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December 17, 2021: COMPASSIONATE RELEASE and BOP COVID-19 BLOG



Quick Facts (Full BOP stats can be found here) Currently positive-testing inmates: 286 (down from 321) Currently positive-testing staff: 240 (up from 235) Recovered inmates: 41,773 (up from 41,746) Recovered staff: 8,632 (up from 8,624)


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

Alderson FPC: 59 (up from 56)

Allenwood USP: 51 (unchanged)

Waseca FCI: 34 (down from 76)

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

Carswell FMC: 15 (unchanged)

Rochester FMC: 13 (unchanged)

Terre Haute FCI: 9

System-wide testing results: Presently, BOP has 135,252 federal inmates in BOP-managed institutions and 15,167 in community-based facilities. Today's stats: Completed tests: 127,091 (up from 126,823) Positive tests: 41,660 (down from 41,669)


Total vaccine doses administered: 272,287 (up from 272,073)


Case Note:


In U.S. v. MARIO ALBERTO REYES, 2021 WL 5909849 (W.D.N.C. Dec. 14, 2021) (Mullen, J.), defendant, who would not be a career offender if sentenced today, and whose 2006 sentencing exposure was far in excess of today’s average, is granted him compassionate release, the court explaining: "Because Reyes had previously been convicted in Texas of burglary, arson, and delivery of controlled substances, the probation officer determined that Reyes was a “career offender” under U.S.S.G. § 4B1.1. ECF No. 71 ¶ 24. That determination increased the offense level of Reyes' conspiracy offense from 23 to 34, which catapulted the Guidelines range from 92–115 months, to 262–327 months. … The Court dismissed the § 2255 motion: “Assuming without deciding that the holding in Johnson served to invalidate the residual clause of the career offender provision ... Petitioner would still be entitled to no relief because his controlled substance offense undoubtedly qualifies as a predicate conviction, and his arson and burglary of a habitation convictions each qualify as enumerated felony offenses, thus the residual clause of the Guidelines has no impact on the validity of these convictions.” … In July 2021, Reyes filed a pro se Motion for CompassionateRelease (ECF No. 96). Reyes argued that his age, health conditions, and the COVID-19 pandemic were grounds for modification of his sentence. He also claimed that compassionate release was appropriate because he should not have been sentenced as a career offender. This time, Reyes cited the Supreme Court's holding in Mathis v. United States, 136 S. Ct. 2243 (2016), which clarified how to properly determine whether a prior conviction constituted a “crime of violence” under ACCA. The Court denied his motion[.] … Less than a month after the Court issued its decision, Reyes filed the present motion. The grounds asserted in the motion were essentially the same as the first. However, Reyes now cited a Fifth Circuit case, United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016), in support of his claim that he would not be classified as a career offender if sentenced today. … Reyes' final claim of “extraordinary and compelling reasons” relates to his career offender status. Reyes asserts that he would not be classified as a career offender if sentenced today. He is correct. Reyes' prior Texas convictions for delivery of controlled substances and burglary of a habitation no longer qualify as “controlled substance offense[s]” or “crime[s] of violence” under U.S.S.G. § 4B1.1.See Hinkle, 832 F.3d at 576–77; United States v. Wilson, 622 F. App'x 393, 404–05 (5th Cir. 2015).Here, Reyes was sentenced to 200 months on the conspiracy offense, plus a 60-month mandatory sentence on the§ 924(c)offense. ECF No. 55 at 2. That 260-month sentence was lenient compared to his Guidelines sentence, which called for an aggregate sentence of 322–387 months. However, the length of Reyes' sentence was still “sheer and unusual” in absolute terms. The median sentence for career offenders convicted of murder in 2006 was 265 months.In other words, Reyes' (sharply reduced) sentence for two nonviolent offenses was nearly as harsh as the typical sentence for murder. Reyes' sentence was also far more punitive in 2006 than it would have been in 2021. If Reyes had been sentenced in 2021, the offense level for his conspiracy offense would have been 21, and his criminal history category would have been VI.His Guidelines sentence would have been 120 months. For the§ 924(c)charge, Reyes would have faced a mandatory minimum sentence of 60 months. In all, Reyes would have faced a total Guidelines sentence of 180 months. *5 Based on the severity and disparity of Reyes' sentence, the Court concludes that Reyes has established “extraordinary and compelling reasons” for a sentence reduction. …Reyes has served 193 months of credited time in the BOP—which is more time than he likely would have faced had he been sentenced in 2021. The Court concludes that based on the foregoing analysis, Reyes' sentence should be reduced to time served. Consistent with the original sentence, the Court will also impose a five-year term of supervised release. The Court finds that this sentence is sufficient, but not greater than necessary, to accomplish the sentencing goals advanced by § 3553.”


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) The BOP has identified no additional inmate fatalities. Total inmate fatalities remain at 273. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.



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