NONPRECEDENTIAL DISPOSITION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
Argued April 27, 2021
Decided July 16, 2021
Before
DIANE S. SYKES, Chief Judge
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 20-2876
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Western District of
Wisconsin.
v.
No. 3:01-cr-00032-bbc-3
ROBERT D. SUTTON,
Defendant-Appellant. Barbara B. Crabb,
Judge.
ORDER
Robert Sutton is serving a 52-year federal sentence for thirteen armed robberies
he committed in 1997 and 1998. The sentence includes so-called stacked penalties for
three convictions under 18 U.S.C. § 924(c)—one that resulted in a mandatory sentence of
five years and two others that resulted in mandatory consecutive sentences of 20 years
each. In July 2020 Sutton invoked 18 U.S.C. § 3582(c)(1)(A) and sought a sentencing
reduction based not only on the health risks of exposure to COVID-19 within prison,
but also on the amendment Congress enacted in the First Step Act of 2018 to limit the
circumstances in which multiple sentences for the commission of a firearms offense
under § 924(c) can be stacked—imposed to run consecutively to one another. The
district court denied Sutton’s motion, concluding in part that the discretion in
No. 20-2876 Page 2
§ 3582(c)(1)(A) to reduce a sentence upon finding “extraordinary and compelling
reasons” does not include the authority to reduce § 924(c) sentences lawfully imposed
before the effective date of the First Step Act’s anti-stacking amendment. Our recent
decision in United States v. Thacker, — F.4th — (slip op.) (7th Cir. July 15, 2021), resolved
that legal question in the same way as the district court. And as for Sutton’s health
conditions, the district court appropriately exercised its discretion to deny release on
that ground. So we affirm.
I
A
In 1997 Sutton joined a group that then robbed 13 businesses in Madison,
Wisconsin over the next year. The crew brandished firearms during most robberies,
holding victims at gunpoint and demanding money. A 21-count grand jury indictment
filed in 2001 named Sutton in seven of the counts—one for bank robbery by
intimidation (18 U.S.C. § 2113(a)), three for Hobbs Act robbery (18 U.S.C. § 1951), and
three for using a firearm during several of the robberies (18 U.S.C. § 924(c)). A jury
convicted Sutton on all counts, and the district court sentenced him to 52 years’
imprisonment. This sentence consisted of concurrent 87-month terms for the robbery
counts, plus a mandatory consecutive 5-year term for the first § 924(c) count and two
mandatory consecutive 20-year terms for the other § 924(c) counts.
We upheld Sutton’s sentence on direct appeal. See United States v. Sutton,
337 F.3d 792 (7th Cir. 2003). Sutton has since attempted, without success, to obtain relief
from his sentence under 28 U.S.C. § 2255.
In July 2020 Sutton invoked § 3582(c)(1)(A) and requested compassionate release.
He provided two separate grounds for relief. Sutton first argued that the 45-year
sentence for his three § 924(c) convictions is an extraordinary and compelling reason
warranting immediate release because, after Congress amended that provision as part
of the First Step Act, his convictions would now carry an aggregate mandatory
minimum term of only 15 years. He then argued that his medical conditions (diabetes,
high blood pressure, and high cholesterol) put him at increased risk of serious
complications from COVID-19.
B
The district court denied Sutton’s motion, observing that, to obtain relief, Sutton
had to show an “extraordinary and compelling” reason for release under § 3582(c)(1)(A)
No. 20-2876 Page 3
and that he did not present a danger to the community under U.S.S.G. § 1B1.13(2). The
policy statement in § 1B1.13 states that any reason—other than medical conditions, age,
and family circumstances—must be deemed extraordinary and compelling by the
Bureau of Prisons but the Bureau here had not made such a finding regarding the First
Step Act’s amendment to § 924(c).
At the time of its decision, the district court did not have the benefit of our
guidance in United States v. Gunn, in which we concluded that the policy statement
applies only to motions brought by the Bureau of Prisons. See 980 F.3d 1178, 1180
(7th Cir. 2020). While the policy statement may guide a district court’s discretion, it does
not have binding effect. See id.
But the district court’s reference to § 1B1.13 is inconsequential because, as part of
denying Sutton’s motion, the court exercised its discretion independent of the policy
statement’s instructions. The district court concluded that the change to § 924(c) does
not make “extraordinary” the continued enforcement of a legally imposed and still-
valid sentence. A contrary conclusion, the district court added, would impermissibly
circumvent Congress’s choice in the First Step Act to make § 924(c) apply prospectively.
In rejecting Sutton’s health-based argument for release, the district court
reasoned that release was unnecessary to protect him from COVID-19 because the
United States Penitentiary at Allenwood, Pennsylvania, where Sutton is housed, had
few cases. The court the underscored that, regardless, it would not release Sutton
because it could not conclude that he posed no danger if released.
Sutton now appeals.
II
In the First Step Act of 2018, Congress amended the sentencing scheme
prescribed by 18 U.S.C. § 924(c). Specifically, § 403(a) of the enactment limited the
circumstances under which the heightened mandatory minimum sentence applies to
second or subsequent convictions under § 924(c). That penalty now applies only if the
offender’s first § 924(c) violation is final at the time of a second or subsequent violation.
Congress also made plain in § 403(b) that the amendment “shall apply to any offense
that was committed before the date of enactment of this Act, if a sentence for the offense
has not been imposed as of such date of enactment.” By its terms, then, the First Step
Act’s anti-stacking amendment does not apply retroactively.
No. 20-2876 Page 4
The district court got it exactly right when it concluded the change to § 924(c)
could not constitute an extraordinary and compelling reason warranting a reduction in
Sutton’s sentence. We held just that in Thacker, slip op. at 12 (“At step one, the prisoner
must identify an ‘extraordinary and compelling’ reason warranting a sentence
reduction, but that reason cannot include, whether alone or in combination with other
factors, consideration of the First Step Act’s amendment to § 924(c).”). While Sutton’s
pre-First Step Act sentence may carry significantly longer mandatory minimums than
someone convicted of the same crimes today, the district court may not use the
discretion conferred by § 3582(c)(1)(A) to reduce a sentence on that basis. As we said in
Thacker, “[t]he proper analysis of a motion for a discretionary sentencing reduction
under § 3582(c)(1)(A) based on ‘extraordinary and compelling’ reasons proceeds in two
steps.” Id., slip op. at 12. The district court may consider the change to § 924(c) when
weighing any applicable § 3553(a) factors—but only after it first finds an extraordinary
and compelling reason warranting a sentencing reduction.
We close by addressing Sutton’s challenge to the district court’s denial of his
compassionate release motion on the basis that his health conditions placed him at high
risk of contracting COVID-19 within USP Allenwood. We see no abuse of discretion.
See United States v. Saunders, 986 F.3d 1076, 1078 (7th Cir. 2021) (“We review a district
court’s denial of compassionate release for abuse of discretion.”).
While acknowledging Sutton’s serious medical conditions and the pandemic, the
district court appropriately exercised its broad discretion to deny release. “[C]ourts are
not compelled to release every prisoner with extraordinary and compelling health
concerns.” Id. Once it finds an extraordinary or compelling reason for release, the
district court must still weigh any applicable § 3553(a) sentencing factors to determine if
release is appropriate. See 18 U.S.C. § 3582(c)(1)(A). The district court found that the
Bureau of Prisons had implemented protections at the Allenwood facility to reduce the
risk of infection. These protections resulted in USP Allenwood recording only two
active cases at the time of the court’s decision. More fatal to Sutton’s appeal, however, is
that the district concluded that Sutton continued to pose danger to the community if
released, since he was a member of a crew responsible for a string of armed robberies.
For these reasons, we AFFIRM.