USA v. Bruce Rutherford, No. 20-40511 (5th Cir. 2020)
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Case: 20-40511 Document: 00515619013 Page: 1 Date Filed: 10/28/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED October 28, 2020 No. 20-40511 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Bruce Allen Rutherford, also known as Allen Bruce Rutherford, Defendant—Appellant. Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:17-CR-41-1 Before Willett, Ho, and Duncan, Circuit Judges. Per Curiam:* Bruce Allen Rutherford moves for leave to appeal in forma pauperis (IFP) after the district court denied his request for compassionate release under 18 U.S.C. § 3582(c)(1). The district court determined that Rutherford did not exhaust his administrative remedies with the Bureau of Prisons (BOP) * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 20-40511 Document: 00515619013 Page: 2 Date Filed: 10/28/2020 No. 20-40511 as required by § 3582(c)(1)(A). The exhaustion requirement is not jurisdictional but mandatory. United States v. Franco, 973 F.3d 465, 467 (5th Cir. 2020), petition for cert. filed (Oct. 7, 2020) (No. 20-5997). Rutherford asserts that the BOP denied his request for home confinement. The record indicates he requested information under the home confinement program that the BOP recently initiated under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), which expanded the Attorney General’s authority to provide longer periods of home confinement. See Pub. L. 116-136, § 12003(b)(2), 134 Stat. 281. But Rutherford has not shown that he exhausted his administrative remedies for compassionate release under § 3582(c)(1)(A). To the extent Rutherford appeals the district court’s denial of compassionate release, the appeal is dismissed because he raises no nonfrivolous issue for appeal concerning his failure to exhaust administrative remedies. See Baugh v. Taylor, 117 F.3d 197, 202 n.24 (5th Cir. 1997); 5th Cir. R. 42.2. Rutherford “remains free to file, in the first instance, a request with the Bureau of Prisons.” Franco, 973 F.3d at 469. To the extent Rutherford’s pleading seeking appellate review of the district court’s ruling may be construed as a motion for this court to grant compassionate release, that motion is denied. In order to appeal IFP, Rutherford must make “the proper economic showing and” raise “issues on appeal that [are] not frivolous.” Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982). Rutherford does not address the district court’s conclusion that he is financially ineligible, and he identifies no nonfrivolous issue for appeal. His IFP motion is denied. Rutherford is warned that additional frivolous or repetitive filings in this court or the district court will result in monetary sanctions and limits on his access to this court and any court subject to this court’s jurisdiction. 2 Case: 20-40511 Document: 00515619013 Page: 3 Date Filed: 10/28/2020 No. 20-40511 IFP DENIED; motion for compassionate release DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED. 3
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