UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DAVID L. NEWTON, Defendant-Appellant.
No. 20-2893
United States Court of Appeals For the Seventh Circuit
ARGUED MARCH 2, 2021 — DECIDED MAY 4, 2021
Before RIPPLE, HAMILTON, and KIRSCH, Circuit Judges.
RIPPLE, Circuit Judge. David Newton, an inmate at FCI Seagoville in Texas, moved for compassionate release under
I
BACKGROUND
Mr. Newton has been in prison since 2009, when he pleaded guilty to two counts of bank robbery,
In late March and early April 2020, the novel coronavirus that causes COVID-19 spread rapidly throughout the United States. Prisons, with their close quarters and communal living, were hit hard by the virus. In May 2020, after serving nearly twelve years of his sentence, Mr. Newton moved pro se for compassionate release. He first argued that his asthma, combined with the Bureau of Prison‘s mismanagement of the pandemic, constituted an extraordinary and compelling reason for his release under
In another filing, Mr. Newton provided a detailed release plan. In it, he explained that, if released, he could reside with either his grandmother and uncle at the home they share or with his father and his father‘s wife at their home.
The district court appointed counsel to represent Mr. Newton. Counsel replied to the Government‘s opposition to the first two medical conditions, and then added that a third condition, hypertension, in combination with the other two conditions also increased Mr. Newton‘s risk of illness if he remained imprisoned.
The parties disagreed as to whether the Bureau of Prisons (“BOP“) and FCI Seagoville were responding inadequately to the pandemic. In July 2020, Newton contracted COVID-19. Three weeks later, a prison physician noted that his infection had “resolved” and that he “did not have a severe illness requiring hospitalization.”1 Mr. Newton still reported, however, “recurrent intermittent coughs, headaches, and asthma flare-ups for which he [had] to use inhalers more frequently.”2 The number of active cases at the prison has shrunk more recently. When the district court ruled on Newton‘s motion, the number of active cases among inmates stood at five.3
In sum, by the time Mr. Newton‘s motion was fully briefed, the record before the district court included:
After determining that Mr. Newton had exhausted his administrative remedies, the district court denied his request for release. The entirety of the district court‘s discussion of the merits of Mr. Newton‘s motion is as follows:
The Government contends, however, that Mr. Newton has not demonstrated extraordinary and compelling reasons to warrant a sentence reduction.
I agree. Mr. Newton argues that he is at particular risk of harm from COVID-19 while incarcerated due to underlying medical conditions such as asthma and hypertension, and due to his use of immunosuppressant medication. The CDC, however, while acknowledging that these conditions “might” create an increased risk of harm from COVID-19, has not been able to determine conclusively that they pose an increased danger. Indeed, Mr. Newton did contract COVID-19 in July 2020, and the infection seems to have “[r]esolved” without serious incident. R. 136 at 2. Moreover, although Mr. Newton reports substantial spread of
COVID-19 in FCI Seagoville, where he is housed, the prison has lately succeeded in drastically reducing active cases of COVID-19 within its population; currently, it reports only 5 inmate cases. Accordingly, it is not clear that Mr. Newton would face a significantly reduced risk from COVID-19 in the general population than he would in prison.4
The district court included two footnotes: one to a CDC website with a list of conditions that place individuals at risk of severe illness from COVID-19, and the other to a BOP website with information on coronavirus cases in BOP facilities. As the quoted portion of the opinion shows, the district court‘s merits analysis included a single citation to the record.
II
DISCUSSION
Once an inmate fulfills the exhaustion requirements, a federal court may grant a prisoner‘s motion for compassionate release if “extraordinary and compelling reasons” warrant release and if the request is consistent with the sentencing considerations reflected in
Newton first submits that the district court wrongly believed that the policy statement found in U.S.S.G. § 1B1.13 constrained its discretion. Under
Mr. Newton submits that each of the grounds proffered in support of his motion is independently sufficient to justify his release. He also submits, however, that the district court abused its discretion by not taking into consideration the cumulative effect of his comorbidities.
The district court first denied the petition because it believed that, according to CDC guidance, each of Mr. Newton‘s medical conditions only “might” increase the risk posed by COVID-19. We think that the district court required the word “might” to do too much work. Assessing the effect of comorbidities necessarily involves an estimation of probabilities, not certainties, and, in the case of a novel disease, we cannot expect more from the medical profession. The CDC necessarily must deal with the present state of scientific knowledge and the courts must apply the statutory criteria in light of that reality. We cannot demand certainty where there is no certainty.5
We also believe that the district court should have assessed Mr. Newton‘s situation not only in light of each of his
Our case law does not give detailed guidance on the degree to which a district court must address each argument raised in a petition for compassionate release. See United States v. Joiner, 988 F.3d 993, 995 n.1 (7th Cir. 2021). Nor, given the myriad of situations confronting the district
The district court also observed that Mr. Newton fell ill with COVID-19 and “recovered.” This observation gives us pause. To begin, the district court simply noted Mr. Newton‘s prior infection and then moved on. The court never explained what probative value that fact presented. The bare nature of the reference matters because the Government took no position on the impact of Mr. Newton‘s having previously contracted COVID-19. Thus, we are not even able to assume that the district court was adopting the Government‘s position because the Government took no position. We are left to guess at how the district court weighed Mr. Newton‘s prior infection.
The most likely explanation for the reference is that the district court thought, without supporting evidence, that
The district court‘s final rationale was that because FCI Seagoville had relatively few active cases at the time, Mr. Newton would not “face a significantly reduced risk from COVID-19 in the general population than he would in prison.”7 This methodology was flawed; it relied on both an illusory comparison and the wrong comparison. We say illusory because the term “general population” is hardly self-defining. And in any event, the “general population” is the
Our decision today represents the opposite side of the situation we addressed in United States v. Joiner, 988 F.3d at 995–96. There, an inmate seeking compassionate release contended that the district court committed procedural error when it failed to address an argument in his brief that relied entirely on generalized, societal-level demographic data. Id. We saw no procedural error. As we explained, “by relying on generalized evidence of broad societal concerns, [the inmate] did not provide the court with any basis to” connect that general argument to his specific circumstances. Id. at 996. The district court addressed other, individualized arguments but did not need to address the highly general arguments for us to conduct adequate appellate review. Id.
Our dissenting colleague may be correct that Mr. Newton‘s motion does not present extraordinary and compelling reasons for release. Yet our disagreement with the dissent is straightforward: when we read the dissent, we are confident that our colleague considered Mr. Newton‘s individualized arguments; when we read the district court‘s opinion, we cannot say the same. Although we believe that the district court committed methodological error that requires a remand, our holding today in no way indicates the appropriate final resolution of this matter. After reconsideration in accordance with this opinion, the district court will render a decision on that matter in accordance with the law and the facts presented to it.
Conclusion
The judgment of the district court is vacated, and the case is remanded for further consideration consistent with this opinion.
1.
A.
The district court‘s order specifically identified each of Mr. Newton‘s medical conditions—asthma, hypertension, and use of immunosuppressant medication—and acknowledged that pursuant to CDC guidance, these conditions “might” create an increased risk of harm from COVID-19. R.145 at 2–3. But the district court concluded that “might” does not equal extraordinary and compelling in this case. See id. at 3. In support of its conclusion, the district court first noted that the CDC had not conclusively determined that any of Mr. Newton‘s conditions posed an increased danger, and it next observed that Mr. Newton had recovered from an earlier COVID-19 infection without suffering serious medical consequences. Id. at 2–3. We have affirmed denial of compassionate release on these grounds. In United States v. Lee, 840 F. App‘x 880, 881 (7th Cir. 2021), for example, we explained that the inmate‘s assertion of asthma did not warrant release “not only” because the inmate failed to raise asthma as a grounds for release in the district court, but because “the CDC also ha[d] not
The majority concludes, from the district court‘s observation that Mr. Newton recovered from an earlier bout with COVID-19, that the district court thought that Mr. Newton “could not be reinfected or that a subsequent infection would be no more severe than the first.” Supra, at 10. There is no support for this conclusion in the district court‘s order. Rather, the district court simply pointed to Mr. Newton‘s recovery as support for the CDC‘s guidance that “might” does not mean “will,” as it explained that “[i]ndeed,” Mr. Newton‘s conditions did not result in an increased danger when he contracted the virus in July 2020. R.145 at 3. The court further noted that “the infection seems to have ‘[r]esolved’ without serious incident” based on the available medical records. Id. After Mr. Newton tested positive, his physician noted: “At least 10 days have passed since [Mr. Newton‘s] first symptoms or positive test. [Mr. Newton] is not severely immunocompromised and did not have a severe illness requiring hospitalization. [Mr. Newton] meets CDC Criteria for release from isolation and the ICD code will be resolved[.]” R.136 at 4. Had Mr. Newton suffered severe symptoms or been
B.
The majority criticizes the district court for inadequately addressing Mr. Newton‘s purported argument that the combination of his asthma, hypertension, and use of steroid medication increased his risk of serious COVID-19 illness. Supra, at 7–8. The district court did not address this argument for two good reasons: Mr. Newton never made it, and even if he had, he didn‘t submit any evidence that the combination of his medical conditions increased his risk.
First, Mr. Newton only argued his comorbidities in isolation, not in combination. The majority holds that Mr. Newton‘s medical records and citation to “a district court decision that granted compassionate release to a prisoner with multiple COVID-19 risk factors,” were enough “to apprise the district court of the nature of his argument” that his medical conditions should be considered cumulatively. Supra, at 9 (emphasis added). The majority expects far too much of the district court, especially when Mr. Newton merely cited an unpublished and non-binding case in his reply brief without explanation or argument. See R.143 at 4 (Mr. Newton citing United States v. Johnson, No. 17-cr-50051, 2020 WL 4557042 (N.D. Ill. June 10, 2020)). In doing so, Mr. Newton wrote:
If the Court treats all of his conditions as ones that might put him at increased risk, it should find him eligible. Newton‘s pro se motion relied on his asthma condition and his prolonged use of prescription steroids to deal with the asthma condition, both of which might put him at increased risk, according to the CDC. See United States v. Johnson, 2020 WL 4557042, at *2 (N.D. Ill. June 10, 2020). The government attempts to minimize Newton‘s asthma and his use of steroids. But his medical records indicate that his doctor recently increased his dosage of steroids to control his asthma, R. 136, at 7, which indicates a condition that is growing worse. Although one of the doctors at Seagoville indicated that Newton is not severely immunocompromised, the record does not indicate the basis for that conclusion, which demands explanation, since the CDC has warned that use of steroids can make one immunocompromised, and Newton has recently been prescribed a larger steroid dose.
In addition, Newton has hypertension, which the CDC recognizes as a factor that might put him at increased risk.
R.143 at 4–5.
At most, Mr. Newton cited Johnson to argue that because he had more than one independent risk factor, his medical condition was extraordinary and compelling. This is not the same as Mr. Newton arguing that his multiple risk factors interacted together or affected one another in such a way that
Second, even if the district court was adequately apprised of the nature of the argument, Mr. Newton entirely failed to submit evidence, medical or otherwise, that the combination of his comorbidities increased his risk of serious consequences should he be infected, such that he proved extraordinary and compelling reasons for early release. For example, there is no indication in the record that Mr. Newton‘s hypertension made his asthma worse, or vice versa. All the record says is that he has both. I agree with the majority that, “District courts must base factual conclusions on record evidence; they cannot render unsupported medical opinions.” Supra, at 10. It follows that when there is no record evidence upon which to draw factual conclusions, the party with the burden of proof (here, Mr. Newton) fails to meet it, and the district court need not consider the argument. See United States v. Joiner, 988 F.3d 993, 996 (7th Cir. 2021) (holding that the district court need not consider arguments the defendant did not
2.
The district court addressed and explicitly rejected Mr. Newton‘s second argument that the BOP‘s mismanagement of the pandemic at FCI Seagoville was an extraordinary and compelling reason for his release. The district court pointed out that FCI Seagoville had succeeded in dramatically reducing active COVID-19 cases and was, at the time of the district court‘s order, down to five cases. R.145 at 3. By doing so, the district court rejected Mr. Newton‘s argument made in his reply brief that, “Seagoville is as hot a hotspot as one can find.” R.143 at 3. Perhaps it was at one point, but when Mr. Newton filed his reply brief (four days before the court issued its order), it most certainly was not. The district court need not say more about Mr. Newton‘s BOP-mismanagement argument. See, e.g., United States v. Leachman, 837 F. App‘x 411, 412 (7th Cir. 2021) (affirming district court decision where inmate‘s facility “had only three confirmed cases of COVID-19 as of the date of decision“).
3.
Finally, the district court‘s comparison of Mr. Newton‘s release plan to the general population was neither illusory nor wrong, as the majority concludes. See supra, at 10–11. Mr. Newton, in his filings and in letters of support for his release, proposed that he would travel from the federal prison in
* * *
The district court‘s order was brief, but its thinking was clear—Mr. Newton did not prove extraordinary and compelling reasons for early release. I am convinced that the district court did not abuse its discretion.
I respectfully dissent.