Opinion
CRIMINAL CASE NO. 4:16-CR-86
2020-05-05
UNITED STATES of America v. Weseley MCGIRT (4)
Tracey M. Batson, U.S. Attorney's Office U.S. Dept. of Justice, Plano, TX, for United States of America.
Tracey M. Batson, U.S. Attorney's Office U.S. Dept. of Justice, Plano, TX, for United States of America.
MEMORANDUM OPINION AND ORDER ON MOTION FOR COMPASSIONATE RELEASE
SEAN D. JORDAN, UNITED STATES DISTRICT JUDGE
Before the Court is Defendant Weseley McGirt's motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). (Dkt. #298). McGirt requests that the Court reduce his sentence to time served due to COVID-19 and release him to home confinement. McGirt also filed a supplemental motion in support. (Dkt. #299). The Government replied in opposition. (Dkt. #301). The Court, having considered the motions, the record, and the applicable law, DISMISSES the motion and the supplemental motion for want of jurisdiction.
I. BACKGROUND
Weseley McGirt pleaded guilty to one count of felon in possession of a firearm while an unlawful user of a controlled substance, in violation of 18 U.S.C. § 922(g)(3). The charge arose from McGirt's drug trafficking as a member of the "Crips" street gang. On November 20, 2017, McGirt was sentenced to 120 months of imprisonment and three years of supervised release. (Dkt. #246). McGirt has been detained in FCI Oakdale I in Oakdale, Louisiana, where he has served nearly 30 months of his sentence.
McGirt moves for a reduction of his sentence to time served pursuant to 18 U.S.C. § 3582(c)(1)(A). (Dkt. #298). McGirt contends that he is eligible for such a reduction because of the general danger presented by the COVID-19 pandemic to prison populations, especially in the FCI Oakdale I facility, his medical history of thyroid removal, and his low risk of recidivism. McGirt did not exhaust administrative remedies available through the Bureau of Prisons ("BOP") prior to filing this motion. In a supplemental motion, McGirt reasserts his contentions and adds that he is not required to exhaust administrative remedies to obtain relief. (Dkt. #299).
The Government opposes McGirt's request. (Dkt. #301). The Government argues that McGirt's failure to satisfy 18 U.S.C. § 3582(c)(1)(A)'s threshold exhaustion requirement precludes relief, as exhaustion is a jurisdictional bar or, alternatively, a mandatory claims-processing rule. Exhaustion aside, the Government further argues that McGirt has not shown a right to relief on the merits because his reasons for release are not "extraordinary and compelling."
II. LEGAL STANDARDS
A judgment of conviction imposing a sentence of imprisonment "constitutes a final judgment and may not be modified by a district court except in limited circumstances." Dillon v. United States , 560 U.S. 817, 824, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010) (internal quotation marks omitted); see 18 U.S.C. §§ 3582(b), (c). One such exception arises from section 3582(c)(1)(A)(i), which authorizes a district court to reduce a term of imprisonment if, after considering the relevant factors set forth in 18 U.S.C. § 3553(a), it determines that "extraordinary and compelling reasons" support a sentence reduction and that reduction is "consistent with applicable policy statements issued by the Sentencing Commission[.]" 18 U.S.C. § 3582(c)(1)(A)(i). A sentence modification under section 3582(c)(1)(A)(i) may be obtained only through a motion made either by the Director of the BOP or by a 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[.]" Id. § 3582(c)(1)(A).
An additional exception based on the defendant's age, time served, and danger to the community is set forth in section 3582(c)(1)(A)(ii). That exception is not applicable here.
III. DISCUSSION
McGirt's failure to meet section 3582(c)(1)(A)'s exhaustion requirement deprives this Court of jurisdiction to consider modifying his sentence. Even if the Court could exercise adjudicatory authority over McGirt's motion, the relief he requests would nonetheless remain precluded by section 3582(c)(1)(A)'s exhaustion requirement, as it is not susceptible to any judicially created exception. McGirt's motion must therefore be dismissed for want of jurisdiction.
A. Section 3582(c)(1)(A)'s Exhaustion Requirement Is Jurisdictional.
Under 18 U.S.C. § 3582(c), district courts have authority to modify a prisoner's sentence under narrow circumstances. One such circumstance, invoked by McGirt, is provided by section 3582(c)(1)(A)(i). This provision allows a court to modify a defendant's sentence if it finds that "extraordinary and compelling reasons" warrant a reduction of the sentence and the reduction is "consistent with applicable policy statements issued by the Sentencing Commission[.]" Id. § 3582(c)(1)(A)(i). But section 3582(c)(1)(A) makes clear that a court cannot consider any modification to a defendant's sentence under section 3582(c)(1)(A)(i) unless a motion for such modification is properly made by the Director of the BOP or by a defendant who has fully exhausted administrative remedies.
Section 3582(c)(1)(A)'s mandate is unequivocal. The Director of the BOP may request a sentence reduction in court at any time. Id. § 3582(c)(1)(A). A defendant may also make such a request, but only after fully exhausting remedies within the BOP or allowing 30 days to pass since seeking administrative remedies. Id. Here, it is undisputed that the BOP has not requested a reduction on McGirt's behalf, nor has McGirt pursued administrative remedies within the BOP. Under controlling Fifth Circuit precedent, section 3582(c)(1)(A)'s exhaustion requirement is jurisdictional, and McGirt's failure to meet that requirement deprives the Court of jurisdiction to consider a modification to his sentence.
It is well-settled in the Fifth Circuit that 18 U.S.C. § 3582 sets out the limited instances in which a district court has jurisdiction to modify a term of imprisonment. See, e.g., United States v. Garcia , 606 F.3d 209, 212 n.5 (5th Cir. 2010) (per curiam) ("The district court's jurisdiction to correct or modify a defendant's sentence is limited to those specific circumstances enumerated by Congress in 18 U.S.C. § 3582.") (citing United States v. Bridges , 116 F.3d 1110, 1112 (5th Cir. 1997) ). In an unbroken line of cases over two decades, circuit precedent has reaffirmed that section 3582 provides a limited grant of jurisdiction for a district court to modify a term of imprisonment. See, e.g., United States v. Rene , 785 F. App'x 240, 240–41 (5th Cir. 2019) (per curiam); Bridges , 116 F.3d at 1112. Because these cases speak in terms of section 3582 as a whole, it follows that section 3582(c)(1)(A), and the limitations within, circumscribe the Court's jurisdiction. The Court recognizes that, in a series of recent opinions, the Supreme Court has cautioned against imprecise use of the "jurisdictional" label, which can elide "the ‘critical difference[s]’ between true jurisdictional conditions and nonjurisdictional limitations on causes of action." Reed Elsevier, Inc. v. Muchnick , 559 U.S. 154, 161, 130 S.Ct. 1237, 176 L.Ed.2d 18 (2010) (citations omitted) (alterations in original). To reinforce these critical differences, the Supreme Court has encouraged courts to use the label "jurisdictional" "not for claim-processing rules, but only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court's adjudicatory authority." Kontrick v. Ryan , 540 U.S. 443, 454–55, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004) ; see also id. at 455, 124 S.Ct. 906 ("Jurisdiction" refers to "a court's adjudicatory authority"). Claims-processing rules, in contrast, "seek to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times." Henderson v. Shinseki , 562 U.S. 428, 435, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011). Based upon this line of Supreme Court authority, some courts have determined that section 3582 is a nonjurisdictional, mandatory claims-processing rule. See, e.g., United States v. Taylor , 778 F.3d 667, 670–71 (7th Cir. 2015) ; see also United States v. Calton , 900 F.3d 706, 711 (5th Cir. 2018) (noting that the Taylor court concluded that section 3582 "is not part of a jurisdictional portion of the criminal code," and that section 3582(c) is not "phrased in jurisdictional terms").
The Court is skeptical that the Supreme Court's recent authority distinguishing jurisdictional and nonjurisdictional statutory limitations will cause the Fifth Circuit to overrule its prior jurisprudence and hold that section 3582 is merely a claims-processing rule. Neither the text of section 3582 nor Supreme Court precedent supports such a reversal of the Fifth Circuit's established understanding of the statute. The Supreme Court has made clear that, to determine whether a statutory prescription is a jurisdictional limitation on a court's adjudicatory authority, courts must "look to see if there is any ‘clear’ indication that Congress wanted the rule to be ‘jurisdictional.’ " Henderson , 562 U.S. at 436, 131 S.Ct. 1197. That indication, however, does not turn on Congress's use of "magic words." Id. Instead, as the Supreme Court has explained, Congress's intent must be determined through traditional tools of statutory construction by examining the "text, context, and relevant historical treatment" of the limitation at issue, Reed Elsevier , 559 U.S. at 166, 130 S.Ct. 1237 (citation omitted), and "what they reveal about the purposes [the limitation] is designed to serve," Dolan v. United States , 560 U.S. 605, 610, 130 S.Ct. 2533, 177 L.Ed.2d 108 (2010).
Both the text and context of section 3582 demonstrate that its requirements are not simply rules that "seek to promote the orderly process of litigation by requiring that the parties take certain procedural steps at certain specified times." Henderson , 562 U.S. at 435, 131 S.Ct. 1197. Instead, section 3582 is a "prescription[ ] delineating the classes of cases (subject-matter jurisdiction) ... falling within a court's adjudicatory authority." Kontrick , 540 U.S. at 455, 124 S.Ct. 906. In this regard, "a basic principle of judicial process" is that, "once a final [criminal] judgment is issued and the court of appeals considers a case, a district court has no power to act on it further. " Eberhart v. United States , 546 U.S. 12, 17, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005) (per curiam) (emphasis added). Under this "rule of finality[,]" "[f]ederal courts are forbidden, as a general matter, to ‘modify a term of imprisonment once it has been imposed.’ " Freeman v. United States , 564 U.S. 522, 526, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011) (citing 18 U.S.C. § 3582(c) ) (plurality op.); see also Dillon , 560 U.S. at 819, 130 S.Ct. 2683 (same). This limitation on federal courts' power is confirmed in the text of section 3582. 18 U.S.C. § 3582(c) (stating that, subject to certain exceptions, a court "may not modify a term of imprisonment once it has been imposed").
Notably, the circumstances here are quite different than the context of the civil causes of action at issue in a number of the Supreme Court's recent cases addressing the proper scope of the term "jurisdiction." For example, in Arbaugh v. Y & H Corp. , 546 U.S. 500, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006), the Court considered supposedly jurisdictional limitations on a Title VII action. In Arbaugh , and similar civil cases, the Court has cited 28 U.S.C. § 1331 as the background jurisdictional rule, and noted that through section 1331 "Congress has broadly authorized the federal courts to exercise subject-matter jurisdiction over ‘all civil actions arising under the Constitution, laws, or treaties of the United States.’ " Id. at 505, 126 S.Ct. 1235 (citing 28 U.S.C. § 1331 ) (emphasis added). Of course, in the criminal context here, the jurisdictional landscape is precisely the opposite: under the finality rule, federal courts generally have no adjudicatory authority to modify a term of imprisonment once it has been imposed. Eberhart , 546 U.S. at 17, 126 S.Ct. 403.
It is fair to presume that when a court generally is "forbidden" to consider a modification of a term of imprisonment, it is without jurisdiction to undertake such a modification. However, the rule of finality "is subject to a few narrow exceptions." Freeman , 564 U.S. at 526, 131 S.Ct. 2685. Section 3582 provides such exceptions, including an exception allowing the Director of the BOP, or a defendant who has fully exhausted all administrative rights, to move for a modification of the defendant's imprisonment term based on the existence of "extraordinary and compelling reasons" warranting a reduction of the defendant's sentence. See 18 U.S.C. § 3582(c)(1)(A)(i). If the text of an applicable exception is met, section 3582 provides that the case now falls within the district court's adjudicatory authority to modify the defendant's term of imprisonment. If the text of an applicable exception is not met, there is no jurisdictional basis for the court to modify the term of imprisonment given the longstanding, strict application of the finality rule.
Beyond section 3582, there are additional, limited exceptions to the finality rule. For example, Federal Rule of Criminal Procedure 35(a) authorizes a district court to "correct a sentence that resulted from arithmetical, technical, or other clear error," and Rule 35(b) authorizes a district court to "reduce a sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person."
Thus, the exceptions set forth in the text of section 3582 are not mere "claims-processing rules." Instead, they serve to create jurisdiction to modify a defendant's term of imprisonment where no jurisdiction would otherwise exist under the finality rule. It is therefore unsurprising that at least seven circuits, including the Fifth Circuit, have treated section 3582's requirements as jurisdictional. See United States v. Denson , 798 F. App'x 605, 605–06 (11th Cir. 2020) (per curiam) (citing United States v. Phillips , 597 F.3d 1190, 1194–97 (11th Cir. 2010) ); United States v. Conley , No. 18-5582, 2019 WL 2403230, at *2 (6th Cir. Jan. 9, 2019) (citing United States v. Williams , 607 F.3d 1123, 1125 (6th Cir. 2010) ); United States v. Carrillo , 720 F. App'x 815 (8th Cir. 2018) (per curiam) (citing United States v. Auman , 8 F.3d 1268, 1271 (8th Cir. 1993) ); United States v. Jordan , 853 F.3d 1334, 1338 (10th Cir. 2017) ; United States v. Spears , 824 F.3d 908, 909 (9th Cir. 2016) ; United States v. Freeman , 659 F. App'x 94, 98 (3d Cir. 2016) (citing United States v. Doe , 564 F.3d 305, 309 (3d Cir. 2009) ); Garcia , 606 F.3d at 212 n.5. On the other hand, the Court is aware of only one circuit that has reached the opposite conclusion. See United States v. Taylor , 778 F.3d 667, 669–71 (7th Cir. 2015).
See United States v. Smith , 438 F.3d 796, 799 (7th Cir. 2006) (Easterbrook, J.), overruled by Taylor , 778 F.3d at 671 (7th Cir. 2015) (explaining that, "[b]ecause § 3582(c) limits the substantive authority of the district court, it is a real ‘jurisdictional’ rule, rather than a case-processing requirement").
The Supreme Court's decision in Gonzalez v. Thaler , 565 U.S. 134, 132 S.Ct. 641, 181 L.Ed.2d 619 (2012), is analogous and instructive. In the context of a habeas petitioner's request for postconviction relief, the Court construed 28 U.S.C. § 2253, which "governs appeals in habeas corpus proceedings." Id. at 140, 132 S.Ct. 641. The Court held that section 2253(c)(1) included the following "jurisdictional" language: "[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals[.]" Id. at 142, 132 S.Ct. 641 (internal quotation marks omitted). Although the word "jurisdiction" does not appear in the statute, the Court nonetheless affirmed that section 2253(c)(1)'s certificate-of-appealability requirement is jurisdictional. Id. Similarly here, section 3582's language that a court "may not modify a term of imprisonment once it has been imposed," except as provided under subsections 3582(c)(1)–(2), speaks in jurisdictional terms.
Cases addressing successive motions pursuant to section 3582(c)(2) are distinguishable. Section 3582(c)(2) does not speak to a district court's authority to grant such motions. From this silence, some circuits have held that the bar is nonjurisdictional because there is no clear statement from Congress that it is in fact jurisdictional. See, e.g., United States v. Weatherspoon , 696 F.3d 416, 421–22 (3d Cir. 2012). Others have held that courts simply have jurisdiction over such motions. See, e.g., Calton , 900 F.3d at 710–11 (collecting cases). In any event, the absence of explicit language in the statute renders these cases inapposite.
* * *
To determine this case, it is enough for this Court that the Fifth Circuit's binding precedent continues to treat section 3582 as a demarcation of jurisdiction. Unless and until the Fifth Circuit holds otherwise, the Court is bound to follow the existing precedent. For these reasons, McGirt's motion for compassionate release must be dismissed for want of jurisdiction.
McGirt also requests that the Court order his release to home confinement (presumably pursuant to 18 U.S.C. § 3582(c)(2), though McGirt does not say). But contrary to McGirt's assertion, the Court lacks authority to do so. See, e.g., Zheng Yi Xiao v. La Tuna Fed. Corr. Inst. , No. 3:19-CV-97, 2019 WL 1472889, at *3 (W.D. Tex. Apr. 3, 2019) ("The Attorney General—and by delegation the BOP—has the exclusive authority and discretion to designate the place of an inmate's confinement.") (citing Moore v. U.S. Atty. Gen. , 473 F.2d 1375, 1376 (5th Cir. 1973) (per curiam); Ledesma v. United States , 445 F.2d 1323, 1324 (5th Cir. 1971) (per curiam)). In any event, because this Court lacks jurisdiction over McGirt's motion, the Court need not address this request.
B. Section 3582(c)(1)(A)'s Exhaustion Requirement Is Mandatory.
Even if section 3582(c)(1)(A)'s exhaustion requirement did not present a jurisdictional bar, this Court could not waive or otherwise excuse its requirements through a judicially created exception, as suggested by McGirt.
There are two types of exhaustion requirements—those created by Congress and those created by the judiciary. See McCarthy v. Madigan , 503 U.S. 140, 144, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992). This distinction carries significant weight. As the Supreme Court has explained, "because Congress is vested with the power to prescribe the basic procedural scheme under which claims may be heard in federal courts," Patsy v. Bd. of Regents of State of Fla. , 457 U.S. 496, 501, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982), "[w]here Congress specifically mandates, exhaustion is required[,]" McCarthy , 503 U.S. at 144, 112 S.Ct. 1081. The Supreme Court has rejected invitations to depart from that principle, "stress[ing] the point ... that [the courts] will not read futility or other exceptions into statutory exhaustion requirements where Congress has provided otherwise." Booth v. Churner , 532 U.S. 731, 741 n.6, 121 S.Ct. 1819, 1825, 149 L.Ed.2d 958 (2001). It follows that where a statute specifically prescribes exhaustion, courts lack authority to apply judicially created exceptions. See Ross v. Blake , ––– U.S. ––––, 136 S.Ct. 1850, 1857, 195 L.Ed.2d 117 (2016) ("Congress sets the rules—and courts have a role in creating exceptions only if Congress wants them to.").
Congress had good reason to include the exhaustion requirement. The procedure for exhaustion involves investigation and review of requests for compassionate release by entities expert in prison administration, who are well-positioned to consider a defendant's application. See 28 C.F.R. § 571.62(a) (prescribing the involvement of the warden of the defendant's prison, the BOP's Office of General Counsel, the Medical Director or the Assistant Director of the Correctional Programs Division, and the Director of the BOP).
Further, as the Government has noted, BOP administrative review is now guided by an expanded consideration of whether a defendant is suitable for transfer to home confinement. In a memorandum dated March 26, 2020, U.S. Attorney General William Barr directed the BOP to identify suitable inmates for home confinement with COVID-19 risk factors to minimize the risk to inmates' health due to the ongoing COVID-19 pandemic. See Off. of the Att'y Gen., Mem. for Dir. of Bureau Prisons, Prioritization of Home Confinement as Appropriate in Response to COVID-19 Pandemic (March 26, 2020), https://www.justice.gov/coronavirus. Later, when it became evident that some federal prisons were experiencing a high rate of COVID-19, a revised memorandum was issued for such prisons. See Off. of the Att'y Gen. Mem., Mem. for Dir. of Bureau Prisons, Increasing Use of Home Confinement at Institutions Most Affected by COVID-19 (April 3, 2020), https://www.justice.gov/coronavirus.
Nothing in the text of section 3582(c)(1)(A) invites courts to play an additional role in the scheme Congress set forth. A well-established body of jurisprudence, therefore, settles this issue—the clear exhaustion requirement set out by Congress in section 3582(c)(1)(A) is mandatory and not susceptible to judicially created exception. Courts cannot disregard this clear congressional mandate.
Some courts have taken the view that Washington v. Barr , 925 F.3d 109 (2d Cir. 2019), changes this result. Not so. As numerous other courts have pointed out, see, e.g., United States v. Ogarro , No. 1:18-CR-373-9, 2020 WL 1876300, at *4 (S.D.N.Y. Apr. 14, 2020) (Sullivan, J., sitting by designation), Washington applied judicially created exceptions to a judicially created exhaustion requirement, rendering it inapplicable to the statutory exhaustion requirement at issue in this case.
The only circuit to address the issue stated that remand of a compassionate-release motion to the district court "would be futile" because the defendant "failed to comply with § 3582(c)(1)(A)'s exhaustion requirement[,]" thereby presenting a "glaring roadblock foreclosing compassionate release at this point." United States v. Raia , 954 F.3d 594, 597 (3d Cir. 2020).
IV. CONCLUSION
It is therefore ORDERED that Weseley McGirt's motion for reduction in sentence, (Dkt. #298), is DISMISSED for want of jurisdiction .