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July 15, 2022: COMPASSIONATE RELEASE and BOP COVID-19 BLOG

Updated: Jul 15



Fast Facts (Full BOP stats can be found here)


Confirmed active cases at 105 BOP facilities and 23 RRCs

Currently positive-testing inmates: 495 (up from 427) Currently positive-testing staff: 389 (up from 324) Recovered inmates currently in the BOP: 49,752 (down from 49,850) Recovered staff: 13,201 (up from 13,167)


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

SeaTac FDC: 113 (unchanged)

Texarkana FCI FCI: 47 (down from 55)

Phoenix FCI: 36 (down from 45)

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

Central Headquarters: 44 (up from 43)

Houston FDC: 18

Carswell FMC: 17 (up from 16)

System-wide testing results: Presently, BOP has 140,381 federal inmates in BOP-managed institutions and 13,900 in community-based facilities. Today's stats: Completed tests: 128,702 (up from 128,696) Positive tests: 55,351 (up from 55,344)


Total vaccine doses administered: 324,203 (up from 324,032)


Case Note: Seventh Circuit says Supreme Court's decision in Concepcion doesn't clear way to district courts to consider non-retroactive changes in the law or erroneous guidelines calculations in a CR application...


In U.S. v. King, No. 21-3196, 2022 WL 2663277 (7th Cir. July 11, 2022) (Easterbrook, J.) (published), the Seventh Circuit held that the Supreme Court's recent Concepcion opinion "is about the matters that district judges may consider when they resentence defendants" and cannot be read to permit courts to consider non-retroactive changes in law, or erroneous guideline calculations in a compassionate release application, explaining: "When deciding whether “extraordinary and compelling reasons”, 18 U.S.C. § 3582(c)(1)(A)(i), justify a prisoner's compassionate release, judges must not rely on non-retroactive statutory changes or new judicial decisions. That's the holding of United States v. Thacker, 4 F.4th 569 (7th Cir. 2021), and United States v. Brock, No. 22-1148, ––– F.4th ––––, 2022 WL 2526057 (7th Cir. July 7, 2022). There's nothing “extraordinary” about new statutes or caselaw, or a contention that the sentencing judge erred in applying the Guidelines; these are the ordinary business of the legal system, and their consequences should be addressed by direct appeal or collateral review under 28 U.S.C. § 2255. See United States v. Martin, 21 F.4th 944 (7th Cir. 2021). William King, who was sentenced to 216 months' imprisonment following his guilty plea to three heroin charges, contends that Concepcion v. United States, No. 20–1650, ––– U.S. ––––, ––– S.Ct. ––––, ––– L.Ed.2d ––––, 2022 WL 2295029 (U.S. June 27, 2022), requires us to abandon these decisions and hold that anything at all—factual or legal, personal or systemic, routine or unique—may be treated as “extraordinary and compelling”. That would be hard to reconcile with the language of the statute. Routine is the opposite of extraordinary. The statute also says that applications must be assessed according to policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(1)(A) [hanging paragraph]. The Sentencing Commission has not updated those statements since the First Step Act of 2018, which allows prisoners to file their own requests without the support of the Bureau of Prisons. But we explained in United States v. Gunn, 980 F.3d 1178 (7th Cir. 2020), that the older policy statements remain useful to guide district judges' discretion. … They do not hint that the sort of legal developments routinely addressed by direct or collateral review qualify a person for compassionate release. … That the First Step Act did multiple things—lowering sentences for some cocaine crimes, enabling prisoners to seek compassionate release on their own motions, and more—does not mean that every decision about any aspect of the First Step Act applies to every potential question under that statute. The First Step Act did not create or modify the “extraordinary and compelling reasons” threshold for eligibility; it just added prisoners to the list of persons who may file motions. We take the Supreme Court at its word that Concepcion is about the matters that district judges may consider when they resentence defendants. So understood, Concepcion is irrelevant to the threshold question whether any given prisoner has established an “extraordinary and compelling” reason for release. This brings us to King's situation. He contends that United States v. Ruth, 966 F.3d 642 (7th Cir. 2020), furnishes an “extraordinary and compelling” reason for compassionate release. The district court disagreed and denied King's application. Ruth holds that an unusual feature in one Illinois statute defining the word “cocaine” means that a conviction under that state law does not count as a prior cocaine conviction for the purpose of certain federal recidivist enhancements. King could have made such an argument on appeal after his own sentencing but did not, nor did he file a collateral attack based on the way Illinois defines cocaine. His effort to use Ruth as a door opener under the compassionate-release statute is foreclosed by Brock, which rejects the sort of argument that King advances. Because Brock is consistent with Concepcion, the district court's judgment is AFFIRMED.”


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) The BOP has announced no new COVID-related inmate deaths, and so the total remains at 301. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.

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