Case: 10-13618        Date Filed: 08/07/2012        Page: 1 of 4

                                                                          [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT
                              ________________________

                                      No. 10-13618
                                ________________________

                         D.C. Docket No. 5:10-cv-244-JDW-GRJ

HIPOLITO CRUZ-PAGAN,

                                                                     Petitioner-Appellant,

                                              versus

WARDEN, FCC COLEMAN-LOW,

                                                                     Respondent-Appellee.

                                ________________________

                       Appeal from the United States District Court
                           for the Middle District of Florida
                             ________________________
                                   (August 7, 2012 )

Before MARCUS, COX and SILER,* Circuit Judges.

SILER, Circuit Judge:

       Hipolito Cruz-Pagan (Cruz) petitions for review the district court’s dismissal

of his petition for habeas corpus pursuant to 28 U.S.C. § 2241. We affirm.

       *
        Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by
designation.
              Case: 10-13618     Date Filed: 08/07/2012   Page: 2 of 4

                                         I.

                                         A.

      Cruz is an inmate at the Bureau of Prisons (BOP) Coleman-Low correctional

center in Florida. In March 2010, he filed a request for compassionate release.

      In April 2010, Cruz sent two emails to the Warden for an update on his request.

He received a written denial of his request on April 28. On April 30, the Warden

replied to Cruz’s emails and stated, “Your paperwork is being processed.”

                                         B.

      The BOP Administrative Remedy Program states an inmate may “seek formal

review of an issue relating to any aspect of his[] own confinement” through a three-

level appeal process. 28 C.F.R. § 542.10, et seq. Despite the BOP’s administrative

process, Cruz, pro se, filed a § 2241 petition in the district court after the Warden

denied his request. Cruz claimed the § 2241 petition was proper because there were

fraudulent improprieties in the administrative process, as evidenced in the

discrepancy between the written denial and the Warden’s email, which made the

process futile. The district court dismissed the petition for failure to exhaust

administrative remedies because exhaustion is jurisdictional. See Skinner v. Wiley,

, 1295 (11th Cir. 2004) (per curiam); Gonzalez v. United States, 

, 212 (11th Cir. 1992) (per curiam).

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      After the parties filed their appellate briefs, the Supreme Court ruled in

Gonzalez v. Thaler, 

, 648 (2012), that “[a] rule is jurisdictional if the

Legislature clearly states that a threshold limitation on a statute’s scope shall count

as jurisdictional. But if Congress does not rank a statutory limitation on coverage as

jurisdictional, courts should treat the restriction as nonjurisdictional.” (quotation

marks and citations omitted). Since Congress did not place an administrative

exhaustion requirement in § 2241, the parties argue that exhaustion is “a mandatory

but nonjurisdictional” rule. 

oral argument we requested additional briefing on whether Cruz could

pursue his petition under 18 U.S.C. § 3582(c)(1).

                                           II.

      We review § 2241 petitions de novo. 

.

                                           III.

      Whether our Gonzalez and Skinner line of cases, regarding the jurisdictional

impact of administrative exhaustion, was overruled is a question for another case.

The holding in the Supreme Court’s Gonzalez opinion was that 28 U.S.C. §

2253(c)(3), did not have a jurisdictional 

. Since that

statute is not at issue here, we cannot say that our Gonzalez and Skinner line of cases

was overruled.

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      Federal courts must have authority to grant a § 2241 petition and 18 U.S.C. §

3582(c)(1) is a source of that authority. But under § 3582(c)(1)(A), a court cannot

reduce a prisoner’s sentence except “upon [the] motion of the Director of the [BOP]”

and a finding that “extraordinary and compelling reasons warrant” a reduction. The

plain meaning of this section requires a motion by the Director as a condition

precedent to the district court before it can reduce a term of imprisonment. The BOP

has not made a motion on Cruz’s behalf. Accordingly, we do not have the authority

to modify his sentence under § 3582(c)(1)(A). See Fernandez v. United States, 

, 1492-93 & n.10 (11th Cir.1991) (The BOP’s decision whether to seek a

compassionate release under the predecessor to § 3582(c)(1)(A)(i) is not reviewable).

      Under 18 U.S.C. § 3582(c)(1)(B), courts “may modify” a sentence only “to the

extent otherwise expressly permitted by statute” or Federal Rule of Criminal

Procedure 35. Cruz has not cited a case, statute, or rule of procedure that gives us the

authority to modify his sentence. He admits his § 2241 petition cannot provide him

compassionate release but argues that a hearing should be held anyway. But without

a motion from the Director, a precedential case, an authorizing statute, or an

authorizing Rule granting us subject-matter jurisdiction, we cannot modify his

sentence. Therefore, Cruz’s petition is dismissed.

      AFFIRMED.

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