UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 18-cr-108-LM Opinion No.

Shariff Britton

O R D E R

Defendant, Shariff Britton, is currently serving a 60-month

term of imprisonment for one count of possession with intent to

distribute a controlled substance. Due to the threat to his

health posed by the potential spread of COVID-19 in the prison

facility where he is currently housed, defendant moves for

compassionate release under

(c)(1)(A). Doc. no.

16. The government objects. The court held a telephonic

hearing on defendant’s motion on May 11, 2020.

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 he exhausts all his administrative rights to appeal BOP’s

refusal to bring a motion on his behalf; or (3) the motion is

filed by defendant 30 days after defendant requested BOP to

petition for compassionate release on his behalf.

(c)(1)(A). For the purposes of this order, the court will

refer to the two alternative avenues for a defendant to petition

the court directly for compassionate release (exhaust

administrative rights to appeal or wait 30 days after request to

BOP) as the statute’s “exhaustion requirement.”

2 Once a motion for compassionate release is properly before

the court, the court must then determine if defendant is

eligible for release. The statutory language quoted above

requires that defendant show that “extraordinary and compelling

reasons warrant” a reduction in his sentence, that the court

consider the factors set forth in

(a) to the

extent applicable, and that the reduction be “consistent” with

the Sentencing Commission’s applicable policy statements.

(c)(1)(A). The Sentencing Commission’s policy

statement regarding compassionate release adds the requirement

that the court find that “[t]he defendant is not a danger to the

safety of any other person or to the community, as provided in

(g).” U.S.S.G. § 1B1.13(2).

In short, a court may reduce a term of imprisonment under

the compassionate release provision if it: (1) finds that

extraordinary and compelling reasons warrant the reduction; (2)

finds that the defendant will not be a danger to the safety of

any other person or the community; and (3) considers the

sentencing factors outlined in

(a). See

(c)(1)(A); U.S.S.G. § 1B1.13; see also United

States v. Sapp, No. 14-CR-20520,

, at *2 (E.D.

Mich. Jan. 31, 2020); United States v. Willis,

(D.N.M. 2019). The defendant has the burden of

showing that he or she is entitled to a sentence reduction.

3 United States v. Ebbers, No. S402CR11443VEC,

, at

*4 (S.D.N.Y. Jan. 8, 2020). And the court has “broad discretion

in deciding whether to grant or deny a motion for sentence

reduction.” United States v. Paul Gileno, No. 3:19-CR-161-

(VAB)-1,

, at *2 (D. Conn. Mar. 19, 2020)

(internal quotation marks omitted).

BACKGROUND

In July 2019, defendant was arrested for possessing with

intent to distribute a controlled substance (cocaine) in

violation of

(a)(1) and 841(b)(1)(B)(ii)(II).

He stipulated to detention pending trial and was recommended for

participation in the Therapeutic Community Program at the

Strafford County House of Corrections. On September 5, 2019,

defendant pleaded guilty to the charge. On December 17, 2019,

this court sentenced defendant to a term of imprisonment of 60

months and four years of supervised release.

After sentencing, defendant was medically cleared by the

Strafford County House of Corrections for transfer to another

facility. Defendant was eventually transferred to the

Metropolitan Detention Center (“MDC”) Brooklyn, but it is

unclear precisely when that transfer occurred.1 Defendant was

1 Defendant represents that he has been at MDC Brooklyn for “many months.” Doc. no. 16 at 3. By contrast, the government

4 moved to MDC Brooklyn as a transit point on the way to his

ultimate destination—a federal prison in Pennsylvania.

Defendant was destined for the Pennsylvania facility due to

his need for specific medical testing and treatment available

there, including a colonoscopy. Defendant requires testing and

treatment in relation to several underlying health conditions:

Crohn’s disease, gastro-esophageal reflux disease (“GERD”), and

eustachian tube dysfunction.2 Now, because of transfer

restrictions implemented in response to the COVID-19 pandemic,

defendant is stuck at MDC Brooklyn without access to the medical

testing and treatment he needs. He contends that his inability

to access this treatment is causing him excruciating stomach

pain, increased defecation, and fatigue. Defendant also alleges

that he experiences heart or chest pains or palpitations for

which he claims he needs further testing.

On April 15, 2020, defendant told his attorney that he

would be filing a request for compassionate release with BOP

that day. Defendant has offered no proof of that submission,

represents that BOP counsel informed it that defendant arrived at MDC Brooklyn on February 28, 2020. The court is inclined to credit the government’s representation because it identifies a specific date and is not contradicted by defendant’s medical records. All the medical records submitted under seal by the parties reflect medical appointments at MDC Brooklyn that occurred on February 29, 2020 or later.

2 Both parties have submitted medical records under seal that confirm these diagnoses.

5 and the government was not able to acquire proof of the request

from BOP. Nevertheless, on April 18, defendant’s counsel filed

a formal request for his compassionate release or for home

confinement. Doc. no. 16-3. BOP denied that request on April

23. See doc. no. 21-1. It stated that defendant was not

eligible for home confinement because he is a “holdover inmate”

(i.e. he is not there permanently but in transit to another

facility) and denied his compassionate release request because

his medical conditions did not qualify as an extraordinary or

compelling reason for release. See

On April 27, defendant filed the instant motion for

compassionate release under

(c)(1)(A). He

asserts that he is eligible for compassionate release because

his risk of contracting COVID-19 is high due to the unsafe

conditions at MDC Brooklyn and his co-occurring chronic health

conditions put him at heightened risk for severe illness if he

does catch the virus. There is no indication in the record that

defendant has appealed BOP’s denial of his compassionate release

request or otherwise exhausted his administrative appeals.3 And

3Defendant argued at the hearing that he has exhausted his administrative appeals because the warden denied his request for compassionate release. The statute, however, requires that defendant “fully exhaust all administrative rights to appeal” BOP’s denial, not simply that he receive a denial from BOP.

(c)(1)(A). Federal regulations outline that appeals process: defendant must appeal BOP’s denial within the appropriate timeframe to the Regional Director, and if that

6 30 days have not yet passed since his April 18 request.4

Defendant argues that he need not wait for those 30 days to pass

before petitioning the court directly because the exhaustion

requirement of the compassionate release statute can be excused

on the basis of equitable exceptions such as irreparable harm,

futility, or urgent circumstances, which he says are present

here. The government objects, arguing that the statutory

exhaustion requirement is mandatory and therefore cannot be

excused.

DISCUSSION

Over the last two months, federal courts have confronted a

tidal wave of compassionate release requests by inmates based on

the threat posed by the presence of the highly contagious COVID-

19 virus in the close quarters of the prison environment.

Courts addressing the issue of whether the exhaustion

requirement of

(c)(1)(A) is excusable in the

context of this global pandemic have diverged: some have held

appeal is denied, he must appeal again to the General Counsel to receive a final administrative decision. See

(a);

(a). There is no evidence that defendant has completed that appeals process.

4 Defendant argues that he has satisfied the 30-day lapse requirement because MDC Brooklyn was “on notice” over 30 days ago of the COVID-19 pandemic and defendant’s heightened health risk in relation to the virus. See doc. no. 16 at 19. Defendant cites no authority in support of this argument and the court finds it unconvincing.

7 the exhaustion requirement mandatory, while others have held

that it is subject to equitable exceptions. Compare, e.g.,

United States v. Lugo, No. 2:19-CR-00056-JAW,

,

at *4-5 (D. Me. Apr. 10, 2020) (holding that statutory

exhaustion requirement is mandatory and describing split of

authority), with United States v. Scparta, No. 18-CR-578 (AJN),

, at *7-8 (S.D.N.Y. Apr. 20, 2020) (holding that

exhaustion requirement is subject to equitable exceptions).

After careful and thorough consideration, the court agrees with

the apparent majority of courts that have reached the

unfortunate conclusion that the exhaustion requirement of the

compassionate release statute constitutes a mandatory claim-

processing rule that is not subject to equitable exceptions.

I. Jurisdictional Requirement or Claim-Processing Rule

As a threshold matter, defendant argues that §

3582(c)(1)(A)’s exhaustion requirement is non-jurisdictional:

that is, failure to comply with the exhaustion requirement does

not divest the court of jurisdiction. Instead, defendant

contends that the exhaustion requirement is a nonmandatory

claim-processing rule. The government does not dispute that the

exhaustion requirement is non-jurisdictional but asserts that it

is a mandatory claim-processing rule that has not been met here.

8 A jurisdictional rule is one that “governs a court’s

adjudicatory capacity, that is, its subject-matter or personal

jurisdiction,” while a claim-processing rule is one that

“seek[s] to promote the orderly progress of litigation by

requiring that the parties take certain procedural steps at

certain specified times.” Henderson ex rel. Henderson v.

Shinseki,

(2011). This distinction is

meaningful because, under a claim-processing rule, a party may

voluntarily waive a plaintiff’s failure to exhaust or may

forfeit the defense of failure to exhaust by failing to timely

raise it. See Fort Bend Cty., Texas v. Davis,

,

1849 (2019); United States v. Reyes-Santiago,

(1st Cir. 2015). By contrast, an opposing party may raise a

jurisdictional defense at any time and the court must consider

any jurisdictional issues sua sponte. See

The court need not decide whether the exhaustion

requirement at issue is jurisdictional or a claim-processing

rule. Even assuming in defendant’s favor that the requirement

is non-jurisdictional and instead a claim-processing rule, the

court concludes, as will be explained in detail below, that the

exhaustion requirement constitutes a mandatory claim-processing

rule. For such a mandatory rule, the court must “enforce” the

rule where, as here, the lack of exhaustion has been raised by

the opposing party. See Fort Bend, 139 S. Ct. at 1849. Thus,

9 the outcome would be the same under this statute whether the

court categorized the exhaustion requirement as jurisdictional

or a claim-processing rule. See United States v. Miamen, No. CR

18-130-1 WES,

, at *2 (D.R.I. Apr. 17, 2020)

(acknowledging circuit and district court split about whether §

3582(c) generally is jurisdictional, but finding that court need

not reach the question because even if exhaustion requirement is

non-jurisdictional result would be the same); Lugo,

, at *3 (same). Thus, the court will treat the

exhaustion requirement at issue as a claim-processing rule. The

question remains, however, whether that claim-processing rule is

mandatory or non-mandatory.

II. Mandatory or Non-Mandatory Claim-Processing Rule

Defendant argues that the exhaustion requirement at issue

is subject to equitable exceptions because it is a “non-

mandatory” claim-processing rule. See doc. no. 16 at 20-21.

The Supreme Court’s decision in Ross v. Blake,

(2016) provides a roadmap for this court’s analysis of whether

the exhaustion requirement in the compassionate release statute

is mandatory or non-mandatory. In Ross, the Court considered

whether the administrative exhaustion requirement of the Prison

Litigation Reform Act (“PLRA”) is mandatory or whether the court

could read-in a “special circumstances” exception to the

10 statute. Ross,

. The Fourth Circuit had

ruled that the PLRA’s exhaustion requirement was not absolute

and that there may be “special circumstances” that would justify

a prisoner’s failure to exhaust.

.

The Supreme Court disagreed, distinguishing between

statutorily-based and judicially-crafted exhaustion

requirements.

. It explained that “judge-made

exhaustion doctrines, even if flatly stated at first, remain

amenable to judge-made exceptions.”

. “But a

statutory exhaustion provision stands on a different footing.”

This is so because Congress has set the rules for the

statutory exhaustion provision “and courts have a role in

creating exceptions only if Congress wants them to.”

In analyzing whether the PLRA imposes a mandatory

exhaustion requirement, the court looked first to the statutory

text and then to the PLRA’s legislative history. See

. The PLRA provides that “[n]o action shall be brought

with respect to prison conditions under section 1983 of this

title, or any other Federal law, by a prisoner confined in any

jail, prison, or other correctional facility until such

administrative remedies as are available are exhausted.”

at

1856 (quoting

(e)). The court explained that

the statute’s “mandatory language means a court may not excuse a

failure to exhaust, even to take [special] circumstances into

11 account.” Id. at 1856. In other words, Congress’s clear

statutory mandate foreclosed the possibility of judicial

discretion to craft extra-textual exceptions to the exhaustion

requirement. See id. at 1857. The Court also held that the

legislative history of the PLRA—showing that Congress intended

to replace a prior weak exhaustion regime with an “invigorated”

one—supported the mandatory nature of the exhaustion

requirement. Id. at 1857-58. Finally, the Court observed that,

though the exhaustion requirement is mandatory, the PLRA’s text

includes its own exception to exhaustion: that the

administrative remedies must be “available.” Id. at 1856.

Like in Ross, the exhaustion requirement at issue here

emanates from the statutory text, not judicial doctrine. See

Ross,

. For that reason, the court turns

first to the text of § 3582. See id. at 1856-57. Section

3582(b) provides that “a judgment of conviction that includes

. . . a sentence [of imprisonment] constitutes a final

judgment.”

(b). The Supreme Court has

acknowledged that such a final judgment “may not be modified by

a district court except in limited circumstances.” Dillon v.

United States,

(2010). The compassionate

release provision, § 3582(c)(1)(A), provides one of those

limited circumstances.

12 The provision states in relevant part that:

The court may not modify a term of imprisonment once it has been imposed except that-- (1) in any case-- (A) the 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 . . . .

(c)(1)(A) (emphases added). The plain text of

the provision states that the court may not modify a term of

imprisonment once imposed except in one of the three outlined

circumstances. Although the statute does not use the

traditional mandatory language of “shall,” the construction of

“may not . . . except” speaks in mandatory terms. See Ross,

(translating mandatory language of “shall bring

no action” to the more conversational “may not bring any

action”). This language evinces legislative intent to limit the

court’s authority to consider compassionate release motions only

under the three delineated circumstances outlined in the

statute.

The text of the statute provides no exceptions to this

limit on judicial authority. The court may consider a

defendant’s direct petition if defendant has either fully

exhausted all administrative rights to appeal BOP’s failure to

13 bring a motion on his behalf, or if defendant has waited for 30

days to lapse after his request to BOP, whichever is earlier.

The statute thus provides two alternative ways for defendant to

meet the exhaustion requirement. The first option—appealing

BOP’s denial—offers defendant a traditional road to exhaustion.

The second option—waiting for 30 days to pass—provides

defendant an expedited route to exhaustion. The 30-day lapse

option might even be viewed as an “exception” to the alternative

of exhaustion of all administrative appeals. See United States

v. Epstein, No. CR 14-287 (FLW),

, at *4 (D.N.J.

Apr. 9, 2020) (describing 30-day lapse option as an exception to

the exhaustion requirement and a “built-in accelerant to

judicial review”); United States v. Gross, No. 15-CR-769 (AJN),

, at *2 (S.D.N.Y. Apr. 6, 2020) (describing 30-

day lapse rule as a “built-in futility exception”); cf. Ross,

(observing that “available” language in

the PLRA acted as a textual exception to exhaustion

requirement). Even viewed as a built-in exception to the more

traditional exhaustion of administrative appeals, the 30-day

lapse option is stated in no less mandatory terms.

Additionally, the two options to achieve exhaustion should be

construed narrowly given the court’s already limited authority

to modify a sentence once imposed. See Dillon,

.

Defendant must meet the statutory exhaustion requirement in one

14 of the two ways spelled out in the statute before the court may

consider his direct request for release.

The statutory text admits no other possible “exceptions”

and leaves no room for judicial discretion. Instead of

providing the clear mandate that defendant wait 30 days before

directly petitioning the court, Congress could have provided for

greater judicial discretion by saying that defendant could

petition the court directly after, for example, “waiting a

reasonable amount of time under the circumstances.” But

Congress did not use such broad language.

Further, the text of the statute itself demonstrates that

Congress knows how to carve out an exception for special or

urgent circumstances if it so desires. Section 3582(d) outlines

an expedited process for inmates who are diagnosed with a

terminal illness, including that any request for compassionate

release submitted by such an inmate must be processed by BOP

within 14 days.

(d)(2)(A)(iv). Thus, Congress

knows how to include language providing for expedited review in

the event of exigent or unique circumstances. It did not,

however, include such language in § 3582(c)(1)(A). See United

States v. Edwards, No. 3:13-CR-00012-1,

, at *10

(M.D. Tenn. Apr. 27, 2020) (“[I]f Congress intended an exception

to the otherwise mandatory statutory 30-day waiting period based

on exceptional circumstances, a national emergency, or strained

15 federal government resources, it would have so indicated by

prescribing such an exception in the statute.”). Thus, the

plain language of the compassionate release provision, read in

the context of the whole statute, demonstrates that the

exhaustion requirement is mandatory and not subject to equitable

exceptions.

The legislative history of the First Step Act, which

amended the compassionate release provision in 2018, also

supports the conclusion that the administrative exhaustion

requirement is mandatory and not subject to equitable

exceptions. See Ross,

(considering PLRA’s

legislative history). There is no doubt that Congress passed

the First Step Act to help increase the use and transparency of

compassionate release and to expedite the process. See First

Step Act of 2018, PL 115-391, December 21, 2018, 132 Stat 5194;

164 Cong. Rec. H. S7314-02 (Dec. 5, 2018),

(statement of Sen. Cardin, co-sponsor of First Step Act). Prior

to passage of the First Step Act, prisoners could not directly

petition the court for compassionate release; only BOP could

request release on a prisoner’s behalf. See United States v.

Willingham, No. CR 113-010,

, at *1 (S.D. Ga.

Dec. 10, 2019). BOP, however, seldom exercised that authority.

See United States v. Rodriguez, No. 2:03-CR-00271-AB-1,

, at *2 (E.D. Pa. Apr. 1, 2020).

16 The First Step Act removed BOP as the compassionate release

gatekeeper by permitting prisoners to directly petition the

court for release. But the amendment neither eliminated BOP’s

role completely nor opened the floodgates to any and all direct

petitions from prisoners. Instead, Congress imposed the

exhaustion requirement at issue here. That requirement strikes

an important balance between competing interests: BOP’s interest

in assessing in the first instance whether the prisoner is a

good candidate for release and the prisoner’s interest in a

prompt and meaningful review of his request for compassionate

release. It is telling that even though one of the goals of the

First Step Act was to expedite review of compassionate release

requests, Congress chose to impose a 30-day waiting period as

one method of exhaustion. This evinces legislative intent that

no matter how urgent a prisoner’s request, BOP should still have

30 days to weigh in.

Congress gave no indication in the First Step Act’s

legislative history or text that it intended any exceptions—

equitable or otherwise—to apply to this carefully crafted

scheme. Given the clear and mandatory text of the statute and

its legislative history, the court may not take a “freewheeling

approach to exhaustion” here. Ross,

.

Excusing the exhaustion requirement of the statute would, in

effect, read in an extra-textual exception to the statute. Such

17 result is clearly foreclosed by Ross. See

(holding that Fourth Circuit erred by reading in “special

circumstances” exception to mandatory exhaustion requirement).

Thus, the court concludes that the text and legislative history

of the compassionate release provision demonstrate that its

exhaustion requirement is mandatory and not subject to equitable

exceptions. See, e.g., Miamen,

, at *3

(concluding that compassionate release statute’s administrative

exhaustion requirement is mandatory and not excusable); Lugo,

, at *3 (same); United States v. Holden, No.

3:13-CR-00444-BR,

, at *10 (D. Or. Apr. 6, 2020)

(same); see also United States v. Raia,

, 597 (3d

Cir. 2020) (observing that because defendant had not received an

adverse decision from BOP or waited 30 days, exhaustion

requirement presented a “glaring roadblock foreclosing

compassionate release”).

III. Distinguishing Contrary Authority

The court does not find any of defendant’s arguments to the

contrary persuasive. The central thrust of defendant’s argument

is that the exhaustion requirement here is subject to several

equitable exceptions, including irreparable harm and futility.

Defendant draws on a number of different authorities in support

of this argument.

18 Defendant appears to rely on United States v. Scparta, __

F. Supp. 3d ___,

(S.D.N.Y. Apr. 20, 2020) to

argue that Supreme Court precedent supports the conclusion that

the exhaustion requirement here, even if mandatory, is subject

to equitable exceptions. See doc. no. 16 at 22; see Scparta,

, at *5. In Scparta, the court confronted the

same question presented here: whether the court may excuse the

exhaustion requirement of the compassionate release provision

for equitable reasons like futility. Scparta,

,

at *4-8. Scparta states that the Supreme Court has reserved the

question whether mandatory claim-processing rules are subject to

equitable exceptions. Id. at *5. And, it says, the Supreme

Court has held that even a mandatory statute of limitations is

subject to a rebuttable presumption in favor of equitable

tolling. Id. Scparta then reasons that the exhaustion

requirement set forth in the compassionate release provision is

unique: one-part traditional exhaustion requirement (exhaustion

of administrative appeals) and one-part “timeliness requirement”

(30-day lapse). Id. at 5-6. Viewing the unique structure of

the exhaustion requirement in the context of the text and

history of the statute, the court concluded that the exhaustion

requirement—particularly the 30-day lapse provision—is amenable

to equitable exceptions. See id. at 6-8; see also United States

19 v. Russo, No. 16-CR-441 (LJL),

, at *5-7

(S.D.N.Y. Apr. 14, 2020) (employing similar reasoning).

This court respectfully disagrees with the reasoning in

Scparta and other similar cases on several grounds. First, it

is true that mandatory claim-processing rules imposing statutes

of limitation are “normally subject to a rebuttable presumption

in favor of equitable tolling.” Holland v. Florida,

(internal quotation marks omitted). But that

presumption does not apply where “tolling would be inconsistent

with the text of the relevant statute.” Young v. United States,

(2002) (internal quotation marks omitted). Even

assuming that the 30-day lapse provision has some “features” of

a timeliness statute, the court finds application of equitable

principles like tolling inconsistent with the text of the

compassionate release provision, as explained in detail above.5

Second, the court disagrees that the 30-day lapse provision

can be characterized as akin to a statute of limitations or

5 The court also observes that in both Holland and Young the Supreme Court highlighted the equitable nature of the legal schemes at issue in holding that equitable tolling applied. See Holland,

(presumption in favor of equitable tolling reinforced by fact that equitable principles have traditionally governed substantive habeas law); Young,

(presumption in favor of equitable tolling strengthened by fact that bankruptcy courts apply principles and rules of equity jurisprudence). By contrast, the court’s authority to modify a sentence after imposition does not derive from principles of equity; it emanates from and is circumscribed by statute. See

(b)-(c).

20 other timeliness requirement. Cf. Scparta,

, at

*6. A statute of limitations rule “prescribes a period within

which certain rights . . . may be enforced.” Young,

; see also CTS Corp. v. Waldburger,

, 8 (2014)

(“Statutes of limitations require plaintiffs to pursue diligent

prosecution of known claims.” (internal quotation marks

omitted)). Rather than prescribing a time within which a

prisoner must request compassionate release, the statute here

imposes a waiting period before which the prisoner may not file

a request. This 30-day waiting period is “consistent with one

of the bedrock principles underlying administrative exhaustion—

to permit the agency, with its expertise and with its

responsibility over the movant, to make a decision in the first

instance.” Epstein,

, at *4. Because the

purpose and function of the 30-day waiting period is

fundamentally different than that of a statute of limitations,

the court finds it inappropriate to apply the equitable

presumptions applicable to statutes of limitation here.

Finally, the court acknowledges that the Supreme Court has

reserved the question “whether mandatory claim-processing rules

may ever be subject to equitable exceptions.” Fort Bend County,

139 S. Ct. at 1849 n.5 (quoting Hamer v. Neighborhood Hous.

Servs. of Chicago,

, 18 n.3 (2017) (brackets

omitted); see also Kontrick v. Ryan,

(2004)

21 (“Whether the [Bankruptcy] Rules, despite their strict

limitations, could be softened on equitable grounds is therefore

a question we do not reach.”). However, the Court has also made

clear that it will “not read futility or other exceptions into

statutory exhaustion requirements where Congress has provided

otherwise.” Booth v. Churner,

, 741 n.6 (2001); see

also Ross,

; Medina-Claudio v. Rodriguez-

Mateo,

(1st Cir. 2002) (“[T]here is no futility

exception to the PLRA exhaustion requirement.” (internal

quotation marks omitted)). Defendant has not cited any First

Circuit cases post-Ross where equitable exceptions were

applicable to a mandatory statutory exhaustion requirement. As

explained above, the court concludes that the text and

legislative history of the compassionate release provision are

clear, mandatory, and leave no wiggle room for this court to

apply equitable exceptions.

Defendant next relies on Washington v. Barr,

(2d Cir. 2019) in support of his argument that the statutory

exhaustion requirement at issue here is subject to equitable

exceptions including irreparable harm and futility. See doc.

no. 16 at 20, 22-23, 26. There is a line of district court

cases that rely on Washington to hold that the exhaustion

requirement of the compassionate release provision may be

excused for reasons of irreparable harm and futility. See,

22 e.g., United States v. McCarthy, No. 3:17-CR-0230 (JCH),

, at *3 (D. Conn. Apr. 8, 2020); United States v. Colvin,

No. 3:19CR179 (JBA),

, at *2 (D. Conn. Apr. 2,

2020); United States v. Perez, __ F. Supp. 3d __,

, at *2 (S.D.N.Y. Apr. 1, 2020). These cases rely on the

Second Circuit’s statement in Washington that “[e]ven where

exhaustion is seemingly mandated by statute or decisional law,

the requirement is not absolute.” Washington,

;

see also Perez,

, at *2 (quoting that language).

Washington then goes on to outline the recognized exceptions to

exhaustion: futility, the absence of adequate relief, and undue

prejudice. Washington,

.

Washington, however, involved a judge-made exhaustion

requirement grafted on to the Controlled Substances Act—not a

statutorily-mandated exhaustion scheme.

(reasoning

that “[a]lthough not mandated by Congress,” requiring exhaustion

was consistent with the text and structure of the Controlled

Substances Act). For that reason, Washington is distinguishable

from this case and the Second Circuit’s statement that “[e]ven

where exhaustion is seemingly mandated by statute . . . the

requirement is not absolute” is mere dicta.

(emphasis added); see Lugo,

, at *4 n.1

(collecting growing trend of cases viewing Washington as

inapposite to whether § 3582(c)(1)(A)’s exhaustion requirement

23 is subject to equitable exceptions). Given this distinction,

the court also finds unpersuasive the district court cases that

have relied on Washington to conclude that the exhaustion

requirement at issue here is subject to the equitable exceptions

of futility and irreparable harm. See, e.g., Epstein,

, at *4 n.4 (finding Perez and similar cases unpersuasive

“because [Washington] dealt only with a judicially created

exhaustion requirement, not a statutory one”); Holden,

, at *9 (finding Perez “unpersuasive because it is

unsupported by law”).

Defendant also cites Portela-Gonzalez v. Sec'y of the Navy,

(1st Cir. 1997) in support of the proposition that

the First Circuit has identified three broad sets of equitable

exceptions that apply when the interests of the individual weigh

heavily against requiring the exhaustion of administrative

remedies. Doc. no. 16 at 24-25. But that decision concerned an

exhaustion regime set up by administrative procedure—not by

Congress. See Portela-Gonzalez, 108 F.3d at 77 (explaining that

Congress has excluded Navy Exchange personnel from requirements

of the Administrative Procedure Act and has not otherwise

mandated that employees exhaust administrative remedies as a

prerequisite to suit). The First Circuit reasoned that because

Congress was silent on the issue of exhaustion, the district

court had discretion to relax or excuse the exhaustion

24 requirement under certain circumstances. See id. The First

Circuit acknowledged, however, that “exhaustion of administrative

remedies is absolutely required if explicitly mandated by

Congress.” Id. at 77. In contrast to the exhaustion

requirement in Portela-Gonzalez, Congress has explicitly

mandated exhaustion under the compassionate release statute.

Therefore, the equitable exceptions outlined in Portela-Gonzalez

are inapposite here.

IV. Summary

In sum, the court concludes that the exhaustion requirement

of § 3582(c)(1)(A) is a mandatory claim-processing rule and that

the text and legislative history of the statute foreclose the

applicability of equitable exceptions. The court does not reach

this conclusion lightly. It is indisputable that the COVID-19

pandemic is unprecedented and poses a special risk to

individuals who are currently incarcerated, especially those who

are particularly vulnerable due to serious, chronic health

issues or age. In short, inmates’ lives are on the line. But

the court’s hands are tied by the compassionate release statute.

“Congress may of course amend the law at any time,” Barton v.

Barr, ___ S. Ct. ___,

, at *10 (U.S. Apr. 23,

2020), to remove or amend the exhaustion requirement. Until

25 then, the court is constrained by the law as enacted by

Congress.

V. Recommendation to BOP for Home Confinement

As an alternative to compassionate release, defendant

requests that the court recommend to BOP that he serve the

remainder of his sentence on home confinement. The government

objects to this alternative relief.

Under the circumstances, the court finds it inappropriate

to make such a recommendation to BOP. Defendant has only just

begun serving his 60-month sentence. He has over three years

left to serve on a 5-year sentence. The court is sympathetic to

the fact that defendant describes himself as in need of medical

care and in great pain due to gastrointestinal problems.

However, he has not submitted medical records indicating that

he has been diagnosed with a health condition listed by the CDC

guidelines as putting him at especially high risk for severe

illness from COVID-19.6 Given the current record, the court does

not find defendant to be a priority candidate warranting a

recommendation for home confinement.

6 CDC, People Who are at Higher Risk for Severe Illness, (last visited May 9, 2020) https://www.cdc.gov/coronavirus/2019- ncov/need-extra-precautions/people-at-higher-risk.html (listing underlying conditions such as lung disease, serious heart conditions, and diabetes).

26 CONCLUSION

For the foregoing reasons, the court denies without

prejudice defendant’s request for compassionate release and his

alternative request for a recommendation to BOP that he be

placed on home confinement (doc. no. 16). Defendant may, of

course, renew his request for compassionate release after he has

satisfied the compassionate release statute’s exhaustion

requirement.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

May 12, 2020

cc: Counsel of Record. U.S. Probation U.S. Marshal

27