United States of America v. Montgomery Carl Akers

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MONTGOMERY CARL AKERS,
Defendant - Appellant.
No. 21-3051
(D.C. No. 2:04-CR-20089-KHV-1)
(D. Kan.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BACHARACH, MURPHY, and CARSON, Circuit Judges.**
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Defendant Montgomery Carl Akers sought compassionate release under 18
U.S.C. § 3582(c)(1)(A) from a 327-month sentence, which the district court imposed
in 2006. The district court denied relief, so Defendant appealed. We affirm,
exercising jurisdiction under 28 U.S.C. § 1291.
Defendant resides at the United States Penitentiary at Marion, Illinois (“USP
Marion”). He argued below that he is at high risk of severe illness or death should he
contract COVID-19. The district court denied Defendant’s motion for three reasons.
* This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
** After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
FILED
United States Court of Appeals
Tenth Circuit
August 10, 2021
Christopher M. Wolpert
Clerk of Court
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First, he had not exhausted available administrative remedies. Second, he had not
shown “extraordinary and compelling reasons” for release. And third, the 18 U.S.C.
§ 3553(a) sentencing factors did not support a sentence reduction. Because we agree
with the first reason, we do not address the others.
Section 3582(c) governs the modification of a term of imprisonment. Under
§ 3582(c)(1)(A), either the Director of the Bureau of Prisons (“BOP”) or the
defendant may move for a reduction. But before the defendant can make that motion,
he must exhaust BOP administrative remedies. Id. To begin that process, the
defendant must submit a request to the warden of his facility. See United States v.
Ward, 832 F. App’x 334, 335 (5th Cir. 2020). If, however, the defendant’s request
remains unanswered 30 days after the warden receives it, the statute considers the
administrative process exhausted. 28 U.S.C. § 3582(c)(1)(A). Here, Defendant
submitted a request and the Warden of USP Marion denied that request within 30
days. But, the district court found, Defendant did not show that he completed the
administrative appeals process, as the statute requires.
We have not decided whether the exhaustion requirement should be treated as
jurisdictional or as a claims-processing rule. But even if it is the latter, the district
court lacked authority to excuse Defendant’s failure—a fact the district court
recognized. See Malouf v. Sec. Exch. Comm’n, 933 F.3d 1248, 1256 (10th Cir.
2019) (“courts lack the discretion to excuse the failure to exhaust administrative
remedies” when the exhaustion requirement comes from a statute). See also Ross v.
Blake, 136 S. Ct. 1850, 1856–57 (2016). So either way, Defendant must show the
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district court that he “fully exhausted all administrative rights to appeal a failure of
the [BOP] to bring a motion on his behalf.” 18 U.S.C. § 3582(c)(1)(A).
Having thoroughly reviewed the record and Defendant’s briefing, we agree
with the district court that Defendant failed to show he fully exhausted his available
BOP remedies. Defendant did not show in his motion, or in his memorandum in
support, that he fulfilled the exhaustion requirement. So the government raised
exhaustion as a defense in its response. Defendant tried to show exhaustion in his
reply, to which he attached an exhibit. But that argument and exhibit only showed
that the Warden (1) denied his request and (2) explained how he should make an
administrative appeal. Neither of Defendant’s supplemental filings to the district
court made any further reference to the exhaustion issue. Defendant never provided
documentation that he completed the administrative appeals process, nor did he even
claim that he completed it.
On appeal, Defendant provided a two-page exhibit to his brief, which he says
shows he completed the appeals process. One page of the exhibit is a “Central Office
Administrative Remedy Appeal” form, the contents of which are illegible. The other
page is a letter denying Defendant’s appeal. But Defendant has one serious
problem. 1 The letter is dated March 16, 2021—well after Defendant filed his motion
1 Defendant has two other problems as well. First, the appellate brief is
usually not the time or place to include evidence or documentation that does not
appear in the record. And second, Defendant’s documentation is of unclear origin.
Although it remains unclear, we will assume that his exhibit on appeal relates to and
stemmed from the same request he submitted to the Warden.
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in the district court. In fact, the district court issued its order denying the motion on
March 3, 2021. So, rather than help Defendant, the new exhibit only proves that he
had not exhausted his remedies when he filed his motion.
Because we agree with the district court that Defendant did not exhaust his
administrative remedies, as Congress has seen fit to require, we AFFIRM. 2 For that
same reason, we do not address the district court’s alternative grounds to deny the
motion.
Entered for the Court
Joel M. Carson III
Circuit Judge
2 We GRANT Defendant’s motion to proceed in forma pauperis on appeal.
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