United States of America v. Dupree Penn

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 3, 2023*
Decided February 6, 2023
Before
ILANA DIAMOND ROVNER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 22-1873
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DUPREE PENN,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 13-cr-00102
Charles R. Norgle,
Judge.
O R D E R
Dupree Penn, a federal prisoner, appeals the denial of his second motion for
compassionate release. 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. 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NONPRECEDENTIAL DISPOSITION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. 22-1873 Page 2
Penn is serving a 200-month sentence in prison after pleading guilty to one count
of possessing a controlled substance with intent to distribute, 21 U.S.C. § 841(a)(1), and
one count of possessing a firearm as a felon, 18 U.S.C. § 922(g)(1).
In mid-2020, Penn filed his first motion for compassionate release, 18 U.S.C.
§ 3582(c)(1)(A)(i), based on his Type I diabetes. The district court denied the motion,
explaining that Penn had not exhausted his administrative remedies; that the prison
was able to manage Penn’s diabetes, even in the face of the COVID-19 pandemic; and
that the sentencing factors under 18 U.S.C. § 3553(a) weighed against release.
In 2022, Penn moved for compassionate release a second time, arguing that his
diabetes—in combination with his rehabilitation, his advancing age (which made him
unlikely to reoffend), and his supportive family—presented extraordinary and
compelling reasons for release. The district court denied this motion too. The court
explained that it already resolved this issue when it denied Penn’s prior motion.
On appeal, Penn argues that the district court erred by ignoring the nonmedical
factors listed in his second motion (that is, rehabilitation, age, and family support). He
apparently regards these nonmedical factors as intervening changes of fact that a
district judge must consider when adjudicating a compassionate-release motion. He
cites Concepcion v. United States, 142 S. Ct. 2389, 2396 (2022), which held that district
courts have discretion to consider intervening changes of fact (or law) when
resentencing under the First Step Act.
But the context of Concepcion was a resentencing under the First Step Act. Id. That
case does not address how a district court determines whether a prisoner has shown an
extraordinary and compelling reason for compassionate release. United States v. King,
40 F.4th 594, 595–96 (7th Cir. 2022). Regardless, the district court appropriately declined
to discuss Penn’s new arguments in his second motion because they were weak or
unsupported. See United States v. Joiner, 988 F.3d 993, 995 (7th Cir. 2021). For instance,
Penn’s age and family ties were known at the time of his original sentencing, see United
States v. Ugbah, 4 F.4th 595, 597 (7th Cir. 2021), and one’s efforts at rehabilitation—
however commendable—are not generally extraordinary and compelling.
AFFIRMED

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