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February 28, 2023: COMPASSIONATE RELEASE, COVID-19, and BOP BLOG


Fast Facts (Full BOP stats can be found here)


Confirmed active cases at 69 BOP facilities and 8 RRCs

Currently positive-testing inmates: 170 (down from 192) Currently positive-testing staff: 61 (unchanged) Recovered inmates currently in the BOP: 45,553 (unchanged) Recovered staff: 15,171 (unchanged)


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

Carswell FMC: 34 (down from 39)

Pollock USC: 15 (unchanged)

Allenwood Low FCI: 14 (down from 16)


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

Devens FMC: 8 (unchanged)

Terminal Island FCI: 5 (unchanged)

Carswell FMC: 4 (unchanged)


System-wide testing results: Presently, BOP has 144,590 federal inmates in BOP-managed institutions and 12,700 in community-based facilities. Today's stats: Completed tests: 128,653 (up from 128,652) Positive tests: 55,301 (up from 55,300)


Total vaccine doses administered: 348,230 (up from 348,204)


Case Note: Relief granted because today defendant would be facing a 15-year man-min rather than life man-min...


In U.S. v. Simpson, No. 2:08-CR-00554-CW, 2023 WL 2142945 (D. Utah Feb. 21, 2023) (Waddoups, J.), the court found that non-retroactive changes to § 851 criminal hisotry enhancement mean today only one of defendant’s priors would qualify, meaning he is subject to a 15 year man-min, instead of life, which together with the age provision in 1B1.13, is extraordinary and compelling, justifying release, explaining: "As was the case in Maumau, the sentencing reform provisions of the First Step Act have created a disparity between the mandatory life sentence that Simpson received when he was convicted in 2009 and the sentencing requirements he would be subject to if he were sentenced today. … Thus, after the First Step Act, some prior offenses that would have previously exposed a defendant to an enhanced sentence under Section 841(b)(1)(A) would no longer qualify as a basis for imposing a recidivist enhancement. … More specifically, the First Step Act reduced the mandatory minimum sentence that a defendant with one prior qualifying offense would receive from 20 to 15 years, and it reduced the mandatory minimum sentence that a defendant with two or more prior qualifying offenses would receive from “life imprisonment without release” to “a term of imprisonment of not less than 25 years.” … Here, Simpson argues that the disparity between the mandatory sentencing requirements he was subjected to before the First Step Act and the sentencing requirements he would be subject to if he were sentenced today are significant and warrants a finding of extraordinary and compelling circumstances. … The government has provided no response, and appears not to contest, Simpson's analysis of the impact that the First Step Act would have on the sentencing requirements that Simpson would be subject to if he were sentenced today. A review of the record, however, shows that Simpson likely had at least one prior conviction that would qualify as a basis for imposing an enhanced sentence under the post-First Step Act version of Section 841. According to Simpson's presentence report, Simpson was convicted and sentenced to more than 12 months imprisonment for armed bank robbery in October 1986. (See PSR at 6 (¶ 30), ECF No. 117-2.) Such a conviction would most likely be considered a “serious violent felony” under the post-First Step Act version of Section 841, subjecting Simpson to a mandatory minimum sentence of at least 15 years. … This sentencing disparity may provide a basis for the court to find that extraordinary and compelling reasons for a sentence reduction exist if Simpson also shows that there are other circumstances that also warrant compassionate release. To that end, Simpson has argued that his age and declining health justify a finding of extraordinary and compelling reasons. … Simpson is currently 66 years old and has served more than 10 years of his sentence in this case. (See PSR at 2, ECF No. 117.) Therefore, his circumstances would qualify as an extraordinary and compelling reason for a sentence reduction under the application note 1(B) of the Sentencing Commission's current policy statement if he is also experiencing a “serious deterioration in physical or mental health because of the aging process.” … Under the Tenth Circuit's holdings in Maumau and McGee, the court finds that Simpson's age, the length of the sentence he has already served, and the deterioration of his health constitute additional circumstances, that when considered in combination with the sentencing disparity arising from the First Step Act's amendments to the sentencing provisions of Section 841, warrant a finding of extraordinary and compelling reasons for a sentence reduction under Section 3582(c)(1)(A). … The court also concludes that requiring Simpson to remain incarcerated for the rest of his life would not significantly impact the deterrent effect that has resulted from the term of imprisonment he has already served.”


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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