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August 26, 2021: COMPASSIONATE RELEASE and BOP COVID-19 BLOG


Quick Facts: Currently positive-testing inmates: 532 (up from 480) Currently positive-testing staff: 414 (up from 394) Recovered inmates: 42,776 (down from 42,837) Recovered staff: 7,815 (up from 7,181)


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

San Diego MCC: 95 (up from 91)

Coleman II USP: 76 (up from 38)

McCreary USP: 62 (unchanged)

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

Pollock USP: 34 (up from 31)

McCreary USP: 21 (up from 20)

Oakdale I FCI: 19 (unchanged)

System-wide testing results: Presently, BOP has 130,953 federal inmates in BOP-managed institutions and 14,515 in community-based facilities. Today's stats: Completed tests: 119,927 (down from 119,943) Positive tests: 42,801 (down from 42,806)

Total vaccine doses administered: 212,244

Case Note: Defendant failed to exhaust issue raised in letter to the Warden only perfunctorily...


In U.S. v. KEVIN JOHNSON, 2021 WL 3737681, at *4 (D.D.C. Aug. 24, 2021) (Bates, J.), the court, on remand from the D.C. Circuit, found unexhausted, and therefore refused to consider, defendant's "Winstead" argument that he would not today be considered a career offender, because he alluded to the argument only perfunctorily and not in the argument section of his compassionate release submission to the Warden, explaining: "While Johnson's appeal was pending, the D.C. Circuit decided United States v. Long, 997 F.3d 342 (D.C. Cir. 2021), holding that § 1B1.13 is not “applicable” to defendant-filed motions for compassionate release under § 3582(c)(1)(A). Id. at 355. Two weeks later, the D.C. Circuit vacated this Court's decision in Johnson, concluding that under Long this Court had plainly erred by “considering itself bound by the policy statement” in § 1B1.13 when assessing “whether Johnson had demonstrated ‘extraordinary and compelling reasons’ warranting release.” Johnson, 2021 WL 2523999, at *2. The D.C. Circuit remanded the case[.] … An argument based on Winstead had not been developed. Insofar as Johnson now claims that Winstead constitutes an extraordinary and compelling reason for release—as he first emphasized on appeal—the Court finds that argument was not properly exhausted in his request to the warden. … Johnson's request plainly seeks compassionate release based on the COVID-19 pandemic and his specified medical conditions—which are the grounds that this Court's prior opinion addressed. Indeed, the letter does not mention Winstead or even allude to the fact that Johnson might face a lower guideline range if sentenced today. … Even if Johnson had properly exhausted his Winstead argument, the Court would still conclude that Johnson waived that argument by failing to develop it in his motion. Johnson devoted two sentences in the background section of his motion to explaining that “his sentencing involves a Winstead issue” and then recapped Winstead’s holding in an accompanying footnote, noting a circuit split on the issue. See Release Mot. at 3 & n.2. But the “Argument” section of his motion focused exclusively on why his “[v]ulnerability to COVID-19 is an extraordinary and compelling reason to reduce his sentence,” see id. at 4, and never once mentioned Winstead. … Johnson never sought to clarify this point or to respond to the government's contention that “a compassionate release motion [is] not ... the appropriate vehicle for [a Winstead] claim.” … As courts have routinely recognized, “[i]t is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel's work, create the ossature for the argument, and put flesh on its bones.” Herron v. Fannie Mae, Civ. A. No. 10-943 (RMC), 2016 WL 1177918, at *15 (D.D.C. Mar. 8, 2016) (quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)). Instead, “a litigant has an obligation to spell out its arguments squarely and distinctly,” id., and any “[u]ndeveloped arguments may be deemed waived,” Pub. Emps. for Env't Resp. v. EPA, 213 F. Supp. 3d 1, 26 (D.D.C. 2016) (citing Johnson v. Panetta, 953 F. Supp. 2d 244, 250 (D.D.C. 2013)). Such is the case here with respect to Johnson's argument that Winstead constitutes an extraordinary and compelling reason for release.”)



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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