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December 21, 2021: COMPASSIONATE RELEASE and BOP COVID-19 BLOG


Quick Facts (Full BOP stats can be found here) Currently positive-testing inmates: 367 (up from 280) Currently positive-testing staff: 245 (up from 243) Recovered inmates: 41,791 (up from 41,779) Recovered staff: 8,678 (up from 8,643)


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

Alderson FPC: 94 (up from 69)

Allenwood USP: 61 (up from 40)

Waseca FCI: 23 (down from 30)

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

Carswell FMC: 15 (unchanged)

La Tuna FCI: 8 (unchanged)

Terre Haute FCI: 7

System-wide testing results: Presently, BOP has 135,446 federal inmates in BOP-managed institutions and 15,001 in community-based facilities. Today's stats: Completed tests: 127,423 (up from 127,380) Positive tests: 41,695 (up from 41,671)


Total vaccine doses administered: 274,241 (up from 272,729)


Case Note: Non-retroactive changes in circuit precedent, as opposed to changes in the FSA or guidelines, can be extraordinary and compelling when combined with other circumstances,


In U.S. v. McCall, No. 21-3400, 2021 WL 5984403 (6th Cir. Dec. 17, 2021) (published) (Moore, J.), another Sixth Circuit panel weighed on in whether non-retroactive legal changes can be extraordinary and compelling, finding non-retroactive changes in circuit precedent, as opposed to changes in the FSA or guidelines, can be extraordinary and compelling when combined with other circumstances, explaining: "He cited three “extraordinary and compelling circumstances” warranting his release: the COVID-19 pandemic, his rehabilitation efforts, and the fact that, under this court's decision in United States v. Havis, he would have received a much shorter sentence. The district court acted as if it could not consider these factors, either alone or in tandem. Because our binding precedent says otherwise, we REVERSE the district court's judgment and REMAND for further proceedings consistent with this opinion. … We have repeatedly discussed over the past two years what constitutes extraordinary and compelling reasons warranting release. In United States v. Tomes and United States v. Wills, we held that due to the First Step Act's nonretroactivity provisions, an incarcerated person could not show that extraordinary and compelling circumstances warranted their release based solely on the disparity between the sentence they received and the sentence they would have received if they were sentenced after the First Step Act. In United States v. Owens, we held that “in making an individualized determination about whether extraordinary and compelling reasons merit compassionate release, a district court may include, along with other factors, the disparity between a defendant's actual sentence and the sentence that he would receive if the First Step Act applied.” … One month later, a divided panel in United States v. Jarvis rejected Owens. Jarvis, 999 F.3d 442, 445 (6th Cir. 2021). Jarvis moved for compassionate release, claiming extraordinary and compelling reasons to grant him relief on the basis of the First Step Act's nonretroactive sentencing changes, COVID-19, his high blood pressure, and his rehabilitative efforts. Id. at 444. The court in Jarvis refused to consider the nonretroactive sentencing amendments. … Another panel then decidedUnited States v. Hunter, which again claimed thatOwens is not controlling authority. 12 F.4th 555, 564 n.4 (6th Cir. 2021).Hunter built upon Jarvisin one way that is relevant here: Jarvis had said that nonretroactive amendments to the First Step Act may not be considered as extraordinary and compelling explanations for a sentence reduction, 999 F.3d at 445, and Hunter said that nonretroactive changes in the law based on the decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), cannot form an extraordinary or compelling explanation for a sentence reduction, either alone or together with other factors.Hunter, 12 F.4th at 564. We now proceed to the merits of McCall's claim that the district court erred by failing to review his asserted extraordinary and compelling circumstances. McCall raised three extraordinary and compelling circumstances: the presence of COVID-19 in prison, sentencing disparities based on our decision in Havis, and his rehabilitation efforts. The district court abused its discretion by not considering the disparity in McCall's sentence post-Havis along with his efforts at rehabilitation and the presence of COVID-19.Jones, 980 F.3d at 1112 (a court abuses its discretion when it “interprets the law to bar it from granting a reduction when, in fact, it has discretion to do so.” (quoting Keefer, 832 F. App'x at 363)). Under Owens, the court could have considered McCall's three factors “in combination” to see if they formed an extraordinary and compelling reason for compassionate release. 996 F.3d at 764. Owens was the first in-circuit case to address the issue of a nonretroactive sentence as one of several factors creating an extraordinary and compelling reason for compassionate release. Jarvis, by contravening Owens, created an intra-circuit split. Because Owens was published before Jarvis, Owens “remains controlling authority” that binds future panels. Salmi v. Sec'y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985). Faced with the conflict between Owens and Jarvis, courts “must follow the first one[.]” Jarvis, 999 F.3d at 445–46. Here, that is Owens.The government offers no analysis concerning whether McCall's earlier convictions still qualify as career-offender predicate offenses post-Havis.Under our precedents, a court may consider a nonretroactive change in the law as one of several factors forming extraordinary and compelling circumstances qualifying for sentence reduction under 18U.S.C. §3582(c)(1)(A). We REVERSE the judgment of the district court and REMAND for proceedings consistent with this opinion.”


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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