Memorandum Order — No. 7:15-cr-00011 (Dkt. 437, E.D. Ky.)

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A Memorandum Order, Doc #: 437, filed May 8, 2020 in United States v. Donald Gene Blankenship, Criminal Action No. 7: 15-011-DCR-1 (Case: 7:15-cr-00011-DCR), in the U.S. District Court for the Eastern District of Kentucky, Southern Division (at Pikeville). The defendant moved for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i), citing the COVID-19 outbreak and his potential exposure at FCI Cumberland. The court denies the motion [Record No. 436] because he acknowledged that he had not exhausted administrative remedies, and denies it to the extent he seeks home confinement under the CARES Act, stating that the Bureau of Prisons holds sole authority to grant it.

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Case: 7:15-cr-00011-DCR Doc #: 437 Filed: 05/08/20 Page: 1 of 3 - Page ID#: 1925




                          UNITED STATES DISTRICT COURT
                          EASTERN DISTRICT OF KENTUCKY
                               SOUTHERN DIVISION
                                    (at Pikeville)

 UNITED STATES OF AMERICA,                      )
                                                )
        Plaintiff,                              )     Criminal Action No. 7: 15-011-DCR-1
                                                )
 V.                                             )
                                                )
 DONALD GENE BLANKENSHIP,                       )          MEMORANDUM ORDER
                                                )
        Defendant.                              )

                                 ****    ****       ****   ****

       Defendant Donald Blankenship has filed a motion for compassionate release pursuant

to 18 U.S.C. § 3582(c)(1)(A)(i). [Record No. 436] The same document was previously filed

with a signature of an individual who is not admitted to the Bar of this Court or admitted pro

hac vice. the Court denied that motion and struck it from the record. The pending motion bears

Blankenship’s signature, but the Court will nonetheless deny it.

       Blankenship argues that the COVID-19 outbreak, when considered with his lung and

liver problems caused by Hepatitis C, constitutes an “extraordinary and compelling reason”

justifying compassionate release under § 3582(c)(1)(A)(i). [Record No. 436, pp. 2-4] The

defendant acknowledges that he has failed to exhaust administrative remedies, but he insists

that waiver of the exhaustion requirement is appropriate in light of his potential exposure to

COVID-19 at FCI Cumberland, his place of incarceration. [Id. at p. 3]

       Courts may only consider pro se motions for compassionate release “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

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Case: 7:15-cr-00011-DCR Doc #: 437 Filed: 05/08/20 Page: 2 of 3 - Page ID#: 1926




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). This statutory requirement is unequivocally mandatory,

and “[m]andatory exhaustion regimes[] foreclose judicial discretion.”           United States v.

Cornett, No. 7: 10-2-KKC, 2020 WL 1912211, at *2 (E.D. Ky. Apr. 20, 2020) (quoting Ross

v. Blake, 136 S. Ct. 1850, 1856 (2016)).

       putting aside the fact that Congress has compelled adherence to § 3582(c)(1)(A)’s

exhaustion requirement, this Court has repeatedly refused to follow the reasoning of other

district courts that have waived it in light of the COVID-19 outbreak. See United States v.

Girod, No. 5: 15-087-DCR, 2020 WL 1931242, at *3 (E.D. Ky. Apr. 21, 2020); Cornett, 2020

WL 1912211, at *2; United States v. Washington, No. 5: 13-020-DCR, 2020 WL 1873550, at

*1 (E.D. Ky. Apr. 14, 2020); United States v. Hofmeister, No. 5: 16-13-KKC, 2020 WL

1811365, at *2 (E.D. Ky. Apr. 9, 2020). The United States Court of Appeals for the Third

Circuit, the only federal court of appeals to squarely consider the matter, has agreed that waiver

of the exhaustion requirement on account of COVID-19 is inappropriate. United States v.

Raia, 954 F.3d 594, 597 (3d Cir. 2020).

       Blankenship has acknowledged that he has not fully exhausted administrative remedies

and has provided no evidence to demonstrate that he has begun to do so. Therefore, the motion

for compassionate relief will be denied.

       Blankenship also has attached a form documenting a request made to the Bureau of

Prisons for home confinement pursuant to the CARES Act, Pub. L. 116, 134 Stat. 281, 516, §

12003(b)(2). [Record No. 436-3] This does not pertain to compassionate release, and it is

unclear from the body of his motion whether he seeks relief under the CARES Act.

Nevertheless, the CARES Act and the statute that generally provides for prerelease home
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Case: 7:15-cr-00011-DCR Doc #: 437 Filed: 05/08/20 Page: 3 of 3 - Page ID#: 1927




confinement, 18 U.S.C. § 3624(c)(2), do not authorize district courts to grant such relief. The

Bureau of Prisons holds the sole authority to grant home confinement requests. See United

States v. McCann, No. 5: 13-52-KKC, 2020 WL 1901089, at *3 (E.D. Ky. Apr. 17, 2020).

Thus, the Court will deny the motion to the extent Blankenship seeks an order granting home

confinement under the CARES Act.

       Accordingly, it is hereby

       ORDERED that Defendant Donald Blankenship’s motion requesting compassionate

release [Record No. 436] is DENIED.

       Dated: May 8, 2020.




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