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BOP COVID-19 Update -- May 19, 2021

Quick Facts:

Currently positive-testing inmates: 67 (down from 82)

Currently positive-testing staff: 144 (down from 150)

Recovered inmates: 45,802 (down from 45,863)

Recovered staff: 6,804 (up from 6,792)

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

Carswell FMC: 5

Loretto FCI: 4

Oakdale II FCI: 4

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

Pekin FCI: 8 (unchanged)

Yazoo City USP: 7 (unchanged)

Central Office Headquarters: 6 (down rom 7)

System-wide testing results: Presently, BOP has 128,793 federal inmates in BOP-managed institutions and 13,646 in community-based facilities. Today's stats:

Completed tests: 113,694(up from 113,660)

Positive tests: 45,186 (down from 45,262)

Case Note: Saying 11th Circuit is wrong, DC Circuit agrees with majority, holding that Guidelines § 1B1.13 doesn't apply to compassionate release motions filed by inmates...

In U.S. v. Long, 2021 WL 1972245 (D.C. Cir. May 18, 2021) (published) (Millet, J.), the DC Circuit joins seven other circuits finding §1B1.13 inapplicable to motions filed in district court by defendants, and holding that a district court’s reliance on §1B1.13 is plain error, also explaining why contrary 11th Circuit holding is wrong: "We, like seven other circuits, hold that this policy statement is not applicable to compassionate release motions filed by defendants, and so we vacate the district court's order and remand the case for further proceedings. … The district court had jurisdiction under 18 U.S.C. §§ 3231 and 3582(c)(1)(A). The source of our appellate jurisdiction is an open question in this circuit, and neither party has offered a basis for it. Yet it is our duty to assure ourselves of jurisdiction in every case. See Kaplan v. Central Bank of the Islamic Republic of Iran, 896 F.3d 501, 509 (D.C. Cir. 2018). … For the same reasons that a sentence modification under Section 3582(c)(2) does not fall within Section 3742’s jurisdictional bar, neither does a compassionate release application for modification of a sentence under Section 3582(c)(1)(A). The same textual and logical reasons explicated in Dillon and Jones apply with equal force to (c)(1)(A) as they do to (c)(2). All a decision on the application for compassionate release does is operate upon and modify—or leave unchanged—an already-existing and already-imposed sentence. Cf. McAndrews, 12 F.3d at 277. … In short, the district court's disposition of Long's motion for compassionate release was either a sentence-modification ruling appealable under 28 U.S.C. § 1291, consistent with our decision in Jones, or the imposition of a final sentence resulting from a misapplication of the Sentencing Guidelines, providing jurisdiction under 18 U.S.C. § 3742(a)(2). … But because Long seeks reversal on the basis of an argument—the inapplicability of the existing Sentencing Commission policy statement to his compassionate release application—that he did not raise before the district court, we must review the denial of his motion only for plain error. … Long is correct, and that error was plain. … The easiest case for plain error is when 'a clear precedent in the Supreme Court or this circuit establishe[s] [a decision's] erroneous character.' Terrell, 696 F.3d at 1260. While seven circuit court decisions go a long way, neither the Supreme Court nor this circuit has yet spoken on the inapplicability of the pre–First Step Act policy statement. But that is not the universe of plain error. Even in the absence of binding precedent, “an error can be plain if it violates an ‘absolutely clear’ legal norm, ‘for example, because of the clarity of a statutory provision. … This case fits that bill. The plain language of the existing policy statement is applicable only to compassionate release motions filed by the Director of the Bureau of Prisons, and it is facially inapplicable to those motions filed by defendants under the later-enacted First Step Act. … Recently, a divided decision of the Eleventh Circuit ruled that U.S.S.G. § 1B1.13 is applicable to defendant motions for compassionate release. Bryant, ––– F.3d at ––––, 2021 WL 1827158, at *6. The court reasoned that the pre–First Step Act policy statement is “capable of being applied” to those motions, and so it must be 'applicable' within the meaning of 18 U.S.C. § 3582(c)(1)(A). Id. at –––– – ––––, 2021 WL 1827158 at *6–7. But that opinion's reliance on dictionary definitions of 'applicable' misses the forest for a tree. The decision ignores all of the other words in Section 1B1.13 that already state in plain and clear terms when the policy statement applies: “Upon motion of the Director of the Bureau of Prisons[.]” U.S.S.G. § 1B1.13. As Judge Martin explained, the opinion's 'dictionary-based theory about when a policy statement may be "applicable" flies in the face of the statement's plain text that tells us when it is actually "applicable." ' Bryant, ––– F.3d at ––––, 2021 WL 1827158, at *20 (Martin, J., dissenting). In other words, this policy statement 'is capable of being applied' to Long's motion, id. at ––––, 2021 WL 1827158 at *6, only if we take an eraser to the words that say the opposite.”

Death Watch: The BOP has identified no new COVID-19 fatalities, leaving the inmate death toll at 235. Five of these inmates died while on home confinement. Staff fatalities remain at 4.

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