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February 15, 2022: COMPASSIONATE RELEASE and BOP COVID-19 BLOG


Fast Facts (Full BOP stats can be found here) Currently positive-testing inmates: 2,048 (down from 2,385) Currently positive-testing staff: 1,785 (down from 1,892) Recovered inmates: 53,832 (up from 53,536) Recovered staff: 10,650 (up from 10,496)


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

Oakdale II FCI: 306 (down from 307)

Seagoville FCI: 163 (down from 183)

Oakdale I FCI: 160 (down from 167)

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

El Reno FCI: 63 (unchanged)

Pollock USP: 62 (unchanged)

Central Office HQ: 56 (unchanged)

System-wide testing results: Presently, BOP has 134,396 federal inmates in BOP-managed institutions and 11,775 in community-based facilities. Today's stats: Completed tests: 129,251 (unchanged) Positive tests: 55,347 (unchanged)


Total vaccine doses administered: 297,425 (up from 297,065)


Case Note: Administrative exhaustion not required of issue warden could not have considered anyway...


In U.S. v. DWAYNE JEROME ANDERSON, 2022 WL 395235 (D.S.C. Feb. 9, 2022) (Anderson, Jr., J.), the court found that defendant's failure to exhaust career offender argument in his petition to BOP did not preclude consideration of the issue because the warden was bound by § 1B1.13 and therefore could not have considered the issue anyway, explaining: “Before a court may consider a defendant's motion for compassionate release, the defendant must have completed the initial step of requesting that the BOP bring a motion on their behalf. The defendant may file a motion with the court after (1) fully exhausting all administrative rights to appeal; or (2) after the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier. 18 U.S.C. § 3582(c)(1)(A). See United States v. Muhammad, 16 F.4th 126, 129 (4th Cir. 2021). With regard to the medical condition claim, the government acknowledges that the defendant submitted a request to the Warden at FCI Edgefield on September 22, 2020, and the Warden denied his request as not meeting medical criteria for compassionate release on December 1, 2020. However, the government argues that the defendant's claim based upon changes in the law regarding career offender sentencing/predicate felonies should be dismissed without prejudice because the defendant has failed to exhaust his administrative remedies on those claims. The government is correct that the defendant's September 22, 2020 request to the Warden for release asserted only grounds of medical conditions. In other words, the defendant did not put before the Warden the question of whether the defendant would no longer be a career offender if sentenced today—the claim he raises in his second motion for compassionate release. However, the court will decline at this time to require exhaustion on this issue raised by the defendant. This is because the Warden is bound by U.S. Sentencing Guideline § 1B1.13 which limits the authority of the Warden to grant compassionate release requests to certain specified categories. A change in sentencing law, or more specifically a change to the career offender law, is not within the jurisdiction of the Warden. Therefore, to require the defendant to return to the Warden to request relief that is not within the Warden's power to give would be to require a futile act. Exhaustion requirements are not jurisdictional and may be excused on grounds of futility. Id.”



Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) The BOP has announced no new inmate deaths, which remain at 285. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.


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