UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 18-cr-108-LM Opinion No. 2020 DNH 079 Shariff Britton
O R D E R
Defendant, Shariff Britton, is currently serving a 60-month
term of imprisonment for one count of possession with intent to
distribute a controlled substance. Due to the threat to his
health posed by the potential spread of COVID-19 in the prison
facility where he is currently housed, defendant moves for
compassionate release under 18 U.S.C. § 3582(c)(1)(A). Doc. no.
16. The government objects. The court held a telephonic
hearing on defendant’s motion on May 11, 2020.
STANDARD OF REVIEW
A court may grant so-called “compassionate release” to a
defendant under 18 U.S.C. § 3582(c)(1)(A). 18 U.S.C. §
3582(c)(1)(A) provides, in relevant part, that:
[T]he 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 failure of the Bureau of Prisons to bring a motion on the defendant’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 unserved portion of the original term of imprisonment), after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that—
(i) extraordinary and compelling reasons warrant such a reduction
. . .
and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
18 U.S.C. § 3582(c)(1)(A); see also U.S.S.G. § 1B1.13
(sentencing guidelines policy statement on compassionate
release). Under this statute, a district court may properly
consider a motion for compassionate release under three
circumstances: (1) the motion is filed by the Director of the
Bureau of Prisons (“BOP”); (2) the motion is filed by defendant
after he exhausts all his administrative rights to appeal BOP’s
refusal to bring a motion on his behalf; or (3) the motion is
filed by defendant 30 days after defendant requested BOP to
petition for compassionate release on his behalf. 18 U.S.C. §
3582(c)(1)(A). For the purposes of this order, the court will
refer to the two alternative avenues for a defendant to petition
the court directly for compassionate release (exhaust
administrative rights to appeal or wait 30 days after request to
BOP) as the statute’s “exhaustion requirement.”
2 Once a motion for compassionate release is properly before
the court, the court must then determine if defendant is
eligible for release. The statutory language quoted above
requires that defendant show that “extraordinary and compelling
reasons warrant” a reduction in his sentence, that the court
consider the factors set forth in 18 U.S.C. § 3553(a) to the
extent applicable, and that the reduction be “consistent” with
the Sentencing Commission’s applicable policy statements. 18
U.S.C. § 3582(c)(1)(A). The Sentencing Commission’s policy
statement regarding compassionate release adds the requirement
that the court find that “[t]he defendant is not a danger to the
safety of any other person or to the community, as provided in
18 U.S.C. § 3142(g).” U.S.S.G. § 1B1.13(2).
In short, a court may reduce a term of imprisonment under
the compassionate release provision if it: (1) finds that
extraordinary and compelling reasons warrant the reduction; (2)
finds that the defendant will not be a danger to the safety of
any other person or the community; and (3) considers the
sentencing factors outlined in 18 U.S.C. § 3553(a). See 18
U.S.C. § 3582(c)(1)(A); U.S.S.G. § 1B1.13; see also United
States v. Sapp, No. 14-CR-20520, 2020 WL 515935, at *2 (E.D.
Mich. Jan. 31, 2020); United States v. Willis, 382 F. Supp. 3d
1185, 1187 (D.N.M. 2019). The defendant has the burden of
showing that he or she is entitled to a sentence reduction.
3 United States v. Ebbers, No. S402CR11443VEC, 2020 WL 91399, at
*4 (S.D.N.Y. Jan. 8, 2020). And the court has “broad discretion
in deciding whether to grant or deny a motion for sentence
reduction.” United States v. Paul Gileno, No. 3:19-CR-161-
(VAB)-1, 2020 WL 1307108, at *2 (D. Conn. Mar. 19, 2020)
(internal quotation marks omitted).
BACKGROUND
In July 2019, defendant was arrested for possessing with
intent to distribute a controlled substance (cocaine) in
violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(ii)(II).
He stipulated to detention pending trial and was recommended for
participation in the Therapeutic Community Program at the
Strafford County House of Corrections. On September 5, 2019,
defendant pleaded guilty to the charge. On December 17, 2019,
this court sentenced defendant to a term of imprisonment of 60
months and four years of supervised release.
After sentencing, defendant was medically cleared by the
Strafford County House of Corrections for transfer to another
facility. Defendant was eventually transferred to the
Metropolitan Detention Center (“MDC”) Brooklyn, but it is
unclear precisely when that transfer occurred.1 Defendant was
1 Defendant represents that he has been at MDC Brooklyn for “many months.” Doc. no. 16 at 3. By contrast, the government
4 moved to MDC Brooklyn as a transit point on the way to his
ultimate destination—a federal prison in Pennsylvania.
Defendant was destined for the Pennsylvania facility due to
his need for specific medical testing and treatment available
there, including a colonoscopy. Defendant requires testing and
treatment in relation to several underlying health conditions:
Crohn’s disease, gastro-esophageal reflux disease (“GERD”), and
eustachian tube dysfunction.2 Now, because of transfer
restrictions implemented in response to the COVID-19 pandemic,
defendant is stuck at MDC Brooklyn without access to the medical
testing and treatment he needs. He contends that his inability
to access this treatment is causing him excruciating stomach
pain, increased defecation, and fatigue. Defendant also alleges
that he experiences heart or chest pains or palpitations for
which he claims he needs further testing.
On April 15, 2020, defendant told his attorney that he
would be filing a request for compassionate release with BOP
that day. Defendant has offered no proof of that submission,
represents that BOP counsel informed it that defendant arrived at MDC Brooklyn on February 28, 2020. The court is inclined to credit the government’s representation because it identifies a specific date and is not contradicted by defendant’s medical records. All the medical records submitted under seal by the parties reflect medical appointments at MDC Brooklyn that occurred on February 29, 2020 or later.
2 Both parties have submitted medical records under seal that confirm these diagnoses.
5 and the government was not able to acquire proof of the request
from BOP. Nevertheless, on April 18, defendant’s counsel filed
a formal request for his compassionate release or for home
confinement. Doc. no. 16-3. BOP denied that request on April
23. See doc. no. 21-1. It stated that defendant was not
eligible for home confinement because he is a “holdover inmate”
(i.e. he is not there permanently but in transit to another
facility) and denied his compassionate release request because
his medical conditions did not qualify as an extraordinary or
compelling reason for release. See id.
On April 27, defendant filed the instant motion for
compassionate release under 18 U.S.C. § 3582(c)(1)(A). He
asserts that he is eligible for compassionate release because
his risk of contracting COVID-19 is high due to the unsafe
conditions at MDC Brooklyn and his co-occurring chronic health
conditions put him at heightened risk for severe illness if he
does catch the virus. There is no indication in the record that
defendant has appealed BOP’s denial of his compassionate release
request or otherwise exhausted his administrative appeals.3 And
3Defendant argued at the hearing that he has exhausted his administrative appeals because the warden denied his request for compassionate release. The statute, however, requires that defendant “fully exhaust all administrative rights to appeal” BOP’s denial, not simply that he receive a denial from BOP. 18 U.S.C. § 3582(c)(1)(A). Federal regulations outline that appeals process: defendant must appeal BOP’s denial within the appropriate timeframe to the Regional Director, and if that
6 30 days have not yet passed since his April 18 request.4
Defendant argues that he need not wait for those 30 days to pass
before petitioning the court directly because the exhaustion
requirement of the compassionate release statute can be excused
on the basis of equitable exceptions such as irreparable harm,
futility, or urgent circumstances, which he says are present
here. The government objects, arguing that the statutory
exhaustion requirement is mandatory and therefore cannot be
excused.
DISCUSSION
Over the last two months, federal courts have confronted a
tidal wave of compassionate release requests by inmates based on
the threat posed by the presence of the highly contagious COVID-
19 virus in the close quarters of the prison environment.
Courts addressing the issue of whether the exhaustion
requirement of 18 U.S.C. § 3582(c)(1)(A) is excusable in the
context of this global pandemic have diverged: some have held
appeal is denied, he must appeal again to the General Counsel to receive a final administrative decision. See 28 C.F.R. § 571.63(a); 28 C.F.R. § 542.15(a). There is no evidence that defendant has completed that appeals process.
4 Defendant argues that he has satisfied the 30-day lapse requirement because MDC Brooklyn was “on notice” over 30 days ago of the COVID-19 pandemic and defendant’s heightened health risk in relation to the virus. See doc. no. 16 at 19. Defendant cites no authority in support of this argument and the court finds it unconvincing.
7 the exhaustion requirement mandatory, while others have held
that it is subject to equitable exceptions. Compare, e.g.,
United States v. Lugo, No. 2:19-CR-00056-JAW, 2020 WL 1821010,
at *4-5 (D. Me. Apr. 10, 2020) (holding that statutory
exhaustion requirement is mandatory and describing split of
authority), with United States v. Scparta, No. 18-CR-578 (AJN),
2020 WL 1910481, at *7-8 (S.D.N.Y. Apr. 20, 2020) (holding that
exhaustion requirement is subject to equitable exceptions).
After careful and thorough consideration, the court agrees with
the apparent majority of courts that have reached the
unfortunate conclusion that the exhaustion requirement of the
compassionate release statute constitutes a mandatory claim-
processing rule that is not subject to equitable exceptions.
I. Jurisdictional Requirement or Claim-Processing Rule
As a threshold matter, defendant argues that §
3582(c)(1)(A)’s exhaustion requirement is non-jurisdictional:
that is, failure to comply with the exhaustion requirement does
not divest the court of jurisdiction. Instead, defendant
contends that the exhaustion requirement is a nonmandatory
claim-processing rule. The government does not dispute that the
exhaustion requirement is non-jurisdictional but asserts that it
is a mandatory claim-processing rule that has not been met here.
8 A jurisdictional rule is one that “governs a court’s
adjudicatory capacity, that is, its subject-matter or personal
jurisdiction,” while a claim-processing rule is one that
“seek[s] to promote the orderly progress of litigation by
requiring that the parties take certain procedural steps at
certain specified times.” Henderson ex rel. Henderson v.
Shinseki, 562 U.S. 428, 435 (2011). This distinction is
meaningful because, under a claim-processing rule, a party may
voluntarily waive a plaintiff’s failure to exhaust or may
forfeit the defense of failure to exhaust by failing to timely
raise it. See Fort Bend Cty., Texas v. Davis, 139 S. Ct. 1843,
1849 (2019); United States v. Reyes-Santiago, 804 F.3d 453, 458
(1st Cir. 2015). By contrast, an opposing party may raise a
jurisdictional defense at any time and the court must consider
any jurisdictional issues sua sponte. See id.
The court need not decide whether the exhaustion
requirement at issue is jurisdictional or a claim-processing
rule. Even assuming in defendant’s favor that the requirement
is non-jurisdictional and instead a claim-processing rule, the
court concludes, as will be explained in detail below, that the
exhaustion requirement constitutes a mandatory claim-processing
rule. For such a mandatory rule, the court must “enforce” the
rule where, as here, the lack of exhaustion has been raised by
the opposing party. See Fort Bend, 139 S. Ct. at 1849. Thus,
9 the outcome would be the same under this statute whether the
court categorized the exhaustion requirement as jurisdictional
or a claim-processing rule. See United States v. Miamen, No. CR
18-130-1 WES, 2020 WL 1904490, at *2 (D.R.I. Apr. 17, 2020)
(acknowledging circuit and district court split about whether §
3582(c) generally is jurisdictional, but finding that court need
not reach the question because even if exhaustion requirement is
non-jurisdictional result would be the same); Lugo, 2020 WL
1821010, at *3 (same). Thus, the court will treat the
exhaustion requirement at issue as a claim-processing rule. The
question remains, however, whether that claim-processing rule is
mandatory or non-mandatory.
II. Mandatory or Non-Mandatory Claim-Processing Rule
Defendant argues that the exhaustion requirement at issue
is subject to equitable exceptions because it is a “non-
mandatory” claim-processing rule. See doc. no. 16 at 20-21.
The Supreme Court’s decision in Ross v. Blake, 136 S. Ct. 1850
(2016) provides a roadmap for this court’s analysis of whether
the exhaustion requirement in the compassionate release statute
is mandatory or non-mandatory. In Ross, the Court considered
whether the administrative exhaustion requirement of the Prison
Litigation Reform Act (“PLRA”) is mandatory or whether the court
could read-in a “special circumstances” exception to the
10 statute. Ross, 136 S. Ct. at 1855. The Fourth Circuit had
ruled that the PLRA’s exhaustion requirement was not absolute
and that there may be “special circumstances” that would justify
a prisoner’s failure to exhaust. Id. at 1856.
The Supreme Court disagreed, distinguishing between
statutorily-based and judicially-crafted exhaustion
requirements. Id. at 1856-57. It explained that “judge-made
exhaustion doctrines, even if flatly stated at first, remain
amenable to judge-made exceptions.” Id. at 1857. “But a
statutory exhaustion provision stands on a different footing.”
Id. This is so because Congress has set the rules for the
statutory exhaustion provision “and courts have a role in
creating exceptions only if Congress wants them to.” Id.
In analyzing whether the PLRA imposes a mandatory
exhaustion requirement, the court looked first to the statutory
text and then to the PLRA’s legislative history. See id. at
1856-58. The PLRA provides that “[n]o action shall be brought
with respect to prison conditions under section 1983 of this
title, or any other Federal law, by a prisoner confined in any
jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.” Id. at
1856 (quoting 42 U.S.C. § 1997(e)). The court explained that
the statute’s “mandatory language means a court may not excuse a
failure to exhaust, even to take [special] circumstances into
11 account.” Id. at 1856. In other words, Congress’s clear
statutory mandate foreclosed the possibility of judicial
discretion to craft extra-textual exceptions to the exhaustion
requirement. See id. at 1857. The Court also held that the
legislative history of the PLRA—showing that Congress intended
to replace a prior weak exhaustion regime with an “invigorated”
one—supported the mandatory nature of the exhaustion
requirement. Id. at 1857-58. Finally, the Court observed that,
though the exhaustion requirement is mandatory, the PLRA’s text
includes its own exception to exhaustion: that the
administrative remedies must be “available.” Id. at 1856.
Like in Ross, the exhaustion requirement at issue here
emanates from the statutory text, not judicial doctrine. See
Ross, 136 S. Ct. at 1857. For that reason, the court turns
first to the text of § 3582. See id. at 1856-57. Section
3582(b) provides that “a judgment of conviction that includes
. . . a sentence [of imprisonment] constitutes a final
judgment.” 18 U.S.C. § 3582(b). The Supreme Court has
acknowledged that such a final judgment “may not be modified by
a district court except in limited circumstances.” Dillon v.
United States, 560 U.S. 817, 824 (2010). The compassionate
release provision, § 3582(c)(1)(A), provides one of those
limited circumstances.
12 The provision states in relevant part that:
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 failure of the Bureau of Prisons to bring a motion on the defendant’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 . . . .
18 U.S.C. § 3582(c)(1)(A) (emphases added). The plain text of
the provision states that the court may not modify a term of
imprisonment once imposed except in one of the three outlined
circumstances. Although the statute does not use the
traditional mandatory language of “shall,” the construction of
“may not . . . except” speaks in mandatory terms. See Ross, 136
S. Ct. at 1856 (translating mandatory language of “shall bring
no action” to the more conversational “may not bring any
action”). This language evinces legislative intent to limit the
court’s authority to consider compassionate release motions only
under the three delineated circumstances outlined in the
statute.
The text of the statute provides no exceptions to this
limit on judicial authority. The court may consider a
defendant’s direct petition if defendant has either fully
exhausted all administrative rights to appeal BOP’s failure to
13 bring a motion on his behalf, or if defendant has waited for 30
days to lapse after his request to BOP, whichever is earlier.
The statute thus provides two alternative ways for defendant to
meet the exhaustion requirement. The first option—appealing
BOP’s denial—offers defendant a traditional road to exhaustion.
The second option—waiting for 30 days to pass—provides
defendant an expedited route to exhaustion. The 30-day lapse
option might even be viewed as an “exception” to the alternative
of exhaustion of all administrative appeals. See United States
v. Epstein, No. CR 14-287 (FLW), 2020 WL 1808616, at *4 (D.N.J.
Apr. 9, 2020) (describing 30-day lapse option as an exception to
the exhaustion requirement and a “built-in accelerant to
judicial review”); United States v. Gross, No. 15-CR-769 (AJN),
2020 WL 1673244, at *2 (S.D.N.Y. Apr. 6, 2020) (describing 30-
day lapse rule as a “built-in futility exception”); cf. Ross,
136 S. Ct. at 1858-59 (observing that “available” language in
the PLRA acted as a textual exception to exhaustion
requirement). Even viewed as a built-in exception to the more
traditional exhaustion of administrative appeals, the 30-day
lapse option is stated in no less mandatory terms.
Additionally, the two options to achieve exhaustion should be
construed narrowly given the court’s already limited authority
to modify a sentence once imposed. See Dillon, 560 U.S. at 824.
Defendant must meet the statutory exhaustion requirement in one
14 of the two ways spelled out in the statute before the court may
consider his direct request for release.
The statutory text admits no other possible “exceptions”
and leaves no room for judicial discretion. Instead of
providing the clear mandate that defendant wait 30 days before
directly petitioning the court, Congress could have provided for
greater judicial discretion by saying that defendant could
petition the court directly after, for example, “waiting a
reasonable amount of time under the circumstances.” But
Congress did not use such broad language.
Further, the text of the statute itself demonstrates that
Congress knows how to carve out an exception for special or
urgent circumstances if it so desires. Section 3582(d) outlines
an expedited process for inmates who are diagnosed with a
terminal illness, including that any request for compassionate
release submitted by such an inmate must be processed by BOP
within 14 days. 18 U.S.C. § 3582(d)(2)(A)(iv). Thus, Congress
knows how to include language providing for expedited review in
the event of exigent or unique circumstances. It did not,
however, include such language in § 3582(c)(1)(A). See United
States v. Edwards, No. 3:13-CR-00012-1, 2020 WL 1987288, at *10
(M.D. Tenn. Apr. 27, 2020) (“[I]f Congress intended an exception
to the otherwise mandatory statutory 30-day waiting period based
on exceptional circumstances, a national emergency, or strained
15 federal government resources, it would have so indicated by
prescribing such an exception in the statute.”). Thus, the
plain language of the compassionate release provision, read in
the context of the whole statute, demonstrates that the
exhaustion requirement is mandatory and not subject to equitable
exceptions.
The legislative history of the First Step Act, which
amended the compassionate release provision in 2018, also
supports the conclusion that the administrative exhaustion
requirement is mandatory and not subject to equitable
exceptions. See Ross, 136 S. Ct. at 1857-58 (considering PLRA’s
legislative history). There is no doubt that Congress passed
the First Step Act to help increase the use and transparency of
compassionate release and to expedite the process. See First
Step Act of 2018, PL 115-391, December 21, 2018, 132 Stat 5194;
164 Cong. Rec. H. S7314-02 (Dec. 5, 2018), 2018 WL 6350790
(statement of Sen. Cardin, co-sponsor of First Step Act). Prior
to passage of the First Step Act, prisoners could not directly
petition the court for compassionate release; only BOP could
request release on a prisoner’s behalf. See United States v.
Willingham, No. CR 113-010, 2019 WL 6733028, at *1 (S.D. Ga.
Dec. 10, 2019). BOP, however, seldom exercised that authority.
See United States v. Rodriguez, No. 2:03-CR-00271-AB-1, 2020 WL
1627331, at *2 (E.D. Pa. Apr. 1, 2020).
16 The First Step Act removed BOP as the compassionate release
gatekeeper by permitting prisoners to directly petition the
court for release. But the amendment neither eliminated BOP’s
role completely nor opened the floodgates to any and all direct
petitions from prisoners. Instead, Congress imposed the
exhaustion requirement at issue here. That requirement strikes
an important balance between competing interests: BOP’s interest
in assessing in the first instance whether the prisoner is a
good candidate for release and the prisoner’s interest in a
prompt and meaningful review of his request for compassionate
release. It is telling that even though one of the goals of the
First Step Act was to expedite review of compassionate release
requests, Congress chose to impose a 30-day waiting period as
one method of exhaustion. This evinces legislative intent that
no matter how urgent a prisoner’s request, BOP should still have
30 days to weigh in.
Congress gave no indication in the First Step Act’s
legislative history or text that it intended any exceptions—
equitable or otherwise—to apply to this carefully crafted
scheme. Given the clear and mandatory text of the statute and
its legislative history, the court may not take a “freewheeling
approach to exhaustion” here. Ross, 136 S. Ct. at 1855.
Excusing the exhaustion requirement of the statute would, in
effect, read in an extra-textual exception to the statute. Such
17 result is clearly foreclosed by Ross. See id. at 1855, 1862
(holding that Fourth Circuit erred by reading in “special
circumstances” exception to mandatory exhaustion requirement).
Thus, the court concludes that the text and legislative history
of the compassionate release provision demonstrate that its
exhaustion requirement is mandatory and not subject to equitable
exceptions. See, e.g., Miamen, 2020 WL 1904490, at *3
(concluding that compassionate release statute’s administrative
exhaustion requirement is mandatory and not excusable); Lugo,
2020 WL 1821010, at *3 (same); United States v. Holden, No.
3:13-CR-00444-BR, 2020 WL 1673440, at *10 (D. Or. Apr. 6, 2020)
(same); see also United States v. Raia, 954 F.3d 594, 597 (3d
Cir. 2020) (observing that because defendant had not received an
adverse decision from BOP or waited 30 days, exhaustion
requirement presented a “glaring roadblock foreclosing
compassionate release”).
III. Distinguishing Contrary Authority
The court does not find any of defendant’s arguments to the
contrary persuasive. The central thrust of defendant’s argument
is that the exhaustion requirement here is subject to several
equitable exceptions, including irreparable harm and futility.
Defendant draws on a number of different authorities in support
of this argument.
18 Defendant appears to rely on United States v. Scparta, __
F. Supp. 3d ___, 2020 WL 1910481 (S.D.N.Y. Apr. 20, 2020) to
argue that Supreme Court precedent supports the conclusion that
the exhaustion requirement here, even if mandatory, is subject
to equitable exceptions. See doc. no. 16 at 22; see Scparta,
2020 WL 1910481, at *5. In Scparta, the court confronted the
same question presented here: whether the court may excuse the
exhaustion requirement of the compassionate release provision
for equitable reasons like futility. Scparta, 2020 WL 1910481,
at *4-8. Scparta states that the Supreme Court has reserved the
question whether mandatory claim-processing rules are subject to
equitable exceptions. Id. at *5. And, it says, the Supreme
Court has held that even a mandatory statute of limitations is
subject to a rebuttable presumption in favor of equitable
tolling. Id. Scparta then reasons that the exhaustion
requirement set forth in the compassionate release provision is
unique: one-part traditional exhaustion requirement (exhaustion
of administrative appeals) and one-part “timeliness requirement”
(30-day lapse). Id. at 5-6. Viewing the unique structure of
the exhaustion requirement in the context of the text and
history of the statute, the court concluded that the exhaustion
requirement—particularly the 30-day lapse provision—is amenable
to equitable exceptions. See id. at 6-8; see also United States
19 v. Russo, No. 16-CR-441 (LJL), 2020 WL 1862294, at *5-7
(S.D.N.Y. Apr. 14, 2020) (employing similar reasoning).
This court respectfully disagrees with the reasoning in
Scparta and other similar cases on several grounds. First, it
is true that mandatory claim-processing rules imposing statutes
of limitation are “normally subject to a rebuttable presumption
in favor of equitable tolling.” Holland v. Florida, 560 U.S.
631, 645-46 (internal quotation marks omitted). But that
presumption does not apply where “tolling would be inconsistent
with the text of the relevant statute.” Young v. United States,
535 U.S. 43, 49 (2002) (internal quotation marks omitted). Even
assuming that the 30-day lapse provision has some “features” of
a timeliness statute, the court finds application of equitable
principles like tolling inconsistent with the text of the
compassionate release provision, as explained in detail above.5
Second, the court disagrees that the 30-day lapse provision
can be characterized as akin to a statute of limitations or
5 The court also observes that in both Holland and Young the Supreme Court highlighted the equitable nature of the legal schemes at issue in holding that equitable tolling applied. See Holland, 560 U.S. at 646 (presumption in favor of equitable tolling reinforced by fact that equitable principles have traditionally governed substantive habeas law); Young, 535 U.S. at 50 (presumption in favor of equitable tolling strengthened by fact that bankruptcy courts apply principles and rules of equity jurisprudence). By contrast, the court’s authority to modify a sentence after imposition does not derive from principles of equity; it emanates from and is circumscribed by statute. See 18 U.S.C. § 3582(b)-(c).
20 other timeliness requirement. Cf. Scparta, 2020 WL 1910481, at
*6. A statute of limitations rule “prescribes a period within
which certain rights . . . may be enforced.” Young, 535 U.S. at
47; see also CTS Corp. v. Waldburger, 573 U.S. 1, 8 (2014)
(“Statutes of limitations require plaintiffs to pursue diligent
prosecution of known claims.” (internal quotation marks
omitted)). Rather than prescribing a time within which a
prisoner must request compassionate release, the statute here
imposes a waiting period before which the prisoner may not file
a request. This 30-day waiting period is “consistent with one
of the bedrock principles underlying administrative exhaustion—
to permit the agency, with its expertise and with its
responsibility over the movant, to make a decision in the first
instance.” Epstein, 2020 WL 1808616, at *4. Because the
purpose and function of the 30-day waiting period is
fundamentally different than that of a statute of limitations,
the court finds it inappropriate to apply the equitable
presumptions applicable to statutes of limitation here.
Finally, the court acknowledges that the Supreme Court has
reserved the question “whether mandatory claim-processing rules
may ever be subject to equitable exceptions.” Fort Bend County,
139 S. Ct. at 1849 n.5 (quoting Hamer v. Neighborhood Hous.
Servs. of Chicago, 138 S. Ct. 13, 18 n.3 (2017) (brackets
omitted); see also Kontrick v. Ryan, 540 U.S. 443, 457 (2004)
21 (“Whether the [Bankruptcy] Rules, despite their strict
limitations, could be softened on equitable grounds is therefore
a question we do not reach.”). However, the Court has also made
clear that it will “not read futility or other exceptions into
statutory exhaustion requirements where Congress has provided
otherwise.” Booth v. Churner, 532 U.S. 731, 741 n.6 (2001); see
also Ross, 136 S. Ct. at 1856-57; Medina-Claudio v. Rodriguez-
Mateo, 292 F.3d 31, 35 (1st Cir. 2002) (“[T]here is no futility
exception to the PLRA exhaustion requirement.” (internal
quotation marks omitted)). Defendant has not cited any First
Circuit cases post-Ross where equitable exceptions were
applicable to a mandatory statutory exhaustion requirement. As
explained above, the court concludes that the text and
legislative history of the compassionate release provision are
clear, mandatory, and leave no wiggle room for this court to
apply equitable exceptions.
Defendant next relies on Washington v. Barr, 925 F.3d 109
(2d Cir. 2019) in support of his argument that the statutory
exhaustion requirement at issue here is subject to equitable
exceptions including irreparable harm and futility. See doc.
no. 16 at 20, 22-23, 26. There is a line of district court
cases that rely on Washington to hold that the exhaustion
requirement of the compassionate release provision may be
excused for reasons of irreparable harm and futility. See,
22 e.g., United States v. McCarthy, No. 3:17-CR-0230 (JCH), 2020 WL
1698732, at *3 (D. Conn. Apr. 8, 2020); United States v. Colvin,
No. 3:19CR179 (JBA), 2020 WL 1613943, at *2 (D. Conn. Apr. 2,
2020); United States v. Perez, __ F. Supp. 3d __, 2020 WL
1546422, at *2 (S.D.N.Y. Apr. 1, 2020). These cases rely on the
Second Circuit’s statement in Washington that “[e]ven where
exhaustion is seemingly mandated by statute or decisional law,
the requirement is not absolute.” Washington, 925 F.3d at 118;
see also Perez, 2020 WL 1546422, at *2 (quoting that language).
Washington then goes on to outline the recognized exceptions to
exhaustion: futility, the absence of adequate relief, and undue
prejudice. Washington, 925 F.3d at 118-19.
Washington, however, involved a judge-made exhaustion
requirement grafted on to the Controlled Substances Act—not a
statutorily-mandated exhaustion scheme. Id. at 118 (reasoning
that “[a]lthough not mandated by Congress,” requiring exhaustion
was consistent with the text and structure of the Controlled
Substances Act). For that reason, Washington is distinguishable
from this case and the Second Circuit’s statement that “[e]ven
where exhaustion is seemingly mandated by statute . . . the
requirement is not absolute” is mere dicta. Id. at 118
(emphasis added); see Lugo, 2020 WL 1821010, at *4 n.1
(collecting growing trend of cases viewing Washington as
inapposite to whether § 3582(c)(1)(A)’s exhaustion requirement
23 is subject to equitable exceptions). Given this distinction,
the court also finds unpersuasive the district court cases that
have relied on Washington to conclude that the exhaustion
requirement at issue here is subject to the equitable exceptions
of futility and irreparable harm. See, e.g., Epstein, 2020 WL
1808616, at *4 n.4 (finding Perez and similar cases unpersuasive
“because [Washington] dealt only with a judicially created
exhaustion requirement, not a statutory one”); Holden, 2020 WL
1673440, at *9 (finding Perez “unpersuasive because it is
unsupported by law”).
Defendant also cites Portela-Gonzalez v. Sec'y of the Navy,
109 F.3d 74 (1st Cir. 1997) in support of the proposition that
the First Circuit has identified three broad sets of equitable
exceptions that apply when the interests of the individual weigh
heavily against requiring the exhaustion of administrative
remedies. Doc. no. 16 at 24-25. But that decision concerned an
exhaustion regime set up by administrative procedure—not by
Congress. See Portela-Gonzalez, 108 F.3d at 77 (explaining that
Congress has excluded Navy Exchange personnel from requirements
of the Administrative Procedure Act and has not otherwise
mandated that employees exhaust administrative remedies as a
prerequisite to suit). The First Circuit reasoned that because
Congress was silent on the issue of exhaustion, the district
court had discretion to relax or excuse the exhaustion
24 requirement under certain circumstances. See id. The First
Circuit acknowledged, however, that “exhaustion of administrative
remedies is absolutely required if explicitly mandated by
Congress.” Id. at 77. In contrast to the exhaustion
requirement in Portela-Gonzalez, Congress has explicitly
mandated exhaustion under the compassionate release statute.
Therefore, the equitable exceptions outlined in Portela-Gonzalez
are inapposite here.
IV. Summary
In sum, the court concludes that the exhaustion requirement
of § 3582(c)(1)(A) is a mandatory claim-processing rule and that
the text and legislative history of the statute foreclose the
applicability of equitable exceptions. The court does not reach
this conclusion lightly. It is indisputable that the COVID-19
pandemic is unprecedented and poses a special risk to
individuals who are currently incarcerated, especially those who
are particularly vulnerable due to serious, chronic health
issues or age. In short, inmates’ lives are on the line. But
the court’s hands are tied by the compassionate release statute.
“Congress may of course amend the law at any time,” Barton v.
Barr, ___ S. Ct. ___, 2020 WL 1941965, at *10 (U.S. Apr. 23,
2020), to remove or amend the exhaustion requirement. Until
25 then, the court is constrained by the law as enacted by
Congress.
V. Recommendation to BOP for Home Confinement
As an alternative to compassionate release, defendant
requests that the court recommend to BOP that he serve the
remainder of his sentence on home confinement. The government
objects to this alternative relief.
Under the circumstances, the court finds it inappropriate
to make such a recommendation to BOP. Defendant has only just
begun serving his 60-month sentence. He has over three years
left to serve on a 5-year sentence. The court is sympathetic to
the fact that defendant describes himself as in need of medical
care and in great pain due to gastrointestinal problems.
However, he has not submitted medical records indicating that
he has been diagnosed with a health condition listed by the CDC
guidelines as putting him at especially high risk for severe
illness from COVID-19.6 Given the current record, the court does
not find defendant to be a priority candidate warranting a
recommendation for home confinement.
6 CDC, People Who are at Higher Risk for Severe Illness, (last visited May 9, 2020) https://www.cdc.gov/coronavirus/2019- ncov/need-extra-precautions/people-at-higher-risk.html (listing underlying conditions such as lung disease, serious heart conditions, and diabetes).
26 CONCLUSION
For the foregoing reasons, the court denies without
prejudice defendant’s request for compassionate release and his
alternative request for a recommendation to BOP that he be
placed on home confinement (doc. no. 16). Defendant may, of
course, renew his request for compassionate release after he has
satisfied the compassionate release statute’s exhaustion
requirement.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
May 12, 2020
cc: Counsel of Record. U.S. Probation U.S. Marshal