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July 6, 2022: COMPASSIONATE RELEASE and BOP COVID-19 BLOG


Fast Facts (Full BOP stats can be found here) Currently positive-testing inmates: 473 (up from 468) Currently positive-testing staff: 346 (down from 367) Recovered inmates currently in the BOP: 49,985 (down from 49,986) Recovered staff: 13,090 (up from 13,051)


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

SeaTac FDC: 188 (unchanged)

Phoenix FCI: 46 (unchanged)

Marianna FCI: 40 (unchanged)

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

Central Headquarters: 41 (up from 40)

Rochester FMC: 16 (unchanged)

Houston FDC: 15

System-wide testing results: Presently, BOP has 140,067 federal inmates in BOP-managed institutions and 13,684 in community-based facilities. Today's stats: Completed tests: 128,699 (up from 128,697) Positive tests: 55,347 (up from 55,345)


Total vaccine doses administered: 323,371 (up from 323,364)


Case Note: Change in circuit law, precluding career offender finding, together with rehab, support sentencing reduction...


In U.S. v. BRIAN LEE CORBETT, 2022 WL 2375168 (S.D.W. Va. June 30, 2022) (Copenhaver, J.), the court found that change in circuit precedent would preclude career offender finding today, which together with rehabilitation, warrants reduction, explaining: "On May 19, 2010 defendant Brian Lee Corbett (“Corbett”) pled guilty to Count One of a four-count indictment, which charged him with aggravated bank robbery in violation of 18 U.S.C. § 2113(a) and (d). ECF No. 59. … These enhancements resulted in subtotal of 29 points, however, in accordance with the criteria set forth in U.S.S.G. § 4B1.1(a), the Probation Officer recommended that Corbett be found a Career Offender. … Designation as a career offender raised the adjusted offense level to 34. Id. After receiving a three-level reduction for acceptance of responsibility, the PSR calculated a Total Offense Level of 31. Corbett's prior convictions resulted in a criminal history score of 9, which would have yielded a Criminal History Category of IV. Id. at ¶ 49. However, because Corbett had received the career offender designation, his Criminal History Category was raised to VI. … Based on the Total Offense Level of 31 and Criminal History Category of VI, Corbett was subject to an imprisonment range of 188 to 235 months. Judge Johnston sentenced Corbett to a term of imprisonment of 235 months to be followed by 5 years of supervised release. … Relying on McCoy as persuasive authority, Corbett argues that extraordinary and compelling reasons exist that warrant release in his case. First, he argues that if he were sentenced today, he would not be classified as a career offender and thus would be subject to a shorter sentence. … At the time of his sentencing, Corbett met all the criteria for career offender designation. He was 34 years old, his crime of conviction was a felony crime of violence, and he had two prior felony offenses that were considered either a crime of violence or a controlled substance offense. The two predicate offenses underlying Corbett's enhancement were a 1993 conviction for Aggravated Robbery out of the Circuit Court of Logan County, WV, and a 2003 conviction for Conspiracy to Distribute Cocaine in violation of 21 U.S.C. § 846 out of this court. See PSR ¶¶ 39, 44, 48. Since Corbett's sentencing, however, the Fourth Circuit has held that the offense of conspiracy to distribute drugs under 21 U.S.C. § 846, being that for which he was sentenced, is not a “controlled substance offense” under the Guidelines. United States v. Norman, 935 F.3d 232 (4th Cir. 2019).2 Accordingly, if sentenced today, Corbett's 2003 conviction would not be considered a controlled substance offense, and Corbett would not meet the third criterion for designation as a career offender. … Thus, without the enhancement, the relevant advisory sentencing range would have been 92 to 115 months, rather than 188 to 235. Second, in addition to the disparity between the sentence he received and the one he believes he would receive if sentenced today, Corbett submits that his record while incarcerated also supports a reduction in his sentence. … During his period of incarceration, he has taken numerous classes including classes related to employment, computer usage, parenting, and release preparation. … Corbett concedes that he has sustained disciplinary infractions since his arrival in BOP custody but submits that “only one of those infractions occurred in the past six years and the most serious occurred nearly nine years ago.” ECF No. 188, at 9. Corbett claims that his improved conduct indicates that he has matured during his time in prison and “has shown an ability to live within the rules required of him[.]” Id. The court notes that ten of Corbett's sixteen disciplinary infractions were for mail or phone abuse. Summary Reentry Plan 12. His other infractions include possession of unspecified unauthorized items in 2010, 2011, and 2012; possession of a dangerous weapon in 2013; and refusing work and refusing an order in 2016. Corbett's only infraction since 2016 was for mail abuse in October of 2021. … The United States argues that the intervening change in career offender predicate offenses is not an extraordinary and compelling reason for compassionate release. Id. at 5−11. This argument, however, is unavailing. … In this case, the court finds that the disparity between the sentence Corbett received and the one he would have received had he not been designated as a career offender, combined with his rehabilitative record while incarcerated, supports a finding of extraordinary and compelling circumstances that warrant release under § 3582. … Although the government aptly argues that the circumstances of Corbett's crime and his criminal history, which it describes as “extensive and violent,” weigh heavily against release, the court notes Corbett has served nearly three years more than the top of the 92 to 115 months guideline range he would be exposed to if sentenced today, a guideline range that would be based upon the characteristics of his crime and the extent of his criminal history. Although Corbett's PSR indicates that he was convicted of a serious violent offense in 1991, the court notes that he was only 15 years old at the time of that conviction. PSR ¶ 44. The only other instance of violence apparent in Corbett's record is the 2002 conviction for Destruction of Property, the basis of that conviction being that Corbett kicked in the door of another's residence.”


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) The BOP has identified no additional COVID-related inmate deaths, leaving the inmate death toll at 299. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.

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