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August 25, 2022: COMPASSIONATE RELEASE and BOP COVID-19 BLOG



Fast Facts (Full BOP stats can be found here)


Confirmed active cases at 113 BOP facilities and 15 RRCs

Currently positive-testing inmates: 423 (down from 499) Currently positive-testing staff: 616 (down from 643) Recovered inmates currently in the BOP: 49,383 (up from 49,325) Recovered staff: 13,621 (up from 13,590)


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

Oakdale FCI: 48 (unchanged)

Danbury: 31

Oklahoma City FTC: 23

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

Central Office HQ: 57 (unchanged)

Carswell FMC: 28 (unchanged)

Brooklyn MDC: 22

System-wide testing results: Presently, BOP has 141,641 federal inmates in BOP-managed institutions and 13,903 in community-based facilities. Today's stats: Completed tests: 128,720 (unchanged) Positive tests: 55,368 (unchanged)


Total vaccine doses administered: 328,173 (unchanged)


Case Note:


In U.S. v. MICHAEL NGYUEN, 2022 WL 3595090 (D. Haw. Aug. 23, 2022) (Molloway, J.), the court concluded that disparity created by non-retroactivity of 21 U.S.C. § 851 and safety valve relief granted to defendant that cooperated warrants reduction to time-served, explaining: "The Government had filed a Special Information as to Prior Drug Conviction, which had the effect under 21 U.S.C. §§ 841(b)(1)(A) and 851 of enhancing the sentence Ngyuen faced given a state-court drug offense. That prior conviction was for promoting a dangerous drug in the second degree in violation of section 712-1242 of Hawaii Revised Statutes in Criminal No. 07-1-1038. Ngyuen was sentenced to five years of probation in that state case. See ECF No. 209. Based on this, Ngyuen had a statutory mandatory minimum prison sentence of 240 months in the present case, although his advisory sentencing guideline range was 168 to 210 months. … The Government had filed a Special Information as to Prior Drug Conviction, which had the effect under 21 U.S.C. §§ 841(b)(1)(A) and 851 of enhancing the sentence Ngyuen faced given a state-court drug offense. That prior conviction was for promoting a dangerous drug in the second degree in violation of section 712-1242 of Hawaii Revised Statutes in Criminal No. 07-1-1038. Ngyuen was sentenced to five years of probation in that state case. See ECF No. 209. Based on this, Ngyuen had a statutory mandatory minimum prison sentence of 240 months in the present case, although his advisory sentencing guideline range was 168 to 210 months. Before the sentencing hearing, the Government filed a Motion for Downward Departure on the basis of Ngyuen's “substantial cooperation and assistance to law enforcement authorities in the investigation and prosecution of another.” … Ngyuen has served about 110 months of his 168-month sentence. … Under the First Step Act of 2018, PL 115-391 (Dec. 21, 2018), the portion of § 841(b)(1) that raised Ngyuen's mandatory minimum sentence to 20 years was amended. … Thus, to now be subjected to the mandatory minimum of 15 years (not 20 years), a defendant must have a prior conviction for a “serious drug felony,” not just a “felony drug offense.” … Ngyuen's state-court drug offense for promoting a dangerous drug in the second degree in violation of section 712-1242 of Hawaii Revised Statutes in Criminal No. 07-1-1038 does not now qualify as a “serious drug felony” for purposes of a § 851 enhancement, as it involved a Class B felony for which Ngyuen received five years of probation, although that crime carried a maximum term of imprisonment of 10 years. … As conceded by the Government at the hearing, under today's version of 18 U.S.C. § 3553(f), Ngyuen would be eligible for the safety valve. … This means that, if sentenced today, Ngyuen would have a Total Offense Level of 31 and be in Criminal History Category III, giving him an advisory guideline range of 135 to 168 months of imprisonment. With a motion for downward departure that seeks a one-level adjustment, which the Government says it would seek, see ECF No. 779, PageID #s 5943-44, Ngyuen would have a Total Offense Level of 30 and be in Criminal History Category III, resulting in an advisory guideline range of 121 to 151 months. This court previously sentenced Ngyuen to the low end of his advisory guideline range and would likely do so again at this time. Accordingly, the court would likely sentence Ngyuen to no more than 121 months if he were sentenced today, possibly less. The disparity between Ngyuen's actual sentence of 168 months imprisonment and what would likely be his sentence today is an extraordinary and compelling reason to reduce his sentence to time served. The court notes that, given good time credit, Nguyen, had he been sentenced to 121 months in custody, would likely be eligible for release now, as he has served approximately 110 months of his sentence. … The very concept of compassionate release has compassion at its core. If Ngyuen were entitled to the retroactive application of statutory amendments, he would presumably be bringing a different kind of motion. In seeking compassionate release, he is arguing the inequity of his situation, a matter the Government ignores. Nothing in any statute or in any case cited by the Government precludes this court from considering that inequity in the compassionate release context. As noted by Concepcion, “district courts have considered nonretroactive Guidelines amendments to help inform whether to reduce sentences at all, and if so, by how much.” 142 S. Ct. at 2403. Thus, the Supreme Court has recognized that nonretroactivity does not preclude this court's reliance on an amendment with respect to whether a particular defendant should be resentenced and to what term, referring to such amendments as “probative information” that this court may consider. … Accordingly, Ngyuen's sentence is reduced to time served plus three work days to allow the Bureau of Prisons and the probation office sufficient time to make suitable arrangements.”


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) The BOP has identified no new COVID-related fatalities. The total number COVID-related inmate deaths remains at 306. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.

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