United States of America v. Nicholas T. Moore

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 21, 2022 *
Decided December 29, 2022
Before
ILANA DIAMOND ROVNER, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 22-1980
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
NICHOLAS T. MOORE,
Defendant-Appellant.
Appeal from the United States District
Court for the Central District of Illinois.
No. 3:95-cr-30024-SLD
Sara Darrow,
Chief Judge.
O R D E R
Nicholas Moore, incarcerated in federal prison, unsuccessfully asked his warden
to move for compassionate release on the ground that a change in law justified such
release. In district court, Moore then stated that the court should grant release for
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 22-1980 Page 2
different reasons. The court denied the motion. Because Moore did not exhaust
administrative remedies regarding his new reasons for release, we affirm.
A jury convicted Moore in 1995 on multiple charges of bank robbery,
see 18 U.S.C. § 2113(a), (d), and using a firearm during a crime of violence, see id.
§ 924(c). Moore received an aggregate sentence of approximately 47 years’
imprisonment, which included mandatory consecutive sentences for the § 924(c)
violations. His tentative release date is in 2040.
In 2020, Moore asked the warden of his prison to move for compassionate release
on his behalf. The only “extraordinary and compelling reasons” for a sentence
reduction, id. § 3582(c)(1)(A)(i), that he identified were recent amendments to § 924(c).
See First Step Act of 2018, Pub. L. No. 115-391, § 403(a), 132 Stat. 5194, 5221–22 (2018)
(codified at 18 U.S.C. § 924(c)(1)(C)). He said that, because of the amendments, he
would receive a shorter prison term if sentenced today. The warden never responded.
Over 30 days later, see 18 U.S.C. § 3582(c)(1)(A), and representing himself, Moore
filed a compassionate-release motion in the district court. Initially, he repeated his
argument in his request to the warden that the amendment to § 924(c) justified a
reduced sentence.
The district court appointed counsel to represent Moore, and counsel amended
the compassionate-release motion. This new motion, however, changed tack. Moore
abandoned his § 924(c) argument and instead contended that (1) his health conditions
and age put him at an increased risk of a severe COVID-19 infection, (2) he was young
when he committed the offenses, and (3) he had made notable rehabilitative efforts. In
response, the government invoked the administrative-exhaustion defense, see 18 U.S.C.
§ 3582(c)(1)(A), arguing that Moore’s failure to ask the warden to move for a reduced
sentence based on the reasons in his amended motion blocked him from making those
arguments in court. The district court agreed and denied the amended motion.
(Regarding the original motion, the court said (1) the amended motion mooted it, and
(2) in any event, the § 924(c) argument lacked merit because of United States v. Thacker,
4 F.4th 569 (7th Cir. 2021), cert. denied, 142 S. Ct. 1363 (2022)). Moore appeals.
The government is correct that Moore failed to exhaust his administrative
remedies. Prisoners must exhaust a specific issue before they can move for
compassionate release on that issue. United States v. Williams, 987 F.3d 700, 703–04
(7th Cir. 2021). If they do not, and if the government properly invokes exhaustion, the
district court must deny the motion because exhaustion is a mandatory claim-

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No. 22-1980 Page 3
processing rule. United States v. Sanford, 986 F.3d 779, 782 (7th Cir. 2021). Moore never
asked the warden to move for compassionate release based on the reasons in his
amended motion (a fact pattern identical to Williams), and the government has invoked
the exhaustion defense. The court thus correctly denied Moore’s motion.
Moore does not seriously dispute this analysis; instead, he argues—for the first
time on appeal—that the exhaustion requirement does not apply to him in this case. He
states that the warden at his prison has never filed a compassionate-release motion on
behalf of a prisoner. From this, Moore believes that administrative remedies were not
available to him, which in turn, he says, excused him from the exhaustion requirement.
Moore arguably waived this contention by omitting it from his amended
compassionate-release motion or his reply, see United States v. Martin, 21 F.4th 944, 945
(7th Cir. 2021); United States v. Simon, 952 F.3d 848, 852 (7th Cir. 2020), but we reject it on
the merits. The compassionate-release statute does not excuse exhaustion even if a
warden is “unavailable” because the warden categorically refuses to move for any
prisoner’s compassionate release. See 18 U.S.C. § 3582(c)(1)(A). Congress knew how to
create such an exception for situations where administrative remedies are not
“available,” as it did with the Prison Litigation Reform Act’s exhaustion requirement.
See 42 U.S.C. § 1997e(a); Ross v. Blake, 578 U.S. 632, 643 (2016) (explaining that if prison
officials never respond to grievances, then administrative remedies are not “available”
under the PLRA, and exhaustion is not required). Instead, the compassionate-release
statute has a different mechanism to deal with recalcitrant wardens: Prisoners can seek
compassionate release themselves in federal court if a warden does not respond to their
requests within 30 days. See 18 U.S.C. § 3582(c)(1)(A). But regarding his new reasons for
release, Moore did not present them to his warden and wait the required 30 days.
Therefore, he did not exhaust his administrative remedies.
We have considered Moore’s other arguments regarding exhaustion, but none
has merit. As such, Moore’s failure to exhaust resolves this appeal, and we do not reach
the merits of his motion. See Sanford, 986 F.3d at 782.
AFFIRMED

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