United States v. Purify

Appellate Case: 20-5075 Document: 010110613846 FILED Page: 1
Date Filed: 12/03/2021
United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS December 3, 2021
Christopher M. Wolpert
TENTH CIRCUIT Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 20-5075
(D.C. No. 4:13-CR-00028-JED-29)
CORRY PURIFY, (N.D. Okla.)

Defendant - Appellant.

ORDER AND JUDGMENT *

Before HOLMES, BACHARACH, and MORITZ, Circuit Judges.

Mr. Corry Purify, proceeding pro se, 1 appeals from the district court’s

dismissal of his motion for a sentence reduction brought under 18 U.S.C.

§ 3582(c)(1)(A)(i). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1. After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist in the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
1
Because Mr. Purify appears pro se, we construe his filings liberally,
but do not act as his advocate. See United States v. Parker, 720 F.3d 781, 784 n.1
(10th Cir. 2013).
Appellate Case: 20-5075 Document: 010110613846 Date Filed: 12/03/2021 Page: 2

I

Mr. Purify is incarcerated at FPC Yankton in South Dakota. He was

previously convicted of a drug conspiracy offense in violation of 21 U.S.C. § 846

and was sentenced to 120 months’ imprisonment and five years’ supervised

release.

On April 29, 2020, Mr. Purify petitioned the officials at FPC Yankton to

place him in home confinement pursuant to the Coronavirus Aid, Relief, and

Economic Security (“CARES”) Act, Pub. L. No. 116-136, § 12003(b)(2), 134

Stat. 281, 516 (2020), and then-Attorney General William Barr’s memorandum

regarding home confinement prioritization and the COVID-19 pandemic. The

Warden denied his request on May 5, 2020, concluding that Mr. Purify did not

meet the priority guidelines for a transfer to home confinement.

On May 22, 2020, Mr. Purify filed a motion for reduction of sentence under

18 U.S.C. § 3582(c)(1)(A)(i)—arguing that such relief was warranted in light of

the health risks associated with the COVID-19 pandemic. Section

3582(c)(1)(A)(i) allows the district court to modify a prisoner’s sentence if

“extraordinary and compelling reasons warrant such a reduction.” 18 U.S.C.

§ 3582(c)(1)(A)(i).

Mr. Purify did not clearly state what relief he sought in the motion. To

start, Mr. Purify asked the district court “to modify [his] sentence in regards to”

2
Appellate Case: 20-5075 Document: 010110613846 Date Filed: 12/03/2021 Page: 3

the CARES Act, which he articulated as a “modif[ication]” under § 3582. R.,

Vol. I, at 361 (Pet.’s Mot. Brought Under 18 U.S.C. § 3582(c)(1)(A)(i), filed May

22, 2020). But Mr. Purify also wrote that, “[w]hile this Court cannot order the

[Bureau of Prisons (“BOP”)] to designate me to home confinement, this court can

. . . modify my sentence to time served and the rema[i]nder of sentence to be

exp[e]nded on sup[er]vised release and in addition to home confinement.” Id.

On July 8, 2020, the district court sua sponte dismissed Mr. Purify’s motion

without prejudice for lack of jurisdiction due to his apparent failure to exhaust

administrative remedies concerning his request for a sentence reduction under

§ 3582(c)(1)(A)(i). The district court also reviewed the merits of Mr. Purify’s

motion and alternatively found that, because the BOP was already taking

extraordinary measures to contain the spread of COVID-19, the threat of

contracting the virus was not a factor “for which the [district court] would be

inclined to grant compassionate release [to Mr. Purify] at this time.” Id. at 370

(Dist. Ct.’s Order Dismissing Pet.’s Mot., dated Jul. 8, 2020).

Mr. Purify appeals, arguing that he in fact exhausted his administrative

remedies. To that end, Mr. Purify first contends that CARES Act petitions “are

one [and] the same as compassionate release requests” brought under § 3582.

Aplt.’s Opening Br. at 1. Second, he asserts that because he is a pro se litigant,

the district court should have read his original BOP petition as invoking

3
Appellate Case: 20-5075 Document: 010110613846 Date Filed: 12/03/2021 Page: 4

§ 3582(c)(1)(A)(i). Third, he maintains that we should follow other courts and

recognize that the relevant exhaustion requirement may be discarded, as a matter

of equity, in extreme instances. Lastly, he asserts that the district court erred in

determining that relief from his incarceration is not appropriate at this time.

II

We review for an abuse of discretion a district court’s decision to deny a

reduction of sentence under § 3582. See United States v. Piper, 839 F.3d 1261,

1265 (10th Cir. 2016); see also United States v. Jones, 980 F.3d 1098, 1112 (6th

Cir. 2020); United States v. Pawlowski, 967 F.3d 327, 330 (3d Cir. 2020); United

States v. Chambliss, 948 F.3d 691, 693 (5th Cir. 2020). An abuse of discretion

occurs when a district court bases its decision on an erroneous conclusion of law

or relies on clearly erroneous findings of fact. See United States v. Ramirez, 304

F.3d 1033, 1035 (10th Cir. 2002).

Framing our analysis, we are constrained at the outset to recognize that,

under current law, the district court erred in dismissing Mr. Purify’s motion sua

sponte on exhaustion grounds under the rationale that it lacked jurisdiction. Our

caselaw published subsequent to the court’s order here establishes that a failure to

exhaust in the § 3582(c)(1)(A) context is not a jurisdictional matter. See United

States v. Hemmelgarn, 15 F.4th 1027, 1030–31 (10th Cir. 2021)

(holding—consistent with our sister circuits—that, as a matter of first impression,

4
Appellate Case: 20-5075 Document: 010110613846 Date Filed: 12/03/2021 Page: 5

§ 3582(c)(1)(A)’s exhaustion requirement establishes solely a “claim-processing

rule,” rather than a jurisdictional rule).

But Mr. Purify has not brought this specific characterization error or any

related error of this sort to our attention on appeal. Accordingly, we have the

discretion to deem any challenge to this aspect of the district court’s order as

waived. See, e.g., Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007)

(“[W]e routinely have declined to consider arguments that are not raised, or are

inadequately presented, in an appellant’s opening brief.”).

However, even if we elect not to overlook this characterization error, we

would conclude that the error is harmless and, consequently, uphold the district

court’s judgment. The error is harmless for two independent, alternative reasons.

First, the district court correctly determined that Mr. Purify did not exhaust

his administrative remedies for his § 3582(c)(1)(A) motion. Mr. Purify himself

does not claim that he exhausted his remedies. Instead, he rests his appeal on the

theory that CARES Act requests are “one [and] the same” as § 3582(c)(1)(A)

motions; accordingly, Mr. Purify avers that his purported exhaustion of remedies

for his CARES Act petition had the effect of also exhausting his remedies for his

§ 3582(c)(1)(A) motion. See Aplt.’s Opening Br. at 1. However, this is incorrect.

The CARES Act expanded the BOP’s power to “place a prisoner in home

confinement” in light of the pandemic. See CARES Act, Pub. L. No. 116-136,

5
Appellate Case: 20-5075 Document: 010110613846 Date Filed: 12/03/2021 Page: 6

§ 12003(b)(2), 134 Stat. 281, 516 (2020). Conversely, a person who seeks

compassionate release under § 3582(c)(1)(A) is seeking a reduction in his

sentence from the court. See 18 U.S.C. § 3582(c)(1)(A). Thus, a request for a

CARES Act transfer to home confinement is completely distinct from a request

for compassionate release under § 3582(c)(1)(A). Consequently, even if a letter

seeking the former is liberally construed, it cannot meet the latter’s exhaustion

requirement. Cf. United States v. Springer, 820 F. App’x 788, 789, 791–92 (10th

Cir. 2020) (unpublished) (holding that, “[c]ontrary to [the petitioner’s] argument,

he was required to request that the BOP file a [§ 3582(c)(1)(A)] motion on his

behalf to initiate his administrative [§ 3582(c)(1)(A)] remedies,” and affirming

the district court’s denial of his motion because he “never made such a request”

but, rather, filed “an administrative request, not even mentioning compassionate

release”). And, contrary to Mr. Purify’s contention, the district court was not

obliged to construe his distinct home-confinement request under the CARES Act

as a § 3582(c)(1)(A) motion just because of his pro se status. See, e.g., Garrett v.

Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (explaining

that “the court cannot take on the responsibility of serving as the litigant’s

attorney in constructing arguments and searching the record”).

Moreover, though the effect is not jurisdictional, we cannot overlook Mr.

Purify’s failure to exhaust his administrative remedies. That is because

6
Appellate Case: 20-5075 Document: 010110613846 Date Filed: 12/03/2021 Page: 7

“§ 3582(c)(1)(A)’s exhaustion requirements” establish “a mandatory claim-

processing rule.” Hemmelgarn, 15 F.4th at 1030. The government may forfeit or

waive enforcement of such a rule. See Eberhart v. United States, 546 U.S. 12, 15

(2005) (explaining that claim-processing rules “may be ‘unalterable on a party’s

application’ but ‘can nonetheless be forfeited if the party asserting the rule waits

too long to raise the point’” (emphasis added) (quoting Kontrick v. Ryan, 540

U.S. 443, 456 (2004))); see also Hemmelgarn, 15 F.4th at 1030 (ruling that the

government “waived” its exhaustion argument in the § 3582(c)(1)(A) context).

But the government here has not done so; it has preserved its exhaustion

challenge. Specifically, the government has argued forcefully that Mr. Purify

failed to exhaust his remedies under § 3582(c)(1)(A). See, e.g., Aplee.’s Resp.

Br. at 13 (contending that “the district court . . . did not err in dismissing Purify’s

motion for failure to exhaust his remedies”). And it has done so at its first

opportunity—that is, during this appeal. 2 Cf. Hemmelgarn, 15 F.4th at 1031

2
The district court did not direct the government to file a response to
Mr. Purify’s § 3582(c)(1)(A) motion, and the government did not do so. See
Aplee.’s Resp. Br. at 4 (“Rather than directing the government to respond, the
district court dismissed [Mr.] Purify’s motion.”). It appears that, not infrequently,
district courts have requested responses from the government to such
compassionate release motions. See, e.g., United States v. Greene, 516 F. Supp.
3d 1, 11 (D.D.C. 2021) (“On December 2, 2020, this Court issued a Minute Order
directing the Government to respond to [the prisoner’s] motion for compassionate
release.”); United States v. Cain, No. 1:16-CR-00103-JAW-1, 2021 WL 388436,
at *1 (D. Me. Feb. 3, 2021) (unpublished) (“On December 18, 2020, the Court
ordered the Government to answer and state its position as to whether Mr. Cain’s
(continued...)

7
Appellate Case: 20-5075 Document: 010110613846 Date Filed: 12/03/2021 Page: 8

(“Even though [the prisoner] failed to provide proof that he exhausted his

administrative remedies [for purposes of § 3582(c)(1)(A)], the government did

not argue exhaustion on appeal. This argument is waived.”).

Because we agree with the government, we must enforce § 3582(c)(1)(A)’s

exhaustion requirement—even if the equities weighed in Mr. Purify’s favor

(which they do not). Therefore, the district court’s error—in concluding that the

2
(...continued)
failure to exhaust administrative remedies within the Bureau of Prisons (BOP)
prevented the Court from considering his motion.”); 5C WEST ’ S F ED . F ORMS ,
D ISTRICT C OURTS –C RIMINAL § 95:20.40, Westlaw (Troy K. Stabenow ed., 5th ed.,
database updated May 2021) (including model order used in the Western District
of Virginia that directs the government to respond to a § 3582(c)(1)(A) motion).
But there is nothing in the record here that would have signaled to the government
that a response was desired or required. Therefore, we think it is sound to
conclude that the government’s first opportunity to challenge Mr. Purify’s §
3582(c)(1)(A) motion on exhaustion grounds is this appeal. And, because the
government has asserted its challenge at this first opportunity, we deem this
challenge preserved. Cf. Eberhart, 546 U.S. at 15 (explaining that a party may
forfeit enforcement of a claim-processing rule, when the party “waits too long” to
assert it (quoting Kontrick, 540 U.S. at 456)); cf. also United States v. Battles,
745 F.3d 436, 446–47 (10th Cir. 2014) (holding that defendant’s post-trial Brady
claim was not forfeited despite defendant’s failure to raise it at trial because,
“upon learning after trial of the information upon which [defendant] rests her
current Brady claim, [the defendant] timely filed a motion for new trial based on
newly discovered evidence” (emphasis added)); United States v.
Sepulveda-Contreras, 466 F.3d 166, 170 (1st Cir. 2006) (finding no forfeiture of
objections, where defendant had no opportunity to object before sentencing
conditions were imposed); United States v. Martinez, 974 F.2d 589, 591 (5th Cir.
1992) (noting that “the critical factor in deciding whether the silence of counsel
constitutes a waiver is whether there was a meaningful opportunity for counsel to
request argument or to object, considering all the attendant circumstances”
(emphasis added)).

8
Appellate Case: 20-5075 Document: 010110613846 Date Filed: 12/03/2021 Page: 9

exhaustion question under § 3582(c)(1)(A) is jurisdictional—was harmless. We

rest our decision on this independent and sufficient basis. 3

But even if that were not enough (but it is), this jurisdiction-related error

would be harmless for a second reason: the district court did not abuse its

discretion in determining—in its alternative holding on the merits—that Mr.

Purify did not warrant compassionate release. Mr. Purify largely argues that the

court erred in finding that the BOP was taking extraordinary measures to contain

COVID-19—a finding that he suggests is contradicted by the “outrageous

infection [r]ate” among inmates and staff at FPC Yankton and facility conditions

that may exacerbate the spread of the virus. See Aplt.’s Opening Br. at 4–7.

These contentions are unavailing. Mr. Purify did not state in his May 2020

motion how he is more susceptible or vulnerable to COVID-19 than the average

prisoner or why home confinement or compassionate release would be specifically

appropriate; instead, he only generally refers to unnamed “health risks” to

3
Like dismissals for lack of jurisdiction, dismissals for failure to
exhaust are ordinarily without prejudice. Compare, e.g., Martinez v. Richardson,
472 F.2d 1121, 1126 (10th Cir. 1973) (“It is fundamental, of course, that a
dismissal for lack of jurisdiction is not an adjudication of the merits and therefore
dismissal of the [plaintiff’s] claim must be without prejudice.”), with Fuller v.
State of Florida, 473 F.2d 1383, 1384 (5th Cir. 1973) (per curiam) (noting that
“[t]he district court acted correctly in dismissing without prejudice [the
prisoner’s] habeas petition” because “his state remedies had not been exhausted”),
and Chase v. Conner, 107 F. App’x 827, 828 (10th Cir. 2004) (unpublished)
(“stress[ing] that the dismissal” of a prisoner’s action for failure to exhaust
administrative remedies “was without prejudice”).

9
Appellate Case: 20-5075 Document: 010110613846 Date Filed: 12/03/2021 Page: 10

establish that he should be afforded relief. R., Vol. I, at 361; see United States v.

Raia, 954 F.3d 594, 597 (3d Cir. 2020) (“[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.”). And there is no evidence on the

record showing how the district court clearly erred in its findings about FPC

Yankton. Thus, we find unpersuasive Mr. Purify’s suggestion that the court

abused its discretion by relying on clearly erroneous findings of fact to dismiss

his motion for compassionate release. 4

4
This alternative holding should come as no surprise to Mr. Purify.
During the pendency of this appeal, Mr. Purify submitted another letter to the
BOP, this time actually requesting a sentence reduction and compassionate release
under § 3582(c)(1)(A)(i) for extraordinary and compelling reasons. The Warden
denied that request on September 23, 2020. After the denial, Mr. Purify filed a
motion requesting compassionate release with the district court under
§ 3582(c)(1)(A)(i), attempting—as in the instant case—to persuade the court that
the COVID-19 pandemic necessitated a reduction of his sentence. The district
court denied that motion on January 4, 2021. In doing so, the court noted that Mr.
Purify did exhaust his remedies this second time around. Nevertheless, in light of
the factors Mr. Purify cited, as well as the “application instructions at USSG
§ 1B1.13 comment[] (n.1(D)),” the court found that Mr. Purify’s “history and
characteristics and the need for the sentence to reflect the seriousness of the
offense, provide just punishment, afford adequate deterrence to criminal conduct,
and provide protection for the public, outweigh the added potential risk posed by
the COVID-19 virus to [Mr. Purify], making compassionate release unwarranted.”
United States v. Battle, No. 4:13-cr-00028-JED, ECF No. 2397, at 3 (N.D. Okla.,
dated Jan. 4, 2021) (dismissing Mr. Purify’s second Motion for Compassionate
Release). The district court also noted, as in the instant action, that the BOP had
taken “substantial measures to contain the spread of COVID-19,” particularly at
FPC Yankton. Id. Finally, the district court observed that, “while [Mr. Purify’s]
medical history may cause increased complications to a person who contracts
COVID-19, [Mr. Purify] has a lengthy criminal history and a history of violating
(continued...)

10
Appellate Case: 20-5075 Document: 010110613846 Date Filed: 12/03/2021 Page: 11

In sum, though the district court erred in concluding that Mr. Purify’s

failure to exhaust administrative remedies under § 3582(c)(1)(A) deprived the

court of its jurisdiction, we nevertheless uphold the court’s judgment because we

deem the court’s error to be harmless.

III

Accordingly, for the foregoing reasons, we AFFIRM the district court’s

judgment.

ENTERED FOR THE COURT

Jerome A. Holmes
Circuit Judge

4
(...continued)
previous terms of state supervision.” Id. Notably, Mr. Purify did not appeal this
order. In an exercise of our discretion, we take judicial notice of these
subsequent district court proceedings. See, e.g., United States v. Smalls, 605 F.3d
765, 768 n.2 (10th Cir. 2010) (recognizing a court may take judicial notice of
docket information from another court); United States v. Ahidley, 486 F.3d 1184,
1192 n.5 (10th Cir. 2007) (“Although we are not obliged to do so, we may
exercise our discretion to take judicial notice of publicly-filed records in our
court and certain other courts concerning matters that bear directly upon the
disposition of the case at hand.”).

11