govinfo:USCOURTS-mied-2_92-cr-81127-43

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 
SOUTHERN DIVISION 
 
UNITED STATES, 
 
 Plaintiff,  Case Number 92-81127 
v.   Honorable David M. Lawson 
 
JOHN GORDON,  
 
 Defendant. 
       / 
ORDER DENYING WITHOUT PREJUDICE DEFENDANT’S 
RENEWED MOTION FOR COMPASSIONATE RELEASE 
 On January 20, 2022, the de fendant filed a second pro se motion asking the Court to reduce 
his sentence to time served  under the compassionate re lease provision of 18 U.S.C. 
3582(c)(1)(A)(i), as amended by section 603(b)(1) of the First Step Act of 2018, Pub L. 115-391, 
132 Stat. 5194, 5239.  The Court deni ed the defendant’s first co mpassionate release motion 
because it found that the factors in 18 U.S.C. § 3553(a) do not favor early release and extraordinary 
and compelling reasons do not exist to reduce the defendant’s sentence.  The defendant already 
moved for reconsideration of that order.   The present, renewed motion does not indicate that he 
again exhausted the administrative process for seeking compassionate release before seeking 
judicial consideration of  this renewed request.  See 18 U.S.C. § 3882(c)(1)(A).  The renewed 
motion for release therefore must be denied because the defendant has not shown that he exhausted 
all available administrative remedies for seeking release from prison authorities, and controlling 
circuit law dictates that the failure to exhaust cannot be excused under the circumstances presented 
in this case.   
 As a starting point, it is well settled that ordinarily a “court may not modify a term of 
imprisonment once it has been imposed.”  18 U.S.C. § 3582(c).  However, there are exceptions to 
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that general rule, and one is found in the Firs t Step Act, Pub. L. No. 115-391, which became law 
in December 2018.  The First Step  Act allows a court to 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 . . . extraordinary and compelling reasons warrant such a reduction . . . and that a reduction is 
consistent with applicable statements is sued by the Sentencing Commission.” 18 U.S.C. § 
3582(c)(1)(A)(i).  This so-called “compassionate release” provision allows a court to reduce a 
prison term “if it finds that . . . extraordinary and compelling reasons warrant such a reduction.”  
18 U.S.C. § 3582(c)(1)(A)(i).  But that action must await a “motion of the Director of the Bureau 
of Prisons,” or a “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 mo tion on the defendant’s behalf or 
the lapse of 30 days from the receipt of such a re quest by the warden of th e defendant’s facility, 
whichever is earlier.”  Ibid. (emphasis added).   
 In United States v. Alam, 960 F.3d 831 (6th Cir. 2020), the Sixth Circuit held that “[i]f the 
Director of the Bureau of Prisons does not move  for compassionate releas e, a prisoner may take 
his claim to court . . . by moving for it on his own behalf,” but “[t]o do that, he must ‘fully exhaust[] 
all administrative rights to appeal’ with the pr ison or wait 30 days after his first request to the 
prison.”  Id. at 833-34 (quoting 18 U.S.C. § 3582(c)(1)(A)).  The court of appeals further held that 
the exhaustion requirement is a claim processing  rule that does not implicate subject matter 
jurisdiction, but that it also is  mandatory and not subject to waiv er, forfeiture, or  any pertinent 
equitable exception, at least where the government timely asserts an objection based on failure to 
exhaust. 
 The defendant does not allege in this latest  motion that he presented any renewed request 
for compassionate release to prison authorities that was denied, or that at least 30 days have elapsed 
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with no response being received.  Thus, the defendant is not entitled to proceed in seeking judicial 
review based on the expiration of the 30-day statut ory waiting period after a request that has met 
with no action.  The First Step Ac t allows two paths to judicial review of compassionate release 
rulings by BOP authorities, and both begin with th e submission of a request to the warden.  The 
inmate may seek judicial review if the warden denies his request and the defendant then exhausts 
his administrative appeals, see 28 CFR § 571.63; 28 CFR § 542.15, or 30 days elapses “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).  But the defendant may not proceed to Cour t directly without  first either 
completing the administrative appeal process or waiting at least 30 days after tendering his request 
for release.   
 That the Court previously denied a simi lar motion for compassi onate release does not 
excuse the defendant complying with the exhaustion requirement before renewing his motion.  See 
United States v. MacLloyd , No. 08-20289, 2021 WL 5834314, at *1 (E.D. Mich. Dec. 9, 2021) 
(collecting cases).  The defendant cannot refile the same request fo r relief without regard to the 
procedural requirements for seeking further atte ntion from the Court.  If his renewed motion is 
read to reassert the same grounds for release that previously fully were considered and passed upon 
by the Court, then the present motion merely is a request for the Court to  reconsider its ruling 
denying the defendant’s prior motion for compassi onate release, traversi ng the same legal and 
factual ground.  But the present motion was filed well beyond the 14-day deadline for seeking 
reconsideration of that prior ru ling, and the defendant has alrea dy moved for reconsideration of 
the Court’s prior order.  E.D. Mich. LR 7.1(h)(2).  Under Eastern District of Michigan Local Rule 
7.1(h)(4), “[a] motion to recons ider an order denying a motion fo r reconsideration may not be 
filed.”  Nor may the defendant commence a fresh effort to secure release and skip steps by trying 
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to go directly to the Court without first adequa tely pursuing a newly gr ounded request for relief 
through the administrative process.  If, having pr eviously sought and obtained fulsome judicial 
consideration of a request for release, the defendant now wants to advance a new request based on 
new information, then the law is clear about what the defendant must do: as in every other instance, 
he must exhaust available administrative remedies before seeking judicial review.  Alam, 960 F.3d 
at 833-34.   
 The defendant has not established that he  has exhausted all available administrative 
avenues for advancing his renewed request for co mpassionate release with the prison authorities, 
and the request before the Court therefore must be denied.   
 Accordingly, it is ORDERED that the defendant’s renewed motion for compassionate 
release (ECF No. 2519) is DENIED without prejudice. 
  s/David M. Lawson  
  DAVID M. LAWSON 
  United States District Judge 
 
Dated:   February 14, 2022 
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