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April 26, 2022: COMPASSIONATE RELEASE and BOP COVID-19 BLOG



Fast Facts (Full BOP stats can be found here) Currently positive-testing inmates: 63 (up from 54) Currently positive-testing staff: 153 (up from 148) Recovered inmates currently in the BOP: 52,544 (down from 52,607) Recovered staff: 12,567 (up from 12,565)


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

Rochester FMC: 8 (unchanged)

Oklahoma City FTC: 5 (up from 4)

Victorville Medium II FCI: 5 (up from 3)

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

Central Office HQ: 36 (unchanged)

Victorville Medium I FCI: 13 (unchanged)

Victorville USP: 13 (unchanged)

System-wide testing results: Presently, BOP has 137,193 federal inmates in BOP-managed institutions and 13,278 in community-based facilities. Today's stats: Completed tests: 128,757 (unchanged) Positive tests: 55,405 (unchanged)


Total vaccine doses administered: 313,756 (up from 313,603)


Case Note: Court needn't consider extraordinary and compelling circumstances if it otherwise denies compassionate release application based on § 3553(a) facts


In U.S. v. ERIC CHERRY, Defendant-Appellant., No. 21-913, 2022 WL 1210663,(2d Cir. Apr. 25, 2022), the Second Circuit, in a per curiam opinion, held that a district court need not consider whether the defendant presented extraordinary and compelling circumstances if it found that relief was inappropriate upon consideration of the § 3553(a) factors, explaining: "In 2019, Cherry pleaded guilty to brandishing a firearm during and in relation to a Hobbs Act robbery, in violation of 18 U.S.C. § 924(c)(1)(A)(i)–(ii), based on his firing a shot during a gunpoint robbery of a jewelry store through a glass exterior door and into a crowded street.

On February 11, 2021, after exhausting his administrative remedies, Cherry filed in the district court a motion for compassionate release, requesting that he be released from BOP custody to home confinement in light of his medical condition. Having served about twenty-eight months of his eighty-four-month term of imprisonment, Cherry argued that his unique and grave medical condition constituted an “extraordinary and compelling” circumstance warranting compassionate release....

The district court denied Cherry's motion on March 31, 2021, holding that even if his medical condition constituted an extraordinary circumstance, the BOP was able to properly care for him at FMC Devens, and that a reduction of his sentence would be inconsistent with the objectives of sentencing as set forth in 18 U.S.C. § 3553(a). We assume the parties’ familiarity with the underlying facts, procedural history, and issues on appeal...

First, Cherry contends that the district court erred by failing to find that extraordinary and compelling reasons justified his release. But section 3582(c) permits a district court to reduce a sentence only if, “after considering the factors set forth in section 3553(a),” it “finds that extraordinary and compelling reasons warrant such a reduction.” 18 U.S.C. § 3582(c)(1)(A) (emphasis added). Thus, as we have explained, a finding that the section 3553(a) factors disfavor early release is independently sufficient to deny a compassionate-release motion, regardless of the presence of any “extraordinary and compelling reasons that might (in other circumstances) justify a sentence reduction.” Keitt, 21 F.4th at 73.

Here, the district court's denial of Cherry's motion was based on its assessment of the section 3553(a) factors, focusing primarily on the gravity of Cherry's offense and his history of violent criminal conduct. Compare 18 U.S.C. § 3553(a) (enumerating such factors), with App'x at 73–74 (finding that Cherry had “committed a dangerous and brazen offense” and that the “robbery [for which he was convicted] was not a one-off affair”). While Cherry may disagree with how the district court balanced the section 3553(a) factors, “[t]he weight to be afforded any [section] 3553(a) factor is a matter firmly committed to the discretion of the sentencing judge.” Keitt, 21 F.4th at 72 (quoting United States v. Verkhoglyad, 516 F.3d 122, 131 (2d Cir. 2008)).

In sum, the district court's determination that the section 3553(a) factors compelled a denial of Cherry's motion lies well within the scope of its “reasoned exercise of discretion,” to which “we must defer heavily.”...We therefore conclude that the district court did not abuse its discretion by denying Cherry's motion for compassionate release based on its assessment of the section 3553(a) factors.

Second, Cherry contends that the district court erred in finding that BOP can effectively care for him at FMC Devens. But to the extent that this issue is relevant to whether Cherry established “extraordinary and compelling” circumstances warranting compassionate release, this contention is moot. Because the district court properly treated the section 3553(a) factors as an independently sufficient ground on which to deny Cherry's compassionate-release motion, it was not also required to “determine whether the defendant has shown extraordinary and compelling reasons that might (in other circumstances) justify a sentence reduction.” Keitt, 21 F.4th at 73....

And to the extent that the quality of medical care available at FMC Devens is relevant to one of the section 3553(a) factors – which requires the district court to consider the need “to provide the defendant with needed ... medical care ... in the most effective manner,” 18 U.S.C. § 3553(a)(2)(D) – the district court considered this factor in making its determination. Cherry nevertheless insists that the district court overlooked key evidence concerning the capacity of FMC Devens to address his medical needs. But that contention is contradicted by the record...

While Dr. Fenyves asserted in his reply letter that he still was not “convince[d]” or “reassure[d]” that Cherry could be “effectively managed” at FMC Devens, his only explanation was that the doctors at the Brooklyn Hospital Center were already “deeply involved and familiar with Mr. Cherry's medical history.” Id. at 50. But that explanation is belied by the facts that Brooklyn Hospital Center had previously seen fit to transfer Cherry out to other hospitals within New York, and that BOP had already arranged to have Cherry's complete medical files sent from the Brooklyn Hospital Center to FMC Devens and to have doctors at the two facilities coordinate on his care. In short, Cherry has not offered any basis for questioning the ability of the doctors at FMC Devens to care for Cherry at that facility.

Based on the record before it at the time, it was not improper for the district court to credit and to rely on Dr. Khazen's detailed assessment in concluding that FMC Devens is capable of managing Cherry's condition....

Accordingly, we AFFIRM the order of the district court."


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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