United States v. Alexander Kluball ( 2021 )


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  •                         NONPRECEDENTIAL DISPOSITION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 April 28, 2021*
    Decided April 28, 2021
    Before
    FRANK H. EASTERBROOK, Circuit Judge
    DIANE P. WOOD, Circuit Judge
    AMY J. ST. EVE, Circuit Judge
    No. 20-3169
    UNITED STATES OF AMERICA,                        Appeal from the United States District
    Plaintiff-Appellee,                         Court for the Western District of Wisconsin.
    v.                                         No. 3:15-cr-00124-jdp
    ALEXANDER KLUBALL,                               James D. Peterson,
    Defendant-Appellant.                         Chief Judge.
    ORDER
    Alexander Kluball, a federal inmate who suffers from obesity and asthma,
    appeals from the denial of his motion for compassionate release based on his health
    conditions and the COVID-19 pandemic. The district court denied the motion,
    reasoning that Kluball failed to show that he exhausted administrative remedies and,
    * 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).
    No. 20-3169                                                                          Page 2
    alternatively, that his health conditions were not an extraordinary and compelling
    reason for his release. We affirm.
    Kluball, who pleaded guilty in 2016 to sex trafficking a minor, 
    18 U.S.C. § 2421
    , is
    midway through his 10-year sentence at FCI Pekin in Illinois. In September 2020, he
    moved for compassionate release under 
    18 U.S.C. § 3582
    (c)(1)(A), arguing that his
    health conditions, together with COVID-19, constitute an extraordinary and compelling
    reason for reducing his sentence, and that his extensive rehabilitation efforts in prison
    further weigh in favor of his release. Without addressing any of the steps he may have
    taken to exhaust his administrative remedies, Kluball asked the court to waive
    § 3582(c)(1)(A)’s exhaustion requirement because “waiting even 30 days will be too
    late,” given the dire threat posed by the virus. The government opposed the motion on
    two grounds: Kluball had failed to show that he exhausted his administrative remedies
    and to provide sufficient medical documentation for the court to consider the merits of
    his request. (Kluball’s submitted health records reflected only diagnoses of obesity and
    asthma; the records said nothing about the severity of these conditions or whether they
    would put him at an increased risk of illness from COVID-19.)
    The district court promptly denied Kluball’s motion in a brief text order. The
    entirety of the court’s analysis is short enough that we repeat it here:
    Defendant is a young man at 30 years old, and he is about
    half-way through a ten-year sentence for a sex-trafficking
    crime with a minor victim. As the government explained in
    its opposition, […] defendant has not provided the
    information I would need to evaluate a motion for
    compassionate release. Defendant does not say whether he
    has exhausted his administrative remedies, as required
    under 
    18 U.S.C. § 3582
    (c). Even if that requirement were met,
    he has not shown that extraordinary and compelling reasons
    warrant his immediate release. He contends that his asthma
    and obesity make him vulnerable to serious illness if he were
    infected with COVID-19. His medical records list both
    asthma and obesity among his health problems, but those
    records contain no evidence that serious health impairments
    result from these two conditions. According to the BOP, his
    institution has 95 active cases among inmates, and I
    recognize that COVID-19 poses a significant risk in any
    No. 20-3169                                                                         Page 3
    prison. But I am not persuaded that he is a candidate for
    compassionate release based on his medical vulnerability,
    particularly at this point in his sentence.
    On appeal, Kluball principally maintains that the district court gave short shrift
    to his argument that, according to the Centers for Disease Control and Prevention, his
    health conditions put him at risk of serious illness from COVID-19.
    The government, for its part, asks us to uphold the denial on exhaustion
    grounds. In the government’s view, the court had no choice but to deny the motion as
    unexhausted, given Kluball’s failure to present any evidence otherwise. Kluball now
    replies, for the first time, that he wrote a letter to the warden requesting compassionate
    release, handed the letter to a correctional officer for delivery, and waited weeks with
    no response before filing his motion with the district court.
    Kluball presented no evidence of any of this in the district court, an omission that
    normally would support our decision to affirm for failure to exhaust. 
    18 U.S.C. § 3582
    (c)(1)(A); see United States v. Sanford, 
    986 F.3d 779
    , 782 (7th Cir. 2021). But the
    exhaustion requirement under § 3582(c)(1) is an affirmative defense, Sanford, 986 F.3d
    at 782, and we do not see how Kluball had an opportunity to supplement the record
    once the government raised the defense. The court denied his motion just one day after
    the government filed its response, without affording him any opportunity to reply.
    Even so, a remand for fact-finding on exhaustion is not necessary in light of the
    court’s determination that Kluball had not demonstrated extraordinary and compelling
    reasons for release. Under 
    18 U.S.C. § 3582
    (c)(1)(A), a district court “may” reduce a
    defendant’s prison term if the reduction is supported by “extraordinary and compelling
    reasons” and the sentencing factors under 
    18 U.S.C. § 3553
    (a). Here, the court
    reasonably determined that Kluball had not made that showing. The court
    acknowledged Kluball’s obesity and asthma but explained, albeit tersely, that his
    medical evidence referred only to his having those conditions; the records did not
    elaborate on the extent of those conditions or the degree to which they made him
    susceptible to severe illness from COVID-19. Given this limited evidence, the court
    permissibly concluded that Kluball’s conditions were not an extraordinary and
    compelling reason for release, particularly when weighed against his relative youth, the
    seriousness of his sex-trafficking crime, and the remaining time left to serve on his
    10-year sentence. That conclusion was not an abuse of the court’s “considerable
    discretion.” United States v. Saunders, 
    986 F.3d 1076
    , 1077 (7th Cir. 2021).
    No. 20-3169                                                                           Page 4
    Kluball also argues that remand is warranted because, in his view, the district
    court bypassed any analysis of the § 3553(a) factors, a discussion that he believes would
    support his release. We do not read the court’s explanation so narrowly. Although the
    court did not cite the statute, it implicitly acknowledged such factors as the offender’s
    characteristics, see 
    18 U.S.C. § 3553
    (a)(1) (alluding to Kluball’s obesity and asthma, as
    well as his relative youth); the seriousness of the offense, § 3553(a)(2)(A) (sex-trafficking
    of a minor); and the need for deterrence, § 3553(a)(2)(B) (five years remaining on his
    ten-year sentence).
    AFFIRMED
    

Document Info

Docket Number: 20-3169

Judges: Per Curiam

Filed Date: 4/28/2021

Precedential Status: Non-Precedential

Modified Date: 4/28/2021