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December 16, 2021: COMPASSIONATE RELEASE and BOP COVID-19 BLOG


Quick Facts (Full BOP stats can be found here) Currently positive-testing inmates: 321 (up from 241) Currently positive-testing staff: 235 (up from 229) Recovered inmates: 41,746 (down from 41,864) Recovered staff: 8,624 (up from 8,612)


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

Waseca FCI: 76 (up from 65)

Alderson FPC: 56 (up from 37)

Allenwood USP: 51

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

Carswell FMC: 15 (unchanged)

Rochester FMC: 13 (up from 12)

La Tuna FCI: 8 (unchanged)

System-wide testing results: Presently, BOP has 135,033 federal inmates in BOP-managed institutions and 15,069 in community-based facilities. Today's stats: Completed tests: 126,863 (up from 126,775) Positive tests: 41,669 (down from 41,706)


Total vaccine doses administered: 272,073 (up from 269,778)


Case Note: A circumstance may be "extraordinary" but not "compelling"...


In U.S. v. Canales-Ramos, 2021 WL 5832291 (1st Cir. Dec. 9, 2021) (published) (Selya, J.), the First Circuit held that although a legal error can be “extraordinary," it nonetheless may not be “compelling,” explaining: "We turn next to the defendant's claim that a putative sentencing error should tip the balance toward finding an extraordinary and compelling reason for compassionate release. This claim of error has its genesis in United States v. Almonte-Reyes, which was decided several years after the defendant's revocation sentence was imposed. There, we interpreted 18 U.S.C. § 3584(a) and determined that a federal sentencing court lacks the authority to direct that a sentence run consecutively to a federal sentence yet to be imposed. The defendant posits that if the D.P.R. court had the benefit of Almonte-Reyes, it would not have run (and could not lawfully have run) the revocation sentence consecutive to the not-yet-imposed D.V.I. sentence. Building on this foundation, the defendant further posits that if the D.V.I. court had been writing on a clean slate — unconstrained by the D.P.R. court's declaration that the revocation sentence was to run consecutively — it would have imposed its sentence to run concurrently with the D.P.R. sentence.It was comfortably within the district court's discretion to conclude that the putative sentencing error was insufficient to warrant compassionate release. Though perhaps extraordinary, that putative sentencing error did not — in the circumstances of this case — afford a compelling reason to reduce the defendant's sentence. A close look at the defendant's situation leaves no doubt that his proffered reason cannot be classified as “compelling.” He has provided no evidence of any disparity between his aggregate sentence and the aggregate sentence that would have resulted had both sentences been imposed after Almonte-Reyes. … The defendant's suggestion is woven entirely from gossamer strands of speculation and surmise. He gave the court below no basis for concluding that, had the D.P.R. court not run the revocation sentence consecutive to the not-yet-imposed D.V.I. sentence, the D.V.I. court would have proceeded to impose a fully concurrent sentence. The D.V.I. judgment did not mention the revocation sentence, and the default rule is that those sentences would run consecutively. … The defendant counters that the putative Almonte-Reyes error is both extraordinary and compelling, asserting that it was a non-retroactive decision that could not have been the basis for any timely post-conviction challenge. In mounting this assertion, he draws on a handful of decisions in which courts have acknowledged that claims involving non-retroactive changes in law affecting sentencing exposure may constitute an extraordinary and compelling reason sufficient to justify compassionate release. Even if we accept, for argument's sake, the logic of the decisions that he embraces, those cases do not go so far as to hold that such a change in the law, without more, may comprise an extraordinary and compelling reason sufficient to warrant compassionate release. Rather, they suggest that the changed legal landscape must be considered in view of a defendant's particular circumstances. … As we previously have stated, the circumstances the defendant presented were insufficient to make his claim compelling.”



Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) The BOP has identified an additional inmate fatality, Rowland Sudbeck, 64, of FMC Fort Worth, who died December 13, 2021, bringing the total inmate fatalities to 273. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.






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