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,

Plaintiff-Appellee, 

v. 

ROBERT D. SUTTON, 

Defendant-Appellant.

Appeal from the United States District 

Court for the Western District of 

Wisconsin. 

No. 3:01-cr-00032-bbc-3 

Barbara B. Crabb, 

Judge.

O R D E R

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 

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
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 stillvalid 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.