United States of America v. Kelly Harper

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 18, 2023*
Decided October 3, 2023
Before
DIANE P. WOOD, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 23-1506
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KELLY HARPER,
Defendant-Appellant.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 21-cr-18-wmc-1
William M. Conley,
Judge.
O R D E R
Kelly Harper appeals the denial of her motions for compassionate release and
sentence reduction under 18 U.S.C. § 3582(c)(1)(A). She is currently serving a 72-month
sentence after pleading guilty to a murder-for-hire scheme in 2021. See 18 U.S.C.
* 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NONPRECEDENTIAL DISPOSITION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. 23-1506 Page 2
§ 1958(a). The district court properly ruled that some of her proffered grounds for
release (untreated cancer and in-prison abuse) were unsubstantiated and the others
(alleged trial errors and rehabilitation) did not warrant release. Therefore, we affirm.
Harper moved for compassionate release in 2023. As relevant to this appeal, she
first asserted that she faced an increased risk of serious illness from COVID-19 because
of her skin cancer diagnosis. A dermatologist from the Mayo Clinic (whom the Bureau
of Prisons had enabled her to see) verified her condition, but she worries that the
Bureau is ignoring the condition. Second, she asserted without elaboration that the
Bureau has allowed her to be physically, emotionally, and sexually abused. Third, she
contended that she has been rehabilitated through her completion of vocational
programs and her service as a tutor for other prisoners. Finally, she argued that during
her criminal case the prosecutor violated her due process rights, and the judge gave her
a disparate sentence.
The district court denied Harper’s motion. It first determined that Harper had
not shown that her skin cancer put her at a higher risk of negative health outcomes if
she contracted COVID-19, nor had she shown that the Bureau was ignoring her cancer,
given that Harper’s dermatology consultation at the Mayo Clinic showed that the
Bureau was addressing it. Next, the court ruled that Harper’s allegations of abuse
lacked any substantiating details that might establish grounds for release. Then the
court observed that post-sentencing rehabilitation was not alone a basis for a sentence
reduction under 18 U.S.C. § 3742(a). Finally, regarding her criminal trial, the court
explained that she had to raise on a direct appeal or collateral attack any arguments
about prosecutorial problems or sentence length.
On appeal, Harper resubmits her motion and contends that she has presented,
collectively, the “extraordinary and compelling reasons” required under the
compassionate-release statute for early release. 18 U.S.C. § 3582(c)(1)(A). We review for
abuse of discretion the district court’s findings that Harper did not meet this standard.
United States v. Barbee, 25 F.4th 531, 532 (7th Cir. 2022).
First, apparently replying to the court’s rejection of rehabilitation and sentence
length as justifying a sentence reduction, she argues that the United States Sentencing
Commission’s Amendment 814, altering U.S.S.G. § 1B1.13, would support her release.
But the Commission’s amendments will not become effective until November 2023 (and
may not become effective even then if Congress intervenes). Because the amendments
are not now effective, we may not give an advisory opinion on their hypothetical
application to Harper’s motion. See Hall v. Beals, 396 U.S. 45, 48 (1969).

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No. 23-1506 Page 3
Second, Harper contends that her cancer diagnosis and claims of abuse support
her case of extraordinary and compelling reasons for release, but she has not offered a
reason to disturb the district court’s contrary finding. She has the burden of proving the
severity of her cancer and any increased risk to her health from COVID-19, see Barbee,
25 F.4th at 533, as well as her claims of abuse. But she did not provide evidence about
the risks from her cancer or detail any assertions of abuse. Nor did she show that the
Bureau was refusing to address her cancer or respond to concerns of mistreatment. (As
the district court rightly observed, Harper’s medical records show that the Bureau is
monitoring her condition with an outside dermatology consultation.) In any case, if
Harper believes that the Bureau is ignoring her, she must show that available civil
remedies are useless and that the prison is needlessly putting her “at greater risk of a
dire outcome inside prison than [she] would be outside.” United States v. Vaughn, 62
F.4th 1071, 1071–72 (7th Cir. 2023). She has not done so.
Next, Harper reiterates that problems with her criminal trial and sentence entitle
her to release. She begins by insisting that she received a disparate sentence. But she
agreed to her 72-month sentence in her plea agreement, and so she has waived the
argument. Regardless, this contention would fail because sentencing challenges are not
grounds for compassionate release and, instead, should be raised on direct appeal or a
collateral challenge. See United States v. Martin, 21 F.4th 944, 946 (7th Cir. 2021).
Relatedly, Harper argues that the district judge and prosecutor abused their powers
during her case. Harper did not raise an argument about judicial misconduct in her
motion for compassionate release; thus it is waived. Id. at 945. In any case, the adverse
rulings that Harper identifies are not evidence of judicial bias. United States v. Barr,
960 F.3d 906, 920 (7th Cir. 2020). And again, Harper must bring a direct or collateral
challenge, rather than in a motion for compassionate release, for any claims that the
prosecutor or judge denied Harper her rights during her criminal case. See United States
v. Brock, 39 F.4th 462, 465 (7th Cir. 2022).
Finally, we address Harper’s contention about her post-sentencing rehabilitation.
Rehabilitation is not a stand-alone ground for relief. United States v. Peoples, 41 F.4th 837,
842 (7th Cir. 2022). While we must consider rehabilitation among the factors discussed
above, see Vaughn, 62 F.4th at 1072–73, doing so does not change the outcome because
the other factors fail.
AFFIRMED

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