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BOP COVID-19 UPDATE -- May 26, 2021

Quick Facts:

Currently positive-testing inmates: 58 (down from 62)

Currently positive-testing staff: 129 (unchanged)

Recovered inmates: 45,521 (down from 45,579)

Recovered staff: 6,834 (up from 6,832)

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

Big Spring FCI: 4 (unchanged)

Carswell FMC:: 4 (unchanged)

Beaumont Low FCI: 3

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

Pekin FCI: 8 (unchanged)

Central Office HQ: 7 (unchanged)

Beaumont Medium FCI: 5 (unchanged0

System-wide testing results: Presently, BOP has 128,974 federal inmates in BOP-managed institutions and 13,700 in community-based facilities. Today's stats:

Completed tests: 114,295 (up from 114,091)

Positive tests: 44,912 (down from 45,008)

Case Note: District court has no jurisdiction to issue opinion after defendant files notice of appeal.

In U.S. v. ERIK E. THOMPSON, 2021 WL 2099846 (6th Cir. May 25, 2021) (unpublished) (per curium), the court addressed two issues. First it held that the district court's checking a box denying relief is enough for purposes of appeal. Second, it declined to consider a five-page decision the district court issued after the defendant filed a notice to appeal, explaining, "The district court did not hold a hearing. It used a one-page form order to deny Thompson's motion. The form stated “[u]pon motion of Defendant (Dkts. 71, 72) for a reduction in sentence under 18 U.S.C. § 3582(c)(1)(A), and after considering the applicable factors provided in 18 U.S.C. § 3553(a) and the applicable policy statements issued by the Sentencing Commission, IT IS ORDERED THAT the motion is ....” It then listed four check boxes labeled: (1) “GRANTED,” (2) “DEFERRED pending supplemental briefing .... ,” (3) “DENIED after complete review of the motion on the merits,” and (4) “DENIED WITHOUT PREJUDICE because Defendant has not exhausted all administrative remedies as required in 18 U.S.C. § 3582(c)(1)(A), nor have 30 days lapsed since receipt of Defendant's request by the warden of Defendant's facility.” The district court checked box (3). … Thompson timely filed a notice of appeal on October 8, 2020. Twelve days later (and nearly a month after its form order), on October 20, 2020, the district court filed a five-page document titled “OPINION SETTING FORTH THE REASONS FOR DENYING DEFENDANT ERIK E. THOMPSON[’S] MOTION FOR COMPASSIONATE RELEASE.” … As a threshold matter, we first address the district court's post-appeal opinion. As we recently held, when considering a very similar procedural posture, district courts are without jurisdiction to file this sort of opinion after a party files a notice of appeal. United States v. Harvey, No. 20-1944, --- F.3d ----, 2021 WL 1661503, at *2 (6th Cir. Apr. 28, 2021). …. In United States v. Kimball, 988 F.3d 945 (6th Cir. 2021) (per curiam), we discussed an order denying compassionate release of nearly identical wording and brevity. We identified certain facts from our decision on Kimball's direct appeal and statements the district court made at his resentencing, such as that “he was the ‘undisputed kingpin and mastermind’ of a ‘massive cocaine-trafficking conspiracy’ ” who had “attempt[ed] to kill witnesses.” Id. at 947. “Based on this record,” we stated, “the district court could reasonably have determined that releasing Kimball now would not serve the statutory sentencing goals.” Id. This case is similar in certain meaningful ways to Kimball. The form order at issue here resembles the order analyzed in Kimball. And like in Kimball, there exist some facts in the record that could have provided a reasonable basis for the district court's ultimate decision to deny Thompson's motion.”

Death Watch: The BOP has identified no new inmate fatalities. The inmate death toll remains at 237. Five of these inmates died while on home confinement. Staff fatalities remain at 4.

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