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December 30, 2022: COMPASSIONATE RELEASE, COVID-19, and BOP BLOG


Fast Facts (Full BOP stats can be found here)


Confirmed active cases at 91 BOP facilities and 9 RRCs

Currently positive-testing inmates: 225 (down from 249) Currently positive-testing staff: 213 (up from 206) Recovered inmates currently in the BOP: 47,223 (up from 47,188) Recovered staff: 14,754 (up from 14,747)


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

Danbury FCI: 28 (down from 48)

Pollock USP: 19 (down from 50)

Lexington FMC: 11 (unchanged)


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

Central Office HQ: 57 (unchanged)

Brooklyn MDC: 12 (up from 11)

Pekin FCI: 11 (unchanged)


System-wide testing results: Presently, BOP has 145,400 federal inmates in BOP-managed institutions and 13,819 in community-based facilities. Today's stats: Completed tests: 128,668 (unchanged) Positive tests: 55,316 (unchanged)


Total vaccine doses administered: 344,194 (up from 343,883)


Case Note: Non-retroactive change in man-min for repeat offenders did not support relief because defendant's sentence had not been influenced by the man-min...


In U.S. v. GLAFIRO GONZALEZ, Defendant., No. 1:03-CR-05165-JLT, 2022 WL 17978498 (E.D. Cal. Dec. 28, 2022) (Thurston, J.), the court found that although the non-retroactive FSA’s amendment to § 851 would have resulted in a 15 year instead of 20 year mandatory minimum, the court had departed enough at sentencing such that the change in law is irrelevant and therefore did not not support relief, explaining: "Relevant to Gonzalez's case, the FSA reduced the enhanced mandatory minimum for one prior felony drug conviction from 20 years to 15 years and changed the type of drug conviction that triggers the enhancement. Prior to 2018, anyone who had a prior “felony drug offense,” such as Gonzalez's 1999 conviction for transportation of a controlled substance, was subject to an enhanced mandatory minimum for a subsequent violation of 21 U.S.C. § 841(b)(1)(A). See 21 U.S.C. § 802(44). Defendants sentenced after the First Step Act, however, are not subject to an enhanced mandatory minimum sentence unless they have prior convictions for one or more “serious drug felon[ies],” as defined in 21 U.S.C. § 802(57) and 18 U.S.C. § 924(e)(2). See 21 U.S.C. § 841(b)(1)(A). Gonzalez argues that his 1999 felony is not “serious” because the maximum punishment for it is between 4 and 9 years—less than the 10 years that § 924(e)(2) requires. (Doc. 665 at 15.) Without the prior conviction qualifying as a “serious” drug offense, Gonzalez argues that he would not be subject to a 20-year mandatory minimum for the charges in this case. (Id. at 15–16.) The Court need not address the substance of whether Gonzalez's prior conviction would subject him to a mandatory minimum if he were sentenced today. This is because Gonzalez's Guidelines range was—and remains—far above the mandatory minimum of which he complains. As stated previously, the sentencing court departed downward significantly to sentence Gonzalez to five years fewer than the Guidelines initially suggested. And even with this reduction, Gonzalez's sentence amounts to five years more than the mandatory minimum applicable to his conduct at the time of sentencing.Though Gonzalez argues that the FSA created a “sentencing disparity” which now presents extraordinary and compelling reasons for relief, he has not actually presented facts suggesting that his Guidelines or ultimate sentence would or should be different if he were resentenced under the FSA's changes. See United States v. Gomez, No. CR 05-00300 JMS (01), 2021 WL 1240621, at *6 (D. Haw. Apr. 2, 2021), aff'd, No. 21-10113, 2022 WL 543080 (9th Cir. Feb. 23, 2022) (a reduction in the mandatory minimum may be irrelevant where the imposed sentence remains close to the applicable Guidelines range). It is insufficient for Gonzalez to speculate that the mandatory minimum applicable in 2005 was a “significant factor” in his ultimate sentence while ignoring the other significant factors contributing to his lengthy sentence, including: his other prior convictions, his role in the conspiracy, and the amount of methamphetamine at issue in this case.”


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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