NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0494n.06 No. 09-6508 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

CLAYTON P . CROWE, P etitioner -Appellant,

v. ON AP P EAL FR OM THE UNITE D STATE S DIST RICT COURT F OR THE UNITED STAT ES O F AMERICA, EASTE RN DISTRICT OF K ENTUCKY Respondent-Appellee. / BEFORE: SUTTO N and WHI TE, Circuit Jud ges; and ST AF F ORD, Distric t Judge. * P ER CURIAM . The petitioner-a

ppellant, Clay

ton Crowe, appea ls from the district court' s judgme nt deny ing his petition for writ of habe as cor pus pursuant to 28 U.S.C. § 2241. W e AF F IRM. Crowe is curr ently serving a six ty -y ear sentenc e in fede ral prison. Be cause he suffe rs from hear t and kidney ailments, Crowe asked the Direc tor of the Bur eau of Prisons (" BO P") to file a motion in fe d eral court seeking a compassionate rele ase as permitted under 18 U.S.C. § 3582(c) (1)( A)(i)

. The BOP denied his reque st. After pursuing administrative reme dies without

succe ss, Crowe filed a petition—sty led as a § 2241 petition—in the district court, seeking an order requiring the BO P to file a motion for compassionate releas e wi t h the sentenc ing court in North

The Honor able William H. St aff ord, Jr., S enior United States District Judge for the * Norther n District of F lorida, sitting by desig nation.No. 09-6508

Crowe v. USA

Carolina. The district court corr ectly deter mined that § 2 2 4 1 does not provide subject matter jurisdiction over Crowe' s petition. The district court also corr ectly deter mined that, even if viewed

as a reque st for revie w of ag ency action under the Admi nistrative P roce dure Act, 5 U.S.C. § 701- 706, Crowe' s petition lacks merit beca use fede ral courts have no authority to revie w or counter mand the BO P's decision not to seek a compassionate rele ase for an inmate. Crowe filed a timely appea l to this court. The BO P has the authority to seek a modification of a prisoner' s sentenc e pursuant to 1 8 U.S.C. § 3582(c) (1)( A)(i) , which provides that a fede ral court "ma y not modify a term of imprisonment once it has been imposed except that

. . . in any case . . . the court, upon motion of the Director of the [

BOP] , may reduc e t h e term of imprisonment

. . . if it finds that

. . . extraordinary and compelling rea sons wa rr an t s u ch a reduc tion." Id. (empha sis added)

. The statute place s no limit s on the BOP's authority to seek or not seek a sentenc e reduction on behalf of a pri s o n er, nor does it define —or place any limit s on—what "e x traordina ry and compelling rea sons" might war rant such a r eduction. The BO P, in other words, has br oad dis cre tion in its decision t o move t he court for a sentenc e modifica

tion under § 3582(c )(1) (A)( i). 1 Ba sed on this broad g rant of discretion, a number of courts have deter mined that the BO P's decision reg arding whether or not t o fi le a motion for compassionate rele ase is judicially unrevie wable. See Fernandez v. United States , 941 F.2d 1488, 1493 (11th Cir. 1991) (holding that

Crowe a rg ues, on var ious gr ounds, that the brea dth of discre tion gr anted to the B OP by 1 § 3582(c) (1)( A)(i) is unconstituti onal. Crowe' s arg uments in this reg ard a

re f rivolous and we decline to a ddress them. - 2 -No. 09-6508

Crowe v. USA

the BO P's decision whether to seek a compassionate re l ea s e under the prede cessor to § 3582(c) (1)( A)(i) was unrevie wable) ; Simmons v. Christ ensen , 894 F.2d 1041, 1043 (9th Cir. 1990) (same) ; Turner v. U.S. Parole Comm'n , 8 1 0 F. 2 d 6 12, 615 (7th Cir. 1987) (same) ; Crawf ord v. W oodring , No. CV 08-362-GW, 2009 WL 6575082, at *6 (C.D. Cal. Dec

. 11, 2009) (dismissing as unrevie wable prisoner' s § 2241 req u es t fo r an order direc ting the BO P to move for ear ly rele ase under § 3582(c) (1)( A)(i) ); Gutierrez v. Anderson , No. 06-1714, 2006 WL 3086892, at *4 (D. Minn. Oct. 30, 2006) (same) ; see also Engle v. United States , 26 F. App' x 394, 397 (6th Cir. 2001) (holding t h at t he district courts lack "jur isdiction to sua sponte g rant compassionate rele ase" and that "[a] district court may not modify a defe ndant' s federa l s en t ence based on the defe ndant' s ill health, except upon a motion from the Direc tor of the Bur eau of Prisons"). Consist ent with these decisions,

we hold that a fede ral court lacks authority to revie w a dec i s i o n b y the BO P to not seek a compassionate r elea se for an inmate unde r § 3582(c )(1) (A)( i). The j u d gm en t of the district court denying Crowe' s petition for writ of habea s corpus is AF F IRMED.

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