Fast Facts (Full BOP stats can be found here)
Confirmed active cases at 81 BOP facilities and 11 RRCs
Currently positive-testing inmates: 263 Currently positive-testing staff: 209 Recovered inmates currently in the BOP: 47,242 Recovered staff: 14,733
Institutions with the largest number of currently positive-testing inmates:
Danbury FCI: 60
Pollock USP: 51
Dublin FCI: 19
Institutions with the largest number of currently positive-testing staff:
Central Office HQ: 57
Brooklyn MDC: 11
Pekin FCI: 11
System-wide testing results: Presently, BOP has 145,141 federal inmates in BOP-managed institutions and 13,831 in community-based facilities. Today's stats: Completed tests: 128,667 Positive tests: 55,315
Total vaccine doses administered: 343,752
Case Note: Divided en banc Third Circuit holds that non-retroactive changes in the law not "extraordinary and compelling" ...
In U.S. v. McCall, No. 21-3400, 2022 WL 17843865 (6th Cir. Dec. 22, 2022) (Nalbandian), a sharply divided en banc Sixth Circuit held that non-retroactive changes in the law are not "extraordinary and compelling) and therefore cannot support compassionate release, explaining: "David McCall, a federal prisoner with a long drug-dealing career, pleaded guilty to a conspiracy charge involving heroin possession and distribution in 2015. Five years into his 235-month sentence, McCall moved for compassionate release under 18 U.S.C. § 3582(c)(1). Although he cited several “extraordinary and compelling reasons” justifying a sentence reduction under that statute, the heart of his motion rested on our opinion in Havis. Invoking that opinion, McCall argued that if he were sentenced today, he would receive a shorter sentence than he received in 2015. The district court denied his motion, reasoning that a nonretroactive change in sentencing law could not amount to an “extraordinary and compelling” reason for a sentence reduction. We agree and affirm....
The First Step Act changed compassionate release in two ways. The first change affected the process of filing motions by “add[ing] prisoners to the list of persons who may file ....” See United States v. King, 40 F.4th 594, 596 (7th Cir. 2022). The second change—an unintended consequence of the first—affected substance. Until the Sentencing Commission updates its policy statement to include defendant-filed motions, district courts retain discretion to define “extraordinary and compelling” without reference to the Sentencing Commission's guidance. See Elias, 984 F.3d at 519–20.3
Everyone agrees the sum of these changes enhanced district courts’ discretion to grant compassionate release. The key question is how much. McCall pushes for an approach that would allow a district court to find that any change in federal sentencing law—even one Congress or a court made expressly nonretroactive—can qualify as an extraordinary and compelling reason for a sentence reduction (or a district court may at least consider it in combination with other factors to add up to extraordinary and compelling reasons). The government, on the other hand, advocates for a narrower reading. It contends that a district court cannot consider nonretroactive changes in sentencing law either alone or in combination with other factors to find extraordinary and compelling reasons exist.
The district court sided with the government, and we do too. Consistent with the text of the compassionate-release provision, along with the principles, structure, and history of federal sentencing law, we hold that nonretroactive changes in sentencing law cannot be “extraordinary and compelling reasons” that warrant relief....
Framed against this background, the text of the compassionate-release statute gives way to a basic inference: What is “ordinary” and routine cannot also be extraordinary and compelling. See Wills, 997 F.3d at 688. After all, prospective changes in federal sentencing law are far from an extraordinary event. See United States v. Crandall, 25 F.4th 582, 586 (8th Cir. 2022). And unless Congress expressly says so, those changes do not apply to “defendants already sentenced.” Dorsey, 567 U.S. at 280, 132 S.Ct. 2321. Likewise, new caselaw often gives fresh meaning to statutes or the Sentencing Guidelines. But the Supreme Court has repeatedly reiterated that judicial decisions announcing new rules of criminal procedure ordinarily do not provide retroactive relief on collateral review. See Edwards v. Vannoy, ––– U.S. ––––, 141 S. Ct. 1547, 1555, 209 L.Ed.2d 651 (2021). That new statutes and caselaw apply only to “defendants not yet sentenced” is the expected outcome in our legal system. Dorsey, 567 U.S. at 280, 132 S.Ct. 2321. And what is expected cannot be extraordinary.
What's more, we find little compelling about the duration of a lawfully imposed sentence. This is because such a sentence represents “the exact penalt[y] that Congress prescribed and that a district court imposed for [a] particular violation[ ] of a statute.” United States v. Thacker, 4 F.4th 569, 574 (7th Cir. 2021), cert. denied, ––– U.S. ––––, 142 S. Ct. 1363, 212 L.Ed.2d 323 (2022). That a district court might impose a different sentence than one of its predecessors hardly seems the kind of “forceful, impelling, [or] driving” reason that could justify compassionate release. See Compelling, Webster's Third New International Dictionary 463 (1971); see also United States v. Andrews, 12 F.4th 255, 260–61 (3d Cir. 2021); United States v. Maumau, 993 F.3d 821, 838 (10th Cir. 2021) (Tymkovich, C.J., concurring) (“[T]he imposition of a sentence that was not only permissible but statutorily required at the time is neither an extraordinary nor a compelling reason to now reduce that same sentence.”).
Viewed in this light, the phrase “extraordinary and compelling reasons” comes into sharper focus. What is ordinary—the nonretroactivity of judicial precedent announcing a new rule of criminal procedure like Havis—is not extraordinary. And what is routine—a criminal defendant like McCall serving the duration of a lawfully imposed sentence—is not compelling.
The structure of federal sentencing law reinforces our conclusion. Viewed as a whole, that body of law makes one thing clear: When Congress wants a change in sentencing law to have retroactive effect, it explicitly says so. To see this reality at work, we need look no further than the Sentencing Reform Act of 1984 and the First Step Act of 2018....
McCall cannot avoid these restrictions on “post-conviction relief” by “resorting to a request for compassionate release instead.” Crandall, 25 F.4th at 586. We assume Congress knew of its “specific statutory scheme authorizing post-conviction relief” when it adopted the compassionate-release statute in 1984 and amended it in 2018. Thacker, 4 F.4th at 574. And we likewise “assume” Congress was “aware of relevant judicial precedent” limiting the retroactive application of new rules of criminal procedure when it set the extraordinary and compelling reasons threshold. Guerrero-Lasprilla v. Barr, ––– U.S. ––––, 140 S. Ct. 1062, 1072, 206 L.Ed.2d 271 (2020) (quoting Merck & Co. v. Reynolds, 559 U.S. 633, 648, 130 S.Ct. 1784, 176 L.Ed.2d 582 (2010)). So if Congress intended the compassionate-release statute to act as an exception to this post-conviction framework, “it would have made ‘that intent specific.’ ” McKinnie, 24 F.4th at 588 (quoting Hunter, 12 F.4th at 565); see also Banister v. Davis, ––– U.S. ––––, 140 S. Ct. 1698, 1707, 207 L.Ed.2d 58 (2020). Yet we can find no such intent in the phrase “extraordinary and compelling reasons.” This phrase “does not remotely suggest that Congress intended to effect the monumental change of giving district courts the discretion to treat non-retroactive precedent as a basis to alter a final judgment (and release a prisoner).” Hunter, 12 F.4th at 566..
What text and structure show, history confirms. Since its enactment, compassionate release has never been understood to cover nonretroactive changes in sentencing law....
This conclusion brings us to McCall's appeal. He argues that our decision in Havis, his risk of contracting COVID-19, and his rehabilitative efforts supply “extraordinary and compelling” reasons to reduce his sentence. We disagree. Havis, a nonretroactive judicial decision announcing a new rule of criminal procedure, cannot serve as a basis for relief. Nor, with “vaccinations [widely] available to federal prisoners,” can McCall's claims about the dangers of COVID-19. McKinnie, 24 F.4th at 588. That leaves rehabilitation, which cannot by itself justify a sentence reduction. See 28 U.S.C. 994(t). Because none of McCall's reasons meets the “extraordinary and compelling” threshold for relief, the district court did not err when it denied his petition for compassionate release.
McCall sees it differently. He raises a host of arguments, invoking new Supreme Court precedent, the text of the statute, legislative history, and notions of disparity. None succeeds....
Our conclusion, on the other hand, holds true in the singular and in the aggregate. Nonretroactive legal developments, considered alone or together with other factors, cannot amount to an “extraordinary and compelling reason” for a sentence reduction. McCall's case shows why. He contends that, even if Havis does not amount to an extraordinary and compelling reason on its own, it meets the standard when combined with COVID-19 and his rehabilitative efforts. But this line of argument falls flat. “[A]dding a legally impermissible ground to [other] insufficient factual considerations” cannot “entitle a defendant to a sentence reduction.” Jarvis, 999 F.3d at 444; see also McKinnie, 24 F.4th at 588 (“[W]hy would combining unrelated factors, each individually insufficient to justify a sentence reduction, amount to more than the sum of their individual parts?”). Nonretroactive legal developments do not factor into the extraordinary and compelling analysis. Full stop.8"
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 aviva@aleph-institute.org.