United States of America v. THOMAS DAVID WHOLECHEESE, Jr.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
THOMAS DAVID WHOLECHEESE, Jr.,
Defendant-Appellant.
No. 20-30145
D.C. No. 4:16-cr-00008-RRB-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, District Judge, Presiding
Submitted April 20, 2021**
Before: THOMAS, Chief Judge, TASHIMA and SILVERMAN, Circuit Judges.
Thomas David Wholecheese, Jr., appeals from the district court’s orders
denying his motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i)
and motion for reconsideration. We have jurisdiction under 28 U.S.C. § 1291. We
vacate and remand with instructions that the motion be dismissed without
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
APR 26 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 2 --

2 20-30145
prejudice.
An inmate may file a motion for compassionate release in the district 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.” 18 U.S.C. § 3582(c)(1)(A). The record shows that Wholecheese did not
fulfill either requirement prior to filing his compassionate release motion in the
district court. In light of the mandatory language of the statute,1 the district court
lacked authority to address Wholecheese’s motion. See Ross v. Blake, 136 S. Ct.
1850, 1856-57 (2016).
Accordingly, we vacate the district court’s orders and remand with
instructions that it dismiss Wholecheese’s motion without prejudice. Wholecheese
is free to file another motion for compassionate release in the district court, and we
express no opinion as to the merits of such a motion.
VACATED and REMANDED.
1 Because it does not affect our decision, we do not decide whether the exhaustion
requirement under § 3582(c)(1)(A) is jurisdictional or “a mandatory claim-
processing rule subject to forfeiture,” Fort Bend Cnty. v. Davis, 139 S. Ct. 1843,
1851 (2019). Contrary to Wholecheese’s argument, the government did not forfeit
its exhaustion argument. The government raised the defense before the district
court, which denied Wholecheese’s motion, and subsequent motion for
reconsideration, in part because he had not exhausted administrative remedies.
The government then renewed its exhaustion argument on appeal.

-- 2 of 2 --