author: WILLIAMS, Circuit Judge.

text:
    Hannah PIOTROWSKI and James M. Piotrowski, Plaintiffs-Appellants, v. MENARD, INC., Defendant-Appellee.
    No. 15-3163
    United States Court of Appeals, Seventh Circuit.
    Argued May 23, 2016
    Decided November 29, 2016

      Joseph F. Vosicky, Jr., Attorney, Law Offices of Joseph F. Vosicky, Jr., Chicago, IL, for Plaintiffs-Appellants.
    Nicole Danielle Milos, Attorney, Cremer, Spina, Shaughnessy, Jansen & Siegert, LLC, Chicago, IL, for Defendant-Appellee.
    Before BAUER, POSNER, and WILLIAMS, Circuit Judges.
   WILLIAMS, Circuit Judge.

Hannah Piotrowski was injured after slipping on two small rocks in the parking lot of a Menard store. She filed this suit alleging that her injuries were due. to Me-nard’s negligence, contending that the rocks must have come from a planter that Menard maintained outside the store or from decorative rocks' that the store sold in bags of at. least forty pounds. We affirm the district court’s grant of summary, judgment in favor of the store because Pio-trowski’s belief that she fell as a result of the store’s negligence is only speculation, and speculation is not enough to survive summary judgment under Illinois law. That Piotrowski fell in the Menard’s parking lot after slipping on two rocks is. not enough to support an inference that Me-nard’s negligence caused the fall. In addition, there is no evidence of a pattern of conduct or recurring incident, and the store’s general manager and employees regularly monitored the parking lot for unsafe conditions.

I. BACKGROUND

Hannah Piotrowski and her husband went shopping at a Menard home improvement store in Hodgkins, Illinois on April 14, 2012. While walking in the parking lot toward their, vehicle, Piotrowski stepped on one or two small rocks that she had not seen before stepping on. them and fell, very hard. Piotrowski described the rocks as oval in shape and larger than marbles.

When she fell, Piotrowski was in the area outside the store entrance and exit used for vehicle drop-offs. About 50 to 125 feet away, there is a large, half-moon shaped concrete planter with a small tree and bush in the center. Decorative “river rock” fills the planter. The rock needed to be replenished from time to time, and the store’s general manager said that rock was added to the planter “whenever it looks a little bare.” The planter was near the store’s exit, and the store’s front end manager had seen children in the planter .on occasion. Menard also sold decorative river rock in the garden center of its store in large bags weighing forty to fifty pounds.

The store’s general manager walked the store’s premises, including the parking lot, on a daily basis. More specifically, he explained that he walks “every square foot of our store, our parking lot, my outside yard, and our perimeter” every day as part of his duties as general manager. Other employees also walked through the parking lot throughout the day and were responsible for reporting any hazards.

Piotrowski went by ambulance to the hospital after her fall and was treated for fracture, "torn ligaments, and dislocation of her right elbow. Her injuries required four additional hospitalizations and three more surgeries within the first year of the accident.

Piotrowski and her husband filed suit in the Circuit Court of Cook County, Illinois against Menard, Inc. alleging negligence and loss of consortium. Menard removed the case to federal court on the basis of diversity jurisdiction. The judge granted Menard’s motion for summary judgment, and this appeal followed.

II. ANALYSIS

The question on appeal, as it was before the district court, is whether Piotrowski has set forth sufficient evidence to proceed to trial on whether Menard’s negligence caused Piotrowski’s fall. We review the grant of summary judgment to Menard de novo, viewing all evidence in the light most favorable to Piotrowski as the non-movant at summary judgment. Farrell v. Butler Univ., 421 F.3d 609, 612 (7th Cir. 2005). Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

Illinois law governs in this diversity case. A plaintiff like Piotrowski who alleges that the defendant was negligent must show a duty owed by the defendant, a breach of that duty, and injury that was proximately caused by the breach. Newsom-Bogan v. Wendy’s Old Fashioned Hamburgers of N.Y. Inc., 352 Ill.Dec. 188, 953 N.E.2d 427, 431 (Ill. App. Ct. 2011). In Illinois, a business like Menard owes customers a duty to maintain its premises in a reasonably safe condition to avoid injuries to those customers. Zuppardi v. Wal-Mart Stores, Inc., 770 F.3d 644, 649 (7th Cir. 2014). The parties agree that Menard owed Piotrowski this duty, but they dispute whether Menard breached its duty and also whether any breach was the proximate cause of the injuries Piotrowski suffered.

When a business’s invitee is injured by slipping on a foreign substance, the business can be liable if the invitee establishes that: (1) the substance was placed there by the negligence of the business; (2) the business had actual notice of the substance; or (3) the business had constructive notice of the substance. Id. (citing Newsom-Bogan, 352 Ill.Dec. 188, 953 N.E.2d at 431; Pavlik v. Wal-Mart Stores, Inc., 323 Ill.App.3d 1060, 257 Ill.Dec. 381, 753 N.E.2d 1007, 1010 (2001)). Significantly, speculation or conjecture regarding the cause of an injury is not sufficient in Illinois to impose liability for negligence. Smith v. Eli Lilly & Co., 137 Ill.2d 222, 148 Ill.Dec. 22, 560 N.E.2d 324, 328 (1990); Furry v. United States, 712 F.3d 988, 993 (7th Cir. 2013) (applying Illinois law).

A. No Triable Issue as to Whether Placement of Rocks Due to Me-nard’s Negligence

We look first to whether there is a triable issue as to whether the two rocks were placed in the parking lot where the fall occurred due to Menard’s negligence. Piotrowski maintains that Menard caused the dangerous condition of rocks in the parking lot by maintaining a planter full of rocks outside the store. To prove that the defendant, rather than a third party, created the dangerous condition, Illinois courts require a plaintiff to (1) demonstrate that the foreign substance was related to the defendant’s business, and (2) offer “some further evidence, direct or circumstantial, however slight, such as the location of the substance or the business practices of the defendant, from which it could be inferred that it was more likely that defendant or his servants, rather than a customer, dropped the substance on the premises.” Zuppardi, 770 F.3d at 650 (quoting Donoho v. O’Connell’s, Inc., 13 Ill.2d 113, 148 N.E.2d 434, 439 (1958)).

Our decision in Zuppardi is instructive here. There a customer slipped on a puddle of water in the back of a Wal-Mart store. The puddle was near where employees traveled to clock in and out, take breaks, and unload inventory. We ruled that the plaintiff had not put forth sufficient evidence to survive summary judgment, noting that she had not seen the water prior to her fall nor seen how it accumulated, there were no tracks leading to or from the puddle to any store display or freezer, and the plaintiff had not seen any store employees as she traveled down the aisle before the fall. Id. Even though the plaintiff pointed to testimony that an employee was stocking shelves a few aisles away in what may have been the soda, and water aisle as a possible cause of the spill, we said that was not enough, as it was “insufficient for [the plaintiff] to solely provide a possible way in which a Wal-Mart employee could have caused the spill.” Id. at 646, 650. The plaintiffs contention was purely speculation, and that was not enough. Id. at 650.

Here, too, there is no direct or circumstantial evidence to indicate that it was more likely that a Menard employee, rather than a third party, was responsible for the two rocks’ presence where Piotrow-ski fell. It is not enough to say that Me-nard sold river rocks and'used river rocks to fill a planter in the parking lot—that much is true. But it is not- true that the plaintiffs have adduced evidence that the rocks’ placement in the parking lot was more likely caused by Menard’s negligence rather than by that of a customer or other third party. As even Piotrowski acknowledges, potential causes of rock depletion to the planter were many and included that patrons or children were carrying it away, power washing of the store front, overfill, and customers or employees setting something on the planter with the result that the rocks moved onto the surrounding parking lot when the object was pulled off the planter. A witness who saw Piotrowski fall testified that the rocks at issue may have fallen from a tire of one of the vehicles driving in the parking lot.

Piotrowski did not see'the rocks fall, and neither she nor anyone else to whom she points knew how the rocks at issue ended up where they did. Although she is' correct that a' Menard employee’s actions could have caused the rocks to spill, that this was the cause is only speculation, and speculation is not sufficient to survive summary judgment. See Ciciora v. CCAA, Inc., 581 F.3d 480, 483 (7th Cir. 2009); see also Thompson v. Econ. Super Marts, Inc., 221 Ill.App.3d 263, 163 Ill.Dec. 731, 581 N.E.2d 885, 888 (1991) (“[E]ven where there is proof that the foreign substance was related to the defendant’s business, but no further evidence is offered other than the presence of the substance and the occurrence of the injury, the defendant is entitled to a directed verdict, such evidence being insufficient to support the necessary inference.”).

B. No Triable Issue as to Whether Menard Had Actual or Constructive Notice

Piotrowski could also succeed on her negligence claim if she could show that Menard had actual or constructive notice of the dangerous condition that caused her fall. Reid v. Kohl’s Dep’t Stores, Inc., 545 F.3d 479, 481 (7th Cir. 2008) (citing Pavlik, 257 Ill.Dec. 381, 753 N.E.2d at 1010). It is not clear whether she is pressing this theory on appeal, as she acknowledges that the district court correctly found that the record contained no evidence of actual or constructive notice of the two rocks that caused her fall and no evidence of how long the two rocks had been present at the spot in question before her fall.

Piotrowski does maintain that the district court lost sight of the overarching issue in the case, which to her is the permanent and dangerous condition created and maintained by Menard. In support, she points to cases articulating the principle that actual or constructive notice of a dangerous condition was not required to establish liability when the dangerous condition was created by the defendant or its employees. See, e.g., Harding v. City of Highland Park, 228 Ill.App.3d 561, 169 Ill.Dec. 448, 591 N.E.2d 952, 958-59 (1992); Coffee v. Menard, Inc., No. 13 C 2726, 2015 WL 1399049, at *4 (N.D. Ill. Mar. 25, 2015). These cases do not help Piotrowski, however, as unlike in those cases, there is no evidence here from which a jury could find that it is more probable than not that a Menard employee caused the dangerous condition,

Piotrowski also stresses that Menard knew that rock was leaving the planter because its store manager acknowledged directing employees to replenish the rock as needed, and she argues that this fact gives rise to a reasonable inference that rock was escaping onto the pavement where customers walked. Constructive notice can be established in Illinois by presenting evidence that the dangerous condition was present for a sufficient length of time such that in the exercise of ordinary care its presence should have been discovered, or by showing that the dangerous condition was part of a pattern of conduct or a recurring incident. Culli v. Marathon Petroleum Co., 862 F.2d 119, 123 (7th Cir. 1988); Donoho, 148 N.E.2d at 438. Piotrow-ski did not see the two rocks until after her fall, and she does not have any evidence as to how long they were on the pavement before her fall, so she does not press an argument based on how long the rocks were .in the parking lot.

Rather, Piotrowski maintains that Me-nard is liable because it was aware that rock was escaping the planter since it would refill the planter with additional rock, yet it took no remedial action to halt the escape of rock from the planter. In support she points to our decision in Culli, where we upheld a jury verdict in favor of a plaintiff who slipped and fell on a spill at a gas station. 862 F.2d at 119. But in Culli, the gas station knew of spills on a daily basis in the area at issue yet swept only at night, and did so despite evidence that the volume of sales made only nightly sweeps unreasonable. Id. at 126-27. Here, in contrast, there was no evidence of any other incident involving rocks in the parking lot. Nor is there any evidence of recurring escape of river rock from the planter onto the parking lot pavement or of any prior complaint of loose rock in the parking lot. And the store’s general manager testified that he walked every square foot of the store, parking lot, and perimeter every day as part of his duties as general manager. The store’s policies and procedures also required Menard employees to monitor the parking lot ánd to be on the lookout for unsafe conditions, and even Piotrowski acknowledges that there were “frequent inspections of the parking lot by the General Manager, Front Store Manager and other team member employees.” Under these circumstances, Piotrowski has not shown a pattern of dangerous conditions or a recurring incident which was not attended to within a reasonable period of time. Cf. Culli, 862 F.2d at 126.

Piotrowski is correct that a prior injury is not necessary to establish a store’s negligence, as the case she cites in- support, Ward v. K mart Corp., 136 Ill.2d 132, 143 Ill.Dec. 288, 554 N.E.2d 223 (1990), shows. There the Supreme Court of Illinois- held that the store’s duty of reasonable care included the risk that one of its customers, while carrying a large, bulky item, would collide , upon exiting the store with a post immediately outside the store’s entrance. Id., 143 Ill.Dec. 288, 554 N.E.2d at 234. The court ruled that the fact that a condition (such as the post) is open and obvious is only a factor to be considered, not a complete defense to liability. Id. at 228, 554 N.E.2d at 234. We have no quarrel with Ward, but it does hot help Piotrowski. Menard has not argued that the “open and obvious” doctrine applies, there is no evidence Piotrowski was distracted when she fell, and while Kmart certainly knew of its post, there is no evidence Menard was aware of the two rocks in the parking lot.

That Piotrowski fell in the Menard parking lot, as painful as that fall was, is not enough to support an inference of negligence against Menard. We agree with Me-nard that she has not set forth sufficient evidence that the store breached a duty it owed to her. As a result, we affirm the grant of summary judgment in favor of Menard.

III. CONCLUSION

The judgment' of the district' court is AFFIRMED.

      . Hannah Piotrowski’s husband James is also a plaintiff and. appellant in the suit, but for ease we will refer only to Hannah Piotrowski in this opinion. Mr. and Mrs. Piotrowski do not make any separate arguments on appeal.


source: Caselaw Access Project

author: MANION, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Kenneth J. RANEY, Defendant-Appellant.
    No. 15-3574
    United States Court of Appeals, Seventh Circuit.
    Argued November 3, 2016
    Decided December 1, 2016

      Meredith P. Duchemin, Attorney, Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.
    Christopher D. Donovan, Attorney, Pruhs & Donovan, S.C., Milwaukee, WI, for Defendant-Appellant.
    Before BAUER, MANION, and HAMILTON, Circuit Judges.
   MANION, Circuit Judge.

Kenneth Raney appeals for the second time the district court’s decision to impose an additional two-year term of supervised release after revoking his previous release term. We vacated Raney’s initial sentence because the district court did not provide any justification for the length of the supervised release term. On remand, the court has adequately explained its decision. Raney has also waived his challenge to the supervised release condition to which he objects. Therefore, we affirm.

I. Background

In 2001, Kenneth Raney was convicted of transportation of a minor with intent to engage in a sexual act and attempt to manufacture child pornography. The district court sentenced him to a term of 145 months’ imprisonment, which ended on February 10,- 2012. Thereafter, he began serving three years of supervised release.

However, midway through his release term, the district court found that he had violated the terms of that release by possessing a memory stick and maintaining contact with a convicted felon without his probation officer’s consent The’ court warned Raney that any future violations would result in revocation of his supervised release.

Raney was back in court a year later. At this revocation hearing, the district court found that he had violated his supervised release conditions in several ways. These included taking several unauthorized day trips with a female acquaintance and her two minor children. All told, Raney had about four months of access to minors without the knowledge of his probation officer. This time, the district court revoked his supervised release and sentenced him to nine months’ imprisonment followed by another two years of supervised release.

On appeal, we affirmed the district court’s revocation decision, but vacated the sentence. Because the district court did not explain its decision to impose two years of supervised release, we were “unable to review the propriety of the district court’s decision.” Raney I, 797 F.3d at 467. Although we found that the district court had “arguably justified its selection of the nine month term of imprisonment,” we vacated the entire sentence and remanded for resentencing in light of our opinion. Id.

On remand, the district court imposed the same sentence. Because Raney’s term of imprisonment had already ended by the time of his resentencing hearing, the sole effect of the resentencing was to reinstate the two years of supervised release under the same conditions as before. Raney once again challenges the procedural soundness of his sentence. He also appeals the imposition of a condition of supervised release that requires him to “notify third parties of risks that may be occasioned by [his] criminal record or personal history or characteristics.”

II. Discussion

A. Procedural Soundness

“Our review of a sentence for violating a term of supervised release is highly deferential, and we will uphold that term unless it is ‘plainly unreasonable.’” United States v. Jones, 774 F.3d 399, 403 (7th Cir. 2014) (quoting United States v. Kizeart, 505 F.3d 672, 674 (7th Cir. 2007)). We require only that the district court “say something that enables [us] to infer that [it] considered” the U.S. Sentencing Guidelines policy statements and the 18 U.S.C. §§ 3553(a) & 3583(e) sentencing factors. United States v. Ford, 798 F.3d 655, 663 (7th Cir. 2015) (quoting United States v. Robertson, 648 F.3d 858, 859-60 (7th Cir. 2011)). The district court “need not consider the Section 3553 factors in check-list form.” Id. (quoting Jones, 774 F.3d at 404). Nor must it make specific factual findings on each sentencing factor, as long as the overall record reveals that the court considered the factors. United States v. Carter, 408 F.3d 852, 854 (7th Cir. 2005).

The statutory sentencing factors are: (1) the nature and -circumstances of the offense; (2) the defendant’s history and characteristics; (3) the need to deter future crime, protect the public, and provide the criminal with necessary services. such as education and medical treatment; (4) Sentencing Commission recommendations regarding sentencing range; (5) Sentencing Commission policy; and (6) sentence consistency for similar violations. See id. The policy statements provide recommended sentencing ranges for supervised release violations that are non-binding and meant to “inform[ ] rather than cabin[ ] the exercise of the judge’s discretion.” Id. (quoting United States v. Salinas, 365 F.3d 582, 588 (7th Cir. 2004)).

The sentencing transcript indicates that the district court considered the heinous nature of Raney’s initial offenses; his history and characteristics (particularly his status as a sex offender); the need for deterrence; the need to protect the public; and the need to provide for Raney’s rehabilitation. The court further noted that two years of supervised release was appropriate because Raney had failed to heed the terms of his release before and had not shown he was not a threat to do so again. It also hoped that the two-year term would help reduce his risk of recidivism. Finally, the court confirmed that it had considered the Sentencing Commission’s policy statements. Simply put, the district court said more than enough to make it certain that it considered the relevant factors. We will not disturb the supervised release term.

B. Supervised Release Condition

Raney also challenges Supervised Release Condition 11. As noted above, the condition requires him to “notify third parties of risks that may be occasioned by [his] criminal record or personal history or characteristics.” The government concedes that under our decision in United States v. Bickart, 825 F.3d 832, 841-42 (7th Cir. 2016), the condition is impermissibly vague. However, the government argues that Raney waived any objection to this condition by failing to raise it at the resen-tencing hearing.

As we recently explained, a purposeful decision to object to some conditions but not challenge others is the “touchstone of waiver” because it indicates “a knowing and intentional decision.” United States v. Bloch, 825 F.3d 862, 873 (7th Cir. 2016) (quoting United States v. Armour, 804. F.3d 859, 865 (7th Cir. 2015)). When the district court allows the defendant an opportunity to challenge conditions of supervised release, the defendant waives any objection to conditions to which he fails to object. See United States v. Gabriel, 831 F.3d 811, 814 (7th Cir. 2016). Waiver “works to ‘extinguish ] any error and precludes appellate review.’” Bloch, 825 F.3d at 873 (quoting Armour, 804 F.3d at 865).

That is precisely what happened here. The sentencing transcript shows that the district court considered objections to several proposed conditions of supervised release. But Raney never raised an objection to the third-party notification condition. If he had concerns about that condition, “he should have brought them to the district court’s attention rather than waiting until appeal to complain for the first time.” Gabriel, 831 F.3d at 814. We hold that Raney waived his objection to Supervised Release Condition 11.

III. Conclusion

For the reasons set forth above, we conclude that the district court adequately explained its choice of a two-year term of supervised release and that Raney waived his challenge to the third-party notification condition by not raising it at his resentenc-ing.

AFFIRMED.

      . We provided a more detailed recitation of the facts of Raney’s case in his first appeal. See United States v. Raney, 797 F.3d 454 (7th Cir. 2015) (Raney I).


author: KANNE, Circuit Judge.

text:
    Dustan DOBBS, Plaintiff-Appellant, v. DEPUY ORTHOPEDICS, INC. et al., Defendants, v. George E. McLaughlin, on behalf of John Gehlhausen, P.C., and on behalf of Anthony G. Argeros, P.C., Appellee.
    No. 16-2135
    United States Court of Appeals, Seventh Circuit.
    Argued November 4, 2016
    Decided December 1, 2016

      Edward X. Clinton, Jr., Julia Christine Williams, Attorneys, Law Offices of Edward X. Clinton, P.C., Chicago, IL, for Plaintiff-Appellant.
    Susan M. Sharko, Drinker, Biddlé & Reath—Florham Park, Florham Park, NJ, for Defendants.
    George E. McLaughlin, Attorney, War-shauer-McLaughlin Law Group, P.C., Denver, CO, for Appellee.
    Before FLAUM and KANNE, Circuit Judges, and MAGNUS-STINSON, District Judge.

      The Honorable Jane Magnus-Stinson, of the United States District Court for the Southern District of Indiana, sitting by designation.

   KANNE, Circuit Judge.

Dustan Dobbs hired Appellees George McLaughlin, John Gehlhausen, and Anthony Argeros as his attorneys on a contingency fee basis. Appellees filed Dobbs’s product-liability claim against DePuy Or-thopedies in the DePuy ASR Hip Implant Multidistrict Litigation in the Northern District of Ohio. DePuy subsequently offered to settle all claims in that litigation.

Despite advice and pressure from McLaughlin, Dobbs refused to settle and discharged Appellees. Later, Dobbs changed his mind and decided to accept the settlement offer. Because the employment contract was inoperative when Dobbs settled, Appellees sought compensation under a quantum meruit theory. The district court awarded attorneys’ fees in the full amount of the original contract. Dobbs argues that the district court abused its discretion by not analyzing the factors that Illinois courts look to when calculating reasonable attorneys’ fees under quantum meruit. We agree.

I. Background

Doctors replaced Dobbs’s left hip with a DePuy ASR artificial hip. Unfortunately, the ASR model was defective. And those defects caused Dobbs pain and other hip problems. Roughly four years after the surgery, Dobbs hired Appellees to represent him in a product-liability suit against DePuy. Appellees took the case on a 35 percent contingency fee.

Appellees filed Dobbs’s complaint in the DePuy ASR Hip Implant Multidistricf Litigation in the Northern District of Ohio. A year later, DePuy proposed a “Global Settlement” in that litigation. DePuy offered represented parties $250,000 and unrepresented parties $165,000.

McLaughlin advised Dobbs to accept the settlement offer because going to trial would-be expensive, time consuming, and risky. Dobbs told McLaughlin that he wanted to register for the settlement but that he did not want to “agree with the settlement offer,” “waive any.rights' to a trial,” or “be forced to accept the present settlement offer from DePuy.” (R. 82-1 at 8.) Despite McLaughlin’s continued insistence that Dobbs’s best option was to take the settlement, Dobbs decided that the base award did not properly compensate him for his injuries. Dobbs became frustrated with McLaughlin, believing that McLaughlin was trying to force him to settle his case when he wanted to take it to trial.

.Dobbs then filed a-motion to remove McLaughlin as his attorney on October 17, 2014. McLaughlin acknowledged that he no longer represented Dobbs and moved to withdraw as counsel on December 30, 2014. Acting pro se, Dobbs ultimately chose to accept the settlement offer on February 5, 2015. But because he was considered “represented” for purposes of the settlement offer, Dobbs received $250,000.

Because Dobbs terminated the contract before he accepted the settlement offer, Appellees could not recover the contingency fee. McLaughlin then asserted a lien on the award and sought attorneys’ fees under a quantum meruit theory. Judge Katz in the Northern District of Ohio ordered mediation and personally mediated the negotiations. When the parties could not resolve the dispute, Judge Katz transferred the' case to the Northern District of Illinois. There, Judge Coleman held that the full contingency fee was a reasonable award under quantum meruit. Dobbs now appeals that decision.

II. Analysis

We review a district court’s award of attorneys’ fees 'for an abuse of discretion. Goesel v. Boley Int’l (H.K.) Ltd., 806 F.3d 414, 419 (7th Cir. 2015); Gautreaux v. Chi. Hous. Auth., 491 F.3d 649, 654 (7th Cir. 2007), We have described that standard of review as “highly deferential” because the district court is in the best position to determine the reasonableness of an award for work done on litigation in that court. Montanez v. Simon, 755 F.3d 547, 552-53 (7th Cir. 2014); Gautreaux, 491 F.3d at 659. Highly deferential review, however, does not give the district court unfettered discretion. The district court “still bears the responsibility of justifying its conclusions.” Sottoriva v. Claps, 617 F.3d 971, 975 (7th Cir. 2010).

We" apply state law to determine whether the district court’s award is reasonable. See Fednav Int’l Ltd. v. Cont’l Ins. Co., 624 F.3d 834, 838 (7th Cir. 2010). A federal court sitting in diversity jurisdiction typically applies the choice-of-law rules of the state in which it sits. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Generally, when a case is transferred from a district court with proper venue to another district court, the transferee court will apply the choice-of-law rules of the state in which the transferor court sits. See Van Dusen v. Barrack, 376 U.S. 612, 639, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964). Here, that suggests that Ohio substantive law—including its choice-of-law rules—would apply. Dobbs’s claim, however, was filed in the Northern District of Ohio only because the DePuy multidistrict litigation was already, in progress there. Dobbs’s complaint stated that the Northern District of Illinois was.the appropriate venue absent, the mpltidistrict litigation. That advises treating the Northern District of Illinois as the original venue.

In fact, district courts in our circuit have taken that ápproach: foreign cases filed directly in a district court as a part of ongoing multidistrict litigation are treated as having originated outside of that district. E.g., In re Watson Fentanyl Patch Prods. Liab. Litig., 977 F.Supp.2d 885, 888-89 (N.D. Ill. 2013); In re Yasmin & Yaz (Drospirenone) Mktg., Sales Practices & Prods, Liab. Litig., No. 3:09-MD-02100-DRH, 2011 WL 1375011, at *5 (S.D. Ill. Apr. 12, 2011). We ratify that approach here and apply Illinois’s choicé-of-law rules. ‘ ’

Illinois applies the choice:of-law analysis from the Restatement (Second) of Conflict of Laws,. Morris B. Chapman & Assocs., Ltd. v. Kitzman, 193 Ill.2d 560, 251 Ill.Dec. 141, 739 N.E.2d 1263, 1269 (2000). Section 221 of the Restatement governs restitution cases and instructs courts to apply thé law of the state with the most significant relationship to the restitution claim. The Restatement lists several factors courts should consider, including: the place where the parties’ relationship centers; the place where the benefit was conferred and received; and the parties’ domiciles, residences, and places of incorporation or business. Restatement (Second) of Conflict of Laws § 221.

Illinois has the'most significant relationship to this dispute. The contract was entered into in Illinois', Dobbs is an Illinois resident, Argeros resided and did business in Illinois, and the, events giving rise to the underlying.lawsuit occurred in Illinois. The only contact with Ohio was the venue of the multidistrict- litigation. Thus, Illinois law applies.

Under Illinois law, a client can fire an “attorney at any time with or without cause;” In re Estate of Callahan, 144 Ill.2d 32, 161 Ill.Dec. 339, 578 N.E.2d 985, 987 (1991). If a client terminates the services of an attorney who was retained on a contingency fee contract, the contract ceases to be effective and the attorney can no longer recover under that contract. Id., 161 Ill.Dec. 339, 578 N.E.2d at 988; Todd W. Musburger, Ltd. v. Meier, 394 Ill. App.3d 781, 333 Ill.Dec. 383, 914 N.E.2d 1195, 1208 (2009). A discharged attorney is left to recover compensation for services rendered under a theory of quantum me-ruit only. Thompson v. Buncik, 356 Ill.Dec. 184, 961 N.E.2d 280, 283 (2011); Meier, 333 Ill.Dec. 383, 914 N.E.2d at 1208-09. Quantum meruit means “as much as-he deserves.” Thompson, 356 Ill.Dec. 184, 961 N.E.2d at 283 (internal quotation marks omitted); see also Black’s Law Dictionary 1276 (8th ed. 2004) (defining quantum me-ruit as “[t]he reasonable value of services; damages awarded in an amount considered reasonable to compensate a person who has rendered services in a quasi-contractual relationship”). The analysis therefore requires an investigation into what fees the attorney earned before being fired.

Courts must examine the- attorneys’ work to decide what a reasonable fee would be, and the “burden of proof is on the attorney to establish the value of his services.” Thompson, 356 Ill.Dec. 184, 961 N.E.2d at 283. When determining a reasonable fee for services rendered, Illinois courts consider “the time and labor required, the attorney’s skill and standing, the nature of the cause, the novelty and difficulty of the subject matter, the attorney’s degree of responsibility in managing the case, the usual and customary charge for that type of work in the community, and the benefits resulting to the client.” Will v. Nw. Univ., 378 Ill.App.3d 280, 317 Ill.Dec. 313, 881 N.E.2d 481, 504-05 (2007) (citing In re Estate of Callahan, 161 Ill.Dec. 339, 578 N.E.2d at 990). Although an attorney may not recover under the original contingency fee contract, “in cases in which an attorney who has done much work is fired immediately before a settlement is reached, the factors involved in determining a reasonable fee would justify a finding that the entire contract fee is the reasonable value of services rendered.” DeLapaz v. SelectBuild Const. Inc., 394 Ill.App.3d 969, 334 Ill.Dec. 496, 917 N.E.2d 93, 97 (2009) (quoting Rhoades v. Norfolk & W. Ry. Co., 78 Ill.2d 217, 35 Ill.Dec. 680, 399 N.E.2d 969, 975 (1979)).

In this case, the district court abused its discretion by not properly analyzing whether awarding the full value of the contingency fee was reasonable. First, although we have described our abuse-of-discretion standard in this context as “highly deferential,” the reason for doing so is inapplicable here. We give district courts wide latitude in this context because the judge making the attorneys’ fees decision is usually the same judge before whom the litigation giving rise to the attorneys’ fees occurred. Consequently, that judge is normally in the best position to determine whether a given fee is consistent with the attorneys’ efforts in the case. Here, Appellees’ litigation work occurred in the Northern District of Ohio. The attorneys’ fees dispute was transferred to the Northern District of Illinois only after Judge Katz held that he couldn’t rule on the issue' because he had served as the parties’ mediator. Because Judge Coleman did not have firsthand knowledge about the litigation giving rise to Appellees’ claim for attorneys’ fees, she needed to analyze the factors Illinois courts have held are important when awarding attorneys’ fees under quantum, meruit.

The district court’s decision contains limited discussion of the relevant factors. The court listed the factors mentioned above but did not consider evidence related to the factors; rather, the judge merely recited Appellees’ claim that they “adhered to all case management orders, collected Dobbs[’s] medical records, act sheets, monitored the DePuy litigation, and attended to all details of maintaining Dobbs’[s] case.” (R. 42 at 7.) The only factor specifically addressed in the opinion was that Dobbs “undoubtedly benefitted” from Ap-pellees’ work. (R. 42 at 7.) The analysis left a whole host of relevant factors unaccounted for. How many hours did Appellees spend on Dobbs’s case? How difficult or novel was the underlying product-liability claim? How much would an attorney ordinarily charge for this type of work? What were Appellees’ skill and standing in the legal community? See Will, 317 Ill.Dec. 313, 881 N.E.2d at 504-05 (citing In re Estate of Callahan, 161 Ill.Dec. 339, 578 N.E.2d at 990).

The district court also relied in part on the rule that when “an attorney who has done much work is fired immediately before a settlement is reached, the factors involved in determining a reasonable fee would justify a finding that the entire contract fee is the reasonable value of services rendered.” DeLapaz, 334 Ill.Dec. 496, 917 N.E.2d at 97 (quoting Rhoades, 35 Ill.Dec. 680, 399 N.E.2d at 975). Although this is a correct articulation of Illinois law, the district court’s analysis does not comply with how Illinois courts have applied the rule in the past. The rule applies when the attorney did “much work,” which still requires analyzing the factors used to determine a reasonable fee under quantum meruit. See DeLapaz, 334 Ill.Dec. 496, 917 N.E.2d at 98; Will, 317 Ill.Dec. 313, 881 N.E.2d at 505; Wegner v. Arnold, 305 Ill.App.3d 689, 238 Ill.Dec. 1001, 713 N.E.2d 247, 251 (1999). Without more, we cannot know if the attorneys’ fees award was reasonable.

On remand, the district court may conclude that the full contingency fee is a reasonable award. We do not intend to insinuate that some lesser award is. required. Our conclusion is limited to the ruling that the district court erred by failing to consider evidence related to the relevant factors under Illinois law for determining reasonable attorneys’ fees under quantum meruit.

III. Conclusion

For the foregoing reasons, we VACATE the district court’s award of attorneys’ fees and REMAND the case for further proceedings consistent with this opinion.

      . Plaintiffs who meet additional criteria also have a chance to file claims for enhancements to the base award. Dobbs is in the process of seeking enhancements, but Appellees have expressly waived their right to attorneys’ fees based on any enhancement Dobbs may receive. •

      . Argeros died during the course of representation, and, as a solo practitioner, his representation of Dobbs ended. Moreover, McLaughlin left John Gehlhausen, P.C. Gehl-hausen remains entitled to a third of any share McLaughlin receives even though he stopped representing Dobbs in early April 2014.


author: EASTERBROOK, Circuit Judge.

text:
    Robert YATES, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 16-3048
    United States Court of Appeals, Seventh Circuit.
    Argued November 29, 2016
    Decided December 2, 2016
    Joseph Aragorn Bugni, Attorney, Federal Defender Services of Wisconsin, Inc., Madison, WT, for Petitioner-Appellant.

      Robert A. Anderson, Attorney, Office of the United States Attorney, Madison, WI, for Respondent-Appellee.
    Before POSNER, EASTERBROOK, and SYKES, Circuit Judges.
   EASTERBROOK, Circuit Judge.

Thirteen years ago, Robert Yates was sentenced as an armed career criminal under 18 U.S.C. § 924(e). The district court concluded that he had six qualifying prior convictions; the statute provides that three or more require an enhanced sentence. After the Supreme Court held in Samuel Johnson v. United States, — U.S.-, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), that the “residual clause” in § 924(e)(2)(B)(ii) is unconstitutionally vague, and made that decision retroactive, Welch v. United States, — U.S.-, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), Yates filed this collateral attack. He contends that after Samuel Johnson only two qualifying convictions remain, so that 28 U.S.C. § 2255(f)(3) restarts the time for collateral review. The prosecutor concedes that the petition is timely and that Samuel Johnson knocks out three of the six convictions but maintains that Yates’s conviction of battery by a prisoner, in violation of Wis. Stat. § 940.20(1), qualifies as a violent felony under the “elements clause” of § 924(e)(2)(B)(i) because it “has as an element the use, attempted use, or threatened use of physical force against the person of another”. Samuel Johnson does not affect the elements clause of § 924(e).- See, e.g., Stanley v. United States, 827 F.3d 562 (7th Cir. 2016). The district court agreed with the prosecutor and dismissed this proceeding. 2016 U.S. Dist. Lexis 79058 (W.D. Wis. June 17, 2016).

Under Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and its successors, such as Descamps v. United States, — U.S.-, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), and Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016), a court must determine whether a conviction satisfies § 924(e) or a similar recidivist statute by looking at the elements of the crime, no matter what the accused did in fact. We do not know what he did that led to the battery conviction, but the Supreme Court has held that the facts do not matter—indeed that we are usually forbidden to know. See Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). The elements of the offense, not the facts of the crime, control. And the elements that matter are those applicable when the person committed the earlier offense. The elements of Wis. Stat. § 940.20(1) and associated provisions have changed since Yates’s conviction for battery by a prisoner, so like the district court we refer to the state law in force at the time of his conviction.

Yates maintains that Wisconsin law did not make “the use, attempted use, or threatened use of physical force against the person of another” an element of the crime, given how the Supreme Court understood “force” in Curtis Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). The Florida offense at issue in Curtis Johnson prohibited “actually and intentionally touching” another person without consent and causing alarm or offense—a form of simple battery. Under that statute throwing a Nerf ball at someone who was hit and became frightened could be penalized. The Court held that such acts do not entail the use of “force” within the meaning of § 924(e)(2)(B)© even though the impact of a Nerf ball conveys some “force” according to the laws of physics. Curtis Johnson stated that the sort of “force” that comes within the elements clause is “force capable of causing physical pain or injury to another person.” 559 U.S. at 140, 130 S.Ct. 1265. Yates tells us that Wisconsin’s battery-by-prisoner statute does not (well, did not) require the prosecutor to demonstrate that sort of force.

The statute on the books at the time provided:

Any prisoner confined to a state prison or other state, county or municipal detention facility who intentionally causes bodily harm to an officer, employee, visitor or another inmate of such prison or institution, without his or her consent, is guilty of a Class D felony.

And Wis. Stat. § 939.22(4) added that bodily harm means “physical pain or injury, illness, or any impairment of physical condition”; That definition tracks what Curtis Johnson said would- suffice: “force capable of causing physical pain or injury to another person.” This led the district court to hold that Yates’s battery conviction satisfies the elements clause of § 924(é).

Yates asks us not to take the statutory language at face value—because, he says, the state judiciary does not. He relies principally on State v. Higgs, 230 Wis.2d 1, 601 N.W.2d 653 (App. 1999), which affirmed a conviction under this statute of a prisoner who threw a cup of urine at a guard. Yet the ground on which the court sustained this conviction—that the urine had in fact caused pain to the guard when it got into his eyes and nose—comes within the language of Curtis Johnson, which said that it is enough if the force is “capable of’ causing pain. Yates has not identified any case in which Wisconsin’s judiciary affirmed a battery-by-prisoner conviction that penalized acts that caused neither pain nor injury. This state law therefore categorically is a crime of violence under the elements clause, and Yates was properly sentenced as a career criminal. ■

AFFIRMED


author: RIPPLE, Circuit Judge.

text:
    Thaddeus JONES, et al., Plaintiffs-Appellants, v. Michelle MARKIEWICZ-QUALKINBUSH, et al., Defendants-Appellees.
    No. 16-3514
    United States Court of Appeals, Seventh Circuit.
    Submitted October 6, 2016
    Decided December 2, 2016

      Keri-Lyn J. Krafthefer, Tiffany Nelson-Jaworski, Attorneys, Ancel, Glink, Diamond, Bush, Dicianni & Krafthefer, P.C., Chicago, IL, for Plaintiffs-Appellants.
    John B. Murphey, Attorney, Rosenthal, Murphey, Coblentz & Donahue, Chicago, IL, for Defendant-Appellee Michelle Mar-kiewicz-Qualkinbush.
    Burton S. Odelson, Attorney, Odelson & Sterk, Ltd., Evergreen Park, IL, for Defendant-Appellee Nyota Figgs.
    James P. Nally, Attorney, Chicago, IL, for Defendants-Appellees Magdalena L. Wosczynski and Ramonde D. Williams.
    Marie D. Spicuzza, Attorney, Office of the Cook County State’s Attorney, Civil Actions Bureau, Chicago, IL, for Defendant-Appellee David D. Orr.
    Before WOOD, Chief Judge, RIPPLE and WILLIAMS, Circuit Judges.
   RIPPLE, Circuit Judge.

This case, which arises out of our motions practice, is an appeal from the denial of a preliminary injunction in a dispute among the parties about the placement of certain referendum propositions on the November ballot. These propositions principally concern the local mayoral election in Calumet City and term limits on candidates for that office.'

Steven Grant and Calumet City Concerned Citizens (together, the “Petition Plaintiffs”) sought to place on the ballot a proposition that, if approved by the voters, would impose mayoral term limits. The County Clerk refused to place the proposition on the ballot on the ground that Calumet City’s current administration already had placed three other propositions on the ballot, and state law permitted no more than three propositions in any single election.

The City’s new ballot initiatives appeared to target specifically Thaddeus Jones, an alderman who had announced he was running for mayor. Mr. Jones therefore also brought suit against the city officials. Together, the Petition Plaintiffs and Mr. Jones (together, the “plaintiffs”) sought injunctive relief in the district court, claiming that the actions of the city officials violated the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Constitution of Illinois. The district court denied a preliminary injunction, and the plaintiffs appealed-. Because preparations for -the election were underway, we granted expedited review and, after considering the submissions of the parties, affirmed summarily the order 'of the district court. At that time, we also indicated that we would issue an opinion in due course.

I

BACKGROUND

A.

On June 18, 2016, plaintiffs Mr. Grant and .Calumet City Concerned Citizens began .to circulate a referendum petition to impose mayoral term limits. The petition specifically asked:

Shall ... Calumet City be subject to a term limit prohibiting all people from serving more than three (3) terms of office as Mayor, where a term of office includes partial terms of office of two years or more, including all past terms of office served and any term of office currently being served, effective immediately upon approval.and passage of this binding referendum? Yes [or] No.

Notably, if this proposition were approved by the voters, it would have disqualified the incumbent mayor from running for reelection in April 2017.

At the timé of the initial circulation of the plaintiffs’ petition, the defendant may- or and city council 'members apparently had not discussed imposing term -limits on the mayoral office and had no immediate plans to place any referenda on the ballot. Referendum propositions had not been used frequently. Nonetheless, on June 23, 2016, the City Council passed a resolution, placing the following propositions on the November 2016 general election ballot:

1. Shall the City of. Calumet City allow taverns (bars) to remain open until 2:00 a.m. on Fridays and Saturdays?
2. Shall any Calumet City elected official be able to receive two (2) pensions by being allowed to participate in the Illinois Municipal Retirement Fund if they are a member of the Illinois General Assembly Retirement Fund?
3. Shall the City of Calumet City, Cook County, Illinois, adopt the following term limits for the Office of Mayor to be effective for and applicable to all persons who are candidates for Mayor being elected at the Consolidated Election to be held on April 4, 2017, and- subsequent elections: Mayor—no person shall be eligible to seek election to, or hold the office of mayor where that person has held the elected office of either Mayor or Alderman of .,. Calumet City for [four] or more consecutive full four (4) year terms.

If approved by the voters, the first two propositions would be advisory; the final one would be binding.

On August 25, 2016, the City Council also voted to place three additional refer-enda questions on the February 28, 2017 primary ballot. The plaintiffs filed their petition with the City Clerk on August 8, 2016. The petition was timely and contained the necessary number of signatures. The County Clerk determined that this proposition could mot appear on the ballot because the Illinois Election Code contains a provision, referred to as the “Rule of Three,” which reads as follows:

Irrespective of the method of initiation, not more than 3 public questions ... may be submitted to referendum with respect to a political subdivision at the same election.
If more1 than 3 propositions are timely initiated or certified for submission at an election with respect to a political subdivision, the first 3 validly initiated, by the filing of a petition or by the adoption of a resolution or ordinance of a political subdivision, as the case may be, shall be printed bn the ballot and submitted at that-election.

10ILCS 5/28-1. Therefore, by operation of the Rule of Three, no additional items could be placed on the ballot. The County Clerk did not directly' notify the Petition Plaintiffs that their referenda item was blocked.

Having heard nothing regarding the status of their proposed ballot referendum, the plaintiffs contacted the County Clerk on September 6 to inquire as to the status. They were informed that the referendum had not been certified because it had been preempted by the City Council referenda items under the Rule of Three, The Petition Plaintiffs accordingly brought this action.

Thaddeus Jones, a State Representative and five-term Calumet City Alderman, is the only person to. have declared his intention to compete against incumbent Mayor Markiewicz-Qualkinbush in the April election. He also is affected uniquely by two of the City’s ballot referenda. First, one proposition asks the voters whether “any Calumet City elected official” should be able to receive two pensions by “being allowed to participate in the Illinois Municipal Retirement Fund if they are a member. of the Illinois General Assembly Retirement Fund?” The second question asks whether individuals who have served as “Alderman of the city of Calumet City for [four] or more consecutive full four (4) year terms” should “be eligible to seek election to, or hold the office of, mayor?” As a State Representative and Alderman, Mr. Jones is affected directly by these referenda propositions and would be prohibited from serving as mayor if the propositions were approved. Accordingly, Mr. Jones also brought suit.

B.

On September 15, 2016, the plaintiffs filed this action. The named defendants included: Michelle Markiewicz-Qualkin-bush (the current mayor and candidate for reelection); Nyota Figgs (the city clerk); Ramonde Williams (an alderman); Roger Munda (an alderman); Nick Manousopou-los (an alderman); Samuel Bullocks (an alderman); and David Orr (the Cook County clerk).

- The underlying allegations are best understood as consisting of three separate 'sets of interrelated accusations. First, the Petition Plaintiffs assert that their right to freedom of speech, as protected by the First Amendment, is violated when the Rule of Three is applied on a first-come-first-served basis. Second, Mr. Jones claims that the defendants impermissibly targeted him as a class of one in violation of the Equal Protection Clause and also deprived him of his First Amendment political association rights. Finally, all of the plaintiffs contest the ability of municipalities to amend their officer qualifications at the local level.

On September. 16, 2016, the plaintiffs moved for a temporary restraining order or preliminary injunction. On September 19, defendant Mayor Markiewicz-Qualkin-bush responded in opposition. The plaintiffs replied on September 21. On September 22, the district, court denied the plaintiffs’ motion. In an oral ruling, the court emphasized the significance of the plaintiffs’ delay, more than two months after receiving notice, as a deciding factor in the case.

II

DISCUSSION ■

We review the district court’s denial of a preliminary injunction for abuse of discretion. BBL, Inc. v. City of Angola, 809 F.3d 317, 324 (7th Cir. 2015). Legal issues are reviewed de novo. Id.

To obtain a preliminary injunction, the plaintiffs must show that (1) they will suffer irreparable harm in the period before final resolution of their claims; (2) traditional legal remedies are inadequate; and (3) the claim has some likelihood of success on the merits. Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S. of Am., Inc., 549 F.3d 1079, 1086 (7th Cir. 2008). If the plaintiffs make this showing, we then will weigh the factors against one another, assessing whether the balance of harms favors them or whether the harm to other parties or the public is sufficiently weighty that the injunction should be denied. ACLU of Ill. v. Alvarez, 679 F.3d 583, 589 (7th Cir. 2012).

A.

We turn first to the contentions of the Petition Plaintiffs.

Of the three primary elements needed to warrant a preliminary injunction, the Petition Plaintiffs’ probability of success on the merits is the most crucial in this context. The Petition Plaintiffs submit that the Illinois Rule of Three, as applied by Calumet City to block their term-limits proposition, presents exactly the situation that we indicated would pose “serious constitutional issues” in Georges v. Carney, 691 F.2d 297, 301 (7th Cir. 1982).

In Georges, a group of private citizens wanted the ballot in DuPage County to contain a question regarding nuclear armament in the next general election. Because this question would have no legal effect, it was considered an advisory question under the Illinois Election Code, and the plaintiffs were required to obtain the signatures of twenty-five percent of the registered voters in the subdivision to add the initiative to the ballot. Id. at 299. This requirement proved impossible to meet. Nevertheless, we upheld the constitutionality of the Illinois Election Code’s provision.

We explained that there is “no constitutional right to use the ballot box as a forum for advocating a policy, ... and that Illinois therefore has no constitutional obligation to allow advisory questions to be placed on the ballot.” Id. at 300. Because Illinois, as a matter of federal constitutional law, could have allowed only binding questions to be placed on the ballot, it made little difference that Illinois only effectively barred such propositions by instituting a twenty-five percent threshold that was virtually impossible to meet. Id. at 301.

We went on to suggest, however, that “[t]he case would be different” if public bodies submitted advisory propositions for the ballot, “particularly” if, “as a result, the challenged provisions of the Illinois Election Code could be viewed as a device by which the state (or county) was taking sides in the nuclear arms debate.” Id. Then, we suggested, the case would be analogous to Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975), where a municipally owned theater violated the First Amendment by forbidding the performance of a particular play. Georges, 691 F.2d at 301.

Judge Cudahy, writing separately in dissent, stated explicitly that “the three question limit, combined with the first-come-first-served principle and the fact that local governing bodies can put questions on the ballot with a simple resolution,[ ] makes it both possible and likely that the County Board will preempt the ballot spaces at its whim.” Id. at .303 (Cudahy, J., dissenting). What troubled Judge Cudahy most was his belief that “the Board [could] render the rights of private citizens who have obtained sufficient signatures, especially those citizens who espouse controversial causes, quite meaningless.” Id. As an example, Judge Cudahy noted that “in 1980, the County Board met one day prior to the filing deadline for ballot questions and approved, in a span of about fifteen minutes, eleven questions for the November 1980 ballot.” Id. When the citizens groups brought their petitions in the next day, they learned that there were no available spaces on the ballot. Id.

The opinion for the court, as well as the dissent, suggest that the Petition Plaintiffs have at least a colorable First Amendment claim. The Supreme Court repeatedly has held that, even in a public forum, the government may impose restrictions on “the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.” E.g., Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). In Georges, drawing support from the vast majority of states that do not allow citizens to propose ballot initiatives, we held that a ballot is not a protected “public forum.” 691 F.2d at 301 (panel opinion). In Protect Marriage Illinois v. Orr, 463 F.3d 604 (7th Cir. 2006), we again noted that “[t]he ballot is-not a traditional public forum for the expression of ideas and opinions, like streets or parks, to which reasonable access must be given to people who want to engage in political and other protected expression.” Id. at 606. But we also drew a clear distinction between that case and what the First Amendment still required. We held that, although a state clearly can “impose requirements designed to avoid ballot clutter, ... requirements [can]not [be] jiggered in a way that discriminates against particular advocates or viewpoints.” Id.

Our admonitions in both Georges and Protect Marriage Illinois make clear that the Petition Plaintiffs’ First Amendment argument well may succeed. The Petition Plaintiffs assert that, by interfering and advocating its own ballot initiatives, the City competed with their petition on an uneven playing field. This situation well may have amounted to government censorship because the City used the Rule of Three to “take sides” and limit the debate.

The district court was aware of the possible legal validity of the Petition Plaintiffs’ claim, but the court also well understood that other factors had to be weighed carefully before a preliminary injunction could be granted. The court had to “weigh[] the irreparable harm that the moving party would endure without the protection of the preliminary injunction against any irreparable harm the nonmov-ing party would suffer if the court were to grant the requested relief.” Girl Scouts of Manitou Council, Inc., 549 F.3d at 1086. We have described this assessment as employing a sliding scale approach: “[t]he more likely the plaintiff is to win, the less heavily need the balance of harms weigh in his favor; the less likely he is to win, the more need it weigh in his favor.” Id. (quoting Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 387 (7th Cir. 1984)). “Once all the equitable factors are before the judge, however, a classic discretionary decision must be made involving how much weight to give individual components of the calculus and to what direction the balance of equity tips.” Lawson Prods., Inc. v. Avnet, Inc., 782 F.2d 1429, 1436 (7th Cir. 1986). “Ultimately, the district judge has to arrive at a decision based on a subjective evaluation of the import of the various factors and a personal, intuitive sense about the nature of the case.” Id.

The Petition Plaintiffs argue that‘they face irreparable harm because their ballot initiative regarding term limits is meant to affect the April 2017 mayoral election. If we allow this initiative.to be excluded, they submit, voters will not have the option to set term limits in advance of the election. On the record before us, we cannot establish with any certainty the validity of this argument. The City already has planned to have a second ballot referendum as part of the primary election on February 28, 2017, and Calumet City’s residents may still be able to vote on the Petition Plaintiffs’ proposal prior to the April mayoral election. As noted earlier, the Petition Plaintiffs filed their petition with the City Clerk on August 8, 2016; the' City did not add its three ballot referenda to the February ballot until August 25, 2016. Deciding which three referenda have priority for the February ballot requires' an application of 10 ILCS 5/28-5’s “holdover clause.” For reasons that will become apparent shortly, we need not resolve this question of state law today; we merely note that the Petition Plaintiffs still may be able to submit -their referendum to voters before a new mayor is elected.

In assessing the balance of harms, the district court thought that the delay in bringing suit was “the most important driver of the decision.” It thought that the Petition Plaintiffs’ delay created’ significant harm for the public at large. Illinois prepared its ballots to be sent overseas by September 23, and the state authorized voting by mail an'd early voting beginning September 29. As we were well past these dates, and citizens of Calumet may well have been voting at the time of our summary affirmance, these interests quite appropriately weighed heavily in the district court’s analysis.

We believe that the district court was on solid.ground.in making this determination. “Laches arises when an unwarranted delay in bringing a suit or otherwise pressing a claim produces prejudice.” Fulani v. Hogsett, 917 F.2d 1028, 1031 (7th Cir. 1990) (citing Herman v. City of Chicago, 870 F.2d 400, 401 (7th Cir. 1989)). The obligation to seek injunctive relief in a timely manner in the election context is hardly a new concept. We previously have suggested that claims must be brought “expeditiously,” id. (citing Williams v. Rhodes, 393 U.S. 23, 34-35, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968)), to afford the. district court “sufficient time in advance of an election to rule without disruption of the electoral cycle,” Gjersten v. Bd. of Election Comm’rs for City of Chicago, 791 F.2d 472, 479 n.12 (7th Cir. 1986). Of course, “it is not always easy to determine whether the plaintiffs have made a timely attempt to protect their rights.” Id. “Timeliness must be judged by the knowledge of the plaintiffs as well as the nature of the right involved.” Id.

Although the Petition Plaintiffs dispute when they first had “knowledge” of their claims, neither party disputes the underlying facts. The plaintiffs first began circulating the proposed referendum petition in the City on Saturday, June 18,-2016. On Monday, June 20, 2016, the City Council directed the City Clerk to post a notice that a previously unscheduled Committee of the Whole Meeting Ordinance and Resolutions Committee would occur on June 22, 2016. The- items on the agenda included the consideration of three resolutions to place three different referenda propositions on the ballot for the November: 8, 2016, election.

The next business day, on Tuesday, June 21, 2016, the City Clerk posted an agenda and then a revised agenda for the Regular City Council Meeting scheduled for Thursday, June 23, 2016. The revised agenda added the resolutions to the calendar for the Regular City Council meeting to be held on June 23, 2016. Unlike the agenda for the Committee of the Whole Meeting Ordinance and Resolutions Committee, this new agenda also now advised that the referendum related to Qualifications for Mayor would be binding and slightly changed the language of the City's proposed term limits referendum. On Thursday, June 23, 2016, the City Council meeting occurred. At the meeting, Mr. Jones, a plaintiff in this action, voted against all three resolutions.

The district court reasonably concluded that not only Mr. Jones, but the Petition Plaintiffs, had knowledge of the Council’s action. The defendants correctly rely on Village of Fox River Grove v. Aluminum Coil Anodizing Corporation, 114 Ill. App.2d 226, 252 N.E.2d 225 (1969), for the proposition that passage and publication of an ordinance is notice to the world of its existence. The Petition Plaintiffs therefore acquired notice by June 23, 2016, when the City Council voted to add the three initiatives to the ballot

Our conclusion is consistent with both federal and state law. For example, in the due process context, the Supreme Court of the United States repeatedly has held that “[a]ll citizens are presumptively charged with knowledge of the law.” Atkins v. Parker, 472 U.S. 115, 130, 105 S.Ct. 2520, 86 L.Ed.2d 81 (1985). Moreover, in Illinois, notice, of ordinances is implied upon publication. People ex rel. O’Connell v. Read, 256 Ill. 408, 100 N.E. 230, 230-31 (1912) (discussing publication requirements of local ordinance as means to provide notice); City of Rockford v. Suski, 90 Ill.App.3d 681, 46 Ill.Dec. 87, 413 N.E.2d 527, 530 (1980) (“[FJailure of a municipality to prove publication of an ordinance may render it invalid.”).

Moreover, the complaint admits the City Council published an agenda on June 21, which described the ballot initiatives. The City Council published the minutes from the same meeting, noting that all three ballot initiatives had passed. Finally, as we have noted earlier, at least one plaintiff, Mr. Jones, was present at the meeting and voted against the measure. Theré is ample evidence to conclude that the plaintiffs knew that the Rule of Three displaced their ballot initiative by the end of June, but delayed in filing this action until September 15.

Given these facts, we do not think that the district court was obliged to accept the plaintiffs’ assertion that they lacked actual knowledge until early September because the City Clerk had a duty to inform them of the other initiatives on the ballot. As a practical matter, regardless of whether the City Clerk should have provided additional notice, the district court was entitled to conclude that the plaintiffs knew of the other three ballot initiatives on June 23 and, therefore, could have acted sooner. The district court was therefore on solid ground in concluding that the plaintiffs had notice of the ballot initiatives on or about June 23.

In sum, the district court certainly did not abuse its discretion in determining that the harm to the electoral system caused by the plaintiffs’ delay outweighed any countervailing harm to the Petition Plaintiffs.

B.

We turn now to Mr. Jones’s individual equal protection and freedom of political association claims. With respect to the equal protection claim, he contends that the proposition placed on the ballot by the , defendants impermissibly targets him as a “class of one” in violation of the Equal Protection Clause of .the Fourteenth Amendment.

Although Mr. Jones’s claims are certainly colorable, they were not ripe for adjudication when'this case was.decided. It is, of course, a fundamental principle that “[f|ed-eral courts ... cannot ... advise ,.. on the constitutionality of proposed legislation.” Jones v. Griffith, 870 F.2d 1363, 1366 (7th Cir. 1989); see also Muskrat v. United States, 219 U.S. 346, 359-60, 31 S.Ct. 250, 55 L.Ed. 246 (1911) (stating that when “presented a question involving the validity of any act of any legislature ... the court must ... determine whether ... [there is a] real, earnest, and vital controversy between individuals”). A ballot initiative is nothing more than proposed legislation removed from the legislature and placed in the hands of the voting public. Mr. Jones could not challenge the constitutionality of the propositions unless and until they were enacted by the referendum process.

Conclusion

The district court did not abuse its discretion in denying the preliminary injunction. The record evidence supports the district court’s determination that the plaintiffs’ request for such relief was not timely and that considerable harm would have been visited on the electoral system if the requested relief had been granted. Moreover, Mr. Jones’s individual claims were not ripe for adjudication at the time that we rendered our decision.

AFFIRMED

      1. R.l at 5, ¶ 19.

      . Calumet City has only placed four City-Council-Initiated referenda on the ballot in the last twenty-seven years, suggesting that binding referenda are a rarely utilized political tool, Id. at 7, ¶ 32.

      3. Id. at 7-8, ¶ 33.

      4. Id.

      5. Id. at 9, ¶ 41.

      . Id. at 7-8, ¶ 33.

      . Id. at 9, ¶ 41.

      .The initial complaint was brought on behalf of both Mr. Jones and the Petition Plaintiffs. ■ See id. at 1.

      . Specifically, the plaintiffs in Georges v. Carney sought to add a question asking, “ 'shall the people of the County of DuPage endorse the call to halt the nuclear arms race and request the DuPage County Board ... to adopt an immediate, mutual, and verifiable freeze on all further testing, production and deployment' of Soviet and American nuclear weapons ‘followed by reductions of present nuclear weapons?’" 691 F.2d 297, 299 (7th Cir. 1982).

      . See also Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989); Clark v. Cmty. for Creative NonViolence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984).

      . Appellants’ Br, 18. The pagination differs between the electronic and hard copies of the Appellants’ Brief. Throughout this document, references to the Appellants' Brief use the electronic pagination. .

      . R.17 at 20.

      . Id. at 24.

      . State of Illinois, Election and Campaign Finance Calendar, at 42-43, available at https://www.elections.il.gov/Downloads/ ElectionInformation/PDF/201 óElection Calendar.pdf.

      . See Fulani v. Hogsett, 917 F.2d 1028, 1031 (7th Cir. 1990) (denying relief where plaintiffs’ delay risked "intereferfing] with the rights of other Indiana citizens, in particular the absentee voters” once ballots had been printed); see also Kay v. Austin, 621 F.2d 809, 813 (6th Cir. 1980) (applying laches where candidate waited two weeks after he knew he would not be listed on ballot to file suit and preliminary work had already been done for election); McCarthy v. Briscoe, 539 F.2d 1353, 1354-55 (5th Cir. 1976) (denying application for emergency injunctive relief where entire election process would be disrupted by lawsuit filed on July 30 seeking ballot access to November presidential election).

      . R.l at 5, ¶ 19.

      . . Id. at 7, ¶ 31.

      . Id. at 8, ¶ 34.

      . Id.

      . Id. at 9, ¶ 42.

      . Appellees’ Br. 11.

      . See R. 1 at 8, ¶ 35; id. at 9, ¶ 37.

      . Id. at 8, ¶ 34.

      . We may take judicial notice of the City Council’s meeting minutes because they are a document in the public record. E.g., Pugh v. Tribune Co., 521 F.3d 686, 691 n.2 (7th Cir. 2008) (discussing that taking judicial notice at motion to dismiss does not convert the motion into a motion for summary judgment). The meeting minutes can be found at http:// calumetcity.org/wp-contenl/uploads/2012/03/ Agenda-Regular-Meetihg-June-23-20161.pdf.

      . The plaintiffs’ delay becomes even clearer once we fully consider that Mr. Jones, a co-plaintiff, was present and voted against the initiatives. R.l at 9, ¶ 42. Although the plaintiffs reject our ability to impute this knowledge to all plaintiffs, the plaintiffs are unable to cite a single authority to support this position. Instead, the plaintiffs assert that the district court confused the different causes of actions, and the different relief, sought by the Petition Plaintiffs and Mr. Jones. This argument fails because, as discussed above, the ' Petition Plaintiffs had knowledge by, at least, June 23.

      . Appellants’ Br. 21; R.13 at 2. We need not decide definitively whether the Clerk had such an obligation under ,10 ILCS 5/28-5.

      . The same is true for the plaintiffs’ contention that Calumet City lacked the ability to change the City’s mayoral qualifications via ballot referenda. This claim also is blocked by the same delays as those discussed above because, like the freedom of speech claim, the plaintiffs knew the content of the ballot initiatives on or about June 23. Their delay in asking for a preliminary injunction was far too long, and the equities require dismissal.

      . While this circuit has not addressed this exact issue in the past, other jurisdictions have held that challenges to proposed ballot referenda are non-justiciable. For example, in Slack v. City of Salem, the Illinois Supreme Court refused to hear a case “to restrain the holding of a referendum election to approve ... the issuance of revenue bonds” because it "ha[d] no power to render advisory opinions, and until the legislative process [was] concluded, there [was] no controversy that [was] ripe for a declaratory judgment.” 31 Ill.2d 174, 201 N.E.2d 119, 120-21 (1964). Similarly, the District of Nevada has noted that “federal courts have ... held pre-election challenges to proposed ballot measures to be unripe.” Nevada Rest. Ass'n v. Pest Comm., No. 3:08-CV-00118-BES-VPC, 2008 WL 8225546, at *3 (D. Nev. July 15, 2008).


text:
    Jennifer KIRK, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant-Appellee.
    No. 16-2469
    United States Court of Appeals, Seventh Circuit.
    Argued November 16, 2016
    Decided December 2, 2016

      Jeremy Gordon, Brandon Creighton Sample, Attorneys, Jeremy Gordon, PLLC, Mansfield, TX, for Plaintiff-Appellant.
    Nicholas J. Biersbach, Attorney, Office of the United States Attorney, Civil Division, Fairview Heights, IL, for Defendant-Appellee.
    Before EASTERBROOK, KANNE, and HAMILTON, Circuit Judges.
   EASTERBROOK, Circuit Judge.

Normally a district court may reduce a criminal sentence only within 14 days of its imposition. Fed. R. Crim. P. 35(a). But if a prisoner ..provides substantial assistance to prosecutors after being sentenced, a district court may reduce the sentence at any time on the prosecutor’s motion. Fed. R. Crim. P. 35(b). Jennifer Kirk enjoyed one such reduction; the district judge cut her sentence (for mail and wire fraud) from 188 to 110 months. Kirk contends that she provided additional assistance after that reduction and is entitled to a further reward, but the United States Attorney has declined to file a second motion under Rule 35(b). Kirk then filed this suit under the Administrative Procedure Act, 5 U.S.C. § 702, asking a district judge to set aside the prosecutor’s decision hot to file the motion that would permit the court to reduce her sentence further.

The district judge dismissed the complaint, giving two reasons. 2016 U.S. Dist. Lexis 57323 (S.D. Ill. Apr. 29, 2016). First, the judge thought that whether to make a Rule 35(b) motion is committed to agency discretion by law, bringing Kirk’s claim within the scope of the exclusion to APA review in 5 U.S.C. § 701(a)(2). Second, the judge believed that the right way for a prisoner to obtain review of the prosecutor’s decision is by a collateral attack under 28 U.S.C. § 2255—and the APA forecloses actions when another adequate remedy is available. 5 U.S.C. § 704,

These two reasons are incompatible. If § 2255 supplies a means of review, then the decision is not committed to agency discretion by law; but if the decision is committed to agency discretion, then by definition review under § 2255 is impermissible. We think that both parts of the district judge’s reasoning are mistaken but that the judgment is nonetheless correct.

The Supreme Court held in Wade v. United States, 504 U.S. 181, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992), that a prosecutor’s decision riot to file a motion under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1 is renewable. We cannot see any reason why a motion under Rule 35(b) would be treated differently; the rule, § 3553(e), and § 5K1.1 all authorize lower sentences to reward a defendant’s assistance with other prosecutions. Wade stated that the permissible grounds of review are those that apply to all exercises of prosecutorial discretion—as a practical matter, race discrimination or other constitutional transgressions. 504 U.S; at 185-86, 112 S.Ct. 1840. See also, e.g., United States v. Armstrong, 517 U.S. 456, 463, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996); United States v. Davis, 793 F.3d 712, 719-23 (7th Cir. 2015) (en banc). Because the decision whether to file a Rule 35(b) motion is renewable on those grounds, it has not been committed to agency discretion by law, and § 701(a)(2) therefore does not foreclose review under the APA.

Next up: Does § 2255 provide an adequate remedy and so block APA review under § 704? The district court said yes, citing two decisions that evaluated the absence of Rule 35(b) motions during collateral attacks under § 2255. United States v. Obeid, 707 F.3d 898 (7th Cir. 2013); United States v. Richardson, 558 F.3d 680 (7th Cir. 2009). Yet neither opinion holds that § 2255 is the right approach as a general matter. In Richardson the court thought § 2255 an appropriate vehicle because the defendant contended that the prosecutor had conditioned the filing of a future Rule 35(b) motion on the defendant’s waiver of his right to appeal from the judgment of conviction. We saw that as drawing into question the validity of the conviction itself, and § 2255 is designed to allow defendants to contest the validity of their convictions. In Obeid, too, the defendant argued that his sentence was unconstitutional, made disproportionate and excessive by the grant of a Rule 35(b) motion in a different case. We held that § 2255 was not available to make that argument, however, because the defendant had not sought relief until the year allowed by § 2255(f) had expired.

For most situations—of which Kirk’s is a good example—§ 2255 does, not provide an adequate way to contest the prosecutor’s decision not to file a Rule 35(b) motion. Obeid illustrates the problem. According to § 2255(f), motions must be filed within a year of the judgment’s finality. Section 2255(f) has some exceptions, such as new and retroactive rules of law, but none applies when a prisoner contends that substantial assistance justifies a lower sentence. Yet Rule 35(b)(2) authorizes sentence reductions long after a year from the conviction’s finality:

Upon the government’s motion made more than one year after sentencing, the court may reduce a sentence if the defendant’s substantial assistance involved:
(A) information, not known to the defendant until one year or more after sentencing;.
(B) information provided by the defendant to the government within one year of sentencing, but which did not become useful to the government until more than one year after sentencing; or
(C) information the usefulness of which could not reasonably have been anticipated by the defendant until more than one year after sentencing and which was promptly provided to the government after its usefulness was reasonably apparent to the defendant.

A motion under Rule 35(b)(2), more than- a year after her sentencing, is exactly what Kirk wants the prosecutor to file. Section 2255(f) and O'beid show that § 2255 does not afford her an adequate means of review.

Indeed, with rare exceptions of the sort illustrated by Richardson, § 2255 does not address the propriety of withholding a motion under Rule 35(b). Section 2255(a) provides:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

Kirk does not advance any of these grounds. She does not say that her sentence was imposed in violation of the Constitution or laws, that the district court lacked jurisdiction, that the sentence exceeds the lawful maximum, or that it is “otherwise subject to collateral attack”. Her argument, rather, is that post-sentence developments entitle her to a reward for assistance. Just as post-sentence retroactive changes in the Sentencing Guidelines are implemented under' 18 U.S.C. § 3582(c)(2) rather than § 2255, post-sentence assistance to the prosecutor passes outside the scope of § 2255. As United States v. Orozco, 160 F.3d 1309, 1313 n.6 (11th Cir. 1998), observed, Rule 35(b) provides a means to reduce a legally imposed sentence; when the conviction is proper and the sentence lawful, § 2255 is unavailable.

But it hardly follows that review under the APA is appropriate—review that, given the venue provisions in 28 U.S.C. § 1391(e)(1), could occur in multiple districts, including the district where the prisoner is confined and the District of Columbia. No matter what we make of § 2255 as an adequate remedy for the purpose of § 704, it would be an unhappy development to split a criminal case into fragments and have issues such as Rule 35(b) motions litigated in districts that did not host the criminal prosecution.

Although § 2255 usually is a poor way to proceed, Kirk could have filed an ordinary motion in the criminal case asking the judge to compel the prosecutor to file a Rule 35(b) motion. See United States v. Wilson, 390 F.3d 1003 (7th Cir. 2004) (using this procedure to contest the prosecutor’s decision not to file a motion). Given Rule 35(a) the judge lacks authority to reduce Kirk’s sentence unless the prosecutor files a motion, but Wade shows that the court has the power to compel the filing of such a motion if the criteria for review of prosecutorial discretion have been satisfied. Thus there cannot be any doubt about the district court’s power to entertain a motion asking the judge for that relief. And because this kind of motion is a complete remedy for someone in Kirk’s position, 5 U.S.C. § 704. forecloses resort to the APA, just as the district court held.

Kirk’s lawyer told us at oral argument that she does not maintain that the prosecutor has engaged in race or sex discrimination, or otherwise violated the Constitution. Her argument is simply that she furnished substantial assistance and is entitled to a reward. Wade shows that such an argument is inadequate. “[T]he Government [has] a power, not a duty, to file a motion when a defendant has substantially assisted.” 504 U.S. at 185, 112 S.Ct. 1840. But this proceeding is not .the right forum for a decision on the merits. It is enough for now to say that the APA is not the right way to seek an order compelling the prosecutor to file a Rule 35(b) motion.

AFFIRMED


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee v. Sharrod E. DACE, Defendant-Appellant
    No. 16-1028
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 19, 2016
    Filed: November 30, 2016

      Laine Cardarella, Fed. Public Defender, Kansas City, MO, for appellant.
    David A. Barnes, Asst. U.S. Atty., Kansas City, MO (Tammy Dickinson, U.S. Atty., on the brief), for appellee.
    Before WOLLMAN, ARNOLD, and KELLY, Circuit Judges.
   PER CURIAM.

■ Sharrod E. Dace pleaded guilty to a one-count indictment charging him with being a felon in possession of firearms in violation of 18 U.S.C. §§ 922(g) and 924(a)(2). At sentencing, the district court discussed Dace’s objections to categorization of two of Dace’s prior convictions as crimes of violence: resisting arrest and second-degree robbery. The district court sustained Dace’s objection with respect to the resisting arrest conviction, but found over Dace’s objection that Dace’s prior Missouri conviction for second-degree robbery constituted a crime of violence for purposes of sentencing. Dace appeals. Though the district court erred in concluding that Dace’s second-degree robbery conviction qualifies as a crime of violence, we find that error to be harmless.

I. Background

On January 20, 2014, Independence, Missouri, police officers received a report of suspicious activity in a Kohl’s Department Store parking lot. Officers were told that a black Monte Carlo had entered the parking lot, and, a male passenger had exited the car and was crouching between parked cars. When police later attempted to stop the Monte Carlo, a high-speed chase ensued. The Monte Carlo was ultimately found abandoned, but the license plate was traced to Dace.

Officers went to Dace’s address, where Dace’s girlfriend consented to a search of the house. During the search, officers discovered seven guns and found Dace hiding in a basement crawl space. Dace pleaded guilty to a one-count indictment charging him with being a felon in possession of firearms. At sentencing, the district court found that because Dace’s prior conviction for Missouri second-degree robbery in violation of Mo. Rev, Stat. § 569.030 constituted a crime of violence under USSG § 4B1.2(a)(l), Dace was subject to a sentencing enhancement- pursuant to § 2K2.1(a)(4). Applying the enhancement, Dace’s Guidelines range was 46-57 months, but the court varied upward to impose a sentence of 75 months. The court explained that it would have imposed the same sentence even if it had concluded that the Missouri second-degree robbery conviction did not constitute • a crime of violence, highlighting the dangerous nature of the crime and what it considered to be Dace’s particularly violent criminal history.

II. Discussion

Dace argues that the district court erred in determining that a conviction under Missouri’s second-degree robbery statute is a crime of violence under USSG § 4B1.2(a)(l) and therefore applying a sentencing enhancement for a prior crime of violence conviction under § 2K2.1(a)(4). While Dace’s appeal was pending, our court addressed this very issue. United States v. Bell, 840 F.3d 963, 964-67 2016 WL 6311084, at *1-3 (8th Cir. 2016) (discussing Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010)). We held that a conviction for second-degree robbery in Missouri does not trigger an enhancement under § 2K2.1— which incorporates the definition of “crime of violence” articulated in § 4B1.2—be-cause it does not have, as an element of the offense, the use of violent force. Id at *3 (addressing whether Missouri second-degree robbery qualifies as a crime of violence under only the force clause of § 4B1.2). Therefore, the district court erred in determining that Dace’s second-degree robbery conviction warranted a sentencing enhancement for a prior crime of violence.

“A failure to properly calculate the advisory Guidelines range is a significant procedural error—” United States v. Spikes, 543 F.3d 1021, 1023 (8th Cir. 2008). Where, as here, a defendant preserves a Guidelines challenge, we,review for harmless error. United States v. Martinez, 821 F.3d 984, 988 (8th Cir. 2016), “[T]he Government bears the burden of persuasion to demonstrate that the error was harmless, - that is, that the error did not affect [Dace’s] substantial rights.” Spikes, 543 F.3d at 1025.

An incorrect Guidelines calculation “‘is harmless' error where the district court specifies the resolution of a particular issue did not affect the ultimate determination of a sentence,’ such as when the district court indicates it would have alternatively imposed the same sentence even if a lower guideline range applied.” Martinez, 821 F.3d at 988-89 (internal citations omitted) (quoting United States v. Thibeaux, 784 F.3d 1221, 1227 (8th Cir. 2015)). While in some eases "a court sentencing a defendant under an incorrect Guidelines range may require remand without any further showing of prejudice, when a district court’s' detailed' explanation for the sentence imposed makes “clear that the judge based the sentence he or she selected on factors independent of the Guidelines,” the error may be harmless. United States v. Molina-Martinez, — U.S.-, 136 S.Ct. 1338, 1346-47, 194 L.Ed.2d 444 (2016); see United States v. Icaza, 492 F.3d 967, 970-71 (8th Cir. 2007) (district court’s explanation must be sufficiently detailed in order to establish harmless error).

Here, the district court varied upward from the 46-57-month Guidelines range and sentenced Dace to a 75-month term of imprisonment. In so doing, the district court engaged in a thorough discussion of the § 3553(a) factors. The court highlighted Dace’s particular characteristics, noting that Dace had “one of the most violent records for someone your age that I’ve seen,” including participation in robberies resulting in bodily injury to the victims. The court emphasized that Dace had previously been sentenced to at least one six-year term of imprisonment, to no apparent deterrent effect, and expressed the view that “you don’t get less time the more felonies you commit.” The court repeatedly stressed the need for deterrence and the need to protect the public.

The court also discussed the nature and circumstances of the instant offense, including the attendant, and very dangerous, high-speed chase. The court explained that leading police on a high-speed chase often results in injury or death, and poses a substantial threat to innocent bystanders. And, in explaining that it would have imposed the same sentence had it not applied the enhancement for a prior crime of violence, the court explicitly noted that its upward variance was based on “the very serious nature of this offense,” and “the danger to the public.” The court made clear that it relied on the § 3553(a) factors—independent of the Guidelines range—in deciding to vary upward. Cf. United States v. Mulverhill, 833 F.3d 925, 931 (8th Cir. 2016) (remanding for procedural error when “[t]he district court made no affirmative statements or indications of its intention to impose the same sentence even if [the defendant’s] total offense level were lower”); Icaza, 492 F.3d at 971 (remanding where district court’s explanation for alternative sentence was not sufficiently detailed). The district court both provided a detailed explanation of its reasons for the upward variance and acknowledged that these reasons would apply even in the face of Dace’s objection, saying “even if I sustained all of your objections to the guidelines ... I’d still come to the same place, even though the guideline calculations may be different.”

Given the district court’s thorough discussion of the § 3553(a) factors underlying its decision to vary upward, and its explanation for the sentence imposed even had the court sustained Dace’s objection to the Guidelines calculation, the district court’s procedural error was harmless. We affirm.

      . The Honorable Greg Kays, Chief Judge, United States District Court for the Western District of Missouri.

      . Absent the sentencing enhancement for a prior crime of violence, but applying all other enhancements and reductions applied by the district court, Dace would have had an offense level of 13 and a criminal history category of IV, making the applicable advisory Guidelines range 24-30 months.