Summary
finding that, where § 3582(c)'s exhaustion requirement is not satisfied, the court is "without jurisdiction to entertain [defendant's] request for compassionate release"
Summary of this case from United States v. MesmerOpinion
Case No. CR-16-62-D
12-05-2019
UNITED STATES OF AMERICA, Plaintiff, v. BARRY LEONARD KEITH, Defendant.
ORDER
Before the Court is Defendant's pro se motion [Doc. No. 63], seeking a reduction in his sentence pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). The United States has responded in opposition [Doc. No. 67]. The matter is fully briefed and at issue.
BACKGROUND
Defendant robbed an IBC Bank in Oklahoma City in 2012. Presentence Investigation Report [Doc. No. 35] ¶ 43. Following a guilty plea, Defendant was sentenced to 36-months in custody followed by 3 years of supervised release. Id. Less than ten months after Defendant began his term of supervised release, on March 5, 2016, he robbed a MidFirst Bank in Oklahoma City. Id. ¶ 8. Following Defendant's guilty plea to the new charge, the Court sentenced him to 60 months' imprisonment. See Order [Doc. No 40]. The Tenth Circuit affirmed Defendant's sentence on appeal. United States v. Keith, 727 Fed App'x. 513 (10th Cir. 2018).
DISCUSSION
A federal district court may modify a defendant's sentence where Congress has specifically authorized it to do so. See,e.g., 18 U.S.C. § 3582(c)(1)(B) (permitting a court to modify an imposed term of imprisonment "to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure"); United States v. Blackwell, 81 F.3d 945, 947 (10th Cir. 1996) ("A district court is authorized to modify a [d]efendant's sentence only in specified instances where Congress has expressly granted the court jurisdiction to do so.").
One statute providing such authorization is 18 U.S.C. § 3582(c)(1)(A), which gives the district court discretion to grant compassionate release. Prior to the enactment of the First Step Act, only the Director of the Bureau of Prisons could seek compassionate release under § 3582(c)(1)(A). See United States v. Gutierrez, 2019 WL 2422601, at *1 (D. N.M. June 10, 2019). On December 21, 2018, the President signed the FSA into law. See FSA, Pub. L. No. 115-391, 132 Stat. 5194. Section 603(b)(1) of the FSA amended 18 U.S.C. § 3582(c)(1)(A) to allow for a defendant to bring his own motion for compassionate release, provided he first exhausts his administrative remedies with the BOP. See FSA, § 603(b)(1); 18 U.S.C. § 3582(c)(1)(A).
Defendant argues for compassionate release under 18 U.S.C. § 3582(c)(1)(A), though he has made no showing that he has exhausted his administrative remedies with the BOP with respect to his health issues. To have done so, he must first submit his request to BOP and either (1) complete the administrative appeal process, if BOP denies his request; or (2) wait 30 days from BOP's receipt of his request to deem its lack of response a denial of his request. See 18 U.S.C. § 3582(c)(1)(A). The requests the BOP considers must be the same raised before the Court. See [Doc. No. 63] at 1 (no mention of health condition in communications with the BOP). To be sure, Defendant raised some of the issues before the BOP is his exhaustion attempts. But other issues raised here—issues central to Defendant's argument for compassionate release—were never raised before the BOP. The Court is therefore without jurisdiction to entertain Petitioner's request for compassionate release.
CONCLUSION
Defendant's pro se motion [Doc. No. 63] for a reduction in sentence is DENIED, as set forth herein.
IT IS SO ORDERED this 5th day of December 2019.
/s/_________
TIMOTHY D. DeGIUSTI
Chief United States District Judge