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July 29, 2022: COMPASSIONATE RELEASE and BOP COVID-19 BLOG




Fast Facts (Full BOP stats can be found here)


Confirmed active cases at 115 BOP facilities and 15 RRCs

Currently positive-testing inmates: 471 (down from 497) Currently positive-testing staff: 474 (down from 478) Recovered inmates currently in the BOP: 49,660 (down from 49,662) Recovered staff: 13,308 (up from 13,300)


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

Phoenix FCI: 49 (unchanged)

Chicago: 30 (up from 28)

Cumberland FCI: 23

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

Central Headquarters: 51 (unchanged)

Carswell FMC: 21 (unchanged)

Houston FDC: 20 (unchanged)

System-wide testing results: Presently, BOP has 140,725 federal inmates in BOP-managed institutions and 13,925 in community-based facilities. Today's stats: Completed tests: 128,710 (up from 128,709) Positive tests: 55,358 (up from 55,357)


Total vaccine doses administered: 325,400 (unchanged)


Case Note: Defendant not entitled to compassionate release based on claim that Richard and Apprendi would compel a lower sentence today...


In U.S. v. JOHNEY FREEMAN, Defendant. No. 2:88CR76-2, 2022 WL 2967056, at (E.D. Va. July 27, 2022) (Beach Smith, J.), the court, assuming the continuing legitimacy of Fourth Circuit law that courts can consider anything in finding extraordinary and compelling circumstances, rejects the Government’s argument that non-retroactivity of two Supreme Court cases — Richardson and Apprendi — precludes their consideration as extraordinary and compelling circumstances and are merely end-runs around the limitations on habeas corpus, but still concludes those cases don’t provide an avenue for relief in this case, explaining, "Defendant contends that three (3) matters constitute “extraordinary and compelling reasons” justifying his release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i): (1) the ongoing COVID-19 pandemic, “combined with [his] age, debilitated medical condition, ethnicity and gender,” ECF No. 197 at 19; (2) his “post-sentencing rehabilitation,” see id. at 28; and (3) the fact that Defendant “would not receive a life sentence today” on Count 2, ECF No. 211 at 2. The court will take up the latter two arguments first, before turning to the issue of Defendant's current condition, which calls for a fuller discussion. 1. Life Sentence on Count 2 Just as it did when Defendant was sentenced, a conviction under 21 U.S.C. § 848 still carries a maximum statutory penalty of life imprisonment.3 Despite this, Defendant submits that, for multiple reasons, he would not receive a life sentence on Count 2 today. See ECF No. 211 at 2. The United States maintains that Defendant's arguments on this issue are not cognizable under 18 U.S.C. § 3582 (c) (1) (A) (i), as they amount to an impermissible end-run of the procedural requirements for mounting a collateral attack on a federal conviction. See ECF No. 215 at 23-30; 28 U.S.C. § 2255. The Fourth Circuit has not explicitly addressed the question of whether the habeas corpus statutes cabin its holding in McCoy that, until the Sentencing Commission issues an updated policy statement, “district courts are ‘empowered to consider any extraordinary and compelling reason for release that a defendant might raise.’ ” 981 F.3d at 284 (alteration omitted) (quoting Brooker, 976 F.3d at 230). Though the court finds the government's position convincing, and in line with a growing number of district court decisions in this Circuit,4 the court will address Defendant's arguments on their merits, as the court can easily dispose of each. Defendant first invokes Richardson v. United States, 526 U.S. 813, 815 (1999), which held that a jury must “agree unanimously about which specific violations make up the ‘continuing series of violations’ ” necessary to sustain a conviction under 21 U.S.C. § 848. See ECF No. 211 at 2.5 Defendant contends that his sentence is invalid because “the indictment did not allege a specific violation under either section 848(a) or (b),” and did not provide “notice of statutory penalty provisions” for the underlying drug offenses. ECF No. 211 at 2. However, contrary to Defendant's representation, the Indictment alleged numerous specific violations of federal drug law upon which a § 848 conviction could be based. Doc. 1 at 14 (referring to multiple other counts alleging violations of Title 21). Indeed, in addition to Counts 1 and 2, the jury returned guilty verdicts on Counts 7, 20, 27, and 40, Doc. No. 100 at 1, all of which were listed in the Indictment as predicate offenses for Defendant's § 848 conviction, Doc. No. 1 at 14. This renders any alleged failure to give a jury instruction in accordance with Richardson harmless error. See United States v. Brown, 202 F.3d 691, 699-700 (4th Cir. 2000). Defendant next contends that his life sentence resulted from impermissible judicial factfinding, prohibited by Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013). See ECF No. 211 at 2. Specifically, Defendant takes issue with the lack of a jury finding that a particular drug weight was involved in his offense, or that he, in fact, murdered three individuals. See id. This argument misses the mark, as the life sentence Defendant received for this crime was a result of Judge Clarke's upward departure from the applicable Guidelines sentencing range pursuant to U.S.S.G. §§ 5K2.0 and 5K2.1. See Doc. No. 141 at 4-5 (sealed Statement of Reasons). He explained that this deviation “was necessary and proper because of the large amount of cocaine distributed, but more particularly because the murders of one witness and two potential witnesses resulted from the defendant's criminal activities.” Id. Specifically, Judge Clarke noted that it was “clear” that Defendant “played a part in accomplishing the murders.” Id. at 5. Judge Clarke's consideration of the scope of Defendant's criminal activity, and the fact that his conduct directly caused the death of three (3) individuals, did not violate the directives of Apprendi or Alleyne because these findings merely informed the court's sentencing decision, which fell within the bounds of the applicable statutory sentencing range. Indeed, as the court has previously observed, the specific quantity of drugs involved in Defendant's offense “played no role in determining the guideline range or giving the upward departure for Count 2.” See ECF No. 103 at 1 (emphasis in original) (sealed statement of reasons denying Motion for Sentence Reduction).6 As for the killings, the relevant Guidelines section expressly permitted the court to “increase the sentence above the authorized guideline range” if “death resulted” from Defendant's offense. See U.S.S.G. § 5K2.1 (1988 ed.). That provision noted that the court was required to “give consideration to matters that would normally distinguish among levels of homicide,” and was permitted to consider “whether multiple deaths resulted” from Defendant's conduct. See id. The current version of the Guidelines provision provides for a departure under similar circumstances. See U.S.S.G. § 5K2.1. Therefore, Defendant would be subject to the same upward departure today. For these reasons, and to the extent they are not precluded by habeas corpus statutes,7 none of Defendant's arguments concerning his life sentence on Count 2 justify a lesser sentence than the one he received.”

Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) The BOP has announced no new COVID-related inmate deaths. COVID-related inmate deaths remain at 302. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.

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