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Fast Facts (Full BOP stats can be found here)

Confirmed active cases at 76 BOP facilities and 12 RRCs

Currently positive-testing inmates: 92 (down from 101) Currently positive-testing staff: 126 (down from 129) Recovered inmates currently in the BOP: 46,488 (down from 46,533) Recovered staff: 15,018 (up from 15,001)

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

Houston FDC: 9 (down from 10)

Butner Medium I FCI: 6 (down from 7)

Ashland FCI: 5 (unchanged)

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

Grand Prairie: 14 (unchanged)

Three Rivers FCI: 7 (unchanged)

Butner Medium 1 FCI: 6

System-wide testing results: Presently, BOP has 145,725 federal inmates in BOP-managed institutions and 12,809 in community-based facilities. Today's stats: Completed tests: 128,643 (unchanged) Positive tests: 55,291 (unchanged)

Total vaccine doses administered: 346,846 (up from 346,745)

Case Note: Non-retroactive § 851 amendments caused five-year sentencing disparity, justifying five-year reduction of defendant's 25-year sentence...

In U.S. v. MOISES MOREJON, Defendant-Petitioner, No. 5:09-CR-00032, 2023 WL 1113150c(W.D. Va. Jan. 30, 2023) (Urbanski, CJ), the court found that the non-retroactivity of § 851 enhancement and resulting 5 year sentence disparity is extraordinary and compelling, and shaves five years off defendant's 25-year sentence, explaining: "After passage of the First Step Act, if a person violates the statute “after a prior conviction for a serious drug felony or serious violent felony has become final, such person shall be sentenced to a term of imprisonment of not less than 15 years ....” 21 U.S.C. § 841(b)(1)(A) (2018). Thus, the First Step Act reduced the mandatory minimum sentence from 20 to 15 years. The First Step Act also changed the triggering predicate crime from a “felony drug offense” to a “serious drug felony.” The term “felony drug offense” is defined as “an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct related to narcotic drugs ....” 21 U.S.C. § 802(44). The term “serious drug felony” is defined as an offense described in 18 U.S.C. 924(e)(2) for which the offender served a term of imprisonment of more than 12 months. 21 U.S.C. § 802(57). … Morejon did not serve 12 months on the underlying drug charge that was cited as the predicate offense for the § 851 enhancement. Rather, he served 364 days. PSR, ECF No. 71 ¶ 29. Although there is only a one-day difference between the sentence Morejon served and the “more than twelve month” sentence contemplated by 21 U.S.C. § 802(57), Congress decided that service of a one-year term was the cut-off for a predicate sentence under § 841(b)(1)(A). Because Morejon served only 364 days, or one day shy of one year, service of that sentence does not qualify as a predicate offense for purposes of assessing a longer sentence under the statute. If Morejon were sentenced for the same conduct today and the § 851 enhancement did not apply, he would be subject to a mandatory minimum sentence of 10 years but would have the same guidelines range of 235–293 months. Even if the § 851 enhancement applied, Morejon would face a mandatory minimum sentence of 15 years on the drug offense if sentenced today. … Morejon argues that if he were sentenced today, he would likely be sentenced to the mandatory minimum term of 10 years on the § 841(b)(1)(A) offense and that even if he were subject to the § 851 enhancement, the mandatory minimum sentence would be 15 years rather than 20 years. He argues that whether the 10-year minimum or 15-year minimum applied, the difference between his original sentence of 20 years on the drug conviction and the sentence he would receive today is a gross disparity that provides an extraordinary and compelling reason to reduce his sentence under 18 U.S.C. § 3582(c)(1)(A)(i). … Additionally, the fact that the difference in the two sentences is ten years, and not the larger differences cited in McCoy, is not dispositive. This court found in United States v. Shaw, No. 5:15-cr-00025, 2021 WL 3007266 (W.D. Va. July 15, 2021), that a sentencing disparity of 22 months was an extraordinary and compelling reason to grant a sentence reduction. Other courts have found similar differences in sentences to qualify as “extraordinary and compelling reasons” to reduce a sentence. See United States v, Williams, No. 14-cr-428, 2021 WL 5827327 (E.D. Va. Dec. 8, 2021) (finding sentence more than three years longer than it would have been were defendant convicted today to be an extraordinary and compelling reason for compassionate release); and United States v. Brown, No. 3:15-cr-00017, 3:06-cr-00021, 2021 WL 2389881, at *10 (W.D. Va. June 11, 2021) (finding 74-month difference in sentence defendant would have received if sentenced today to be a “gross disparity” and thus an extraordinary and compelling reason to warrant a sentence reduction). Considering these cases, the court finds that the disparity between Morejon's current sentence and the sentence he would likely be given for the same conduct today meets the threshold discussed in McCoy, and is an “extraordinary and compelling” reason to warrant a sentence reduction under § 3582(c)(1)(A). … The court finds that taken as a whole, Morejon's institutional history is neutral with regard to a sentence reduction. To be sure, Morejon has taken many classes and he has not engaged in any violent behavior, but he has shown a disregard and lack of respect for prison rules, raising questions about his commitment to following the law. Looking at the next factors, the need for the sentence to reflect the seriousness of the offense, to promote respect for the law, to provide just punishment for the offense, to afford adequate deterrence to criminal conduct, and to protect the public from further crimes of the defendant, the court finds Morejon's sentence of 25 years, driven by the statutory mandatory sentences in his case, to be very long. At sentencing, the government asked the court to sentence Morejon to the bottom of the guidelines, because he had been very cooperative and had fully complied with the requirements laid out in the plea agreement. Sentencing Tr., ECF No. 85 at 8–9. A sentence of 15 years on the drug charge, to be followed by a 5-year sentence on the firearm charge, would be sufficient to achieve the punitive and deterrent goals of punishment.”

Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) Today, the BOP announced no new COVID-related deaths, leaving the total number of inmate COVID-related deaths at 312. Eleven of the inmates died while on home confinement. Staff deaths remain at 7

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