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August 16, 2021: COMPASSIONATE RELEASE and BOP COVID-19 BLOG




Quick Facts: Currently positive-testing inmates: 400 (up from 383) Currently positive-testing staff: 289 (down from 296) Recovered inmates: 42,848 (down from 42,882) Recovered staff: 7,113 (up from 7,083)


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

McCreary USP: 59 (unchanged)

Coleman II USP: 55 (unchanged)

Sheridan FCI: 30 (unchanged)

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

Pollock USP: 26 (unchanged)

Oakdale I FCI: 15 (unchanged)

McCreary USP: 13 (down from 14)

System-wide testing results: Presently, BOP has 130,836 federal inmates in BOP-managed institutions and 14,398 in community-based facilities. Today's stats: Completed tests: 119,606 (up from 119,470) Positive tests: 42,724 (down from 42,739)

Total Vaccine doses distributed: 210,773

Case Note: Court mitigates harsh initial sentence, rejecting Government argument that defendant got the benefit of his plea as he avoided 100-year sentence that would have befallen him after trial through Government's charging of multiple 924(c) offenses...


In U.S. v. LARRY D. MERRIWEATHER, 2021 WL 3488407 (D. Kan. Aug. 9, 2021) (Robinson, CJ), the court, having reluctantly sentencing the then 21 year old to 37 years, takes advantage of opportunity to mitigate sentence and, in doing so, rejects the government’s trial penalty explanation, explaining, "On November 24, 2003, the Court sentenced Merriweather to a controlling term of 37 years and 10 months in prison, followed by five years of supervised release. This term of imprisonment included three concurrent sentences of 70 months on the bank robbery counts and mandatory consecutive sentences of 7 and 25 years on the § 924(c) counts. After announcing the final sentence, the Court addressed Merriweather directly and, among other things, stated: “[Y]ou're going to be spending a good portion of your life in prison. And it's not an easy thing to stand here and look at you. You're a 22-year-old man, and I've just given you a 37-year sentence. That saddens me immensely.” Merriweather is now 40 years old, and his projected release date is August 18, 2035. Defendant represents that as of April 26, 2021, with good time credit, “he ha[d] served the equivalent of a 20-year prison sentence. … Merriweather contends that Maumau is highly instructive, as the unique circumstances that warranted a sentence reduction there are also present here. Indeed, Merriweather was even younger than the defendant in Maumau was at the time of his sentencing and arrest. Merriweather was 22 years old when he was sentenced, and only 21 when he was arrested. And at the time, Merriweather faced a total mandatory minimum sentence of 32 years’ imprisonment on the two § 924(c) counts alone. Today, with sentence-stacking eliminated, he would be sentenced under § 924(c) to 17 years, not 32 years––a 15-year difference. … The government, however, asserts that Merriweather's “argument that he would face a shorter sentence today is inaccurate.”28 The government notes that, in exchange for Merriweather pleading guilty to five of the six counts charged in the original Indictment, the government moved to dismiss the Superseding Indictment, which contained seven additional charges. … 4 In other words, the government asks the Court to assume that, if the First Step Act's anti-stacking provision had been in effect at the time, then the government would have proceeded to trial against Merriweather on all thirteen counts charged in the Superseding Indictment, and a jury would have returned a guilty verdict. These assumptions are speculative. The Court declines the government's invitation to indulge “a series of hypotheticals about what might have happened had aspects of the case been fundamentally altered. … The Court will not “employ a prosecutor-friendly ‘way-back machine’ ” to conjure up how Merriweather's charges, conviction, and sentence might have looked had Congress already eliminated sentence-stacking under § 924(c). It is also worth pointing out that the Superseding Indictment was effectively a threatened “trial penalty,” used by the government to obtain a guilty plea. As one court has explained, “those who exercise their constitutional right to a trial before a jury of their peers suffer a more severe penalty than those who cop a plea.” This difference between “the sentencing outcome if a defendant accepts the government's offer of a plea bargain and the outcome if he insists on his right to trial by jury is sometimes referred to as the ‘trial penalty.’ " In the end, Merriweather did not risk the 100-year trial penalty he faced if he exercised his right to trial by jury; he pleaded guilty to five counts charged in the original Indictment, and the government moved to dismiss the Superseding Indictment. While there was nothing legally improper with the government's decision to charge Merriweather with four additional § 924(c) counts shortly before trial, the Court will not now use the threatened trial penalty as a basis to deny relief.”


Death Watch: The BOP has identified no new COVID-19 fatalities. Inmate fatalities remain at 242. Five of these inmates died while on home confinement. Staff fatalities remain at 4.



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