United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
S. VAN BOKKELEN UNITED STATES DISTRICT JUDGE
Mary Elgin requests relief from her sentence, either through
reduction pursuant to 34 U.S.C. Â§ 3582(c)(1)(A) or
modification pursuant to 34 U.S.C. Â§ 60541(g)(1)(B). For the
reasons below, this Court denies Defendant's requests.
Overview of the Case
8, 2017, Defendant pleaded guilty to charges involving wire
fraud and failure to file a tax return. (DE 236 at 1.) She
received a sentence of twelve months and one day in the
United States Bureau of Prisons (the “BOP”).
Id. at 2. On January 3, 2019, while incarcerated,
she sent a request for “reduction of [her] sentence
pursuant to the First Step Act of 2018” to the warden.
(DE 275, Ex. B.) The warden responded the following
(DE 275 at 5.) Over a month later, on February 6, Defendant
filed the instant motion. Id. She did not appeal the
denial through the Administrative Remedy Program, 28 C.F.R.
who is not represented by an attorney, argues that she is
entitled to relief under both § 3582 and § 60541.
However, Defendant has not exhausted her administrative
remedies as required by § 3582. As for § 60541,
this Court does not have the authority to grant the requested
Defendant Has Not Exhausted Her Administrative
inmate may request a reduced sentence based on
“extraordinary and compelling reasons.” 34 U.S.C.
§ 3582(c)(1)(A)(i). Previously, this could only be done
through a motion by the BOP's director, but Congress
amended the statute to allow inmates to file the motion
themselves. First Step Act of 2018, 115 P.L. 319, §
603(b)(1). To take advantage of § 3582, an inmate can
ask the BOP to file the motion on her behalf. 28 C.F.R.
§ 571.61(a). She could also file the motion herself, but
only if either (1) the BOP denies her request and Defendant
exhausts all administrative remedies, or (2) the warden fails
to respond within thirty days. 34 U.S.C. §
3582(c)(1)(A). Here, Defendant concedes that the warden
timely responded. (DE 275 at 5.) Thus, she may only bring
this motion if she exhausted all her administrative remedies.
This she had not done.
method of exhausting administrative remedies depends on who
within the BOP denies the inmate's request for §
3582 relief. A denial by either the BOP's director or
general counsel “constitutes a final administrative
decision” and would allow the inmate to file a §
3582 motion herself. 28 C.F.R. § 571.63(d). But if the
warden denies the request, the inmate must seek relief
through the Administrative Remedy Program, 28 C.F.R. §
542.15 (the “Program”). 28 C.F.R. §
571.63(a). The last step of the Program involves submitting a
BP-11 request, a response to which constitutes a final
administrative decision. BOP Program Statement 5050.50,
§ 9. See also Barnes v. Allred, 482 Fed.Appx.
308, 309 n.2 (10th Cir. 2012) (explaining the steps).
Defendant requested § 3582 relief from the warden. (DE
275, Ex. B.) Yet, because the warden responded instead of the
director or general counsel, Defendant needed to appeal
through the Program. 28 C.F.R. § 571.63(a). Because she
did not do so, this Court cannot entertain her motion at this
time. Once she exhausts her administrative remedies,
Defendant may return to this Court. See United States v.
Mills, 2019 U.S. Dist. LEXIS 10954, *10-11 (M.D. Fla.,
Jan. 23, 2019) (“If the BOP . . . makes a final
administrative decision denying his request . . . [the
defendant] may renew his motion with the
Defendant Must Seek § 60541 Relief from the Attorney
60541 creates a pilot program in which the Attorney General
may release certain elderly inmates to home detention. 34
U.S.C. § 60541(g)(1)(B). Either the BOP or the inmate
herself may file such a request with the Attorney General.
Id. However, this section, unlike § 3582,
offers no avenue for requesting home detention through the
courts. Thus, this Court cannot grant § 60541 relief.
Cf. United States v. Curry, 2019 U.S. Dist. LEXIS
21158, *5 (E.D. Ky., Feb. 8, 2019) (“34 U.S.C. §
60541 only authorizes the Attorney General to modify the
method of imprisonment. It does not permit the Courts to take
motion for Â§ 3582 relief is DENIED without prejudice because
she failed to exhaust her administrative remedies.
Defendant's motion for Â§ 60541 relief is ...