### In t he 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 21-2514
U NITED S TATES OF A MERICA , Plaintiff -Appellee ,

v.

D AVID N EWTON , Defendant -Appellant

.

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

. No. 1:08 -cr- 00875 -1 — Elaine E. Bucklo , Judge

.

____________________
A RGUED A PRIL 20, 2022

— D ECIDED J UNE 15, 2022

____________________

Before W OOD , H AMILTON , and K IRSCH , Circuit Judges

. K IRSCH , Circuit Judge

. In United States v. Broadfield , 5 F.4th 801 (7th Cir. 2021) and United States v. Ugbah , 4 F.4th 595 (7th Cir. 2021) , we left the door open for prisoners seeking compassionate release under 18 U.S.C. § 3582(c)(1)(A) based on the COVID

- 19 pandemic to show they cannot receive or benefit from vaccines. David Newton believes himself bereft of this opportunity after we remanded his case last year before Broadfield and Ugbah were decided

. Notwithstanding the2 No. 21-2514

i rregular procedure Newton faced below, not once has he explained to us how he would satisfy the Broadfield -Ugbah safety valve , so we affirm the district court’s finding that Newton did not present an extraordinary and compelling reason for early release

. S eeking a reduced sentence for his bank robbery conviction, Newton filed a pro se motion in May 2020 for compassionate release under § 3582(c)(1)

. For Newton, a federal prisoner under 70, this relief requires a finding that “extraordinary and compelling rea sons warrant such a reduction.” Id. § 3582(c)(1)(A)(i). He submitted that his medical condition

— asthma and its immunosuppressing corticosteroid treatment

— put him at risk for serious illness if he contracted COVID

- 19. The district court appointed Newton cou nsel, who added hypertension to the list of conditions putting Newton at risk. Finding it not clear that Newton would face a significantly reduced risk from COVID -19 outside prison than he would i nside , the district court denied the motion . We remanded for reasons not pertinent to this second appeal. United States v. Newton , 996 F.3d 485 (7th Cir. 2021). Two days after we issued Newton I , we decided both Broadfield and Ugbah , announcing that, “for the vast majority of prisoners, the availability of a vaccine makes it impossible to conclude that the risk of COVID

- 19 is an ‘extraordinary and compelling’ reason for immediate release.” Broadfield , 5 F.4th at 803. But we did not r ender vaccination the end all be all of compassionate release motions. Broadfield and Ugbah explicitly “included a safety valve for prisoners to show that they are unable to receive or benefit from a vaccine, or that they remain vulnerable to severe infect ion, notwithstanding the vaccine.” United States v. Rucker , 27 F.4th 560, 563 (7th Cir.No. 2 1-2514 3

2022). That safety valve permits federal prisoners to make motions with new ly proffered individualized facts based on concerns like Omicron breakthrough cases, long COVID, or the relative inefficacy of vaccines for certain vulnerable prison populations, like the immunocompromised. See id. ; United States v. Barbee , 2 5 F.4th 531, 533 (7th Cir. 2022) (“If circumstances change, Barbee is free to file a new motion

. ”).
Some th ree weeks later , the district court again denied Newton’s motion. Moving past our directives in Newton I , i tsummarily concluded Newton had failed to show why he satisfied the Broadfield

- Ugbah exception. At no point did the court ask for additional briefin g from the parties, even though Broadfield , Ugbah , and COVID -19 vaccines did not exist whenNewton was making arguments in the original 2020 compassionate release proceedings. Newton appealed again, now challenging that process as depriving him of the opportunity to argue that he satisfied the Broadfield -Ugbah exception

— that he could not benefit from the vaccine. So we consider whether this compassionate release process was an abuse of the district court’s “considerable discretion” under § 3582(c)(1)(A)

. United States v. Sanders , 992 F.3d 583, 587 (7th Cir. 2021). Newton ’s protests of the process have some purchase. The district court faulted Newton for not showing that he satisfied the requirements of the Broadfield

Ugbah exception . But those case s did not exist in 2020 when Newton filed his motion for compassionate release , and the district court invited no briefing from the parties on remandin 2021. Instead, the court merely waited three weeks and issued an order denying the motion filed in 2020

. There i s no hard and fast rule that a district court must invite new proceedings on intervening case law. A remand on4 No. 21-2514

a compassionate release motion is not a full resentencing , see Ugbah , 4 F.4th at 598, and it ’s within the district court’s discretion not to seek

— or even allow

— supplemental briefing. P ost

Broadfield we have not remanded cases in the same posture as Newton’s for new proceedings in the district court after changes in the law and circumstances . See, e.g., Barbee , 2 5 F.4th at 533 ( affirming dist rict court’s pre

- Broadfield

- Ugbah denial of compassionate release without remand ing for reconsideration of the effect of those cases)

. But when intervening law change s as much as it did here , it’s a risky procedure for a district court to rule on a motion without the input of the parties. It would be especially risky if the facts had changed as well. In this instance , they didn’t. Newton has not pointed us to any change in the facts that would have changed the
outcome.
O nce the district court denied Newton’s motion, giving him no opportunity to explain why he could not benefit from the vaccine, Newton was free to explain that to us and possibly win a remand. Cf. Hrubec v. Nat'l R.R. Passenger Co rp., 981 F.2d 962, 963

– 64 (7th Cir. 1992) (permitting 12(b)(6) plaintiffs to make additional factual allegations

— consistent with their complaint

— for the first time on appeal to win remand) ; Smoke Shop, LLC v. United States , 761 F.3d 779, 785 (7th Cir. 2014 ) (same)

. But he did not. He points to the original record that he used immunosuppressing asthma treatment and to a CDC report that immunocompromised people get less benefit from vaccines. But the district court already knew Newton was immunosuppressed, an d the CDC report has nothing to do with Newton individually. Newton has simply given us no such new facts (or argument) showing why he is in the small minority of federal prisoners within the Broadfield

- Ugbah exception , so remand is not appropriate, Broadfield , 5 F.4th at 802

.No. 2 1-2514 5

And

— considering Newton’s counsel did not withdraw on remand

— we are less sympathetic to his plight below. Although the district court did not seek additional briefing, Newton was free to file a motion any time during the three weeks to argueunder new facts and new law. Not that we are faulting Newton’s appointed counsel

— it appears there was no such new information about Newton to provide.
One final note. The district court chose not to buttress its cursory order by w eighing the 18 U.S.C. § 3553(a) sentencing factors applicable to Newton. True, that’s an unnecessary step two if the prisoner has not satisfied step one of identifying anextraordinary and compelling reason for a sentence reduction. United States v. Thacke r , 4 F.4th 569, 576 ( 7th Cir. 2021)

. But doing so

— especially when partaking in a risky procedure on step one

— can “strengthen[] our conclusion that [the district court] did not abuse its discretion.” United States v. Kurzynowski , 17 F.4th 756, 760 (7th Cir. 2021).
A FFIRMED