In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-1148
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TONY BROCK,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 2:13-cr-20058 — Sara Darrow, Chief Judge.
____________________
SUBMITTED JUNE 23, 2022 ∗ — DECIDED JULY 7, 2022
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Before SYKES, Chief Judge, and BRENNAN and SCUDDER, Cir-
cuit Judges.
SCUDDER, Circuit Judge. Seven years into his 15-year sen-
tence for heroin dealing, Tony Brock sought early discharge
∗We have agreed to decide this case without oral argument because
the brief and record adequately present the facts and legal arguments, and
oral argument would not significantly aid the court. See FED. R. APP.
P. 34(a)(2)(C).
2 No. 22-1148
under the compassionate release statute, 18 U.S.C.
§ 3582(c)(1)(A). Receiving that relief depended on Brock first
identifying a legally cognizable “extraordinary and compel-
ling” reason for ending his sentence early and then convinc-
ing the district court the outcome was further justified by an
application of the 18 U.S.C. § 3553(a) factors. Brock ap-
proached the first of those requirements by contending that
our recent decision in United States v. Ruth, 966 F.3d 642
(7th Cir. 2020), changed the law—by reinterpreting a defini-
tion in the federal drug statutes—in a way that amounted to
an extraordinary and compelling ground to consider a lower
sentence. The district court denied relief, relying on United
States v. Thacker, 4 F.4th 569 (7th Cir. 2021), to conclude that
the compassionate release statute could not be used as a path
to a sentence reduction based on a position available to de-
fendants during plea negotiations or trial, direct appeal, or in
a post-conviction motion under 28 U.S.C. § 2255 challenging
a sentence. We agree and affirm.
I
A
In October 2013 a federal grand jury in the Central District
of Illinois indicted Brock for possessing heroin with intent to
distribute (Count One) and a related conspiracy charge
(Count Two). The government then filed a notice under 21
U.S.C. § 851 informing Brock of its intent to enhance his sen-
tence based on a 2005 conviction for possessing with intent to
distribute cocaine in Illinois. The § 851 notice, commonly
called a prior felony information, had the effect of increasing
the maximum sentence on Count One from 20 to 30 years. It
likewise increased the sentencing range on Count Two from 5
to 40 years to 10 years to life.
No. 22-1148 3
Brock pled guilty to both counts under an agreement ex-
pressly waiving his rights to appeal or collaterally attack his
sentence, subject to exceptions not relevant here. The district
court sentenced Brock to 180 months (15 years). Adhering to
the waiver in his plea agreement, Brock did not appeal. But
he did file a series of post-conviction challenges through re-
quests for relief under 28 U.S.C. §§ 2241 and 2255. None
proved successful.
B
In 2020 Brock turned to § 3582(c)(1)(A) and asked the dis-
trict court for early release. Pointing to our decision earlier
that year in United States v. Ruth, he argued that his 2005 co-
caine conviction was no longer a proper predicate for the
§ 851 sentencing enhancement because the Illinois statute un-
der which he was convicted covers isomers of cocaine omitted
from Congress’s definition of cocaine in Title 21 of the U.S.
Code. To Brock, then, Ruth reflected an “extraordinary and
compelling” reason—a favorable change in case law affecting
his sentence—that made him eligible for a sentence reduction
under the compassionate release statute.
The district court disagreed and summarily denied
Brock’s motion. Citing our decision in Thacker, the district
court saw Brock’s alleged sentencing error as part of a class of
arguments defendants could pursue on direct appeal or in a
post-conviction motion under § 2255, but not under the com-
passionate release statute. Put another way, Brock’s Ruth-
based challenge to his sentence did not constitute an “extraor-
dinary and compelling” reason for early release.
Brock now appeals.
4 No. 22-1148
II
Understandably, Brock would like a lower sentence. But
the reasoning underpinning our decisions in Thacker and
United States v. Martin, 21 F.4th 944 (7th Cir. 2021), forecloses
his use of the compassionate release statute to pursue that end
based on what he sees as the change in law announced in
Ruth. And although that principle fully resolves this case, we
add that allowing Brock to pursue the relief he seeks under
§ 3582(c)(1)(A) would license an end run around the appeal
and collateral attack waivers he agreed to in his plea agree-
ment.
A
In Thacker we emphasized that the authority in the com-
passionate release statute “only goes so far” and “cannot be
used to effect a sentencing reduction at odds with Congress’s
express determination embodied in” other statutes. 4 F.4th at
574. Those observations led us to hold that § 3582(c)(1)(A)
“does not permit—without a district court finding some inde-
pendent ‘extraordinary or compelling’ reason—the reduction
of sentences lawfully imposed before the effective date of the
First Step Act’s amendment to [18 U.S.C.] § 924(c),” an amend-
ment which, by its terms, applies only prospectively. Id. at
575.
Martin followed, complementing Thacker by holding that
the compassionate release statute cannot be used to challenge
a sentence on grounds the defendant could have advanced on
direct appeal. See 21 F.4th at 946. Any other conclusion, we
explained, would permit a defendant to “circumvent the nor-
mal process for challenging potential sentencing errors, either
through the direct appeal process or collaterally through a 28
No. 22-1148 5
U.S.C. § 2255 motion”—a concern we first sounded in Thacker.
Id. (citing Thacker, 4 F.4th at 574).
As the district court recognized, Brock’s compassionate re-
lease motion runs headlong into this principle. He seeks early
release under § 3582(c)(1)(A) based on an argument generally
available to litigants on direct appeal or (more properly) in
plea negotiations and at the time of the original sentencing.
Nothing prevented Brock and his counsel from arguing that
his 2005 conviction came under a provision of Illinois law that
was too broad to enhance his federal sentence. That we did
not expressly adopt this precise position until Ruth does not
change the analysis. Our decision in Ruth—even if viewed as
announcing new law or a new interpretation of an existing
statutory provision—cannot alone constitute an “extraordi-
nary and compelling” reason authorizing a reduced sentence
under § 3582(c)(1)(A).
That conclusion resolves this case. But recognize, too, the
potential consequence of a contrary conclusion on these facts,
where Brock chose to plead guilty pursuant to an agreement
in which he expressly waived his rights to directly appeal or
collaterally attack his conviction or sentence. “[O]ne major
purpose of an express waiver,” we have emphasized, “is to
account in advance for unpredicted future developments in
the law.” Oliver v. United States, 951 F.3d 841, 845 (7th Cir.
2020). So, in entering the plea agreement, Brock “assume[d]
the risk of future changes in circumstances in light of which
one’s bargain may prove to have been a bad one.” United
States v. Bownes, 405 F.3d 634, 636 (7th Cir. 2005). Subsequent
developments in the law may have proven favorable for
Brock. But he chose to run that risk, and the compassionate
6 No. 22-1148
release statute does not provide a safety valve allowing him
to renege on his agreement with the government.
B
Brock urges a different conclusion, directing our attention
to United States v. Liscano, No. 02 CR 719-16, 2021 WL 4413320
(N.D. Ill. Sept. 27, 2021). In Liscano, the district court con-
cluded that the government’s “admission that the [defend-
ant’s] offenses no longer support a life sentence” because of
subsequent developments in the law could constitute an ex-
traordinary and compelling reason for purposes of
§ 3582(c)(1)(A) sentencing relief. Id. at *8. The district court
saw the limitations recognized in Thacker as having no appli-
cation where the change in law animating a compassionate
release motion comes not from Congress, but from decisions
by courts. See id. at *7 n.4.
We cannot agree. Judicial decisions, whether character-
ized as announcing new law or otherwise, cannot alone
amount to an extraordinary and compelling circumstance al-
lowing for a sentence reduction. To permit otherwise would
allow § 3582(c)(1)(A) to serve as an alternative to a direct ap-
peal or a properly filed post-conviction motion under 28
U.S.C. § 2255. We rejected that view in Thacker and Martin and
do so again here.
We have considered Brock’s other arguments, but none
has merit.
For these reasons, we AFFIRM.