United States of America v. Criss E. Duncan

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 18, 2026*
Decided August 18, 2026
Before
MICHAEL B. BRENNAN, Chief Judge
AMY J. ST. EVE, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 24-3008
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CRISS E. DUNCAN,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of Indiana,
South Bend Division.
No. 3:03-CR-57-JD
Jon E. DeGuilio,
Judge.
O R D E R
Criss Duncan appeals the denial of his motion for compassionate release under
18 U.S.C. § 3582(c)(1)(A)(i). Because the district court correctly determined that a
* 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NONPRECEDENTIAL DISPOSITION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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nonretroactive change in the law is not an extraordinary and compelling reason for
release, we affirm.
In 2003, a jury found Duncan guilty of bank robbery, using a firearm in a crime
of violence, malicious damage to a vehicle, and being a felon in possession of a firearm.
See 18 U.S.C. §§ 2113(a), (d); 924(c); 844(i); 922(g)(1). At sentencing, the district court
found that the firearms used in the bank robbery were machine guns, necessitating a
mandatory minimum of 360 months’ imprisonment for the § 924(c) charge. The court
sentenced Duncan to 97 months for the remaining charges, running consecutively to the
§ 924(c) sentence, resulting in a total sentence of 457 months.
After the Supreme Court decided United States v. Booker, 543 U.S. 220 (2005), we
ordered a limited remand for the district court to determine whether it would impose
the same sentence if resentencing were required. United States v. Duncan, 413 F.3d 680,
684–85 (7th Cir. 2005) (citing United States v. Paladino, 401 F.3d 471, 483–84 (7th Cir.
2005)). The district court resentenced Duncan, without explanation, to a total of 360
months. We vacated that sentence, explaining that under the limited remand, the
district court lacked jurisdiction to resentence Duncan and should have instead
explained whether the now-advisory status of the Guidelines would have impacted
Duncan’s sentencing. United States v. Duncan, 427 F.3d 464, 465 (7th Cir. 2005). The
district court resentenced Duncan to the original 457-month term, explaining the
sentence was appropriate because of the severity of Duncan’s crime and that he was
armed with a fully automatic weapon, and we affirmed. United States v. Duncan,
479 F.3d 924, 930 (7th Cir. 2007).
Duncan filed his first motion for compassionate release in 2021, arguing that his
age and health problems increased his vulnerability to COVID-19 and that his sentence
should be shortened in light of Dean v. United States, 581 U.S. 62, 71 (2017), which
permits courts to offset a statutory-minimum sentence under § 924(c) by adjusting the
sentence for any other offense. The district court denied the motion, explaining that
under United States v. Thacker, 4 F.4th 569, 576 (7th Cir. 2021), and its progeny, a
nonretroactive change in the law (such as the decision in Dean) is not an extraordinary
and compelling reason for a sentence reduction. We affirmed the denial of Duncan’s
motion. See United States v. Duncan, No. 22-1155, 2022 WL 4008717, at *2 (7th Cir. Sept. 2,
2022).
Duncan filed a second motion for compassionate release in December 2023. He
argued that he was eligible for release under the newly amended U.S.S.G. § 1B1.13(b)(6)
because he had received an unusually long sentence, he had served at least ten years,

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changes in the law produced a gross disparity between the sentence he was serving and
the sentence likely to be imposed now, and his individual circumstances (namely his
education and rehabilitation) supported his release. He pointed to three cases decided
after he was sentenced that he argued produced a gross sentencing disparity: Dean;
Alleyne v. United States, 570 U.S. 99 (2013); and Borden v. United States, 593 U.S. 420
(2021). The government opposed Duncan’s motion, arguing that § 1B1.13(b)(6) was
invalid and thus there was no extraordinary and compelling reason for his release.
The district court denied his motion, reasoning that § 1B1.13(b)(6) conflicted with
our precedent. See Thacker, 4 F.4th at 576 (holding that First Step Act’s nonretroactive
anti-stacking amendment to § 924(c) is not an extraordinary and compelling reason for
compassionate release); United States v. Brock, 39 F.4th 462, 466 (7th Cir. 2022)
(expanding Thacker’s reasoning to nonretroactive judicial decisions). The court thus
agreed with the government that § 1B1.13(b)(6) exceeded the Sentencing Commission’s
authority because it purported to allow consideration of nonretroactive changes in law
as an extraordinary and compelling reason for compassionate release. The court also
determined that the cases Duncan cited as evidence of his sentencing disparity were not
retroactive. Because it concluded that Duncan had not provided an extraordinary and
compelling reason for release, the court did not discuss the § 3553(a) factors.
Duncan now appeals. We review questions of law de novo and the ultimate
denial of a motion for compassionate release for abuse of discretion. See United States v.
Williams, 65 F.4th 343, 346 (7th Cir. 2023). Per Duncan’s request, we suspended this
appeal pending the resolution of United States v. Black, in which we upheld Thacker and
concluded that § 1B1.13(b)(6) was invalid insofar as it made the First Step Act’s
anti-stacking amendment an extraordinary and compelling reason for compassionate
release. 131 F.4th 542, 547–48 (7th Cir. 2025). The Supreme Court has since reached the
same conclusion. Rutherford v. United States, 146 S. Ct. 1320, 1335 (2026).
Duncan argues that Black’s holding was cabined to the § 924(c) anti-stacking
amendment and that the Sentencing Commission’s interpretation of “extraordinary and
compelling” in U.S.S.G. § 1B1.13(b)(6) remains intact as to changes in law brought about
by new judicial decisions. The Supreme Court did not necessarily foreclose this
argument in Rutherford because it addressed only nonretroactive sentencing
amendments. See 146 S. Ct. at 1331. But we have applied the same reasoning to new
judicial decisions. Brock, 39 F.4th at 466; see Black, 131 F.4th at 547–48 (explaining
§ 1B1.13(b)(6) has no effect on Thacker and its progeny). Duncan does not contend that

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No. 24-3008 Page 4
there is an alternative extraordinary and compelling reason for his release beyond
changes in the law, and he does not contest that the cases he cites are nonretroactive.
AFFIRMED

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