United States v. Saladino

• Citation: 7 F.4th 120
• Decision Date: 04 August 2021
• Docket Number: No. 20-1563,August Term 2020,20-1563
• Parties: UNITED STATES of America, Appellee, v. Anthony SALADINO, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

7 F.4th 120

UNITED STATES of America, Appellee,

v.Anthony SALADINO, Defendant-Appellant.^*

No. 20-1563

August Term 2020

United States Court of Appeals, Second Circuit.

Submitted: May 28, 2021

Decided: August 4, 2021

Artie McConnell (Kevin Trowel, on the brief), Assistant United States Attorneys, for Seth D. DuCharme, Acting United States Attorney for the Eastern District of New York, Brooklyn, New York, for Appellee.

Christopher J. Cassar, The Cassar Law Firm, P.C., Huntington, New York, for Defendant-Appellant.

Before: Sack, Lynch, and Menashi, Circuit Judges.

Judge Menashi concurs in a separate opinion.

Per Curiam:

As part of the First Step Act of 2018, Congress authorized courts to consider an inmate's motion for a discretionary sentence modification for "extraordinary and compelling reasons," often colloquially called a motion for compassionate release. See Pub. L. No. 115-391, § 603(b), 132 Stat. 5194, 5239 (amending 18 U.S.C. § 3582(c)(1)(A) ). Previously, a court could grant compassionate release only upon a motion from the Director of the Bureau of Prisons ("BOP"). See 18 U.S.C. § 3582(c)(1)(A) (2012). Still, the newly amended provision permits an inmate to move for compassionate release only "after the [inmate] has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the [inmate's] behalf or the lapse of 30 days from the receipt of such a request by the warden of the [inmate's] facility, whichever is earlier." 18 U.S.C. § 3582(c)(1)(A).

Today we clarify that this exhaustion requirement is not a jurisdictional limitation on a court's power to consider an inmate's motion for compassionate release. Rather, § 3582(c)(1)(A) ’s exhaustion requirement is a claim-processing rule that may be waived or forfeited by the government. Because the government has now withdrawn any defense based on the appellant's prior failure to exhaust his administrative remedies in this case, we vacate the district court's dismissal of the appellant's motion for compassionate release and remand for the district court to consider the motion on the merits.

BACKGROUND

On April 6, 2018, Anthony Saladino pleaded guilty, pursuant to a plea agreement, to racketeering conspiracy and conspiracy to distribute over 500 grams of cocaine in violation of 21 U.S.C. §§ 846, 841(b)(1)(B). He was sentenced to a term of 63 months’ imprisonment.

On April 17, 2020, Saladino filed a motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A), arguing that given his medical condition, the threat of COVID-19 justified his early release from prison. At the hearing on the motion before the district court, Saladino admitted that he failed to exhaust his administrative remedies as required by statute. Instead, he asked the district court to excuse his failure to exhaust. In response, the government argued that the exhaustion requirement was "non-waivable." Gov't App'x 5. The district court agreed with the government and denied Saladino's motion "because [Saladino] failed to exhaust [his] administrative remedies, which are non-waivable." Gov't App'x 5-6. Saladino timely appealed.

On September 3, 2020, while this appeal was pending, Saladino filed a second motion for compassionate release in the district court, raising the same arguments as his first motion. This second motion, however, included additional factual information indicating that Saladino had taken further steps to exhaust his administrative remedies. In light of the second motion, the government moved to dismiss this appeal and remand the case to the district court, arguing that Saladino's second motion subsumed his first motion and mooted the appeal. In response to the government's motion, Saladino withdrew his second compassionate release motion in the district court, which prompted our court to deny the government's motion as moot. The government subsequently submitted its merits brief and informed the court that it has chosen to "withdraw[ ]" its "affirmative defense of exhaustion" because it believes that Saladino has now properly exhausted his administrative remedies. Brief for the United States 2-3.

STANDARD OF REVIEW

We review the denial of a motion for compassionate release for abuse of discretion, which incorporates de novo review with respect to questions of statutory interpretation. See United States v. Holloway , 956 F.3d 660, 664 (2d Cir. 2020) ; Warren v. Pataki , 823 F.3d 125, 137 (2d Cir. 2016) ("A district court has abused its discretion if it has (1) based its ruling on an erroneous view of the law , (2) made a clearly erroneous assessment of the evidence, or (3) rendered a decision that cannot be located within the range of permissible decisions.") (emphasis added).

DISCUSSION

Saladino challenges the district court's conclusion that the exhaustion requirement in § 3582(c)(1)(A) is "non-waivable." Gov't App'x 5-6. To the extent that the district court intended to hold that it lacked jurisdiction to consider Saladino's motion due to his failure to exhaust, that was error. The exhaustion requirement in § 3582(c)(1)(A) is not a jurisdictional limitation. Therefore, in light of the government's decision to withdraw its objection to Saladino's failure to exhaust, the district court may now consider Saladino's motion on the merits, and we remand for it to do so.

A rule is jurisdictional "[i]f the Legislature clearly states that a prescription counts as jurisdictional." Fort Bend Cnty. v. Davis , ––– U.S. ––––, 139 S. Ct. 1843, 1850, 204 L.Ed.2d 116 (2019) (alterations omitted). "[B]ut when Congress does not rank a prescription as jurisdictional, courts should treat the restriction as nonjurisdictional in character." Id. (alterations omitted).

The statute governing an inmate's motion for compassionate release reads as follows:

(c) Modification of an Imposed Term of Imprisonment.— The court may not modify a term of imprisonment once it has been imposed except that—

(1) in any case—

(A) the 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 motionon 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 [subject to certain conditions].

18 U.S.C. § 3582 (emphasis added). The italicized language does not provide a "clear[ ] state[ment]" setting forth a "jurisdictional" "prescription." Fort Bend , 139 S. Ct. at 1850. The "language neither ‘speak[s] in jurisdictional terms’ nor ‘refer[s] in any way to the jurisdiction’ of the courts." United States v. Alam , 960 F.3d 831, 833 (6th Cir. 2020) (quoting Zipes v. Trans World Airlines, Inc. , 455 U.S. 385, 394, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982) ). Moreover, the Supreme Court has interpreted a similar provision in Title VII of the Civil Rights Act of 1964 as nonjurisdictional. See Fort Bend , 139 S. Ct. at 1846, 1850 (holding that a court has jurisdiction to consider a Title VII claim even when a plaintiff fails to comply with the statute's provision that "a ‘charge ... shall be filed’ with the EEOC ... within 180 days ‘after the alleged unlawful employment practice occur[s]’ ") (quoting 42 U.S.C. § 2000e-5(b), (e)(1) ). Therefore, like many of our sister circuits, we conclude that § 3582(c)(1)(A) ’s exhaustion requirement is not jurisdictional. See United States v. Harris , 989 F.3d 908, 911 (11th Cir. 2021) ; United States v. Gunn , 980 F.3d 1178, 1179 (7th Cir. 2020) ; United States v. Franco , 973 F.3d 465, 467-68 (5th Cir. 2020) ; Alam , 960 F.3d at 833.

Not a jurisdictional limitation, § 3582(c)(1)(A) ’s exhaustion requirement is a "claim-processing rule[ ]" and accordingly "may be waived or forfeited" by the government. Hamer v. Neighborhood Hous. Servs. , ––– U.S. ––––, 138 S. Ct. 13, 17, 199 L.Ed.2d 249, (2017). On appeal, the government has chosen to "withdraw[ ]" its "defense of exhaustion" because it believes that Saladino has now properly exhausted his administrative remedies as § 3582(c)(1)(A) requires. Brief for the United States 2-3. Thus, the district court is now free to consider the merits of Saladino's motion.

The district court may now consider the merits regardless of whether Saladino has in fact satisfied § 3582(c)(1)(A) ’s exhaustion requirement. Although the government believes that Saladino has now exhausted his administrative remedies, id. at 2, we note that district courts in this circuit have split on how to interpret the statute's provision permitting an inmate to move for a sentence reduction "after ... the lapse of 30 days from the receipt" by the warden of an inmate's request for the BOP to move on his behalf, 18 U.S.C. § 3582(c)(1)(A). Some district courts have held that the provision authorizes an inmate to file a motion only after he has "waited 30 days from the Warden's receipt of his request for compassionate release without receiving a response ." United States v. Samuels , No. 08-CR-789-6, 2020 WL 7696004, at *3 (S.D.N.Y. Dec. 28, 2020) (emphasis added). But if the BOP timely responds to the inmate's request for compassionate release, the inmate must " ‘satisfy the same exhaustion procedure’ that applies to ‘routine administrative grievances,’ " which would "include[ ] appeals to both the appropriate Regional Director and the BOP General Counsel." Id.¹

Other district courts, however, have held that the statute's 30-day waiting period authorizes the inmate's filing a motion regardless of whether the warden responds to the inmate's request for compassionate release. Under this view, an inmate must "either ... exhaust administrative remedies or simply ... wait 30 days after serving his petition on the warden of his facility before filing a motion in court." United States v. Haney , 454 F. Supp. 3d 316, 321 (S.D.N.Y. 2020).

We need not decide whether Saladino has...