# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted June 10, 2022 *

Decided June 16, 2022

Before

DIANE S. SYKES, Chief Judge

DIANE P. WOOD, Circuit Judge

MICHAEL Y. SCUDDER, Circuit Judge

No. 21-1600

UNITED STATES OF AMERICA, Plaintiff-Appellee

,

v

.

J OSEPH MILLER, Defendant-Appellant

. Appeal from the United States District Court for the Northern District of Indiana, Hammond Division.

No. 2:12 CR 10

J ames T. Moody, J udge

.

O R D E R

Joseph Miller, a federal prisoner with chronic health conditions, appeals the denial of his motion for compassionate release. See 18 U.S.C. § 3582(c)(1)(A)(i). The district judge concluded that Miller did no t demonstrate that a heightened risk of

* We agreed to decide the case without oral argument because the briefs and the record adequately present the facts and le gal arguments, and oral argument would not significantly aid the court. F ED

. R. A PP

. P. 34(a)(2)(C). NONPRECEDENTIAL DISPOSITION To be cited onl y in accordance with F ED

. R. A PP

. P. 32.1No. 21-1600 Page 2

complications from COVID-19 justified his early release. Because the judge did not abuse his discretion, we affirm.

Miller robbed a bank in Hammond, Indiana, in 2011. At that time he had six prior felony convictions and was on supervis ed release as part of his sentence for a previous bank robbery. A jury found Miller guilty of the Hammond robbery, see id. § 2113(a), and the judge imposed a prison te rm of 225 months, within the applicable range under the Sentencing Guidelines. Mill er is housed at the Federal Correctional Institution in Greenfield, Illinois, with a projected release date in 2028.

In September 2020 Miller filed a pro se motion for compassionate release

, later supplemented by appointed counsel, based on his age (now 56), obesity, diabetes, high cholesterol, a liver ailment, and what he described as “contact with tuberculosis.” See § 3582(c)(1)(A)(i). He had contracted and re covered from COVID-19 in December 2020, but he maintained that his poor health an d inadequate preventative measures at the prison put him at risk of rein fection and serious illness.

The judge denied the mo tion in March 2021, using the policy statement in U.S.S.G. § 1B1.13 “as a guide.” See § 3582(c)(1)(A) (instructing courts to consult “applicable policy statements”) . Acknowledging that Miller’s medical conditions placed him at increased risk of severe illness fr om COVID-19, the judge found that the virus was “effectively controlled” at the prison because there were no active inmate cases and no reason to believe that staff members co ntinued to bring the virus into the prison. Under these circumstances, the judge conclu ded, Miller’s risk of reinfection did not create an “extraordinary and compelling” ju stification for compassionate release. The judge did not consider the sentencing factors under 18 U.S.C. § 3553(a). Miller appealed.

We review the denial of a motion fo r compassionate release for abuse of discretion. See United States v. Kurzynowski , 17 F.4th 756, 759 (7th Cir. 2021). Miller first argues that the judge inappropriately relied on § 1B1.13. See United States v. Gunn

, 980 F.3d 1178, 1180 (7th Cir. 2020). But although that policy statement has not been applicable since the compassionate-release statute was updated, here the judge recognized its nonbinding nature and co nsulted it only “as a guide,” which is permitted. Id .; United States v. Rucker , 27 F.4th 560, 562 (7th Cir. 2022).

Miller next contends that the judge erre d by failing to consider the combined effects of Miller’s health conditions on his susceptibility to COVID-19. But the judge acted within his discretion in concluding th at Miller did not show a sufficient risk ofNo. 21-1600 Page 3

contracting the virus again and suffering it s worst outcomes. The judge assumed that Miller’s medical comorbidities “place[d] him at an increase[d] risk of severe illness were he to contract COVID-19 for a second time ,” but after discussing Greenville’s response to the pandemic, concluded that this risk was not extraordinary based on the prison’s adequate management of the virus. Miller di d not present any evidence that contradicts this assessment. The judge reasonably conclu ded that Miller did not meet his burden to establish an extraordinary and compelling reason for release. See United States v. Barbee

, 25 F.4th 531, 532 (7th Cir. 2022). And to the exte nt that Miller challenges the conditions and medical care at Greenfield more generally, a compassionate-release motion is not the right vehicle. See United States v. Bridgewater , 995 F.3d 591, 599 (7th Cir. 2021).

Finally, Miller contends that the ju dge neglected to discuss the § 3553(a) sentencing factors, particularly his rehab ilitative progress while imprisoned. But the judge permissibly declined to discuss the factors after concluding that Miller lacked a reason for release. A motion for compassionate release involves a two-step inquiry: first, whether the prisoner presented an extraordin ary and compelling reason for release, and second, whether release would be cons istent with the § 3553(a) factors. See Kurzynowski

, 17 F.4th at 759. Because Miller fell short at th e first step, the judge did not need to address the second. See United States v. Ugbah , 4 F.4th 595, 598 (7th Cir. 2021).

AFFIRMED