United States of America v. Timothy Fredrickson

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 25, 2022*
Decided November 16, 2022
Before
DIANE S. SYKES, Chief Judge
DIANE P. WOOD, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 22-1542
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TIMOTHY FREDRICKSON,
Defendant-Appellant.
Appeal from the United States District
Court for the Central District of Illinois.
No. 17-40032
Michael M. Mihm,
Judge.
O R D E R
Timothy Fredrickson, a federal inmate, seeks compassionate release under
18 U.S.C. § 3582(c). The Bureau of Prisons declined to move for his release, and the
district judge denied Fredrickson’s own motion, which contended (among other things)
that his sentence is invalid and that the Bureau should have moved for his release. We
affirm. Fredrickson cannot argue that alleged errors at sentencing constitute an
* 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NONPRECEDENTIAL DISPOSITION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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extraordinary and compelling reason for release, and we cannot review the Bureau’s
decision not to bring a motion.
Fredrickson solicited and received sexually explicit videos from a 16-year-old
whom he met online. A jury convicted him in 2020 of sexual exploitation of a minor,
see 18 U.S.C. § 2251(a), (e), and the district judge sentenced him to 200 months’ (about
17 years) imprisonment. We affirmed on direct appeal. See United States v. Fredrickson,
996 F.3d 821, 822 (7th Cir.), cert. denied, 142 S. Ct. 386 (2021).
Less than two years after being sentenced, Fredrickson asked the Bureau of
Prisons to file a compassionate-release motion on his behalf. He requested relief for
several reasons, including health concerns, but he revives only one of those reasons on
appeal: He argued that his 200-month prison term for sexually exploiting a minor was
unjust because his victim was above the age of consent and his conduct was nonviolent.
The Bureau denied the request, saying that his health and other concerns were not
“extraordinary and compelling reasons warrant[ing]” a reduced sentence. 18 U.S.C.
§ 3582(c)(1)(A)(i). Fredrickson appealed administratively. He asserted that the Bureau
ignored his argument that U.S.S.G. § 1B1.13 cmt. n.1(D) allows the Bureau to bring a
motion for “other reasons,” which, he insisted, included the unjust sentence that he
believed he faced. The Bureau denied his appeal, repeating that he had not identified an
extraordinary and compelling reason.
Fredrickson next moved for compassionate release in district court. As relevant
here, he maintained that alleged sentencing errors constituted an extraordinary and
compelling reasons for a reduced sentence. First, he argued that he received an
unconstitutional “trial penalty” when, after he rejected a plea deal involving a 10-year
statutory maximum, he was prosecuted and convicted under a statute with a 15-year
mandatory minimum. Second, he repeated that the length of his sentence was unjust
because his conduct did not involve physical violence and his victim could have legally
consented to sexual conduct. He also asked the judge to review what he thought was
the Bureau’s arbitrary and capricious failure to consider his argument that the Bureau
should have moved for his release for “other reasons” under § 1B1.13 cmt. n.1(D).
The district judge denied the motion, concluding that Fredrickson had not shown
any extraordinary and compelling reason for release. The judge explained that
Fredrickson had not received an impermissible penalty just because he went to trial and
received a higher sentence than if he had pleaded guilty; plus, the judge continued, the
supposed unfairness of a sentence is not an extraordinary and compelling ground for
compassionate release. See United States v. Thacker, 4 F.4th 569, 574 (7th Cir. 2021), cert.

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denied, 142 S. Ct. 1363 (2022). Fredrickson sought reconsideration, stating that the judge
ignored his argument that the Bureau wrongly failed to move for compassionate release
based on an unjust sentence. The judge denied the motion, concluding this was a new
argument that Fredrickson had not adequately developed earlier.
On appeal, Fredrickson repeats his argument that he showed extraordinary and
compelling reasons for release because, he says, his sentence reflects an unconstitutional
penalty and is unjust. He admits that Thacker and its progeny block inmates from
arguing that alleged sentencing errors are extraordinary and compelling reasons for
compassionate release. But, he says, Thacker is not binding because, in his view, it
invalidly “overrule[d]” United States v. Black, 999 F.3d 1071, 1075 (7th Cir. 2021), without
an en banc hearing; the panel in Thacker merely circulated the opinion to this court’s
judges, see C IR . R. 40(e), and this, he contends, was procedurally insufficient.
Frederickson’s argument for ignoring Thacker is frivolous. Thacker did not
purport to overrule Black—nor did it do so. Rather, Thacker clarified the difference
between threshold eligibility for a reduced sentence (having an extraordinary and
compelling reason for release) and what a district judge can consider once an inmate
has cleared that threshold. See 4 F.4th at 575–76. And even if Thacker had sought to
overrule Black—which, again, it did not—the Thacker panel followed proper procedure.
It circulated the proposed opinion to the full court, and no member in active service
favored rehearing the case en banc. See id. at 576; C IR . R. 40(e). The text of Rule 40(e)
refutes Fredrickson’s contention that an en banc hearing, rather than circulation, was
necessary for overruling circuit precedent.
Fredrickson alternatively argues that Thacker does not apply because it concerned
nonretroactive sentencing amendments while his case is about the constitutionality of
his sentence. The difference is immaterial. As we have emphasized in cases since
Thacker, an inmate cannot use a compassionate-release motion to argue that any kind of
error in sentencing is an extraordinary and compelling reason for release under
18 U.S.C. § 3582(c)(1)(A)(i). See United States v. Brock, 39 F.4th 462, 464–65 (7th Cir. 2022);
United States v. Martin, 21 F.4th 944, 946 (7th Cir. 2021) (citing Thacker, 4 F.4th at 574–75).
Next, Fredrickson—in his untimely reply brief1—contends that Concepcion v.
United States, 142 S. Ct. 2389 (2022), undermines Thacker. Concepcion held that a district
1 We previously extended the deadline for Fredrickson to file his reply until
October 3, 2022. He dated his reply October 10. So, even applying the prison-mailbox

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judge may consider intervening factual or legal changes when resentencing a defendant
under the First Step Act of 2018, Pub. L. No. 115-391, § 404(b), 132 Stat. 5194, 5222
(2018). 124 S. Ct. at 2396. As part of its reasoning, the Court said that only Congress or
the Constitution can “limit[] the scope of information that a district court may consider
in deciding whether, and to what extent, to modify a sentence.” Id. Fredrickson argues
that nothing in the text in § 3582(c) bars a judge from considering a sentencing error as
an extraordinary and compelling reason for early release, and thus, he continues,
Thacker wrongly cabined judges’ discretion by preventing judges from considering
those errors.
Our circuit’s compassionate-release framework squares with Concepcion. That
framework proceeds in two steps: (1) does the inmate have an “extraordinary and
compelling” reason justifying a sentence reduction, and (2) do the factors from 18 U.S.C.
§ 3553(a) justify a reduction? Thacker, 4 F.4th at 576; see also United States v. Kurzynowski,
17 F.4th 756, 759 (7th Cir. 2021). At the second step, a district judge has “broad
discretion to consider all relevant information,” Concepcion, 124 S. Ct. at 2398,
potentially including the issues Fredrickson raises. See United States v. King, 40 F.4th 594,
596 (7th Cir. 2022). The only limits at this step, as Concepcion said, come from the
Constitution or Congress. 124 S. Ct. at 2396. But a judge has this discretion only if an
inmate is eligible for a modified sentence, and that is what step one concerns. The
Supreme Court has not said judges have a similar wide-ranging discretion when
deciding if an inmate is eligible for a modified sentence. King, 40 F.4th at 596 (citing
Terry v. United States, 141 S. Ct. 1858 (2021)). Rather, to be eligible, an inmate must
supply a reason that is “extraordinary and compelling,” and supposed legal errors are
neither; indeed, they are routine enough to have their own procedures for addressing
them: direct appeals and collateral attacks. See id. at 595; Thacker, 4 F.4th at 574.
Finally, Fredrickson argues that we should review the Bureau of Prisons’
decision not to move for his release. The Bureau, he says, failed to exercise its authority
to move to reduce his sentence under a policy statement in the Guidelines that allows
the Bureau to bring a motion based on “other reasons.” See U.S.S.G. § 1B1.13 cmt.
n.1(D). He insists that this failure was “arbitrary and capricious,” in violation of the
Administrative Procedure Act.
rule, see F ED. R. A PP . P. 25(a)(2)(A)(iii), the reply is untimely. We interpret his late-filed
brief as a motion to file it instanter, and we grant that motion.

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Fredrickson is not entitled to judicial review of the Bureau’s decision. Review of
an agency’s action under the Administrative Procedure Act is possible only if statutes
or regulations contain “judicially manageable standards … for judging how and when
an agency should exercise its discretion.” Heckler v. Chaney, 470 U.S. 821, 830 (1985);
Peterson v. Barr, 965 F.3d 549, 552 (7th Cir. 2020). But no authority controls the Bureau’s
discretion to decide not to bring a motion for compassionate release. The authority that
empowers the Bureau to bring such a motion, 18 U.S.C. § 3582(c)(1)(A), simply says that
the Bureau can bring a motion. And the applicable regulations merely set forth the
procedure the Bureau uses to process an inmate’s request and file a motion; they do not
suggest substantive criteria for deciding whether to bring one. See 28 C.F.R. §§ 571.60–
.64. Likewise, the policy statement that Fredrickson cites merely allows for the Bureau
to bring motions for “other reasons” “[a]s determined by the Director of the Bureau of
Prisons.” U.S.S.G. § 1B1.13 cmt. n.1(D). But it does not suggest the allowable reasons.
Thus, because the decision of the Bureau not to file a compassionate-release motion on
Fredrickson’s behalf is committed to the Bureau’s full discretion, the Administrative
Procedure Act does not authorize review of that decision. See 5 U.S.C. § 701(a)(2).
AFFIRMED

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