United States v. Bruce Rutherford ( 2020 )

Case: 20-40511 Document: 00515619013 Page: 1 Date Filed: 10/28/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 28, 2020
No. 20-40511
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Bruce Allen Rutherford, also known as Allen Bruce
Rutherford,
Defendant—Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:17-CR-41-1
Before Willett, Ho, and Duncan, Circuit Judges.
Per Curiam:*
Bruce Allen Rutherford moves for leave to appeal in forma pauperis
(IFP) after the district court denied his request for compassionate release
under 18 U.S.C. § 3582(c)(1). The district court determined that Rutherford
did not exhaust his administrative remedies with the Bureau of Prisons (BOP)
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-40511 Document: 00515619013 Page: 2 Date Filed: 10/28/2020
No. 20-40511
as required by § 3582(c)(1)(A). The exhaustion requirement is not
jurisdictional but mandatory. United States v. Franco, 973 F.3d 465, 467 (5th
Cir. 2020), petition for cert. filed (Oct. 7, 2020) (No. 20-5997).
Rutherford asserts that the BOP denied his request for home
confinement. The record indicates he requested information under the home
confinement program that the BOP recently initiated under the Coronavirus
Aid, Relief, and Economic Security Act (CARES Act), which expanded the
Attorney General’s authority to provide longer periods of home
confinement. See Pub. L. 116-136, § 12003(b)(2), 134 Stat. 281. But
Rutherford has not shown that he exhausted his administrative remedies for
compassionate release under § 3582(c)(1)(A).
To the extent Rutherford appeals the district court’s denial of
compassionate release, the appeal is dismissed because he raises no
nonfrivolous issue for appeal concerning his failure to exhaust administrative
remedies. See Baugh v. Taylor, 117 F.3d 197, 202 n.24 (5th Cir. 1997); 5th
Cir. R. 42.2. Rutherford “remains free to file, in the first instance, a
request with the Bureau of Prisons.” Franco, 973 F.3d at 469. To the extent
Rutherford’s pleading seeking appellate review of the district court’s ruling
may be construed as a motion for this court to grant compassionate release,
that motion is denied.
In order to appeal IFP, Rutherford must make “the proper economic
showing and” raise “issues on appeal that [are] not frivolous.” Carson v.
Polley, 689 F.2d 562, 586 (5th Cir. 1982). Rutherford does not address the
district court’s conclusion that he is financially ineligible, and he identifies
no nonfrivolous issue for appeal. His IFP motion is denied. Rutherford is
warned that additional frivolous or repetitive filings in this court or the
district court will result in monetary sanctions and limits on his access to this
court and any court subject to this court’s jurisdiction.
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Case: 20-40511 Document: 00515619013 Page: 3 Date Filed: 10/28/2020
No. 20-40511
IFP DENIED; motion for compassionate release DENIED;
APPEAL DISMISSED; SANCTION WARNING ISSUED.
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