Professor Douglas Berman posted about Friday’s big decision in Raia yesterday on his Sentencing Law & Policy blog. His in-depth post is entitled, “Misguided dicta from Third Circuit panel on procedural aspects of sentence reduction motions under § 3582(c)(1)(A).” A link is here.

(I posted about Raia yesterday, offering my view that it misstated the statute’s full-exhaustion-or-30-days requirement as it were a full-exhaustion-and-30-days requirement. Berman’s post does not address that point.)

The thrust of Berman’s post is that language in Raia mistakenly suggests that the 30-day rule of 3582 is jurisdictional rather than subject to waiver by the prosecution or courts (as SDNY found earlier this week, here).  Here’s the heart of his post:

[T]hings go sideways as the Third Circuit panel says the following (which I am calling dicta because it does not respond to claims actually brought by the litigant):

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, nor has Raia administratively exhausted any adverse decision by BOP.  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.

This “futile” language here creates the problematic impression that “30-day lapsing/exhaustion” language in 18 U.S.C. § 3582(c)(1)(A) is tantamount to a jurisdictional bar to the granting of a sentence reduction motion.  But the language and structure of this requirement makes it appear much more like what the Supreme Court calls “nonjurisdictional claim-processing rules.”  Fort Bend County v. Davis, No. 18-525 (S. Ct. June 3, 2019) (available here).  With COVID-19 making every day matter, this is a critically important distinction because claim-processing rules can be forfeited if not raised by a party and might be subject to equitable exceptions.  In other words, if and when the “30-day lapsing/exhaustion” language is properly understood by courts as a claim-processing rules, then courts can (1) ask federal prosecutors if they are willing to waive/forfeit the requirement in a particular case, and courts may be able (2) on their own, as in the Perez case, to decide that the requirement need not be met given the equities of a particular case.

(Emphasis mine.)

Berman expresses hope that counsel will seek reconsideration or emergency en banc review. He concludes, “Because it is not at all clear that a remand would be futile, and especially because the Third Circuit panel here spun off some misguided dicta on an issue that appears not to have even been briefed, this portion of the opinion ought to be retracted at least until a court considers these (now life-and-death) issues with the assistance of full briefing.”