In the 

United States Court of Appeals

For the Seventh Circuit ____________________ 

No. 21-2514 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

DAVID NEWTON, 

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. 

____________________ 

ARGUED APRIL 20, 2022 — DECIDED JUNE 15, 2022 

____________________ 

Before WOOD, HAMILTON, and KIRSCH, Circuit Judges. 

KIRSCH, 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 the 
2 No. 21-2514 

irregular 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. 

Seeking 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 reasons 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 counsel, 

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 inside, 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 render 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 infection, notwithstanding the 

vaccine.” United States v. Rucker, 27 F.4th 560, 563 (7th Cir. 
No. 21-2514 3 

2022). That safety valve permits federal prisoners to make motions with newly 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, 25 F.4th 531, 533 (7th Cir. 2022) (“If circumstances change, Barbee is free to file a new motion.”).

Some three weeks later, the district court again denied 

Newton’s motion. Moving past our directives in Newton I, it 

summarily concluded Newton had failed to show why he satisfied the Broadfield-Ugbah exception. At no point did the court 

ask for additional briefing from the parties, even though 

Broadfield, Ugbah, and COVID-19 vaccines did not exist when 

Newton 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 BroadfieldUgbah exception. But those cases did not exist in 2020 when 

Newton filed his motion for compassionate release, and the 

district court invited no briefing from the parties on remand 

in 2021. Instead, the court merely waited three weeks and issued an order denying the motion filed in 2020. 

There is no hard and fast rule that a district court must

invite new proceedings on intervening case law. A remand on 
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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. PostBroadfield 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, 25 

F.4th at 533 (affirming district court’s pre-Broadfield-Ugbah denial of compassionate release without remanding for reconsideration of the effect of those cases). But when intervening 

law changes 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.

Once 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 Corp., 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, and 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. 21-2514 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 argue 

under 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 weighing 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 an 

extraordinary and compelling reason for a sentence reduction. United States v. Thacker, 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). 

AFFIRMED