USA v. Rosario et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
WILLIAM MICHAEL ROSARIO,
Defendant.
Case No. 3:16-cr-00047-TMB
ORDER
I. 	INTRODUCTION
The matter comes before the Court on the Defendant William Michael
Rosario’s “Motion for Sentence Reduction Pursuant to 18 U.S.C. § 3582(c)(1)(A)” (the
Motion) at Docket 411.1 	The Government filed a response in opposition at Docket 419.
For the reasons discussed below, the Motion is DENIED.
II. 	BACKGROUND
On 	December 	20, 	2018, 	Mr. 	Rosario 	was sentenced 	to 	120 	months’
incarceration, 	followed 	by 	five 	years’ 	supervised 	release 	for 	Drug 	Conspiracy.2
Mr. Rosario currently is incarcerated at FCI Fort Dix in New Jersey, and his sentence is
1 Mr. Rosario filed two supplements to his Motion at Dockets 422 and 423.
2 Docket 395 at 2 (Sealed).
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projected to end on January 12, 2026.3 	Mr. Rosario argues that his sentence should be
reduced to 90 months because “his lawyer’s ineffective assistance of counsel [] prevented
him from taking advantage of a significant sentencing benefit conferred by the First Step
Act, in combination with . . . his contraction of COVID-19 and unnecessary suffering while
in Bureau of Prisons custody, as well as his rehabilitative efforts.”4 	The Government
responds that Mr. Rosario’s Motion should be denied because he has not exhausted his
administrative remedies and has not shown extraordinary and compelling reasons to justify
a reduction in sentence, and because the 18 U.S.C. § 3553(a) factors do not support a
reduction in sentence.5
Mr. Rosario filed previous motions for compassionate release at Dockets 390
and 398.6 	In Mr. Rosario’s first motion for compassionate release, he argued that the
current conditions of confinement put him at risk of contracting COVID-19 in violation of
the Eighth Amendment, and the failure to release him in light of such risk violated his due
process rights.7 The Court denied this motion, finding that it did not have jurisdiction to
rule on Mr. Rosario’s Constitutional claims, but also that, because he did not belong to a
vulnerable age group or suffer from an underlying medical condition, he did not show
extraordinary and compelling reasons warranting release.8 	In a subsequent motion for
3 Docket 419 at 2.
4 Docket 411 at 14.
5 Docket 419 at 3–9.
6 Mr. Rosario additionally filed an “Emergency Motion for Home Confinement Pursuant to
[Eighth] Amendment of the U.S. Constitution,” which is partially stylized as a motion for compassionate
release, at Docket 397.
7 Docket 390 at 14.
8 Docket 396 at 4–5.
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compassionate release, Mr. Rosario argued that his contraction of COVID-19 while
incarcerated presented extraordinary and compelling circumstances warranting his release
to home confinement.9 	The Court again denied his motion, this time finding that
Mr. Rosario did not properly exhaust his administrative remedies when he relied on a
previous request to the warden, and did not make a new request in light of changed
circumstances.10
III. 	LEGAL STANDARD
The First Step Act of 2018 amended 18 U.S.C. § 3582(c)(1)(A) to allow a
defendant to move the district court for a sentence reduction after exhausting their
administrative remedies.11 After considering the applicable factors set forth in 18 U.S.C.
§ 3553(a), a court may grant the motion if it finds “extraordinary and compelling reasons
warrant such a reduction; . . . and that such a reduction is consistent with the applicable
policy statements issued by the Sentencing Commission.”12 The Sentencing Commission’s
policy statement related to compassionate release is found at U.S.S.G. § 1B1.13. 	The
policy statement provides four categories of “extraordinary and compelling reasons” that
may warrant relief: (1) the defendant’s medical condition; (2) the defendant’s age; (3) the
defendant’s family circumstances; and (4) “other reasons.”13 	Furthermore, a court may
9 Docket 398 at 5.
10 Docket 403 at 4.
11 See Pub. L. 115-391, 132 Stat. 5194, 5239 (2018).
12 18 U.S.C. § 3582(c)(1)(A).
13 U.S.S.G. § 1B1.13.
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grant relief only if it determines “the defendant is not a danger to the safety of any other
person or to the community.”14
IV. 	ANALYSIS
As a threshold matter, this Court may consider Mr. Rosario’s Motion only if
he has “fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons
to bring a motion on the defendant’s behalf or the lapse of 30 days from the receipt of such
a request by warden of the defendant’s facility[.]”15 Mr. Rosario argues that he submitted
a request for reduction in sentence to the warden of his facility, and that request was denied
on March 16, 2021.16 Mr. Rosario attached a copy of the warden’s denial to his Motion,
which states that the request was not considered because Mr. Rosario did not “seek release
under any of the enumerated categories.”17 	Mr. Rosario later filed a supplement to his
Motion, which contains an email addressed to the warden of his facility requesting
compassionate release due to ineffective assistance of counsel, his contraction of COVID-
19, and clean disciplinary record.18 	That email is dated July 12, 2021.19 	In response to
that email, the warden sent a letter dated July 30, 2021, denying Mr. Rosario’s request,
again stating that the request was not considered because Mr. Rosario did not seek
compassionate release under a statutorily enumerated category.20
14 Id.
15 18 U.S.C. § 3582(c)(1)(A).
16 Docket 411 at 9.
17 Docket 411-1.
18 See Docket 422-1.
19 Id.
20 See Docket 422-3.
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It is unclear to the Court on which denial from the warden Mr. Rosario is
relying to show that he has exhausted administrative remedies, but neither are sufficient.
The Ninth Circuit has found that requests for compassionate release were insufficient to
meet § 3582(c)(1)(A)’s exhaustion requirement where the defendant “made no mention”
of the specific grounds for compassionate release in his request to the warden.21 Citing to
28 C.F.R. § 571.61(a), the Ninth Circuit noted that an “inmate’s request to the BOP must
be submitted to the warden and, at a minimum, contain the ‘extraordinary or compelling
circumstances that the inmate believes warrant consideration.’”22 	Further, other district
courts in this Circuit have concluded that a defendant’s request to the warden must specify
the bases for compassionate release before the defendant can assert those bases in a motion
to a district court.23 With regard to the March 16, 2021, denial letter, it is unclear to what
extraordinary and compelling circumstances Mr. Rosario cited in making this request. The
denial letter itself does not state the requested considerations, and Mr. Rosario has not
shown a copy of his original request to the warden. 24 	This Court cannot excuse
21 United States v. Rice, 848 Fed. App’x 320, 321 (9th Cir. 2021).
22 Id.
23 See, e.g., United States v. Roueche, Case No. CR07-344RSL, 2021 WL 2778577, at *4 (W.D.
Wash. July 2, 2021) (“[I]t would be contrary to the purpose of the exhaustion requirement to permit any
request to the Warden to satisfy a defendant’s exhaustion obligations.”); United States v. Chavez-Zarate,
No. 1:98-cr-05149-NONE, 2020 WL 5095936, at *4 (E.D. Cal. Aug. 28, 2020) (“In order to exhaust his
administrative remedies in this regard, a defendant must have requested compassionate release from BOP
on similar grounds asserted in his or her motion filed with the court.”); United States v. Mogavero, Case
No. 2:15-cr-00074-JAD-NJK, 2020 WL 1853754, at *2 (D. Nev. Apr. 13, 2020) (“Proper exhaustion
necessarily requires the inmate to present the same factual basis for the compassionate-release request to
the warden.”); United States v. Greenhut, No. 2:18-CR-00048-CAS, 2019 WL 6218952, at *2 (C.D. Cal.
Nov. 21, 2019) (finding that exhaustion was not satisfied where the defendant's request to BOP was based
on “non-medical grounds,” but the motion filed with the court was based on medical grounds).
24 Mr. Rosario included copies of his previous requests for compassionate release, but, as the Court
previously has noted, these are insufficient to satisfy the exhaustion requirement where a defendant is
requesting compassionate release for different reasons. See Docket 403 at 4.
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Mr. Rosario’s burden to show that he properly complied with 18 U.S.C. § 3582(c)(1)(A)’s
administrative exhaustion requirement.
Although Mr. Rosario can show that he articulated the bases for his current
compassionate release request in an email dated July 12, 2021, to the warden, Mr. Rosario’s
current Motion was filed on June 14, 2021, several weeks before the request was made and
over a month before the warden’s denial letter was received on July 30, 2021.25 The Ninth
Circuit recently “clarif[ied] that a district court must enforce the administrative exhaustion
requirement articulated in 18 U.S.C. § 3582(c)(1)(A) when the government properly
invokes the requirement,” which it has done here.26 Mr. Rosario’s Motion simply does not
comply with the statutory requirements, and the Court declines to excuse Mr. Rosario’s
failure 	to 	exhaust 	administrative 	remedies, 	particularly 	where 	the Government 	has
objected.27
Accordingly, the Motion at Docket 411 is DENIED without prejudice.28
IT IS SO ORDERED this 15th day of October, 2021, at Anchorage, Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
United States District Judge
25 See Dockets 411; 422-1; 422-3.
26 See United States v. Keller, 2 F.4th 1278, 1280 (9th Cir. 2021).
27 See id. at 1282 (“Joining the unanimous consensus of our sister circuits, we hold that
§ 3582(c)(1)(A)’s administrative exhaustion requirement imposes a mandatory claim-processing rule that
must be enforced when properly invoked.”).
28 Mr. Rosario is permitted to pursue compassionate release again in the future should he show that
he has properly met the exhaustion requirements of 18 U.S.C. § 3582(c)(1)(A).
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