ORDER

TIMOTHY J. CORRIGAN, District Judge.

This is the Court's first occasion to consider a motion for compassionate release under the new First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018). This case is before the Court on Defendant Robert Mills's Motion to Request Compassionate Release Pursuant to 18 U.S.C. § 3582(c)(1)(A), as amended by the First Step Act, and supporting memorandum of law. (Docs. 447, 448). The Government responded in opposition, (Doc. 452), and Mills replied, (Doc. 455). Upon review, the Court requested Mills to provide documentation that he had exhausted his administrative remedies as contemplated by the First Step Act. (Doc. 456). Mills responded to the Court's request, stating that previously exhaustion was not required and that any such effort would be futile. (Doc. 457).

In very limited circumstances, courts are permitted to modify a prisoner's sentence. One such circumstance is compassionate release, which allows a court to modify a term of imprisonment for, among other things, extraordinary and compelling reasons. 18 U.S.C. § 3582(c)(1)(A). However, certain prerequisites must be met. Id. Under the prior version of § 3582(c)(1)(A), a court could only grant compassionate release upon a motion by the Director of the Bureau of Prisons. 18 U.S.C.A. § 3582(c)(1)(A) (2017). However, this prerequisite for compassionate release was recently amended by the First Step Act. Pub. L. No. 115-391, 132 Stat. 5194 (2018). Now, in addition to a motion by the Director of the Bureau of Prisons, a court can grant compassionate release on a motion from 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. . . ." First Step Act, Pub. L. No. 115-391, 132 Stat. 5194 (2018). Thus, a defendant can only file a motion for compassionate release in two situations: (a) after fully exhausting his administrative rights to appeal; or (2) if the warden fails to timely act.

Here, Mills has failed to satisfy the prerequisites for judicial review of his motion for compassionate release. Before enactment of the First Step Act, Mills filed a request for compassionate release with the warden of his facility. (Doc. 448-1). The warden denied Mills's request, and Mills did not administratively appeal that decision. (Docs. 448-1; 457). Nonetheless, Mills argues that his motion should be considered by the Court because the exhaustion requirement did not exist when he made his initial request, and that appealing the warden's decision would have been futile because the BOP rarely supports requests for compassionate release. (Doc. 457).

Although the First Step Act expands compassionate release by allowing defendants to file motions with the court if the BOP refuses to do so, it still allows the BOP the first opportunity to review the request. To take advantage of the First Step Act's compassionate release provision, Mills must file a new request for compassionate release with the warden of his facility and follow the procedures to exhaust his right of administrative review. If the BOP either makes a final administrative decision denying his request or the warden fails to timely respond, Mills may renew his motion with the Court, which will promptly adjudicate it.

Accordingly, it is hereby

ORDERED:

1. Mills's Motion to Request Compassionate Release Pursuant to 18 U.S.C. § 3582(c)(1)(A), as amended by the First Step Act, and supporting memorandum of law, (Docs. 447, 448), are DENIED without prejudice.

2. The Bureau of Prisons shall review Mills's new request in accordance with this Court's April 16, 2018 Order (Doc. 446).1

DONE AND ORDERED.

ORDER

This case is before the Court on Defendant Robert Mills's "Motion to Request Court [to] Clarify Sentence/Judgment for Purposes of Bureau of Prisons Coterminous Com[p]utation" (Doc. 445, Motion to Clarify). Mr. Mills has been in federal custody since about May 10, 2002, following his arrest for conspiracy to possess five kilograms or more of cocaine with intent to distribute and attempting to possess five kilograms or more of cocaine with intent to distribute. (See Doc. 12). Mr. Mills went to trial and was convicted of both charges. (Doc. 149, Jury Verdict). Because of the mandatory minimum sentence applicable under 21 U.S.C. § 841(b)(1)(A), and because Mr. Mills had a prior conviction for a felony drug offense in the United States District Court for the District of New Jersey, the Court was required to sentence Mr. Mills to no less than 20 years (240 months) in prison as to each count. The Court imposed the mandatory minimum sentence for both counts, ordering them to run concurrently. (Doc. 225, Judgment). The Court entered judgment on May 1, 2003.

At the time Mr. Mills committed the offenses for which he was convicted in this Court, he was serving a term of supervised release in connection with the prior conviction from the District of New Jersey, see United States v. Robert Mills, Case No. 2:94-cr-280-JWB-1 (D.N.J.). In 2004, after Mr. Mills began serving his term of imprisonment in the instant case, the district judge in New Jersey revoked Mr. Mills's term of supervised release and sentenced him to 30 months' imprisonment based on the new violations of law. The district judge ordered 15 of those months to be served concurrently with the 240-month sentence this Court imposed, and 15 months to be served consecutively. (See Doc. 445 at 2; Doc. 445-1 at 4).

Mr. Mills is nearing the completion of his sentences after being in custody for nearly 16 years.1 According to his Motion, Mr. Mills recently turned 65 years old, thereby qualifying him to request "compassionate release" from the Bureau of Prisons (BOP) under 18 U.S.C. § 3582(c)(1)(A) and BOP Program Statement 5050.49. However, the BOP rejected Mr. Mills's request for reasons that will be explained below.

Under 18 U.S.C. § 3582(c)(1)(A),

18 U.S.C. § 3582(c)(1)(A)(i). The commentary to U.S.S.G. § 1B1.13 enumerates some of the circumstances in which "extraordinary and compelling reasons" would warrant such a reduction, including the deteriorating health of the defendant or the death of the caregiver of a defendant's minor child. U.S.S.G. § 1B1.13, Application Note 1(A)-(C). But in addition to the enumerated reasons, the commentary also empowers the Director of BOP to consider other circumstances that might warrant compassionate release. The commentary states that extraordinary and compelling reasons also exist when:

U.S.S.G. § 1B1.13, Application Note 1(D).

BOP Program Statement 5050.49 accomplishes what Application Note 1(D) authorizes. The Program Statement outlines a number of additional circumstances in which an inmate might qualify for compassionate release. Pertinent to this case, the Program Statement provides that "[i]nmates age 65 or older who have served the greater of 10 years or 75% of the term of imprisonment to which the inmate was sentenced" are eligible for a reduction in sentence. BOP Program Statement 5050.49, § 4.c.

In March of this year, Mr. Mills turned 65 years old and filed a request with BOP to file a compassionate release motion on his behalf. However, the BOP told Mr. Mills he was ineligible because, although he is 65 years old and has served 79% of the 240-month sentence imposed by this Court, he has served only 19% of the 30-month sentence for the supervised release violation. (Doc. 445 at 2). In other words, the BOP is treating Mr. Mills's 30-month revocation sentence as separate and distinct from his 240-month drug sentence for purposes of determining his eligibility for relief under BOP Program Statement 5050.49.

As a result, Mr. Mills has filed the instant Motion. Mr. Mills asks the Court to clarify "the sentence/judgment imposed in this case for the Bureau of Prisons (BOP) so that this sentence can be computed `coterminous' to the supervised release violation sentence" imposed by the District of New Jersey in 2004. (Doc. 445 at 1). Mr. Mills also contends the BOP is in error because it "refuses to aggregate [the 240-month and 30-month sentences] for `administrative purposes' as per [18 U.S.C.] § 3584(c) to allow for eligibility for Mills to apply for compassionate relief." (Id. at 3).

The Court construes Mr. Mills's first request, i.e., that the Court make the two sentences "coterminous," as a request to run the two sentences concurrently. To that extent, the Court lacks the power to grant such relief. The judge in the District of New Jersey who sentenced Mr. Mills to 30 months for violating the conditions of supervised release ordered that 15 of those months run consecutively with the sentence imposed by this Court. For this Court to order that both sentences run concurrently would be to override the other judge's sentence, which this Court cannot do.

However, the Court finds merit in Mr. Mills's second contention, i.e., that the BOP is in error by not aggregating his 240-month and 30-month sentences for purposes of calculating his eligibility for compassionate release under BOP Program Statement 5050.49. The relevant statute is unmistakable:

18 U.S.C. § 3584(c) (emphasis added). The phrase "for administrative purposes" "refers to the Bureau of Prisons' administrative duties, such as computing inmates' credit for time served." United States v. Llewlyn, 879 F.3d 1291, 1295 (11th Cir. 2018). Likewise, the computation of an inmate's good conduct time is also an "administrative purpose" governed by § 3584(c). See Pointer-Bey v. Rios, 413 F. App'x 895, 896 (7th Cir. 2011). The examples in Llewlyn and Pointer-Bey are analogous to the computation of whether an inmate has served enough of his sentence to qualify for compassionate release under the BOP's internal criteria, as set forth in Program Statement 5050.49, § 4.c. Thus, while the phrase "for administrative purposes" has not been exhaustively defined, it certainly seems to encompass the BOP's computation of whether an inmate has served 75% of his sentence for purposes of determining his eligibility for compassionate release.

Here, Mr. Mills is serving multiple terms of imprisonment — this Court's 240-month sentence and the District of New Jersey's 30-month sentence. The 30-month sentence is partially concurrent and partially consecutive with this Court's sentence. Section 3584(c) requires that the two sentences "be treated for administrative purposes as a single, aggregate term of imprisonment." As noted, that includes the calculation of whether Mr. Mills has served enough of his sentence to qualify for compassionate release. The BOP's rationale for rejecting Mr. Mills's request for compassionate release, which is that he has served only 19% of the 30-month revocation sentence, reflects that BOP has failed to treat the two terms of imprisonment as a single aggregate sentence, as 18 U.S.C. § 3584(c) requires. Thus, the BOP should aggregate his 240-month and 30-month sentences, such that they be treated as a single, 255-month2 sentence for purposes of computing whether he has served 75% of his sentence under BOP Program Statement 5050.49, § 4.c. This would mean that as of April 18, 2018, Mills will have served 191.25 months in custody, or 75% of his aggregated sentence, making him eligible for compassionate release consideration.

While given all the circumstances of Mr. Mills's situation, this Court would support a compassionate early release for Mr. Mills, ultimately, it is still within BOP's discretion to decide whether to move for compassionate release on his behalf. See Fernandez v. United States, 941 F.2d 1488, 1493 (11th Cir. 1991) (holding that the BOP's decision whether to seek compassionate release under the predecessor to § 3582(c)(1)(A)(i) was unreviewable); Crowe v. United States, 430 F. App'x 484, 485 (6th Cir. 2014) (the BOP has broad discretion in deciding whether to move for compassionate release under 18 U.S.C. § 3582(c)(1)(A)) (citations omitted). However, for purposes of determining his eligibility for compassionate release under its internal criteria, BOP must follow 18 U.S.C. § 3584(c) and treat his sentences "as a single, aggregate term of imprisonment."

Accordingly, it is hereby ORDERED:

DONE AND ORDERED.