FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 20-50247
Plaintiff-Appellee, 21-50035
v. D.C. Nos.
2:15-cr-00366-RGK-1
DANIEL EUGENE KELLER, 2:15-cr-00366-RGK
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Submitted May 7, 2021 *
Pasadena, California
Filed July 1, 2021
Before: Kim McLane Wardlaw, Ronald M. Gould, and
John B. Owens, Circuit Judges.
Per Curiam Opinion
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 UNITED STATES V. KELLER
SUMMARY **
Criminal Law
The panel affirmed the district court’s denial of both of
Daniel Eugene Keller’s motions for compassionate release
under 18 U.S.C. § 3582(c)(1)(A)(i), without prejudice to
filing a new motion in the district court after exhausting his
administrative remedies with the Bureau of Prisons.
After Keller exhausted his statutorily prescribed
administrative remedies with the BOP, the district court
denied his first motion for compassionate release without
prejudice on the merits. Several months later, Keller filed a
second motion for compassionate release without exhausting
his administrative remedies with the BOP before seeking
relief in the district court. The district court’s order did not
address the government’s objection regarding exhaustion,
but again denied the motion on the merits.
The panel held that the administrative exhaustion
requirement articulated in § 3582(c)(1)(A)(i) is a mandatory
claim-processing rule that a district court must enforce when
properly invoked. The panel held that because the
government properly objected to Keller’s failure to exhaust
his administrative remedies before filing the second motion,
the district court erred by overlooking the government’s
exhaustion objection and addressing the motion on the
merits. The panel wrote that this error was harmless because
the district court denied the motion on other grounds. The
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. KELLER 3
panel rejected Keller’s arguments that he did in fact satisfy
the administrative exhaustion requirement.
As to the first motion, which was filed after Keller
properly exhausted his administrative remedies, the panel
held that the district court did not abuse its discretion in
finding that the sentencing factors enumerated in 18 U.S.C.
§ 3553(a) weighed against Keller’s release. The panel
disagreed with Keller’s argument that the district court erred
by not making an explicit “extraordinary and compelling”
finding before denying the motion on an account of the
§ 3553(a) factors. The panel explained that although a
district court must perform that sequential step-by-step
analysis before it grants compassionate release, a district
court that properly denies compassionate release need not
evaluate each step.
COUNSEL
Cuauhtemoc Ortega, Federal Public Defender; James H.
Locklin, Deputy Federal Public Defender; Office of the
Federal Public Defender, Los Angeles, California; for
Defendant-Appellant.
Tracy L. Wilkison, Acting United States Attorney; Bram M.
Alden, Acting Chief, Criminal Appeals Section; Adam P.
Schleifer, Assistant United States Attorney; United States
Attorney’s Office, Los Angeles, California; for Plaintiff-
Appellee.
4 UNITED STATES V. KELLER
OPINION
PER CURIAM:
Since the start of the COVID-19 pandemic, Daniel
Eugene Keller has twice sought compassionate release from
the district court under 18 U.S.C. § 3582(c)(1)(A). Both
attempts proved unsuccessful. After Keller exhausted his
statutorily prescribed administrative remedies with the
Bureau of Prisons (“BOP”), the district court denied his first
motion for compassionate release without prejudice on the
merits. Several months later, Keller filed a second motion
for compassionate release. This time, however, Keller did
not exhaust his administrative remedies with the BOP before
seeking relief in federal court. The district court’s order did
not address the government’s objection regarding
exhaustion, but again denied Keller’s motion on its merits.
Joining five circuits, we take this opportunity to clarify
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.
I.
In 2015, Keller pled guilty to possession with intent to
distribute at least 50 grams of methamphetamine and to
being a felon in possession of a firearm in violation of
21 U.S.C. § 841(a)(1), (b)(1)(B), and 18 U.S.C. § 922(g)(1),
respectively. The district court sentenced Keller to
173 months’ imprisonment followed by eight years’
supervised release. On the government’s motion, Keller’s
incarceratory sentence was subsequently reduced to
137 months.
UNITED STATES V. KELLER 5
When COVID-19 engulfed the nation’s prison system in
2020, Keller filed his first motion for compassionate release
under 18 U.S.C. § 3582(c)(1)(A). 1 The government
conceded that Keller had exhausted his administrative
remedies with the BOP, as required under § 3582(c)(1)(A),
and addressed Keller’s motion on its merits. The district
court denied the motion in a one-page order on September 4,
2020 (“September Order”), concluding that the sentencing
factors enumerated in 18 U.S.C. § 3553(a) “weigh[ed]
against compassionate release.” Keller timely appealed.
On January 7, 2021, while Keller’s first appeal was
pending before us, he filed a second administrative request
for a sentence reduction with the warden of his facility. But
Keller did not wait for a response. Instead, after just eight
days, Keller filed a “Renewed Motion for Compassionate
Release” with the district court. In opposition, the
government objected to Keller’s failure to comply with
§ 3582(c)(1)(A)’s requirement that he exhaust his
administrative remedies with the BOP before seeking relief
in the district court. Meanwhile, on January 19, the warden
denied Keller’s second administrative request.
Without addressing the government’s objection, the
district court denied the renewed motion on February 12,
2021 (“February Order”). Keller again timely appealed. We
granted Keller’s unopposed motion to consolidate both
pending appeals and allowed supplemental briefing.
1
Keller filed several pro se administrative requests for
compassionate release with the BOP. On July 21, 2020, Keller’s counsel
submitted a formal request for compassionate release to the warden of
his facility.
6 UNITED STATES V. KELLER
II.
“[W]e review § 3582(c)(1) sentence reduction decisions
for abuse of discretion.” United States v. Aruda, 993 F.3d
797, 799 (9th Cir. 2021) (per curiam). “A district court may
abuse its discretion if it does not apply the correct law or if
it rests its decision on a clearly erroneous finding of material
fact.” Id. (quoting United States v. Dunn, 728 F.3d 1151,
1155 (9th Cir. 2013)).
III.
A.
Congress has confirmed that a federal court “may not
modify a term of imprisonment once it has been imposed.”
18 U.S.C. § 3582(c). But this general rule is subject to
several exceptions, one of which provides courts the
discretion to grant a prisoner compassionate release when
certain conditions are met. See id. § 3582(c)(1)(A). For the
statute’s first 30 years, “only the BOP Director could file a
§ 3582(c)(1)(A) motion for a sentence reduction.” Aruda,
993 F.3d at 799. But the First Step Act of 2018 broadened
this exception to allow a defendant to seek a reduction
directly from the court, provided that “the defendant has
fully exhausted all administrative rights to appeal a failure
of the [BOP] 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.”
Pub. L. No. 115-391, Title VI, sec. 603(b)(1), § 3582, 132
Stat. 5194, 5239 (2018) (emphasis added).
In other words, a court may not consider a motion
brought under § 3582(c)(1)(A) unless (1) the Director of the
BOP has filed the motion on the inmate’s behalf, or (2) the
inmate has requested that the BOP make such a motion and
UNITED STATES V. KELLER 7
either (a) the inmate has “fully exhausted all administrative
rights to appeal a failure of the [BOP] to bring a motion on
the [inmate]’s behalf,” or (b) 30 days have elapsed since the
“warden of the [inmate]’s facility” received a
compassionate-release request from the inmate. 18 U.S.C.
§ 3582(c)(1)(A).
Just as district courts split over whether the current
version of the U.S. Sentencing Guidelines Manual § 1B1.13
provided an “applicable policy statement,” see Aruda,
993 F.3d at 801, a similar debate has ensued over whether
the statute’s administrative exhaustion requirement creates a
jurisdictional bar or instead imposes a mandatory claim-
processing rule, see, e.g., United States v. Watkins, No. 14-
CR-00556-JD-1, 2020 WL 4702151, at *2–3 (N.D. Cal.
Aug. 13, 2020). And, as the Supreme Court recently
stressed, these procedural roadblocks behave quite
differently. See Fort Bend County v. Davis, 139 S. Ct. 1843,
1849 (2019). “[C]hallenges to subject-matter jurisdiction
may be raised by [a party] ‘at any point in the litigation,’ and
courts must consider them sua sponte.” Id. (quoting
Gonzalez v. Thaler, 565 U.S. 134, 141 (2012)). Claim-
processing rules, on the other hand, “seek to promote the
orderly progress of litigation by requiring that the parties
take certain procedural steps at certain specified times.” Id.
(quoting Henderson ex rel. Henderson v. Shinseki, 562 U.S.
428, 435 (2011)). Thus, a “claim-processing rule may be
‘mandatory’ in the sense that a court must enforce the rule if
a party ‘properly raise[s]’ it,” but the objection “may be
forfeited ‘if the party asserting the rule waits too long to raise
the point.’” Id. (quoting Eberhart v. United States, 546 U.S.
12, 15, 19 (2005) (per curiam)).
The government now concedes that the failure to satisfy
§ 3582(c)(1)(A)’s administrative exhaustion requirement
8 UNITED STATES V. KELLER
does not deprive us of subject-matter jurisdiction, the same
conclusion reached by every circuit court to have addressed
the question. See United States v. Alam, 960 F.3d 831, 833
(6th Cir. 2020); United States v. Franco, 973 F.3d 465, 467–
68 (5th Cir. 2020); United States v. Harris, 989 F.3d 908,
911 (11th Cir. 2021). The government nonetheless
maintains that a district court may not, as it did here, excuse
a defendant’s failure to satisfy that requirement over the
government’s timely objection. We agree.
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. See Alam,
960 F.3d at 833–34; Franco, 973 F.3d at 468; Harris,
989 F.3d at 911; United States v. Sanford, 986 F.3d 779, 782
(7th Cir. 2021); United States v. Raia, 954 F.3d 594, 597 (3d
Cir. 2020); see also United States v. Johnson, No. 20-6103,
2021 WL 1053706, at *2 (10th Cir. Mar. 19, 2021); United
States v. Fuentes, 834 F. App’x 414, 415 (9th Cir. 2021) (“A
court may not excuse a defendant’s failure to comply with a
statutory exhaustion requirement.”).
Interpreting § 3582(c)(1)(A) in this manner makes sense
for several reasons. First, the statutory command is clear: a
“court may not modify a term of imprisonment” unless the
defendant has fully complied with the exhaustion
requirement. 18 U.S.C. § 3582(c) (emphasis added).
Indeed, “[t]his is the language of ‘a paradigmatic mandatory
claim-processing rule.’” Sanford, 986 F.3d at 782 (quoting
Franco, 973 F.3d at 468). Second, the requirement promotes
good policy. For example, during a global pandemic, it
allows the government to “implement an orderly system for
reviewing compassionate-release applications,” rather than
one “that incentivizes line jumping.” Alam, 960 F.3d at 834.
UNITED STATES V. KELLER 9
This system, in turn, “ensures that the prison administrators
can prioritize the most urgent claims.” Id. at 835.
We therefore hold that § 3582(c)(1)(A)’s administrative
exhaustion requirement is mandatory and must be enforced
when properly raised by the government.
B.
Although the district court “passed over the exhaustion
question in favor of a ruling on the merits, a remand for
exhaustion factfinding is unnecessary because the facts are
not in dispute.” Sanford, 986 F.3d at 782. Rather than wait
the required 30 days from the filing of his request, Keller
filed his renewed motion in federal court just eight days after
the warden’s receipt of his request. Keller also did not “fully
exhaust[] all administrative rights to appeal” the BOP’s
failure to bring a motion on his behalf. 18 U.S.C.
§ 3582(c)(1)(A). Because the government properly objected
to Keller’s failure to exhaust his administrative remedies, the
district court erred by overlooking the government’s
objection and addressing Keller’s motion on its merits.
Nonetheless, this error was harmless because the district
court denied Keller’s motion on other grounds.
Keller’s arguments that he did in fact satisfy the
administrative exhaustion requirement are unavailing. First,
Keller asserts that he fully exhausted his administrative
remedies for his second motion because 30 days had passed
since he lodged his first administrative request with the
warden in July 2020. But the July 2020 request served as
the predicate for Keller’s first motion in the district court,
which was denied in September 2020, and could not have
initiated the administrative process for his January 2021
motion, which was itself premised on Keller’s claim of
changed circumstances. Moreover, Keller’s own conduct—
10 UNITED STATES V. KELLER
namely, filing a second administrative request with the
warden in January 2021 before turning to the district court—
undermines this argument.
Next, Keller argues that he satisfied the exhaustion
requirement because 30 days elapsed between his second
request to the warden and the district court’s denial of his
second motion in January 2021. But this argument ignores
the statutory text and the important policy goals that we
discussed (and endorsed) above. The statute plainly states
that the “court may not modify a term of imprisonment . . .
except . . . , upon the motion of the defendant after” the
defendant has fully exhausted his administrative remedies.
18 U.S.C. § 3582(c)(1)(A) (emphasis added). Keller
attempts to construe “after” as relating to the entry of the
district court’s order rather than the filing of the defendant’s
motion. But such an interpretation would contravene the
useful purposes behind claim-processing rules, which “seek
to promote the orderly progress of litigation by requiring that
the parties take certain procedural steps at certain specified
times,” Henderson, 562 U.S. at 435, and not to control the
speed of judicial adjudication. As described above, such
procedural rules allow the executive branch to carefully
evaluate a claim in the first instance and possibly obviate the
need for litigation before it begins. See Franco, 973 F.3d at
468 (“Congress used clear language: all requests for
compassionate release must be presented to the [BOP]
before they are litigated in the federal courts.”). 2
2
Because we affirm the February Order on the ground that Keller
failed to exhaust his administrative remedies before filing a motion with
the district court, we need not address either party’s arguments regarding
whether extraordinary and compelling reasons exist for release.
Accordingly, we deny as moot the government’s motion for judicial
notice and the motion to file certain medical records under seal.
UNITED STATES V. KELLER 11
C.
We now turn to the appeal of the September Order, in
which the parties agree that Keller properly exhausted his
administrative remedies. For a § 3582(c)(1)(A)(i) motion
filed by a defendant, courts currently consider (1) whether
“extraordinary and compelling reasons warrant such a
reduction”; and (2) “the factors set forth in section 3553(a)
to the extent that they are applicable.” 18 U.S.C.
§ 3582(c)(1)(A)(i); see also Aruda, 993 F.3d at 801–02.
In its September Order, the district court explained that
the sentencing factors enumerated in 18 U.S.C. § 3553(a)
weighed against Keller’s release. Specifically, when
determining whether Keller “remain[ed] a danger to the
safety of any other person or to the community,” the district
court observed that Keller had committed “multiple federal
crimes” that involved “drug trafficking and possession of
firearms,” and rejected Keller’s assertion that his ailments
would preclude him from committing such crimes because
they “d[id] not require a great amount of mobility.” The
court further noted that Keller had “55 months remaining”
on a “lengthy 137-month sentence.”
Given Keller’s extensive criminal history, as well as the
deference we must afford the district court when it makes
these discretionary decisions, we cannot conclude that the
district court abused its discretion with this finding. Keller
nonetheless contends that motions brought under
§ 3582(c)(1)(A)(i) require courts to perform a sequential
step-by-step analysis and argues that the district court erred
by not making an explicit “extraordinary and compelling”
finding before denying the motion on account of the
§ 3553(a) factors. We disagree. As the government
correctly argues, although a district court must perform this
sequential inquiry before it grants compassionate release, a
12 UNITED STATES V. KELLER
district court that properly denies compassionate release
need not evaluate each step. Indeed, the Sixth Circuit
implicitly endorsed this approach when it “assumed for the
sake of argument that extraordinary and compelling reasons
existed,” but then proceeded to deny the defendant’s motion
because it found that an evaluation of the § 3553(a) factors
precluded relief. United States v. Jones, 980 F.3d 1098,
1108, 1111–15 (6th Cir. 2020); see also id. at 1116 (Cook,
J., concurring) (“No feature of § 3582(c)(1)(A) precludes a
court from tackling the § 3553(a) factors first.”).
IV.
For these reasons, we AFFIRM the district court’s
denial of both of Keller’s motions for compassionate release,
without prejudice. Keller remains free to file a new motion
in the district court after exhausting his administrative
remedies with the BOP.