United States v. Criss Duncan

NONPRECEDENTIAL DISPOSITION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 September 2, 2022*
Decided September 2, 2022
Before
DIANE P. WOOD, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 22‐1155
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of
Indiana, South Bend Division.
v. No. 3:03‐cr‐57 JD
Jon E. DeGuilio,
CRISS DUNCAN, Chief Judge.
Defendant‐Appellant.
ORDER
Criss Duncan appeals the denial of his motion for compassionate release under
18 U.S.C. § 3582(c)(1)(A)(i). Because the district court was correct that Duncan did not
identify an extraordinary and compelling reason for release, 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. 22‐1155 Page 2
Duncan has a complicated sentencing history. A jury found him guilty of bank
robbery, using a firearm in a crime of violence, malicious damage to a vehicle, and
being a felon in possession of a firearm. See 18 U.S.C. §§ 2113(a), (d); 924(c)(1)(A); 844(i);
922(g). He was sentenced to 457 months: a mandatory 360 months for the § 924(c)
charge followed by 97 months for the remaining charges, the minimum under the
Sentencing Guidelines.
In the aftermath of United States v. Booker, 543 U.S. 220, 245 (2005), we ordered a
limited remand to ascertain whether the district court would have imposed a different
sentence had it known the Guidelines were merely advisory. United States v. Duncan,
413 F.3d 680, 684–85 (7th Cir. 2005) (citing United States v. Paladino, 401 F.3d 471, 483–85
(7th Cir. 2005)). The district court, however, proceeded to resentence Duncan, without
explanation, to 360 months. But because we never relinquish jurisdiction when we issue
a Paladino remand, the district court was without jurisdiction to resentence Duncan. We
therefore vacated the sentence, interpreted the court’s actions as an indication that it
was inclined to resentence Duncan, and instructed the court on remand to resentence
him and explain its reasoning. United States v. Duncan, 427 F.3d 464, 465 (7th Cir. 2005).
The district court again sentenced Duncan to 457 months, explaining that the longer
sentence was appropriate because he used a machine gun to commit a serious crime.
In 2021, more than fourteen years from his projected release date, Duncan moved
for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i). First, he said his age, then
62, and health problems—liver disease, obesity, and heart issues—increased his
vulnerability to complications from COVID‐19, which he has contracted once and is
vaccinated against. Second, he contended that his sentence should be lowered in light of
the decision in Dean v. United States, 137 S.Ct. 1170, 1177–78 (2017), which held that a
sentencing court may offset a statutory‐minimum sentence under § 924(c) by adjusting
the sentence for any other offense, allowing for the possibility of a lower overall
sentence.
The court denied the motion, concluding that Duncan had not shown an
extraordinary and compelling reason for compassionate release. The court
acknowledged that Duncan’s age and health put him at a greater risk to COVID‐19, but
concluded that because Duncan’s conditions “appear[ed] to be stable and well
controlled,” neither his age nor his health was an extraordinary and compelling
circumstance. The court added that a change in the law such as Dean should not be an
extraordinary and compelling reason for release because our precedent, principally
United States v. Thacker, 4 F.4th 569, 575 (7th Cir. 2021), made clear that § 3582(c)(1)(A)(i)
No. 22‐1155 Page 3
cannot be used to effect a statutory reduction at odds with Congress’s intent that its
anti‐stacking amendment to the First Step Act only be applied prospectively. And
regardless, given the sentencing court’s conclusion that the 457‐month sentence was
necessary, Duncan had not shown that his sentence would have been lower had he been
sentenced after Dean. Alternatively, the court determined that the factors under
18 U.S.C. § 3553(a) weighed against release: Duncan’s offense was “incredibly serious”
and despite his impressive rehabilitation efforts he still posed “a threat to the public.”
On appeal, Duncan argues that the district court read Thacker too broadly by
concluding that the change in law brought about by Dean could not be an extraordinary
and compelling reason. He adds that another recent Supreme Court decision, Concepcion
v. United States, 142 S.Ct. 2389 (2022), confirms that Thacker should not prevent a change
in the law from qualifying as extraordinary and compelling.
The court’s interpretation of Thacker was correct. As we recently explained,
“[t]here’s nothing ‘extraordinary’ about new statutes or caselaw. . . these are the
ordinary business of the legal system, and their consequences should be addressed by
direct appeal or collateral review.” United States v. King, 40 F.4th 594, 595 (7th Cir. 2022);
see also United States v. Brock, 39 F.4th 462, 466 (7th Cir. 2022) (“Judicial decisions,
whether characterized as announcing new law or otherwise, cannot alone amount to an
extraordinary and compelling circumstance allowing for a sentence reduction.”). That
understanding is not altered by Concepcion, which referred to the compassionate‐release
statute only to suggest that Congress knew how to limit which considerations may be
used to reduce a sentence affected by the First Step Act. King, 40 F.4th at 596.
Duncan also argues that the district court downplayed the additional risk
COVID‐19 posed to him because of his age and health. He contends that his age is more
of a risk factor than the district court suggested and that, although he is vaccinated, a
growing body of research suggests that he may still face a high risk from COVID‐19.
But courts are not required to release every prisoner with extraordinary and compelling
health concerns. United States v. Saunders, 986 F.3d 1076, 1078 (7th Cir. 2021). And here
the district court adequately supported its decision that the § 3553(a) factors weighed
against release, explaining that Duncan’s “incredibly serious” offense, his criminal
history, and his past recidivism meant he still posed a threat to public safety.
See 18 U.S.C. § 3553(a)(1), (2); United States v. Rucker, 27 F.4th 560, 563 (7th Cir. 2022).
AFFIRMED