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Fast Facts (Full BOP stats can be found here)

Confirmed active cases at 81 BOP facilities and 10 RRCs

Currently positive-testing inmates: 124 (down from 149) Currently positive-testing staff: 195 (down from 227) Recovered inmates currently in the BOP: 46,646 (up from 46,637) Recovered staff: 14,916 (up from 14,876)

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

Butner Medium I FCI: 12 (down from 13)

Lompoc USC: 9

Houston FDC: 7

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

Central Office HQ: 61 (unchanged)

Grand Prairie: 13

Pekin FCI: 11

System-wide testing results: Presently, BOP has 145,428 federal inmates in BOP-managed institutions and 12,836 in community-based facilities. Today's stats: Completed tests: 128,632 (unchanged) Positive tests: 55,280 (unchanged)

Total vaccine doses administered: 346,202 (up from 346,193)

Case Note: Fourth Circuit remands for further consideration of defendant's rehabilitation, explaining, "Gutierrez came forward with the kind of significant and extensive evidence of post-sentencing rehabilitation that takes a case out of the 'simple' category and necessitates a 'more robust' and 'individualized' explanation...'"

In U.S. v. Gutierrez, No. 21-7092, 2023 WL 245001 (4th Cir. Jan. 18, 2023) (unpublished) (Harris, J.), the court found that defendant’s post-conviction rehabilitation deserved more analysis and so it vacates the order denying relief and remands, explaining: "Jose Gutierrez was convicted of conspiring to import and distribute large quantities of cocaine and marijuana, and sentenced to a prison term of 40 years. … There is no question that Gutierrez played a central role in a large-scale and “successful narcotics trafficking business,” responsible at one time for sending as much as 40 kilograms of cocaine to Baltimore, Maryland every ten days. … At sentencing, the district court adopted Gutierrez's presentence investigation report (PSR), which calculated a Sentencing Guidelines range of 360 to 960 months. The PSR recommended a sentence of 360 months’ imprisonment on each count, to run concurrently. Instead, the court sentenced Gutierrez to concurrent prison terms of 480 months, or 40 years. The sentencing court's rationale is not available to us, as we have no transcript from the 2005 sentencing. In June of 2021, after serving 16 years of his sentence, Gutierrez filed an emergency motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i). To satisfy the “extraordinary and compelling reasons” requirement, Gutierrez pointed mostly to the COVID-19 pandemic and his vulnerability to COVID-19. … And he argued that his facility, FCI Lompoc, presented “numerous troubling conditions” – including inadequate cleaning supplies and screening of inmate workers – that contributed to a high COVID-19 infection rate and put his health at “grave risk.” Gutierrez also argued that the § 3553(a) sentencing factors favored release in his case. Here, he relied on extensive evidence of post-sentencing rehabilitation to show that he was a “changed person” after 16 years of incarceration. J.A. 36. In prison, he had taken numerous classes, received his GED, and was on track to earn an associate degree. He had learned to weld – becoming a welding teacher to over 150 students – and taken carpentry classes, providing him with job skills upon his release. He had served as a mentor to other inmates and as a recreation aide in prison. … In the ruling now on review, the district court denied Gutierrez's motion with a form order. At the start of the form, the judge – a different judge than the one who had sentenced Gutierrez in 2005 – checked a box indicating that he was reviewing a defendant-filed motion for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A), and that he had considered “the applicable factors provided in 18 U.S.C. § 3553(a) and the applicable policy statements issued by the Sentencing Commission.” J.A. 327.1 And at the end of the form, he checked the box for “DENIED after complete review of the motion on the merits.” J.A. 329. Finally, in an optional section for “FACTORS CONSIDERED,” the court explained:

The defendant was a large-scale narcotics trafficker, responsible for putting massive amounts of narcotics on the street. The defendant was compensated in the millions for his efforts. There can be no dispute that narcotics trafficking contributes to much of the death and violence occurring in this country. The fact that no evidence suggests the defendant was directly responsible for violence, does not mitigate the fact that most of the violent criminal acts arise out of the narcotics trade. While the Court applauds the rehabilitative efforts, others like the defendant need to be deterred from engaging in similar conduct. The Court believes the public needs to be protected from the defendant. He simply has not demonstrated he is entitled to the relief he requests.

Id. Although the district court did not refer expressly to § 3553(a) in its explanation, it appears – and the parties agree – that the court was applying the § 3553(a) sentencing factors and denied Gutierrez's motion on that basis. … On appeal, Gutierrez argues primarily that the district court's explanation of its denial of compassionate release failed to properly address his significant evidence of post-sentencing rehabilitation. Given the extent of his rehabilitation-related evidence, Gutierrez contends, our decision in United States v. Martin, 916 F.3d 389, 396 (4th Cir. 2019), called for an individualized and “more robust” explanation for why that evidence did not weigh in favor of a sentence reduction. We agree. … How much explanation is “enough” depends on the complexity of a given case. See Jenkins, 22 F.4th at 170; High, 997 F.3d at 188–89. In this case, Gutierrez came forward with the kind of significant and extensive evidence of post-sentencing rehabilitation that takes a case out of the “simple” category and necessitates a “more robust” and “individualized” explanation. See Martin, 916 F.3d at 396; United States v. McDonald, 986 F.3d 402, 412 (4th Cir. 2021). … Given that “significant amount” of post-sentencing mitigation evidence, we concluded, these were cases of “the more complex type contemplated in Chavez-Meza” and thus necessitated a “more robust and detailed explanation.” High, 997 F.3d at 190. … It is true that the district court alluded to Gutierrez's evidence of post-sentencing rehabilitation when it “applaud[ed] the rehabilitative efforts.” J.A. 329. But that was one passing comment in an explanation otherwise devoted – like the explanation we deemed inadequate in Martin – to Gutierrez's “original criminal behavior.” Martin, 916 F.3d at 397. And nothing about that comment acknowledges or reflects consideration of the exceptional breadth of Gutierrez's rehabilitative efforts. … Indeed, virtually no part of the district court's explanation is “individualized” to Gutierrez or his motion for compassionate release. Most of the court's paragraph-long discussion is devoted to the violence and other social costs associated with narcotics trafficking generally, and while those costs are indeed tragically high, the same points could be made about any defendant convicted of a large-scale drug offense. … Nor, importantly, is this a case in which the rationale from Gutierrez's original 2005 sentencing can supplement or shed additional light on the explanation offered by the district court's form order. As we explained in High, it is “significant” to our review of a compassionate-release explanation if, as in that case, “the district judge who considered [the defendant]’s motion for a sentence reduction was the same judge who had sentenced him originally.” 997 F.3d at 189 (cleaned up); see also Chavez-Meza, 138 S. Ct. at 1967. But here, the judge who considered Gutierrez's compassionate release motion in 2021 was not the same judge who sentenced him in 2005, so we cannot assume that the assessment of the § 3553(a) factors we are reviewing incorporated a judge's thinking from an earlier sentencing. Cf. High, 997 F.3d at 189. Moreover, we lack even a transcript from the 2005 sentencing, which leaves us with no way to “ascertain how the original sentencing court's rationale would interact with the host of mitigation evidence that arose post-sentencing,” further frustrating meaningful appellate review. Martin, 916 F.3d at 397–98. Taking all these circumstances together, we agree with Gutierrez that the district court failed to sufficiently explain its assessment of Gutierrez's evidence of post-sentencing rehabilitation and its denial of compassionate release.”

Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) Today, the BOP announced no new COVID-related deaths, leaving the total number of inmate COVID-related deaths at 312. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.

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