                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                            FOR THE TENTH CIRCUIT                            June 22, 2018
                        _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
GABRIEL RODRIGUEZ-AGUIRRE,

      Petitioner - Appellant,
                                                           No. 18-1034
v.                                                (D.C. No. 1:17-CV-02940-LTB)
                                                          (D. Colorado)
R. HUDGINS, Warden; KEN HYLE,
Acting Assistant Director/General Counsel,

      Respondents - Appellees.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before LUCERO, HARTZ, and McHUGH, Circuit Judges.
                  _________________________________


      Gabriel Rodriguez-Aguirre, proceeding pro se, appeals the district court’s

order dismissing his requests for relief under 18 U.S.C. § 3582(c)(1)(A), 28 U.S.C.

§ 2241, and 28 U.S.C. § 1651. While we grant Mr. Rodriguez-Aguirre’s motion to

proceed in forma pauperis, we affirm the district court’s order of dismissal.




      *
         After examining Mr. Rodriguez-Aguirre’s opening brief and the appellate
record, this panel has determined unanimously that oral argument would not
materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2)(A),
(C); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral
argument. This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and
10th Cir. R. 32.1.
      In 1994, a jury convicted Mr. Rodriguez-Aguirre of various drug trafficking

and money laundering offenses. Mr. Rodriguez-Aguirre was sentenced to thirty

years’ imprisonment for these offenses. At the time he instituted this action, Mr.

Rodriguez-Aguirre was seventy-two years old, had served almost twenty-three years

of his sentence, and was serving the remaining part of his sentence in a minimum

security facility with community custody. In 2017, Mr. Rodriguez-Aguirre submitted

a compassionate release/reduction in sentence request based on being an elderly

inmate. Defendant Ken Hyle, Acting Assistant Director/General Counsel of the

Bureau of Prisons, denied the request. The denial letter cited Mr. Rodriguez-

Aguirre’s leadership role in the offenses, the large quantities of marijuana and

cocaine involved in the offenses, and the nearly two million dollars of proceeds

derived from the offenses and concluded that a sentence reduction would improperly

minimize the seriousness of the offenses.

      Mr. Rodriguez-Aguirre initiated this action to challenge the denial of his

compassionate release/reduction in sentence request, arguing that Defendant Hyle

abused his discretion in denying the request and failed to provide a written statement

of reasons for the denial. The district court dismissed Mr. Rodriguez-Aguirre’s action

because (1) Mr. Rodriguez-Aguirre did not challenge the legality of his conviction or

sentence for purposes of 28 U.S.C. § 2241; (2) the district court lacked the authority

to entertain his request for relief under 18 U.S.C. § 3582(c)(1)(A); and (3) Defendant

Hyle did provide a written statement of reasons. On appeal, Mr. Rodriguez-Aguirre



                                            2
renews his challenges to the BOP’s denial of his compassionate release/reduction in

sentence request.

      Section 3582(c) of Title 18 provides a limited set of circumstances under

which a sentencing court may modify a defendant’s term of imprisonment. Under

clause (1)(A) of the section, a sentencing court:

      upon motion of the Director of the Bureau of Prisons, may reduce the
      term of imprisonment (and may impose a term of probation or
      supervised release with or without conditions that does not exceed the
      unserved portion of the original term of imprisonment), after
      considering the factors set forth in section 3553(a) to the extent that
      they are applicable, if it finds that--
             (i) extraordinary and compelling reasons warrant such a
      reduction[.]

18 U.S.C. § 3582(c)(1)(A) (emphasis added).1 The emphasized language makes a

motion by the BOP a necessary prerequisite for a court to reduce a sentence based on

compassionate release under § 3582(c)(1)(A). See Cruz-Pagan v. Warden, FCC

Coleman-Low, 486 F. App’x 77, 79 (11th Cir. 2012) (“The plain meaning of

[§ 3582(c)(1)(A)] requires a motion by the Director [of the BOP] as a condition

precedent to the district court before it can reduce a term of imprisonment.”). Section

3582(c)(1)(A) gives the BOP absolute discretion regarding whether to file a motion,

and the BOP’s denial of a defendant’s compassionate release/reduction in sentence


      1
        On appeal, Mr. Rodriguez-Aguirre suggests that his compassionate
release/reduction in sentence request arose under 18 U.S.C. § 3582(c)(1)(A)(ii), not
(c)(1)(A)(i). But, the provision Mr. Rodriguez-Aguirre cites only affords relief to a
defendant who “has served at least 30 years in prison.” 18 U.S.C. § 3582(c)(1)(A)(ii).
Accordingly, where Mr. Rodriguez-Aguirre has not served thirty years in prison, the
only provision that might provide him a path to a compassionate release, reduction in
sentence is § 3582(c)(1)(A)(i).
                                           3
request and declination to file a motion is not a judicially reviewable decision. See

Fields v. Warden Allenwood USP, 684 F. App’x 121, 123 (3d Cir. 2017) (holding that

BOP decision not to file motion is not judicially reviewable and that § 3582(c)(1)(A)

“plainly vests the decision to pursue relief solely with the BOP.” (emphasis added));

DeLuca v. Lariva, 586 F. App’x 239, 240–41 (7th Cir. 2014) (holding that BOP

decision not to file motion “is a judicially unreviewable decision” and stating “there

are no standards cabining the BOP’s exercise of its statutorily-conferred discretion”);

see also Crowe v. United States, 430 F. App’x 484, 485 (6th Cir. 2011) (collecting

cases holding that BOP’s decision not to file motion is not subject to judicial review).

Accordingly, where the BOP decided not to file a motion and that decision is

unreviewable, the district court correctly determined that it lacked the authority to

provide Mr. Rodriguez-Aguirre any relief under 18 U.S.C. § 3582(c)(1)(A).2

       As for Mr. Rodriguez-Aguirre’s request under 28 U.S.C. §§ 1651, 2241 that

the district court compel Defendant Hyle to provide a written statement explaining

the BOP’s denial of the compassionate release/reduction in sentence request, the

exhibits submitted by Mr. Rodriguez-Aguirre reveal that Defendant Hyle did provide

Mr. Rodriguez-Aguirre with a written statement of reasons. See ROA at 80–81

(Exhibit J to Mr. Rodriguez-Aguirre’s initial filing in the district court). And while

       2
        Additionally, the district court lacked authority to entertain Mr. Rodriguez-
Aguirre’s request for relief under 18 U.S.C. § 3582(c)(1)(A) because he filed his
request in the district in which he is currently confined rather than in the district that
imposed his sentence. See Braswell v. Gallegos, 82 F. App’x 633, 635 (10th Cir.
2003) (“Because a motion filed under § 3582 requests modification of a sentence, it
follows that such a motion must be filed in the district court which imposed the
sentence.”).
                                             4
Mr. Rodriguez-Aguirre protests that the written statement cites factors relied on by

the sentencing court when imposing his sentence, § 3582(c)(1)(A) requires

consideration of the sentencing factors set out in 18 U.S.C. § 3553(a) relative to

whether a sentence reduction is ultimately appropriate. Thus, even if the BOP’s

denial of a compassionate release/reduction in sentence request was subject to

judicial review, the BOP would not abuse its discretion by relying on the seriousness

of a defendant’s offense to deny a request because the seriousness of the offense is a

factor listed in § 3553(a). See 18 U.S.C. § 3553(a)(2)(A). In summation, the district

court correctly determined that Mr. Rodriguez-Aguirre was not entitled to any relief

under 28 U.S.C. §§ 1651, 2241.

      While we GRANT Mr. Rodriguez-Aguirre’s motion to proceed in forma

pauperis, we AFFIRM the district court’s order of dismissal.

                                            Entered for the Court


                                            Carolyn B. McHugh
                                            Circuit Judge




                                           5
