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BOP COVID-19 UPDATE -- APRIL 21, 2021





Quick Facts:


Currently positive-testing inmates: 412 (up from 408)

Currently positive-testing staff: 579 (down from 596)

Recovered inmates: 46,465 (down from 46,483)

Recovered staff: 6,267 (up from 6,250)


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

Berlin FCI: 174 (up from 173)

San Diego MCC: 57

Oakdale II FCI: 19

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

Pollock USP: 84 (unchanged)

Chicago MCC: 42 (up from 42)

Miami FDC: 41 (unchanged)


System-wide testing results: Presently, BOP has 126,472 federal inmates in BOP-managed institutions and 13,550 in community-based facilities. Today's stats:


Completed tests: 110,434 (up from 110,239)

Positive tests: 46,127 (down from 46,139)

Case Note: intervening change in sentencing law, additional post-sentencing evidence and gross sentencing disparity justify compassionate release...


In U.S. v. LEVI LAWRENCE MOREFIELD, 2021 WL 1536576 (E.D. Wash. Apr. 19, 2021) (Bastian, J.), the court cited post-sentencing evidence and changes in sentencing law as well as conflicting expert testimony regarding the victim's cause of death and substantial sentencing disparity as extraordinary and compelling reasons to accelerate defendant's 2027 release date for a defendant that pleaded guilty in 2015, explaining "On September 10, 2013, Defendant was charged with four counts of Distribution of Heroin and, together with his co-defendants, one count of Distribution of Heroin Resulting in Death. The Distribution of Heroin charge carried a maximum of 20 years imprisonment and the Distribution of Heroin Resulting in Death charge carried a mandatory minimum of 20 years imprisonment with a maximum life imprisonment. At that time, because Defendant had a prior drug conviction, the minimum and maximum penalties increased. If the United States chose to file a 21 U.S.C. § 851 Information, the maximum penalty for the Distribution of Heroin charge increased to 30 years imprisonment and the Distribution of Heroin Resulting in Death charged increased to a minimum life sentence. After the Indictment was filed, the United States Supreme Court issued its ruling in Burrage v. United States, 571 U.S. 204 (2014). Burrage involved a victim who died of a drug overdose after using heroin and other drugs. Id. The Supreme Court held that the defendant—who distributed the heroin used by the victim—could not be convicted under the penalty enhancement provision, absent evidence that the victim would have lived but for the heroin use. Id. at 218-19. … The PSIR calculated the U.S.S.G. sentencing range to be 10-16 months. Id. … This case heightened the Court's concern, given the PSIR's conclusion that heroin was not the only cause of the death. Consequently, it directed the parties to file supplemental briefing as to why the Court should accept the parties' Fed. R. Cr. P. 11(C)(1)(c) plea agreement. In his response, Defendant indicated that he accepted the plea agreement to avoid the risk of trial on Count 5 (Distribution of Heroin resulting in Death) and possibly receiving a mandatory minimum sentence of 20 years, or possibly a life sentence if the United States chose to file the § 851 Information. … On October 20, 2015, a sentencing hearing was held. Dr. Wigren testified that the victim died of a heroin overdose. … The Court accepted the Plea Agreement, granted the United States' Motion to Dismiss Counts 1, 2, 3, and 5, and sentenced Defendant to 180 months in custody. ECF No. 211. In November 2015, a sentencing hearing in the co-Defendants' cases was held. The co-Defendants also entered into Fed. R. Cr. P. 11(c)(1)(C) plea agreements. … The sentencing hearing for the co-Defendants took place on March 23, 2016. ECF No. 242. The co-Defendants presented expert testimony from Dr. Robert Julien and Dr. David Predmore. … These experts concluded that it was likely that the victim died due to the toxic effects of two drugs: paroxetine (Paxil) and heroin (Morphine). Id. They believed that because the victim was a habitual heroin user, it would have taken more than a .43 level of morphine to kill him. Id. … The Court ultimately sentenced the co-Defendants to credit for time served. Id. … The legal landscape has significantly shifted since Defendant was indicted and sentenced. In addition to Barrage, which increased the burden of the United States to prove a violation of distribution of a controlled substance resulting in death, the First Step Act heightened the requirement for enhancing a drug sentence. … Simply put, Defendant's simple possession charge—for which he was sentenced to six months in jail and which is no long a valid conviction under Washington law—would not qualify as a predicate offense. … Consequently because of the change in the legal landscape, if Defendant were sentenced today, he would no longer be facing a mandatory life sentence and would no longer be facing a mandatory 20-year sentence; instead, he would be facing an 8-14 months advisory range. … The Court has always been mindful of the significant sentencing disparities between Defendant and his co-Defendants. … That said, the sentencing disparity in this case, where Defendant was sentenced to 15 years and his co-Defendants were sentenced to 4 months, is a factor the Court considered in its decision to grant the motion. … The role pharmacy companies played in creating the national opioid crisis has been extensively documented. See, e.g., Radden Keefe, Patrick, “The Family That Build An Empire of Pain,” The New Yorker, (Oct. 30, 2017). While Defendant played a role by supplying the drug, other participants also have contributed to this crisis by creating or sustaining the demand.”


Death Watch: The BOP has identified no new inmate fatalities. The inmate death toll remains at 233. Five of these inmates died while on home confinement. Staff fatalities remain at 4.


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