United States v. Wilfredo Barrios ( 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NONPRECEDENTIAL DISPOSITION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 July 8, 2021*
Decided July 22, 2021
Before
WILLIAM J. BAUER, Circuit Judge
DIANE P. WOOD, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
Nos. 20-2944 & 21-1339
UNITED STATES OF AMERICA, Appeals from the United States District
Plaintiff-Appellee, Court for the Southern District of
Indiana, Evansville Division.
v. No. 3:02-cr-00002-RLY-CMM-05
WILFREDO BARRIOS, Richard L. Young,
Defendant-Appellant. Judge.
ORDER
Wilfredo Barrios, a 58-year-old federal inmate serving a mandatory life sentence
for his role in a massive drug-trafficking conspiracy, see 21 U.S.C. § 848(b), sought
compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i). He based his request on his
health risks from COVID-19 and his belief that his life sentence is no longer mandatory
today. The district court denied his request. It reasoned that his second argument was
*
We have agreed to decide this 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).
Nos. 20-2944 & 21-1339 Page 2
not properly presented, and that, in light of the seriousness of his crime, the health risks
from COVID-19 did not justify discretionary release. By reasonably weighing the factors
under 18 U.S.C. § 3553(a) and otherwise reasonably exercising its discretion, the district
court permissibly denied release, so we affirm.
A jury convicted Barrios in 2003. He had conspired to sell methamphetamine and
had engaged in a continuing criminal enterprise, see 21 U.S.C. §§ 841(a)(1), 846, 848(b),
by distributing over 1,600 pounds of meth worth more than $75 million over the course
of two years. He received a life sentence, which § 848(b) mandates.
After he had served about 18 years of his mandatory life sentence, Barrios moved
pro se for compassionate release in 2020. The court appointed counsel, who in an
amended motion argued that Barrios’s health status (chronic kidney disease, type 2
diabetes, obesity, and hypertension) threatened severe illness if he contracted
COVID-19; therefore he presented an “extraordinary and compelling reason” for a
sentence reduction under § 3582(c)(1)(A)(i). Counsel also urged that the factors under
18 U.S.C. § 3553(a) supported early release, citing Barrios’s record of good behavior in
prison, his efforts towards rehabilitation, and letters from prison staff describing him as
a “model inmate.”
The court recognized that Barrios’s medical conditions heightened his risk from
COVID-19 but denied his motion for two reasons. First, relatively few COVID-19 cases
were present in Barrios’s prison at the time of the ruling, so he had a comparatively low
risk of catching the virus. Second, Barrios’s mandatory life sentence weighed decisively
against release. The court recognized that judges can grant compassionate release to
inmates with mandatory life sentences, but it determined that releasing Barrios when he
was still in his late 50’s and had served only 18 years of his life sentence would not
reflect the seriousness of his offense or deter similar conduct.
After his counsel was allowed to withdraw, Barrios filed two notices of appeal
followed by a motion to reconsider. He dismissed one appeal, see FED. R. APP. P. 42(b),
but he still pursues No. 20-2944, which contests the denial of his motion for release. In
the later-filed motion to reconsider that denial, he raised three arguments. First, he said
that he had recently tested positive for COVID-19. Second, he cited what he believed to
be a relevant intervening change in the law—the decision in United States v. Brooker,
976 F.3d 228, 234 (2d Cir. 2020). Brooker ruled that a district court’s discretion to find an
“extraordinary and compelling” reason for a sentence reduction is not constrained by
the policy statement in U.S.S.G. § 1B1.13. (We later agreed with that position in
Nos. 20-2944 & 21-1339 Page 3
United States v. Gunn, 980 F.3d 1178, 1180–81 (7th Cir. 2020).) Third, he argued that, if he
were sentenced today, he could not receive a mandatory life sentence because a judge
made the relevant finding that he qualified for § 848(b)’s mandatory life term, and
Alleyne v. United States, 570 U.S. 99, 103 (2013), he says, allocates that task to a jury. (He
mentioned this argument in his pro se motion for compassionate release, but his
appointed counsel did not say anything more about it in the superseding motion.)
The district court denied the motion to reconsider. It reasoned that, even if
Barrios’s COVID-19 diagnosis rendered “moot” its first rationale for denying his motion
(the low rate of infection at his prison), it did not affect its second rationale about the
import of his life sentence. And, it continued, Brooker was irrelevant because the court
did not consider its discretion constrained when it denied his motion—it simply
exercised that discretion to conclude release was not warranted in Barrios’s case.
Finally, it declined to consider his argument that he would not face a mandatory life
sentence if sentenced today because it was not properly raised in the amended motion.
Barrios appeals both the denial of his original motion (No. 20-2944) and his
motion to reconsider (No. 21-1339), and we consolidated the appeals. We pause briefly
to consider two threshold matters. The first is the district court’s power to rule on the
motion to reconsider, given the pendency of No. 20-2944, challenging the initial denial
of the motion for release. Although a notice of appeal usually divests a district court of
jurisdiction over the subject matter of the appeal, the court may deny a motion to alter
the judgment without offending this rule. See Ameritech Corp. v. Int’l Bhd. of Elec.
Workers, Loc. 21, 543 F.3d 414, 418–19 (7th Cir. 2008). That occurred here. The second
issue is the timeliness of No. 21-1339, which contests the denial of the motion to
reconsider. Barrios filed that motion 28 days after the court ruled on his § 3582(c)
motion to reduce his sentence. But a defendant must file a motion to reconsider the
denial of a sentence-reduction motion within the time to file an appeal—14 days.
See United States v. Redd, 630 F.3d 649, 650 (7th Cir. 2011). So Barrios’s motion to
reconsider was not timely. That time limit, however, is a claim-processing rule, not a
jurisdictional one, and we need not enforce it if waived. See Kontrick v. Ryan, 540 U.S.
443, 452–54 (2004); Hamer v. Neighborhood Hous. Servs. of Chicago, 897 F.3d 835, 838
(7th Cir. 2018). The government has not raised a timeliness objection, so we may resolve
No. 21-1339.
We review both the original ruling and the denial of the motion to reconsider for
abuse of discretion. United States v. Saunders, 986 F.3d 1076, 1078 (7th Cir. 2021);
O'Donnell v. Saul, 983 F.3d 950, 954 (7th Cir. 2020). Under § 3582(c)(1)(A), a court may
Nos. 20-2944 & 21-1339 Page 4
release a prisoner for compassionate reasons only if, “after considering the factors set
forth in section 3553(a),” it finds extraordinary and compelling reasons. Because of the
importance of the § 3553(a) factors, courts are not compelled to release all inmates with
extraordinary and compelling health concerns. Saunders, 986 F.3d at 1078.
Barrios first repeats that his health status presents an extraordinary and
compelling reason for release and that his conduct in prison shows that he would not
endanger the community. But the court did not abuse its discretion in denying release
even in light of his health and prison record. The court acknowledged Barrios’s health
conditions, positive COVID-19 status, and good behavior. But, after referring to factors
under § 3553(a), it permissibly ruled that the need to deter wide-scale drug-trafficking,
the seriousness of his offense as reflected in his life sentence, and the fact that Barrios,
still in his 50’s, had served only 18 years of his sentence outweighed those reasons for
release. See § 3553(a)(1), (2)(A)–(B); Saunders, 986 F.3d at 1078 (affirming denial of
compassionate release, despite prisoner’s health issues, given the district court’s
assessment that the defendant’s offense was serious, and he had served only a small
portion of his sentence).
Barrios next renews his argument that, because he believes he would not receive
a mandatory life sentence if sentenced today, he deserves compassionate release now.
We recently held that an argument about non-retroactive sentencing changes, like the
argument Barrios advances here, can never by itself establish an extraordinary and
compelling reason for release under § 3582(c)(1)(A)(i). See United States v. Thacker,
No. 20-2943, 2021 WL 2979530, *3–4 (7th Cir. Jul. 15, 2021). In any event the district court
had discretion to disregard the argument because, although Barrios raised it in his
original pro se motion, his appointed counsel did not include it in his amended motion.
A district court has “wide discretion” to disregard an argument raised only in a pro se
filing when counsel represents the litigant. United States v. Cross, 962 F.3d 892, 899 (7th
Cir. 2020). True, Barrios raised this argument in his motion to reconsider, when counsel
no longer represented him. But a district court also has discretion not to consider
arguments that a counseled litigant could have but did not raise before a dispositive
ruling. See Pine Top Receivables of Ill., LLC v. Banco de Seguros del Estado, 771 F.3d 980, 987
(7th Cir. 2014).
Finally, Barrios unpersuasively argues that the district court mistakenly believed
that, because he was serving a mandatory life sentence, the court lacked the power to
grant his compassionate-release motion. The court demonstrated in its order that it was
aware that it had discretion to grant or deny Barrios’s motion, even though it was a
Nos. 20-2944 & 21-1339 Page 5
mandatory life sentence. It recognized that courts elsewhere had exercised discretion to
rule that extraordinary and compelling reasons warranted release from mandatory life
sentences. And it noted its own “discretion to reassess” the § 3553(a) factors. Finally, the
court also clarified in its order denying reconsideration that its discretion was not
constrained by the policy statement in § 1B1.13. Thus, we are satisfied that the court
exercised its discretion, and did so permissibly, in ruling against Barrios.
AFFIRMED