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January 12, 2023: COMPASSIONATE RELEASE, COVID-19, and BOP BLOG


Fast Facts (Full BOP stats can be found here)


Confirmed active cases at 90 BOP facilities and 12 RRCs

Currently positive-testing inmates: 167 (down from 171) Currently positive-testing staff: 254 (down from 255) Recovered inmates currently in the BOP: 46,942 (down from 47,019) Recovered staff: 14,801 (up from 14,796)


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

Brooklyn MDC: 14 (unchanged)

Loretto FCI:12 (unchanged)

Memphis FCI: 10


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

Central Office HQ: 60 (unchanged)

Rochester FMC: 16 (unchanged)

Brooklyn MDC: 13 (up from 12)


System-wide testing results: Presently, BOP has 145,257 federal inmates in BOP-managed institutions and 13,058 in community-based facilities. Today's stats: Completed tests: 128,662 (unchanged) Positive tests: 55,310 (unchanged)


Total vaccine doses administered: 344,965 (unchanged)


Case Note: District court's failure to discuss defendant's heightened vulnerability to COVID, in case where government agrees defendant demonstrated extraordinary and compelling circumstances, requires remand...


In U.S. v. Mangarella, No. 20-7912, 2023 WL 139324 (4th Cir. Jan. 10, 2023) (published) (Harris, J.), the Fourth Circuit vacated and remanded the denial of defendant's motion for compassionate release because the district court’s opinion did not reflect that it considered defendant’s heightened vulnerability to COVID, explaining: "In December 2019 – before the onset of the COVID-19 pandemic – Mangarella filed a pro se motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i). In seeking a reduced sentence, Mangarella, who was 65 years old at the time, relied primarily on his age and certain serious medical conditions – including emphysema and chronic obstructive pulmonary disease (“COPD”) – as well as on his good conduct in prison during the more than 13 years he had already served. The district court denied Mangarella's motion. … Here, the court determined, although Mangarella had “highlight[ed] several medical conditions,” he had failed to establish that he was experiencing “a serious deterioration in physical or mental health because of the aging process,” id. at *3, as required by what the court and parties understood to be the controlling Sentencing Commission policy statement. … And while Mangarella's threshold failure to establish “extraordinary and compelling” reasons rendered a “full evaluation” under § 3553(a) unnecessary, any such evaluation also would “weigh[ ] against” release, in part because Mangarella's 360-month sentence had already been reduced from the original 600 months. By the time the district court denied Mangarella's motion in mid-March of 2020, the COVID-19 crisis was imminent. And approximately two weeks after the district court's decision, Mangarella, still pro se, moved for reconsideration, citing the emerging COVID-19 pandemic. The district court denied that motion in a text-only order, reasoning that Mangarella had relied solely on “generalized information” about COVID-19 and not asserted any actual exposure or made an individualized case for relief. That brings us, finally, to the motion underlying this appeal: In July 2020, Mangarella, this time with the assistance of counsel, filed an emergency motion for reconsideration and compassionate release based on his exposure to and risk from COVID-19. Reconsideration was warranted, according to Mangarella, in light of the rapidly evolving pandemic and what was now a large and documented outbreak at his correctional facility.2 And as a 66-year-old suffering from emphysema and COPD, he was at a heightened risk of death or serious illness should he become infected. That particularized vulnerability to COVID-19, Mangarella argued, combined with his inability to protect himself from exposure at his facility, constituted an “extraordinary and compelling” reason for compassionate release. … The government agreed and filed a response in support of Mangarella's motion for compassionate release. … Because Mangarella's documented COPD and emphysema are CDC-identified risk factors, the government explained, and in light of the pandemic and the COVID-19 outbreak at his facility, Mangarella had established an “extraordinary and compelling” reason for release under § 3582(c)(1)(A)(i). The government also took the position that the more than 14 years Mangarella had already served were “sufficient with respect to the § 3553(a) factors in the instant pandemic context.” … The district court sua sponte called for a telephonic hearing to address the government's response, which it believed to be “materially inconsistent” with the government's position “on similar motions.” J.A. 187. At the hearing, held the next day, the government explained that contrary to the district court's impression, it had consistently followed DOJ guidance in litigating compassionate release motions throughout the district. … The district court was not satisfied. In its view, the government had failed to justify its position under § 3553(a), providing “no analysis whatsoever” and effectively conceding that step of the analysis, as well. J.A. 206. In particular, the government had failed to explain why – “[d]isregarding COVID-19” – the same § 3553(a) factors that originally supported a 30-year sentence now pointed to a sentence of only 14 years. … The government then changed its position, filing an amended response opposing Mangarella's motion for compassionate release. … After receiving the government's new response, the district court denied Mangarella's compassionate release motion. … The court did not mention, as part of its § 3553(a) analysis, Mangarella's primary argument under § 3553(a), originally endorsed by the government: that in light of the COVID-19 pandemic and Mangarella's special risk factors, a 30-year sentence – which now included a heightened risk of serious illness or death – was no longer warranted under § 3553(a). … As noted above, a district court must consider the § 3553(a) sentencing factors in deciding whether to exercise its discretion to grant a motion for compassionate release under § 3582(c)(1)(A)(i). … The “touchstone” is simply “whether the district court set forth enough to satisfy our court that it has considered the parties’ arguments and has a reasoned basis for exercising its own legal decisionmaking authority, so as to allow for meaningful appellate review.” Under that generous standard, the primary question here is whether we may call ourselves “satisfied” that the district court, in weighing the § 3553(a) factors, considered Mangarella's principal argument – originally joined by the government – for why those factors no longer warranted a 30-year sentence: that given his particular risk profile with respect to COVID-19, his prison sentence now carried with it a significant chance of a life-threatening illness. Cf. Kibble, 992 F.3d at 335 (Gregory, J., concurring) (“There is good reason to believe that, in some cases, a sentence that was ‘sufficient but not greater than necessary’ before the coronavirus pandemic may no longer meet that criteria.”). And that question is made more difficult by the fact that the district court's relatively thorough explanation for its determination under § 3553(a) – emphasizing the nature of Mangarella's offense and the details of his criminal history, with a reference to “some laudable examples” of post-sentencing conduct – does not include any mention of Mangarella's argument regarding COVID-19. To be sure, that omission does not by itself establish that the district court failed to consider Mangarella's COVID-19-related risks, at least implicitly, in weighing the § 3553(a) factors. There is no categorial requirement that a district court “invariably acknowledge and address each of [a] defendant's arguments” under § 3553(a). … Given the unusual facts of this case, however, we cannot make the same assumption here. In its colloquy with the government during the telephonic hearing, the district court appeared to take the view that it was inappropriate to consider COVID-19 or Mangarella's particular susceptibility to the disease not only as part of the “extraordinary and compelling reasons” analysis but also under the § 3553(a) factors. Indeed, its dissatisfaction with the government's initial brief in support of Mangarella's motion seems to have been driven by precisely this concern: that the government had improperly relied on Mangarella's heightened COVID-19 risks to argue that the § 3553(a) factors could now be satisfied by a 14-year sentence. … And under the unusual circumstances of this case, we cannot say with any confidence that in denying Mangarella's motion, the district court properly “reconsidered the § 3553(a) factors in view of” his age and health conditions, the COVID-19 outbreak at his correctional facility, and the “severe risks arising out of those circumstances.” See Kibble, 992 F.3d at 332. … Accordingly, we vacate the district court's judgment and remand for reconsideration of Mangarella'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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