United States of America v. Terrell McGee

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 28, 2023*
Decided March 29, 2023
Before
DIANE S. SYKES, Chief Judge
ILANA DIAMOND ROVNER, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 22-2223
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TERRELL MCGEE,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of
Illinois.
No. 15-cr-30075-SMY
Staci M. Yandle, Judge.
O R D E R
Terrell McGee, a federal prisoner, appeals the denial of his motion for
compassionate release. The district judge did not abuse her discretion in concluding
that McGee offered no extraordinary and compelling reason for release, so we affirm.
After assisting in the armed robbery of two gas stations, McGee pleaded guilty in
2017 to two counts of discharging a firearm during a violent crime, 18 U.S.C.
* We have agreed to decide the case without oral argument because the issues
have been authoritatively decided. F ED. R. A PP . P. 34(a)(2)(B).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 22-2223 Page 2
§ 924(c)(1)(A)(iii), among other offenses. He was sentenced to 300 months’
imprisonment, the minimum sentence at the time for the second § 924(c) count.
Id. § 924(c)(1)(C)(i) (2006). McGee appealed, but we granted his attorney’s motion to
withdraw and dismissed the appeal. United States v. McGee, 750 F. App’x 489, 489–90
(7th Cir. 2019) (citing Anders v. California, 386 U.S. 738 (1967)).
McGee moved in 2022 for compassionate release under 18 U.S.C. § 3582(c)(1)(A),
arguing that the First Step Act’s amendments to § 924(c) constituted an extraordinary
and compelling reason for his release because he would face lower penalties if he were
sentenced today. See Pub. L. No. 115-391, § 403, 132 Stat. 5194, 5221–22. The district
judge denied the motion on the ground that our decision in United States v. Thacker,
4 F.4th 569, 576 (7th Cir. 2021), precluded consideration whether a nonretroactive legal
change could be an extraordinary and compelling reason for release. And because
McGee had not furnished an extraordinary and compelling reason for release, the judge
added that she need not consider the sentencing factors of 18 U.S.C. § 3553(a) at all.
On appeal, McGee argues that the district judge abused her discretion by
refusing to consider the sentencing factors. But the judge did not err: A judge may
reduce a sentence upon consideration of the § 3553(a) factors only after finding that
“extraordinary and compelling reasons warrant such a reduction.” 18 U.S.C. § 3582(c);
see also United States v. Ugbah, 4 F.4th 595, 598 (7th Cir. 2021). Here, that condition
precedent was not met.
Next, McGee argues that we should overrule Thacker, which he says departs from
decisions from other courts of appeals, see, e.g., United States v. Maumau, 993 F.3d 821,
837 (10th Cir. 2021); United States v. McCoy, 981 F.3d 271, 286 (4th Cir. 2020), and
improperly limits judges’ discretion to decide what constitutes an extraordinary and
compelling reason. We decline the invitation. McGee offers no compelling reason to
overturn our precedent, see Campbell v. Kallas, 936 F.3d 536, 544 (7th Cir. 2019), and
indeed we repeatedly have reaffirmed Thacker’s reasoning. See, e.g., United States v. King,
40 F.4th 594, 595–96 (7th Cir. 2022); United States v. Peoples, 41 F.4th 837, 841–42 (7th Cir.
2022). Moreover, in Thacker we spelled out our rationale for rejecting the arguments that
McGee raises here. In disagreeing with the decisions on which McGee relies, we
acknowledged the “broad discretion” afforded district judges under the compassionate-
release statute, but we emphasized that judges cannot use that discretion to circumvent
“Congress’s express determination … that the amendment to § 924(c)’s sentencing
structure apply only prospectively.” Thacker, 4 F.4th at 573–74.
We have considered McGee’s remaining arguments, but none merits discussion.
AFFIRMED

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