United States District Court, E.D. New York
MEMORANDUM DECISION AND ORDER
M. COGAN U.S.D.J.
March 11, 2010, the late Judge Sandra Townes sentenced
defendant to a term of 240 months' custody in prison. His
projected release date is June 18, 2024. Through counsel, he
has filed a motion for compassionate release pursuant to the
First Step Act amendments to 18 U.S.C. § 3582, alleging
that he suffers from some serious medical conditions.
the 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 a 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 …
18 U.S.C. § 3582(c)(1)(A). The First Step Act expanded
the criteria for compassionate release and provided
defendants with the opportunity to challenge the Bureau of
Prisons' (“BOP”) denial of compassionate
release in federal district court; however, the law did not
alter the requirement that prisoners must first exhaust their
administrative remedies before seeking judicial relief.
See United States v. Hassan, No. Cr-10-187, 2019 WL
6910068, at *1 (D. Minn. Dec. 19, 2019) (A defendant
“must exhaust her administrative remedies before
seeking judicial relief, or she must show that she submitted
a request for compassionate release and that 30 days have
lapsed since the request was submitted [without action by the
BOP].”); United States v. Davis, No.
15-cr-20067, 2019 WL 6898676, at *1 (W.D. Tenn. Dec. 18,
2019); United States v. Keith, No. CR-16-62, 2019 WL
6617403, at *1 (W.D. Okla. Dec. 5, 2019); United States
v. Koch, No. 01-cr-83, 2019 WL 3837727, at *2 (E.D. Ky.
Aug. 14, 2019); United States v. Brewington, No.
12CR9-007, 2019 WL 3317972, at *2 (W.D. Va. July 24, 2019);
United States v. Solis, No. CR-16-15, 2019 WL
2518452, at *2 (S.D. Ala. June 18, 2019).
Program Statement outlines the administrative appeal process
in detail. See Program Statement No. 5050.50,
Compassionate Release/Reduction in Sentence: Procedures
for Implementation of 18 U.S.C. §§ 3582 and
4205(g) (Jan. 17, 2019),
BOP's Program Statement explains that a prisoner seeking
a compassionate release must first file a request with the
prison warden asking the BOP to move for compassionate
release on the prisoner's behalf. See id. at 3
(citing 28 C.F.R. § 571.61). If the prison warden denies
that request, the prisoner must appeal the denial through the
BOP's Administrative Remedy Procedure. See id.
at 15 (citing 28 C.F.R. § 571.63). Thus, the same
exhaustion procedure for routine administrative grievances
(i.e., the use of forms BP-9 through BP-11) applies
to requests for compassionate release.
motion, defendant represented that “[a]ll
administrative remedies for seeking compassionate release
directly from the BOP have been exhausted, hence this
motion.” However, he attached no documents or proof
that he has done so, such as the warden's denial, proof
of an appeal, or the BOP's final agency
action. As the cases cited above demonstrate, a
defendant cannot proceed with his motion without submission
of such proof.
therefore unsurprising that in its opposition to the motion,
the Government explains that defendant has not exhausted his
application with the BOP - the Government asserts that he may
have taken the initial step of filing his application with
the warden of his facility (although defendant has not even
attached a copy of that to his motion), but he has neither
represented nor shown that he pursued an initial denial
through the next level of appealing to the Regional Director
and, if unsuccessful there, to the General Counsel of the
BOP. See 28 C.F.R. § 571.63(a) (incorporating
by reference 28 C.F.R. Part 542, subpart (B)). Faced with the
Government's defense of non-exhaustion, defendant, in his
reply in support of his motion, makes no mention of
exhaustion at all, effectively conceding that the
Government's argument is correct.
submission of a sufficient record to show exhaustion, at
least to the extent of the General Counsel's rejection of
an appeal, is fundamental to this Court's function in
deciding a compassionate release motion. Congress clearly
wanted these applications decided at the administrative level
if possible. It is therefore particularly important to at
least give the BOP an opportunity to state its reason for
denying the application so that the court can review those
reasons. Cf. 28 U.S.C. § 571.3(b) ((b) (when
rejecting an appeal, the General Counsel “shall provide
the inmate with a written notice and statement of reasons for
standard of review in this Court under 18 U.S.C. §
3582(c) is very likely de novo, but it is still a
review function, not one of nisi prius; otherwise, a
defendant could “exhaust” a claim by writing
nothing more than “I need compassionate release”
on the BP-9 through BP-11 forms, and then presenting a
different, far more substantive application to the district
court after the BOP understandably rejected his application.
This would eviscerate the exhaustion requirement. A court
must have the record so that it can determine whether there
are material differences between the application rejected by
the BOP and the one placed before the Court; if there are,
then the claim has not been exhausted.
these reasons, defendant's motion for a compassionate
release  is denied without prejudice to renewal after
exhaustion of his administrative remedies.
 He has also not submitted any proof
that he has or suffers from the medical conditions described
in the motion. If he renews this motion after proper
exhaustion, he would do well to submit sufficient ...