United States District Court, D. Arizona
Honorable Roslyn O. Silver Senior United States District
Deborah Ann Weidenhamer is serving an 84-month sentence after
pleading guilty to bank fraud. Defendant believes she is
entitled to compassionate release because of “two
serious life-threatening conditions from which she is not
expected to recover.” (Doc. 64 at 1). According to the
government, the Court must deny this request because
Defendant did not exhaust her administrative remedies prior
to seeking relief from the Court. The government likely is
correct that Defendant should have administratively exhausted
before filing her request but even if the Court overlooks
that failure, Defendant is not entitled to release.
Therefore, the motion will be denied.
in July 2019 Defendant submitted a request for compassionate
release to the warden of her facility. The warden received
that request on July 19, 2019. On August 19, 2019, the warden
issued a written denial. (Doc. 64-1 at 65). The warden
concluded Defendant did not “meet the criteria”
for compassionate release but stated Defendant could appeal
the denial “through the Administrative Remedy
Program.” (Doc. 64-1 at 65). Instead of pursuing such
an appeal, Defendant filed her motion with the Court on
August 29, 2019. The government responded that
Defendant's motion “should be denied on procedural
grounds because [Defendant] has not exhausted all of her
administrative appeal rights.” (Doc. 65 at 1).
According to the government, Defendant filed a proper request
for compassionate relief with the warden but, upon receiving
the warden's denial, Defendant was required to pursue an
administrative appeal. Defendant disagrees that she was
required to pursue an administrative appeal after receiving
the warden's denial. Instead, Defendant argues she was
entitled to file a motion with the Court 30 days after the
warden received her request, regardless of what action the
warden took on that request.
the Court can reach the merits of Defendant's motion, she
alleges she “suffers from two serious diseases from
which she is not expected to recover.” (Doc. 64 at 3).
Those two “diseases” are an abdominal aortic
aneurysm and “primary immunodeficiency
disorders.” Defendant complains she is not receiving
adequate medical treatment and her situation presents
“extraordinary and compelling reasons” to grant
compassionate release. The government did not respond on the
merits because it believed Defendant's alleged failure to
exhaust her administrative remedies precludes reaching the
merits of Defendant's request.
2018, Congress amended 18 U.S.C. § 3582 to allow a
convicted defendant to file a motion for compassionate
release. Previously, that statute allowed only the Director
of the Bureau of Prisons to file such a motion. United
States v. Shields, No. 12-CR-00410-BLF-1, 2019 WL
2359231, at *1 (N.D. Cal. June 4, 2019). In authorizing
defendants to file motions on their own behalf, the statute
imposed an administrative exhaustion requirement. As
explained below, however, the precise contours of that
requirement are not clear.
Defendant Did Not Exhaust Her Administrative
amended statute allows a defendant to file a motion for
compassionate release upon the earlier of two dates. First, a
defendant can file a motion “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.” Id. Second, a
defendant can file a motion upon “the lapse of 30 days
from the receipt of [a defendant's request to bring a
motion] by the warden of the defendant's facility.”
Id. Courts have recognized these two options impose
a mandatory requirement that a defendant submit a request to
the warden of her facility before filing in court. See,
e.g., United States v. Solis, No. CR
16-015-CG-MU, 2019 WL 2518452, at *2 (S.D. Ala. June 18,
2019) (denying request because defendant did not request
compassionate release from Bureau of Prisons); United
States v. Dowlings, No. CR413-171, 2019 WL 4803280, at
*1 (S.D. Ga. Sept. 30, 2019). But courts have disagreed on
what, if anything, a defendant must do beyond that initial
request and before filing in court.
disagreement appears to stem from the wording of the second
option authorizing a defendant to file a motion in court upon
“the lapse of 30 days from the receipt of [a
defendant's request to bring a motion] by the warden of
the defendant's facility.” Courts have concluded
this language allows a defendant to file a motion with the
court if a defendant makes a request to the warden but the
warden does not act on the request within 30 days of
receiving it. See, e.g., United States v.
Early, No. 7:02-CR-10125-002, 2019 WL 4576281, at *1
(W.D. Va. Sept. 20, 2019) (defendant was entitled to file
motion because warden did not act on request within 30 days).
Courts have also concluded a defendant can file a motion with
the court if the warden takes longer than 30 days to act on a
request, even if the warden's denial is issued before the
defendant files his motion in court. See, e.g.,
United States of America v. Gray, No.
202CR00018JMSCMM13, 2019 WL 4572816, at *3 (S.D. Ind. Sept.
20, 2019) (defendant was entitled to file motion because
warden denied request more than 30 days after receiving
request). But there is very limited authority explaining the
options for a defnedant who submits a request to the warden
and the warden denies that request within 30 days.
are two ways to read the statutory phrase “the lapse of
30 days.” The first reading is that a “lapse of
30 days” refers simply to the passage of 30 days,
regardless of what happens in the interim. Under this
reading, a warden would be given an initial opportunity to
act on a request for compassionate release but a defendant
would not be required to pursue an administrative appeal
should the warden deny the request. Instead, a defendant
would be allowed to file a motion in court 30 days after the
warden received the request. Given that some defendants
seeking compassionate release are doing so because of
imminent death, Congress might have decided against requiring
every defendant pursue a potentially lengthy administrative
least two other districts, the government has adopted this
first reading and argued a defendant need not do more than
wait 30 days before proceeding to court. United States v.
Spears, 98-cr-208 (D. Ore. Sept. 30, 2019) (filing by
government); United States v. Robinson, 16-cr-5307
(W.D. Wash. July 8, 2019) (filing by government). And judges
in the Western District of Washington and the Eastern
District of Tennessee have agreed defendants are entitled to
proceed to court once 30 days pass, regardless of any action
taken by the wardens. United States v. Robinson,
2019 WL 2567356 (W.D. Wash. June 21, 2019) (staying case for
exactly 30 days after date warden received her request);
United States v. York, No. 3:11-CR-76, 2019 WL
3241166, at *5 (E.D. Tenn. July 18, 2019) (defendant entitled
to file motion with court after warden denied request even
though defendant did not pursue administrative appeal). But
this reading urged by the government elsewhere and adopted in
other courts is not the only possible reading.
second way to read the language referencing a “lapse of
30 days” is that it applies only if the warden does not
grant or deny the request during those 30 days.
“Lapse” often carries with it a connotation of a
failure to act. For example, Black's Law Dictionary
defines “lapse” as “[t]he termination of a
right or privilege because of a failure to exercise it within
some time limit or because a contingency has occurred or not
occurred.” Black's Law Dictionary 885 (7th ed.
1999). Thus, “lapse of 30 days” might be
referring to the situation of a warden receiving a request
but not acting on that request within 30 days. This reading
would allow a defendant to go directly to court if a warden
is not responsive to a request but, if a warden does
act within 30 days, the defendant would be required to pursue
an administrative appeal. At least one court appears to have
adopted this view, albeit without explanation. See,
e.g., United States v. Koch, No.
201CR083JMHEBA2, 2019 WL 3837727, at *2 (E.D. Ky. Aug. 14,
2019) (noting statutory amendment “did not alter the
requirement that prisoners must first exhaust administrative
remedies before seeking judicial relief”).
the statutory language is not clear. With two ways of reading
the language, the Court must look to other sources of
information for guidance on what the language means. See
Moran v. Screening Pros, LLC, 923 F.3d 1208, 1215 (9th
Cir. 2019) (“If the language is ambiguous, we look to
canons of construction, legislative history, and the
statute's overall purpose to illuminate Congress's
intent.”). Looking to guidance by the agency involved
in administration of the statute can be especially helpful.
Cf. Tablada v. Thomas, 533 F.3d 800, 806 (9th Cir.
2008) (looking to interpretation promulgated by Bureau of
Prisons in a ...