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BOP COVID-19 UPDATE -- May 10, 2021

Quick Facts:

Currently positive-testing inmates: 114 (down from 118)

Currently positive-testing staff: 173 (up from 169)

Recovered inmates: 46,131 (down from 46,185)

Recovered staff: 6,751 (unchanged)

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

Otisville FCI: 36 (unchanged)

Oklahoma City FTC: 5

Victorville USP: 5 (unchanged)

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

Petersburg Low FCI: 14 (unchanged)

Pekin FCI: 7 (unchanged)

Central Office Headquarters: 7

System-wide testing results: Presently, BOP has 1828,257 federal inmates in BOP-managed institutions and 13,624 in community-based facilities. Today's stats:

Completed tests: 112,904 (up from 112,653)

Positive tests: 45,545 (down from 45,599)

Case Note: Eleventh Circuit finds courts do not have discretion to grant compassionate release based on grounds not expressed in § 3582(c)(1)(A) and Application Note 1(d)

In U.S. v. Bryant, 2021 WL 1827158 (11th Cir. May 7, 2021) (published) (Brasher, J.) the Eleventh Circuit, contrary to many other circuit courts, ruled, "In short, 1B1.13 is an applicable policy statement for all Section 3582(c)(1)(A) motions, and Application Note 1(D) does not grant discretion to courts to develop 'other reasons' that might justify a reduction in a defendant's sentence." The court acknowledged the circuit split it thereby created, explaining, "our sister circuits have held that this policy statement is not an 'applicable policy statement' that binds judicial discretion as to defendant-filed motions. We disagree with that reasoning."

Unless the en banc Eleventh Circuit reverses the panel, this ruling seems ripe for a grant of conflict cert as it is contrary to decisions in the 2nd, 4th, 5th, 6th, 7th, 9th and 10th circuits.

Death Watch: The BOP has identified no new fatalities. Inmate COVID-19 deaths remains at 234. Five of these inmates died while on home confinement. Staff fatalities remain at 4.

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