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BOP COVID-19 UPDATE -- March 2, 2021

Updated: Mar 3, 2021

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Quick Facts:

Currently positive-testing inmates: 1,043 (down from 1,082)

Currently positive-testing staff: 1,616 (down from 1,627)

Recovered inmates: 46,758 (up from 46,618)

Recovered staff: 4,891 (up from 4,869)

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

Schuylkill FCI: 142 (down from 200)

Florence High USP: 121 (up from 120)

Tallahassee FCI: 115 (down from 124)

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

Pollock USP: 83 (unchanged)

Tucson USP: 69 (unchanged)

Talladega FCI: 46 (unchanged)

System-wide testing results: Presently, BOP has 124,680 federal inmates in BOP-managed institutions and 13,609 in community-based facilities. Today's stats:

Completed tests: 105,951 (up from 105,803)

Positive tests: 46,965 (up from 46,897)

Case Note: In a watershed case, court finds that legal error at sentencing can be an extraordinary and compelling circumstance supporting compassionate release...

In U.S. v. HECTOR LOPEZ, No. 11-CR-568 (PKC), 2021 WL 761850v(S.D.N.Y. Feb. 26, 2021) (Castel, J.), the court explained, "At the time of sentencing, the Court adopted without objection the Guidelines range set forth in the plea agreement and recommended by the Office of Probation, 262 to 327 months’ imprisonment. The calculated range included a “career offender” enhancement premised on two prior convictions, one of which was for simple possession of a controlled substance. Under the clear language of the Guidelines, the possession offense did not qualify as a “controlled substance offense,” then or now, and thus Lopez should not have received the career offender enhancement. U.S.S.G. § 4B1.2 (effective Nov. 1, 2011). The government does not dispute that the correct Guidelines range of imprisonment that should have been considered by the Court was 121 to 151 months. It nevertheless opposes Lopez's motion. … Lopez did not file a direct appeal. ... Lopez subsequently moved to vacate his sentence pursuant to 28 U.S.C. § 2255, arguing that he was not a career offender because he was not convicted of a predicate “crime of violence.” (Doc 465). The Court denied Lopez's habeas petition on May 9, 2017. (Doc 503). … In his current motion, Lopez argues for the first time that one of the two predicate offenses did not qualify for the “career offender” enhancement. Lopez did not file a direct appeal or move to vacate, set aside or correct the sentence on the ground that one of the two qualifying offenses was not a “controlled substance offense,” as defined in the Guidelines. His time to file a motion to vacate, set aside or correct a sentence on this ground has passed. 28 U.S.C. § 2255(f). The government concedes that the gap between the correct Guidelines range and the erroneous one was “substantial.” (Feb. 3, 2021 Tr. at 25; Doc 576). The circumstance was truly extraordinary: Able defense counsel and a competent prosecutor overlooked that one of the predicate offenses was a simple possession rather than a sale of a controlled substance. The Office of Probation on its own review thought the crime constituted a second qualifying offense under section 4B1.1 of the Guidelines. The undersigned, who bears the ultimate responsibility, did not detect that one of the two offenses was non-qualifying. Under Brooker, the court should consider “all possible reasons for compassionate release” advanced by a defendant, including the “injustice of [defendant's] lengthy sentence.” … In Lopez's case, the Court concludes that the significant error in his Guidelines calculation; and the absence of any other avenue to correct this error constitute an “extraordinary and compelling reason” for sentence reduction. The central focus of the government's opposition is that any type of procedural error at sentencing should not be considered an “extraordinary and compelling” reason. It notes that for motions brought under other subsections of section 3582(c), the Second Circuit has held that a defendant cannot seek a sentence modification based on a Guidelines error at the original sentencing. See United States v. Moore, 975 F.3d 84, 92 (2d Cir. 2020) (motions under section 3582(c)(1)(B)) … In fact, the Court in Brooker focused solely on relief under section 3582(c)(1)(A)(i) without discussion of the other grounds for sentence modification under section 3582(c) or the cases interpreting them. In light of Brooker, neither of these cases prevent the Court from concluding extraordinary and compelling reasons exist in Lopez's case. There is a strong federal interest in the finality of judgments and most errors in an original sentencing are not likely to qualify as an extraordinary and compelling reason for a sentence reduction. Several important factors, acting in tandem, make this case distinctive. First, the Guidelines error is one that the government and the Court should have detected at or prior to sentencing and allowing the sentence to stand undermines respect for the judicial process. Uncovering the error required no investigation, fact-finding or credibility assessment. It does not turn on the retroactive application of new legal principles. The error should have been apparent from the face of the PSR, describing one of the two qualifying offenses as possession, not sale, of a controlled substance. (PSR ¶¶ 122–124). Second, the Guidelines error was substantial. Lopez has shown that the error, if detected, would have resulted in a very significant difference in the applicable Guidelines range. Instead of the range of 262 to 327 months’ imprisonment that the Court adopted, it should have adopted a range of 121 to 151 months’ imprisonment, a more than 11-year difference on the bottom of the Guidelines range; this is a difference of 116%. See Molina-Martinez v. United States, 136 S. Ct. 1338, 1346 (2016) (“When a defendant is sentenced under an incorrect Guidelines range—whether or not the defendant's ultimate sentence falls within the correct range—the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error.”). Finally, as the sentencing judge, this judge can say with some confidence that the very significant Guidelines error likely affected the sentence imposed. … Lopez has served about approximately 118 months or 65% of his 180-month sentence. He has been in custody since his arrest on May 4, 2011. (PSR at 2). According to the BOP's website, Lopez's anticipated release date accounting for good time-credit is March 10, 2024.8 Lopez's Guidelines range at sentencing should have been 121 to 151 months. … The Court has considered the history and characteristics of the defendant, the seriousness of the offense, and the other section 3553(a) factors and concludes that a reduction of Lopez's sentence to 121 months’ imprisonment with all other terms and conditions of his sentence, including supervised release and criminal penalties remaining in place, is sufficient, but not greater than necessary, to accomplish the goals of Lopez's original sentence. See Roney, 2020 WL 6387844, at *3 (“[C]ourts regularly consider whether compassionate release would be consistent with § 3553(a) by considering how early release would impact the aims of the original sentence.”).”

Death Watch: The BOP reports two new COVID-related fatalities, whose identities have not yet been made public. Inmate fatalities now stand at 224. Four of these inmates died while on home confinement. Staff fatalities remain at 4.

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