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Fast Facts (Full BOP stats can be found here)

Confirmed active cases at 67 BOP facilities and 7 RRCs

Currently positive-testing inmates: 192 (up from 184) Currently positive-testing staff: 61 (up from 57) Recovered inmates currently in the BOP: 45,553 (down from 45,572) Recovered staff: 15,171 (unchanged)

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

Carswell FMC: 39 (down from 41)

Allenwood Low FCI: 16 (unchanged)

Pollock USC: 15

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

Devens FMC: 8 (up from 6)

Terminal Island FCI: 5 (unchanged)

Carswell FMC: 4 (unchanged)

System-wide testing results: Presently, BOP has 144,617 federal inmates in BOP-managed institutions and 12,726 in community-based facilities. Today's stats: Completed tests: 128,652 (up from 128,649) Positive tests: 55,300 (up from 55,298)

Total vaccine doses administered: 348,204 (up from 348,176)

Case Note: Court holds, in light of SCOTUS Concepcion decision, that non-retroactivity of circuit precedent concerning career offender enhancement is extraordinary and compelling...

In U.S. v. JAMES THOMAS BRICE, Defendant., No. CR SAG-07-0261, 2023 WL 2035959 (D. Md. Feb. 16, 2023) (Gallagher, J.), following remand from the Fourth Circuit in light of Concepcion, court agrees that non-retroactivity of circuit precedent concerning career offender enhancement is extraordinary and compelling and rejects Government’s argument that this is an argument that should be brought pursuant to § 2255, explaining: "Brice contends that this Court should find that the length of his sentence constitutes an “extraordinary and compelling reason” to consider compassionate release because it well exceeds what he would receive if sentenced today. ECF 400 at 5. In this Court's initial ruling, it determined that “non-retroactive changes to sentencing case law or revisions to the sentencing guidelines” did not alone satisfy the “extraordinary and compelling reason” standard. ECF 386 at 7. In its more recent ruling in Concepcion, however, the Supreme Court suggested that such sentencing changes could in fact suffice in some circumstances, reasoning that district courts were not restricted from “consider[ing] nonretroactive Guidelines amendments to help inform whether to reduce sentences at all, and if so, by how much.” 142 S. Ct. at 2403. This language suggests that such amendments alone could constitute the required extraordinary and compelling reason, should a Court reach that conclusion in a particular case. Initially, Brice correctly posits that he would not be a career offender if he were sentenced today. In United States v. Norman, the Fourth Circuit decided that conspiracy to distribute narcotics did not constitute a “controlled substance offense” for purposes of qualifying for career offender treatment. 935 F.3d 232, 237-38 (4th Cir. 2019). Brice's status as a career offender relied on at least one conviction for that offense. Recalculating Brice's advisory guidelines range under the current sentencing guidelines, and without the career offender enhancement, this Court arrives at an offense level 31 and criminal history category VI, which would result in an advisory guideline range of 188-235 months. The amount of time Brice has served, then, is just below the low end of that range. And the sentence he actually received is more than two years above the top end of that range. Considering the particularized circumstances of Brice's criminal history and his non-violent offense of conviction, this Court concludes that in this case, the nonretroactive Guidelines amendments and their effect on Brice's sentence constitute an extraordinary and compelling reason to consider whether compassionate release is warranted. The Government contends that United States v. Ferguson, 55 F.4th 262 (4th Cir. 2022), held that “a defendant could not claim post-sentencing changes in the law satisfy the ‘extraordinary and compelling’ standards.” ECF 402 at 1. This Court does not read Ferguson that broadly. In that case, the defendant's compassionate release arguments expressly challenged the validity of his original conviction and sentence, such as his arguments that “Appellant's Guidelines range was calculated incorrectly” and that his counsel was ineffective. 55 F.4th at 266. As the Fourth Circuit found, those arguments amounted to a collateral attack on Ferguson's sentence, which could not be brought via a compassionate release motion. Id. at 270-72. Here, Brice does not challenge the validity of his conviction or his sentence. He simply argues that, at present, the changes in the sentencing landscape provide an extraordinary and compelling reason to review his sentence and determine whether a lower sentence fulfills the purposes of the sentencing statute. Ferguson is therefore inapposite and does not preclude this Court's determination that, in Brice's particular circumstances, the intervening changes to the sentencing guidelines amount to an extraordinary and compelling reason.”

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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