United States v. Jon Lilly ( 2021 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 6, 2021*
Decided May 7, 2021
Before
DIANE S. SYKES, Chief Judge
JOEL M. FLAUM, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 20-3154
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Indiana,
Hammond Division.
v. No. 2:13 CR 79
JON E. LILLY, James T. Moody,
Defendant-Appellant. Judge.
ORDER
Jon Lilly, an inmate serving a 144-month sentence at the Federal Correctional
Institution-Forrest City Low in Arkansas, moved for compassionate release under
18 U.S.C. § 3582(c)(1)(A)(i), asserting that his breathing issues place him at a high risk of
serious illness during the COVID-19 pandemic. The district court denied his motion,
*
We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 20-3154 Page 2
concluding that he had not demonstrated extraordinary and compelling reasons for
early release. Because the court did not abuse its discretion, we affirm.
In his pro se motion, Lilly asked that the district court reduce his sentence or
release him to home confinement. He argued that his asthma and severe allergies
increased his risk of serious complications or death if he contracted COVID-19. The
unsanitary conditions and the uncontrolled spread of positive cases at his prison, Lilly
added, magnified that risk. He asked the court to consider his favorable record while in
prison, including his successful coursework, lack of disciplinary history, and excellent
job performance.
In its response, the government opposed Lilly’s early release, arguing that he had
exaggerated the severity of his health issues and the extent of the COVID-19 outbreak at
his prison. The government attached prison records showing that: (1) Lilly reported in
2019 that he had childhood asthma, but was “[n]o longer having symptoms” and
“[d]oes not use an inhaler”; (2) his severe allergies are to penicillin and shellfish; and (3)
he tested positive for COVID-19 in June 2020 (around the time he filed his motion) and
remained asymptomatic until his infection resolved. In reply, Lilly countered that the
prison falsified his medical records, he suffered symptoms—including lung damage—
from the virus, and he is at risk of reinfection.
The district court denied Lilly’s motion, concluding that he had not shown an
“extraordinary and compelling reason[]” for a sentence reduction under
§ 3582(c)(1)(A)(i). As to Lilly’s health conditions, the court determined that his prison
records revealed that he had at most a mild case of asthma for which he did not use an
inhaler. Further, it noted that Lilly had already contracted and recovered from
COVID-19, undermining his argument that he is at an elevated risk of a severe case or
death from the virus. Although Lilly insisted that he suffered lung damage from the
infection, he failed to support the assertion; indeed, he also said that he had not been
evaluated by medical staff. Finally, while highlighting the uncertainty around whether
reinfection is likely, the court emphasized that the number of infected people at Lilly’s
prison had dramatically decreased since an earlier outbreak (when Lilly was infected).
On appeal, Lilly argues that the district court underestimated the severity of his
breathing issues and the inadequacy of his prison’s response to COVID-19—realities
which, he asserts, are sufficiently extraordinary and compelling reasons for a sentence
reduction. He also highlights the hypertension listed in his medical records, which he
contends increases his vulnerability to COVID-19.
No. 20-3154 Page 3
Our review is deferential, and the district court did not abuse its discretion by
deciding that Lilly’s health and the presence of COVID-19 at his prison were not
extraordinary and compelling reasons for a sentence reduction. See United States v.
Saunders, 986 F.3d 1076, 1078 (7th Cir. 2021). The court reasonably concluded based on
Lilly’s prison medical records that he was generally healthy, with only a mild case of
asthma and allergies that had no known relevance to COVID-19. Further, the court
appropriately determined that Lilly’s risk of reinfection did not compel his release
because the prison had seen a massive decrease in positive cases. To the extent Lilly
believes that the court relied on incomplete information about COVID-19 at his
prison—given the prison’s inadequate response to the worsening pandemic—the court
had to base its decision on the available data “at the time of the ruling.” United States v.
Howell, 958 F.3d 589, 595 (7th Cir. 2020). Lilly denigrates the methodology underlying
the prison’s data, but he presented no evidence to back up his assertion that COVID-19
is more prevalent than reported.
Lilly’s suggestion on appeal that his hypertension also increases his vulnerability
does not change the analysis. He did not rely on this reason in the district court and so
he cannot present evidence of it now. See United States v. McDonald, 981 F.3d 579, 581
(7th Cir. 2020). In any case, Lilly does not explain how this condition would alter the
district court’s conclusion that his risk of severe infection—regardless of his medical
issues—did not warrant a sentence reduction because Lilly already recovered from
COVID-19, and the virus is no longer rampant in the prison.
Finally, to the extent that Lilly takes issue with the district court’s incorporation
of language from the policy statement in U.S.S.G. § 1B1.13 into its decision, we find no
error. Since the court’s decision, we have clarified that the policy statement, though
binding only with respect to motions brought by the Bureau of Prisons, can guide a
court’s discretion when addressing prisoners’ motions. United States v. Gunn, 980 F.3d
1178, 1180 (7th Cir. 2020). In particular, the policy statement’s “substantive aspects …
provide a working definition of ‘extraordinary and compelling reasons.’” Id. The court
here did not limit itself based on the policy statement, as Lilly insists, but rather used it
as a guide while considering all the evidence and Lilly’s arguments.
AFFIRMED