UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

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UNITED STATES OF AMERICA, 

 Plaintiff - Appellee,

v.

SHAWN J. GIESWEIN, 

 Defendant - Appellant.

No. 20-6081

(D.C. No. 5:07-CR-00120-F-1)

(W.D. Okla.)

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ORDER AND JUDGMENT*

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Before MATHESON, KELLY, and EID, Circuit Judges.**

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Defendant-Appellant Shawn Gieswein, a federal inmate appearing pro se, 

appeals from the district court’s dismissal of his motion for a sentence reduction

under 18 U.S.C. § 3582(c)(1)(A). Exercising jurisdiction under 28 U.S.C. § 1291, we 

affirm the district court’s dismissal and deny IFP.

Mr. Gieswein argues that he is entitled to compassionate release under 18 

U.S.C. § 3582(c)(1)(A) because (1) he is serving an “illegal sentence,” and (2) the 

* This order and judgment is not binding precedent, except under the doctrines 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.

FILED

United States Court of Appeals

Tenth Circuit

January 5, 2021

Christopher M. Wolpert

Clerk of Court
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risk he faces due to COVID-19. Section 3582(c)(1)(A) allows a district court to

grant a sentencing reduction if it finds that “extraordinary and compelling reasons 

warrant such a reduction” and “such a reduction is consistent with applicable policy 

statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(1)(A). The 

Sentencing Commission, as authorized by 28 U.S.C. § 994(t), has recognized four 

categories of “extraordinary and compelling reasons.” See U.S.S.G. § 1B1.13, 

comment. n.1. These include the defendant’s medical condition, age, family 

circumstances, and a catch-all, “other reasons.” Id.

The district court concluded that Mr. Gieswein’s arguments about his “illegal 

sentence” are not the type of “extraordinary and compelling reasons” that justify a 

sentencing reduction under § 3582(c)(1)(A). 8 R. 66. The court reasoned that “postsentencing developments in case law” do not provide an appropriate basis for a 

sentence reduction under the statute. Id. (quoting United States v. Saldana, 807 F. 

App’x 816, 820 (10th Cir. 2020)). As to his COVID-19 argument, the district court 

concluded that Mr. Gieswein has not complied with § 3582(c)(1)(A)’s exhaustion and 

30-day requirements. Id. at 65.

We review de novo the district court’s legal determination about its authority 

to modify a sentence under § 3582(c)(1)(A). United States v. Smartt, 129 F.3d 539, 

540 (10th Cir. 1997). On appeal, Mr. Gieswein does not challenge the district court’s 

analysis and application of § 3582(c)(1)(A). Instead, he raises arguments that his 

sentence was “illegal” because he has served more time than the statutory maximum, 

his sentences must run concurrently, and his sentence departure was “abnormally 
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extreme.” Aplt. Br. at 3. Due to his failure to address the district court’s ruling, Mr. 

Gieswein has waived review of the district court’s dismissal of his motion for 

compassionate release under § 3582(c)(1)(A). See Sawyers v. Norton, 962 F.3d 

1270, 1286 (10th Cir. 2020). The district court appropriately concluded that Mr. 

Gieswein has not complied with the exhaustion and 30-day requirements for his 

COVID-19 argument. Following the passage of the First Step Act, a district court 

may only consider a defendant’s motion “after the defendant has fully exhausted all 

administrative rights to appeal a failure of the Bureau of Prisons 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.” 18 U.S.C. 

§ 3582(c)(1)(A). Mr. Gieswein’s request to the warden did not include COVID-19 as 

a reason for compassionate release. 8 R. 35. Therefore, he has failed to meet the 

statute’s exhaustion requirements and his COVID-19 justification was properly 

dismissed. See United States v. Springer, 820 F. App’x 788, 791–92 (10th Cir. 

2020).

AFFIRMED. As Mr. Gieswein has not presented a rational appellate argument 

on the law and the facts, we DENY Mr. Gieswein’s motion to proceed IFP and 

remind him that he is responsible for paying the full amount of the filing fee.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge