United States of America v. Thomas R. Valley

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 5, 2022 *
Decided May 5, 2022
Before
DAVID F. HAMILTON, Circuit Judge
AMY J. ST. EVE, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 21‐2104
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
THOMAS R. VALLEY,
Defendant‐Appellant.
Appeal from the United States District
Court for the Western District of Wisconsin.
No. 11‐cr‐133‐bbc
Barbara B. Crabb,
Judge.
O R D E R
Thomas Valley, a federal inmate, moved for compassionate release based on his
claim of heightened risk of complications from a COVID‐19 infection. See 18 U.S.C.
§ 3582(c)(1)(A)(i). The district court concluded that Valley’s medical conditions were not
an extraordinary and compelling reason for release and that the sentencing factors of
* 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. FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 21‐2104 Page 2
18 U.S.C. § 3553(a) also weighed against release. In so ruling, the court did not abuse its
discretion, so we affirm.
Valley filed his motion after he served about a decade of his 40‐year prison
term—20 years on each of two counts—for receiving child pornography, 18 U.S.C.
§ 2252(a)(2). In December 2020, he moved for compassionate release, arguing that his
hypertension, acute sinusitis, and asthma exacerbated the risks associated with COVID‐
19. The government opposed the motion, and the district court denied it before Valley
could timely file a reply. (Valley faced a delay in receiving the government’s response.)
He moved for reconsideration, and the court granted that motion, allowing Valley to
respond to the government’s objections.
After reviewing Valley’s reply, the district court again denied Valley’s motion for
compassionate release. First, it ruled that the risks posed by Valley’s hypertension,
sinusitis, and asthma (which was not documented) during the COVID‐19 pandemic did
not present an extraordinary and compelling reason for early release. It explained that
Valley had already contracted COVID‐19 in July 2020; did not appear to have lasting,
debilitating symptoms from that infection; and, based on a medical study, was at lower
risk of reinfection as a result. Second, the court considered whether Valley should be
released under what it called “the applicable policy statement” of U.S.S.G. § 1B1.13. It
recounted the serious nature of Valley’s criminal behavior—receiving and producing
child pornography by enticing young girls to come to his home—as well as his reform
efforts in prison, such as earning his GED and joining the Orthodox Jewish faith. After
balancing the competing factors, the court concluded that the factors in both U.S.S.G.
§ 1B1.13 and 18 U.S.C. § 3553(a) counseled against early release.
On appeal, Valley challenges the district court’s denial of relief, which we review
for abuse of discretion. United States v. Saunders, 986 F.3d 1076, 1077 (7th Cir. 2021). But
the court did not abuse its discretion in denying release. As a threshold matter, unless a
prisoner provides evidence that the COVID‐19 vaccine is unavailable or ineffective for
him, the presence of COVID‐19 is generally not an extraordinary and compelling reason
for compassionate release. United States v. Broadfield, 5 F.4th 801, 803 (7th Cir. 2021).
Valley provided no evidence or argument that he cannot benefit from the COVID‐19
vaccine. Rather, he contends only that the government forfeited reliance on Broadfield
because it did not cite the case before the district court. But Valley had the burden of
establishing “extraordinary and compelling reasons” for a sentence reduction,
United States v. Newton, 996 F.3d 485, 488 (7th Cir. 2021), and his failure to address his

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No. 21‐2104 Page 3
vaccination status defeats a contention on appeal that the district court abused its
discretion in denying relief.
Vaccination considerations aside, Valley argues that the district court improperly
ignored the COVID‐19 conditions at his facility, such as the prison staff’s failure to
follow masking and isolation recommendations. But the court reasonably decided that
those factors did not warrant releasing him: His asthma was unsubstantiated and, based
on medical data that Valley did not contradict, his recovery from a prior COVID‐19
infection showed that his other health conditions did not present a heightened risk from
infection.
Valley next argues that the district court erred by relying on U.S.S.G. § 1B1.13’s
policy statement to deny relief. Because U.S.S.G. § 1B1.13 applies only to motions for
compassionate release initiated by the Bureau of Prisons, the policy statement is not
binding on a district court when a prisoner makes the request. See United States v. Gunn,
980 F.3d 1178, 1180 (7th Cir. 2020). But nothing precludes courts from using U.S.S.G.
§ 1B1.13 as a guide. See United States v. Kurzynowski, 17 F.4th 756, 760 (7th Cir. 2021).
Further, even if the court erred when relying on U.S.S.G. § 1B1.13 in evaluating Valley’s
potential danger to the community, any such error would have been harmless. The
court also based its decision to deny relief on the statutory factors under § 3553(a),
which apply to motions for compassionate release. See United States v. Rucker, 27 F.4th
560, 562 (7th Cir. 2022). And the court reasonably applied those factors by assessing the
seriousness of his crimes—in this case, bringing underage girls to his home to produce
pornography—and his danger to the public. Valley responds that the district court
impermissibly discounted his rehabilitation in prison when it determined that the
§ 3553(a) factors weighed against early release. But the court needed only to address
§ 3553(a) and identify “one good reason” to deny early release. Id. at 563. Here, the
court adequately justified its decision by acknowledging Valley’s reform efforts but
deciding that the seriousness of his offense and the danger he posed to the community
nevertheless outweighed his rehabilitation progress.
AFFIRMED

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