Opinion
Criminal Case No. 17-cr-00081-PAB
2020-05-01
UNITED STATES of America, Plaintiff, v. 1. Andre Sinclair FULLER, Defendant.
Suneeta Hazra, U.S. Attorney's Office-Denver, Denver, CO, for Plaintiff.
Suneeta Hazra, U.S. Attorney's Office-Denver, Denver, CO, for Plaintiff.
ORDER
PHILIP A. BRIMMER, Chief United States District Judge
This matter is before the Court on defendant Andre Sinclair Fuller's Motion for Compassionate Release [Docket No. 39]. On December 9, 2013, Mr. Fuller pled guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) in the United States District Court for the District of Wyoming. Docket No. 1-1 at 1; see also Docket No. 31 in United States v. Fuller , No. 2:13-cr-00224 (District of Wyoming). Mr. Fuller received a sentence of 41 months imprisonment followed by three years of supervised release. Docket No. 1-1 at 2-3. On March 20, 2017, jurisdiction of the case was transferred to the District of Colorado. Docket No. 1. On December 27, 2019, the Court sentenced Mr. Fuller to eight months imprisonment after the Court found that he had violated the terms and conditions of supervised release. Docket No. 36 at 3. Mr. Fuller is currently incarcerated at FCI Florence in Florence, Colorado. Docket No. 39 at 1. His scheduled release date is September 18, 2020. Id.
On April 30, 2020, Mr. Fuller filed this motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). Id. Mr. Fuller requests that he be released from prison to home confinement, probation, or supervised release due to health concerns related to the coronavirus (COVID-19) pandemic. Id. at 1-3. Specifically, Mr. Fuller states that he is at an increased risk of complications from COVID-19 due to his hypertension. Id. at 3. Mr. Fuller represents that recent research suggests that individuals with hypertension are at an increased risk for a COVID-19 infection. Id.
Section 3582(c)(1)(A) permits a district court to "reduce [a] term of imprisonment" in certain circumstances "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." Counsel for Mr. Fuller "requested that the warden release Mr. Fuller on April 6, 2020." Docket No. 39 at 4-5; see also Docket No. 39-1 (copy of letter emailed to FCI Florence warden on April 6, 2020). The motion does not indicate that the warden has responded. See id. Thus, Mr. Fuller has failed to demonstrate that he has "exhausted all administrative rights" or that 30 days have elapsed from the warden receiving Mr. Fuller's request for a sentence reduction, as the statute requires. Accordingly, the Court does not have jurisdiction to consider Mr. Fuller's request for compassionate release. See United States v. Keith , 2019 WL 6617403, at *1 (W.D. Okla. Dec. 5, 2019) (finding that, where § 3582(c)(1)(A) ’s exhaustion requirement is not satisfied, the court is "without jurisdiction to entertain [defendant's] request for compassionate release"); see also United States v. Feiling , 453 F.Supp.3d 832, 840–41, (E.D. Va. Apr. 10, 2020) (finding that the court is without authority to grant a sentence modification under § 3582(c)(1)(A) absent exhaustion of administrative remedies).
Under 18 U.S.C. § 3582(c)(1)(A), the Court may order release if it finds that:
(i) extraordinary and compelling reasons warrant such a reduction; or
(ii) the defendant is at least 70 years of age, has served at least 30 years in prison, pursuant to a sentence imposed under section 3559(c), for the offense or offenses for which the defendant is currently imprisoned, and a determination has been made by the Director of the Bureau of Prisons that the defendant is not a danger to the safety of any other person or the community, as provided under section 3142(g);
and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
Mr. Fuller argues that the 30-day exhaustion requirement is not jurisdictional, but is instead a procedural "claims-processing" rule. Docket No. 39 at 5. However, district courts in this circuit, including this Court, have consistently ruled that the 30-day exhaustion requirement is jurisdictional. See United States v. Perry , No. 18-cr-00480-PAB, 2020 WL 1676773, at *2 (D. Colo. Apr. 3, 2020); United States v. Soto , No. 16-cr-00138-CMA, 2020 WL 1875147, at *2 (D. Colo. Apr. 15, 2020) ; United States v. Olivera , 2020 WL 1812378, at *1 (D. Utah Apr. 9, 2020) ; United States v. Moore , 2020 WL 2061429, at *2 (D. Kan. Apr. 29, 2020).
Mr. Fuller sets forth several arguments why the exhaustion requirement should not apply. First, he asserts that, "according to the BOP, ‘[i]nmates do not need to apply to be considered for home confinement.’ " Docket No. 39 at 5 (quoting Federal Bureau of Prisons, Update on COVID-19 and Home Confinement , https://www.bop.gov/resources/news/20200405_covid19_home_confinement.jsp). Mr. Fuller argues that, if no application is necessary to be placed in home confinement, he should not have to exhaust his administrative remedies under § 3582(c)(1)(A). Docket No. 39 at 5. However, Mr. Fuller has not demonstrated that the statement on the BOP's website refers to the First Step Act. The BOP website indicates that "[c]ase management staff are urgently reviewing all inmates to determine which ones meet the criteria established by the Attorney General [for home confinement]." See Federal Bureau of Prisons, Update on COVID-19 and Home Confinement , https://www.bop.gov/resources/news/20200405_covid19_home_confinement.jsp. On March 26, 2020, the Attorney General issued a memorandum instructing BOP officials to "prioritize the use of [the Director's] various statutory authorities to grant home confinement for inmates," considering "the totality of circumstances for each individual inmate, the statutory requirements for home confinement" and various discretionary factors. See Memorandum for the Director of Bureau of Prisons from the Attorney General, March 26, 2020, at 1-2. However, this memorandum does not invoke the First Step Act or alter its exhaustion requirements. A motion under the First Step Act is distinct from the BOP's efforts on its own accord to grant discretionary home confinement, and the BOP's independent efforts to initiate transfer to home confinement does not eliminate Mr. Fuller's requirement to exhaust his administrative remedies under the First Step Act.
Title 18 U.S.C. § 3624(c)(2) permits the Director of the Bureau of Prisons (the "Director") to "place a prisoner in home confinement for the shorter of 10 percent of the term of imprisonment of that prisoner or 6 months." The CARES Act, enacted on March 27, 2020, allows the Director to "lengthen the maximum amount of time for which the Director is authorized to place a prisoner in home confinement" under that statute. Pub. L. 116-136, § 12003(b)(2). These procedures are separate from the Court's jurisdiction to order a sentence reduction pursuant to § 3582(c)(1)(A).
In the alternative, Mr. Fuller argues that the Court may waive the First Step Act's exhaustion requirement. He argues that "the [Tenth] Circuit has waived exhaustion requirements of various statutes involving prisoners where administrative remedies are not ‘available.’ " Docket No. 39 at 5. In support, he cites Greer v. Dowling , 947 F.3d 1297 (10th Cir. 2020), and Little v. Jones , 607 F.3d 1245 (10th Cir. 2010). Id. at 6. The Court is not persuaded by Mr. Fuller's argument. In Greer and Little , administrative remedies were deemed "unavailable" when prison officials had prevented inmates from taking steps to fully exhaust their administrative remedies. See Greer , 947 F.3d at 1303 (noting that, while the inmate had failed to complete the administrative process, "prison authorities had prevented Mr. Greer from taking further administrative steps"); see also Little , 607 F.3d at 1250 ("Where prison officials prevent, thwart, or hinder a prisoner's efforts to avail himself of an administrative remedy, they render that remedy ‘unavailable’ and a court will excuse the prisoner's failure to exhaust."). In contrast, while Mr. Fuller's counsel states that she "has learned from more than one source that case managers at Florence have told the inmates there that no one from the facility qualifies for home detention," and that this demonstrates that exhaustion would be futile, see Docket No. 39 at 6, Mr. Fuller has not alleged that prison authorities at FCI Florence have outright precluded Mr. Fuller's ability to avail himself of his administrative remedies, that prison authorities are denying all requests for release as a matter of course, or that these case managers’ purported statements reflect an overarching policy at FCI Florence. Thus, the Court finds that the First Step Act's exhaustion requirements cannot be waived here. See United States v. Raia , 954 F.3d 594, 597 (3d Cir. 2020) (describing the failure to comply with the exhaustion requirement as a "glaring roadblock foreclosing compassionate release").
Mr. Fuller also cites Garza v. Davis , 596 F.3d 1198, 1203 (10th Cir. 2010), for the proposition that exhaustion is not required when filing a 28 U.S.C. § 2241 habeas petition if exhaustion would be "futile." Docket No. 39 at 6. This case is inapplicable here. Title 28 U.S.C. § 2241 is separate from the First Step Act and permits an inmate to challenge his custody on the basis that it is in violation of the United States Constitution or federal law. "A compassionate release request is not a matter of illegal or unconstitutional restraint." Figueroa v. Chapman , 347 F. App'x 48, 50 (5th Cir. 2009) (unpublished).
In addition, Mr. Fuller cites a recent district court case waiving the First Step Act's exhaustion requirement on the basis that, "given [the inmate's] unique circumstances and the exigency of a rapidly advancing pandemic," the exhaustion of the administrative process would be "both futile and inadequate." United States v. Perez , 451 F.Supp.3d 288, 292–93, (S.D.N.Y. Apr. 1, 2020) ; see also Docket No. 39 at 6. But the Supreme Court has made clear that "mandatory exhaustion statutes ... establish mandatory exhaustion regimes, foreclosing judicial discretion." Ross v. Blake , ––– U.S. ––––, 136 S. Ct. 1850, 1857, 195 L.Ed.2d 117 (2016). "[T]he judiciary has no power to craft an exception to these requirements for defendants seeking release during the COVID-19 pandemic." United States v. Alam , 453 F.Supp.3d 1041, 1044, (E.D. Mich. Apr. 8, 2020) (citing cases).
Finally, Mr. Fuller requests that, if the Court does not find his exhaustion arguments persuasive, it should delay ruling on his motion until the 30-day exhaustion period has passed or until May 6, 2020. Docket No. 39 at 6. Given that the Court has determined that it lacks jurisdiction to rule on Mr. Fuller's motion, the Court must deny Mr. Fuller's motion without prejudice to Mr. Fuller's ability to refile a motion for compassionate release should he exhaust his administrative remedies.
While the Court is not unsympathetic to Mr. Fuller's situation, the Court may not take action where it lacks statutory authorization to do so. The Court concludes that Mr. Fuller has failed to demonstrate a basis for the Court to exercise jurisdiction over his request for a sentence reduction. It is therefore
ORDERED that defendant Andre Sinclair Fuller's Motion for Compassionate Release [Docket No. 39] is denied without prejudice.