                                  PRECEDENTIAL
                                      GCO-002-E

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT
            _____________

                 No. 20-1033
                _____________

      UNITED STATES OF AMERICA,
                      Appellant

                       v.

               FRANCIS RAIA

             __________________

On Appeal from the United States District Court
           for the District of New Jersey
         District Court No. 2-18-cr-00657
District Judge: The Honorable William J. Martini
               __________________

  Before: SMITH, Chief Judge, AMBRO and
        CHAGARES, Circuit Judges.

             (Filed: April 2, 2020)
Mark E. Coyne
Steven G. Sanders
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102
      Counsel for Appellant

Jenny Chung
Lee Vartan
Chiesa Shahinian & Giantomasi
One Boland Drive
West Orange, NJ 07052

David M. Dugan
Chiesa Shahinian Giantomasi
11 Times Square
31st Floor
New York, NY 10036

Alan L. Zegas
Law Offices of Alan L. Zegas
Third Floor West
60 Morris Turnpike
Summit, NJ 07901
      Counsel for Appellee




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                      _______________

                 OPINION OF THE COURT
                    ________________


SMITH, Chief Judge.

   The First Step Act empowers criminal defendants to
request compassionate release for “extraordinary and
compelling reasons.” 18 U.S.C § 3582(c)(1)(A)(i).1 But

1
    The relevant portion of § 3582 provides:
         (c) MODIFICATION OF AN IMPOSED TERM OF
         IMPRISONMENT.–The court may not modify a
         term of imprisonment once it has been
         imposed except that—
            (1) in any case–
               (A) the court, upon motion of the
               Director of the Bureau of Prisons, or
               upon motion of the defendant 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 receipt of
               such a request by the warden of the
               defendant’s facility, whichever is
               earlier, may reduce the term of
                               3
before they make such requests, defendants must at least
ask the Bureau of Prisons (BOP) to do so on their behalf
and give BOP thirty days to respond. See § 3582(c)(1)(A).
And even then, defendants must first submit their motion
to “the [sentencing] court”; we can only consider these
motions on appeal. § 3582.

    Nevertheless, Francis Raia asks us to decide his
compassionate-release motion in the first instance.
Alternatively, he asks us to dismiss the government’s
pending appeal so the District Court can decide the
motion. But although he asked BOP to move for
compassionate release on his behalf, he did not give it
thirty days to respond. So we will deny Raia’s motion.

                            I

   While running for local office in Hoboken, New Jersey,
Raia directed campaign volunteers to bribe voters with
$50 payments to vote for him by absentee ballot and
support a measure he favored. A jury convicted Raia 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




                           4
conspiring to use the mails to promote unlawful activity in
violation of 18 U.S.C. § 371. See also 18 U.S.C.
§ 1952(b)(i)(2) (defining “unlawful activity” to include
bribery). The District Court sentenced Raia to three
months imprisonment, one year of supervised release, and
a $50,000 fine. But the government thought the sentence
was too lenient, having originally sought twenty-seven
months imprisonment. It appealed to this Court under 18
U.S.C. § 3742(b).

    On March 3, 2020, with the government’s appeal
pending, Raia reported to the federal correctional institute
in Fairton, New Jersey to begin his sentence. Shortly
thereafter, he asked BOP to move for compassionate
release on his behalf. But before BOP responded, and
before thirty days passed, Raia filed his own motion with
the District Court for compassionate release given the
present pandemic caused by COVID-19, a highly
contagious respiratory virus which has already infected
over 25,000 people in New Jersey and poses unique risks
in population-dense prison facilities. See Federal Bureau
of Prisons, COVID-19 Action Plan (Mar. 13, 2020, 3:09
PM),      https://www.bop.gov/resources/news/20200313_
covid-19.jsp; New Jersey, COVID-19 Information Hub,
https://covid19.nj.gov/ (last updated Apr. 2, 2020, 1:00
PM). In particular, Raia claimed he faces heightened risk
of serious illness or death from the virus since he is sixty-
eight-years old and suffers from Parkinson’s Disease,
diabetes, and heart issues.




                             5
    Two days later, the District Court denied the motion,
concluding that the pending appeal divested it of
jurisdiction. In a footnote, however, the District Court
offered that it would have granted the motion and released
Raia to home confinement “[d]ue to the increased risk
posed by a custodial term” in light of COVID-19, and
because Raia’s offense “was non-violent and [Raia] has
otherwise been a highly productive, charitable member of
his community.” Order n.1, Mar. 26, 2020 (ECF No. 86).

    Raia has not appealed that order. Instead, he filed a
motion asking this Court to decide his compassionate-
release motion. Alternatively, he asks us to return
jurisdiction to the District Court by dismissing the
government’s appeal without prejudice. He claims we
have power to do so under Federal Rule of Appellate
Procedure 3(a)(2), which notes: “An appellant’s failure to
take any step other than the timely filing of a notice of
appeal does not affect the validity of the appeal, but is
ground only for the court of appeals to act as it considers
appropriate, including dismissing the appeal.”

                            II

   We cannot decide Raia’s compassionate-release
motion in the first instance. Section 3582’s text requires
those motions to be addressed to the sentencing court, a
point several Circuits have noted and Raia himself
acknowledges. See, e.g., United States v. Richardson, 948
F.3d 733, 749 (6th Cir. 2020); United States v. Smith, 896
F.3d 466, 473 (D.C. Cir. 2018); Mot. 3.




                            6
    Nor can we dismiss the government’s appeal under
Rule 3(a)(2). Rule 3(a)(2) dismissal is a sanction for
“fail[ing] to comply with procedural rules.” Horner Equip.
Int’l, Inc. v. Seaside Pool Ctr., Inc., 884 F.2d 89, 93 (3d
Cir. 1989); see also Lehman Bros. Holdings v. Gateway
Funding Diversified Mortg. Servs., L.P., 785 F.3d 96, 101
(3d Cir. 2015). Here, there is nothing the government has
failed to do.

   We could, however, remand the case to the District
Court while retaining jurisdiction over the government’s
appeal under Rule 12.1. That would allow the District
Court to consider Raia’s compassionate-release request in
the first instance.

    But any remand would be futile. As noted, Raia failed
to comply with § 3582(c)(1)(A)’s exhaustion requirement:
BOP has not had thirty days to consider Raia’s request to
move for compassionate release on his behalf, and there
has been no adverse decision by BOP for Raia to
administratively exhaust within that time period (as such,
we need not address administrative appeals here).
Although the District Court’s indicative ruling did not
mention the exhaustion requirement, it presents a glaring
roadblock foreclosing compassionate release at this point.

   Accordingly, since Rule 3(a)(2) is inapt and since
remanding the matter under Rule 12.1 would be futile, we
will deny Raia’s motion outright.

                       *    *    *




                            7
    We do not mean to minimize the risks that COVID-19
poses in the federal prison system, particularly for inmates
like Raia. But the mere existence of COVID-19 in society
and the possibility that it may spread to a particular prison
alone cannot independently justify compassionate release,
especially considering BOP’s statutory role, and its
extensive and professional efforts to curtail the virus’s
spread. See generally Federal Bureau of Prisons, COVID-
19 Action Plan (Mar. 13, 2020, 3:09 PM),
https://www.bop.gov/resources/news/20200313_covid-
19.jsp. Given BOP’s shared desire for a safe and healthy
prison environment, we conclude that strict compliance
with § 3582(c)(1)(A)’s exhaustion requirement takes on
added—and critical—importance. And given the Attorney
General’s directive that BOP “prioritize the use of [its]
various statutory authorities to grant home confinement
for inmates seeking transfer in connection with the
ongoing COVID-19 pandemic,” we anticipate that the
statutory requirement will be speedily dispatched in cases
like this one. Memorandum from Attorney Gen. to Dir.,
Bureau      of    Prisons      1    (Mar.      26,     2020),
https://www.justice.gov/file/1262731/download. So we
will deny Raia’s motion.




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