Opinion
23-3395
05-30-2024
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BRANDON ALEXANDER, Defendant-Appellant.
NONPRECEDENTIAL DISPOSITION
Submitted May 28, 2024 [*]
Appeal from the United States District Court for the Western District of Wisconsin. No. 19-cr-120-jdp James D. peterson, Chief Judge.
Before FRANK H. EASTERBROOK, Circuit Judge, MICHAEL B. BRENNAN, Circuit Judge, JOSHUA p. KOLAR, Circuit Judge.
ORDER
Brandon Alexander, a prisoner at McKean Federal Correctional Institution in Bradford, pennsylvania, appeals the denial of his second motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i). Because the district court did not abuse its discretion in denying the motion, we affirm.
Alexander pleaded guilty in January 2021 to possession of heroin with intent to distribute, 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(i), subject to the enhanced penalties of 21 U.S.C. § 851, and he was sentenced to the mandatory minimum of 120 months' imprisonment. In March 2023, he filed a first motion for compassionate release, arguing that release was warranted for five reasons: (1) His mother, who is taking care of his son, has cancer, so he needs to be the caregiver; (2) his offenses were not serious enough to warrant his sentence, and the § 851 enhancement was excessive and improper; (3) the conditions of his confinement are unduly harsh because the prison has strict COVID-19 lockdown schedules; (4) he has medical conditions including obesity and hypertension, which place him at a heightened risk of a severe COVID infection; and (5) he had shown rehabilitation and had a minimal disciplinary history. He attached to his motion the warden's letter denying his request for compassionate release. The response focused only on his caregiver argument, but in the district court, Alexander clarified that that he had raised the other issues in his request to the warden (which is not in the record).
The district court denied Alexander's motion. It noted first that Alexander had not exhausted his administrative remedies, as required by the statute, because, based on the warden's response, he apparently had raised only the argument about being the sole caregiver for his son. Regardless, the district court determined, Alexander's reasons for compassionate release were not extraordinary and compelling: (1) He did not challenge the warden's determination that his son had other caregivers; (2) the § 851 enhancement was purely left to the prosecutor's discretion, and releasing him early would deprecate the seriousness of his offense and create unwarranted disparities; (3) he did not allege that COVID-related lockdowns were ongoing; (4) he was fully vaccinated and did not provide evidence that he could not benefit from the COVID vaccine; and (5) rehabilitation alone does not warrant compassionate release.
A few months after this ruling, in December 2023, Alexander again moved for compassionate release. He had gone back to the warden with a second request and received a response that listed all his arguments but again addressed only his "sole caregiver" argument. In his motion to the district court, Alexander renewed his prior arguments and added that changes to the Sentencing Guidelines reduced his criminal history category and would subject him to a lower range of imprisonment today. Not giving him the benefit of the amendment, he continued, would create an unwarranted disparity between the sentence he received in 2021 and the one he would likely receive if sentenced under the current Guidelines. (In support, he attached a "proposed" amendment to the Guidelines.) He also noted that the prison's lockdowns are still taking place, not because of COVID, but because of staffing shortages.
The district court again denied his motion, stating that "to the extent" Alexander again sought compassionate release, most of the arguments were the same as those in the first motion and still lacked merit. It continued: "To the extent Alexander's motion is for a sentence reduction based on the retroactive Amendment 821 relating to criminal history, the motion is denied because the Probation Office, the Federal Defender, and the U.S. Attorney's Office are systematically reviewing cases to determine whether a sentence modification under Amendment 821 would be appropriate."
Alexander appeals the denial of his second motion, arguing primarily that the district court should not have ruled without any response by the government opposing his rationales for early release. And he asserts, without much elaboration, that the "combination of obesity, high blood pressure, caretaker, and 851 enhancement" provides a compelling reason for compassionate release. We review the denial of a motion for compassionate release for an abuse of discretion. United States v. Saunders, 986 F.3d 1076, 1078 (7th Cir. 2021).
As for Alexander's contention that the district court should have called for a response from the government before denying his motion for compassionate release, no such requirement appears in the compassionate-release statute. See 18 U.S.C. § 3582(c)(1)(A)(i). And we have never suggested that full briefing is required. Indeed, the government can raise the non-exhaustion defense for the first time on appeal if it was not given the opportunity to respond to a compassionate-release motion in the district court. See United States v. Williams, 62 F.4th 391, 393 (7th Cir. 2023). The very existence of this rule underscores that a judge may deny the motion without any response from the government. See id.; see also United States v. Young, 555 F.3d 611, 615 (7th Cir. 2009) (declining to set out any minimum procedures for resolving motions under § 3582(c)(2) and leaving process to district court's discretion).
Next, we note that Alexander does not address on appeal the district court's conclusion that he failed to exhaust administrative remedies with respect to any argument for release other than being a sole caregiver for a minor child. Nevertheless, given Alexander's statement in his first motion that the warden failed to address all but one of his reasons, the warden's acknowledgment of Alexander's other arguments in his second response, and the absence of any argument from the government on exhaustion, we can bypass this issue. Instead, we affirm the decision on the merits.
As to Alexander's first argument, the letters attached to his brief on appeal confirm the conclusion of the warden and the district court that he is not the only caregiver available for his son. See U.S.S.G. § 1B1.13(b)(3)(A), (D). Alexander's mother is caring for his son. His appellate brief contains no argument to the contrary, and he cannot simply rely on his arguments in the district court, so he has forfeited any chance of demonstrating error. Hackett v. City of S. Bend, 956 F.3d 504, 510 (7th Cir. 2020).
The district court also did not err in determining that the application of the § 851 enhancement did not warrant release. Compassionate-release motions cannot be used to challenge a potential error in the underlying sentence. See United States v. Martin, 21 F.4th 944, 946 (7th Cir. 2021). On appeal, Alexander also cites Amendment 814, which in part modifies the compassionate release guidelines to permit release if a sentence is "unusually long." See U.S.S.G. § 1B1.13(b)(6) (effective Nov. 1, 2023). To the extent that Alexander contends that this part of the amendment applies to him (he does not argue this outright), he does not support the notion that there is anything "unusual"-or extraordinary and compelling-about receiving a recidivism enhancement. Nor has he served "at least 10 years" of his term, as would be required under this provision. Id.
Alexander's supposed enhanced susceptibility to COVID because of obesity and high blood pressure also is not extraordinary or compelling. New vaccines address new COVID variants. And Alexander does not contend that he is unable to receive or benefit from the updated vaccines, United States v. Vaughn, 62 F.4th 1071, 1072 (7th Cir. 2023), nor does he demonstrate that he is at a higher risk of an adverse outcome in prison than out, United States v. Barbee, 25 F.4th 531, 533 (7th Cir. 2022).
Finally, although Alexander argued in the district court that a retroactive amendment to the Guidelines would lower his criminal history category, we do not understand him to raise the argument on appeal. But we address the argument to avoid a potential pitfall. An argument that a retroactive amendment to the Guidelines lowers the defendant's sentence belongs in a motion under 18 U.S.C. § 3582(c)(2). Unlike motions for compassionate release, § 3582(c)(2) motions cannot be filed successively; only one motion per amendment is permitted. See United States v. Guerrero, 946 F.3d 983, 989 (7th Cir. 2020). Therefore, we make clear that we interpret Alexander's filing in the district court as a motion for compassionate release, not a combination of such a motion with a request for a reduced sentence under § 3582(c)(2). His motion discussed the Amendment in the context of the overall length of his sentence and the potential disparities between his sentence and those of similarly situated defendants today. Indeed, the Sentencing Commission delayed the retroactive effect of Amendment 821 until February 1, 2024. Notice of Final Action Regarding Amendment 821, 88 Fed.Reg. 60534 (Sept. 1, 2023). Thus the district court could not have granted him relief based on that Amendment at the time he filed his motion. For clarity of the record, therefore, we observe that Alexander has not yet had "one bite of the apple" with respect to Amendment 821. See Guerrero, 946 F.3d at 989.
AFFIRMED.
[*] The United States has notified us that it will not be filing a brief in this appeal. We have agreed to decide the case without oral argument because the appellant's brief 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).