United States of America v. Joshua Neubert

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 15, 2022 *
Decided September 15, 2022
Before
FRANK H. EASTERBROOK, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 22-1522
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSHUA NEUBERT,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of
Indiana, Indianapolis Division.
No. 1:07-cr-00166-SEB-KPF
Sarah Evans Barker,
Judge.
O R D E R
Joshua Neubert, a federal prisoner, appeals the denial of his second motion for
compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i). In this motion, he argued that
he had shown extraordinary and compelling reasons for release based on (1) a change
* 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NONPRECEDENTIAL DISPOSITION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. 22-1522 Page 2
in the law under which he was sentenced and (2) his progress toward rehabilitation. We
affirm.
Neubert first moved for compassionate release in 2019—11 years into his 32-year
sentence for brandishing a firearm during and in relation to a crime of violence.
See 18 U.S.C. § 924(c). He relied on an amendment to § 924(c) made by Congress in the
First Step Act of 2018 that reduced the statutory mandatory sentences for some
defendants with multiple § 924(c) convictions. See Pub. L. No. 115-391, § 403, 132 Stat.
5194, 5221–22 (2018). Under the amendment, he argued, he would not face the 25-year
minimum if sentenced today. The court denied the motion because the amendment did
not apply retroactively to defendants sentenced under an earlier version of § 924(c).
In 2020, Neubert moved a second time for release, renewing his argument about
the amendment to § 924(c) and arguing that his rehabilitative progress while in prison
presents an extraordinary and compelling basis for relief. The district court denied this
motion, stating (again) that the changes to § 924(c) were non-retroactive and that
Congress has expressly precluded granting compassionate release on the basis of
rehabilitation alone. See 28 U.S.C. § 994(t).
Neubert sought reconsideration, repeating many of his same challenges. The
district court denied this request too. The court invoked our holding in United States v.
Thacker, 4 F.4th 569, 576 (7th Cir. 2021), that an argument about non-retroactive
sentencing changes can never by itself establish an extraordinary and compelling reason
for release under § 3582(c)(1)(A)(i). And without the change to § 924(c), Neubert was
left only with his rehabilitation as an extraordinary and compelling reason for relief—an
argument the court said it had already rejected.
On appeal, Neubert argues that a later decision of the Supreme Court, Concepcion
v. United States, 142 S. Ct. 2389, 2404 (2022), confirms that Thacker should not prevent a
change in the law from qualifying as extraordinary and compelling. Concepcion held
that “the First Step Act allows district courts to consider intervening changes of law or
fact in exercising their discretion to reduce a sentence pursuant to the First Step Act.” Id.
But we are reviewing the denial of a compassionate release motion under
§ 3582(c)(1)(A), not a resentencing decision under the First Step Act. In Concepcion, the
Court distinguished the two, noting that Congress—in the context of compassionate
release—“imposed express statutory limitations” that cabin the exercise of judicial
discretion. 142 S. Ct. at 2401. Our discretion remains confined by the limits set by

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No. 22-1522 Page 3
Congress, and we decline to interpret § 3582(c)(1)(A) inconsistently with Congress’s
decision to make its amendment to § 924(c) apply only prospectively. See United States v.
Peoples, 41 F.4th 837, 842 (7th Cir. 2021). Similarly, nothing in Concepcion calls into
question our decision in Thacker. As we recently stated, “[w]e take the Supreme Court at
its word that Concepcion is about the matters that district judges may consider when
they resentence defendants…[and not] the threshold question whether any given
person has established an `extraordinary and compelling’ reason for release.” United
States v. King, 40 F.4th 594, 596 (7th Cir. 2022). In other words, Concepcion “does not alter
[our] understanding” that the prospective amendments to § 924(c) are not an
extraordinary and compelling reason for release. Id.
Relatedly, Neubert’s rehabilitative efforts alone are not a basis for release under
§ 3582(c)(1)(A). Peoples, 41 F.4th at 842; 28 U.S.C. § 994(t). The district court did not
abuse its discretion arriving at this conclusion.
AFFIRMED

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