UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JAMES LEE WATSON, Defendant - Appellant. No. 20-5046 (D.C. No. 4:04-CR -00182-TCK-2) (N.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before TYMKOVICH , Chief Judge, BRISCOE and BACHARACH , Circuit Judges.

________________ _________________ Pro se prisoner James Lee Watson file d a motion for compassionate release on his own behalf. See 18 U.S.C. § 3582(c)(1)(A). The district denied the motion because Mr. Watson (1) had not exhausted his administrative remedies and (2) had not satisfied the requirements of the po licy statement set fo rth in Sentencing Guideline § 1B1.13 and its application not es. On appeal, however, the government has changed its position to assert that Mr. Watson exhauste d his administrative

* After examining the briefs and appella te record, this pa nel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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. FILED United States Court of Appeals Tenth Circuit 

### June 24, 2021 Christopher M. Wolpert Clerk of Court2 remedies, thereby conceding th is requirement is satisfied. 1 And while the appeal was pending, this court held § 1B1.13 does not apply to co mpassionate-release motions filed by a prisoner. Exerci sing jurisdiction under 28 U. S.C. § 1291, we therefore vacate the district court’ s opinion and order denying th e motion and remand for the district court to cons ider the motion anew. Since the First Step Act of 2018, comp assionate-release motions may be filed either by the Director of the Bureau of Prisons (BOP) or by prisoners on their own behalf. See § 3582(c)(1)(A). While this appeal was pending, we adopted a three-step process for considering such motions. See United States v. Maumau , 993 F.3d 821, 831 (10th Cir. 2021); United States v. McGee , 992 F.3d 1035, 1042-43 (10th Cir. 2021). At step one of the analysis, “a dist rict court must find whether extraordinary and compelling reasons warra nt a sentence reduction.” Maumau , 993 F.3d at 831 (brackets and internal quotation marks omitted); McGee , 992 F.3d at 1042 (brackets

1 This court has not issued a bindi ng decision on whether exhaustion under § 3582(c)(1)A) is a jurisdic tional requirement, but unpu blished decisions indicate that exhaustion is a mandato ry claim-processing rule. See United States v. Avalos , No. 20-3194, 2021 WL 1921847, at *2 n.2 (10th Cir. May 13, 2021); United States v. Johnson , No. 20-6103, 2021 WL 1053706, at *2 (10th Cir. Mar. 19, 2021); but see United States v. Salcido , No. 20-2108, 2021 WL 2285220, at *1 (10th Cir. June 4, 2021). Other circuits si milarly have held that § 3582(c)(1)(A)’s exhaustion requirement is a “nonjurisdicti onal claim-processing rule.” United States v. Franco , 973 F.3d 465, 468 (5th Cir.), cert. denied , 141 S. Ct. 920 (2020); see also United States v. Harris , 989 F.3d 908, 911 (11th Cir. 2021); United States v. Gunn , 980 F.3d 1178, 1179 (7th Cir. 2020); United States v. Alam , 960 F.3d 831, 833 (6th Cir. 2020). We therefore treat exhaustion as a mandato ry claim-processing rule and accept the government’s concession. See Hamer v. Neighborhood Hous. Servs. of Chicago , 138 S. Ct. 13, 17 (2017) (“ If properly invoked, mandat ory claim-processing rules must be enforced, but they may be wai ved or forfeited .” (emphasis added)).3 and internal quotation marks omitted). At step two, the district court must find whether a sentence “reduction is consistent with applicable policy statements issued by the Sentencing Commission.” Maumau , 993 F.3d at 831 (emphasis and internal quotation marks omitted); McGee , 992 F.3d at 1042 (emphasis and internal quotation marks omitted). And at step three, the di strict court must “consider any applicable § 3553(a) factors and determin e whether, in its discreti on, the reduction authorized by steps one and two is warranted in w hole or in part under the particular circumstances of the case.” Maumau , 993 F.3d at 831 (brackets and internal quotation marks omitted); McGee , 992 F.3d at 1042 (brackets and internal quotation marks omitted). With regard to the second step—the requirement to consider applicable Sentencing Commission policy statements—w e held that the current version of § 1B1.13 “is applicable only to motions file d by the Director of the BOP, and not to motions filed directly by defendants.” Maumau , 993 F.3d at 837; McGee , 992 F.3d at 1050. “In other words, if a compassi onate release motion is not brought by the BOP Director, Guideline § 1B1.13 would no t, by its own terms be considered to apply to it.” Maumau , 993 F.3d at 837 (brackets and internal quotation marks omitted); see also id. at 838 (Tymkovich, C.J., conc urring) (“Until the Sentencing Commission updates its guidance, there is no ‘applicable policy statement,’ 18 U.S.C. § 3582(c)(1)(A)(i), that constrains the district c ourt’s discretion to consider whether a defendant-filed mo tion satisfies the ‘extraor dinary and compelling’ standard.”).4 Not having the benefit of Maumau and McGee , the district court relied heavily on § 1B1.13 in evaluating Mr. Watson’s motion. In McGee , where the district court similarly misunderstood its au thority with regard to a compassionate-release motion, we remanded for the district cour t to consider the motion anew. See McGee , 992 F.3d at 1051. We follow that course he re, expressing no opinion on the merits of Mr. Watson’s motion. We lift the abatement of this case and grant Mr. Watson’s motion to proceed without prepayment of costs or fees. We deny his Motion for Supplement Pursuant to Fed. R. App. P. 28(j ) and his Motion to Suppleme nt the Record on Appeal Pursuant to Fed. R. App. P. 10(e). We vacate the district c ourt’s decision filed on April 16, 2020, and we remand this matter for the district court to consider the compassionate-release motion anew, consistent with Maumau and McGee

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Entered for the Court
Mary Beck Briscoe Circuit Judge