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BOP COVID-19 UPDATE -- June 21, 2021

Quick Facts: Currently positive-testing inmates: 76 (down from 88) Currently positive-testing staff: 129 (up from 128) Recovered inmates: 44,568 (down from 44,643) Recovered staff: 6,872 (up from 6,869) Institutions with the largest number of currently positive-testing inmates:

Coleman II USP: 13 (down from 23)

Bennettsville FCI: 12 (unchanged)

Keeton Corrections Inc (RRC): 9

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

Big Sandy USP: 6 (unchanged) Central Office HQ: 6 (unchanged) System-wide testing results: Presently, BOP has 129,419 federal inmates in BOP-managed institutions and 13,854 in community-based facilities. Today's stats: Completed tests: 115,338 (up from 115,195) Positive tests: 44,021 (down from 44,108)

Case Note: A long and winding road to compassionate release...

in U.S. v. FRANCISCO HERRERA-GENAO, 2021 WL 2451820, at *3 (D.N.J. June 16, 2021) (Thompson, J.), the court addressed why issue exhaustion is not required under § 3582, why an issue previously raised in a 2255 petition is considered a successive petition when thereafter raised in a § 3582 application, why age at the time of conviction is a relevant consideration, and why, though the elimination of § 924(c) stacking does not by itself support relief it may be considered with other factors to support a finding of "extraordinary and compelling" reasons for relief, explaining: "The Court disagrees with the Government's proposed “issue exhaustion” requirement. “[R]equirements of administrative issue exhaustion are largely creatures of statute.” Sims v. Apfel, 530 U.S. 103, 107 (2000). The text of the First Step Act does not mandate issue exhaustion. See 18 U.S.C. § 3582(c)(1)(A). And the BOP regulation requiring an inmate to detail the circumstances warranting compassionate release was promulgated before the First Step Act. See 28 C.F.R. § 571.61(a). … The rationale for requiring issue exhaustion does not apply to compassionate-release motions. … When prisoners apply to the BOP for compassionate release, the BOP has a duty to investigate facts and develop arguments for and against release. And the Government does not appear before the BOP to oppose those requests. Because compassionate-release proceedings before the BOP are “inquisitorial rather than adversarial,” see id. at 110–11, the Court agrees with other courts that have not required issue exhaustion under Section 3582(c)(1)(A). … Defendant's perjury allegations do not support a sentence reduction. Defendant argues that the Assistant U.S. Attorney from his trial falsely testified at a hearing as to why the parties did not reach a plea agreement. … In its disposition of Defendant's 2012 motion for relief under 28 U.S.C. § 2255, the Court already considered whether the Government extended a plea offer to Defendant. After conducting an evidentiary hearing—which included testimony from Defendant, Defendant's trial counsel, and the trial Assistant U.S. Attorney—the Court concluded it could not “find that a definitive plea offer existed.” … In any event, “when a motion titled as a § 3582 motion otherwise attacks the petitioner's underlying conviction or sentence, that is an attack on the merits of the case and should be construed as a [motion for relief under § 2255].” United States v. Carter, 500 F.3d 486, 490 (6th Cir. 2007). Because Defendant's perjury argument attacks his underlying conviction, the Court construes it as a second or successive § 2255 motion. … Courts of Appeals have endorsed consideration of a defendant's age under the compassionate-release statute. See McCoy, 981 F.3d at 286 (citing Brooker, 976 F.3d at 238); Maumau, 993 F.3d at 837. In United States v. Ramsay, 2021 WL 1877963 (S.D.N.Y. May 11, 2021), Judge Rakoff, relying on Supreme Court precedents and studies in neuroscience, psychology, and sociology, discussed attributes of the adolescent brain that should be considered in sentencing. See id. at *7–13. Those attributes include immaturity, susceptibility to negative influences and outside pressures, salvageability, and dependence. See id. at *7–12. Although Defendant was twenty-two years old when he committed his offenses, certain attributes of the adolescent brain are relevant to his case. For example, “psychosocial maturity—the capacity to exercise self-restraint[,] especially in emotionally-arousing contexts”—“continues to [develop] throughout the teens and into the twenties”; “researchers [have] concluded that psychosocial maturity increases over time from 10 to 30 years of age.” Id. at *9 (collecting studies). And based on the relative turbulence of Defendant's upbringing, there is reason to believe that his immaturity may have manifested itself more readily than the average twenty-two-year-old's immaturity. … Taken together, the First Step Act's elimination of § 924(c)’s “stacking” requirement, Defendant's rehabilitation since 2007, and Defendant's age and immaturity when he committed his offenses are “extraordinary and compelling reasons” that warrant a reduction in Defendant's sentence.”)

Death Watch: The government has acknowledged an additional, as-yet-unidentified, inmate fatality, bringing the total inmate fatalities to 240. Five of these inmates died while on home confinement. Staff fatalities remain at 4.

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