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December 28, 2022: COMPASSIONATE RELEASE, COVID-19, and BOP BLOG


Fast Facts (Full BOP stats can be found here)


Confirmed active cases at 85 BOP facilities and 8 RRCs

Currently positive-testing inmates: 250 (down from 263) Currently positive-testing staff: 204 (down from 209) Recovered inmates currently in the BOP: 47,221 (down from 47,242) Recovered staff: 14,746 (up from 14,733)


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

Danbury FCI: 54 (down from 60)

Pollock USP: 51 (unchanged)

Lexington FMC: 12


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

Central Office HQ: 57 (unchanged)

Brooklyn MDC: 11 (unchanged)

Pekin FCI: 11 (unchanged)


System-wide testing results: Presently, BOP has 145,159 federal inmates in BOP-managed institutions and 13,793 in community-based facilities. Today's stats: Completed tests: 128,668 (up from 128,667) Positive tests: 55,316 (up from 55,315)


Total vaccine doses administered: 343,770 (up from 343,752)


Case Note: COVID conditions, poor medical treatment, rehab combine to earn defendant 30-month sentence reduction...


In U.S. v. JAIME LONDONO, Defendant, No. 05-CR-495 (JGK), 2022 WL 17905065 (S.D.N.Y. Dec. 23, 2022) (Koeltl), the court granted a thirty-month sentencing reduction to defendant incarcerated since 2005, based upon a combination of circumstances, explaining: "On December 20, 2006, the defendant pleaded guilty to Count One of an Indictment that charged him with conspiring in violation of 21 U.S.C. § 846 to distribute and to possess with intent to distribute one kilogram and more of heroin in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A). ECF Nos. 42, 80, 168.... The Probation Office recommended a sentence of 365 months’ imprisonment. After taking into account mitigating factors, the Court imposed a sentence of principally 292 months’ imprisonment, followed by five years of supervised release. ECF No. 168, at 2-3....


The Court is also prepared to accept that the combination of conditions in the defendant's case are sufficient to constitute “extraordinary and compelling reasons” for a sentence reduction. “Where no single factor alone may justify release, the total circumstances may still rise to the level of extraordinary and compelling reasons for release.” United States v. Resto, No. 08-cr-757, 2021 WL 1109467, at *2 (S.D.N.Y. Mar. 23, 2021). In this case, it is unquestionably true that the defendant has endured harsh conditions of confinement that were not contemplated at the time that the Court imposed the sentence. These included restrictive conditions imposed by prison authorities to cope with Covid-19, including lockdowns together with the lack of exercise and programs. See, e.g., United States v. Tellier, No. 92-cr-869, 2022 WL 1468381, at *4 (S.D.N.Y. May 10, 2022) (“Although the harsh conditions of confinement do not, on their own, constitute extraordinary and compelling reasons, courts have recognized that the pandemic has made incarceration harsher and more punitive than would otherwise have been the case.”). The defendant also has had a series of health conditions, including one three-day stay at a hospital, and some of these conditions have not received prompt attention from the Bureau of Prisons. Because the defendant has been housed at facilities outside the range that his family could reasonably travel to visit him frequently, his family contact during his period of incarceration has also been severely limited. Finally, because the defendant is not a citizen, he has been unable to make use of various release options.


The defendant also presents a compelling story of rehabilitation. “While the Court of Appeals has stressed that rehabilitation cannot be the sole basis for a reduced sentence, the defendant's rehabilitation can be taken into account along with other factors in determining to reduce the defendant's sentence.” United States v. Brunson, No. 06-cr-143, 2020 U.S. Dist. LEXIS 242750, at *8 (S.D.N.Y. Dec. 23, 2020); see also Tellier, 2022 WL 1468381, at *3 (“[Rehabilitation] is a factor that district courts may consider in deciding whether to reduce a sentence.”). The defendant has had only two infractions during his seventeen years of incarceration, and the last such infraction occurred more than eleven years ago. After that infraction, the defendant has incurred no infractions and has taken numerous courses at his various facilities and been employed at various productive jobs.


In sum, while none of the defendant's conditions may be sufficient individually to constitute a compelling and extraordinary reason for a reduction of sentence, taken together they are sufficient to demonstrate an extraordinary and compelling reason for a reduction. See, e.g., id. (“Defendant's rehabilitation, severe prison conditions and duration of his sentence already served together satisfy the extraordinary and compelling standard.”); Resto, 2021 WL 1109467, at *2-3 (finding that the defendant demonstrated extraordinary and compelling reasons based on his health conditions, “significant strides” towards rehabilitation, the “proliferation of COVID-19” at his prison, and the fact that he had completed more than 92% of his sentence); United States v. Vargas, 502 F. Supp. 3d 820, 824-30 (S.D.N.Y. 2020) (finding that, in combination, the defendant's rehabilitation, harsh sentence, medical issues, the pandemic, and intention to care for his mother were extraordinary and compelling reasons).


The consideration of the section 3553(a) factors indicates that some reduction in the defendant's sentence is appropriate, although a reduction to time served would not be faithful to a careful consideration of the factors.2 The Court carefully balanced the Section 3553(a) factors at the time of sentencing. The defendant conspired to distribute a huge amount of heroin. That drug has devastating consequences for its victims. The defendant was a leader of the conspiracy and had previously been convicted of a serious drug offense and returned to the United States illegally and committed an even more serious drug offense. At the time of sentencing, the Court correctly determined that the sentence was sufficient but no greater than necessary to reflect the seriousness of the offense, to promote respect for the law, to provide just punishment, and to afford adequate deterrence. Those goals remain true today, although the history of the defendant's incarceration justifies some moderation. It is also true that it is not necessary at this point to protect the public from the defendant because he has agreed to stipulate to an order of removal and waiver of his rights to resist deportation. See Def.’s Reply, ECF No. 277, at 19; see also United States v. Valencia-Lopez, No. 05-cr-841, 2022 WL 198604, at *3-4 (E.D.N.Y. Jan. 21, 2022) (granting compassionate release to a defendant who demonstrated extraordinary and compelling circumstances warranting early release and who stipulated that he would voluntarily surrender to immigration authorities on his release from prison).


Balancing all of these considerations, the Court will reduce the defendant's sentence of imprisonment by 30 months to 262 months. In calculating the defendant's release date, the Bureau of Prisons should credit any appropriate credits including good time credits for the defendant. The defendant's release is also conditioned on his proffered stipulation to an order of removal and waiver of his rights to resist deportation."


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.

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