UNITED STATES v. AKERS (2021)

United States Court of Appeals, Tenth Circuit.2021-08-10No. No. 21-3051

Summary · law.co

Holding. The court affirmed the district court's denial of compassionate release, finding that Akers failed to exhaust his administrative remedies through the Bureau of Prisons before filing his motion, as required by statute.

Montgomery Carl Akers sought compassionate release from a 327-month prison sentence imposed in 2006, arguing that he faced serious health risks from COVID-19 at USP Marion. The district court rejected his request, citing three independent grounds: failure to exhaust administrative remedies, absence of extraordinary and compelling reasons, and unsuitability under sentencing guidelines. On appeal, the court examined whether Akers had completed the required administrative appeal process through the Bureau of Prisons before filing his motion for release.

The court found that Akers did not adequately demonstrate he had exhausted all available administrative remedies as mandated by statute. Although Akers eventually provided documentation of an administrative appeal on appeal, that appeal letter was dated after he had already filed his motion in district court and after the district court had already ruled against him. This timing problem confirmed that Akers had not completed the exhaustion process when he should have. The court declined to address the district court's other reasons for denial since the exhaustion requirement alone was sufficient to reject the motion.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether defendant exhausted Bureau of Prisons administrative remedies before filing a compassionate release motion
Mandatory nature of administrative exhaustion requirement under 18 U.S.C. § 3582(c)(1)(A)
Whether district court properly denied relief based on failure to exhaust

Procedural posture

Defendant appealed the district court's denial of a motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A), challenging the court's finding that he failed to exhaust administrative remedies.

Authorities cited

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Opinion · public domain

ORDER AND JUDGMENT **

Defendant Montgomery Carl Akers sought compassionate release under 18 U.S.C. § 3582(c)(1)(A) from a 327-month sentence, which the district court imposed in 2006. The district court denied relief, so Defendant appealed. We affirm, exercising jurisdiction under 28 U.S.C. § 1291.

Defendant resides at the United States Penitentiary at Marion, Illinois (“USP Marion”). He argued below that he is at high risk of severe illness or death should he contract COVID-19. The district court denied Defendants motion for three reasons. First, he had not exhausted available administrative remedies. Second, he had not shown “extraordinary and compelling reasons” for release. And third, the 18 U.S.C. § 3553(a) sentencing factors did not support a sentence reduction. Because we agree with the first reason, we do not address the others.

Section 3582(c) governs the modification of a term of imprisonment. Under § 3582(c)(1)(A), either the Director of the Bureau of Prisons (“BOP”) or the defendant may move for a reduction. But before the defendant can make that motion, he must exhaust BOP administrative remedies. Id. To begin that process, the defendant must submit a request to the warden of his facility. See United States v. Ward, 832 F. Appx 334, 335 (5th Cir. 2020). If, however, the defendants request remains unanswered 30 days after the warden receives it, the statute considers the administrative process exhausted. 28 U.S.C. § 3582(c)(1)(A). Here, Defendant submitted a request and the Warden of USP Marion denied that request within 30 days. But, the district court found, Defendant did not show that he completed the administrative appeals process, as the statute requires.

We have not decided whether the exhaustion requirement should be treated as jurisdictional or as a claims-processing rule. But even if it is the latter, the district court lacked authority to excuse Defendants failure—a fact the district court recognized. See Malouf v. Sec. Exch. Commn, 933 F.3d 1248, 1256 (10th Cir. 2019) (“courts lack the discretion to excuse the failure to exhaust administrative remedies” when the exhaustion requirement comes from a statute). See also Ross v. Blake, 578 U.S. 632, 136 S. Ct. 1850, 1856–57, 195 L.Ed.2d 117 (2016). So either way, Defendant must show the district court that he “fully exhausted all administrative rights to appeal a failure of the [BOP] to bring a motion on his behalf.” 18 U.S.C. § 3582(c)(1)(A).

Having thoroughly reviewed the record and Defendants briefing, we agree with the district court that Defendant failed to show he fully exhausted his available BOP remedies. Defendant did not show in his motion, or in his memorandum in support, that he fulfilled the exhaustion requirement. So the government raised exhaustion as a defense in its response. Defendant tried to show exhaustion in his reply, to which he attached an exhibit. But that argument and exhibit only showed that the Warden (1) denied his request and (2) explained how he should make an administrative appeal. Neither of Defendants supplemental filings to the district court made any further reference to the exhaustion issue. Defendant never provided documentation that he completed the administrative appeals process, nor did he even claim that he completed it.

On appeal, Defendant provided a two-page exhibit to his brief, which he says shows he completed the appeals process. One page of the exhibit is a “Central Office Administrative Remedy Appeal” form, the contents of which are illegible. The other page is a letter denying Defendants appeal. But Defendant has one serious problem.

The letter is dated March 16, 2021—well after Defendant filed his motion in the district court. In fact, the district court issued its order denying the motion on March 3, 2021. So, rather than help Defendant, the new exhibit only proves that he had not exhausted his remedies when he filed his motion.

Because we agree with the district court that Defendant did not exhaust his administrative remedies, as Congress has seen fit to require, we AFFIRM.

For that same reason, we do not address the district courts alternative grounds to deny the motion.

FOOTNOTES

. Defendant has two other problems as well. First, the appellate brief is usually not the time or place to include evidence or documentation that does not appear in the record. And second, Defendants documentation is of unclear origin. Although it remains unclear, we will assume that his exhibit on appeal relates to and stemmed from the same request he submitted to the Warden.

. We GRANT Defendants motion to proceed in forma pauperis on appeal.

Joel M. Carson III, Circuit Judge