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BOP COVID-19 UPDATE -- May 11, 2021

Quick Facts:

Currently positive-testing inmates: 105 (down from 114)

Currently positive-testing staff: 172 (down from 173)

Recovered inmates: 46,116 (down from 46,131)

Recovered staff: 6,756 (up from 6,751)

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

Otisville FCI: 36 (unchanged)

Oklahoma City FTC: 5 (unchanged)

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 (unchanged)

System-wide testing results: Presently, BOP has 128,241 federal inmates in BOP-managed institutions and 13,587 in community-based facilities. Today's stats:

Completed tests: 113,003 (up from 112,904)

Positive tests: 45,520 (down from 45,545)

Case Note: Granting compassionate release where the sentencing court, 27 years earlier, had unlawfully imposed a life sentence ...

In U.S. v. Trenkler, 2021 WL 1811652, at *4 (D. Mass. May 6, 2021) (Smith, J.), the court’s decision, 27 years earlier, to grant coram nobis relief had been reversed because Congress’ intent in passing AEDPA was to prioritize finality over correction of error, here, an unlawful life sentence. Today, Congress’ intent in passing FSA requires opposite outcome. The court explains: “Defendant Alfred Trenkler is a sixty-five-year-old federal inmate serving a life sentence for convictions stemming from his role in an October 28, 1991 bombing in Roslindale, Massachusetts that killed one Boston Police Department Bomb Squad officer and maimed a second officer. … Defendant moves for compassionate release, asserting that extraordinary and compelling circumstances warrant his release based on (1) the COVID-19 pandemic, particularly in light of his documented heart condition and the outbreak that has left at least 1009 inmates infected with COVID-19 over the past year at USP Tucson; and (2) what Trenkler characterizes as a series of miscarriages of justice that call into question his convictions and sentence. … The Court reduces Trenkler's sentence to a term of 41 years, followed by a term of supervised release of 3 years on Count 1, 5 years on Count 2, and 5 years on Count 3, all to run concurrently. … On March 8, 1994, the district court sentenced Trenkler to concurrent terms of life imprisonment on Counts 2 and 3. … Throughout the history of this case, Trenkler has maintained his innocence and pursued nearly every plausible avenue of relief. … Undeterred by these setbacks, Trenkler conducted his own legal research and, in 2005, discovered a new issue, which he raised in a letter to the district court. … In 2007, Trenkler filed a petition for writ of coram nobis. In his petition, Trenkler asserted – for the first time – that at the time of his sentencing, 18 U.S.C. §§ 844(d) and (i) provided for the imposition of a life sentence only “if the jury shall in its discretion so direct.” See Trenkler v. United States, No. 06-12072-RWZ, 2007 WL 551620 (D. Mass. Feb. 20, 2007) (“Trenkler V”) (quoting 18 U.S.C. § 34, as incorporated by 18 U.S.C. § 844 (1993)). Apparently, no one – not defense counsel, the government, U.S. Probation, nor the district court – was aware of this statutory edict, and it was never raised prior to or at sentencing. … Trenkler's appellate and post-conviction relief attorneys had also missed the issue over the ensuing years. Judge Zobel, acknowledging this fundamental oversight, concluded that she had imposed a sentence that only a jury could impose under the statute, and that such circumstances were sufficiently “extraordinary” to warrant coram nobis relief. Id. at *6. She set aside Trenkler's sentence. … Judge Zobel then imposed a term of 37 years, which she noted was Trenkler's life expectancy at the time of his original sentencing. … But Trenkler's partial victory was fleeting. The First Circuit reversed the district court's order granting the writ of coram nobis, quashed the writ, vacated the amended judgment, and reinstated the life sentences, concluding that Trenkler's petition for a writ of coram nobis was in effect a veiled and untimely motion to vacate his sentence under § 2255. Trenkler v. United States, 536 F.3d 85, 97-98 (1st Cir. 2008) (“Trenkler VI”). As such, the court reasoned, the district court lacked jurisdiction to entertain Trenkler's claim where he had not established a “complete miscarriage of justice” – such as actual innocence. Id. at 99. In the court's view, a procedural error of the sort complained of “d[id] not suggest a miscarriage of justice.” Id. The First Circuit did not dispute Judge Zobel's holding that Trenkler's life sentence was unlawfully imposed by a judge not a jury; instead, the court concluded that the error was procedural in nature and therefore did not affect Trenkler's “substantial rights.” Id. at 100. Front and center in Trenkler VI was the tension between the virtue of finality lauded by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) and a system of justice that corrects established errors – indeed, the First Circuit noted that “our criminal justice system tolerates a certain risk of error”. But little in life is actually final. In AEDPA, Congress spoke to the virtue of finality and constrained the number of attempts a defendant has to challenge his conviction and sentence; twenty-plus years later, Congress has directed, through the First Step Act, that the district court should use its discretion to either grant compassionate release or reduce a sentence where the movant establishes “extraordinary and compelling” circumstances and the 18 U.S.C. § 3553 sentencing factors weigh in favor of release. … Second, the government argues that this Court is constrained by the First Circuit's decision in Trenkler VI, which vacated Judge Zobel's grant of coram nobis relief and reinstated Trenkler's original sentence. Gov't Resp. to Court's Order 4-8. Precedent suggests otherwise. … While the Court of Appeals acknowledged that the imposition of a life sentence by the trial judge, rather than the jury, was an “apparent error”, it characterized the error as procedural in nature and not substantive, and therefore not a “miscarriage of justice” as that term has been interpreted by the Supreme Court. Id. at 99. The court recognized that this left Trenkler unable to challenge an apparently unlawfully imposed life term, but such a result was necessary in order to give effect to AEDPA. … The First Circuit's holding was premised upon a strict application of AEDPA (once the court found the underlying petition for a writ of coram nobis was effectively a motion under § 2255). Trenkler VI, 536 F.3d at 97-100. But now Congress has spoken again. And this time it has given trial judges broad authority – indeed it has imposed a statutory duty, upon a defendant's motion – to conduct an individualized review of the defendant's case for extraordinary and compelling circumstances that call out for correction. … These cases – and others like them – leave no question that this Court may conclude that a legal error at sentencing constitutes an extraordinary and compelling reason, and reduce the sentence after conducting an individualized review of the case. … Here, it is both extraordinary and compelling that (1) a judge sentenced a defendant to life imprisonment using a preponderance of the evidence standard where the controlling statute provided that a life sentence could be imposed only by the jury; and (2) there exists no available avenue for relief from this legal error.”

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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