Opinion
CRIMINAL ACTION No. 03-136 SECTION I
01-14-2021
UNITED STATES OF AMERICA v. FREDERICK JOHNSON
ORDER & REASONS
Before the Court is defendant Frederick Johnson's ("Johnson") motion for an order releasing him to "home confinement" or giving him "credit for time served," which the Court construes as a motion for compassionate release pursuant to the First Step Act, 18 U.S.C. § 3582(c)(1)(A). The government opposes the motion. Because Johnson has not demonstrated that he has satisfied the statutory exhaustion requirement, the motion is dismissed without prejudice.
R. Doc. No. 75.
In the context of his letter, Johnson's request is clearly for release due to the danger posed by COVID-19. To the extent he is asking for any other relief, he must file a proper motion with the Court.
R. Doc. No. 77.
I.
On October 15, 2003, this Court sentenced Johnson to a term of 96 months on each of two counts—(1) violating 18 U.S.C. §§ 922(g)(1), 924(a)(2) (convicted felon in possession of a firearm) and (2) violating 18 U.S.C. § 2113(a)-(d) (bank robbery). The terms were to be served concurrently, followed by a total of five years of supervised release. Johnson began his term of supervised release on December 29, 2010.
R. Doc. No. 21.
Id.
R. Doc. No. 38.
On June 14, 2018, having found that Johnson violated numerous conditions of his supervised release, the Court sentenced him to serve a total of 60 months, consecutive to a state criminal sentence. Johnson is currently incarcerated at USP Pollock ("Pollock"), with a projected release date as to his federal sentence of July 7, 2024.
R. Doc. No. 57. The sixty months represents consecutive sentences of twenty-four months as to the possession count and thirty-six months as to the bank robbery count. Id.
Johnson asks the Court to give him "credit for time served" or "allow [him] to be placed on home confindment [sic]" due to the prevalence of COVID-19 at Pollock. Johnson does not allege that he has administratively exhausted his request.
R. Doc. No. 75.
The government opposes Johnson's motion. In relevant part, the government argues that the Court cannot consider Johnson's motion for compassionate release because he has not satisfied the statutory exhaustion requirement.
R. Doc. No. 77.
Id. at 6.
II.
Section 3582(c)(1)(A) of the First Step Act provides that a court may not modify a term of imprisonment on motion of a defendant unless the motion was made after the defendant has exhausted his administrative remedies. A reduction is authorized only after a court, considering the factors set forth in 18 U.S.C. § 3553(a), finds that "extraordinary and compelling reasons warrant such a reduction." 18 U.S.C. § 3582(c)(1)(A)(i). The reduction must also be "consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(1)(A).
Section 3582 allows a court to consider a defendant's motion for modification of a term of imprisonment only "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." Id.
In United States v. Franco, the Fifth Circuit determined that the administrative exhaustion requirement "is not jurisdictional, but that it is mandatory." 973 F.3d 465, 467 (5th Cir. 2020) (emphasis in original). This holding comports with those of at least three other circuits. See United States v. Alam, 960 F.3d 831, 834 (6th Cir. 2020) (explaining that a court "may not grant relief" if the defendant has not complied with the exhaustion requirement, which operates as an "unyielding procedural requirement[]") (internal quotation and citations omitted) (alteration in original); United States v. Raia, 954 F.3d 594, 597 (3d Cir. 2020) (characterizing the defendant's failure to exhaust administrative remedies as "a glaring roadblock foreclosing compassionate release at this point"); United States v. Springer, 820 F. App'x 788, 791-92 (10th Cir. 2020).
The defendant bears the burden of demonstrating that he is entitled to compassionate release and that he has exhausted his administrative remedies. United States v. Bates, No. 13-66, 2020 WL 6708384, at *1 (E.D. La. Nov. 16, 2020) (Vance, J.); United States v. Evans, No. 16-20144, 2020 WL 2549964, at *2 (W.D. Tenn. May 19, 2020); United States v. Van Sickle, No. 18-0250, 2020 WL 2219496, at *3 (W.D. Wash. May 7, 2020); see United States v. Roberts, No. 15-135, 2020 WL 2130999, at *3 (W.D. La. May 5, 2020).
Johnson has not made any showing that he has "fully exhausted all administrative rights to appeal" or that 30 days have lapsed since the receipt of a request for compassionate release by the warden of his facility. See 18 U.S.C. § 3582(c)(1)(A). And the government notes that, according to the Bureau of Prisons, Johnson had not submitted a request for compassionate release as of January 8, 2021. Because Johnson has not satisfied his burden of proof with respect to the statutory exhaustion requirement, his motion for compassionate release is not properly before the Court.
R. Doc. No. 77, at 8 n.12. --------
III.
Accordingly,
IT IS ORDERED that Johnson's motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A) is DISMISSED WITHOUT PREJUDICE to his refiling after satisfying the administrative exhaustion requirement.
New Orleans, Louisiana, January 14, 2021.
/s/ _________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE