USA v. Neris et al

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CRIMINAL CASE NO. 1:18-cr-00074-MR-WCM-2
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
vs. ) O R D E R
)
TERRELL CARLIN THOMAS, )
)
Defendant. )
_______________________________ )
THIS MATTER is before the Court on the Defendant’s letter, which the
Court construes as a motion for compassionate release or for release to
home confinement [Doc. 59].
The Defendant seeks a compassionate release pursuant to 18 U.S.C.
§ 3582(c)(1)(A) in light of the ongoing COVID-19 pandemic. The Defendant
asserts that he tested positive for COVID-19 on July 7, 2020, and that he is
currently in quarantine. Alternatively, he requests a release to home
confinement. [See Doc. 59].
Section 3582(c)(1)(A), as amended by The First Step Act of 2018, Pub.
L. No. 115-391, 132 Stat. 5194, 5239 (Dec. 21, 2018), permits a defendant
to seek a modification of her sentence for “extraordinary and compelling
reasons,” if the defendant has “fully exhausted all administrative rights to
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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). By its plain language, § 3582(c)(1)(A) makes clear that a
defendant must first exhaust all administrative remedies or wait thirty days
after submitting a request for release from the warden before filing a motion
for a sentence reduction. Further, the Court of Appeals for the Fourth Circuit
has held that a district court lacks the authority to modify a sentence except
in the narrow circumstances and procedures set forth in § 3582. See United
States v. Goodwyn, 596 F.3d 233, 235 (4th Cir. 2010).1
While some courts have waived the exhaustion requirement for
compassionate release motions in light of the COVID-19 pandemic, see
United States v. Feiling, No. 3:19cr112 (DJN), 2020 WL 1821457, at *4 (E.D.
Va. Apr. 10, 2020) (collecting cases), other courts have been reluctant to
1 The Fourth Circuit has not yet ruled on whether the exhaustion requirements in §
3582(c)(1)(A) are jurisdictional or merely a claims-processing rule. This Court, however,
need not decide that issue in order to resolve the present motion. Either way, the
Defendant must exhaust his administrative remedies as defined in § 3582(c)(1)(A) before
filing a motion for compassionate release in this Court. See Ross v. Blake, 136 S. Ct.
1850, 1857 (2016) (finding that “mandatory exhaustion statutes . . . establish mandatory
exhaustion regimes, foreclosing judicial discretion”); United States v. Williams, No. CR
JKB-15-0646, 2020 WL 1506222, at *1 (D. Md. Mar. 30, 2020) (denying motion for
reduction of sentence because defendant failed to exhaust his administrative remedies,
but declining to decide whether exhaustion requirement is jurisdictional).
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grant such waivers. For example, the Third Circuit in United States v. Raia
held that a prisoner’s failure to exhaust all administrative remedies set forth
in § 3582(c)(1)(A) warranted the denial of his motion for compassionate
release. 954 F.3d 594, 597 (3d Cir. 2020). In so holding, the Third Circuit
stated that it did not intend to minimize the risks that COVID-19 poses to the
health of federal inmates. However, the Court noted, “the mere existence
of COVID-19 in society and the possibility that it may spread to a particular
prison alone cannot independently justify compassionate release, especially
considering the BOP's statutory role, and its extensive professional efforts to
curtail the virus's spread.” Id.2 The Court went on to state as follows:
Given BOP's shared desire for a safe and healthy
prison environment, we conclude that strict
compliance with § 3582(c)(1)(A)'s exhaustion
requirement takes on added—and critical—
importance. And given the Attorney General's
directive that BOP prioritize the use of its various
statutory authorities to grant home confinement for
inmates seeking transfer in connection with the
ongoing COVID-19 pandemic, we anticipate that the
statutory requirement will be speedily dispatched in
cases like this one.
2Citing Federal Bureau of Prisons, COVID-19 Action Plan (Mar. 13, 2020, 3:09 PM),
https://www.bop.gov/resources/news/20200313_covid19.jsp.
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Id. (citation and internal quotation marks omitted). Other courts, including
district courts within the Fourth Circuit, have followed Raia’s example and
continued to require the full exhaustion of administrative remedies before
considering motions for compassionate release related to the COVID-19
pandemic. See United States v. Smith, No. 3:16-cr-48 (MPS), 2020 WL
1903160, at *3 (D. Conn. Apr. 17, 2020); United States v. Meron, No. 2:18-
cr-0209-KJM, 2020 WL 1873900, at *2 (E.D. Cal. Apr. 15, 2020); United
States v. Hembry, No. 12-cr-00119-SI-1, 2020 WL 1821930, at *2 (N.D. Cal.
Apr. 10, 2020); Feiling, 2020 WL 1821457, at *5; United States v. Gillis, No.
14-cr-00712 SJO (1), 2020 WL 1846792, at *2 (C.D. Cal. Apr. 9, 2020);
United States v. Perry, No. 18-cr-00480-PAB, 2020 WL 1676773, at *1 (D.
Colo. Apr. 3, 2020); United States v. Carver, -- F. Supp. 3d --, 2020 WL
1604968, at *1 (E.D. Wash. Apr. 1, 2020); United States v. Clark, No. 17-85-
SDD-RLB, 2020 WL 1557397, at *3 (M.D. La. Apr. 1, 2020); United States v.
Oliver, No. JKB-16-0485, 2020 WL 1505899, at *1 (D. Md. Mar. 30, 2020);
United States v. Zywotko, No. 2:19-cr-113-FtM-60NPM, 2020 WL 1492900,
at *1 (M.D. Fla. Mar. 27, 2020); United States v. Eberhart, No. 13-cr-00313-
PJH-1, 2020 WL 1450745, at *2 (N.D. Cal. Mar. 25, 2020); United States v.
Cohen, No. 19cr602 (WHP), 2020 WL 1428778, at *1 (S.D.N.Y. Mar. 24,
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2020); United States v. Gileno, No. 3:19-cr-161-(VAB)-1, 2020 WL 1307108,
at *3 (D. Conn. Mar. 19, 2020). The Court agrees with Raia and the cases
cited above and therefore joins these courts in holding that the mere
existence of the COVID-19 pandemic and the Defendant’s potential
susceptibility to that illness does not render the exhaustion of administrative
remedies futile.3
Here, the Defendant does not assert that he has submitted a request
for compassionate release to the warden of his Bureau of Prisons facility or
that he has otherwise exhausted his administrative remedies with respect to
that request. As such, the Court cannot grant the requested relief.
Accordingly, the Defendant’s motion for a sentence reduction under 18
U.S.C. § 3582(c)(1)(A) is denied without prejudice.
The Defendant alternatively moves the Court to order his release to
home confinement. [Doc. 59]. This request, however, must also be denied.
The discretion to release a prisoner to home confinement lies solely with the
Attorney General. See 18 U.S.C. § 3624(c)(2); 34 U.S.C. § 60541(g). The
legislation recently passed by Congress to address the COVID-19 pandemic
3 This is especially true where, as here, the Defendant reports already having contracted
the virus and does not indicate that he is suffering any serious complications therefrom.
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does not alter this. See CARES Act, Pub. L. No. 116-136, 134 Stat 281, 516
(2020) (“During the covered emergency period, if the Attorney General finds
that emergency conditions will materially affect the functioning of the Bureau
[of Prisons], the Director of the Bureau may lengthen the maximum amount
of time for which the Director is authorized to place a prisoner in home
confinement under the first sentence of section 3624(c)(2) of title 18, United
States Code, as the Director determines appropriate.”) (emphasis added).
As such, this Court lacks the authority to order the Defendant’s release.
Deffenbaugh v. Sullivan, No. 5:19-HC-2049-FL, 2019 WL 1779573, at *1
(E.D.N.C. Apr. 23, 2019); United States v. Overcash, No. 3:15-CR-263-
FDW-1, 2019 WL 1472104, at *3 (W.D.N.C. Apr. 3, 2019) (noting that there
is “no provision for judicial review of the BOP's and Attorney General’s
decision with regards to a request for home detention under § 60541(g)”);
United States v. Curry, No. 6:06-082-DCR, 2019 WL 508067, at *1 (E.D. Ky.
Feb. 8, 2019) (“Because the First Step Act gives the Attorney General the
discretion to determine if and when home confinement is appropriate, this
Court does not have the authority to grant the requested relief.”) (emphasis
in original). For these reasons, the Defendant’s request for a release to
home detention is denied.
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IT IS, THEREFORE, ORDERED that the Defendant’s letter, which the
Court construes as a motion for a reduction in sentence or release to home
confinement [Doc. 59], is DENIED. The denial of the Defendant’s request
for compassionate release is WITHOUT PREJUDICE to refiling 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.
IT IS SO ORDERED. Signed: August 24, 2020
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