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BOP COVID-19 UPDATE -- June 4, 2021




Quick Facts: Currently positive-testing inmates: 85 (unchanged) Currently positive-testing staff: 130 (down from 131) Recovered inmates: 45,171 (down from 45,209) Recovered staff: 6,843 (up from 6,840) Institutions with the largest number of currently positive-testing inmates: Sheridan FCI: 27 (unchanged)

Bennettsville FCI: 9 (up from 8)

Big Spring FCI: 4 (unchanged)

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 129,208 federal inmates in BOP-managed institutions and 13,848 in community-based facilities. Today's stats: Completed tests: 114,805 (up from 114,740) Positive tests: 44,608 (down from 44,645)

Case Note: Change in law, which would have resulted in lower sentence today - -but circuit won't permit filing of successive petition -- justifies, with other facts, compassionate release.


In U.S. v. CHARLES WEISSINGER, 2021 WL 2252824 (E.D. Mo. June 2, 2021) (Perry, J.), the court granted compassionate release because, among other things, the defendant would today receive a much shorter sentence under prevailing Eighth Circuit law but he was denied permission to bring a successive habeas petition., explaining, "Weissinger has shown extraordinary and compelling reasons warranting compassionate release, based on the unwarranted sentencing disparities caused by his extremely long sentence when compared with similar cases today, his medical condition, and the other sentencing factors under 18 U.S.C. § 3553(a). I will therefore grant his motion for compassionate release under 18U.S.C. §3582(c)(1)(A) and will reduce his sentence to time served. … On November 27, 2006, Weissinger entered a plea of guilty to a single-count indictment charging him with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The offense usually carries a maximum sentence of ten years in prison, see18 U.S.C. § 924(a)(2), but the Armed Criminal Career Act (ACCA) increases the penalty to a fifteen-year minimum and a maximum of life imprisonment if the defendant has three prior convictions for a “violent felony.” 18 U.S.C. § 924(e)(1). The indictment here specifically charged Weissinger under the ACCA, alleging that he had three prior Missouri burglary convictions. … On April 5, 2018, the Eighth Circuit decided inUnited States v. Naylor, that Missouri convictions for second degree burglary underMo. Rev. Stat. § 569.170 (1979)“do not qualify as violent felonies under the ACCA.”887 F.3d 397, 407 (8th Cir. 2018)(en banc). Given that Naylor's fifteen-year mandatory minimum sentence under the ACCA was based on his prior Missouri second-degree burglary convictions, the Eighth Circuit vacated the sentence and remanded the case to the district court for resentencing.Id.The Eighth Circuit remanded similar cases for resentencing based on its holding inNaylor. See, e.g., Cravens v. United States, 894 F.3d 891 (8th Cir. 2018);United States v. Bell, 719 Fed. Appx. 534 (8th Cir. 2018)(unpublished) (per curiam);United States v. Sykes, 727 Fed. Appx. 908 (8th Cir. 2018)(unpublished) (per curiam). In view ofNaylor, Weissinger again moved to vacate, set aside, or correct his sentence under§ 2255in May 2018. …In its response filed in the Eighth Circuit, the government did not oppose Weissinger's filing of a successive petition given the Eighth Circuit's determinations in similar cases after Naylor. See Weissinger v. United States, Case No. 18-2056 (8th Cir.). On July 17, 2018, the Eighth Circuit denied Weissinger permission to file a successive motion to vacate, without comment. In response to Weissinger's motion for compassionate release here, the government agrees that if Weissinger were to be sentenced today on the felon-in-possession charge to which he plead guilty in 2006, he would not qualify for ACCA enhancement but rather would be subject to a maximum sentence of ten years’ imprisonment. The government argues, however, that a mere change in a sentencing statute is insufficient by itself to justify a reduction in sentence; and that because Weissinger does not suffer a debilitating health condition or otherwise satisfy the § 3553(a) factors, he is not eligible for compassionate release under the First Step Act. For the following reasons, I disagree. … As noted above, if sentenced today Weissinger would face only a ten-year maximum sentence, rather than the fifteen-year to life statutory range he faced in 2007. Based on Johnson and Naylor, Weissinger did not have the requisite number of predicate violent felonies to bring him within the ACCA. And with the Eighth Circuit holding that Illinois burglary is likewise not a violent felony under the ACCA, see Cravens, 894 F.3d at 893 (citing United States v. Byas, 871 F.3d 841, 844 (8th Cir. 2017) (per curiam)), Weissinger in fact has no prior prior convictions that would today be considered violent felonies under the ACCA. As a result, Weissinger's sentence is almost double the maximum he would have received if sentenced today. This passage of time and the procedural rules regarding successive motions to vacate under 28 U.S.C. § 2255 have resulted in an unwarranted sentencing disparity when Weissinger is compared to persons with much more serious prior histories who are sentenced today for the same crime.”


Death Watch: The BOP has announced no new fatalities. The inmate death toll remains at 238. Five of these inmates died while on home confinement. Staff fatalities remain at 4.



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