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BOP COVID-19 UPDATE -- March 30, 2021





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Quick Facts:


Currently positive-testing inmates: 431 (up from 413)

Currently positive-testing staff: 1,264 (down from 1,268)

Recovered inmates: 46,973 (down(?) from 46,975)

Recovered staff: 5,453 (up from 5,440)

Note: the noted day-to-day reduction in "recovered inmates" is counter-intuitive unless inmates previously deemed "recovered" relapsed.


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

Beaumont USP: 59 (up from 53)

Coleman Low FCI: 56 (unchanged)

Oakdale II FCI: 40

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

Pollock USP: 84 (unchanged)

Coleman Medium FCI: 46 (unchanged)

Talladega FCI: 46 (unchanged)


System-wide testing results: Presently, BOP has 125,876 federal inmates in BOP-managed institutions and 13,651 in community-based facilities. Today's stats:


Completed tests: 108,612 (up from 108,438)

Positive tests: 46,600 (up from 46,586)



Case Note: Tenth Circuit joins Second, Fourth, Six and Circuits holding Policy Statement (§ 1B1.13) non-binding on inmate-initiated CR applications.


In U.S. v. MALCOM DEROME MCGEE, 2021 WL 1168980 (10th Cir. Mar. 29, 2021) (published) (Briscoe, J.), the Tenth Circuit joins the Second, Fourth, Sixth, and Seventh Circuits in holding that the Policy Statement (§ 1B1.13) is not binding on a compassionate release application brought by an inmate: "We now turn to McGee's first issue on appeal. McGee argues that the district court erred in concluding that it lacked the authority to grant relief under § 3582(c)(1)(A)(i) based upon the factors cited in his motion. … It is apparent from the district court's decision that it concluded its authority at step one of the statutory test was constrained by the Sentencing Commission's policy statements. More specifically, the district court's decision indicates that it concluded the Sentencing Commission possessed the exclusive authority to define, through its general policy statements, the statutory phrase “extraordinary and compelling reasons.” This, we conclude, was an error. … In our view, however, the most plausible interpretation of both § 994(t) and § 3582(c)(1)(A)(i) is that Congress intended to afford district courts with discretion, in carrying out the first step of the statutory test in § 3582(c)(1)(A)(i), to independently determine the existence of “extraordinary and compelling reasons,” and for that discretion to be circumscribed under the second step of the statutory test by requiring district courts to find that a sentence reduction is consistent with applicable policy statements issued by the Sentencing Commission. … Although we agree, as discussed above, that Congress intended for the Sentencing Commission's policy statements to serve as guideposts for district courts under the second part of the statutory test, we conclude that the Sentencing Commission's most recent policy statement, which was issued prior to the First Step Act, is not “applicable” to McGee's motion. We therefore conclude that the district court erred in considering itself bound by that policy statement. … More specifically, treating the existing policy statement as continuing to be applicable would effectively eliminate, in all cases involving motions filed directly by defendants rather than the Director of the BOP, the “Other Reasons” (i.e., “catch-all”) category that the Sentencing Commission clearly intended to exist. This is because the “catch-all” category, as described in the Sentencing Commission's existing policy statement, requires a determination by the Director of the BOP that extraordinary and compelling circumstances exist in a given case. But, in a case where the defendant has moved for relief under the statute, the Director of the BOP has necessarily not made any such determination. This is problematic and clearly undercuts not only Congress's intent to expand the use of compassionate release, but also the Sentencing Commission's intent to recognize a “catch-all” category of cases in addition to those that fall within the narrow confines of the first three categories of cases. Thus, we reject the government's position.”



Death Watch: The BOP has identified a previously counted inmate fatality as that of Fernando Marulanda Trujillo, 69, of FCI Fort Dix. Inmate deaths remain at 228. Four of these inmates died while on home confinement. Staff fatalities remain at 4.

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