UNITED STATES v. ARZOLA AMAYA (2023)

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S COMPASSIONATE RELEASE MOTION

Defendant Audelio Arzola-Amaya, with appointed counsel's assistance, asks the Court to grant him compassionate release under 18 U.S.C. § 3582(c)(1)(A)—that is, to reduce his life sentence to time served. As explained below, however, Defendant committed his offenses before November 1, 1987, so he's statutorily ineligible to move for compassionate release on his own behalf. Only the Federal Bureau of Prisons (“BOP”) has the power to ask the Court to release Defendant from prison,¹ and BOP has declined to do so. The Court therefore DENIES Defendant's Motion.

I. BACKGROUND

Defendant is serving a life sentence for conducting a continuing criminal enterprise.² The Court need not recount the facts of Defendant's offenses to resolve his Motion; the single dispositive fact is that he committed them before November 1, 1987.³

Defendant previously asked BOP to file a motion for compassionate release on his behalf, and BOP declined his request.⁴ Having failed to obtain relief through that administrative avenue, Defendant now asks the Court to release him from prison under § 3582(c)(1)(A).⁵

II. DISCUSSION

A. Compassionate Release Under 18 U.S.C. § 3582(c)(1)(A)

A federal court ordinarily “may not modify a term of imprisonment once it has been imposed.”⁶ Subject to various conditions, however, § 3582(c)(1)(A) authorizes a district court to grant a defendant compassionate release—i.e., “reduce [his] term of imprisonment”—if he proves that “extraordinary and compelling reasons warrant such a reduction.”⁷

Until recently, § 3582(c)(1)(A) only authorized BOP to move for compassionate release on a defendant's behalf; defendants had no power to file their own compassionate release motions.⁸ In 2018, however, Congress enacted the First Step Act (“FSA”),⁹ which (among other things) amended § 3582(c)(1)(A) to authorize eligible defendants to file their own compassionate release motions ¹⁰ after exhausting their administrative remedies with BOP.¹¹

B. Section 3582(c)(1)(A) Doesn't Apply to Pre-November 1, 1987 Offenders

Notably, however, § 3582(c)(1)(A) hasn't always been the federal statute that governs compassionate release. “From 1976 to 1984,” a different statute—18 U.S.C. § 4205(g)—“defined the procedures through which inmates could gain compassionate release.”¹² Although § 4205(g) authorized courts to “reduce any minimum term” of imprisonment “to the time the defendant ha[d] served,” it only allowed courts to grant such relief “upon motion of [BOP].”¹³ Thus, like the pre-2018 version of § 3582(c)(1)(A)—but unlike the post-2018 version—§ 4205(g) didn't authorize defendants to move for compassionate release on their own behalf; only BOP could move to reduce a defendant's sentence under § 4205(g).¹⁴

Congress codified § 4205(g) in Chapter 311 of Title 18 of the U.S. Code, which was the chapter that governed parole in federal criminal cases.¹⁵ By the 1980s, however, Congress became increasingly dissatisfied with the federal parole system.¹⁶ Thus, in 1984, Congress enacted the Sentencing Reform Act (“SRA”), which (among other things) abolished federal parole.¹⁷ The SRA accordingly repealed Chapter 311 in its entirety, including § 4205(g).¹⁸ At the same time, Congress enacted § 3582(c)(1)(A), which took § 4205(g)’s place as the statutory provision governing compassionate release.¹⁹

But even though Congress repealed § 4205(g) and Chapter 311's other parole-related provisions, Congress didn't completely inter them. Congress instead provided that for defendants who committed ²⁰ an offense before the SRA's November 1, 1987 effective date,²¹ Chapter 311—including § 4205(g)—would “remain in effect for five years.”²² Congress then repeatedly extended that five-year period numerous times thereafter.²³ Congress passed the most recent of those extensions on September 30, 2023 as part of a stopgap bill to avert a government shutdown.²⁴ As of the time of this writing, both houses of Congress have passed a bill extending the expiration date even further, and commentators anticipate that the President will sign that bill into law.²⁵ Section 4205(g) has therefore never expired as to offenders who committed offenses before November 1, 1987; the provision instead exists in what one court has called “a state of permanent impermanence.”²⁶

Congress didn't just keep § 4205(g) in effect as to pre-November 1, 1987 offenders; Congress also explicitly specified that § 3582(c)(1)(A)’s new compassionate release provisions would not apply to defendants who committed their crimes before that date. Congress did that by amending the SRA in 1987 to specify that certain SRA provisions—including § 3582(c)(1)(A)—would “apply only to offenses committed after” the SRA's November 1, 1987 effective date.²⁷

Critically, when Congress enacted the FSA in 2018—and thereby let post-November 1, 1987 offenders file their own compassionate release motions under § 3582(c)(1)(A)—Congress didn't make similar amendments to § 4205(g).²⁸ Congress thereby established a “two-track regime” for compassionate release.²⁹ Defendants who committed their offenses after November 1, 1987 are subject to § 3582(c)(1)(A) (as amended by the FSA), and thus may file their own compassionate release motions. Defendants who committed their offenses before November 1, 1987, by contrast, remain subject to § 4205(g), and can't file their own compassionate release motions; only BOP can move for compassionate release on a pre-November 1, 1987 offender's behalf.³⁰

Notably, although legislators have introduced bills in the past three Congresses to eliminate this two-track system and let pre-November 1, 1987 offenders file their own compassionate release motions under § 3582(c)(1)(A), Congress hasn't passed any of them.³¹

C. Defendant Committed His Offenses Before November 1, 1987, So He Can't Move for Compassionate Release on His Own Behalf

Defendant committed his offenses before November 1, 1987.³² Section 4205(g) therefore governs Defendant's compassionate release motion instead of § 3582(c)(1)(A).³³

Defendant—not BOP—filed the Motion for Compassionate Release that is currently before the Court.³⁴ Pre-November 1, 1987 offenders have no statutory authority to file their own compassionate release motions under § 4205(g),³⁵ so the Court must deny Defendant's Motion.³⁶

D. Defendant's Counterarguments Are Unavailing

Defendant's arguments to the contrary lack merit.

1. Section 3582(c)(1)’s “In Any Case” Language Doesn't Empower Him to File His Own Compassionate Release Motion

Defendant first maintains that barring pre-November 1, 1987 offenders from filing their own compassionate release motions is “irreconcilable with the plain language of § 3582(c)(1)(A).”³⁷ He bases that argument on § 3582(c)(1)’s language authorizing defendants to file their own compassionate release motions “in any case.”³⁸ If, Defendant argues, § 3582(c)(1)(A) applies “ ‘in any case,’ without limitation,” then the FSA's provision empowering defendants to file their own compassionate release motions likewise applies “in any case,” no matter when the defendant committed his crimes.³⁹

Although Defendant is correct that the SRA states generally that § 3582(c)(1) applies “in any case,” the SRA also states more specifically that § 3582(c)(1) “appl[ies] only to offenses committed after” November 1, 1987.⁴⁰ Where, as here, a statute contains two provisions bearing on the same subject—one general, and one specific—a court must interpret the statute so that the general provision doesn't swallow the specific one.⁴¹ The SRA's more specific command that § 3582(c)(1) “appl[ies] only to offenses committed after” November 1, 1987 therefore modifies the SRA's more general statement that § 3582(c)(1) applies “in any case.” In other words, to give full effect to both SRA provisions, the Court must interpret § 3582(c)(1) to apply “in any case” in which the defendant committed an “offense[ ] ․ after” November 1, 1987.⁴²

Defendant's “in any case” argument might have more force if Congress added that language when it passed the FSA in 2018. One might then infer that Congress added that phrase to override the anti-retroactivity provision it enacted in 1987—that is, to supersede the SRA's provision making § 3582(c)(1) applicable to post-November 1, 1987 offenders only.⁴³ But the “in any case” language has been in the statute since Congress first passed it in 1984.⁴⁴ Consequently, when Congress amended the statute in 1987 to make § 3582(c)(1) “apply only to offenses committed after” November 1, 1987, that subsequent amendment narrowed the otherwise unlimited scope of the pre-1987 “in any case” language.⁴⁵ Then, when Congress passed the FSA in 2018, it left the anti-retroactivity provision that it added in 1987 in place.⁴⁶ There's thus no reason to think that Congress intended the “in any case” language from 1984 to nullify the anti-retroactivity provision that Congress didn't add to the SRA until three years later.

2. The Court's Holding Comports with the Legislative History and Purpose

Defendant also advances several arguments based on the FSA's history and purpose. In Defendant's view, the fact that Congress didn't make corresponding amendments to § 4205(g) when it amended § 3582(c)(1) in 2018 doesn't necessarily mean that Congress “intended to limit the [FSA's] changes to those inmates whose conduct occurred after 1987”; the more likely inference, according to Defendant, is “that Congress intended for § 3582(c) to stand on its own going forward, and no longer be burdened by the [SRA]’s references to § 4205.”⁴⁷

But if Congress didn't want § 4205(g) to still apply to pre-November 1, 1987 offenders, Congress presumably wouldn't have extended § 4205(g)’s expiration date no fewer than six times after it passed the FSA.⁴⁸ The fact that Congress has consistently renewed § 4205(g) without ever letting it expire suggests that Congress still wants § 4205(g)—not § 3582(c)(1)(A)—to govern pre-November 1, 1987 offenders.⁴⁹

The presumption that Congress legislates with an awareness of how courts are interpreting its statutes bolsters that conclusion.⁵⁰ Every post-FSA extension of § 4205(g)’s expiration date occurred against a backdrop of virtually unanimous case law holding that pre-November 1, 1987 offenders are subject to § 4205(g) rather than § 3582(c)(1)(A).⁵¹ The fact that Congress, in the face of that prevailing judicial interpretation, repeatedly renewed § 4205(g) without change suggests that Congress intended to ratify the existing case law relegating pre-November 1, 1987 offenders to relief under § 4205(g).⁵²

Defendant protests that interpreting the statute this way undermines Congress's policy objectives. According to Defendant, Congress passed the FSA “to dramatically expand the availability of sentence reductions” under the compassionate release statutes.⁵³ In Defendant's view, there's no obvious reason “why Congress would have wanted to extend that privilege to prisoners” who committed offenses after 1987 but not those who committed offenses before.⁵⁴ After all, as Defendant correctly observes, defendants who remain incarcerated for pre-1987 offenses are among the oldest, feeblest, and longest-serving members of the prison population, and thus may be “precisely the type of inmate[s] for whom” compassionate release “appear[s] designed.”⁵⁵

But the policy rationale for treating that class of defendants differently becomes much clearer once one understands why Congress drew a line at November 1, 1987 in the first place. Congress was concerned that applying the SRA's package of new criminal laws to defendants who committed their offenses before the SRA's effective date could violate the Constitution's Ex Post Facto Clause.⁵⁶ But rather than going subsection-by-subsection to determine which SRA provisions would be constitutional to apply to pre-November 1, 1987 offenders—and run the risk of getting it wrong—Congress sensibly decided to make most of the SRA's new provisions (including § 3582(c)(1)(A)) prospective only.⁵⁷ It therefore doesn't matter whether retroactively applying § 3582(c)(1)(A) to pre-November 1, 1987 offenders would itself violate the Ex Post Facto Clause;⁵⁸ Congress made most of the SRA non-retroactive across the board to relieve courts of the burden of conducting any such provision-by-provision analysis.⁵⁹

In sum, Congress made a deliberate, considered, and rational decision to keep pre-November 1, 1987 offenders subject to the compassionate release and parole laws that existed when they committed their crimes, rather than a new compassionate release statute that they couldn't have foreseen Congress enacting.⁶⁰ Congress then chose not to make corresponding amendments to the old law when it amended the new law in 2018 to let post-November 1, 1987 offenders file their own compassionate release motions. The Court may not second-guess or disregard those legislative judgments.

Thus, the statutes’ text, history, and underlying policies all support the same conclusion: pre-November 1, 1987 offenders like Defendant are subject to § 4205(g) instead of § 3582(c)(1)(A), and therefore can't file their own compassionate release motions. Denying Defendant's self-filed compassionate release motion thus comports fully with Congress's intent.

E. The Court Will Enforce the Eligibility Bar Against Defendant Despite the Government's Putative “Waiver”

Although the Court would ideally end its analysis there, this case presents a peculiar wrinkle. Apparently under the misimpression that § 4205(g) authorizes pre-November 1, 1987 offenders to move for compassionate release on their own behalf,⁶¹ the Government's Supplemental Response to Defendant's Motion purports to “waive[ ] any objection to the procedural technicality of filing the compassionate release reduction motion[ ] pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), instead of 18 U.S.C.A. § 4205.”⁶² Defendant asks the Court to honor that waiver and analyze the Motion under § 3582(c)(1)(A), as if he were a post-November 1, 1987 offender eligible to file his own compassionate release motion.⁶³

Skeptical that the Government, through its litigation conduct, could empower Defendant to file his own compassionate release motion despite Congress's unambiguous decision to deny him that privilege,⁶⁴ the Court ordered Defendant's appointed counsel to file a Supplemental Reply analyzing whether “a pre-November 1, 1987 offender's ineligibility for relief under § 3582(c)(1)(A) is a jurisdictional obstacle that the Government can't waive, and which the Court must enforce sua sponte.”⁶⁵

With the benefit of Defendant's supplemental briefing, the Court now agrees with Defendant that the Court at least has jurisdiction to consider his self-filed compassionate release motion. Nevertheless, the Court will still enforce the eligibility bar despite the Government's putative waiver.

1. The Eligibility Bar is Nonjurisdictional

The fact that federal law forbids pre-November 1, 1987 offenders from filing their own compassionate release motions doesn't necessarily mean that courts lack jurisdiction to decide such self-filed motions.⁶⁶ “Characterizing a rule as a limit on subject-matter jurisdiction renders it unique in our adversarial system”⁶⁷ because jurisdictional limitations divest the federal courts of power to issue any ruling in the case whatsoever.⁶⁸ For that reason, “[j]urisdictional requirements cannot be waived or forfeited,”⁶⁹ and federal courts must generally enforce their jurisdictional boundaries sua sponte ⁷⁰ —even at late stages of the litigation, where doing so could be disruptive, wasteful, inefficient, or unfair.⁷¹

Because deeming a rule jurisdictional has such momentous practical consequences, courts don't “treat a procedural requirement as jurisdictional” unless “Congress ‘clearly states’ that it is.”⁷² Although Congress needn't “incant magic words” to make a statutory requirement jurisdictional,⁷³ courts generally conclude that a statutory provision is nonjurisdictional if it “neither speaks in jurisdictional terms nor refers in any way to the jurisdiction of the courts.”⁷⁴

Even when a statute does use the word “jurisdiction,” that still doesn't necessarily amount to a “clear statement” that Congress meant to make that requirement jurisdictional.⁷⁵ An illustrative example is § 6330(d)(1) of the Internal Revenue Code, which imposes a 30-day deadline to petition the United States Tax Court to review certain Internal Revenue Service determinations.⁷⁶ Section 6330(d)(1) explicitly references the Tax Court's jurisdiction:

The person may, within 30 days of a determination under this section, petition the Tax Court for review of such determination (and the Tax Court shall have jurisdiction with respect to such matter).77

Notwithstanding the provision's express reference to “jurisdiction,” the Supreme Court ruled in Boechler, P.C. v. Commissioner of Internal Revenue that § 6330(d)(1)’s 30-day time limit is a nonjurisdictional deadline.⁷⁸ Boechler explained that even if a section of a statute contains the word “jurisdiction” or one of its variants, that doesn't necessarily mean that every single provision in that section is jurisdictional.⁷⁹ Indeed, a statutory requirement isn't necessarily jurisdictional even if it appears in “the same sentence” as a jurisdictional provision.⁸⁰ Only when there is “a clear tie between the [statutory requirement] and the jurisdictional grant” should a court deem that requirement jurisdictional.⁸¹

Applying those principles to § 6330(d)(1), the Boechler Court determined that the provision was susceptible to “multiple plausible interpretations,” “only one of which [was] jurisdictional.”⁸² It therefore wasn't clear that Congress intended to make the 30-day deadline jurisdictional—and, thus, the Court declared the deadline nonjurisdictional.⁸³

The Boechler Court reached that conclusion even though a reasonable reader could well find that the jurisdictional interpretation was the more plausible one.⁸⁴ As the Court explained, however, “[t]o satisfy the clear-statement rule,” “better is not enough.”⁸⁵ For a court to adopt a jurisdictional interpretation of a statutory requirement, the jurisdictional reading “must be not only better, but also clear.”⁸⁶ Because § 6330(d)(1) did not clearly specify that its 30-day filing deadline was jurisdictional, the Supreme Court rejected the jurisdictional reading.⁸⁷

Boechler compels a similar conclusion here. Like § 6330(d)(1), § 4205(g) explicitly refers to a court's “jurisdiction.” In its entirety, § 4205(g) states:

At any time upon motion of the Bureau of Prisons, the court may reduce any minimum term to the time the defendant has served. The court shall have jurisdiction to act upon the application at any time and no hearing shall be required.88

But also like § 6330(d)(1), § 4205(g) is susceptible to at least two plausible interpretations—one jurisdictional, the other not. One might interpret § 4205(g)’s statement that “[t]he court shall have jurisdiction to act upon” a “motion of the Bureau of Prisons” to imply that if BOP doesn't file such a motion, the court lacks jurisdiction over any motion that a pre-November 1, 1987 offender might file himself. But one could just as easily read the second sentence of § 4205(g) not as demarcating a district court's jurisdiction, but rather as merely empowering the district court to rule on a compassionate release motion without holding a hearing.⁸⁹ Because neither of those interpretations strikes this Court as obviously correct, the Court can't attribute to Congress a clear desire to wholly divest the federal courts of jurisdiction over compassionate release motions that pre-November 1, 1987 offenders file themselves—as opposed to merely a desire to

(1) designate BOP as the only entity that may validly file such motions; and

(2) allow courts to rule on those motions without a hearing.90

In other words, Congress hasn't made it “unmistakably” clear that it intended § 4205(g) to divest federal courts of jurisdiction over compassionate release motions by pre-November 1, 1987 offenders, so the Court won't interpret § 4205(g) to do so.⁹¹

The Court is aware that many out-of-Circuit district court cases have reached the opposite conclusion that § 4205(g)’s eligibility bar is in fact jurisdictional—or, at the very least, have described § 4205(g) in jurisdictional terms.⁹² As the Supreme Court has cautioned, however, federal courts “more than occasionally misuse[ ] the term ‘jurisdictional’ to refer to nonjurisdictional prescriptions.”⁹³ The Supreme Court has therefore admonished lower courts to be wary of “drive-by jurisdictional ruling[s]” that merely “describe[ ] something ․ as jurisdictional” “without elaboration.”⁹⁴

The “drive-by jurisdictional ruling” sobriquet aptly describes the above-cited cases characterizing § 4205(g) as jurisdictional. None of those cases analyzes why the applicable statutes’ language satisfies the Supreme Court's demanding clear-statement test—in fact, none of those cases even mentions the clear-statement requirement at all.⁹⁵ Thus, to the extent those cases suggest that § 4205(g) divests courts of jurisdiction to decide compassionate release motions filed by pre-November 1, 1987 offenders (as opposed to merely supplying a reason to deny such motions on the merits), the Court respectfully finds those cases unpersuasive.

2. The Court Will Nonetheless Enforce the Eligibility Bar

But even though § 4205(g)’s eligibility bar is nonjurisdictional, that doesn't necessarily mean that it's waivable. Binding precedent from analogous contexts suggests that the Court should enforce § 4205(g)’s limitations on who may file a compassionate release motion even though the Government has purported to “waive” those limitations here.

a. Section 4205(g) Isn't a Waivable Claim-Processing Rule

Nonjurisdictional statutory requirements come in several flavors.⁹⁶ Some nonjurisdictional conditions are “claim-processing rules,” which “seek to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times.”⁹⁷ A paradigmatic example of a nonjurisdictional claim-processing rule is an exhaustion requirement—that is, a statutory provision that requires litigants to take specified actions before filing suit (such as first seeking relief from an administrative agency).⁹⁸

Besides being nonjurisdictional, exhaustion requirements are also generally waivable.⁹⁹ “[E]xhaustion promotes efficiency” by “encouraging parties to resolve their disputes without litigation.”¹⁰⁰ If, counterfactually, exhaustion requirements were jurisdictional (and therefore nonwaivable), litigants would have to “slog through preliminary nonjudicial proceedings even when, for example, no party demands it or a court finds it would be pointless, wasteful, or too slow.”¹⁰¹ So, generally speaking, if a claimant fails to exhaust his administrative remedies before filing suit, but his opponent fails to promptly call that failure to the court's attention, the court needn't enforce the exhaustion requirement sua sponte.¹⁰²

The Fifth Circuit has applied those general principles in the compassionate release context. Section 3582(c)(1)(A) contains its own administrative exhaustion requirement that a post-November 1, 1987 offender must satisfy before filing his own compassionate release motion in federal court.¹⁰³ The Fifth Circuit has held, however, that § 3582(c)(1)(A)’s “requirement that a defendant file a request with the BOP before filing a motion in federal court is a nonjurisdictional claim-processing rule.”¹⁰⁴ Consequently, “the Government must properly raise” § 3582(c)(1)(A)’s administrative exhaustion requirement “before it will be enforced.”¹⁰⁵

At the same time, however, the Fifth Circuit has also held that a district court should enforce certain other nonjurisdictional compassionate release prerequisites that aren't claim-processing rules, even if the Government fails to raise them. For example, before a post-November 1, 1987 offender may obtain compassionate release under § 3582(c)(1)(A), he must persuade the district court that reducing his sentence would comport with various sentencing factors enumerated in 18 U.S.C. § 3553(a).¹⁰⁶ In Ward v. United States, however, the Government failed to address the § 3553(a) factors in its response to the appellant's compassionate release motion.¹⁰⁷ The district court nonetheless considered the § 3553(a) factors sua sponte, determined that those factors counseled against reducing the appellant's sentence, and denied her motion accordingly.¹⁰⁸ The movant in Ward argued on appeal that “the district court abused its discretion by denying [her] motion based on arguments not advanced by the Government,” but the Fifth Circuit disagreed.¹⁰⁹ Because a “district court is obligated to consider the Section 3553(a) factors before deciding whether to order compassionate release,” the Fifth Circuit reasoned, “the Government's failure to make arguments about the factors” does not “cancel[ ] the [court's] statutory obligation to consider them.”¹¹⁰ In other words, held the Fifth Circuit, the Government cannot “waive[ ] reliance on the Section 3553(a) factors” and thereby “block a district court[ ] [from] consider[ing]” them.¹¹¹

Critically, the Ward court didn't base its holding that the § 3553(a) factors are nonwaivable on a finding that the § 3553(a) factors are jurisdictional.¹¹² Nor would it have been correct for the Fifth Circuit to do so, as the provision of § 3582(c)(1)(A) commanding courts to consider the § 3553(a) factors “neither speaks in jurisdictional terms nor refers in any way to the jurisdiction of the courts.”¹¹³ Ward thus demonstrates that the mere fact that a provision of a compassionate release statute is nonjurisdictional doesn't necessarily mean it's also nonwaivable.

What, then, is the relevant difference between § 3582(c)(1)(A)’s nonjurisdictional administrative-exhaustion requirement (which is waivable) and its equally nonjurisdictional requirement to consider the § 3553(a) factors (which is not)? Although Ward doesn't answer that question expressly, the italicized portions of the following excerpt from Ward strongly suggest that the critical distinction is that the exhaustion requirement is a claim-processing rule:

Our analysis so far does not constitute a holding that the Government cannot forfeit or waive some arguments against compassionate release. For example, the administrative-exhaustion requirement is a non-jurisdictional but mandatory claim-processing rule. Like other claim-processing rules, the Government must properly raise the rule before it will be enforced. Similarly, an objection based on a mandatory claim-processing rule may be forfeited if the party asserting the rule waits too long to raise the point.114

The statutory requirement to consider the § 3553(a) factors, by contrast, isn't a claim-processing rule, because it doesn't require litigants to “take certain procedural steps at certain specified times.”¹¹⁵ To the contrary, the § 3553(a) provision doesn't require any parties to take any steps at any time; it just specifies the criteria that the court must evaluate when deciding whether compassionate release is appropriate.¹¹⁶

Applying that logic here, § 4205(g)’s provision making BOP the only entity authorized to file compassionate release motions for pre-November 1, 1987 offenders is much more like § 3582(c)(1)(A)’s nonwaivable requirement to consider the § 3553(a) factors than the waivable administrative exhaustion requirement because it isn't a mere claim-processing rule.¹¹⁷ Section 4205(g) isn't, for example, an administrative-exhaustion requirement that a movant must satisfy before pursuing judicial relief; if a pre-November 1, 1987 offender fails to convince BOP to file a compassionate release motion on his behalf, the statute gives him no judicial remedy.¹¹⁸ That is, § 4205(g) doesn't specify steps that pre-November 1, 1987 offenders must take before filing their own compassionate release motions in a federal court; it categorically bars them from filing their own compassionate release motions at all.¹¹⁹ Because § 4205(g) isn't a claim-processing rule, Ward suggests that the Government can't “block a district court[ ]” from “complying, unbidden,” with Congress's unequivocal directive that only BOP can file a compassionate release motion on a pre-November 1, 1987 offender's behalf.¹²⁰

b. The Government's Waiver Wasn't Deliberate and Intelligent

The Supreme Court's decision in Day v. McDonough further supports enforcing § 4205(g)’s nonjurisdictional eligibility bar against Defendant here.¹²¹

As background, the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes a one-year deadline by which a state prisoner may petition a federal court for a writ of habeas corpus.¹²² Like § 4205(g), AEDPA's one-year limitations period “is not jurisdictional,” so “courts are under no obligation to raise [AEDPA's] time bar sua sponte.”¹²³

In Day, a state prisoner filed a habeas corpus petition outside that one-year window.¹²⁴ The State of Florida, however, miscalculated the applicable limitations period.¹²⁵ Thus, in its answer to the prisoner's petition, the State erroneously “agreed the petition was timely.”¹²⁶ The district court nonetheless double-checked the State's math and discovered that the petition was in fact untimely.¹²⁷ The district court thus dismissed the petition as time-barred—notwithstanding the State's erroneous concession to the contrary.¹²⁸

The Supreme Court affirmed the district court's decision to “correct the State's error and ․ dismiss the petition as untimely.”¹²⁹ Although the district court was “under no obligation to raise the time bar sua sponte” because the one-year limitations period was “not jurisdictional,” the district court was nonetheless “permitted ․ to consider, sua sponte, the timeliness of [the] state prisoner's habeas petition.”¹³⁰ “[I]f a judge ․ detects a clear computation error,” the Supreme Court reasoned, “no Rule, statute, or constitutional provision commands the judge to suppress that knowledge.”¹³¹

The Day Court acknowledged that the district court would have abused its discretion if, counterfactually, the district court “overr[o]de a State's deliberate waiver of a limitations defense.”¹³² The Supreme Court reasoned, however, that there had been “no intelligent waiver on the State's part” in Day because “the timeliness concession would not have been made” had the State calculated the deadline correctly.¹³³ The district court thus “had discretion to correct the State's error.”¹³⁴

So too here. The Government explicitly predicated its decision to “waive[ ] any objection to the procedural technicality of filing the compassionate release reduction motions pursuant to 18 U.S.C. § 3582(c)(1)(A)(i)[ ] instead of 18 U.S.C.A. § 4205” on its misunderstanding that Defendant was “absolutely entitled” to file his own compassionate release motion “regardless of the statute cited as the basis for his requested relief.”¹³⁵ As discussed, however, Defendant is absolutely not entitled to move for compassionate release on his own behalf under either statute, and the Court doubts the Government would have made that concession had it realized that was so—after all, the Government has asked the Court to deny Defendant's Motion.¹³⁶ Thus, the Government hasn't made a “deliberate[,] ․ intelligent waiver” here, and so the Court will “correct the [Government]’s error” and analyze Defendant's Motion under the right statute.¹³⁷

Day does suggest, however, that before disregarding the Government's erroneous waiver, the Court must first:

(1) “accord the parties fair notice and an opportunity to present their positions;”

(2) “assure itself that [Defendant] is not significantly prejudiced by the delayed focus on the ․ issue;” and

(3) “ ‘determine whether the interests of justice would be better served’ by addressing the [Motion's] merits” rather than summarily denying it.138

The Court has done all those things here. The Court gave Defendant a fair opportunity to brief whether his status as a pre-November 1, 1987 offender bars him from filing his own compassionate release motion, and Defendant, through appointed counsel, took that opportunity.¹³⁹

The Court is also satisfied that Defendant “is not significantly prejudiced by the delayed focus on the ․ issue.”¹⁴⁰ Just like in Day, “[n]o court proceedings or action occurred” in this case after the Government purported to “waive” the eligibility issue.¹⁴¹ Nor does anything “in the record suggest[ ] that the [Government] ‘strategically’ withheld the defense;” “[f]rom all that appears in the record, there was merely an inadvertent error.”¹⁴²

Finally, notwithstanding Defendant's assertion to the contrary,¹⁴³ overlooking Defendant's categorical ineligibility to file his own compassionate release motion would not serve “the interests of justice.”¹⁴⁴ Congress has unequivocally barred this Court from shortening Defendant's sentence unless BOP files a sentence reduction motion on Defendant's behalf, and BOP hasn't done so.¹⁴⁵ Releasing Defendant from a validly-imposed, mandatory life sentence under a law that doesn't apply to him—solely because the Government failed to read a semi-repealed statute before making an ill-considered waiver in a supplemental brief—would undermine the two-tiered compassionate release regime that Congress deliberately crafted and has repeatedly renewed.¹⁴⁶ The Government's litigation errors cannot override Congress's unequivocal legislative commands.¹⁴⁷

c. Persuasive Authorities Support the Court's Decision Not to Honor the Government's “Waiver”

Enforcing the eligibility bar despite the Government's putative “waiver” also comports with non-binding persuasive authority from other courts. Several courts across the country have denied compassionate release motions filed by pre-November 1, 1987 offenders even when the Government did not assert the eligibility bar in its briefs.¹⁴⁸

The Court knows of only one case in which a court granted a pre-November 1, 1987 offender's self-filed compassionate release motion after the Government failed to raise the § 4205(g) bar in its briefs: United States v. Fisher.¹⁴⁹ The defendant there—like Defendant here—was serving a life sentence for crimes he committed before 1987.¹⁵⁰ As a result, § 3582(c)(1)(A) didn't apply to him, and § 4205(g) barred him from filing his own compassionate release motion. The defendant nevertheless filed his own motion seeking compassionate release under § 3582(c)(1)(A).¹⁵¹ The Government failed to alert the court that § 4205(g)—and not § 3582(c)(1)(A)—governed the defendant's compassionate release motion.¹⁵² The Southern District of New York therefore analyzed the motion under § 3582(c)(1)(A), found that the defendant had satisfied § 3582(c)(1)(A)’s prerequisites, and reduced his sentence to time served.¹⁵³

It doesn't appear, however, that the Fisher court ever realized that the defendant was ineligible to file his own compassionate release motion. Fisher neither cites § 4205(g) nor otherwise acknowledges that, as a pre-November 1, 1987 offender, the defendant was categorically ineligible for relief under § 3582(c)(1)(A).¹⁵⁴ Thus, as far as Fisher’s docket reveals, the court was simply unaware that pre-November 1, 1987 offenders can't file their own compassionate release motions—and, thus, never consciously decided to apply § 3582(c)(1)(A) instead of § 4205(g). This Court therefore declines to read Fisher to stand for the proposition that if the Government fails to enforce § 4205(g)’s eligibility bar, but the court realizes on its own that the defendant is a pre-November 1, 1987 offender barred from filing his own compassionate release motion, the Court should ignore that fact and analyze the motion under a statute that doesn't apply.¹⁵⁵

In sum, Congress has chosen to forbid Defendant (and other pre-November 1, 1987 offenders) from filing their own compassionate release motions. The Court will enforce that statutory command as written—even though the Government has erroneously invited the Court to do otherwise. Because only BOP can seek compassionate release on Defendant's behalf, and because BOP has not done so, the Court DENIES Defendant's Motion.

F. Federal Rule of Criminal Procedure 35(b)

As a last-ditch effort to avoid the outright denial of his Motion, Defendant suggests that the Court may reduce his sentence under the pre-1987 version of Federal Rule of Criminal Procedure 35(b) (“Old Rule 35(b)”).¹⁵⁶ That Rule provided in relevant part that

[a] motion to reduce a sentence may be made, or the court may reduce a sentence without motion, within 120 days after the sentence is imposed or probation is revoked, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction or probation revocation.157

Old Rule 35(b) thereby empowered defendants to “plea[d] for leniency” based on new “information about the defendant or the case which may have been presented to” the district court after sentencing.¹⁵⁸

Although the SRA repealed Old Rule 35(b),¹⁵⁹ the Rule still applies to pre-November 1, 1987 offenders.¹⁶⁰ Thus, in at least two cases in which a defendant was ineligible to move for compassionate release because he committed his crimes before November 1, 1987, district courts outside this Circuit have invoked Old Rule 35(b) as an alternate source of legal authority to reduce that defendant's sentence.¹⁶¹ Defendant suggests that this Court may do the same here.¹⁶²

The Court disagrees because the window for relief under Old Rule 35(b) closed several decades ago.¹⁶³ If Defendant wanted this Court to reduce his sentence under Old Rule 35(b), he needed to file his Motion either

(1) “within 120 days after [his] sentence [was] imposed;”

(2) “within 120 days after” this Court received the Fifth Circuit's “mandate issued upon affirmance of” Defendant's conviction; or

(3) “within 120 days after” the Supreme Court entered its “order ․ denying review of” Defendant's conviction.164

The last of those three events occurred on October 30, 1989, when the Supreme Court denied Defendant's petition for a writ of certiorari.¹⁶⁵ Defendant's 120-day window to seek relief under the Rule therefore closed on February 27, 1990. Because Defendant's request for relief under Old Rule 35(b) is 33 years too late, the Court DENIES it.¹⁶⁶

G. Appointed Counsel's Further Representation of Defendant

As noted, the Court appointed counsel “to represent Defendant in connection with [the] compassionate release motion” that the Court has denied in this Memorandum Opinion and Order.¹⁶⁷ The Court's Appointment Order doesn't explicitly state whether Appointed Counsel's representation of Defendant terminates now that the Court has denied that Motion, or if counsel's appointment instead extends to future proceedings or filings related to that Motion (such as a motion for reconsideration or an appeal to the Fifth Circuit).¹⁶⁸

The Court now clarifies that, if Defendant wishes to keep Appointed Counsel as his attorney in this matter, and if Appointed Counsel is willing and able to continue serving in that capacity, Appointed Counsel remains authorized to keep representing Defendant in connection with other motions or documents he may file in this Court (such as a motion for reconsideration) so long as that continued representation pertains in some way to his compassionate release request.¹⁶⁹ Likewise, if Defendant wishes to appeal this Memorandum Opinion and Order, the Court authorizes Appointed Counsel to take any actions Defendant must take in this Court to perfect his appeal, such as filing a notice of appeal.¹⁷⁰

However, the Court doubts that it has the power to dictate whether Appointed Counsel is authorized to take actions in another court to prosecute Defendant's appeal, such as filing appellate briefs or arguing the case before the Fifth Circuit. Thus, before Appointed Counsel may represent Defendant in proceedings before the Fifth Circuit (or any court other than this one), he will have to obtain that court's permission to do so by following that court's procedures and rules.¹⁷¹

III. CONCLUSION

For the foregoing reasons, the Court DENIES Defendant Audelio Arzola-Amaya's “Motion for Sentence Reduction Under 18 U.S.C. § 3582(c)(1)(A)” (ECF No. 163).

Because this Memorandum Opinion and Order cites or quotes from several sealed docket entries—namely, Defendant's Presentence Report (ECF No. 167), his Supplemental Brief (ECF No. 183), and his prison records (ECF No. 163-1)—the Court will likewise SEAL this Memorandum Opinion and Order for now. The Court will issue a separate order giving the parties an opportunity to object before the Court unseals the Memorandum Opinion and Order.¹⁷²

So ORDERED and SIGNED this 16th day of November 2023.

FOOTNOTES

1.   See 18 U.S.C. § 4205(g) (1984) (“At any time upon motion of the Bureau of Prisons, the court may reduce any minimum term to the time the defendant has served.” (emphasis added)).

2.   See generally United States v. Arzola-Amaya, 867 F.2d 1504, 1506–10 (5th Cir. 1989) (describing Defendant's offenses).

3.   See Superseding Indictment, ECF No. 35, at 1–3 (charging Defendant with conducting a continuing criminal enterprise between January 1983 and June 1987); see also PSR, ECF No. 167, at 1 (stating that the Government arrested Defendant for his offenses on June 26, 1987, which in turn indicates that Defendant committed those offenses before November 1, 1987).Page citations in this Memorandum Opinion and Order refer to the page numbers assigned by the Court's CM/ECF system, not the document's internal pagination.

4.   See Mot. Exs., ECF No. 163-1, at 58 (“You requested a reduction in sentence ․ After careful consideration, this request is denied.”).

5.   Def.’s Suppl. Br., ECF No. 183, at 1–4, 9, 12; see also Mot., ECF No. 163, at 1.In the alternative, Defendant asks the Court to “modify his sentence to allow him to serve the remainder of his sentence on home confinement.” Def.’s Suppl. Br. at 12. Because the Court concludes below that Defendant is categorically ineligible to move for relief under § 3582(c)(1)(A), the Court has no occasion to decide whether § 3582(c)(1)(A) authorizes such relief. Cf., e.g., United States v. Johnson, No. 3:17-CR-01569, 2023 WL 2671403, at *1 n.3 (W.D. Tex. Mar. 28, 2023) (“While it appears the majority of courts to address the issue have held that district courts lack the authority to order home confinement under the Coronavirus Aid, Relief, and Economic Security (CARES) Act, a district court may have the authority to impose home confinement as a condition of compassionate release under 18 U.S.C. § 3582(c)(1)(A). But because Johnson is not entitled to compassionate release in any form, the Court need not decide whether it has the authority to impose home confinement as a condition of compassionate release.” (internal citations omitted)).

6.   18 U.S.C. § 3582(c).

7.   Id. § 3582(c)(1)(A).

8.   E.g., United States v. Shkambi, 993 F.3d 388, 391–92 (5th Cir. 2021).

9.   Pub. L. No. 115-391, § 603(b)(1) (2018).

10.   BOP still retains the power to file a compassionate release motion on a defendant's behalf under § 3582(c)(1)(A) if it chooses. See 18 U.S.C. § 3582(c)(1)(A) (“[T]he court, upon motion of the Director of [BOP], ․ may reduce the term of imprisonment ․” (emphasis added)); see also, e.g., Shkambi, 993 F.3d at 392 (“When Congress enacted the FSA in December of 2018, it gave prisoners authority to file their own motions for compassionate release; but it did not strip the BOP of authority to continue filing such motions on behalf of its inmates.”).

11.   E.g., Ward v. United States, 11 F.4th 354, 359 (5th Cir. 2021) (“At the outset, a defendant must exhaust her administrative remedies before filing a motion for compassionate release.” (citing 18 U.S.C. § 3582(c)(1)(A))); see also infra Section II.E.2.a (discussing § 3582(c)(1)(A)’s administrative exhaustion requirements in greater detail).

12.   E.g., United States v. King, 24 F.4th 1226, 1228 (9th Cir. 2022); United States v. Cushon, No. 86-cr-00197, 2023 WL 4196162, at *1 (D. Colo. June 27, 2023); see also 18 U.S.C. § 4205(g) (1984).

13.   18 U.S.C. § 4205(g) (1984) (emphasis added).

14.   E.g., United States v. Williams, No. 3:84-cr-00148, 2022 WL 708590, at *2 (N.D. Tex. Jan. 21, 2022), report and recommendation accepted by 2022 WL 705855 (N.D. Tex. Mar. 9, 2022) (“Relief under § 4205(g) requires a motion by the BOP.” (cleaned up) (emphasis omitted) (quoting United States v. Scarbrough, No. 1:73-CR-32, 2019 WL 2482710, at *2 (N.D. Ind. June 14, 2019))); King, 24 F.4th at 1228–29 (“Under [§ 4205(g)], a prisoner was not allowed to directly request compassionate release by filing a motion in district court. Only the BOP could seek such relief on behalf of the inmate.”); United States v. Jackson, 991 F.3d 851, 853 (7th Cir. 2021) (explaining that although “a judge could reduce a prisoner's ‘minimum term’ ” under § 4205(g), it could do so “only on motion of the Director of [BOP]”); United States v. Rivera-Rios, No. 20-1773, 2022 WL 14206094, at *1 (2d Cir. Oct. 25, 2022) (concluding that defendant was “ineligible for § 4205(g) relief because [BOP] had not moved for a sentence reduction on his behalf”).

15.   See generally 18 U.S.C. §§ 4201–4218 (1984); see also, e.g., Skowronek v. Brennan, 896 F.2d 264, 267 n.5 (7th Cir. 1990) (“The parole provisions are codified at chapter 311 of Title 18, 18 U.S.C. §§ 4201–4218.”).

16.   See, e.g., United States v. McCall, 56 F.4th 1048, 1052 (6th Cir. 2022) (recounting criticisms of the parole system).

17.   See generally Sentencing Reform Act of 1984, Pub. L. No. 98-473, §§ 211–239 (1984) [hereinafter SRA]; see also, e.g., McCall, 56 F.4th at 1052 (discussing the SRA's history and objectives).

18.   SRA § 218(a)(5); see also, e.g., United States v. Jenkins, 50 F.4th 1185, 1192 (D.C. Cir. 2022) (recounting how the SRA “abolished parole, including release under section 4205(g)”).

19.   See SRA § 212(a)(2); see also, e.g., United States v. Robinson, No. 2:76-cr-00082, 2021 WL 4490270, at *2 (N.D. Ind. Oct. 1, 2021) (“Congress ․ replaced § 4205(g) with § 3582(c)(1)(A) as part of the [SRA].”).

20.   Congress initially kept § 4205(g) in effect for five years as to persons “convicted of an offense ․ before” the SRA's November 1, 1987 effective date, rather than to persons who committed an offense before that date. See SRA § 235(b)(1) (emphasis added). That difference in wording could have affected people who (like Defendant here) committed offenses before November 1, 1987, but weren't convicted of those offenses until after November 1, 1987. See PSR at 1 (indicating that the jury found Defendant guilty of his pre-November 1, 1987 offenses “on December 18, 1987”).Congress became concerned, however, that basing the SRA's applicability on the date a court convicted the defendant (rather than the date the defendant committed his offense) created ex post facto problems. See 133 Cong. Rec. H10017 (daily ed. Nov. 16, 1987). Thus, in 1987, Congress struck the phrase “convicted of an offense” from the SRA and replaced it with “committed an offense.” Sentencing Act of 1987, Pub. L. No. 100-182, § 2(b) (1987) (emphasis added); see also, e.g., Skowronek, 896 F.2d at 267 n.5 (“Congress has since amended this provision to clarify that the parole provisions apply to a person who committed an offense, rather than was convicted of an offense, before the SRA's effective date.”). Thus, Defendant qualifies as a pre-November 1, 1987 offender under the SRA as amended.

21.   Congress initially scheduled the SRA to become effective on November 1, 1986. See SRA § 235(a)(1) (“This chapter shall take effect on the first day of the first calendar month beginning twenty-four months after the [October 12, 1984] date of enactment [of the SRA].” (emphasis added)). In 1985, however, Congress postponed the SRA's effective date by one year. See Sentencing Reform Amendments Act of 1985, Pub. L. No. 99-217, § 4 (1985) [hereinafter Sentencing Reform Amendments] (“Section 235(a)(1) of the [SRA] is amended by striking out ‘twenty-four’ and inserting ‘36’ in lieu thereof.”). Defendant therefore committed his offenses before the SRA's effective date. See supra note 3 and accompanying text.

22.   SRA § 235(b)(1).

23.   See, e.g., King, 24 F.4th at 1229; Peltier v. U.S. Parole Comm'n, No. 05-3484, 2006 WL 2570553, at *5 (D. Kan. Sept. 5, 2006), aff'd sub nom. Von Kahl v. United States, 321 F. App'x 724 (10th Cir. 2009).

24.   See Continuing Appropriations Act, 2024 and Other Extensions Act, Pub. L. No. 118-15, 118th Cong. § 123 (2023) (extending Chapter 311's expiration date an additional 17 days).

25.   See Further Continuing Appropriations and Other Extensions Act of 2024, H.R. 6363, 118th Cong. § 101(5) (2023) (amending the September 30, 2023 stopgap bill to change the 17-day extension to a 94-day extension).

26.   King, 24 F.4th at 1229; see also, e.g., United States v. McQueen, No. 5:86-cr-00010, 2023 WL 4424626, at *3 (E.D. Ky. July 10, 2023) (“For inmates whose offenses occurred before November 1, 1987, Congress continues to keep the ghost of the parole system alive and relegates their access to compassionate release to the procedures set forth in 18 U.S.C. § 4205(g)․ Congress continues to renew Section 4205(g) for pre-reform offenders after passing the [FSA].” (internal citations omitted)).

27.   18 U.S.C. § 3551 note; Sentencing Act of 1987 § 2(a); see also, e.g., United States v. Watson, 868 F.2d 157, 158 (5th Cir. 1989) (“18 U.S.C. § 3582(c) ․ applies only to offenses committed on or after ․ November 1, 1987.”).

28.   See FSA § 603(b) (“Section 3582 of title 18, United States Code is amended ․” (emphasis added)); see also, e.g., United States v. Nickell, No. CR87-0276, 2022 WL 1803335, at *2 n.3 (W.D. Wash. June 2, 2022) (“The FSA amended § 3582(c)(1)(A) to ․ allow a defendant to seek a reduction directly from the court. The [FSA] did not, however, make a corresponding amendment to § 4205(g).” (internal citations omitted)); United States v. MacDonald, 533 F. Supp. 3d 285, 288 (E.D.N.C. 2021), appeal voluntarily dismissed, No. 21-6631, 2021 WL 5066111 (4th Cir. Sept. 16, 2021) (“ ‘Congress could have amended § 4205(g) or expressly stated the retrospective effect of FSA § 3582(c) to old-law defendants,’ but it did not.” (quoting United States v. Whitmore, No. 00-cr-00194, 2020 WL 4226515, at *3 (N.D. Cal. July 23, 2020))); United States v. McIvor, No. 5:82-CR-0003, 2021 WL 3487107, at *2 (D. Minn. Aug. 9, 2021) [hereinafter McIvor I], motion for relief from judgment denied by 2021 WL 3674497 (D. Minn. Aug. 19, 2021) [hereinafter McIvor II] (making similar observations).

29.   United States v. Matta-Ballesteros, 843 F. App'x 892, 894 (9th Cir. 2021); see also, e.g., United States v. Joseph, No. 86-CR-00322, 2022 WL 1909096, at *1 (S.D. Fla. June 3, 2022) (“The federal statutes governing when a district court may modify a prison sentence set out two distinct statutory schemes—one under 18 U.S.C. [§] 3582 and another under 18 U.S.C. [§] 4205.”).BOP's regulations mirror the statutory two-track system. See 28 C.F.R. § 572.40 (“18 U.S.C. [§] 4205(g) was repealed effective November 1, 1987, but remains the controlling law for inmates whose offenses occurred prior to that date. For inmates whose offenses occurred on or after November 1, 1987, the applicable statute is 18 U.S.C. [§] 3582(c)(1)(A).”).

30.   See, e.g., King, 24 F.4th at 1228 (“[I]nmates who committed crimes before November 1, 1987 cannot move for compassionate release pursuant to § 3582(c)(1), as amended by the FSA. These prisoners ․ can gain compassionate release only if [BOP] requests it on the prisoner's behalf under 18 U.S.C. § 4205(g).”); Rivera-Rios, 2022 WL 14206094, at *1–2 (concluding that a defendant “serving a sentence for acts committed ․ prior to the” SRA's effective date was both (1) “categorically ineligible for a sentence reduction under § 3582(c)(1)(A)” and (2) “ineligible for § 4205(g) relief because [BOP] had not moved for a sentence reduction on his behalf”); Jackson, 991 F.3d at 854 (“§ 3582 remains inapplicable to old-law prisoners.”).

31.   See COVID-19 Safer Detention Act of 2020, S. 4034, 116th Cong. § 4(1)(A) (2020); COVID-19 Safer Detention Act of 2021, S. 312, 117th Cong. § 4(1)(A) (2021); COVID-19 Safer Detention Act of 2021, H.R. 3669, 117th Cong. § 4(1)(A) (2021); Safer Detention Act of 2023, S. 1248, 118th Cong. § 3(1)(A) (2023); see also, e.g., McIvor I, 2021 WL 3487107, at *2 (discussing this proposed legislation).

32.   See supra note 3 and accompanying text.

33.   See, e.g., King, 24 F.4th at 1228 (“[I]nmates who committed crimes before November 1, 1987 cannot move for compassionate release pursuant to 18 U.S.C. § 3582(c)(1), as amended by the FSA. These prisoners are instead subject to ․18 U.S.C. § 4205(g).”); Cushon, 2023 WL 4196162, at *2 (“[P]risoners who committed offenses prior to November 1, 1987 are subject to the compassionate release provision in 18 U.S.C. § 4205(g), rather than 18 U.S.C. § 3582(c)(1).”); Scarbrough, 2019 WL 2482710, at *2 (“Because Defendant is serving a term of imprisonment that was imposed pre-[SRA], the provisions of § 3582(c) do not apply to him. This means he cannot petition the Court directly for compassionate release or a reduction in his sentence. Rather, 18 U.S.C. § 4205(g), although repealed effective November 1, 1987, still applies to his incarceration.”); Williams, 2022 WL 708590, at *2 (“Williams was convicted in 1984. He committed the offense prior to the November 1, 1987 effective date of § 3582(c). Therefore, Williams's incarceration is governed by 18 U.S.C. § 4205(g).”).

34.   See Mot. at 6 (“I move the court for a reduction in sentence ․” (emphasis added)); Def.’s Suppl. Br. at 1 (“[Defendant] respectfully moves this Court ․ to reduce his sentence ․” (emphasis added)).

35.   See, e.g., Rivera-Rios, 2022 WL 14206094, at *1–2 (holding that defendant who committed his offenses before November 1, 1987 was both (1) “categorically ineligible for a sentence reduction under § 3582(c)(1)(A)” and (2) “ineligible for § 4205(g) relief because [BOP] had not moved for a sentence reduction on his behalf”).

36.   See, e.g., Williams, 2022 WL 708590, at *2 (“The Court has not received a motion for a sentence reduction from the BOP for Williams. Therefore, his motion seeking compassionate release must be denied.”); MacDonald, 533 F. Supp. 3d at 289 (“18 U.S.C. § 3582(c)(1)(A) is inapplicable to MacDonald, and his motion for compassionate release is therefore denied.”).

37.   Def.’s Suppl. Reply, ECF No. 191, at 3.

38.   See 18 U.S.C. § 3582(c)(1) (emphasis added).

39.   Def.’s Suppl. Reply at 3 (emphasis added) (quoting 18 U.S.C. § 3582(c)(1)).

40.   Compare SRA § 212(a)(2) (enacting § 3582(c)(1), including the “in any case” language upon which Defendant relies), with id. § 235(a)(1) (stating that the chapter of the SRA that includes § 212(a)(2) and its “in any case” language “shall take effect on the first day of the calendar month beginning twenty-four months after the date of enactment”), and Sentencing Reform Amendments § 4 (“Section 235(a)(1) of the [SRA] is amended by striking out ‘twenty-four’ and inserting ‘36’ in lieu thereof.”), and Sentencing Act of 1987 § 2(a) (“Section 235(a)(1) of the [SRA] is amended by inserting after ‘date of enactment’ the first place it appears the following: ‘and shall apply only to offenses committed after the taking effect of this chapter.’ ” (emphasis added)), and 18 U.S.C. § 3551 note (“This chapter ․ shall apply only to offenses committed after the taking effect of this chapter ․”).

41.   See, e.g., RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645, 132 S.Ct. 2065, 182 L.Ed.2d 967 (2012) (“It is a commonplace of statutory construction that the specific governs the general.” (cleaned up) (quoting Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992))); Varity Corp. v. Howe, 516 U.S. 489, 511, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996) (warning “against applying a general provision when doing so would undermine limitations created by a more specific provision”).

42.   See also, e.g., King, 24 F.4th at 1230 (“The phrase ‘in any case’ has been part of § 3582(c)(1) since it became law in 1984 ․ [T]he FSA ‘did not modify the transition language from 1984 and 1987’ that limits the scope of § 3582(c)(1) to inmates who committed their crimes on or after November 1, 1987. [Thus, n]otwithstanding the FSA, § 3582(c)(1) remains unavailable to prisoners convicted of crimes that occurred on or before October 31, 1987.” (quoting Jackson, 991 F.3d at 853)).

43.   See, e.g., Jackson, 991 F.3d at 853 (“If ‘in any case’ had been added to § 3582 in 2018, perhaps it would be best to understand the [FSA] as ․ free[ing § 3582] of the grip of the transition language [making § 3582 applicable to post-November 1, 1987 offenders only].”).

44.   See SRA § 212(a)(2); see also, e.g., Jackson, 991 F.3d at 853 (“ ‘[I]n any case’ has been part of § 3582(c)(1) since its enactment in 1984 by the [SRA] ․”).

45.   See Sentencing Act of 1987 § 2(a).

46.   See FSA § 603(b)(1); see also, e.g., King, 24 F.4th at 1230 (“[T]he FSA ‘did not modify the transition language from 1984 and 1987’ that limits the scope of § 3582(c)(1) to inmates who committed their crimes on or after November 1, 1987.” (quoting United States v. Jackson, 991 F.3d 851, 853 (7th Cir. 2021))).

47.   Def.’s Suppl. Reply at 4.

48.   See United States Parole Commission Extension Act of 2020, Pub. L. No. 116-159, § 4202, 134 Stat. 709, 741 (2020) (post-FSA legislation further extending § 4205(g)’s expiration date to November 1, 2022); United States Parole Commission Extension Act of 2022, Pub. L. No. 117-180, § 103(b), 136 Stat. 2114, 2133 (2022) (further extending the expiration date to December 17, 2022); United States Parole Commission Further Extension Act of 2022, Pub. L. No. 117-229, § 103(b), 136 Stat. 2308, 2309 (2022) (further extending the expiration date to December 24, 2022); United States Parole Commission Further Additional Extension Act of 2022, Pub. L. No. 117-264, § 103(b), 136 Stat. 4167, 4168 (2022) (further extending the expiration date to December 31, 2022); United States Parole Commission Additional Extension Act of 2022, Pub. L. No. 117-328, § 801(b), 136 Stat. 4459, 5232 (2022) (further extending the expiration date to November 1, 2023); Continuing Appropriations Act, 2024 and Other Extensions Act, Pub. L. No. 118-15, 118th Cong. § 123 (2023) (the most recent extension, which pushed the expiration date to November 18, 2023); see also Further Continuing Appropriations and Other Extensions Act of 2024, H.R. 6363, 118th Cong. § 101(5) (2023) (pending legislation to further extend the expiration date).See also, e.g., Brown v. Warden, No. 5:22-cv-00506, 2023 WL 4098942, at *2 (S.D. W. Va. Mar. 23, 2023), report and recommendation adopted by 2023 WL 4094275 (S.D. W. Va. June 20, 2023) (recounting Congress's repeated renewals of Chapter 311's parole provisions (including § 4205(g)) from 2020 to the present); McQueen, 2023 WL 4424626, at *3 (“Congress continues to renew Section 4205(g) for pre-reform offenders after passing the [FSA].”).

49.   See, e.g., King, 24 F.4th at 1230 (“Notwithstanding the FSA, § 3582(c)(1) remains unavailable to prisoners convicted of crimes that occurred on or before October 31, 1987. This conclusion not only makes sense based on the express statutory language, but also is reinforced when we consider Congress’ recent extension of the applicability of § 4205(g) to these inmates through 2022.”); Rivera-Rios, 2022 WL 14206094, at *2 (similar).

50.   See, e.g., Keene Corp. v. United States, 508 U.S. 200, 212, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993) (noting “the presumption that Congress [is] aware of ․ judicial interpretations” of federal statutes).

51.   Compare, e.g., Rivera-Rios, 2022 WL 14206094, at *2 (noting that as of October 25, 2022, “[t]wo other circuits ha[d] reached the same conclusion” that the FSA “did not expand eligibility for § 3582(c)(1)(A) relief to inmates serving sentences for offenses predating November 1, 1987”), with, e.g., United States Parole Commission Additional Extension Act of 2022, Pub. L. No. 117-328, § 801(b), 136 Stat. 4459, 5232 (2022) (renewing § 4205(g) on December 29, 2022).

52.   See, e.g., Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239–40, 129 S.Ct. 2484, 174 L.Ed.2d 168 (2009) (“Congress is presumed to be aware of [a] ․ judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change.” (quoting Lorillard v. Pons, 434 U.S. 575, 580, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978))).

53.   Def.’s Suppl. Reply at 4.

54.   Id. at 5 (quoting United States v. Lika, No. 84-CR-499, 2020 WL 2766049, at *1 (S.D.N.Y. May 28, 2020)).

55.   Id. at 8–9; see also, e.g., Whitmore, 2020 WL 4226515, at *4 (“Mr. Whitmore argues with some force that there is no obvious reason for Congress to continue making a distinction between new law and old law defendants; if anything, compassionate release would be most applicable to the oldest inmates (i.e., those with offenses before November 1, 1987).”); Joseph, 2022 WL 1909096, at *4 (opining that the “disparity between ‘old law’ and ‘new law’ prisoners” is “wholly unwarranted” and urging Congress to consider “whether it is appropriate to continue preventing inmates who committed offenses on or before October 31, 1987 from fully availing themselves of the” FSA, especially given that “one of Congress's goals in passing the FSA was to broaden the reach of section 3582(c)(1)(A)”).

56.   See also 133 Cong. Rec. H10017 (daily ed. Nov. 16, 1987) (“Section 2(a) of the [Sentencing Act of 1987] amends section 235(a)(1) [of the SRA] to solve the constitutional problem that would result from applying the sentencing guidelines mandated by the [SRA], and other provisions enacted by the [SRA], to conduct occurring before the taking effect of the [SRA] on November 1, 1987. Such application of the guidelines would violate the ex post facto clause of the Constitution where the guidelines result in harsher punishment than prior law.”).Among other things, the Ex Post Facto Clause forbids Congress from passing a retroactively applicable criminal law that “makes more burdensome the punishment for a crime after its commission.” E.g., Jackson v. Vannoy, 981 F.3d 408, 417 (5th Cir. 2020) (cleaned up) (quoting Collins v. Youngblood, 497 U.S. 37, 52, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990)); see also U.S. Const. art. I, § 9, cl. 3 (“No ․ ex post facto Law shall be passed.”).

57.   Sentencing Act of 1987 § 2(a); see also 133 Cong. Rec. H10017 (daily ed. Nov. 16, 1987) (“Because determining on a case-by-case basis when the guidelines would violate the ex post facto clause would lead to much litigation that can and should be avoided, [§ 2(a) of the Sentencing Act of 1987] establishes a bright-line rule that provisions enacted by the [SRA] only apply to offenses committed after the taking effect of that Act.”).

58.   The Court thus has no occasion to decide whether it would violate the Ex Post Facto Clause to enforce § 3582(c)(1)(A)’s “three limits on compassionate release that were not present in the old section 4205(g)” against someone who committed a crime when those three limits didn't exist. See Jenkins, 50 F.4th at 1192.

59.   See, e.g., MacDonald, 533 F. Supp. 3d at 288 (“MacDonald argues that the [SRA], including the [pre-FSA] version of § 3582(c)(1), was made effective November 1, 1987, to avoid an ex post facto problem that would have been created by a retroactive effective date․ MacDonald argues that there is no ex post facto problem with applying the [FSA]-amended version of § 3582(c)(1)(A) to old-law defendants [because] it operates to their benefit by providing an alternate avenue for release from custody․ That application of § 3582(c)(1)(A) to old-law defendants would be to their benefit does not provide this Court with a basis to ignore the clear command that the provisions of the [SRA] apply only to offenses committed after November 1, 1987.”); Matta-Ballesteros, 843 F. App'x at 894 (“Matta contends § 3582(c)(1)(A) should apply to him because Congress's sole intent in making the statute non-retroactive was to avoid ex post facto problems with respect to other sections of the SRA. [But e]ven those who sometimes consult legislative history will never allow it to be used to muddy the meaning of clear statutory language. The statutory text here is clear and its straightforward application to Matta does not frustrate Congress's apparent intent.” (cleaned up) (emphasis added)).

60.   See, e.g., Whitmore, 2020 WL 4226515, at *4 (“[T]here is a rational basis for maintaining a distinction between old law and new law defendants. Old law defendants need not rely exclusively on compassionate release because old law defendants have an avenue for release that ․ new law defendants do not—i.e. parole. Section 4205(g) existed under the parole regime which continues in effect for old law defendants ․”).The Court recognizes that unlike the defendant in Whitmore, see id. at *4, Defendant (at least as far as the record reveals) may be ineligible for parole, see Mot. Exs. at 13 (“PAROLE ELIGIBILITY: NOT ELIGIBLE”). The Court need not decide whether Defendant is in fact ineligible for parole; the Court's point is merely that the parole provisions in Chapter 311—including § 4205(g)—still apply to Defendant, rather than the SRA provisions that Congress enacted when it abolished the parole system.

61.   Gov't’s Suppl. Resp., ECF No. 187, at 2 (“[R]egardless of the statute cited as the basis for his requested relief, [Defendant] is absolutely entitled to pursue this avenue.”).

62.   Id.

63.   Def.’s Reply, ECF No. 189, at 2–3.

64.   Cf., e.g., Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1546 (5th Cir. 1991) (noting that litigants “cannot confer jurisdiction where Congress has not granted it”).

65.   Order Requiring Suppl. Reply, ECF No. 190, at 4–5; see also Def.’s Suppl. Reply at 5–9.The Court also authorized—but did not require—the Government to file a Surresponse addressing that issue. Order Requiring Suppl. Reply at 5. The Government didn't do so. The Court thus has no occasion to decide whether it would have allowed the Government to withdraw its putative waiver and assert the eligibility bar had the Government done so in its Surresponse. But cf. United States v. Dickinson, No. 3:84-cr-00043, 2021 WL 1093619, at *1–2 (D. Nev. Mar. 22, 2021) (“The government argues that Dickinson's motion for compassionate release is not controlled by Section 3582, but rather by the old compassionate release statute, 18 U.S.C. § 4205(g) ․ Dickinson argues that the government waived [this] objection when it responded to his motion for compassionate release on the merits․ The Court does not find that the government waived its right to raise the issue. While the government should have raised the issue in opposition instead of after briefing completed, the Court had not yet ruled on the motion for compassionate release and accepts counsel's explanation that it was an oversight․ Therefore, the Court ․ denies Dickinson's motion for compassionate release.”).

66.   See, e.g., Shkambi, 993 F.3d at 390 (“All sorts of federal statutes impose legal limits on district courts․ But not all legal limits are jurisdictional ones.”).

67.   E.g., Fort Bend County v. Davis, 587 U.S. 541, 139 S. Ct. 1843, 1849, 204 L.Ed.2d 116 (2019) (cleaned up) (quoting Sebelius v. Auburn Reg'l Med. Ctr., 568 U.S. 145, 153, 133 S.Ct. 817, 184 L.Ed.2d 627 (2013)).

68.   See, e.g., Santos-Zacaria v. Garland, 598 U.S. 411, 416, 143 S.Ct. 1103, 215 L.Ed.2d 375 (2023) (“A jurisdictional prescription sets the bounds of the court's adjudicatory authority.” (cleaned up) (quoting Kontrick v. Ryan, 540 U.S. 443, 455, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004))).

69.   Boechler, P.C. v. Comm'r Internal Revenue, 596 U.S. 199, 142 S. Ct. 1493, 1497, 212 L.Ed.2d 524 (2022); see also, e.g., Wilkins v. United States, 598 U.S. 152, 158, 143 S.Ct. 870, 215 L.Ed.2d 116 (2023) (“[D]octrines like waiver and estoppel ensure efficiency and fairness by precluding parties from raising arguments they had previously disavowed. Because these doctrines do not apply to jurisdictional objections, parties can disclaim such an objection, only to resurrect it when things go poorly for them on the merits.”).

70.   E.g., Boechler, 142 S. Ct. at 1497.

71.   See, e.g., Wilkins, 598 U.S. at 157–58, 143 S.Ct. 870 (“Limits on subject-matter jurisdiction ․ have a unique potential to disrupt the orderly course of litigation․ For purposes of efficiency and fairness, our legal system is replete with rules like forfeiture, which require parties to raise arguments themselves and to do so at certain times. Jurisdictional bars, however, may be raised at any time and courts have a duty to consider them sua sponte. When such eleventh-hour jurisdictional objections prevail post-trial or on appeal, many months of work on the part of the attorneys and the court may be wasted.” (cleaned up) (internal citations omitted)).

72.   Boechler, 142 S. Ct. at 1497 (emphasis added) (quoting Arbaugh v. Y & H Corp., 546 U.S. 500, 515, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006)); see also, e.g., Santos-Zacaria, 598 U.S. at 416–17, 143 S.Ct. 1103 (“[C]ourts impose harsh jurisdictional consequences only when Congress unmistakably has so instructed.”).

73.   E.g., Fort Bend, 139 S. Ct. at 1850 (quoting Auburn, 568 U.S. at 153, 133 S.Ct. 817).

74.   E.g., United States v. Franco, 973 F.3d 465, 468 (5th Cir. 2020) (cleaned up) (quoting United States v. Alam, 960 F.3d 831, 833 (6th Cir. 2020)).There's at least one exception to that general rule: a statutory provision that neither refers to the courts’ jurisdiction nor uses jurisdictional terms may nevertheless be jurisdictional if “a long line of [Supreme Court] decisions left undisturbed by Congress has treated a similar requirement as jurisdictional.” Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 436, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011) (cleaned up) (quoting Union Pac. R.R. Co. v. Brotherhood of Locomotive Engr's, 558 U.S. 67, 82, 130 S.Ct. 584, 175 L.Ed.2d 428 (2009)). The Court considers that possibility below. See infra note 91.

75.   See, e.g., Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 164, 130 S.Ct. 1237, 176 L.Ed.2d 18 (2010) (“The word ‘jurisdiction,’ as used [in 17 U.S.C. § 411(a)], ․ says nothing about whether a federal court has subject-matter jurisdiction to adjudicate claims for infringement of unregistered works.”); Auburn, 568 U.S. at 155, 133 S.Ct. 817 (“A requirement we would otherwise classify as nonjurisdictional ․ does not become jurisdictional simply because it is placed in a section of a statute that also contains jurisdictional provisions.”).

76.   26 U.S.C. § 6330(d)(1); see also, e.g., Boechler, 142 S. Ct. at 1496–97.

77.   26 U.S.C. § 6330(d)(1) (emphasis added).

78.   Boechler, 142 S. Ct. at 1501.

79.   Id. at 1499 (“A requirement ‘does not become jurisdictional simply because it is placed in a section of a statute that also contains jurisdictional provisions.’ ” (quoting Auburn, 568 U.S. at 155, 133 S.Ct. 817)).

80.   Id. (emphasis added).

81.   Id. (emphasis added).

82.   Id. at 1498; see also id. at 1497–98 (“The question is whether [§ 6330(d)(1)] limits the Tax Court's jurisdiction to petitions filed within [the 30-day] timeframe. The answer depends on the meaning of ‘such matter,’ the phrase marking the bounds of the Tax Court's jurisdiction. Boechler contends that it refers only to the immediately preceding phrase: a ‘petition [to] the Tax Court for review of such determination.’ If so, the filing deadline is independent of the jurisdictional grant. The Commissioner, by contrast, argues that ‘such matter’ refers to the entire first clause of the sentence, sweeping in the deadline and granting jurisdiction only over petitions filed within that time. On this reading, the deadline is jurisdictional․ [T]he text does not clearly mandate the jurisdictional reading.”).

83.   Id. at 1498.

84.   Id. at 1499.

85.   Id.

86.   Id. (emphasis added).

87.   See id. at 1501.

88.   18 U.S.C. § 4205(g) (1984) (emphases added).

89.   See id. (“The court shall have jurisdiction to act upon the application at any time and no hearing shall be required.” (emphasis added)).

90.   See Boechler, 142 S. Ct. at 1498 (“Where multiple plausible interpretations exist—only one of which is jurisdictional—it is difficult to make the case that the jurisdictional reading is clear.”).

91.   See Santos-Zacaria, 598 U.S. at 417, 143 S.Ct. 1103.Nor is the Court aware of any “long line of [judicial] decisions left undisturbed by Congress ․ treat[ing] ․ similar requirement[s] as jurisdictional”—which would be the only other reason to declare § 4205(g) jurisdictional here. See Henderson, 562 U.S. at 436, 131 S.Ct. 1197 (cleaned up) (quoting Union Pac., 558 U.S. at 82, 130 S.Ct. 584); see also supra note 74.

92.   See, e.g., United States v. Shakur, No. 82 CR 312, 2022 WL 3910581, at *5 (S.D.N.Y. Aug. 31, 2022), appeal voluntarily dismissed, 2023 WL 2483888 (2d Cir. Jan. 24, 2023) (“If the government is correct that Shakur is ineligible under the statutory scheme, that is akin to the Court lacking subject matter jurisdiction to consider Shakur's motion, a jurisdictional issue that must be confronted whenever and however it arises.” (emphases added)); United States v. Woolum, No. 5:84-CR-21, 2020 WL 1963787, at *2 (W.D. Ky. Apr. 23, 2020) (“[T]he BOP itself has not filed a motion to reduce Defendant's sentence. Therefore, this Court lacks jurisdiction to reduce Defendant's sentence pursuant to § 4205(g) and his motion for compassionate release must be denied.” (cleaned up) (emphasis added)); Cushon, 2023 WL 4196162, at *2 (“The BOP has not requested compassionate release on behalf of [the defendant]. The Court therefore lacks jurisdiction to consider [his] motion under § 3582(c)(1).” (emphasis added)); United States v. Dubray, No. 87-50031, 2022 WL 220060, at *3 (D.S.D. Jan. 25, 2022) (“Mr. Dubray's exclusive avenue for compassionate release is through 18 U.S.C. § 4205(g). The court lacks jurisdiction to consider defendant's motion [under § 3582(c)(1)(A)].” (emphasis added)); United States v. Faul, No. 3:83-cr-00016, 2021 WL 965311, at *3 (D.N.D. Mar. 15, 2021) (“[O]nly the BOP may move for compassionate release on Faul's behalf. Because the BOP did not do so here, the Court lacks jurisdiction to consider the motion.” (emphasis added)); McIvor I, 2021 WL 3487107, at *1 (“Because the Court lacks jurisdiction to reduce McIvor's sentence, the motion is denied.” (emphasis added)); Robinson, 2021 WL 4490270, at *2 (“Since § 4205(g) applies to [the defendant] and the BOP has not filed a motion on his behalf, the Court lacks jurisdiction to consider the motion.” (emphasis added)).

93.   Wilkins, 598 U.S. at 159, 143 S.Ct. 870 (quoting Fort Bend, 139 S. Ct. at 1848 n.4).

94.   Id. at 160, 143 S.Ct. 870 (cleaned up).

95.   See supra note 92.

96.   See, e.g., Rivero v. Fid. Invs., Inc., 1 F.4th 340, 344 (5th Cir. 2021) (“Nonjurisdictional conditions generally fall into two categories.”).

97.   E.g., Henderson, 562 U.S. at 435, 131 S.Ct. 1197.

98.   See, e.g., Santos-Zacaria, 598 U.S. at 417, 143 S.Ct. 1103 (describing “exhaustion requirement[s]” as “quintessential claim-processing rule[s]”); id. (“We routinely treat as nonjurisdictional threshold requirements that claimants must complete, or exhaust, before filing a lawsuit.”) (cleaned up) (quoting Reed Elsevier, 559 U.S. at 166 & n.6, 130 S.Ct. 1237).But see id. at 418, 143 S.Ct. 1103 (noting that although “[i]t would ․ be aberrant” for Congress to designate an exhaustion requirement as jurisdictional, “ ‘Congress is free to attach’ jurisdictional consequences to” an exhaustion provision if it so chooses (quoting Henderson, 562 U.S. at 435, 131 S.Ct. 1197)).

99.   See, e.g., Santos-Zacaria, 598 U.S. 411, 423, 143 S.Ct. 1103 (“Because [8 U.S.C.] § 1252(d)(1)’s exhaustion requirement is not jurisdictional, it is subject to waiver and forfeiture.”).

100.   Id. at 418, 143 S.Ct. 1103.

101.   Id.

102.   See, e.g., Ward, 11 F.4th at 361 (“[Section 3582(c)(1)(A)’s] administrative-exhaustion requirement is a non-jurisdictional but mandatory claim-processing rule. Like other claim-processing rules, the Government must properly raise the rule before it will be enforced. Similarly, an objection based on a mandatory claim-processing rule may be forfeited if the party asserting the rule waits too long to raise the point.” (cleaned up)).

103.   See 18 U.S.C. § 3582(c)(1)(A) (providing that a court may “reduce [a defendant's] term of imprisonment” upon a defendant's motion only “after the defendant has fully exhausted all administrative rights to appeal a failure of [BOP] to bring a motion on the defendant's behalf[,] or the lapse of 30 days from the receipt of such request by the warden of the defendant's facility, whichever is earlier”); see also, e.g., Franco, 973 F.3d at 467 (explaining that a defendant's motion for compassionate release under § 3582(c)(1)(A) is not “properly before the court” unless the defendant first “request[s] that [BOP] bring a motion on [his] behalf” (cleaned up)).

104.   Franco, 973 F.3d at 468.

105.   Ward, 11 F.4th at 361 (cleaned up) (quoting Franco, 973 F.3d at 468).

106.   See 18 U.S.C. § 3582(c)(1)(A) (“[T]he court ․ may reduce the term of imprisonment ․ after considering the factors set forth in section 3553(a) to the extent they are applicable”); id. § 3553(a) (enumerating factors that a “court shall consider” when “determining the particular sentence to be imposed” in a criminal case); see also, e.g., Ward, 11 F.4th at 361 (“[T]he burden falls on defendant to convince the district judge to exercise discretion to grant the motion for compassionate release after considering the Section 3553(a) factors.” (cleaned up) (quoting Shkambi, 993 F.3d at 392)).

107.   11 F.4th at 358, 360.

108.   Id. at 358.

109.   Id. at 359.

110.   Id. at 360 (emphasis added).

111.   Id. at 361.

112.   See id. at 357–62 (not mentioning “jurisdiction” except during an aside about § 3582(c)(1)(A)’s “non-jurisdictional but ‘mandatory’ ” “administrative-exhaustion requirement”).

113.   Compare 18 U.S.C. § 3582(c)(1)(A), with Franco, 973 F.3d at 468 (cleaned up) (quoting Alam, 960 F.3d at 833).

114.   See 11 F.4th at 361 (cleaned up) (emphases added).

115.   Cf. Henderson, 562 U.S. at 435, 131 S.Ct. 1197.

116.   See 18 U.S.C. §§ 3582(c)(1)(A), 3553(a); see also Ward, 11 F.4th at 362 (noting that the § 3553(a) provision imposes a “statutory obligation” on the court “to act only after considering certain matters”).

117.   See 18 U.S.C. § 4205(g) (1984).

118.   See, e.g., McQueen, 2023 WL 4424626, at *3 (noting that a pre-November 1, 1987 offender “must seek administrative relief, rather than proceeding directly in federal court”).

119.   Contra Henderson, 562 U.S. at 435, 131 S.Ct. 1197 (defining “claim-processing rules” as those that require litigants to “take certain procedural steps at certain specified times”).

120.   Cf. Ward, 11 F.4th at 361–62.

121.   See 547 U.S. 198, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006).

122.   This is a slight oversimplification for clarity. See 28 U.S.C. § 2244(d)(1) (specifying various dates from which the one-year limitations period might run, depending on the circumstances); id. § 2244(d)(2) (providing that “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation”).

123.   Day, 547 U.S. at 205, 126 S.Ct. 1675.

124.   Id. at 201–02, 126 S.Ct. 1675.

125.   Id. at 201, 126 S.Ct. 1675.

126.   Id. (cleaned up).

127.   Technically, the assigned U.S. Magistrate Judge discovered the miscalculation, and the District Judge adopted the Magistrate Judge's recommendation. See id. at 201–02, 126 S.Ct. 1675.

128.   Id. at 202, 126 S.Ct. 1675.

129.   Id.

130.   Id. at 205, 209, 126 S.Ct. 1675 (cleaned up) (first emphasis in original; second emphasis added).

131.   Id. at 210, 126 S.Ct. 1675.

132.   Id. at 202, 126 S.Ct. 1675 (emphasis added).

133.   Id. at 202–03, 126 S.Ct. 1675 (emphasis added).

134.   Id. at 202, 126 S.Ct. 1675.

135.   Gov't’s Suppl. Resp. at 2.

136.   Gov't’s Resp., ECF No. 165, at 1 (“[T]his Court should deny [Defendant]’s motion for release.”).

137.   See Day, 547 U.S. at 202, 126 S.Ct. 1675.

138.   See id. at 210, 126 S.Ct. 1675 (quoting Granberry v. Greer, 481 U.S. 129, 136, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987)).

139.   See Order Requiring Suppl. Reply at 5; Def.’s Suppl. Reply.

140.   See Day, 547 U.S. at 210, 126 S.Ct. 1675.

141.   See id. at 211, 126 S.Ct. 1675.

142.   See id.

143.   Contra Def.’s Suppl. Reply at 10 (“[I]f this Court finds that [Defendant]’s age and health issues merit early release, failing to do so on procedural technicalities, particularly those waived by the Government, would be needlessly unjust.”).

144.   See Day, 547 U.S. at 210, 126 S.Ct. 1675 (2006) (quoting Granberry, 481 U.S. at 136, 107 S.Ct. 1671).

145.   The Court has no occasion to decide whether filing such a motion would have comported with BOP regulations. But see 28 C.F.R. § 571.64 (“[BOP] cannot initiate ․ a motion [under § 4205(g)] on behalf of federal offenders who committed their offenses prior to November 1, 1987, and received non-parolable sentences.”); Mot. Exs. at 13 (stating that Defendant is “NOT ELIGIBLE” for parole).

146.   The Court does not intend this rhetorical flourish to imply that the Court would grant Defendant compassionate release if § 3582(c)(1)(A) applied instead of § 4205(g). The Court simply has no occasion to decide whether Defendant would satisfy § 3582(c)(1)(A)’s prerequisites if, counterfactually, he had committed his offenses after November 1, 1987.

147.   Cf., e.g., United States v. Pierre, No. 17-132, 2021 WL 3509685, at *3 (E.D. La. Aug. 10, 2021) (“District courts may reduce a prison sentence only as permitted by specific statute or rule.”).

148.   See United States v. Rivera, No. 86 Cr. 1124, 2020 WL 2094094, at *3 (S.D.N.Y. May 1, 2020) (“Although the parties never raised the issue, the first question the Court must decide is whether it has the authority to modify Portes's sentence pursuant to either [§§ 3582(c)(1)(A) or 4205(g)]. The Court finds it does not.” (emphasis added)); Joseph, 2022 WL 1909096, at *1 n.1 (“On February 11, 2021, the Court denied a previous Motion for Compassionate Release filed by Mr. Joseph. In the Order Denying Reduction of Sentence, the Court reached a merits-based determination under section 3582(c)(1)(A). It should not have. As explained herein, Mr. Joseph is not eligible for compassionate release under section 3582(c)(1)(A) [because he is a pre-November 1, 1987 offender]. The Court notes that neither the Government nor defense counsel addresses this fundamental issue in any of their briefing on the Motion.” (emphasis added) (internal citations omitted)).Although the district court in United States v. Shakur reached the same conclusion that § 4205(g)’s eligibility bar is nonwaivable, it based that holding on the erroneous premise that the bar is jurisdictional. See 2022 WL 3910581, at *5 (“[Defense] Counsel accurately point out that when the government opposed Shakur's initial motion for compassionate release, it did not argue that the motion was procedurally barred [on the ground that he committed his offenses before November 1, 1987]. The government acknowledges that it failed at that time to recognize and thus raise Shakur's ineligibility for relief ․ [But] if the government is correct that Shakur is ineligible under the statutory scheme, that is akin to the Court lacking subject matter jurisdiction to consider Shakur's motion, a jurisdictional issue that must be confronted whenever and however it arises.” (emphasis added) (cleaned up)). While this Court agrees with Shakur that it should enforce the eligibility bar notwithstanding the Government's putative “waiver,” the Court respectfully declines to follow Shakur to the extent it states without analysis that § 4205(g) is jurisdictional. See supra Section II.E.1.

149.   493 F. Supp. 3d 231 (S.D.N.Y. 2020).

150.   Id. at 232–34.

151.   See generally Emergency Motion for Compassionate Release Pursuant to Title 18, U.S.C. Sec. 3582(c)(1)(A)(1) [sic], United States v. Fisher, No. 1:83-cr-00150 (S.D.N.Y. Aug. 10, 2020), ECF No. 84.

152.   See The Government's Memorandum of Law in Opposition to the Defendant's Motion to Reduce Sentence Pursuant to 18 U.S.C. § 3582(c)(1)(A), United States v. Fisher, No. 1:83-cr-00150 (S.D.N.Y. Aug. 21, 2020), ECF No. 89; Government's Letter Response, United States v. Fisher, No. 1:83-cr-00150 (S.D.N.Y. Sept. 18, 2020), ECF No. 93.

153.   See 493 F. Supp. 3d at 232–39.

154.   See id.

155.   See Shakur, 2022 WL 3910581, at *4 (“Although [Fisher's] offenses of conviction clearly predated November 1, 1987, [the Fisher court] considered and then granted a defendant's motion for compassionate release under § 3582(c)(1)(A). The government does not seem to have questioned the First Step Act's applicability to a defendant of this vintage, the defendant understandably did not raise the issue, and the trial judge ․ did not do so sua sponte. Whatever the procedural explanation for Fisher may be, I cannot regard it as reasoned authority for the proposition that First Step Act privileges apply to Shakur.” (internal citations omitted)).

156.   Def.’s Suppl. Reply at 9.

157.   Fed. R. Crim. P. 35(b) (1986).

158.   E.g., United States v. Battle-Bey, No. 3:81-38, 2020 WL 4735352, at *3 (D. Minn. Aug. 14, 2020) (quoting United States v. Colvin, 644 F.2d 703, 705 (8th Cir. 1981)).

159.   See SRA § 215(b) (replacing Old Rule 35(b) with a new Rule 35(b) that authorized a sentence reduction only if the defendant provided “subsequent, substantial assistance in the investigation or prosecution of another person who ha[d] committed an offense,” and only “on motion of the Government”); see also Fed. R. Crim. P. 35(b) (2023) (the current version of the post-SRA Rule).

160.   See, e.g., United States v. Doe, 940 F.2d 199, 202 (7th Cir. 1991) (“The new Rule 35(b) was enacted by Congress as part of the [SRA]. The effective date of the amendment was November 1, 1987. Notwithstanding this effective date, Congress provided in the Sentencing Act of 1987 that the new Rule 35(b) would apply retroactively to crimes committed before November 1, 1987. But this does not prevent the old Rule 35(b) from applying. The Sentencing Act of 1987 also dictates that the prior version ․ applies to all crimes committed before the effective date of the new Rule, November 1, 1987. Because Doe's crimes were committed before November 1, 1987, he fits into a window where both versions of the Rule apply. The new Rule applies because it is retroactive. The old Rule applies because his crimes were committed before the effective date of the new Rule.” (internal citations omitted)); see also 18 U.S.C. § 3553 note.

161.   See United States v. Redwine, No. 3:87cr70, 2020 WL 6829848, at *7–8 (E.D. Va. Nov. 20, 2020) (“Here, Redwine's offense took place in January 1987, prior to the SRA effective date of November 1, 1987. Therefore, the Court may not modify his sentence pursuant to 18 U.S.C. § 3582(c)(1)(A). Turning to the compassionate release statute that does apply to Redwine, 18 U.S.C. § 4205(g), the Court also cannot grant Redwine's request under that provision. Section 4205(g) mandates that the motion must be brought by the BOP, not Redwine. Accordingly, the Court does not have the authority, pursuant to either compassionate release statute, to modify Redwine's sentence. Nonetheless, former Federal Rule of Criminal Procedure 35 permits the Court to grant Redwine the relief he seeks.”); Rivera, 2020 WL 2094094, at *3–4 (similar).

162.   Def.’s Suppl. Reply at 9.

163.   See, e.g., Scarbrough, 2019 WL 2482710, at *3 (“No matter what discretion existed under the previous version of Rule 35[(b)], strict time limits still applied ․”).

164.   Fed. R. Crim. P. 35(b) (1986).

165.   Arzola-Amaya v. United States, 493 U.S. 933, 933, 110 S.Ct. 322, 107 L.Ed.2d 312 (1989).

166.   See, e.g., United States v. Hughes, No. CR-76-00262, 2021 WL 5324907, at *1, *3 (D. Ariz. Nov. 16, 2021) (denying pre-November 1, 1987 offender's request for relief under Old Rule 35(b) as “untimely” because he “did not request such relief within 120 days after his sentence was imposed, within 120 days after issuance of a mandate upon resolution of an appeal, within 120 days after an order or judgment of the Supreme Court denying review or upholding the judgment, or upon revocation of probation”); McIvor II, 2021 WL 3674497, at *2 (“McIvor was sentenced in 1982 and he cites no indication that any other triggering event occurred within the 120 days preceding his Rule 35 request. To the extent that McIvor is seeking a reduction in his sentence [under Old Rule 35(b)], therefore, his request is untimely.”).The severe untimeliness of Defendant's request distinguishes this case from the ones Defendant cites in his Supplemental Reply. See Rivera, 2020 WL 2094094, at *1–2, *4 (granting relief to pre-November 1, 1987 offender who “failed to appear for sentencing” and “remained at large until September 16, 2019;” defendant's request was timely under Old Rule 35(b) because he filed it only 59 days after his February 4, 2020 sentencing); Redwine, 2020 WL 6829848, at *3, *7 n.10 (pre-November 1, 1987 offender's motion deemed timely under Old Rule 35(b) because he filed it within 120 days of his 2020 parole revocation).

167.   Order Appointing Counsel, ECF No. 168, at 3–4 (emphases omitted).

168.   See id.

169.   See, e.g., United States v. Townsend, 762 F.3d 641, 645 (7th Cir. 2014) (“No federal rule or statute allows a motion to reconsider in a criminal case, but reconsideration motions are accepted as a common-law practice.”); United States v. Garrett, 15 F.4th 335, 339 (5th Cir. 2021) (“Courts typically construe a motion to reconsider a denial of compassionate release as a motion to alter or amend a judgment under Federal Rule of Civil Procedure 59(e).”).

170.   See, e.g., Fed. R. App. P. 4(b)(1)(A) (“In a criminal case, a defendant's notice of appeal must be filed in the district court ․” (emphasis added)).

171.   Cf. United States v. Alford, No. 08-374, 2021 WL 2718411, at *3 (W.D. Pa. July 1, 2021) (“The motion for appointment of counsel on appeal is ․ more properly addressed by the appellate court.”); United States v. Bowlson, No. 21-2746, 2022 WL 2913645, at *1–2 (6th Cir. June 29, 2022) (implicitly suggesting that an order appointing counsel to represent a defendant in connection with compassionate release proceedings before the district court doesn't automatically extend to proceedings before the court of appeals).

172.   The Court doesn't presently intend to unseal the cited documents themselves.

DAVID C. GUADERRAMA, SENIOR UNITED STATES DISTRICT JUDGE