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December 8, 2021: COMPASSIONATE RELEASE and BOP COVID-19 BLOG




Quick Facts (Full BOP stats can be found here) Currently positive-testing inmates: 278 (up from 254) Currently positive-testing staff: 229 (up from 220) Recovered inmates: 41,875 (down from 41,921) Recovered staff: 8,572 (up from 8,569)


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

Waseca FCI: 132 (up from 125)

Pollock FCI: 28 (unchanged)

Allenwood USP: 14

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

Carswell FMC: 14 (unchanged)

McKean FCI: 13 (unchanged)

Rochester FMC: 11 (up from 9)

System-wide testing results: Presently, BOP has 134,425 federal inmates in BOP-managed institutions and 14,928 in community-based facilities. Today's stats: Completed tests: 126,272 (up from 126,228) Positive tests: 41,780 (up from 41,777)


Total vaccine doses administered: 264,687 (up from 263,492)


Case Note: Defendant in cancer remission after 40 rounds of chemo and other ailments denied release because he can exercise and ambulate so can return to a life of crime...


In U.S. v. ROBERT LINO, Defendant., No. 02-CR-307-8 (NGG), 2021 WL 5759699 (E.D.N.Y. Dec. 3, 2021) (Garaufis, J.), the court denied compassionate release to defendant who, after 40 rounds of chemo for cancer, was in remission, and although he’s suffering from numerous ailments as a result, he can exercise and move around so he could return to crime: "Here, Lino was diagnosed with stage-4 nasopharyngeal cancer in May 2019. And after 40 rounds of chemotherapy, which ended in October 2019, his cancer went into remission. Five months later, he had a thyroid lobectomy to remove his right thyroid nodule. Though his cancer remains in remission, Lino suffers from several health issues caused by his chemotherapy. (Mot. at 4-5.) In particular, he notes that his salivary glands produce little to no saliva, making chewing and swallowing his food a daily challenge. (Id. at 5.) Current CDC guidance states that, “based on available studies, having a history of cancer may increase your risk” of severe illness from COVID-19. Standing alone, though, Lino's history of cancer, combined with the doubtless uncomfortable aftereffects of chemotherapy, do not rise to an “extraordinary and compelling” reason to warrant a reduction in sentence in this case. See United States v. Parrello, No. 16-cr-522 (RJS), 2021 WL 242426, at *2-3 (S.D.N.Y. Jan. 25, 2021). He is 55 years old, outside of the additional age-based risk category for complications from coronavirus; he is vaccinated against COVID-19; his medical records show that he has received adequate medical care and that he performs all day-to-day activities independently. Compassionate release motions often place the judiciary in the somewhat uncomfortable position of scrutinizing medical records, particularly in the context of COVID-19. Lino's records over a two-year period run over 650 pages. But Lino's records also tell a plainly different story than the one described in his motion. In a February 2020 visit (after his chemotherapy but before his thyroid lobectomy), the anesthesiologist's record notes that he runs for about 30-35 minutes, three times a week. (Medical Records II (Dkt. 1119-5) at ECF p. 322.) In July, November, and December 2020, as well as February 2021, his record indicates that he tolerates eating and swallowing some solid foods. (Medical Records I (Dkt. 1119-4) at ECF pp. 126, 133, 140, 145.) In June 2020, his record notes that he is “able to ambulate as usual [and] complete all [activities of daily living] independently.” (Id. at ECF p. 51.) In October 2020, he was prescribed medication to treat mouth dryness, which, as of May 2021, his record describes as “stable.” (Id. at ECF pp. 35, 104.) In February 2021, after his Reduction in Sentence request, a social worker reported that he “does not have a debilitating medical condition and is able to complete activities of daily living independently.” (Id. at ECF p. 25.) Finally, his records frequently note that he expresses no new pain. (E.g., id. at ECF pp. 5, 23, 29, 33, 37, 47, 49, 122.) Lino has the burden to show extraordinary and compelling circumstances to demonstrate his eligibility for compassionate release. See Antney, 2021 WL 4502478, at *1-2 (citing Butler, 970 F.2d at 1026). But he provides no evidence to contradict this record of independent daily activity. Nor does he show that his circumstances render him incapable of returning to organized crime activities. Accordingly, because his current circumstances fail to show extraordinary and compelling reasons to warrant release, Lino's compassionate release motion is denied.”

Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) The BOP has identified no new COVID-19 fatalities. Inmate fatalities remains at 271. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.


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