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Wait Time Before Filing Covid-19 Relief Motion

Many of you will be able to use the text of 18 USC § 3582(c)(1)(A) in order to file your motions after 30 days of reaching out to the BOP.

In United States vs Harris, there is very important information that you might be able to use when determining when you should file your COVID-19 compassionate release motion.

Harris sought release from prison and sent his request in to the warden. The warden denied his request inside the 30 day window.

Harris filed a 2241 motion in February 2019. It was recharacterized as a motion for compassionate release. At the district court, the government argued that because Harris was denied by the warden within the 30 day window, that he had to continue with the administrative remedy process (meaning the BP 9, 10, and 11). The district court determined that harris had not done this and dismissed his case. Harris filed a motion for reconsideration that the court denied. Harris then appealed.

On appeal, the government conceded that their exhaustion argument was in error and asked that the case be reversed. The appellate court agreed that the district court erred stating that the text of 3582(c)(1)(A) states that "A prisoner may file a motion for compassionate release with the sentencing court 'after [he or she] 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 the warden of the defendant’s facility, whichever is earlier (emphasis mine).'"

The court determined that the government's concession was well-taken. The Third Circuit vacated the district court's sentence and remanded the case back to the district court for further proceedings.

Now I need to say that there is a footnote that states "This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent." But I still believe that many of you will be able to use this as a textual argument that you have satisfied the statutory requirements in order to file your motion. Our review of the applicable law indicates that this may vary from district to district and from circuit to circuit so be mindful. Furthermore, you still must have the necessary documents before filing such as medical records, a safety plan, a release plan, proof that you engaged in the administrative remedy process, and the rest of the things that I listed in the post Expediting a compassionate release motion.

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The Law Office of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had favorable outcomes in more than 70 cases in the past four years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to reach out to us today to visit with us on how we might be able to help you or your loved one get the representation they deserve. For more information on appeals please click here.  If you can also add us on Facebook or Twitter.  

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