred shortly before Weekley’s death did' not concern knowledge that is held solely by pathologists. Dr. Nanduri; the pathologist who examined Weekley after her death, testified that a seizure-related cause-of-death finding is made by excluding all other apparent causes, and that she arrived at her finding here based on the damage to Weekley’s dura and cortex— damage that a non-pathologist could have observed. Moreover, Dr. Ruge stated that he “routinely cared for patients who ... have seizures as part of their neurosurgical condition,” witnessed numerous seizures himself, and operated on individuals ■with head injuries comparable to Week-ley’s. So Dr. Ruge possessed the requisite qualifications to testify about seizures. See Gayton, 593 F.3d at 618 (holding that general practitioner could testify about possible effects of certain medications on decedent’s heart condition because the issue did not concern “specialized knowledge held only by cardiologists”); Banister v. Burton, 636 F.3d 828, 831-32 (7th Cir. 2011) (holding that emergency-room surgeon who treated shooting victim was adequately qualified to testify about victim’s ability to throw or crawl at the- time of treatment, despite not being a biomechan-ics expert or an orthopedic surgeon).

3. Inadequate Qualifications for Dr. Ruge’s Heart Opinion

While Dr. Ruge was qualified to opine on Weekley’s surgery and the possibility of seizure, this qualification does not extend to his opinion that Weekley’s heart-related issue was the likelier cause of death. See Gayton, 593 F.3d at 617 (“[W]e must look at each of the conclusions [an expert] draws individually to see if he has the adequate education, skill, and training to reach them.” (citations and internal quotation marks omitted)).

Neither Dr. Ruge’s trial testimony nor his expert report and curriculum vitae indicate that he. possesses any specialized education, knowledge, experience, or skill concerning focal interstitial chronic inflammation specifically, or more broadly cardiology. Indeed, Dr. Ruge acknowledged at trial that when he read the inflammation finding in Weekley’s autopsy report, he “didn’t know what that was exactly.” So he conducted a Google search and found several papers explaining that it is “a finding in young athletes who die suddenly of cardiac arrhythmias,” even though their “hearts can look very normal.” Based on this research, he opined that focal interstitial chronic inflammation “makes more sense [as a cause of death] based on the whole story, the whole picture.”

Wé do not doubt that Dr. Ruge is an intelligent doctor who possesses considerable knowledge about surgery, pediatrics, and neurology. However, the record lacks sufficient evidence demonstrating that this knowledge and the related experiences fender Dr. Ruge qualified to opine about Weekley’s heart. See Dura Auto. Sys. of Ind., Inc. v. CTS Corp., 285 F.3d 609, 613 (7th Cir. 2002) (remarking that a surgeon “would be competent to testify that the cancer was too advanced for surgery, but [that] in offering the additional and critical judgment that the radiologist should have discovered the cancer sooner he would be, at best, just parroting the opinion of an expert in radiology”); Jones v. Lincoln Elec. Co., 188 F.3d 709, 723-24 (7th Cir. 1999) (holding that district court should have barred material scientist from testifying about conclusions that “were rooted in medical knowledge and training which [he] did not have” and that were “derived -primarily, if not completely” from a physiologist); see also Avila v. Willits Envtl. Remediation Trust, 633 F.3d 828, 839 (9th Cir. 2011) (concluding that chemist, who had expertise in cancer immunology and medical toxicology, had no “special training or knowledge regarding metal working industries” and could not opine that power plant’s activities created dioxins); Wheeling Pittsburgh Steel Corp. v. Beelman River Terminals, Inc., 254 F.3d 706, 715-16 (8th Cir. 2001) (concluding that hydrologist was qualified to testify about flood-risk management but not about safe warehousing practices). Because Dr. Ruge did not possess the requisite qualifications to opine about the impact of Weekley’s heart on her cause of death, we need not address his methodology.

4. Hall’s Substantial Rights Were Affected

The fact that Dr. Ruge’s heart-related cause-of-death testimony was erroneously admitted does not automatically entitle Hall to a new trial. Rather, she must show that this error had a “substantial influence over the jury.” Farfaras, 433 F.3d at 564. We conclude that it did.

It is undisputed that Weekley’s cause of death was a critical issue at trial. Hall pointed to seizure—a relatively difficult fact to prove since (as both parties agree) such a finding is made only by ruling out all other possible alternatives. It is no surprise that the defendants chose not only to argue that a seizure had not occurred, but also to offer an alternative cause—heart troubles. And Dr, Ruge played a critical role supporting this alternative cause, testifying about multiple studies he had read that linked the heart condition that Weekley had to the circumstances under which she passed away.

Critically, the import of Dr. Ruge’s testimony cannot be minimized on the ground that it was merely “cumulative” of testimony provided by other experts. See Naeem, 444 F.3d at 609 (finding improperly admitted expert testimony did not affect substantial rights because certain of the expert’s objectionable statements were “corroborated by other witnesses”); Palmquist v. Selvik, 111 F.3d 1332, 1339, 1342 (7th Cir. 1997) (finding that exclusion of evidence was harmless error because the proposed evidence was cumulative). To be sure, Dr. Miller and Dr, Rothman briefly referenced the effect a heart attack can have on cause-of-death findings generally, while Dr. Nanduri and Dr. Case acknowledged that heart disturbances can. result in death for .a healthy young adult. However, Dr. Ruge was the only expert to opine about the purportedly “numerous papers” that identify young athletes who died suddenly of heart-related illness. We cannot ignore the distinct possibility that Dr. Ruge’s discussion of these publications played a key role in the jury’s verdict, given the threshold nature of the cause of death inquiry. See Chapman v. Maytag Corp., 297. F.3d 682, 688 (7th Cir. 2002) (remanding for new trial where precise impact of expert’s erroneously admitted testimony on comparative fault could not be determined, given the jury’s general verdict); see also Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 465-67 (9th Cir. 2014) (en banc) (remanding for new trial where district court erroneously permitted expert to testify about evidence that was “critical” to plaintiffs’ case); Wheeling Pittsburgh Steel, 254 F.3d at 715 (finding reversible error where district court permitted hydrologist to repeatedly testify beyond scope of his expertise “on ultimate issues of fact that the jury was required to answer”).

The defendants contend that reversal would be improper because “there is no basis to. conclude that admission of the Defendants’ experts’ testimony influenced the jury’s verdict.” They argue that even if the jury had not heard any testimony from the defendants’ experts "regarding alternative causes of death, the jury could have found for the defendants on the grounds that they did not breach their standard of care, or that any such breach did not cause Weekley’s death. In support, the defendants cite several Illinois state court decisions that found a new trial to be unnecessary where it was possible that the jury’s verdict rested on an issue that was not subject to appeal. See Tabe v. Ausman, 388 Ill.App.3d 398, 327 Ill.Dec. 767, 902 N.E.2d 1153, 1159 (2009); Strino v. Premier Healthcare Assocs., P.C., 365 Ill.App.3d 895, 302 Ill.Dec. 784, 850 N.E.2d 221, 229-30 (2006); Krklus v. Stanley, 359 Ill.App.3d 471, 295 Ill.Dec. 746, 833 N.E.2d 952, 959-60 (2005).

But state law is not applicable to this inquiry. “In this circuit the harmlessness standard is treated as procedural -and therefore in a diversity case is governed by federal law and [Rule] 61.” Sokol Crystal Prods., Inc. v. DSC Commc’ns Corp., 15 F.3d 1427, 1435 (7th Cir. 1994) (citation and footnote omitted);-see also 11 Charles A. WRIGHT ET AL„ FEDERAL PRACTICE & Procedure § 2883 (3d ed. 2016) (“It- is unsound [for a federal court to apply a state court’s harmless-error standard] because the harmless-error doctrine, explicitly stated both in Rule 61 and in an Act of Congress, is an important principle of judicial administration "that goes to the proper relation between' the trial judge and the jury and the proper relation between appellate courts and trial courts.”). Because the defendants have not satisfied Rule 61’s harmless-error standard, a -new trial is warranted.

III. CONCLUSION

We Reverse the district judge’s decision to admit Dr. Ruge’s heart-related cause-of-death testimony, Vacate the judgment, and Remand the case for proceedings consistent with this opinion.