United States v. Bess

455 F.Supp.3d 53

UNITED STATES of America,

v.James H. BESS, Jr., Defendant.

16-cr-156

United States District Court, W.D. New York.

Signed April 22, 2020

Laura A. Higgins, Seth T. Molisani, U.S. Attorney's Office, Buffalo, NY, for United States of America.

DECISION & ORDER

LAWRENCE J. VILARDO, UNITED STATES DISTRICT JUDGE

On October 4, 2018, the defendant, James H. Bess, Jr., pleaded guilty to one count of possessing with intent to distribute 5 grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1). See Docket Items 66-68, 71. On May 10, 2019, this Court sentenced Bess to a term of imprisonment of 84 months to be followed by five years of supervised release. See Docket Items 85-86. Under 21 U.S.C. § 841(b)(1)(B)(viii), the mandatory minimum term of imprisonment for the charge to which Bess pleaded guilty is 60 months (5 years). Bess has been incarcerated, most recently under the authority of the Federal Bureau of Prisons ("BOP") at FCI Butner Low ("Butner"), for approximately 41 months and, crediting "good time," has served roughly 60% of his sentence. See Docket Item 90 at 3. His anticipated release date is October 20, 2022. Id.

On April 13, 2020, Bess brought a motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A), as amended by the First Step Act of 2018 ("First Step Act"), Pub. L. No. 115-391, 132 Stat. 5194. See Docket Item 90. He argued that his continued confinement in the wake of the COVID-19 pandemic and in light of his multiple medical vulnerabilities poses a serious threat to his health and safety. The government opposed Bess's motion on April 20, 2020, arguing only that the motion should be denied because Bess has failed to exhaust administrative remedies. Docket Item 92.

This Court heard argument from both parties on April 21, 2020, and granted Bess's motion in a short memorandum, ordering that he immediately be released to home incarceration. See Docket Item 95. The Court now writes to explain its decision.

DISCUSSION

"[A] court may not modify a term of imprisonment once it has been imposed except pursuant to statute." United States v. Ogarro , 2020 WL 1876300, at *2 (S.D.N.Y. Apr. 14, 2020) (Sullivan, J. ) (quoting United States v. Roberts , ––– F.Supp.3d ––––, ––––, 2020 WL 1700032, at *1 (S.D.N.Y. Apr. 8, 2020) ). Section 3582(c)(1)(A) provides one such statutory exception, often referred to as "compassionate release." Under 18 U.S.C. § 3582(c)(1)(A)(i),

[a sentencing] court, ... 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 extraordinary and compelling reasons warrant such a reduction ... and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.

Id. The relevant policy statement, Guidelines section 1B1.13, in turn provides:

Upon motion of the Director of the Bureau of Prisons under 18 U.S.C. § 3582(c)(1)(A),^[1] the court may reduce a term of imprisonment (and may impose a term of supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment) if, after considering the factors set forth in 18 U.S.C. § 3553(a), to the extent that they are applicable, the court determines that—

(1) (A) Extraordinary and compelling reasons warrant the reduction; or

(B) The defendant (i) is at least 70 years old; and (ii) has served at least 30 years in prison pursuant to a sentence imposed under 18 U.S.C. § 3559(c) for the offense or offenses for which the defendant is imprisoned;

(2) The 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) ; and

(3) The reduction is consistent with this policy statement.

Id. "The defendant has the burden to show he is entitled to a sentence reduction."

United States v. Ebbers , 432 F.Supp.3d 421, 426 (S.D.N.Y. Jan. 8, 2020).

Accordingly, to obtain relief under section 3582(c)(1)(A)(i), Bess must show that (1) he has met the exhaustion requirement, (2) "extraordinary and compelling reasons" warrant a reduction of his sentence, (3) he is not a danger to others or the community, and (4) a reduction is consistent with the factors set forth in section 3553(a).

1. Exhausation Requirement

First, courts consider whether the defendant has met section 3582(c)(1)(A) ’s exhaustion requirement. To do so, the defendant must show either (a) that he has "fully exhausted all administrative rights to appeal a failure of the [BOP] to bring a motion on [his] behalf" or (b) that 30 days have lapsed since "the receipt of such a request by the warden of the defendant's facility." 18 U.S.C. § 3582(c)(1)(A). There is no dispute that Bess has not fulfilled either requirement. He submitted a compassionate release petition to the Butner warden on approximately April 8, 2020, see Docket Item 92-1² ; the BOP denied that petition, Docket Item 92-2 at 1; and Bess has not appealed the BOP's denial, see Docket Item 92 at 3³ . As such, under the explicit terms of the statute, this Court lacks the authority to grant Bess's request until May 8, 2020. The question thus become whether the exhaustion requirement is subject to any exceptions.

"There are two types of exhaustion requirements: jurisdictional ones and non-jurisdictional ones." Ogarro , 2020 WL 1876300, at *2. "Jurisdictional exhaustion requirements ‘govern a court's adjudicatory authority’ and are not subject to any exceptions." Id. (quoting Gonzalez v. Thaler , 565 U.S. 134, 141, 132 S.Ct. 641, 181 L.Ed.2d 619 (2012) ). In contrast, nonjurisdictional exhaustion requirements—sometimes referred to as "claim-processing rules"—merely "promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times" and therefore are subject to certain exceptions. See Hamer v. Neighborhood Hous. Servs. of Chicago , ––– U.S. ––––, 138 S. Ct. 13, 17, 199 L.Ed.2d 249 (2017) (quoting Henderson v. Shinseki, 562 U.S. 428, 435, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011) ); see also Coleman v. Newburgh Enlarged City Sch. Dist. , 503 F.3d 198, 203 (2d Cir. 2007) ("[T]he Supreme Court has admonished lower courts to more carefully distinguish between jurisdictional rules and mandatory claims-processing rules, the latter being subject to waiver and forfeiture." (citations omitted)). Statutory text determines whether an exhaustion requirement is jurisdictional in nature. "If the [l]egislature clearly states that a threshold limitation on a statute's scope shall count as jurisdictional, then courts and litigants will be duly instructed and will not be left to wrestle with the issue. But when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character." Arbaugh v. Y & H Corp. , 546 U.S. 500, 515-16, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (citation omitted).

Nonjurisdictional exhaustion requirements—that is, claim-processing rules—are subject to certain exceptions, depending on whether they prescribed by the legislature or the courts. Those created expressly by statute "may be waived or forfeited" by the opposing party, Hamer , 138 S. Ct. at 17 (citation omitted), but are not subject to "judicial discretion," Ross v. Blake , ––– U.S. ––––, 136 S. Ct. 1850, 1857, 195 L.Ed.2d 117 (2016) ; see also Booth v. Churner , 532 U.S. 731, 741 n.6, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001) (explaining that courts should "not read futility or other exceptions into statutory exhaustion requirements where Congress has provided otherwise"); McCarthy v. Madigan , 503 U.S. 140, 144, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992) ("Where Congress specifically mandates, exhaustion is required."); cf. Hamer , 138 S. Ct. at 17-18 & n.3 ("We have reserved whether mandatory claim-processing rules may be subject to equitable exceptions." (citing Kontrick v. Ryan, 540 U.S. 443, 457, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004) )). Those created by judges, in contrast, are "amenable to judge-made exceptions." Ross , 136 S. Ct. at 1857.

There is "[a] growing split in this Circuit regarding whether [ section] 3582(c)(1)(A) ’s statutory exhaustion requirement is [subject to any exceptions]." United States v. Gross , 2020 WL 1862251, at *1, *4 (S.D.N.Y. Apr. 14, 2020) (collecting cases). Although most courts agree that the requirement is a non-jurisdictional claim-processing rule,⁴ there is widespread disagreement about whether any exceptions may apply. Some courts have found that they independently may excuse a defendant's failure to exhaust, while others have found that only the government may forfeit or waive the requirement.

As an initial matter, this Court agrees that section 3582(c)(1)(A) ’s exhaustion requirement is nonjurisdictional. It "does not speak in jurisdictional terms or refer in any way to the jurisdiction of the [federal] courts." Zipes v. Trans World Airlines, Inc. , 455 U.S. 385, 394, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). Instead, it "merely controls who—the BOP or defendant—may move for compassionate release and when such a motion may be made. That is, it "require[es] that the parties take certain procedural steps at certain specified times." See Hamer , 138 S. Ct. at 17 (2017). Accordingly, section 3582(c)(1)(A) ’s exhaustion requirement is a claim-processing rule, subject, at least, to both forfeiture and waiver. See id. at 17-18 & n.3.

Before considering whether the requirement also may be subject to...