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January 11, 2023: COMPASSIONATE RELEASE, COVID-19, and BOP BLOG


Fast Facts (Full BOP stats can be found here)


Confirmed active cases at 87 BOP facilities and 12 RRCs

Currently positive-testing inmates: 171 (up from 170) Currently positive-testing staff: 255 (up from 253) Recovered inmates currently in the BOP: 47,019 (unchanged) Recovered staff: 14,796 (up from 14,785)


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

Brooklyn MDC: 14 (unchanged)

Loretto FCI:12 (unchanged)

Yazoo City Medium FCI: 10 (unchanged)


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

Central Office HQ: 60 (unchanged)

Rochester FMC: 16 (unchanged)

Brooklyn MDC: 12 (unchanged)


System-wide testing results: Presently, BOP has 145,280 federal inmates in BOP-managed institutions and 12,967 in community-based facilities. Today's stats: Completed tests: 128,662 (up from 128,661) Positive tests: 55,310 (up from 55,309)


Total vaccine doses administered: 344,965 (up from 344,885)


Case Note: Guidelines miscalculation in light of post-sentencing decision in Burrage v. U.S., 571 U.S. 204 (2014) (concerning insufficiency of evidence that defendant was the “but-for-cause” of the victim's fentanyl death), support of victim's family, and rehab earn defendant compassionate release...


In U.S. v. Rogers, No. CR-13-15-BU-BMM, 2023 WL 121224 (D. Mont. Jan. 6, 2023) (Morris, CJ), the court found that sentencing disparity caused by Guidelines miscalculation, positive statement from deceased victim’s family, and rehab supported defendant's release, explaining: "Rogers is serving a sentence of 224 months for distribution of fentanyl. (Doc. 27.) The underlying offense involved the accidental death of Rogers's roommate, Mark Allen (“Mark”), from a fentanyl overdose. Rogers has served more than 110 months of his sentence. Rogers's scheduled release date is September 21, 2029. … Rogers urges the Court to release him on the basis of an excessive sentence. Rogers asserts that his original sentence reflected an improper calculation of the applicable guideline sentencing range. (Doc. 48 at 8–12.) Rogers argues that the appropriate sentencing range would have been 12 to 18 months, even without considering the applicable offense level reductions for acceptance of responsibility. (Id. at 12.) Rogers also cites in support of his motion his lack of a significant disciplinary record in prison and his completion of extensive educational and treatment programming while incarcerated. Rogers further points to his youth at the time of the offense and the unique circumstances of the offense and his relationship to Mark's family during his incarceration. (Id. at 13–14; 19–21.) Mark's family supports Rogers's early release. … The Court determines that extraordinary and compelling reasons exist to grant Rogers's motion for compassionate release. Due to the extraordinary and compelling reasons presented by Rogers's age at the time of the offense, evidence of commitment to his education and personal growth while incarcerated, relationship with the victim's family, strong family support, and sentencing disparity considerations, the Court will grant Rogers's motion for compassionate release. Reducing Rogers's sentence to effectively a time-served sentence comports with the § 3553(a) sentencing factors. Rogers was a criminal history category two. (Doc. 35 at 10; 35-1 at 18–19.) Rogers's total offense level was calculated to be 35. (Doc. 35 at 10.) Rogers's total offense level likely should have been calculated to be in the range of 9 to 12 based on the offense to which Rogers pled guilty. (Id. at 18.) Rogers has served over 110 months of his sentence. … Gail Allen (“Ms. Allen”) wrote in a victim statement submitted before Rogers's sentencing that she and her family “don't harbor hard feelings toward Da[c]ota Rogers.” (Doc. 35 at 6.) The victim impact statement stated that Mark's family hoped that “he is able to do something with his life;” emphasized that “[Rogers] is so young;” and affirmed that “[w]e do forgive him and pray for him and his family.” (Id.) … Rogers has acknowledged the seriousness of his offense. (Doc. 48 at 24.) Ms. Allen has submitted a remarkable letter that details her support for Rogers's release. (Doc. 48-4.) Ms. Allen explains that she first wrote to Rogers in 2014. (Id. at 2.) Rogers and Ms. Allen since then have written to each other four to five letters a year, building in the process a relationship based on forgiveness and reconciliation. (Id. at 2–3.) Ms. Allen states that Rogers “has expressed his sorrow for Mark's death and his part in it, and also how Mark's death changed his own life.” (Id. at 2.) Ms. Allen writes that she and Rogers have “forged a friendship that allows us to go beyond my son's death and genuinely care about each other.” (Id. at 3.) Ms. Allen confirms that her husband and other children “are supportive of an earlier release.” Ms. Allen states that she believes that Rogers “truly desires to live a responsible life and would have good things to contribute to society.” Rogers's conduct while incarcerated provides further evidence that a reduced sentence proves appropriate. Rogers has accumulated no significant disciplinary infractions in prison in the last 5 years. … These considerations, in combination with the extraordinary relationship Rogers has built with members of the victim's family, Rogers's young age at the time of the offense, and the likelihood that the applicable guideline level for imprisonment should have been in the range of 6 to 18 months rather than 188 to 235 months, all militate in favor of a reduced sentence. … Rogers has a robust release plan in place. His grandparents have a place for Rogers to live. (Doc. 48-5 at 2.) Rogers has a job waiting at the family laundry business. (Id.) Rogers also will benefit from the support of his aunt, uncle, and brother. (Doc. 48 at 28–29; Doc. 48-5 at 3.) The Court, in recognition of the fact that Rogers “truly desires to live a responsible life and would have good things to contribute to society,” will grant Rogers's motion.”


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) The BOP has announced no new inmate COVID-related deaths, leaving the inmate death count at 311. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.

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