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February 15, 2023: COMPASSIONATE RELEASE, COVID-19, and BOP BLOG


Fast Facts (Full BOP stats can be found here)


Confirmed active cases at 79 BOP facilities and 8 RRCs

Currently positive-testing inmates: 203 (up from 197) Currently positive-testing staff: 125 (down from 136) Recovered inmates currently in the BOP: 45,945 (down from 46,083) Recovered staff: 15,075 (up from 15,054)


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

Carswell FMC: 21 (up from 18)

Fort Dix FCI: 20 (down from 21)

Montgomery FPC: 14 (unchanged)


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

Devens FMC: 11 (up from 9)

Three Rivers FCI: 7 (unchanged)

McDowell FCI: 7


System-wide testing results: Presently, BOP has 145,151 federal inmates in BOP-managed institutions and 12,546 in community-based facilities. Today's stats: Completed tests: 128,652 (unchanged) Positive tests: 55,300 (unchanged)


Total vaccine doses administered: 347,664 (up from 347,536)


Case Note: Defense attorney's failure to inform defendant of Davis decision in time to bring a habe is an extraordinary and compelling circumstance warranting relief from § 924(c) sentence...


In U.S. v. JESUS MANUEL ARMENDARIZ, Defendant., No. 5:11-CR-00355-20 EJD, 2023 WL 1819160 (N.D. Cal. Feb. 8, 2023) (Davila, J.), the district court finds that because the defendant’s conviction is currently illegal in light of the Supreme Court’s 2019 Davis decision, but that he did not obtain relief within the 1 year following Davis because his lawyer failed to timely notify him of the decision so that he could collaterally challenge his conviction, his circumstances are extraordinary and compelling, warranting a reduction to time served, explaining: "On July 28, 2016, Jesus Manuel Armendariz pleaded guilty to various gang-related charges, including one count of using a firearm in furtherance of a crime of violence under 18 U.S.C. § 924(c). After this Court sentenced Mr. Armendariz, the Supreme Court held that the residual clause of § 924(c) was unconstitutionally vague. United States v. Davis, 139 S. Ct. 2319 (2019). Arguing that Davis rendered his § 924(c) conviction and corresponding sentence invalid, Mr. Armendariz now moves for a reduction in sentence under 18 U.S.C. § 3582(c)(1)(A), commonly known as a motion for compassionate release. …Mr. Armendariz did not learn about Davis until much later. On February 3, 2020, the Federal Public Defender's office informed Mr. Armendariz's trial counsel that Mr. Armendariz was likely eligible for relief under Davis, and that trial counsel should so advise Mr. Armendariz. Spero Decl. ¶ 3. Trial counsel failed to do so, and Mr. Armendariz did not hear about Davis until late 2020, when a fellow inmate told him about the decision. Spero Decl., Ex. A (“Armendariz Decl.”) ¶ 3. Upon learning of Davis, Mr. Armendariz asked his wife to contact trial counsel, but she was unable to connect with trial counsel until the summer of 2021 because she was undergoing treatment for cancer. Id. At that point, trial counsel directed her to the Federal Public Defender's office, who then appointed new counsel to represent Mr. Armendariz. Id. Because the one-year statute of limitations for § 2255 motions had run, Mr. Armendariz instead filed a motion for a reduction in sentence pursuant to 18 U.S.C. § 3582(c)(1)(A).… As this Court and many others have held, disparities between a defendant's actual sentence and the one he would have received under current sentencing law may constitute an extraordinary and compelling reason for reducing his sentence when combined with other individual circumstances. … Here, the Supreme Court's decision in Davis creates just such a disparity. When Mr. Armendariz was sentenced to fifteen years in prison, his § 924(c) conviction required this Court to impose a mandatory consecutive term of five years. ECF No. 659. Following Davis, his § 924(c) sentence is no longer valid, and the government concedes as much. See, e.g., ECF No. 929 at 1-2. Today, Mr. Armendariz would likely receive a ten-year sentence, a term that is one-third shorter than the one he is currently serving. The government raises two arguments for why this disparity is not extraordinary and compelling. First, it argues that the sentencing disparity is not significant enough to warrant relief. ECF No. 1175 at 5. According to the government, even absent the § 924(c) conviction, Mr. Armendariz's Sentencing Guidelines range would still be 14-17.5 years today, so his current sentence of fifteen years is consistent with present sentencing law. Id. But this argument ignores the fact this Court was previously faced with that same range at sentencing and nonetheless found that a downward variance to ten years was justified. … In the alternative, the government contends that a change of five years in sentencing law is too short to be compelling. ECF No. 1175 at 5. That argument reflects a grave misunderstanding of the burdens of incarceration. Loss of liberty and separation from friends and family bear heavily on a person whether it is for five years or for fifteen. This is not a case where a defendant is asking the Court to release him a week early—a five-year reduction is certainly sufficient to merit compassionate release. Second, the government faults Mr. Armendariz for failing to file a § 2255 motion, as several of his other codefendants did. ECF No. 1175 at 5-6. To be sure, a motion under § 3582(c)(1)(A) is not an all-purpose substitute for § 2255. Had the failure to file a timely motion been due to Mr. Armendariz's personal carelessness or neglect, perhaps he would be unable to make out extraordinary and compelling reasons for compassionate release. That is not what happened here. Rather, Mr. Armendariz did not file a § 2255 motion due to lapses by his trial counsel, who was specifically advised to inform Mr. Armendariz about the effect of Davis yet failed to do so. Spero Decl. ¶ 3; Armendariz Decl. ¶ 3. What is more, the record here strongly supports the conclusion that, had trial counsel timely contacted Mr. Armendariz and filed a § 2255 motion on his behalf, Mr. Armendariz likely would have received the five-year sentence reduction that he is asking for now. Five of his codefendants successfully vacated their § 924(c) convictions and sentences through § 2255 motions, ECF Nos. 932, 1006, 1009, 1022, 1043, and the government repeatedly conceded that the § 924(c) sentences in this case were invalid. ECF No. 929 at 1-2; ECF No. 992 at 6; ECF No. 997 at 5; ECF Nos. 1013, 1035. The particular circumstances here cut strongly in favor of granting compassionate release, because it would be manifestly unjust to deny Mr. Armendariz a sentence reduction he likely would have received but for his trial counsel's inaction. The Court concludes that the gross sentencing disparity in Mr. Armendariz's case, combined with his individual circumstances—the government's concession that the § 924(c) sentence is invalid, his trial counsel's failure to contact him, and the high probability that his sentence would have been reduced if he were able to file a § 2255 petition on time—constitute extraordinary and compelling reasons justifying a reduction in sentence.”


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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