United States of America v. Alberto Santana-Cabrera

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 28, 2023*
Decided March 29, 2023
Before
DIANE S. SYKES, Chief Judge
ILANA DIAMOND ROVNER, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 22-2056
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALBERTO SANTANA-CABRERA,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of
Indiana, Indianapolis Division.
No. 1:09-cr-00136-JPH-MJD
James Patrick Hanlon,
Judge.
O R D E R
Alberto Santana-Cabrera, a federal prisoner, appeals the denial of his motion for
compassionate release. The district judge reasonably concluded that Santana-Cabrera
did not offer an extraordinary and compelling reason for release, and so we affirm.
* 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. See 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NONPRECEDENTIAL DISPOSITION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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Santana-Cabrera distributed methamphetamine while armed and was convicted
in 2011 of three counts of carrying a firearm during a drug-trafficking crime, 18 U.S.C.
§ 924(c)(1)(A), among other offenses. At that time, the second and third § 924(c) offenses
each triggered a mandatory 300-month minimum consecutive sentence, so together they
made up 600 months of the total 900-month sentence. Id. § 924(c)(1)(C)(i) (2006).
Santana-Cabrera appealed, but we granted his attorney’s motion to withdraw and
dismissed the appeal. United States v. Santana-Cabrera, 464 Fed. App’x 537, 538 (7th Cir.
2012) (citing Anders v. California, 386 U.S. 738 (1967)).
Santana-Cabrera filed a pro se motion for compassionate release under 18 U.S.C.
§ 3582(c) in May 2020. He argued that there was an extraordinary and compelling
reason for release because, under the First Step Act’s amendments to § 924(c), the
minimum terms could not be “stacked” if he were sentenced for the same offenses
today, resulting in a much shorter total sentence. See Pub. L. No. 115-391, § 403(a),
132 Stat. 5194, 5221–22 (codified at 18 U.S.C. § 924(c)(1)(C)). Santana-Cabrera also cited
as extraordinary and compelling reasons the application of an allegedly erroneous
sentencing enhancement, an unwarranted disparity with his codefendants’ sentences,
and his rehabilitation while imprisoned.
The district judge appointed counsel and stayed the case to allow counsel to file
an amended motion. Counsel encountered difficulty communicating with Santana-
Cabrera because he was not fluent in English and his prison had restricted legal calls, so
the judge later extended the stay and granted several extensions.
The supplemental motion filed by counsel developed Santana-Cabrera’s
argument regarding § 924(c) and proposed an additional extraordinary and compelling
reason: He faces a high risk of severe COVID-19 illness while imprisoned because of his
diabetes, hypertension, and obesity. (Counsel also developed the argument that
Santana-Cabrera erroneously received a statutory sentencing enhancement, but
Santana-Cabrera does not argue that issue on appeal, so we do not discuss it further.)
The government opposed the motion. It agreed that Santana-Cabrera’s COVID-19 risk
presented an extraordinary and compelling reason but argued that the amendment of
§ 924(c) did not because it is not retroactive. It also contended that, irrespective of the
potential reasons for release, the sentencing factors of 18 U.S.C. § 3553(a) weighed
against it. See id. § 3582(c)(1)(A).
In July 2021, while the motion was pending, we decided that the nonretroactive
amendment of § 924(c) does not furnish an extraordinary and compelling reason for
compassionate release, United States v. Thacker, 4 F.4th 569, 576 (7th Cir. 2021), nor does

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No. 22-2056 Page 3
an increased COVID-19 risk—unless the prisoner cannot benefit from the COVID-19
vaccine, United States v. Broadfield, 5 F.4th 801, 802–03 (7th Cir. 2021). Soon after, the
judge ordered Santana-Cabrera to show cause why the motion should not be denied
based on these legal developments.
In response, Santana-Cabrera conceded that Thacker forecloses his argument
about the amendments to § 924(c) but argued that he cannot benefit from the COVID-19
vaccine because of his obesity and hypertension. He cited two studies finding that the
vaccine is less effective for individuals with those conditions. He also submitted a
declaration that he had initially refused the vaccine but now had asked to be vaccinated.
The government submitted medical records showing that Santana-Cabrera had received
the vaccine but did not otherwise respond.
The judge denied the motion for compassionate release. Bypassing the argument
about § 924(c) because Santana-Cabrera had conceded it, the judge ruled that Santana-
Cabrera had not shown that he cannot benefit from the vaccine, as Broadfield requires.
The evidence, the judge said, was insufficient because the cited studies were not peer-
reviewed and at most showed that the vaccine is less effective, not ineffective, for those
with Santana-Cabrera’s conditions. And, the judge continued, Santana-Cabrera had not
provided evidence that he faced a greater risk while imprisoned than he would if
released. The judge did not address the parties’ arguments about the § 3553(a) factors.
On appeal, Santana-Cabrera—now proceeding pro se—first argues that his high
COVID-19 risk is an extraordinary and compelling reason, relying on pre-Broadfield
cases granting compassionate release to prisoners with similar health issues and
medical findings demonstrating that those with his conditions face higher COVID-19
risks. We review the denial of his motion for an abuse of discretion. See United States v.
Barbee, 25 F.4th 531, 532 (7th Cir. 2022). As the district judge explained, Santana-
Cabrera’s COVID-19 risk does not suffice unless he shows that he “is more at risk for an
adverse outcome in prison than he would be if released.” Id. at 533. Santana-Cabrera
does not challenge the ruling that he offered no evidence that he faces a greater risk
because of his imprisonment. And if Santana-Cabrera “would remain at comparable
risk outside prison, the possibility of infection cannot be described as an ‘extraordinary
and compelling’ consideration supporting release.” United States v. Vaughn, No. 22-2427,
2023 WL 2522728, at *1 (7th Cir. Mar. 15, 2023).
To forestall that conclusion, Santana-Cabrera invokes, in effect, judicial estoppel:
He argues that the government conceded in the district court that his COVID-19 risk
was an extraordinary and compelling reason and thus cannot take the opposite position

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now. Judicial estoppel “prevents a party from prevailing in one phase of a case on an
argument and then relying on a contradictory argument to prevail in another phase.”
CSI Worldwide, LLC v. TRUMPF Inc., 944 F.3d 661, 662 (7th Cir. 2019) (quoting New
Hampshire v. Maine, 532 U.S. 742, 749 (2001)). But the doctrine does not apply here
because the government did not prevail on its argument in the district court: The judge
rejected the proposition that Santana-Cabrera had any extraordinary and compelling
reason. The government is free to defend the judge’s decision on appeal. See id. at 663.
(We note, too, that the resolution of this motion was protracted, and that the
government’s position on COVID-19 has likely evolved considerably since May 2020.)
Santana-Cabrera also argues that the amendment of § 924(c) is an extraordinary
and compelling reason. He contends that our contrary view, first announced in Thacker,
runs afoul of the more recent Concepcion v. United States, 142 S. Ct. 2389 (2022), and that
a judge is free to consider nonretroactive changes in the law when deciding whether a
prisoner has an extraordinary and compelling reason for early release.
This argument fails for two reasons. First, we need not consider it because in
responding to the show-cause order, Santana-Cabrera dropped the argument by
conceding that Thacker foreclosed it. See United States v. Martin, 21 F.4th 944, 945
(7th Cir. 2021). Second, as we have explained multiple times, Concepcion is irrelevant
here because it addressed what a judge may consider at a resentencing, not whether a
prisoner has shown an extraordinary and compelling reason for a sentence reduction
under § 3582(c)(1)(A). United States v. King, 40 F.4th 594, 596 (7th Cir. 2022); United States
v. Peoples, 41 F.4th 837, 842 (7th Cir. 2022); see Concepcion, 142 S. Ct. at 2398–400.
Santana-Cabrera raises three other arguments, but none is persuasive. First, he
argues that the district judge improperly refused to consider his argument about
§ 924(c). The record shows otherwise: This argument led to the post-Thacker show-cause
order, and in later denying the motion, the judge pointed to Santana-Cabrera’s
concession that Thacker doomed the argument. Second, Santana-Cabrera argues that the
judge overlooked his rehabilitation. But rehabilitation cannot be an extraordinary and
compelling reason on its own. Peoples, 41 F.4th at 841. And, although it can be relevant
to a judge’s assessment of the § 3553(a) factors, here the judge did not have to get to that
step of the analysis. See United States v. Ugbah, 4 F.4th 595, 598 (7th Cir. 2021). Finally,
Santana-Cabrera argues that his continued confinement in “an unsafe environment”
despite his health conditions constitutes cruel and unusual punishment in violation of
the Eighth Amendment. But the Constitution does not grant a right to release from an
otherwise lawful sentence, and to the extent relief under § 3582(c) is unavailable, a

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federal prisoner “may still directly challenge any inadequate medical care he receives,
or any medically unsafe conditions of confinement” through ordinary channels. United
States v. Bridgewater, 995 F.3d 591, 599 (7th Cir. 2021), cert. denied, 142 S. Ct. 476 (2021).
AFFIRMED

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