United States of America v. Christepher D. Hubbard

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 19, 2021*
Decided May 20, 2021
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 20-2537
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHRISTEPHER D. HUBBARD,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of
Indiana, South Bend Division.
No. 3:19-CR-75 JD
Jon E. DeGuilio,
Chief Judge.
O R D E R
Christepher Hubbard, a federal prisoner who suffers from respiratory
conditions, sought compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i), or a home-
confinement recommendation under the CARES Act, § 12003(b)(2), based on his
susceptibility to complications from COVID-19. The district court denied his motion on
* We have agreed to decide this 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. See 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NONPRECEDENTIAL DISPOSITION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

-- 1 of 3 --

No. 20-2537 Page 2
grounds that he had not shown extraordinary and compelling reasons for a sentence
reduction. The court did not abuse its discretion, and so we affirm.
In his May 2020 pro se motion, Hubbard asserted that he suffered from acute
pulmonary histoplasmosis (a respiratory infection caused by inhaling the spores of a
certain fungus) and asthma. He argued that these conditions placed him at a high risk
of severe complications from COVID-19, from which an inmate at his prison, the
Federal Correctional Institution in Terre Haute, Indiana, had already died. At the time
of the motion, Hubbard had served about seven months of his 33-month sentence for
possession of a firearm as a felon. See 18 U.S.C. § 922(g)(1).
The district court denied Hubbard’s motion. After observing that Hubbard had
satisfied the exhaustion requirement, the court found that Hubbard’s medical records
did not support his contention that he still suffered from pulmonary histoplasmosis.
Although he had been diagnosed with the acute form of the condition in the past, a
May 2020 X-ray showed that his lungs were “clear” and without infection. And
Hubbard, the court noted, managed his asthma with inhalers and medication. Further,
guidance from the Centers for Disease Control and Prevention suggested that asthma
could cause increased risk of severe illness from COVID-19 if moderate to severe;
Hubbard’s was not. Therefore, the court concluded, Hubbard lacked an extraordinary
and compelling reason warranting release from prison.
On appeal, Hubbard maintains that his asthma and acute pulmonary
histoplasmosis justify compassionate release because they create an unacceptable risk of
complications from contracting COVID-19. But our review is only for an abuse of
discretion, and the district court permissibly rejected that argument. See United States v.
Saunders, 986 F.3d 1076, 1078 (7th Cir. 2021). As the court explained, Hubbard failed to
establish that he has chronic pulmonary histoplasmosis, rather than an acute case that is
now resolved. And although moderate-to-severe asthma may increase the chance of
severe illness from COVID-19, People at Increased Risk and Other People Who Need to Take
Extra Precautions: People with Certain Medical Conditions, C ENTERS FOR DISEASE C ONTROL
AND PREVENTION , https://www.cdc.gov/coronavirus/2019-ncov/need-extra-
precautions/index.html (last viewed May 7, 2021), the court adequately considered
Hubbard’s medical records, which indicated that he had an asthmatic cough and mild
wheeze only occasionally, when determining that he did not have extraordinary and
compelling reasons for compassionate release.

-- 2 of 3 --

No. 20-2537 Page 3
Hubbard also asserts for the first time that his release is warranted because of
chronic obstructive pulmonary disease (COPD), a condition that the CDC has
determined heightens the risk of complications from the virus. Id. (While COPD
appears similar to asthma, it is distinct. See Annelies Slats & Christian Taube, Asthma
and chronic obstructive pulmonary disease overlap: asthmatic chronic obstructive pulmonary
disease or chronic obstructive asthma?, Therapeutic Advances in Respiratory Disease,
Nov. 22, 2015, at 57.) Hubbard waived this argument when he failed to rely on a COPD
diagnosis in the district court, and so we do not consider it in the first instance. See In re
Veluchamy, 879 F.3d 808, 821 (7th Cir. 2018).
We have considered Hubbard’s remaining arguments, and none has merit.
AFFIRMED

-- 3 of 3 --