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

                            FOR THE TENTH CIRCUIT                             July 15, 2020
                        _________________________________
                                                                          Christopher M. Wolpert
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                          No. 20-5000
                                                   (D.C. No. 4:09-CR-00043-SPF-1)
 LINDSEY KENT SPRINGER,                                      (N.D. Okla.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges.
                   _________________________________

      Lindsey Kent Springer, a federal prisoner proceeding pro se,1 appeals the

district court’s denial of his request for a sentence reduction under 18 U.S.C.

§ 3582(c)(1)(A).2 Springer also requests permission to proceed on appeal in forma


      *
         This order is not binding precedent except under the doctrines of law of the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.
      1
         Because Springer is a pro se litigant, we liberally construe his pleading. Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citations omitted). But we stop
short of acting as his advocate and will not “construct a legal theory on . . . [his]
behalf.” Smith v. United States, 561 F.3d 1090, 1096 (10th Cir. 2009) (internal
quotation marks and citations omitted).
      2
       Springer also challenges the district court’s denial of his request to strike the
government’s response, arguing that the Special Assistant United States Attorney
(AUSA) who signed the brief on behalf of the government had no authorization to do
pauperis. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. And because we

conclude that Springer has failed to advance any non-frivolous arguments, we deny

his request to proceed in forma pauperis.

                                   BACKGROUND

      On March 1, 2009, a grand jury indicted Springer on one count of conspiring

to defraud the United States, in violation of 18 U.S.C. § 371; one count of tax

evasion, in violation of 26 U.S.C. § 7201; two counts of tax evasion and aiding and

abetting, in violation of 26 U.S.C. § 7201 and 18 U.S.C. § 2; and two counts of

failure to file a tax return, in violation of 26 U.S.C. § 7203. On November 16, 2009, a

jury found Springer guilty on all six counts. In April 2010, the District Court for the

Northern District of Oklahoma sentenced Springer to fifteen years’ imprisonment to

be followed by three years’ supervised release. United States v. Springer, 444 F.

App’x 256, 259 (10th Cir. 2011) (per curiam) (unpublished).




so. And because the government did not file a properly signed brief, Springer
contends that the government waived its exhaustion argument. But this compound
argument fails because it is built on a faulty premise—the Special AUSA indeed had
such authorization, and courts have consistently rejected similar arguments Springer
has raised in other proceedings. E.g., Springer v. Rancourt, 17 F. App’x 824, 826
(10th Cir. 2001) (unpublished); Springer v. U.S. Att’y for N. Dist. of Okla. , No. 15-
CV-0142-JED-FHM, 2019 WL 913117, at *3 (N.D. Okla. Feb. 25, 2019); United
States v. Springer, No. 09-CR-0043-F, 2010 WL 11561885, at *1 (N.D. Okla. Feb.
22, 2010). Thus, the district court did not abuse its discretion in rejecting this
argument as frivolous and devoid of merit.

                                            2
       Over the past ten years, Springer has filed numerous unsuccessful motions and

civil appeals.3 Here, he appeals the district court’s denial of his September 2019 motion

seeking compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i), which requires that a

prisoner demonstrate that “extraordinary and compelling reasons” justify a reduction in

the prisoner’s sentence. Springer meets that standard, he claims, because he was exposed

“to Cancer Causing Asbestos and Breath-Taking Mold” while incarcerated. R. at 113.

       Before his motion arrived in the district court, Springer filed with the Bureau

of Prison (BOP) an administrative request, not even mentioning compassionate

release. Specifically, he claimed that the BOP had exposed him to asbestos, and he

sought (1) $4 million for the BOP’s alleged violation of his Eighth Amendment

rights, (2) payment of his lifetime “medical and dental expenses,” and (3) “5 days

credit for every day of [his] incarceration[,] . . . equaling a total [credit] of 2800 days

or 93.3 months[.]” Id. at 139. The warden denied Springer’s administrative request.

       In the district court, the government argued two grounds in support of denying

Springer’s newly-made-compassionate-release motion: (1) that he had not exhausted

his administrative remedies, and (2) that his asserted bases for compassionate release

did not demonstrate “extraordinary and compelling” circumstances. The government

denied Springer’s allegations about his being exposed to mold and airborne asbestos

in the FCI Seagoville prison, noting that two independent contractors had determined


       3
         We have previously classified Springer as an abusive litigant and have
imposed sanctions and strict filing restrictions on him. Springer v. IRS ex rel. United
States, 231 F. App’x 793, 802–03 (10th Cir. 2007) (unpublished). These restrictions
have done little to curb Springer’s filings.
                                             3
that the prison had no “airborne asbestos” but only “non-friable” asbestos. Id. at 251

(internal quotation marks omitted); see also id. at 147.

       The district court denied Springer’s request for a sentence reduction under

§ 3582(c)(1)(A)(i), concluding (1) that Springer had not exhausted his administrative

remedies, and (2) that even if he had, his arguments failed to “show[] an

extraordinary and compelling ground for compassionate release[.]” Resp. Br. Attach.

B-2–3. Springer timely appealed.

       On May 8, 2020, Springer was transferred to home confinement under the

recently enacted CARES Act due to the COVID-19 pandemic.4 Springer’s transfer to

home confinement is not a release from imprisonment, nor does this transfer reduce the

length of his custodial sentence. See United States v. Ko, 739 F.3d 558, 561 (10th Cir.

2014) (“[Section 3624(c)] makes clear that, even though a prisoner is . . . in home

confinement, he is still serving a ‘term of imprisonment.’ When read together, these

statutes plainly indicate that a person is in the BOP’s ‘custody’ while serving the

remainder of a sentence in home confinement.” (internal citation omitted) (referencing

§§ 3621 and 3624(c))).5


       4
        The government “requests leave to file [Springer’s] Bureau of Prisons
records under seal.” Government’s Mot. for Leave to File Under Seal 1, ECF No.
10748933 (June 22, 2020). Because the BOP records contain confidential medical
and personal information, we grant the government’s request to file the BOP Inmate
Report under seal. See Eugene S. v. Horizon Blue Cross Blue Shield of N.J., 663 F.3d
1124, 1136 (10th Cir. 2011).
       5
       The CARES Act allows the BOP to “place a prisoner in home confinement”
under 18 U.S.C. § 3624(c)(2) for a greater “maximum amount of time” than

                                             4
                                     DISCUSSION

       On appeal, Springer argues the district court erred by denying him

compassionate release under 18 U.S.C. § 3582(c)(1)(A). Springer also requests to

proceed on appeal in forma pauperis.6 We affirm the district court’s denial of his

motion and deny Springer’s in forma pauperis motion.

I.     Springer’s Compassionate-Release Request in District Court

       Springer argues that the district court erred in denying his compassionate-

release request because (1) he has exhausted his administrative remedies, and (2) his

circumstances satisfy § 3582(c)(1)(A)(i)’s “extraordinary and compelling”

circumstances requirement. We review de novo “the scope of the district court’s


previously provided for under the statute. See Coronavirus Aid, Relief, and Economic
Security Act (CARES Act), Pub. L. No. 116-136, § 12003(b)(2), 134 Stat. 281
(2020). Thus, even though Springer has received some relief under the CARES Act
(home confinement), it is not the relief that he seeks through his current § 3582 motion (a
reduction in the length of his sentence). See, e.g., United States v. Lopez, No. W-10-CR-
297 (4), 2020 WL 3490225, at *4 (W.D. Tex. June 26, 2020) (“Section 3582(c)
contemplates only a reduction in sentence. But Defendant’s request to serve the rest of
his term in home confinement, as opposed to prison, works no reduction to his sentence.
Home confinement merely permits the inmate to serve out his term of imprisonment at
home.” (internal citation omitted)); United States v. Robledo, No. 18CR2190-AJB, 2020
WL 2542641, at *7 (S.D. Cal. May 19, 2020) (same); Martinez-Brooks v. Easter, No.
3:20-CV-00569 (MPS), 2020 WL 2405350, at *14 (D. Conn. May 12, 2020) (same);
Government’s Resp. to Ct. Order 2, ECF No. 10748925 (June 22, 2020) (“Springer [is] in
home confinement for the duration of his custodial sentence” and will not become
eligible for supervised release” until the end of his sentence, on “February 2, 2023.”).
       6
         Springer requests this court “to issue an order directing the Clerk of Court to
file [his] Motion to Proceed In Forma Pauperis in this appeal.” Appellant’s Mot. for
Order by Mots. Panel Directing Clerk of Ct. to File Mot., ECF No. 10724040 (Mar.
9, 2020) (capitalization removed). We construe this as a motion to accept Springer’s
previous motion to proceed in forma pauperis for filing. Springer’s motion to
proceed in forma pauperis is accepted for filing.
                                            5
authority to reduce a term of imprisonment under § 3582[.]” See United States v.

White, 765 F.3d 1240, 1245 (10th Cir. 2014) (citation omitted).

      Courts may not modify an inmate’s sentence under § 3582(c)(1)(A) unless (1)

the BOP has made a motion on the inmate’s behalf, or (2) the inmate has requested

that the BOP make such a motion and has either (a) “fully exhausted all

administrative rights to appeal a failure of the [BOP] to bring a motion on the

[inmate]’s behalf” or (b) thirty days have passed since the “warden of the [inmate]’s

facility” received a compassionate-release request from the inmate. See

§ 3582(c)(1)(A). Section 3582(c)(1)(A)(i) also requires that the inmate present

“extraordinary and compelling reasons” justifying the relief.

      Contrary to Springer’s argument, he was required to request that the BOP file

a compassionate-release motion on his behalf to initiate his administrative remedies.

See, e.g., United States v. Raia, 954 F.3d 594, 595 (3d Cir. 2020) (“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). But 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.” (emphasis added) (footnote

omitted) (citing § 3582(c)(1)(A))); United States v. Surine, No. 4:07-CR-00304-01,

2020 WL 3547491, at *2 (M.D. Pa. June 30, 2020) (“The record demonstrates that

Surine has yet to file any request with the BOP in accordance with § 3582(c)(1)(A)

and, accordingly, it is clear from that Surine has not exhausted his administrative

remedies.”); United States v. Mogan, No. CR 14-040, 2020 WL 2558216, at *3 (E.D. La.

                                           6
May 20, 2020) (same)); United States v. Taylor, No. CR 3:18-282, 2020 WL 2084974, at

*3 (M.D. Pa. Apr. 30, 2020) (concluding that because the inmate did “not request[]

compassionate release at [FCC-Hazelton], as she is required to do[,]” she had “not

exhausted her administrative remedies under § 3582(c)(1)(A)” (second alteration in

original) (internal quotation marks and citation omitted)); United States v. Wilson, No.

CR 14-209-1, 2020 WL 1975082, at *4 (E.D. Pa. Apr. 24, 2020) (dismissing the

defendant’s compassionate-release motion for failure to comply with § 3582(c)’s

exhaustion requirement because the defendant had “failed to move the [BOP] for his

compassionate release”); United States v. Cruz, No. 1:95-CR-204, 2020 WL 1904476,

at *3 (M.D. Pa. Apr. 17, 2020) (“Regardless, since Cruz has not yet presented his

request for compassionate release to the BOP, it must be dismissed . . . since Cruz

has not exhausted his administrative remedies under § 3582(c)(1)(A) . . . .”); United

States v. Boyles, No. 18-20092-JAR, 2020 WL 1819887, at *2 (D. Kan. Apr. 10, 2020)

(same); United States v. Solis, No. CR 16-015-CG-MU, 2019 WL 2518452, at *2 (S.D.

Ala. June 18, 2019) (denying compassionate-release request because the defendant’s

“motion fails to state that he has requested compassionate release from the BOP or

otherwise exhausted his administrative remedies”).

       Springer has never made such a request. Nowhere in his administrative forms

did Springer ever mention compassionate release, § 3582(c)(1)(A), or “extraordinary

and compelling” circumstances. Thus, Springer necessarily failed to meet the

statute’s exhaustion requirements.



                                             7
II.    Springer’s In Forma Pauperis Request On Appeal

       The district court denied Springer’s request to proceed on appeal in forma

pauperis, certifying that the appeal was not taken in good faith and deeming

Springer’s arguments frivolous. Even so, Springer requests permission from this

court to proceed on appeal in forma pauperis. See Rolland v. Primesource Staffing,

LLC, 497 F.3d 1077, 1079 (10th Cir. 2007) (stating that if the district court certifies

the appeal was not taken in good faith, a party “may nonetheless move this court for

leave to proceed on appeal in forma pauperis [under] the mechanism set forth in Rule

24(a)(5)”). As in the district court, “to succeed on his motion, an appellant must show

a financial inability to pay the required filing fees and the existence of a reasoned,

nonfrivolous argument on the law and facts in support of the issues raised on appeal.”

DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991) (citations omitted).

       After reviewing both parties’ briefs, the record, and the applicable law, we

conclude that the district court properly determined that Springer’s arguments were

not taken in good faith and that the legal issues raised are frivolous. Thus, we deny

his request to proceed in forma pauperis and order that he pay the filing fee in full.

See Kinnell v. Graves, 265 F.3d 1125, 1129 (10th Cir. 2001) (“[T]he dismissal of [an]

appeal does not relieve [an appellant] of the responsibility to pay the appellate filing

fee in full.”).




                                            8
                                  CONCLUSION

      For the foregoing reasons, we affirm. And because we conclude that Springer

has failed to advance any non-frivolous arguments, we deny his request to proceed in

forma pauperis.


                                          Entered for the Court


                                          Gregory A. Phillips
                                          Circuit Judge




                                         9
