United States of America v. Robert L. Hertzberger

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 26, 2024*
Decided February 26, 2024
Before
DIANE S. SYKES, Chief Judge
FRANK H. EASTERBROOK, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 23-2136
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT L. HERTZBERGER,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of
Indiana, Evansville Division.
No. 3:03-cr-020-RLY-CMM-1
Richard L. Young,
Judge.
O R D E R
Robert Hertzberger, who has served more than half of his 30-year prison
sentence for knowingly distributing a controlled substance that resulted in death,
appeals the denial of his third motion for compassionate release under 18 U.S.C.
* 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NONPRECEDENTIAL DISPOSITION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. 23-2136 Page 2
§ 3582(c)(1)(A). He argues that his serious health concerns, combined with his
demonstrated rehabilitation and limited time remaining on his sentence, provide
extraordinary and compelling reasons for release. We affirm.
In 2004, Hertzberger pleaded guilty to knowingly distributing oxycodone, a
Schedule II controlled substance, that resulted in the death of another. See 21 U.S.C.
§ 841(a)(1), (b)(1)(C). The previous year, Hertzberger had provided his ex-wife with an
injectable form of the opioid (from a prescription under his name), and she died of an
overdose. He was sentenced to 30 years’ imprisonment and 3 years’ supervised release.
In 2023, Hertzberger filed his third motion for compassionate release. (In 2021
and 2022, the district judge had denied similar motions asserting severe health
conditions, including heart failure; his susceptibility to grave consequences from
COVID-19, given his inability to receive a vaccine because of neurological reasons; his
evidence of rehabilitation in prison, reflected by his work history, educational
accomplishments, and near-perfect disciplinary record; and limited time remaining on
his sentence.) In his third motion, Hertzberger provided updated medical records
showing he was diagnosed with long COVID (which he argued the prison inadequately
treated) and still had not received a COVID vaccine. He also explained that he had
completed every program available at his prison, and that the prison warden and
medical staff supported his release. And he asserted that if sentenced today, he would
receive a lower sentence based on (unspecified) intervening changes of law.
The district judge denied his motion. As he had in denying Hertzberger’s two
prior motions, the judge determined that the sentencing factors under 28 U.S.C. § 3553
“strongly” counseled against release. The judge acknowledged Hertzberger’s
commendable work history, disciplinary record (only two tickets over 18 years),
educational achievement, and efforts to reconcile with the victim’s family but found
these factors outweighed by his extensive criminal history (including prior felony
convictions as well as his commission of the instant offense while on parole) and the
time remaining on his sentence (at least four more years, in Hertzberger’s estimation).
On appeal, Hertzberger generally challenges the district judge’s decision,
asserting that the 20 years he has spent in prison are enough to reflect the seriousness of
his offense and promote respect for the law given his rehabilitation. But we will not
reverse a district judge’s denial of compassionate release unless the judge abused his
considerable discretion. United States v. Saunders, 986 F.3d 1076, 1078 (7th Cir. 2021).
Here, the judge appropriately exercised his discretion, determining that the § 3553(a)
factors—specifically, Hertzberger’s serious crime and extensive criminal history—did

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No. 23-2136 Page 3
not favor early release. And a judge need provide only one good reason for denying a
motion for compassionate release. See United States v. Ugbah, 4 F.4th 595, 598 (7th Cir.
2021).
AFFIRMED

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