Opinion
CRIMINAL 2:13-cr-71-DBH
10-28-2021
UNITED STATES OF AMERICA, v. MARK BROWN, Defendant
ORDER ON MOTION FOR COMPASSIONATE RELEASE
D. Brock Hornby, United States District Judge
The defendant Mark Brown has moved for compassionate release under 18 U.S.C. § 3582(c)(1)(A). (ECF No. 55). The government responds that Brown has not exhausted his administrative remedies, namely, he has not asked the Warden of his prison for relief. Gov't's Response at 7 (ECF No. 57). Brown has not contradicted that assertion.
The statute is clear that a prisoner can move for relief 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.” 18 U.S.C. § 3582(c)(1)(A); United States v. Saccoccia, 10 F.4th 1, 3-4 (1st Cir. 2021) (“[I]ncarcerated individuals [may] file their own motions seeking compassionate release as long as they first apply to the BOP”). Although the exhaustion requirement is not jurisdictional, see United States v. Whalen, No. 1:11-cr-00033-JAW, 2020 WL 3802714, at *6-7 (D. Me. July 7, 2020), it is mandatory, see United States v. Cain, No. 1:16-cr-00103-JAW-1, 2020 WL 3064427, at *2 (D. Me. June 9, 2020); accord United States v. Lugo, 2020 No. 2:19-cr-00056-JAW, WL 1821010, at *3 (D. Me. Apr. 10, 2020).
On the record in this case, the defendant has not satisfied the exhaustion requirement by first filing a request with the Warden at his facility. I therefore Dismiss without prejudice his motion for compassionate release. See id.
So Ordered.