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BOP COVID-19 AND COMPASSIONATE RELEASE UPDATE: June 25, 2021





Quick Facts: Currently positive-testing inmates: 54 (down from 61) Currently positive-testing staff: 135 (down from 136) Recovered inmates: 44,333 (down from 44,375) Recovered staff: 6,878 (up from 6,875) Institutions with the largest number of currently positive-testing inmates:

Keeton Corrections Inc (RRC): 9 (unchanged)

Sheridan FCI: 6 (unchanged)

Alston Wilkes Society Inc. (RRC): 5

Institutions with the largest number of currently positive-testing staff: Pekin FCI: 9 (unchanged)

Central Office HQ: 6 (unchanged)

Beaumont Medium FCI: 5 System-wide testing results: Presently, BOP has 129,349 federal inmates in BOP-managed institutions and 14,039 in community-based facilities. Today's stats: Completed tests: 115,526 (up from 115,358) Positive tests: 43,774 (down from 43,822)

Case Note: No bail pending appeal from the denial of this compassionate release motion but $40,000 sanction for a supposedly frivolous bail motion vacated as the application was not "wholly frivolous."


In U.S. v. MONTGOMERY CARL AKERS, 2021 WL 2587889 (10th Cir. June 24, 2021) (unpublished) (per curium) the 10th Circuit declined to definitively determine whether bail pending appeal from the denial of a CR motion is available but agreed, on these facts, that the denial of bail was appropriate. However, the court vacates the $40,000 sanction imposed on defendant, finding it could not conclude defendant's bail motion was "wholly frivolous," explaining, "Montgomery Carl Akers appeals from the district court's order denying his motion for release pending appeal of the denial of his motion for a reduction in sentence pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) (“compassionate release”) and sanctioning him in the amount of $40,000. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the portion of the district court's order denying release pending appeal, but we remand for the district court to revisit the $40,000 monetary sanction. … The district court considered Mr. Akers's motion for release pending appeal under 18 U.S.C. § 3143(b) of the Bail Reform Act and concluded Mr. Akers had not shown that any of his issues on appeal “raise a substantial question of law or fact likely to result in reversal, a new trial, a sentence with no custody component or a reduced sentence that is shorter than the anticipated life of the appeal.” R. at 94 (citing § 3143(b)(1)(B)). Because Mr. Akers was convicted of wire fraud in 2006 and has been serving a term of imprisonment since that time, we are not convinced the Bail Reform Act applies to his request for release pending appeal from the denial of his post-conviction motion for compassionate release. See United States v. Mett, 41 F.3d 1281, 1282 (9th Cir. 1994) (“The Bail Reform Act does not apply to federal prisoners seeking postconviction relief.”). We need not resolve that question in this case, however, because under either § 3143(b) of the Bail Reform Act or the standards this and other courts have applied to similar requests for release involving post-conviction motions, Mr. Akers has not shown he is entitled to release pending appeal, see Pfaff v. Wells, 648 F.2d 689, 693 (10th Cir. 1981) (holding state prisoners must show “exceptional circumstances” or “a demonstration of a clear case on the merits of the habeas petition” to be entitled to release pending a district court's decision on a habeas petition); Mett, 41 F.3d at 1282 (holding federal prisoners seeking release pending appeal of the denial of their 28 U.S.C. § 2255 motion must demonstrate “their appeal is an extraordinary case involving special circumstances or presents a high probability of success” (internal quotation marks omitted)). As for the $40,000 sanction, we note that the district court identified certain statements in one section of the motion as frivolous, but it did not address all of Mr. Akers's arguments or find that the motion as a whole was frivolous. Although we agree with the district court that Mr. Akers has not shown he is entitled to release pending appeal, we cannot say that the arguments in support of his motion are wholly frivolous. Accordingly, we affirm the district court's decision denying Mr. Akers's motion for release pending appeal, but we remand for the district court to revisit the $40,000 sanction. We grant Mr. Akers's motion for leave to proceed on appeal without prepayment of costs or fees.”


Death Watch: The government has reported no additional inmate fatalities, leaving the number of inmate fatalities at 240. Five of these inmates died while on home confinement. Staff fatalities remain at 4.

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