United States Court of Appeals

for the Fifth Circuit

No. 20-61083

United States of America, 

Plaintiff—Appellee,

versus

Leondus Garrett, 

Defendant—Appellant.

Appeal from the United States District Court 

for the Southern District of Mississippi

No. 1:19-CR-48-1

ON PETITION FOR REHEARING

Before Owen, Chief Judge, Smith and Graves, Circuit Judges.

Per Curiam:

IT IS ORDERED that the petition for rehearing is DENIED. The 

opinion, --- F.4th ---, 2021 U.S. App. LEXIS 27214 (5th Cir. Sept. 9, 2021), 

is WITHDRAWN, and the following is SUBSTITUTED:

* * * * *

Before Owen, Chief Judge, Smith and Graves, Circuit Judges.

Jerry E. Smith, Circuit Judge:

United States Court of Appeals

Fifth Circuit

FILED

September 24, 2021

Lyle W. Cayce

Clerk

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Leondus Garrett, an inmate at Oakdale Federal Correctional Institution, filed for compassionate release in 2020 because of the coronavirus pandemic. The district court denied the motion because Garrett had failed to 

exhaust his administrative remedies. Garrett moved for reconsideration 

some months later, which the district court again denied for failure to 

exhaust. Although, in denying reconsideration, the court misunderstood the 

exhaustion requirements, it nonetheless reached the correct outcome. 

Accordingly, we affirm.

I.

Garrett was convicted in 2019 of possession with intent to distribute 

methamphetamine. He was sentenced to 136 months in prison, followed by 

three years of supervised release. Less than a year later, he filed for compassionate release due to the pandemic. Garrett, a 32-year-old AfricanAmerican male, sought early release because he was uniquely susceptible to 

adverse effects from the virus on account of his underlying health conditions 

(diabetes, high blood pressure, and obesity) and ethnicity.

Garrett initially sought compassionate release through the Bureau of 

Prisons (“BOP”). According to him, “he wrote a letter requesting compassionate release to the staff at Oakdale FCI on April 13, 2020.” He claims that 

he also “made requests for compassionate release with [the] BOP on 

April 12, 2020, May 26, 2020, and June 10, 2020.”

Garrett’s failure to follow the appropriate procedures notwithstanding, the BOP acknowledged receipt of a June 12 request for compassionate 

release, which it denied officially on July 10. And Garrett does not suggest 

that the BOP ever received any of his earlier letters.

On May 26—more than a month after he allegedly sent his first informal request, but more than two weeks before the BOP ever acknowledged 

receipt of any request—Garrett filed a motion for compassionate release in 

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the district court per 18 U.S.C. § 3582(c)(1)(A)(i). But, because Garrett had 

not “filed an official request through a BP-9 form” before filing his motion 

in the district court, the court concluded that he had not exhausted his administrative remedies. Consequently, it denied his motion without prejudice on 

July 28. 

Rather than filing a new motion in the district court, Garrett moved 

for reconsideration on October 16. The court denied reconsideration 

because—citing reasons different from those in its initial denial—it determined that Garrett still had failed to exhaust. Garrett appeals that denial.

II.

The judiciary can “modify a term of imprisonment” if,

upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the [BOP]

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 . . . if it finds that 

[certain conditions are met].

18 U.S.C. § 3582(c)(1)(A). Thus, to file a proper motion for compassionate 

release in the district court, a prisoner must first exhaust the available administrative avenues. That general premise is not controversial—at issue here is 

not whether exhaustion is required, but only how to satisfy the exhaustion 

requirement.

Section 3582(c)(1)(A)’s text states plainly that a prisoner has the 

option to file his motion in the district court upon the expiration of one of two 

events: (1) once he “has fully exhausted all administrative rights to appeal 

. . . or” (2) after “the lapse of 30 days from the receipt of such a request by 

the warden.” Id. (emphasis added). And it’s just as plain that “whichever” 

of those events occurs “earlier” triggers the right to file in the district court. 

Id.

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So, an inmate has two routes by which he may exhaust his administrative remedies. Both begin with “requesting that the [BOP] bring a motion 

on the defendant’s behalf.” United States v. Franco, 973 F.3d 465, 467 (5th 

Cir.) (quotation omitted), cert. denied, 141 S. Ct. 920 (2020). Following that 

initial step, the prisoner has a choice. First, he may wait for a response from 

the BOP and seek further administrative review of that response (assuming 

it is adverse). On that path, only once he has “exhausted all administrative 

rights to appeal” may he bring his motion in the district court. 

§ 3582(c)(1)(A). Second, a prisoner may wait 30 days after filing his request 

and—whether the BOP has ruled on the request or not—he is free to file a 

motion in the district court. Id.

III.

As stated above, regardless of what must occur for a prisoner to 

complete his exhaustion requirements, the process must begin by “requesting that the [BOP] bring a motion on the defendant’s behalf.” Franco, 

973 F.3d at 467 (quotation omitted). Only after the “lapse of 30 days from the 

receipt of such a request” may the prisoner bring a motion in the district court. 

§ 3582(c)(1)(A) (emphasis added).1

If the BOP ever received a proper request, it occurred on June 12.

That is more than two weeks after Garrett filed his motion in the district court 

seeking compassionate release. So, Garrett filed his motion in the district 

court before properly “requesting that the [BOP] bring a motion on [his] 

behalf.” Franco, 973 F.3d at 467 (quotation omitted). In its July 28 order, 

1 Or, taking the other path described above, if the prisoner “has fully exhausted all 

administrative rights to appeal a failure of the [BOP] to bring a motion on the defendant’s 

behalf”—and has somehow done that within 30 days of the BOP’s receipt of the initial 

request—he conceivably could bring a motion in the district court in less than 30 days’ 

time. § 3582(c)(1)(A).

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then, the district court was correct that, when his motion was filed on 

May 26, Garrett had failed to satisfy the exhaustion requirement. See 

§ 3582(c)(1)(A).

IV.

On October 16, Garrett filed his motion for reconsideration. In its 

order denying that motion, the district court articulated a different line of 

reasoning as to why Garrett had failed to exhaust his administrative remedies.

It held that, so long as the BOP responds to the request within 30 days, an 

inmate is “required to pursue the administrative appeals process with the 

BOP to its conclusion before filing a motion for compassionate release” in 

the district court. Therefore, because the BOP denied Garrett’s request on 

July 10—less than 30 days after it received the request—he could not file his 

motion in the district court until he pursued his administrative appeals to 

their conclusion.

For all of the reasons provided above, supra Part II, that understanding 

is at war with the statute’s text.2 Section 3582(c)(1)(A) grants to the inmate 

the choice to take either of the two paths it provides. Once 30 days has

“lapse[d] . . . from the receipt of such a request by the warden,” the prisoner 

may file his motion in the district court. § 3582(c)(1)(A). That is so irrespective of whether the BOP has responded to the request or whether the inmate 

has administrative appeals available to him. 

It’s not surprising, then, that other courts have agreed that “[p]risoners who seek compassionate release have the option to take their claim to 

federal court within 30 days, no matter the appeals available to them.” 

United States v. Alam, 960 F.3d 831, 834 (6th Cir. 2020). It is of no conse2 Tellingly, the government elects not to defend the district court’s reasoning

directly.

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quence when the BOP responds to an inmate’s request—once “30 days from 

the receipt of such a request by the warden” has passed, the defendant may 

file in the district court. § 3582(c)(1)(A) (emphasis added). Therefore, Garrett was not required to pursue his administrative-appeals process to its conclusion merely because the BOP responded to his motion within 30 days. 

The district court was incorrect to conclude otherwise.

V.

That interpretive question, however, does not resolve the present 

dispute. As stated above, the district court’s initial denial was correct—at 

that point, Garrett had failed to exhaust because the requisite 30-day period 

had not yet lapsed. Only after that initial denial did he satisfy the exhaustion 

requirement. And instead of filing a new motion upon exhaustion, he filed a 

motion for reconsideration.

The more nuanced question, then, is whether Garrett could cure his 

exhaustion defect after the court’s initial denial and then rely on that cured 

defect as a justification for reconsideration. He could not. An intervening 

change in circumstance—such as exhausting previously unexhausted administrative remedies—is not a proper basis for a motion for reconsideration.3

Courts typically construe a motion to reconsider a denial of compassionate release as a motion to alter or amend a judgment under Federal Rule 

of Civil Procedure 59(e).4 But, because Garrett filed his motion more than 

3 Cf. Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 2012) (per curiam) (“District 

courts have no discretion to excuse a prisoner’s failure to properly exhaust the prison grievance process before filing their complaint. It is irrelevant whether exhaustion is achieved 

during the federal proceeding.”).

4 See, e.g., United States v. Batiste, No. 06-145, 2021 WL 2338217, at *1–2 (E.D. La. 

June 8, 2021) (stating that “[c]ourts apply the standards set forth in the Federal Rules of 

Civil Procedure to motions for reconsideration in the criminal context” and construing a 

motion for reconsideration of a denial of compassionate release “as [a] motion to alter or 

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28 days after the denial, we treat it “as if it were a Rule 60(b) motion,” as 

long as “the grounds asserted in support of the Rule 59(e) motion would also 

support Rule 60(b) relief.” Frew v. Young, 992 F.3d 391, 396 (5th Cir. 2021)

(quotation omitted).

Regardless of how it is construed, the motion for reconsideration

properly was denied.

5

 The primary basis on which Garrett justified reconsideration was a purported “manifest error of law.” But, as stated above, there 

was no legal error in the July 28 underlying judgment. Because he filed his 

motion in the district court before the warden received his request, he failed 

to exhaust his administrative remedies.

To be sure, after Garrett’s first motion was denied without prejudice, 

he successfully exhausted. But “[i]t is irrelevant” that he achieved exhaustion in the intervening period between the denial and his motion for reconsideration—he was required “to properly exhaust . . . before filing” the 

amend under Rule 59(e)”); United States v. Munoz, No. 2:17-CR-00330-01, 2020 WL 

4226544, at *1 (W.D. La. July, 23, 2020) (construing a motion to reconsider a compassionate release denial as a Rule 59(e) motion); United States v. Silva, No. 2:06-CR20089-11, 2020 WL 3440103, at *1 (W.D. La. June 22, 2020) (same).

5 “Under Rule 59(e), amending a judgment is appropriate (1) where there has been 

an intervening change in the controlling law; (2) where the movant presents newly discovered evidence that was previously unavailable; or (3) to correct a manifest error of law 

or fact.” Alexander v. Wells Fargo Bank, N.A., 867 F.3d 593, 597 (5th Cir. 2017) (cleaned 

up). Rule 60(b) includes at least six grounds on which relief from a final judgment may be 

granted. FED. R. CIV. P. 60(b). Not enumerated, but acknowledged by the Fifth Circuit 

as a basis for Rule 60(b) relief, is “to rectify an obvious error of law.” Caldwell v. Parker 

Univ., 802 F. App’x 841, 842 (5th Cir. 2020) (per curiam) (cleaned up). Because Garrett’s 

motion asserted that reconsideration was warranted to correct a “manifest error of law” 

and to “avoid manifest injustice,” we assume arguendo that those are proper grounds to 

seek reconsideration under either Rule 60(b) or Rule 59(e).

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motion.6 The court did not have discretion to excuse his failure to do so.

7

The irony is that, because the initial denial was without prejudice,

Garrett could have filed a new motion upon exhaustion. And he could have 

done so substantially sooner than he filed his motion for reconsideration—

only 30 days after the BOP received his request on June 12. But being in a 

procedural posture to file a new motion is not the same as meriting a favorable 

result in a motion to reconsider.

Although it grounded its determination in an erroneous interpretation 

of § 3582(c)(1)(A), the district court reached the correct outcome. A motion 

to reconsider is not the proper avenue to cure an exhaustion defect. We may 

affirm the district court’s judgment on any ground supported by the record. 

See, e.g., Clarkston v. White, 943 F.3d 988, 992 (5th Cir. 2019), cert. denied,

140 S. Ct. 2763 (2020).

AFFIRMED.

6 Gonzalez, 702 F.3d at 788 (emphasis added); see also Franco, 973 F.3d at 467 

(“Both routes begin with the defendant requesting that the [BOP] bring a motion on the 

defendant’s behalf.” (quotation omitted)). 

7 Section 3582(c)(1)(A) is a non-jurisdictional claims-processing rule and, therefore, may be waived. See, e.g., Valentine v. Collier, 956 F.3d 797, 807 (5th Cir.) (Higginson, J., concurring), motion to vacate stay denied, 140 S. Ct. 1598 (2020); Franco, 973 F.3d 

at 468. But, although it’s not jurisdictional, it is a “mandatory” rule. Franco, 973 F.3d 

at 468. Thus, when “properly invoked, [it] must be enforced.” Hamer v. Neighborhood 

Hous. Servs. of Chi., 138 S. Ct. 13, 17 (2017). The government raised the issue of exhaustion 

below; therefore, the district court did not have discretion to excuse non-exhaustion.

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James E. Graves, Jr., Circuit Judge, dissenting:

I agree with the majority that the district court erred in its application 

of the exhaustion requirements in denying Leondus Garrett’s motion for 

compassionate release. However, I disagree with the majority that the 

district court nonetheless reached the correct outcome. Because I would 

vacate and remand, I respectfully dissent.

On May 26, 2020, Garrett filed a pro se motion requesting a reduction 

of his term of imprisonment for purposes of compassionate release under 18 

U.S.C. § 3582(c)(1)(A)(i). Garrett asserted that he faced a severe risk of 

harm from COVID-19 due to underlying health conditions and asked to be 

released to home confinement. Garrett also asserted that he had exhausted 

his administrative remedies by writing a letter to prison officials on April 13, 

2020, to which he never received a response. Pursuant to a general order of 

the district court, the Federal Public Defender was appointed to represent 

Garrett.

On June 29, 2020, Garrett’s appointed counsel filed a more detailed 

Reply Supporting Motion for Compassionate Release with Garrett’s June 23, 

2020 letter to the district court included as an attachment. Garrett renewed 

the merits of his motion and asserted that he had exhausted his administrative 

remedies by sending letters seeking compassionate release in April, May and 

June of 2020. The reply also stated that Garrett tested positive for COVID19 in May 2020.

On July 28, 2020, the district court ordered that the motion for 

compassionate release be denied without prejudice due to Garrett’s failure to 

exhaust his administrative remedies prior to the filing. See United States v. 

Garrett, 1:19-CR-48-HSO-JCG, 2020 WL 4340982 (S.D. Miss. July 7, 2020). 

The district court found that Garrett had failed to comply with the Bureau of 

Prisons (BOP) procedures for exhausting his administrative remedies by 

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submitting a request for compassionate release on a BP-9 form or 

administratively appealing any unfavorable response. See 28 C.F.R. § 542.14.

On October 16, 2020, Garrett moved for reconsideration, asserting 

that the denial of his motion for compassionate release was error because he 

had exhausted his administrative remedies by sending letters. Garrett also 

presented new evidence that his June 10, 2020, administrative submission 

was accepted by the BOP on June 12, 2020, but denied on July 10, 2020.1

 

Garrett also asserted that the statute only required him to wait 30 days 

following the submission of his administrative request in order to exhaust his 

remedies.

The district court denied Garrett’s motion without prejudice on 

November 10, 2020, finding that reconsideration was unwarranted because 

Garrett had not sufficiently exhausted his administrative remedies prior to 

filing his motion for reconsideration despite the plain language of Section 

3582(c)(1)(A). The district court also found that, as Garrett’s June 12, 2020, 

request was denied by the warden on July 10, Garrett had failed to show that 

he then waited thirty days before filing his motion. Garrett subsequently filed 

this appeal. Garrett asserts that the district court erred by denying Garrett’s 

motion for compassionate release based on a legally incorrect ruling that he 

did not exhaust all administrative remedies with the BOP.

Following the First Step Act of 2018, a defendant may move for a 

compassionate release reduction in sentence “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 

1 The majority states that Garrett does not suggest that the BOP ever received any 

of his earlier letters. However, Garrett clearly asserts that he sent the letters which suggests 

that the BOP received them despite only denying the most recent of the duplicative 

requests. Regardless, there’s no dispute that the BOP received the June letter.

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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 First Step Act of 2018, Pub. 

L. 115-391, § 603(b)(1), 132 Stat. 5194, 5239. The pre-filing administrative 

exhaustion requirement is not jurisdictional, but it is instead a mandatory 

claim-processing rule. See United States v. Franco, 973 F.3d 465, 467-68 (5th 

Cir. 2020). In Franco, this court concluded that, because the government 

properly raised the rule requiring exhaustion in the district court, “this court 

must enforce the rule.” Franco, 973 F.3d at 468 (internal quotation marks, 

emphasis, and citation omitted).

Here, the government raised the issue of exhaustion and provided 

evidence that no administrative request for compassionate release had been 

filed by Garrett as of June 2, 2020. While Garrett asserts that he sent letters 

in April, May and June of 2020, he also acknowledges that the BOP accepted 

his administrative request for compassionate release on June 12, 2020 and 

denied his request on July 10, 2020. Further, Garrett filed his motion for 

reconsideration on October 16 which was well more than 30 days after he filed 

his June 12 administrative request. The question then is whether, at the very 

least, the applicable time frame surrounding the June 12, 2020 request is 

sufficient to comply with Section 3582. 

This court has previously acknowledged, without addressing, a 

potential circuit split on the question of whether a defendant may file a 

motion for compassionate release in federal court thirty days after submitting 

his administrative request, regardless of whether the BOP responds during 

that period. See United States v. Ward, No. 20-60665, 2020 WL 7755453, 2 

& n.1 (5th Cir. Dec. 29, 2020); see also United States v. Harris, 973 F.3d 170, 

171 (3d Cir. 2020) (reversed district court that held defendant was required 

to fully exhaust his administrative remedies because the BOP responded to 

request for compassionate release within thirty-day period); and United 

States v. Gunn, 980 F.3d 1178, 1179 (7th Cir. 2020) (Courts permitted to grant 

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compassionate release on prisoner’s request, provided prisoner first made 

request to the BOP and thirty days had passed. But exhaustion is not 

jurisdictional, thus courts need not consider it where the parties do not raise 

it.).

The plain language of 18 U.S.C. § 3582(c)(1)(A), as set out above, 

requires only “the lapse of 30 days from the receipt of such a request by the 

warden of the defendant’s facility.” 18 U.S.C. § 3582(c)(1)(A). The 

provision also states that courts should go with “whichever is earlier.” Id.

Here, thirty days had lapsed and, thus, the BOP had an opportunity to 

respond to the compassionate release request. Again, this is a nonjurisdictional claim-processing rule. Further, this court has previously 

concluded that the exhaustion requirement is not absolute and can be waived. 

See Valentine v. Collier, 956 F.3d 797, 807 (5th Cir. 2020).2 Moreover, as 

Garrett is seeking compassionate release during a pandemic, it would serve 

no purpose to require him to refile and start over for simply a claimprocessing rule. There is no requirement that Garrett administratively 

appeal the BOP’s denial of his request before a court may consider his 

motion. 

For these reasons, I would vacate the district court’s order and 

remand for a determination on the merits of Garrett’s motion for 

compassionate release. Thus, I respectfully dissent. 

2 The majority relies on Gonzalez v. Seal, 702 F.3d 785 (5th Cir. 2012), for the 

proposition that “it is irrelevant whether exhaustion is achieved during the federal 

proceeding.” Id. at 788. However, “Gonzalez admitted that he did not exhaust until after 

his section 1983 lawsuit was well underway.” Id. Garrett makes no such admission; instead 

he asserts that he also sent earlier requests.

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