United States of America v. Timothy Kurzynowski

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-3491
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
TIMOTHY K URZYNOWSKI ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 14-cr-151 — Jane Magnus-Stinson, Judge.
____________________
SUBMITTED SEPTEMBER 15, 2021* — DECIDED N OVEMBER 5, 2021
____________________
Before BRENNAN , SCUDDER , and S T. EVE, Circuit Judges.
ST. EVE, Circuit Judge. Timothy Kurzynowski pleaded
guilty to distributing child pornography. He admitted to of-
ficers that he spent years in internet chatrooms discussing
* On August 11, 2021, we vacated the oral argument scheduled for Sep-
tember 15, 2021, after granting appellant’s unopposed waiver motion and
reviewing the parties’ briefs. This appeal was therefore submitted on the
briefs and the record. See Fed. R. App. P. 34(a)(2).

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2 No. 20-3491
sexual behavior involving minors and that his sexual interest
focused on 10- to 13-year-old boys. His more recent online
conversations explored fantasies of cooking and eating chil-
dren. In 2015, the district court sentenced Kurzynowski to 96-
months in prison. Kurzynowski thereafter moved for compas-
sionate release pursuant to § 603 of the First Step Act of 2018,
18 U.S.C. § 3582(c)(1)(A)(i). The district court denied the mo-
tion. Kurzynowski appeals, arguing the district court improp-
erly thought the Sentencing Commission’s criteria in U.S.S.G.
§ 1B1.13 constrained its discretion.
We affirm for two reasons. First, the district court properly
exercised its discretion in denying Kurzynowski’s motion.
Second, under United States v. Broadfield, 5 F.4th 801 (7th Cir.
2021), the fact that Kurzynowski is vaccinated precludes a
finding that the COVID-19 pandemic presents extraordinary
and compelling reasons for his release.
I. Background
Kurzynowski actively participated in an internet cha-
troom named “#0!!!!!!ChildRapeTortureandBrutality:Dalnet.”
where he shared his sexual interest in prepubescent boys.
When law enforcement visited his home for a “knock and
talk,” Kurzynowski admitted his attraction to 10- to 13-year-
old boys, particularly ones wearing underwear and swim-
wear. He told officers he had been chatting online nearly daily
for several years and recently discussed cooking and eating
children. After Kurzynowski consented to a search of his com-
puters and hard drives, law enforcement recovered hundreds
of images of child pornography. Some were sadistic and mas-
ochistic. Over five months in 2013, Kurzynowski distributed
92 images and 17 videos through file-sharing programs.

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No. 20-3491 3
Kurzynowski pleaded guilty to distributing child pornog-
raphy. He received a 96-month sentence, well below his
Guidelines range of 155 to 181 months. The district court
granted this departure based on Kurzynowski’s promise to
complete a sex offender treatment program. Kurzynowski
currently awaits his good-time release, scheduled for Decem-
ber 3, 2021, in a residential reentry center. He has not com-
pleted the treatment program.
In October 2020, Kurzynowski filed a motion for compas-
sionate release. Like many inmates, Kurzynowski argued that
his preexisting medical conditions put him at a high risk of
severe illness from COVID-19. Suffering from hypertension,
diabetes, and obesity, months into a pandemic with no vac-
cine in sight, Kurzynowski asked to serve the remainder of
his time on supervised release. The government opposed Kur-
zynowski’s motion, arguing that his preexisting conditions
were not “extraordinary and compelling” under
§ 3582(c)(1)(A)(i), he posed an unacceptable danger to the
community under 18 U.S.C. § 3142(g), and the 18 U.S.C.
§ 3553(a) factors did not support his release.
Originally limited to motions brought by the Director of
the Bureau of Prisons, § 3582(c)(1)(A) permits a district court
to release a prisoner if it finds that “extraordinary and com-
pelling reasons” support release, the release “is consistent
with applicable policy statements issued by the Sentencing
Commission,” and the district court has considered the fac-
tors listed in § 3553(a). The Sentencing Commission promul-
gated the policy statement U.S.S.G. § 1B1.13, instructing dis-
trict courts “[u]pon motion of the Director of the Bureau of
Prisons” to also consider whether the defendant poses “a dan-
ger to the safety of any other person or to the community” as

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4 No. 20-3491
defined in § 3142(g). Although the First Step Act expanded
§ 3582(c)(1)(A) to permit prisoners to bring their own motions
for compassionate release, the Sentencing Commission has
not updated its policy statements to reflect this change. Con-
sequently, we held in United States v. Gunn, 980 F.3d 1178 (7th
Cir. 2020), that § 1B1.13 may serve as a guide for district court
judges in exercising their discretion, but it is binding only
when the Director of the Bureau of Prisons makes the motion.
Id. at 1180.
The district court denied Kurzynowski’s motion three
days after we decided Gunn. With no mention of Gunn, the
district court used § 1B1.13 to guide its analysis. It recognized
that the Sentencing Commission had not updated the policy
statement to apply to motions brought by prisoners, but noted
that other courts nonetheless had “universally” turned to
§ 1B1.13. Although the district court acknowledged that Kur-
zynowski’s medical conditions put him at greater risk, it de-
nied his motion because Kurzynowski was a danger to the
community under § 3142(g) and the § 3553(a) factors did not
favor release. Kurzynowski timely appealed. We granted his
motion to expedite the appeal and waive oral argument.
II. Discussion
A motion for compassionate release involves a two-step
inquiry: one, did the prisoner present an extraordinary and
compelling reason for release, and two, is release appropriate
under § 3553(a). See United States v. Ugbah, 4 F.4th 595, 597 (7th
Cir. 2021). We review a district court’s denial of compassion-
ate release for abuse of discretion. United States v. Saunders,
986 F.3d 1076, 1078 (7th Cir. 2021). A decision based on a mis-
take of law is itself an abuse of discretion. United States v.
Black, 999 F.3d 1071, 1074 (7th Cir. 2021).

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No. 20-3491 5
The district court discussed § 1B1.13 without mentioning
Gunn. Kurzynowski suggests the district court was unaware
of Gunn and believed itself bound by the policy statement.
Had the district court known the breadth of its discretion,
Kurzynowski suggests, it may have declined to follow
§ 1B1.13’s instruction to look to § 3142(g) and make a danger-
ousness finding. This dangerousness finding, in turn, led the
district court to disregard whether Kurzynowski’s height-
ened risk of severe illness due to COVID-19 presented ex-
traordinary and compelling reasons for relief. If the district
court mistakenly believed it was obligated to make a danger-
ousness finding, Kurzynowski argues, it abused its discretion.
See Black, 999 F.3d at 1074.
First, the district court did not err when it considered
§ 1B1.13. The district court began its analysis by recognizing
the absence of an applicable Guidelines policy statement for
motions brought directly by a prisoner. It then turned to
§ 1B1.13 for guidance; it did not consider the policy statement
mandatory. In Gunn, we explained that § 1B1.13 may still be
instructive to district courts as long as courts do not treat it as
binding. See 980 F.3d at 1180 (rejecting the argument that the
lack of an applicable policy statement “leaves district judges
free to invent their own policies about compassionate re-
lease”). Indeed, a court does not err by “merely quoting and
analyzing § 1B1.13” when it recognizes that it is not bound by
the statement. Black, 999 F.3d at 1074. Even if the district court
was unaware of Gunn, its exercise of discretion is consistent
with this view. After considering § 3142(g), the district court
still followed the § 3582(c)(1)(A) statutory requirement to
evaluate the § 3553(a) factors.

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6 No. 20-3491
Here, the district court’s analysis of the § 3553(a) factors
was not an abuse of discretion. A district court may grant a
motion for compassionate release only when the § 3553(a) fac-
tors support it. The district court concluded that Kur-
zynowski’s sentence promoted respect for the law, reflected
the seriousness of his crime, and deterred the ongoing victim-
ization of children. Furthermore, the district court recognized
that the need to protect the public, “especially the most vul-
nerable members, children,” was particularly significant with
Kurzynowski because his crimes “were motivated by his de-
praved sexual appetite toward young children, a pathology
for which he has not received medical, psychological, or spir-
itual treatment.” The district court’s assessment of danger un-
der § 3142(g) was consistent with these concerns. Therefore,
the district court adequately considered the § 3553(a) factors
and did not err or abuse its discretion.
This case does not implicate the same concerns we raised
in United States v. Black. See 999 F.3d at 1074–75. Black does not
require us to vacate and remand merely to inform the district
court it may disregard this dangerousness assessment under
§ 3142(g), especially where the court recognized it was not
constrained by § 1B1.13. “[O]ne good reason … is enough” to
deny a compassionate release motion. Ugbah, 4 F.4th at 598.
That the district court also conducted an appropriate § 3553(a)
analysis only strengthens our conclusion that it did not abuse
its discretion.
Second, even if the district court had erred, it would be
harmless. We are bound to follow United States v. Broadfield,
5 F.4th 801 (7th Cir. 2021). In Broadfield, we explained that the
mass rollout of effective vaccines drastically improved the
pandemic conditions in prisons. Id. at 802. Vaccinated

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No. 20-3491 7
prisoners in 2021 do not face the same risks of serious illness
as they did in 2020. Unless a prisoner can show they are “un-
able to receive or benefit from a vaccine … the availability of
a vaccine makes it impossible to conclude that the risk of
COVID-19 is an ‘extraordinary and compelling’ reason for im-
mediate release.” Id. at 803. Because Kurzynowski is vac-
cinated, he is ineligible for relief on remand. See Ugbah, 4 F.4th
at 597 (noting “it would be an abuse of discretion for a judge
to rule in his favor”).
A FFIRMED.

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