NONPRECEDENTIAL DISPOSITION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 February 23, 2021*
Decided April 30, 2021
Before
FRANK H. EASTERBROOK, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 20-2683
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District of Illinois.
v. No. 10-cr-30046
GIOVONNI THOMAS, Richard Mills,
Defendant-Appellant. Judge.
ORDER
Giovonni Thomas, an inmate at the Federal Correctional Institution in Elkton,
Ohio (FCI Elkton), moved for compassionate release under the First Step Act. See 18
U.S.C. § 3582(c)(1)(A). On appeal he argues that FCI Elkton was unable to control a
COVID-19 outbreak last year, and because he carries the sickle-cell gene, he is
*
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. 20-2683 Page 2
particularly vulnerable to the virus. He also argues that he would be subject to a lower
sentence today than when he was originally sentenced. Because the district court
adequately assessed these concerns and reasonably found that Thomas did not qualify
for release, we affirm.
Thomas pleaded guilty to possessing cocaine with intent to distribute, 21 U.S.C.
§ 841(b)(1)(C); possessing a firearm to further that crime, 18 U.S.C. § 924(c); and
possessing a firearm as a felon, 18 U.S.C. § 922(g). In 2011, Thomas was sentenced to a
prison term of 192 months, followed by a five-year term of supervised release. Thomas
is scheduled for release in 2024.
Last year, after exhausting his administrative remedies, Thomas asked for
compassionate release. Thomas filed a motion pro se, and his motion was later
supplemented after the court appointed counsel for him. The district court then
terminated his pro se motion but considered his supplemental filing, which raised two
issues relating to the COVID-19 pandemic. First, Thomas cited, and the court accepted,
information about FCI Elkton’s COVID-19 infection rates. At the time of Thomas’s
supplemental motion, 240 inmates and seven staff members had active cases.
Cumulatively, 815 of FCI Elkton’s 2,247 inmates had tested positive, and nine inmates
had died of the virus. By the time the court ruled on Thomas’s motion, the cumulative
number of inmate cases had increased to 982. Based on conditions like these, the U.S.
Attorney General issued a memo declaring an emergency at the Bureau of Prisons
(BOP) and allowing the BOP Director to consider transferring inmates to home
confinement. See Office of Att’y Gen., Memorandum for Director of Bureau of Prisons,
Increasing Use of Home Confinement at Institutions Most Affected by COVID-19 (Apr.
3, 2020), https://www.justice.gov/file/1266661/download. Despite this memo, Thomas
argued that FCI Elkton administrators were not transferring medically vulnerable
inmates to home confinement.
Second, Thomas cited personal health information. Thomas argued that he has
the gene for sickle cell anemia and once had the disease itself. The Centers for Disease
Control (CDC), he said, has found that persons with the disease are especially
vulnerable to COVID-19. The government responded that Thomas does not currently
have the disease, just the sickle cell trait, which Thomas conceded the CDC does not list
as a risk factor for the virus. The medical literature that the government cited explained
that the disease and the trait are not synonymous and that people with the trait
typically live normal lives. Thomas replied with other evidence suggesting that,
independent of the virus, those with the trait are susceptible to sudden respiratory
No. 20-2683 Page 3
problems. Because COVID-19 affects respiration, Thomas contended that he remains
vulnerable.
In addition to these pandemic-related arguments, Thomas raised that he would
no longer be incarcerated if he were sentenced after the Supreme Court’s decision in
Johnson v. United States, 576 U.S. 591 (2015), which altered who qualifies for a career
offender designation. Therefore, as part of his compassionate release motion, Thomas
urged the district court to consider that because he would not be designated a career
offender if sentenced today under Johnson, he would now be subject to a lower
guidelines range than the one he originally faced when sentenced in 2011.
The district court denied Thomas’s motion. It correctly noted that under
§ 3582(c)(1)(A), a court may reduce a sentence for “extraordinary and compelling”
reasons. But, in rejecting Thomas’s pandemic-related arguments, it observed that “the
mere existence of COVID-19 in society and possibility that it may spread to a particular
prison alone cannot independently justify compassionate release.” It focused on
whether the prison at which the movant is held is experiencing an outbreak, whether
the prison is unable to control it, and whether the movant is susceptible to the virus.
And for Thomas, the district court acknowledged that FCI Elkton had an outbreak that
was not well controlled, but Thomas did not face heightened susceptibility from it.
People like Thomas “with sickle cell trait can experience serious health issues,” the
court said, but “most … live normal lives and experience no symptoms,” which
“appear[ed] to be the case with the Defendant.”
The court likewise rejected Thomas’s sentencing-disparity argument. In doing so,
the court expressed it was “mindful that, under the Sentencing Guidelines now in
effect, the Defendant would have faced a lower guideline range and would very likely
be out of prison by now.” The court noted that when Thomas was sentenced, his
guidelines range was 262 to 327 months, but if he were sentenced today without the
career offender designation that applied at the time, his range would be 160 to 185
months. Nevertheless, the court did not consider this “so ‘extraordinary and
compelling’ as to warrant compassionate release.”
On appeal, Thomas argues that the district court did not adequately consider his
arguments for compassionate release. We review the court’s decision for an abuse of
discretion. See United States v. Saunders, 986 F.3d 1076, 1078 (7th Cir. 2021). We grant
deference when it reasonably addressed the arguments for why the defendant satisfies
§ 3582(c)(1)(A)’s standard of “extraordinary and compelling.” See United States v.
No. 20-2683 Page 4
Vasquez-Abarca, 946 F.3d 990, 993 (7th Cir. 2020) (citing Rita v. United States, 551 U.S. 338,
356 (2007)).
The district court did not abuse its discretion in denying Thomas’s motion. The
district court permissibly exercised its discretion to assess Thomas’s circumstances
holistically, considering both whether FCI Elkton faced an uncontrolled outbreak and
whether Thomas personally faced an elevated individualized risk of complications. The
court reasonably concluded that Thomas failed to establish that his particular health
trait—his sickle cell gene—was an extraordinary and compelling reason to justify relief.
Thomas conceded that this trait is not one that the CDC says raises his risk of serious
complications from COVID-19. The district court thus permissibly concluded that,
despite the outbreak, Thomas was not eligible for release.
Thomas replies that we should vacate the ruling because the court wrongly
thought that, at the time of the ruling, COVID-19 infections at FCI Elkton had dropped
significantly. We disagree for two reasons. First, although the court did note in its
ruling a recent drop in cases, it based this observation on data from the BOP’s website,
which indicated that only two inmates and two staff members were infected at the time.
Thomas gives no persuasive reason to believe that the website was wrong, and Thomas
notably cited data from the same website in support of his motion. Second, even if we
assume there was some data error when the court reviewed the website, any error
would have been inconsequential. The district court accepted that, during Thomas’s
briefing on the motion, the outbreak was serious and uncontained. Indeed, the court
remarked that FCI Elkton experienced “perhaps one of the worst outbreaks of any BOP
institution” and that “over the course of at least two months, FCI Elkton was unable to
successfully contain the outbreak.” Yet it denied the motion anyway—because Thomas
was not especially vulnerable to serious illness from the outbreak.
Thomas also appears to argue that the district court incorrectly determined that
his post-Johnson sentence disparity was not an extraordinary and compelling reason for
release. The court agreed with Thomas that “the change in law [was] a factor the Court
[could] consider for purposes of the motion” as part of the totality of circumstances
Thomas raised, but it nonetheless concluded Thomas’s sentence disparity did not justify
compassionate release. We cannot say this was error. As Thomas himself recognized,
Johnson’s changes to the career offender definition were not made retroactive to
previously sentenced defendants like Thomas, and therefore, the district court was not
required to grant Thomas’s motion based on Johnson. Cf. United States v. Fisher, 840 F.
App’x 881, 883 (7th Cir. 2021).
No. 20-2683 Page 5
Lastly, Thomas argues that the district court should have considered the
arguments in his initial pro se motion, namely, that his continued imprisonment is
inconsistent with the 18 U.S.C. § 3553(a) sentencing factors because his successful
rehabilitation while in prison justifies releasing him to home confinement. Like Thomas,
we are not convinced that the district court considered his pro se motion. On the one
hand, the district court terminated that motion and stated that only Thomas’s
supplemental motion filed by counsel was before it. On the other hand, the
supplemental motion the court considered noted that Thomas’s pro se motion was
“sufficiently detailed and, therefore, incorporated and supplemented herein.”
Regardless, even if the district court erred in failing to independently consider
Thomas’s pro se motion, such error would be harmless. Not only was information
about Thomas’s rehabilitation included in the exhibit Thomas’s counsel attached to the
supplemental motion, but the district court was not required to conduct the § 3553(a)
inquiry and consider Thomas’s rehabilitation when it made clear that Thomas had not
met the condition precedent of establishing that extraordinary and compelling reasons
warranted his release. See United States v. Carter, No. 20-2409, 2021 WL 1311169, at *1
(7th Cir. Apr. 8, 2021); United States v. Young, 834 F. App’x 268, 270 (7th Cir. 2021). In
any event, the district court lacked authority to change Thomas’s place of imprisonment
to home confinement; that decision rests exclusively with the BOP. See Saunders, 986
F.3d at 1078 (district court does not err by declining to review the merits of a request
that it has no power to grant).
We note that in its decision, the district court cited the Sentencing Commission’s
policy statement and Application Notes in U.S.S.G. § 1B1.13. To the extent Thomas
argues this was inappropriate based on our decision in United States v. Gunn, 980 F.3d
1178 (7th Cir. 2020), his argument fails because the district court did not consider itself
constrained by § 1B1.13. It merely explained that although § 1B1.13 has not been
updated to reflect that inmates may now move for compassionate release on their own,
courts have still turned to § 1B1.13 for “guidance” despite the lack of an applicable
policy statement since the First Step Act’s passage. Nothing about this is inconsistent
with Gunn. The Sentencing Commission’s analysis in § 1B1.13 and its Application Notes
may continue to inform the district court’s discretion “without being conclusive.” See
Gunn, 980 F.3d at 1180. Moreover, the district court agreed with Thomas that it had the
authority to consider the worsening global pandemic combined with the other
circumstances Thomas raised—circumstances not expressly identified in § 1B1.13—in
deciding Thomas’s motion. The district court properly used its own discretion to
determine whether “extraordinary and compelling” reasons existed in Thomas’s case.
No. 20-2683 Page 6
As a final matter, after the district court issued its decision and Thomas filed a
notice of appeal, Thomas filed multiple motions for reconsideration in the district court.
The district court correctly refrained from ruling on Thomas’s reconsideration motions.
See Blue Cross & Blue Shield Ass’n v. Am. Express Co., 467 F.3d 634, 637 (7th Cir. 2006) (a
timely notice of appeal “deprives the district court of jurisdiction over the issues
presented on the appeal”). On appeal, Thomas asks us to consider the newly discovered
material cited in these motions—including, among other things, that his alleged obesity
places him at an increased risk of COVID-19 complications. We decline to do so. It is
well established that we cannot consider new information for the first time on appeal.
See United States v. McDonald, 981 F.3d 579, 581 (7th Cir. 2020).
AFFIRMED