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January 13, 2022: COMPASSIONATE RELEASE and BOP COVID-19 BLOG


Quick Facts (Full BOP stats can be found here) Currently positive-testing inmates: 6,043 (up from 5,121) Currently positive-testing staff: 939 (up from 903) Recovered inmates: 42,678 (up from 42,571) Recovered staff: 9,027 (up from 8,988)


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

Yazoo City Medium FCI: 472 (up from 251)

Herlong FCI: 207 (down from 208)

Guaynabo MDC: 199 (down from 200)

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

Central Office HQ: 37 (up from 35)

Carswell FMC: 36 (up from 35)

Fairton FCI: 34 (up from 33)

System-wide testing results: Presently, BOP has 135,501 federal inmates in BOP-managed institutions and 15,010 in community-based facilities. Today's stats: Completed tests: 129,202 (up from 129,005) Positive tests: 48,340 (up from 46,481)


Total vaccine doses administered: 284,099 (up from 283,304)


Case Note: "Issue exhaustion" issue and district court's reliance on Guidelines § 1B1.13 skirted in favor of denial based on § 3553(a) factors...


in U.S. v. SAIEED JEAN TEXEIRA-NIEVES, (1st Cir. Jan. 12, 2022) (published) (Selya, J.), the court, instead of addressing whether § 3582 exhaustion includes issue exhaustion or whether reliance on § 1B1.13 is reversible error, the court disposes of the claim based on its § 3553(a), explaining: " The question of whether and to what extent issue exhaustion applies to judicial review of compassionate-release motions is freighted with uncertainty — but we need not resolve that question today. … On the merits, the defendant's lead argument relates to the requirement of the compassionate-release statute that a reduction be “consistent” with “applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(1)(A). … This issue — at least potentially — could have significant ramifications in other cases. With such ramifications in mind, we previously have found it prudent to refrain from resolving this issue when the circumstances of a particular case do not demand such a resolution. We follow the same path today. The defendant's qualms about the inapplicability of the policy statement were not raised below and, in any event, this case does not require that we decide the issue. Even if we assume (favorably to the defendant) that the district court treated section 1B1.13 as mandatory and that, in so doing, it committed error (or even plain error), the defendant still would not prevail. We explain briefly. A defendant who demonstrates both that extraordinary and compelling reasons exist for a sentence reduction and that such a reduction is consistent with the applicable policy statement must clear yet another hurdle. He must persuade the district court that the section 3553(a) factors weigh in favor of a sentence reduction. … In other words, a supportable determination that the balance of the section 3553(a) factors weighs against a sentence reduction constitutes an independent reason to deny compassionate release. This is such a case. The district court expressly found that the defendant remained a threat to the community and cited to section 3553(a). Its order also explicitly adopted “the reasons indicated by the United States in its opposition and sur-reply.” These reasons included the government's position that the sentencing factors disfavored a sentence reduction and outweighed the defendant's medical concerns. Thus — assuming that the district court did not abuse its discretion in calibrating the section 3553(a) balance — there is no need for us to wade into the debate over the applicability of the current policy statement.”


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) Today the BOP announced the death, on January 10, 2022, of William Sylvia, 78, of FCI Loretto. COVID-related fatalities now number 277. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.



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