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Fast Facts (Full BOP stats can be found here)

Confirmed active cases at 79 BOP facilities and 14 RRCs

Currently positive-testing inmates: 179 (unchanged) Currently positive-testing staff: 183 (up from 174) Recovered inmates currently in the BOP: 47,537 (down from 47,550) Recovered staff: 14,691 (up from 14,683)

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

Dublin FCI: 20 (unchanged)

Phoenix FCI: 14 (unchanged)

Carswell FMC: 13 (unchanged)

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

Central Office HQ: 58 (unchanged)

Pekin FCI: 9 (up from 7)

Brooklyn MDC: 7

System-wide testing results: Presently, BOP has 145,128 federal inmates in BOP-managed institutions and 13,881 in community-based facilities. Today's stats: Completed tests: 128,665 (unchanged) Positive tests: 55,313 (unchanged)

Total vaccine doses administered: 342,237 (unchanged)

Case Note: Four non-retroactive changes in the law deemed extraordinary and compelling...

In U.S. v. JOHN ARTHUR DUVAL, Defendant., No. CR 01-62-BLG-SPW, 2022 WL 17551161 D. Mont. Dec. 9, 2022) (Watters, J.), the court deemed four non-retroactive changes in law to be extraordinary and compelling, explaining: "Four non-retroactive changes in sentencing law are relevant to Duval's case. First, of course, is the anti-stacking amendment. If Duval were charged, convicted, and sentenced today for exactly the same conduct, his mandatory minimum consecutive sentence for two violations of § 924(c) would not be thirty years but ten. See 18 U.S.C. § 924(c)(1)(A)(i), (D)(i). Second, on the drug counts, Counts 1, 2, and 3, one or more qualifying prior felony drug offenses subjected Duval to a mandatory minimum sentence of 10 years rather than five. See 21 U.S.C. § 841(b)(1)(B) & (viii) (eff. Feb. 18, 2000). That provision remains in place today, but the First Step Act altered the criteria a prior offense must meet in order to trigger the higher minimum penalty. The United States charged Duval with three qualifying prior offenses, all apparently involving possession without the element of intent to distribute. See 21 U.S.C. § 802(44) (eff. Feb. 18, 2000); Notice (Doc. 19); Presentence Report ¶¶ 52, 54, 55. Now, however, the prior offense must be a “serious drug felony,” meaning, among other things, it must involve manufacturing, distributing, or possession with intent to distribute—not mere possession. See 21 U.S.C. §§ 802(57), 841(b)(1)(A) & (viii) (eff. Dec. 21, 2018); compare United States v. Rosales, 516 F.3d 749, 758 (9th Cir. 2008); United States v. Rios-Beltran, 361 F.3d 1204, 1209 (9th Cir. 2004). Duval's prior felony drug offenses would not elevate his mandatory minimum sentence today.Third, when Duval was sentenced, the guidelines were mandatory. The presiding judge, United States District Judge Richard F. Cebull, could not depart from the applicable guideline range unless he found an aggravating or mitigating circumstance “of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.” Koon v. United States, 518 U.S. 81, 92–93 (1996) (quoting 18 U.S.C. § 3553(b)). At any sentencing, two issues had to be resolved. The first was the correct calculation of the guideline range. The second was whether any aggravating or mitigating circumstance took the case out of the “heartland” of the guidelines. See Koon, 518 U.S. at 95–96 (quoting and following United States v. Rivera, 994 F.2d 942, 949 (1st Cir. 1993) (Breyer, J.)). At Duval's sentencing, Judge Cebull found no circumstance taking the case out of the heartland. See Statement of Reasons (Doc. 262) at 3. Finally, there certainly was a circumstance not taken into consideration by the Sentencing Commission: the thirty-year mandatory consecutive term imposed under § 924(c). But, at least in the Ninth Circuit, sentencing courts were prohibited from considering such a term when imposing a sentence under the guidelines. The theory was that varying downward on other counts because the court was also imposing a sentence under § 924(c) would, in effect, reduce the § 924(c) sentence below the minimum or make it partially concurrent. Sentencing courts therefore imposed two entirely separate sentences, one under the guidelines and another under § 924(c), viewing each as if the other did not exist. In 2017, the Supreme Court disapproved this approach in telling words. It held that § 3553(a) permits a district court to take account of a mandatory consecutive term under § 924(c) by varying downward on other counts in order to arrive at “a just sentence” on the guidelines counts. See Dean v. United States, 581 U.S. 62, ___, 137 S. Ct. 1170, 1176–77 (2017) (emphasis added). In sum, at his sentencing hearing on October 22, 2002, Duval faced a mandatory minimum sentence of 40 years—ten years on Counts 1, 2, and 3, plus five years consecutive on Count 4, plus 25 years consecutive on Count 5. When determining the sentence on Counts 1, 2, 3, 6, 8, and 9, Judge Cebull was not permitted to consider the thirty-year consecutive sentence on Counts 4 and 5. Duval received a sentence of 570 months, or 471//2 years. Were he sentenced today on the same charges for the same conduct, he would face a mandatory minimum sentence of 15 years—five years on Counts 1, 2, and 3, plus five years consecutive on Count 4, plus five years consecutive on Count 5. He would face an advisory guideline range rather than a mandatory range. And, when determining what sentence was “sufficient, but not greater than necessary” pursuant to 18 U.S.C. § 3553(a), the sentencing judge could consider the mandatory ten-year consecutive sentence on Counts 4 and 5 in deciding whether to impose a sentence greater than 60 months on Counts 1, 2, 3, 6, 8, and 9. Given all these changes, it is highly unlikely that Duval would be sentenced to serve 210 months plus 60 months plus 300 months. Nonretroactive changes in sentencing law create a wide and unwarranted discrepancy between Duval and others who commit the same crimes and have the same records and characteristics. … Congress believes there is something unfair or inapt about imposing dramatically longer sentences on defendants who are convicted of multiple§ 924(c)counts in a single proceeding. It also believes that prior felony convictions for mere possession offenses should not elevate a defendant's mandatory minimum sentence for a federal drug offense. Duval did not benefit from these amendments. The Supreme Court believes sentencing judges must have discretion to depart or vary from the guideline range. Duval did not benefit from its decision. The Supreme Court also believes a sentencing court must be permitted to take a mandatory consecutive sentence into account in fashioning “a just sentence” on counts subject to sentencing under the guidelines and the§ 3553(a)factors. Duval did not benefit from that decision either. When it is so unlikely that a person exactly like Duval would today be sentenced to serve 471//2years in prison, his age and health concerns further magnify the disparity between him and other, similarly situated offenders. Extraordinary and compelling reasons warrant a reassessment of the sentencing factors under18 U.S.C. § 3553(a).See Keller, 2 F.4th at 1284.”

Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) No new deaths within the BOP have been announced, leaving the reported inmate death toll at 309. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.

Job Posting: The Equitable Justice Network, a 501(c)(3) charitable organization, is looking for an executive director. Details here. In short, the Equitable Justice Network (EJN) focuses on essential Criminal Justice Reform efforts in the specific areas of; clemency and compassionate release, humanitarian advocacy efforts (medical advocacy) and legislative advocacy (Federal and State); exit ramps from prison. The Executive Director will have overall strategic and operational responsibility for EJN’s staff, programs, development/fundraising, expansion, and execution of its mission. Any interested applicants can reach out to

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