USA v. BROWN

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
UNITED STATES OF AMERICA,
V .
MARK BROWN,
DEFENDANT
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CRIMINAL NO. 2:13- CR-71-DBH
ORDER ON MOTION FOR COMPASSIONATE RELEASE
The defendant Mark Brown has moved for compassionate release under
18 U.S.C. § 3582(c)(1)(A). 	(ECF No. 55). 	The government responds that Brown
has not exhausted his administrative remedies, namely, he has not asked the
Warden of his prison for relief. 	Gov’t’s Response at 7 (ECF No. 57). 	Brown has
not contradicted that assertion.
The statute is clear that a prisoner can move for relief only “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); United States v. Saccoccia, 10
F.4th 1, 3-4 (1st Cir. 2021) (“[I]ncarcerated individuals [may] file their own
motions seeking compassionate release as long as they first apply to the BOP”).
Although the exhaustion requirement is not jurisdictional, see United States v.
Whalen, No. 1:11-cr-00033-JAW, 2020 WL 3802714, at *6-7 (D. Me. July 7,
2020), it is mandatory, see United States v. Cain, No. 1:16-cr-00103-JAW-1,
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2020 WL 3064427, at *2 (D. Me. June 9, 2020); accord United States v. Lugo,
2020 	No. 2:19-cr-00056-JAW, WL 1821010, at *3 (D. Me. Apr. 10, 2020).
On the record in this case, the defendant has not satisfied the exhaustion
requirement by first filing a request with the Warden at his facility. 	I therefore
DISMISS WITHOUT PREJUDICE his motion for compassionate release. 	See id.
SO ORDERED.
D ATED THIS 28 TH DAY OF OCTOBER, 2021
/S/D. BROCK HORNBY
D. BROCK H ORNBY
UNITED STATES DISTRICT JUDGE
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