### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 20-2314
U NITED S TATES OF A MERICA , Plaintiff -Appell ee ,

v.
E URAL B LACK , Defendant -Appell ant

.

____________________ Appeal from the United States District Court for the Northern District of Illinois , Eastern Division

. No. 1:05

- cr

- 00070 -4 — Ronald A. Guzm án
, Judge

.

____________________
A RGUED M ARCH 2, 2021

— D ECIDED J UNE 4, 2021

____________________

Before R IPPLE , H AMILTON , and K IRSCH , Circuit Judges

. H AMILTON , Circuit Judge

. Appellant Eural Black is serving a forty

- year sentence in federal prison for firearm, robbery,and drug offenses that he committed as a Chicago police officer. He moved the district court for compassionate release under 18 U.S.C. § 3852(c)(1)(A) based on his prostate can cer and the COVID

- 19 pandemic. The district court denied Black’s motion. It concluded that Black had not shown “ex-2 No. 20-2314

traordinary and compelling reasons,” as defined by the Sentencing Commission’s policy statements, to modify his sentence. The court also said that even if Black had made that showing, the sentencing factors under 18 U.S.C. § 3553(a) weighed against release because Black had served only one

third of his lengthy sentence for such serious crimes. After the district court denied Black’s motion, we d ecided United States v. Gunn , 980 F.3d 1178 (7th Cir. 2020), which held that the “extraordinary and compelling reasons” issuewas, in the wake of the First Step Act of 2018, no longer governed by the Sentencing Commission’s policy statements thatthe district court had relied upon here. The district court’s alternative rationale

— that the § 3553(a) factors weighed against release

— is not a persuasive basis for treating the legal error as harmless. Two unusual features of this case persuade us that the district court needs to take a fresh look at how those factors apply to Black. We vacate the denial and remand for reassessment of both steps of the compassionate

- release decision.
I. Factual and Procedural Background
Defendant Eural Black was a corrupt Chicago police officer. He took part in a scheme to take the drugs and weapons that he found during police work, to have known dealers sell them, and to share in the profits. In 2007, a jury convicted Black of conspiracies to engage in racketeering, drug distribution, and robbery, as well as two counts of using and carrying a firearm in furtherance of a crime of violence. See 18 U.S.C. § 924(c) (2006). The district court sentenced Black to a total of forty years in prison. The court imp osed concurrent ten

- year terms in prison on the conspiracy convictions and consecutive terms totaling thirty more years for the gun charges

— theNo. 20-2314 3

mandatory minimum for two such convictions at the time. Years later, in 2018 Congress passed the First Step Act, whichlowered significantly the mandatory minimums for convictions under § 924(c). If he were sentenced today for the same convictions, Black’s mandatory minimum sentence would be ten years. In 2020, Black moved for compassionate release under 18 U.S.C. § 3852(c)(1)(A), which was also amended in the FirstStep Act to allow federal prisoners to seek release from a district court without the endorsement of the Bureau of Prisons, a requirement that had limited compassionate release cases to just a few dozen per year nationwide. Black argued that his cancer and chemotherapy meant he faced an increased risk of severe illness and death from COVID

- 19. At the time of his motion, Black was being held at one of the federal correctional facilities in Butner, North C arolina, where the complex had nearly 650 active cases of the virus, and where one staff member and nineteen inmates had died. Black also contended that the sentencing factors under 18 U.S.C. § 3553(a) supported his release: He had no prior criminal histor y; specific deterrence was unnecessary because he was no longer a police officer and could not commit the same crimes again; and although he had served only one

third of his forty

- year sentence, thirty years of that term were based on mandatory minimums th at Congress had since reduced substantially. The government opposed Black’s motion. It agreed that his health presented an extraordinary and compelling reasonthat could legally support early release. The government argued, however, that the sentencing fa ctors

— the seriousness of Black’s crimes and the need for just punishment given that4 No. 20-2314

he had served only one

- third of his sentence

— weighed against it. The district court denied the motion for two reasons. First, it disagreed with the parties that Black had established an extraordinary and compelling reason for release. Applying the Sentencing Commission’s policy statement in Sentencing Guideline, U.S.S.G. § 1B1.13 Appl. Note 1, the court explained that Black had not shown that his cancer was terminal or chro nic or that he was at risk of contracting COVID

- 19 and thus unable to care for himself in prison. The COVID data cited by the parties, the court noted, reflected the infection and death rates for the entire Butner facility, not at the Butner Federal Medica l Center where Black was housed and which had few infections and no deaths. Second, even if Black had established a compelling reason for release, the district court said it would not modify his sentence because the § 3553(a) factors weighed against doing so. The court emphasized that Black had served only one

- third of his forty

- year sentence, so that compassionate release now would not promote respect for the law or provide just punishment. The court also noted that Black’s crimes were “very serious” and that he was receiving medical care in prison.
II. Analysis After Black appealed, he was transferred from the federal prison in North Carolina to a federal prison in West Virginia.That transfer did not render his motion moot. Black seeks release from any feder al prison based on the risk of contracting COVID

- 19 because social distancing is impossible in prison. Even at a different federal prison, his case remains live,though changing circumstances may make it more or less persuasive. See Lehn v. Holmes , 364 F.3 d 862, 871

– 72 (7th Cir.No. 20-2314 5

2004) (prisoner’s transfer to different facility did not render moot his request for injunctive relief against a system

- wide policy). On the merits, u nder 18 U.S.C. § 3582(c)(1)(A), after considering the § 3553(a) sentencing factor s, a district court may grant a defendant’s request to reduce his prison term if thereduction is supported by “extraordinary and compelling reasons” and consistent with any applicable Sentencing Commission’s policy statement. We review denials of such mot ions for abuse of discretion, se e Gunn , 980 F.3d at 1180, but a decision based on a mistake of law will be deemed an abuse of discretion. Koon v. United States , 518 U.S. 81, 100 (1996); United States v. Guerrero , 946 F.3d 983, 986 (7th Cir. 2020).
Black fi rst contends that the district court erred by deciding that his cancer and susceptibility to COVID

- 19 did notamount to an extraordinary and compelling reason for release. Because prostate cancer and the treatment he receives for it are listed by the Cent er s for Disease Control and Prevention as risk factors for COVID

- 19, and because the government conceded that he had shown extraordinary circumstances, Black argues, the court should not have relied on U.S.S.G. § 1B1.13 and its Application Note 1 to find oth erwise. Because of a peculiar circumstance stemming from the Sentencing Commission’s years

- long lack of a quorum, weagree with Black that the district court made a legal error. Before the First Step Act took effect in 2018, § 3582(c) required an incarcera ted person seeking compassionate release to obtain the endorsement of the Bureau of Prisons before seeking relief from a court. The statute also required that relief be “consistent with applicable policy statements issued by the Sentencing Commission.” See Gunn , 980 F.3d at 1179 –80.6 No. 20-2314

Since enactment of the First Step Act, however, the Sentencing Commission has been unable to update its applicable policy statements because it has lacked a quorum. See, e.g., United States v. Maumau , 993 F.3d 821, 834 –37 (10th Cir. 2021) (explaining this background in more detail).
In Gunn , we decided that under the First Step Act, the Commission’s earlier and still unchanged policy statements, which were written to fit a quite different statute, are no longer “applicable” and no longer limit the availability of compassionate release. The pre

- First Step Act language in § 1B1.13 and its Application Note 1 describe “extraordinary and compelling reasons” for granting motions for release in quite stringent terms. Those provisions app ly to motions filed by the Bureau of Prisons, and they are not “applicable,” to usethe statutory term, to a motion filed by the inmate as permitted under the First Step Act. See Gunn , 980 F.3d at 1180. The district court was not bound by the parties’ agre ement that Black had shown extraordinary and compelling reasons, but the court had broader discretion than it realized to decide whether Black’s condition was extraordinary and compelling. See id. (noting that district court’s discretion may be guided, but is not curtailed, by U.S.S.G. § 1B1.13). To be clear, the district court did not make a legal error by merely quoting and analyzing § 1B1.13. But there is quite understandably no indication in the court’s order in this case that it recognized before our decision in Gunn that it had discretion to go beyond § 1B1.13 in deciding Black’s motion. See United States v. Cooper , 996 F.3d 283, 287& n.4 (5th Cir. 2021) (noting that all seven circuits to have reached the question, including this circuit, have given same answer).No. 20-2314 7

That much is now settled law in this circuit. The district court offered an alternative ground for denial, that the 18U.S.C. § 3553(a) factors weigh against Black’s release. That alternative ground could well be a sufficient basis for denying relief. E.g., United States v. Saunders , 986 F.3d 1076, 1078 (7th Cir. 2021). In this case, however, we believe that the district court needs to take a fresh look at this alternative ground. Its explanation was terse and did not signal that it took into account other statutory changes that do not mandate relief here but may well be relevant and could reasonably be deemed to alter the weight of those factors. In evaluating the § 3553(a) factors, the district court relied principally on the fact that Black had served only thirteen years of his forty

- year sentence. In most cases we would have little trouble accepting that sensible and legally permissiblerationale. It supports a discretionary conclusion that just punishment and respect for the law require continued incarceration. In this case, however, it is clear that if Black were being sentenced for these same crimes today, his sentence could be substantially shorter.The First Step Act, in addition to changing the compassionate release law, included § 403, which amended sentences under 18 U.S.C. § 924(c). Congress lowered the mandatory sentences for Black’s firearm

- related crimes if they were c ommitted today. Compare 18 U.S.C. § 924(c) (2006) (mandating five

- year minimum for first firearm offense under the statute and twenty

- five

- year minimum for the second) with id . (2018) (mandating five

- year minimums for the first and second offense). If Blac k were sentenced today, he would face a mandatory minimum of ten years, not thirty years, for his firearm offenses. If, for the non

- firearm charges, he received (as he8 No. 20-2314

originally did) concurrent ten

- year prison terms running consecutive to the firearm sent ences, his total prison time mightnow be twenty years. Any such calculations involve speculation about how the court might have sentenced him (and even how he might have been charged) under a quite different set of sentencing provisions. But it is at leas t plausible that Black would have served closer to two

- thirds or even more of his total sentence under those circumstances. The government points out correctly that Congress did not make § 403 of the First Step Act retroactive. See United States v. Sparkma n , 973 F.3d 771, 774 (7th Cir. 2020) (explaining that § 403 applies retroactively only in limited circumstanceswhere firearm conviction occurred before the Act but sentence was imposed after the Act took effect). That feature of the First Step Act shows t hat the district court was not required to reduce Black’s sentence based on these changes. Congress’s policy choice not to make the changes to § 924(c) categoricallyretroactive does not imply that district courts may not consider those legislative changes when deciding individual motions for compassionate release like this one. To the contrary, the purpose of compassionate release under § 3582 is to allow for sentencing reductions when there is no statute affording such a reduction but where extraordinary and compelling reasons justify that relief. See Maumau , 993 F.3d at 837 (affirming grant of compassionate release for defendant originally sentenced to fifty

- five years with stacked convictions under § 924(c) where district court considered § 3553(a) facto rs); id

. at 838 (Tymkovich, C.J., concurring) (noting importance of discretionary, case

- by

- case consideration). As the Fourth Circuit explained in a similar case: “Not all defendants convicted under § 924(c) should receive new sentences, but courts should be empowered to relieve some defendants of thoseNo. 20-2314 9

sentences on a case by case basis.” United States v. McCoy, 981 F.3d 271, 287 (4th Cir. 2020) (affirming compassionate releases for several defendants originally sentenced with “stacked” § 924(c) convictions ). Other circuits have agreed. See United States v. Owens , 996 F.3d 7 55, 760–63 (6th Cir. 2021); United States v. Cooper , 996 F.3d at 288–89 & n.5 (5th Cir.); see also United States v. Rollins , No. 99

- CR -771- 1, 2021 WL 1020998 (N.D. Ill. 2021) (after remand, exercising discretion to modify extraordinarily long sentence that had been based on later

amended consecutive sentences under § 924(c)). We agree that such discretion is inherent in the compassionate release statute and process. Because the district court did not consider this statutorychange, which reflects a substantially different view by Congress about how to punish violations of § 924(c), we are not convinced the district court recognized the full extent of its discretion wh en it decided Black’s motion, particularly when this rationale was offered as an alternative ground after thecourt had erroneously held that Black was not even legally eligible for relief under § 3582(c). In discussing the § 3553(a) factors, the court mentioned only two factors. First, it called Black’s crimes “very serious.” We agree that they were. Upon remand, the district court might well decide that the sentences should not be reduced. Denial would not be required, though. The court also mentioned tha t Black was receiving medical care in prison. That factor is of course relevant in deciding how pressing the medical reasons for release might be, but it does not independently support continued confinement. Black’s treatment

— chemotherapy for his prostate cancer

— was precisely what made him more vulnerable to COVID

- 19 and thus was the basis of his request for relief

. VACATED AND REMANDED

.10 No. 20-2314

K IRSCH , Circuit Judge , dissenting. Eural Black was a dirty cop and part of a drug

- dealing enterprise: “The drug dealersin the enterprise provided the corrupt Chicago cops with information about the location of narcotics and money held by other drug dealers. The corrupt officers used that information to conduct traffic stops and home invasions and seize d rugs and money they found. The cops then sold the drugs with the help of the drug dealers, and the coconspirators divided the proceeds.” United States v. Haynes , 582 F.3d 686, 692

– 93 (7th Cir.), amended on denial of reh’g , 353 F. App’x 58 (7th Cir. 2009). I agree with the district court and the majority : “very serious” crimes. Black was sentenced to 40 year s in prison. He is 56 years old, and his expected release date is May 29, 2041. He seeks a nearly 20- year reduction of his sentence

. Under 18 U.S.C. § 35 82(c)(1)(A) , a district court may reduce a prisoner’s sentence if extraordinary and compelling circumstances warrant a reduced sentence and the 18 U.S.C. § 3553(a) factors favor early release. If the district court finds that either requirement weighs agai nst a reduction in sentence, the court may deny relief without addressing the other requirement. See, e.g. , United States v. Saunders , 986 F.3d 1076,1078 (7th Cir. 2021). The burden is on the prisoner to demonstrate that a reduction in sentence is warrant ed

. See United States v. Melgarejo , 830 F. App’x 776, 778 (7th Cir. 2020). Because I would hold that the district court did not abuse its discretion when it decided that the § 3553(a) factors do not favor early release, I respectfully dissent.
The district court’s analysis under § 3553(a), though brief, was reasonable. See United States v. Burnley , 834 F. App’x 270, 272 (7th Cir. 2021) (holding under the abuse of discretion standard, the district court’s “reasoning process” must beNo. 20-2314 11

“reasonable”). We recently emphasized that a district court need not include “a detailed, written explanation analyzing every § 3553 (a) factor;” rather, all that we require is “some statement of reasons” to allow for meaningful review. United States v. Sanders , 992 F.3d 583, 588 (7th Cir. 2021) (quotation omitted). That is what the district court provided here. The court concluded, amo ng other things, that Black had “served only about one

- third of his forty

- year sentence,” that his crimes were “very serious,” that a sentence reduction would not “promote respect for the law, afford adequate deterrence, or provide just punishment for his offenses [which included several 18 U.S.C. § 924(c) violations],” that “[c]ontinued incarceration is appropriate and necessary,” and that Black was receiving “substantial [medical] care” in prison. R. 730 at 3. The
court thus considered the nature and circ umstances of the offense and characteristics of the defendant ( § 3553(a)(1)); the need for the sentence imposed to promote respect for the law, to provide just punishment for Black’s offenses, and to afford adequate deterrence to criminal conduct ( § 3553(a )(2)(A) & (B)) ; 1 and the adequacy of Black’s medical care in prison (§ 3553(a)(2)(D)). The majority neither identifies a § 3553(a) factor that should have been considered but was not, nor finds error in the district court’s reasoning concerning the factor s that it addressed. I would affirm.

T he majority faults the district court for failing to consider Black’s sentencing disparity argument

— that if he were

1 The district court was correct to ignore Black’s frivolous specific deterrence argument that he could no longer commit the same crime because he was no longer a police officer. Black was a drug dealer. Maybe he would not have the same manner and means to commit his crime s if he was released early, but hardly would any other criminal.12 No. 20-2314

sentenced today, his § 924(c) convictions would carry lower mandatory minimum sentences due to § 403 of the First Step Act , possibly leading to a lower sentence. 2 The majorityacknowledges that the First Step Act’s § 924(c) sentencing reforms do not apply retroactively to Black, who was sentenced before the law was passed. Nonetheless , t he majority hold s that § 3582 and the compassionate release process afford district courts the discretion to relieve defendants , like Black, of legally imposed § 924(c) sentences based on the disparity created by the First Step Act. 3 Undoubtedly, the First Step Act ’s reforms create sentencing disparities between defendants like Black who were sentenced under the old § 924(c) mandatory minimums and defendants sentenced under the new § 924(c) mandatory minimums. But “applying new penalties to defendants not ye t sentenced, while withholding that change from defendants

2 Black’s argument before the district court , in full, was as follows: “Th e lengthy 40

- year sentence he is serving rests on two convictions under 18 U.S.C. § 924(c), one for five years and another for 25 years, both consecutive to each other and consecutive to the 10

- year sentence he received on the other counts. After the amendm ent of section 924(c), found in another section of the First Step Act, the firearms convictions, if he were sentenced today, would yield as little as 10 consecutive years, not 30 consecutive years. His current sentence does not represent a judgment that he is a dangerous person; it merely reflects a mandatory disposition, a harsh result that Congress realizes was excessive.” R. 720 at 12.

3 The majority’s holding is not limited to defendants who first show an extraordinary and compelling reason for a sentence reduction and then ask the district court to consider the non

- retroactive First Step Act amendments to § 924(c) in balancing the § 3553(a) factors to determine whether a sentence reduction is warranted. See United States v. Jarvis , — F.3d

— , 2021 WL 2253235, at *3 (6th Cir. June 3, 2021).No. 20-2314 13

already sentenced” has been described by the Supreme Court as “ordinary practice.” United States v. Owens , 996 F.3d 755, 764– 65 (6th Cir. 2021) (Thapar, J., dissenting) (alteration omitted) (quotin g Dorsey v. United States , 567 U.S. 260, 280 (2012)). This ordinary practice

— that naturally results in creating sentencing disparities —“ cannot also be an extraordinary and compelling reason” for a sentence reduction. Id

. at 765 ( quotation omitted ). I n my v iew , “ [a] sentencing disparity resulting from the First Step Act’s reforms is not

— as a matter of law

— an extraordinary and compelling reason for a reduction in sentence.” Id. at 764 (citing United States v. Tomes , 990 F.3d 500, 505 (6th Cir. 2021) , and United States v. Wills , 991 F.3d 720, 724 (6th Cir. 2021 )); see also United States v. Maumau , 993 F.3d 821, 838 (10th Cir. 2021) (Tymkovich, C.J., concurring) (“Indeed, the imposition of a sentence that was not only permissible but statutorily required at the time is neither an extraordinary nor a compelling reason to reduce that same sentence.”). To allow otherwise permits district courts to use the discretion afforded by “§ 3582(c)(1)(A) as an end run around Congress’s careful effort to limit the retroactivity of the First Step Act’s reforms.” Tomes , 990 F.3d at 505; see United States v. Jarvis , — F.3d — , 2021 WL 2253235, at *2 (6th Cir. June 3, 2021) (“If every defendant who received a longer sentence than the one he would receive today became eligible fo r compassionate release, the balance Congress struck would have come to naught.”). But “a court does not have discretion ... to circumvent a contrary statutory command.” See Owen s , 996 F.3d at 764 (Thapar, J., dissenting). Affording the district court such discretion undermines Congress’s express intent that the First Step Act reforms do not apply to defendants like Black. In short, Congress has rejected Black’s argument that the14 No. 20-2314

sentencing dispari ty created by the First Step Act is an extraordinary and compelling reason for a sentence reduction.
Furthermore , the majority’s holding is unnecessary in this

case because t he district court did account for Black’s § 924(c) argument and rejected it

. 4 The district court explicitly acknowledged the argument the majority contends it did not consider

— that Black’s “ lengthy sentence reflects in large parta mandatory disposition that Congress now ‘realizes was excessive.’” R. 730 at 2 ( quoting and c iting Def.’s Mot. at 12). Several aspects of the district court’s analysis imply that it considered but was not swayed by Black’s argument. After acknowledging Black’s argument, the district court focused its analysis on the nature and circumstances of Black’s offense s , which included § 924(c) convictions. We have upheld a similar implicit rejection of a prisoner’s argument in an analogous
context. See United States v. Carter , 830 F. App’x 783, 785 (7th Cir. 2020) (finding a district court’s analysis reasonable when it “acknowledged” prisoner’s prior crimes “no longer qualified as career

- offender predicates” but “nevertheless exercised his discretion by treating them as serious offenses that factored into ” its analysis). Moreover, the most natural inference drawn from t he district court explicitly acknowledging the length of Black’s sentence after acknowledging Black’s § 924(c) argument is that the district court rejected the

4 The majority assumes that because the district court did not explicitly reject Black’s § 924(c) ar gument, it did not consider the argument. But wehave never mandated that a district court must explicitly reject an argument when exercising its considerable discretion under § 3582(c)(1)(A). Doing so in this case adds a new requirement that is inconsiste nt with what we otherwise expect of district courts in evaluating compassionate release motions.No. 20-2314 15

hypothetical sentences that Black proposed and that the majority speculates on here. Although the district court could have said more (while not required to do so under the law), it said enough to make clear its consideration and rejection of Black’s § 924(c) argument. Finally, the majority’s analysis of our decision in United States v. Gunn portends trouble in future cases. 980 F.3d 1178 (7th Cir. 2020). Beginning with a point of agreement , Gunn held that § 1B1.13 of the Sentencing Guidelines is not “applicable” to a prisoner’s compassionate release motion under § 3582(c)(1)(A) . Accordingly, § 1B1.13 cannot “curtail” a district judge’s discretion when analyzing whether a prisoner ’s compassionate release motion presents extraordinary and compelling circumstances. Id. at 1180. Even so, the “substantive aspects” of § 1B1.13 and its A pplication N otes still “provide a working definition” of extraordinary and compelling circumstances under § 3582(c)(1)(A ) and can continue to inform the district court’s discretion

. Id. ; see United States v. Curtis , 846 F. App’x 411, 413 (7th Cir. 2021)

. The majority elides this distinction. It begins by announcing that the district court was “applying” § 1B1.13’s A pplication N ote 1 to Black’s compassionate release motion before summarily concluding that the district court did not “realize” it “had broader discretion.” This mode of analysis risks giving district courts the wrong impression, namely that mere mention of § 1B1.13 is legal error under Gunn . It is not. See, e.g. , Carter , 830 F. App’x at 784– 85. District courts can be guided by § 1B1.13 when considering the evidence, so long as they do not limit themselves based on it. See United States v. Lilly , 846 F. App’x 417, 419 (7th Cir. 2021)

. Moreover, the majority does not analyze whether the district court’s exercise of discretion was “constrained” or “guided by” § 1B1.13 , instead shifting our focus on review16 No. 20-2314

from what the district court did to what the district court thought (or did not think) it could do

. Because the district court accounted for each o f Black’s argument s, I would find that § 1B1.13 guided rather than constrained its analysis

. While the district court’s analysis of Black’s medical condition tracks the language of § 1B1.13’s A pplication N ote 1(A) , its analysis under the catchall provision was far broader than the specific circumstances identified under the A pplication N otes. The district court noted that neither party disputed Black’s medical condition was a risk factor for COVID

- 19, but found that two other considerations

— the conditions a t Black’s prison facility when the petition was filed, and the BOP’s efforts to manage COVID

- 19 response in prisons

— weighed against finding extraordinary and compellin g circumstances in Black’s case. Those two considerations are nowhere found in § 1B1.13 o r its A pplication N otes. Cf. Carter , 830 F. App’x at 785 (holding district court did not abuse its discretion when it “adequately addressed U.S.S.G. § 1B1.13 , acknowledging [prisoner’s] significant medical conditions” but finding those offset by a number o fother factors including prisoner’ age, prison’s success “controlling the COVID

- 19 outbreak,” and that prisoner’s wife was cared for). I respectfully dissent.