USA v. Duford

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
United States
v. 	Criminal No. 18-cr-00042-LM
Opinion No. 2020 DNH 082
Victoria Duford
O R D E R
Defendant, Victoria Duford, is serving a 43-month sentence
for conspiracy to distribute a controlled substance
(methamphetamine) in violation of 21 U.S.C. §§ 841(a),
(b)(1)(A)(viii), and 846. 	She moves the court for compassionate
release pursuant to 18 U.S.C. § 3582(c)(1)(A) based on the
threat to her health posed by the spread of COVID-19 at Federal
Correctional Institution (“FCI”) Danbury where she is
incarcerated. 	The government objects.
STANDARD OF REVIEW
A court may grant so-called “compassionate release” to a
defendant under 18 U.S.C. § 3582(c)(1)(A). 	18 U.S.C. §
3582(c)(1)(A) provides, in relevant part, that:
[T]he court, upon motion of the Director of the Bureau
of Prisons or 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 the lapse
of 30 days from the receipt of such a request by the
warden of the defendant’s facility, whichever is
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earlier, may reduce the term of imprisonment (and may
impose a term of probation or supervised release with
or without conditions that does not exceed the
unserved portion of the original term of
imprisonment), after considering the factors set forth
in section 3553(a) to the extent that they are
applicable, if it finds that—
(i) 	extraordinary and compelling reasons warrant
such a reduction
. . .
and that such a reduction is consistent with
applicable policy statements issued by the
Sentencing Commission.
18 U.S.C. § 3582(c)(1)(A); see also U.S.S.G. § 1B1.13
(sentencing guidelines policy statement on compassionate
release). 	Under this statute, a district court may properly
consider a motion for compassionate release under three
circumstances: (1) the motion is filed by the Director of the
Bureau of Prisons (“BOP”); (2) the motion is filed by defendant
after she exhausts all her administrative rights to appeal BOP’s
refusal to bring a motion on her behalf; or (3) the motion is
filed by defendant 30 days after defendant requested the warden
of her facility to petition for compassionate release on her
behalf. 	18 U.S.C. § 3582(c)(1)(A). 	The court will refer to the
two alternative avenues for a defendant to petition the court
directly for compassionate release (exhaust administrative
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rights to appeal or wait 30 days after request to the warden) as
the statute’s “exhaustion requirement.”
This court recently held that the exhaustion requirement of
the compassionate release statute is a mandatory claim-
processing rule that the court may not excuse based on equitable
exceptions or otherwise if properly raised by the opposing
party. 	United States v. Britton, No. 18-cr-108-LM, 2020 WL
2404969, at *7 (D.N.H. May 12, 2020). 	Here, the government has
raised the defense of defendant’s failure to exhaust her
administrative remedies. 	The court must therefore “enforce” the
exhaustion requirement. 	See Fort Bend Cty., Texas v. Davis, 139
S. Ct. 1843, 1849 (2019) (court must “enforce” a claim-
processing rule if properly raised by opposing party). 	This
means that defendant must demonstrate that she has satisfied the
exhaustion requirement before this court can consider the merits
of her request. 	See Britton, 2020 WL 2404969, at *7; see also
United States v. Ebbers, No. S402CR11443VEC, 2020 WL 91399, at
*4 (S.D.N.Y. Jan. 8, 2020) (defendant has burden of showing she
is entitled to a sentence reduction).
DISCUSSION
Defendant has not established that she has satisfied the
exhaustion requirement of the compassionate release provision.
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She contends that she submitted a compassionate release request
to her social worker on April 9, 2020 and a request for home
confinement to her case manager that same day. 	She also asserts
that she submitted a request for compassionate release to the
warden on April 21 and one to her case manager on April 22.
Defendant has not at this point submitted any proof of these
requests in support of her motion.
The government contends that BOP received a partial request
from defendant on April 23, 2020. 	Doc. no. 55-2 at 83. 	That
partial request appears to be the final page of a hand-written
submission. 	See id. 	The single page BOP received does not
identify defendant’s requested relief or provide a basis for
such relief. 	See id. 	BOP responded to defendant on April 26,
alerting her that it only received a single page of her request
and directing her to re-submit a complete request to the warden.
The government represents that as of May 7, BOP had not received
a complete request from defendant.
Based on the current record, defendant has not demonstrated
that she has satisfied the exhaustion requirement. 	The only
request from defendant to BOP that the court has proof of was
submitted on April 23. 	It is unclear at this point what
defendant sought in that request. 	Even assuming that BOP
received defendant’s complete submission on April 23 and the
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submission requested compassionate release, 30 days have not
elapsed since that request. 	And there is no evidence that BOP
denied that request or that defendant exhausted her
administrative appeals of any denial. 	Therefore, defendant has
not shown that she has exhausted her administrative remedies as
required by the compassionate release provision and the court
may not reach the merits of her compassionate release request at
this time. 1
Defense counsel may, at any time, submit evidence
demonstrating that defendant has, in fact, already met the
exhaustion requirement. 	Or counsel may choose to refile, renew,
or supplement defendant’s pro se motion after defendant has
exhausted her administrative remedies. 	Defense counsel may also
choose to move the court to stay this action until such time as
defendant has met the exhaustion requirement.
1 Defendant’s pro se motion also requests release to home
confinement under 18 U.S.C. § 3624(c) as modified by the CARES
Act § 12003(b)(2). 	The court does not have authority to order
home confinement under § 3624, only BOP does. 	See 18 U.S.C. §§
3621(b), 3624(c)(2); Tapia v. United States, 564 U.S. 319, 331
(2011). 	The court may, however, make a judicial recommendation
to BOP for home confinement. 	See 18 U.S.C. § 3621(b)(4); United
States v. Best, No. 5:16-CR-236-FL, 2019 WL 5608856, at *1
(E.D.N.C. Oct. 30, 2019). 	Construing defendant’s request as one
for a judicial recommendation that BOP release defendant to home
confinement, the court declines to reach the merits of this
request at this time.
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The court previously issued an endorsed order stating that
a telephone conference would occur shortly after the
government’s objection was filed. 	Endorsed Order (May 7, 2020).
Given the status of the exhaustion issue, the court does not
find a hearing necessary at this time. 	However, if one or both
of the parties wish to have a status conference with the court
at this time, they shall notify the case manager on or before
May 18, 2020.
CONCLUSION
For the foregoing reasons, the court denies without
prejudice defendant’s motion for compassionate release or home
confinement (doc. no. 53).
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
May 15, 2020
cc: 	Victoria Duford
Donna Brown, Esq.
Seth Aframe, AUSA
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