UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-7730

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

LORENZO LIWAYNE BARNES, a/k/a L.B.,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Robert G. Doumar, Senior District Judge. (2:18-cr-00150-RGD-RJK-3)

Submitted: December 13, 2021 Decided: January 18, 2022

Before NIEMEYER, Circuit Judge, KEENAN and FLOYD, Senior Circuit Judges.

Remanded by unpublished per curiam opinion.

Lorenzo Liwayne Barnes, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Lorenzo Liwayne Barnes appeals the district court’s order denying his renewed

motion for compassionate release, pursuant to

(c)(1)(A), as amended by

the First Step Act of 2018,

(b)(1),

, 5239. Barnes

argued that he was particularly susceptible to severe illness or death from COVID-19 due

to his preexisting conditions and had a heightened risk of contracting the virus within his

facility. Without ordering a response from the Government, the district court denied relief

because Barnes had failed to fully exhaust his administrative remedies and, even if he had

satisfied the exhaustion requirement, he had not demonstrated extraordinary and

compelling reasons for his early release. 1 We conclude that the district court improperly

denied relief on the ground that Barnes had failed to exhaust his administrative remedies,

and we remand for further proceedings so that the court may consider Barnes’ motion in

light of his current condition and circumstances.

We review a district court’s ruling on a compassionate-release motion for abuse of

discretion. United States v. Kibble,

(4th Cir.) (per curiam), cert. denied,

(2021). “A district court abuses its discretion when it acts arbitrarily or

irrationally, fails to consider judicially recognized factors constraining its exercise of

discretion, relies on erroneous factual or legal premises, or commits an error of law.”

The district court correctly determined that it lacked the authority to release Barnes 1

to home confinement. See United States v. Saunders,

(7th Cir. 2021). But Barnes’ motion is also fairly construed as a motion for a sentence reduction under the compassionate-release statute, which the court had the authority to grant.

2 United States v. Dillard,

(4th Cir. 2018) (internal quotation marks

omitted).

Upon a defendant’s motion, a district court may reduce a term of imprisonment if

the defendant has exhausted his administrative remedies and “extraordinary and

compelling reasons warrant such a reduction.”

(c)(1)(A)(i). “[D]istrict

courts are empowered to consider any extraordinary and compelling reason for release that

a defendant might raise.” United States v. McCoy,

(4th Cir. 2020)

(cleaned up). “[I]f a court finds that a defendant has demonstrated extraordinary and

compelling reasons, it is still not required to grant the defendant’s motion for a sentence

reduction.” United States v. High,

(4th Cir. 2021). Instead, the court

“must consider the [18 U.S.C.] § 3553(a) sentencing factors to the extent that they are

applicable in deciding whether to exercise its discretion to reduce the defendant’s term of

imprisonment.” Id. (cleaned up).

Initially, we conclude that the district court improperly raised the exhaustion issue

sua sponte. But that is because it did not have the benefit of our decision in United States

v. Muhammad,

(4th Cir. 2021), where we held that the exhaustion requirement

is “non-jurisdictional, and thus waived if it is not timely raised.”

. In Muhammad,

we also held that a defendant may satisfy the exhaustion requirement by “wait[ing] 30 days

from the date of [his] initial request to file a motion in the district court.”

. And

Barnes satisfied that requirement here by waiting more than 30 days from the denial of his

initial request to file his compassionate-release motion.

3 We decline to consider whether the district court abused its discretion in denying

Barnes’ motion on the ground that he had failed to demonstrate an extraordinary and

compelling reason for his early release. Barnes’ condition and circumstances have changed

materially since the court denied his motion. Although the court may still determine that

Barnes is ineligible for compassionate release or that the § 3553(a) factors do not warrant

his release, we conclude that Barnes should have the opportunity to argue why he is entitled

to compassionate release based on his current condition and circumstances. Accordingly,

we remand to the district court for further proceedings and deny Barnes’ motion for

compassionate release filed in this court. 2

We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

REMANDED

2 By this disposition, we express no view on the merits of Barnes’ motion filed in the district court.

4