United States of America v. Jasper Vargas

NONPRECEDENTIAL DISPOSITION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 July 16, 2021*
Decided July 19, 2021
Before
FRANK H. EASTERBROOK, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 20-3333
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JASPER VARGAS,
Defendant-Appellant.
Appeal from the United States
District Court for the Central
District of Illinois.
No. 2:05-cr-20007-JES-DGB
James E. Shadid, Judge.
Order
Jasper Vargas asked the district court for compassionate release, see 18 U.S.C.
§3582(c)(1), and appeals from the adverse decision. He contends that the judge should
not have ruled on his request and that the process should start over.
* After examining the briefs and the record, we have concluded that oral argument is unnecessary. See
Fed. R. App. P. 34(a); Cir. R. 34(f).

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No. 20-3333 Page 2
Vargas filed his request in court without first seeking relief from the Bureau of Pris-
ons. Contending that a counselor had told him that he could bypass the administrative
process, he asked the judge to “waive” the statutory need to start with the agency. We
have held that lack of exhaustion under §3582(c)(1) is an affirmative defense, which the
United States may waive or forfeit, see United States v. Gunn, 980 F.3d 1178, 1179 (7th
Cir. 2020), but the Department of Justice elected to claim the benefit of that rule. It is a
mandatory claims-processing doctrine, which must be enforced if invoked. United States
v. Sanford, 986 F.3d 779, 782 (7th Cir. 2021). But the district judge ignored the issue and
denied the application on the merits.
Vargas now wants us to treat his failure to exhaust administrative remedies as a ju-
risdictional defect, so that the judge was compelled to dismiss without prejudice. But
Gunn and Sanford hold that failure to exhaust is not jurisdictional. It is instead an affirm-
ative defense.
Because the United States invoked this defense, the district court lacked authority to
grant Vargas’s motion. The power to waive a defense belongs to the beneficiary, not to a
judge. But a court may deny a request on the merits without transgressing the statutory
exhaustion requirement. Although a court must resolve jurisdictional issues before ad-
dressing the merits, it may choose from among available non-jurisdictional grounds
that suffice to resolve the litigation. We observed in United States v. Williams, 987 F.3d
700, 702 (7th Cir. 2021), that this principle applies to the multiple potential grounds for
denying a motion for compassionate release.
Vargas, who is serving a life sentence for drug distribution following multiple ear-
lier drug convictions, asked for compassionate release because of his “deteriorating
physical condition” (including age over 50, heel spurs, and hypertension) and the risk
of COVID-19 in prison. The district judge replied that none of Vargas’s documented
medical condition makes COVID-19 more likely (or more serious if contracted). The dis-
trict court did not abuse its discretion in concluding that Vargas has not shown an “ex-
traordinary and compelling” reason for early release, as §3582(c)(1)(A)(i) requires.
AFFIRMED

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