NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1

United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted July 16, 2021* Decided July 19, 2021

Before

FRANK H. EASTERBROOK, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

THOMAS L. KIRSCH II, Circuit Judge

No. 20-3333

UNITED STATES OF AMERICA, Appeal from the United States Plaintiff-Appellee, District Court for the Central District of Illinois. v.

JASPER VARGAS, No. 2:05-cr-20007-JES-DGB James E. Shadid, Judge. Defendant-Appellant.

Order

Jasper Vargas asked the district court for compassionate release, see 18 U.S.C. §3582(c)(1), and appeals from the adverse decision. He contends that the judge should not have ruled on his request and that the process should start over.

* After examining the briefs and the record, we have concluded that oral argument is unnecessary. See Fed. R. App. P. 34(a); Cir. R. 34(f). No. 20-3333 Page 2

Vargas filed his request in court without first seeking relief from the Bureau of Pris- ons. Contending that a counselor had told him that he could bypass the administrative process, he asked the judge to “waive” the statutory need to start with the agency. We have held that lack of exhaustion under §3582(c)(1) is an affirmative defense, which the United States may waive or forfeit, see United States v. Gunn, 980 F.3d 1178, 1179 (7th Cir. 2020), but the Department of Justice elected to claim the benefit of that rule. It is a mandatory claims-processing doctrine, which must be enforced if invoked. United States v. Sanford, 986 F.3d 779, 782 (7th Cir. 2021). But the district judge ignored the issue and denied the application on the merits.

Vargas now wants us to treat his failure to exhaust administrative remedies as a ju- risdictional defect, so that the judge was compelled to dismiss without prejudice. But Gunn and Sanford hold that failure to exhaust is not jurisdictional. It is instead an affirm- ative defense.

Because the United States invoked this defense, the district court lacked authority to grant Vargas’s motion. The power to waive a defense belongs to the beneficiary, not to a judge. But a court may deny a request on the merits without transgressing the statutory exhaustion requirement. Although a court must resolve jurisdictional issues before ad- dressing the merits, it may choose from among available non-jurisdictional grounds that suffice to resolve the litigation. We observed in United States v. Williams, 987 F.3d 700, 702 (7th Cir. 2021), that this principle applies to the multiple potential grounds for denying a motion for compassionate release.

Vargas, who is serving a life sentence for drug distribution following multiple ear- lier drug convictions, asked for compassionate release because of his “deteriorating physical condition” (including age over 50, heel spurs, and hypertension) and the risk of COVID-19 in prison. The district judge replied that none of Vargas’s documented medical condition makes COVID-19 more likely (or more serious if contracted). The dis- trict court did not abuse its discretion in concluding that Vargas has not shown an “ex- traordinary and compelling” reason for early release, as §3582(c)(1)(A)(i) requires.

AFFIRMED