United States v. Travis Barrett ( 2021 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 5, 2021*
Decided January 22, 2021
Before
DIANE S. SYKES, Chief Judge
ILANA DIAMOND ROVNER, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 20-2130
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Indiana,
Hammond Division.
v. No. 2:17-CR-1-JVB-JEM
TRAVIS J. BARRETT, Joseph S. Van Bokkelen,
Defendant-Appellant. Judge.
ORDER
Travis Barrett, a federal inmate suffering from serious medical conditions, sought
compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i) based on his susceptibility to
COVID-19. The district court denied Barrett’s motion, concluding that he had not
shown extraordinary and compelling reasons warranting his release under the statute.
Because the court did not abuse its discretion in denying the motion, we affirm.
*
We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 20-2130 Page 2
Barrett’s pro se motion argued that his medical conditions—multiple sclerosis,
“history of hypertension,” and hypoglycemia—and smoking history put him at
particularly high risk of “contracting and possibly dying” from COVID-19. He further
contended that insufficient safety measures at his prison, the Federal Correctional
Institution in Elkton, Ohio, increased his risk of illness.
The district court recruited counsel for Barrett and invited counsel to file a
supplemental brief, after which the government would have “7 days to respond.”
Barrett declined to submit a supplement. The government then moved to dismiss the
motion for lack of jurisdiction because Barrett’s direct appeal of his sentence was
pending. Barrett replied that his motion for compassionate release was independent of
his direct appeal (which we recently decided, see United States v. Barrett, No. 19-2254,
2020 WL 7022490 (7th Cir. Nov. 30, 2020)). He supplemented his reply with medical
records documenting his MS diagnosis and high blood pressure. The government filed
a response urging that Barrett’s motion be denied because he had not established
“extraordinary and compelling reasons” for release. See § 3582(c)(1)(A)(i). The
government argued that not only had the Bureau of Prisons implemented protocols at
Barrett’s facility to control the spread of COVID-19 and care for sick inmates, but none
of Barrett’s conditions was on the Centers for Disease Control and Prevention’s list of
factors elevating one’s risk of contracting or developing a severe case of COVID-19.
The district court denied Barrett’s motion. After explaining that it had
jurisdiction to resolve the matter because Barrett’s motion presented separate issues
from his direct appeal, the court concluded that Barrett’s reasons for release were not
“extraordinary and compelling” under § 3582(c)(1)(A)(i). Central to the court’s decision
was that the CDC had not identified any of Barrett’s conditions as creating a higher risk
of severe illness from COVID-19. The court explained that the closest fit from the CDC’s
list was “serious heart conditions,” but it declined to “shoehorn” Barrett’s history of
hypertension into that category because it appeared to be well-controlled.
We begin with a word about the district court’s jurisdiction. If a party moves for
relief in the district court that the court lacks authority to grant because of a pending
appeal, Federal Rule of Criminal Procedure 37(a) provides the court with three options.
The court may (1) defer considering the motion; (2) deny the motion; or (3) state either
“that it would grant the motion if the court of appeals remands for that purpose,” or
“that the motion raises a substantial issue.” FED. R. CRIM. P. 37(a); see also United States v.
Taylor, 796 F.3d 788, 792 (7th Cir. 2016) (“remind[ing] litigants to keep in mind Federal
Rule of Criminal Procedure 37, which governs timely motions for relief that the district
court lacks authority to grant because of a pending appeal”). Thus, even though
No. 20-2130 Page 3
Barrett’s direct criminal appeal was pending before us, the district court had jurisdiction
to deny his compassionate-release motion. See FED. R. CRIM. P. 37(a); United States v.
Pawlowski, 967 F.3d 327, 329 n.4 (3d Cir. 2020).
On the merits, Barrett argues that the district court downplayed the severity of
his medical conditions and inadequacy of his prison’s safety measures—circumstances,
he asserts, that are sufficiently extraordinary and compelling to justify his release. He
contends that hypertension and MS “could be considered on the [CDC] list” on which
the district court relied, because those conditions are similar to the listed ailments of
serious heart conditions and immune deficiencies. Further, he presents new evidence
(another CDC website and internet articles authored by physicians) suggesting that
persons with autoimmune diseases like MS are more susceptible to COVID-19, and that
understaffing and overcrowding in his prison increase his risk of contracting the virus.
Our review on this matter is deferential, see United States v. Gunn, 980 F.3d 1178,
1181 (7th Cir. 2020), and the district court here did not abuse its discretion by deciding
that Barrett’s medical conditions and prison circumstances were not “extraordinary and
compelling reasons” for release under § 3582(c)(1)(A)(i). Barrett introduced no evidence
in the district court showing that someone with his conditions is more susceptible to
COVID-19 or more likely to experience severe symptoms from the virus. Nor can he
point to evidence in the record that would call into question the court’s decision to
credit the BOP’s efforts to control the virus in his prison.
Barrett also contends that the district court should not have considered the
government’s second response (arguing that his motion be denied on the merits)
because it presented new arguments to which he had no chance to respond. But not
only did Barrett forfeit any objection by failing to raise one in the district court,
see United States v. Moody, 915 F.3d 425, 429 (7th Cir. 2019), the court appropriately
exercised its broad discretion to consider the response, see Ruark v. Union Pac. R.R. Co.,
916 F.3d 619, 630 (7th Cir. 2019); see also FED. R. CRIM. P. 57(b), especially because it
addressed Barrett’s evidence of his medical conditions.
AFFIRMED