United States v. Clemmie Carter

NONPRECEDENTIAL DISPOSITION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 2, 2021*
Decided April 8, 2021
Before
DIANE S. SYKES, Chief Judge
MICHAEL S. KANNE, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 20‐2409
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Eastern District of Wisconsin.
v. No. 14‐CR‐009
CLEMMIE L. CARTER, William C. Griesbach,
Defendant‐Appellant. Judge.
ORDER
Clemmie Carter, a federal inmate who is being treated for HIV, sought
compassionate release based on his heightened risk of contracting a severe case of
COVID‐19. The district court denied the motion after finding that no evidence
supported Carter’s argument that his condition made him particularly vulnerable to the
virus. Because the judge did not abuse his discretion in denying the motion, we affirm.
* 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. 20‐2409 Page 2
Carter is housed at the Federal Correctional Institution Beckley in West Virginia
and has a projected release date in October 2023. He pleaded guilty in 2014 to bank
robbery, 18 U.S.C. § 2113(a), (d); and brandishing a firearm, id. § 924(c)(1)(A)(ii); for
which he received a 138‐month sentence.
In May 2020 Carter moved for compassionate release under 18 U.S.C.
§ 3582(c)(1)(A)(i). Based on information from the Centers for Disease Control and
Prevention, he argued that his HIV‐positive status increased the risk of serious
complications if he contracted COVID‐19. He insisted that the Bureau of Prisons had
responded poorly to controlling outbreaks of the virus and that social distancing in a
prison environment was impossible. Carter also asked the judge to take into account his
favorable post‐sentencing conduct—a clean prison disciplinary record, successful
coursework, and satisfactory job performance.
The judge denied the motion because Carter had not made a showing of
“extraordinary and compelling reasons” for release under § 3582(c)(1)(A)(i). The judge
explained that Carter was only 29 and that he presented no evidence that his HIV
condition—which was being controlled with treatment—made him particularly
vulnerable to the virus. Further, the prison reported no active COVID‐19 cases.
On appeal Carter argues that the judge minimized the seriousness of HIV—a
chronic condition that compromises the immune system. He highlights the commentary
in application note 1 of § 1B1.13 of the Sentencing Guidelines, which defines
“extraordinary and compelling reasons” to include defendants like himself who are
“suffering from a serious … medical condition.”
The judge acted within his discretion in denying relief. The judge acknowledged
the chronic nature of Carter’s condition but reasonably determined that it was not so
severe to make him particularly vulnerable to the virus. As the judge explained, his
condition was “regularly monitored” and “under control,” and the prison had no
reported COVID‐19 cases. And as for Carter’s reference to § 1B1.13, that guideline
applies to motions brought by the Director of the Bureau of Prisons. Because Carter,
rather than the Director, brought this motion, the guideline is not controlling. See United
States v. Gunn, 980 F.3d 1178, 1180–81 (7th Cir. 2020).
Lastly, to the extent Carter suggests that the judge erred by not weighing the
sentencing factors set forth in 18 U.S.C. § 3553(a), he misapprehends the inquiry under
No. 20‐2409 Page 3
§ 3582(c)(1)(A)(i). As that provision states, a judge may reduce the sentence upon
consideration of the § 3553(a) factors only “if [he] finds that … extraordinary and
compelling reasons warrant such a reduction.” See, e.g., United States v. Thompson,
984 F.3d 431, 433 (5th Cir. 2021). Here, that condition precedent was not met.
AFFIRMED