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3582 Cases: Administrative Exhaustion

These two 3582 cases present examples of effective use of home confinement and utilization of administrative exhaustion with the BOP

These two 3582 cases present examples of effective use of home confinement and utilization of administrative exhaustion.

United States vs. Sawicz: Administrative Exhaustion Waived

Sawicz was charged with counts pertaining to child pornography.  He pled guilty to those charges in the past.  He was indicted with another child pornography charge as well as a violation of supervised release for the first case. 

In August of 2016 the court sentenced Sawicz to five years of imprisonment for a violation of supervised release.  Sawicz imprisoned at Danbury.  Sawicz had received approval from his unit manager to transfer to a halfway house. Probation approved his parent’s home in Deer Park, NY for his reentry.  He also indicated that the BOP’s residential reentry office was still processing his reentry application.  

On April 5, 2020 he submitted a letter to the warden of Danbury requesting home confinement, citing the CARES Act. On April 9, 2020, he submitted a letter to the Warden of Danbury seeking compassionate release pursuant FIRST STEP Act.  He cited hypertension and indicated that he takes Lisinopril and baby aspirin. As of the filing of this order, there court had not responded.  The government opposed, averring that Sawicz had not exhausted all of his administrative rights with the Bureau of Prisons. “A prisoner exhausts his administrative rights when the BOP fails to bring a motion for compassionate release on his behalf and he exercises all administrative rights to appeal, or after ‘the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier[.]’”  18 USC 3582(c)(1)(A). 

Results in Sawicz

The court waived the administrative exhaustion requirement in this case.  The court found that  "Even where [administrative] exhaustion is seemingly mandated by statute or decisional law, the requirement is not absolute." Washington v. Barr, 925 F.3d 109, 118 (2d Cir. 2019).  The court went on to say that “A court may waive an administrative exhaustion requirement ‘where [exhaustion] would be futile, . . . where the administrative process would be incapable of granting adequate relief . . . [or] where pursuing agency review would subject [the person seeking relief] to undue prejudice.’”  Further, “"[U]ndue delay, if it in fact results in catastrophic health consequences," can justify waiving an administrative exhaustion requirement for any of those three reasons.”  Id. at 120-21.  

Court Considerations in Sawicz

Here the court determined that the COVID-19 outbreak at FCI Danbury combined with Sawicz’s risk of suffering severe complications because of his hypertension justified waiver.  “ The delay that the defendant would experience if he had to wait for thirty days to expire before pursuing a motion for compassionate release in this court would put him at significant risk of suffering catastrophic health consequences.”

The court also stated that extraordinary and compelling reasons warranted Sawicz’s release here by way of the COVID-19 pandemic combined with Sawicz’s particular vulnerability to complications from COVID-19 because of his hypertension.  

Further Evaluation

The court then evaluated the 3553(a) factors to determine whether to grant a reduction in sentence here.  The court acknowledged that this was a serious charge and that Saciwz had already violated one term of supervised release.  However, that “do[es] not justify keeping the defendant in prison amidst an outbreak of a potentially deadly virus to which he is particularly vulnerable.”  The court also noted that Sawicz is five months away from being eligible for home confinement under normal circumstances.  

Finally, the court evaluated whether Sawicz was a danger to the safety of any other person or to the community.  The court noted Sawicz's release would neccesitate 14-day quarantine at home with his parents. This quarantining poses little, if any risk to the public.  The court went on to note that the violation that Sawicz was serving his prison sentence on did not involve violence or physical contact.  

The court granted Sawicz’s compassionate release motion and reduced his sentence to time served.  His release was ordered immediately upon receipt of the order. The sentencing included home confinement that included home incarceration enforced by location monitoring.  United States vs. Sawicz, 08-cr-287 (ARR) (E.D.N.Y. Apr. 10, 2020) 

United States vs. Francis Raia: Administrative Exhaustion Upheld

Raia convicted guilty of conspiring to use the mail to promote unlawful activity.  The district court sentenced Raia to three months in prison and one year of supervised release.  The government appealed the case. 

Raia reported to prison and asked the BOP to move for compassionate release on his behalf.  Before 30 days had passed, Raia filed a motion with the District Court seeking compassionate release given the COVID-19 pandemic.  Raia is 68 years old and suffers from diabetes and heart issues.  The district court denied the motion, stating that the government’s appeal took away the district court’s jurisdiction.  In a footnote, the district court stated 

“Due to increased risk posed by a custodial term and original reasons for a reduced sentence, this Court believes a non-custodial sentence would be more appropriate. The crime here was non-violent and Defendant has otherwise been a highly productive, charitable member of his community. He should be released to home confinement.”

Raia did not appeal that order but instead filed a motion asking the Third Circuit to decide his compassionate-release motion.  The Third Circuit opined that they could send the case back to the District Court under Rule 12.1. The court also indicated any remand would be futile because Raia had not satisfied the 30-day administrative “exhaustion” requirement. 


“[T]he mere existence of COVID-19 in society and the possibility that it may spread to a particular prison alone cannot independently justify compassionate release, especially considering BOP’s statutory role, and its extensive and professional efforts to curtail the virus’s spread. Given a desire for a safe and healthy prison environment, we conclude strict compliance with § 3582(c)(1)(A)’s exhaustion requirement takes on added critical importance. And given the Attorney General’s directive that BOP “prioritize the use of [its] various statutory authorities to grant home confinement for inmates seeking transfer in connection with the ongoing COVID-19 pandemic,” we anticipate that the exhaustion requirement will be speedily dispatched in cases like this one.”

The Third Circuit denied Raia’s motion. The 30-day administrative exhaustion was upheld without subsequent remedies being required. United States vs. Francis Raia, 18-cr-00657, District of New Jersey and No. 20-1033, Third Circuit, April 2, 2020

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