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August 31, 2021: COMPASSIONATE RELEASE and BOP COVID-19 BLOG



Quick Facts: Currently positive-testing inmates: 509 (down from 582) Currently positive-testing staff: 479 (up from 446) Recovered inmates: 42,881 (up from 42,781) Recovered staff: 7,226 (up from 7,220)


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

Coleman II USP: 107 (up from 76)

San Diego MCC: 65 (down from 77)

Mendota FCI: 26

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

Pollock USP: 37 (up from 36)

McCreary USP: 24 (up from 22)

Oakdale I FCI: 20 (unchanged)

System-wide testing results: Presently, BOP has 131,010 federal inmates in BOP-managed institutions and 14,414 in community-based facilities. Today's stats: Completed tests: 120,440 (up from 120,236) Positive tests: 42,887 (up from 42,809

Total vaccine doses administered: 215,728

Case Note: restrictive USSG § 1B1.13 (policy statement) not binding on court considering compassionate release application, but nonetheless is relevant; non-retroactivity of reforms to onerous § 924(c) (firearm possession/display/use) stacking not extraordinary and compelling...


In U.S. v. Andrews, 2021 WL 3852617cv(3d Cir. Aug. 30, 2021) (published) (Porter, J.), the Third Circuit, although joining other circuits in finding § 1B1.13 is not binding on district courts, also found that the district court's reliance on the policy statement as a guide was appropriate, as was refusing to find the non-retroactivity of the elimination of 924(c)’s onerous stacking provision to be compelling and extraordinary, explaining: "The first issue is whether the District Court was bound by the Commission's policy statement. We conclude that it was not. As the District Court noted, the text of the policy statement explicitly limits its application to Bureau-initiated motions. Thus, according to its plain language, the existing policy statement4 is not applicable—and not binding—for courts considering prisoner-initiated motions. In reaching this conclusion, we align with nearly every circuit court to consider the issue. See United States v. Brooker, 976 F.3d 228, 235 (2d Cir. 2020); United States v. McCoy, 981 F.3d 271, 282 (4th Cir. 2020); United States v. Shkambi, 993 F.3d 388, 393 (5th Cir. 2021); United States v. Elias, 984 F.3d 516, 519–20 (6th Cir. 2021); United States v. Gunn, 980 F.3d 1178, 1180–81 (7th Cir. 2020); United States v. Aruda, 993 F.3d 797, 802 (9th Cir. 2021); United States v. McGee, 992 F.3d 1035, 1050 (10th Cir. 2021); United States v. Long, 997 F.3d 342, 355 (D.C. Cir. 2021). But see United States v. Bryant, 996 F.3d 1243, 1247–48 (11th Cir. 2021). … Because Congress reenacted the compassionate-release statute without any alterations to the phrase “extraordinary and compelling reasons,” it was reasonable for the court to conclude that the phrase largely retained the meaning it had under the previous version of the statute. See United States v. Johnman, 948 F.3d 612, 619 (3d Cir. 2020) … Moreover, the District Court looked to the policy statement's descriptions of extraordinary and compelling circumstances as a guide, not as an ultimate binding authority. See Andrews, 480 F. Supp. 3d at 682–84. That is not error. The policy statement's descriptions of extraordinary and compelling circumstances can “guide discretion without being conclusive.” Gunn, 980 F.3d at 1180. … The District Court also did not err when it concluded that the duration of Andrews's sentence and the nonretroactive changes to mandatory minimums could not be extraordinary and compelling reasons warranting sentence reduction. We begin with the length of Andrews's sentence. The duration of a lawfully imposed sentence does not create an extraordinary or compelling circumstance. “[T]here is nothing ‘extraordinary’ about leaving untouched the exact penalties that Congress prescribed and that a district court imposed for particular violations of a statute.”United States v. Thacker, 4 F.4th 569, 574 (7th Cir. 2021). “Indeed, the imposition of a sentence that was not only permissible but statutorily required at the time is neither an extraordinary nor a compelling reason to now reduce that same sentence.”United States v. Maumau, 993 F.3d 821, 838 (10th Cir. 2021)(Tymkovich, C.J., concurring). Moreover, considering the length of a statutorily mandated sentence as a reason for modifying a sentence would infringe on Congress's authority to set penalties.See Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958)(“Whatever views may be entertained regarding severity of punishment, whether one believes in its efficacy or its futility, these are peculiarly questions of legislative policy.” (citation omitted)). The nonretroactive changes to the§ 924(c)mandatory minimums also cannot be a basis for compassionate release. …Thus, we will not construe Congress's nonretroactivity directive as simultaneously creating an extraordinary and compelling reason for early release. Such an interpretation would sow conflict within the statute. See United States v. Jarvis, 999 F.3d 442, 444 (6th Cir. 2021) (“Why would the same Congress that specifically decided to make these sentencing reductions non-retroactive in 2018 somehow mean to use a general sentencing statute from 1984 to unscramble that approach?”).”


Death Watch: The BOP has identified a previous fatality, that of Armando Ramirez, 71, of FCI Beaumont Low, who died March 27, 2021. Inmate deaths remain at 248. Five of these inmates died while on home confinement. Staff deaths remain at 5.


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