UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-6854

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

GABRIEL Z. KERSHAW.

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Columbia. Cameron McGowan Currie, Senior District Judge. (3:16-cr-00258-CMC-1)

Submitted: December 17, 2021 Decided: January 19, 2022

Before WYNN and HARRIS, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

Gabriel Z. Kershaw, Appellant Pro Se. Kathleen Michelle Stoughton, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Gabriel Z. Kershaw appeals the district court’s order denying his motion for

compassionate release, pursuant to

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

Step Act of 2018,

(b)(1),

, 5239 (“the Act”).

After sua sponte raising the administrative exhaustion requirements under the Act, the

district court determined that Kershaw had failed to exhaust his administrative remedies

and denied compassionate release on that ground. We vacate and remand.

A district court may reduce a term of imprisonment under

(c)(1)(A) if “extraordinary and compelling reasons warrant such a reduction.”

(c)(1)(A)(i). A reduction may be granted upon a motion filed by either the

Director of the Bureau of Prisons (BOP) or “the defendant after the defendant has fully

exhausted all administrative rights to appeal a failure of the [BOP] 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.”

(c)(1)(A).

We recently held in United States v. Muhammad,

(4th Cir.

2021), that, “[a]lthough [§ 3582(c)(1)(A)] plainly requires [a prisoner] to complete certain

steps before filing his motion [for compassionate release] in the district court, . . . this

requirement [is] non-jurisdictional, and thus waived if it is not timely raised.” Id. at 129.

Because the district court sua sponte raised the administrative exhaustion issue in

Muhammad, we held that the court reversibly erred when it dismissed Muhammad’s

motion for compassionate release “based on the threshold requirement, even assuming

[Muhammad] had not completed the prerequisites to suit.” Id. at 130.

2 The district court here did not have the benefit of our decision in Muhammad when

it sua sponte raised the administrative exhaustion issue and denied Kershaw’s motion for

compassionate release on exhaustion grounds. We therefore vacate the court’s order

denying Kershaw’s motion for compassionate release and remand for further proceedings

in light of our decision in Muhammad. We deny Kershaw’s motions for default judgment

against the United States and for the production of transcripts at government expense. We

also deny relief on Kershaw’s challenge to the district court’s failure to recuse.

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.

VACATED AND REMANDED

3