Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
United States of America v. SHAWN J. GIESWEIN
Case Number: 20-6081
Judge: Paul J. Kelly, Jr.
Court: UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
Plaintiff's Attorney: United States Attorney’s Office
Denver, CO - Criminal defense lawyer represented defendant with a motion for a sentence reduction.
Mr. Gieswein argues that he is entitled to compassionate release under 18
U.S.C. § 3582(c)(1)(A) because (1) he is serving an “illegal sentence,” and (2) the
risk he faces due to COVID-19. Section 3582(c)(1)(A) allows a district court to
grant a sentencing reduction if it finds that “extraordinary and compelling reasons
warrant such a reduction” and “such a reduction is consistent with applicable policy
statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(1)(A). The
Sentencing Commission, as authorized by 28 U.S.C. § 994(t), has recognized four
categories of “extraordinary and compelling reasons.” See U.S.S.G. § 1B1.13,
comment. n.1. These include the defendant’s medical condition, age, family
circumstances, and a catch-all, “other reasons.” Id.
The district court concluded that Mr. Gieswein’s arguments about his “illegal
sentence” are not the type of “extraordinary and compelling reasons” that justify a
sentencing reduction under § 3582(c)(1)(A). 8 R. 66. The court reasoned that “postsentencing developments in case law” do not provide an appropriate basis for a
sentence reduction under the statute. Id. (quoting United States v. Saldana, 807 F.
App’x 816, 820 (10th Cir. 2020)). As to his COVID-19 argument, the district court
concluded that Mr. Gieswein has not complied with § 3582(c)(1)(A)’s exhaustion and
30-day requirements. Id. at 65.
We review de novo the district court’s legal determination about its authority
to modify a sentence under § 3582(c)(1)(A). United States v. Smartt, 129 F.3d 539,
540 (10th Cir. 1997). On appeal, Mr. Gieswein does not challenge the district court’s
analysis and application of § 3582(c)(1)(A). Instead, he raises arguments that his
sentence was “illegal” because he has served more time than the statutory maximum,
his sentences must run concurrently, and his sentence departure was “abnormally
Appellate Case: 20-6081 Document: 010110459837 Date Filed: 01/05/2021 Page: 2
extreme.” Aplt. Br. at 3. Due to his failure to address the district court’s ruling, Mr.
Gieswein has waived review of the district court’s dismissal of his motion for
compassionate release under § 3582(c)(1)(A). See Sawyers v. Norton, 962 F.3d
1270, 1286 (10th Cir. 2020). The district court appropriately concluded that Mr.
Gieswein has not complied with the exhaustion and 30-day requirements for his
COVID-19 argument. Following the passage of the First Step Act, a district court
may only consider a defendant’s motion “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.” 18 U.S.C.
§ 3582(c)(1)(A). Mr. Gieswein’s request to the warden did not include COVID-19 as
a reason for compassionate release. 8 R. 35. Therefore, he has failed to meet the
statute’s exhaustion requirements and his COVID-19 justification was properly
dismissed. See United States v. Springer, 820 F. App’x 788, 791–92 (10th Cir.
As Mr. Gieswein has not presented a rational appellate argument
on the law and the facts, we DENY Mr. Gieswein’s motion to proceed IFP and
remind him that he is responsible for paying the full amount of the filing fee.