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UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

UNITED STATES OF AMERICA, 

 Plaintiff,

v.

SHERWOOD HOWARD,

 Defendant.

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Case No. 3:17-cr-163

Judge Thomas M. Rose

______________________________________________________________________________

ENTRY AND ORDER DENYING, WITHOUT PREJUDICE, DEFENDANT’S 

MOTION FOR COMPASSIONATE RELEASE (DOC. NO. 52)

______________________________________________________________________________

This case is before the Court on Defendant’s Motion for Compassionate Release (Doc. No. 

52) (the “Motion”) filed by Sherwood Howard (“Howard”). Howard is currently incarcerated at 

Memphis FCI [Federal Correctional Institution] in Tennessee. (See FEDERAL BUREAU OF PRISONS 

INMATE LOCATOR, https://www.bop.gov/inmateloc (last visited July 8, 2021).) He asks the Court 

for compassionate release from his term of imprisonment. More specifically, he asks that this 

Court grant him “compassionate release under 18 U.S.C. § 3582, or in the alternative an Order 

releasing him from custody to serve the entire remainder of his 80-month sentence on electronic 

home incarceration.” (Doc. No. 52 at PageID 220.) On June 29, 2021, the United States of 

America (the “Government”) filed a Response, arguing that the Motion should be denied because 

Howard has not fulfilled the exhaustion requirement set forth in 18 U.S.C. § 3582(c)(1)(A). (Doc. 

No. 53.)

First, the Court denies Howard’s request for a reduced sentence. Section 3582(c)(1)(A) 

expressly provides that the Court “may not modify a term of imprisonment” upon a motion brought 
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by a defendant until “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 after “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); see also United States v. Alam, 960 F.3d 831, 833-34 (6th 

Cir. 2020) (if “the Director of the Bureau of Prisons does not move for compassionate release, a 

prisoner may take his claim to court only by moving for it on his own behalf,” but “[t]o do that, he 

must ‘fully exhaust[] all administrative rights to appeal’ with the prison or wait 30 days after his 

first request to the prison”) (quoting 18 U.S.C. § 3582(c)(1)(A)) (alterations in original).1 

The exhaustion requirement in Section 3582(c)(1)(A) is not a jurisdictional rule; it is a 

mandatory claim-processing rule. Alam, 960 F.3d at 833-34. A defendant will be unable to “show 

that exceptions to mandatory claim-processing rules—waiver or forfeiture—apply” if the 

Government timely objects to the defendant’s failure to exhaust. Id. at 834. As the Sixth Circuit 

explained, “[w]hen properly invoked, mandatory claims-processing rules [like the exhaustion 

requirement in Section 3582(c)(1)(A)] must be enforced,” and they are not subject to judge-made 

exceptions. Id. (internal quotation marks omitted); Ross v. Blake, 136 S. Ct. 1850, 1856-57, 195 

L. Ed. 2d 117 (2016) (a court may not excuse exhaustion requirements mandated by statute because 

“mandatory exhaustion statutes ... establish mandatory exhaustion regimes, foreclosing judicial 

discretion”). The statute’s “exhaustion requirement serves valuable purposes ... and because it is 

mandatory” courts must enforce it.

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 Alam, 960 F.3d at 832. 

1 See also Alam, 960 F.3d at 836 (“inmates can identify the ongoing public health crisis in their initial petition to their 

wardens. If that doesn’t work, prisoners can pursue administrative review. If that also comes up short (or if 30 days 

pass), prisoners have the option to go to federal court”).

2 The Sixth Circuit further explained: “Preventing prisoners from charging straight to federal court serves important 

purposes. It ensures that the prison administrators can prioritize the most urgent claims. And it ensures that they can 

investigate the gravity of the conditions supporting compassionate release and the likelihood that the conditions will 

persist.” Alam, 960 F.3d at 835.
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Here, Howard offers no evidence that he fulfilled 18 U.S.C. § 3582(c)(1)(A)’s exhaustion 

requirement. Although Howard indicates that he submitted a request for compassionate release to 

the warden on November 6, 2020 and did not receive a response (Doc. No. 52 at PageID 222), 

there is no documentary evidence of this. (See Doc. No. 38 at PageID 147 (original motion).) 

Mere assertions of exhaustion are insufficient, as defendants bear the burden of showing they have 

exhausted administrative remedies. See United States v. Pack, No. 17-CR-20002-10, 2020 WL 

5648581, at *2 (W.D. Tenn. Sept. 22, 2020). Further, the Government has timely objected to 

Howard’s failure to exhaust. (Doc. No. 53.) Courts have previously denied motions for 

compassionate release where no documentation of exhaustion was provided and the Government

timely objected. See, e.g., United States v. Wallace, No. 2:18-CR-102, 2021 WL 99344 (S.D. Ohio 

Jan. 12, 2021); United States v. Suber, No. 2:96-CR-94, 2021 WL 215683 (S.D. Ohio Jan. 21, 

2021). Therefore, the Court denies Howard’s request for compassionate release, without prejudice 

to refiling a motion for compassionate release after fulfilling the exhaustion requirement.

The Court acknowledges that Howard, through counsel, moved to dismiss his original

motion for compassionate release (Doc. No. 38) without prejudice for the same reason on February 

6, 2021. (Doc. No. 43.) Dismissal without prejudice indicates a particular judgment “is not on the 

merits and will have no preclusive effect.” Jet, Inc. v. Sewage Aeration Sys., 223 F.3d 1360, 1364

(Fed. Cir. 2000) (citing Cooter & Gell v. Harmarx Corp., 496 U.S. 384, 396 (1990)). Therefore, 

if Howard is able to cure the reason for denial by demonstrating compliance with 18 U.S.C. § 

3582(c)(1)(A), then the Court will have the opportunity to consider the merits of his petition.

Second, the Court addresses Howard’s request that the Court allow him to complete the 

rest of his sentence under home confinement. This amounts to asking the Court to change the 

place where his sentence will be served (from Memphis FCI to his home), without reducing the 
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term of his sentence. However, it is the Bureau of Prisons (“BOP”), not the courts, that has the 

authority to determine the place of a defendant’s confinement. The CARES Act did not change 

this fact. 18 U.S.C. § 3621(b) (“The Bureau of Prisons shall designate the place of the prisoner’s 

imprisonment ...”); CARES Act, Pub. L. No. 116-136, at Div. B., Title II, § 120003(b)(2); United 

States v. Brummett, No. 20-5626, 2020 U.S. App. LEXIS 26427, at *5, 2020 WL 5525871 (6th 

Cir. Aug. 19, 2020) (“to the extent that [the defendant prisoner] sought relief under the CARES 

Act, the district court correctly held that the authority to grant home confinement remains solely 

with the Attorney General and the BOP”); see also United States v Spencer, No. 20-3721, 2020 

U.S. App. LEXIS 28051, 2020 WL 5498932, at *2 (6th Cir. Sept. 2, 2020) (“Section 3582(c)(1)(A) 

does not authorize the district court to order that a defendant serve his current sentence in home 

confinement,” but, if the court “reduces a defendant’s sentence under § 3582(c)(1)(A) to time 

served, [then] it can impose a term of supervised release equal to the unserved time and order, as 

a condition of that supervised release, that the defendant be confined to his home”). Therefore, 

this request is denied.

Given the lack of documentary evidence indicating that Howard has satisfied the 

exhaustion requirement in 18 U.S.C. § 3582(c)(1)(A), and the Government’s timely objection on 

that basis (see Doc. No. 53), the Court cannot grant the Motion. Therefore, the Court DENIES

Howard’s Motion (Doc. No. 52) without prejudice to filing a motion pursuant to 18 U.S.C. § 

3582(c)(1)(A) after satisfying the statute’s exhaustion requirement.

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DONE and ORDERED in Dayton, Ohio, this Wednesday, July 14, 2021. 

s/Thomas M. Rose

________________________________

THOMAS M. ROSE 

UNITED STATES DISTRICT JUDGE

3 The Court acknowledges the valuable contribution and assistance of judicial intern Noah Brown in drafting this 

order.