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April 5, 2022: COMPASSIONATE RELEASE and BOP COVID-19 BLOG




Fast Facts (Full BOP stats can be found here) Currently positive-testing inmates: 88 (down from 108) Currently positive-testing staff: 137 (down from 140) Recovered inmates currently in the BOP: 53,412 (up from 53,408) Recovered staff: 12,538 (up from 12,533)


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

Otisville FCI: 10 (down from 16)

Sheridan FCI: 9 (unchanged)

Cumberland FCI: 8 (down from 12)

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 135,587 federal inmates in BOP-managed institutions and 13,031 in community-based facilities. Today's stats: Completed tests: 128,802 (unchanged) Positive tests: 55,450 (unchanged)


Total vaccine doses administered: 309,859 (up from 309,746)


Case Note: Comedy(?) of errors, including miscalculation of Guidelines, two-year delay in proceedings, failure to timely return defendant to state where he would have been paroled from state custody and thereby permitted to credit time to federal sentence, amount to extraordinary and compelling circumstances supporting sentencing reduction....


In U.S. v. MATTHEW SCOTT BURR, 2022 WL 989225 (W.D. Mo. Mar. 31, 2022) (Bough, J.), the court found that the BOP's refusal to credit defendant for time served in federal custody warrants sentence reduction explaining: "On December 7, 2016, Defendant was indicted in the United States District Court for the Western District of Missouri for felon in possession of a firearm (the “federal indictment”). At the time, Defendant was incarcerated at the Fulton Reception & Diagnostic Center in Fulton, Missouri, pursuant to a Missouri state court conviction. … On June 6, 2017, Defendant pled guilty to the federal indictment. However, due to errors in calculating Defendant's criminal history, the presentence investigation report unexpectedly revealed that Defendant would be subject to an enhanced penalty under 18 U.S.C. § 924(c), requiring a fifteen-year mandatory minimum sentence. Neither the Government nor Defendant anticipated the enhancement would apply, and both parties agreed such an enhancement would be excessive in this case. The Government therefore did not oppose Defendant's request to withdraw his guilty plea. … Because the parties agreed that the enhanced mandatory sentencing imposed by § 924 would be excessive, on October 21, 2019, Defendant plead guilty to the lesser crime of possession of a firearm in furtherance of a drug trafficking offense. The parties jointly recommended sentence consisting of a 120-month term of imprisonment followed by three years of supervised release. While in federal custody, Defendant was scheduled for hearings before the Missouri Department of Corrections, in which Defendant was to be released on parole from his state court sentence. (Doc. #67-2.) Defendant did not attend those hearings because of the federal charges, particularly in light of the potential sentencing enhancement. Due to the parties' errors in initially calculating Defendant's sentencing guidelines, Defendant was unable to return to state custody. … At Defendant's February 20, 2020, sentencing hearing, Defendant explained to the Court that he originally plead guilty in 2017. Defendant and his attorney understood that Defendant was parole-eligible on his state court sentencing and his time spent in federal custody would be fully credited towards his federal sentence. Defendant argued that if he knew he would not receive full credit towards his federal sentence or if he did not have to withdraw his 2017 guilty plea, which created a lengthy delay in reaching a plea agreement, he would have returned to state court to attend his scheduled parole hearings and he would have been formally released from state court custody. … Defendant raised his concern that the BOP would not correctly calculate his time served. The Court explained to Defendant that if the time served was not calculated, then he would need to ... exhaust his administrative remedies. If the administrative procedures did not fix the time served calculation, the Court would reappoint Defendant's counsel and the issue would be resolved through a motion filed with the Court. The Court then reiterated, “I will put in that [Judgment and Commitment] that I believe that [Defendant will] be getting credit for [his] time served that goes back until January 30th, 2017.” … The BOP did not credit the time Defendant spent in federal custody between January 30, 2017, through October 14, 2018, towards his federal. … Defendant argues that his sentence should be reduced from a 120-month term of imprisonment to a 99-month term of imprisonment to account for the approximately twenty-one months that the Court intended for Defendant to receive as credit towards his sentence. … The Government opposes the motion, arguing that Defendant is not entitled to double credit for the time credited towards his state sentence, the circumstances do not amount to “extraordinary and compelling reasons” to reduce Defendant's sentence, and no other authority allows the Court to reduce Defendant's sentence. … The Government also argues that “there is nothing ‘extraordinary and compelling about a correct and proper application of the statutes and rules, which have been in place, and which have applied to every inmate since before [Defendant] began to serve his time,” and Defendant's 120-month sentence is exactly what he agreed to in his plea agreement. The Court agrees with Defendant – there is something “extraordinary and compelling” about both the Government and Defendant's attorney miscalculating Defendant's criminal history and sentencing guidelines, resulting in over a two-year delay in plea negotiations which prevented Defendant from attending parole hearings and being formally released from state custody. The sentencing transcript makes clear that the Court had every intention to ensure Defendant would be credited for the “time served that goes back until January 30th, 2017.” (Doc. #67-3.) Without a sentence reduction, Defendant would be forced to serve an additional twenty-one months in incarceration solely caused by a calculation error in computing Defendant's sentencing guidelines. The Court finds that requiring Defendant to overserve his sentence by nearly two years is an extraordinary and compelling reason which warrants a sentence modification under § 3582(c). … Defendant's sentence is hereby modified from a 120-month term of imprisonment to a 99-month term of imprisonment.”


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) The BOP has identified the fatality announced yesterday as Marvin Hersch, 82, of FCI Butner Medium. 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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