United States of America v. Philip H. Wentzel

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 15, 2021*
Decided September 17, 2021
Before
DAVID F. HAMILTON, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 21-1285
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PHILIP H. WENTZEL,
Defendant-Appellant.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 12-CR-116
Lynn Adelman,
Judge.
* 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. 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NONPRECEDENTIAL DISPOSITION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. 21-1285 Page 2
O R D E R
Philip Wentzel, a federal prisoner, appeals the district court’s denial of his
motion for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i). Because the district
court acted within its discretion, we affirm.
Wentzel pleaded guilty in 2012 to seven counts of producing child pornography.
See 18 U.S.C. § 2251(a). Federal agents learned that Wentzel, then a deputy sheriff of
Milwaukee County, drugged and sexually abused six children entrusted to his care. He
recorded and distributed videos and photographs of the assaults, and the agents traced
them to Wentzel’s property in Wisconsin. Authorities also discovered on Wentzel’s
laptop chat logs in which he described how he drugged his victims. And they found in
Wentzel’s home the drugs that he used. Wentzel initially pleaded guilty to six counts of
producing child pornography, but on the day of sentencing, the government identified
a seventh victim and filed an information for a seventh count. Wentzel consented to
proceed by information, waived indictment on the seventh charge, and pleaded guilty
to all seven charges. The additional charge did not affect the district court’s calculation
under the Sentencing Guidelines; the guidelines already recommended life in prison
regardless of the seventh charge.
At sentencing, the district court rejected Wentzel’s request for 25 years in prison.
After considering the sentencing factors under 18 U.S.C. § 3553(a)—particularly the
seriousness of the offenses and the need to protect the public—the court sentenced him
to 40 years’ imprisonment. That sentence reflected 300 months for each of the original
six counts, running concurrently, plus an additional 180 months for the late-added
seventh count, running consecutive to the other counts. On appeal, Wentzel’s lawyer
requested to withdraw, and Wentzel voluntarily dismissed the appeal.
After dismissing his appeal, Wentzel collaterally attacked his conviction. He
invoked 28 U.S.C. § 2255 and raised two legal claims relevant to this appeal: the
government had breached a plea agreement and violated his rights under the Double
Jeopardy Clause by adding a seventh charge on the day of sentencing. He also raised a
factual argument, maintaining that he did not drug his victims, even though he had not
objected to the presentence report’s assertion that he had. The district court rejected
these arguments, and we denied his request for authorization to relitigate them in a
successive § 2255 motion.
Wentzel then unsuccessfully moved for relief under § 3582(c)(1)(A)(i). This law
allows a court to reduce a sentence for “extraordinary and compelling reasons.”

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No. 21-1285 Page 3
Prisoners often request relief under this provision because of serious health or family
issues. But Wentzel instead repeated his arguments about double jeopardy and a
“breached” plea agreement from his prior postconviction filings. He also insisted that
the government had withheld recordings of its interviews with his victims. This “new
evidence,” he contended, refuted the government’s assertion that he had drugged his
victims. Finally, he argued that his efforts at rehabilitation in prison warranted relief.
The district court denied relief on three grounds. First, it reasoned that under
§ 3582(c)(1)(A)(i) it lacked discretion to grant relief based on Wentzel’s legal challenges
to his conviction and sentence or based solely on his rehabilitation. Second, even if it
had discretion, on their merits Wentzel’s legal challenges and argument about new
evidence were not extraordinary and compelling reasons for relief. Finally, even if they
were, a sentence reduction would nonetheless be unwarranted based on the factors
under § 3553(a): Wentzel’s offense was serious, and at sentencing, his own expert
diagnosed him with pedophilia and suggested he might reoffend.
On appeal, Wentzel first argues that the court erred when it ruled that arguments
regarding the legality of a sentence could never be “extraordinary and compelling
reasons” for a sentence reduction. But in United States v. Thacker, 4 F.4th 569, 574
(7th Cir. 2021), we warned that district courts should not use § 3582(c)(1)(A)(i) to erode
the limits on postconviction relief in 28 U.S.C. § 2255. That statute bars successive
collateral attacks on the legality of a sentence unless the inmate obtains prior approval
under § 2255(h), which Wentzel has not. Wentzel insists that his motion falls outside
§ 2255 because he seeks only a discretionary reduction of his sentence, rather than an
order vacating his conviction. The district court, however, was not required to accept
arguments (about double jeopardy and a “breached” plea agreement) that it had
already rejected in his prior postconviction filings.
Moreover, the district court also correctly explained why Wentzel’s arguments
that were not explicitly raised in his prior postconviction motions were meritless. The
district court appropriately ruled that Wentzel’s rehabilitation did not warrant a
reduction, because “[r]ehabilitation of the defendant alone shall not be considered an
extraordinary and compelling reason.” 28 U.S.C. § 994(t). And it appropriately rejected
his claim that “new evidence” refutes the presentence report’s assertion that he drugged
his victims during the assaults. Wentzel did not object to the presentence report at
sentencing, nor did he provide the recordings that he says support this argument now.
And as the district court explained, the presentence report listed ample evidence that
Wentzel drugged his victims: he made statements about using specific drugs on his

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No. 21-1285 Page 4
victims, kept the same drugs in his home, and recorded videos of his victims while they
were unconscious or semi-conscious. The court thus reasonably concluded that Wentzel
drugged his victims and that his attempt to relitigate this issue did not establish an
extraordinary and compelling basis for relief.
AFFIRMED

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