UNITED STATES OF AMERICA v. BRIAN BROADFIELD

Milwaukee, WI - Criminal defense lawyer represented defendant with a compassionate release claim.

The district court denied the application, giving three reasons. First, the judge found that Broadfield's documented

medical conditions do not include asthma and that his wheezing appears to be the result of allergies rather than a chronic

breathing problem. Second, the judge remarked that Broadfield has had multiple disciplinary problems in prison, leading to the loss of 27 days' good time. The judge stated that this

implies an elevated risk of recidivism. Finally, the judge

wrote:

Defendant is also a career offender with convictions for both

weapons and drug offenses. He also ... received a six-level enhancement for manufacturing methamphetamine where children

were present. Accordingly, the Court is unable to determine that

Defendant is not a danger to his community as is required under

the Compassionate Release statute.

2020 U.S. Dist. LEXIS 176175 *6 (C.D. Ill. Sept. 24, 2020). Broadfield's appellate brief concentrates on this third part of the district court's explanation.

Despite what the judge wrote, Broadfield has not been

convicted of a weapons offense. And §3582(c)(1)(A) does not

make a judicial finding of non-dangerousness essential to

compassionate release. All the statute requires is a finding of

"extraordinary and compelling reasons” plus consideration

of any sentencing factors under 18 U.S.C. §3553(a) that are

pertinent to the prisoner's circumstances. Dangerousness is

among the conditions that the Sentencing Commission requires a court to consider when the Bureau of Prisons seeks a

person's compassionate release, but we held in United States

v. Gunn, 980 F.3d 1178 (7th Cir. 2020), that this proviso does

not apply to prisoner-initiated applications, unless or until the

Sentencing Commission revises the Guidelines to make it applicable.

No. 20-2906 3

Broadfield wants us to remand with instructions to reconsider now that these misunderstandings have been cleared

away. But a remand would be appropriate only if reconsideration could produce a decision in Broadfield's favor, and it

could not. When Broadfield filed his application for compassionate release, and when the district judge denied it, COVID19 was a grave problem in America's prisons, where people

cannot engage in social distancing. Today, however, effective

vaccines are available. The Bureau of Prisons' policy statement—COVID-19 Vaccine Guidance (Mar. 11, 2021)—says that

prisoners will be offered a vaccine in order of risk as soon as

vaccines have been offered to all staff members. That condition was satisfied months ago, and prisoners are regularly

vaccinated. The Bureau of Prisons reports that 1,300 prisoners

at FCI Seagoville, where Broadfield is confined, have been

fully vaccinated against COVID-19. See

hips://www.bop.gov/coronavirus/. This is short of the

prison's full population of roughly 1,700, but some may have

been vaccinated before arrival, while others may have declined the opportunity.

Broadfield has not contended that he wants to be vaccinated but that the Bureau of Prisons has failed to inoculate

him. Because risk of COVID-19, which can bear especially

hard on people with pre-existing breathing conditions, is

Broadfield's sole reason for seeking compassionate release, a

remand would be pointless. Vaccinated prisoners are not at

greater risk of COVID-19 than other vaccinated persons. (A

more cautious statement would be that published data do not

establish or imply an incremental risk for prisoners—either a

risk of contracting the disease after vaccination or a risk of a

severe outcome if a vaccinated person does contract the disease.) And a prisoner who remains at elevated risk because he

4 No. 20-2906

has declined to be vaccinated cannot plausibly characterize

that risk as an "extraordinary and compelling” justification

for release. The risk is self-incurred.

In a supplemental filing after oral argument, Broadfield

informed us that he was offered a vaccine but declined. He

maintains that he fears an allergic reaction, but he does not

contend that he has suffered such a reaction to any other vaccine. The Bureau of Prisons' policy statement provides that

prisoners with a history of allergic reactions to vaccines will

receive extra evaluation before vaccination and additional observation afterward, but Broadfield does not come within this

category. He says that he has had an allergic reaction to two

drugs (penicillin V and bupropion) and contends that this experience may show that he is allergic to polyethylene glycol,

a component of both mRNA vaccines, or polysorbate, a component of the Johnson & Johnson vaccine. But he does not contend that other people who have allergies to penicillin or bupropion have fared poorly after being vaccinated. None of the

FDA, the CDC, or the WHO treats an allergy to penicillin or

bupropion as a reason not to receive any of the COVID-19 vaccines. Instead they recommend (and the Bureau of Prisons

provides) a 15-to-30-minute observation period after the injection so that allergic reactions may be detected and treated.

The federal judiciary need not accept a prisoner's self-diagnosed skepticism about the COVID-19 vaccines as an adequate explanation for remaining unvaccinated, when the responsible agencies all deem vaccination safe and effective.

Section 3582(c)(1)(A) was enacted and amended before the SARS-CoV-2 pandemic, and it will continue to serve a beneficent function long after the pandemic ends. But for the many prisoners who seek release based on the special risks created No. 20-2906 5

by COVID-19 for people living in close quarters, vaccines offer relief far more effective than a judicial order. A prisoner who can show that he is unable to receive or benefit from a vaccine still may turn to this statute, but, for the vast majority

of prisoners, the availability of a vaccine makes it impossible to conclude that the risk of COVID-19 is an “extraordinary and compelling” reason for immediate release.



AFFIRMED