United States of America v. Frank J. Capozzi

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 21-1973
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UNITED STATES OF AMERICA
v.
FRANK J. CAPOZZI,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
No. 3-16-cr-00347-001
District Court Judge: Honorable Robert D. Mariani
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on
June 21, 2022
Before: MCKEE*, RESTREPO, AND BIBAS, Circuit Judges
(Opinion filed: October 27, 2022)
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OPINION
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 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
 Judge McKee assumed senior status on October 21, 2022.

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McKEE, Circuit Judge.
Frank Capozzi appeals the District Court’s denial of his motion for reconsideration
of his request for compassionate release from his sentence to a 70-month term of
imprisonment. Capozzi entered a conditional guilty plea after being charged in a 20-count
indictment with federal fraud and aggravated identity theft for stealing the identities of
inmates in furtherance of the fraud. Soon after sentencing, Capozzi sent a letter to the
District Court requesting a reduction in sentencing due to his health and COVID-19
concerns. The Court instructed the government to treat the letter as a motion for
compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A).
The District Court subsequently denied the motion. This appeal follows.
I.1
Before a district court can consider a defendant’s motion for compassionate
release, a defendant must have “fully exhausted all administrative rights to appeal.”2 For
a defendant to meet this requirement, the Bureau of Prisons must have thirty days to
consider the defendant’s request to move for compassionate release on his or her behalf.3
In reconsidering its denial of the motion for compassionate release, the District Court
acknowledged that there was still an issue with exhaustion. But “[a]ccording to
1 The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3582. We
have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We consider the failure to
exhaust de novo. Hardy v. Shaikh, 959 F.3d 578, 584 (3d Cir. 2020). We review a district
court’s denial of compassionate release for abuse of discretion. United States v.
Pawlowski, 967 F.3d 327, 330 (3d Cir. 2020).
2 18 U.S.C. § 3582(c)(1)(A).
3 Id.

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Defendant, he sent a request to the warden” of the detention center that was holding him
until his transfer to the Federal Bureau of Prisons custody.4 This attempt fails to satisfy
the exhaustion requirement, however, because it is postmarked only twenty days prior to
when Capozzi filed his motion seeking compassionate release. Accordingly, Capozzi did
not wait the requisite thirty days.5 Capozzi does not address this issue on appeal. On the
exhaustion issue alone, we therefore affirm the District Court.
Because Capozzi claimed he attempted to exhaust his administrative right to
appeal, the District Court considered the merits of his motion to reconsider.6 Assuming
arguendo that Capozzi did properly exhaust his administrative rights to appeal and the
matter were properly before the District Court, we would still affirm the court’s denial of
relief. In deciding whether to grant compassionate release, a district court must consider
the relevant factors under 18 U.S.C. § 3553(a) and determine if they weigh in favor of
compassionate release.7 The District Court made this consideration. It reasonably
concluded that several of the factors, “particularly the need for the sentence to reflect the
seriousness of the offense, adequate punishment and deterrence, and protection of the
4 Dkt. 302 at 4.
5 See 18 U.S.C. § 3582(c)(1)(A).
6 It is unclear whether Capozzi’s attempt would constitute exhaustion even if he had
waited the thirty days. The warden responded a few months later denying the request
because Capozzi was not in BOP custody. According to the government, he was awaiting
transfer to BOP custody at the time. It appears that the District Court went on to assess
the merits because of this factual wrinkle. Dkt. 302 at 4 (“In these circumstances, the
Court will assume arguendo that administrative exhaustion has been satisfied and
proceed with the requisite analysis.”). But reaching the merits was likely unnecessary as
this is further evidence of his failure to exhaust because he did not send his request to the
BOP.
7 18 U.S.C. § 3582(c)(1).

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public,” “strongly” counseled against compassionate release. We see no reason to find the
District Court abused its discretion in coming to this conclusion.
II.
For the reasons described above, we therefore affirm the District Court.

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