United States v. Meredith

524 F.Supp.3d 494

UNITED STATES of America,

v.Marquita Leigh MEREDITH, Defendant.

CRIMINAL NO. 4:19cr61

United States District Court, E.D. Virginia, Newport News Division.

Signed March 10, 2021

Counsel for United States: Amy E. Cross, Assistant United States Attorney, 721 Lakefront Commons, Suite 300, Newport News, VA 23606.

Counsel for Defendant: Keith L. Kimball, Assistant Federal Public Defender, 150 Boush Street, Suite 403, Norfolk, VA 23510.

DISMISSAL ORDER

REBECCA BEACH SMITH, SENIOR UNITED STATES DISTRICT JUDGE

This matter comes before the court on the Defendant's Motion for Compassionate Release ("Motion"), filed pro se subject to defect on December 22, 2020, ECF No. 63, and refiled, with the defect corrected, on January 25, 2021, ECF No. 66.

With the Motion, the Defendant attached a letter dated November 19, 2020, from the warden of her facility denying her request for compassionate release. ECF No. 66-1. The letter states: "You have the right to appeal this decision via the Administrative Remedy Procedure as outlined in policy." Id. The Defendant did not include any documentation, however, that she appealed the warden's denial of her request for compassionate release. Because it appeared to the court that the Defendant had not exhausted her administrative remedies as required under 18 U.S.C. § 3582(c)(1)(A), the court entered on Order on February 5, 2021, directing the Defendant to submit any additional documentation showing that the Defendant had complied with the administrative exhaustion requirement. ECF No. 67.

The Defendant filed a Response on February 16, 2021. ECF Nos. 68, 70. In the Response, the Defendant states that she did not appeal the warden's decision through the Administrative Remedy Process. She maintains, however, that the court can consider the Motion at this juncture because more than thirty (30) days have passed since the date on which she requested a compassionate release from the warden of her facility. ECF No. 68 at 2. Although the Defendant acknowledges that the warden denied this request within the thirty-day statutory time period, the Defendant argues that § 3582(c)(1)(A)'s exhaustion requirement is satisfied upon the passage of thirty (30) days from a request for compassionate release, regardless of whether the warden denies the request in the meantime. Id.

The court does not agree. The exhaustion requirement in § 3582(c)(1)(A) is satisfied upon "the lapse of 30 days from the receipt of [a request for compassionate release] by the warden of the defendant's facility." 18 U.S.C. § 3582(c)(1)(A) (emphasis added). The court concurs with the body of case law that gives the word "lapse" its ordinary meaning. See, e.g., United States v. Smith, 460 F. Supp. 3d 783, 794-97 (E.D. Ark. 2020) ("[A] ‘lapse of 30 days’ only occurs if the warden ‘fails to act on the defendant's request for a period of 30 days.’ " (alteration omitted)).¹ Furthermore, while the Fourth Circuit has not directly addressed this issue, dicta in United States v. McCoy, 981 F.3d 271, 283 (4th Cir. 2020), supports this reading of the statute. In McCoy, the Fourth Circuit outlined the changes to § 3582(c)(1)(A) brought about by the First Step Act of 2018. 981 F.3d at 283. In particular, the court stated, "Congress, aware of the BOP's history of extensive delays, also provided a ‘30-day lapse’ alternative, under which a defendant may proceed directly to district court if his request is not acted on within that time." Id. (emphasis added). The court concludes that this is the correct reading of the statute and that here the warden did act on the Defendant's request within the thirty-day period, after which the Defendant did not pursue her administrative remedies to appeal the warden's denial.

Based on the foregoing, the court FINDS that the Defendant has not exhausted her administrative remedies as required under 18 U.S.C. § 3582(c)(1)(A).² Therefore, the Motion for Compassionate Release, ECF Nos. 63, 66, is DENIED without prejudice to refile, as appropriate, if the Defendant does exhaust her administrative remedies. The Clerk is DIRECTED to forward a copy of this Dismissal Order to the Defendant, the United States Attorney at Newport News, and the Bureau of Prisons.

IT IS SO ORDERED.

1 "Lapse" is a "failure to meet stated obligations within a stated time." Webster's New World Dictionary 760 (Victoria Neufeldt & David B. Guralnik eds., 3d ed. 1988). The warden met his obligation by responding within thirty (30) days and advising the Defendant of her...