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


Quick Facts (Full BOP stats can be found here) Currently positive-testing inmates: 8,946 (down from 9,194) Currently positive-testing staff: 1,233 (up from 1,150) Recovered inmates: 42,360 (up from 41,443) Recovered staff: 9,252 (up from 9,136)


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

Yazoo City Medium FCI: 719 (down from 740)

Pekin FCI: 271

Oakdale II FCI: 265

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

Central Office HQ: 42 (unchanged)

Pollock USP: 41

Carswell FMC: 40 (up from 39)

System-wide testing results: Presently, BOP has 135,387 federal inmates in BOP-managed institutions and 11,701 in community-based facilities. Today's stats: Completed tests: 129,243 (down from 129,258) Positive tests: 50,938 (up from 50,066)


Total vaccine doses administered: 286,117 (up from 285,713)


Case Note:


In U.S. v. SALVATORE DEMEO, 2022 WL 142345 (E.D.N.Y. Jan. 15, 2022) (Matsumoto, J.), five days into his 1 month sentence, the government concedes resurgent COVID-19 combined with defendant’s advanced age is extraordinary and compelling but objects due to seriousness of offense, but the court nonetheless grants release, explaining: "Defendant Salvatore Demeo, who is currently incarcerated at the Metropolitan Detention Center in Brooklyn, New York, is 82 years old and suffers from coronary artery disease, prostate cancer, and hypertension, among other serious health conditions. Mr. Demeo moves for compassionate release under 18 U.S.C. § 3582(c)(1)(A), requesting that he serve the remainder of his one-month custodial sentence in home confinement. For the reasons set forth below, Mr. Demeo's motion is GRANTED. On May 21, 2018, Mr. Demeo pleaded guilty to knowingly and willfully attempting to evade substantial income taxes, in violation of 26 U.S.C. § 7201. (ECF No. 25; see ECF No. 29.) Mr. Demeo failed to report income and capital gains from the sale of properties he inherited from his father, resulting in a tax loss of $367,673. Prior to sentencing, Mr. Demeo repaid the IRS in full, using the proceeds of the sale of the Demeos’ longtime family home in Brooklyn. … On January 5, 2022, Mr. Demeo surrendered to the Bureau of Prisons and began serving his one-month sentence at the MDC. Mr. Demeo filed the instant motion on January 10, 2022, requesting that he serve the remainder of his one-month custodial sentence in home confinement due to his deteriorating health and the resurgent COVID-19 pandemic. (ECF No. 66 (“Def.’s Mot.”).) The government has waived exhaustion and concedes that Mr. Demeo's health presents extraordinary and compelling circumstances, but argues that the motion should be denied because allowing Mr. Demeo to serve the remainder of his sentence in home confinement would not reflect the seriousness of his offense. … The government does not dispute, and the court finds, that Mr. Demeo has shown that “extraordinary and compelling reasons” warrant a sentence reduction based on his advanced age, medical conditions, and the COVID-19 infections at MDC. 18 U.S.C. § 3582(c)(1)(A)(i). In particular, the court concludes that Mr. Demeo's age, immunocompromised status, and other serious health conditions — when combined with the recent resurgence of COVID cases and current conditions at MDC Brooklyn — provide extraordinary and compelling reasons warranting a sentence reduction. “Since the onset of the COVID-19 pandemic, numerous courts have held that the presence of preexisting conditions that increase the risks associated with the virus, in combination with the conditions of confinement, constitute extraordinary and compelling reasons for a reduction in sentence under 18 U.S.C. § 3582(c)(1)(A).” United States v. Mallay, 2021 WL 5718301, at *7 (E.D.N.Y. Dec. 1, 2021) (quoting United States v. Serrano, 2020 WL 5259571, at *3 (S.D.N.Y. Sept. 3, 2020)). Most significantly, since his November 2019 sentencing, Mr. Demeo endured several months of radiation treatment that compromised his immunity and increased the risks of his exposure to COVID-19, despite his vaccination status. (ECF Nos. 60-61.) See, e.g., United States v. Seshan, 2021 WL 5861228, at *4 (S.D.N.Y. Dec. 10, 2021) (finding that the defendant's “immunocompromised state and his underlying medical conditions place him at severe risk of contracting COVID-19 and developing serious, possibly life-threatening illness,” providing extraordinary and compelling reasons for a sentence reduction); United States v. Peters, 2020 WL 2092617, at *4 (D. Conn. May 1, 2020) (granting compassionate release based on the defendant's “underlying medical conditions which leave him immunocompromised”). … Moreover, the current conditions at MDC Brooklyn support finding that extraordinary and compelling reasons exist in this case. See, e.g., Mallay, 2021 WL 5718301, at *7 (noting that courts consider “the conditions of confinement” in resolving compassionate release motions, including “the proliferation and status of infection at defendant's facilities” (citations omitted)). According to the latest report issued by the MDC, 103 inmates are currently in isolation due to exposure to COVID-19. (Letter from F. Martinez, Jr. to Hon. Margo K. Brodie re: Administrative Order No. 2020-14 (Jan. 11, 2022), at 1.) The Bureau of Prisons classifies its facilities’ “operational levels” based on the medical isolation rate, vaccination rate, and community transmission rate. (Id. at 2.) MDC Brooklyn is currently classified as Level 3, the most severe, due to the community transmission rate being higher than 100 per 100,000 over the last 7 days. (See id. at 2.)2 Thus, in conjunction with Mr. Demeo's age and medical conditions, the current isolation and transmission rates at MDC Brooklyn weigh in favor of a sentence reduction. See, e.g., United States v. Mansourov, 2021 WL 6063235, at *3 (D. Conn. Dec. 22, 2021). The government notes that, according to Mr. Demeo's counsel, Mr. Demeo has received two doses of the COVID-19 vaccine and a booster shot. (Gov't’s Opp'n at 3 n.1.) However, “[a]n incarcerated person's vaccination status does not serve as a total bar” to finding that extraordinary and compelling reasons exist. Mansourov, 2021 WL 6063235, at *3 (collecting cases). In light of his age and serious health conditions, Mr. Demeo's vaccination status does not vitiate the court's finding that extraordinary and compelling reasons warrant a sentence reduction. ... The court also finds that the relevant Section 3553(a) factors weigh in favor of granting a sentence reduction. See 18 U.S.C. § 3582(c)(1)(A). The court recognizes that Mr. Demeo's criminal history and his crime of attempted tax evasion are serious, and that he has served a small portion of his below-Guidelines, one-month custodial term. See id. § 3553(a)(2)(A). However, the court notes that the non-violent nature of Mr. Demeo's offense weighs in favor of granting the motion. … Moreover, the court finds that Mr. Demeo has been adequately deterred by his time in custody and the other aspects of the court's sentence, including the $367,673 in restitution that Mr. Demeo paid prior to sentencing. See 18 U.S.C. § 3553(a)(2)(B), (a)(7). Most importantly, the need “to provide the defendant with needed ... medical care ... in the most effective manner” has increased dramatically over the past two years. Id. § 3553(a)(2)(D); see, e.g., Seshan, 2021 WL 5861228, at *4 (“Because of his heightened risk of contracting COVID-19 and developing serious illness, the ‘history and characteristics of the defendant’ and the ‘need ... to provide the defendant with needed medical care’ weigh in favor of modifying [the defendant's] sentence to a period of home confinement” (citation omitted)). Since he was sentenced in November 2019, Mr. Demeo has undergone radiation to treat prostate cancer, sustained a broken hip that required hospitalization and physical therapy, and struggled with a skin condition that resulted in open sores on his body. … In sum, the court concludes that Mr. Demeo has demonstrated extraordinary and compelling reasons for a sentence reduction and that the Section 3553(a) factors weigh in favor of granting his motion. … For the foregoing reasons, Mr. Demeo's motion for compassionate release is GRANTED. The court reduces Mr. Demeo's sentence to time served, and he shall be released from custody into home confinement immediately.”







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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