United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted February 3, 2022*

Decided February 7, 2022 

Before

MICHAEL S. KANNE, Circuit Judge

DIANE P. WOOD, Circuit Judge

CANDACE JACKSON-AKIWUMI, Circuit Judge

No. 21-2606 

UNITED STATES OF AMERICA,

Plaintiff-Appellee, 

v. 

JORGE CONSUEGRA-ROJAS, 

Defendant-Appellant.

Appeal from the United States District 

Court for the Western District of Wisconsin.

No. 18-cr-28-jdp

James D. Peterson, 

Chief Judge.

O R D E R

Jorge Consuegra-Rojas appeals the denial of his motion for compassionate 

release under 18 U.S.C. § 3582(c). Because an asserted error with respect to the original 

* Appellee is not participating in this appeal. After examining the appellant’s 

brief and the record, we have concluded that the case is appropriate for summary 

disposition. See FED. R. APP. P. 34(a)(2)(C).

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with FED. R. APP. P. 32.1
No. 21-2606 Page 2 

sentence cannot provide an “extraordinary and compelling” reason for compassionate 

release, we affirm. 

Rojas was sentenced in August 2018 to 60 months’ imprisonment for possession 

of 15 or more unauthorized “access devices” and conspiracy to commit access-device 

fraud. See 18 U.S.C. § 1029(a)(3), (b)(2). Access devices—here, 1,679 stolen credit card

numbers—are simply means of obtaining or transferring money or anything of value. 

See 18 U.S.C. § 1029(e)(1). His total offense level under U.S.S.G. § 2B1.1, which is based 

on the greater of the actual or intended monetary loss associated with the crime, 

included a 14-level increase because of Application Note 3(F)(i), which sets the intended 

unauthorized charges at a minimum of $500 per access device. At sentencing, the 

district court considered, but ultimately rejected, Rojas’s argument that Application 

Note 3(F)(i) was unfair as applied to his case and that the unfairness warranted a 

downward variance from the guidelines range of 51 to 63 months’ imprisonment. Rojas 

did not appeal his conviction or sentence, nor did he bring a motion under 28 U.S.C. 

§ 2255. 

Less than three years after sentencing, the Sixth Circuit invalidated Application 

Note 3(F)(i). United States v. Riccardi, 989 F.3d 476 (6th Cir. 2021). Relying on a recent 

Supreme Court decision narrowing deference to administrative agencies’ regulatory 

interpretations, Kisor v. Wilkie, 139 S. Ct. 2400 (2019), the Riccardi court concluded that 

Application Note 3(F)(i) conflicts with U.S.S.G. § 2B1.1 and that, “if the Commission 

seeks to keep individuals behind bars for longer periods of time based on this type of 

‘fictional’ loss amount, this substantive policy decision belongs in the guidelines, not in 

the commentary.” Riccardi, 989 F.3d at 487. Based on its own interpretation of the 

guideline, the court determined that it was error to apply the $500 minimum to increase 

the defendant’s offense level. Id. at 489. 

Rojas then moved for compassionate release, arguing that the Riccardi decision

warranted his immediate release from prison. He contended that he would receive a 

shorter prison sentence if sentenced today, resulting in a disparity among similar 

defendants that provided an “extraordinary and compelling” reason for his early 

release. See 18 U.S.C. § 3582(c)(1)(A)(i).

The district court denied Rojas’s motion for two reasons: the Sixth Circuit case

was not binding, and Rojas’s 60-month sentence was appropriate even apart from the

application note. Rojas appealed. We review the denial of his motion for an abuse of 

discretion. See United States v. Saunders, 986 F.3d 1076, 1078 (7th Cir. 2021). 
No. 21-2606 Page 3 

Rojas principally contends, as he did in the district court, that the Sixth Circuit 

decision discarding the $500 per device minimum created a sentencing disparity that

warrants his early release. The argument lacks merit.

First, Rojas fails to engage with the district court’s statement that he would have 

received the same sentence even without the application note’s $500 per device 

minimum. Acknowledging that the application note “was not, by itself, a good 

indication of [Rojas’s] culpability,” the court explained that it had sentenced Rojas to 60 

months because of his deep involvement in the criminal scheme and his two prior 

offenses for the same type of activity. Earlier punishments had not deterred him.

Because Rojas would have received the same sentence with or without the application 

note, the note did not negatively affect him. 

Second, the district court was bound to apply the law of this circuit, and we have 

not found Application Note 3(F)(i) to be an unreasonable interpretation of U.S.S.G. 

§ 2B1.1. Indeed, we repeatedly have upheld sentences based on guidelines ranges 

calculated with reference to that application note. See United States v. Popovski, 872 F.3d 

552, 554 (7th Cir. 2017); United States v. Moore, 788 F.3d 693, 695 (7th Cir. 2015). It is 

worth adding that we have not commented on this application note since Kisor. If 

warranted, we would be under no obligation to accept the application note as a 

reasonable interpretation of the guideline. See United States v. Goodwin, 717 F.3d 511, 519 

(7th Cir. 2013) (“[W]e do not defer to interpretations that are ‘plainly erroneous or 

inconsistent’ with the relevant Guideline, federal law, or the Constitution.”). And in any 

event, Rojas has no basis for assuming that this court would conclude, as the Sixth 

Circuit did, that the application note conflicts with the guideline. 

Third, to the extent that Rojas challenges the validity of Application Note 3(F)(i) 

either generally or as applied to him, a compassionate-release motion is not the 

appropriate vehicle for those arguments. Rather than “circumvent the normal process 

for challenging potential sentencing errors,” a defendant must raise any challenge to his 

original sentence in a direct appeal or collaterally through 28 U.S.C. § 2255, not by way 

of a compassionate-release motion. United States v. Martin, 21 F.4th 944, 946 (7th Cir. 

2021). Rojas had the opportunity to challenge the application note on direct appeal or in 

a collateral attack, but he did not. Even if he did not waive the challenge by failing to 

raise it at those stages, the potential sentencing error cannot be his extraordinary and 

compelling reason for compassionate release. Id.; United States v. Thacker, 4 F.4th 569, 

574 (7th Cir. 2021). 
No. 21-2606 Page 4 

This principle obviates the need for us to consider Rojas’s argument that the 

district court’s exercise of discretion was erroneous because it did not adequately 

consider his rehabilitative efforts or the sentencing factors under 18 U.S.C. § 3553(a). His 

motion failed at the first step of the two-step inquiry—lack of an extraordinary and 

compelling reason—and “[o]ne good reason is enough to deny a compassionate release 

motion.” United States v. Kurzynowski, 17 F.4th 756, 759–60 (7th Cir. 2021) (internal 

citation omitted). 

AFFIRMED