United States of America v. DANNYE T. McINTOSH

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 4, 2023*
Decided May 12, 2023
Before
ILANA DIAMOND ROVNER, Circuit Judge
JOHN Z. LEE, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 22-2326
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DANNYE T. McINTOSH,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of
Indiana, Indianapolis Division.
No. 1:05-cr-00119-JMS-TAB
Jane Magnus-Stinson,
Judge.
O R D E R
Dannye McIntosh, a federal prisoner, appeals the denial of his motion for
compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i). Because the district court
properly ruled that his reasons for release—nonretroactive changes in law—were not
extraordinary and compelling grounds for 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. 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NONPRECEDENTIAL DISPOSITION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. 22-2326 Page 2
McIntosh was convicted in 2005 of possessing more than 100 kilograms of
marijuana. See 21 U.S.C. § 841(a)(1). The court ruled that he was a “career offender”
under the Sentencing Guidelines, see U.S.S.G. § 4B1.1 (2002), and imposed a within-
guidelines sentence of 30 years’ imprisonment. We affirmed on direct appeal and noted
that the career-offender enhancement nearly tripled his sentence. See United States v.
Black, Nos. 06-1803 & 06-1817, 2007 WL 959411, at *4 (7th Cir. Mar. 30, 2007).
Years later, McIntosh unsuccessfully moved to vacate his sentence under
28 U.S.C. § 2255, arguing that the “career offender” provision of the Guidelines was
unconstitutionally vague. He relied on Johnson v. United States, 576 U.S. 591, 597 (2015),
which held that a statute with similar wording was void for vagueness. The district
court explained that the challenge was foreclosed by Beckles v. United States, 580 U.S.
256, 264–67 (2017), which observed that, unlike the statute in Johnson, the Guidelines are
advisory, see United States v. Booker, 543 U.S. 220, 245 (2005), and thus the “career
offender” provision is not subject to a void-for-vagueness constitutional challenge.
McIntosh did not appeal the district court’s decision.
McIntosh later moved for compassionate release, see 18 U.S.C. § 3582(c)(1)(A)(i),
submitting two arguments. First, he noted that he was sentenced before the passage of
the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, which had since lowered
the mandatory-minimum sentence for his offense from 20 to 15 years. See First Step Act
§ 401(a)(2)(i). The Act’s reduction was prospective only, see id. § 401(c), but McIntosh
argued that the change nevertheless supplied an extraordinary and compelling reason
to reduce his sentence. The court disagreed. It explained that his argument was
foreclosed by United States v. Thacker, 4 F.4th 569, 574–75 (7th Cir. 2021), which held that
a nonretroactive change to a mandatory-minimum sentence was not an extraordinary
and compelling reason for compassionate release. See also United States v. Martin,
21 F.4th 944, 946 (7th Cir. 2021).
Second, he revived the argument in his § 2255 motion that the “career offender”
Guideline was unconstitutional and thus sentencing him as one was “plain error.” The
district court rejected this reason for compassionate release because criminal defendants
who assert sentencing errors must raise them either on direct appeal or—as McIntosh
did—collaterally through § 2255. Id. Having found no reason to reduce McIntosh’s
sentence, the court denied the motion.
McIntosh presents two arguments in his appeal of that decision, which we
review for abuse of discretion. United States v. Saunders, 986 F.3d 1076, 1078 (7th Cir.

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No. 22-2326 Page 3
2021). First, he contends that Thacker was “explicitly overruled” in Concepcion v. United
States, 142 S. Ct. 2389 (2022). He reads Concepcion as allowing district courts to consider
nonretroactive, intervening changes of law when deciding compassionate-release
motions. But we have explained that “nothing in Concepcion calls into question our
decision in Thacker,” United States v. Peoples, 41 F.4th 837, 842 (7th Cir. 2022), because
Concepcion does not bear on Thacker’s “threshold question whether any given prisoner
has established an ‘extraordinary and compelling’ reason for release,” United States v.
King, 40 F.4th 594, 596 (7th Cir. 2022). In answering that threshold question, “judges
must not rely on non-retroactive statutory changes” to the law. Id. at 595.
McIntosh’s only other contention on appeal is that he presented multiple
grounds that, together, meet the threshold for relief. We have encouraged district
judges to consider reasons for compassionate release cumulatively, see United States v.
Vaughn, 62 F.4th 1071, 1072–73 (7th Cir. 2023), but the district court did not err in this
regard. Nonretroactive statutory changes do not warrant compassionate release either
“alone or in combination with other factors.” Thacker, 4 F.4th at 576. That leaves
McIntosh’s career-offender “error,” which the court properly rejected as by itself
insufficient. See Martin, 21 F.4th at 946.
We close with a final observation. McIntosh noted in his motion for
compassionate release that the career-offender Guideline was amended in 2016 to
accord with Johnson. To the extent that he wants us to treat the amendment as
warranting sentence relief under 18 U.S.C. § 3582(c)(2), which covers retroactive
amendments to the Guidelines, his contention fails because the amendment is not
retroactive. See U.S.S.G. § B1.10(a)(1), (a)(2)(A), (d).
AFFIRMED

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