USA v. REMBERT

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
UNITED STATES OF AMERICA,
V .
WILLIE REMBERT,
DEFENDANT
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CRIMINAL NO. 2:12- CR-66-DBH
ORDER ON DEFENDANT’S MOTION FOR COMPASSIONATE RELEASE
On June 2, 2020, Willie Rembert filed a motion for compassionate relief
under 18 U.S.C. § 3582(c)(1)(A) (part of the First Step Act). (ECF No. 98). I denied
the motion without prejudice on June 4 because Rembert did not state that he
had made his request to the Warden and waited 30 days before filing, as the
statute requires. Proc. Order on Def.’s Filing (ECF No. 100). 1 Now Rembert has
filed a new motion where he states that he did make the request of the Warden.
(ECF No. 102). 	He attaches that request, which reflects that his Unit Team
received it May 5, 2020. 	Mot. Attachments at 2 (ECF No. 102-1). 	Rembert also
attaches the Warden’s response dated May 11, 2020. 	She wrote to Rembert:
“your Risk of Recidivism remains High, which makes you ineligible.” 	Id. at 1.
The Warden’s letter ends with the statement: “If you are not satisfied with this
response to your request, you may commence an appeal of this decision via the
1 The judges of this District have found that requirement to be mandatory. 	See, e.g., United
States v. McIntosh, No. 2:16-cr-100-DBH, 2020 U.S. Dist. LEXIS 93356, at *2 (D. Me. May 28,
2020); United States v. Morgan, No. 1:18-cr-197-LEW (D. Me. May 4, 2020); United States v.
Crosby, No. 1:17-cr-123-JAW, 2020 WL 2044727, at *2 (D. Me. Apr. 28, 2020); United States v.
Lugo, No. 2:19-cr-56-JAW, 2020 WL 1821010, at *3 (D. Me. Apr. 10, 2020).
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administrative remedy process by submitting your concerns on the appropriate
form (BP-9) within 20 days of the receipt of this response.” 	Id. 	Rembert does
not say whether he has engaged the available administrative appeal.
The relevant part of the statute provides that a defendant can seek
compassionate release from the court “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 . . . .” 18
U.S.C. § 3582(c)(1)(A). Obviously if the Warden does not act on a request within
30 days, a defendant like Rembert is free to go to court. 	But what if—as here—
the Warden makes a timely decision? 	Can the defendant simply ignore it and
proceed to court?2 Or must the defendant then exhaust his administrative rights
of appeal?
I join those courts that have concluded that the 30-day language is
designed to ensure that the Warden acts timely and that when she does, the
prisoner needs to exhaust his administrative appeal rights before proceeding to
court. 	See, e.g., United States v. Saenz, No. 97CR2106, 2020 WL 2767558, at
*2 (S.D. Cal. May 28, 2020) (“[B]ecause the warden acted on Defendant’s request,
no lapse has occurred.”); United States v. Miller, No. 2:16-CR-00269, 2020 WL
113349, at *2 (D. Idaho Jan. 8, 2020) (“It seems odd that Congress would allow
a defendant to short-circuit the Bureau of Prison’s administrative procedures
2 If so, does the court ignore the Warden’s decision as well?
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simply by waiting 30 days after filing his request, despite the warden timely
acting on that request. 	In this context ‘lapse’ clearly means that the warden
must fail to act on the defendant’s request for a period of 30 days.”); United
States v. Weidenhamer, No. CR-16-01072-001, 2019 WL 6050264, at *4 (D. Ariz.
Nov. 8, 2019) (“[T]he better reading is to require administrative exhaustion if a
warden acts on a request within 30 days. 	The statute requires a defendant
submit a request to her warden. 	If the warden acts on that request in a timely
manner, it is appropriate to require a defendant to pursue an administrative
appeal.”). But see United States v. York, No. 3:11-CR-76, 2019 WL 3241166, at
*5-6 (E.D. Tenn. July 18, 2019).3
Since 	Rembert 	has 	not 	shown 	that 	he 	has 	fully 	exhausted 	his
administrative rights to appeal the Warden’s decision, his motion is DENIED
WITHOUT PREJUDICE.
SO ORDERED.
D ATED THIS 19 TH DAY OF JUNE , 2020
/S/D. BROCK HORNBY
D. BROCK H ORNBY
UNITED STATES DISTRICT JUDGE
3 United States v. Gioeli, No. 08-cr-240, 2020 WL 2572191, at *2-3 (E.D.N.Y. May 21, 2020),
describes the “split” on this issue among the district judges in the Second Circuit.
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