United States v. Waddell

UNITED STATES OF AMERICA, Plaintiff, v. DANIEL LEE WADDELL, Defendant.

CRIMINAL ACTION No. 13-20024-01-KHV

United States District Court, D. Kansas

September 13, 2021

MEMORANDUM AND ORDER

KATHRYN H. VRATIL, UNITED STATES DISTRICT JUDGE.

This matter is before the court on defendant's Motion For Consideration For Compassionate Release Pursuant To The First Step Act[, ] 18 U.S.C. § 3582(c)(1)(A)(i) (Doc. #39) filed May 21, 2021, which seeks release based on the Coronavirus Disease-2019 (“COVID-19”) pandemic. Pursuant to District of Kansas Standing Order No. 20-8, the Office of the Federal Public Defender notified the Court that it does not intend to enter an appearance to represent defendant. For reasons stated below, the Court dismisses defendant's motion.

Factual Background

On October 29, 2013, defendant pled guilty to bank robbery in violation of 18 U.S.C. § 2113(a) and (d) for the robbery of the Citizens Bank in Kincaid, Kansas. In a companion case D. Kan. No. 13-20108, defendant pled guilty to bank robbery in violation of 18 U.S.C. § 2113(a) and (d) for the robbery of the Corner Stone Bank in Lanagan, Missouri. For purposes of sentencing, the Court grouped the two cases. Defendant's total offense level was 30, with a criminal history category VI, resulting in a guideline range of 168 to 210 months in prison. On February 19, 2014, in each case, the Court sentenced defendant to 210 months in prison, to be served concurrently with the same term of imprisonment in each companion case. See Judgment In A Criminal Case (Doc. #32). On August 15, 2014, in two cases where defendant was on supervised release and based on defendant's convictions in the bank robbery cases, the Honorable Grey Kays of the United States District Court for the Western District of Missouri revoked his term of supervised release and sentenced him to 24 months in prison to be served consecutively to the 210-month term of imprisonment that this Court imposed. See Judgment In A Criminal Case (Doc #40) filed April 16, 2014 at 2 in United States v Waddell, W.D. Mo. No. 07-5053-01 (24 months concurrent with sentence in W.D. Mo. No. 11-3076-01 but consecutive to sentences in D. Kan. Nos. 13-20108-01 and 13-20024-01); Judgment In A Criminal Case (Doc. #17) filed April 16, 2014 at 2 in United States v. Waddell, W.D. Mo No. 11-3076-01 (24 months concurrent with sentence in W.D. Mo. No. 07-5053-01 but consecutive to sentences in D. Kan. Nos. 1320108-01 and 13-20024-01).

Defendant currently is confined at USP Pollock, a Bureau of Prisons (“BOP”) facility in Pollock, Louisiana. USP Pollock houses 1, 118 inmates. See USP Pollock, https://www.bop.gov/locations/institutions/pol (last visited September 13, 2021). As of September 13, 2021, 511 inmates and 147 staff members had tested positive for Coronavirus Disease-2019 COVID-19. See COVID-19 Cases, https://www.bop.gov/coronavirus (last visited September 13, 2021). One staff member died from COVID-19. See id. Some 507 inmates and 106 staff members have recovered. See id. In December of 2020, defendant tested positive for COVID-19. In March of 2021, defendant received both doses of the COVID-19 Pfizer-BioNTech vaccine.

Defendant is 36 years old. Defendant states that because he is a former smoker and has periodontal disease, he is at high risk of contracting COVID-19 and severe illness or death if he contracts it or one of its variants. With good time credit, defendant's projected release date is December 10, 2029. Defendant asks the Court to grant compassionate release based on his health conditions, the disparity between his sentence and the sentence of his co-defendant, his young age when he committed the offense and his rehabilitation. Because defendant must serve a 24-month term of imprisonment in the two supervised release cases, he also has filed a substantially identical motion for relief in the Western District of Missouri. See United States v. Waddell, W.D. Mo. No. 11-3076, Doc. #19. That motion remains pending.

Analysis

A federal district court may modify a defendant's sentence only where Congress has expressly authorized it to do so. See 18 U.S.C. § 3582(b)-(c); United States v. Blackwell, 81 F.3d 945, 947 (10th Cir. 1996). Congress has set forth only three limited circumstances in which a court may modify a sentence: (1) upon motion of the BOP Director or defendant under Section 3582(c)(1)(A); (2) when “expressly permitted by statute or by Rule 35” of the Federal Rules of Criminal Procedure; and (3) when defendant has been sentenced “based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c).

Under the First Step Act of 2018, Pub. L. No. 115-391 (S. 756), 132 Stat. 5194, after an inmate exhausts administrative remedies with the BOP, the Court may order compassionate release for “extraordinary and compelling reasons.” 18 U.S.C § 3582(c)(1)(A)(i). The government argues that the Court should dismiss defendant's motion because he did not exhaust administrative remedies.

I. Exhaustion Of Administrative Remedies

The Court may entertain requests for compassionate release only upon a motion of the BOP or of defendant after he submits a request to BOP and the earlier of (1) when he “fully exhaust[s] all administrative rights to appeal” or (2) “the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility.” 18 U.S.C. § 3582(c)(1)(A). As to the second alternative, a “lapse” refers to the failure of the warden to respond to defendant's request. See United States v. Maumau, 993 F.3d 821, 830 (10th Cir. 2021) (§ 3582(c)(1)(A) allows defendant to directly file motion for compassionate release with district court after either exhausting administrative remedies or “the passage of 30 days from the defendant's unanswered request to the warden for such relief”) (emphasis added).^[1] In other words, if the warden responds to a request within 30 days, defendant must fully exhaust available administrative appeals before filing a motion in district court.^[2]

The administrative exhaustion requirement in Section 3582(c)(1)(A) is jurisdictional. See United States v. Salcido, 849 Fed.Appx. 230, 231 (10th Cir. 2021) (failure to exhaust meant district court lacked jurisdiction to review defendant's request) (citing United States v. White, 765 F.3d 1240, 1250 (10th Cir. 2014)); United States v. Read-Forbes, 454 F.Supp.3d 1113, 1116-17 (D. Kan. 2020) (exhaustion requirement jurisdictional based on “text, context, and relevant historical treatment” of Section 3582(c)) (quoting Musacchio v. United States, 136 S.Ct. 709, 717 (2016)).

Defendant alleges that on April 26, 2021, he submitted a request for compassionate release to BOP. Motion For Consideration For Compassionate Release (Doc. #39) at 2. The government states that BOP has no record of any such request. Government's Response To Defendant's Motion For Compassionate Release (Doc. #45) filed June 28, 2021 at 4. On July 22, 2021, defendant filed a reply, which includes a copy of his administrative request and a certified mail receipt dated April 27, 2021 for an envelope addressed to the warden. Defendant's Response To Government's Response (Doc. #46), Exhibit. Defendant states that the warden denied his request. Id. at 1. Defendant does not state the date that the warden denied his request. Even so, the Court takes judicial notice of the warden's denial on May 14, 2021, which defendant filed in the Western District of Missouri. See Motion For Consideration For Compassionate Release Pursuant To The First Step Act[, ] Amended Section(s) 3582(c)(1)(A)(i) (Doc. #19) filed May 21, 2021 at 7 in W.D. Mo. No. 11-3076-01. Because defendant has not shown that he appealed the warden's denial of his request, he has not fully exhausted all administrative appeal rights. Accordingly, the Court lacks jurisdiction to consider his motion for compassionate release.

Even if the Court construed the administrative exhaustion requirement of Section 3582(c)(1)(A) as a claims-processing rule rather than a jurisdictional limitation, the statutory rule would still bar defendant's motion at this time. See United States v. Akers, 855 Fed.Appx. 465, 466 (10th Cir. 2021); Read-Forbes, 454 F.Supp.3d at 1117. Whether the exhaustion requirement is jurisdictional or a claims-processing rule, defendant must show that he “fully exhausted all administrative rights to appeal a failure of the [BOP] to bring a motion on his behalf.” Akers, 855 Fed.Appx. at 466 (quoting 18 U.S.C. § 3582(c)(1)(A)). In contrast with judicially created exhaustion requirements, the Court lacks discretion to excuse defendant's failure to comply with a mandatory statutory requirement to exhaust administrative remedies. Malouf v. SEC, 933 F.3d 1248, 1256 (10th Cir. 2019), cert. denied, 2020 WL 1124531 (U.S. Mar. 9, 2020); see Ross v. Blake, 136 S.Ct. 1850, 1857 (2016) (exhaustion statutes like Prison Litigation Reform Act of 1995 establish mandatory exhaustion regimes, foreclosing judicial discretion). The COVID-19 pandemic is no exception. See Alam, 960 F.3d at 831, 833-36 (enforcing mandatory exhaustion requirement despite seriousness of COVID-19 and its spread in prisons); United States v. Raia, 954 F.3d 594, 597 (3d Cir. 2020) (despite COVID-19 pandemic, failure to exhaust presents “glaring roadblock” foreclosing compassionate release at this point).

Whether the exhaustion requirement is jurisdictional or a claims-processing rule, sound policy reasons support the requirement that defendant must first present to the BOP an appeal of the denial of his request for a reduced sentence. The exhaustion requirement helps prevent premature claims and ensures that the agency that possesses the most expertise is given the first shot at resolving defendant's...