Order — United States v. Dennis Evans, Jr. (W.D. Tenn., Dkt. 40, May 19, 2020)

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Order, Document 40, filed May 19, 2020 in United States v. Dennis Evans, Jr., No. 2:16-cr-20144, U.S. District Court for the Western District of Tennessee. It addresses Evans' pro se request for relief filed on April 7, 2020, after Evans was indicted for being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1) and sentenced to 85 months in prison; the Court construes the request as a motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A), finds that Evans has not exhausted administrative remedies with the BOP, and denies the Motion with leave to renew if Evans exhausts them. The order is signed by Samuel H. Mays, Jr. and dated May 15, 2020.

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 Case 2:16-cr-20144-SHM Document 40 Filed 05/19/20 Page 1 of 7   PageID 253



                    IN THE UNITED STATES DISTRICT COURT
                       WESTERN DISTRICT OF TENNESSEE
                              WESTERN DIVISION

                                     )
UNITED STATES OF AMERICA,            )
                                     )
       Plaintiff,                    )
                                     )
v.                                   )     No. 2:16-cr-20144
                                     )
DENNIS EVANS, JR.,                   )
                                     )
       Defendant.                    )
                                     )

                                  ORDER


       Before the Court is Defendant Dennis Evans Jr.’s pro se

request for relief (the “Motion”), filed on April 7, 2020.           (ECF

No. 33.)    The government responded on May 5, 2020.             (ECF No.

39.)    For the following reasons, the Motion is DENIED.

I.     Background

       In June 2016, Evans was indicted for being a felon in

possession of a firearm, a violation of 18 U.S.C. § 922(g)(1).

(ECF No. 1.)   In November 2016, Evans pled guilty to that charge.

(ECF Nos. 21-23.)       In February 2017, the Court sentenced Evans

to 85 months in prison, to be followed by a three-year term of

supervised release.        (ECF Nos. 29, 30.)       Evans’ anticipated

release date is August 25, 2022.          See Federal Bureau of Prisons

Inmate Locator at https://www.bop.gov/inmateloc/In.
 Case 2:16-cr-20144-SHM Document 40 Filed 05/19/20 Page 2 of 7    PageID 254



       On April 7, 2020, Evans filed a letter requesting relief

from the Court.    (ECF No. 33.)     Evans does not specify the relief

he seeks or the statute on which he relies.                (See id.)     He

details his medical history, specifically referencing alleged

diagnoses of lupus and rheumatoid arthritis.          (Id. at 1-3.)      He

asks    for   relief    from   the   Court   given   his   high   risk   of

susceptibility to the COVID-19 virus due to his alleged auto-

immune disorder.       (Id. at 3.)

       On May 5, 2020, the government filed a response to Evans’

request, construing it as a request for compassionate release

under 18 U.S.C. 3582(c)(1)(A), (see ECF No. 39 at 5), and arguing

that the Court does not have the authority to consider it because

Evans has failed to exhaust his administrative remedies,               (see

id. at 8-11).     Alternatively, the government argues that Evans’

request fails on the merits.          (Id. at 11-18.)      The government

submits Evans’ health records and notes that he was wrongly

diagnosed with rheumatoid arthritis and that his current medical

conditions include asthma, dental caries, a cracked tooth, other

disturbances of oral epithelium, including tongue, other local

lupus erythematosus, and pain, unspecified.          (See id. at 4; see

also No. 38.)

II.    Standard of Review

       A sentencing court does not have inherent authority to

modify an otherwise valid sentence. United States v. Washington,

                                     2
 Case 2:16-cr-20144-SHM Document 40 Filed 05/19/20 Page 3 of 7       PageID 255



584 F.3d 693, 700 (6th Cir. 2009).           The authority to resentence

a defendant is limited by statute.             United States v. Houston,

529 F.3d 743, 748-49 (6th Cir. 2008) (citing United States v.

Ross, 245 F.3d 577, 585 (6th Cir. 2001)).                   Eighteen U.S.C.

§ 3582(c)(1)(A) allows a court to modify a term of imprisonment

where    “extraordinary         and       compelling      reasons     warrant

[modification].”     Motions under that section have been called

“motions for compassionate release.”             United States v. McCann,

No. 13-cr-52, 2020 WL 1901089, at *1 (E.D. Ky. Apr. 17, 2020).

“The compassionate release provisions were . . . intended to be

a ‘safety valve’ to reduce a sentence in the ‘unusual case in

which the defendant’s circumstances are so changed, such as by

terminal illness, that it would be inequitable to continue the

confinement of the prisoner.’”         United States v. Ebbers, No. 02-

cr-1144, 2020 WL 91399, at *6 (S.D.N.Y. Jan. 8, 2020) (citing S.

Rep. 98-225, at 121 (1983)).

     In the First Step Act of 2018 (the “First Step Act”), Pub

L. No. 115-391, 132 Stat. 5194, 5239, Congress amended 18 U.S.C.

§ 3582(c)(1)(A)    to   allow    a    prisoner    to    file   a   motion   for

compassionate release on his own behalf.               Before the First Step

Act, a motion for compassionate release could be brought only by

the Director of the Bureau of Prisons (the “BOP”). United States

v. York, Nos. 3:11-cr-76, 3:12-cr-145, 2019 WL 3241166, at *4

(E.D. Tenn. July 18, 2019) (citing 18 U.S.C. § 3582(c)(1)(A)

                                      3
 Case 2:16-cr-20144-SHM Document 40 Filed 05/19/20 Page 4 of 7   PageID 256



(2017)).    The First Step Act modified § 3582(c)(1)(A) with the

intent of “increasing the use and transparency of compassionate

release.”      Pub.   L.   No.   115-391,    132   Stat.     5194,    5239

(capitalization omitted); see also Ebbers, 2020 WL 91399, at *7.

     Section 3582(c)(1)(A) now provides that:

     [T]he court, upon motion of the Director of the Bureau
     of Prisons, or 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, may reduce the term of imprisonment . . .
     after considering the factors set forth in section
     3553(a) to the extent that they are applicable, if it
     finds that —-

     (i) extraordinary and compelling reasons warrant such
     a reduction . . .

     and that such a reduction is consistent with applicable
     policy statements issued by the Sentencing Commission
     . . . .

     Section    3582(c)(1)(A)    requires    a   defendant    to     “first

exhaust [his] administrative remedies [with the BOP] before

seeking judicial relief.”     United States v. Koch, No. 01-cr-083,

2019 WL 3837727, at *1-2 (E.D. Ky. Aug. 14, 2019).           A defendant

may exhaust his administrative remedies in one of two ways: (1)

by exhausting his “administrative rights to appeal a failure of

the [BOP] to bring a motion on the defendant’s behalf,” or (2)

upon “the lapse of 30 days from the 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 York, 2019 WL 3241166, at *5
                                    4
 Case 2:16-cr-20144-SHM Document 40 Filed 05/19/20 Page 5 of 7           PageID 257



(“Other district courts have recognized that the language of

§ 3582(c)(1)(A), as amended by the First Step Act, requires the

defendant to file an administrative request with the BOP ‘and

then either exhaust administrative appeals or wait thirty days

after   submitting    his     request       to   the   BOP.’”)       (emphasis   in

original) (quoting United States v. Heromin, No. 11-cr-550, 2019

WL 2411311, at *1 (M.D. Fla. June 7, 2019)).               The defendant bears

the   burden   of   showing    he   has      exhausted     his   administrative

remedies and is entitled to compassionate release.                    See Ebbers,

2020 WL 91399, at *4 (citing United States v. Butler, 970 F.2d

1017, 1026 (2d Cir. 1992)).

III. Analysis

      The   Court    construes      Evans’       request   as    a    motion     for

compassionate release under 18 U.S.C. § 3582(c)(1)(A).                    (See ECF

No. 33 at 3.)         Evans has not exhausted his administrative

remedies with the BOP.        Before moving for compassionate release

under 18 U.S.C. § 3582(c)(1)(A), a defendant must ask the BOP to

file a motion for compassionate release on his behalf, and then

“fully exhaust[] all administrative rights to appeal a failure

of the [BOP] to bring a motion on the defendant’s behalf” or

wait until “30 days from the receipt of such a request by the

warden of the defendant’s facility” have elapsed.                       18 U.S.C.

§ 3582(c)(1)(A).      Evans has presented no evidence that he has

asked the BOP to file a motion for compassionate relief on his

                                        5
    Case 2:16-cr-20144-SHM Document 40 Filed 05/19/20 Page 6 of 7   PageID 258



behalf.      (See ECF No. 33.)       The government represents that it

has contacted the BOP’s Deputy Regional Counsel and the Unit

Manager at the facility where Evans is located and that both

have confirmed that Evans has not made an administrative request

to the BOP for compassionate release.            (See ECF No. 39 at 4.)

The Court does not have the authority to consider the Motion. 1

See, e.g., United States v. Raia, No. 20-1033, 2020 WL 1647922,

at *2-3 (3d Cir. Apr. 2, 2020) (holding that a failure to satisfy

§ 3582(c)(1)(A)’s exhaustion requirement foreclosed the court’s

consideration of defendant’s motion for compassionate release

and that “strict compliance with [the] exhaustion requirement

takes on added -- and critical -- importance” during the current

crisis).       The Court DENIES the Motion with leave to renew if

Evans exhausts his administrative remedies with the BOP.

IV.     Conclusion

        For the foregoing reasons, the Motion is DENIED.




1
  It is unnecessary to address the government’s argument and whether
§ 3582(c)(1)(A)’s exhaustion regime is a jurisdictional prescription
or a mandatory claim-processing rule because the Court can decide the
present issue without reaching that question. See Manrique v. United
States, 137 S. Ct. 1266, 1272 (2017) (declining to address the
jurisdictional question because the requirement at issue was “at least
a mandatory claim-processing rule”); United States v. Ogarro, No. 18-
cr-373-9, 2020 WL 1876300, at *3 (S.D.N.Y. Apr. 14, 2020)
(“[R]egardless of whether the statute is jurisdictional or a claim-
processing rule, its exhaustion requirements are clearly mandatory.”);
United States v. Monzon, No. 99-cr-157, 2020 WL 550220, at *2 (S.D.N.Y.
Feb. 4, 2020) (“It is unnecessary to resolve here whether § 3582(c)
creates a jurisdictional bar to the modification of [defendant’s]
sentence or simply sets forth a statutory exhaustion requirement.”).
                                       6
 Case 2:16-cr-20144-SHM Document 40 Filed 05/19/20 Page 7 of 7   PageID 259




So ordered this 15th day of May, 2020.


                                   /s/ Samuel H. Mays, Jr.
                                 SAMUEL H. MAYS, Jr.
                                 UNITED STATES DISTRICT JUDGE




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