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January 12, 2022: COMPASSIONATE RELEASE and BOP COVID-19 BLOG




Quick Facts (Full BOP stats can be found here) Currently positive-testing inmates: 5,121 (up from 4,377) Currently positive-testing staff: 903 (up from 928) Recovered inmates: 42,571 (up from 42,491) Recovered staff: 8,988 (up from 8,944)


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

Yazoo City Medium FCI: 251 (down from 228)

Herlong FCI: 208

Guaynabo MDC: 200 (up from 193)

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

Carswell FMC: 35 (unchanged)

Central Office HQ: 35 (up from 34)

Fairton FCI: 33 (unchanged)

System-wide testing results: Presently, BOP has 135,579 federal inmates in BOP-managed institutions and 14,842 in community-based facilities. Today's stats: Completed tests: 129,005 (unchanged) Positive tests: 46,481 (unchanged)


Total vaccine doses administered: 283,304 (up from 282,378)


Case Note:


In U.S. v. SYLVESTER PURHAM, 2022 WL 73038 (C.D. Ill. Jan. 7, 2022) (Myerscough, J.), the court, although denying compassionate release application upon consideration of § 3553(a) factors, court explains why a change in circuit precedent can be extraordinary and compelling even though the 7th Circuit has held non-retroactive changes to the FSA cannot, explaining: "On June 4, 2013, the Government filed a notice of prior conviction under 21 U.S.C. § 851, citing Defendant's prior Illinois state conviction for manufacture/delivery of a controlled substance under 720 ILCS 570/401, which would trigger enhanced penalties under § 841(b)(1)(A). … Defendant filed a pro se Motion for Compassionate Release on November 8, 2021. (d/e 162). After the Court appointed counsel, Defendant filed an Amended Motion for Compassionate Release on December 8, 2021. (d/e 167). In each motion, Defendant argues that, were he sentenced today, he would not be subject to the enhanced penalties under § 841(b)(1)(A) and that his sentence should, therefore, be reduced. … The parties' arguments center around the Seventh Circuit's recent holding in United States v. Ruth, 966 F.3d 642 (7th Cir. 2021). In Ruth, the Seventh Circuit considered whether a prior conviction of manufacturing with the intent to distribute cocaine in Illinois, 720 ILCS 570/401, could qualify as a predicate offense for the sentencing enhancements within 21 U.S.C. § 841. Those enhancements raise the mandatory minimum of a defendant's sentence. Specifically, and relevant here, the enhancement at § 841(b)(1)(A)would bring a defendant's mandatory minimum sentence to 15 years if sentenced today. The RuthCourt held that Illinois' cocaine felony offense defines cocaine more broadly than § 841 to the extent that a prior conviction under the Illinois statute cannot qualify as a predicate offense to trigger § 841's enhanced penalties. 966 F.3d at 650. Defendant argues that this change in statutory interpretation of § 841's enhancement is substantive, retroactively applicable to his case, and an extraordinary and compelling reason warranting a reduction in his sentence. The Government contests whether Ruth's holding is retroactive and, therefore, properly brought under the compassionate release statute, 18 U.S.C. § 3582(c)(1)(A). The Government argues that, following the Seventh Circuit's decision in United States v. Thacker, 4 F.4th 569 (7th Cir. 2021), Ruth cannot be either retroactive or an extraordinary and compelling reason warranting a sentence reduction. In Thacker, the Seventh Circuit considered whether the First Step Act's amendments to the stacking provisions of 18 U.S.C. § 924(c) could warrant a sentence reduction under the compassionate release statute. The Court held that the amendments could not because the compassionate release statute “cannot be used to effect a sentencing reduction at odds with Congress's express determination ... that the amendment to § 924(c)'s sentencing structure apply only prospectively.” 4 F.4th at 574. The law at issue in the present case is different from that in Thacker. Unlike the statute in Thacker, here there is no express determination that Ruth's holding cannot be retroactive or amount to an extraordinary and compelling reason warranting a sentence reduction. Thacker involved a defendant's ability to use the compassionate release statute to request a reduction in sentence based on statutory changes in how sentences are calculated.In contrast, Ruth is a binding decision by the Seventh Circuit Court of Appeals and a result of judicial statutory interpretation. It is not a statute which Congress expressly stated would only apply prospectively. See 4 F.4th at 574. Moreover, the Thacker Court expressly limited its ruling to the inapplicability of the compassionate release statute as it related to the stacking provision in § 924(c). 4 F.4th at 575 (“In the end, our conclusion is limited. We hold only that the discretionary sentencing reduction authority conferred by§ 3582(c)(1)(A) does not permit ... the reduction of sentences lawfully imposed before the effective date of the First Step Act's amendment to § 924(c).”) Section 924(c)'s stacking provisions are not an issue in the present case. As a result, Thacker is not on point, and the Court must instead determine whether Ruth is a retroactive change in substantive law applicable to Defendant's case. It is. Generally, new constitutional rules of criminal procedure announced by courts are not retroactive in application. Welch v. United States, 578 U.S. 120, 128 (2016)(quoting Teague v. Lane, 489 U.S. 288, 310 (1989)). However, decisions which announce either new substantive rules or “watershed rules of criminal procedure, which are procedural rules implicating the fundamental fairness and accuracy of the criminal proceeding” will apply retroactively. Id. (cleaned up). The Seventh Circuit's decision in Ruth is both substantive and a watershed decision. The Court's holding announced that Illinois' statute criminalizing the manufacture and distribution of cocaine is constitutionally overbroad as applied to § 841's sentencing enhancements because the Illinois's statutory definition of cocaine contemplates more geometric isomers than its federal counterpart. Ruth, 966 F.3d at 647. As a result, the § 841 sentencing enhancement cannot apply to defendants previously convicted under720 ILCS 570/401. This significant change in statutory interpretation narrowed the “the substantive reach” of § 841's enhanced penalties, “altering the range of conduct or class of persons” subject to it. Welch, 578 U.S. at 129. Where, as here, a judicial decision interpreting a federal statute does so and “affect[s] the reach of the underlying statute,” the decision is substantive and retroactive. Welch, 578 U.S. at 130 (citing Teague, 489 U.S. 288). Therefore, the Seventh Circuit's decision in Ruth is retroactive, and the resulting change in sentencing law constitutes an extraordinary and compelling reason which may warrant a reduction in sentence. But while an extraordinary and compelling reason exists, the Court denies Defendant's request for a sentence reduction.”


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) Today the BOP announced the death, on January 7, 2022, of Jose Alvarez, 77, of FCI Coleman Medium. Inmate COVID-related fatalities now number 276. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.



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