United States v. Kevin Gardner ( 2022 )

NONPRECEDENTIAL DISPOSITION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 April 19, 2022*
Decided April 20, 2022
Before
FRANK H. EASTERBROOK, Circuit Judge
DIANE P. WOOD, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 21-2423
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Division.
v. No. 15 CR 379-6
KEVIN GARDNER, Gary Feinerman,
Defendant-Appellant. Judge.
ORDER
Kevin Gardner, a federal prisoner, appeals the denial of his second motion for
compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i) based on his medical
conditions and the COVID-19 pandemic. Gardner argues that the court provided
insufficient explanation for its decision. We affirm.
* We have agreed to decide the 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. 21-2423 Page 2
Gardner first moved for compassionate release nearly halfway into his
147-month sentence for conspiring to distribute heroin, 21 U.S.C. §§ 841(a)(1), 846, and
associated offenses. He argued that his medical conditions (hypertension, migraines,
and a slightly overweight body mass index of 26.1) heightened his risk from COVID-19,
constituting an “extraordinary and compelling” reason for release. 18 U.S.C.
§ 3582(c)(1)(A)(i). He also maintained that he would not be a danger to the community
if released.
The district court denied the motion. The court concluded that Gardner had not
shown an extraordinary and compelling reason for a sentence reduction: His medical
records did not reflect a hypertension diagnosis; migraines were not a COVID-19 risk
factor; and his body mass index did not fall within the obesity range. The court also
concluded that the factors under 18 U.S.C. § 3553(a) provided an independent basis for
denying the motion—specifically, the “extremely serious” nature of Gardner’s offense
conduct (participating in a large-scale heroin distribution scheme and plotting to kill a
rival drug dealer) and criminal history (including robbery and aggravated battery).
Because Gardner’s 147-month sentence represented a significant downward variance
from his guidelines range (324–405 months), the court concluded that releasing him
after he served less than half that sentence would be “highly inappropriate.”
Gardner did not appeal the denial of his first motion and instead, six months
later, filed a second compassionate-release motion. This time, he added that he had
recently been diagnosed with asthma and kidney disease—which is described in his
medical records as “chronic kidney disease, stage 2 (mild).”
The court denied this motion as well. The court’s analysis was concise enough
that we repeat it here in full:
Just over six months ago, the court denied a compassionate release motion
filed by Defendant. Defendant’s current request for compassionate release
is no stronger than that earlier one. Defendant now has six months more of
custody under his belt, but that is an insignificant consideration in light of
the matters addressed in the court’s prior order. Medical records document
Defendant’s recent diagnosis with stage 2 kidney disease and asthma,
which are recognized COVID-19 risk factors. But Defendant is being
properly medicated for those conditions and, of equal importance, the
ready availability of vaccines in the BOP allows Defendant to make it highly
No. 21-2423 Page 3
unlikely that he will contract COVID-19 or suffer serious illness if he is
infected. The fact that Defendant refused an offer of the Moderna COVID-
19 vaccine does not help his cause, as an inmate may not voluntarily
exacerbate his COVID-19 risks by refusing a vaccine and then use that
exacerbated risk to obtain release under 18 USC [§] 3582(c)(l)(A).
Gardner, who tells us that he has now been vaccinated, argues on appeal only
that the district court’s denial of his second motion was insufficient to allow for
meaningful appellate review. But the court adequately explained its thinking, and we
are satisfied that the court exercised its discretion based on proper considerations. Most
significantly, the court referred to its denial of Gardner’s initial motion and found his
renewed motion “no stronger.” In denying that first motion, the court applied
the § 3553(a) factors and determined that the “extremely serious” nature of Gardner’s
offense and criminal history counseled against any further reduction of a below-
guidelines sentence. Given that assessment, the court acted well within its discretion in
rejecting Gardner’s argument that his asthma and kidney disease diagnoses changed
the analysis. As we have reiterated, one good reason is sufficient to support a denial of
compassionate release. See United States v. Ugbah, 4 F.4th 595, 598 (7th Cir. 2021).
Gardner relies on United States v. Hampton, 985 F.3d 530 (6th Cir. 2021), in which
the Sixth Circuit vacated a denial of a compassionate-release motion because the district
court’s two-sentence order left unclear whether it had relied on the inapplicable policy
statement at U.S.S.G. § 1B1.13. But here the court articulated its reasoning based on
appropriate factors, without mention of § 1B1.13, so we have no concern that the court
may have relied on an impermissible factor.
AFFIRMED