United States v. Frederick Banks

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________________ No. 21-2674 _______________________ UNITED STATES OF AMERICA v. FREDERICK H. BANKS Appellant _______________________ On Appeal from the United States District Court for the Western District of Pennsylvania District Court No. 2-15-cr-00168-001 Chief District Judge: Honorable Mark R. Hornak __________________________ Submitted Under Third Circuit L.A.R. 34.1 (a) March 3, 2022 Before: McKEE, AMBRO, and SMITH, Circuit Judges (Filed: March 21, 2022) __________________________ OPINION * SMITH, Circuit Judge.

Frederick Banks appeals from the District Court’s order denying his motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i). For the reasons that follow, we will affirm.

I A jury found Banks guilty of both wire fraud and aggravated identity theft.

See 18 U.S.C. §§ 1343, 1028A. The District Court sentenced Banks to 104 months’ imprisonment, followed by three years of supervised release. It is projected that he will be released in February 2023.

In July 2021, Banks filed his fourth motion seeking compassionate release.

Seven days later, and before the Government had an opportunity to respond, the District Court denied the motion. This pro se appeal followed. 1

II.

A District Court “may reduce [a federal inmate’s] term of imprisonment . . . if it finds that . . . extraordinary and compelling reasons warrant such a reduction.” 18 U.S.C. § 3582(c)(1)(A)(i). If an inmate demonstrates that extraordinary and compelling reasons exist, then the District Court must consider the sentencing factors in 18 U.S.C. § 3553(a) “to the extent that they are applicable.” Id. § 3582(c)(1)(A); United States v. Pawlowski, 967 F.3d 327, 329 (3d Cir. 2020).

Before an inmate may move for compassionate release, however, he “must at least ask the Bureau of Prisons (BOP) to do so on [his] behalf and give BOP thirty days to respond.” United States v. Raia, 954 F.3d 594, 595 (3d Cir. 2020). 2 As the Government points out, Banks did not comply with this exhaustion requirement. Although he alleged, without providing any supporting documentation, that he “exhausted all available remedies before filing” his fourth compassionate

Certificate of Filing could have been more precise, we conclude that the Notice of Appeal sufficiently complies with Rule 4(c). The Certificate was made under “penalty of perjury,” specifies the date it was handed to the correctional officer, which implicitly suggests there is a system for legal mail, and the hand-written addressed envelope that contained the Notice of Appeal had a “Forever” postage stamp affixed. release motion, 3 GAppx81, it is clear that he did not wait the requisite 30-day period.

Banks explained in his motion, which was dated July 17, 2021, that he had been transferred to Fort Dix FCI “a week ago.” GAppx78. Accordingly, at most, only 17 of the 30 days had elapsed when Banks handed his motion to the correctional officer.

Section 3582(c)(1)(A)’s exhaustion requirement is generally considered a “mandatory claim-processing rule.” United States v. Sanford, 986 F.3d 779, 782 (7th Cir. 2021) (agreeing with several of its sister circuits regarding the nature of the requirement and citing, inter alia, Raia, 954 F.3d at 597). As a result, the Government’s invocation of the rule on its first opportunity to do so here on appeal requires that we enforce it. See Hamer v. Neighborhood Hous. Servs. of Chicago, 138 S. Ct. 13, 17 (2017) (instructing that “mandatory claim-processing rules must be enforced” if properly invoked).

Even if we were to reach the merits, we would conclude that the District Court did not abuse its discretion in denying Banks’ motion for compassionate release.

Having considered three previous motions, the District Court was fully aware of his circumstances and medical conditions. When Banks alleged that relief should be granted because he was vomiting blood and not receiving proper medical care, the District Court directed that the Government provide his medical records. The Court concluded that the records did not substantiate his claim of vomiting blood. Our own review confirms as much. The Court permissibly concluded that he had failed, again, to demonstrate extraordinary and compelling circumstances warranting release. 4 In sum, Banks’ pro se appeal fails on both procedural and substantive grounds.

We will affirm the District Court’s order denying compassionate release.