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December 2, 2021: COMPASSIONATE RELEASE and BOP COVID-19 BLOG


Quick Facts (Full BOP stats can be found here) Currently positive-testing inmates: 171 (up from 165) Currently positive-testing staff: 214 (down from 231) Recovered inmates: 41,966 (down from 42,054) Recovered staff: 8,542 (up from 8,516)


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

Waseca FCI: 59 (up from 54)

McKean FCI: 23 (unchanged)

Stafford FCI: 11 (unchanged)

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

Carswell FMC: 13 (unchanged)

McKean FCI: 13 (unchanged)

Rochester FMC: 11

System-wide testing results: Presently, BOP has 134,447 federal inmates in BOP-managed institutions and 14,882 in community-based facilities. Today's stats: Completed tests: 126,110 (down from 126,136) Positive tests: 41,736 (down from 41,816)


Total vaccine doses administered: 260,263 (258,872)


Case Note: As Roy Cohn said, Don't tell me what the law is, tell me who the judge is...


in the two cases below, on similar, though not identical, facts, one judge accepted medical records that defendant was dying of cancer and released him and the other called the defendant's medical records "sketchy" and did not, also citing §3553(a) factors. Deshawn Livingston, therefore, likely will die at home whereas Asa Jefferson Sanford Jr will die in prison:

In U.S. v. DESHAWN LIVINGSTON, 2021 WL 5579680 (M.D. Pa. Nov. 30, 2021) (Conner, J.), the court found that defendant's lung cancer diagnosis with 12 month life expectancy is extraordinary and compelling, explaining: "Defendant DeShawn Livingston, through appointed counsel, moves for compassionate release and reduction of sentence under 18 U.S.C. § 3582(c)(1)(A)(i). Livingston asks the court to reduce his sentence to a term of time served in light of his terminal lung cancer diagnosis. For the reasons that follow, the court will grant Livingston's motion. … On January 13, 2011, this court sentenced Livingston to an aggregate term of 461 months’ imprisonment. Livingston's sentence was driven in large part by a 7-year statutory mandatory minimum term on the first Section 924(c) charge (Count 3), and a 25-year “stacked” statutory mandatory minimum term on the subsequent Section 924(c) charge (Count 5), both of which were required by statute to be served consecutively to each other and to all other counts. … In February of this year, Livingston was diagnosed with Stage IV non-small cell lung cancer and given a prognosis of roughly 12 to 18 months to live. … The BOP denied Livingston's request six days later, finding—seemingly in contravention of the available medical records—that Livingston's “life expectancy is considered indeterminate” and he does not have “end-of-life indicators that would establish a terminal prognosis.” … Livingston plainly qualifies as an individual suffering from “terminal illness” as defined by the Guidelines and as contemplated by Congress. … Livingston's cancer has outpaced that more favorable possibility, progressing (i.e., metastasizing) at such an unexpectedly fast rate that Dr. Carden estimates Livingston's life expectancy from the date of diagnosis to be between 12 and 21 months. (See id. at 10:2-15). Accounting for the nine-month lapse between the date of diagnosis and today's date, Livingston's life expectancy is now somewhere between 3 and 12 months. We have little difficulty finding under these circumstances that Livingston has established extraordinary and compelling reasons for compassionate release. … There is no denying Livingston's crimes were serious. Livingston was involved in two violent armed robberies which were traumatizing to the victims. And as noted at the time of sentencing, Livingston was not a first-time offender: Livingston's criminal record began in his early teens, and he has prior convictions for offenses of escalating seriousness, including a federal firearm conviction for which he was sentenced by the late Judge Caldwell to 60 months’ imprisonment. .. To date, Livingston has served 13 and a half years for the crimes adjudicated in this case. That term is substantial in its own right, but more still when measured against Livingston's life expectancy: assuming Livingston survives 12 more months, which is the high end of his treating oncologist's estimate, he will have spent roughly 30 percent of his life in prison for these offenses.”


In U.S. v. ASA JEFFERSON SANFORD, JR., 2021 WL 5629226 (S.D. Miss. Nov. 30, 2021) (Starret, J.), the court found the BOP medical records to be “sketchy”, therefore concluding that defendant's lung cancer diagnosis and 18-month life expectancy is not extraordinary and compelling, explaining: "On November 20, 2018, the Court sentenced him to 120 months of imprisonment followed by three years of supervised release on one count, and 20 months of imprisonment on the other count, with the sentences to run concurrently. … Defendant argues that he should be granted compassionate release because prison creates an optimal environment for transmission of COVID-19, and that he is unable to avoid exposure to it. He contends that his age and health conditions put him at substantial risk of illness or death. Specifically, he alleges that he suffers from lung cancer, and that he has been given only six months to live if he does not receive treatment. … Defendant's medical records provide that on October 13, 2021, a “chest mass” was diagnosed as “probably lung cancer” and “lymphoma.” Exhibit 4 [35-4], at 3. The medical provider described the cancer as “aggressive,” and noted that it had “rapidly eroded through ... main bronchus.” Id. The initial prognosis was “much less than 18 months based on aggressiveness of tumor to date.” Id. A subsequent biopsy confirmed the presence of “small cell carcinoma.” … Although Defendant was only convicted on the instant firearm charges, his Presentence Investigation Report describes other relevant criminal conduct. Upon arrest, officers found several bags of white powder, some crystal rock-like substance, needles, a digital scale, $4,455.00 in cash, and narcotics pills. … Defendant admitted that he obtained many of the firearms in exchange for drugs, and that he sometimes accepted firearms into pawn from people who needed money. … Even if the Court agreed that Defendant's lung cancer constituted an “extraordinary and compelling reason” to grant a sentence reduction, 18 U.S.C. § 3582(c)(1)(A), the Court finds that Defendant has not sufficiently demonstrated that he would not constitute a danger to the community if released. Moreover, Defendant has provided only sketchy information regarding his cancer prognosis. The record contains no information regarding his treatment options, and while he says in briefing he has less than six months to live, the medical records are less specific. Before a biopsy was even performed, a medical provider said he had less than 18 months, based on nothing but a chest x-ray. The record does not contain a more recent prognosis after the biopsy.”


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) The BOP has identified no new COVID-19 fatalities. Total inmate COVID-related remain at 268. Ten of the inmate fatalities died while on home confinement. Staff deaths remain at 7.



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