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August 27, 2021: COMPASSIONATE RELEASE and BOP COVID-19 BLOG


Quick Facts: Currently positive-testing inmates: 512 (down from 532) Currently positive-testing staff: 442 (up from 414) Recovered inmates: 42,781 (up from 42,776) Recovered staff: 7,190 (up from 7,185)


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

San Diego MCC: 89 (down from 95)

Coleman II USP: 76 (unchanged)

McCreary USP: 62 (unchanged)

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

Pollock USP: 36 (up from 34)

McCreary USP: 21 (unchanged)

Oakdale I FCI: 19 (unchanged)

System-wide testing results: Presently, BOP has 131,014 federal inmates in BOP-managed institutions and 14,603 in community-based facilities. Today's stats: Completed tests: 119,927 (down from 119,930) Positive tests: 42,804 (up from 42,801)

Total vaccine doses administered: 215,009

Case Note: Government's failure to address § 3553(a) factors does not preclude district court from doing so when denying compassionate release...


In JESSICA WARD v. U.S. 2021 WL 3780085 (5th Cir. Aug. 26, 2021) (published) (Southwick, J), the court held, not surprisingly, that even if the Government does not address the § 3553(a) factors in its objection to compassionate release, the court may nonetheless rely on them in denying relief, explaining: "We must decide whether a district court may use the sentencing factors set forth in 18 U.S.C. § 3553(a) to reject compassionate release when the Government fails to present a Section 3553(a) argument. We conclude that the district court did not err. AFFIRMED. .. Ward filed with the motion her proof of exhaustion, her medical records, and an expert's report that her kidney disease put her “at higher risk for developing severe illness, kidney failure, or death if she becomes infected with the coronavirus SARS-CoV-2 (Covid-19).” At the request of the district court, the Government filed an opposition that made two arguments. The first was that Ward's “COVID-related concerns do not constitute ‘extraordinary and compelling reasons’ under the compassionate-release statute.” Relying on Section 1B1.13 of the Sentencing Guidelines, the Government argued that COVID-19 is not a stand-alone basis for a sentence reduction. The Government never mentioned Ward's kidney condition or the Section 3553(a) factors. Ward filed a reply. She emphasized that the Government failed to respond to her kidney-disease argument and failed to argue that the sentencing factors counseled against a reduction. She asked the court to “consider these matters conceded” and to grant her motion. … The district court denied Ward's motion for two independent reasons. … The second reason was that the Section 3553(a) factors did not support a reduction.3 The district court concluded that Ward's release “would not be in the interest of justice.” Ward timely appealed. … After the district court's decision, though, we held that Section 1B1.13 is “inapplicable” to motions for compassionate release filed by defendants. Shkambi, 993 F.3d at 392–93. As a result, a district court errs by treating Section 1B1.13 as binding. Cooper, 996 F.3d at 289. In this case, the district court did not explicitly state that it considered Section 1B1.13 to bind its determination, but it relied on Section 1B1.13 exclusively to delineate the contours of what constitutes an “extraordinary and compelling reason” before concluding that Ward failed to present one. Accordingly, this part of the district court's analysis is not a basis to affirm its denial. … The Government made no mention of the Section 3553(a) factors in its response to Ward's motion. Because of that, Ward contends that the Government “waived” reliance on the Section 3553(a) factors and that the court violated the principle of party presentation by relying on the factors as a basis for denial. … Altogether, the district court is obligated to consider the Section 3553(a) factors before deciding whether to order compassionate release, and we give deference to the district court when it does. We see no reason to hold that the Government's failure to make arguments about the factors cancels the statutory obligation to consider them. Indeed, consideration of the factors is as needed to justify granting compassionate relief as it is to denying release. … Our analysis so far does not constitute a holding that the Government cannot forfeit or waive some arguments against compassionate release. … In Sineneng-Smith, the Supreme Court held that the Ninth Circuit abused its discretion by conducting a “takeover of the appeal.” Id. at 1581. In a defendant's appeal that challenged her statute of conviction, the Ninth Circuit panel appointed three amici to brief three wholly different theories of relief that the defendant never herself raised. Id. at 1578. The Court held that the Ninth Circuit “departed so drastically from the principle of party presentation as to constitute an abuse of discretion.” Id. An appellate court's interjection of three wholly different legal theories in favor of constitutional relief is hardly comparable to a district court's complying, unbidden, with its statutory obligation to act only after considering certain matters. We find no authority that the Government's failure to brief the Section 3553(a) factors means it is error for a district court to apply them.”



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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