### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 20-2361 U NITED S TATES OF A MERICA , Plaintiff -Appell ee ,
v. L YNARD J OINER , Defendant -Appell ant

.

____________________ Appeal from the United States District Court for the Central District of Illinois

. No. 16

- cr - 30016 — Sue E. Myerscough , Judge

.

____________________ A RGUED J ANUARY 26, 2021

— D ECIDED F EBRUARY 23, 2021

____________________ Before S YKES , Chief Judge , and E ASTERBROOK and K IRSCH , Circuit Judges

. K IRSCH , Circuit Judge

. Lynard Joiner appeals the district court’s denial of his motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A). On appeal, he raises one issue:whether the district court procedurally erred by not specific ally addressing his argument that his skin color “elevates his risk from COVID

- 19.” In the district court, Joiner supported this contention by citing to three articles discussing2 No. 20-2361disparities in health care outcomes based on race. Those articles, however, pointed to a multitude of societal factors that are not relevant to Joiner’s individual situation in federal prison. Extrapolating direct relevance to Joiner’s situation requires leaps of logic that do not necessarily follow from the broad societal information he presented. Without any factual basis tying these broader societal concerns to Joiner’s individual situation, the district court was not required to address the argument. Thus, because the district court did not procedurally err, we affirm. I. Joine r is a 31

- year - old federal prisoner serving an eight

year sentence at U.S. Penitentiary Marion for possession of cocaine base with the intent to distribute. See 21 U.S.C. § 841(a)(1), (b)(1)(C). In July 2020, amid the COVID

- 19 pandemic, Joiner moved for co mpassionate release under 18 U.S.C. § 3582(c)(1)(A). He offered three “extraordinary and compelling reasons,” § 3582(c)(1)(A)(i), for release: self

reported hypertension, a body mass index of 28.9 (the “overweight” category), and his skin color (“brown”), which he says is “seen as ‘black.’” For his third point, he argued that Black Americans have disproportionately suffered from COVID

- 19, not because of “weak biology,” but because “so

ciety has put them in worse positions.” He cited an article from the Cent ers for Disease Control and Prevention to ar

gue that Black people in the United States face a higher risk of hospitalization and death from COVID

- 19. He also relied on two other articles to contend that, even though skin color should not affect health out comes from infectious diseases, “our society” delivers subpar health care to “people withNo. 20-2361 3 black skin,” even when controlling for class, comorbidities, and access to health insurance.The government opposed the motion. It argued that Joiner failed to exhaust his administrative remedies. See § 3582(c)(1)(A). (It does not press this argument on appeal.) On the merits, it contended that Joiner’s medical records did not contain evidence of hypertension and, according to the CDC, his body mass index did not place him at “high risk” for severe COVID

- 19 complications. The government did not respond to Joiner’s society

- wide racial disparities argument. The district court ruled that Joiner did not present ex

traordinary and compelling reasons for release. While ob

serving that Joiner’s prison had thirteen confirmed COVID

19 cases, it concluded that Joiner did not show that he was atan elevated risk for severe complications from the virus because he was relatively young, he had no documented hypertension, and his body mass index was not an increased risk factor, per CDC guidance. The court did not comment on Joiner’s argument that based on societal factors BlackAmericans have disproportionately been affected by the virus. II. Under 18 U.S.C. § 3582(c)(1)(A)(i), a district court may grant an inmate’s request for early release based on “ex

traordinary and compelling reasons,” provided that the in

mate first submits a request to the Bureau of Prisons. Unit

- ed States v. Gunn, 980 F.3d 1178, 1179, 1181 (7th Cir. 2020). Theexhaustion requirement is mandatory when properly invoked. United States v. Sanford, 986 F.3d 779, 780 (7th Cir. 2021). But because the requirement is non

-jurisdictional, the4 No. 20-2361 government loses the benefit of this affirmative defense when, as here, it does not press the defense on appeal. Id. at 782. Joiner maintains that the district court procedurally erred when it silently passed over his third contention for re

lease

— that his skin color elevated his risk of complications from COVID

- 19. For pur poses of this appeal, the parties have assumed that we review this contention of procedural error under the same standard that we use when a party as

serts a procedural error in sentencing. See United States v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005)

. 1 Cunningham requires a court to address each of the movant’s principal arguments, unless they are “too weak to require discussion” or “without factual foundation.” United States v.Rosales, 813 F.3d 634, 637 (7th Cir. 2016). Under this standard, to re -q uire discussion the arguments must be “individualized to the facts” of the movant’s case. See United States v. Hancock, 825 F.3d 340, 344 (7th Cir. 2016). Under Cunningham, the district court did not procedur

ally err in silently passing over Joiner’s argument. First, Joiner contended, citing a CDC article, that COVID

- 19 has caused “a disproportionate burden of illness and death among racial and ethnic minority groups.” That dispropor

tionate burden, the article states, may stem from societal living and working conditions among racial and ethnic mi

nority groups, including that minorities may more com

1 We do not decide that we must always review claims of procedural error from denials of motions for compassionate release under the same standard as claims of procedural error at sentencing. See, e.g., Gunn, 980F.3d at 1181 (suggesting deferential review of district court orders deciding motions for compassionate release).No. 20-2361 5 monly live in densely populated areas, farther from medical care, and work in essential businesses that have remained open during the pandemic. This article, w hich discusses the disparity in terms of societal living and working conditions among minority groups, does not provide a factual founda

tion for the argument that Black federal prisoners are at higher risk of severe COVID

- 19 complications than prisoners o f other races. As such, the court did not need to address Joiner’s contention. Second, Joiner did not submit evidence that his per

ceived skin color renders him especially vulnerable to the virus in prison or at Marion. He concedes that his skin color doe s not make him more biologically susceptible to COVID

19. Rather, he assumes that the community data that he citesabout racial disparities in health care, infections, hospitalization, and deaths from COVID

- 19 are mirrored at Marion. But in the district co urt he offered no evidence to support this assumption. Likewise, on appeal, he could not point to any evidence or data on COVID

- 19 susceptibility or outcomedisparities in prison based on race. Broadly, Joiner’s assumption ignores that variables in the community that might affect COVID

- 19 susceptibility and outcomes may not vary in prison. In prison, inmates generally live and work in the same environment, and they receive health care in the same setting. Moreover, medical providers to federal prisons are
s ubject to legal constraints and obligations that may not apply to providers in the community. None of Joiner’s materials acknowledged or discussed these differences. Withoutany data or a factual foundation connecting generalized societal disparities in health care susceptibility or outcome to Joiner’s individualized circumstances at Marion (or even6 No. 20-2361 federal prisons generally), the district court was not required to discuss Joiner’s racial disparity argument. In reply, Joiner argues that prison health care is not en

tirely independent of society. Prisons hire workers from the community, and from there, he argues, they may bring to the prison their racial biases in delivering care. But, as dis

cussed, by relying on generalized evidence of broad societal concer ns, Joiner did not provide the court with any basis to make that determination, and therefore, the district court was not required to address this argument. Nothing prevented the district court from pointing out that Joiner did not furnish evidence connecting his societal disparities arguments to his individual situation in prison. But such statement was not needed “for meaningful appel

late review.” Gall v. United States, 552 U.S. 38, 50 (2007). By discussing the two issues that Joiner did develop (his se lf

reported hypertension and body mass index), the court adequately explained why Joiner did not present extraordi n ary and compelling reasons for release. See United States v. Castaldi, 743 F.3d 589, 595 (7th Cir. 2014) (“[T]he district judge made his thinking clear enough.”). Finally, Joiner argues that the government has waived its substantive arguments relating to how racial disparities in health care should be interpreted in this case. He correctly observes that in the district court the government did not counter Joiner’s racial

- disparity argument. But if the district court did not need to respond to the argument as factually unfounded, neither did the government. In any event, the government responded to Joiner’s procedural challenge at its earlies t opportunity

— on appeal where Joiner first raised it. Cf. Prop. & Cas. Ins. v. Cent. Nat’l Ins. Co. of Omaha, 936No. 20-2361 7 F.2d 319, 323 n.7 (7th Cir. 1991) (no waiver when party hadfirst opportunity to brief an issue on appeal). Thus, the government did not waive its argument. AFFIRMED.