ALD-153                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 17-3613
                                       ___________

                                 RONALD N. TOTARO,
                                             Appellant

                                             v.

            WARDEN FORT DIX FCI; FEDERAL BUREAU OF PRISONS
                  ____________________________________

                     On Appeal from the United States District Court
                              for the District of New Jersey
                         (D.C. Civil Action No. 1-17-cv-06458)
                       District Judge: Honorable Renée M. Bumb
                      ____________________________________

       Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
         Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   March 15, 2018

             Before: MCKEE, VANASKIE and SCIRICA, Circuit Judges

                             (Opinion filed: August 6, 2018)
                                       _________

                                        OPINION*
                                        _________


PER CURIAM

       Federal prisoner Ronald Totaro appeals pro se from the order of the United States


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
District Court for the District of New Jersey (“the DNJ”) dismissing his habeas petition

filed pursuant to 28 U.S.C. § 2241. For the reasons that follow, we will modify that order

and summarily affirm it as modified.

                                              I.

       In 2001, the United States District Court for the District of South Dakota

sentenced Totaro to 30 years in prison following his conviction for racketeering, money

laundering, and other offenses. Totaro, who is now 76 years old, is currently serving that

sentence in a federal prison in New Jersey. In June 2017, he asked the Bureau of Prisons

(“the BOP”) to file a motion for “compassionate release” on his behalf. When the BOP

files such a motion, the sentencing court may reduce the prisoner’s sentence if the court

finds that “extraordinary and compelling reasons warrant such a reduction.” 18 U.S.C.

§ 3582(c)(1)(A). Totaro argued that he was entitled to compassionate release in light of

the United States Sentencing Commission’s 2016 amendment to the application notes

undergirding its policy statement on § 3582(c)(1)(A) sentence reductions. See U.S.S.G.

§ 1B1.13. There, the Sentencing Commission now “encourages” the BOP to file a

motion for compassionate release if, inter alia, the prisoner is at least 65 years old and

“has served at least 10 years or 75 percent of his or her term of imprisonment, whichever

is less.” Id. cmt. n.1(B) (emphasis added); see id. cmt. n.4.

       In August 2017, the warden of Totaro’s prison denied his request for

compassionate release. The warden explained that the BOP had not adopted, and was not

bound by, the Sentencing Commission’s recommendation, and that Totaro’s request was

                                              2
instead governed by BOP Program Statement 5050.49. That program statement provides,

in pertinent part, that a prisoner who is at least 65 years old may be considered for

compassionate release if he has “served the greater of 10 years or 75% of [his prison]

term.” Fed. Bureau of Prisons Program Statement 5050.49, at § 4(c) (emphasis added).

Totaro does not meet this requirement, for he has yet to serve 75 percent of his 30-year

sentence.

       Totaro subsequently filed a pro se habeas petition in the DNJ pursuant to § 2241,

effectively seeking to compel the BOP to abandon the standard for compassionate release

set forth in its program statement in favor of the more prisoner-friendly standard outlined

by the Sentencing Commission. On November 17, 2017, the DNJ dismissed Totaro’s

habeas petition based on his failure to exhaust his administrative remedies. This timely

appeal followed.

                                             II.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291 and 2253(a).1

In reviewing the DNJ’s order dismissing Totaro’s habeas petition, we exercise plenary

review over the DNJ’s legal conclusions and review its factual findings for clear error.

See Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002) (per curiam).

We may affirm that order on any basis supported by the record, see Murray v. Bledsoe,




1
 Totaro does not need a certificate of appealability to proceed with this appeal. See
United States v. Cepero, 224 F.3d 256, 264-65 (3d Cir. 2000) (en banc), abrogated on
other grounds by Gonzalez v. Thaler, 565 U.S. 134 (2012).
                                             3
650 F.3d 246, 247 (3d Cir. 2011) (per curiam), and we may take summary action if this

appeal fails to present a substantial question, see 3d Cir. I.O.P. 10.6.

       “Federal prisoners are ordinarily required to exhaust their administrative remedies

before petitioning for a writ of habeas corpus pursuant to § 2241.” Moscato v. Fed.

Bureau of Prisons, 98 F.3d 757, 760 (3d Cir. 1996). However, exhaustion may be

excused when “the purposes of exhaustion would not be served . . . by requiring [the

prisoner] to exhaust his administrative remedies.” Woodall v. Fed. Bureau of Prisons,

432 F.3d 235, 239 n.2 (3d Cir. 2005). Given that Totaro is challenging the validity of the

BOP’s program statement (as opposed to its application), we conclude that the purposes

of exhaustion would not be served by requiring exhaustion here. Cf. id. (holding that the

district court properly excused exhaustion because the petitioner was challenging not the

application of the BOP’s regulations, but rather their validity).

       Although we conclude that it would be appropriate to excuse the exhaustion

requirement in this case, there is no need to remand Totaro’s habeas petition to the DNJ

for further proceedings because the petition clearly fails on the merits.2 His argument

that the BOP was required to adopt the standards for compassionate release set forth in

the Sentencing Commission’s 2016 amendment is directly at odds with the plain

language of that very amendment. As we highlighted earlier, that amendment merely


2
  Shortly after the DNJ dismissed Totaro’s § 2241 petition, he exhausted his claim before
the BOP (Totaro’s final administrative appeal was denied for the same reasons given by
his warden). Although the DNJ’s dismissal order implied that Totaro could refile his
petition once he exhausted his administrative remedies, our ruling here renders that
course of action unnecessary.
                                            4
“encourages” the BOP to file a motion for compassionate release when the standards

outlined by the Sentencing Commission are met. See U.S.S.G. § 1B1.13 cmt. n.4.

Furthermore, the Sentencing Commission has expressly stated that section 1B1.13 “is not

legally binding on the [BOP] and does not confer any rights on the defendant.” U.S.S.G.

suppl. to app. C, amend. 799, at 136. Totaro has failed to show that the BOP’s decision

not to follow the Sentencing Commission’s recommendation entitles him to habeas relief.

       In light of the above, we will (1) modify the DNJ’s November 17, 2017 order so

that it denies, with prejudice, Totaro’s habeas petition on the merits, and (2) summarily

affirm that order as modified.3 Totaro’s request to amend his motion for bail pending the

disposition of this appeal is granted; however, the motion itself is denied as amended.

See Landano v. Rafferty, 970 F.2d 1230, 1238 (3d Cir. 1992) (indicating that

“extraordinary circumstances” must be present to grant bail pending review of a habeas

petition). To the extent that Totaro seeks any other relief from this Court, that relief is

denied.




3
  Some courts have determined that the BOP’s discretionary decision regarding whether
to file a motion for compassionate release is not subject to judicial review. See Crowe v.
United States, 430 F. App’x 484, 485 (6th Cir. 2011) (non-precedential per curiam
opinion) (collecting cases). We need not decide that issue here, for we read Totaro’s
habeas petition as challenging not the exercise of the BOP’s discretion, but rather the
BOP’s refusal to adopt what Totaro (erroneously) believes is the required legal standard
for its compassionate-release determinations.
                                              5
