PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-7520

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

SAEED ABDUL MUHAMMAD,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:08-cr-00146-REP-1)

Submitted: September 24, 2021 Decided: October 20, 2021

Before WYNN, THACKER, and RUSHING, Circuit Judges.

Vacated and remanded by published opinion. Judge Thacker wrote the opinion, in which Judge Wynn and Judge Rushing joined.

Geremy C. Kamens, Federal Public Defender, Alexandria, Virginia, Robert J. Wagner, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for Appellant. Raj Parekh, Acting United States Attorney, Alexandria, Virginia, Richard D. Cooke, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. THACKER, Circuit Judge:

Saeed Abdul Muhammad (“Appellant”) moved the district court for a sentence

reduction pursuant to

(c)(1)(A), asserting that his increased risk for severe

illness from COVID-19 due to his age and medical conditions constituted extraordinary

and compelling circumstances supporting his immediate release. Appellant filed his

motion for a sentence reduction 149 days after asking the warden of Federal Correctional

Institution (“FCI”) Loretto, the facility where he is imprisoned, to file the motion on his

behalf and 132 days after the warden denied his request to do so.

The district court held that because the warden responded to Appellant’s request

within 30 days, pursuant to § 3582(c)(1)(A), Appellant had to exhaust his administrative

remedies before he could file a motion on his own behalf. But Appellant did not appeal

the warden’s denial through the Bureau of Prison’s administrative remedy program and

thus did not exhaust his administrative remedies. Therefore, the district court denied

Appellant’s motion without reaching the merits.

Reviewing this statutory interpretation question de novo, United States v. Savage,

, 306–07 (4th Cir. 2013), we conclude the district court erred in its

interpretation of § 3582(c)(1)(A). Therefore, we vacate the dismissal and remand for

further proceedings consistent with this opinion.

I.

Appellant is currently serving a 210-month sentence at FCI Loretto based on his

convictions for conspiracy to distribute and possess with the intent to distribute 50 grams

or more of a mixture and substance containing cocaine base in violation of

2 and knowingly possessing with the intent to distribute a mixture and substance containing

detectable amounts of cocaine hydrochloride in violation of

(a)(1). On

March 31, 2020, Appellant submitted an “Inmate Request for Compassionate Release

Consideration Form” based on a “Debilitated Medical Condition.” J.A. 53. 1 In support of

his request, Appellant explained that his chronic hypertension and cardiac arrhythmia

combined with his inability to properly social distance in an institutional facility placed

him at increased risk of contracting and experiencing severe illness from COVID-19.

Seventeen days later, on April 17, 2020, the FCI Loretto warden denied Appellant’s request

because Appellant had “not been diagnosed with an incurable, progressive illness” or

“suffered from a debilitating injury from which [he would] not recover” and was not

otherwise “completely disabled.”

. The warden’s denial concludes, “[i]f you are

dissatisfied with this response, you may appeal through the Administrative Remedy

Program.”

It is undisputed that Appellant did not appeal through the Bureau of Prison’s

administrative remedy program. Instead, on August 27, 2020, Appellant filed his

§ 3582(c)(1)(A) motion in the district court.

On September 4, 2020, the Government filed a response in opposition to Appellant’s

motion in which the Government conceded the district court had authority to rule on the

motion but argued the motion should be denied on the merits. Specifically, the

Government reasoned, “[b]ecause defendant filed his motion for compassionate release

with the Court after the lapse of thirty days from the receipt of his request by the Warden,

1 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

3 . . . his motion is properly before the Court pursuant to

(c)(1)(A).”

. But the Government argued that Appellant’s motion should be denied because he has

not demonstrated extraordinary and compelling circumstances justifying a reduction and

the

(a) factors counsel against Appellant’s release. On September 29,

2020, the district court denied the motion, concluding § 3582(c)(1)(A) required Appellant

to first exhaust his administrative remedies before he could file a motion with the district

court. Because the district court held Appellant had not exhausted his remedies, it did not

address the merits of Appellant’s motion.

On October 13, 2020, Appellant timely appealed, asking this court to reverse the

decision of the district court and remand with instructions to resolve the motion on its

merits. The government agrees with Appellant that remand is appropriate.

II.

As with all cases involving statutory interpretation, we begin our analysis with the

text of the governing statute. Snyder’s-Lance, Inc. v. Frito-Lay N. Am., Inc.,

(4th Cir. 2021). “‘[W]hen the statute’s language is plain, the sole function of the courts

-- at least where the disposition required by the text is not absurd -- is to enforce it according

to its terms.’” United States v. Wayda,

(4th Cir. 2020) (quoting Lynch

v. Jackson,

(4th Cir. 2017)).

III.

With these principles in mind, we set out to determine whether § 3582(c)(1)(A)’s

threshold requirement that Appellant request the Bureau of Prisons to file a motion on his

behalf and exhaust his administrative remedies or wait 30 days from the date of such

4 request to file his own motion is a jurisdictional prescription and thus appropriately raised

sua sponte by the district court. We further consider whether Appellant satisfied the

requirement -- namely, whether the threshold requirement was satisfied when Appellant

filed his § 3582(c)(1)(A) motion in the district court more than 30 days after he submitted

his request to the warden, but without pursuing an administrative appeal.

Section 3582(c) sets forth exceptions to the general rule that courts may not modify

a term of imprisonment once it has been imposed.

(c) (“The court may

not modify a term of imprisonment once it has been imposed except that . . . .”). In the

words of the statute, courts may reduce the term of imprisonment:

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 . . ..

§ 3582(c)(1)(A) (emphasis supplied).

The text of § 3582(c)(1)(A) plainly provides that a defendant may file a motion on

his own behalf 30 days after the warden receives his request, regardless of whether the

defendant exhausted his administrative remedies. Moreover, § 3582(c)(1)(A)’s threshold

requirement is non-jurisdictional and thus subject to waiver.

A. The Threshold Requirement is Non-Jurisdictional

Although the statute plainly requires Appellant to complete certain steps before

filing his motion in the district court, we understand this requirement to be non-

jurisdictional, and thus waived if it is not timely raised. United States v. Marsh,

5 524, 529 (4th Cir. 2019). Not all threshold requirements are jurisdictional. Stewart v.

Iancu,

(4th Cir. 2019). The Supreme Court has distinguished

jurisdictional prescriptions, which govern a court’s adjudicatory authority, from non-

jurisdictional “claim-processing” rules or “prudential prerequisites to suit,” which do not

strip a court of its adjudicatory authority.

at 700–701 (internal quotation marks

omitted). “Only if the statutory text plainly shows that Congress imbued a procedural bar

with jurisdictional consequences should a court treat a rule as jurisdictional.”

.

(internal alterations and quotation marks omitted); accord Fort Bend Cty. v. Davis,

, 1850 (2019). While Congress need not use “magic words” to render a

prescription jurisdictional, it “must do something special, beyond setting an exception-

free” requirement even when such a requirement is “framed in mandatory terms.” United

States v. Kwai Fun Wong,

(2015).

The text of § 3582(c)(1)(A) does not plainly demonstrate that Congress imbued the

so-called exhaustion requirement with jurisdictional consequences. Section 3582(c) is not

part of a jurisdictional portion of the criminal code, see

, but, rather, it is

part of the chapter dealing generally with sentences of imprisonment. Moreover, the statute

“neither ‘speak[s] in jurisdictional terms’ nor ‘refer[s] in any way to the jurisdiction’ of the

courts.” United States v. Alam,

(6th Cir. 2020) (alterations in original)

(quoting Zipes v. Trans World Airlines, Inc.,

(1982)).

We conclude, as have many of our sister circuits, that the statute’s requirement that

a defendant satisfy the threshold requirement before filing a motion in the district court is

a non-jurisdictional claim-processing rule. See United States v. Garrett, — F.4th —, No.

6 20-61083,

, at *4 n.7 (5th Cir. Sept. 24, 2021) (“Section 3582(c)(1)(A)

is a non-jurisdictional claims-processing rule and, therefore, may be waived.”); United

States v. Saladino,

(2d Cir. 2021) (“[L]ike many of our sister circuits, we

conclude that § 3582(c)(1)(A)’s exhaustion requirement is not jurisdictional.”); United

States v. Keller,

(9th Cir. 2021) (“Joining the unanimous consensus of

our sister circuits, we hold that § 3582(c)(1)(A)’s administrative exhaustion requirement

imposes a mandatory claim-processing rule . . . .”); United States v. Houck,

(8th Cir. 2021) (“This requirement is a mandatory claim-processing rule.”); United

States v. Harris,

(11th Cir. 2021) (“Section 3582(c)(1)(A)’s exhaustion

requirement is not jurisdictional . . . .”); United States v. Gunn,

(7th

Cir. 2020) (“[T]he United States has not invoked the statute’s exhaustion requirement, thus

forfeiting its benefit. Failure to exhaust administrative remedies is an affirmative defense,

. . . not a jurisdictional issue that the court must reach even if the litigants elect not to raise

it.”); United States v. Franco,

(5th Cir. 2020) (“Nothing in the text of

this provision indicates that the procedural requirements are jurisdictional.”); Alam,

(“Nothing in this administrative exhaustion requirement clearly limits our

jurisdiction.”); accord United States v. Hald,

, 942 n.7 (10th Cir. 2021).

Because the requirement is not jurisdictional, it may be waived or forfeited. See

United States v. May,

(4th Cir. 2017) (“Because the government failed

to raise this non-jurisdictional limitation below, it is waived on appeal.”). The district

court therefore erred by sua sponte dismissing the motion based on the threshold

requirement, even assuming Appellant had not completed the prerequisites to suit.

7 B. Appellant Satisfied the Threshold Requirement

Turning to the second issue, whether or not Appellant satisfied the threshold

requirement in § 3582(c)(1)(A), we conclude that he did. According to the statute’s plain

text, once a defendant completes the initial step of requesting that the Bureau of Prisons

bring a motion on their behalf, the defendant may file a motion with the court after (1)

“fully exhaust[ing] all administrative rights to appeal . . . or” (2) after “the lapse of 30 days

from the receipt of such a request by the warden of the defendant’s facility, whichever is

earlier . . . .” § 3582(c)(1)(A) (emphasis supplied). The words “or” and “whichever” make

it unambiguously clear that Congress has provided defendants with two alternative ways

to satisfy the threshold requirement. Garrett, — F.4th —,

, at *2 (“And

it’s just as plain that ‘whichever’ of those events occurs ‘earlier’ triggers the right to file in

the district court.”).

The conclusion that § 3582(c)(1)(A) outlines two routes -- one of which does not

require exhaustion of administrative remedies -- is further supported by the concurring

conclusions of our sister circuits. See id. (“[A] prisoner may wait 30 days after filing his

request and—whether the BOP has ruled on the request or not—he is free to file a motion

in the district court.”); United States v. Harris,

, 171 (3rd Cir. 2020) (holding

the district court erred by concluding, “because the Warden denied [the defendant’s]

request within thirty days, he was required to completely exhaust the administrative remedy

process.”); Alam,

(6th Cir. 2020) (Defendants “must fully exhaust all

8 administrative rights or else they must wait for 30 days after the warden’s receipt of their

request.” (internal alterations and quotation marks omitted)).

IV.

Therefore, we readily conclude that the threshold requirement in § 3582(c)(1)(A) is

non-jurisdictional and satisfied if a defendant requests the Bureau of Prisons to bring a

motion on their behalf and either fully exhausts all administrative rights to appeal the

Bureau’s decision or waits 30 days from the date of their initial request to file a motion in

the district court. Appellant has satisfied that requirement here. He did not exhaust his

administrative remedies, but he did file his motion 149 days after asking the FCI Loretto

warden to file the motion on his behalf. Therefore, the district court erred in sua sponte

dismissing the motion.

V.

For the foregoing reasons, the district court’s dismissal of Appellant’s

§ 3582(c)(1)(A) motion is vacated, and we remand for consideration of the merits. 2

VACATED AND REMANDED

2 This opinion is published without oral argument pursuant to this Court’s Standing Order 20-01, https://www.ca4.uscourts.gov/docs/pdfs/secondamendedstandingorder20- 01.pdf (amended Aug. 24, 2020).

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