United States of America v. Alexander Kluball

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 28, 2021 *
Decided April 28, 2021
Before
FRANK H. EASTERBROOK, Circuit Judge
DIANE P. WOOD, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 20-3169
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALEXANDER KLUBALL,
Defendant-Appellant.
Appeal from the United States District
Court for the Western District of Wisconsin.
No. 3:15-cr-00124-jdp
James D. Peterson,
Chief Judge.
O R D E R
Alexander Kluball, a federal inmate who suffers from obesity and asthma,
appeals from the denial of his motion for compassionate release based on his health
conditions and the COVID-19 pandemic. The district court denied the motion,
reasoning that Kluball failed to show that he exhausted administrative remedies and,
* 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. F ED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 20-3169 Page 2
alternatively, that his health conditions were not an extraordinary and compelling
reason for his release. We affirm.
Kluball, who pleaded guilty in 2016 to sex trafficking a minor, 18 U.S.C. § 2421, is
midway through his 10-year sentence at FCI Pekin in Illinois. In September 2020, he
moved for compassionate release under 18 U.S.C. § 3582(c)(1)(A), arguing that his
health conditions, together with COVID-19, constitute an extraordinary and compelling
reason for reducing his sentence, and that his extensive rehabilitation efforts in prison
further weigh in favor of his release. Without addressing any of the steps he may have
taken to exhaust his administrative remedies, Kluball asked the court to waive
§ 3582(c)(1)(A)’s exhaustion requirement because “waiting even 30 days will be too
late,” given the dire threat posed by the virus. The government opposed the motion on
two grounds: Kluball had failed to show that he exhausted his administrative remedies
and to provide sufficient medical documentation for the court to consider the merits of
his request. (Kluball’s submitted health records reflected only diagnoses of obesity and
asthma; the records said nothing about the severity of these conditions or whether they
would put him at an increased risk of illness from COVID-19.)
The district court promptly denied Kluball’s motion in a brief text order. The
entirety of the court’s analysis is short enough that we repeat it here:
Defendant is a young man at 30 years old, and he is about
half-way through a ten-year sentence for a sex-trafficking
crime with a minor victim. As the government explained in
its opposition, […] defendant has not provided the
information I would need to evaluate a motion for
compassionate release. Defendant does not say whether he
has exhausted his administrative remedies, as required
under 18 U.S.C. § 3582(c). Even if that requirement were met,
he has not shown that extraordinary and compelling reasons
warrant his immediate release. He contends that his asthma
and obesity make him vulnerable to serious illness if he were
infected with COVID-19. His medical records list both
asthma and obesity among his health problems, but those
records contain no evidence that serious health impairments
result from these two conditions. According to the BOP, his
institution has 95 active cases among inmates, and I
recognize that COVID-19 poses a significant risk in any

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No. 20-3169 Page 3
prison. But I am not persuaded that he is a candidate for
compassionate release based on his medical vulnerability,
particularly at this point in his sentence.
On appeal, Kluball principally maintains that the district court gave short shrift
to his argument that, according to the Centers for Disease Control and Prevention, his
health conditions put him at risk of serious illness from COVID-19.
The government, for its part, asks us to uphold the denial on exhaustion
grounds. In the government’s view, the court had no choice but to deny the motion as
unexhausted, given Kluball’s failure to present any evidence otherwise. Kluball now
replies, for the first time, that he wrote a letter to the warden requesting compassionate
release, handed the letter to a correctional officer for delivery, and waited weeks with
no response before filing his motion with the district court.
Kluball presented no evidence of any of this in the district court, an omission that
normally would support our decision to affirm for failure to exhaust. 18 U.S.C.
§ 3582(c)(1)(A); see United States v. Sanford, 986 F.3d 779, 782 (7th Cir. 2021). But the
exhaustion requirement under § 3582(c)(1) is an affirmative defense, Sanford, 986 F.3d
at 782, and we do not see how Kluball had an opportunity to supplement the record
once the government raised the defense. The court denied his motion just one day after
the government filed its response, without affording him any opportunity to reply.
Even so, a remand for fact-finding on exhaustion is not necessary in light of the
court’s determination that Kluball had not demonstrated extraordinary and compelling
reasons for release. Under 18 U.S.C. § 3582(c)(1)(A), a district court “may” reduce a
defendant’s prison term if the reduction is supported by “extraordinary and compelling
reasons” and the sentencing factors under 18 U.S.C. § 3553(a). Here, the court
reasonably determined that Kluball had not made that showing. The court
acknowledged Kluball’s obesity and asthma but explained, albeit tersely, that his
medical evidence referred only to his having those conditions; the records did not
elaborate on the extent of those conditions or the degree to which they made him
susceptible to severe illness from COVID-19. Given this limited evidence, the court
permissibly concluded that Kluball’s conditions were not an extraordinary and
compelling reason for release, particularly when weighed against his relative youth, the
seriousness of his sex-trafficking crime, and the remaining time left to serve on his
10-year sentence. That conclusion was not an abuse of the court’s “considerable
discretion.” United States v. Saunders, 986 F.3d 1076, 1077 (7th Cir. 2021).

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No. 20-3169 Page 4
Kluball also argues that remand is warranted because, in his view, the district
court bypassed any analysis of the § 3553(a) factors, a discussion that he believes would
support his release. We do not read the court’s explanation so narrowly. Although the
court did not cite the statute, it implicitly acknowledged such factors as the offender’s
characteristics, see 18 U.S.C. § 3553(a)(1) (alluding to Kluball’s obesity and asthma, as
well as his relative youth); the seriousness of the offense, § 3553(a)(2)(A) (sex-trafficking
of a minor); and the need for deterrence, § 3553(a)(2)(B) (five years remaining on his
ten-year sentence).
AFFIRMED

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