United States v. Garrett ( 2021 )

Case: 20-61083 Document: 00516007812 Page: 1 Date Filed: 09/09/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 9, 2021
No. 20-61083
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Leondus Garrett,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
No. 1:19-CR-48-1
Before Owen, Chief Judge, Smith and Graves, Circuit Judges.
Jerry E. Smith, Circuit Judge:
Leondus Garrett, an inmate at Oakdale Federal Correctional Institu-
tion, filed for compassionate release in 2020 because of the coronavirus pan-
demic. The district court denied the motion because Garrett had failed to
exhaust his administrative remedies. Garrett moved for reconsideration
some months later, which the district court again denied for failure to
exhaust. Although, in denying reconsideration, the court misunderstood the
exhaustion requirements, it nonetheless reached the correct outcome.
Accordingly, we affirm.
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No. 20-61083
I.
Garrett was convicted in 2019 of possession with intent to distribute
methamphetamine. He was sentenced to 136 months in prison, followed by
three years of supervised release. Less than a year later, he filed for compas-
sionate release due to the pandemic. Garrett, a 32-year-old African-
American male, sought early release because he was uniquely susceptible to
adverse effects from the virus on account of his underlying health conditions
(diabetes, high blood pressure, and obesity) and ethnicity.
Garrett initially sought compassionate release through the Bureau of
Prisons (“BOP”). According to him, “he wrote a letter requesting compas-
sionate release to the staff at Oakdale FCI on April 13, 2020.” He claims that
he also “made requests for compassionate release with [the] BOP on
April 12, 2020, May 26, 2020, and June 10, 2020.” He concedes, however,
that he did not “submit an official BP-9,” the appropriate form on which a
formal request for compassionate release must initially be filed. 28 C.F.R.
§ 542.14(a).
Garrett’s failure to follow the appropriate procedures notwithstand-
ing, the BOP acknowledged receipt of a June 12 request for compassionate
release, which it denied officially on July 10. And Garrett does not suggest
that the BOP ever received any of his earlier letters.
On May 26—more than a month after he allegedly sent his first infor-
mal request, but more than two weeks before the BOP ever acknowledged
receipt of any request—Garrett filed a motion for compassionate release in
the district court per 18 U.S.C. § 3582(c)(1)(A)(i). But, because Garrett had
not “filed an official request through a BP-9 form” before filing his motion
in the district court, the court concluded that he had not exhausted his admin-
istrative remedies. Consequently, it denied his motion without prejudice on
July 28.
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Rather than filing a new motion in the district court, Garrett moved
for reconsideration on October 16. The court denied reconsideration
because—citing reasons different from those in its initial denial—it deter-
mined that Garrett still had failed to exhaust. Garrett appeals that denial.
II.
The judiciary can “modify a term of imprisonment” if,
upon motion of the defendant after the defendant has fully ex-
hausted 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 . . . if it finds that
[certain conditions are met].
18 U.S.C. § 3582(c)(1)(A). Thus, to file a proper motion for compassionate
release in the district court, a prisoner must first exhaust the available admin-
istrative avenues. That general premise is not controversial—at issue here is
not whether exhaustion is required, but only how to satisfy the exhaustion
requirement.
Section 3582(c)(1)(A)’s text states plainly that a prisoner has the
option to file his motion in the district court upon the expiration of one of two
events: (1) once he “has fully exhausted all administrative rights to appeal
. . . or” (2) after “the lapse of 30 days from the receipt of such a request by
the warden.” Id. (emphasis added). And it’s just as plain that “whichever”
of those events occurs “earlier” triggers the right to file in the district court.
Id.
So, an inmate has two routes by which he may exhaust his adminis-
trative remedies. Both begin with “requesting that the [BOP] bring a motion
on the defendant’s behalf.” United States v. Franco, 973 F.3d 465, 467 (5th
Cir.) (quotation omitted), cert. denied, 141 S. Ct. 920 (2020). Following that
initial step, the prisoner has a choice. First, he may wait for a response from
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the BOP and seek further administrative review of that response (assuming
it is adverse). On that path, only once he has “exhausted all administrative
rights to appeal” may he bring his motion in the district court.
§ 3582(c)(1)(A). Second, 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. Id.
III.
As stated above, regardless of what must occur for a prisoner to
complete his exhaustion requirements, the process must begin by “request-
ing that the [BOP] bring a motion on the defendant’s behalf.” Franco,
973 F.3d at 467 (quotation omitted). To make that request, an inmate must
file it in accordance with 28 C.F.R. § 542.14. And that regulation requires
that he file the request “on the appropriate form”—the BP-9. § 542.14(a).
Only after the “lapse of 30 days from the receipt of such a request” may the
prisoner bring a motion in the district court. § 3582(c)(1)(A) (emphasis
added). 1
If the BOP ever received a proper request, 2 it occurred on June 12.
That is more than two weeks after Garrett filed his motion in the district court
seeking compassionate release. So, Garrett filed his motion in the district
court before properly “requesting that the [BOP] bring a motion on [his]
behalf.” Franco, 973 F.3d at 467 (quotation omitted). In its July 28 order,
1
Or, taking the other path described above, if the prisoner “has fully exhausted all
administrative rights to appeal a failure of the [BOP] to bring a motion on the defendant’s
behalf”—and has somehow done that within 30 days of the BOP’s receipt of the initial
request—he conceivably could bring a motion in the district court in less than 30 days’
time. § 3582(c)(1)(A).
2
It isn’t clear from the record whether Garrett ever filed on the appropriate form.
But, because the BOP recognized receipt of a request, and because that question is not dis-
positive, we assume for argument’s sake that the June 12 request was submitted properly.
4
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then, the district court was correct that, when his motion was filed on
May 26, Garrett had failed to satisfy the exhaustion requirement. See
§ 3582(c)(1)(A).
IV.
On October 16, Garrett filed his motion for reconsideration. In its
order denying that motion, the district court articulated a different line of
reasoning as to why Garrett had failed to exhaust his administrative remedies.
It held that, so long as the BOP responds to the request within 30 days, an
inmate is “required to pursue the administrative appeals process with the
BOP to its conclusion before filing a motion for compassionate release” in
the district court. Therefore, because the BOP denied Garrett’s request on
July 10—less than 30 days after it received the request—he could not file his
motion in the district court until he pursued his administrative appeals to
their conclusion.
For all of the reasons provided above, supra Part II, that understanding
is at war with the statute’s text. 3 Section 3582(c)(1)(A) grants to the inmate
the choice to take either of the two paths it provides. Once 30 days has
“lapse[d] . . . from the receipt of such a request by the warden,” the prisoner
may file his motion in the district court. § 3582(c)(1)(A). That is so irrespec-
tive of whether the BOP has responded to the request or whether the inmate
has administrative appeals available to him.
It’s not surprising, then, that other courts have agreed that “[p]rison-
ers who seek compassionate release have the option to take their claim to
federal court within 30 days, no matter the appeals available to them.”
United States v. Alam, 960 F.3d 831, 834 (6th Cir. 2020). It is of no conse-
3
Tellingly, the government elects not to defend the district court’s reasoning
directly.
5
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quence when the BOP responds to an inmate’s request—once “30 days from
the receipt of such a request by the warden” has passed, the defendant may
file in the district court. § 3582(c)(1)(A) (emphasis added). Therefore, Gar-
rett was not required to pursue his administrative-appeals process to its con-
clusion merely because the BOP responded to his motion within 30 days.
The district court was incorrect to conclude otherwise.
V.
That interpretive question, however, does not resolve the present
dispute. As stated above, the district court’s initial denial was correct—at
that point, Garrett had failed to exhaust because the requisite 30-day period
had not yet lapsed. Only after that initial denial did he satisfy the exhaustion
requirement. And instead of filing a new motion upon exhaustion, he filed a
motion for reconsideration.
The more nuanced question, then, is whether Garrett could cure his
exhaustion defect after the court’s initial denial and then rely on that cured
defect as a justification for reconsideration. He could not. An intervening
change in circumstance—such as exhausting previously unexhausted admin-
istrative remedies—is not a proper basis for a motion for reconsideration. 4
Courts typically construe a motion to reconsider a denial of compas-
sionate release as a motion to alter or amend a judgment under Federal Rule
of Civil Procedure 59(e). 5 But, because Garrett filed his motion more than
4
Cf. Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 2012) (per curiam) (“District
courts have no discretion to excuse a prisoner’s failure to properly exhaust the prison griev-
ance process before filing their complaint. It is irrelevant whether exhaustion is achieved
during the federal proceeding.”).
5
See, e.g., United States v. Batiste, No. 06-145, 2021 WL 2338217, at *1–2 (E.D. La.
June 8, 2021) (stating that “[c]ourts apply the standards set forth in the Federal Rules of
Civil Procedure to motions for reconsideration in the criminal context” and construing a
motion for reconsideration of a denial of compassionate release “as [a] motion to alter or
6
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28 days after the denial, we treat it “as if it were a Rule 60(b) motion,” as
long as “the grounds asserted in support of the Rule 59(e) motion would also
support Rule 60(b) relief.” Frew v. Young, 992 F.3d 391, 396 (5th Cir. 2021)
(quotation omitted).
Regardless of how it is construed, the motion for reconsideration
properly was denied. 6 The primary basis on which Garrett justified reconsid-
eration was a purported “manifest error of law.” But, as stated above, there
was no legal error in the July 28 underlying judgment. Because he filed his
motion in the district court before the warden received his request, he failed
to exhaust his administrative remedies.
To be sure, after Garrett’s first motion was denied without prejudice,
he successfully exhausted. But “[i]t is irrelevant” that he achieved exhaus-
tion in the intervening period between the denial and his motion for recon-
sideration—he was required “to properly exhaust . . . before filing” the
amend under Rule 59(e)”); United States v. Munoz, No. 2:17-CR-00330-01, 2020 WL
4226544, at *1 (W.D. La. July, 23, 2020) (construing a motion to reconsider a compas-
sionate release denial as a Rule 59(e) motion); United States v. Silva, No. 2:06-CR-
20089-11, 2020 WL 3440103, at *1 (W.D. La. June 22, 2020) (same).
6
“Under Rule 59(e), amending a judgment is appropriate (1) where there has been
an intervening change in the controlling law; (2) where the movant presents newly dis-
covered evidence that was previously unavailable; or (3) to correct a manifest error of law
or fact.” Alexander v. Wells Fargo Bank, N.A., 867 F.3d 593, 597 (5th Cir. 2017) (cleaned
up). Rule 60(b) includes at least six grounds on which relief from a final judgment may be
granted. FED. R. CIV. P. 60(b). Not enumerated, but acknowledged by the Fifth Circuit
as a basis for Rule 60(b) relief, is “to rectify an obvious error of law.” Caldwell v. Parker
Univ., 802 F. App’x 841, 842 (5th Cir. 2020) (per curiam) (cleaned up). Because Garrett’s
motion asserted that reconsideration was warranted to correct a “manifest error of law”
and to “avoid manifest injustice,” we assume arguendo that those are proper grounds to
seek reconsideration under either Rule 60(b) or Rule 59(e).
7
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motion. 7 The court did not have discretion to excuse his failure to do so. 8
The irony is that, because the initial denial was without prejudice,
Garrett could have filed a new motion upon exhaustion. And he could have
done so substantially sooner than he filed his motion for reconsideration—
only 30 days after the BOP received his request on June 12. But being in a
procedural posture to file a new motion is not the same as meriting a favorable
result in a motion to reconsider.
Although it grounded its determination in an erroneous interpretation
of § 3582(c)(1)(A), the district court reached the correct outcome. A motion
to reconsider is not the proper avenue to cure an exhaustion defect. We may
affirm the district court’s judgment on any ground supported by the record.
See, e.g., Clarkston v. White, 943 F.3d 988, 992 (5th Cir. 2019), cert. denied,
140 S. Ct. 2763 (2020).
AFFIRMED.
7
Gonzalez, 702 F.3d at 788 (emphasis added); see also Franco, 973 F.3d at 467
(“Both routes begin with the defendant requesting that the [BOP] bring a motion on the
defendant’s behalf.” (quotation omitted)).
8
Section 3582(c)(1)(A) is a non-jurisdictional claims-processing rule and, there-
fore, may be waived. See, e.g., Valentine v. Collier, 956 F.3d 797, 807 (5th Cir.) (Higgin-
son, J., concurring), motion to vacate stay denied, 140 S. Ct. 1598 (2020); Franco, 973 F.3d
at 468. But, although it’s not jurisdictional, it is a “mandatory” rule. Franco, 973 F.3d
at 468. Thus, when “properly invoked, [it] must be enforced.” Hamer v. Neighborhood
Hous. Servs. of Chi., 138 S. Ct. 13, 17 (2017). The government raised the issue of exhaustion
below; therefore, the district court did not have discretion to excuse non-exhaustion.
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James E. Graves, Jr., Circuit Judge, dissenting:
I agree with the majority that the district court erred in its application
of the exhaustion requirements in denying Leondus Garrett’s motion for
compassionate release. However, I disagree with the majority that the
district court nonetheless reached the correct outcome. Because I would
vacate and remand, I respectfully dissent.
On May 26, 2020, Garrett filed a pro se motion requesting a reduction
of his term of imprisonment for purposes of compassionate release under 18
U.S.C. § 3582(c)(1)(A)(i). Garrett asserted that he faced a severe risk of
harm from COVID-19 due to underlying health conditions and asked to be
released to home confinement. Garrett also asserted that he had exhausted
his administrative remedies by writing a letter to prison officials on April 13,
2020, to which he never received a response. Pursuant to a general order of
the district court, the Federal Public Defender was appointed to represent
Garrett.
On June 29, 2020, Garrett’s appointed counsel filed a more detailed
Reply Supporting Motion for Compassionate Release with Garrett’s June 23,
2020 letter to the district court included as an attachment. Garrett renewed
the merits of his motion and asserted that he had exhausted his administrative
remedies by sending letters seeking compassionate release in April, May and
June of 2020. The reply also stated that Garrett tested positive for COVID-
19 in May 2020.
On July 28, 2020, the district court ordered that the motion for
compassionate release be denied without prejudice due to Garrett’s failure to
exhaust his administrative remedies prior to the filing. See United States v.
Garrett, 1:19-CR-48-HSO-JCG, 2020 WL 4340982 (S.D. Miss. July 7, 2020).
The district court found that Garrett had failed to comply with the Bureau of
Prisons (BOP) procedures for exhausting his administrative remedies by
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submitting a request for compassionate release on a BP-9 form or
administratively appealing any unfavorable response. See 28 C.F.R. § 542.14.
On October 16, 2020, Garrett moved for reconsideration, asserting
that the denial of his motion for compassionate release was error because he
had exhausted his administrative remedies by sending letters. Garrett also
presented new evidence that his June 10, 2020, administrative submission
was accepted by the BOP on June 12, 2020, but denied on July 10, 2020. 1
Garrett also asserted that the statute only required him to wait 30 days
following the submission of his administrative request in order to exhaust his
remedies.
The district court denied Garrett’s motion without prejudice on
November 10, 2020, finding that reconsideration was unwarranted because
Garrett had not sufficiently exhausted his administrative remedies prior to
filing his motion for reconsideration despite the plain language of Section
3582(c)(1)(A). The district court also found that, as Garrett’s June 12, 2020,
request was denied by the warden on July 10, Garrett had failed to show that
he then waited thirty days before filing his motion. Garrett subsequently filed
this appeal. Garrett asserts that the district court erred by denying Garrett’s
motion for compassionate release based on a legally incorrect ruling that he
did not exhaust all administrative remedies with the BOP.
Following the First Step Act of 2018, a defendant may move for a
compassionate release reduction in sentence “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
1
The majority states that Garrett does not suggest that the BOP ever received any
of his earlier letters. However, Garrett clearly asserts that he sent the letters which suggests
that the BOP received them despite only denying the most recent of the duplicative
requests. Regardless, there’s no dispute that the BOP received the June letter.
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receipt of such a request by the warden of the defendant’s facility, whichever
is earlier . . . .” 18 U.S.C. § 3582(c)(1)(A); see First Step Act of 2018, Pub.
L. 115-391, § 603(b)(1), 132 Stat. 5194, 5239. The pre-filing administrative
exhaustion requirement is not jurisdictional, but it is instead a mandatory
claim-processing rule. See United States v. Franco, 973 F.3d 465, 467-68 (5th
Cir. 2020). In Franco, this court concluded that, because the government
properly raised the rule requiring exhaustion in the district court, “this court
must enforce the rule.” Franco, 973 F.3d at 468 (internal quotation marks,
emphasis, and citation omitted).
Here, the government raised the issue of exhaustion and provided
evidence that no administrative request for compassionate release had been
filed by Garrett as of June 2, 2020. While Garrett asserts that he sent letters
in April, May and June of 2020, he also acknowledges that the BOP accepted
his administrative request for compassionate release on June 12, 2020 and
denied his request on July 10, 2020. Further, Garrett filed his motion for
reconsideration on October 16 which was well more than 30 days after he filed
his June 12 administrative request. The question then is whether, at the very
least, the applicable time frame surrounding the June 12, 2020 request is
sufficient to comply with Section 3582.
This court has previously acknowledged, without addressing, a
potential circuit split on the question of whether a defendant may file a
motion for compassionate release in federal court thirty days after submitting
his administrative request, regardless of whether the BOP responds during
that period. See United States v. Ward, No. 20-60665, 2020 WL 7755453, 2
& n.1 (5th Cir. Dec. 29, 2020); see also United States v. Harris, 973 F.3d 170,
171 (3d Cir. 2020) (reversed district court that held defendant was required
to fully exhaust his administrative remedies because the BOP responded to
request for compassionate release within thirty-day period); and United
States v. Gunn, 980 F.3d 1178, 1179 (7th Cir. 2020) (Courts permitted to grant
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compassionate release on prisoner’s request, provided prisoner first made
request to the BOP and thirty days had passed. But exhaustion is not
jurisdictional, thus courts need not consider it where the parties do not raise
it.).
The plain language of 18 U.S.C. § 3582(c)(1)(A), as set out above,
requires only “the lapse of 30 days from the receipt of such a request by the
warden of the defendant’s facility.” 18 U.S.C. § 3582(c)(1)(A). The
provision also states that courts should go with “whichever is earlier.” Id.
Here, thirty days had lapsed and, thus, the BOP had an opportunity to
respond to the compassionate release request. Again, this is a non-
jurisdictional claim-processing rule. Further, this court has previously
concluded that the exhaustion requirement is not absolute and can be waived.
See Valentine v. Collier, 956 F.3d 797, 807 (5th Cir. 2020). 2 Moreover, as
Garrett is seeking compassionate release during a pandemic, it would serve
no purpose to require him to refile and start over for simply a claim-
processing rule. There is no requirement that Garrett administratively
appeal the BOP’s denial of his request before a court may consider his
motion.
For these reasons, I would vacate the district court’s order and
remand for a determination on the merits of Garrett’s motion for
compassionate release. Thus, I respectfully dissent.
2
The majority relies on Gonzalez v. Seal, 702 F.3d 785 (5th Cir. 2012), for the
proposition that “it is irrelevant whether exhaustion is achieved during the federal
proceeding.” Id. at 788. However, “Gonzalez admitted that he did not exhaust until after
his section 1983 lawsuit was well underway.” Id. Garrett makes no such admission; instead
he asserts that he also sent earlier requests.
12