United States of America v. Kevin Cooper

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 19, 2022*
Decided April 19, 2022
Before
FRANK H. EASTERBROOK, Circuit Judge
DIANE P. WOOD, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 21-1781
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KEVIN COOPER,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of
Illinois.
No. 3:08-CR-30066-NJR
Nancy J. Rosenstengel,
Chief Judge.
O R D E R
Kevin Cooper, a federal prisoner, challenges the district court’s denial of his
motion for compassionate release based on several health conditions and his heightened
risk of severe complications from COVID-19. See 18 U.S.C. § 3582(c)(1)(A)(i). Because
* 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NONPRECEDENTIAL DISPOSITION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 F ED. R. APP . P. 32.1

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No. 21-1781 Page 2
the district court did not abuse its discretion in determining that the factors under 18
U.S.C. § 3553(a) weighed against reducing Cooper’s sentence, we affirm.
Cooper, then 67, moved for compassionate release about 12 years into his life
sentence for conspiracy to distribute and possess with intent to distribute over 100
grams of heroin. See 21 U.S.C. §§ 841(a)(1), 846. He sought release based on health
conditions—including high blood pressure, shortness of breath, chest pains, an
enlarged prostate, and an associated possibility of prostate cancer—that he believed
increased his risk of severe complications from COVID-19. (Later, Cooper contracted
COVID-19; he says he continues to suffer lingering effects.) Cooper also pointed to his
rehabilitative efforts, such as his participation in educational and drug programs.
The district court denied the motion, applying the policy statement set forth in
U.S.S.G. § 1B1.13, which addresses when courts may grant compassionate release upon
a motion brought by the Bureau of Prisons. The court concluded that Cooper’s health
conditions were not “extraordinary and compelling” reasons for his release.
§ 3582(c)(1)(A)(i). It explained that Cooper was taking medication for his enlarged
prostate and high blood pressure, and that he had refused treatment he’d been offered
for his chest pain and shortness of breath. But even if his reasons were compelling, the
court added, release was not warranted based on the sentencing factors under § 3553(a)
and the requirement under U.S.S.G. § 1B1.13(2) that he not be a danger to others. It
determined that Cooper’s life sentence remained appropriate based on his extensive
criminal history, the heinous circumstances of his crime, the lives he “destroyed” (drugs
Cooper sold may have caused at least one death), and his “continued threat to society.”
On appeal, Cooper argues that the district court improperly relied on the policy
statement at U.S.S.G. § 1B1.13. He contends that this misinterpretation led the court to
discount the severity of his health conditions and his risks from the pandemic, and to
overemphasize the significance of the threat he posed to the community.
To the extent that the district court cabined its compassionate-release analysis
based on U.S.S.G. § 1B1.13, that was error. That policy statement does not limit a district
court’s discretion when an inmate—and not the Bureau of Prisons—moves for
compassionate release. United States v. Gunn, 980 F.3d 1178, 1180 (7th Cir. 2020). But the
district court also appropriately relied on the § 3553(a) factors as a reason to deny relief,
and that determination independently sustains its judgment. See United States v.
Saunders, 986 F.3d 1076, 1078 (7th Cir. 2021). Specifically, the court concluded that
Cooper’s extensive and violent criminal history, his crime’s destructive impact, and his
risk of recidivism weighed against a reduction in his sentence. See § 3553(a)(1), (2)(A)–

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No. 21-1781 Page 3
(C). That was reason enough to deny his motion. See United States v. Ugbah, 4 F.4th 595,
598 (7th Cir. 2021).
Cooper also argues that the court failed to account for his post-sentencing
rehabilitative progress. That argument overlooks the court’s explicit consideration of his
accomplishments in prison and clean disciplinary record. Regardless, the court did not
abuse its discretion by determining that other sentencing factors weighed against his
release. See United States v. Rucker, 27 F.4th 560, 563 (7th Cir. 2022).
Finally, Cooper contends for the first time that his sentence is illegal and that it
would be lower were he sentenced under the current Guidelines. Cooper forfeited these
arguments by not raising them in district court. See United States v. Manning, 5 F.4th 803,
807 (7th Cir. 2021). In any event, potential sentencing errors are not extraordinary and
compelling reasons for release. United States v. Martin, 21 F.4th 944, 946 (7th Cir. 2021).
We note that, after filing his reply brief, Cooper submitted three letters
introducing additional information about the number of prisoners at his facility with
COVID-19 and the facility’s capacity to provide medical care. We construe those filings
as motions for leave to supplement his briefs and grant them to the extent that we have
reviewed them in rendering this decision.
AFFIRMED

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