In United States v. Keller, --- F.3d ---, No. 20-50247 (9th Cir. 2021), the Court held that the administrative exhaustion requirement in § 3582(c)(1)(A)(i) is a mandatory claim-processing rule that a district court must enforce when properly invoked.
Under 3582, a defendant may seek a sentencing reduction directly from the district court provided that “the defendant has fully exhausted all administrative rights to appeal a failure of the [BOP] 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.”
"In other words, a court may not consider a motion brought under § 3582(c)(1)(A) unless (1) the Director of the BOP has filed the motion on the inmate’s behalf, or (2) the inmate has requested that the BOP make such a motion and either (a) the inmate has “fully exhausted all administrative rights to appeal a failure of the [BOP] to bring a motion on the [inmate]’s behalf,” or (b) 30 days have elapsed since the “warden of the [inmate]’s facility” received a compassionate-release request from the inmate."
The Court held this exhaustion requirement was not jurisdictional, but was instead a mandatory claim-processing rule. Thus, if the government raises a lack of exhaustion, the district court must enforce it (as a corollary, the government can waive exhaustion by failing to raise it).
"Joining the unanimous consensus of our sister circuits, we hold that § 3582(c)(1)(A)’s administrative exhaustion requirement imposes a mandatory claim-processing rule that must be enforced when properly invoked." And it means exhaustion must happen before the defendant files the motion (not before the district court rules on it).
Of note, the Court also seemed to conclude that exhaustion applies to each compassionate release motion a defendant files. So, if the defendant exhausted and then filed a motion, which was denied, the defendant must exhaust again before filing a second motion.
"Keller asserts that he fully exhausted his administrative remedies for his second motion because 30 days had passed since he lodged his first administrative request with the warden in July 2020. But the July 2020 request served as the predicate for Keller’s first motion in the district court, which was denied in September 2020, and could not have initiated the administrative process for his January 2021 motion, which was itself premised on Keller’s claim of changed circumstances."
