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January 11, 2022: COMPASSIONATE RELEASE and BOP COVID-19 BLOG



Quick Facts (Full BOP stats can be found here) Currently positive-testing inmates: 4,377 (up from 3761) Currently positive-testing staff: 928 (up from 922) Recovered inmates: 42,491 (up from 42,275) Recovered staff: 8,944 (up from 8,902)


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

Yazoo City Medium FCI: 228 (down from 231)

Guaynabo MDC: 193 (up from 187)

Brooklyn MDC: 183 (down from 254)

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

Carswell FMC: 35 (up from 34)

Central Office HQ: 34 (up from 33)

Fairton FCI: 33 (unchanged)

System-wide testing results: Presently, BOP has 135,522 federal inmates in BOP-managed institutions and 14,890 in community-based facilities. Today's stats: Completed tests: 129,005 (up from 128,646) Positive tests: 46,481 (up from 45,356)


Total vaccine doses administered: 282,378 (up from 282,076)


Case Note: Omicron changes the calculus even for this vaccinated lifer...


In U.S. v. GINO BRUNETTI a/k/a Herbert Alberto Cruz-Ruiz, 2022 WL 92753 (S.D.N.Y. Jan. 10, 2022) (Keenan, J.), the court, having previously denied compassionate release based on 3553(a) factors, now grants relief to this vaccinated lifer in light of Omicron, explaining: "The charges stemmed from Brunetti's role as the main source of cocaine for a drug-trafficking organization in the New York City area. (Id.) Brunetti was responsible for facilitating the delivery of large quantities of cocaine into the United States, including a 50-kilogram shipment that was seized during the DEA's investigation. … Hoping to avoid the mandatory life sentence, Brunetti sought to proffer with the Government. Id. Following a period of negotiations, Brunetti agreed to plead guilty to all three counts pursuant to a plea agreement in exchange for the opportunity to engage in a post-plea proffer session. Id. Following his plea before Judge Allen G. Schwartz (to whom this case was originally assigned), Brunetti sat for two proffer sessions with the Government. Id. The Government, however, ultimately declined to enter into a cooperation agreement with Brunetti and, following Judge Schwartz's death, Brunetti's case was transferred to this Court for post-plea proceedings, including sentencing. “Faced with the fact that his proffer strategy had not turned out as he had hoped,” Brunetti asked this Court to reduce his sentence. Id. at 94. On August 11, 2003, this Court rejected Brunetti's request and sentenced him to two concurrent terms of life imprisonment and one additional concurrent term of 120 months’ imprisonment to be followed by ten years of supervised release. … On February 17, 2021, Brunetti, proceeding pro se, filed a motion for compassionate release. In his initial motion, Brunetti argued that extraordinary and compelling circumstances warranted his release because: (1) he was sentenced under the so-called “three-strike rule” of 21 U.S.C. § 851, which Congress later amended to eliminate the mandatory minimum life sentence; (2) he had rehabilitated himself while in prison; and (3) he suffers from certain medical conditions that place him at high risk of developing severe illness if infected with COVID-19. … On April 9, 2021, the Court denied Brunetti's motion, concluding that the sentencing factors of § 3553(a) weighed against his release. … On October 18, 2021, Brunetti filed a renewed motion for compassionate release. (ECF No. 321.) … In light of the rapid spread of the Omicron variant and its partial resistance to the COVID-19 vaccines, the Court finds the Government's argument unpersuasive and concludes that Brunetti has established that “extraordinary and compelling circumstances” support his release. … The Court disagrees with the Government's assertion that Brunetti's vaccination status, considered in isolation, “substantially weak[ens]” his claim that his medical conditions constitute extraordinary and compelling reasons warranting his release. (ECF No. 323.) Although the COVID-19 vaccines remain effective at preventing severe illness, they provide comparatively little protection against Omicron infection. … In considering the § 3553(a) factors in this case, the Court is particularly mindful of the disparity between Brunetti's mandatory life sentence and the sentence a similarly situated defendant would receive today based on recent changes in the law. As noted previously, the First Step Act amended the recidivist provision of 21 U.S.C. § 841(b)(1)(A) by reducing the mandatory minimum sentence applicable to Brunetti from life to 25 years. See Pub. L. No. 115-391, § 401(a)(2), 132 Stat. 5194, 5220 (2018). If Brunetti were sentenced today, he would not receive two concurrent terms of life imprisonment for his participation in a large-scale international narcotics organization, even given his criminal history at the time of his sentencing. … Bearing in mind that “the letter kills but the spirit gives life,” 2 Corinthians 3:6, the Court concludes that the sentencing factors of § 3553(a) no longer outweigh the “extraordinary and compelling reasons” that support Brunetti's motion for compassionate release.”)


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) BOP inmate COVID-related fatalities remain at 275. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.



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