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July 29, 2019: COMPASSIONATE RELEASE and BOP COVID-19 UPDATE



Quick Facts: Currently positive-testing inmates: 236 (up from 225) Currently positive-testing staff: 142 (up from 135) Recovered inmates: 43,129 (down from 43,190) Recovered staff: 7,017 (up from 7,009) Institutions with the largest number of currently positive-testing inmates:

Texarcana FCI: 61 (unchanged)

McCreary USP: 28 (unchanged)

Aliceville FCI: 28

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

Pollock: 13 (up from 9)

Coleman Low FCI: 9

Coleman I USP: 6 (up from 5)

System-wide testing results: Presently, BOP has 130,465 federal inmates in BOP-managed institutions and 14,311 in community-based facilities. Today's stats: Completed tests: 118,306 (up from 118,206) Positive tests: 42,805 (down from 42,854)

Total Vaccine doses distributed: 204,518

Case Note: Change in law eliminating previous marijuana conviction as "serious drug offense" requiring enhanced sentence supports compassionate relief despite government claim that defendant has another qualifying offense upon which the government had not previously relied...


In PHILLIP JEROME MURPHY v. U.S., 2021 WL 3177409 (E.D. Va. July 27, 2021) (Jackson, J.), the court, in a partial grant of relief based on a change in law regarding offenses that qualify as prior serious drug felonies under 21 USC 851, rejects Government's argument that the FSA’s change to § 851 should not support relief where the defendant has another qualifying offense upon which the government had not previously relied, explaining: "At the time of Petitioner's conviction, Counts 1 and 6 carried mandatory minimums of 240 months and 60 months respectively. Accordingly, on January 6, 2016, this Court sentenced Petitioner to a total of 300 months imprisonment, inclusive of the mandatory minimums for each count—240 months on Count 1 and 60 months on Count 6. ECF No. 36. … At the time, pursuant to 21 U.S.C. § 841(b)(1)(A), the marijuana conviction qualified as a prior serious drug felony, warranting an increase in Petitioner's mandatory minimum under Count 1. Id. Accordingly, Petitioner's conviction on Count 1 required a 240-month term of imprisonment as opposed to 120 months. … In 2018, however, the FIRST STEP Act redefined a “serious drug felony” under 21 USC § 802(57). Now, in order to trigger an increased mandatory minimum based upon the offender having prior serious drug felonies, (1) the offender must have served a term of imprisonment of more than 12 months for said offense, and (2) the offender's release from any term of imprisonment must be within 15 years of commencement of the instant offense. See 21 U.S.C. §§ 802(57) and 841(b)(1)(A). Here, the Government proffered Petitioner's marijuana conviction as the underlying serious drug felony proscribed by § 841. Petitioner's period of incarceration, however, was suspended for the marijuana conviction, making his term of imprisonment less than the statutorily required period of more than 12 months. Accordingly, the marijuana conviction does not qualify as a serious drug felony under 21 U.S.C. §§ 802(57) and 841(b)(1)(A).The Government argues that even though the marijuana conviction does not qualify, Petitioner had another prior drug conviction—possession of cocaine with intent to distribute—which would have met the new restrictions imposed by the FIRST STEP Act. ECF No. 104 at 19. The Government admits, however, that it did not rely upon the cocaine conviction when it issued its § 851 enhancement notice. Id. Therefore, the Court declines to assess whether the Government would have met its burden under alternative circumstances. Instead, as it stands now, after passage of the FIRST STEP Act, if Petitioner were sentenced under the same offense conduct, Petitioner could have received 10 years fewer than the 20-year sentence previously imposed. Accordingly, the disparity between Petitioner's sentence and that of offenders sentenced after the FIRST STEP Act is 2:1, meaning Petitioner's sentence under Count 1 is twice as long as that of similarly situated offenders. … In sum, the Court finds that Petitioner has demonstrated extraordinary and compelling reasons that merit a sentence reduction on Count 1. The structural disparity between Petitioner's imposed mandatory minimum and that of post-FIRST STEP Act defendants, as well as an individualized application of the § 3553(a) factors, support a sentence reduction. While the foregoing factors may not independently support a reduction, in combination, Petitioner has established extraordinary and compelling reasons for a sentence reduction.”


Death Watch: The BOP has reported no additional inmate fatalities, leaving the number of inmate fatalities at 240. Five of these inmates died while on home confinement. Staff fatalities remain at 4.



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