United States v. Tequila Gunn

                             In the

    United States Court of Appeals
                For the Seventh Circuit
                   ____________________

No. 20-1959
UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,

                                v.

TEQUILA J. GUNN,
                                             Defendant-Appellant.
                   ____________________

           Appeal from the United States District Court
                 for the Central District of Illinois.
           No. 1:16-cr-10024 — Joe Billy McDade, Judge.
                   ____________________

 ARGUED NOVEMBER 17, 2020 — DECIDED NOVEMBER 20, 2020
               ____________________

   Before EASTERBROOK, HAMILTON, and ST. EVE, Circuit
Judges.
   EASTERBROOK, Circuit Judge. Federal judges have long
been able to release prisoners for compassionate reasons
such as terminal illness. Until recently that authority de-
pended on a motion by the Bureau of Prisons. But in 2018
the First Step Act created a judicial power to grant compas-
sionate release on a prisoner’s own request, provided that
the prisoner first allowed the Bureau to review the request
2                                                          No. 20-1959

and make a recommendation (or it let 30 days pass in si-
lence). 

(c)(1)(A). Subsection (c) now reads:
    The court may not modify a term of imprisonment once it has
    been imposed except that—
    (1) in any case—
       (A) the court, upon motion of the Director of the Bureau of
       Prisons, or upon motion of the defendant after the defendant
       has fully exhausted all administrative rights to appeal a fail-
       ure of the Bureau of Prisons to bring a motion on the de-
       fendant’s behalf or the lapse of 30 days from the receipt of
       such a request by the warden of the defendant’s facility,
       whichever is earlier, may reduce the term of imprisonment
       (and may impose a term of probation or supervised release
       with or without conditions that does not exceed the un-
       served portion of the original term of imprisonment), after
       considering the factors set forth in section 3553(a) to the ex-
       tent that they are applicable, if it finds that—
            (i) extraordinary and compelling reasons warrant such
            a reduction; or
            (ii) the defendant is at least 70 years of age, has served
            at least 30 years in prison, pursuant to a sentence im-
            posed under section 3559(c), for the offense or offenses
            for which the defendant is currently imprisoned, and a
            determination has been made by the Director of the Bu-
            reau of Prisons that the defendant is not a danger to the
            safety of any other person or the community, as pro-
            vided under section 3142(g);
       and that such a reduction is consistent with applicable policy
       statements issued by the Sentencing Commission[.]

    Tequila Gunn’s sentence for drug and firearm offenses
runs through March 2024. She asked a court to order her re-
lease under §3582(c)(1)(A) on the ground that, because of her
age (62) and medical condition, she faces extra risks should
she contract COVID-19. Gunn sought administrative relief
No. 20-1959                                                            3

but came to court before the Director had replied or 30 days
had run. Yet on appeal the United States has not invoked the
statute’s exhaustion requirement, thus forfeiting its benefit.
Failure to exhaust administrative remedies is an affirmative
defense, see Jones v. Bock, 

 (2007); Weinberger
v. Salfi, 

 (1975), not a jurisdictional issue that
the court must reach even if the litigants elect not to raise it.
    The district court denied Gunn’s motion, ruling that the
subsection’s final language—”that such a reduction is con-
sistent with applicable policy statements issued by the Sen-
tencing Commission”—prevents judges from granting com-
passionate release at the request of a prisoner in Gunn’s po-
sition. That is so because the Sentencing Commission has not
updated its policy statements to implement the First Step
Act. (It can’t, because it lacks a quorum.)
    The most recent Guidelines Manual has a policy state-
ment, U.S.S.G. §1B1.13, implementing the compassionate-
release statute. But this policy statement begins “Upon mo-
tion of the Director of the Bureau of Prisons”. The judge
added that the commentary to §1B1.13, which defines “ex-
traordinary and compelling reasons”, is conclusive against
Gunn even if the main text of §1B1.13 is not. Application
Note 1(A), which addresses medical conditions, covers only
prisoners who suffer from certain medical problems, not
those who fear that they may contract a disease; and Appli-
cation Note 1(D), which addresses other extraordinary cir-
cumstances, reads:
   As determined by the Director of the Bureau of Prisons, there ex-
   ists in the defendant’s case an extraordinary and compelling rea-
   son other than, or in combination with, the reasons described in
   subdivisions (A) through (C).
4                                                   No. 20-1959

So the catchall clause in Application Note 1(D) depends on a
determination or motion of the Director, and Gunn’s request
depends on the catchall clause. This makes §1B1.13 inappli-
cable to Gunn, the judge concluded, and nixes her request.
    Like the Second Circuit, see United States v. Brooker, 

 (2d Cir. 2020), we disagree with this reading of the
statute’s trailing paragraph. It says that a reduction must be
“consistent with” all “applicable” policy statements. Section
1B1.13 addresses motions and determinations of the Direc-
tor, not motions by prisoners. In other words, the Sentencing
Commission has not yet issued a policy statement “applica-
ble” to Gunn’s request. And because the Guidelines Manual
lacks an applicable policy statement, the trailing paragraph
of §3582(c)(1)(A) does not curtail a district judge’s discretion.
Any decision is “consistent with” a nonexistent policy
statement. “Consistent with” differs from “authorized by”.
    The Department of Justice protests that this leaves dis-
trict judges free to invent their own policies about compas-
sionate release. Like the Second Circuit, we do not see the
absence of an applicable policy statement as creating a sort
of Wild West in court, with every district judge having an
idiosyncratic release policy. The statute itself sets the stand-
ard: only “extraordinary and compelling reasons” justify the
release of a prisoner who is outside the scope of
§3582(c)(1)(A)(ii). The substantive aspects of the Sentencing
Commission’s analysis in §1B1.13 and its Application Notes
provide a working definition of “extraordinary and compel-
ling reasons”; a judge who strikes off on a different path
risks an appellate holding that judicial discretion has been
abused. In this way the Commission’s analysis can guide
discretion without being conclusive. Cf. Gall v. United States,
No. 20-1959                                                  5

, 49–50 (2007); Kimbrough v. United States, 

 (2007).
    It is true that a judge acting on a prisoner’s motion may
lack the advice of the Director, contemplated by Application
Note 1(D), about whether some novel “extraordinary and
compelling reason” exists. Yet the First Step Act does not
muzzle the Director; to the contrary, it gives the Director at
least 30 days to articulate the Bureau of Prisons’ decision and
rationale. We expect that district judges will give the Direc-
tor’s analysis substantial weight, even though under the First
Step Act the Director’s views are not controlling.
    Like the district court, we hope that the Sentencing
Commission’s ability to revise its guidelines and policy
statements will be restored by the appointment of additional
members. Until that happens and §1B1.13 is amended, how-
ever, the Guidelines Manual lacks an “applicable” policy
statement covering prisoner-initiated applications for com-
passionate release. District judges must operate under the
statutory criteria—”extraordinary and compelling rea-
sons”—subject to deferential appellate review.
   The district court’s decision is vacated, and the case is
remanded with instructions to resolve Gunn’s motion under
the statutory standard.