               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 11a0494n.06

                                             No. 09-6508

                          UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

                                                                                    FILED
                                                                                Jul 18, 2011
CLAYTON P. CROWE,                                                        LEONARD GREEN, Clerk

       Petitioner-Appellant,

v.                                                   ON APPEAL FROM THE UNITED
                                                     STATES DISTRICT COURT FOR THE
UNITED STATES OF AMERICA,                            EASTERN DISTRICT OF KENTUCKY

       Respondent-Appellee.

                                         /

BEFORE:        SUTTON and WHITE, Circuit Judges; and STAFFORD, District Judge.*

       PER CURIAM.

       The petitioner-appellant, Clayton Crowe, appeals from the district court's judgment denying

his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. We AFFIRM.

       Crowe is currently serving a sixty-year sentence in federal prison. Because he suffers from

heart and kidney ailments, Crowe asked the Director of the Bureau of Prisons ("BOP") to file a

motion in federal court seeking a compassionate release as permitted under 18 U.S.C. §

3582(c)(1)(A)(i). The BOP denied his request. After pursuing administrative remedies without

success, Crowe filed a petition—styled as a § 2241 petition—in the district court, seeking an order

requiring the BOP to file a motion for compassionate release with the sentencing court in North

       *
        The Honorable William H. Stafford, Jr., Senior United States District Judge for the
Northern District of Florida, sitting by designation.
No. 09-6508
Crowe v. USA


Carolina. The district court correctly determined that § 2241 does not provide subject matter

jurisdiction over Crowe's petition. The district court also correctly determined that, even if viewed

as a request for review of agency action under the Administrative Procedure Act, 5 U.S.C. § 701-

706, Crowe's petition lacks merit because federal courts have no authority to review or countermand

the BOP's decision not to seek a compassionate release for an inmate. Crowe filed a timely appeal

to this court.

        The BOP has the authority to seek a modification of a prisoner's sentence pursuant to 18

U.S.C. § 3582(c)(1)(A)(i), which provides that a federal court "may not modify a term of

imprisonment once it has been imposed except that . . . in any case . . . the court, upon motion of the

Director of the [BOP], may reduce the term of imprisonment . . . if it finds that . . . extraordinary

and compelling reasons warrant such a reduction." Id. (emphasis added). The statute places no

limits on the BOP's authority to seek or not seek a sentence reduction on behalf of a prisoner, nor

does it define—or place any limits on—what "extraordinary and compelling reasons" might warrant

such a reduction. The BOP, in other words, has broad discretion in its decision to move the court

for a sentence modification under § 3582(c)(1)(A)(i).1

        Based on this broad grant of discretion, a number of courts have determined that the BOP's

decision regarding whether or not to file a motion for compassionate release is judicially

unreviewable. See Fernandez v. United States, 941 F.2d 1488, 1493 (11th Cir. 1991) (holding that


        1
          Crowe argues, on various grounds, that the breadth of discretion granted to the BOP by
§ 3582(c)(1)(A)(i) is unconstitutional. Crowe's arguments in this regard are frivolous and we
decline to address them.

                                                 -2-
No. 09-6508
Crowe v. USA


the BOP's decision whether to seek a compassionate release under the predecessor to §

3582(c)(1)(A)(i) was unreviewable); Simmons v. Christensen, 894 F.2d 1041, 1043 (9th Cir. 1990)

(same); Turner v. U.S. Parole Comm'n, 810 F.2d 612, 615 (7th Cir. 1987) (same); Crawford v.

Woodring, No. CV 08-362-GW, 2009 WL 6575082, at *6 (C.D. Cal. Dec. 11, 2009) (dismissing as

unreviewable prisoner's § 2241 request for an order directing the BOP to move for early release

under § 3582(c)(1)(A)(i)); Gutierrez v. Anderson, No. 06-1714, 2006 WL 3086892, at *4 (D. Minn.

Oct. 30, 2006) (same); see also Engle v. United States, 26 F. App'x 394, 397 (6th Cir. 2001) (holding

that the district courts lack "jurisdiction to sua sponte grant compassionate release" and that "[a]

district court may not modify a defendant's federal sentence based on the defendant's ill health,

except upon a motion from the Director of the Bureau of Prisons"). Consistent with these decisions,

we hold that a federal court lacks authority to review a decision by the BOP to not seek a

compassionate release for an inmate under § 3582(c)(1)(A)(i).

       The judgment of the district court denying Crowe's petition for writ of habeas corpus is

AFFIRMED.




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