United States v. David Newton ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-2514
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID NEWTON,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:08-cr-00875-1 — Elaine E. Bucklo, Judge.
____________________
ARGUED APRIL 20, 2022 — DECIDED JUNE 15, 2022
____________________
Before WOOD, HAMILTON, and KIRSCH, Circuit Judges.
KIRSCH, Circuit Judge. In United States v. Broadfield, 5 F.4th
801 (7th Cir. 2021) and United States v. Ugbah, 4 F.4th 595 (7th
Cir. 2021), we left the door open for prisoners seeking com-
passionate release under 18 U.S.C. § 3582(c)(1)(A) based on
the COVID-19 pandemic to show they cannot receive or ben-
efit from vaccines. David Newton believes himself bereft of
this opportunity after we remanded his case last year before
Broadfield and Ugbah were decided. Notwithstanding the
2 No. 21-2514
irregular procedure Newton faced below, not once has he ex-
plained to us how he would satisfy the Broadfield-Ugbah safety
valve, so we affirm the district court’s finding that Newton
did not present an extraordinary and compelling reason for
early release.
Seeking a reduced sentence for his bank robbery convic-
tion, Newton filed a pro se motion in May 2020 for compas-
sionate release under § 3582(c)(1). For Newton, a federal pris-
oner under 70, this relief requires a finding that “extraordi-
nary and compelling reasons warrant such a reduction.” Id.
§ 3582(c)(1)(A)(i). He submitted that his medical condition—
asthma and its immunosuppressing corticosteroid treat-
ment—put him at risk for serious illness if he contracted
COVID-19. The district court appointed Newton counsel,
who added hypertension to the list of conditions putting
Newton at risk. Finding it not clear that Newton would face a
significantly reduced risk from COVID-19 outside prison than
he would inside, the district court denied the motion. We re-
manded for reasons not pertinent to this second appeal.
United States v. Newton, 996 F.3d 485 (7th Cir. 2021).
Two days after we issued Newton I, we decided both Broad-
field and Ugbah, announcing that, “for the vast majority of
prisoners, the availability of a vaccine makes it impossible to
conclude that the risk of COVID-19 is an ‘extraordinary and
compelling’ reason for immediate release.” Broadfield, 5 F.4th
at 803. But we did not render vaccination the end all be all of
compassionate release motions. Broadfield and Ugbah explic-
itly “included a safety valve for prisoners to show that they
are unable to receive or benefit from a vaccine, or that they
remain vulnerable to severe infection, notwithstanding the
vaccine.” United States v. Rucker, 27 F.4th 560, 563 (7th Cir.
No. 21-2514 3
2022). That safety valve permits federal prisoners to make mo-
tions with newly proffered individualized facts based on con-
cerns like Omicron breakthrough cases, long COVID, or the
relative inefficacy of vaccines for certain vulnerable prison
populations, like the immunocompromised. See id.; United
States v. Barbee, 25 F.4th 531, 533 (7th Cir. 2022) (“If circum-
stances change, Barbee is free to file a new motion.”).
Some three weeks later, the district court again denied
Newton’s motion. Moving past our directives in Newton I, it
summarily concluded Newton had failed to show why he sat-
isfied the Broadfield-Ugbah exception. At no point did the court
ask for additional briefing from the parties, even though
Broadfield, Ugbah, and COVID-19 vaccines did not exist when
Newton was making arguments in the original 2020 compas-
sionate release proceedings.
Newton appealed again, now challenging that process as
depriving him of the opportunity to argue that he satisfied the
Broadfield-Ugbah exception—that he could not benefit from the
vaccine. So we consider whether this compassionate release
process was an abuse of the district court’s “considerable dis-
cretion” under § 3582(c)(1)(A). United States v. Sanders, 992
F.3d 583, 587 (7th Cir. 2021). Newton’s protests of the process
have some purchase. The district court faulted Newton for not
showing that he satisfied the requirements of the Broadfield-
Ugbah exception. But those cases did not exist in 2020 when
Newton filed his motion for compassionate release, and the
district court invited no briefing from the parties on remand
in 2021. Instead, the court merely waited three weeks and is-
sued an order denying the motion filed in 2020.
There is no hard and fast rule that a district court must
invite new proceedings on intervening case law. A remand on
4 No. 21-2514
a compassionate release motion is not a full resentencing, see
Ugbah, 4 F.4th at 598, and it’s within the district court’s discre-
tion not to seek—or even allow—supplemental briefing. Post-
Broadfield we have not remanded cases in the same posture as
Newton’s for new proceedings in the district court after
changes in the law and circumstances. See, e.g., Barbee, 25
F.4th at 533 (affirming district court’s pre-Broadfield-Ugbah de-
nial of compassionate release without remanding for recon-
sideration of the effect of those cases). But when intervening
law changes as much as it did here, it’s a risky procedure for
a district court to rule on a motion without the input of the
parties. It would be especially risky if the facts had changed
as well. In this instance, they didn’t. Newton has not pointed
us to any change in the facts that would have changed the
outcome.
Once the district court denied Newton’s motion, giving
him no opportunity to explain why he could not benefit from
the vaccine, Newton was free to explain that to us and possi-
bly win a remand. Cf. Hrubec v. Nat'l R.R. Passenger Corp., 981
F.2d 962, 963–64 (7th Cir. 1992) (permitting 12(b)(6) plaintiffs
to make additional factual allegations—consistent with their
complaint—for the first time on appeal to win remand); Smoke
Shop, LLC v. United States, 761 F.3d 779, 785 (7th Cir. 2014)
(same). But he did not. He points to the original record that
he used immunosuppressing asthma treatment and to a CDC
report that immunocompromised people get less benefit from
vaccines. But the district court already knew Newton was im-
munosuppressed, and the CDC report has nothing to do with
Newton individually. Newton has simply given us no such
new facts (or argument) showing why he is in the small mi-
nority of federal prisoners within the Broadfield-Ugbah excep-
tion, so remand is not appropriate, Broadfield, 5 F.4th at 802.
No. 21-2514 5
And—considering Newton’s counsel did not withdraw on re-
mand—we are less sympathetic to his plight below. Although
the district court did not seek additional briefing, Newton was
free to file a motion any time during the three weeks to argue
under new facts and new law. Not that we are faulting New-
ton’s appointed counsel—it appears there was no such new
information about Newton to provide.
One final note. The district court chose not to buttress its
cursory order by weighing the 18 U.S.C. § 3553(a) sentencing
factors applicable to Newton. True, that’s an unnecessary step
two if the prisoner has not satisfied step one of identifying an
extraordinary and compelling reason for a sentence reduc-
tion. United States v. Thacker, 4 F.4th 569, 576 (7th Cir. 2021).
But doing so—especially when partaking in a risky procedure
on step one—can “strengthen[] our conclusion that [the dis-
trict court] did not abuse its discretion.” United States v. Kur-
zynowski, 17 F.4th 756, 760 (7th Cir. 2021).
AFFIRMED