United States v. Terry Brown

NONPRECEDENTIAL DISPOSITION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 February 5, 2021*
Decided February 5, 2021
Before
DIANE P. WOOD, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 20-2547
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Northern
District of Indiana, Hammond Division.
v. No. 2:18-cr-00021-TLS-APR-6
TERRY BROWN, Theresa L. Springmann,
Defendant-Appellant. Judge.
ORDER
Terry Brown, an inmate at the Federal Correctional Institution in Milan,
Michigan, asked the district court—but not the Bureau of Prisons—for compassionate
release in light of the COVID-19 pandemic. See 18 U.S.C. § 3582(c)(1)(A). The district
court denied the motion, finding that Brown, who had not alleged any existing health
problems, did not demonstrate extraordinary and compelling circumstances justifying
* 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. 20-2547 Page 2
release. But the government raised, and Brown did not refute, the argument that he
failed to exhaust his administrative remedies, so we affirm on that ground instead.
Brown is serving a 70-month prison sentence for cocaine distribution and
possession of a firearm in furtherance of drug trafficking; he is scheduled for release in
March 2023. He moved for compassionate release in May 2020, arguing that
overcrowded and unhygienic conditions at Milan facilitate the spread of pathogens and
make him a “sitting duck” amid the COVID-19 pandemic. He asked the court to allow
him to spend the rest of his sentence in home confinement or on supervised release.
In its response, the government asserted that there was no record of Brown
requesting compassionate release within the Bureau of Prisons, and it urged the court to
deny his motion for failure to exhaust his administrative remedies. See § 3582(c)(1)(A).
The government further argued that release was unwarranted because Brown did not
allege that he was particularly susceptible to the novel coronavirus, and his prison
medical records reflect no health issues that would make him so.
The district court denied the motion. It declined to reach the issue of exhaustion,
noting that, at the time, we had not yet ruled on whether courts could excuse the
requirement. Instead, it concluded that Brown had not shown “extraordinary and
compelling reasons,” warranting release, see § 3582(c)(1)(A)(i), since he had no
documented health issues and the prison had taken measures to contain the virus.
On appeal, Brown argues—for the first time—that he has diabetes and that this
disease and the poor conditions of confinement together place him at risk of death if he
“again” contracts COVID-19. (Brown explains in his briefs that he already contracted
COVID-19 but concealed it because of the prison’s practice of putting symptomatic
inmates “in the hole,” and that as a “victim,” he is part of a nationwide class action
against the Bureau of Prisons for failing to contain the virus.) The government renews
its contention that Brown failed to exhaust his administrative remedies. In his reply
brief, Brown asserts for the first time that he sent a compassionate-release request to his
warden 30 days before filing his § 3582(c) motion and still has received no response.
The district court was right to deny Brown’s request for early release, though we
affirm the decision on a ground other than the one it gave. See Kowalski v. Boliker,
893 F.3d 987, 994 (7th Cir. 2018). Since the district court’s ruling, we have clarified that
the exhaustion requirement is a mandatory claim-processing rule. United States v.
Sanford, No. 20-2445, 2021 U.S. App. LEXIS 2039, 2021 WL 236622, at *3 (7th Cir.
No. 20-2547 Page 3
Jan. 25, 2021). Therefore, if the government raises a failure to exhaust at every
opportunity, courts must enforce the requirement. Id. Although Brown now asserts that
he met the exhaustion requirement of § 3582(c)(1)(A)(i), we cannot resolve a factual
dispute on appeal. Nor will we remand to the district court for factfinding, because
Brown waived the argument twice over: He failed to raise it in the district court, Hess v.
Bresney, 784 F.3d 1154, 1161 (7th Cir. 2015), and, on appeal, presented it for the first time
in his reply brief, see Daugherty v. Page, 906 F.3d 606, 610 (7th Cir. 2018).
Even if we credited Brown’s belated attestation that he exhausted his remedies
within the Bureau of Prisons, we would not find an abuse of discretion in the district
court’s denial of relief. See United States v. Gunn, 980 F.3d 1178, 1180 (7th Cir. 2020). The
court concluded that, without evidence that Brown faced any particularized risk of
significant complications from COVID-19, the mere presence of the virus in his
institution did not amount to an extraordinary and compelling reason. The court noted
that Brown was just 35 years old and had recently told the probation office in
presentence interviews that he was in good health (no mention of diabetes). This
explanation is reasonable.
We have considered Brown’s other arguments, and they are without merit.
AFFIRMED