United States of America v. Christopher Barbee

In the
United States Court of Appeals
For the Seventh Circuit
No. 21-1356
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHRISTOPHER BARBEE,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:16-cr-00173-1 — Robert W. Gettleman, Judge.
ARGUED SEPTEMBER 24, 2021 — DECIDED FEBRUARY 11, 2022
Before EASTERBROOK, ROVNER, and KIRSCH, Circuit Judges.
ROVNER, Circuit Judge. Christopher Barbee sought compas-
sionate release under 18 U.S.C. § 3582(c)(1)(A)(i), as amended
by Section 603 of the First Step Act of 2018, Pub. L. No. 115-391,
132 Stat. 5194. Barbee suffers from Type II diabetes, hyperten-
sion and obesity, and is serving his sentence at FCI Pekin, a
facility that experienced a large outbreak of COVID-19 infec-

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2 No. 21-1356
tions around the time that Barbee filed his motions for compas-
sionate release.1 He argued in his motion that his medical
conditions placed him at significant risk of contracting COVID-
19 and suffering severe and potentially lethal complications.
He also contended that he had used his time in prison produc-
tively, completing a drug abuse program, passing two parts of
the GED test, and taking classes on topics such as anger
management. He conceded that he had one disciplinary
incident two years prior to his motion. He had a plan to reside
with his mother and cousin upon release, and also intended to
seek employment. The district court denied his motion in a
brief order stating:
Applying the factors in § 3553(a), the aggravating
factors involving this defendant particularly his
extensive criminal history and the nature of the
offense, along with the fact that he has served a
small portion of his sentence, outweigh any mitigat-
ing factors offered by the defendant.
R. 211, at 3. The district judge who denied the motions was the
same judge who originally sentenced Barbee and was fully
aware of Barbee’s criminal history and the facts surrounding
his most recent conviction.
On appeal, Barbee complains that the district court’s terse
explanation was procedurally insufficient to justify denial of
his motion and inadequate to allow for meaningful appellate
1 Barbee filed his first motion for compassionate release pro se, on
September 15, 2020. Appointed counsel then filed an amended motion on
December 18, 2020. To simplify, we will treat these as a single motion.

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No. 21-1356 3
review. He asks this court to reverse and remand for further
proceedings. We review the district court’s denial of a motion
for compassionate release for abuse of discretion. United States
v. Saunders, 986 F.3d 1076, 1078 (7th Cir. 2021). Barbee bears the
burden of establishing extraordinary and compelling circum-
stances. United States v. Newton, 996 F.3d 485, 488 (7th Cir.
2021).
Once an inmate fulfills the exhaustion requirements, a
federal court may grant a prisoner’s motion for compassionate
release if “extraordinary and compelling reasons” warrant
release and if the request is consistent with the sentencing
considerations reflected in 18 U.S.C. § 3553(a). 18 U.S.C.
§ 3582(c)(1)(A); Newton, 996 F.3d at 488. The district court’s
order suggests that it assumed for the purposes of deciding
Barbee’s motion that his medical condition is serious enough
to qualify him for early release but the court declined to
exercise its discretion to grant the motion when it considered
his medical issues in light of the section 3553(a) factors.
Specifically, the court found that Barbee’s extensive criminal
history, the seriousness of his most recent offense and the
relatively small portion of his sentence that he had served
outweighed the concerns raised by his health and the COVID-
19 pandemic.
In his appeal, Barbee relies largely on Newton, where we
remanded for further consideration because the district court
failed to consider the movant’s medical conditions in combina-
tion, made an unsupported medical finding, and gave no
indication that it had considered the movant’s individualized
arguments that were supported by the record. Barbee contends
that the district court made similar errors here, and that the

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4 No. 21-1356
court’s order is so brief that it does not allow for meaningful
review.
We need not decide if Barbee’s situation is comparable to
Newton’s because this appeal is foreclosed by our recent
decisions in United States v. Ugbah, 4 F.4th 595 (7th Cir. 2021);
and United States v. Broadfield, 5 F.4th 801 (7th Cir. 2021). In
those cases, we recognized that COVID-19 was a grave
problem in America’s prisons at its outset because prisoners
and staff cannot engage in social distancing. Broadfield, 5 F.4th
at 802. Today, however, effective vaccines are available, and
counsel informed this court at oral argument that Barbee had
received two doses of the Moderna vaccine. At the time we
issued our opinion in Broadfield, we noted that “published data
do not establish or imply an incremental risk for prison-
ers—either a risk of contracting the disease after vaccination or
a risk of a severe outcome if a vaccinated person does contract
the disease.” 5 F.4th at 802-03. See also Ugbah, 4 F.4th at 597
(prisoners who have access to a vaccine cannot use the risk of
COVID-19 to obtain compassionate release unless they can
demonstrate that they are medically unable to receive or
benefit from the available vaccines). Although Barbee contends
that he remains at risk as the COVID-19 situation continues to
evolve, he has not presented any evidence establishing that he
is more at risk for an adverse outcome in prison than he would
be if released. Newton, 996 F.3d at 488 (the movant bears the
burden of establishing extraordinary and compelling circum-
stances). Despite any alleged deficiencies in the district court’s
ruling, “remand would be appropriate only if reconsideration
could produce a decision in [Barbee’s] favor[.]” Broadfield,
5 F.4th at 803. Given the current data and the availability of

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No. 21-1356 5
safe and effective vaccines, it could not. If circumstances
change, Barbee is free to file a new motion.
AFFIRMED.

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