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BOP COVID-19 UPDATE -- June 2, 2021

Quick Facts: Currently positive-testing inmates: 53 (down from 56) Currently positive-testing staff: 130 (down from 131) Recovered inmates: 45,281 (down from 45,367) Recovered staff: 6,839 (up from 6,837) Institutions with the largest number of currently positive-testing inmates: Big Spring FCI: 4 (unchanged) Carswell FMC:: 4 (unchanged)

Beaumont Low FCI: 3 (down from 5) Institutions with the largest number of currently positive-testing staff: Pekin FCI: 9 (unchanged) Central Office HQ: 6 (unchanged) Beaumont Medium FCI: 5 (unchanged) System-wide testing results: Presently, BOP has 129,246 federal inmates in BOP-managed institutions and 13,645 in community-based facilities. Today's stats: Completed tests: 114,776 (up from 114,733) Positive tests: 44,675 (down from 44,760)

Case Note: Court lacks jurisdiction to consider a pre-incarceration application for compassionate release....

In U.S. v. SAJID JAVED, 2021 WL 2181174 (S.D.N.Y. May 27, 2021) (Broderick, J.), the court held that pre-surrender, compassionate release is not available under 3582(c)(1)(A), explaining: “Javed cites to Thrower in support of his argument that his Motion is properly before me. Thrower and Austin, a case with similarly unique facts, are factually inapposite. Thrower involved a defendant whose sentence was vacated after he had served 149 months in prison; thereafter, the Second Circuit reversed the decision, and remanded the case for reinstatement of the original sentence. 495 F. Supp. 3d at 134. In holding that she could decide the defendant's compassionate release motion, Judge Allyne Ross explained that she “agree[d] that the exhaustion requirement indicates that Congress assumed the mine-run of defendants seeking sentence reductions under § 3582(c)(1)(A) would be in custody,” and that this “assumption may support interpreting the statute to exclude the defendants in Konny and Spruill, who awaited incarceration for the first time after being sentenced in the normal course—a common scenario Congress likely considered.” Id. at 139. She noted, however, that Congress likely had not considered the “peculiar facts” before her, and cautioned that she “interpret[ed] § 3582(c)(1)(A) only to conclude that Mr. Thrower, in his specific circumstances, may seek a sentence reduction under the statute, and nothing more.” Id. at 139–40; see also Austin, 468 F. Supp. 3d at 644 (describing the situation as “narrow and exceptional”). Given that Javed continues to await incarceration for the first time, “a common scenario Congress likely considered,” Thrower, 495 F. Supp. 3d at 139, I join the other courts in this Circuit and find that under these circumstances, Javed's motion is premature.” Death Watch: The BOP has, belatedly, acknowledged the death, on January 29, 2020, of Manuel Roach, 42, of USP Leavenworth. The inmate death toll now stands at 238. Five of these inmates died while on home confinement. Staff fatalities remain at 4.

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