United States of America v. Damon Rucker

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-2001
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
DAMON R UCKER ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 13CR-50005-1 — John Robert Blakey, Judge.
____________________
A RGUED J ANUARY 25, 2022 — DECIDED M ARCH 2, 2022
____________________
Before RIPPLE, WOOD, and JACKSON -A KIWUMI , Circuit
Judges.
PER C URIAM . Damon Rucker, a federal inmate who is obese
and has hypertension, appeals the denial of his motion for
compassionate release based on his heightened risk of
COVID-19. See 18 U.S.C. § 3582(c)(1)(A)(i). The district court
concluded that Rucker had not shown that his medical cir-
cumstances were extraordinary and compelling, and the sen-
tencing factors of 18 U.S.C. § 3553(a) weighed against early

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2 No. 21-2001
release. Because the district court did not abuse its discretion
in applying the factors under § 3553(a), we affirm.
Rucker is serving a 240-month sentence for witness retali-
ation. See 18 U.S.C. § 1513(b)(1). While awaiting a jail transfer
in 2012, Rucker attacked a fellow prisoner who had testified
against him at sentencing. Rucker slammed the man’s head
against a concrete wall, causing the man to collapse to the
floor and convulse. United States v. Rucker, 766 F.3d 638, 642
(7th Cir. 2014) (affirming sentence).
In October 2020, Rucker moved for a sentence reduction
under § 3582(c)(1)(A)(i). He argued that he had an extraordi-
nary and compelling reason for release—his medical condi-
tions (obesity, hypertension, pre-diabetes, poor eyesight, pos-
sible sickle cell trait, and his then-current COVID-19 infec-
tion) combined with the spread of COVID-19 throughout the
prison. He also argued that early release was supported by
the § 3553(a) sentencing factors, specifically his history and
characteristics (including a traumatic childhood during
which his mother died and his father abused drugs, and his
successful completion of anger management and drug abuse
courses while in prison). And he argued that potential errors
in his original sentence supported his request for early re-
lease.
The government responded that early release would not
be consistent with the factors under § 3553(a) because of the
serious and violent nature of the offense, Rucker’s criminal
history (which included prior convictions for damage to
property, battery, home invasion, and drug trafficking), and
the need to protect the public because of his risk of recidivism.
The government noted that Rucker’s medical records reflect
that the prison had been treating his hypertension

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No. 21-2001 3
appropriately, as well as his COVID-19 infection, during
which he had remained asymptomatic. (Rucker, however, as-
serted in an affidavit that he did experience symptoms during
his COVID-19 infection.)
In May 2021, the district court denied the motion for com-
passionate release. Because the court’s explanation was terse,
we reproduce it here in its entirety:
Although there has been no “applicable” state-
ment since the First Step Act expanded the com-
passionate-release statute, the formerly control-
ling statement, U.S.S.G. § 1B1.13, may continue
to inform the district court’s discretion. United
States v. Gunn, 980 F.3d 1178, 1180 (7th Cir.
2020). Here, Defendant has exhausted adminis-
trative remedies, but this Court finds that the
record fails to warrant a reduction in sentence
under 18 U.S.C. § 3582(c)(1)(A), after full consid-
eration of the factors provided in 18 U.S.C.
§ 3553 and the applicable policy statements is-
sued by the Sentencing Commission. Among
other factors, the record confirms that, even
though the coronavirus outbreak is serious, the
facts do not support defendant’s claim that his
medical conditions, combined with the COVID-
19 conditions and in-custody procedures and
medical care, warrant a reduction in his sen-
tence due to extraordinary and compelling rea-
sons. Even though Defendant tested positive for
the virus, he remained asymptomatic and re-
covered. Based upon the entire record, the de-
fendant fails to meet the criteria of U.S.S.G.

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4 No. 21-2001
§ 1B1.13. The record also confirms that he con-
stitutes a risk of recidivism and a danger to the
safety of other persons and the community (ev-
idenced, among other things, by his prior crim-
inal conduct consisting of numerous convic-
tions including a violent attack on a cooperating
witness), and that a sentence reduction other-
wise remains inconsistent with the need under
18 U.S.C. § 3553 for the sentence to reflect the se-
riousness of, and to provide just punishment
for, defendant’s underlying offense.
We review the denial of a motion for compassionate re-
lease for abuse of discretion. United States v. Gunn, 980 F.3d
1178, 1180 (7th Cir. 2020). A court may grant a motion for com-
passionate release if, after considering the factors under
§ 3553(a), it determines that extraordinary and compelling
reasons warrant release. § 3582(c)(1)(A)(i).
Rucker first argues that the district court erred by relying
on the outdated policy statement set forth in U.S.S.G. § 1B1.13.
That policy statement, which implements the compassionate-
release statute, has not been updated since the statute was
amended to allow prisoners to file motions for compassionate
release. First Step Act of 2018, Pub. L. 115-391, 132 Stat. 5194.
Because it has not been updated, U.S.S.G. § 1B1.13 is not bind-
ing on a district court when a prisoner moves for compassion-
ate release. See Gunn, 980 F.3d at 1180. But Rucker’s argument
fails because the district court recognized the non-binding na-
ture of U.S.S.G. § 1B1.13 and permissibly used it as a guide.
See United States v. Kurzynowski, 17 F.4th 756, 760 (7th Cir.
2021).

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No. 21-2001 5
Rucker next argues that the district court erred by failing
to consider the medical conditions at the prison (which led to
over half the prisoners being infected with COVID-19) as well
as his specific health conditions (including obesity, hyperten-
sion, and his COVID-19 infection). He also argues that the dis-
trict court erred when it considered his COVID-19 infection to
be asymptomatic, despite his affidavit that he experienced
symptoms. Rucker relatedly contends that the district court
should have conducted an evidentiary hearing, but no hear-
ing was required by statute. See § 3582(c)(1)(A)(i).
The district court’s assessment of Rucker’s COVID-19 risk
was cursory. The court made only generalized references to
his “medical conditions, combined with the COVID-19 condi-
tions and in-custody procedures and medical care,” and
found that these did not present extraordinary and compel-
ling reasons for release. The court also suggested, without
supporting medical evidence, that Rucker’s prior infection—
asymptomatic or otherwise—affected his future risk of infec-
tion and future health. In United States v. Newton, 996 F.3d 485,
489 (7th Cir. 2021), another compassionate-release case, we
emphasized that a district court’s analysis, at a minimum,
must reasonably assure us that it at least considered the pris-
oner’s principal arguments. We also cautioned district courts
to avoid drawing “medical conclusions about the ramifica-
tions of a future infection without any supporting medical ev-
idence in the record.” Id. at 490.
But any error here is harmless because the court acted
within its broad discretion in finding that the § 3553(a) factors
did not favor release. See United States v. Saunders, 986 F.3d
1076, 1078 (7th Cir. 2021). Rucker disputes the manner in
which the court weighed the § 3553(a) factors. But the court

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6 No. 21-2001
highlighted the need to protect the public from further crimes
(noting Rucker’s numerous prior convictions and risk of re-
cidivism) and the need to reflect the seriousness of the offense
and provide just punishment for the offense (“a violent attack
on a cooperating witness”), and just one good reason for
denying a compassionate-release motion suffices.
See United States v. Ugbah, 4 F.4th 595, 598 (7th Cir. 2021).
Rucker also invoked potential errors that, he believes,
tainted his original sentence. But Rucker did not raise an ar-
gument about potential sentencing errors in his direct appeal
and “a claim of errors in the original sentencing is not itself an
extraordinary and compelling reason for release.” United
States v. Martin, 21 F.4th 944, 946 (7th Cir. 2021).
We close with an observation about COVID-19 vaccines in
the context of requests for compassionate release. The govern-
ment points to our language in United States v. Broadfield,
5 F.4th 801, 803 (7th Cir. 2021), in which we said that the avail-
ability of vaccines had effectively eliminated the risks of
COVID-19 to most federal prisoners. But that opinion was
handed down before Omicron became the dominant variant
in this country (with an increase in breakthrough infections
among the fully vaccinated). And it included a safety valve for
prisoners to show that they are unable to receive or benefit
from a vaccine, or that they remain vulnerable to severe infec-
tion, notwithstanding the vaccine. Id. Recent events under-
score the need for a district court’s opinion to leave us assured
that it considered the applicant’s individualized arguments
and evidence. See Newton, 996 F.3d at 491.
AFFIRMED

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