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April 12, 2022: COMPASSIONATE RELEASE and BOP COVID-19 BLOG



Fast Facts (Full BOP stats can be found here) Currently positive-testing inmates: 69 (down from 70) Currently positive-testing staff: 146 (unchanged) Recovered inmates currently in the BOP: 53,105 (down from 53,151) Recovered staff: 12,538 (unchanged)


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

Rocheste FMC: 11

Victorville Medium II FCI: 7 (up from 6)

Cumberland FCI: 5 (dow from 6)

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

Central Office HQ: 30 (unchanged)

Victorville Medium I FCI: 13 (unchanged )

Victorville USP: 13 (unchanged)

System-wide testing results: Presently, BOP has 136,137 federal inmates in BOP-managed institutions and 13,139 in community-based facilities. Today's stats: Completed tests: 128,781 (unchanged) Positive tests: 55,429 (unchanged)


Total vaccine doses administered: 311,203 (up from 311,063)


Case Note: Judge says he would have imposed lesser sentence had Booker and Apprendi then been in effect, so now grants compassionate release...


In U.S. TERRY FENNER, 2022 WL 1062021, (D. Md. Apr. 8, 2022) (Bennett, J.), the court granted compassionate release to defendant who had served 27 years of a 55-year sentence because he was sentenced pre Booker and Apprendi, which were not retractive, but would have substantially effected the court's sentencing decision, explaining: "In 1995, Defendant Terry Fenner (“Defendant” or “Fenner”), was convicted by a jury on three drug-related conspiracy and firearm charges. (Sent'g. Mem. 1–2, ECF No. 214-2.) The jury hung on a fourth charge related to the January 25, 1994 killing of Robert Holley, and Fenner was acquitted on that count. (Id.) Nevertheless, the Honorable Marvin J. Garbis found by a preponderance of the evidence that Fenner was responsible for the murder. (Id. at 2–3.) Pursuant to the then-mandatory Federal Sentencing Guidelines, that finding required Judge Garbis to sentence Fenner to a total of 55 years in prison —a result Judge Garbis characterized as “a sentence for a murder for which Terry Fenner was not convicted.” (Id. at 13.) Fenner is now 50 years old and has been in prison for 27 years. (Fenner's Renewed Mot. Sent. Reduction 18, ECF No. 214.) Today, the Federal Sentencing Guidelines are no longer mandatory, but advisory, and courts are prohibited from enhancing a sentence beyond its statutory maximum based on facts not found by a jury beyond a reasonable doubt. See United States v. Booker, 543 U.S. 220 (2005); Apprendi v. New Jersey, 530 U.S. 466 (2000). … Fenner cites the intervening changes in sentencing law, the severity of his sentence, the disparity of his sentence relative to his co-defendant, and “his superlative post-offense rehabilitation” as grounds to reduce his original sentence “to time served, which amounts to a sentence in excess of 30 years with good time credit.” … The jury hung on Count 3, which charged Defendant with firearm use in connection with Mr. Holley's death, and the court entered a judgment of acquittal[.] … At sentencing, Judge Garbis separately found that the Defendants had murdered Mr. Holley, (Sent'g Mem. at 2–3), and held that he was compelled to conclude “beyond any reasonable doubt” that “Terry Fenner willfully, deliberately, intentionally, and with premeditation shot and killed Robert Holley on January 25, 1994” in circumstances that amount to “the crime of murder in the first degree under Maryland law. … Judge Garbis expressed interest in reducing Fenner's sentence but was unable to identify any grounds for a downward departure. (Id. at 9–13.) He stated plainly that “if [this Court] had the discretion to depart in [Fenner's] case it would do so,” in order to avoid “the imposition of a sentence for a murder for which [he] was not convicted.” … Fenner correctly argues that sentencing law has changed in dramatic ways in the nearly three decades since he was convicted. Intervening developments in sentencing law may constitute extraordinary and compelling reasons that justify a motion for a sentence reduction. … Among such changes, the Supreme Court has held that any facts used to raise the statutory maximum or mandatory minimum penalty for a crime must be established by a jury beyond a reasonable doubt—not found by the judge on the preponderance of the evidence. See generally Alleyne v. United States, 570 U.S. 99 (2013); Apprendi v. New Jersey, 530 U.S. 466 (2000). Moreover, following the Court's decision in United States v. Booker, 543 U.S. 220 (2005), the Sentencing Guidelines are no longer mandatory, but instead serve as “the starting point and the initial benchmark” for judges. … These changes to the constitutional landscape of sentencing would have had dramatic effects on Fenner's sentence if he were convicted today. Fenner's initial offense level was calculated based on this Court's independent finding that the conspiracy had involved at least 100 grams of heroin, thereby doubling his statutory range on Count I from 0 to 20 years to 5 to 40 years. (Sent'g Mem. 5-7.) Additionally, Counts I, II, and IV were appended consecutively for a total sentence of 55 years due to a judicial finding that he was responsible for Robert Holley's murder—notwithstanding that the jury hung on the only related count, Count III. (Id. at 2–3.) Judge Garbis stated that “if [the Court] had the discretion to depart in this case[,] it would do so,” and made comments throughout the sentencing proceedings to this effect. (See Sent'g Mem. 12; accord Fenner's Mot. 12–14; see, e.g., Sent'g. Trans. 4–6, ECF No. 214-9.) Accordingly, this Court has little difficulty concluding that Fenner's sentence, calculated based on drug quantity amounts that were not found by the jury and enhanced by “a murder for which [he] was not convicted,” (Sent'g Mem. 13), is a violation of both Booker and Apprendi. As this result would be unconstitutional today, extraordinary and compelling circumstances make Fenner eligible for a sentence reduction. … This Court has also held that an egregious disparity in sentences between co-defendants may qualify a defendant for sentence reduction. See United States v. Edwards, No. PJM-05-179, 2021 WL 1575276, at *2 (D. Md. Apr. 22, 2021); United States v. Payton, No. PJM-06-341, 2021 WL 927631, at *2 (D. Md. Mar. 11, 2021). In this case, Fenner received a sentence three times that of his brother, who had been involved in the same conspiracy and was also deemed to be culpable for Holley's murder. (Fenner's Mot. 17.) This disparity, a direct product of the rigid application of the pre-Booker Guidelines, is an extraordinary and compelling circumstance that qualifies for relief.”)



Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) The BOP has identified no new inmate fatalities. The number of inmate-related COVID deaths remains at 292. Eleven of the inmates died while on home confinement. Staff deaths remain at 7



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