NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            ____________

                                No. 12-4597
                               _____________

                           BENJAMIN D. SHARE,
                                         Appellant

                                      v.

               JEFFREY KRUEGER, Warden, FCI - Schuylkill
                          _____________

                On Appeal from the United States District Court
                    for the Middle District of Pennsylvania
                       District Court No. 3-12-cv-02495
                District Judge: The Honorable James J. Munley

                         Argued November 21, 2013

          Before: AMBRO, SMITH and CHAGARES, Circuit Judges

                           (Filed: January 23, 2014)

William C. Costopoulos [Argued]
Costopoulos, Foster & Fields
831 Market Street
P.O. Box 222
Lemoyne, PA 17043
      Counsel for Appellant

Kate L. Mershimer [Argued]
Office of United States Attorney
228 Walnut Street
P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
        Counsel for Appellee
                               _____________________

                                      OPINION
                               _____________________

SMITH, Circuit Judge.

        In September of 2005, Benjamin D. Share pleaded guilty in the midst of a

jury trial to one count of conspiring to defraud the United States by receiving and

giving illegal gratuities, committing wire fraud and money laundering in violation

of 18 U.S.C. § 371, and one count of obstruction of justice in violation of 18

U.S.C. § 1503. See United States v. Share, 223 F. App’x. 103, 105 (3d Cir. 2007).

Thereafter, the United States District Court for the Middle District of Pennsylvania

adopted the presentence report and imposed a sentence of 60 months on each

count, to run consecutively. Share unsuccessfully challenged his sentence.

        Share is now “over 84 years of age” and “has served over two-thirds of his

sentence.” In his view, he is “suffering from a combination of serious and chronic

physical maladies which . . . all but put him in the ‘terminal stage’ by any

reasonable medical definition.” Because of his alleged “terminal” condition, Share

sought compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i).1 The Warden at


1
    Section 3582(c)(1)(A)(i) provides:

        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, may reduce the term of
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FCI Schuylkill, however, determined that Share was a “stable chronic care

individual” and denied the request.

      Thereafter, in December of 2012, Share filed a petition pursuant to 28

U.S.C. § 2241 in the United States District Court for the Middle District of

Pennsylvania. He asserted that he was attacking neither his conviction nor his

sentence. Instead, he claimed that he was challenging the execution of his sentence

by “proceeding under an independent action before the Court to secure his release

for home confinement” and “seeking review of the [BOP]’s apparent or deemed

denial of his request for compassionate release/relief” under § 3582(c)(1)(A)(i).

According to Share, the Bureau of Prisons (BOP) has “failed to provide and/or

sufficiently and adequately provide treatment for his serious, chronic and likely

terminal medical maladies, particularly in light of his advanced age of over 84

years, all in violation of his 8th Amendment constitutional rights.”

      In a decision issued on December 26, 2012, the District Court dismissed that

portion of the petition challenging the adequacy of Share’s medical care without


      imprisonment (and may impose a term of probation or supervised
      release with or without conditions that does not exceed the unserved
      portion of the original term of imprisonment), after considering the
      factors set forth in section 3553(a) to the extent that they are
      applicable, if it finds that (i) extraordinary and compelling reasons
      warrant such a reduction.

18 U.S.C. § 3582(c)(1)(A)(i) (emphasis added).

                                          3
prejudice to asserting the claim in a civil rights action. With regard to the request

for compassionate release, the District Court acknowledged that 18 U.S.C.

§ 3582(c)(1)(A)(i) allows the Court to grant relief if a motion is in fact filed by the

BOP. This statutory section, the Court concluded, vested the BOP with broad

discretion in deciding whether to seek a modification of a prisoner’s sentence on

compassionate release grounds. The Court found persuasive the position of other

courts that the “BOP’s decision regarding whether or not to file a motion for

compassionate release is judicially unreviewable.” Share’s counsel filed a notice

of appeal the following day.2

      Share’s counsel correctly acknowledged at oral argument that he cannot

prevail under the compassionate release provision in 18 U.S.C. § 3582(c)(1)(A)(i).

Indeed, without a motion from the BOP, the district courts have no authority to

reduce a federal inmate’s sentence based on special circumstances. See United

States v. Smartt, 

, 540 (10th Cir. 1997).

      Rather, counsel confirmed that he sought an expansion of this court’s

decision in Woodall v. Fed. Bureau of Prisons, 

(3d Cir. 2005), which

would include inadequate medical treatment as a basis for relief under § 2241.

Counsel’s request, however, fails to account for our decision in Cardona v.


2
 We have jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291 and 2253(a).
We exercise plenary review over a district court’s “dismissal of a habeas petition
on jurisdictional grounds.” Cardona v. Bledsoe, 

, 535 (3d Cir. 2012).
                                          4
Bledsoe, 

(3d Cir. 2012).

      In Cardona, we considered whether the prisoner’s suit should have been

maintained as an action under § 2241 or a civil rights action under Bivens.

Cardona challenged his placement in the Special Management Unit of the

correctional facility in which he was housed. We pointed out that a § 2241 petition

must challenge the execution of the prisoner’s sentence.          

   We

acknowledged that the “precise meaning of ‘execution of the sentence’ is hazy”

and that in Woodall we “defined execution as meaning to put into effect or carry

out.” 

(quoting 

) (internal

quotation marks omitted). We noted that the § 2241 petitions in Woodall and

McGee v. Martinez, 

, 936-37 (3d Cir. 2010), “challenged BOP

conduct that conflicted with express statements in the applicable sentencing

judgment.” 

. Thus, we concluded that “[i]n order to

challenge the execution of his sentence under § 2241, Cardona would need to

allege that BOP’s conduct was somehow inconsistent with a command or

recommendation in the sentence judgment.”         

  Because Cardona’s

petition did not allege such an inconsistency, and because it did not concern how

the BOP was “‘carrying out’ or ‘putting into effect’ his sentence, as directed in his

sentencing judgment,” we concluded that Cardona’s “claims were not properly

brought” under § 2241. 

as in Cardona, there is no inconsistency between the BOP’s conduct

and the District Court’s judgment. Because the BOP is carrying out the sentence

imposed by the District Court, we conclude that Share’s petition does not concern

the execution, the carrying out, nor the putting into effect of his sentence.

. Accordingly, Share’s petition, despite the title it bears,

is not properly brought as a § 2241 petition. For that reason, the District Court did

not err in dismissing it.3 Accordingly, we will affirm the judgment of the District

Court.




3
  Share’s petition does not assert a claim under 28 U.S.C. § 2255. It neither seeks
to invalidate Share’s convictions nor challenges the duration of his sentence.
Leamer v. Fauver, 

, 542 (3d Cir. 2002); see also Muhammad v. Close,

, 750 (2004) (instructing that “[c]hallenges to the validity of any
confinement or to particulars affecting its duration are the province of habeas
corpus”).
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