# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted September 15, 2022 *

Decided September 15, 2022

Before

FRANK H. EASTERBROOK, Circuit Judge

THOMAS L. KIRSCH II, Circuit Judge

CANDACE JACKSON-AKIWUMI, Circuit Judge

No. 22-1522

UNITED STATES OF AMERICA, Plaintiff-Appellee

,

v

.

J OSHUA NEUBERT, Defendant-Appellant

. Appeal from the United States District
Court for the Southern District of Indiana, Indianapolis Division.

No. 1:07-cr-00166-SEB-KPF

Sarah Evans Barker, J udge

.

O R D E R

Joshua Neubert, a federal prisoner, appeal s the denial of his second motion for compassionate release under 18 U.S.C. § 3582(c )(1)(A)(i). In this mo tion, he argued that he had shown extraordinary and compelling re asons for release based on (1) a change

* We have agreed to decide the case wi thout oral argument because the briefs and 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 NONPRECEDENTIAL DISPOSITION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. 22-1522 Page 2

in the law under which he was sentenced and (2) his progress toward rehabilitation. We
affirm.

Neubert first moved for compassionate release in 2019—11 years into his 32-year sentence for brandishing a firearm during and in relation to a crime of violence.

See 18 U.S.C. § 924(c). He relied on an amendm ent to § 924(c) made by Congress in the First Step Act of 2018 that reduced the statutory mandatory sentences for some defendants with multiple § 924(c) convictions. See Pub. L. No. 115-391, § 403, 132 Stat. 5194, 5221–22 (2018). Under the amendment, he argued, he would not face the 25-year minimum if sentenced today. The court deni ed the motion because the amendment did not apply retroactively to defendants senten ced under an earlier version of § 924(c).

In 2020, Neubert moved a second time for release, renewing his argument about the amendment to § 924(c) and arguing that hi s rehabilitative progress while in prison presents an extraordinary and compelling basis for relief. The district court denied this motion, stating (again) that the changes to § 924(c) were non-retroactive and that Congress has expressly precluded granting compassionate release on the basis of
rehabilitation alone. See 28 U.S.C. § 994(t).

Neubert sought reconsideration, repeat ing many of his same challenges. The district court denied this request too. The court invoked our holding in United States v.
Thacker , 4 F.4th 569, 576 (7th Cir. 2021), that an argument about non-retroactive sentencing changes can never by itself esta blish an extraordinary and compelling reason for release under § 3582(c)(1)(A)(i). And with out the change to § 924(c), Neubert was left only with his rehabilitation as an ext raordinary and compelling reason for relief—an argument the court said it had already rejected.

On appeal, Neubert argues that a la ter decision of the Supreme Court, Concepcion
v. United States , 142 S. Ct. 2389, 2404 (2022), confirms that Thacker should not prevent a change in the law from qualifying as extraordinary and compelling. Concepcion held that “the First Step Act allows district cour ts to consider intervening changes of law or fact in exercising their discretion to reduce a sentence pursuant to the First Step Act.” Id

.

But we are reviewing the denial of a compassionate release motion under § 3582(c)(1)(A), not a resentencing deci sion under the First Step Act. In Concepcion , the Court distinguished the two, noting that Congress—in the context of compassionate release—“imposed express statutory limitatio ns” that cabin the exercise of judicial
discretion. 142 S. Ct. at 2401. Our discretion remains confined by the limits set byNo. 22-1522 Page 3

Congress, and we decline to interpret § 3582( c)(1)(A) inconsistent ly with Congress’s
decision to make its amendment to § 924(c) apply only prospectively. See United States v. Peoples , 41 F.4th 837, 842 (7th Cir. 2021). Similarly, nothing in Concepcion calls into question our decision in Thacker . As we recently stated, “[w] e take the Supreme Court at
its word that Concepcion is about the matters that district judges may consider when they resentence defendants...[and not] th e threshold question whether any given person has established an `extraordinary and compelling’ reason for release.” United States v. King , 40 F.4th 594, 596 (7th Cir. 2022). In other words, Concepcion “does not alter [our] understanding” that the prospect ive amendments to § 924(c) are not an extraordinary and compelling reason for release. Id.

Relatedly, Neubert’s rehabilitative effort s alone are not a basis for release under § 3582(c)(1)(A). Peoples , 41 F.4th at 842; 28 U.S.C. § 994(t). The district court did not abuse its discretion arriving at this conclusion.

AFFIRMED