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February 8, 2023: COMPASSIONATE RELEASE, COVID-19, and BOP BLOG

Updated: Feb 9, 2023


Fast Facts (Full BOP stats can be found here)


Confirmed active cases at 80 BOP facilities and 12 RRCs

Currently positive-testing inmates: 124 (up from 122) Currently positive-testing staff: 120 (unchanged) Recovered inmates currently in the BOP: 46,276 (down from 46,337) Recovered staff: 15,045 (down from 15,054)


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

Fort Dix FCI: 9

Montgomery FPC: 8

Yazoo City Medium FCI: 8



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

Three Rivers FCI: 7 (unchanged)

Carswell FMC: 5 (unchanged)

Houston FDC: 5 (unchanged)


System-wide testing results: Presently, BOP has 145,647 federal inmates in BOP-managed institutions and 12,909 in community-based facilities. Today's stats: Completed tests: 128,648 (up from 128,646) Positive tests: 55,296 (up from 55,294)


Total vaccine doses administered: 347,265 (up from 347,222)


Case Note: In granting compassionate release to defendant who had served nearly 15 years of his 262-month sentence for his involvement with the operation of a purported medical marijuana dispensary, court finds changing attitudes regarding marijuana -- among other things -- extraordinary and compelling...


In U.S. v. Scarmazzo, No. 1:06-CR-000342 DAD, 2023 WL 1479113 (E.D. Cal. Feb. 2, 2023) (Drozd, J.), although court defers to separate habeas court on question of whether Congressional rider prohibiting prosecution of marijuana dispensaries impacts validity of conviction, court does find extraordinary and compelling changes in attitude towards marijuana prosecution generally, commutation of co-defendant, and family circumstances, explaining: "On October 12, 2006, a federal grand jury in the Eastern District of California returned an indictment in this action charging defendant Luke Scarmazzo and seven co-defendants in connection with the operation of a purported medical marijuana dispensary, California Healthcare Collective, in Stanislaus County. … In January 2017, President Barack Obama granted clemency and commuted the 240-month sentence of the co-owner and executive director of the California Healthcare Collective marijuana dispensary, co-defendant Ricardo Montes. However, defendant Scarmazzo's request for clemency was not granted. … Defendant Scarmazzo was 26 years old at the time of his sentencing and has now served approximately 14 years and 8 and a half months of his [262 month] sentence. … On November 18, 2019, he filed the now-pending motion for reduction in sentence pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). (Doc. No 454.) Therein, defendant Scarmazzo argues that his sentence should be reconsidered and reduced for the following reasons which he characterizes as “extraordinary and compelling”: 1. He received an unusually long sentence for his criminal conduct; 2. His co-defendant received a sentence commutation in 2017; 3. The federal government no longer prosecutes the conduct for which he was convicted[.] … Since December 2014, various congressional appropriations riders have prohibited the use of Department of Justice (“DOJ”) funds to prevent states with medical marijuana programs from implementing their state medical marijuana laws.13 In 2016, the Ninth Circuit confirmed that the appropriations riders “prohibits DOJ from spending funds from relevant appropriations acts for the prosecution of individuals who engaged in conduct permitted by the State Medical Marijuana Laws and who fully complied with such laws.” … In this regard, defendant filed a habeas petition pursuant to 28 U.S.C. § 2241 in that court in 2017, and the petition remains pending. See Scarmazzo v. Langford, 17-cv-02354-CJC-SK (C.D. Cal.) (“§ 2241 Petition”). … Defendant Scarmazzo has not provided any authority in support of his implicit suggestion that the applicability of the federal appropriations rider to his case should be decided in the context of this motion for compassionate release rather than in his pending habeas action in which that issue has been clearly presented. … Defendant also suggests that, along with the appropriations riders addressed by the Ninth Circuit in McIntosh, other changes in marijuana related laws and policy since 2006 have resulted in an “extraordinary and compelling” disparity between the sentence he received and sentences imposed upon those similarly situated to him who more recently engaged in the same or similar criminal conduct. … In 2006, the state of California allowed storefront medical cannabis dispensaries to sell marijuana. … Several years later, in 2016, however, California voters approved a proposition that more broadly legalized marijuana manufacture and sale within the state. … While federal law remains unchanged—still making the possession, cultivation and distribution of marijuana unlawful and subject to criminal penalties—federal prosecutions for marijuana-related offenses have been curbed significantly, particularly in states like California that have legalized those activities with some restrictions. In the undersigned's experience, for the most part federal prosecution of marijuana offenses in California is now limited to those offenders engaged in large, unauthorized cultivation sites located on federal lands. … In 2013, for example, the DOJ advised federal law enforcement that marijuana dispensaries—both medical and recreational—should only be subject to state and local law enforcement action. … In short, there is no doubt in the undersigned's mind that those who violate still existing federal marijuana laws today are being treated much differently by the federal criminal justice system than those engaging in similar conduct were at the time of defendant Scarmazzo's criminal conduct (2004–06) and his prosecution, conviction and sentencing in this federal court (2006–08). … Of considerable significance in connection with the pending motion, however, defendant Montes was released from prison when the President granted his clemency application and commuted his sentence as of May 19, 2017. See United States v. Ricardo Ruiz Montes, No. 06-cr-342-LJO-2 at Doc. No. 452 (E.D. Cal. Jan. 19, 2017).20 Defendant Montes received an original sentence only 22 months lower than defendant Scarmazzo after consideration of all relevant sentencing factors. Yet, for the past approximately 68 months, Montes has been out of custody, and presumably completed his supervised release term, while defendant Scarmazzo remains imprisoned. While that is not a disparity in sentencing per se, it is a very real disparity in the sentences actually served even if partially or wholly justified under the circumstances of the two co-defendants. In any event, it is certainly a factor which this court believes, at least to some degree, supports the granting of the pending motion for compassionate release. … Finally, defendant Scarmazzo's family situation has changed significantly and for the worse in recent years. The defendant's daughter was only five years old when he entered federal custody. … It is reported that although defendant stays in very close telephone contact with his daughter, she is now struggling significantly on several fronts and would presumably benefit from defendant's presence. (Doc. Nos. 502 at 3; 502-1 at 3-4; 506 at 3.) Moreover, as defendant's parents have grown older, they have begun to suffer serious medical issues. His mother has recently undergone major neck and spine surgery and is currently bedridden. (Id.) Most compelling is that in combination with these hardships, defendant's father has been battling terminal cancer. (Id.) Such challenging family circumstances that have developed while defendant has been imprisoned also support his compassionate release at this time. … When considering the unique confluence of all of these circumstances—changes in the legal landscape with respect to federal enforcement of laws relating to distribution of marijuana in California; the significant disparity in the sentence actually served by co-defendant Montes and the 14+ years already served in prison by defendant Scarmazzo; defendant's good behavior, ... during his imprisonment; ... and defendant Scarmazzo's difficult family circumstances that have developed during his imprisonment—the court is persuaded that the granting of the requested relief is appropriate at this point and is supported by both extraordinary and compelling circumstances and consideration of the sentencing factors set forth at 18 U.S.C. § 3553(a).”


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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