Case: 10-13618 Date Filed: 08/07/2012 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 10-13618
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D.C. Docket No. 5:10-cv-244-JDW-GRJ
HIPOLITO CRUZ-PAGAN,
Petitioner-Appellant,
versus
WARDEN, FCC COLEMAN-LOW,
Respondent-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(August 7, 2012 )
Before MARCUS, COX and SILER,* Circuit Judges.
SILER, Circuit Judge:
Hipolito Cruz-Pagan (Cruz) petitions for review the district court’s dismissal
of his petition for habeas corpus pursuant to 28 U.S.C. § 2241. We affirm.
*
Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by
designation.
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I.
A.
Cruz is an inmate at the Bureau of Prisons (BOP) Coleman-Low correctional
center in Florida. In March 2010, he filed a request for compassionate release.
In April 2010, Cruz sent two emails to the Warden for an update on his request.
He received a written denial of his request on April 28. On April 30, the Warden
replied to Cruz’s emails and stated, “Your paperwork is being processed.”
B.
The BOP Administrative Remedy Program states an inmate may “seek formal
review of an issue relating to any aspect of his[] own confinement” through a three-
level appeal process. 28 C.F.R. § 542.10, et seq. Despite the BOP’s administrative
process, Cruz, pro se, filed a § 2241 petition in the district court after the Warden
denied his request. Cruz claimed the § 2241 petition was proper because there were
fraudulent improprieties in the administrative process, as evidenced in the
discrepancy between the written denial and the Warden’s email, which made the
process futile. The district court dismissed the petition for failure to exhaust
administrative remedies because exhaustion is jurisdictional. See Skinner v. Wiley,
355 F.3d 1293, 1295 (11th Cir. 2004) (per curiam); Gonzalez v. United States, 959
F.2d 211, 212 (11th Cir. 1992) (per curiam).
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After the parties filed their appellate briefs, the Supreme Court ruled in
Gonzalez v. Thaler, 132 S.Ct. 641, 648 (2012), that “[a] rule is jurisdictional if the
Legislature clearly states that a threshold limitation on a statute’s scope shall count
as jurisdictional. But if Congress does not rank a statutory limitation on coverage as
jurisdictional, courts should treat the restriction as nonjurisdictional.” (quotation
marks and citations omitted). Since Congress did not place an administrative
exhaustion requirement in § 2241, the parties argue that exhaustion is “a mandatory
but nonjurisdictional” rule. Id. at 656.
At oral argument we requested additional briefing on whether Cruz could
pursue his petition under 18 U.S.C. § 3582(c)(1).
II.
We review § 2241 petitions de novo. Skinner, 355 F.3d at 1294.
III.
Whether our Gonzalez and Skinner line of cases, regarding the jurisdictional
impact of administrative exhaustion, was overruled is a question for another case.
The holding in the Supreme Court’s Gonzalez opinion was that 28 U.S.C. §
2253(c)(3), did not have a jurisdictional requirement. 132 S.Ct. at 646. Since that
statute is not at issue here, we cannot say that our Gonzalez and Skinner line of cases
was overruled.
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Federal courts must have authority to grant a § 2241 petition and 18 U.S.C. §
3582(c)(1) is a source of that authority. But under § 3582(c)(1)(A), a court cannot
reduce a prisoner’s sentence except “upon [the] motion of the Director of the [BOP]”
and a finding that “extraordinary and compelling reasons warrant” a reduction. The
plain meaning of this section requires a motion by the Director as a condition
precedent to the district court before it can reduce a term of imprisonment. The BOP
has not made a motion on Cruz’s behalf. Accordingly, we do not have the authority
to modify his sentence under § 3582(c)(1)(A). See Fernandez v. United States, 941
F.2d 1488, 1492-93 & n.10 (11th Cir.1991) (The BOP’s decision whether to seek a
compassionate release under the predecessor to § 3582(c)(1)(A)(i) is not reviewable).
Under 18 U.S.C. § 3582(c)(1)(B), courts “may modify” a sentence only “to the
extent otherwise expressly permitted by statute” or Federal Rule of Criminal
Procedure 35. Cruz has not cited a case, statute, or rule of procedure that gives us the
authority to modify his sentence. He admits his § 2241 petition cannot provide him
compassionate release but argues that a hearing should be held anyway. But without
a motion from the Director, a precedential case, an authorizing statute, or an
authorizing Rule granting us subject-matter jurisdiction, we cannot modify his
sentence. Therefore, Cruz’s petition is dismissed.
AFFIRMED.
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