NONPRECEDENTIAL DISPOSITION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 August 4, 2021 *
Decided August 5, 2021
Before
FRANK H. EASTERBROOK, Circuit Judge
DIANE P. WOOD, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 20-3456
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Indiana,
Hammond Division.
v. No. 2:00-CR-28-18-TLS-APR
JAMES S. ERVIN, Theresa L. Springmann,
Defendant-Appellant. Judge.
ORDER
James Ervin, a federal inmate who is obese and has asthma, moved for
compassionate release based on his heightened vulnerability to COVID-19. The district
court denied relief, finding that he lacked “extraordinary and compelling reasons” for
release under 18 U.S.C. § 3582(c)(1)(A)(i) and that the sentencing factors under 18 U.S.C.
*
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. 20-3456 Page 2
§ 3553(a) weighed against it. Because the court acted well within its discretion in
denying compassionate release, we affirm.
Ervin, then a police officer, worked for a drug-trafficking ring. He arrested other
drug dealers and stole their guns, money, and drugs; once, he fatally strangled a rival
dealer with an extension cord. In 2003, a jury found Ervin guilty of crimes including
murder, racketeering, and possession and distribution of drugs. See 18 U.S.C. §§ 2,
924(c)(1), 1951, 1952(a)(2); 21 U.S.C. §§ 841(a)(1), 846, 848(e)(1)(A). He is serving a life
sentence at the Federal Correctional Institution Greenville in Illinois.
In July 2020, Ervin moved for compassionate release. He argued that his age (49)
and health conditions—obesity, asthma, and history of pneumonia and heart
problems—increased his risk of complications or death from COVID-19. He also argued
that the Bureau of Prisons’ failure to contain the spread of the virus increased his risk of
contracting it, and he asked the court to consider his continuing education and clean
disciplinary record in prison.
The district court denied Ervin’s motion. Ervin did not show extraordinary and
compelling reasons for release under § 3582(c)(1)(A)(i), the court explained, because his
medical records demonstrated that his obesity and asthma were treated and managed
by prison medical staff. Moreover, the court noted that Ervin’s records showed no
history of pneumonia or heart problems, and his age (now, 50) was not “advanced.”
The court also concluded that the § 3553(a) sentencing factors weighed against release
because Ervin’s crime was corrupt and violent; he had used his position as a police
officer to distribute drugs and falsely arrest and murder rival distributors.
Ervin argues that the district court abused its discretion in determining that he
did not show extraordinary and compelling reasons for release because it did not place
enough weight on his health conditions. But the court’s decision was reasonable in
December 2020 and is now even more secure. Ervin’s risk of contracting COVID-19 in
prison is not likely to be an extraordinary and compelling reason for release now that,
as far as this record shows, he has access to an effective vaccine. See United States v.
Broadfield, No. 20-2906, ___ F.4th___, 2021 WL 3076863, at *2 (7th Cir. July 21, 2021);
Federal Bureau of Prisons, COVID-19 Vaccine Implementation (last visited Aug. 4, 2021),
https://www.bop.gov/coronavirus/ (reporting 853 vaccinated inmates at FCI
Greenville). Ervin has not asserted that the Bureau of Prisons failed to offer him the
vaccine or that he cannot take it; nor has he ever argued that, without the threat of
COVID-19, his health concerns are severe enough to warrant early release.
No. 20-3456 Page 3
Next, Ervin faults his recruited lawyer for failing to obtain medical records
substantiating his history of pneumonia and heart problems. But he cannot claim
ineffective assistance of counsel because he did not have a constitutional right to
counsel in the § 3582 proceedings to begin with. See United States v. Clayton, 811 F.3d
918, 921–22 (7th Cir. 2016).
Finally, Ervin challenges the district court’s weighing of the § 3553(a) factors, but,
in the absence of a valid reason for a sentence reduction, the court did not have to
consider the factors at all. See United States v. Thacker, No. 20-2943, ___ F.4th ___,
2021 WL 2979530, at *6 (7th Cir. July 15, 2021). In any event, the court sufficiently
explained its decision by pointing to the corrupt and violent nature of Ervin’s crimes.
See 18 U.S.C. § 3553(a)(1); United States v. Ugbah, No. 20-3073, ___ F.4th ___, 2021 WL
3077134, at *2 (7th Cir. July 21, 2021). And, to the extent he argues that the district court
based the decision on a crime he did not commit, Ervin cannot use his § 3582 motion as
a vehicle to challenge his conviction. See United States v. Bridgewater, 995 F.3d 591, 595
(7th Cir. 2021).
AFFIRMED