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BOP COVID-19 UPDATE -- April 30, 2021

Quick Facts:

Currently positive-testing inmates: 202 (up from 194)

Currently positive-testing staff: 159 (down from 161)

Recovered inmates: 46,364 (down from 46,369)

Recovered staff: 6,720 (up from 6,711)

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

Otisville FCI: 28

San Diego MCC: 19 (down from 32)

Berlin FCI: 18 (unchanged)

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

Petersburg Low FCI: 14 (unchanged)

Pekin FCI: 7 (unchanged)

Yazoo City USP: 7 (unchanged)

System-wide testing results: Presently, BOP has 127,620 federal inmates in BOP-managed institutions and 13,745 in community-based facilities. Today's stats:

Completed tests: 111,559 (up from 111,559)

Positive tests: 45,832 (down from 45,832)

Note: the above numbers are not updated because the BOP site provides the following, anomalous information today, compared to yesterday: Completed tests: 37,286, Positive tests: 18,723.

Case Note: Plea waiver held enforceable to prohibit compassionate release motion...

In U.S. v. Bridgewater, No. 20-2413, 2021 WL 1661506 (7th Cir. Apr. 28, 2021) (published) (Hamilton, J.), the Seventh Circuit held that a post-FSA plea waivers is enforceable, explaining, "In his plea agreement, defendant David Bridgewater waived the right to seek any modification of his sentence. Nonetheless, in light of the current pandemic, Bridgewater filed in the district court a motion for compassionate release under the First Step Act of 2018, as codified in 18 U.S.C. § 3582(c)(1)(A). He seeks release based on medical conditions that he says make him vulnerable to serious illness or death from the spread of COVID-19 in prison. Bridgewater argues that his plea waiver does not bar this motion because the waiver does not cover compassionate release, was not voluntary, and, in any event, should be unenforceable under contract-law principles of public policy and unconscionability. The district court rejected these arguments. We dismiss the appeal. Bridgewater's knowing and voluntary waiver of the right to seek compassionate release under the First Step Act is enforceable. … On March 19, 2019, he pleaded guilty to Count Two pursuant to a plea agreement. The government agreed to dismiss Count One, which would have carried a mandatory minimum ten-year sentence, and to recommend a minimum five-year sentence for Count Two. The district court approved the plea agreement on March 19, 2019. Most relevant to this appeal, Bridgewater's plea agreement included the following waiver of his rights to appeal or otherwise challenge his conviction and sentence:

[I]n exchange for the recommendations and concessions made by the United States in this Plea Agreement, Defendant knowingly and voluntarily waives the right to seek modification of or contest any aspect of the conviction or sentence in any type of proceeding, including the manner in which the sentence was determined or imposed, that could be contested under Title 18 or 28, or under any other provision of federal law, except that if the sentence imposed is in excess of the Sentencing Guidelines as determined by the Court (or any applicable statutory minimum, whichever is greater), Defendant reserves the right to appeal the substantive unreasonableness of the term of imprisonment.

We now turn to Bridgewater's most substantial attacks on his waiver. He argues that even if he knowingly and voluntarily waived his right to seek compassionate release under the First Step Act, the waiver should not be enforced because it is contrary to public policy and unconscionable. While we respect the concerns that give rise to these arguments, we ultimately disagree. As an initial matter, it is unclear whether contract law's public policy and unconscionability doctrines fully extend to plea agreements. Even if they do, we are convinced that an approved plea agreement that waives the right to file compassionate release motions under the First Step Act is not unenforceable on public policy or unconscionability grounds. We base this conclusion on two major premises. First, statutory rights are presumed to be waivable in plea agreements, just as most constitutional rights are waivable. See United States v. Mezzanatto, 513 U.S. 196, 115 S.Ct. 797, 130 L.Ed.2d 697 (1995). Second, compassionate release waivers are more defensible against public policy and unconscionability challenges than § 1983 release-dismissal agreements, which the Supreme Court has held are generally enforceable. See Town of Newton v. Rumery, 480 U.S. 386, 107 S.Ct. 1187, 94 L.Ed.2d 405 (1987).” … Bridgewater argues primarily that his compassionate release waiver is unenforceable as a matter of contract law because it contravenes public policy and is unconscionable.4 In support, Bridgewater cites United States v. Osorto, 445 F. Supp. 3d 103, 105 (N.D. Cal. 2020), in which Judge Charles Breyer rejected a plea agreement that contained a compassionate release waiver. He wrote that such a waiver “undermines Congressional intent and is an unconscionable application of a federal prosecutor's enormous power to set the terms of a plea agreement.” We respectfully disagree, but we note that the issue in Osorto arose in a different way, and the procedural difference is important. In this case, the district court had approved and implemented the plea agreement. Bridgewater had already received substantial benefits under that agreement. Judge Breyer rejected a proposed waiver in Osorto, relying on a district judge's “broad discretion to accept or reject a proposed plea agreement.” Id. at 104; see Fed. R. Crim. P. 11(c)(3). Here, Judge Yandle accepted Bridgewater's plea agreement back in 2019 and acted accordingly. Our issue is whether the waiver term of the agreement can now be enforced after Bridgewater has received the benefits of the agreement. So while we disagree with Osorto’s analysis of the public policy and unconscionability issues concerning compassionate release waivers, we do not address here the scope of a district judge's discretion to reject the terms of a proposed plea agreement in the first instance.”

Death Watch: The BOP has identified the fatality reported yesterday as Paul F. Archambault, Sr., 83, FMC Devens. The inmate death remains at 234. Five of these inmates died while on home confinement. Staff fatalities remain at 4.

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