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June 16, 2022: COMPASSIONATE RELEASE and BOP COVID-19 BLOG




Fast Facts (Full BOP stats can be found here) Currently positive-testing inmates: 181 (up from 166) Currently positive-testing staff: 268 (up from 265) Recovered inmates currently in the BOP: 50,696 (down from 50,753) Recovered staff: 12,924 (up from 12,893)


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

Marianna FCI: 29 (unchanged)

Bastrop FCI: 21 (up from 20)

Phoenix FCI: 15 (up from 13)

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

Central Headquarters: 32 (up from 30)

Mendota FCI: 11

Rochester FMC: 10

System-wide testing results: Presently, BOP has 139,901 federal inmates in BOP-managed institutions and 13,705 in community-based facilities. Today's stats: Completed tests: 128,722 (up from 128,721) Positive tests: 55,370 (up from 55,369)


Total vaccine doses administered: 321,239 (up from 321,096)


Case Note: District court on remand perhaps should have invited supplemental briefing but defendant failed to show circuit court he was thereby prejudiced...


In U.S. v. Newton, No. 21-2514, 2022 WL 2145230 (7th Cir. June 15, 2022), (published) (Kirsch, J.), the Seventh Circuit held that, although district court likely erred in denying the petition on remand occasioned by an intervening change in law suggesting certain inmates can still rely on COVID to demonstrate exceptional circumstances, without first seeking additional briefing, petitioner failed to provide evidence or argument to the circuit court that the district court erred in failing to give defendant the opportunity to supplement his papers or explain why he was eligible for relief, explaining: "Two days after we issued Newton I, we decided both Broadfield and Ugbah, announcing that, “for the vast majority of prisoners, the availability of a vaccine makes it impossible to conclude that the risk of COVID-19 is an ‘extraordinary and compelling’ reason for immediate release.” Broadfield, 5 F.4th at 803. But we did not render vaccination the end all be all of compassionate release motions. Broadfield and Ugbah explicitly “included a safety valve for prisoners to show that they are unable to receive or benefit from a vaccine, or that they remain vulnerable to severe infection, notwithstanding the vaccine.” United States v. Rucker, 27 F.4th 560, 563 (7th Cir. 2022). That safety valve permits federal prisoners to make motions with newly proffered individualized facts based on concerns like Omicron breakthrough cases, long COVID, or the relative inefficacy of vaccines for certain vulnerable prison populations, like the immunocompromised. See id.; United States v. Barbee, 25 F.4th 531, 533 (7th Cir. 2022) (“If circumstances change, Barbee is free to file a new motion.”). Some three weeks later, the district court again denied Newton's motion. Moving past our directives in Newton I, it summarily concluded Newton had failed to show why he satisfied the Broadfield-Ugbah exception. At no point did the court ask for additional briefing from the parties, even though Broadfield, Ugbah, and COVID-19 vaccines did not exist when Newton was making arguments in the original 2020 compassionate release proceedings. Newton appealed again, now challenging that process as depriving him of the opportunity to argue that he satisfied the Broadfield-Ugbah exception—that he could not benefit from the vaccine. So we consider whether this compassionate release process was an abuse of the district court's “considerable discretion” under § 3582(c)(1)(A). United States v. Sanders, 992 F.3d 583, 587 (7th Cir. 2021). Newton's protests of the process have some purchase. The district court faulted Newton for not showing that he satisfied the requirements of the Broadfield-Ugbah exception. But those cases did not exist in 2020 when Newton filed his motion for compassionate release, and the district court invited no briefing from the parties on remand in 2021. Instead, the court merely waited three weeks and issued an order denying the motion filed in 2020. There is no hard and fast rule that a district court must invite new proceedings on intervening case law. A remand on a compassionate release motion is not a full resentencing, see Ugbah, 4 F.4th at 598, and it's within the district court's discretion not to seek—or even allow—supplemental briefing. Post-Broadfield we have not remanded cases in the same posture as Newton's for new proceedings in the district court after changes in the law and circumstances. See, e.g., Barbee, 25 F.4th at 533 (affirming district court's pre-Broadfield-Ugbah denial of compassionate release without remanding for reconsideration of the effect of those cases). But when intervening law changes as much as it did here, it's a risky procedure for a district court to rule on a motion without the input of the parties. It would be especially risky if the facts had changed as well. In this instance, they didn't. Newton has not pointed us to any change in the facts that would have changed the outcome. Once the district court denied Newton's motion, giving him no opportunity to explain why he could not benefit from the vaccine, Newton was free to explain that to us and possibly win a remand. Cf. Hrubec v. Nat'l R.R. Passenger Corp., 981 F.2d 962, 963–64 (7th Cir. 1992) (permitting 12(b)(6) plaintiffs to make additional factual allegations—consistent with their complaint—for the first time on appeal to win remand); Smoke Shop, LLC v. United States, 761 F.3d 779, 785 (7th Cir. 2014) (same). But he did not. He points to the original record that he used immunosuppressing asthma treatment and to a CDC report that immunocompromised people get less benefit from vaccines. But the district court already knew Newton was immunosuppressed, and the CDC report has nothing to do with Newton individually. Newton has simply given us no such new facts (or argument) showing why he is in the small minority of federal prisoners within the Broadfield-Ugbah exception, so remand is not appropriate, Broadfield, 5 F.4th at 802. And—considering Newton's counsel did not withdraw on remand—we are less sympathetic to his plight below. Although the district court did not seek additional briefing, Newton was free to file a motion any time during the three weeks to argue under new facts and new law. Not that we are faulting Newton's appointed counsel—it appears there was no such new information about Newton to provide.”



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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