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June 10, 2022: COMPASSIONATE RELEASE and BOP COVID-19 BLOG



Fast Facts (Full BOP stats can be found here) Currently positive-testing inmates: 177 (up from 167) Currently positive-testing staff: 312 (up from 309) Recovered inmates currently in the BOP: 50,804 (down from 50,906) Recovered staff: 12,822 (up from 12,817)


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

Honolulu FDC: 32 (unchanged)

Bastrop FCI: 31 (unchanged)

Marianna FCI: 14 (up from 9)

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

Central Headquarters: 30 (unchanged)

Victorville Medium I FCI: 13 (unchanged)

Victorville USP: 13 (unchanged)

System-wide testing results: Presently, BOP has 139,826 federal inmates in BOP-managed institutions and 13,742 in community-based facilities. Today's stats: Completed tests: 128,721 (up from 128,719) Positive tests: 55,369 (up from 55,367)


Total vaccine doses administered: 320,832 (up from 320,257)


Case Note: Court reduces 65-year sentence to eliminate stacking of two § 924(c) firearms convictions.


In U.S.v. JOHN THAT LUONG, Defendant., No. 96-CR-00094-JSW-1, 2022 WL 2072932 (N.D. Cal. June 9, 2022), the court granted partial compassionate release relief to defendant serving 65-year sentence to eliminate stacking of two § 924(c) firearms offenses, explaining: “The Ninth Circuit has now held that Section 1B1.13 is not an “applicable” policy statement for motions for compassionate release that are filed by defendants. United States v. Aruda, 993 F.3d 797, 802 (9th Cir. 2021). Therefore, although the statements in Section 1B1.13 “may inform a district court's discretion for § 3582(c)(1)(A) motions filed by a defendant, ... they are not binding.” Id.


This Court previously concluded that it could apply Subdivision D [i.e. the "catchall" provision of USSG § 1B1.13] to determine whether [] other circumstances qualify as “extraordinary and compelling” reasons that would warrant a sentence reduction. It also has concluded that the amendments to Section 924's stacking provisions may, in combination with other factors, constitute “extraordinary and compelling” reasons to reduce a sentence. See, e.g., United States v. Roberts, No. 05-cr-567-JSW, 2022 WL 1720080, at *3 (N.D. Cal. May 27, 2022); United States v. Chan, No. 96-cr-00094-JSW-13, 2020 WL 1527895, at *5-6 (N.D. Cal. Mar. 31, 2020). In Chan, for example, in addition to the amendments to Section 924(c)'s stacking provisions, the defendant's record of rehabilitation and his lack of danger to the community justified a reduction. Chan, 2020 WL 1527895, at *6.


In reaching that conclusion, the Court noted that Congress had not made the amendment to the stacking provisions retroactive. However, it concurred with reasoning set forth in United States v. Maumau that “[i]t is not unreasonable for Congress to conclude that not all defendants convicted under § 924(c) should receive new sentences, even while expanding the power of the courts to relieve some defendants of those sentences on a case-by-case basis.” No. 2:08-cr-00758-TC-11, 2020 WL 806121, at *7 (D. Utah Feb. 18, 2020); Chan, 2020 WL 1527895, at *6. The Fourth Circuit reached a similar conclusion in United States v. McCoy, 981 F.3d 271, 284-88 (4th Cir. 2020) (finding reasoning in Maumau, among other cases, persuasive and finding it is permissible to treat as “ ‘extraordinary and compelling reasons’ for compassionate release the severity of the defendants' § 924(c) sentences and the extent of the disparity between the defendants' sentences and those provided for under the First Step Act”). The Court concludes that the amendments to the stacking provisions and Luong's post-conviction rehabilitative conduct, as well as sentencing disparities that result from the amendments, warrant a reduction. Accordingly, the Court turns to the 3553(a) factors.


Luong's crimes were extremely serious and the convictions underlying the Section 924(c) are crimes of violence because they involved the use of firearms in Hobbs Act robberies. See United States v. Dominguez, 954 F.3d 1251, 1255 (9th Cir. 2020) (“[W]e ... reiterate our previous holding that Hobbs Act armed robbery is a crime of violence for purposes of 18 U.S.C. § 924(c)(3)(A).”); Dkt. No. 2442.) When Luong was resentenced, the sentencing judge acknowledged Luong's post-conviction behavior and efforts but concluded his conduct still warranted a substantial term of incarceration. (See, e.g., Resentencing Transcript at 39:3-14, 100:4-10; see also Borden Decl., ¶ 5; Dkt. No. 2418-3, Borden Decl., Ex. C (Original Sentencing Transcript at 99:16-100:25.)3


Between June 2013 and January 2021, Luong remained disciplinary free and there is nothing in the record to suggest he has incurred any serious disciplinary violations since 2021. (See, e.g., Dkt. No. 2418-14, Borden Decl., Ex. N.)4 In addition, the Court's decision will not result in Luong's immediate release, which addresses the need to protect the public from further crimes....


Accordingly, the Court GRANTS Luong's motion and it will reduce the term of imprisonment on Count 15 to 5 years to be served consecutively to Count 2 and all other counts. All other terms and conditions of the Amended Judgment imposed on June 12, 2009 remain unchanged and in effect."


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) The BOP has identified the death, on May 22, 2022, of William Russell Mills, 65, of FMC Fort Worth, raising the inmate death toll to 296. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.



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