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April 21, 2022: COMPASSIONATE RELEASE and BOP COVID-19 BLOG



Fast Facts (Full BOP stats can be found here) Currently positive-testing inmates: 57 (up from 56) Currently positive-testing staff: 150 (down from 151) Recovered inmates currently in the BOP: 52,765 (unchanged) Recovered staff: 12,559 (up from 12,558)


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

Rochester FMC: 16 (unchanged)

Oklahoma City FTC: 4 (unchanged)

Victorville Medium II FCI: 4 (unchanged)

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

Central Office HQ: 33 (unchanged)

Victorville Medium I FCI: 13 (unchanged)

Victorville USP: 13 (unchanged)

System-wide testing results: Presently, BOP has 136,882 federal inmates in BOP-managed institutions and 13,370 in community-based facilities. Today's stats: Completed tests: 128,770 (up from 128,769) Positive tests: 55,418 (up from 55,417)


Total vaccine doses administered: 313,085 (up from 312,799)


Case Note: Non-retroactivity of the § 851 amendments, combined with defendant's youth at time of offense conduct, warrants sentencing reduction...


In U.S. v. GEORGE DEJESUS, 2022 WL 1154251 (S.D.N.Y. Apr. 19, 2022) (Ramos, J.), the court found that non-retroactivity of the § 851 amendments, combined with defendant's youth, warrants sentencing reduction, and in doing so excuses petitioner’s failure to use perfect nomenclature in his request to BOP, explaining: "George DeJesus is currently serving a 360-month sentence, which Judge William H. Pauley III imposed on September 28, 2007, at FCI Fairton in New Jersey, and according to Bureau of Prisons (“BOP”) records, he is scheduled to be released in May of 2032. … DeJesus, born in June 1982, was 19 years old in 2001 when he became involved in the heroin trafficking organization for which he was convicted. … At trial, the jury found DeJesus guilty of conspiring to distribute one kilogram and more of heroin, and of possessing, but not brandishing, a firearm. Doc. 106 at 1. The government also filed a prior felony information, indicating that in September 1999, DeJesus had been convicted of attempted criminal sale of a controlled substance in the third degree, in violation of New York Public Law § 220.39, and therefore was subject to enhanced penalties under 21 U.S.C. § 841(b)(1)(A), which at the time increased the mandatory minimum sentence for the narcotics conspiracy from ten years to twenty years. In 1999, when DeJesus was 17, he had attempted to sell two glassines of heroin to an undercover New York City Police Department (“NYPD”) officer. … Judge Pauley determined that a downward variance from the Guidelines “was warranted so that DeJesus would have some portion of his life to make a contribution to society on his release.” … DeJesus submitted a request for a reduction in sentence under § 3582(c)(1)(A) pursuant to the First Step Act to the warden of FCI Fairton on June 9, 2020, arguing that extraordinary and compelling circumstances due to the pandemic and changes to sentencing laws warranted a reduction in this sentence. … The Government argues that DeJesus’ motion must be denied because he has not exhausted his administrative remedies, as he did not argue that he made a motion to the BOP for compassionate release and he did not attach any application to his submission. .. The letter includes his request to BOP staff and handwritten letter to the warden dated June 9, 2020, indicating that he would like to apply for compassionate release or a reduction in sentence under § 3582(c)(1)(A), citing the First Step Act. Especially considering DeJesus’ pro se status, the Court finds that the June 2020 request was sufficient for the purposes of exhaustion of his administrative remedies. While the June 2020 request was framed as seeking a sentence reduction rather than explicitly seeking compassionate release, courts do not require motions for compassionate release to be identical to requests to the BOP. … The Court finds that several factors support a finding of extraordinary and compelling reasons: DeJesus’ upbringing and youth at the time of the crimes he committed; DeJesus’ family circumstances; the disparity between the sentence DeJesus received in 2007 and what he would receive under current law; and his rehabilitation. … First, DeJesus’ difficult upbringing and youth at the time of his crimes, while duly considered by Judge Pauley at sentencing, are still relevant to the Court's analysis now. Since 2007, when DeJesus was sentenced, the Supreme Court has instructed that “youth matters in sentencing.” … His father was physically abusive to his mother, before eventually abandoning the family; both of his parents sold drugs; his mother was incarcerated for selling drugs when he was only eight years old and separated from the family for approximately two years; he was drawn towards gang life at the age of 14 because the older men “tread [him] like a little brother”; his brother Nelson was stabbed to death in 2002, and his sister Yolanda died of complications of an autoimmune disease in 2006. … Second, the disparity between the sentence DeJesus received in 2007, including the 20-year mandatory minimum for having a prior drug felony, and the sentence he would likely receive now for the same conduct after passage of the First Step Act, contributes to a finding of extraordinary and compelling circumstances. DeJesus’ motion focuses on the changes to sentencing law and mandatory minimums under the First Step Act. … Were it not for the prior felony information—which the government agrees was due to a youthful offender adjudication—DeJesus would have been subject to a mandatory minimum sentence of ten years, not the twenty years that mandated by the Guidelines at that time, and he likely would have received a dramatically lower sentence. While the Court does not now decide that this disparity in sentencing is an extraordinary and compelling reason in and of itself, it is relevant to the totality of the circumstances to be considered. …DeJesus states that he will live with and care for his mother, who is suffering from leukemia, and that he has been offered employment as a maintenance worker for a management company. Doc. 97 at 25–26. He hopes to mentor young people and to share his story as an example of change. Id. at 26. In support of this plan, DeJesus has submitted a letter from the management company confirming that it has a full-time position available for DeJesus. Doc. 96 at 13. Particularly given the trauma and losses that DeJesus’ family has suffered, the Court finds that his stated desire to care for and support his mother is relevant to the consideration of extraordinary and compelling circumstances. … In sum, the Court finds that DeJesus’ youth and upbringing, the disparity in the sentence he received as compared to what he would likely receive now, his rehabilitation, and his family circumstances together constitute extraordinary and compelling circumstances. … The Court finds that serving an additional ten years beyond the over sixteen years that DeJesus has already been incarcerated would do little to further the goals behind incarceration. The government claims that the need for deterrence mandates denying the instant motion. Doc. 106 at 8. But sixteen years ago, in 2006, the government offered DeJesus a five-year plea deal, 2017 WL 6343678, at *4—one-sixth of the amount of time it now maintains is necessary—indicating that it then considered five years to be reasonable sentence that would 'fulfill legitimate penological goals.'”


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) The BOP has identified no new inmate fatalities, leaving the total at 293. Eleven of the inmates died while on home confinement. Staff deaths remain at 7



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