IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

United States of America

v. Case No. 2:18-cr-102

Marisa Wallace

OPINION AND ORDER

By judgment entered on April 8, 2019, defendant was sentenced

to concurrent terms of incarceration of 72 months on Count 1,

conspiracy to distribute and to possess with the intent to

distribute 500 grams or more of methamphetamine and oxycodone in

violation of 21 U.S.C. §846, and Count 2, Conspiracy to commit

money laundering in violation of 18 U.S.C. §1956(h).

On November 19, 2020, this court received a letter from the

defendant seeking release on home confinement under the Coronavirus

Aid, Relief, and Economic Security Act (“CARES Act”), §12003(b)(2),

or for compassionate release from imprisonment under 18 U.S.C.

§3582(c)(1)(A) due to extraordinary and compelling circumstances

during the COVID-19 pandemic. See Doc. 50. Defendant contended

that her time credits were not properly calculated, and that the

denial of her release on home confinement was erroneous. This

letter was placed on the docket as a motion.

On December 16, 2020, defendant requested compassionate

release under §3582(c)(1)(A). See Doc. 53. Defendant stated that

around “5-2020" she submitted a request for compassionate release

to the warden and did not receive a response within thirty days. 

However, she did not submit any documents to establish that she did

in fact present a written request to the warden. Defendant

asserted that she is at serious risk from COVID-19 due to obesity,

her status as a former smoker, and the fact that she is AfricanCase: 2:18-cr-00102-JLG Doc #: 58 Filed: 01/12/21 Page: 1 of 4 PAGEID #: 161
American. In her motion, defendant included an individualized

needs plan and other documents which list the courses she has taken

since being incarcerated as well as her participation in the cook’s

apprenticeship program.

On January 4, 2021, defendant submitted a letter in further

support of her request for compassionate release. See Doc. 56. In

this letter, she stated that she has contracted COVID-19 and she

complained about the conditions in the institution. She asked to

be released on home confinement.

Counsel was appointed to represent the defendant on November

20, 2020. On December 21, 2020, counsel filed a notice indicating

that he would not be supplementing defendant’s motions. Doc. 54.

Plaintiff claimed that she was on a list of inmates to be

released on home confinement under the CARES Act, but that her

release was denied by the warden in May because she had not served

fifty percent of her sentence. Doc. 56, p. 2. She alleged that

the CARES Act criteria were not applied correctly. However, the

BOP has the sole authority to decide whether home confinement is

appropriate under the CARES Act. See United States v. Daniels, No.

4:08-CR-0464-SLB, 2020 WL 1938973 at *1-2 (N.D. Ala. Apr. 22,

2020)(only the BOP has the authority to place a defendant on home

confinement under the CARES Act); United States v. Serfass, No.

3:15-39, 2020 WL 1874126, at *3 (M.D. Pa. Apr. 15, 2020)(the

determination of which inmates qualify for home confinement under

the CARES Act is for the BOP director). This court does not have

the authority to override the BOP’s decision concerning home

confinement placement under the CARES Act. To the extent that

defendant alleged that her credits for time served were not

2

Case: 2:18-cr-00102-JLG Doc #: 58 Filed: 01/12/21 Page: 2 of 4 PAGEID #: 162
properly calculated, that claim must be raised in a petition under

28 U.S.C. §2241 filed in the district where defendant is

incarcerated. See Woody v. Marberry, 178 F. App’x 468, 471 (6th

Cir. 2006)(court can grant relief under §2241 when sentencing

credits are miscalculated); Roman v. Ashcroft, 340 F.3d 314, 319

(6th Cir. 2003)(a court has jurisdiction over a habeas corpus

petition only if the court has jurisdiction over the petitioner’s

custodian). Defendant is incarcerated in Kentucky, and this court

has no jurisdiction to resolve her claim involving credit for time

served.

Under §3582(c)(1)(A)(i), a motion for reduction in sentence

for “extraordinary and compelling reasons” can be filed with the

court if the defendant has exhausted her administrative remedies. 

If the defendant presents her request to the warden and receives no

response within thirty days, she may then file a motion in the

district court. See United States v. Daniels, No. 4:08-CR-0464-

SLB, 2020 WL 1938973 at *2-3 (N.D. Ala. Apr. 22, 2020); Guzman v.

United States, No. 2:10-CR-161, 2019 WL 1966106, at *2 (E.D.Tenn.

May 2, 2019). This exhaustion requirement is not jurisdictional,

but is a mandatory condition which must be enforced if the

government timely objects to the failure to exhaust. United States

v. Alam, 960 F.3d 831, 833-834 (6th Cir. 2020). Although defendant

claims that she submitted a request for compassionate release to

the warden, she has produced no documentary evidence to prove that

she in fact has exhausted her administrative remedies.

Based on the foregoing, defendant’s motions (Docs. 50, 53 and

54) are denied. Defendant’s motion for release on home confinement

under the CARES Act is denied. Defendant’s motions for

3

Case: 2:18-cr-00102-JLG Doc #: 58 Filed: 01/12/21 Page: 3 of 4 PAGEID #: 163
compassionate release under §3582(c)(1)(A)(i) are denied without

prejudice. The defendant may renew her request for compassionate

release after she has exhausted her administrative remedies.

Date: January 12, 2021 s/James L. Graham 

 James L. Graham

 United States District Judge 

4

Case: 2:18-cr-00102-JLG Doc #: 58 Filed: 01/12/21 Page: 4 of 4 PAGEID #: 164