UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States

v. Criminal No. 18-cr-00042-LM Opinion No.

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

(a),

(b)(1)(A)(viii), and 846. She moves the court for compassionate

release pursuant to

(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

(c)(1)(A).

(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 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.

(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.

(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

2 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,

, 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,

, 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,

, at *7; see also

United States v. Ebbers, No. S402CR11443VEC,

, 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. 3 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

The single page BOP received does not

identify defendant’s requested relief or provide a basis for

such relief. See

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 4 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

(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

(b), 3624(c)(2); Tapia v. United States,

(2011). The court may, however, make a judicial recommendation to BOP for home confinement. See

(b)(4); United States v. Best, No. 5:16-CR-236-FL,

, 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. 5 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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