United States of America v. Marcello Mays

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 11, 2022*
Decided April 11, 2022
Before
DAVID F. HAMILTON, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 21-2324
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARCELLO MAYS,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 17-cr-96-pp
Pamela Pepper,
Chief Judge.
O R D E R
Marcello Mays, a federal inmate who has hypertension, appeals the district court’s
denial of his second motion to reconsider its denial of compassionate release. See 18 U.S.C.
§ 3582(c)(1)(A)(i). The district court concluded that Mays had not shown that his medical
circumstances were extraordinary and compelling, and that the sentencing factors under
18 U.S.C. § 3553(a) weighed against early release. We affirm.
* We have agreed to decide this 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NONPRECEDENTIAL DISPOSITION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. 21-2324 Page 2
In June 2020, less than a year into a 100-month sentence he is serving for various
drug charges, 18 U.S.C. § 2; 21 U.S.C. §§ 841(b)(1)(c), 846, Mays sought compassionate
release under § 3582(c) based on his risk of severe illness from hypertension and
COVID-19. The government opposed the motion, arguing that Mays’s hypertension
was well-managed with medication and did not create extraordinary and compelling
reasons for release. The court denied Mays’s request, noting that Mays—then 39 years
old—was “young and relatively healthy,” and that the Centers for Disease Control and
Prevention did not regard individuals with controlled hypertension as more vulnerable
to severe illness from COVID-19. The court also concluded, based on the sentencing
factors under § 3553(a), that the seriousness of his offense (he had managed a drug
house and carried a gun while distributing heroin), his lengthy criminal history, and his
substantially below-guidelines sentence disfavored release.
In December 2020, Mays sent the district court a letter requesting compassionate
release. He asserted that his hypertension, pre-diabetes, and family history of heart
disease and liver failure increased his risk of serious illness in prison if infected with
COVID-19. Two months later, the court construed the letter as a motion to reconsider
and denied the request for the same reasons as in its prior order.
In June 2021, Mays again moved to reconsider, arguing that he remained
hypertensive and that, as a black man, he had an increased risk of a severe illness if
infected. He included two medical studies discussing the transmissibility of COVID-19 in
prisons, a CDC webpage listing hypertension as a risk factor, and news articles on racial
and gender disparities in COVID-19 outcomes. Mays also urged the court to consider his
age and education level, which, he maintained, made him unlikely to reoffend.
The court denied Mays’s second motion for reconsideration, finding “no reason to
revisit” its original denial of Mays’s motion for compassionate release. The court pointed
out that the medical experts did not agree on the risks of severe illness from COVID-19 for
an otherwise healthy person with hypertension but, regardless, the § 3553(a) factors—the
seriousness of Mays’s offenses, his extensive criminal history, and the substantial time
remaining on his sentence—“militate[d] strongly” against compassionate release.
Before we proceed to the merits of this appeal, we pause to ensure that we have
jurisdiction. Although Mays appealed less than 14 days after the court denied his
second motion to reconsider, see F ED. R. A PP . P. 4(b)(1)(A)(i), that motion did not
suspend the finality of the court’s order denying his first motion to reconsider because
he did not move for reconsideration within 14 days of its entry. See United States v.

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No. 21-2324 Page 3
Rollins, 607 F.3d 500, 502 (7th Cir. 2010). And Mays did not file his notice of appeal until
five months after that order. See F ED. R. A PP . P. 4(b)(1)(A)(i). But because the
government does not argue that Mays’s second motion to reconsider was ineffectual,
we decline to enforce the 14-day rule, which is not jurisdictional. Rollins, 607 F.3d at 501.
We now turn to the merits of Mays’s challenge to the denial of his second motion
for reconsideration. He continues to argue that his risk from COVID-19 and hypertension
qualify him for release under § 3582(c), and that the § 3553(a) factors, properly weighed,
favor his release. But the district court acted well within its discretion by not accepting
these contentions. See United States v. Gunn, 980 F.3d 1178, 1180 (7th Cir. 2020). All the
court had to do was evaluate the § 3553(a) sentencing factors and identify “just one good
reason” to deny compassionate release. United States v. Rucker, 27 F.4th 560, 563 (7th Cir.
2022). Here, the court provided more than one good reason: it explained that early release
was outweighed by the seriousness of Mays’s original offenses, his extensive criminal
history, and the fact that he had served less than a third of his sentence.
AFFIRMED

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