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BOP COVID-19 UPDATE -- June 8, 2021

Quick Facts: Currently positive-testing inmates: 84 (down from 85) Currently positive-testing staff: 125 (down from 127) Recovered inmates: 45,039 (down from 45,093) Recovered staff: 6,850 (up from 6,848) Institutions with the largest number of currently positive-testing inmates: Sheridan FCI: 29 (unchanged)

Bennettsville FCI: 11 (unchanged)

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 129,210 federal inmates in BOP-managed institutions and 13,709 in community-based facilities. Today's stats: Completed tests: 114,926 (up from 114,860) Positive tests: 44,483 (down from 44,533)

Case Note: USSG § 1B1.13 may be considered, but is not controlling, when ruling upon compassionate release application filed by inmate, and case remanded to. consider statutory change in § 924(c) stacking rules that today would require far shorter mandatory minimum sentence...

In U.S. v. Black, No. 20-2314, 2021 WL 2283876 (7th Cir. June 4, 2021) (published) (Hamilton, J.), the court remanded, instructing the court to consider whether changes in the § 924(c) stacking rules supported compassionate release, explaining, "Black first contends that the district court erred by deciding that his cancer and susceptibility to COVID-19 did not amount to an extraordinary and compelling reason for release. Because prostate cancer and the treatment he receives for it are listed by the Centers for Disease Control and Prevention as risk factors for COVID-19, and because the government conceded that he had shown extraordinary circumstances, Black argues, the court should not have relied on U.S.S.G. § 1B1.13 and its Application Note 1 to find otherwise. Because of a peculiar circumstance stemming from the Sentencing Commission's years-long lack of a quorum, we agree with Black that the district court made a legal error. Before the First Step Act took effect in 2018, § 3582(c) required an incarcerated person seeking compassionate release to obtain the endorsement of the Bureau of Prisons before seeking relief from a court. The statute also required that relief be “consistent with applicable policy statements issued by the Sentencing Commission.” See Gunn, 980 F.3d at 1179–80. Since enactment of the First Step Act, however, the Sentencing Commission has been unable to update its applicable policy statements because it has lacked a quorum. See, e.g., United States v. Maumau, 993 F.3d 821, 834–37 (10th Cir. 2021) (explaining this background in more detail). … To be clear, the district court did not make a legal error by merely quoting and analyzing § 1B1.13. But there is quite understandably no indication in the court's order in this case that it recognized before our decision in Gunn that it had discretion to go beyond § 1B1.13 in deciding Black's motion. See United States v. Cooper, 996 F.3d 283, 287& n.4 (5th Cir. 2021) (noting that all seven circuits to have reached the question, including this circuit, have given same answer). That much is now settled law in this circuit. The district court offered an alternative ground for denial, that the 18 U.S.C. § 3553(a) factors weigh against Black's release. That alternative ground could well be a sufficient basis for denying relief. E.g., United States v. Saunders, 986 F.3d 1076, 1078 (7th Cir. 2021). In this case, however, we believe that the district court needs to take a fresh look at this alternative ground. Its explanation was terse and did not signal that it took into account other statutory changes that do not mandate relief here but may well be relevant and could reasonably be deemed to alter the weight of those factors. In evaluating the § 3553(a) factors, the district court relied principally on the fact that Black had served only thirteen years of his forty-year sentence. In most cases we would have little trouble accepting that sensible and legally permissible rationale. It supports a discretionary conclusion that just punishment and respect for the law require continued incarceration. In this case, however, it is clear that if Black were being sentenced for these same crimes today, his sentence could be substantially shorter. The First Step Act, in addition to changing the compassionate release law, included § 403, which amended sentences under 18 U.S.C. § 924(c). Congress lowered the mandatory sentences for Black's firearm-related crimes if they were committed today. … Because the district court did not consider this statutory change, which reflects a substantially different view by Congress about how to punish violations of § 924(c), we are not convinced the district court recognized the full extent of its discretion when it decided Black's motion, particularly when this rationale was offered as an alternative ground after the court had erroneously held that Black was not even legally eligible for relief under § 3582(c).”)

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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