USCA11 Case: 21-12652 Date Filed: 07/21/2022 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12652
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ORATIN PERTIL,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:06-cr-20791-KMM-8
____________________
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2 Opinion of the Court 21-12652
Before JORDAN, NEWSOM, and ANDERSON, Circuit Judges.
PER CURIAM:
Oratin Pertil appeals pro se the district court’s denial of his
motion for compassionate release under
18 U.S.C. § 3582(c)(1)(A).
He argues that the district court erred in finding that he failed to
exhaust his administrative remedies. He argues that he attached to
his motion an unsigned document to the warden requesting com-
passionate release that received no response after 30 days. In re-
sponse, the Government asserted, without filing any supporting
documentation, that it had “reached out to the [Bureau of Prisons
(“BOP”)] to inquire whether Pertil submitted an administrative re-
quest for compassionate release and was informed that Pertil had
not yet done so.” The Government stated that it had “reached out
to the BOP multiple times regarding Pertil’s administrative exhaus-
tion efforts” and that, “[o]n all occasions, . . . the BOP informed the
[Government] that Pertil [had] not submitted a request for com-
passionate release.”
District courts lack the inherent authority to modify a term
of imprisonment but may do so within § 3582(c)’s provisions.
18 U.S.C. § 3582(c); United States v. Jones,
962 F.3d 1290, 1297
(11th Cir. 2020). Section 3582(c) now provides, in relevant part,
that:
the court, upon motion of the Director of the [BOP],
or upon motion of the defendant after the defendant
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21-12652 Opinion of the Court 3
has fully exhausted all administrative rights to appeal
a failure of the [BOP] to bring a motion on the defend-
ant’s behalf or the lapse of 30 days from the receipt of
such a request by the warden of the defendant’s facil-
ity, whichever is earlier, may reduce the term of im-
prisonment . . . , after considering the factors set forth
in [18 U.S.C. §] 3553(a) to the extent that they are ap-
plicable, if it finds that . . . extraordinary and compel-
ling reasons warrant such a reduction . . . and that
such a reduction is consistent with applicable policy
statements issued by the Sentencing Commis-
sion . . . .
18 U.S.C. § 3582(c)(1)(A). Thus, a defendant can file a motion for
compassionate release in a district court only after he has exhausted
his administrative remedies and the BOP has refused to bring the
motion or if the BOP fails to answer the defendant’s request within
30 days.
Id.
The district court, after reviewing Pertil’s motion, deter-
mined that his attached documentation provided “no indication
that [his request for compassionate release] was submitted to the
BOP.” It noted that Pertil’s submitted document “contain[ed] no
signature by any BOP staff member in the ‘signature staff member’
section” and that it did not “contain any remarks by a BOP staff
member in the ‘disposition’ section.” Accordingly, the court con-
cluded that the document did “not show that [Pertil’s] request ever
reached the warden.” The court then determined that Pertil had
failed to provide evidence that he had complied with
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4 Opinion of the Court 21-12652
§ 3582(c)(1)(A)’s exhaustion requirement, so it denied his compas-
sionate release motion while preserving Pertil’s ability to refile and
show “that his claim is properly exhausted.”
We review de novo “determinations about a defendant’s el-
igibility for a Section 3582(c) sentence reduction.” United States v.
Bryant,
996 F.3d 1243, 1251 (11th Cir. 2021). Here, we agree with
the district court’s determination that Pertil had not exhausted his
administrative remedies. As noted by the district court, the one-
page “Inmate Request to Staff” that Pertil submitted does not indi-
cate that he ever sent this document to the warden or that the war-
den ever received it. Pertil argues on appeal that the district court
incorrectly relied upon the fact that his documentation “did not
bear any signature by prison staff” because “[t]he district court was
certainly aware” that the BOP “routinely . . . provides responses to
compassionate release requests and Inmate Request to Staff Mem-
bers in the form of a separate document—not in the space provided
for such a response on the form submitted.” But even if we take
this assertion as true, Pertil did not provide any evidence—let alone
a “separate document” from the BOP—showing that the warden
or the BOP received or considered his request for compassionate
release.
Pertil also argues that the district court clearly erred because
it based its decision “only on an unsupported claim by the Govern-
ment” that the BOP said that Pertil had not submitted a compas-
sionate release request. That is not so. The district court merely
noted that “[t]he Government asserts that the request that is
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21-12652 Opinion of the Court 5
attached to [Pertil’s] Motion was not filed in the BOP’s system and,
therefore, the Warden has not had a chance to review it.” The
court then, as mentioned above, based its decision on the fact that
Pertil provided no evidence that the warden or BOP ever received
or considered his compassionate release request. Because the dis-
trict court did not rely on the Government’s unsupported factual
allegation that the BOP never received Pertil’s request for compas-
sionate release, we reject Pertil’s argument that the district court
did. 1
1 We further note that the relevant federal regulation states that an inmate’s
request for compassionate release to the warden must contain the following
information:
(1) The extraordinary or compelling circumstances that
the inmate believes warrant consideration.
(2) Proposed release plans, including where the inmate
will reside, how the inmate will support himself/her-
self, and, if the basis for the request involves the in-
mate’s health, information on where the inmate will
receive medical treatment, and how the inmate will
pay for such treatment.
28 C.F.R. § 571.61(a). Here, Pertil’s alleged request for compassionate release
did not include a proposed release plan; it merely states that, due to his medical
conditions, he is at risk of serious illness from COVID-19 and that he would
not pose a danger to the community were he to be released. Pertil’s failure to
comply with the relevant regulation for compassionate release requests pro-
vides further support for our conclusion that the district court did not err by
concluding that Pertil failed to exhaust his administrative remedies.
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6 Opinion of the Court 21-12652
Because we conclude that the district court did not err by
denying Pertil’s motion for compassionate release based on his fail-
ure to exhaust his administrative remedies, we need not reach the
Government’s alternative arguments regarding the merits of Per-
til’s motion. Accordingly, the district court’s denial of Pertil’s com-
passionate release motion is
AFFIRMED.
