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August 25, 2021: COMPASSIONATE RELEASE and BOP COVID-19 BLOG



Quick Facts: Currently positive-testing inmates: 480 (up from 421) Currently positive-testing staff: 394 (up from 386) Recovered inmates: 42,837 (down from 42,867) Recovered staff: 7,181 (up from 7,171)


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

San Diego MCC: 91 (up from 75)

McCreary USP: 62 (unchanged)

Coleman II USP: 38

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

Pollock USP: 31 (unchanged)

McCreary USP: 20 (up from 19)

Oakdale I FCI: 19 (unchanged)

System-wide testing results: Presently, BOP has 131,070 federal inmates in BOP-managed institutions and 14,457 in community-based facilities. Today's stats: Completed tests: 119,943 (up from 119,737) Positive tests: 42,806 (up from 42,761)

Total vaccine doses distributed: 212,754

Case Note:


In U.S. v. Christian Cardenas, 2021 WL 3722761 (S.D.N.Y. Aug. 23, 2021) (Nathan, J.) and U.S. v. William Tucker, 2021 WL 3722750 (S.D.N.Y. Aug. 23, 2021) (Nathan, J.), SDNY Judge Alison Nathan granted compassionate release to two defendants based in part on conditions of confinement during the COVID-19 lockdown.


In Cardenas Judge Nathan explained: "[Defendant] contends that the extraordinary circumstances of the pandemic support his release, both because he has medical conditions that place him at heightened risk for serious illness or death from COVID-19 and because he has endured unusually harsh conditions during his incarceration. … Mr. Cardenas is incarcerated as USP Lewisburg with a projected release date in March 2024. … The pandemic has imposed serious burdens on inmates apart from medical risks, including unprecedented restrictions on visitation, activities, and inmate movement within facilities. Anthony Rodriguez, 2020 WL 760539, at *4. Mr. Cardenas has felt these burdens particularly acutely. Pandemic-related lockdowns have severely limited his access to communications with his family. As a result of Lewisburg's suspension of social visits, he has not seen his wife and young daughter since 2019. Cardenas Br., Dkt. No. 326, at 10. Access to telephones has been similarly restricted. Id. Mr. Cardenas's incarceration has also taken an extraordinary practical toll on his family. His wife lost her job during the pandemic and must care for both her elderly mother and daughter, whose school has shut down. Cardenas Br., Ex. D. Without Mr. Cardenas to help, her caretaking obligations prevent her from seeking work and leave her unable to support their family. Id. The Court finds that these circumstances are extraordinary and compelling. It emphasizes, of course, that restrictions on visitation or other pandemic-related measures taken by prisons will not amount to extraordinary circumstances for most defendants who have recovered from or been vaccinated against COVID-19. For others, the balance of the § 3553(a) factors may not support a reduction in sentence even accounting for the extraordinary circumstances of the pandemic. It is the rare case in which the pandemic will amount to extraordinary circumstances for a defendant who does not face heightened medical risks from COVID-19. But Mr. Cardenas's is such a case. The Court thus finds that this requirement for a reduction in sentence is satisfied and so turns next to the § 3553(a) factors.”


In Tucker, after finding defendant’s health has deteriorated since his incarceration, the conditions of which exposed him to severe COVID complications even though he’s vaccinated, the court found § 3553(a) supported a one-year reduction to account for the harshness of his term and its decision to reduce the sentence of the more culpable co-defendants, explaining: “After considering the sentencing factors set forth in 18 U.S.C. § 3553(a), the Court finds that the sentence it originally imposed is now greater than necessary to achieve the purposes of punishment and that extraordinary and compelling circumstances warrant a reduction in Mr. Tucker's sentence, but not his immediate release. The Court reduces his sentence of imprisonment by one year. … In short, “Mr. Tucker planned with others to rob drug dealers.” Sentencing Tr. at 31–32, Dkt. No. 111. Mr. Tucker did not orchestrate the robbery but instead occupied the role of one of three gunmen. … Mr. Tucker is incarcerated at FCI Allenwood Medium with a projected release date in October 2025. … This Court has repeatedly found that the COVID-19 pandemic presents an extraordinary and unprecedented threat to incarcerated individuals. … And that threat may present extraordinary circumstances even for those who have already recovered from or been vaccinated against COVID-19 and thus face a lower risk of infection. See United States v. Anthony Rodriguez, No. 16-cr-07 (AJN), 2020 WL 7640539, at *4 (S.D.N.Y. Dec. 23, 2020); see, e.g., United States v. Barajas, No. 18-cr-736 (NSR), 2020 WL 3976991, at *10–11 (S.D.N.Y. July 13, 2020); Graham, 2020 WL 5604050, at *3. Mr. Tucker is particularly vulnerable to the risks of COVID-19 and has already borne an outsized burden imposed the pandemic. He entered FCI Allenwood in “good physical health” without any notable medical conditions. PSR ¶ 76. But Mr. Tucker's health has since deteriorated. His medical record lists diagnoses of heart disease, hypertension, high cholesterol, and obesity. Tucker Br., Ex. J. Each of these conditions is recognized by the Centers for Disease Control as heightening the risk of becoming severely ill from COVID-19. People with Certain Medical Conditions, CDC (May 13, 2021), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html. What sets Mr. Tucker apart from the vast majority of inmates in the Bureau of Prison's custody, however, is his diagnosed sickle cell disease, which is associated with markedly higher rates of hospitalization and death from COVID-19. … But here, even as Mr. Tucker receives a second dose, the risk of re-infection and of more serious complications is significant, especially given his underlying conditions and the development of variant strains of the virus. See United States v. Perez, No. 17-CR-512 (KMW), 2021 WL 2530272, at *2 (S.D.N.Y. June 20, 2021). The Court finds that these circumstances are extraordinary and compelling. It emphasizes, however, that extremely few incarcerated defendants that have been vaccinated against COVID-19 or that have already recovered from an infection will have an extraordinary or compelling reason for a modification of their sentence. Even among those defendants, the balance of the § 3553(a) factors may not support a reduction in sentence even with the extraordinary circumstances of the pandemic. … Because this Court sentenced Mr. Tucker, it is intimately familiar with how the § 3553(a) factors apply to his case. … Mr. Tucker has had a spotless disciplinary record while incarcerated. Tucker Br., Ex. E. Taking account of the good-time credits that he has accumulated, he has served two-thirds of his sentence. Tucker Br. at 12. And Mr. Tucker has used his time in custody productively. … The Court also cannot overlook that the time Mr. Tucker has served in prison has been much more onerous than the Court contemplated when it sentenced him. Accounting for the pandemic's impact on Mr. Tucker conditions of confinement, “the sentence [he] is now serving looks materially different from the sentence the Court envisioned.” United States v. Garcia, 505 F. Supp. 3d 328, 332 (S.D.N.Y. 2020). One of the most important factors in favor of modifying Mr. Tucker's sentence is “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). This Court previously granted compassionate release to two of Mr. Tucker's codefendants who pleaded guilty to the same statutory offenses. United States v. Camper, No. 13-CR-378 (AJN), 2020 WL 7647457, at *3 (S.D.N.Y. Sept. 2, 2020); United States v. Thompson, No. 13-CR-378 (AJN), Dkt. No. 201 (S.D.N.Y. Mar. 22, 2021). Moreover, this Court found those two other codefendants to be more culpable for the offense than Mr. Tucker, leading it to impose within-guidelines sentences on both codefendants and a below-guidelines sentence on Mr. Tucker. Few, if any, defendants can identify similar facts in requesting a sentence reduction. Even after accounting for Mr. Tucker's more extensive criminal history, the Court finds that the size of the present disparity between these sentences is unwarranted. … After considering the § 3553(a) factors, the Court finds that a total sentence of 164 months’ imprisonment—that is, a one-year reduction in the Court's original sentence—is sufficient but no greater than necessary to achieve the purposes of sentencing.”




Death Watch: No new fatalities have been reported. Inmate deaths remain at 244. Five of these inmates died while on home confinement. Staff deaths remain at 5.



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