United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted February 23, 2021*

Decided April 30, 2021

Before

FRANK H. EASTERBROOK, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

THOMAS L. KIRSCH II, Circuit Judge

No. 20-2683

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

GIOVONNI THOMAS,

Defendant-Appellant.

Appeal from the United States District 

Court for the Central District of Illinois.

No. 10-cr-30046

Richard Mills,

Judge.

O R D E R

Giovonni Thomas, an inmate at the Federal Correctional Institution in Elkton,

Ohio (FCI Elkton), moved for compassionate release under the First Step Act. See 18 

U.S.C. § 3582(c)(1)(A). On appeal he argues that FCI Elkton was unable to control a 

COVID-19 outbreak last year, and because he carries the sickle-cell gene, he is

* 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).

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
No. 20-2683 Page 2

particularly vulnerable to the virus. He also argues that he would be subject to a lower 

sentence today than when he was originally sentenced. Because the district court 

adequately assessed these concerns and reasonably found that Thomas did not qualify 

for release, we affirm.

Thomas pleaded guilty to possessing cocaine with intent to distribute, 21 U.S.C. 

§ 841(b)(1)(C); possessing a firearm to further that crime, 18 U.S.C. § 924(c); and 

possessing a firearm as a felon, 18 U.S.C. § 922(g). In 2011, Thomas was sentenced to a 

prison term of 192 months, followed by a five-year term of supervised release. Thomas

is scheduled for release in 2024. 

Last year, after exhausting his administrative remedies, Thomas asked for 

compassionate release. Thomas filed a motion pro se, and his motion was later 

supplemented after the court appointed counsel for him. The district court then 

terminated his pro se motion but considered his supplemental filing, which raised two 

issues relating to the COVID-19 pandemic. First, Thomas cited, and the court accepted,

information about FCI Elkton’s COVID-19 infection rates. At the time of Thomas’s 

supplemental motion, 240 inmates and seven staff members had active cases.

Cumulatively, 815 of FCI Elkton’s 2,247 inmates had tested positive, and nine inmates 

had died of the virus. By the time the court ruled on Thomas’s motion, the cumulative 

number of inmate cases had increased to 982. Based on conditions like these, the U.S. 

Attorney General issued a memo declaring an emergency at the Bureau of Prisons

(BOP) and allowing the BOP Director to consider transferring inmates to home 

confinement. See Office of Att’y Gen., Memorandum for Director of Bureau of Prisons, 

Increasing Use of Home Confinement at Institutions Most Affected by COVID-19 (Apr. 

3, 2020), https://www.justice.gov/file/1266661/download. Despite this memo, Thomas 

argued that FCI Elkton administrators were not transferring medically vulnerable 

inmates to home confinement.

Second, Thomas cited personal health information. Thomas argued that he has 

the gene for sickle cell anemia and once had the disease itself. The Centers for Disease 

Control (CDC), he said, has found that persons with the disease are especially 

vulnerable to COVID-19. The government responded that Thomas does not currently 

have the disease, just the sickle cell trait, which Thomas conceded the CDC does not list 

as a risk factor for the virus. The medical literature that the government cited explained

that the disease and the trait are not synonymous and that people with the trait 

typically live normal lives. Thomas replied with other evidence suggesting that, 

independent of the virus, those with the trait are susceptible to sudden respiratory
No. 20-2683 Page 3

problems. Because COVID-19 affects respiration, Thomas contended that he remains 

vulnerable.

In addition to these pandemic-related arguments, Thomas raised that he would 

no longer be incarcerated if he were sentenced after the Supreme Court’s decision in 

Johnson v. United States, 576 U.S. 591 (2015), which altered who qualifies for a career 

offender designation. Therefore, as part of his compassionate release motion, Thomas

urged the district court to consider that because he would not be designated a career 

offender if sentenced today under Johnson, he would now be subject to a lower 

guidelines range than the one he originally faced when sentenced in 2011.

The district court denied Thomas’s motion. It correctly noted that under

§ 3582(c)(1)(A), a court may reduce a sentence for “extraordinary and compelling”

reasons. But, in rejecting Thomas’s pandemic-related arguments, it observed that “the 

mere existence of COVID-19 in society and possibility that it may spread to a particular 

prison alone cannot independently justify compassionate release.” It focused on 

whether the prison at which the movant is held is experiencing an outbreak, whether 

the prison is unable to control it, and whether the movant is susceptible to the virus.

And for Thomas, the district court acknowledged that FCI Elkton had an outbreak that 

was not well controlled, but Thomas did not face heightened susceptibility from it. 

People like Thomas “with sickle cell trait can experience serious health issues,” the 

court said, but “most ... live normal lives and experience no symptoms,” which

“appear[ed] to be the case with the Defendant.”

The court likewise rejected Thomas’s sentencing-disparity argument. In doing so, 

the court expressed it was “mindful that, under the Sentencing Guidelines now in 

effect, the Defendant would have faced a lower guideline range and would very likely 

be out of prison by now.” The court noted that when Thomas was sentenced, his 

guidelines range was 262 to 327 months, but if he were sentenced today without the 

career offender designation that applied at the time, his range would be 160 to 185 

months. Nevertheless, the court did not consider this “so ‘extraordinary and 

compelling’ as to warrant compassionate release.” 

On appeal, Thomas argues that the district court did not adequately consider his 

arguments for compassionate release. We review the court’s decision for an abuse of 

discretion. See United States v. Saunders, 986 F.3d 1076, 1078 (7th Cir. 2021). We grant 

deference when it reasonably addressed the arguments for why the defendant satisfies

§ 3582(c)(1)(A)’s standard of “extraordinary and compelling.” See United States v. 
No. 20-2683 Page 4

Vasquez-Abarca, 946 F.3d 990, 993 (7th Cir. 2020) (citing Rita v. United States, 551 U.S. 338, 

356 (2007)).

The district court did not abuse its discretion in denying Thomas’s motion. The 

district court permissibly exercised its discretion to assess Thomas’s circumstances 

holistically, considering both whether FCI Elkton faced an uncontrolled outbreak and 

whether Thomas personally faced an elevated individualized risk of complications. The 

court reasonably concluded that Thomas failed to establish that his particular health 

trait—his sickle cell gene—was an extraordinary and compelling reason to justify relief.

Thomas conceded that this trait is not one that the CDC says raises his risk of serious 

complications from COVID-19. The district court thus permissibly concluded that, 

despite the outbreak, Thomas was not eligible for release.

Thomas replies that we should vacate the ruling because the court wrongly 

thought that, at the time of the ruling, COVID-19 infections at FCI Elkton had dropped 

significantly. We disagree for two reasons. First, although the court did note in its 

ruling a recent drop in cases, it based this observation on data from the BOP’s website, 

which indicated that only two inmates and two staff members were infected at the time. 

Thomas gives no persuasive reason to believe that the website was wrong, and Thomas 

notably cited data from the same website in support of his motion. Second, even if we 

assume there was some data error when the court reviewed the website, any error 

would have been inconsequential. The district court accepted that, during Thomas’s 

briefing on the motion, the outbreak was serious and uncontained. Indeed, the court 

remarked that FCI Elkton experienced “perhaps one of the worst outbreaks of any BOP 

institution” and that “over the course of at least two months, FCI Elkton was unable to 

successfully contain the outbreak.” Yet it denied the motion anyway—because Thomas

was not especially vulnerable to serious illness from the outbreak. 

Thomas also appears to argue that the district court incorrectly determined that

his post-Johnson sentence disparity was not an extraordinary and compelling reason for 

release. The court agreed with Thomas that “the change in law [was] a factor the Court 

[could] consider for purposes of the motion” as part of the totality of circumstances 

Thomas raised, but it nonetheless concluded Thomas’s sentence disparity did not justify 

compassionate release. We cannot say this was error. As Thomas himself recognized, 

Johnson’s changes to the career offender definition were not made retroactive to 

previously sentenced defendants like Thomas, and therefore, the district court was not 

required to grant Thomas’s motion based on Johnson. Cf. United States v. Fisher, 840 F. 

App’x 881, 883 (7th Cir. 2021).
No. 20-2683 Page 5

Lastly, Thomas argues that the district court should have considered the 

arguments in his initial pro se motion, namely, that his continued imprisonment is

inconsistent with the 18 U.S.C. § 3553(a) sentencing factors because his successful 

rehabilitation while in prison justifies releasing him to home confinement. Like Thomas, 

we are not convinced that the district court considered his pro se motion. On the one 

hand, the district court terminated that motion and stated that only Thomas’s 

supplemental motion filed by counsel was before it. On the other hand, the

supplemental motion the court considered noted that Thomas’s pro se motion was 

“sufficiently detailed and, therefore, incorporated and supplemented herein.”

Regardless, even if the district court erred in failing to independently consider 

Thomas’s pro se motion, such error would be harmless. Not only was information 

about Thomas’s rehabilitation included in the exhibit Thomas’s counsel attached to the 

supplemental motion, but the district court was not required to conduct the § 3553(a) 

inquiry and consider Thomas’s rehabilitation when it made clear that Thomas had not 

met the condition precedent of establishing that extraordinary and compelling reasons 

warranted his release. See United States v. Carter, No. 20-2409, 2021 WL 1311169, at *1 

(7th Cir. Apr. 8, 2021); United States v. Young, 834 F. App’x 268, 270 (7th Cir. 2021). In 

any event, the district court lacked authority to change Thomas’s place of imprisonment

to home confinement; that decision rests exclusively with the BOP. See Saunders, 986 

F.3d at 1078 (district court does not err by declining to review the merits of a request 

that it has no power to grant).

We note that in its decision, the district court cited the Sentencing Commission’s 

policy statement and Application Notes in U.S.S.G. § 1B1.13. To the extent Thomas 

argues this was inappropriate based on our decision in United States v. Gunn, 980 F.3d 

1178 (7th Cir. 2020), his argument fails because the district court did not consider itself 

constrained by § 1B1.13. It merely explained that although § 1B1.13 has not been 

updated to reflect that inmates may now move for compassionate release on their own, 

courts have still turned to § 1B1.13 for “guidance” despite the lack of an applicable 

policy statement since the First Step Act’s passage. Nothing about this is inconsistent 

with Gunn. The Sentencing Commission’s analysis in § 1B1.13 and its Application Notes 

may continue to inform the district court’s discretion “without being conclusive.” See 

Gunn, 980 F.3d at 1180. Moreover, the district court agreed with Thomas that it had the 

authority to consider the worsening global pandemic combined with the other 

circumstances Thomas raised—circumstances not expressly identified in § 1B1.13—in 

deciding Thomas’s motion. The district court properly used its own discretion to 

determine whether “extraordinary and compelling” reasons existed in Thomas’s case. 
No. 20-2683 Page 6

As a final matter, after the district court issued its decision and Thomas filed a 

notice of appeal, Thomas filed multiple motions for reconsideration in the district court. 

The district court correctly refrained from ruling on Thomas’s reconsideration motions. 

See Blue Cross & Blue Shield Ass’n v. Am. Express Co., 467 F.3d 634, 637 (7th Cir. 2006) (a 

timely notice of appeal “deprives the district court of jurisdiction over the issues 

presented on the appeal”). On appeal, Thomas asks us to consider the newly discovered 

material cited in these motions—including, among other things, that his alleged obesity

places him at an increased risk of COVID-19 complications. We decline to do so. It is 

well established that we cannot consider new information for the first time on appeal. 

See United States v. McDonald, 981 F.3d 579, 581 (7th Cir. 2020). 

AFFIRMED