author: RONALD LEE GILMAN, Circuit Judge.

text:
    ESTATE OF Corey HILL, BY Personal Representative Rudolph HILL, Plaintiff-Appellee, v. Christopher MIRACLE, Defendant-Appellant.
    No. 16-1818
    United States Court of Appeals, Sixth Circuit.
    Argued: January 25, 2017
    Decided and Filed: April 4, 2017
    Rehearing En Banc Denied May 11, 2017

      ARGUED: Mary M. Mara, OAKLAND COUNTY CORPORATION COUNSEL, Pontiac, Michigan, for Appellant. Stanley I. Okoli, ROMANO LAW, P.L.L.C., Pleasant Ridge, Michigan, for Appellee. ON BRIEF: Mary M. Mara, OAKLAND COUNTY CORPORATION COUNSEL, Pontiac, Michigan, for Appellant. Stanley I. Okoli, ROMANO LAW, P.L.L.C., Pleasant Ridge, Michigan, for Appellee.
    Before: GILMAN, GRIFFIN, and STRANCH, Circuit Judges.
   OPINION

RONALD LEE GILMAN, Circuit Judge.

This case involves the question of whether a deputy sheriff used excessive force in tasing a combative and disoriented diabetic suffering a hypoglycemic episode in order for the attending paramedics to stabilize his life-threatening condition. The district court denied the deputy’s motion for qualified and governmental immunity. For the reasons set forth below, we REVERSE the judgment of the district court, and REMAND the case with instructions to dismiss the complaint with prejudice.

I. BACKGROUND

A. Factual background

In June 2013, Corey Hill suffered a diabetic emergency in his home due to his low blood-sugar level. Paramedics with Star Emergency Medical Service were dispatched to Hill’s home at 3:20 p.m. after Hill’s girlfriend, Melanie Worrall, called 911 for an ambulance. Two ambulance units and four paramedics, including Luke Streeter, arrived at the home and proceeded to the bedroom where Hill was lying down. Despite finding Hill very disoriented, the paramedics introduced themselves and tried to explain that they needed to check his blood-sugar level. Streeter attempted to prick Hill’s finger for this purpose, but an agitated and combative Hill pulled back from the paramedics. Eventually, Streeter managed to prick Hill’s finger, leading to the determination that Hill’s blood-sugar level was extremely low at 38. A normal blood-sugar range is anywhere between 60 and 110, and a blood-sugar level below that range can cause hypoglycemia. As blood sugar falls, the common effects are for a person to lose consciousness, become combative and confused, or suffer a seizure. A blood-sugar level of 38 is therefore considered a medical emergency and, if left untreated, can lead to prolonged seizure and death.

Deputy Christopher Miracle of the Oakland County Sheriff’s Department arrived at Hill’s home at some point after Streeter measured Hill’s blood-sugar level. As a member of the road patrol, Miracle’s duties included responding to calls for emergency medical services. He had encountered over a dozen diabetic emergencies throughout his career and was aware that persons suffering from low blood-sugar levels are often disoriented and unaware of their surroundings. When Miracle arrived, the paramedics were attempting to intravenously administer dextrose to Hill in order to raise his blood-sugar level. Hill became increasingly combative in resisting the paramedics’ efforts to insert an IV catheter into his arm.

Streeter was finally able to insert the catheter while the other paramedics held Hill down to the bed. At this point, a completely disoriented Hill swung a fist towards Streeter and ripped the catheter from his arm, causing blood to spray from the open vein. Streeter managed to finally stop the bleeding, but Hill continued to kick, swing, and swear at the paramedics as they tried to hold him down.

Miracle, who at that point had not joined in the attempt to physically restrain Hill, ordered Hill to “relax.” When Hill continued to kick and swing, Miracle ■ informed Hill that he (Miracle) was going to use his taser. Miracle then deployed his taser in drive-stun mode directly to Hill’s right thigh.

To use a taser in drive-stun mode, an officer removes the hooks that spring from a taser and holds the device directly against a person’s skin. Drive-stun mode is usually not recommended because keeping the taser in contact with a person’s skin is difficult, yet necessary to render the taser effective. But Miracle did not want to shoot the hooks of his taser directly into Hill and, in addition, thought that deploying his taser in drive-stun mode was a better option than “hands-on stuff’ because Miracle wanted to “minimize [the] damage” and “didn’t really know everything that was going on medically.” After Miracle held the taser against Hill’s thigh for a few seconds, Hill calmed down long enough for Streeter to reestablish the IV catheter and administer dextrose. As noted by Streeter, Hill “became an angel” and was “very apologetic” after the dextrose kicked in.

Streeter then checked Hill’s blood-sugar levels and performed an electrocardiogram test. The results of both tests were normal. Hill denied being in any pain at the time, but the paramedics nonetheless transported Hill to McLaren Oakland Hospital, where his care was transferred to Dr. Brian Tweedle. Once again, Hill’s blood-sugar level was measured as being within normal range. Medical records from the hospital note a taser puncture wound on Hill’s right thigh, but Dr. Tweedle testified that no treatment was rendered for the wound because it was not infected. Hill claims that, as a result of this incident, he suffered burns on his right thigh and that his diabetes worsened.

B. Procedural background

Hill filed suit against Miracle in January 2015 in the United States District Court for the Eastern District of Michigan. He brought a claim under 42 U.S.C. § 1983, alleging that Miracle had used excessive force in violation of Hill’s Fourth Amendment rights when Miracle deployed his taser. Hill also brought state-law claims of assault and battery and of intentional infliction of emotional distress. In May 2015, Hill died due to complications from his diabetes. The court subsequently entered an order substituting Rudolph Hill as the personal representative of Corey Hill’s estate.

Miracle moved for summary judgment on all of Hill’s claims in March 2016. The district court granted summary judgment in favor of Miracle on Hill’s claim of intentional infliction of emotional distress. But the court denied Miracle’s motion for summary judgment on the § 1983 and the assault-and-battery claims. The court held that, based on the facts as viewed in the light most favorable to Hill, Miracle violated Hill’s clearly established Fourth Amendment rights in deploying the taser. It therefore denied Miracle’s qualified-immunity defense. In addition, the court rejected Miracle’s argument that governmental immunity under Michigan law entitled him to summary judgment on Hill’s claim of assault and battery. Miracle has timely appealed the court’s rulings with respect to both the § 1983 and the assault-and-battery claims.

II. ANALYSIS

A. Standard of review

Our jurisdiction over orders denying qualified immunity is narrow. Harrison v. Ash, 539 F.3d 510, 517 (6th Cir. 2008). “A defendant who is denied qualified immunity may file an interlocutory appeal with this Court only if that appeal involves the abstract or pure legal issue of whether the facts alleged by the plaintiff constitute a violation of clearly established law.” Berryman v. Rieger, 150 F.3d 561, 563 (6th Cir. 1998). A defendant is therefore “required to limit her argument to questions of law premised on facts taken in the light most favorable to the plaintiff.” Meals v. City of Memphis, 493 F.3d 720, 726-27 (6th Cir. 2007).

Where jurisdiction is appropriate, we review de novo the denial of summary judgment on the basis of qualified immunity. Martin v. City of Broadview Heights, 712 F.3d 951, 957 (6th Cir. 2013). We similarly review de novo the denial of governmental immunity under Michigan law when it presents a purely legal question. Reilly v. Vadlamudi, 680 F.3d 617, 622 (6th Cir. 2012).

B. Miracle’s qualified-immunity defense

Qualified immunity shields “government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). This doctrine “balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Id.

Qualified immunity is an affirmative defense. Sheets v. Mullins, 287 F.3d 581, 586 (6th Cir. 2002). The defendant therefore “bears the burden of pleading the defense, but the plaintiff bears the burden of showing that the defendant’s conduct violated a right so clearly established that a reasonable official in his position would have clearly understood that he or she was under an affirmative duty to refrain from such conduct.” Id. In other words, “[t]he ultimate burden of proof is on the plaintiff to show that the defendant is not entitled to qualified immunity.” Id.

We ask two questions in evaluating whether a law-enforcement officer is entitled to qualified immunity on an excessive-force claim: “(1) whether the officer violated the plaintiffs constitutional rights under the Fourth Amendment; and (2) whether that constitutional right was clearly established at the time of the incident.” Kent v. Oakland County, 810 F.3d 384, 390 (6th Cir. 2016). This analysis can be performed in any order. Pearson, 555 U.S. at 236, 129 S.Ct. 808. In analyzing both of these questions, the district court held that Miracle was not entitled to summary judgment on his claim of qualified immunity. We respectfully disagree.

1. Miracle did not violate Hill’s Fourth Amendment rights.

To evaluate whether an officer has used excessive force in violation of the Fourth Amendment, we employ an objective-reasonableness test, asking “whether the officers’ actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (internal quotation marks omitted). We must keep in mind that “[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. at 396, 109 S.Ct. 1865. Graham proceeds to set out a three-factor test to aid the courts in assessing objective reasonableness in the typical situation of a law-enforcement officer accused in a civil suit of using excessive force. Those three factors are: (1) “the severity of the crime at issue,” (2) “whether the suspect poses an immediate threat to the safety of the officers or others,” and (3) “whether he is actively resisting arrest or attempting to evade arrest by flight.” Id.

The district court determined that the Graham, factors “favor a finding that Defendant acted objectively unreasonable when he tasered Plaintiff.” Estate of Corey Hill v. Miracle, No. 15-CV-10079, 2016 WL 3136066, at *5 (E.D. Mich. June 3, 2016). But applying the Graham factors to the situation that Miracle faced is equivalent to a baseball player entering the batter’s box with two strikes already against him. In other words, because Hill had not committed a crime and was not resisting arrest, two of the three Graham factors automatically weighed against Miracle. The key problem is that the district court tried to apply the Graham factors to a completely different factual situation — a medical emergency — where there was no crime, no resisting of arrest, and no direct threat to the law-enforcement officer. In doing so, the court failed to see the forest (the overall standard of objective reasonableness) for the trees (the three factors to use as an aid in assessing objective reasonableness in the typical situation).

We fully sympathize with the district court’s dilemma, however, because no appellate court has previously provided any guidance on how to assess objective reasonableness in the present atypical situation of a medical emergency. In fact, most of the cases dealing with excessive force and taser use simply hold that an officer does not use excessive force by tasing a person who is actively resisting arrest, but does use excessive force if that person is not resisting arrest. See, e.g., Rudlaff v. Gillispie, 791 F.3d 638, 642 (6th Cir. 2015) (“When a suspect actively resists arrest, the police can use a taser ... to subdue him; but when a suspect does not resist, or has stopped resisting, they cannot.”); Cockrell v. City of Cincinnati, 468 Fed.Appx. 491, 495-96 (6th Cir. 2012) (collecting cases) (drawing a distinction between cases where a plaintiff was tased while “actively resisting arrest by physically struggling with, threatening, or disobeying officers” and cases where a law-enforcement officer tases “a plaintiff who has done nothing to resist arrest or is already detained”).

The closest case in our circuit is Caie v. West Bloomfield Township, 485 Fed.Appx. 92 (6th Cir. 2012), which involved a roughly comparable set of facts. In that case, officers responded to an emergency call from the plaintiffs brother and arrived to find a depressed, intoxicated, and suicidal Caie submerged chest-deep in a lake. In declining the officers’ requests to leave the water, Caie “repeatedly told the officers that he wanted to die and asked what he would have to do to get them to shoot him.” Id. at 94. Caie eventually came out of the water and sat on the ground, but continued to behave erratically, making comments about fighting the police and exhibiting dramatic mood swings. He refused to comply with the officers’ requests to transport him to the hospital and so, after several minutes, one of the officers “signaled to the other officers that they were going to have to take physical control of [Caie] in order to transport him to the hospital.” Id.

Caie began to run and flail his arms violently, but the officers eventually took him to the ground. When Caie refused to move his hands behind his back, an officer applied a taser in drive-stun mode to Caie’s back in order to handcuff him. Caie was eventually taken to an ambulance for transport to the hospital. The Caie court held that the officer’s “single use of the taser in drive-stun mode did not violate Plaintiffs constitutional rights.” Id. at 96. In so holding, the court reasoned as follows:

While it is true that Plaintiff was not being arrested for a crime, his consumption of a large quantity of alcohol and drugs, his erratic behavior, and his self-proclaimed desire to provoke the officers into using deadly force could lead reasonable officers to conclude that he was a threat to officer safety. Plaintiff admits that he was suicidal, meaning that, at a minimum, he was a threat to his own safety. In addition, Plaintiffs attempts to flee — including getting behind the wheel of his car and trying to drive away — undoubtedly posed a risk of harm to others with whom he might come into contact. [The officer] had every reason .to believe that, in his highly agitated, suicidal, and intoxicated state, Plaintiff was potentially dangerous.

Id.

This eminently reasonable decision by the Caie court was reached despite the inapplicability of the Graham three-factor test. Rather than continuing to struggle with this dilemma, we suggest that a more tailored set of factors be considered in the medical-emergency context, always aimed towards the ultimate goal of determining “whether the officers’ actions are objectively reasonable in light of the facts and circumstances confronting them.” See Graham, 490 U.S. at 397, 109 S.Ct. 1865 (internal quotation marks omitted). Where a situation does not fit within the Graham test because the person in question has not committed a crime, is not resisting arrest, and is not directly threatening the officer, the court should ask:

(1)Was the person experiencing a medical emergency that rendered him incapable of making a rational decision under circumstances that posed an immediate threat of serious harm to himself or others?
(2)' Was some degree of force reasonably necessary to ameliorate the immediate threat?
(3) Was- the force used more than reasonably necessary under the circumstances (i.e., was it excessive)?

If the answers to the first two questions are “yes,” and the answer to the third question is “no,” then the officer is entitled to qualified immunity.

These questions and answers serve as a guide to assist the court in resolving the ultimate issue of “whether the officers’ actions are objectively reasonable in light of the facts and circumstances confronting them.” Id. The factors that we establish and apply today are, like the Graham factors, non-exhaustive, Livermore ex rel. Rohm v. Lubelan, 476 F.3d 397, 404 (6th Cir. 2007), and not necessarily dispositive in every case. Nonetheless, these additional considerations aid the ultimate inquiry of “whether the totality of the circumstances justified a particular sort of ... seizure,” Tennessee v. Garner, 471 U.S. 1, 8-9, 105 S.Ct. 1694, 85 L.Ed.2d 1, (1985), and should be considered and ruled upon by the court for claims of excessive force arising in this context.

Applying the above factors to the present case, we conclude that, based on the facts as viewed in the light most favorable to Hill, Miracle did not use excessive force against Hill when Miracle deployed his taser in drive-stun mode. As to the first factor, Hill was experiencing a medical emergency and was incapable of making a rational decision due to his hypoglycemic episode. In resisting the paramedics’ attempts to save his life, Hill repeatedly kicked his feet and swung his fists in their direction. The paramedics were therefore put in immediate physical danger by Hill’s combative actions. In addition, the testimony from Streeter indicates that both the paramedics and Miracle were at risk due to the blood spraying from Hill’s arm. Streeter stated that “[i]f the blood was to spray anybody in the face, get in the mouth, the eye, at this point we don’t know the patient, we don’t know the history. If the patient had hepatitis C, HIV, there is [sic] a number of things that pose a threat to EMS personnel and the Deputy.”

And even if we were to assume that the safety risk from Hill’s blood did not justify Miracle’s use of a taser, Hill’s mental state and combative actions posed an immediate threat to himself. Hill’s extremely low blood-sugar level was in the hypoglycemic range and, if left untreated, would likely have led to a prolonged seizure and death. Like in Caie, therefore, Hill’s mental and physical state rendered him “at a minimum, ... a threat to his own safety.” See Caie, 485 Fed.Appx. at 95.

Turning to the second factor, some degree of force was reasonably necessary to ameliorate the immediate threat to the paramedics and to Hill. Because of his hypoglycemic episode, Hill was violently resisting the paramedics’ attempts to render him life-saving assistance. The four paramedics were unable to gain physical control over Hill, who had already ripped an IV catheter out of his arm. Hill argues, and the district court agreed, that “any danger could have been eliminated by simply stepping away from [Hill].” See Estate of Corey Hill, 2016 WL 8136066, at *5. This proposed action, however, fails to take into account the fact that Hill needed immediate medical assistance. So stepping away from Hill might have eliminated the safety risk to the paramedics and to Miracle, but it would have had potentially fatal consequences for Hill. Under these circumstances, we conclude that some degree of force on the part of Miracle was reasonably necessary to protect the paramedics and, more importantly, to save Hill’s life.

We turn now to the final factor— whether or not Miracle’s single use of a taser in drive-stun mode was excessive under the circumstances. Hill first argues that Miracle should have tried to handcuff or restrain Hill before deploying the taser, and that failing to do so was violative of Hill’s Fourth Amendment rights. In support of this argument, Hill points out that the officers in Caie attempted to handcuff Caie and encountered resistance before tasing him. But in the present situation where four paramedics were unable to restrain Hill, we are hard-pressed to fault Miracle for not joining the fray.

Hill also argues that the use of a taser in drive-stun mode is “not recommended” and therefore excessive. He fails to acknowledge, however, that this mode is discouraged because of the difficulty in keeping the taser in contact with a person’s skin, not because such use constitutes excessive force. Miracle in fact testified that he used his taser in drive-stun mode because this was the best option to “minimize [the] damage” in light of Hill’s medical emergency.

We are not holding that a law-enforce-' ment officer is always justified in using a taser to gain control over a person suffering from a medical emergency. But under the circumstances, Miracle’s use of force was objectively reasonable. Four paramedics were unable to physically restrain Hill, whose health was rapidly deteriorating and who was unresponsive to Miracle’s command to “relax.” We conclude that a reasonable officer on the scene, without “the 20/20 vision of hindsight,” would be justified in taking the same actions as Miracle. See Graham, 490 U.S. at 396, 109 S.Ct. 1865.

This court in Caie reached a similar conclusion, holding that using a taser in drive-stun mode was not violative of Caie’s constitutional rights when it “served the purpose of gaining control over a highly intoxicated, volatile, and uncooperative subject and neutralizing what a reasonable officer could perceive as a dangerous situation.” Caie, 485 Fed.Appx. at 97. Miracle was also faced with a dangerous situation and his actions could similarly be viewed as “objectively reasonable in light of the facts and circumstances confronting [him].” See Graham, 490 U.S. at 397, 109 S.Ct. 1865 (internal quotation marks omitted). No reasonable jury could find otherwise based on the facts as viewed in the light most favorable to Hill. Miracle is therefore entitled to qualified immunity on Hill’s § 1983 claim of excessive force.

2. Hill’s Fourth Amendment right was not clearly established.

Our holding that Miracle did not violate Hill’s Fourth Amendment rights leaves no doubt that Hill’s § 1983 excessive-force claim also fails to show that the alleged right was clearly established. In order for a right to be clearly established for the purposes of qualified immunity, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). This inquiry must be undertaken “in light of the specific context of the case, not as a broad general proposition.” Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). That is, “[t]he relevant, dispositive inquiry ... is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. at 202, 121 S.Ct. 2151.

At the time of the alleged violation, no reasonable officer would have known that using a taser on an individual who was undergoing a medical emergency, posed a risk to the responders’ safety, and needed to be subdued in order for medical personnel to render life-saving assistance violated that person’s constitutional rights. In other words, Hill has not pointed us to any caselaw that demonstrates a “prior articulation of a prohibition” against the type of force exerted against him. See Champion v. Outlook Nashville, Inc., 380 F.3d 893, 902 (6th Cir. 2004) (“To demonstrate that the Officers unreasonably violated a clearly established right, the Plaintiffs must therefore show the prior articulation of a prohibition against the type of excess force exerted here.”).

A review of qualified-immunity cases dealing with excessive force in the context of taser use shows that this area is one in which “the result depends very much on the facts of each case.” Brosseau v. Haugen, 543 U.S. 194, 201, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004). Because no caselaw “squarely governs the case here,” see id. Miracle’s actions in June 2013 do not support a finding of excessive force. So Miracle would be entitled to qualified immunity under either prong of the test set forth in Kent v. Oakland County, 810 F.3d 384, 390 (6th Cir. 2016).

C. Miracle’s governmental-immunity defense

The other issue on appeal concerns the district court’s holding with respect to Hill’s state-law claim for assault and battery. Under Michigan law, “[a]n assault is defined as any intentional unlawful offer of corporal injury to another person by force, or force unlawfully directed toward the person of another, under circumstances which create a well-founded apprehension of imminent contact, coupled with the apparent present ability to accomplish the contact.” Espinoza v. Thomas, 189 Mich.App. 110, 472 N.W.2d 16, 21 (1991). “A battery is the willful and harmful or offensive touching of another person which results from an act intended to cause such a contact.” Id. Miracle argues that the court erred in concluding that he was not entitled to governmental immunity with respect to Hill’s assault-and-battery claim.

As metaphorically noted above, the district court failed to see the forest for the trees in the qualified-immunity context. In the governmental-immunity context under Michigan law, the court failed to even see the trees. We say this because the court applied the wrong standard in assessing Miracle’s governmental-immunity defense. It applied the standard set forth in Brewer v. Perrin, 132 Mich.App. 520, 349 N.W.2d 198, 202 (1984), stating that “a governmental officer’s actions that would normally constitute intentional torts are shielded from liability if those actions are justified because they were objectively reasonable under the circumstances.” Estate of Corey Hill, 2016 WL 3136066, at *6. But the Michigan Supreme Court repudiated this standard in Odom v. Wayne County, 482 Mich. 459, 760 N.W.2d 217 (2008). In Odom, the Court noted that the area of law dealing with governmental immunity had “fallen into disarray” and sought to clarify the contours of the defense for intentional-tort claims. Id. at 220.

The Michigan Supreme Court in Odom held that a defendant did not need to show that his actions were “justified” or “objectively reasonable under the circumstances” in order to qualify for governmental immunity. Id. at 220, 229. Instead, an officer who commits an intentional tort is entitled to governmental immunity if he shows that “(a) the acts were undertaken during the course of employment and the employee was acting, or reasonably believed that he was acting, within the scope of his authority, (b) the acts were undertaken in good faith, or were not undertaken with malice, and (c) the acts were discretionary, as opposed to ministerial.” Id. at 228.

We can again understand how the district court might have been led astray by a number of cases decided after Odom, particularly arising out of the federal district courts in Michigan, that continue to cite and apply the standard for governmental immunity articulated in Brewer. See, e.g., Parchman v. Taylor, No. 12-CV-13094, 2015 WL 265069, at *5 (E.D. Mich. Jan 21, 2015). Unfortunately, neither party was helpful in pointing the court to Odom and instead just discussed Brewer. But both sides conceded at oral argument before us (in response to our pointed inquiry) that Odom is the controlling authority.

Under these circumstances, we would ordinarily remand the case for the district court to reconsider the governmental-immunity defense under the proper standard. See Pullman-Standard v. Swint, 456 U.S. 273, 291, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982) (holding that “[w]hen an appellate court discerns that a district court has failed to make a finding because of an erroneous view of the law, the usual rule is that there should be a remand for further proceedings to permit the trial court to make the missing findings”). But such a remand would be a waste of judicial resources in the present case. For the same reasons set forth above in the context of Miracle’s qualified-immunity defense, we conclude that no reasonable jury would find that he acted in bad faith, much less that malice was a factor. See id. at 292, 102 S.Ct. 1781 (holding that, even where the district court’s “findings are infirm because of an erroneous view of the law,” a remand is unnecessary if “the record permits only one resolution of the factual issue”).

The record here reflects that Miracle acted in an objectively reasonable manner with the minimum force necessary to bring Hill under control, and his actions enabled the paramedics to save Hill’s life. Miracle is therefore entitled to governmental immunity on Hill’s state-law claim of assault and battery.

III. CONCLUSION

For all of the reasons set forth above, we REVERSE the judgment of the district court and REMAND the case with instructions to dismiss the complaint with prejudice.


source: Caselaw Access Project

author: SUTTON, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Oscar HARRIS, Defendant-Appellant.
    No. 16-2239
    United States Court of Appeals, Sixth Circuit.
    Decided and Filed: April 4, 2017

      ON BRIEF: Andrew N. Wise, FEDERAL DEFENDER OFFICE, Detroit, Michigan, for Appellant. Shane N. Cralle, UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee.
    Before: COLE, Chief Judge; SUTTON and KETHLEDGE, Circuit Judges.
   OPINION

SUTTON, Circuit Judge.

A jury convicted Oscar Harris of being a felon in possession of a firearm, and the district court sentenced him to 300 months’ imprisonment under the Armed Career Criminal Act’s residual clause. After the Supreme Court invalidated the residual clause, Harris received a new sentence of 115 months — the top of a range set in part by the district court’s determination that Harris’s two prior convictions for Michigan felonious assault were crimes of violence under the Guidelines. Harris challenged that determination, and appeals it here, on the ground that Michigan felonious assault does not categorically involve the “use, attempted use, or threatened use of physical force,” as the elements clause of the Guidelines requires. U.S.S.G. § 4B1.2(a). But Michigan’s felonious assault statute obliges a jury to find at least attempted or threatened offensive touching and use of a dangerous weapon. Because those two elements together add up to violent force, and thus to a crime of violence, we affirm.

The Guidelines raise the base offense level for firearm offenses preceded by two felony convictions for “crimefs] of violence.” Id. § 2K2.1(a)(2). One of the definitions of crimes of violence covers “any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that ... has as an element the use, attempted use, or threatened use of physical force against the person of another.” Id. § 4B1.2(a); see id. § 2K2.1 cmt. n.l. This provision, often called the “elements clause,” mirrors the elements clause in the Armed Career Criminal Act, and we typically interpret them the same way. See United States v. Rede-Mendez, 680 F.3d 552, 555 n.2 (6th Cir. 2012). Both clauses apply only to offenses that require a finding of “violent force — that is, force capable of causing physical pain or injury to another person.” Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010).

A few ground rules inform whether an offense qualifies as a crime of violence under the elements clause. When an offense of conviction does not list multiple elements in the alternative, it is not “divisible.” Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016). And when the relevant statute is not divisible, as all agree is the case here, we apply the “categorical approach” to determine what the state offense entails. Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 2284, 186 L.Ed.2d 438 (2013). That means we look only to the offense’s statutory definition along with controlling judicial interpretations of it, rather than at the facts underlying the conviction, to determine whether the offense is a crime of violence. See Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).

In Michigan, any “person who assaults another person with a gun, revolver, pistol, knife, iron bar, club, brass knuckles, or other dangerous weapon without intending to commit murder or to inflict great bodily harm less than murder is guilty of’ felonious assault, also called assault with a dangerous weapon. Mich. Comp. Laws § 750.82. That language, re-framed as elements, requires “(1) an assault, (2) with a dangerous weapon, and (3) with the intent to injure or place the victim in reasonable apprehension of an immediate battery.” People v. Jackson, 487 Mich. 783, 790 N.W.2d 340, 343 n.2 (2010) (emphasis and quotation omitted). The assault must consist of attempted battery or “an act that would cause a reasonable person to fear or apprehend an immediate battery,” and that the defendant must have intended to injure or cause fear of immediate battery. People v. Micsak, No. 308317, 2013 WL 275906, at *2 (Mich. Ct. App. Jan. 24, 2013). A battery, in this context, is “a forceful or violent touching,” id.; see People v. Datema, 448 Mich. 585, 533 N.W.2d 272, 275 n.8 (1995), which Michigan defines as “any use of physical force against another person so as to harm or embarrass” that person, People v. Chandler, 201 Mich.App. 611, 506 N.W.2d 882, 884 (1993). And a dangerous weapon is “any object that is used in a way that is likely to cause serious physical injury or death.” People v. Davis, No. 234898, 2002 WL 31117043, at *2 (Mich. Ct. App. Sept. 24, 2002); see People v. Goolsby, 284 Mich. 375, 279 N.W. 867, 869 (1938).

Taken together, these elements entail “the use, attempted use, or threatened use of physical force” under the federal Sentencing Guidelines. U.S.S.G. § 4B1.2(a). We said so before the Supreme Court’s 2010 Johnson decision. See United States v. Mosley, 339 Fed.Appx. 568, 575 (6th Cir. 2009) (finding Michigan felonious assault a violent felony under ACCA); United States v. O'Valle, 9 F.3d 110, 110 (6th Cir. 1993) (table) (same under Guidelines). And our cases since Johnson show why that conclusion remains sound. When a felony must be committed with a deadly weapon and involves some degree or threat of physical force, it is a crime of violence under the elements clause. Rede-Mendez, 680 F.3d at 558; see United States v. Rafidi, 829 F.3d 437, 446 (6th Cir. 2016). Michigan felonious assault meets that threshold because there is no way to commit it without intentionally attempting or threatening physical force against another with a dangerous weapon.

Our sister circuits take the same approach. In applying Johnson to New Mexico aggravated assault, the Tenth Circuit held that “engaging in menacing conduct toward a victim, with a weapon capable of causing death or great bodily harm, threatens the use of ‘force capable of causing physical pain or injury.’ ” United States v. Ramon Silva, 608 F.3d 663, 672 (10th Cir. 2010). The Seventh Circuit adopted the reasoning of Ramon Silva and applied it to Indiana aggravated battery. See United States v. Taylor, 630 F.3d 629, 634-35 (7th Cir. 2010). As did the First Circuit, which held that a comparable Massachusetts assault with a dangerous weapon statute was a crime of violence because “the harm threatened by an assault is far more violent than offensive touching when committed with a weapon that is designed to produce or used in a way that is capable of producing serious bodily harm or death.” United States v. Whindleton, 797 F.3d 105, 114 (1st Cir. 2015). We agree with all of that, and with the similar reasoning that yet more circuits used in applying the elements clause to assault-with-a-dangerous-weapon statutes before Johnson. See United States v. Dominguez, 479 F.3d 345, 348 (5th Cir. 2007); United States v. Grajeda, 581 F.3d 1186, 1192 (9th Cir. 2009).

In resisting this conclusion, Harris points out that someone can commit Michigan battery with offensive touching and that offensive touching does not amount to sufficient force under Johnson. But this argument asks us to look at just one element, the assault, to determine whether the offense includes sufficient force. The categorical approach doesn’t require that each element of an offense involve use of force; it requires that the offense overall include use of violent force. Michigan felonious assault involves violent force because it proscribes not common law assault but common law assault with a dangerous weapon. And “if a statute ha[s] as an element some degree of, or the threat of, physical force in the more general sense, then the use of a deadly weapon may transform this more general force into the necessary ‘violent force’ to constitute a crime of violence within the meaning of Johnson.” Rafidi, 829 F.3d at 446 (quotations omitted). That’s just what we have here.

Even Harris’s two case citations show that the felonious assault statute requires a dangerous weapon and a threatened, attempted, or successful battery. Take People v. Davis, 216 Mich.App. 47, 549 N.W.2d 1, 5 (1996), which upheld a conviction for the “mere pressing” of a gun, as Harris puts it, to the victim’s back. Appellant’s Br. 11. The “mere” is easy for Harris to say, while the “pressing” of the gun against the victim’s back confirms that the threat of serious injury through use of a dangerous weapon is critical to the offense. Harris’s, other case, People v. Jones, likewise confirms that “[fjelonious assault” is not just simple assault but is “defined as a simple assault aggravated by the use of a weapon.” 443 Mich. 88, 504 N.W.2d 158, 164 (1993).

“[O]ur focus on the minimum conduct criminalized by the state statute is not an invitation to apply ‘legal imagination’ to the state offense; there must be a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside” the limitations of the elements clause. Moncrieffe v. Holder, — U.S. -, 133 S.Ct. 1678, 1684-85, 185 L.Ed.2d 727 (2013) (quotation omitted); United States v. Patterson, 853 F.3d 298, 301-02, No. 15-4112, 2017 WL 1208425, at *2 (6th Cir. Apr. 3, 2017). We see no possibility, much less a realistic probability, of Michigan convicting someone of felonious assault who had not used, attempted, or threatened “force capable of causing physical pain or injury to another person.” Johnson, 559 U.S. at 140, 130 S.Ct. 1265. Harris indeed points to no such case. All of this means that Harris’s two convictions for Michigan felonious assault amount to crimes of violence under the Guidelines and that the district court properly calculated his offense level and Guidelines range.

For these reasons, we affirm.


author: HAMILTON, Circuit Judge.

text:
    John R. CASEY, Plaintiff-Appellant, v. Nancy A. BERRYHILL, Acting Commissioner of Social Security, Defendant-Appellee.
    No. 15-2810
    United States Court of Appeals, Seventh Circuit.
    Argued September 27, 2016
    Decided January 30, 2017

      Before BAUER, ROVNER, and HAMILTON, Circuit Judges.

       Nancy A. Berryhill was substituted for Carolyn W. Colvin, as Acting Commissioner of Social Security, on Januaiy 27, 2017. See Fed. R. App. P. 43(c)(2).

   HAMILTON, Circuit Judge.

In 2009, the Social Security Administration notified Plaintiff John Casey that he needed to repay about $334,000 in disability benefits he should not have received. Casey sought a waiver, but an administrative law judge denied his request. Six months later, Casey submitted an untimely request to the Appeals Council seeking review of the ALJ’s decision. Casey argued that he had good cause for his delay. The Appeals Council seemed to agree. On April 12, 2012, the Council extended Casey’s deadline to submit evidence or a statement in support of his waiver claim. But on July 17, 2013, the Appeals Council reversed course, informing Casey that it had dismissed his request for review because there was “no good cause to extend the time for filing.” Casey then sued the Acting Commissioner of Social Security in district court. The Commissioner moved to dismiss, and a magistrate judge recommended granting the Commissioner’s motion. The district judge adopted the magistrate’s recommendation and dismissed the case.

The district court erred. The action by the Appeals Council in first granting and then retroactively denying Casey’s good cause request was arbitrary, having the effect of an unfair bureaucratic bait- and-switch. To be sure, the Council had discretion to determine initially whether Casey offered good cause for his late administrative appeal. See 20 C.F.R. §§ 404.968(b), 404.911. But having granted Casey’s request, the Council could not simply change its mind and dismiss Casey’s appeal on the theory that he had not adequately justified his delay, after leading him on for over a year without suggesting he needed to provide more information, an affidavit, or anything else by way of support. We reverse the judgment of the district court and remand with instructions to remand this matter to the agency for administrative proceedings consistent with this opinion.

I. Procedural History

We recount the salient facts, which are drawn from the administrative record and from Casey’s complaint. We take Casey’s allegations as true in reviewing the district court’s judgment of dismissal. In 1979, Casey began receiving Social Security disability insurance benefits. Two years later, he entered the federal Witness Protection Program. According to Casey, the United States Marshals Service initially informed him that he could not simultaneously receive both his witness protection stipend and his disability benefits. Later, however, an agent of the Marshals Service allegedly told Casey that he could receive both income streams and that, as remuneration for cooperating with the government, he would continue to receive disability benefits throughout his natural life. He apparently received both streams of income for some time; he later received disability benefits while simultaneously earning income.

. In 2009, the Social Security Administration notified Casey that, in light of his earnings history, he had been overpaid $333,893.90 in disability benefits. Casey did not seek timely reconsideration of that determination, which became final sixty days after he received the notice. See 20 C.F.R. §§ 404.909(a), 404.905. Instead, in either February or August 2010 (the record is unclear), Casey requested a. waiver of the overpayment pursuant to 42 U.S.C. § 404(b)(1), which provides: “In any case in which more than the correct amount of payment has been made, there shall be no ... recovery ... from[ ] any person who is without fault if such ... recovery would defeat the purpose of [the Social Security Act] or would be against equity and good conscience.” See also 20 C.F.R. § 404.506 (describing process for submitting waiver request).

The Social Security Administration denied Casey’s waiver request in November 2010. After an evidentiary hearing, an administrative law judge upheld that denial in an August 25, 2011 decision. Though Casey had argued that he was entitled to rely on the Marshals Service’s assurance that he would receive disability benefits for life, the ALJ disagreed, finding that there was “no proof’ to substantiate the alleged promise and that, in any event, Casey had “many opportunities and incentive [sic] to contact the Social Security Administration to inquiry [sic] into his receipt of [disability] benefits.” The ALJ also cited Casey’s “ability to repay the overpayment” as a “significant issue.” (The ALJ had calculated Casey’s gross monthly income at over $15,000 and had noted that Casey and his wife owned real property with a net value of almost $600,000.)

After receiving notice of the ALJ’s August 25, 2011 adverse decision, Casey had sixty days to seek further review by the Appeals Council. See 20 C.F.R. § 404.968(a). He did not submit a timely request for review. However, in a March 2, 2012 letter, Casey’s attorney at the time, Arman Sarkisian, invoked the good cause exception for untimely requests. See §§ 404.968(b), 404.911, 404.900(b). Sarki-sian advised the Appeals Council that neither he nor his firm had received a copy of the AL J’s decision and that he had learned of the decision only after contacting the ALJ’s chambers “several months” after the decision issued. Sarkisian asked the Council to (1) find that Casey had good cause for a late filing, (2) grant Casey additional time to secure information, and (3) evaluate the appeal as if it had been timely.

In an April 12, 2012 letter, the Appeals Council informed Sarkisian that it had “granted your request for more time” before acting on Casey’s case, and it invited him to submit evidence or legal argument within twenty-five days, with the caveat that “[a]ny more evidence must be new and material to the issues considered in the hearing decision dated August 25, 2011.” Sarkisian requested additional extensions on April 24, 2012 and May 22, 2012, both of which were granted. Sarki-sian requested a further extension on June 25, 2012: this time, the agency denied his request, informing him that it would proceed with its action based on the existing record.

On July 17, 2013, the Appeals Council dismissed Casey’s request for review. The Appeals Council did not, however, address the merits of Casey’s request for reconsideration. Instead, in its order, the Council characterized Casey’s prior correspondence as requesting additional time to “complete a ‘good cause’ statement and to provide the Administration with additional evidence regarding his late filing.” “To date,” the Council wrote, “it does not appear that [Casey] has provided the ‘good cause’ statement he indicated would be forthcoming.” The Council concluded there was “no good cause to extend the time for filing.”

Casey then brought suit under 42 U.S.C. § 405(g), a statute authorizing judicial review of any “final decision” by the Commissioner of Social Security. The Commissioner moved to dismiss on the theory that Casey had failed to exhaust his administrative remedies. According to the Commissioner, although the Appeals Council afforded Casey “an opportunity to show good cause for his untimely request for review,” he failed to do so. The Commissioner contended that because Casey “did not comply with the agency’s deadlines and procedural rules, and thus failed to properly exhaust his administrative remedies,” the district court had “no authority under section 405(g) to review the Commissioner’s decision.” In opposition, Casey pointed out that (1) the Appeals Council had granted his good cause request in its April 12, 2012 letter and (2) the Council’s dismissal order actually advised him of his right to seek judicial review. Nevertheless, the magistrate judge recommended that the district court dismiss Casey’s complaint. Citing our decision in Boley v. Colvin, 761 F.3d 803 (7th Cir. 2014), the magistrate judge recognized that the district court had jurisdiction to review the Appeals Council’s dismissal order. However, because Casey’s complaint focused on the merits of his waiver claim rather than the timeliness of the claim, the judge concluded that Casey did “not seek review of the Appeals Council’s good cause determination.”

Adopting the recommendation over Casey’s objections, the district judge wrote that the “only reviewable decision” was the agency’s July 17, 2013 dismissal for failure to demonstrate good cause, and “Casey’s complaint cannot fairly be read as seeking review of this decision.” The district judge dismissed the suit, and Casey filed a timely notice of appeal. We have jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291.

II. Analysis

A. The Dismissal Order

Under 42 U.S.C. § 405(g), a Social Security claimant may obtain judicial review of any “final decision” of the agency by suing the Commissioner in a federal district court within sixty days following notice of the agency’s decision. The court has the power to “enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing” the agency’s decision. Id. We review de novo the district court’s judgment. See Bates v. Colvin, 736 F.3d 1093, 1097-98 (7th Cir. 2013); Hickman v. Apfel, 187 F.3d 683, 687 (7th Cir. 1999). We likewise review de novo the agency’s legal conclusions, though we review its factual findings deferentially, upholding the findings if they are supported by substantial evidence. See Scrogham v. Colvin, 765 F.3d 685, 695 (7th Cir. 2014); Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010).

This case presents an unusual twist, however, because the Appeals Council did not decide the merits of Casey’s waiver claim. Instead, the Council’s “final decision” was its dismissal of Casey’s request for review based on its purported finding that Casey lacked good cause for his delay. As we recognized in Boley, the agency’s good cause determination is itself a reviewable decision. See 761 F.3d at 808 (remanding to district court to “decide whether substantial evidence, and appropriate procedures,” supported decision that claimant lacked “good cause” for delay in seeking intra-agency review). The district court acknowledged Boley, but it read Casey’s complaint as focusing on the merits rather than the timeliness of his waiver claim. In the district court’s view, Casey’s “failure to seek review of the determination that good cause is lacking” tied the court’s hands. On appeal, the Commissioner concedes that the district court had jurisdiction to review the Appeals Council’s dismissal order. But the Commissioner echoes the district court’s analysis, chiding Casey for failing to allege facts in his complaint “showing that the request for review was timely filed or that he had ‘good cause’ for his untimely filing.”

But why should Casey have alleged such facts? Notwithstanding the Appeals Council’s baffling dismissal order, the Council plainly granted Casey’s request for additional time to pursue his administrative appeal. In its April 12, 2012 letter, in response to Casey’s request for review and good cause statement, the Council wrote: “We have granted your request for more time before we act on your case.” The Council then invited Casey to submit new evidence — not on the timeliness issue, but only evidence “material to the issues considered in the hearing decision dated August 25, 2011.” That hearing decision had nothing to do with timeliness or good cause for delay — it was a decision on the merits of Casey’s waiver request.

Later exchanges between attorney Sark-isian and the Appeals Council reinforce our conclusion that the Council approved Casey’s good cause request on April 12, 2012. On April 24, 2012, Sarkisian asked for additional time to gather documents, noting that the Council had provided his office with “correspondence granting an appeal of an unfavorable decision rendered against Mr. Casey.” In a response issued that same day, the Council extended Casey’s deadline by thirty days, and it again invited him to “send ... more evidence or a statement about the facts and the law in this case.” The Council made no effort to clarify the action it had taken through its letter of April 12 or to correct Sarkisian’s understanding of the administrative review process. Again, on May 22, 2012, Sarkisian requested additional time to “provide the Council with additional information before it acts upon the appeal of Mr. Casey’s case.” And again, in a letter dated May 31, 2012, the Council extended Casey’s deadline while giving no indication that it was still deliberating over his good cause showing. Not once did the Council direct Casey to “complete a ‘good cause’ statement” or “provide ... additional evidence regarding his late filing” — yet the Council cited Casey’s failure to supply such evidence in dismissing his request for review.

The district court acknowledged that the Council’s April 12, 2012 letter “leaves a lot to be desired,” as it “fails to make a distinction between counsel’s request that the Appeals Council find good cause and counsel’s request that additional time be granted to produce additional evidence relevant to the merits of Casey’s claim.” The court likewise acknowledged that the language in the letter “does suggest that the purpose of the additional evidence to be produced would go to the merits of Casey’s claim.” Nonetheless, the court concluded that the April 12 letter did not “make an affirmative finding that Casey had demonstrated good cause.”

We respectfully disagree. Particularly when read alongside Sarkisian’s initial submission, the most reasonable interpretation of the April 12 letter is that it granted each of Casey’s three requests: i.e., that the Council “grant good cause for late filing, allow additional time to secure additional information, and evaluate the appeal as if ... timely made.” The agency cannot nullify the effect of its April 12 letter by mischaracterizing that letter in court. And because the Council granted Casey’s good cause request, Casey had no reason to plead facts in his complaint in support of relief that had already been provided. Put differently, the question of good cause was settled in Casey’s favor on April 12, 2012. Casey had no reason to relitigate that question in federal court.

The Commissioner makes several arguments on appeal that warrant some discussion here. First, the Commissioner contends that Casey’s good cause showing in his March 2, 2012 letter was insufficient. The good cause showing was addressed to the Council’s discretion, and the Council exercised that discretion to grant Casey’s good cause request. Whether the Council wishes with the benefit of hindsight that it had not done so is irrelevant. But we also think that Casey made a viable showing of good cause to support his tardy administrative appeal. Attorney Sarkisian represented that he never received a copy of the ALJ’s August 25, 2011 decision and learned of the decision only after contacting the ALJ’s chambers. (On appeal, Casey maintains that he also does not recall “ever receiving the August 25, 2011 Notice,” though he does not appear to have made this point before the Appeals Council or the district court.) Sarkisian added that his firm had been trying to secure additional information to support Casey’s claim but had been stymied in its efforts. The regulations contemplate that similar explanations may qualify as just cause for delay. See 20 C.F.R. § 404.911(b) (“Examples of circumstances where good cause may exist include, but are not limited to, the following situations: ... You were trying very hard to find necessary information to support your claim but did not find the information within the stated time periods.... You did not receive notice of the determination or decision.”). While the Commissioner complains to us that Casey’s good cause showing is based on an unsworn, unverified letter by his attorney, the Appeals Council never asked Casey to submit more reliable evidence. It never asked for an affidavit or a declaration. Nothing in the regulations requires the claimant to supply such evidence on his own initiative. We assume the Appeals Council had every right to request additional proof. Having granted his request, though, it cannot fault Casey for failing to divine what sort of additional evidence it might deem necessary to support a decision the Council had already made in his favor.

Next, the Commissioner observes that the Appeals Council processes many thousands of requests for review every year — a staggering 173,849 requests during fiscal year 2012 alone. Consequently, the Council must rely on boilerplate correspondence. In the Commissioner’s view, the onus is on the claimant to follow up when “ambiguities in such letters ... arise.” We recognize the challenges that the Social Security Administration and many other federal agencies face as they attempt to carry out their broad mandates with limited resources. But we will not shift the burden to claimants to read between the lines or chase down agency officials just to confirm whether a clear letter actually means what it says. That would only add burdens to both claimants and agency officials. The Appeals Council’s April 12, 2012 letter in this case was clear: Casey had been granted more time to litigate the merits of his waiver claim.

At oral argument, counsel for the Commissioner also noted that the April 12, 2012 letter was drafted (or at least signed) by a legal assistant for the agency. In arguing that the letter, despite its plain language, merely extended Casey’s window to make his good cause showing, counsel said he found it “highly unlikely” that the Appeals Council would “let a legal assistant make a finding about good cause.” We have no idea whether this legal assistant had the independent authority to grant Casey’s request, whether she sought and secured approval, and/or whether her letter complied with agency protocols. But in general — and certainly in a case like this one — a Social Security claimant may reasonably rely on the clear representations of the agency, printed on letterhead and dispatched in response to the claimant’s inquiry. The agency is, after all, in a superior position to monitor its employees and to ensure that their communications are accurate.

To sum up, we share, the district court’s view that it had jurisdiction under 42 U.S.C. § 405(g) to review the Appeals Council’s “final decision” of July 17, 2013. We disagree with the district court’s understanding as to the nature of that decision. It was not a good faith finding that Casey failed to justify his tardy request for review. It was instead an inexplicable U-turn by an agency that had the effect of a bureaucratic bait- and-switch after more than a year. The Council’s dismissal order was not supported by “substantial evidence[ ] and appropriate procedures,” Bo-ley, 761 F.3d at 808, but was instead an arbitrary decision that we now set aside. See 5 U.S.C. § 706 (“[A] reviewing court shall ... hold unlawful and set aside agency action ... found to be ...' arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]”).

B. The Waiver Claim

We close by briefly addressing Casey’s waiver claim. Because the Appeals Council granted Casey’s good cause request but then arbitrarily dismissed his administrative appeal, there is no “final decision” on the underlying merits within the meaning of 42 U.S.C. § 405(g). It is therefore inappropriate for us to decide whether Casey is entitled to a waiver of the $334,000 overpayment: that is a question for the agency to consider on remand. The bar to prevail on such a claim is rather high. The claimant must show both that he was without fault with respect to the overpayment and that recovery by the agency would either defeat the purpose of the Social Security Act or violate equity and good eonseiénee. 42 U.S.C. § 404(b)(1); 20 C.F.R. § 404.506. Given those hurdles, Casey may have a rocky road ahead.

That said, we think Casey’s waiver claim is at least plausible. Casey alleged in his complaint that a local office of the Social Security Administration reviewed his case “at least five (5) times over the previous ten (10) years” and that the international office interceded on his behalf to forestall action by the local office. On appeal, Casey has presented an assortment of documents showing that the agency was aware of earnings posted to his account between 1968 and 2004 and that Casey had submitted income information to the agency upon request. While the fact of Casey’s overpayment is res judicata given that Casey did not request reconsideration of the agency’s initial determination, see 20 C.F.R. § 404.905, the agency’s knowledge of his income and continued payment of benefits over a period of many years— coupled with the Marshals Service’s alleged assurance that Casey was entitled to benefits for life — may be relevant to a' finding whether Casey was without fault. See § 404.507 (“In determining whether an individual is at fault, the Social Security Administration will consider all pertinent circumstances.... ”); see also §§ 404.510(b), 404.510a (individual is without fault where individual relied on erroneous information from government agency that individual reasonably believed was involved with benefits administration); § 404.510(g) (individual is without fault with regard to deduction overpayment where individual continued receiving benefits after notifying Social Security Administration of event that should have caused deductions, provided that individual believed in good faith he was entitled to benefits).

In any event, Casey’s uncertain prospects of success on the merits do not excuse the Appeals Council’s arbitrary dismissal of his request for review. We reverse the judgment of the district court and remand with orders to remand this matter to the Social Security Administration for further proceedings. On remand, the Appeals Council shall render a final decision on the merits of Casey’s waiver claim or shall remand for further consideration by an ALJ pursuant to 20 C.F.R. § 404.983, without revisiting the timeliness of Casey’s request for review.

REVERSED and REMANDED.

      . The Commissioner cites but does not discuss 20 C.F.R. § 404.972, which provides that the "dismissal of a request for Appeals Council review is binding and not subject to further review." The regulations distinguish between a dismissal, see § 404.971, which is supposedly not reviewable, and a denial, see § 404.981, which is treated as a final administrative adjudication. In Boley, however, we held that a claimant whose administrative appeal was dismissed as untimely was "entitled to judicial review of her contention that the agency mishandled her case.” 761 F.3d at 806. In Boley, an ALJ dismissed the claimant’s request for a hearing, and the Appeals Council denied further review. See Boley v. Astrue, No. 3:12-cv-27-RLY-WGH, 2013 WL 275891, at *1 (S.D. Ind. Jan. 24, 2013). The procedural posture in this case differs slightly. Here the dismissal order came from the Appeals Council itself. But the principle of Boley applies with equal force: 42 U.S.C. § 405(g) "allows judicial review when a claim has been presented and finally decided,” 761 F.3d at 806, even when that final decision is (or purports to be) a dismissal for untimeliness. See Davis v. Colvin, No. 15-cv-610-wmc, 2016 WL 5888670, at *2 (W.D. Wis. Aug. 30, 2016) (applying Boley and holding that plaintiff could obtain judicial review of Appeals Council’s good cause determination and dismissal order); cf. Craven v. Colvin, No. 16-cv-53-wmc, 2017 WL 28094, at *4 (W.D. Wis. Jan. 3, 2017) ("[Njothing about the ... reasoning in Boley provides a basis for distinguishing between a situation in which an AU denies a request for a hearing after a finding of no good cause ... from a situation in which the ALJ or Appeals Council dismisses an untimely request for reconsideration after a finding of no good cause....”). In light of our discussion here, the agency might want to rethink the Acquiescence Ruling it issued in response to Boley, in which it adopted an exceptionally narrow interpretation of our holding in that case. See SSAR 16-1(7), 2016 WL 1029286 (Mar. 14, 2016).

      . We agree with the district court that Casey's primary focus in his two-page complaint is on the merits of his waiver claim. We also agree that we cannot properly assess the merits at this stage because the Appeals Council, after granting Casey's good cause request, failed to address the merits in the first instance. The only final decision before us is the Council’s dismissal order, and that order has nothing to do with the merits. But while Casey’s complaint could have been more artfully drafted, it is the agency — not Casey — that is ultimately responsible for the procedural confusion in this case. While we could remand to the district court with instructions to allow Casey to amend his complaint, that would be a pointless formality. This action must be returned to the agency for proper administrative review on the merits.

      . This case differs from Boley in a significant respect, and that difference informs the relief that we grant Casey. In Boley, the agency dismissed the claimant’s untimely request for a hearing, and the district court dismissed the claimant’s subsequent complaint. We vacated and remanded with instructions for the district court to consider whether "substantial evidence, and appropriate procedures,” supported the agency’s decision that the claimant lacked good cause for her delay. 761 F.3d at 804, 808. Here, by contrast, the agency first found that Casey had good cause for his delay and then (apparently) changed its mind. As we set aside that arbitrary action and restore the agency’s prior good cause determination, there is nothing left for the district court to do at this juncture. The agency itself must take up the merits of Casey’s waiver claim on remand.

      . Casey does not appear to have presented these documents to the district court. No certified administrative record was filed in this matter, so we cannot confirm whether the ALJ took account of the documents in reaching his decision. However, as the documents appear to be Social Security records, we assume the agency has access to them and may consider them in evaluating Casey’s waiver claim on remand. Cf. 20 C.F.R. §§ 404.983, 404.984(a) (agency may take up any issues relating to claimant’s case on remand, regardless whether those issues were raised in prior administrative proceedings).

      . Under 42 U.S.C. § 404(b)(1), it is not enough that a waiver claimant was without fault: the agency will grant a waiver only where requiring repayment would defeat the purpose of the Social Security Act or would be inequitable. The ALJ found that Casey could not satisfy this separate requirement, as he had sufficient income and assets to cover the $334,000 overpayment. In his opening brief in this court, however, Casey writes that he is “61 years old and without a regular source of income.” We cannot resolve this discrepancy, but on remand the agency may take up the matter of Casey’s income and net worth.


author: WOOD, Chief Judge. SYKES, Circuit Judge,

text:
    UNITED STATES of America, Plaintiff-Appellant, v. Lena Rae HASLAGE, Defendant-Appellee. United States of America, Plaintiff-Appellant, v. Taungra Nicole Toney, Defendant-Appellee.
    No. 16-3095, No. 16-3196
    United States Court of Appeals, Seventh Circuit.
    Argued December 6, 2016
    Decided April 3, 2017

      Penelope L. Coblentz, Attorney, Office of the United States Attorney, Milwaukee, WI, James Inman Pearce, Attorney, Department of Justice, Washington, DC, for Plaintiff-Appellant.
    Daniel W. Stiller, Attorney, Milwaukee, WI, for Defendants-Appellees.
    Before WOOD, Chief Judge, and ROVNER and SYKES, Circuit Judges.
   WOOD, Chief Judge.

In Nichols v. United States, — U.S. -, 136 S.Ct. 1113, 194 L.Ed.2d 324 (2016), the Supreme Court held that a sex offender was not required under the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C, § 2250, to update his registration in the state where he had been residing, after he left his home and moved to a new place. In Nichols, the new place was outside the United States, in the Philippines. The two cases we have consolidated for disposition on appeal present the more conventional scenario of a person who moves from one state in the United States to another — in Lena Rae Haslage’s case, from Wisconsin to Washington State, and in Taungra Nicole Toney’s case, from Wisconsin to Minnesota. In both cases, the district courts dismissed the indictments for improper venue. The government has appealed. We conclude, however, that the district courts properly applied Nichols and that their judgments must be affirmed.

I

Little more need be said about the underlying facts of the two cases. Haslage had been living in Wisconsin, where she was registered as a sex offender based on a 2006 conviction for two offenses. After her initial registration, she updated her file at least eight times in Wisconsin. She was released on parole in February 2015. Not long thereafter, in May, she cut off her electronic monitoring bracelet and took a train to Spokane, Washington. She did not register as required by SORNA and state law in Washington.

Toney’s story is similar. She was convicted in 1999 in Minnesota for prostitution-related offenses. These required her to register under SORNA as a sex offender. By 2015, she was living in Wisconsin, where she was registered. In February of that year, however, she left Wisconsin and traveled to Minnesota, where she took up residence. In violation of SORNA, she failed to register in Minnesota. '

In March 2016, a federal grand jury in the Eastern District of Wisconsin indicted both women in separate cases, each of which contained one count of failure to register as a sex offender in violation of SORNA. Each moved to dismiss on the ground that Nichols established that the government could not establish venue in Wisconsin, because no offense or part of an offense was committed in Wisconsin. Both district courts granted the motion and dismissed for improper venue, and these appeals on behalf of the government followed.

II

We begin with some basics. The Sixth Amendment to the U.S. Constitution guarantees a defendant the right to trial by “an impartial jury of the state and district wherein the crime shall have been committed.” Reflecting this constitutional command, the Federal Rules of Criminal Procedure also state that “the government must prosecute an offense in a district where the offense was committed.” Fed. R. Crim. P. 18. This does not mean that there is one and only one district in which a particular crime may be prosecuted. As we have recognized, “[m]any offenses touch more than one district. For these, Congress may, consistently with the Constitution, authorize venue in any district where conduct that is part of the offense occurred.” United States v. Orona-Ibarra, 831 F.3d 867, 872 (7th Cir. 2016). The question before us is thus whether any conduct that is part of the offense defined by 18 U.S.C. § 2250 occurred in the Eastern District of Wisconsin. If yes, then the district courts erred; if no, then their judgments were correct.

SORNA states that “[a] sex offender shall register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student.” 42 U.S.C. § 16913(a). In order to keep her registration current, the offender must:

not later than 3 business days after each change of name, residence, employment, or student status, appear in person in at least 1 jurisdiction involved pursuant to subsection (a) of this section and inform that jurisdiction of all changes in the information required for that offender in the sex offender registry.

Id. § 16913(c). The notified jurisdiction then has the responsibility to provide that information to all other jurisdictions in which the offender is required to register.

Failure to register as required is a crime, punishable by a fine or a prison term of up to 10 years. 18 U.S.C. § 2250(a). The statute covers (1) any sex offender required to register under SOR-NA, who (2) travels in interstate or foreign commerce, and who (3) knowingly fails to register or update a registration as required by SORNA. In an earlier SORNA case, the Supreme Court held that liability under section 2250 cannot be predicated on pre-SORNA travel. Carr v. United States, 560 U.S. 438, 130 S.Ct. 2229, 176 L.Ed.2d 1152 (2010). The key to our case, however, is the third element. To understand that better, we take a closer look at Nichols.

The question before the Court in Nichols was “whether federal law required Nichols to update his registration in Kansas to reflect his departure from the State.” 136 S.Ct. at 1115. The Court observed that an earlier statute had imposed the duty to report a change of address to the responsible agency in the state from which the offender was leaving, but that SORNA repealed that part of the law and replaced it with the language we quoted earlier. The Court thus reformulated its question to be “whether the State a sex offender leaves — that is, the State where he formerly resided — qualifies as an ‘involved’ jurisdiction under § 16913.” Id. at 1116.

The Court stressed the fact that 42 U.S.C. § 16913(a), which identifies “involved” jurisdictions, uses the present tense: “resides,” “is an employee,” and “is a student.” It pointed out that a person (such as Nichols) who moves from Leavenworth, Kansas, to Manila, in the Philippines, no longer “resides” (present tense) in Kansas. It follows, the Court said, “that once Nichols moved to Manila, he was no longer required to appear in person in Kansas to update his registration, for Kansas was no longer a ‘jurisdiction involved pursuant to subsection (c)’ of § 16913.” Id. at 1117. The Court found further support for its conclusion in the fact that an offender who moves to a new place has three business days after each change of residence to register in the new place. “SOR-NA’s plain test ... therefore did not require Nichols to update his registration in Kansas once he no longer resided there.” Id. at 1118. In short, Nichols committed no offense in Kansas, because his travel alone did not violate SORNA. It is the change of residence that results from the travel, coupled with the failure to register in the new place within the allotted three days, that SORNA reaches.

Like the two district courts whose decisions we are reviewing, we read Nichols to hold that the act of leaving one’s home in State A and traveling to State B is not a separable part of the offense defined in section 2250 for purposes of criminal venue. Indeed, in countless cases the act of traveling from State A to State B will not be the predicate for any offense at all. SORNA does not prohibit all interstate travel; it does not require registration by an offender who travels from Chicago to Hammond, Indiana, to attend a Saturday wedding; and it places no obligation on the offender to do anything in the state of origin. (The Supreme Court noted that state law often requires more of an offender, but that is of no importance for purposes of federal criminal venue; it just means that SORNA has not left a gaping loophole in the registration system.)

By contrast, there are statutes in which the act of traveling from one state to another is the predicate for an offense. The Travel Act, for example, makes it a crime to travel interstate with the intent to commit a crime or other unlawful activity. See 18 U.S.C. § 1952; United States v. O’Hara, 301 F.3d 563 (7th Cir. 2002). The Mann Act, 18 U.S.C. §§ 2421-2424, criminalizes interstate travel or transportation with the intent to engage in criminal sexual activity. In cases involving violations of those statutes, the crime begins in the state where the defendant set out with the intent to cross a state line and commit the crime.

But section 2250 is different; the premise of Nichols is that it does not criminalize travel with intent to commit a crime (ie., to fail to register), but rather the failure to register after traveling. To illustrate this distinction, imagine a hypothetical case in which an offender living in Madison, Wisconsin, packs up all of her belongings and drives to the rural upper peninsula of Michigan with the intent to stay and live there “off the grid” without registering. But imagine that, once she has crossed the border, she hears a radio report about new sightings of wolverines and, terrified, returns to her previous residence in Madison the following day. She has committed no crime under section 2250.

On the other hand, if this hypothetical offender had also taken her minor nephew along with her with the intent that he engage in prostitution, she would have committed a crime under the Mann Act as soon as she crossed the border, whether or not she followed through on that plan. See 18 U.S.C. § 2423(a). It therefore makes sense to understand the Mann Act violation as beginning in Wisconsin. But when it comes to SORNA, Nichols tells us that no criminal conduct even begins until she fails to register in Michigan, even if her travel began in Wisconsin.

Another example may also help. As we have noted, section 2250 criminalizes a sex offender’s failure to update his registration as required in 42 U.S.C. § 16913(a). The latter statute includes a duty to update each change in employment or student status. Imagine that an offender is subject to SORNA’s registration requirements. He then moves across state lines from Indiana to Kentucky with the intent to look for a new job, and registers in Kentucky with his new address within two days. But when he gets a new job a week later, he fails to update his Kentucky registration. Presumably, he would be subject to prosecution under section 2250 for this failure, but it is a strain to imagine that his crimé had anything to do with Indiana.

The government argues that venue is appropriate in Wisconsin because the Supreme Court’s decision in United States v. Rodriguez-Moreno instructs that venue is proper where the distinct parts or conduct of criminal conduct occurred. 526 U.S. 275, 279-82, 119 S.Ct. 1239, 143 L.Ed.2d 388 (1999). But Rodriguez-Moreno involved a different statute, and the difference matters. There, the defendant was charged with violating 18 U.S.C. § 924(c)(1), which prohibits using or carrying a firearm during and in relation to any crime of violence. The defendant had kidnapped a victim in Texas and carried him through numerous states, including New Jersey and Maryland, but had used a gun only while in Maryland. Id. at 276-77, 119 S.Ct. 1239. The Court emphasized that section 924(c) contained two distinct conduct elements: (1) using and carrying a gun and (2) the commission of a kidnapping. Id. at 280, 119 S.Ct. 1239. Because the underlying and distinct crime of violence (kidnapping) spanned the entire geographic area of travel, venue was proper for the section 924(c) offense anywhere the kidnapping had continued.

As we know from the Court’s guidance in Carr, the elements of a section 2250 violation for failure to register are sequential, not distinct or independent. See United States v. Sanders, 622 F.3d 779, 783 (7th Cir. 2010). A section 2250 SORNA violation for failure to register in one state does not span the entire geographic range of states the offender has traversed, even though it might have been necessary to pass through several states before reaching the destination. The interstate travel is a necessary precursor, but it is neither a distinct crime nor an element of the crime. If it were, and we therefore conceived of the crime as beginning in Wisconsin, we could find ourselves faced with the absurd conclusion that venue could be laid anywhere the travel occurred or evidence of the travel was located (ie., in Haslage’s case, perhaps in a state such as Montana or Idaho; in Nichols’s case, perhaps California).

The government urges that travel is part and parcel of this crime, and so an essential (if not distinct) part of the prohibited conduct took place in Wisconsin. It would like us to examine the contacts with Wisconsin to see how substantial they are (ie. where did the defendant’s acts take place; what are the elements of the crime; what is the locus of the criminal activity; how suitable would each district be for trial). The glaring problem with this approach is that it starts from the proposition that there are at least two permissible venues. These considerations are of no help if the question on the table is whether one place is permissible at all. It is true that Carr held that the act of travel is “the very conduct at which Congress took aim.” 560 U.S. at 454, 130 S.Ct. 2229. But Nichols tells us that travel' even to a place outside the United States did not transform the defendant’s act of leaving Kansas into a Kansas-based SORNA violation. Furthermore, a closer look at Carr reveals that it is not discussing travel alone; rather, it is talking about those “who elude SORNA’s registration requirements by traveling in interstate commerce.” Id. at 456, 130 S.Ct. 2229. That takes us right back to the question of the place where that act of eluding takes place. Nichols answers it: in the place of the new residence.

Haslage and Toney stand accused of committing offenses under SORNA, but the charges show that if they did, they did so in Washington State and Minnesota, not in Wisconsin. We see nothing to prevent the government from alerting the U.S. Attorneys in the Eastern District of Washington and the District of Minnesota to these violations, and leaving it to those authorities to prosecute. Only in that sense are the present cases different from, and easier than, Nichols, because in Nichols the offender left the United States and attempted to find refuge in a place beyond the reach of SORNA. Here, the violations of section 2250 began, were carried out, and ended in the place of the new residence. If either defendant were to change residence again, we would have a different case, in which we can assume at least two venues would be possible. Even then, however, Wisconsin would not be a permissible choice based solely on the fact that they lived there before failing to register in a new place.

The judgments of the district courts are Affirmed.

SYKES, Circuit Judge,

dissenting.

I disagree that Nichols v. United States, — U.S. -, 136 S.Ct. 1113, 194 L.Ed.2d 324 (2016), precludes the government from prosecuting these SORNA offenses in the Eastern District of Wisconsin. Nichols addressed the scope of the registration duty set forth in 42 U.S.C. § 16913, which establishes SORNA’s basic registration requirements for sex offenders. The decision did not address the elements of the criminal offense under 18 U.S.C. § 2250(a), which makes it a crime to travel in interstate commerce and fail to register as required by SORNA. Nor did the Court touch on the venue question presented here.

Lester Ray Nichols, a federal sex offender, was indicted by a federal grand jury in Kansas for violating § 2250(a) after he moved from Leavenworth, Kansas, to Manila, Philippines, without updating his sex-offender registration in Kansas. 136 S.Ct. at 1117. He moved to dismiss the indictment, arguing that SORNA did not require him to update his Kansas registration because he no longer resided in that jurisdiction and was neither an employee nor a student there. Id. The motion was denied and he conditionally pleaded guilty. The Tenth Circuit affirmed, agreeing with the district court that Nichols was required to update his Kansas registration. Id.

The Supreme Court reversed. The question before the Court was one of statutory interpretation: Does the text of SORNA require a sex offender when he moves out of state to return to the departure state to update his registration there? The specific language of the relevant SORNA provision, § 16913(c), states: “[N]ot later than 3 business days after each change of name, residence, employment, or student status” the offender must “appear in person in at least 1 jurisdiction involved pursuant to subsection (a) of this section” and provide that jurisdiction with all changes in his registration information. A “jurisdiction involved” under subsection (a) is a “jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student.” § 16913(a). The use of the present tense was decisive. The Court held that

[a] person who moves from Leavenworth to Manila no longer ‘resides’ (present tense) in Kansas; although he once resided in Kansas, after his move he ‘resides’ in the Philippines. It follows that once Nichols moved to Manila, he was no longer required to appear in person in Kansas to update his registration, for Kansas was no longer a ‘jurisdiction involved pursuant to subsection (a)’ of § 16913.

Nichols, 136 S.Ct. at 1117. In other words, if a sex offender moves to a new out-of-state residence, § 16913(c) does not require him to appear in the departure state to update his registration there.

As applied here, Nichols means only that Haslage and Toney had no legal obligation to update their Wisconsin registrations after they moved out of state. But Nichols does not mean that the two women cannot be prosecuted in a Wisconsin district court for violating § 2250(a).

The specific language of § 2250(a) is as follows:

(a) In general. — Whoever—
(1) is required to register under the Sex Offender Registration and Notification Act;
(2)(A) is a sex offender [under SOR-NA] by reason of a conviction under Federal law ..., the law of the District of Columbia, Indian tribal law, or the law of any territory or possession of the United States; or
(B) travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country; and
(3) knowingly fails to register or update a registration as required [by SORNA];
shall be fined under this title or imprisoned not more than 10 years, or both.

Take particular note of subsections (2)(A) and (B). A federal sex offender is directly subject to federal criminal liability for a knowing failure to update his registration; a state sex offender, on the other hand, is subject to federal criminal liability only if he travels in interstate commerce and knowingly fails to update his registration as required by SORNA. Haslage and Toney are state sex offenders. So for them, interstate travel is an essential element of the § 2250(a) offense. Carr v. United States, 560 U.S. 438, 445-46, 130 S.Ct. 2229, 176 L.Ed.2d 1152 (2010).

Criminal venue is governed by rule and statute and is also subject to constitutional limits. As my colleagues explain, Majority Op. at p. 332, Rule 18 of the Federal Rules of Criminal Procedure supplies the general rule: “Unless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed.” Rule 18 mirrors the Constitution’s references to criminal venue.

Here, however, venue is governed by a more specific provision: 18 U.S.C. § 3237(a). That statute provides a special venue rule for crimes begun in one district and completed in another:

Except as otherwise expressly provided by enactment of Congress, any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.
Any offense involving the . use of the mails, transportation in interstate or foreign commerce, or the importation of an object' or person into the United States is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be inquired of and prosecuted in any district from, through, or into which such commerce, mail matter, or imported object or person moves.

§ 3237(a) (emphases added). Prosecution in district court in Wisconsin is proper under both paragraphs of § 3237(a).

As I’ve explained, because Haslage and Toney are state sex offenders, interstate travel is an essential element of the § 2250(a) offenses charged in these cases. Without it there is no federal crime. Although the crimes were not completed until Haslage and Toney failed to appear in person in their new home states and provide that jurisdiction with their registration information, the offenses clearly began in Wisconsin when each woman commenced the interstate travel that is a necessary element of this crime.

My colleagues say that “interstate travel is a necessary precursor, but it is neither a distinct crime nor an element of the crime.” Majority Op. at p. 335. Interstate travel is certainly not a distinct crime, but it is an element of the § 2250(a) offense for a state sex offender. That much is clear from Carr. There the Court parsed “the statute’s three elements”: (1) a qualifying sex offense, which triggers the registration duty; (2) interstate travel; and (3) a failure to register as required by SORNA. 560 U.S. at 446, 130 S.Ct. 2229 (emphasis added). Nichols did not alter these elements of the crime for state sex offenders who are subject to SORNA requirements. Indeed, Nichols involved a federal sex offender, not a state sex offender. So the Court had no occasion to comment on whether Carr's holding — that interstate travel is a required element of the § 2250(a) offense for state sex offenders — remains good law. No Supreme Court decision suggests that it is not good law. Carr’s analysis of the elements of the § 2250(a) offense controls here.

The crimes charged in these two cases began in Wisconsin and were completed in the states of Washington (Haslage) and Minnesota (Toney). The venue statute plainly permits the government to prosecute a crime “begun in one district and completed in another” in “any district” in which it was “begun, continued, or completed.” § 3237(a). Because the interstate travel — an element of the offense — began in Wisconsin, venue is proper in district court in Wisconsin.

As additional support for the government’s choice of venue, § 3237(a) provides that any offense involving transportation in interstate commerce may be prosecuted “in any district from, through, or into which such commerce ... moves.” These crimes involved transportation in interstate commerce “from” Wisconsin, so the government may prosecute them in a district court in Wisconsin.

Accordingly, I would reverse the judgments of the district courts dismissing the indictments for improper venue. I respectfully dissent.

      . He was convicted in 2003 of traveling in interstate commerce with intent to engage in illicit sexual conduct with a minor in violation of 18 U.S.C. § 2423(b). Nichols v. United States, - U.S. -, 136 S.Ct. 1113, 1116-17, 194 L.Ed.2d 324(2016).

      . Though they did have a legal duty to appear in Washington and Minnesota, respectively, for that purpose.

      . Article III of the Constitution provides: "The Trial of all Crimes ... shall be held in the State where the said Crimes shall have been committed....” U.S. CONST, art. Ill, § 2. The Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law....” U.S. CONST, amend. VI. Haslage and Toney do not advance a constitutional argument here.