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August 9, 2022: COMPASSIONATE RELEASE and BOP COVID-19 BLOG




Fast Facts (Full BOP stats can be found here)


Confirmed active cases at 115 BOP facilities and 23 RRCs

Currently positive-testing inmates: 463 (up from 455) Currently positive-testing staff: 573 (up from 563) Recovered inmates currently in the BOP: 49,5254 (up from 49,524) Recovered staff: 13,439 (up from 13,423)


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

Schuylkill FCI: 36 (up from 32)

Sheridan FCI: 27 (unchanged)

Florence High USP: 26 (unchanged)

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

Central Headquarters: 52 (down from 53)

Carswell FMC: 23 (unchanged)

Houston FDC: 21 (unchanged)

System-wide testing results: Presently, BOP has 141,117 federal inmates in BOP-managed institutions and 13,825 in community-based facilities. Today's stats: Completed tests: 128,723 (up from 128,718) Positive tests: 55,371 (up from 55,366)


Total vaccine doses administered: 326,685 (up from 326,673)


Case Note: Non-retroactive changes in law can be extraordinary and compelling...


In U.S. v. Lapp, No. CR 10-09-H-BMM, 2022 WL 3082460 (D. Mont. Aug. 3, 2022) (Morris, CJ) the court, after canvassing the split among the circuits regarding whether non-retroactive changes in law can be extraordinary and compelling, finds the changes to 18 U.S.C. § 924(c) are, in fact, extraordinary and compelling, and reduces defendant’s sentence, explaining: "Lapp is currently serving a sentence of 96 months for robbery affecting commerce (Counts I, III, V, and VII), each term to run concurrently, 84 months for use of a firearm during a crime of violence (Count II), to be run consecutively to the sentence for Counts I, III, V, and VII, and 300 months for use of a firearm during a crime of violence (Count IV), to be run consecutively with the sentences for Count II, for total sentence of 480 months. … Lapp has cited in support of his motion the COVID-19 pandemic, the passage of the First Step Act and its elimination of the stacking requirement for the firearm charges under § 924(c), and the document evidence of his rehabilitation while incarcerated. The Ninth Circuit admittedly has not yet determined whether the length of a defendant's sentence, combined with the fact that his sentence would be significantly shorter today given the First Step Act's elimination of sentence-stacking under § 924(c), qualifies as an extraordinary and compelling reason for a sentence reduction under § 3582(c)(1)(A). Numerous other circuits have addressed the issue of whether the changes to § 924(c), or the First Step Act's reduction of mandatory sentences in 21 U.S.C. § 841(b), qualify as extraordinary and compelling reasons to support a reduction in sentence. The Fourth Circuit in United States v. McCoy, 981 F.3d 271, 286 (4th Cir. 2020), concluded that district courts “treat[ ] as ‘extraordinary and compelling reasons’ for compassionate release the severity of the defendants’ § 924(c) sentences and the extent of the disparity between the defendants’ sentences and those provided for under the First Step Act.” The Tenth Circuit also permits district courts to grant compassionate release based, in part, on the changes to 28 U.S.C. § 841(b). United States v. McGee, 992 F.3d 1035, 1047-48 (10th Cir. 2021); see alsoUnited States v. Maumau, 993 F.3d 821, 837 (10th Cir. 2021). The Second Circuit agrees. United States v. Zullo, 976 F.3d 228, 237-38 (2nd Cir. 2020). The Seventh Circuit stands alone as having “squarely and definitively” rejected the notion that the First Step Act's “change to § 924(c) can constitute an extraordinary and compelling reason for a sentence reduction.” United States v. Thacker, 4 F.4th 569, 2021 WL 2979530 at *6 (7th Cir. July 15, 2021). The Sixth Circuit appears to be split on the issue. Compare United States v. Owen, 996 F.3d 755, 764 (6th Cir. 2021) (“in making a ... determination about whether extraordinary reasons merit compassionate release, a district court may include, along with other factors, the disparity between a defendant's actual sentence and the sentence that he would have received if the First Step Act applied”) with United States v. Jarvis, 999 F.3d 442 (6th Cir. 2021)(holding that the First Step Act's changes to § 924(c) cannot constitute an extraordinary and compelling reason for compassionate release). The Fifth Circuit has yet to weigh in on the issue. United States v. Cooper, 996 F.3d 283, 289 (5th Cir. 2021) (“We leave for the district court to consider, in the first instance, whether the nonretroactive sentencing changes to his § 924(c) convictions ... constitute extraordinary and compelling reasons for a sentence reduction.”). The Court determines that extraordinary and compelling reasons exist to reduce Lapp's sentence, but not to grant Lapp's motion for compassionate release effective immediately. … Reducing Lapp's sentence to 270 months comports with the 3553(a) sentencing factors. Lapp has a criminal history category five and a total offense level of 23. (Doc. 19.) Lapp had two prior felony convictions and has attempted to escape custody multiple times (Doc. 13.) Lapp's reduced sentence has an upward variance compared to sentences the Court has given to defendants of similar crimes. Lapp's relatively high criminal history category, total offense level, and the high number of counts to which Lapp pleaded guilty justifies this upward variance.”

Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) The BOP has announced no new COVID-related inmate deaths. COVID-related inmate deaths remain at 302. Eleven of the inmates died while on home confinement. Staff deaths remain at 7

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