IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

United States of America

v. Case No. 2:18-cr-154

Janette M. Breckenridge

OPINION AND ORDER

Defendant was convicted of an oxycondone conspiracy and a money

laundering conspiracy, and was sentenced to a term of incarceration

of forty-eight months on each count, to run concurrently. The court

has received a letter from the defendant in which she requests to

be released on home confinement for the remainder of her sentence

in light of the COVID-19 epidemic. The court will address

defendant’s letter as a motion.

To the extent that the defendant’s letter can be construed as

a request for the court to order the Bureau of Prisons (“BOP”) to

permit her to serve the remainder of her sentence on home

confinement, the motion is not well taken and is denied. Under 18

U.S.C. §3621(b), the BOP has the sole authority to determine the

place of a defendant’s confinement. Under the Coronavirus Aid,

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

director of the BOP has the discretion to lengthen the maximum home

confinement placement otherwise permitted under 18 U.S.C. §3624(c)

during the covered emergency period. See CARES Act, Pub.L. 116-136,

Div. B., Title II, §12003(b)(2). Only the BOP has the authority to

place a defendant on home confinement under §3624(c) and 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); United States v. Serfass,

No. 3:15-39, 2020 WL 1874126, at *3 (M.D. Pa. Apr. 15, 2020).

Insofar as defendant’s letter is construed as a request for

Case: 2:18-cr-00154-JLG Doc #: 41 Filed: 04/28/20 Page: 1 of 2 PAGEID #: 97
compassionate release under 18 U.S.C. §3582(c)(1)(A)(i) based on the

COVID-19 risk, the court notes that before a defendant can file a

motion for reduction in sentence for “extraordinary and compelling

reasons” under that section in the district court, the defendant

must first ask the warden to file a motion for a reduction in

sentence on her behalf. If that request is denied by the warden

within thirty days, defendant must exhaust all administrative

appeals before filing a motion in district court. If, on the other

hand, 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 Daniels, 2020 WL 1938973, at *2-3; Guzman v.

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

May 2, 2019). The exhaustion requirement contained in

§3582(c)(1)(A) is jurisdictional and cannot be waived, even due to

emergencies such as the COVID-19 pandemic. See, e.g., United States

v. Raia, F.3d , 2020 WL 1647922, at *2 (3d Cir. Apr. 2,

2020); United States v. Dickson, No. 1:19-cr-251-17, 2020 WL

1904058, at *2-3 (N.D. Ohio Apr. 17, 2020); United States v. Alam,

No. 15-20351, 2020 WL 1703881, at *2 (E.D. Mich. Apr. 8, 2020). 

Defendant does not allege that she has exhausted her administrative

remedies. The motion for compassionate release is denied without

prejudice due to defendant’s failure to exhaust her administrative

remedies.

Date: April 28, 2020 S/James L. Graham 

 James L. Graham

 United States District Judge 

 

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