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October 14, 2022: COMPASSIONATE RELEASE, COVID-19, and BOP BLOG


Fast Facts (Full BOP stats can be found here)


Confirmed active cases at 88 BOP facilities and 8 RRCs

Currently positive-testing inmates: 188 (up from 187) Currently positive-testing staff: 387 (down from 393) Recovered inmates currently in the BOP: 48,639 (down from 48,666) Recovered staff: 14,223 (up from 14,206)


Institutions with the largest number of currently positive-testing inmates:

Yazoo City Medium FCI: 40 (up from 36)

Seagoville FCI: 20 (unchanged)

Allenwood Medium FCI: 17 (unchanged)


Institutions with the largest number of currently positive-testing staff:

Central Office HQ: 58 (unchanged)

Brooklyn MDC: 34 (unchanged)

Rochester FMC: 27 (unchanged)

System-wide testing results: Presently, BOP has 143,325 federal inmates in BOP-managed institutions and 14,219 in community-based facilities. Today's stats: Completed tests: 128,693 (up from 128,692) Positive tests: 55,341 (up from 55,340)


Total vaccine doses administered: 331,515 (up from 331,270)


Case Note: Yesterday the DC Circuit says no... today the Idaho district court says yes...


Fast Facts (Full BOP stats can be found here)


Confirmed active cases at 89 BOP facilities and 9 RRCs

Currently positive-testing inmates: 187 (down from 270) Currently positive-testing staff: 393 (unchanged) Recovered inmates currently in the BOP: 48,666 (up from 48,692) Recovered staff: 14,206 (up from 14,203)


Institutions with the largest number of currently positive-testing inmates:

Yazoo City Medium FCI: 36 (down from 83)

Seagoville FCI: 20 (down from 21)

Allenwood Medium FCI: 17


Institutions with the largest number of currently positive-testing staff:

Central Office HQ: 58 (unchanged)

Brooklyn MDC: 34 (unchanged)

Rochester FMC: 27 (unchanged)

System-wide testing results: Presently, BOP has 143,098 federal inmates in BOP-managed institutions and 14,108 in community-based facilities. Today's stats: Completed tests: 128,692 (unchanged) Positive tests: 55,340 (unchanged)


Total vaccine doses administered: 331,270 (up from 331,031)


Case Note: Yesterday the D.C. Circuit said no, today the Idaho district court says yes...


In U.S. v. ROBERT M. MCCREERY, JR., Defendant., No. 1:08-CR-00091-BLW-4, 2022 WL 6152761, at *1 (D. Idaho Oct. 7, 2022) (Winmill, J.) (Non-retroactive changes to the 851 scheme extraordinary and compelling, and a reduction was consistent with 3553(a) because although the crime was serious, that factor is not dispositive: "In June 2008, the Grand Jury returned a superseding indictment charging Mr. McCreery with conspiracy to distribute methamphetamine, use of the mail for murder for hire, and tampering with a witness. Dkt. 33. A few months later, the government filed a superseding information indicating its intent to seek increased punishment under 21 U.S.C. § 851. Dkt. 100. The information alleged that based on Mr. McCreery's 2007 felony drug conviction, Mr. McCreery would be subject to a mandatory minimum sentence of 240 months on Count 1. … With criminal history category III, the applicable guideline range was 135-168 months. However, the Court determined that Mr. McCreery was subject to a mandatory minimum sentence of 240 months under 21 U.S.C. § 851 because of his June 11, 2007 Bannock County felony conviction for possession of a controlled substance with intent to deliver (Case No. CR-2006-23932-FE). Accordingly, the Court imposed the mandatory minimum sentence. … The Court will begin by addressing the applicable § 3553(a) factors. 18 U.S.C. § 3582(c)(1)(A); 18 U.S.C. § 3553(a). On balance, these factors support Mr. McCreery's motion. The statute first instructs the Court to examine the nature and circumstances of the offense. Mr. McCreery's offense was undoubtably severe. The evidence showed that he personally distributed about 1.5 pounds of methamphetamine. PSR ¶ 35. Even more troubling, Mr. McCreery attempted to organize the killing of a witness against his father. … Both of these crimes are very serious. The Court appreciates the significant harm that a large amount of methamphetamine wreaks on Idaho communities. Simply put, drug-trafficking conspiracies have a very negative effect on society as a whole. … The government's sole argument in opposing this motion is that this factor does not support early release because Mr. McCreery “remains just as much a danger to society [as] when the Court originally sentenced him.” Dkt. 215 at 4. The Court agrees with the government that the seriousness of Mr. McCreery's offense raises genuine concerns about the need to protect the public. But the government seems to argue these concerns should be dispositive. On that point, the Court disagrees. The Court cannot accept that the seriousness of a crime, standing alone, shows that a defendant is still dangerous. Section 3582(c)(1)(A) allows the court to reduce a sentence “in any case,” no matter how serious the crime, so long as it is satisfied that the statutory criteria are met. So the Court will look to Mr. McCreery's history and characteristics—both at the time of the offense and during the intervening 14 years. Mr. McCreery was quite young when all this started. He began using methamphetamine at age 18 and committed these offenses when he only 23. PSR ¶ 82. Notably, he committed these crimes in connection with and at the direction of his father. … Now, Mr. McCreery is 38 years old and has spent significantly more of his adult life in prison than he spent as a free man. He has a truly admirable prison record. … Mr. McCreery's efforts towards rehabilitation fulfill the needs to “provide the defendant with needed education or vocational training” and “other correctional treatment.” 18 U.S.C. § 3553(a)(2)(C)-(D). More importantly, they satisfy the Court's concern about protecting the public. In particular, the Court recognizes that although Mr. McCreery's crimes arose primarily from his addiction, he has been sober for 15 years. … A 170-month sentence reflects the seriousness of his offense, promotes respect for the law, and fulfills the need for “just punishment.” 18 U.S.C. § 3553(a)(1), (a)(2)(A). … Next, the Court must determine whether Mr. McCreery's case presents extraordinary and compelling reasons warranting a sentence reduction. Mr. McCreery argues that the disparity between the sentence he received and the one the Court would likely impose under today's sentencing laws fits the bill. Since the Court sentenced Mr. McCreery, Congress has enacted two non-retroactive changes to federal drug trafficking laws that would have applied in his case.2 Most significantly, under the First Step Act, his 2007 conviction would not qualify as a “serious drug felony” that would enhance his mandatory minimum under § 841. … Under the new guidelines, Mr. McCreery's offense level would be two points lower. Together, these changes mean that if Mr. McCreery were sentenced today, he would present an offense level of 29 and a criminal history category III, yielding a guideline range of 108-135 months. His mandatory minimum sentence would be 120 months, rather than 240. The question is whether the disparity between the sentence the Court imposed and the sentence the Court would likely impose under the non-retroactive changes to sentencing law is extraordinary and compelling. … The laws on the books today would reduce Mr. McCreery's mandatory minimum sentence by 50 percent. That disparity is extraordinary. Furthermore, Mr. McCreery has already spent 170 months in federal custody. It is compelling that he has already exceeded both the mandatory minimum sentence and the high end of the guideline range sentence that the Court would consider if sentencing him today. This disparity, combined with Mr. McCreery's rehabilitation, warrant a sentence reduction.”)


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) Today the BOP identified no additional inmate fatalities and so the total number COVID-related inmate deaths remains at 308. Eleven of the inmates died while on home confinement. Staff deaths remain at 7

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