United States of America v. Clacy Watson Herrera

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 16, 2024*
Decided March 7, 2024
Before
MICHAEL Y. SCUDDER, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 23-2310
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CLACY WATSON HERRERA,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern
Division.
No. 01 CR 01098-1
Rebecca R. Pallmeyer,
Chief Judge.
O R D E R
Clacy Herrera, a federal prisoner, moved for compassionate release based on his
prostate cancer and the heightened risk of severe illness from COVID-19. See 18 U.S.C.
* 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NONPRECEDENTIAL DISPOSITION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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No. 23-2310 Page 2
§ 3582(c)(1). The district court denied his motion, concluding that Herrera had not
demonstrated an “extraordinary and compelling” reason for an early release and that
the relevant factors under 18 U.S.C. § 3553(a) weighed against it. We affirm.
In 2010, a jury found Herrera guilty of multiple offenses for his role in a
conspiracy to import and export cocaine and heroin. See 21 U.S.C. §§ 952, 963. His
offense conduct included directing women who brought liquified cocaine concealed in
cans of baby formula into the United States. The women had babies with them while
they did this; some brought their own children, while others brought children who
were “rented” from parents in Chicago.
The district court sentenced Herrera, in 2011, to 340 months’ imprisonment. He
appealed his conviction, and we affirmed. See United States v. Herrera, 704 F.3d 480
(7th Cir. 2013). In 2022, the district court granted Herrera’s motion for a sentence
reduction based on retroactive changes to the Sentencing Guidelines; the court reduced
his sentence to 258 months’ imprisonment. See 18 U.S.C. § 3582(c)(2).
Before that ruling, Herrera also filed an emergency motion for compassionate
release under 18 U.S.C. § 3582(c)(1)(A) and asked the district court to appoint counsel
for him. He argued that his prostate cancer and risk of serious illness from COVID
because of the cancer and other conditions were extraordinary and compelling reasons
for release. He further asserted that he could not access adequate medical care in prison
and that the conditions there increased his likelihood of contracting COVID. He also
emphasized that his drug offenses were nonviolent.
The government opposed the motion, asserting that Herrera’s medical records
showed that he had received the COVID vaccine and that he had declined treatment for
his prostate cancer. The government also argued that the § 3553(a) factors—especially
the seriousness of the offense conduct—counseled against Herrera’s release.
The district court ordered the government to produce Herrera’s most recent
medical records, in part to verify the assertion that Herrera had declined treatment. The
records trickled in slowly, and more than a year after ordering their production, the
court held a status hearing. When discussing his release plan during this hearing,
Herrera mentioned that he would seek legitimate employment outside prison.
Once it had complete medical records, the district court denied Herrera’s motion.
The court explained that Herrera’s risk of severe illness from COVID was not
extraordinary and compelling because he had received a vaccine in 2021. And although
his prostate cancer was concerning, it was “not so grave as to suggest he is near the end
of life,” and he was by now receiving treatment. The court added, citing Herrera’s

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No. 23-2310 Page 3
statement about seeking employment, that Herrera himself did not seem to think his
condition was incapacitating. Regardless, the court said, the factors under § 3553(a),
particularly the nature of his offense, weighed against his early release. The court then
observed that if Herrera’s condition changed, he could file a new motion. We review the
court’s decision for an abuse of discretion. United States v. Rucker, 27 F.4th 560, 562
(7th Cir. 2022).
On appeal, many of Herrera’s arguments target the district court’s conclusion
that he did not present an extraordinary and compelling reason for release. But even if
Herrera had met his burden on that point, he cannot succeed because the court did not
abuse its broad discretion in concluding that the § 3553(a) factors weighed against
release. Id. at 563. This is an independent and sufficient ground for denying a request
for early release. See id.
Herrera’s contention that the district court failed to explain or properly weigh
some of the factors it considered in the § 3553(a) analysis, such as his risk of recidivism
and the quality of his release plan, is unavailing. Though the court did not elaborate on
every factor it listed as relevant, it went on to explain those it found most significant. It
acknowledged Herrera’s good conduct in prison, including a clean disciplinary record
and rehabilitative efforts. But it ultimately concluded that the “very troubling” nature of
his offenses nevertheless called for his continued imprisonment. The court emphasized
the drug conspiracy’s high level of sophistication and characterized recruiting young
women and “renting” babies as “conduct that genuinely shocks the conscience.” This
reasonable weighing of aggravating and mitigating factors was not an abuse of
discretion. See United States v. Saunders, 986 F.3d 1076, 1078 (7th Cir. 2021).
Herrera’s arguments about the status hearing at which he made statements that
the court cited when denying his motion do not alter our conclusion. He asserts that he
was unsure of his rights at the hearing and that he was entitled to counsel. First, to the
extent that he suggests that he had a right to a full evidentiary hearing, no hearing is
required by statute. See Rucker, 27 F.4th at 562– 63. Second, Herrera does not support his
assertion that he was entitled to counsel at the hearing or otherwise. He states that a
standing order establishes an entitlement to counsel. But he quotes an order from an
out-of-circuit district court. Neither this court, nor the Northern District of Illinois, had a
standing or general order requiring counsel to be assigned to prisoners seeking
compassionate release. Nor have we issued any decision suggesting that a district court
must consider appointing counsel before adjudicating a compassionate-release motion.
Further, Herrera has not shown any prejudice. He suggests that because he
represented himself, he could not “present important documentary evidence,”

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seemingly about his release plan, or make an allocution. But he has not explained how
this could have altered the court’s conclusion that the seriousness of his offense
weighed against release. And to the extent that Herrera complains of the court relying
on his statements at the hearing about his desire for employment, this was not part of
the court’s § 3553(a) analysis; it was a comment on his medical outlook.
Additionally, Herrera argues that the district court’s statement that he may file a
new compassionate-release motion should his condition “materially worsen” is unclear
and suggests he must wait until he is in imminent danger before filing a new motion.
We disagree. The court cannot, and did not, proscribe when or on what grounds
Herrera could file a second motion; it suggested what changed circumstances might, in
its judgment, merit relief in the future.
Finally, Herrera argues that the Bureau of Prisons erred in calculating his new
release date after the reduction of his sentence under 18 U.S.C. § 3582(c)(2). The Bureau
previously gave him credit for time he spent awaiting extradition in Panama (about
20 months), but after his sentence reduction, the Bureau eliminated that credit,
seemingly in reliance on the district court’s order. In his reply brief, Herrera asserts that
he attempted to amend his compassionate-release motion to argue that the
miscalculation was an extraordinary and compelling reason for release. But this issue is
generally within the Bureau’s purview, see 18 U.S.C. § 3624; Manuel v. Terris, 803 F.3d
826, 828 (7th Cir. 2015), and a § 2241 petition is the way to challenge the Bureau’s
determination. See United States v. Walker, 917 F.3d 989, 994 (7th Cir. 2019). Herrera’s
challenge to the duration of the sentence from which he seeks relief is not within the
scope of his compassionate-release motion, the only subject of this appeal.
AFFIRMED

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