UNITED STATES OF AMERICA v. GILBERT MANNING

Milwaukee, WI - Criminal defense lawyer represented defendant with conspiracy to distribute and possess with intent to distribute marijuana and distribution of marijuana charges.

Manning pleaded guilty in 2013 to conspiracy to distribute

and possess with intent to distribute marijuana, see 21 U.S.C.

§ 841(a)(1), (b)(1)(A)(vii), and distribution of marijuana, id.

§ 841(a)(1), (b)(1)(D). He was sentenced to 210 months' imprisonment and eight years' supervised release, but his prison

term was later reduced to 168 months, based on changes to

the sentencing guidelines, see 18 U.S.C. § 3582(c)(2); U.S.S.G.

§ 2D1.1. He has been serving his sentence at the Federal Correctional Institution Fort Dix in New Jersey and is scheduled

for release in 2025.

In July 2020, Manning, pro se, moved for compassionate

release based on his prediabetes and rheumatoid arthritis, together with the COVID-19 pandemic. Over the next three

months, he supplemented the motion three times, including

with information establishing his exhaustion of administrative remedies and a report that he had contracted COVID-19.

The district court appointed the Federal Public Defender's

Office to represent Manning in his request for a reduced

No. 20-3416 3

sentence. The court explained that although under United

States v. Foster, 706 F.3d 887 (7th Cir. 2013), it "lacks authority

to appoint counsel for defendants seeking relief under the

First Step Act,” the Federal Public Defender is "willing” to

represent defendants who may be eligible for compassionate

release. The court therefore directed the clerk's office to notify

the Defender of the motion and to ask the Defender, or a "designated Criminal Justice Act panel attorney,” to appear within

seven days. The court cited the Southern District's Administrative Order 265, which explains that the Federal Public Defender's Office is "willing to enter its appearance on behalf of

all” pro se, indigent defendants who file non-frivolous compassionate release requests.

Soon after a federal defender appeared on Manning's behalf, she moved to withdraw and for the court to instead appoint a Criminal Justice Act ("CJA”) panel member.1 According to Order 265, the Public Defender's Office can give up to

40% of its compassionate-release cases to CJA-panel members, who are compensated up to $2,500. The court obliged.

Manning's new attorney filed a notice that "it is counsel's determination that Manning's pro se motion requires no further

supplementation ... at this juncture.” The government then

argued that Manning's "managed medical conditions” were

1 Under the Criminal Justice Act of 1964, 18 U.S.C. § 3006A(a), district courts must adopt "a plan for furnishing representation for any

person financially unable to obtain adequate representation.” The

Southern District of Illinois's plan creates a panel of private attorneys

who are eligible to be appointed counsel under the CJA. The plan also

allows for their compensation. See S.D. Ill. CJA Plan, available at

https://www.ilsd.uscourts.gov/Forms/CriminalJusticeActPlan.pdf.

4 No. 20-3416

not extraordinary and compelling cause for a sentence reduction and that the factors under 18 U.S.C. § 3553(a) weighed

against his release. Manning's lawyer filed a short reply emphasizing the severity of his prediabetes in light of the

COVID-19 pandemic and arguing that any concern over

whether Manning was dangerous could be managed with

conditions such as home confinement or electronic monitoring.

The district court denied the motion, concluding that

Manning had not demonstrated extraordinary and compelling reasons for a reduced sentence. Medical records revealed

that Manning did not have any diagnosis of rheumatoid arthritis and that his prediabetes was not severe. Even if Manning suffered severely from these conditions, the court continued, neither is recognized by the Centers for Disease Control and Prevention as increasing a person's risk of severe illness from COVID-19.

II. Discussion

A. Appointment and Compensation of Counsel under

Order 265

The government asks us to rule that the Southern District's

official policy of appointing federal public defenders and

CJA-panel members to represent indigent prisoners seeking

compassionate release is unlawful. The government bases its

argument largely on this court's decisions in United States v.

Foster, 706 F.3d 887 (7th Cir. 2013), and United States v. Blake,

986 F.3d 756 (7th Cir. 2021), which hold that prisoners who

seek lower sentences under 18 U.S.C. § 3582(c)(2) are not

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entitled to appointed counsel at public expense.2 According

to the government, because Order 265 appoints federal defenders (who are paid salaries with public funds) and CJApanel members (who receive up to $2,500 per compassionaterelease case from public funds) to represent inmates seeking

reductions under § 3582(c)(1), the Order unlawfully expends

public funds to provide counsel for inmates seeking sentence

reductions, in defiance of Foster and Blake.3

We do not reach the merits of these arguments, however,

because this appeal is not the appropriate place to raise them.

As an initial matter, the government never objected in the

district court to the appointment of counsel to represent Manning, so it arguably waived this challenge. See In re Veluchamy,

879 F.3d 808, 821–22 (7th Cir. 2018). True, this court occasionally, if reluctantly, considers a purely legal issue even when it

was not raised earlier because the district court's particular

2 The government says that Blake holds that there is no entitlement to

counsel in the compassionate-release context, but that is imprecise. The

inmate in Blake wanted appointed counsel to represent him in seeking a

sentence reduction under 18 U.S.C. § 3582(c)(2)—that is, based on changes

to the Sentencing Guidelines—not under § 3582(c)(1), which is the compassionate-release section.

3 Other districts within this circuit have similar general orders appointing public defenders' offices to represent indigent prisoners with

non-frivolous compassionate-release requests. See N.D. Ill. Gen. Order 20-

0016 (Apr. 6, 2020); N.D. Ind. Gen. Order 2020-11 (Dec. 21, 2018); C.D. Ill.

Order 20-mc-4011 (second amendment) (Oct. 14, 2020). None expressly

permits paying CJA attorneys, but it is plausible that the local defenders'

offices make use of panel attorneys for these motions under their own policies.

6 No. 20-3416

competence is not required to resolve it. See, e.g., Bourgeois v.

Watson, 977 F.3d 620, 632 (7th Cir. 2020). But Manning argues,

and we agree, that for two reasons it does not make sense to

excuse the government's waiver here. First, the government

offers no reason for failing to raise the challenge to the district

court. As the government admits, before the entry of Order

265, it "generally advised [the Southern District] that it did

not believe that the appointment of counsel at public expense

in these matters was authorized by statute or consistent with

Seventh Circuit precedent,” and it has successfully raised the

challenge in at least one other case. See United States v. McCarvey, No. 13-cr-30172, 2021 WL 1017246 (S.D. Ill. Mar. 17, 2021).

Further, the issue was not contemplated by the appealing

party here. Counsel was appointed solely for the purpose of

arguing that Manning should receive compassionate release;

as counsel says, neither he nor Manning "has ever been assigned the duty, or would expect the duty, of defending Administrative Order 265 or the district court's interpretation

thereof.” The defendant's interests and those of the district

court do not align perfectly; the district court has institutional

and efficiency concerns that it is not reasonable to expect an

individual prisoner to defend.

Looking to waiver principles, however, presupposes that

the government should have challenged the general order in

a compassionate-release proceeding in the district court. That

premise is likely incorrect. Administrative "orders have much

the status of local rules, and the body entitled to decide

whether a given rule ... is inappropriate under the Rules Enabling Act, 28 U.S.C. § 2071–77, and FED. R. CRIM. P. 57, is the

Judicial Council of the Circuit,” which can review the concerns on application by the Executive Branch. United States v.

Zingsheim, 384 F.3d 867, 870 (7th Cir. 2004); see also 28 U.S.C.

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§ 322(d)(1), (d)(4) (tasking the Judicial Council with amending

orders and modifying and abrogating rules). We understand

the government to raise a facial challenge to Order 265.

Though the government purports to take issue with the Order

as applied to Manning, it does not assert that Manning's counsel was paid for his representation, and it does not seek to

claw back any funds used to pay counsel in this case (or any

other), or to strike his counsel's filings or remand the case for

it to proceed without counsel. Those are the types of remedies

that would be proper in an "as-applied” challenge. Rather, the

government wants this court to rule that the process the Order

creates is unlawful, and the forum for a facial challenge to Order 265 is the Judicial Council of the circuit. Cf. Zingsheim, 384

F.3d at 870 (courts can review order's legal status in the context of assessing its application to a party).

B. Compassionate Release

Manning argues that the district court erred in concluding

that his prediabetes, together with COVID-19, did not constitute an extraordinary and compelling reason for his early release. Although this condition is not recognized by the CDC

as increasing a person's risk from the virus, Manning cites scientific studies outlining the danger. Manning further emphasizes that prisons in general are breeding grounds for infectious diseases, and FCI Fort Dix, the site of "the largest

COVID-19 outbreak of any federal prison in the country,” is

especially risky.

The district court did not abuse its discretion in denying

Manning's motion for compassionate release. See United

States v. Saunders, 986 F.3d 1076, 1078 (7th Cir. 2021). In determining whether Manning had met his burden to establish

"extraordinary and compelling reasons” for a sentence

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reduction under 18 U.S.C. § 3582(c)(1)(A), see United States v.

Newton, No. 20-2893, 2021 WL 1747898, at *1 (7th Cir. May 4,

2021), the court considered Manning's principal arguments

and reasoned that they were insufficient to warrant a reduced

sentence. See id. at *4. The court reasonably explained that

there was no evidence Manning even had one of the health

conditions—rheumatoid arthritis—that he says puts him at

increased risk of complications if he contracts COVID-19. And

although Manning has prediabetes, that condition is not severe (Manning's average blood sugar levels, the court explained, were only borderline prediabetic), nor is it recognized by the CDC as increasing a person's risk of death from

COVID-19. Manning tells us on appeal that the CDC should

list prediabetes as a potential vulnerability for COVID-19, but

he did not make that argument to the district court and so

likely waived it. See United States v. Tjader, 927 F.3d 483, 484

(7th Cir. 2019). He also points to other cases in which one or

both of his conditions has been among the reasons that district

courts granted early release. Given the fact-specific nature of

the inquiry and this court's deference to the district courts'

weighing of the evidence, however, that is insufficient to establish an abuse of discretion here.